30 July 2008

Greenfield on Spence - Law School

Scott calls out the Cult of Spence for fawning over a post which the Great and Wonderful One did about the flaws he perceives in law schools (they defraud students cum lawyers).

In general, I have to come down on Scott's side here. I haven't followed Spence's blog much because the couple times I've looked at it (when all the crimblawgs went ga-ga and started pointing us to it) it's been strange. And not strange in an interesting, I'm going to write poetry now and comment every so often on the law way, but in a self-promoting, cult-creepy way.

As to what Spence says about law school, I can't say that I hold a much higher regard for law school than he does. In fact, here are the two basic phrases I use to describe law school:
1. One year of education crammed into three years.

2. Three years of legalized hazing.
However, I recognize that most people in law school are not headed out to be trial lawyers. Still, I don't think that law school prepares people for other realms of practice either. In fact, I long ago came to the conclusion that the primary thing that law school teaches students is how to be a law professor.

The Socratic method is a farce. Teaching via statutes or black letter treatises of common laws and then using case law to demonstrate and argue would make sense. However, having a student read a case, or worse part of a case, so that he can figure out and get quizzed on what compose the actual elements of larceny is just plain asinine.

What else needs to be done to fix law school? That's a series of long posts I don't have the time to undertake right now. Hopefully, the changes which W&L is engaging in will be a beacon to other schools. We'll see.

29 July 2008

To Jury or Not to Jury

Defendant demands jury. I prep jury. On the morning of trial, defendant realizes, OMG, he's actually going to try me! Defendant sends defense attorney to see if deal is still available. It is. He pleads guilty and has to pick up the tab for the jury.

Defendant demands jury. I prep jury. On the morning of trial, defendant realizes, OMG, he's actually going to try me! Defendant sends defense attorney to see if deal is still available. It is. He pleads guilty and has to pick up the tab for the jury.

Defendant demands jury. I prep jury. On the morning of trial, defendant realizes, OMG, he's actually going to try me! Defendant sends defense attorney to see if deal is still available. It is. He pleads guilty and has to pick up the tab for the jury.

Lather, rinse, repeat ad infinitum.

28 July 2008

CLTV 35: The General Hospital Hack

Ya'll can thank Scott over at Simple Justice for this week's Soap theme . . .

Here's the larger version over at CLTV proper.

26 July 2008

Working Over the Blogs

Been working over CrimLaw and CLTV. Here on CrimLaw the only thing I really did was fix a couple links and took the transparent part of the header out and replaced it with white. I'm not sure why, but a computer I looked at the other day was screwed up in the transparent part and there wasn't any real reason not to put the white in instead.

Over at CLTV I totally revamped the look. The logos on the right link to various video shows on the web which I think are worth watching.

25 July 2008

Sometimes It All Comes Down to Comic Sans

Click on the Picture

Smaller Jails = No Pre-Sentence Conversions

Back when I was in the Richmond area it was very common that a defendant would find Jesus before he had to face the judge for sentencing. He'd bring in his pastor or a stack of certificates showing he'd completed religious classes and the defendant would swear that he'd seen the light and would walk the straight and narrow from this point in his life forward. It didn't often work, but it was something that a lot of defendants did. I was thinking about this today and realized that I hadn't seen a single defendant do this in the courthouse I now practice in. I started wondering why and one reason came to mind: jail space.

In Chesterfield County, where my office was located, the county jail had beds for about 300 people. Riverside Regional Jail, which housed most of Chesterfield's inmates, had a capacity for over 700; hearsay had it that over half those beds were filled by Chesterfield alone. Other jurisdictions had similar setups with local and regional jails (the exception being Richmond proper which jammed a couple thousand into its 900 capacity jail). With that much space, judges did not feel pressure to lower bonds to free beds.

