Associate Attorney Position

October 23, 2016

This position has been filled as of November 23, 2016.  

Randazza Legal Group is looking for an associate attorney with 1-5 years of experience, but others will be considered.

Should you apply? Will you do no harm to the First Amendment, nor through inaction allow harm to come to the First Amendment? Then maybe you’ll fit in.

We mostly make our living doing First Amendment litigation, but we have a lot of international intellectual property work, work on §230 immunity cases, and we’re doing a lot more privacy based work too.  Sound like fun?  It is.

I greatly prefer that the candidate be admitted to the bar, somewhere already, but the successful applicant must be ready, willing, and able to take the Nevada bar. Candidates must be in Las Vegas or willing to relocate to Vegas. A Florida bar license is a plus, but not necessary.

You must be organized. In fact, really organized, because the boss lacks that quality. If you have not yet seen The People vs. Larry Flynt, then don’t apply until you see it. If you don’t already know New York Times v. Sullivan before the interview, you’re not going to get the job. You will be asked why I cite Kinney v. Barnes a lot. If you don’t know why before the initial phone interview, you’re not getting an in person interview.

I can teach you all the rest once you get here.

Did you go to a third, or even fourth tier law school? That’s ok. You’ve got the same shot as some prick who went to Georgetown. (Pricks from Georgetown are welcome, but will get no preference).  If you think I’m impressed by your alma mater or your GPA, you’re applying to the wrong firm.  I don’t care what your politics are.  I don’t care what your background is.  We are all misfits anyway.

What’s it pay?  You will make more money elsewhere. We do a lot of pro bono work.  When the First Amendment needs protection, and the client can’t pay, we still likely take the work.  We believe in this shit.

That said, we do have good paying clients.  And, if you’re financially productive, you’ll get more than a “thank you” and a pat on the head. The bennies are pretty good. You’ll get to work on cool stuff. We actually make a living doing First Amendment law and international intellectual property work. The firm does a six week retreat in Hawaii every year, all expenses paid, including surfing lessons. (That is a bald-faced lie. We do no such thing.)

Don’t like swear words? Good. I’m trying to work on that. Maybe you will be a positive influence on me. Speaking of which, everyone else at the place is a positive influence on me, so you’ll probably like them a lot — unless your attention to detail sucks. If that’s the case, then they will eat you alive before I get a chance to fire you.  When someone gets canned here, it is usually because the paralegals or other associates don’t like them.  How do you make them like you?  Be a team player and don’t be the weak link in the chain.

If you don’t take ownership of your tasks and your mistakes, you’re screwed. If you fuck up, and you say “mistakes were made” instead of “I made mistakes” you’ll get fired.  If you don’t understand why the first one is wrong and the second is right, don’t apply.

I want 1600 billable hours a year, which really ain’t bad. I do not want you to bill 2000, because anyplace with a requirement that high is probably encouraging you to pad your bills. You’ll get fired for that too.

If this doesn’t scare you off, then send your resume to me with a short cover email. (Subject line RLGASSOC) If you are wondering if it is too long, then it is. One page resume only. I don’t have time for an entry-level attorney who thinks that his/her life is interesting enough that they can’t tell me all of the relevant facts on a single page. If it is two pages, the second page better tell me that you wrote The Big Lebowski or you won a Nobel Prize. (And if that’s the case, it belongs on the first page).

Don’t know where to send your application? Figuring shit like that out is going to be part of your job. Figure it out. Yeah, it’s test number 1.


Now Her Children Gather Round Her

September 2, 2016

by Jay Marshall Wolman

Georgetown University has decided to violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.  In a grand gesture that has alternately received praise or been derided as empty, the descendants of some 272 slaves sold by the Jesuits in 1838 to keep the ship afloat will now receive an admission preference.

Missing from the discussion is a conversation about racial discrimination.  More commonly seen in employment law, there are two major categories of discrimination: disparate treatment and disparate impact.  Disparate treatment claims are pretty straightforward, where you generally try to show overt or masked bias (e.g. “No Irish Need Apply”).  Disparate impact is harder.  First established in Griggs v. Duke Power, 401 U.S. 424 (1971), the essential theory is that a facially neutral policy (e.g., the requirement of a highschool diploma to get a job) that really isn’t necessary and favors or disfavors a particular protected group is unlawful.

Racial discrimination in higher education is prohibited under Title VI for the recipients of federal funds.  Pretty much any major university is going to fall into the ambit of this statute.  The regulations implementing Title VI essentially prohibit universities from implementing policies that have a racially disparate impact, save for affirmative action programs to correct prior discrimination.

Georgetown’s new policy is, at a minimum, one that would have a disparate impact on admissions.  Although some of the descendants of these slaves may identify as White, Latino, Asian, or Native American, it is a pretty safe bet that the overwhelming majority would identify as African American.  [Arguably, it is disparate treatment, as it discriminates in favor of those with an African American ancestor, but the law does not specifically categorize mixed race persons, and the “one drop rule” isn’t good law.]

That said, Title VI is a right without a remedy, or at least a useful remedy.  In Alexander v. Sandoval, 532 U.S. 275 (2001), the Supreme Court ruled that there was no private right of action under Title VI.  Basically, it means that students who would have been admitted but for this new admissions criterion cannot sue Georgetown.  [This is not to be confused with public universities that could be sued for discrimination under the 14th Amendment.]  Only the U.S. Department of Justice could sue Georgetown for violating Title VI.

I have no problem with Georgetown wanting to do something for the descendants of the people it harmed–clearly, the Jesuits never had to purchase the slaves, utilize their labor, or sell them.  And the history of slavery has likely had an adverse impact on these descendants in some manner.  There is a strong moral case for Georgetown taking such action.  [Full disclosure:  I am an alumnus of the Georgetown University Law Center.]  But, I just don’t see how it passes muster under a disparate impact theory.  It is not affirmative action in the sense it is correcting for a history of discrimination in the admissions process.  Should Georgetown retract its policy or should the law change to accommodate Georgetown?  And, if the latter, how would you draft an exception to the law that nefarious persons might not drive a truck through?

 


Big Win for TMZ & Nevada Anti-SLAPP law

April 11, 2016

Last year, Dan Bilzerian, professional poker player and Instagram playboy, sued gossip website “The Dirty World” for publishing a story about a woman who alleged Bilzerian gave her Chlamydia. The media news website TMZ posted an article about the lawsuit, and Bilzerian amended his initial complaint to include TMZ as a defendant, alleging TMZ’s article was false and defamatory. Of course, we (Randazza Legal Group) filed an Anti-SLAPP motion on behalf of TMZ in Clark County District Court. We’re happy to say the court granted the Anti-SLAPP, dismissed all of Bilzerian’s claims against TMZ, and awarded costs and attorneys’ fees.

Just another good day in the world of journalism and Anti-SLAPP law. Check out the TMZ Anti-SLAPP Order here.


