The virtue of telling a client to piss off

August 17, 2010

Popehat is a blog that I think was born in the same litter of puppies as the Satyricon. We love them. Reason #1 — constant Dr. Who references. Reason #2 — ethics lessons.

In this piece, Patrick provides us with a fantsays letter (based on a phone call he had) declining to represent an insurance company that wanted to sue kids who attempted suicide. In their failed attempts, the kids apparently made a mess in their insured’s homes.

In this day of the legal profession going to hell, and all of us scrambling to stay with the “haves,” as the income gap widens, Patrick’s “fuck you” letter should be distributed to all first year law students. As a lawyer “I am only doing my job,” is not an excuse for doing something sleazy, shitty, or shady.

Anyone who takes those cases should be disbarred and then they should have a bees nest shoved up their asshole, and it should be capped with a cactus. The same fate should befall the flunky who suggested that this might be a basis for a viable claim.

Waxing Virgins

August 16, 2010

By Tatiana von Tauber    

Satyriconista, Tatiana von Tauber

Very young girls these days are turning into women right before our eyes. Just last week CNN reported how today’s girls are beginning puberty as early as 7. The cause for this change is unclear but it’s thought to be attributed in part to chemicals in foods and “other environmental factors”. With the onset of puberty, challenges arise and increased hair growth is one.    

Unwanted hair is a real problem of course, specifically in certain places. Traditionally adults simply purchase a razor or make a waxing appointment and off we go. However, there’s a deeper issue developing with the hairless look. It’s not just about wishing to shave away from our monkey see, monkey do evolution. Unless hair is on our head, body hair on women (specifically) just ain’t pretty according to the beauty industry and the billions of dollars behind it.    

Have we gone too far  though when we sell adult women on the idea of waxing services for children as young as 8 years old with garbage such as this by  New York City salon, Wanda’s European Skin Care Center?    

Virgin hair can be waxed so successfully that growth can be permanently stopped in just 2 to 6 sessions. Save your child a lifetime of waxing…and put the money in the bank for her college education instead!” (source)    

Virgin hair?! What a trade off and in fact, what a sell out to young girls. We at LS have already discussed the aesthetics, purpose and preference of female pubic hair on adult women but the idea of bikini waxes on 8 to 12 year old girls just doesn’t hold the same level of debatable fun. No need to ask why. Many might even agree with Marc Randazza:    

I realize that I am a dad of a young girl, and one day I am going to have to simply accept that she has become a sexually active young woman. I can brace myself for that. But, if any sick bitch like the owner of Wanda’s places her hands on Natalia when she is 8 years old, I will not use my law degree to deal with the problem. I will slap that bitch so hard that she’ll turn inside fucking out.”    

I hear ya. It’s enough I’ve been frustrated for years about the lack of responsibility child-geared media and businesses take with respect to young girls and boys and what I view as basic disrespect towards childhood in and of itself. No matter how I try to feed childhood to my kids, the external world doesn’t seem to let them be kids.    

This extends further out than offering waxings. It goes into the heart of how kids are treated versus what is fed to them. Any adult can attest that the messages are in fact confusing. Basically if you have a young child you are bombarded with grown up stuff made child accessible or “child-size”. For girls trends hit waxings and Botox: 

According to the American Society of Plastic Surgeons, 12,000 teens received Botox injections in the last year. (source

For kids these days, what exactly do they have to look forward to as adults that they can’t do or attain or have access to during their childhood to teen years?   

One core issue here is that girls are under the influence of adult problems packaged up to meet “needs” of youth when most youth wouldn’t even know they apparently needed it if it weren’t for the beauty, fashion and entertainment industry selling them such ideas! Kids aren’t prepared for the realities of adulthood nor should be.  But why am I explaining it to you. You understand. So why do those in power seats that guide our children not get the obvious? Well, to borrow from the feared or loved Lady Gaga, it’s “money, honey“.    

If the entire beauty bullshit didn’t start with pre-school conditioning by Strawberry Shortcake aka 21st Century redheaded bimbo  (watch if you can stand it) or Dora the Explorer the Tramp, now a “tween” version showing a more fresh look for optimal marketability and profits or the myriad of other product lines sold to children, parenthood might actually be easier on the wallet and more beautiful in itself because us parents might have a chance to discover the pure and natural beauty of childhood from the way it’s supposed to be. I feel privileged my generation still had access to innocence; we don’t get to frolic in that state long enough.    

The fleeting existence of innocence is what makes childhood to pre-teen age the most spectacular state of mind to experience. Why then is it severely undervalued and why are women obsessed with youthful beauty? Because our culture believes the old should look young and the young should look older.  This philosophy sits on profit not truth but no age is immune to the power of marketing and capitalistic opportunity and don’t be fooled it’s ever because the beauty industry actually cares if you save your kids’ waxing money on a college fund.  Beauty is business first. If there’s any truth to send out to young girls, that’s it.


May 12, 2010

You call THIS porn?

Flori-duh State Senator, Mike Bennett (R) was (gasp!) “caught watching porn” during a senate session. (source) And the pile on begins… the story even made today’s news in Sweden.

While I enjoy watching Republicans fall from grace over sex scandals, this one is a non-issue. First off, the image was hardly “pornographic.” Second, the image was on his screen for a brief moment. Third, which of you have never screwed off while at work, whether it is looking at a racy photo or checking on how your fantasy baseball team is doing?

