Thursday, February 11, 2016

Educating tomorrow's lawyers

Check out my newest article, Two Rules for Educating Tomorrow's Lawyers, in my Critic's Corner column in this month's edition of the Wisconsin Law Journal.

State Bar News

Here are three pieces of bar related news for The Dog's readers.  FIRST, the ABA is pushing to make state bar exams uniform.  This would allow lawyers to more easily move from state to state to find jobs.  Unfortunately, newly licensed lawyers would know even less about their specific state's law than they currently do -- and that's bad news for would-be clients.

SECOND, our state bar here in Wisconsin opposes our proposed change to ethics rule 1.9 -- color me surprised.  Our bar collects our dues and is supposed to be working for us, yet has chosen to "protect" the public from lawyers' discussion of public information, rather than protecting our basic free speech rights.  If the Wisconsin bar has its way, we lawyers will still be prevented from talking about even the public aspects (e.g., published appellate court decisions) of our former clients' cases -- also known as our cases.  This is clearly unconstitutional, but our bar and other mandatory bars love to be perceived as protecting the public at its lawyer-members' expense.

THIRD, Wisconsin's mandatory bar can get away with taking our money and then working to violate our basic constitutional rights because it's an entrenched bureaucracy that we are forced to join.  But the bar ought to rethink its position, because it might not enjoy this insanely privileged status forever.  In Arizona, for example, the Irreverent Lawyer is leading a movement to dismantle the mandatory bar and turn it into a voluntary organization.  If he is successful, their state bar bureaucracy would shrivel up faster than a grape in the southwest desert summer sun.   (That is, few lawyers would join if they're not forced to do so.)  Good luck, Irreverent One!  Why don't you take care of business in Arizona, and then come to Wisconsin and take on our mandatory bar?  Knightly offers his assistance in the fight for freedom of speech and freedom of association.            

Saturday, January 23, 2016

Another hole in the Fourth Amendment

During the course of The Legal Watchdog’s short-lived but glorious podcast, we discussed the court of appeals case State v. Dumstrey where the court held — despite a scathing dissent — that we don’t have a privacy interest in our locked, underground, enclosed parking garage of our condo or apartment.  The case was obviously so wrongly decided — every single one of the factors in the multifactor balancing test pointed toward the existence of a privacy interest — that the state supremes announced they would be taking the case for review.  At the beginning of this podcast we gave our predictions.  Although “the skeptic in me” was cautious, I said that I was “going out on a limb for our supreme court.” I predicted that “even this supreme court, with these justices, will reverse it.”  So what happened?  

Friday, January 15, 2016

Robots Rising

I absolutely hate those super trendy commercials showing young people completely enamored with their “apps,” “social media,” and “mobile devices.”  Sure, this “technology” feeds their insatiable appetites for a non-stop stream of mindless “content.”  But what the kids don’t realize is that this same technology, while well-suited to their short attention spans, is also taking away their jobsor preventing them from landing jobs in the first place.  In Rise of the Robots: Technology and the Threat of a Jobless FutureMartin Ford explains how robotsor, more accurately, smart algorithms that know how to teach themselvesare now doing jobs that college grads used to do.  This, in turn, forces a very large percentage of college grads into jobs that do not, in any imaginable way, require a college degree.  Then, the workers that would typically have held those unskilled jobs are forced into long-term or even permanent unemployment or underemployment. 

Friday, January 8, 2016

Goin' mainstream

I recently joined the Wisconsin Law Journal as a monthly columnist.  My first article, A Call to Arms (So to Speak), just came out in print, and is now available on-line.  My monthly column, CRITIC'S CORNER, will archive all of my articles as the months pass.  I'll put a link to that on the right hand side of the blog, near the links to my books, articles, and MU blog posts.  Enjoy!

