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Saturday, August 30, 2014

Lawfare Podcast on the Law of War . . . Against Zombies

I highly recommend the most recent Lawfare Podcast which is entitled, "Bone-Crushing Zombie Action."

Shane Harris moderates the podcast in which Benjamin Wittes, Robert Chesney, and Jennifer Daskal discuss issues that would arise in the event of a military conflict between the United States and zombies.

The panelists discuss numerous issues, including whether the President would have the authority to order military force against zombies, whether zombies can truly considered to be engaging in "armed" conflict against the united states, and whether military action would potentially violate the zombies' due process rights or international laws. Important considerations throughout the discussion include whether the zombies are human or not and whether non-lethal actions against zombies are feasible.

My favorite line in the podcast is from Benjamin Wittes. A portion of the podcast addresses the issue of how much government surveillance should be permitted in light of the zombie threat. Wittes points out that privacy is an important consideration, but that "I prefer to be not eaten on camera than to be lunch in private." There was also some pretty good discussion about the case, In re Neagle.

If you are looking for both laughs and some good insight into an alternate perspective on laws of war, I highly recommend that you listen to the whole thing.

How Many States Require Warrants for Government Drone Use?

In the process of reporting on the California Assembly's approval of a bill that would require law enforcement officers to get a warrant before using drones, The Guardian states:

A total of 13 states have passed some form of legislation restricting the use of drones by public agencies, of which nine have specifically sought to rein in police snooping by requiring officers to seek warrants before using the devices. 
The nine states with warrant requirements are: Florida, Idaho, Illinois, Iowa, Montana, Oregon, Tennessee, Utah and Wisconsin.
The claim that only nine states have warrant requirements is incorrect. In fact, 11 states have warrant requirements. The article fails to mention Indiana and Texas.

Friday, August 29, 2014

Idaho's Sneaky Law on Drones

Before work begins, I am trying to quickly finish up and send out a paper on state regulations of government drone use. Part of this process involves my researching laws restricting drones that states have passed. I have blogged about many of these states, but I do not believe I have addressed Idaho's law until now.

Initially, I thought that Idaho's law regulating the use of drones was fairly restrictive. Here is the text of Idaho's restriction:

(2)(a) Absent a warrant, and except for emergency response for safety, search and rescue or controlled substance investigations, no person, entity or state agency shall use an unmanned aircraft system to intentionally conduct surveillance of, gather evidence or collect information about, or photographically or electronically record specifically targeted persons or specifically targeted private property including, but not limited to: 
(i) An individual or a dwelling owned by an individual and such dwelling's curtilage, without such individual's written consent; 
(ii) A farm, dairy, ranch or other agricultural industry without the written consent of the owner of such farm, dairy, ranch or other agricultural industry.
The law goes on to provide for statutory damages of $1,000 in the event of a violation of the law -- so even if somebody cannot point to personal harm from their being observed by a drone, that person will not need to prove damages in order to obtain a reward.

Gregory McNeal correctly points out that this law is very restrictive of private drone use. In particular, it would prevent private parties from using drones to obtain aerial photographs or information about agricultural industries. McNeal notes that this could prevent the discovery of illegal activities.

The part of the law that caught my attention, however, is that the bill contains an exception to the warrant requirement when the government is engaging in "controlled substance investigations." This means that quite a bit of government drone use will be unrestricted by the warrant requirement. The most likely scenarios in which I can foresee the government using drones is to fly over people's houses and yards, or to monitor the movement of suspects.

If the government uses a drone to look into somebody's yard to see if drugs are being grown there, this would not violate the statute's warrant requirement because this would be part of a controlled substance investigation. And if the government is tracking the movements of somebody suspected of trafficking drugs, the statute would not require the law enforcement agency to obtain a warrant before using drones to track that person's movements.

While the Idaho legislature may claim that it has taken action to curtail the government's use of drones, the careful wording of the bill means that law enforcement still has a great deal of leeway to use drones in criminal investigations.

Thursday, August 28, 2014

Our Generation's Jarndyce and Jarndyce is Over

So reports Gerry Beyer in his post, "Anna Nicole Smith's Twenty Year Battle Finally Ends."

Summing up the story, Beyer writes:
After nearly twenty years of contentious debate in the courtroom, a federal judge recently ruled Anna Nicole Smith’s estate would not receive millions of dollars from the estate of E. Pierce Marshall, the son of Anna Nicole’s late husband, J. Howard Marshall II.

My comparison of this case to Dickens' Jarndyce and Jarndyce in Bleak House is a reference to the beginning of Justice Roberts' opinion in Stern v. Marshall -- where this case managed to make its way before the highest court in the land:

This "suit has, in course of time, become so complicated, that ... no two ... lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause: innumerable young people have married into it;" and, sadly, the original parties "have died out of it." A "long procession of [judges] has come in and gone out" during that time, and still the suit "drags its weary length before the Court." 
Those words were not written about this case, see C. Dickens, Bleak House, in 1 Works of Charles Dickens 4-5 (1891), but they could have been. This is the second time we have had occasion to weigh in on this long-running dispute between Vickie Lynn Marshall and E. Pierce Marshall over the fortune of J. Howard Marshall II, a man believed to have been one of the richest people in Texas. The Marshalls' litigation has worked its way through state and federal courts in Louisiana, Texas, and California, and two of those courts—a Texas state probate court and the Bankruptcy Court for the Central District of California—have reached contrary decisions on its merits. The Court of Appeals below held that the Texas state decision controlled, after concluding that the Bankruptcy Court lacked the authority to enter final judgment on a counterclaim that Vickie brought against Pierce in her bankruptcy proceeding.[1] To determine whether the Court of Appeals was correct in that regard, we must resolve two issues: (1) whether the Bankruptcy Court had the statutory authority under 28 U.S.C. § 157(b) to issue a final judgment on Vickie's counterclaim; and (2) if so, whether conferring that authority on the Bankruptcy Court is constitutional.
Now, at last, the case is over.

