“You’re scaring them.”

One of the six Eleventh Circuit appeals the FPD’s JV squad is handling is a supervised-release violation that entails internet restrictions. Having not had home internet access for going on five days due to what we call technical difficulties, I can tell you this borders on cruel and unusual. We are quickly arriving at the point where denying sex offenders internet access is tantamount to denying an obscene caller use of the telephone system. One could still function, I suppose, but it would be so daunting that many would just be functionally banished from society, as we tend to do to sex offenders. As for me, I am making due whenever I am away from the office with my original 2G iPhone. While that device would have seemed nothing less than sorcery even six years ago, now it’s barely adequate for everything I need it to do.

Anyway, the JV squad is all up and running. All the briefs are due in early March, so hopefully we will be able to draft replies before the semester is out. The United States Attorney’s Office’s Chief of Appeals and School of Law alumna Anne Schultz (JD ’83) could not have been more accommodating, especially with scheduling. The judges of the Southern District of Florida, particularly the Chief (JD ’78), likewise facilitated the assignment of the cases.

Needless to say, things are a little more hectic than they usually are up here in my Ivory Tower, what with doing practical work for real people. So, when I gave my 235 1Ls the little talk about the Crim Pro exam yesterday, I may have been more emphatic than strictly necessary regarding what needs to be in those essays and, far more importantly, what had better not be in those essays. One of the few 2L-transfer students in Crim Pro who was in Evidence last semester, looked right at me during a pause in my tirade and said, “You’re scaring them.”

The long view

Justice Kennedy’s opinion in last week’s big Supreme Court case began with an epitomical opinion spoiler that proves (once you ignore all the superfluity) that it’s all about how you frame the issue: “Federal law prohibits corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an ‘electioneering communication’ or for speech expressly advocating the election or defeat of a candidate.” I have no idea why the opinion rambles on for pages after that or what more there might be to say. Laws prohibiting speech are not allowed. Everyone knows that.

Skipping over the rest of the Court’s opinion and past the concurrences, Justice Stevens’ first line in dissent informs, “The real issue in this case concerns how, not if, the appellant may finance its electioneering.” Ah. Well, that might actually justify filling some pages. It’s pretty clear already that Justice Stevens is right on this one. And, just as with Daylight Savings Time, I’ve now effectively added an hour to my life by skipping over Kennedy’s syllogistic disquisition.

Since it’s been about two years since I’ve seen a television commercial, the Court’s decision about corporate speech is not going to affect my life at all anyway. The only importance of the decision to me is that it has all eyes on Justice Stevens, as Adam Liptak’s short piece yesterday illustrates. When Stevens was in his 20s, he (along with Byron White, though I’m not clear on whether they knew each other then) was an intelligence officer in the United States Navy in the Pacific Theatre. Now, during his 90th lap around the sun, he is still reading opinions from the high court.

And all of this is excruciatingly important to understanding what the Court is supposed to do and what it actually does. Even though pundits (as Liptak demonstrates) love to slap Stevens with the label of “liberal”—because life is easier to comprehend if you divide everything, as Pink Floyd famously intoned, into Us and Them—the truth is rather more complex. (Stevens was appointed by Nixon to the Seventh Circuit and to the Supreme Court by Ford. He is “liberal” in the sense that he joined the fight against aggressive fascists but the label is otherwise vapid.) Stevens’ vision of America is simply longer and deeper than that of at least some of his brethern, as Liptak also coyly points out:

Justice Stevens, who served in the Navy during World War II, reached back to those days to show the depth of his outrage at the majority’s conclusion that the government may not make legal distinctions based on whether a corporation or a person was doing the speaking.

“Such an assumption,” he wrote, “would have accorded the propaganda broadcasts to our troops by ‘Tokyo Rose’ during World War II the same protection as speech by Allied commanders.”

The reference to Tokyo Rose was probably lost on many of Justice Stevens’s readers.

Following Stevens’ lead, I guess, Liptak declines to enlighten the New York Times readership as to who or what Tokyo Rose was, but the phrase is not in the opinion as merely some Montgomery-Burns-type idiosyncratic ancient pop-culture reference. It is a claim to a jurisprudential philosophy forged as much through study as through experience fighting for the Republic. What I’m saying is, Stevens is Yoda, forced to deal with a bunch of Luke Skywalkers fumbling about the swamp not quite yet clear on what the point of being a Jedi is.

How China is like a racoon

Teaching a bunch of Facebookers about “expectations of privacy” would be ludicrous enough without having to bring raccoons into it. After dealing with Katz we eventually moved on to California v. Greenwood, in which the Court explains that Americans cannot reasonably expect their garbage to be private because of the raccoons:

Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public.