Bennett isn’t my favorite legislator, but his record hardly seems to be one of a socially conservative demagogue. His explanations were not the best, but in this round, I side with Bennett and say that the Sunshine State News should try real journalism and leave the tabloid crap to the tabloids.

Same old story

May 11, 2010

Sleazy company hires scumbag attorney to file SLAPP suit. Moron judge gives an unconstitutional injunction.

Okay, not the entire same old story… because Public Citizen jumped in and did a Chuck Norris roundhouse kick to the sleaze and the scumbag.

Immigrant Equality under the Law

April 23, 2010

While freely acknowledging my lack of formal legal qualifications, I believe I am correct in thinking that equality under the law is–well, kind of a basic concept.

How, then, does our esteemed president (who never shrinks from making arrogant judgmental assertions on topics far outside his constitutional authority) suggest that the Arizona bill to criminalize illegal immigration under state law is a violation of civil rights?

If he is correct, then all immigration laws violate civil rights, and should be abolished.

As an immigrant myself, I went through all kinds of shit to become a naturalized citizen. I am therefore displeased to see any group of people violating the law with impunity and then receiving special favors. Back when I was a mere visitor to this nation, it never remotely occurred to me that I could remain here illegally, and then demand to remain here permanently, and receive free services in the meantime. It was inconceivable.

The repatriation of illegal immigrants has been dismissed as “impossible” (as if practicality trumps law!) because of the sheer numbers involved. Yet if you do the math, estimating the number of people that can be carried on buses and trains, the entire problem could be resolved within 5 years. The fact that people have not done the math suggests to me that they do not want to do the math–for reasons which I find incomprehensible.

If immigration laws are in some sense unjust or inappropriate, let them be revised. In the meantime, let them be enforced like any other laws–equally. And if the Federal Government lacks the will to do so, let the states perform that duty.

Tampa psychologist allegedly bills insurer for banging patient

February 16, 2010

By J. DeVoy

In a quintessentially Floridian story, Dr. Daniel R. Lerom is being sued by his former patient and lover over their tryst.  The plaintiff, known only as HK in the filing-and referred to as RHL, red hot lover, by Lerom-even ended her engagement to pursue the good doctor.

According to the plaintiff’s filings, Lerom billed their romps to Blue Cross Blue Shield as “sessions.”  In addition to meeting in hotel rooms and Lerom’s office, HK gave him a key to facilitate their meetings in her Lakeland home.  And, of course, as in any modern love saga, there are the text messages Lerom sent his patient:

“My body felt great all over after last night. “

 “I wish you were here in the shower with me to warm me up.” 

“If I were there, I would rub you and kiss you all over.”

There are no charges pending against Lerom, although the evidence above is enough to convict on Class A Betatude.

When reached for comment, a spokesperson for the Citizens Commission on Human Rights had this to say:

“It’s a felony. It’s against the hippocratic oath.  It’s something you just don’t do.”

“This is not OK to do. It’s psychiatric rape. It’s not OK. It’s against the law. You cannot do this.”

We get it, really.  Still, one wonders if Whoopi Goldberg considered the potentiality of psychiatric rape when pontificating on the different degrees of rape, such as “rape” and the ostensibly more serious “rape rape.”  (Rape is a bright line, and stylizing it as different forms with malleable standards-psychiatric rape, rape rape, whatever-diminishes the act’s grave severity.)

Take it From Me: Elites Just Don’t Understand

December 10, 2009

"I can't teach you how to write a pleading that will survive a MTD -- I need to finish my forthcoming Article entitled 'No Backsies: The Common Law Origins of Playground Tag Rules.'"

Marc likes to post about the worthlessness of legal education yet never outright addresses the underlying reason it is worthless.  The reason is simple:  Legal academia is run by and large by the elite.  And the elite (for the most part) are completely worthless as lawyers.  Here’s why:

Elites are beholden to hierarchical power structures

For a profession that is supposed to champion egalitarianism and free expression of ideas, I have never met so many who are unwilling to challenge accepted power structures.  Associate.  Assistant. Professor.  Emeritus.  The inherent idea behind these titles is that you can use them as shorthand for whose ideas are better than others.  I love the disdain that rolls of the tongues of the tenured when they say “Oh, you mean that skills professor.”  How many times did you hear adjunct used as an epithet, Marc?  I bet a lot.  “You’re the new adjunct professor, eh?”

Elites are pussies

Remember in law school, where the elite professors and students banded together for a cause and took a stand on something unjust?  Yeah, I don’t either.   That’s because elites hate to take positions.  Taking a position means that you care about something.  And elites think that caring about something is a sign of weakness.  Remember the people who took positions in law school?  Yeah, they were the non-elites.  The kids who had nothing to lose by caring about something.  The elites were the ones calling an actuary before deciding whether to wipe their ass.

Case in point:  I had a friend (elites would call this person a colleague) at another law school that recently discovered outrageous plagiarism in a professor-submitted article they were editing for a student-run journal.  When the board brought the plagiarism to their school’s administration, the amount of absolute deference given to the professor was stunning.   One remedy the board suggested was informing the professor’s home institution of their findings and forwarding the evidence along.  Needless to say this was shot down as the elites circled the wagons.  The editorial board was also instructed to not name and shame the professor.  So, the end result is that this professor is free to submit their work to another journal.  A student would be expelled.  A professor protected.  Typical elite behavior.