Over for good . . . probably.

Do Police Need a Warrant for Aerial Surveillance in California?

The answer to this question is important in light of the California legislature's recent passage of a bill restricting the use of drones by law enforcement agencies. If existing California law already requires police to obtain a warrant for aerial surveillance, then this bill would not seem to make much of a difference.

Normally, I would quickly answer that police are not constitutionally required to obtain a warrant before engaging in aerial surveillance. But after some searching of California case law, I found that the answer is a little bit more complicated -- although I am still fairly sure that the answer is no.

My Initial Answer

My initial instinct to conclude that police in California do not need a warrant to carry out aerial surveillance is based on the 1989 Supreme Court case of Florida v. Riley. There, the Court held that officers did not carry out a Fourth Amendment search when they photographed a suspect's backyard from a helicopter that they were flying within navigable airspace. The plurality held that people do not have a reasonable expectation of privacy from this sort of surveillance, and O'Connor's concurrence stressed the importance that the helicopter be flown in a manner consistent with the common flying habits of the public at large.

For this reason, I've been of the opinion that police in California can conduct aerial surveillance of suspects so long as their plane or helicopter is flown in navigable airspace in accordance with the applicable regulations.

California's Initial Case Law

During an informative Twitter exchange earlier today, I learned about a California Supreme Court case that potentially complicates the answer to this question. In People v. Cook, the California Supreme Court held that a person has a reasonable expectation of privacy in his or her fenced-in backyard. The court held that aerial surveillance of the yard -- even from 1,000 feet in the air -- intrudes on the curtilage of the home and violates a reasonable expectation of privacy. The Court held that this was unconstitutional under Article 1, Section 13 of the California Constitution.

Cook was decided in 1986. It was later narrowed by the California Supreme Court in People v. Mayoff, where the Court held that aerial surveillance of open fields was permitted under the California Constitution. The Cook holding was further narrowed by People v. Venghiattis, where the California Court of Appeal held that Cook's reasoning did not apply to an unfenced yard where marijuana was being grown 100 feet from the suspect's house.

The Impact of Proposition 8: The "Truth in Evidence" Rule

More important than these factual distinctions, however, are the legal developments that took place in California after Cook. Soon after Cook, Proposition 8 added the Truth in Evidence Rule to the California Constitution, which can now be found at Article 1, Section 28(f)(2). In In re Lance W, the California Supreme Court construed this rule to require that evidence can only be excluded in a criminal trial if it is obtained in violation of the Federal, rather than the state, Constitution. Mayoff and Venghattis noted this change, and concluded that Cook no longer applied, since its holding was based on the California Constitution.

The California Court of Appeal took further note of the impact of the Truth in Evidence Rule in the 1986 case of People v. Sabo. While the Sabo court held that evidence obtained from a low-flying helicopter violated a reasonable expectation of privacy, the court reached this conclusion because the helicopter was not within navigable airspace. The court noted in footnote one of its opinion that it was basing its opinion on the recent Supreme Court case, California v. Ciraolo, and that Cook would not warrant the exclusion of evidence if the admission of the evidence was consistent with the holdings of the United States Supreme Court.

In the 1988 case of People v. Romo, the California Court of Appeal confronted a case very similar to Cook. There, an officer conducted aerial surveillance of a suspect's fenced-in yard, and took pictures of the yard where the suspect was growing marijuana. The court noted that the marijuana was farther from the suspect's house than the marijuana in Cook, but further noted that Cook did not mandate exclusion of the evidence because its holding was based on the California, rather than the Federal, Constitution. In light of the Truth in Evidence Rule and the interpretation of that rule in Lance W., the Romo court held that Cook no longer applied.

This series of cases explains the California Court of Appeal's decision in People v. McKim. There, the court held that no Fourth Amendment search took place when officers spotted marijuana growing "30-40 yards" from the suspect's "rural residence." While the court could have relied on Venghiattis to factually distinguish Cook, the court cited neither Cook nor Venghiattis, and focused instead on the first case I mentioned in this post: the United States Supreme Court case of Florida v. Riley.


In light of these cases and legal developments, I am inclined to conclude that California law does not restrict aerial surveillance by government officers beyond any restrictions required by the Supreme Court's existing case law.

Admittedly, I could not find any California Supreme Court case that explicitly overturns Cook. And all of the California Court of Appeals cases that noted the significance of the Truth in Evidence Rule as overturning Cook involved scenarios that could have been factually distinguished from the Cook case.

But in light of the Truth in Evidence Rule, I don't think that Cook would apply if a court were to consider the same facts today. While the California cases have involved facts that are potentially distinguishable from Cook, Florida v. Riley involved a case where marijuana was growing a mere "10 to 20 feet" from the defendant's home in the defendant's fenced-in yard -- a fact pattern that is extremely similar to that in the Cook case. California courts have consistently held that the Fourth Amendment, rather than Article 1, Section 13 of the California Constitution, governs whether the police carry out a search. If the aerial surveillance in Riley was not a search, then the aerial surveillance in Cook would probably not be considered a search.