Violence and Political Speech

March 21, 2016
I don't write the headlines

I don’t write the headlines

My most recent CNN Column discusses violence in political settings. See Defend Donald Trump’s right to free speech

I don’t get to write my own headlines, ok?

Some good people think that sometimes being violent is ok. What they don’t understand is that when we use violence in politics, no matter what, the bad people always win. They get to escalate the violence, feeding off of it, up to a point where the good people lose the stomach for it — or at least a critical mass of them lose the stomach for it.

Always.

And the bad people will always have more of a stomach for it, so in the war of attrition, they will win. They’ll always be willing to bash you over the head with a truncheon for less of a reason, with more willingness to keep going long after your head looks like cherry pudding. They’ll always go further on a macro level too, they’re the bad guys because they’re sociopaths.

No matter how right you are… if violence ensues and you win? You’re probably one of the bad people. I don’t care if you’re protesting against the KKK or NAMBLA or the Black Panthers or ISIS or Nickleback fans.

That’s kinda the point of my column:

Donald Trump finally learning about the meaning of free speech?

Other candidates might be bad for free speech once elected. But Trump is the only candidate to actually campaign to reduce our First Amendment rights. This is the guy who said, “There used to be consequences to protesting. There are none anymore. These people are so bad for our country, you have no idea, folks.”

On Friday, he canceled a rally in Chicago, citing security concerns. Eyewitnesses reported that there were thousands of protesters outside, and hundreds demonstrating “in unison inside.”

Even after it was canceled, there were reports of several outbreaks of violence in the streets after the speech and protesters celebrating by chanting, “We stopped Trump!”

And now, while everyone is trying to play the blame game, Trump ironically asks, “What happened to freedom of speech?”

Read the rest here.

This post originally appeared on Popehat. View it here.


A fabulous Roman candle exploding like a spider across the stars

March 20, 2016

kerouac

On March 12th, 1922, the universe lit the fuse on the roman candle of the existence of one Jean-Louis Lebris de Kérouac. Somewhere along the line after that there were girls, visions, everything; somewhere along the line the pearl was handed to him, but like so many that stand at the center when the blue light pops, the pearl drops into the grate on a street where you can still smell the last exhale of the cigarette that the guy put out as he got into the taxi.

The taxi that drove down the wet street, where most of the streetlights were still working, but that one keeps flickering, and no more taxis come and you knew none would. So you walk, and walk, until you get to that corner where there’s the place down a few stairs, and you wonder if you’d rather get out of the wet and the rain and have a drink, but then you would have to be with all the other people that wanted to get out of the rain or have a drink or just be with each other.

But, maybe it would just be better to smoke a joint there, in the rain by yourself, whether any cabs came or not, because how you get there is better than wondering why, or is it the other way ’round? And as you exhale the smoke and walk past the door, you remember that the pearl dropped into the grate. And now all the grates look the same, so even if you could reach your hand down there to try and get it, you can’t ever remember which one it fell into. So you just keep walking. Let someone else have the pearl or nobody else or maybe there just wasn’t ever one at all.

This post originally appeared on Popehat. View it here.


The USPTO Would Prefer Not to Follow the First Amendment

March 19, 2016

The USPTO is, apparently, a big Melville crowd.

In December, U.S. Court of Appeals for the Federal Circuit decided In re Tam, 2015 U.S. App. LEXIS 22593 (Fed. Cir. Dec. 22, 2015). In it, the Federal Circuit made a sweeping pronouncement that the First Amendment applies to trademark registrations, and that a long-criticized prohibition on “disparaging” trademarks could no longer stand. The portion of the trademark act that fell was Section 2(a) of the Lanham Act, 15 U.S.C.S. § 1052(a).

Then, the Department of Justice conceded that § 2(a) was no longer enforceable in light of In re Tam.

We do not believe that given the breadth of the Court’s Tam decision and in view of the totality of the Court’s reasoning there, that there is any longer a reasonable basis in this Court’s law for treating them differently… The reasoning of Tam requires the invalidation of § 2(a)’s prohibition against registering scandalous and immoral Trademarks as well.”

One might think then, for a moment, that the USPTO would stop relying on an unconstitutional provision, no? Well, time for a literature lesson:

In Herman Melville’s classic, Bartleby the Scrivener, an attorney finds frustration with his scrivener, Bartleby. Any time Bartleby is directed to perform a task, he replies with the classic refrain: “I would prefer not to.”

The first of many such exchanges continued thus:

“Prefer not to,” echoed I, rising in high excitement, and crossing the room with a stride. “What do you mean? Are you moon-struck? I want you to help me compare this sheet here – take it,” and I thrust it towards him.
“I would prefer not to,” said he. Herman Melville, Bartleby, the Scrivener: A Story of Wall Street 10 (Dover 1990) (1853).

Initially infuriated, but beguiled by Bartleby’s charmingly passive insolence, the narrator tolerates Bartleby’s masterfully eccentric defiance, but eventually fires him. Once fired, Bartleby’s behavior becomes stranger, and he refuses to leave the premises of his employer, who finds Bartleby’s stubbornness to be an immoveable object. Bartleby’s defiance, as effective as it is, eventually leads to his undoing. Bartleby’s preference leads to his imprisonment and starvation, as he finally encounters both men and forces of nature who are unmoved by his antics.

We have, at least for the moment, a government agency that fancies itself in the role of Bartleby. The USPTO has already been instructed by the Federal Circuit that Section 2(a) (at least as far as the “disparaging” portion of it) is unconstitutional, and the case law that the USPTO has relied upon to justify its bullshit standard under the “scandalous” portion is specifically overruled.

Rumored to be the new USPTO policy director

Rumored to be the new USPTO policy director

Nevertheless, the USPTO has essentially decided “we would prefer not to” follow the Constitution.

The USPTO continues to examine applications for compliance with the scandalousness and disparagement provisions in Section 2(a) according to the existing guidance in the Trademark Manual of Examining Procedure § 1203. While the constitutionality of these provisions remains in question and subject to potential Supreme Court review, for any new applications the USPTO will issue only advisory refusals on the grounds that a mark consists of or comprises scandalous, immoral, or disparaging matter under Section 2(a). If a mark’s registrability under these provisions in Section 2(a) is the only issue, the examining attorney will identify the reasons for the advisory refusal and suspend action on the application in the first Office action. For all applications, including those initially examined before the Federal Circuit’s decision in Tam, if the examining attorney made other requirements or refusals in the first Office action, action on the application will be suspended when the application is in condition for final action on those other requirements or refusals. Any suspension of an application based on the scandalousness provision of Section 2(a) will remain in place until the Federal Circuit issues a decision in Brunetti, after which the USPTO will re-evaluate the need for further suspension. Any suspension of an application based on the disparagement provision of Section 2(a) will remain in place until at least the last of the following occurs: (1) the period to petition for a writ of certiorari (including any extensions) in Tam expires without a petition being filed; (2) a petition for certiorari is denied; or (3) certiorari is granted and the U.S. Supreme Court issues a decision. (source)

Please note, I received this document from an intellectual property lawyers’ list serve, and I have not confirmed its authenticity. Nevertheless, the document properties say that the author is Christina J. Hieber, who does check out as an attorney with the USPTO’s office of the solicitor. (source)

So, remember folks – the Court of Appeals for the Federal Circuit told the USPTO that it was violating the Constitution. Their position? “We don’t care, we might appeal, and then again, we might not. But, until we are told that the courts really really mean it, the Constitution doesn’t matter.” And they think that the word “fuck” is “immoral” and “scandalous.”