The local churches and ministries viewed these jails as target rich environments. Ministers and laymen would come in to hold services and have religion classes. Inmates with nothing else to do would go out of belief, to be entertained or to make some sort of good record to show the judge during sentencing. By the time they had spent 6 months in jail waiting for their felony trial date their religious credentials were well established and they always wanted to make sure the judge knew.

On the other hand, the localities here all pitched in to build a 270 inmate regional jail and closed down the local jails. With so few beds there is less ability to hold people in jail pending trial. Thus, while I'm certain that some churches send people into the jail, it just doesn't provide quite the target rich environment that I'd seen in my prior jurisdiction.

I'm sure there are other factors as well, but this was a stray thought which hit me as I considered some of the differences between different jurisdictions I've been in.

23 July 2008

An Originalist Argument that Non-Violent Felons Are Constitutionally Allowed Firearms

In the New York Post, of all places.

Spammers in Slammer

Remind me to close up my er . . . not take up spamming.

So Many LawProf Blogs to Ignore, So Little Time

And why, Good Sir, would you exclude we little folk from your list of blogs? Are we in the great unwashed masses not good enough?

BTW, yes, I know I wouldn't even make it on the list as composed.

Meanwhile, Back at My Old Stomping Grounds

I go back and look to see what's happening in the old stomping grounds and see a murder charge in Powhatan and I know both the prosecutor and defense attorney. I wonder if they'll have to try it in a different jurisdiction since the local paper has had some vitriolic commentary attached to its articles.

If so, I don't think they should take any chances - bring the case out here. I think we can pretty much guarantee that no one in the mountains knows anybody involved in this and has not been influenced by either the Richmond or Powhatan paper (heck, I haven't seen a paper from as far away as Roanoke since I've been here).

C'mon down guys. I'll buy you each a chili bun.

22 July 2008

Brass Thieves and Hydrants

Just remember, the next time your house is on fire, that a brass thief may have stolen part of the hydrant and rendered it inoperative.

BAC 0.441

How is this guy alive, much less driving a lawn mower?

Judge: "A Lot of Confusion"

What do you do when the judge tells you not to plead guilty?

Here's a Quandry for Legalizers: Proof That Ecstasy is Evil

It's destroying the wilderness.

Make Your Police Dog Nice

Handlers "should also think carefully about the possibility of suspects being allergic to dog hair, according to draft guidelines drawn up by senior officers."

Suing the Company Which Turned Him Into the Police

Can someone who was a fleeing pedophile actually expect much in the way of an award?



Ask the Drug Doctor

Explaining heroin and methadone.

This Mother Deserves a Looooonngg Time in Prison

Not only did she use her baby as a shield against the police, the baby tested positive for meth and cocaine.

21 July 2008

CLTV: I'm Not the CrimBlawger You Need, I'm the CrimBlawger You Deserve

CLTV Medal of CrimBlawging Excellence

4 catagories in today's CLTV: (1) Best True Stories, (2) Best News Stories, (3) Practical Theory, & (4) OMG! When Did Simple Justice Start Writing Like a Law Professor?

Best True Stories

1. ???????
2. ???????
3. ???????
4. Bad Court Thingy: Why We All Hate Domestic Cases
5. Ipse Dixit: Prosecutor Tells Judge Defendant Won't Be Ready for Trial
6. HOWT: Wasting a Perfectly Good Fake Heart Attack
7. The Policeman's Blog: The Canadian Car

Best News Stories

1. ???????
2. ???????
3. ???????
4. Ninth Circuit Blog: If the Judge Drops a Hint You Probably Ought to Take It
5. Kentucky Law Review: We Put Parole Violaters in Prison for a Reason
6. Ninth Circuit Blog: Will All Courts Now Have to Engage in Platonic Dualism to Depart From Guidelines? Or maybe just those departing downward?
7. The Faculty Lounge: Racist Speech Protected in the Military

Practical Theory

1. ???????
2. ??????? & ???????
3. ??????? & ???????
4. public defender dude: The Exclusionary Rule
5. the briefcase: Lies, Dang Lies, & . . .
6. Concurring Opinions: Why, exactly, was Justice Harlan wrong when he lifted "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens" from a brief?