All of this means that government officers can conduct aerial surveillance of people as long as they are flying within navigable airspace. This also means that California's AB 1327 -- which would require the government to obtain a warrant before using drones for surveillance in criminal cases -- could have a meaningful impact on the law governing searches and surveillance.

UPDATE - 8/28/2014

I have made changes to the sentence describing Justice O'Connor's concurrence in Florida v. Riley.

California Legislature Approves Bill Limiting Use of Drones by Law Enforcement

The Los Angeles Times reports:

Lawmakers on Wednesday approved a measure that would regulate law enforcement's use of drones, including requiring agencies to get warrants for most uses of the unmanned aerial vehicles.
. . .   
The bill requires the government to get a warrant to use drones for surveillance, except in cases of envronmental emergencies, such as oil spills or chemical spills.

The bill is AB 1327. The most recent text of the bill is available here.

I have blogged previously about California's various drone law proposals. In this post I describe the earlier version of AB 1327, and in this post, I evaluate the bill and the challenges it may face.

As I mentioned in those previous posts, AB 1327 introduces notable restrictions on the government's use of drones because its warrant requirement is not limited to situations where those monitored by the drones have a reasonable expectation of privacy. Were the bill's application restricted to situations where people have a reasonable expectation of privacy (as would be the case with SB 15, an alternate bill regulating drone use), the bill would make very little practical difference to what law enforcement officers could do. This is because the government would be able to use drones to view people's activities on the ground without raising any constitutional problems, since the government is permitted by the Fourth Amendment to view people from helicopters.

Much of AB 1327 remains the same, so most of my prior commentary applies to the current version of the bill. In this post, I would like to share a few reactions to this version of the bill, and some predictions of whether it will be signed into law.

Wednesday, August 27, 2014

"Life as a Rural Lawyer"

The title of this post is a partial quote of this Washington Post article's title. In the article, Judge Donna Taylor describes the need for rural lawyers and her experience as a private attorney, county attorney, and judge in rural Nebraska.

The article begins:

There’s a great deal of need for young lawyers in rural communities. There’s plenty of work to go around. To a law school student who is trying to decide, ‘Should I leave the city for a small town?’ I’d say: Give it a try.
Judge Taylor goes on to describe the unique experience of practicing law in a rural setting, and I recommend that you read the whole article.

I grew up in Iowa, which, like Nebraska, is experiencing a severe shortage of rural lawyers. The Iowa State Bar Association notes that declining numbers of rural lawyers forces residents to drive longer distances. Moreover, town governments need to pay more to bring in attorneys to handle municipal issues.

The Wall Street Journal notes that law schools in Iowa are teaming up with the Iowa State Bar Association to get students internships and jobs in rural Iowa counties. Iowa Now also describes the program, and quotes several students who are involved. A more dramatic solution that's been proposed is to do away with the Iowa bar exam for those who graduate from an in-state law school and remain in Iowa after graduation.

While these programs may help, there are still difficulties finding rural practitioners who want to be a part of these programs. And law school culture is largely focused towards getting students careers with large firms. The more students that get these jobs, the better a network with large firms the school can boast, which leads schools to invest a lot of their time and resources in maintaining a relationship with these large firms. Moreover, students typically view job offers from large, private firms as the ideal outcome of a legal education, and may view practice in a rural setting as a sign of failure.

Providing legal services to rural community is a challenge that will need to be addressed. Programs that facilitate connecting students to rural communities are a step in the right direction. But broader changes in attitudes and practices will be needed before this problem can be solved.

Tuesday, August 26, 2014

California Bill Requiring Cell Phone "Kill Switches" Signed Into Law

From The Hill:

California has become the first state in the nation to require that cellphones come with a preloaded “kill switch." 
Gov. Jerry Brown (D) on Monday signed into law a bill requiring every smartphone sold in the state to include the anti-theft feature, which makes phones inoperable, by July, his office announced.

Supporters of the mandatory kill switches say that they make phones less attractive to thieves and would help reduce theft.
I blogged about this bill earlier, and concluded that it was a good idea. By requiring kill switches on smartphones, stolen smartphones will be virtually worthless, since they will most likely be deactivated once they are stolen. This would render the phone useless to the thief or to anybody to whom the thief hopes to sell the phone.

The Hill notes that there is some opposition to the bill. Some are worried that this requirement will give the government power to silence protesters, citing recent events in Ferguson. And others argue that a better way to employ kill switch technology is to make it optional, so as to avoid overly hasty deactivation of phones. For example, Minnesota passed a law that requires all smartphones to have the ability to enable kill switch technology, but did not require that the technology be pre-loaded onto the phone when sold.

While both of these concerns have merit, the California law is still a good idea. While there is a possibility that police could abuse this technology to silence protesters, I think that the probability of this happening is low. Police would need to gain electronic access to the phones through the phone company and then obtain access to each phone they wish to disable. This would require preparation and coordination, rather than the impulsiveness of the decisions by police in Ferguson to silence protesters. While government abuse of kill switch technology may be possible, I think that it is less likely to occur than other forms of suppression.