You know what is “immoral” and “scandalous?” A petty little bureaucrat, or group thereof, deciding that they are above the Constitution, because… well, dirty words and all.

____

If you find the issue of morality and intellectual property rights of interest, I’d be delighted if you downloaded and read my law review article on the subject. See Marc Randazza Freedom of Expression and Morality Based Impediments to the Enforcement of Intellectual Property Rights

This post originally appeared on Popehat. View it here.


Something Doesn’t Click Here

March 9, 2016

freedom from freedom A Missouri professor has gotten more than her share of negative pixels this year. I actually decided after my last column on her that I was done writing about her.

Even when she claimed that her now-infamous plea for “some muscle over here” was not the real her. I resisted.

“I try to remember that’s only one moment of a full day, and only one moment in a 12-year career,” she said. (source)

And after she hired a public relations team to give her a makeover, she now claims that the real reason she got fired is because she was the scapegoat for a racist patriarchy or something. (source)

Ok, fuck it, I’ll write about this idiot again.

From her recent statement:

In their decision to terminate my employment, the Curators bowed to conservative voices that seek to tarnish my stellar 12-year record at MU. Instead of disciplining me for conduct that does not “meet expectations for a University faculty member,” the Curators are punishing me for standing with students who have drawn attention to the issue of overt racism at the University of Missouri. While I have apologized on numerous occasions to numerous parties for my actions on October 10, 2015 and November 9, 2015, I will not apologize for my support of Black students who experience racism at the University of Missouri.

Yes, she expects you to believe that she got fired from a University for being too liberal.

The fact is, her actions on that one day are a great summary of her 12 year career, which is not “stellar.” It is utterly useless.

But, perhaps she is right. Perhaps terminating her isn’t fair. After all, she is merely a symptom of a problem, not a problem herself. The real disease is one that has infected higher education for at least a generation — political correctness, where identity politics and victim studies trump intelligence and qualifications. When that happens, again and again, what do you expect? How can you not wind up with “professors” like her?

The bats have come home to rest in the empty mental belfry of academia. In the short term, for the professor — as she was charged with assault for her misdeeds – something I disagreed with. Why? Because she was criminally charged for a mere legal trifle, even if it was an academic sin of the highest order. Firing her was the right thing to do, but what we need to realize is that she should not have been hired in the first place.

I majored in victim studies!

LET ME GET SOME VICTIM STUDIES MUSCLE OVER HERE!

Her CV indicates someone with a very shallow view of the marketplace of ideas, and someone who figured out how to game the system, but not someone who has much to offer when it comes to expanding knowledge, or just teaching students how to do anything useful.

Don’t get me wrong, hers was a brilliant path for anyone who wants to get hired in social science academia. Prove your “victim studies” cred and your CV goes to the top of the pile. And therein lies the problem.

Critiques of her CV fill pages of search engine results, but this one sums it up nicely.

So who is Melissa Click? She is an Assistant Professor at Missouri and has a PhD in communication from the University of Massachusetts. What was the subject of her dissertation? “It’s ‘a good thing’: The commodification of femininity, affluence and whiteness in the Martha Stewart phenomenon.” Obviously a work of serious scholarship. Prof. Click has a “Graduate Certificate in Advanced Feminist Studies,” too. So she is well qualified to teach your children. Something. (source)

Her “scholarship” includes Making monsters: Lady Gaga, fan identification, and social media, The romanticization of abstinence: Fan response to sexual restraint in the Twilight series and “Let’s Hug It Out, Bitch”: Audience response to hegemonic masculinity in Entourage.

She’s not quite finished with The trouble with Thomas: A closer look at the popular children’s Series. I presume that Thomas the Train is an agent of the Patriarchy, and railroads are a metaphor for rape culture, or something like that.*

What do you expect? She went to UMass/Amherst. I did too. Don’t get me wrong, I adore the place, donate to it, and will sing its praises until my vocal cords bleed. But, to say that it is a bit of a left-wing outlier is like saying that Donald Trump can be slightly abrasive at times. Just like I know when a dear friend also has a tendency to be an asshole, I am not blind to UMass’ flaws. One of them is that it often chooses political correctness over the promotion of knowledge.

While I graduated with a UMass journalism degree (which was one of the best moves ever), I spent a few semesters in a specialized major called “Social Thought and Political Economy,” (STPEC) which exists only at UMass. While there, I learned just how silly this brand of left-wing thought can be. I wish I had realized, at the time, that I was seeing the early stages of terminal academic stupidity.

To me, majoring in STPEC sounded great. In some ways it was. I fancied myself a little revolutionary. I wore Che Guevara t-shirts. I smoked weed and dropped acid and went on marches and building takeovers. It might have been 1987, but the way I saw it, it was the sixties, even though it was the eighties. And, I was the first brilliant 17 year old to discover Noam Chomsky and Howard Zinn. That’s a lot of college students, but this was particularly fashionable at UMass. And boy did I think I was cool.

UMass considered this to be "anti-semitic"

UMass considered this to be “anti-semitic”

Part of that juvenile thinking-I-am-cool was that I loved The Dead Kennedys (still do, but I admit that I play it at a much lower volume now). I put up a poster from them, depicted here — “Nazi Punks Fuck Off.” I quickly found myself up on “civility” charges. Not because the content of my door decoration had profanity in it, that was just fine. No, it was considered to be “Anti-Semitic.” When I mockingly explained the significance of the poster, the residence director explained to me that the intent of the message was irrelevant — it was how it made the anonymous complaining party feel. If they felt harassed by it, I was responsible for those emotions. I was let off with a “warning.”

I took it down, since the last thing I wanted to do was make someone feel like I didn’t like them because they were Jewish — even if they were an abject fucking idiot.

But that was when I realized that there was a real problem at my University. The way I saw it, I should have had every right to put up a “Hitler Rules, Fuck Yeah!” poster, if I wanted to. But, if I could not put up the opposite of that, without having committed thoughtcrime then how could we have any debate? Was the subject just off limits? More troublingly, I could express one opinion, but be held responsible for the precise opposite opinion because some fucking idiot didn’t get the message?

Later, I took a writing class — “Writing for Critical Consciousness.” It sounded like a great idea at the time, even if I would mock the shit out of my 19 year old self for taking it. We had a paper due, and we were allowed to work in teams. Fortunately, I had a cool partner in this project, and as we were trying to write this piece of shit, I took a toke off a bong and suggested that we just do a “word salad” of politically correct terms. We laughed our asses off as we tossed in words like “heteronormative” and “hegemonist.” For about an hour, we both just typed nonsense. Complete and utter bullshit. When we were finished, we cut and pasted it into a single document, and handed it in. We just didn’t give a shit.

Imagine how hard we laughed when we got an A on the paper.

This is the UMass that produced Ms. Click. That is the left-wing academia that offends even me… and I think I’m pretty far left. I believe in a 99% income tax bracket at some level. I’m all for socialized medicine. I support affirmative action (but only for descendants of slaves). I’m in favor of a huge estate tax. Hell, its a good thing I’m not in charge, because I’d probably declare martial law and drag the 400 richest Americans, parade them through the streets Chinese Cultural Revolution style, and then publicly execute them, seize everything they have, and redistribute it to the poor. Fine, I’m a lunatic. Don’t let me be dictator, and everything will be fine.

But just as I learned at UMass, “political correctness” can become a parody of itself. Sometimes, like when you just word-vomit the right vocabulary, you get an A in “writing for victim studies.” Other times, though, it can be scary — like when you’re 18 years old and facing a panel of stern looking people telling you that your record may have something in it that brands you an anti-semitic racist, when your intent was 180 degrees the other way.

But, if you want a job in academia, that is the path. Find a way that you’re a victim, wear it like VIP pass. Write about utter garbage, as long as it promotes the feminist-critical-race-theory-agenda. One by one, the “old white men” left academia, and it started getting infiltrated by these fucking morons. When they reached a critical mass, even those who completely disagree know that they need to stay quiet.

A few brave voices spoke up. For example, Professor Kenneth Lasson, penned two academic warnings – Political Correctness Askew: Excesses in the Pursuit of Minds and Manners, and Feminism Awry: Excesses in the Pursuit of Rights and Trifles. He warned that campuses were becoming places of political and social orthodoxy, and that in the end, we would all suffer. How right he was.

But, unfortunately, no one was ready to listen then. And now, it might be too late. After Click’s incident, more than a hundred of her colleagues decided that her non-apology, where she blamed everyone but herself was “good enough.”.

So now we have Melissa Click, the new and improved one, claiming essentially that she got fired because she’s black… or because she “stood with” black students. I don’t think anyone takes her story seriously. Well, let me correct that, her fellow victim-studies idiots will. And, unfortunately, they’re now running the asylum.

But, if academia actually meant anything, she would never have been hired in the first place. She should be sent back to weep over heteronormative cis-gendered oppression in Teletubbies, and leave teaching to adults. Are there any available? Can they get past the search committee?

I hope the fuck so.

This post originally appeared on Popehat. View it here.

______________

*Of course, my own law review articles have, on average, something like 10 downloads, so who the fuck am I to judge? MR. JUDGY PANTS, THAT’S WHO!


The Hulk Hogan Sex Tape Case

March 4, 2016

Marc Randazza was quoted in Business Insider today about the first amendment issues in the Hulk Hogan sex tape suit against Gawker Media.

Hulk Hogan’s sex tape is hardly the Pentagon Papers, but the outlet might have had a right to publish the clip even if it wasn’t in the best taste.

“I could see maybe posting a few seconds to show it’s authentic,” Randazza said. “But what was the journalistic necessity of the entire minute? I think that’s a hair that ought to be split.”

“Do journalistic outlets have a right to publish that?” continues Randazza. “My conclusion is this: God help us, but unfortunately yes. May [James] Madison have mercy on our souls for what we’ve done with the First Amendment.”

Read the rest on Business Insider.


Is the First Amendment safe from Donald Trump?

February 29, 2016

cnn trumpI write this as someone who was willing to vote for Trump. This gives me great pause….

Donald Trump has said a lot of strange things — some funny, some creepy, but none scarier than what he said on Friday: that if he is elected president, he will “open up our libel laws” to make it easier to sue the media and “win lots of money.” No matter what you may think about his other policy ideas, if he keeps this promise, we won’t be able to effectively express dissent against anything else he might want to do. We can fight any bad policy if we have a robust First Amendment.

Read the rest on CNN.

This post originally appeared on Popehat. View it here.


Pirate Apprenticeships

February 29, 2016

by Jay Marshall Wolman

How quaint the ways of Paradox!
At common sense she gaily mocks!
Though counting in the usual way,
Years twenty-one I’ve been alive.
Yet, reckoning by my natal day,
Yet, reckoning by my natal day,
I am a little boy of five!

-The Pirates of Penzance, “When You had Left Our Pirate Fold”

In Gilbert & Sullivan’s The Pirates of Penzance, Frederic was apprenticed to a pirate (his nursemaid misheard “pilot”) until he reached twenty-one.  He was born, however, on February 29, leap day.  Thus, when he had lived twenty-one years, he had only celebrated five and a quarter birthdays, and a quandary ensued as to whether Frederic was liberated from his apprenticeship.

Last night, the U.S. Department of Labor posted the following during the Oscars:

The problem, however, is that statistics without context are meaningless.  Simply looking at the numbers doesn’t tell the whole story.  By the same token, I can truthfully write that, on average, women suffer 75% of the number of fatal workplace injuries men do.  That is, relative to hours worked, women accounted for 43% of workplace fatalities and men 57%.  (43/57 is approximately 75%)  But that’s even accounting for hours worked.  Otherwise, women died at work only 9% as much as men.  If you want workplace equality, I guess a few lucky ladies will have to step up and volunteer to suffer some more workplace fatalities.

Except, of course, this doesn’t tell the whole picture.  Take a look at the deadliest jobs.  Men tend to choose those jobs disproportionately, thereby putting themselves in risk of greater harm.  But looking at the raw numbers alone doesn’t paint a full picture–if women chose those professions at equal numbers, worked equal hours, and took equal risks, then we’d probably have fatality equality.

The same issues arise in looking at the wage gap.  A 2009 US DOL commissioned study reported no significant gender-based wage gap when you control for profession, work history, hours worked, etc., that is, the choices made by workers.  Other studies do find some residual, unexplained gender gap–but that is what our focus should be on–fighting specific instances of discrimination.  Otherwise, if the DOL were truly serious about fighting the 79% figure, they should be advocating against women as caregivers, against women choosing to study the humanities, and against women who won’t work weekends, and training women to be orthodontists and petroleum engineers.  But, piloting the false 79% narrative is statistical piracy.

 

 


From the Trenches at the Nevada Caucuses – Part 3 – Amongst Republicans

February 25, 2016

This is Part 3 of a 3-part series on the Nevada Caucuses. Here is the Previous episode, Part 2

3.0 – I enter the nest of the Republicans

I approached the high school where the Republican Caucus was going to take place as if I were scrambling over rocks to approach Mordor. I hadn’t even told that many people where I was going. I calculated the odds in my head… 50-1, I would die here today. Not bad odds, but still. 75-1, sold into slavery. 14-1, gang raped with a plunger like Amadou DialloAbner Louima. Fistfight? Even money.