Thursday, December 31, 2015

Coloring books, case law, and the Devil’s Dictionary

Ambrose Bierce
In my second book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights (Rowman & Littlefield), I discussed how the police indoctrinate kids at a young age through “Deputy Friendly.”  The good deputy’s message is clear: the police are your friends and they’re here to help.  Conversely, I lamented, early education excludes anything that runs contrary to that pro-government theme.  If you doubt that, try to imagine anyone teaching young people about how the police are permitted to lie to us, how we have the right to tell them to “pound sand” when they want us to talk, and how we can demand the presence of an attorney to gum-up the government machinery.  (Hard to visualize such an education, isn’t it?)  But as successful as Deputy Friendly has been indoctrinating America’s youth, I think the judiciary has just topped him with the publication of Learning about Judges: A Coloring Book.

Tuesday, December 8, 2015

When Ethics Rules Attack: A Real-Life Example

I recently published an article criticizing ethics rule 1.9(c), and also filed a petition and memorandum (coauthored with Terry Rose) asking our state supreme court to change the rule.  The rule, which prevents attorneys from discussing even public aspects of their closed cases, not only violates our right of free political speech, but is an absolute disaster on every imaginable level.  I wrote in the article that the rule is nonsensical and indecipherable, leaving us lawyers at the mercy and whims of anti-lawyer bar associations and regulators. 

Thursday, December 3, 2015

Changing Rule 1.9

Current state of attorney free speech
There's been some progress on our petition to modify Wisconsin's SCR 1.9 (c), the rule that prevents attorneys from talking about even the public aspects of their closed cases.  In a nutshell, Terry Rose and I are trying to restore some sanity to the situation.  We are asking the supreme court to define "generally known" to include information that is publicly available or has been disclosed in a public forum, and further to recognize that, by definition, generally known information has already been "revealed."

Friday, November 6, 2015

Hiatus

Sorry for the lull in the posts.  I've got about ten good topics lined up in the writing queue, but they're all going to have to wait.  Even though Knightly is currently resting up, I've been working on a new project with coauthor Larry White.  More specifically, many Wisconsin criminal defense lawyers have lamented that our state's burden of proof instruction allows conviction with far less than proof beyond a reasonable doubt. (I've always thought that the prosecutor's burden in our state was more like a preponderance of the evidence standard.)  So our new study and soon-to-be law review article tested that hypothesis.  And sure enough, mock jurors that were given the Wisconsin jury instruction convicted at a much higher, statistically significant rate than did mock jurors given a straight reasonable doubt instruction.  We plan to start submitting the article for publication to journals in February, and, historically, I've received offers on my articles by mid-March if not sooner.  Hopefully at that time the publishing journal will let us post a pre-publication version of the article to SSRN.  This should give defense lawyers some ammunition when filing pretrial motions to modify Wisconsin's burden of proof instruction.  Ultimately, the article should convince our jury instruction committee to modify Wisconsin's instruction to the constitutionally guaranteed beyond-a-reasonable-doubt standard.  Stay tuned!  

Monday, October 12, 2015

The lawyer advertising double standard

Unemployed and under-employed law graduates have sued several law schools, claiming the schools used false or misleading employment data to induce them to enroll and spend $150,000-or-so of their yet-to-be-earned dollars.  One law school advertising tactic, for example, was to label jobless graduates as “not seeking” employment; this allowed a school to hide the abysmally high unemployment rate of its graduates.  Another, more common tactic was to count graduates as “employed” even when their jobs had absolutely nothing to do with law (e.g., working at Starbucks), or were only temporary jobs created by the law school to artificially boost its employment statistics.  Another was to say that, for example, 92 percent of all grads were employed, when in fact only 92 percent of the 40 percent who responded to the survey were employed.  In sum, law school advertising at many schools took tremendous liberties in spinning the facts.    