From an incentives perspective, mandating kill switch technology on phones is preferable to requiring an option for the technology. The main reason for this law is to reduce theft of smartphones by removing the incentive to steal the phones. If a phone will become useless once it is stolen, there is very little reason to steal it. But if there is a possibility that the phone's owner has not downloaded kill switch technology, then stealing the phone may be worth it, since there is a possibility that the user did not install the kill switch technology. By mandating kill switch technology on all smartphones, California essentially guarantees that all stolen phones (sold after July 2015) are worthless. And this could have a substantial impact on incentives to steal these phones in the first place.

It will be interesting to see how theft rates of smartphones are impacted in the wake of this new law. Hopefully this law leads to a decline in smartphone theft, and if it does, I would not be surprised to see other states pass similar laws.

UPDATE: 8/27/2014

Here is the New York Times' report on the law, which includes additional coverage of the debate over the bill's merits, as well as some statistics regarding cell phone thefts and the impact of deterrence measures.

Monday, August 25, 2014

Pronouncing "Daubert": An Important Lesson You May Not Learn in Evidence Class

Last week I wrote a post on expert evidence. In doing so, I cited Daubert v. Merrell Dow Pharmaceuticals, which is the case establishing the most widely-used test for admitting experts' conclusions and opinions.

While I am fairly familiar with the legal test that Daubert establishes, I realized after writing that post that I was not sure how to pronounce "Daubert." I've heard the case pronounced in a variety of ways. For intance, here the case is pronounced so it sounds like "Daw-burt" and here it's pronounced "Dow-burt. In this video the speaker notes that while he pronounces it "Daw-burt," there are those who prefer "Daw-bear." He says that he hears this pronunciation from those below the Mason-Dixon line, which surprised me -- since I thought he was referring to people from Chicago. I've also heard a "Dough-burt" variation, though I could not find any Youtube examples.

I remember a lot of what I learned in evidence class, but I unfortunately do not recall whether I was taught which of these varying pronunciations is correct. It is very possible that even if this was covered, it slipped my mind at the time, since the pronunciation of "Daubert" was not a top priority when it came to preparing for the exam. I decided that I would look into this issue in the event that I ever need to pronounce the name of this case in court or in conversation.

Fortunately, I was able to find an authoritative source on the subject. Michael Gottesman, the attorney for the plaintiffs in the Daubert case, wrote a 1994 article in the Emory Law Journal entitled, Admissibility of Expert Testimony After Daubert: The "Prestige" Factor. (43 Emory L.J. 867). At the beginning of that article, he confronts the pronunciation of "Daubert" head on:
Among the handful I've been fortunate to represent in this new capacity have been the families of Jason Daubert and Eric Schuller, the petitioners in the case that has mistakenly come to be called the “Dough-bear” case. My principal contribution to this Symposium is to report that the folks who brought this case to the Supreme Court pronounce their name “Dow-burt”-or, as some might say, exactly as it's spelled. The penchant for foreign fancies has caused many to show their expertise in French pronunciation at the expense of this all-American family.
The confusion was hardly mitigated during the Supreme Court argument. The first Justice to use the name in framing a question chose “dough-bear,” and I faced the tricky tactical question of whether to spend my precious time (and all hope of kindly reception) correcting this judicial mispronunciation. I opted not to, and the rest of the Justices all then assumed, gallingly, that the Gallic was apropos. 
Let me, then, use this occasion to make amends to my clients. The family's name is not dough-bear. Whether this will (or should) affect the way people pronounce the name of the Supreme Court's opinion is, of course, another matter. Do the litigants or the Court own title to the pronunciation of the name of a Court opinion?
So -- it looks like "Dow-burt" is correct. Go forth and spread the news, and don't hesitate to correct your colleagues and loved ones.

But I would like to mention one final caveat that will guide my own practice. If I am ever in court and if I hear a judge pronounce the case "Daw-burt," or even "Dough-bear," I'll do my best to conform my own pronunciation to the judge's. I recommend that others do the same.

Friday, August 22, 2014

"Brain Fingerprinting" as Evidence of Criminal Guilt?

Via Elizabeth Joh, I learned about the company, Brainwave Science which specializes in "brain fingerprinting" technology. According to the company, brain fingerprinting can assist in determining whether a suspect is guilty of a crime. From the company's website:

Once a suspect is in custody, Brain Fingerprinting can accurately establish whether or not the suspect has knowledge of the crime. This saves time and money on investigations, while keeping dangerous criminals off of the streets. 
Conventional fingerprinting and DNA testing match physical evidence from a crime scene with evidence found on the perpetrator. While these are tested and accepted methods, they are only available in roughly 1% of crimes. It is estimated that Brain Fingerprinting would be applicable in 60%-70% of these same cases, thus having the potential to make a profound affect on the criminal justice system. 
The advantages to Brain Fingerprinting are that it offers higher accuracy than other techniques, is non-invasive and has been ruled admissible in the US court.
There are some . . . interesting claims being thrown around in these paragraphs (I want some more detail on that fingerprinting and DNA evidence only being available for 1% of crimes). But I was particularly intrigued by the last paragraph, which notes that brain fingerprinting has been ruled admissible "in the US court" (whatever jurisdiction that's supposed to mean). The website also claims that the technology has been used to obtain convictions.

I was intrigued by these claims, since the Brainwave Science is making some pretty outrageous far-reaching claims about the power of its technology. And I have reason to doubt the company's claims of legal success because I think that this sort of evidence would raise serious evidentiary concerns.

In the rest of this post, I address Brainwave Science's claims. I determine that some of the company's claims are highly misleading, while others are a bit more borderline. In any event, serious questions remain as to whether this sort of evidence would be admissible in trial.