Last example — in recommending that JD graduates seek a PhD if they want to enter the legal academy, Dave Hoffman comments that “these considerations intentionally ignore the important question — is this a good thing, or a bad thing, for legal education.  I don’t have a thing to say about that big question which is both novel and interesting.”  First of all, having nothing novel or interesting to say is par for the course among legal academics, so don’t beat yourself up over it.  Second, it just highlights that law professors hate to expose their views.  Hoffman went so far to let everyone know that he was actually not taking a position, that he led his defense by insulting Marc in the commentsMarc retorted by telling Hoffman to shit in his hat. Beautiful.

So here’s the difference between elites and non-elites — we can take positions on things!  See – requiring a PhD in addition to a JD is bad for law schools and law students.  It only furthers the class divide in legal academia, which will likely be extracted from students in their tuition as JD/PhD’s demand more compensation to cover their investment.  I didn’t just explode.  Neat!

Elites only care about informing others of their elite status and not the substance of their work.

I sit on the editorial board of a journal at Michigan and accordingly receive article submissions from law professors.  I can immediately tell the difference between an article sent by an elite and one sent by a non-elite / practitioner.  And it has nothing to do with the merit of the article.    See — in addition to their article (including the useless star (*) footnote, where law professors casually name drop the school they teach at and/or the law school they graduated from), the elites will send a fifty page CV that includes seventy rehashes of their one article in book chapters, presentations, and blogs along with every award they have ever received, including the time they won the jump rope contest at the Westhampton Academy for the Ethical Education of the Gifted, Talented, and Well-Dressed.   Oh, yeah.  And a one paragraph abstract written by their research assistant.  Note to law professors:  clean the meta-data before you submit your articles.

So given the above characteristics of the elite, it should be no surprise that they aren’t very good at teaching law students how to actually be lawyers.  Besides, if forced to teach – shudder – a skills class, elites would have less time to focus on real doctrinal classes, like say “Bloodfeuds,” “Fakin’ It,” or “Moral Order and the Irrational: Freud and Nietzsche.”

Legal academia is focused on serving these elites and everything else is secondary.  And in a system where skills (read: practical) classes are taught by professors uniformly cast by the tenured as second-class citizens, it sends a clear message to law students:  You don’t need to know how to do this menial work — that’s what law firms and their respective clients are for.  It’s no wonder clients are so pissed at first year billing rates.

The institutionalism of this goes beyond the tenure / non-tenure distinction.  At most schools, research, writing, and drafting classes are graded on a mandatory pass / fail basis whereas doctrinal classes are graded on a curve.  News flash:  Most law students put in the bare minimum amount of work into what is the foundation of the rest of their career.

I worked exceptionally hard in these classes because I want to do good work for clients one day.  While I find the “brain candy” of law school to be intellectually stimulating, perhaps it is my non-elite background that reminds me that one day I’ll need to put bread on the table for my wife and me.  What is clear is that for law professors, because of their elite background, this motivation never occurs to them.

As much as I am sure law firms and clients are delighted by a lawyer’s command of “The Law and Baseball” (a real course), I’m pretty sure they would much rather their lawyers are able to research relevant legal authorities and provide practical legal advice about their problems.  Elite professors simply don’t understand this, nor do they care to.  A life of privilege will do that to you.

Asshat or Imbecile?

November 6, 2009


Even if he was right, and it wasn't illegal.. WTF?

Lets say you make $94,000 a year in a great job as a clerk at the Massachusetts Court of Appeals. Lets then say that some kid emails you asking you to write a term paper for him for $300, and you agree to do it.

Does that make you an asshat or an imbecile?

Now lets say that the “kid” was really an undercover investigative reporter.

That makes you screwed.

Damian Bonazzolli, the man in question, even wrote to the undercover reporter that there was nothing illegal about writing a term paper for money.

In an email exchange, Bonazzolli said turning in a paper that he had written would not be illegal. “I am aware of no state or federal statute that prohibits such a practice. This is not the equivalent of, say, lying on a federal employment or tax form,” he said. “Could your school take disciplinary action? Of course. But that’s quite different from a criminal prosecution.” (source)

Maybe he should have asked Bob Ambrogi before rendering that opinion. Bob found that Massachusetts has a law directly on point.

Of course, I would hope that someone in his position wouldn’t need to care about whether it is illegal or not.

H/T: Debra Weiss

Boulder Police Chief, Mark Beckner, You are the Asshat of the Week

November 2, 2009

Mark Beckner. Douchebag.

Beckner is exactly the kind of petty little douche that becomes a cop because he got beat up too much as a kid. Rod Farva and Salvatore “dude” Rivieri come to mind. Beckner represents exactly the kind of cop that should be stripped of his badge, covered in shit and bees, and then rolled off a cliff in a shopping cart. Why? Because when people don’t respect his authoritah, he decides that it is time to use draconian sex offender laws to get his way.

Beckner’s previous claim to fame was running the JonBenet Ramsey case. Bang up job you did there, Beckner.

Now, as police chief, he’s ready to put a stop to a rampant sex offense that is about to ruin Boulder — its annual Naked Halloween Pumpkin Streaking Event.

Yes, on Halloween in Boulder, Colorado, people put running shoes on their feet, Jack O’Lanterns on their heads, and they run through the streets. For nearly ten years, people have engaged in this tradition. They brave the cold, and run through the streets as onlookers throw candy. Beckner calls it a “free-for-all.” (source) Beckner decided, personally, that this kind of thing needs to come to an end. According to the Wall Street Journal, Beckner planned to “station more than 40 officers on the traditional four-block route… , with two SWAT teams patrolling nearby. All [with] orders to arrest gourd-topped streakers as sex offenders.” (source)


Ooh! Chief Beckner! Can I have a job at the Boulder PD?