I got out of my car and started following a woman who seemed to know where she was going. No yoga pants, but it was not unpleasant using her ass as a lighthouse, guiding me to the hive of crazy. I could hear them all chanting some mysterious incantation. Would there be a cross burning? It was goddamned freezing, so if there was, would I just run away? Or would I go warm up by the fire for a bit?

It was like wasp’s nest (heh, see what I did there?). There were a lot of them gathered around the entrance, and then a mysterious series of passageways… I took a deep breath… I went in.

People streamed in as if it were a sporting event or a concert. While the Democrats looked like a homogenous group of rummage-sale clothed drones, resigned to lives in the salt mines of life, the Republicans were actually a lot more diverse. There were guys non-ironically wearing cowboy hats, a guy with that helmet where you put beer cans, just with soda cans in it. Mexicans. There was even a black guy — although he was blind. Lots of fat guys in MAKE AMERICA GREAT AGAIN hats. Clearly, the Trump crowd was the dominant gang.

All of the “precincts” were tables in a high school cafeteria, but it felt like each table was supposed to be a place where someone would try and sell you Amway products or give you a 1 minute speed networking session. I sat down at my precinct, and still no Yoga pants moms, but there were a few of those Republican women who don’t blink. The conversation was scintillating — it was as if someone had put on an episode of “stereotype theater” for me. The woman next to me was SO EXCITED to meet a neighbor, and she immediately asked me “what in the hell is going on with all the break ins around here?” I just looked at her blankly. “Probably because of the new mall,” she said. I wondered if that was her code word for “Mexicans.” I don’t think it was. But, I was inside the Trump hive mind. Anything could happen.

Knowing that this scene could break out into violence, torture, horror at any moment, I chose my words carefully. I tried not to make too much eye contact.

I then explained that the homes on the perimeter of the neighborhood, where the wall to the “outside world” was, well they were getting broken into. But, those of us on the interior, we were all relatively safe. Everyone nodded. She said, “Yup, just too much temptation with that wall there and they see the nice homes, hop over, steal something, someone is going to get hurt.”

I decided to conduct an experiment…

I said “yeah, we gotta do something about that… you know what I think? We need to all go to the next Homeowners Association Meeting and demand that they increase our HOA dues to pay for a higher wall around the neighborhood.” Everyone nodded with approval. “It isn’t our homes being broken into, but if our neighbors’ homes get broken into, that’s not ok, we gotta stick together!” Everyone was loving the idea. I was making friends.

“They could raise our HOA dues by $100 a month and get us some real security! We can afford it!”

I was very popular at the table by now — what calling for “law and order” and a nice big wall.

I had just called for raising our “taxes” to pay to help other people out… surrounded by MAKE AMERICA GREAT AGAIN hats and Cruz buttons.

I laughed inside. I am in you, Republican devils. Ha! Live Republican trolling!

Don’t get cocky,” I said to myself. That was really fucking stupid. If they figured out that I had just suggested a tax increase for the common good, they would have torn me apart like salt water taffy, except with bile and the sound of snapping bones and ligaments. I wondered how long the tendons would hold my joints together as they ripped me to shreds.

I realized that unless I actually told them, they wouldn’t be able to figure out that I had voted for Obama in 2008, and that I was really rooting for Bernie Sanders.

Then, the unthinkable happened… Out of nowhere comes a friend of mine, Chris. He is a hard core Republican Mormon guy, and he KNOWS that I’m a pro-gay-marriage, Bernie Sanders loving, porn guy.

“MARC, HOW THE HECK ARE YA?” He gives me that “Mormon smile.” If you don’t know, Mormons can actually make much larger smiles than other humans. That magic seer stone smile filled face of his, and all of a sudden I freeze… “Chris! How the… hi… hey, fancy seeing you here!” As if he would be anywhere else…

He introduces me to his wife, who hugs me like I’m her long lost brother. I hold on just a little longer than I ought to when hugging a friend’s wife that I never met before. Not anything creepy, I just knew that I was going to be killed within 10 minutes, and I just wanted one last embrace from a woman. I took a deep whiff of her hair. Not in like a sexy way… I just wanted the smell of a clean Mormon woman’s shampooed hair in my lungs as they filled with blood as the Trump supporters took one of many steps toward “Making America Great Again,” by stomping on my face screaming “TAKE THAT YOU LASAGNA EATING PIECE OF SHIT!”

Any second now, and Chris was going to out me. Not on purpose. I imagined he would just say “so, what he HECK are YOU doing here! Hey, everyone, my buddy here, he’s a Socialist porn lawyer!”

And that would be how I would die.

The crowd was so dense they could just form a circle around me and kick me to death. The sheer number of concealed hand guns in the place was enough to start a genuine revolution, not that hippie Sanders crap. The encounter took all of 25 seconds… but it felt like being on the run for three years behind enemy lines. Everything slowed down. I breathed.

I remembered how MacDonald gets caught by replying in English to a Gestapo agent who wishes him “Good luck”. Don’t be McDonald. Don’t be McDonald… Don’t say anything… stupid…

And then he just swirled past, waving over his shoulder. His Marco Rubio pin shining in the light almost as bright as his white white white Mormon teeth. “Mormons are great at dental hygiene,” I thought.

Someone tapped me on the shoulder. “Can I borrow a pen?”

I screamed: “BERNIE SANDERS, I WANT BERNIE SANDERS TO WIN, OKAY? HE’S FUCKING AWESOME!”

Everything froze for me…, as I say about 5 or 6 times a day, I wondered “did I just say that out loud?” I really wasn’t sure… FUCK.

I half expected the entire room to go quiet. Maybe the sound of a record scratching. Then, some big black guys to come up and say “mind if we dance wit’ yo’ dates?” But who was I kidding? This was the Republican caucus… there was only one black guy here, and he was blind.

The woman just looked at me and smiled… not even a “this guy is crazy” smile, but just a “hi, have you found our lord and savior Jesus Christ” smile. I handed her a pen. “I like him too,” she said. “He’s honest. But, I just think that Donald Trump has the best chance of making us safe from all that this Muslim traitor has tried to do to destroy our country.”

She didn’t even skip a beat.

“Did you hear? Today he said he wants to give Guantanamo Bay back to the Castro brothers!”

I said, “well, that was one of his campaign promises, and one of the reasons I voted for him was that I didn’t want to have this ‘constitution-free zone’ in Cuba.”

Everyone at the table was interested in what I had to say. I explained why I thought Guantanamo Bay was an awful thing. And they asked questions. And nodded. And… jesus christ… I was now proselytizing total Leftist shit in the middle of a crowd of Trump supporters. I looked around for my Mormon friend. At least he was wearing a Rubio button… and I had given $50 to the Rubio campaign. Maybe he could save me before the Trump-ites held me down and did the Louima thing to me.

“That makes sense,” one of them said. “I guess it just feels like surrender. And you have to admit, if you voted for him cuz he said he was gonna do that, and he’s just getting around to it, he’s sort of a shit, wouldn’t you say?

“yeah…” I shrugged. “You got a point.”

We talked for a while. Them all explaining why they liked Trump. Yeah, about half of them had overdosed on Fox News and believed that Obama was a Muslim, and terrorists were hiding under every rock, and Obama had ruined the country. I couldn’t quite get what “ruined” meant. But, they were so damned civil. Here I was talking about how I really wanted Bernie Sanders to win, and how we should close Guantanamo Bay, and raise our HOA dues to pay for better security patrols… and the most negative thing anyone said was “oh, that’s nice” in a non sarcastic way.

Nobody was arguing with anybody.

I noticed that Jeb Bush and Carly Florina were still listed on the ballots. People started handing their ballots in. The caucus went on until 9:00 PM, giving people four hours in which to come in, shoot the shit about how much they hated Obama, hug each other, talk about getting together some time. Drop off their ballots and be home in time to catch whatever they catch on Fox News.

I won’t say these were the smartest people I had ever met, but they sure as hell weren’t the sub-humans the press seems to find to represent the “average Trump voter.” In fact, as misguided as some might think they are, they weren’t any less brilliant than the morons at the Democratic caucuses. The average intelligence level seemed about the same. But, the Republicans were all smiling. They were a group of genuinely happy people. It was totally weird. Their views were angry, but they were not.

That was one big difference. The Democrats were all scared. They were all pissed off. Pissed off at the banks. Pissed off at (and scared of) Trump. The Democrats were fuming about Obamacare being taken away by Sanders (yes really). The Sanders people were pissed off at Hillary for selling us out to the Banks. Everyone was just miserable.

Meanwhile, the Republican Party felt… well… like a party. I all but expected someone to spark up a joint, or at least hand me a flask.

There was no coercion. No union reps walking around watching who was where. The ballots were secret, and you could just vote without sitting in a segregated pen. People discussed the issues, but nobody got bussed in, and nobody seemed to have been told who to vote for by any bow-tied preachers.

There were a few MILFs in yoga pants.

It was weird. I’ve never voted Republican before, and I don’t think I agreed with my neighbors about anything except the need for a wall — around our neighborhood — not on the border. They knew I was a Socialist in their midst, and that I didn’t agree with them about anything, except that I didn’t want Hillary Clinton to be president.

I think they were nice to me in part because they thought I might be mentally disabled myself, especially given how nervous I was… and what with the outburst about Bernie Sanders. I think they may have actually thought I yelled out FRANKS AND BEANS!

But, all in all, I have to say that while I want the guy on the Left to win, I will be looking up the Trump supporters to have cocktails with.

This post originally appeared on Popehat. View it here.


From the Trenches at the Nevada Caucuses – Part 2 – Wallowing in the Democrats’ Ennui

February 24, 2016

This is Part 2 of a 3-part series on the Nevada Caucuses. The previous part is here.

2.0 The Democratic Caucus – sorta dirty, but not in a fun way.

My wife dressed my 7 year old daughter in a tutu that looked like an American flag and my son in a shirt that had a print of the Constitution on it. We figured if it was going to be their first exposure to democracy, we should have some fun. We explained what was going to happen, and they gave no shits at all. I’m sure they will just remember it as some goddamned place they had to go before their friends’ birthday party.

As we approached the Democratic Caucus, it was clear that this was no place for fun, lightheartedness, or child like wonder. There was a green haze made of metamucil-induced farts bonded to industrial-grade ennui. The voting had not yet begun, in fact the doors were not even open. There were only two candidates to vote for, but everyone in line was already defeated.

You got the impression that everyone felt like they had really missed out on something. They were neighborly enough, but just so downtrodden. None of them had been happy, or even smiled, in 20 years. The only person smiling was the guy running up and down the line from the Atheist Alliance. You could tell that he had changed his bong water and set his alarm early for a wake and bake. He hugged me after I gave him a fist bump. There were a few other people that smiled weakly at him. Like the gothapottamus about 10 yards back who had obviously taken the day off from listening to The Cure and cutting herself. Everyone else was relatively colorless. It looked like a morass of humanity that had been washed on “warm” by a college kid for an entire semester. Even the black people in line seemed pale — and bizarrely enough, every one of them had one eye that looked like it was not quite human, but more like something you would find on a giant grouper. It was like they found all the broken black people and made new ones out of the busted up parts.

Ladies and gentlemen, I give you the suburban Democratic electorate.

It really shouldn’t have been that way. My neighborhood is actually a vibrant and happy place full of bicycles and delightfully spoiled children. There aren’t that many very young adults, but there are a lot of youngish MILFs. The Coffee Bean and Tea Leaf down the street is known for two things — kosher pastries and hot MILFs in yoga pants. Honestly, if you can go to a strip club or hang out at the Coffee Bean, you might as well go to the Coffee Bean. Imagine if the crop of strippers at your favorite pole-dancing establishment decided that they were going to quit while they were ahead, so they hung up the lucite heels and traded them in for Lululemon, and then just decided to hang around and drink matcha tea while trying to give me a hard on. I feel like a 15 year old at the chalk board when I go into this place.

So where the fuck did they put all those MILFs? Where did they find the “walking dead” to replace them? Fucked if I knew. I was confused though. An entire crowd of voters, and not a single hot mom in yoga pants…

They scheduled the caucus on a Saturday morning. That struck me as a bit sketchy right off the bat. My precinct is pretty heavily Jewish. MILFy and Jewish. Not just Jews from back East either. Los Angeles Jews who came to escape California’s income tax, and Israelis who came to escape Palestinian home made rockets. Beautiful MILF Israelis.

Needless to say, there are quite a few observant Jews who do not roll on Shabbos. Would they have come even if it was on a weekday? Would they have voted one way or the other? Hard to say. But, if I were the DNC, and I had already anointed Hillary as the heir apparent, I’d probably want to discourage Jews from coming to the polls. Lets face it, if you jog on over in your Yoga pants and you’re not sure who you want to vote for, you might as well throw in with the fellow Tribe member, right?

Since you can’t just throw bacon at people in line, having the caucus on Shabbat seems like the best way to keep as many Jews away as possible. I dunno… maybe Hillary could develop a sonic weapon that drives Jews away next time one challenges her authoritah.

Caucuses generally favor the party favorite, since it takes a lot more effort to caucus than to just come in, mark a ballot, and then go home. For a caucus, you go there and get locked in for a while. The Democratic Party held its caucus with a one hour window of opportunity — the line started at 11 AM, and if you were not in line at 12:00 PM, you were out. I showed up at 11:15, and there was already a line snaking around the corner, with cars dropping off carloads of dead-looking people wearing Hillary shirts or buttons.