Thursday, August 21, 2014

Search Results on Westlaw Next Return Unrelated Material; Vary Between Searches

A few days ago, I was struck by a question: how often do courts use the word, "balderdash" in their opinions, in what context do they use this word, and are there any trends that can be uncovered from a systematic review of cases that mention "balderdash?" I then wondered whether anybody had written about this -- a quick Google search revealed a close call from a January post by John Browning (inspired by Scalia's use of "argle-bargle" in United States v. Windsor) -- but nothing on "balderdash." In light of this, I thought that it might be worthwhile to write a paper that would answer my questions.

This, after all, is the kind of important legal question that keeps me up at night.

While I was researching this question, I found that Westlaw Next was behaving strangely. In two separate searches for "balderdash," the database returned quite a few cases that did not mention the term at all. Even more strangely, two separate searches returned varying numbers of results because they returned two different sets of these unrelated cases.

I've seen authors demonstrate the prevalence or absence of a term or phrase in the legal world by running a search of a term on Westlaw and counting the results. It appears that Westlaw Next's way of generating search results means that this is no longer a reliable method.

After the break, I have included the portion of my paper where I discuss this phenomenon in more detail -- listing the specific cases and numbers of results in each search:

Wednesday, August 20, 2014

Invasion of Privacy From Posting Honeymoon Photos on Facebook

I have a new post up at Techlawgic. Here is the outline:

An Italian court recently ordered a woman to remove photos of her and her husband on their honeymoon because the husband did not give his permission for her to post the photos. 
This decision, which is 'unprecedented' in Italian law, would almost certainly fail in the United States. 
This case may illustrate differing views on privacy between the United States and Europe, or it may simply be incorrect.
In the post, I describe how these facts would not give rise to a successful action for invasion of privacy under misappropriation and intrusion on seclusion theories. An article on the case I write about is available here.

Monday, August 18, 2014

"Every Law Student is on Law Review": Why Law Students Should Blog

The quoted portion of this post's title is the title of this post by Kevin O'Keefe at Real Lawyers Have Blogs. In his post, O'Keefe mentions this article from the Stanford Report. The article discusses how the digital revolution has given students the opportunity to write about virtually any subject, and to actively share their writing with professional communities.

O'Keefe applies the article's discussion to the legal profession:

Historically, law students applied to be on law review as a resume enhancer leading to clerkships and high paying jobs. Those with top grades and and the “right stuff” as determined by law professors and law review veterans got “on law review.” 
Articles would published by only some students and the audience who would read them would be limited and would come, if at all, long after publication. The goal was really show and tell, not necessarily to contribute to legal dialogue. 
Now a mid tier student with passion for an area of the law or societal niche can flip up a WordPress blog and have at it. 
They’ll immediately connect with other like minded thought leaders whether law students, law professors, lawyers, and business/societal leaders. Peer review is immediate and wide. Their content will be seen immediately, commented upon via social media, and they’ll join a national or, in some cases, world-wide conversation on the niche.
I agree with O'Keefe, and I think that all law students should give blogging serious consideration whether or not they are on law review. Speaking from my own experience, I feel comfortable saying that blogging gives students the chance to engage with the law on a level beyond their coursework. It also encourages them to keep abreast of current events and legal developments.

Beyond O'Keefe's important discussion of the impact students' blogging can have in the professional community, students' blogging has further value when it comes to interviewing or writing cover letters. In these contexts, students are more likely to excel if they can demonstrate their enthusiasm for a particular area of law. Blogging encourages students to learn about particular areas of law and to remain aware of developments in the field. And the blog itself serves as a tangible indicator of this engagement.

Moreover, blogging gives students the opportunity to practice legal writing. While virtually all law schools require students to take some sort of legal writing course, writing is a skill that demands constant practice and refinement. One course may teach students the basics of writing memoranda and briefs, but once that course is done, students must rely on their own initiative to develop their skills further. Blogging is one opportunity to do legal writing on a regular basis.

Legal writing courses will almost certainly teach students how to write structured briefs and memos, but there often will not be enough time to teach students how to write about the law in a clear, understandable manner for clients and other lay readers. Blogging about the law, and communicating arguments about the law to the public at large, gives students the opportunity to write about the law in a non-technical manner.

These are just a few points that I think are worth considering along with the benefits of blogging that O'Keefe describes. For me, blogging has been a wonderful experience, and I encourage all law students to give it a try.

Montana's Maxims of Jurisprudence

Earlier in the summer, I blogged about California's Maxims of Jurisprudence. As I discussed in that earlier post, California's maxims were an interesting collection of maxims of equity, canons of statutory interpretation, and other quizzical bits of advice.

I recently noticed that the Thurgood Marshall Law Library took note of my blog post and asked whether any other states have similar maxims. A quick check reveals that Montana and Guam appear to have similar lists of maxims. In this post, I will focus on Montana's maxims of jurisprudence.

Montana's legislature has a fairly approachable interface for searching the State Code. You can find Title 1, Chapter 3 of the Code here, which contains links to the purpose and text of Montana's maxims of jurisprudence.

Montana Code Annotated 1-3-101 notes that the "maxims of jurisprudence set forth in part 2 of this chapter are intended not to qualify any of the other provisions of this code but to aid in their just application."

As for the text of the maxims themselves, I have reproduced the entire list below. They are all contained in Montana Code Annotated Title 1, Chapter 3, Part 2:

1-3-201. Obsolete reason, obsolete rule. When the reason of a rule ceases, so should the rule itself.

