Wednesday, December 31, 2014

Wisconsin state bar discourages free speech

I was just thinking that I haven’t written a judge-bashing blog post in quite a while.  And then, out of the blue, I got a call from criminal defense lawyer and free speech advocate Terry W. Rose, telling me about an outrageous opinion piece in the November issue of Wisconsin’s state bar magazine.  This piece, subtitled “never provide information in blog posts . . . that criticizes judges,” is especially alarming because it was written by a lawyer and, worse yet, the vice chair of our state bar professional ethics committee.  Essentially, the piece makes two claims.  Its first claim pertains to lawyers discussing cases in which they are, or have been, involved as counsel.  (I’ve already written about that tandem of bizarre ethics rules in an earlier blog post and in a forthcoming law review article.)  And its second claim — the claim I want to address in this post — is that ethics rules 20:8.2 and 20:8.4(c) “make it very clear that a lawyer may not criticize a judge in most circumstances and doing so could result in significant sanctions.”

Sunday, December 7, 2014

How Wisconsin saved the Big Ten (and more college football madness)

By losing 59-0 to Ohio State, the Badgers made the Buckeyes look so good that “the committee” leapfrogged them over TCU and into college football’s field of four “playoff” teams.  Meanwhile, both TCU and Baylor — the so-called “co-champs” of the Big 12 — got left out of college football’s “little dance.”  In some sense this is unjust, given that the Big 12 is a stronger conference than both the Big 10 and the ACC.  But in addition to blaming Wisconsin, the two Texas teams from the Big 12 can also blame their own conference. 

Sunday, November 30, 2014

Vampires and cops

In my second book I asked: What’s the difference between a vampire and a cop?  Answer: A vampire has to be invited into your home before entering; a cop only has to say he was invited in and the judge will believe him.  And now, it turns out that cops don’t even have to do that much.  In State v. Parisi the cops had “probable cause” to believe that Ms. Parisi was smoking some weed inside her home.  Probable cause is an incredibly low level of proof, but it allows the cops to do a lot of things — except enter her home.  For that, the general rule is that they need an invitation or a judicially-signed search warrant.  (Admittedly, warrants are nearly always rubber-stamped and are nothing more than Fourth Amendment symbolism; worse yet, they sometimes fail to serve even that limited purpose.)

Saturday, October 4, 2014

Giles was right

One day in the fall of 1997 during my first semester of law school, I was standing in my parents’ kitchen while taking a break from reading casebooks. I was channel surfing on a small television that my mom kept in the cabinet above the refrigerator, and stumbled upon the show that Entertainment Weekly would soon label the best on television: Buffy the Vampire Slayer. (DVDs available here.) Back in 1997, the internet was just coming into its own, and the episode’s subtext was a debate between the stuffy, stuck-in-his-ways school librarian Mr. Giles, and the hip, sexy computer science teacher Ms. Calendar. Ms. Calendar was trying to convince Giles that books were a thing of the distant past and that information shouldn’t be bound-up, but instead should be virtual. Giles disagreed. 

Friday, July 4, 2014

Bad Business

TV viewing with Knight
Some marketing campaigns are so bad or so embarrassing that you wonder how they ever got off the ground.  One ad that makes me flat-out angry every time I see it is the Time Warner Cable series, where former football coach Bill Cowher walks into a family’s home and just starts talking to them about TWC’s services.  In one commercial, the marketing geniuses behind the ad actually have the nerve to make Cowher read this line: “You shouldn’t have to buy what you don’t want.”  This from the company that makes me buy an entire package of cable channels just so I can get ESPN and FX.

Wednesday, June 25, 2014

Big Ten conference to dissolve, Rose Bowl to terminate, sky to fall

"Really, Jim?"
A group of college football players at Northwestern recently won the right to unionize and negotiate for better working conditions, health insurance, scholarship terms, and other forms of pay and benefits.  Essentially, the athletes were deemed to be “employees.” This makes sense, of course, as they are under the university’s control, provide a service to the university, produce millions of dollars in revenue for the university, and receive benefits, including tuition and books, in return.  (The fact that they’re paid in goods and services, instead of cash, shouldn’t turn them into non-employees.)  According to this ESPN report, however, the Big Ten’s Jim Delany says that if the schools actually have to pay their athletes, the conference will dissolve and it will also bring an end to the traditional Rose Bowl matchup between the Big Ten and Pac Twelve champions.  Really, Jim?