In the game of adjudication, this is an illegal move for lots of reasons, not the least of which is that the habits of scavengers in Laguna Beach are not a proper subject for judicial notice. More fundamentally, it fudges the meaning of “reasonable expectations” to mean something more like “reasonable certainty,” which is well beyond what Katz held or, more to the point, what Harlan took Katz to hold.

If the Fourth Amendment only protects things that we are reasonably certain will remain secret, then nothing is protected because China is the giant raccoon on the planet, snooping through all our stuff. Even though Google pretty much stone-cold busted the Chinese reading our emails or something, the New York Times points out that “Google investigators have been unable to determine the goal: to gain commercial advantage; insert spyware; break into the Gmail accounts of Chinese dissidents and American experts on China who frequently exchange e-mail messages with administration officials; or all three.” Indeed, no one really seems to know much about the cyber-attacks, probably because everyone is too busy uploading nonsense to Facebook.

Thinking about all this, as I get paid to do, I’ve decided that a huge part of the problem with Fourth Amendment analysis is that it is generally taken for granted that “unreasonable” in the text means “not extreme” or “in proportion” or something like that. But that’s just silly. Everything works much better if “unreasonable” is taken to mean “not irrational,” which after all is its primary definition. (I realize that to defend this contention properly I need lots more pages and scores of footnotes. And I’ll eventually get around to that.) Even if America would deem Greenwood’s expectation that no one would rifle through his garbage far from certain, it seems pretty clear that it was not an irrational expectation—like Google’s expectation that China would not try to hijack their servers. Or whatever.

“Don’t kid yourselves. If they didn’t know what they’re doing, they wouldn’t be there.”

David Letterman is absolutely right: “Any time there’s a big stink like this, it’s money. Don’t kid yourselves—it’s all about money.” That’s exactly what’s going on at the Supreme Court this week.

The Court is, like NBC, flip-flopping on a decision it just made and upsetting a lot of people, mainly Antonin Scalia, who I understand is a Conan O’Brien fan. Just last term, Scalia wrote for the Court that the Confrontation Clause requires that chemists preparing lab reports for use in criminal trials are subject to cross-examination. Now that Souter is gone, the Court is looking at the issue again for no other reason, Scalia pointed out during argument, than to overrule the newly minted decision.

And why? Because it’s expensive. Twenty-some states filed an amicus brief saying producing witnesses is costing them a lot of money. And some of the justices actually listened to them. When Richard Friedman, arguing for the petitioners, ventured that “the expense is not inordinate,” Justice Alito rebuked him: “How can you say that? We have an amicus brief from 26 states and the District of Columbia arguing exactly the contrary.” Has Alito even heard of Gideon v. Wainwright, another Sixth Amendment case in which a unanimous Court required the Nation to spend kajillions of dollars? Could it be that Scalia and Stevens are the only people left on the Court who know what it is the Court is supposed to do for the Republic? Does it not even occur to the others that maybe, just maybe, the Constitution deliberately and by design makes it extremely difficult to enforce Prohibition-type laws because the values embodied in that document are in many ways irreconcilable with the tactics necessary to keep people from harming themselves by ingesting things that are bad for them? Do we really have a bunch of beancounters up there measuring the value of our rights in dollars? Are rights no different than a multi-million-dollar late-night television show contract, to be reconsidered and rescinded within months of being recognized?

Predictably and correctly, actions like this paint the Court as a political body, no different than the White House or Capitol Hill, dismissive of logic & reason & precedent & rules & everything but the personalities of those holding the office. Which is why Scalia, correctly, openly from the bench criticized “us for taking this case.” And as for the important and immediate impact of all this: How am I supposed to teach constitutional decisions with a straight face if they get made this way?

Just look at them and sigh

Classes start up again today, so my Thematic iPod selected CSN’s “Teach Your Children” for the drive into work. Today the Federal Public Defender University of Miami Junior Varsity Team begins working on some appeals. Tomorrow, I take on two sections totaling 235 One-Ls for Criminal Procedure Unplugged—one in my usual space and another in our new satellite classroom across campus.

I hate making little rules for class because I hate having to enforce them. Too many rules distract and detract from the mission at hand because people spend time litigating transgressions rather than being productive. For that reason, having “sick days” or “excused absences” is more expensive than having “personal days” or a fixed number of absences forgiven, no questions asked. So, I just give every student four personal days to use for religious holidays or beach days or dental appointments or whatever. But too few rules can also make it impossible to accomplish objectives because people need to be organized if they are going to work collectively.