BTW: For those of ya'll who like to post awards on your blogs, feel free to take the award above whenever you make it into the LawCast.

The CyberCrime Mafia

And none of our credit cards were ever safe again.

20 July 2008

A SuperHero With the Right Moniker

Wonder if I've got a copyright claim since he's using my previously established nickname ("Hammer").

BTW: There's a new videoblog out there about crime: Dr. Horrible's

16 July 2008

Moore and the Car Stop

Under Virginia law it is generally illegal for an officer, without a warrant, to arrest someone for a misdemeanor not observed by the officer (there are exceptions including shoplifting, assault and battery, brandishing a firearm - when a witness ID's the offender). Of course, the US Supreme Court has left us in a wonderful position by solidifying a wonderful dichotomy in Virginia: the unconstitutional and the illegal. Under Moore, it is quite possible for an officer to arrest someone illegally, but not uncostitutionally. An example would be if someone told an officer that John Smith stole his (worth less than $200) bike. Theoretically, the officer cannot arrest Mr. Smith. In reality, because the arrest would not be unconstitutional, there is no check on the officer arresting Mr. Smith without proving probable cause to a magistrate and getting a warrant (outside of the extremely theoretical potential civil liability).

I started mulling this over in relation to reasonable articulable suspicion of criminal activity. Does this dichotomy affect the standard or was the standard already so low as to not be effected by it? A typical reason to ponder this would be that Victim calls dispatch and reports that his ex-girlfriend is outside his house keying his car (all the while screaming at her that he's calling the police on her). ExG, not being a 100% idiot, gets in her car and drives away before police get to the house. On his way to the house, Officer spots ExG's car leaving the subdivision. Can Officer pull a 180 and stop ExG?

1) Yes, he always could because he has reasonable articulable suspicion of a crime, or

2) No, he cannot because he cannot legally arrest her without a warrant and has no suspicion of an ongoing crime, or

3) Yes, he can because the US Supreme Court has empowered the officer to constitutionally arrest her illegally. He can pull her over to arrest her and not bother with reasonable articulable suspicion.

I think that prior to Moore 2 probably was the better argument. However, now that Moore is the law of the land I wonder if 3 might not carry the day.

15 July 2008

The Judges Strike Back

You'll recall that a while back in CLTV I discussed a letter from the head PD in Kentucky wherein he announced that, due to budget cuts, PD's across Kentucky were going to sharply curtail the work that they did and that conflict counsel would no longer be paid out of PD budgets (as they had previously). In particular, the letter singled out the Lexington-Fayette courts and said they would be the hardest hit.

Well, at least one judge isn't having it. Judge Joseph Bouvier (pictured left in the only public website picture I could find - sorry Judge) set out an order requiring PD's to represent those facing forced mental treatment:
This Court finds it unconscionable that the Department (of) Public Advocacy would abandon its most vulnerable clients in order to make a point over a budgetary dispute.
As well, all the Fayette District Judges are going to meet to decide if they are going to force PD's to do even more.

This article at the Herald Leader also talks about how judges in other jurisdictions have been trying to deal with the PD withdrawal.

14 July 2008

Gotta Prep a Jury

Jury trial Tuesday. Blogging may be slow until Wednesday. Sorry.

CLTV 33: Legions of Nun-Thieves

The new CLTV is up and covers a lot of ground.

Here's the larger version over at CLTV itself.

12 July 2008

Saturday's Random Thoughts

1) Findlaw, has messed around with their page layout. It took me a little bit to find the useful stuff because they took out the tab for "professionals." The useful links are now at http://lp.findlaw.com (they now have a link at the top right of the consumer page, but I don't remember that being there when the changover first occurred)

2) Google has figured out some way to keep image searches from either getting through or registering at Blogger. It makes it more accurate when I look to see who's reading the site, but it dropped my numbers by well over half.

3) I'm now using Bloglines to read blogs. It allows me to cover more than I was before and works better than other online aggregators I tried (including Google Reader and My Yahoo!).

4) If it is the last thing I do, I will beat Desktop Tower Defense's 100 level challenge (how can such a simple game be so addictive?).

5) I shudder to think what the next few months have in store for CrimBlawgs as more and more will be unable to resist the siren call of getting into the political argument.

11 July 2008

Sometimes Even Spot Tires of Blogging

And ya'll thought all those bad posts over the years came exclusively from me.

10 July 2008

In the News

Looks like my internet connection has started working again, and here are some of the things I've found:

1) The Ramseys really didn't do it.

2) New Orleans PD decided to punish an officer 15 minutes before he retired because he wore a uniform which it didn't use anymore, but is going to use in the future.

3) Don't steal socks in Missouri.

4) It's just a bad day when you step off the train and 8 policemen stick their pistols in your face (especially if you ain't done nothing).

5) Why we don't see DNA in shoplifting cases.

6) Just remember, it's rape to have sex with a corpse in Minnesota (the corpse cannot consent to sex).

7) Naked beer thief abducts a bus full of people (just remember, it happened in Vegas, so he has to stay in Vegas - Thank Heaven).

8) And the hottest car of the year is . . .

9) Scumbag Dad Award: using a two year old to keep police from tazing him.

08 July 2008

Because Some Things Just Have to be Publicized
Switch Hitter v. Ambidextrous Pitcher

Somehow PrawfsBlawg made a legal point about all this, but I all I could think of is how fun it is fun watch them keep switching back and forth.

Should Vets Get Special Dispensation in Criminal Court?

Dang straight we should.

Seriously, if a guy is a vet how often is that not held to be a fact in his favor?

Save Your House from a Forest Fire
Got to Jail

What happens in California when the firemen have given up on saving your property - because a computer model says it can't be saved - and you save it yourself?

Why, they arrest you, of course.

California: the 3 Strikes Reality

Looks like it might actually be working.

07 July 2008

IP & p2p: Part 2
General Market Structure

So, having gone thru the lesser points, let's examine the main points of JDG. First, the RIAA and MPAA are organizations devoted to the preservation of the big companies' position in their industries. Second, that the artists will benefit from p2p. I'm right there next to JDG in his first point, but the second does not necessarily follow.

In general, there are four groups which are involved in this market adjustment. There's the creator, the distributor, the merchant, and the consumer. It's a fairly typical market setup which could be applied to most items in a capitalist market. The major difference is that in order for intellectual property to be profitable enough to produce an artificial monopoly must be created. If it is not there is no incentive for distributors and merchants to become involved and product flow stops or is seriously curtailed.

Why? Glad you asked. Distributors in this system are also the people who bankroll the creation of content. They identify a potentially lucrative creator; they do their best to improve the creator's product; they promote the creator; they bite the bullet when the majority of creators fail; and they exploit those creators who succeed. In this system both the creators and the consumers are exploited as much as possible to maximize profit for the distributor and merchant. There's never been too much the creators have been able to do about this process (except for a select few who really became BIG). And, to be truthful about it, creators need the distributors in order to have their shot at becoming BIG. Sure, they can gain traction in a geographical area, or have a following among a segment of society, or they can gather a following on the internet, but those are usually beginning steps. The distributor is needed to make them nationally or internationally renowned. On the other hand, a few years back, the consumer found himself in a situation where he didn't have to put up with as much exploitation as before.

The web brought the consumer the ability to download without cost. Someone out there would upload an item and others could download it without paying a skinny nickel. Sure, some of this had been previously available via bbs systems, but the web brought wider availability. Additionally, both technology and software increasingly made this an increasingly attractive alternative for consumers.

In other words, the artificial monopoly was broken. Artificially inflated prices led to consumers (former customers) forgoing the cost of purchasing IP items and instead downloading them without cost. This did not directly affect the creators and was crushing to the brick and mortar merchants (seen a record store chain anywhere lately? - although, to be fair the rise of Wal*Mart and Best Buy probably also helped in their demise). Yet, the conflict which developed did not involve the merchants. The conflict is between the consumer and the developers. And we all root for the consumer, the little guy, us.

Unfortunately, it's not that simple.

The industries have often reacted horribly. Whether they are acting as groups (Business Software Alliance, RIAA, MPAA, etc.) or as individual companies (Viacom) they've done things which have seemed almost insane as they've thrashed around fighting the changing market with every shred of their beings. They've pushed for repressive laws to be enacted. They've sued various consumers for much more than the damage that particular consumer could possibly have caused. They've sued companies out of existence. Sometimes the industries score victories (Napster), but generally they have been swimming against an incredibly strong tide. All of this done, as their PR spin would have it, on the behalf of the creators. Nevertheless, while at least the successful creators are along for the ride, the truth is that the distributors are looking out for their own bottom line. Eventually, although they get pushed there kicking and screaming, they all seem to try to make some accommodation.

Still, after all the poor behavior on the part of the industries, it is in the best interest of the consumer for them to continue to operate. We need movie companies making potential summer blockbusters, publishers printing books, television channels making shows, etc. and the ugly truth is that for them to make them they must make profits. The even uglier truth is that for this to happen we must pay for things.

Hopefully, later in the week I'll have time to opine as to how all this has played out / is playing out in several industries: software, music, TV, movies, books, and any others I might think of . . .

06 July 2008

Because the Navy's Different

Sorry I didn't spot it for the 4th, but better late than never.

05 July 2008

I Didn't Call It Piracy
It's Computer Fraud
IP & p2p Part 1

A couple days back, I linked to an article about a person getting convicted in federal court for being part of a ring that uploaded 700+ movies for bit torrent download and I commented on the problems with use of bit torrent to get intellectual property free of cost. This prompted a reply from John David Galt, which has prompted me to further propound upon this matter.
The real purpose of RIAA and MPAA and their efforts is to protect big established media companies from competition from independent artists and from smaller media companies that actually want to give artists their due. See Carly Simon's "sharecroppers" article in Salon.

The moguls who have gotten rich by violating artists' moral right to profit from their works should not be allowed to continue posing as defenders of those rights against a huge horde of imaginary boogeymen. (Oh, and the word for the alleged threat is "infringement", NOT "piracy".)
To begin on a lighter note, I'd like to point out that neither I nor the article linked to called the act "piracy." However, I suspect that there might be a reason that this appellation has persisted:

Just sayin'

Back to more serious consideration, in Virginia I don't think we'd call this "infringement", we'd call it computer fraud.
§ 18.2-152.3. Computer fraud; penalty.

Any person who uses a computer or computer network, without authority and:

1. Obtains property or services by false pretenses;

2. Embezzles or commits larceny; or

3. Converts the property of another;

is guilty of the crime of computer fraud.

If the value of the property or services obtained is $200 or more, the crime of computer fraud shall be punishable as a Class 5 felony (up to ten years). Where the value of the property or services obtained is less than $200, the crime of computer fraud shall be punishable as a Class 1 misdemeanor (up to 12 months).
The without authority is pretty easily established - your contract with your internet provider almost assuredly does not authorize you to download copyrighted materials and the copyright holder has not authorized you to get the property in this fashion, without paying for it. Subsection 1 does not fit. I don't see any false pretense in someone downloading something from Limewire or Bearshare (or others); they download with the intent to watch/keep. Subsection 2 does not fit. Under Virginia's common law, larceny includes a taking of property with the intent to permanently deprive the owner of possession of that property. That leaves us with subsection 3: conversion. Conversion is generally a concept dealt with in civil actions, wherein it often serves as roughly the equivalent of of larceny. However, it is not exactly the same and does not always include the elements of larceny. For instance, it does not require that the defendant take the property. See Commonwealth v. Chilton Malting Company, 1930, 154 Va. 28 (Citing favorably, Aschermann Philip Best Brewing Co., 45 Wis. 266 - leaving a door open so ice melted was conversion). Another definition is "treating another's goods as one's own." With this in mind, I think that in Virginia p2p users are guilty of computer fraud. Of course, most all of these cases would be misdemeanors and the difficulties of putting such a case together would probably keep many localities from pursuing this kind of charge. Still, I think I've established that, for my purposes it's computer fraud.

03 July 2008

Not Yet

The Congress hasn't decided to pay off our loans yet.

Illegal to Give Away Free Movies

I know it's a relic of the old paradigm, but if you give away other people's movies over the interweb you can get yourself in felony trouble with the feds.

And, no, before anyone asks, I don't think that intellectual property should be free of checks on its distribution. I've never been a fan of the RIAA and its ilk. However, if unchecked, the natural consequence of p to p is to make intellectual property unprofitable. I suspect the industry least affected by this would be the music industry wherein the performers would probably become more of the focus rather than the production/distribution companies (money comes from concerts, not CD's). This industry is mainly fighting a rear-guard action against a paradigm shift, not a real threat to its existence.

However, the affect on things like movies, software, even such things as comic books, &cetera could be devastating. Someone has to be convinced to front not insignificant amounts of money for these things. As things currently stand they front this money with the knowledge that only a certain percentage of productions will be successful enough to make money, much less become highly profitable. What happens if unrestricted p to p means that the day after a movie hits the screen it is distributed worldwide for everyone to watch without paying a dime? Nobody invests. Movies stop being made. We get stuck having to go to playhouses or theater in the park (shudder).

Yes, I know it's an extreme scenario as things now stand. Lest I get accused of screaming things about the sky falling, let me say that I don't see this happening today or tomorrow. However, this is not because the tech's not there, it's because a lot of people have not figured out how to use the tech. In a generation or so, when everyone has grown up using computers, the situation could be quite different.

02 July 2008

Am I a Trial Attorney Because I Seek Stress?

A while back, Mark, over at HCDL, spoke of a book about how elite performers seek stress situations and uberperform in them. The thesis of the book seems to be that certain people "balanc[e] emotion and intellect in stressful situations" while the majority fail in this endeavor. Mark extrapolates this into trial lawyers as people who seek trials (extreme situations) and elite trial lawyers as those who shine in those moments. Perhaps even more interesting is the discussion in the comments when Mark and others discuss whether this is about people being trained to react correctly or just having it in them to do so. Mark states that the book asserts it is not a matter of training.

My gut level reaction was to reject all of this out of hand. "Certainly, this does not apply to my experience." On a day to day basis I'm not the guy who goes out and bungy jumps, or 4 wheels, or sky dives, or looks for and partakes in any number of adrenaline junkie activities. I'm one of those people who is generally happy living a fairly boring life.

However, if I take a broader look at my life, there is a tension which I note in it. I have tended toward academic pursuits and for a period of time I would be in hog-heaven in a job where I could just spend weeks researching in a library and writing papers. However, I have never been able to just do this. I've always sought some sort of application along side and in conjunction with this bookwormish tendency. I joined the Army and went into Military Intelligence, learning Arabic along the way, and got sent into two combat zones and a peacekeeping mission. I went to a college (Centre) which I chose in large part because it had a reputation for "true grading" and failing people out. I chose to go to a "top twenty" law school instead of an "easier" school (which would have given me a free ride and I've been kicking myself ever since). When faced with difficulties after law school, unlike some wiser friends who took contract work and held out until they got solid civil jobs, I opened an office and started doing criminal work.