It was awfully early in the day for anyone who was up late the night before though. In other words, not a lot of millennials in line. A few. Not a lot. The gothapottamus was clearly a millennial. A few kids here and there who weren’t sure if they were registered to vote. They generally didn’t seem to grasp the concept of soap either, so voter registration was clearly a huge bummer. Of course, I never saw these kids at the Coffee Bean either, so maybe they just inhabited a corner of my precinct where the walking dead lived. I personally try and practice good hygiene, not for myself, but so that the yoga pants MILFs will talk to me.

My precinct took quite a while after 12:00 for everyone to get inside. At another, an eyewitness told me that he dashed in at 11:59 and some change, and that a group of 5 kids wearing Bernie shirts got the stiff arm about 10 seconds later. “Nope, you need to be in at noon. You’re late. Buh buye”. I did not ask him about yoga panted MILFs at his precinct.

Once inside, the stench was unbearable. It was in an elementary school cafeteria/gym and it smelled of bug spray and the impending death of at least 10% of the people inside. In my precinct, there were just a few Sanders supporters, and they herded us into a small penned off area. It felt like we were in one of those “free speech zones” that the kids are all into these days. Hillary supporters were there, in shirts announcing which union had sent them, and they slowly circled the Socialist Petting Zoo we were in. On a table was a fresh, unopened deck of cards.

I figured the cards were there so that we wouldn’t get bored. So I cracked them open and started playing Scopa with my kids. I found out later that this was the deck of cards they would have used to break a tie, had there been one. A woman near me asked what we were playing, and when I tried to explain the rules to the game to her, she got flustered and said “that doesn’t make any sense, you’re just making the rules up! I don’t understand! Its too complicated!” My five year old whispered to me that she was “a dumbass,” and my seven year old asked me if she had Alzheimer’s like her grandmother. I told her I didn’t think so.

The benefits of a caucus for the “party candidate” were clear. You could tell that there were some people there who genuinely adored their chosen candidate. Others were there picking her as the lesser of two evils. But, the Hillary squad also had some very clear “enforcers” there to make sure that nobody thought better of where they were sitting. When my wife checked in, the woman before her said she was there to caucus for Sanders. The woman checking her in said “Are you sure about that? You sure you wouldn’t rather be undecided?” She changed her mind and went with undecided. At that, she went to sit down, with a guy in a “carpenter’s union” shirt going over to talk to her. This idiot could have been convinced to vote for the giant grouper that gave its eye to one of the broken spare-parts bin black people.

The racial divide was pretty clear — with absolutely zero black people on the Bernie side. I only talked to two of them directly. Both of them had been told by their preacher how much better the Clintons are for “us black folks.” When I addressed them about that, the words “my African American friends…” got out of my mouth, when someone who had been silently listening jumped in with a “don’t you dare go there!” I’m not sure who they were, or why, or if they were talking to me or my new friends… since that grouper eye always looks somewhere in the distance. I guess that in ennui fart land, you are not allowed to fraternize with the negroes.

And the union reps were always circling. When the speeches got too much in favor of the Bernie camp, they started interfering. One guy told me to sit down and shut up. I yelled at him to wander on over and try and make me. Another guy in a union shirt joined in, and I yelled to him “give it a shot, you fucking punk…” Yes, we were in the middle of a caucus, and it was about to turn into a fist fight. Someone who claimed to be in charge told me that she was going to have me removed if I wasn’t “nice.” Pointed to her Union buddies and said, “who’s going to remove me, those fucking cunts? Fuck you. You’re not getting me out of here without physically removing me, and the first motherfucker who puts their hands on me isn’t leaving here with all their teeth.”

Yeah, there was almost a brawl. Go figure, I was in the middle of it.

Then we voted.

All in all, I wouldn’t call it “very dirty” though. Scheduling it to make sure only old people came? Well, if Madison and Tyler can’t get the fuck out of bed in the morning, that is hardly what I would call “voter suppression.” Saturday to keep the Jews away? I would imagine it wasn’t by design, but then again, how the hell do you schedule an election on a day that so clearly means that an entire segment of the electorate is religiously prohibited from showing up? I’d chalk it up to the DNC wanting less Hebrews at the election, given that the disfavored upstart is ostensibly one of them. But, it was on a Saturday in 2008 too. I’ll call this one just a hell of a faux pas.

The preachers, union reps, and poll workers who were actually pushing people to change their vote, or making damn sure “their” people stayed exactly where the hell they wanted them? Classic politics, but still dirty shit. All in all, on a scale of 1 to 10 with a 1 being a town meeting in rural Massachusetts, and a 5 being what a first world country should expect, and a 10 being Florida or Chicago, I’d call the Democratic caucus at a 6. Still dirtier than a first world country should be, but I wouldn’t chalk Hillary’s win up to dirty games. What really won her the election is that she was organized, even if it meant payoffs to ministers and unions. When your base is people who mainline geritol, you’re always going to beat an enthusiastic band of voters who have to ask “aw, Mason, is that today, dude?”

I stole the deck of cards. Good thing there wasn’t a tie.

NEXT: Part 3 – Amongst the Republicans

This post originally appeared on Popehat. View it here.


From the Trenches at the Nevada Caucuses – Part 1.0

February 24, 2016

This is Part 1 of a 3-part series on the Nevada Caucuses.

1.0 I know Dirty… and I know Elections

The big news of the day is Donald Trump’s runaway victory in the Nevada Republican caucuses. Along with it, “reports” that the process was tainted, crooked, a Trump flimflam. The “sources” for these reports are almost all people griping on social media.

The Republican caucuses that I observed were either clean or they hired Penn & Teller to handle the shenanigans – because I didn’t see a damn thing happen. Maybe it was a little disorganized, but certainly nothing that suggested a dirty election.

I know a dirty election when I see one. In 2004, I was an election observer in Florida, and I saw things that you probably wouldn’t believe happened, even if I had video.

Crowds of black voters came in to vote, noting that “volunteers” had come to their neighborhoods to “help” them register to vote. After taking their registration information, these “volunteers” seemed to “forget” to send in the forms. Oopsie!

Ok, perhaps it was just an honest mistake that dozens of people came in with the same story, that a “nice volunteer” came to their house to “help them register,” and then their registration forms magically didn’t ever get submitted. The black voters, believing they were registered, would not discover the truth until election day – when it was too late to rectify the injustice. “Y’all come back in four years now,” the poll workers said with cheshire smiles and voices as sugary as sweet tea. Some might come back….but, the damage was done for that election.

And in other situations, I recall more than a few voters being told that they weren’t registered to vote, even though they personally turned in their voter registration forms on time. When I showed up by his side, all of a sudden, his name would appear.

After I apparently helped too many of them get ballots, a Republican election observer made a call, and ten minutes after the call, a white van screeched to a halt in front of the polling center, and five stocky, buzz-cut white men (one shaved bald) in red shirts barged into the polling station and demanded that I be removed from the polling place. Finally, the gang of five thugs found a corrupt deputy who ejected me from the place under threat of arrest. I was more than happy to go to jail for the cause. But, when I called the HQ, they gave me strict instructions to stand down — their concern was that if voters saw a civil rights attorney getting hauled off in cuffs, it would most scare the shit out of them, and thus likely be the best vote-suppression strategy the Republicans could hope for.