Wednesday, June 4, 2014

The Collapsing Constitution

For my latest rant, check out my essay "The Collapsing Constitution" in the new issue of the Hofstra Law Review, available here. (All of my articles are available here.) On a related note, for a discussion of my second book "Tried and Convicted" check out The Irreverent Lawyer, here, where he ties-in the book's theme with the recent judicial misconduct in Florida. The Dog's readers have probably seen the video by now, but if you haven't, it's included in the irreverent one's post. Hopefully the defense lawyer has a civil suit against the judge. It would be great if some of the judge's huge salary and benefits could be transferred to the lawyer in the form of compensatory and punitive damages. But it would be interesting to see how far the doctrine of judicial immunity could be stretched. I think that threatening the lawyer, challenging him to a fight, and then leaving the bench to go outside might be a bit outside the scope of "his honor's" judicial duties.

Saturday, April 26, 2014

When it comes to privacy, NSA is only part of the problem

"Somebody's watching me."
A single, now-famous whistleblower and countless journalists have exposed widespread NSA operations that invade our privacy and violate the Fourth Amendment.  But the NSA, the police, and other government agents are only part of the problem.  The bigger problem is that the judiciary—the supposedly neutral and detached group to whom we look for protection from the NSA and its ilk—has reduced the Fourth Amendment to meaningless jargon.  In reality, every day in nearly every community across the country, state-court judges are allowing government agents to violate the Fourth Amendment’s warrant requirement at the expense of our privacy rights.

Wednesday, April 16, 2014

Drugs, plea deals, snitches, trials, and hung juries

Photo by Leo Martin
Defense attorney Terry Rose (pictured on right) just conducted some sharp cross-examination and delivered a cut-to-the-chase closing argument to get a hung jury in a drug delivery case. His trial raises several points. First, our legislature is crazy. (More on that below.) Second, a substance that is allegedly delivered to an undercover snitch should not increase in weight after the government uses up a portion of it for chemical testing. And third, government witnesses who hope to work off their own charges by testifying and burying the defendant are motivated to lie, much like a salesman is motivated to sell. 

Saturday, April 12, 2014

Introducing Peter Morici

Whenever I come across great authors, I like to share them with The Dog’s readers. (I consider this a form of public service.) In the past I’ve doled out praise for:

Matthew Stewart (on business, history, and philosophy);
Paul Campos (on legal education);
The Popehat (on free speech);
The Irreverent Lawyer (on state bars and the legal profession);
Michael O’Hear (on sentencing law and policy); and, of course
Christopher Hitchens (on religion and, well, nearly everything).

And now it’s time to introduce an absolute gem named Peter Morici, a straight-talking, pull-no-punches, tell-it-as-it-is author, economist, and political commentator. I came across Morici in a podcast called Business Matters from the BBC. Here is a summary of some of his arguments that ring true louder than a church bell, and also debunk some often unquestioned conventional wisdom:

Wednesday, April 9, 2014

State Bar Associations: Everything to Everyone?

I wrote in an earlier post how I never really gave much thought to our state’s mandatory bar association. All I really knew was that I had to cut them a pretty big check each year in order to keep my law license. Sure, I realized that I wasn’t getting anything of value for the payout, but I really didn’t care enough to give it a second thought—until I started reading The Irreverent Lawyer, a blog that places state bar associations, mandatory CLEs, and related topics squarely within its crosshairs of criticism. And because of this, I’m now far more sensitive to the absurdity that is our state bar association.

Tuesday, April 8, 2014

The dogs have their day

Knightly (pictured) wears his Husky hat while watching Monday night's NCAA championship game. Knightly's dogs (the UConn Huskies) beat Kentucky's Wild Cats in an exciting, fairly well-officiated game. Congrats to the Huskies on another championship -- a championship won largely because their fast, aggressive, and undersized guards controlled the game. Guard Shabazz Napier, who won the tourney MVP in Kemba-Walker fashion, then stuck it to the NCAA in post-game comments. Fight the man!

