Monday, September 28, 2015


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.