This isn’t a cop deciding to do his duty and enforce the law, mind you. See, it isn’t actually illegal to run naked through the streets of Boulder. Boulder is actually pretty comfortable with public nudity. So, Beckner decided that he would use Colorado’s state indecent exposure statute.

C.R.S. 18-7-302: states: “A person commits indecent exposure if he knowingly exposes his genitals to the view of any person under circumstances in which such conduct is likely to cause affront or alarm to the other person. In other words, if it isn’t bothering anyone, nor is it likely to do so, the nudity isn’t illegal. This event starts at 11:00 PM, when the kids are all home in bed, and the Naked Pumpkin Run route is lined with throngs of cheering fans who are there specifically to see the spectacle, how could any reasonable person think that this was “likely to cause affront or alarm?”

Police acknowledge they have not been flooded with pumpkin-run-related complaints, but say that’s beside the point. A throng of naked people with jack-o-lanterns on their heads is, by definition, an alarming sight, Chief Beckner says. Therefore, it’s illegal. (source)


Thats the sound of my petty-little-authoritarian detector / bullshit detector going off.

Well, how about this? Lets try and give Beckner the benefit of the doubt here. Maybe the Naked Pumpkin Run isn’t illegal, but the public is outraged and the guy has to do something.


There it goes again.

Citizens aren’t complaining. But, what about the politicians? Maybe Beckner just doesn’t want the city elders getting their panties in a twist?


At a recent forum for city council candidates, all 10 participants said they disapproved of the threatened crackdown.

Even Mayor Matt Appelbaum, who supports the police, admits to a tinge of worry that arresting Halloween streakers will tarnish Boulder’s reputation as, well, Boulder.

“I’m a little old for it, but it could be pretty cool to be running around with a pumpkin on your head and not much else,” says the 57-year-old mayor. (source)

Nevertheless, Mark Beckner wants to arrest people (using SWAT teams, no less) for an offense which, if it leads to a conviction, will require those people to register as sex offenders. Most of our sex offender laws are absurd. Laws are never good if they are named after dead children or passed due to the cries of grieving parents. Last month, Rogier van Bakel


Respect Beckner's authoritah or you will be on the sex offender list!

gave us this post, which showed the ludicrous results that these laws have brought about.

This story teaches us two things: 1) It reaffirms Rogier’s point that its time to scrap our sex offender laws. They are a dragnet that sweeps up way too many people for way too petty offenses. 2) It shows us that when we hire law enforcement officers with tiny penis syndrome, where their heads get red with rage that the damn citizens don’t just do as they are fucking told then that personality defect can lead to disastrous legal results.

Beckner, you’re a douche and the asshat of the week. By the way, how’s that JonBenet Ramsey case coming along?

Hiring a Legal Asistant 101

October 27, 2009

"Do you really think that I'm perfect for the job?"

Helpful hints for finding and hiring a legal assistant:

  • Make sure you use an online listing service.  Craigslist is always a good one.
  • Always do a good job of describing what you’re looking for.  Use explicit language, whenever possible.  For example, stating that you are seeking an “energetic woman” for “general secretarial work, some paralegal work and additional duties for two lawyers” seems to be a winner.
  • Next, in addition to a resume, be sure to ask for some personal information, such as photographs and “a description of your physical features, including measurements.”
  • When you receive applications, always follow up with an email, including more information about what the position entails.  Here’s a great example of the kind of thing you should write:

    In addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate.  This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction.

  • To be sure that everyone understands what is expected, you will want to make performing sexually a part of the interview process.


H/T Becky

…and after you’ve hired your dream assistant, here‘s some advice on keeping her.

New Rule: When your name is a meme, you’ve got to be ridiculous.

October 15, 2009
You can't file dipshit complaints?  O RLY?

You can't file dipshit complaints? O RLY?

I honestly had to do some fact checking when I found out that there was someone named Orly Taitz. I really had to check snopes when I saw was a frigging nutbag she is. She filed a lawsuit on behalf of a soldier who didn’t want her representing him, she’s the legal face of the “birther” movement, and after being told to stop filing frivolous claims, she immediately filed a motion for reconsideration. (source) The judge didn’t have much of a sense of humor about it (nor should he have). He slapped her with a $20,000 fine. The judge’s order is fun reading.

I dunno, I can think of a few lawyers out there who are just as clueless. Okay, that’s an exaggeration. She’s nuttier than Jack Thompson fucking a football.

The Catsouras Photos, Privacy, and Privilege

June 5, 2009
The Catsouras' Car.  We have made an editorial decision to refrain from publishing the photos of the dead girl.

The Catsouras' Car. We have made an editorial decision to refrain from publishing the photos of the dead girl.

The Story:
A Porsche. A girl. A tragic death.

For those who don’t know, Nikki Catsouras was a beautiful young girl who made a terrible error in judgment, which cost her dearly. Nikki was a rich kid (which is quite relevant) who stole her dad’s Porsche to go for a joy ride. With cocaine in her veins, and fine German engineering at her fingertips, she drove her dad’s $90,000 sports car way too fast and way too recklessly.