In related news, the only thing certain about the now-famous $1 billion dollar bracket challenge from Warren Buffet was that no one would win it. However, there were still several $100,000 prizes given out to the top brackets. (You don't have to run faster than the bear; you just have to run faster than the other guy who is also running from the bear.) I entered a bracket, but didn't come close to winning one of those prizes. But when I filled out my bracket, I distinctly remember thinking: "This is odd. Did my bracket 'take'? Why is the program not confirming whether my bracket is complete?" And now, one Husky fan might have missed out on a $100,000 prize for this very reason: he allegedly didn't complete his bracket, and left the championship game undecided after picking the Final 4 and then the final two.  He could very well have run into the same problem I ran into. (It didn't matter for me, as I was never close to a prize.)  If Buffet is wise, he'll use this as a marketing opportunity for his company and add an extra $100,000 prize for this guy. The advertising and goodwill it would generate would pay for the extra $100,000 in mere seconds.    

Saturday, March 15, 2014

Observations on March Madness

Marquette could have used me this year.
The month-long celebration of college basketball is here.  Conference regular season champions have been crowned, conference tourneys are wrapping up, and tomorrow is Selection Sunday for the NCAA tourney.  It’s the time of year where Big East giants are humbled (sorry Nova), where 5-seeds come out of nowhere to become Horizon League champs and crash the Big Dance (congrats Milwaukee Panthers), and where Bill Raftery yells things like “organize the puppies – nylon delivery!”  But even the most wonderful time of the year can be improved.  Below are some thoughts for fans, coaches, players, and especially the zebras. 

Saturday, March 8, 2014

NCAA disbands selection committee, defers to Joe Lunardi

For its 2014 men’s college basketball tournament, also known as “March Madness,” the NCAA has announced a major change in its selection and seeding process.  Philip Timmerman, the NCAA’s Director of Tournament Seeding, stated that this year “the selection committee will be disbanded, and the NCAA will simply defer to the selection, seeding, and placement decisions of Joe Lunardi.”

Joe Lunardi is an ESPN analyst who, in recent years, has predicted the tournament field with surprising accuracy.  “In most years, Lunardi was already predicting 63 or 64 teams of the then 65-team field, and was also amazingly accurate on both seeding and geographic placement of those teams,” Timmerman stated.  “It doesn’t make sense for the selection committee to continue to meet in a small conference room year after year, just to keep reinventing the wheel.  We always end up doing what Lunardi recommends anyway.  Or maybe it was like he was reading our minds and just beating us to the punch.  Regardless, this change will streamline the entire selection and seeding process.”

Wednesday, February 12, 2014

Big 12 Update

In my previous post I discussed Oklahoma State’s star player Marcus Smart who went into the stands to shove a Texas Tech fan during a basketball game in Lubbock.  After way too much discussion among the talking heads—only Missouri’s Michael Sam has garnered more coverage recently—and probably way too much effort in the actual “investigation,” witness interviews and an audio recording revealed what triggered Smart’s outburst.

Saturday, February 8, 2014

Big 12 Conference: Put your money where your mouth is

I really hate the college and conference commercials played during televised college basketball games.  These commercials try to convince viewers that a particular school, or a particular conference, is somehow different and better.  The Big 12, for example, stresses “sportsmanship” (see here and here) as something that sets it and its member schools apart from the rest.  Even a moderately skeptical viewer realizes that these commercials are pure nonsense—at best, they are empty advertising slogans.  But if the conferences and the schools want to at least pretend that their commercial messages mean something, then the Big 12 and Oklahoma State need to take some sort of disciplinary action against basketball player Marcus Smart. 

The sequel is better than the original: Lower court overturns higher court so it can affirm conviction (again)

Back in July, 2013 I wrote about State v. Copeland, a case where, due to a United States Supreme Court decision, the Wisconsin appellate court had no choice but to admit that the police did, in fact, violate the defendant’s rights when they attached a GPS device to his car without a warrant.  But despite this, the defendant in Copeland was still out of luck.  The Wisconsin court relied on the so-called “good faith exception" and held that the police who attached the GPS device were relying on the law at that time, and the U.S. Supreme Court decision (holding that GPS searches required a warrant) was decided later.  But there was one major problem with the Wisconsin court’s reasoning excuse-making.