My current working theory re: the laptops is that the bigger the class, the more of a problem gizmos are. Engaging a group of over 110 without eliminating distractions makes it impossible to cover the material in optimal depth. For one thing, you get constant requests to repeat things that were said while someone was emailing or IMing or shopping or whatever. And that breaks up class and makes it impossible to do anything remotely Socratic. Also, it’s maddening.

But the One-Ls will interpret being deprived of their gadgets as both punitive and arbitrary rather than as the natural result of being gathered for a particular purpose. “Expect whining,” said one colleague. Maybe from some, I suppose. But this is exactly what Nash was talking about when he wrote, “Can you hear? And do you care? And can you see?”

“Never look back. It distracts from the now.”

Each year that one teaches the same subject, the temptation to recycle and repurpose an old exam grows. And recycling is, of course, the mantra of our time. E.g., yesterday, this horror called “Ghetto Supastar” began playing on the gym’s sound system and only two of us there recognized it as a retread of a painful ditty called “Islands in the Stream” written by the Bee Gees for Dolly Parton and Kenny Rogers. (Horrible as IITS was and is, it sounds way better than the new version, I kid you not, plus it at least kind of makes sense. More news to the young: modern-day anthem “Land of Confusion” was written not by the group Disturbed but by Genesis in the mid-80s, lyrics by guitarist Mike Rutherford. Gym Class Heroes’ song “Cupid’s Chokehold” is a just a remix of Supertramp’s 1979 classic, “Breakfast in America”—which remains of course superior in every way.)

Hollywood is addicted to recycling as well. It was bad enough when they got poor old Leonard Nimoy to appear in a tedious caricature where you not only have to suspend disbelief but also thought itself. And I admit that I will go see the reimagined Sherlock Holmes. But now they are retreading anything—even things that were terrible in their original iteration. Hence, we will shortly be treated to an A-Team movie (Exasperated Eye-Roll®).

Granted, I haven’t been doing this all that long, but I’m pretty convinced that recycling is not a good idea. A current essay exam—like the eight-question one I just finished grading—keeps everyone sharp, creative, and up-to-date. As everyone in America knows, Trudy Monk left her husband, Detective Adrian Monk, a videotape saying that, if she died, the guy from Coach killed her. In June 2008, a fractured Supreme Court suggested that, under the right circumstances, the tape would be admissible against Coach over a Confrontation Clause objection. Before mid-2008, there would have been little need to test or even seriously ponder the issue. But this year’s entire exam became centered on the Monk finale, despite the fact that part two aired the day after the exam. Given the chance to tackle something insanely hard, a few students pretty much nailed it.

Law and economics and the future

“It’s not an easy year for lawyers.” That was a Greenberg Traurig partner in Bloomberg a few days ago. The layoffs and cutbacks are reportedly just a start. Hourly-rate billing and lock-step associate salaries have been eulogized as relics of a gilded era when clients forked over robust legal fees to swarms of document-reviewing drones. Nowadays, clients insist such work be outsourced to India, where lawyers trained in the common law will review documents for $30 an hour. Their law schools are pumping out lawyers at more than twice the rate of American law schools. (If I had any entrepreneurial inclinations whatsoever, I would be on the phone to Mumbai putting together a cadre of NLSIU graduates to grade American law school exams.)

No one who has given any thought to how large firms operate can be surprised at the retrenchment. It’s amazing this has gone on this long. The big-firm business model depended on scores of young associates generating inhuman timesheets in the hopes of being among the ragged few who survive to be anointed partner and reap income from a new generation of drones. As an insightful article by someone named James Smith notes, the legal academy’s disengagement with reality has everything to do with this:

As all lawyers know, law schools do not fully prepare lawyers for practicing law. While many law schools have introduced clinical courses, the reality is that law school can only lay the foundation for a legal career. Thus, good law firms always have provided training to their associates.

But no one wants to pay for that anymore. The seeds of implosion were sewn in the heady ’90s when the drones began fleeing the hive for Silicon Valley and already pretty high salaries became irrationally exuberant, to use the phrase of the day. Guess what happens when you raise associate salaries to ludicrous levels. That’s right: you get a 15% rise in law school enrollment in less than a decade’s time. (Previously, it took more than 20 years to see that kind of growth.) And now the whole thing is collapsing with lawyers being laid off and entire firms closing.

Guess what happens next. That’s right. The pressure to revamp legal education is building like Diet Coke and Mentos. Law schools that don’t deploy an ambitious clinical and experiential curriculum disserve their students and will not survive. As I observed once before: non scholae, sed vitae discimus.

Disciplina et discipulī

Last week, President Shalala wrote in her missive to the University, “As we head into the holiday season, I want to update you on where we are just over a year into the worst economic downturn since the Great Depression.” That was just slightly less cheery than Queen Elizabeth’s message to the Commonwealth: “Each year that passes seems to have its own character. Some leave us with a feeling of satisfaction; others are best forgotten.”