1-3-202. Same reason, same rule. Where the reason is the same, the rule should be the same.

1-3-203. Change in purpose. A person may not change the person's purpose to the injury of another.

1-3-204. Waiver of benefit of law. Any person may waive the advantage of a law intended solely for that person's benefit. A law established for a public reason cannot be contravened by a private agreement.

1-3-205. Limit on rights. A person shall so use that person's own rights as not to infringe upon the rights of another.

1-3-206. Consent. A person who consents to an act is not wronged by it.

1-3-207. Acquiescence. Acquiescence in error takes away the right of objecting to it.

1-3-208. Own wrong -- no advantage. A person may not take advantage of the person's own wrong.

1-3-209. Fraudulent dispossession. A person who has fraudulently dispossessed oneself of a thing may be treated as if the person still had possession.

1-3-210. Acts on one's behalf. A person who can and does not forbid that which is done on that person's behalf is considered to have authorized it.

1-3-211. Acts of others. No one should suffer for the act of another.

1-3-212. Benefit -- burden. A person who takes the benefit shall bear the burden.

1-3-213. Grant includes essentials. One who grants a thing is presumed to grant also whatever is essential to its use.

1-3-214. Wrong -- remedy. For every wrong there is a remedy.

1-3-215. Equal in right or wrong. Between those who are equally in the right or equally in the wrong, the law does not interpose.

1-3-216. Preference to earliest. Between rights otherwise equal, the earliest is preferred.

1-3-217. Beyond control. A person is not responsible for that which a person cannot control.

1-3-218. Vigilance. The law helps the vigilant before those who sleep on their rights.

1-3-219. Form and substance. The law respects form less than substance.

1-3-220. What ought to have been done. That which ought to have been done is to be regarded as done, in favor of a person to whom and against a person from whom performance is due.

1-3-221. Apparent nonexistence. That which does not appear to exist is to be regarded as if it did not exist.

1-3-222. Impossibilities. The law never requires impossibilities.

1-3-223. Idle acts. The law neither does nor requires idle acts.

1-3-224. Trifles. The law disregards trifles.

1-3-225. Particular versus general. Particular expressions qualify those which are general.

1-3-226. Preference for contemporaneity. Contemporaneous exposition is in general the best.

1-3-227. Smaller within larger. The greater contains the less.

1-3-228. Superfluity. Superfluity does not vitiate.

1-3-229. Certainty. That is certain which can be made certain.

1-3-230. Void act. Time does not confirm a void act.

1-3-231. Principal. The incident follows the principal and not the principal the incident.

1-3-232. Avoiding voidness. An interpretation which gives effect is preferred to one which makes void.

1-3-233. Reasonableness. Interpretation must be reasonable.

1-3-234. Third parties -- who suffers. When one of two innocent persons suffers by the act of a third, the person by whose negligence it happened must be the sufferer.
Like the California maxims of jurisprudence, the Montana maxims are a mixture of maxims of equity, canons of statutory construction, and other pieces of advice.

While there is considerable overlap between California's and Montana's maxims, I notice that some of California's most mysterious maxims ("3530. That which does not appear to exist is to be regarded as if it did not exist" ; "3547. A thing continues to exist as long as is usual with things of that nature") are not present in Montana's maxims. There is some overlap in mysterious maxims, however, on the "certainty" front, as Montana's quizzical 1-3-229 maxim ("That is certain which can be made certain.") is the same as California's maxim 3538.

Like the California maxims, Montana Code Annotated Title 1, Chapter 3, Part 1 precedes the text of the Montana maxims and notes that the maxims serve only to "aid the just application" of Montana's laws. A quick check of the notes of decisions, however, fails to uncover Montana case law as clear as that in California holding that the maxims of jurisprudence are of little use when the language of a statute is clear. 

Furthermore, it seems that some of Montana's maxims have been cited extensively. For intance, 1-3-281 -- the "vigilance" maxim -- has been frequently cited in cases that establish the existence of the defense of laches. In light of these frequent citation, and in the absence of strong case law disapproving of the maxims, it looks like Montana litigators who cite Montana's maxims may be taken a bit more seriously than California litigators who cite California's maxims.

These are just a few observations after my quick run-through of Montana's maxims of jurisprudence. Like the California maxims, Montana's maxims are an interesting insight into guiding principles for the interpretation and application of the law, and they can serve as a good starting point for those interested in learning more about canons of statutory construction and maxims of equity.

Saturday, August 16, 2014

Technological Advances and Incentives to Steal

From the CrimProf Blog, I learned of this interesting article in the New York Times from a few days ago that explains a notable decline in the rate of car thefts over the past twenty years. From the article:

The most important factor is a technological advance: engine immobilizer systems, adopted by manufacturers in the late 1990s and early 2000s. These make it essentially impossible to start a car without the ignition key, which contains a microchip uniquely programmed by the dealer to match the car. 
Criminals generally have not been able to circumvent the technology or make counterfeit keys. “It’s very difficult; not just your average perpetrator on the street is going to be able to steal those cars,” said Capt. Don Boller, who leads the New York Police Department’s auto crime division. Instead, criminals have stuck to stealing older cars.
The article goes on to note that while thieves still target older cars, the value of these cars' parts is on the decline as time goes on, which reduces the profitability of car-theft rings and chop shops. This means that while older cars can still be stolen, the likelihood of them being targeted will decline as their parts lose value.