Saturday, January 25, 2014

NFL gaffes

As a college football fan, I don't care much about the NFL.  If anything, I dislike it, as one of our local news channels is now running Green Bay Packer reports 365 days per year, thus forcing me to try to remember which channel that is so I can avoid it.  Despite things like this, however, I've always admired the NFL's business model and business acumen (including its recent settlement of the concussion litigation on terms so favorable that the deal was rejected by a judge as being unfair).  But my admiration of the NFL is waning.  Why?  

Thursday, January 9, 2014

Why isn’t there a major in “college athletics”?

I’m kind of torn on the so-called student-athlete.  On the one hand, I like to joke about the title — for the most part, we all know that they’re athletes and not really students, right?  But on the other hand, the student-athlete probably isn’t much worse than the typical student at many schools.  (It’s just that non-athlete students aren’t thrust in front of the camera every Saturday afternoon after the game, so we don’t get to see and hear them.)  And then, when I saw an article about what some kids are able to study in order to earn a degree, I started to appreciate the student-athlete even more.

Tuesday, January 7, 2014

Breaking the bank: JP Morgan Chase needs to stop paying off the government

JP Morgan Chase just agreed to pay another $1.7 billion to the government as part of a criminal settlement agreement.  So what was Chase’s alleged crime this time around?  The government alleges Chase violated the Bank Secrecy Act by failing to file a “suspicious activity report” for certain “suspicious transactions” in Bernie Madoff’s bank account. (Source: WSJ.)  I find this absolutely hilarious, given that the Securities and Exchange Commission (SEC) did absolutely nothing to stop Madoff, even though a Wall Street Analyst named Harry Markopolos did all of the SEC’s work for it, mathematically proved that Madoff was running a ponzi scheme, notified the SEC repeatedly in writing, and begged the SEC to put a stop Madoff’s then ongoing crimes. 

Sunday, January 5, 2014

God intervenes in the 2014 edition of the GoDaddy.com Bowl

After Arkansas State blocked a last second field goal attempt by Ball State to win the GoDaddy.com Bowl, the Arkansas State Coach attributed the win to his personal god: “god answers prayers,” he said, when interviewed by the sideline reporter.  This kind of thinking is deeply flawed, very upsetting, and even potentially dangerous. 

First, coach, even if your personal god takes an interest in college football, I can assure you that he/she/it was not watching the GoDaddy.com Bowl.  (I barely watched it, and I probably have less on my plate than a god would.)  Second, and more to the point, how did you get so arrogant that you believe god would choose your people over the fine men of Ball State?  Are they somehow less worthy or less deserving of his/her/its love and rewards? 

The problem, of course, begins with “faith,” i.e., the belief in things without evidence or reason.  The Arkansas State coach, like so many of us, has been taught from a very young age that faith is good and should be respected.  And once we accept that as our starting point, then any claim that is made in the name of faith is as valid as any other.  The results range from the incredibly harmful and even deadly (e.g., religious wars or religiously-motivated terrorist attacks) to the usually harmless but ridiculous (e.g., the belief that god put someone’s cancer into remission, or spared a person from some type of harm, or intervened in a college football game).

The solution, of course, is simple.  As the late, great one argued, faith, in all contexts, should be questioned, challenged, and criticized.  It should not be rewarded, praised, or encouraged.


The post-BCS world: don’t call it a playoff

I loved the pre-BCS college bowl system because, unlike the NCAA tournament in college basketball, half of the teams in college football went home winners.  And, I hate to have to admit it, but I also liked the BCS system.  First, the BCS essentially preserved the bowl system that I loved; second, the BCS typically didn’t screw up my beloved Big 10 – Pac 12 matchup in the historic Rose Bowl; and third, the BCS’s four-decimal place faux accuracy that it used to decide the national championship matchup and other bowl matchups gave me something to ridicule.
 

Wednesday, January 1, 2014

Friends who let friends drive drunk (and the prosecutors who charge them)

According to this story, a 17-year old girl was driving drunk and killed herself, and now two of her friends are charged with misdemeanor crimes for letting her drive when they knew she was intoxicated.  It’s rare to get two issues in one news story.  Here they are: