Local Search and Mobile Search Marketing Dominance: February 2018

Wednesday, February 28, 2018

During opioid press conference, Sessions says Justice Department will investigate GOP memo claims

Attorney General

Posted February 27, 2018, 4:33 pm CST

U.S. Attorney General Jeff Sessions. mark reinstein / Shutterstock.com

Attorney General Jeff Sessions told reporters Tuesday that the Justice Department is investigating claims in a GOP memo that prosecutors failed to fully disclose the source of evidence presented to the Foreign Intelligence Surveillance Court.

Sessions made the disclosure during a press conference about the formation of a Justice Department task force to fight the opioid epidemic, Politico reports.

The GOP memo says a Russia dossier partly financed by the Clinton campaign was an “essential part” of an application for surveillance of a former campaign adviser to Donald Trump, but the Democratic connection was not disclosed.

“We believe the Department of Justice must adhere to the high standards in the FISA court and, yes, it will be investigated,” Sessions said. “And I think that’s just the appropriate thing.”

The subject of the press conference was the creation of a Prescription Interdiction & Litigation Task Force in the Justice Department, which will be known as the PIL Task Force. The task force will use federal civil and criminal remedies to target the unlawful practices of opioid manufacturers and distributors, report the Washington Post and CBS News. A press release is here.

The Justice Department will also file a statement of interest in a multidistrict action involving hundreds of lawsuits against opioid manufacturers and distributors. The statement will argue the federal government should be reimbursed for the costs it has incurred in the opioid epidemic.

PIL will examine existing lawsuits by state and local governments to examine what help, if any, that federal law can provide, according to the press release. The task force will also use criminal and civil actions to ensure that distributors and pharmacies are obeying Drug Enforcement Administration rules designed to prevent diversion and improper prescribing.

The Justice Department will target the opioid crisis from “every angle,” Sessions said.

http://feedproxy.google.com/~r/abajournal/dailynews/~3/rXrNE-RPCbg/during_opioid_press_conference_sessions_says_justice_department_will_invest

Another Law School Is Exactly What We Need Right Now — See Also

It’s Still Just In The “Discussion” Phase: But Jacksonville is looking at creating a new law school.

Another Title VII Circuit Split: The Second Circuit holds that sexual orientation is protected under Title VII. Will the Supreme Court weigh in?

Behold: Law school horror stories!

Increasingly Obnoxious Behavior Gets A Lawyer Disbarred: Of course it’s in Florida.

Herbert Smith Freehills Gives Groundbreaking Benefits To Transgender Employees: Read all the details here.

http://feedproxy.google.com/~r/abovethelaw/~3/M7E9Lk0qDI4/

Tuesday, February 27, 2018

The White House Wedding Tinged With Creepy Overtones

White House (by Cezary p via Wikimedia)

Which U.S. president married the daughter of his law partner?

Hint: The story actually takes a creepy turn since he became her legal guardian when she was orphaned at 11. They were married at the White House when she was 21. She was the youngest wife of a sitting president.

See the answer on the next page.

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Accessing Your Inner Pause Button

Ed. note: This post is by Jeena Cho, a Legal Mindfulness Strategist. She is the co-author of The Anxious Lawyer (affiliate link), a book written by lawyers for lawyers that makes mindfulness and meditation accessible and approachable. She is the creator of Mindful Pause, a self-paced online program for creating a more sustainable, peaceful, and productive law practice in just six minutes a day. Jeena offers actionable change strategies for reducing stress and anxiety while increasing productivity, joy, and satisfaction through mindfulness.

Last week, I talked to a lawyer who shared she was experiencing feelings of exhaustion that she’s never felt before. “It feels like my limbs are too heavy to carry,” she said after a long pause and a deep sigh. “I never have enough time. I am constantly rushing from one thing to the next… from a meeting to a conference call to a deposition. By the time I get home, I’m so exhausted I have nothing left. I feel like such a terrible mother. I’m a failure.”