She flipped the car and smashed into a tollbooth. In an instant, a vehicle that cost as much as a decent house in Kentucky turned into a twisted ball of useless metal. More tragically, the impact tore Nikki Catsouras’ body apart. Someone at the scene took a series of photographs. The most graphic photo shows the girl’s head split open, the brain cavity empty as the impact squashed it like an over-ripe melon. I will not link to the photos of her, but if you are desperately curious it shouldn’t take too much research to find them. Before you run off to search, let me warn you: If you have a single shred of humanity in you, viewing the photos of this girl’s body will make you feel like you’ve been kicked in the stomach. Crying would not be an unpredictable reaction – not even from the most stoic bastard. You will, most likely, wish that you had never seen them.

The tabloid speaks to the daytime television addled masses

Newsweek reported on the story:

The accident was so gruesome the coroner wouldn’t allow her parents, Christos and Lesli Catsouras, to identify their daughter’s body. But because of two California Highway Patrol officers, a digital camera and e-mail users’ easy access to the “Forward” button, there are now nine photos of the accident scene, taken just moments after Nikki’s death, circulating virally on the Web. In one, her nearly decapitated head is drooping out the shattered window of her father’s Porsche. (source)

Somewhat predictably, the Newsweek piece then descends into tabloid-esque fear mongering and carries the torch for shrill anti-speech advocates. The author obviously spent her share of time talking to the fear-mongering and panic industry leaders, as she seems to be one of the last people on earth who considers the ironically-named “Reputation Defender” company to be a source of reliable information. The author takes only a few paragraphs before she cheekily labels those who posted the photos with a nifty little title, “cyber-aggressors.” The author does not deign to seek out anyone who might have a balanced opinion.

Silverman channels Jefferson, Voltaire, and Brennan

Although Newsweek did not seek out anyone with an opinion based in both law and ethics, preferring those who are pimping their books or their worthless “privacy defense” services, those voices are out there. Suffolk University Law Student, Justin Silverman provides a thought-provoking uncomfortable defense of those who publish the Nikki Catsouras photos — embracing the “hate the speech, but love free speech” view.

Silverman admits that his first reaction was “[s]traight from the gut,” and that he felt that the photos should be taken down. However, like all ethical thinkers, he reflected upon his emotions and meditated on his position. Silverman, giving us a view into his First Amendment bona fides, found himself defending expression despite despising the particular expression at hand.

I now realize my first reaction was the wrong one. Unlike most stories, the lines here are blurred and emotion can trick you into thinking you are advocating the right thing. The right thing, in this case, is not what it first seems. It is to defend that website’s right to show the photos, however disrespectfully it chooses to do so.

According to the Newsweek story, the Catsouras family considers itself out of legal options. The photos are public record after all, released by the police and made fair game to all whom seek to publish them. The dead can claim no privacy rights, and the photos are of only Nikki. These are the realities of firm legal principles that protect the public’s right to know and make it easier for information to be distributed. (source)

Of course, Silverman still despises those who published the photos. Despite his willingness to defend their publication as part of his general support for free expression, Silverman does not let us forget that where the law’s boundaries end, there is still plenty of ground covered by ethics. Silverman is palpably reluctant in his eloquent defense of the right to publish the photos. Nevertheless, while he judges the photographs to be without value, and lectures the reader on ethics, he stays true to his own. Silverman admits that despite his personal distaste for this particular expression, he understands why the right to publish these photos exists, and he vows that he will continue to defend that right.

It’s not a change in the law I advocate. It’s just a reminder that in some cases our rights come at a high cost to others. Though we are free to exercise our rights, we should do so with purpose, for a greater good.

And that being able to publish photos doesn’t mean that we should. (source)

Amen brother.

The academic circle jerk naturally disagrees with Mr. Silverman and wants big brother to put us under his loving protective arm. Dan Solove comments at Concurring Opinions:

the government has a duty to avoid unwarranted disclosure of personal information unless there is a countervailing interest that outweighs the privacy interest. In the Catsouras case, the disclosure of the photos was clearly unwarranted. The police department punished the dispatchers for the disclosure, indicating that the disclosure was not condoned. These facts indicate to me a rather compelling case under existing law that the California Highway Patrol is liable for violating the Catsouras’s constitutional right to information privacy.

Constitutional right to information privacy?” Hold on. Let me check my Constitution. I must have a different Constitution than Mr. Solove. Now worry not, I’m not one of those “if it isn’t explicitly in the Constitution, it isn’t there at all” types. I agree that there is some constitutional right to privacy. “The First Amendment has a penumbra where privacy is protected from governmental intrusion.” Griswold v. Connecticut, 381 U.S. 479 (1965). However, a constitutional right to information privacy? I can’t go that far.

Nevertheless, I do agree that there should be a right to some form of information privacy. You should be able to feel secure that when the government gathers private information about you, it won’t then go broadcasting it around without some proper purpose. However, this is not private information. This is incredibly public information. If you do something in public, whether it is peeing on the sidewalk, flashing your genitals, tripping over stick, or dying in a horribly gruesome manner — that makes it public. That means that you have no expectation of privacy in that information. Just ask every girl who shows her tits at Mardi Gras and then finds her photos on the internet and every guy who gets arrested on COPS wearing one shoe and a dirty wife-beater.

What drives the publication of these photos? What drives the outrage?

I agree with Mr. Silverman that just because we can disseminate these photos doesn’t mean that we should. One would hope that human decency would compel people to refrain from exercising their right to distribute gruesome, gory, death-scene photos. I considered linking to them to prove a point or two, but my conscience wouldn’t let me. I simply feel too much compassion for Nikki’s parents to be part of the pornification of her death.

Okay, so we have figured out that there was a legal right to publish these photos. We have also figured out that it was ethically objectionable to do so. This was someone’s daughter, and turning their death into mere voyeurism is disgusting. While I do not support the Catsouras family’s legal quest to bring the wrongdoers to justice (because I see no legal wrong in the publication), I can assure you that if I met the person who did publish them, I’d haul off and bust their teeth out and mail them to Nikki’s parents as trophies.

But, that leaves some questions about the human condition. Why have these photos, in particular, become such a target for voyeurism? And, this begs the corollary question: Why has the publication of these photos, in particular, inspired such outrage from the established mainstream media? Why such outrage from the legal academy that accomplished professors would place their very credibility on the chopping block and fall over each other to invent legal theories that even a law student knows are bunk — merely to support their emotional response?

I think the answer comes down to cultural class warfare.

Lets think about what is so different about these particular photos from other gory death photos. Are these the first photos to be splashed across the internet that show twisted and mangled corpses of someone’s loved ones? Someone loved this guy, and this guy too. is full of images of the dead and dismembered. There was no similar outrage when ice-packed Iraqi corpses were displayed for all the world to see. To this day, we can find photos of burned victims of Little Boy and Fat Man.

But this is different, isn’t it? But why?

This is different because it was a privileged, young, white, girl.

If that accident had been some poor black girl in a Chevy Lumina with duct tape on the fender and cellophane over the brake light, nobody would have given a shit. The photos might have made their way on to, but nobody would have forwarded them, and nobody – especially not anyone who went to an Ivy League school – would have wasted the sweat on their fingertips by writing about it.

You have no idea who this girl is, do you?  Click the image to find out.

You have no idea who this girl is, do you? Click the image to find out.

Newsweek’s author and the academic circle jerk are offended because the Catsouras photos offend their notions of how the rabble should treat the privileged. You know exactly what I am talking about. That same privilege that made Natalee Holloway a TV news obsession because she was a privileged white girl on vacation in Aruba. Meanwhile, hundreds of black, hispanic, and just not-as-blonde, and most importantly — POOR — girls go missing in the United States every day. Greta Van Susteren could give a shit about them, but Fox News won’t ever let us forget that a rich blonde girl went missing in Aruba.

It is hardly surprising that privacy advocacy and privilege go hand in hand. The entire concept of a “right to privacy” grows from an 1890 Harvard Law Review article by Samuel Warren and Louis Brandeis. They were not motivated by fear of an over-reaching government. They were motivated by a threat to their own privilege. In 1890, class divisions were far more distinct than they are today. The poor literally starved to death. Disease ran through American slums like fear of the Swine Flu runs through the advertising addled of today. Meanwhile, the wealthy lived in their Back Bay and Beacon Hill mansions, summered in Newport, and were far removed from the unwashed proles that toiled for pennies a day so that the rich might keep their hands clean. Yet, when the rabble began to see how the “other half” lived in the gossip rags, the Brahmins were aghast. Did they not have a “right” to lord over the proles without the damn proles peeking in their windows? Warren and Brandeis thought so.

The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

Ah yes, the rhetorical device of claiming that mere words inflict more pain than bodily injury. Just once, I would love to hear someone say that and then slash their face with a razor blade to see if they really mean it, or if it is just academic circle jerking in action.

Brandeis and Warren trotted out rhetoric that sounds distinctly like the snooty whining of today’s Brahmins and over-educated do-nothings.

Nor is the harm wrought by such invasions confined to the suffering of those who may be made the subjects of journalistic or other enterprise. In this, as in other branches of commerce, the supply creates the demand. Each crop of unseemly gossip, thus harvested, becomes the seed of more, and, in direct proportion to its circulation, results in a lowering of social standards and of morality. Even gossip apparently harmless, when widely and persistently circulated, is potent for evil. It both belittles and perverts. It belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people. When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance. Easy of comprehension, appealing to that weak side of human nature which is never wholly cast down by the misfortunes and frailties of our neighbors, no one can be surprised that it usurps the place of interest in brains capable of other things. Triviality destroys at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under its blighting influence.

Yes, if that looks familiar, you’ve been reading Cass Sunstein, Gail Dines, or Concurring Opinions. I don’t mock this, nor those authors, because I disagree with them. I actually agree 100% with the above paragraph. I fully believe that the idiots that slather across the landscape, driving at 45 miles per hour in the left hand lane, shopping at Wal-Mart, and very successfully passing their genes on to the next generation of Palin supporters and Octomoms are stupid and easily distracted and the world would be much better if they all read The Economist and Plutarch.

However, I’m different from the circle-jerk for two key reasons: 1) I can fully and publicly admit that I agree because I am a snob and I look down on 98% of mankind. 2) Despite the fact that I agree, I would not advocate for my views to be backed up by a change in the law. A citizen should be permitted to be an idiot if that is his choice. Where I part ways with Brandeis, Warren, and their intellectual descendants is when they call for the government to cure the ill. I say let the mouth-breathing NASCAR fans read their gossip magazines, watch their reality TV, and let them get off on watching the upper classes tear themselves apart. This, along with the opiate of religion, is what keeps them from rising up and cutting all of our throats. (By “our” I mean mine).

Lets face it, since the earliest of times, the lower classes have loved to watch their betters suffer. It provides a salve to the daily suffering that comes from being a low-life. If you live in some dump like Lakeland, Flori-duh, driving your crappy car to your crappy job and coming home to your crappy house and watch your crappy TV with your crappy stained t-shirt on while you look at your crappy ugly redneck wife and your stupid inbred redneck children, it must really suck. It must suck even more when you see that there are people like the Catsouras family: Dad worked hard, dad made lots of money, married a hot wife, and had three utterly beautiful daughters. Meanwhile, you’re eating pork rinds and beans in your fart shack of a dump, working at the plant, until it shuts down and your job gets shipped to Mexico. Then, you see the Catsouras family suffer — in large part due to their privilege. A rich kid’s drug (cocaine) plus a rich man’s car, in sunny Southern California, turns from the ingredients of a life that mocks your very existence into the components of a tragedy that lets you guffaw — that your kid won’t ever die like that, because you didn’t ever think too much of education or getting anywhere in life.

A big shiny Porsche and a beautiful young pilot with cocaine in her system turns from an object of envy into a parable for how the rich and their decadence will destroy them — or at least make those who drive that Chevy Lumina feel better about their condition.

Well, if that’s the case, damn it feels good to shit on the Catsourases, doesn’t it?

And when the rabble shit on the Brahmins, the Brahmins look out for each other and call for changes in the laws.

I’m sad that the Catsourases are collateral damage in this perpetual play. I got chest pains reading about their plight. I’ve been there. My best friend died in a rather spectacular manner, and the douchebag who did it is regularly profiled in magazines and TV spots — and he rubs my friend’s death in my face every time he does it. My wife has gone so far as to forbid me to enter the guy’s home state, lest my Sicilian heritage rear its head.

That said, I’m not prepared to turn my pain into the suppression of the dissemination of lawful material, nor do I want a new law named after my best friend. Shit happens. Sometimes, when shit happens, there is a camera, a witness, a compelling story, and then those of us who were just minding our own business have to suffer the feeling of an ice pick into our hearts every time the needle skips on the vinyl of life. Those with privilege want to use that ice pick to chip away at our constitutional rights – which only further entrenches their privilege. If we let them, by the time they are done, we will have a patchwork of laws created by extreme outlier incidents, pushed for by the overprivileged like me, the Catsourases, and the legal academy – ushered in by a wail of hysterical shrill cries from those who follow them over the cliff.

Then, the 99.99% of other incidents that happen in daily life would be governed by these outlier incidents – slowly turning our entire existence into one that mimics our time in the security line at the airport.

That is not a result I want to see.

When “Support” is Really a “Tantrum”

May 3, 2009

Facts are sexist!!!

Ann Bartow posted a piece over at Feminist Law Professors that started out seeming to be a rather nice bit supporting Prof. Mark Lemley, one of the attorneys representing Brittan Heller and Heide Iravani in the AutoAdmit suit, — and a defendant in Anthony Ciolli’s countersuit — a case that the Eastern District of Pennsylvania has allowed to go forward — in part.

Bartow writes:

Mark Lemley got involved with this case, in my opinion, because he is a progressive, good-hearted, moral and generous person. (source)

I can’t be sure why Lemley got involved in that case. I directly asked him that question, and he didn’t answer me. Nevertheless, I believe that Prof. Bartow’s assessment of him is accurate. He does seem like a genuinely good-hearted, generous, and moral person, and I have never heard a single person say otherwise. His involvement in the case did puzzle me, which is why I asked him about it. While his silence was disappointing, I can understand that for liability reasons, it was better that he not reply.

I suspect that he got bamboozled into the case — that he wasn’t told the whole truth until he was already waist deep in the muck, and then it was too late to back out gracefully. Accordingly, I think it is kind of nice that Bartow supported Prof. Lemley. Hell, the man was one of my heroes before I saw the Auto Admit case with his name on it. I still reverently respect him and personally like him, and a part of me hopes that he can disprove the allegations against him. However, if the allegations do stick, like him or not, adults must answer for their actions.

Regardless of Lemley’s motivations, Prof. Bartow’s piece is not at all about supporting Lemley. Behind all of her compliments for him, this post is just Bartow’s latest anti-free-speech diatribe (see commentary on a previous one here), further demonstrating that second-wave feminists have turned the Auto Admit case into their cause-celebre. They just can’t wrap their heads around the fact that sometimes, occasionally, the poor female victim(s) can lie, be spiteful, be unethical, be misled, or just plain wrong. Or, if they can wrap their heads around it, they would rather set themselves on fire than admit it.

Bartow writes:

[I]t seems pretty obvious to me why Anthony Ciolli was named in the original law suit. ISP immunity under Section 230 does not apply to the authors of contested material. Ciolli was clearly posting comments at the AutoAdmit discussion board under at least one pseudonym, “Great Teacher Onizuka.” The plaintiffs had every reason to suspect that he was posting under others as well, and that he could have been personally responsible (and liable) for some of the actionable material. They could not rule him out without conducting discovery in the context of litigation, and they could not do a thorough investigation of the matter unless Ciolli was a named party. Once the plaintiffs knew either that Ciolli was not a bad actor or that they would be unable to prove that he was a bad actor, they dismissed him. Any competent lawyer would have done the same thing. This is Civil Procedure 101. (emphasis added)

Ciolli was “clearly” posting under a pseudonym. Was he? Was it clear? Was it about the girls? Was it negative? Then why include this?

Lets teach Prof. Bartow a little bit about Civil Procedure. Or, better yet, lets teach everyone else about it, because I can’t see Bartow getting off her shrill perch — but I’d rather not let people in the blawgosphere be misled.

Even if Ciolli were not a defendant, the plaintiffs would have had every right to subpoena and depose any person who may have possessed relevant information. In fact, after Ciolli was dropped from the case, Heller and Iravani’s lawyers did, indeed, take his deposition to make sure that they did not leave any stones unturned. Any competent law professor would know that this was not only possible, but proper. Any competent blogger would have at least read Ciolli’s complaint to find that fact. But, lets not let a pesky thing like the facts get in the way of a Dworkin wanna-be’s tirade.

If the reason Heller & Iravani sued Ciolli was because he “might have” posted under multiple personas, then why did they not name each and every moniker on Auto Admit? Everyone on Auto Admit could have had multiple monikers. In fact, law professor Brian Leiter is rumored to have posted on Auto Admit under the name “Tokyo Rose.” I posted on AutoAdmit under my real name. Why not name me? By Bartow’s post-hoc rationalization, Leiter and I both could have been one of the defendants until we were ruled out in discovery, no? Furthermore, if there was ever a suspicion that Ciolli used another moniker, then why wasn’t that allegation ever made, on information and belief, in the complaint?

I’ll tell you why not, because the Plaintiffs’ own published statements contradict Bartow’s made up “facts.” The “theory” that Mr. Ciolli was another pseudonymous poster never arose until Heller & Iravani’s lawyers started grasping for a way out of possible sanctions, and their cheerleaders started to see their lovely pre-packaged daydream unravel.

A competent attorney does not file suit against each and every person who could hypothetically be a defendant. (As in if the facts and the law were stretched like a goatse about to snap). If that were the case, then every lawsuit would name hundreds of defendants, including people who did nothing wrong, and let discovery sort out who was actually liable. Meanwhile hundreds of additional defendants would need to report that they were defendants in civil actions and live under the cloud of litigation while plaintiffs took their own sweet time figuring out if they had sued the right person. No, it doesn’t work that way and Professor Bartow should know that.

Bartow then throws out her own “theory.”

My theory on why Ciolli is suing Lemley and the plaintiffs? To scare away other potential plaintiffs, and to discourage other lawyers from representing them.

To scare other potential plaintiffs who might bring a lawsuit against him? I should hope so, since pages 23-29 of this decision make it pretty clear that Ciolli has brought a proper claim for wrongful initiation of civil proceedings against Iravani and her attorneys. Ethics and judgment are supposed to discourage lawyers from bringing baseless claims. It is a shame when someone must file suit in order to “scare” potential plaintiffs from abusing the courts and filing frivolous claims for an improper purpose.

The AutoAdmit case has been shown to be more of a shakedown, legal extortion, than a suit calculated to vindicate any real legal interests. While some might point out that over-inclusiveness and scattershot complaints are more common than I might like, the fact is that Bartow’s post is less about backing a nice guy – and more of a way of backpedaling and acting as an apologist for misuse of the legal system. Ethics matter, and the reason that so many lawyers miss that lesson is professors like this seem to disagree.

Ciolli had some pretty damning evidence to present in his case. Unfortunately for him, the E.D. Pa. ruled that it was excluded by FRE 408. Lets sit back and see if Ciolli’s lawyer in that case can find an alternate way of getting the information before the court. If he can, I’d imagine that Ciolli will prevail — which will probably give Bartow an excuse to blame it on the “patriarchy,” because in Bartow-world, the only women who are ever wrong or ill-motivated are those who disagree with her.

Sex with clients is not unethical in England… Just don’t bill for it

April 16, 2009

by Jason Fischer (follow me on twitter)

The American Bar Association’s (ABA’s) Mode Rules for Professional Conduct state, in the section about Conflicts of Interest:

A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. Rule 1.8(j)

(Interesting side note: this is the only conflict that is not imputed to all members of a firm (Rule 1.8(k)) — so feel free to bang your partner’s clients)

Apparently, there is no such restriction in England. However, as this story demonstrates, you may have a problem if you bill for the time you spend “servicing” your client’s needs.

Best line ever from a legal news story:

Her claim states that under the advice agreement, in addition to a fixed fee arrangement for £120,000, Beaumont could charge her for unforeseen and urgent work, and that she was surprised to discover when he billed her that some of the “urgent work” was actually for time when she had personal reason to know he was not thrusting himself into a law book.

H/T @kevinokeefe

Jones Day v. Blockshopper Settles

February 13, 2009

The completely bogus lawsuit that Jones Day filed against Blockshopper has settled.

According to Wendy Davis, writing for Slate:

Faced with the prospect of big legal bills and an unfriendly judge, BlockShopper co-founder Brian Timpone decided to settle. On Tuesday, the real estate site said it agreed to change how it links to Jones Day. BlockShopper will no longer use the names of Jones Days attorneys as anchor text. Instead, it will use the full and cumbersome URL. In other words, Timpone said, instead of posting “Tiedt is an associate,” the site will write “Tiedt ( is an associate.” (The agreement also calls on BlockShopper to say that the lawyer in question is employed at Jones Day and that more information about the attorney is on the firm’s Web site.) (source)

Davis’ article has some fantastic analysis of the case… including a link to yours truly.