But, whatever the case with campus and the English-speaking world, it was a big year for the School of Law. First, Captain Jellico’s interregnum of austerity ended none too soon, and we got our coffee machines and automatic doors back. The new Powers That Be dealt with the superfluity of new students inherited from the previous shift by rolling up their sleeves and personally teaching first-year classes. In one move, Elements was revamped and a team of super-gunner 1Ls self-selected for incubation in a new classroom we commandeered. The Legal Reading and Writing program was professionalized. We both furthered and spoiled the Business School’s dream of a snazzy new building by offering to buy half of it. (Negotiations are on-going. We have our best people on it. The President’s gloomy letter mentions it as though it’s just about a done deal.) The Eleventh Circuit approved my new appellate clinic. The adversarial system of justice repelled an assault from the Department of Justice. The influence in the academy of one of our own was lauded. The U became our logo officially. Oh, and I got tenure along with enough comedic material to draft a passable screenplay about academic politics.

’Tis the season

Friends, family, people at the gym all keep asking how my “vacation” is going—as though I teach kindergarten or something. Well, let me tell you: I had basically divided all the time until next semester between making edits to the criminal procedure textbook that West (indeed, the world) is expecting around March and grading the evidence exams. (Only 106 to go!) But then I got a cheery email message from the law review publishing my next article with “just a few relatively minor questions” that I will get to very, very soon, I promise. So, vacation is awesome, and thanks for asking.

The good news is that I got through the tiny percentage of exams that were handwritten already, so it’s pretty much downhill from now until the new year. Kids these days generally type their exams on computers that have to be locked down with special software so the students don’t Ask Jeeves or each other for the answers. And this year we got the good exam-writing software that runs natively on Macs as well as PCs and has this great secret feature that I learned about last year at DU: You can have all the exams converted into PDFs. Then, you just throw them into your Dropbox folder and, boom, just like magic, you can grade them anywhere, even on your iPhone, though I haven’t yet had to resort to that. I did grade a few the other day on the Fourth Floor Faculty Sundeck® using the laptop, which made the chore much less tiresome. (If you’re reading this from up north somewhere: Yes, it’s still pretty balmy here.) You’d be surprised how much time you can save by grading the exams with full-screen Quick Look rather than flipping through actual pages, particularly when it’s windy out, as it tends to be if you’re on the Bay.

The rock star in our midst

Every January, law professors from all over the country fly to one of America’s great cities and spend four or five days wandering around and bumping into each other at one of those giant corporate hotels that all look the same. This January we’re all going to a Marriott or a Hilton or a Grand Hyatt or something in New Orleans. (As I’ve said before, my being a team player doesn’t mean I’m not going to do everything my way. So, I’ll be staying at a nice little place nearby but not too nearby.) The conference is put on by the Association of American Law Schools, whose other big contribution to society is to stage annually what is called the “meat market”—a speed-dating-type event in Washington, D.C., at which law schools interview prospective law professors ad seriatim for about 15 minutes each to decide whether they should be flown to campus (just like on-campus interviews). The January event always has a theme that is abstract enough to be meaningless (this year’s is “Transformative Law”). The vagueness of purpose makes it possible to offer a packed schedule of pontification on anything the law professors want to lecture about.

I know, I know: you’re all set to book your ticket. Don’t bother. I’m afraid these events are not open to the public. Last year in San Diego, officious AALS dweebs tried to keep Reuben Camper Cahn, the Federal Defender of San Diego, from attending a lecture given by Professor Edwin S. Cahn, his very own father. Needless to say, the schoolmarms were unsuccessful in holding that particular line, but the fact remains that these are V.I.P. events with appropriately sophisticated crowd-control measures in place.

Now that you’ve been warned about trying to crash this party, you’re ready for the really big news, which is that the School of Law’s own rock star, Professor Francisco Valdes, is being honored in The Big Easy by the Society of American Law Teachers (yes, there are way more law-professor organizations than you thought strictly necessary) with their Great Teacher Award. SALT’s effusive press release may yet be an understatement regarding Professor Valdes’ work: “His self-styled ‘outsider jurisprudence’ is perhaps the most robust intervention in questions of racial justice, sexual self-determination, gender equity, and economic emancipation.” The School of Law, of course, bought a table and the Powers That Be have confirmed my seat at it. This is important because SALT reports that its dinner feting F. Valdes completely sold out about a month or so after the announcement. And, SALT reports, that is completely unprecedented and caught them somewhat by surprise. I told you he’s a rock star.