Nevertheless, I must disagree with the premise offered. It's not about seeking stress, it's about seeking challenges. Now, that may seem nitpicky because challenges will almost always involve a degree of stress. The difference is that a challenge is a sought practical application of training and preparation. In fact, it usually starts when someone seeks the proper training and preparation. Every military trains people before sending them into action. Before a lawyer can ever practice he has to either go to law school or apprentice himself to a practicing lawyer (reading for the Bar).

Mark disputes this point and refers to a story in the book wherein it is claimed that an Army Ranger on a rafting trip fell out of the boat and "because of his training and the Ranger ethos of not needing help", drowned. This is supposed to show how training can cause a person to fail.

And it is absolutely wrong. Back when I was in the Army there was a term which was used derisively everywhere I was stationed. The word? Hero. I can still remember the Drill Sergeant in basic training yelling at whomever had screwed up, "You are a no-go at this station, Heee-row!" Heroes were not loved and beloved in the Army (I suspect Marines have a similar attitude). They are the idiots which somehow never got the basic message of military training: thou shalt operate as a team. Heroes act on their own, do stupid things, seek the adrenaline rush, and get themselves - and more importantly others - killed.

The problem is that you're filling a military primarily with 18 -24 year old men. They have an abundance of testosterone and it can take a lot to reprogram the "hero" stupidity out of them. While the military does an admirable job in the vast majority of cases, there are just some who cannot get the message that operating as, and receiving the support of, a team vastly increases the chances of survival. Sadly, the Ranger in the story told in the book operated contrary to his military training and paid the price.

That's not to say all training doesn't cause any incorrect reactions. In some cases it surely does. However, that's usually in a fish out of water situation. In high stress challenges it's always going to be the people who are trained for the challenge who survive at a higher rate. Surely, Mark's training and preparation prepare him better for a manslaughter trial than a pro se defendant. They'll both face a stressful situation, but it's the training that makes the difference.

But, you say, there will always be stressful situations which people aren't prepared for. Yet, people survive these situations. I've got a one word answer for this: Luck. Or, as one of my professors put it in college, we have evolved so that different people will react to the same crisis in different ways. An extremely angry lion walks into the middle of a village catching 10 people in the town square. 2 people freeze in place, 2 people scream, two people run, two people back away while facing the lion, and 2 people attack. This variance in reaction pretty much guarantees someone is going to survive. You only hope it is your reaction that works - and there's no guarantee that the same reaction will save you each time. One time the lion may face his attackers; another time he may chase those moving away from him; a third time he may go after the person screaming her lungs out. What determines the lion's choice? The whim of the lion on that particular day. In other words, from the perspective of the villagers, Luck.

Give me a person trained to handle the challenge over a person who is relying on luck any day.

01 July 2008

A Brief History of Blogging: Is It a LawProf's World?

"Before there were many lawyers with blawgs, there were lawprofs. They had the blawgosphere largely to themselves, with their networks and back and forth banter in the fascinating jargon of the academy."

Ah, the confidence of having a blogging memory of only a year and a half. However, some of us have been around for a little longer and remember things just a wee bit differently.

In the beginning . . .

The Stone Age

Well, okay CrimLaw wasn't around during the stone age of blogging. Not many blogs were around when fire was being discovered and tomahawks were being chipped out of stone. Perhaps the strongest blog of this era was InstaPundit. Sure, Glenn was a professor, but in these early days few people noticed blogging and nobody cared; he wasn't exactly blogging about professorial topics anyway.

The Copper Age

At this point, mainly through the power of Blogger, a number of blogs blossomed onto the scene. Some were written by professors, such as Balkinization and The Volokh Conspiracy. However, the majority were not. My impression of this era is that there were a lot of law clerks (Southern Appeal), law students (Sua Sponte), and lawyers (How Appealing, SW Virginia Law Blog, Ernie the Attorney, Bag and Baggage, Freespace, Lex Communis) putting up blogs.