This particular explanation may not apply to all thefts -- the article notes that cars stolen in California are often taken for use in drug trafficking -- but it is good to see that a decline in thefts is occurring as the profitability of stealing cars declines.

This story is also worthy of attention in light of a push for smartphone manufacturers to include "kill-switch" technology in their phones. This technology would allow smartphone users to disable their phones remotely in the event that they are stolen, rendering the phone useless to the thief or the thief's customers. California is in the process of passing a bill that would require this technology in new smartphones -- the bill recently passed in the Senate and is now before the governor. For more on the California bills, I recommend this coverage by the Washington Post and CNET.

The Times presents convincing evidence that removing the profit from stealing certain cars deters the theft of those cars. Kill switches remove the profit from stealing phones by rendering them unusable once stolen, and would likely deter the theft of smartphones in a similar manner.

The Times' report on declining auto theft rates is encouraging news (especially to me, as an owner of a Honda Civic that is just new enough to be an unappealing target for thieves). I hope that makers of smartphones and legislatures considering bills similar to California's learn their lesson from vehicle technology so that this type of theft deterrence can be applied to more and more goods.

[UPDATE 8/17/2014: I have edited the title of this post]

Friday, August 15, 2014

The Constitutional Limits of Missouri's Statute Permitting Police Officers' Use of Deadly Force

A lot of important things have been said about the shooting of Michael Brown by a police officer, Darren Wilson in Ferguson, Missouri and the following protests and law enforcement reactions. Here, I want to make a few points about the shooting itself and the various legal proceedings that may follow.

Missouri's has a law that permits the use of deadly force by police officers, and this law isvery broad on its face. But this law would have limited application to an excessive force lawsuit against Wilson. Missouri's statute on officers' use of deadly force purports to justify deadly force in any situation where an officer reasonably believes a suspect has committed a felony and where deadly force is immediately necessary to effect the arrest. But the Fourth Amendment limits officer use of deadly force to situations where the defendant poses a danger to the officer or others, or where there is probable cause to believe the suspect has caused serious physical harm to somebody.

While Wilson would therefore not be able to take advantage of the statute's broad language in defending against an excessive force lawsuit, Wilson would probably still be able to raise the statutory defense in a criminal proceeding against him. While the constitutional limits on officers' use of force are relevant in civil claims that the officer has violated a suspect's rights, these constitutional limits would probably not apply in a case where the officer is the subject of a criminal proceeding.

Tuesday, August 12, 2014

Robin Williams, Depression, and the Legal Profession

Yesterday, the world lost an incredible talent when Robin Williams took his own life. As many of my friends know, Robin Williams was my favorite comedian and I would often amuse baffle and disturb anybody willing to listen to my renditions of some of his routines.

Robin Williams's death has inspired an outpouring of tributes as well as a broad discussion of depression and suicide. Robin Williams suffered from depression, and his death reminds us of depression's insidious power of undercutting and ruining lives -- even if the outward demeanor of those affected suggests otherwise.

Depression is a particular problem for those in the legal profession. Earlier this year, the American Bar Association Journal reported that lawyers are 3.6 times more likely to suffer depression than nonlawyers, and that lawyers rank fourth in suicide rates by profession.

This problem is not new. This problem is not going away. And this is something that people in all levels of the legal profession -- students, lawyers, professors, and judges -- must bear in mind, discuss, and combat.

For a profound exploration of this issue, I recommend a series of posts by Brian Clarke at the Faculty Lounge from back in the spring. Clarke describes how depression pervades the legal profession and legal education. He then describes his own story of falling into the "hole" that is depression -- and how he found the support and resources to climb out of the hole. Finally, Clarke offers advice on how to broach the subject of depression and promote discussion of the topic. Those posts are available here, here, and here, and I strongly recommend that everybody read them in full. The American Bar Association also has resources for help on its Commission on Lawyer Assistance Programs page.

Robin Williams's death is a tragedy. I can only hope that his legacy will be one of laughter, and one that inspires those who feel that all is lost to reach out and find the help they need.

UPDATE - 8/13/2014

Brian Clarke reacts to Robin Williams's suicide in this blog post at The Faculty Lounge.

Friday, August 8, 2014

The Self-Denying "Legal Advice" Subreddit

Earlier today I came across a subreddit for "legal advice" where users post various legal questions and other users submit answers. You can browse it here.

I was amused by the "Guidelines" page for the legal advice subreddit. On one side of the guidelines page (and on every page accessed under the subreddit) are standard disclaimers that one may usually find on law firms' websites, or other websites that discuss legal topics. Here are some of the disclaimers:

  • Any advice found here IS NOT legal advice. Reddit is not a substitute for a real lawyer.
  • Please only use responses as guidelines to better prepare yourself for when you meet with a lawyer. 
  • Lawyers everywhere usually offer low-or-no cost consultations.
 . . .
  • Please do not delete your post after you've received help. If you're worried about your identity, create a throwaway. We want to help as many people as possible, and that includes those who may stumble upon your post later.
 . . .
  • Posts containing primarily negative comments, and lacking in advice, will be summarily removed without warning. Users who are consistent problems will be banned. Post to help, not to flame.
After reading these disclaimers, it is difficult to tell whether the "legal advice" pages contain legal advice. On one hand, the later posts indicate that non-advice posts will be removed and that posts should not be deleted so that other people can use them. But on the other hand, the first bullet point indicates that material on these pages "is not" legal advice -- and in bold, capitalized letters no less.