Outside the polling station, I walked over to a chair, and fell into it. I thought that battle ended before I was born. The emotion that sat on my shoulders and collapsed my whole body was shame – shame at being part of a society that still considered equal rights to be a nuisance, shame that I didn’t do more, shame that I was so naive that until Nov. 2, 2004, I truly disbelieved everyone who told me a story like this. But this time I was there. I couldn’t deny that it happened, and I couldn’t deny that what I saw was an organized effort to deny people the right to vote.

That was a dirty election.

So here in Nevada… were the caucuses really dirty? What were they like?

NEXT: Part 2.0 – Wallowing in the Democrats

This post originally appeared on Popehat. View it here.


Shouldn’t I get CLE for watching?

February 23, 2016

by Jay Marshall Wolman

As a lawyer admitted in multiple jurisdictions, I find myself having to ensure I keep up with Continuing Legal Education (CLE) requirements.  With my CIPP/US certification, I also have continuing education requirements.  Doctors have CME requirements, and other certifications and professions have their own continuing education requirements.  And some don’t.

For example, I’m admitted in New York, D.C., Massachusetts, and Connecticut.  Only one, New York, requires that I engage in continuing legal education. The rest just recommend it.  (Connecticut is in the midst of a debate as to requiring it.)

Continuing education can be a good thing.  Rather than having to retake the bar exam every 10 years, the theory of CLE is to ensure that lawyers remain up to date with developments in the law.  But the theory doesn’t work.

Here’s how I satisfy my biennial 24 hours of NY CLE requirements:  about two months before the due date, I scurry around to find the $99 special for a package of .mp3 recordings containing all mandatory hours.  Then, as I have time in the mornings or evenings, I listen to them.  It’s great to learn about developments in the uniform probate code or handling DUI cases–except that’s not what I practice.  Most of my mandatory CLE is dreck.

One time, I bought a package of all employment law CLE courses.  Not bad, but there was quite a lot of repetition among them.  And still, the package contained hours on employee benefits law, which is not what I practice.  Now, if Connecticut adopts a CLE requirement, I can only hope that the packages I buy will be dual-certified for NY and CT, else it will set me up for an even further waste of time.

Yet, as a lawyer, I continue to develop my practice.  I blog, with many pieces requiring me to learn new and burgeoning areas of the law.  Even my Third Amendment blog required me to read several new law review articles and recent caselaw.  I attend bar programs, listen to webinars, write articles, and read legal developments, many of which aren’t CLE certified.  For example, I just listened to yesterday’s legal blogging panel featuring Scott Greenfield, Keith Lee, Mark Bennett, and Brian Tannebaum; though perhaps it could get certified for NY CLE ethics and practice management, I don’t believe it is.  But a lawyer can learn a lot from it.

Lawyers who get disbarred have kept up with their CLE requirements.  Lawyers who lose malpractice cases have kept up with their CLE requirements.  Lawyers whose clients successfully argue ineffective assistance of counsel have kept up with their CLE requirements.  Opposing counsel who write inane demand letters and absurd pleadings/briefs have kept up with their CLE requirements.

Lawyers already have an ethical duty to be competent, as do those with other licenses and certifications.  Continuing education may be an effort by proxy to ensure competence, but though good in theory, it is lousy in practice.  If the goal is to protect the clients, requiring mandatory professional liability insurance is the best bet.  If the goal is to make the local bar seem more diligent, I can’t imagine who would really care if their criminal lawyer just wasted 2 hours on patent law developments.  If the goal is to perpetuate an industry of CLE providers–well, that one is successful.

 


Two Issues with the FBI & Apple

February 18, 2016

by Jay Marshall Wolman, CIPP/US

By now, practically everyone who cares has heard that Magistrate Pym has ordered Apple to help the FBI crack open an iPhone related to the San Bernadino shooting.  The order is pursuant to the All Writs Act, codified at 28 U.S.C. sec. 1651.  In short, it is a catch-all that lets courts issue whatever orders they feel like.  In response, Apple CEO Tim Cook sent a letter saying he opposed the order.  Notably, he wrote:

But now the U.S. government has asked us for something we simply do not have, and something we consider too dangerous to create. They have asked us to build a backdoor to the iPhone.

There’s been a lot of discussion, but little focused on two issues that deserve some attention.  First, this isn’t simply asking Apple to turn over a piece of software or asking to borrow a gadget.  They are, if Mr. Cook is to be believed, asking Apple to write new software.  Software is a creative process, a means of expression; this is why it is protected by copyright. Apple itself was instrumental in this determination.  See  Apple v Franklin, 714 F.2d 1240 (3d Cir. 1983).  In a nutshell, the Order is tantamount to ordering Frank Gehry to design a building featuring straight lines and right angles or ordering Stephen King to write a Harry Potter/Game of Thrones cross-over (assuming, in theory, a criminal investigation that would make such desirable).  EFF briefly touched on this last year in similar circumstances.  The All Writs Act may date to 1789, but it predates the ratification of the First Amendment in 1791 and is subject to it.  The Government may not simply compel speech.  See, e.g., Knox v. SEIU , 567 U.S. 310 (2012)(“The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.”).  

Second, there’s a certain subtext in Mr. Cook’s message.  What he says is that it is too dangerous to create, not that it is unfeasible to create.  The issue faced by the FBI is that the iPhone at issue may erase all data after too many failed attempts at a brute-force passcode hack.  So, they want Apple to design a work-around that would enable them to guess all possible passcodes without bricking the phone.  The auto-erase function is a security feature; the iPhone is encrypted by default.  We rely on this as part of our daily security–heck, I’m sure the government relies on it.  We’ve all seen street magicians use incredible slight of hand–how hard would it be for one of our diplomats, officers, or defense contractors to have had a foreign spy (let’s say–North Korean) swipe their iPhone (and SIM cards) and replace it with a counterfeit.  In that scenario, the person would try their passcode 10 times, fail, wonder why, but feel secure that the iPhone wiped itself.  Yet, the real phone would be in the hands of the foreign government.  Maybe the FBI and Apple haven’t yet developed the tool that bypasses the 10-tries-and-erase feature, but a foreign intelligence agency might have.  Our own NSA might have it also, but just isn’t sharing with the FBI.  This tells me that no iPhone is actually secure.  Though there is pretty much no such thing as an unbreakable lock, such a tool might enable a brute force attack on your phone to crack it in as little as 12 hours.  That’s more than enough time before the subject realizes his phone was swapped rather than just suffering a glitch.  As much as we may want Apple to be able to recover our phones if we forget our own passcodes, we really should want them to make a phone they themselves cannot crack.

These are the issues we should be discussing, in addition to whether we generally think it right for the government to ask Apple to hand over the keys to the kingdom.