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.