Maybe some of this confusion can be cleared up by looking at the guidelines themselves. Here are some of them:

1. /r/legaladvice is here for simple questions and basic understanding about the law. Your best bet is always to get a local attorney and give him or her the full set of facts in your case.

2. /r/legaladvice is primarily read by legal professionals from the USA. As such, questions about other countries can be difficult to answer. Do not take this personally; laws differ wildly when you cross borders, and none of us want to give bad advice.

3. /r/legaladvice will tell you what the proper legal answer is. You may not like that answer. You may disagree with that answer. Heck, we may not like or agree with the answer. But it's the correct one for our legal system. If you want to debate the law, there are other subreddits for that.

4. /r/legaladvice is not your lawyer, and never will be. We do not have a full command of the facts in your situation. We will not appear for you in court, write you letters, or do hundreds of hours of legal research for free. We're here to help clear up some of the mystery and confusion surrounding the law, and to help people better understand it.
These guidelines appear to indicate that no lawyer-client relationship is formed, but essentially assert that /r/legaladvice provides legal advice, with guideline number three claiming that these pages will give the "proper legal answer."

While it is nice to see this subreddit disclaiming that no lawyer-client relationship is formed, it is somewhat unsettling to see these pages repeatedly assert that they are giving legal advice. While each page contains a disclaimer that no legal advice is provided, this claim is contradicted by other disclaimers and by the /r/legaladvice guidelines.

While I would hope that most people would not trust legal advice from reddit users, I suspect that there are some out there who would still think that the advice is reliable. Moreover, since most states make it a crime to give legal advice without a license, I suspect that many people who are posting answers to other users' questions are technically committing a crime (see, e.g., California's law against the unauthorized practice of law). While it may normally be difficult to enforce laws banning the unauthorized practice of law, by placing all the questions and answers online, this subreddit allows users to post their legal advice online, which both broadcasts it to the world, and which immortalizes it on the internet.

Reddit could try to mitigate some of these concerns by changing their guidelines and disclaimers to uniformly disavow the notion that legal advice is being provided. But I doubt that this would successfully change the pages' content from being legal advice since the entire premise of the subreddit is to give answers to legal questions.

Sunday, August 3, 2014

Light Blogging This Week; Reading Recommendations

This week I will be on vacation at Lake Tahoe, so there might be some light blogging during the days to come. During my vacation and in the month or so I have until work begins, I hope to catch up on some reading I have been meaning to do. Here are some of the articles I want to read before I get back into a regular work schedule:

Friday, August 1, 2014

Become a Lawyer Without Going to Law School?

From the New York Times:

California is one of a handful of states that allow apprenticeships . . . in lieu of a law degree as a prerequisite to taking the bar and practicing as a licensed lawyer. In Virginia, Vermont, Washington and California, aspiring lawyers can study for the bar without ever setting foot into or paying a law school. New York, Maine and Wyoming require a combination of law school and apprenticeship. 
The programs remain underpopulated. Of the 83,986 people who took state or multistate bar exams last year, according to the National Conference of Bar Examiners, only 60 were law office readers (so-called for the practice of reading legal texts as preparation). But at a time when many in legal education — including the president, a former law professor — are questioning the value of three years of law study and the staggering debt that saddles many graduates, proponents see apprenticeships as an alternative that makes legal education available and affordable to a more diverse population and could be a boon to underserved communities.
The problem with this, however, is that people who read law still need to take the bar exam. After sacrificing three days of my life to the California Bar Exam I think that there are still some pretty unpleasant things that people in legal apprenticeships have to undertake in order to practice law.

While I think that the bar exam was a difficult experience, I think that I would have been in a much worse position without a solid foundation of legal knowledge that law schools can provide in a systematic and thorough manner. The realities of legal apprenticeships reflect this:

None of the states help prospective law readers locate a supervising lawyer, and finding one willing to take on the responsibility of educating a new lawyer can be difficult. Bar passage rates for law office students are also dismal. Last year only 17 passed — or 28 percent, compared with 73 percent for students who attended schools approved by the American Bar Association.

. . .

Robert E. Glenn, president of the Virginia Board of Bar Examiners, was less circumspect. “It’s a cruel hoax,” he said of apprenticeships. “It’s such a waste of time for someone to spend three years in this program but not have anything at the end.”
Those who do manage to pass the bar often do so after taking it several times. And without a law degree, clerkships and jobs in biglaw are tough to land.

While the Times has some anecdotes about people who have passed the bar soon after a legal apprenticeship, and even some people who have managed to make it into big law firms without going to law school, I don't think that the legal apprenticeship route is generally a good one. Most people who take this approach may end up with less debt, but their chances of passing the bar are low, and their chances of becoming practicing lawyers are seriously diminished as a consequence.

And those who are bright enough to pass the bar exam and land traditional jobs without going to law school are probably bright enough to write a strong application that would get them a hefty scholarship at an accredited law school. The scholarship would eliminate most or all of law school's tuition costs and would give students the resources and systematic learning that law schools are designed to provide. The law school may not be the best in the country, but it would give students a much better chance at passing the bar and having more career options.

Legal apprenticeships are an interesting feature of the legal education landscape, and there may be some people who are well-suited for these programs. But for the most part, I think that legal apprenticeships run the risk of being over-romanticized, and the hard realities of the bar exam and the demands of legal employers and clients make reading law a risky option for those considering a a legal career.