During this era there was a lot of cross pollination. Niche blogging (the long tail) just had not developed to the point that one could have enough to read if he stayed in one subject area. Things somewhat coalesced around How Appealing and - to a greater extent - InstaPundit. Glenn Reynolds published a list of blogs he "fathered" (hence the nickname "Blog Father") and a group even formed to oppose his hegemony (the Alliance of Free Blogs). At this time blogging just wasn't on academia's radar. It was something engaged in by a few geeks who happened to be lawprofs and really was not considered an asset to lawprof's careers.

As far as crimblawging went, CrimLaw was the third crimblawg and none of the first three were by lawprofs. TalkLeft had migrated from being a webpage into a blog (then, as now, more about politics than actual law) and Gideon's Promise came into existence 6 months prior to and ended 6 months after CrimLaw was founded.

The Bronze Age

This is when blogs start to solidify in different zones: legal, political, religious, &cetera. Blawgs begin to do the same thing. Two of the bigger zones which develop are TechBlawgs and CrimBlawgs. Cross pollination between blogs of different kinds starts to fade as areas gain enough critical mass that people can spend all their reading time in one area. The MSM dithers back and forth, trying to figure out exactly how blogs fit. At first it is curious but mostly dismissive. However, this develops into a healthy respect/fear as blogs of the Left develop significant political power and blogs of the Right destroy a TV news anchor. As for the legal academia, there was some grudging respect for Glenn Reynolds at InstaPundit and lots of people read Volokh, but in general it seemed that the attitude was still that these blawg things were more a distraction than something that a serious professor wanted to engage in.

As for crimblawgs, more and more popped up (Crime & Federalism, Arbitrary and Capricious, Blonde Justice). Interestingly, the large majority seemed to originate from those doing indigent defense. In fact, the number of PD/indigent defense sites which pop up, live a short - but interesting - life, and fade away are impossible for me to keep up with; this task has fallen to Gideon and Skelly. A very few prosecutors braved the water (Mr. District Attorney).

The Age of Steel

This is the point at which lawprofs turned to blawging as a legitimate, career building endeavor, rather than a mental exercise or hobby. In crimblawgs I trace this to one particular blawg: Sentencing Law and Policy. If ever a blawg benefited from divine providence it was SL&P. It started its life as a fairly simple blawg in which Professor Berman was posting once or twice a week. Then Blakely was decided, people went nuts in the blawgosphere and Professor Berman rode the crest of the wave into prominence and respectability as a blawger. I don't think he slept during that time; if it was on a blog somewhere, or in a news article, or even on a an AUSA's desk Prof. Berman knew about it and published or pointed to it. It made his blawg a necessity and thus made him, it, and profblawgs legitimate.

There were some unfortunate side effects to this. Now seen as a way to boost visibility and credibility, blawgs became something which lawprofs and, even worse, law schools started to engage in for professional reasons. A lot of profblawgs are bland and the ones which a law school has "encouraged" lawprofs to start for school rep purposes can be just plain bad. They can be insulated. They tend to link to professors, if they link at all (which is basically bad netiquette). You can usually tell a blawg which existed prior to this age and is written by professors - instead of being an academic position enhancement blawg - because it links to things outside the lawprofs's sphere.

The rest of us pulgged along as normal during this time. More indigent defense blawgs came up and went down; a new prosecutor blawg popped up (Seeking Justice) and I switched over to prosecution and kept blawging.

The Modern Era

The biggest trend in the modern era has been the emergence of blawgs by private lawyers. A lot of this seems to be driven as a Google page rank, marketing device meant to bring business to the office. Much - if not most - of this is sheer, unmitigated dreck which the lawyer posts once a week because some ad guy has told him to. Nevertheless, this wave has also brought a number of good blawgs with it (Simple Justice, Defending People, Matlock) wherein the blawgers actually write substantive posts on a regular basis.

There has also been an uptick in prosecutor blawgs (Ubjeckshin, Western Justice, LHCC). It will be interesting to see how many of these blogs appear in the future and continue to publish considering the more difficult circumstances of blawging as a prosecutor.