Sunday, October 4, 2015

Free speech today [Updated]

Many people — especially people at colleges and universities — have come to believe they have a right not to be offended.  The only explanation for this oversensitivity is the complete misunderstanding of the First Amendment.  (Click here for a First Amendment primer.)  This is particularly obvious when someone claims that another person’s speech isn’t free speech, but offensive speech.  Of course, the First Amendment protects offensive speech.  And, as a practical matter, if the speech weren’t offensive, it probably wouldn’t need constitutional protection in the first place.  The most recent incident of this came when a college newspaper published an op-ed questioning whether the tactics of a particular political movement were really effective.  What followed after the publication of the “controversial” essay was predictable: offense was taken; outrage was expressed; punishment was demanded; apologies were issued; and, likely, the college newspaper has learned not to publish any articles that express a contrarian viewpoint or question today’s politically correct stances.  But how did we become such a bunch of spineless, mealy-mouthed worms who insist that free speech has to take a backseat to our imagined right not to be offended?  Ken White at Popehat explains how this happened in his post titled “Safe Spaces” and the Mote in America’s Eye.  The post is also filled with links to numerous other posts, essays, and related works — a must read for anyone interested in the current state of free speech.  In sum, there is a real risk that the First Amendment, at least in some settings, will soon go the way of the Fourth Amendment — so enjoy this constitutional right while it lasts.  [UPDATE: Richard Dawkins on free speech on campuses, here.]

Monday, September 28, 2015

Citizenfour

In her Oscar-winning documentary Citizenfour, Laura Poitras exposes the extent and impact of our government’s domestic spying operations.  Her documentary focuses on Edward Snowden, and includes many of the things you’d expect to see in great filmmaking.  For example, there is the early congressional testimony of an NSA bureaucrat who repeatedly denied that the government intercepts our emails, phone calls, texts, and google searches.  But later, another NSA bureaucrat testified and tried to spin it: The NSA does not intercept such data “wittingly.”  It does so “inadvertently, perhaps,” but not “wittingly.”  (This type of statement makes the testimony of cigarette company executives — “I believe that nicotine is not addictive” — appear truthful by comparison.)

Tuesday, September 15, 2015

Race matters in eyewitness identifications

By now, most people have seen the video of former professional tennis player James Blake being roughed up by a New York cop in a case of mistaken identification.  (If you’re familiar with names like Agassi, Sampras, and Federer but haven’t heard of Blake, the guy was not a superstar but he was legit; he earned more than $1 million in prize money alone in 2008.)  And once this video surfaced, several worthwhile issues have been raised, including police brutality, police cover-ups, and disparate treatment of minorities.  But two topics have largely been glossed over.

Wednesday, September 9, 2015

Petition to modify Wisconsin SCR 20:1.9

Madison, WI
Most attorneys confuse ethics rule 1.9 with the evidence rule of attorney-client privilege. (Chalk this up to another colossal failure of legal education.) But ethics rule 1.9 is much broader, and essentially prevents an attorney from discussing, writing about, or otherwise disclosing even public information about his or her closed cases. Among other problems, this rule is a clear violation of an attorney’s free speech rights. In fact, the state of Virginia has already said as much, as its supreme court held that an ethics rule may not prevent an attorney from discussing the public aspects of his or her closed cases. And other states, such as Alaska, permit attorneys to discuss the public aspects of their closed cases for CLE purposes. So fellow attorney Terry Rose and I have filed a petition with the Wisconsin Supreme Court to modify ethics rule 1.9. The very modest modifications would permit an attorney to discuss, write about, or otherwise disclose public information about his or her closed cases. You can find our two-page petition at this link. You can find our fifteen-page supporting memorandum that blasts rule 1.9 at this linkWisconsin attorneys who want to support our petition can do so by following the instructions at this link. Our petition and memorandum are based on my forthcoming article, On the Absurdity of Model Rule 1.9, which will be published in the Vermont Law Review in January, 2016.

Saturday, September 5, 2015

Reversing the lawyer glut?

As the graph to the left indicates, law school applicants are at their long-time low, and are down 47 percent from their recent peak.  (The graph and a full report come courtesy of Paul Campos.)  This decline is due in large part to scam-blogs and even some mainstream media outlets that have exposed the staggering debt loads and limited job opportunities for new law grads.  This decline in applications is also great news for practicing lawyers, although it will likely take awhile for the existing oversupply of lawyers to start to correct itself.  Meanwhile, law profs are weighing in with their usual nonsense.