These feelings of having too much to do, constantly rushing from one thing to the next, feeling tired (or exhausted) are very common for lawyers. A common observation during the short 6-minute guided meditation session I do in just about every talk I give is sleepiness. This is a telltale sign of not getting enough sleep. Most lawyers report eating lunch at their desk every day and being connected to work during all of their waking hours.

Continue reading over at Jeena’s website…

http://feedproxy.google.com/~r/abovethelaw/~3/sbo7UC9Wwoc/

That Most Glorious Of Days When We Have A New Ranking — See Also

A NEW RANKING OF OUTSIDE COUNSEL: It’s been at least two years in the making, but finally we have a ranking of outside counsel based on what in-house attorneys think about. See the full list here.

TOMORROW IS THE FEBRUARY BAR EXAM: Try not to fail.

ENERGY LAW FIRMS KEEPS MERGING: In the near future, Houston will actually just be one big law firm. A law firm whose offices will float, of course, because it’s not like energy lawyers are going to be caught off guard by climate change.

NOW THAT THOMAS JEFFERSON LAW SCHOOL IS REQUIRED TO TELL STUDENTS HOW BAD THEY ARE: The school is having a difficult time making money. Sorry, not sorry.

I DON’T THINK THIS SUPREME COURT DACA DECISION IS AS GOOD AS IT SEEMS: By refusing to take up the case, SCOTUS is just letting Dreamers twist in the wind a little bit longer.

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

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Monday, February 26, 2018

Prosecution in USS Cole case at Guantanamo appeals suspension of trial

legal ethics

By Lorelei Laird

Posted February 23, 2018, 3:31 pm CST

U.S. Naval Station at Guantanamo Bay, Cuba.

The chief prosecutor in the USS Cole bombing trial has appealed the judge’s decision to suspend the case, the Miami Herald and Law360 report.

Lead prosecutor Mark Miller filed a notice of appeal Wednesday, saying he plans to appeal the decision by the presiding judge in the Guantanamo Bay case, Air Force Lt. Col. Vance Spath, to shut the trial down indefinitely.

The one-paragraph filing says Miller is appealing to the United States Court of Military Commission Review, but did not provide a legal basis for appeal.

The filing further muddles the question of who has authority in the case of Abd al-Rahim al-Nashiri, a Saudi national who is accused of planning the suicide bombing of the USS Cole in 2000 that killed 17 American sailors.

The case was stymied in October when three civilian attorneys representing al-Nashiri quit. Rick Kammen, Rosa Eliades and Mary Spears said confidential discussions with their client have been compromised. They were given permission to quit by Marine Brig. Gen John Baker, the chief defense counsel, but Spath says the civilians may not quit without his permission.

Spath briefly sent Baker to confinement to quarters for contempt of court, but a Pentagon official deferred that sentence, which is now under appeal. The remaining military defense lawyer, Navy Lt. Alaric Piette, doesn’t have death penalty expertise and has refused to proceed without such an attorney on his team. But Spath has been unable to summon the civilian lawyers back, despite ordering arrest warrants for two of them.

On Feb. 16, Spath convened court, then spent 30 minutes explaining his frustration at the challenges to his authority and a lack of action from the Pentagon. He said he thought the civilian defense lawyers were attempting to revolt against the military commission system, which they’d agreed in writing to work within. After a sleepless night, Spath said, he’d decided he needs clear answers before continuing the trial.

“We need action from somebody other than me. And we’re not getting it,” Spath said in an earlier Miami Herald article.

At least one survivor, Navy Senior Chief Petty Officer Joe Pelly (ret.), told the Herald he was sickened that the trial hasn’t moved forward in six years.

Al-Nashiri’s trial started in 2011, making it the base’s longest-running death penalty case. He has been held at Guantanamo since 2006.

http://feedproxy.google.com/~r/abajournal/topstories/~3/eduHhM_FOHI/prosecution_in_uss_cole_case_at_guantanamo_appeals_suspension_of_trial

The Reason You Are In The Situation You Are In

My son and I were in line at my neighborhood cafe here in San Francisco when he pulled on my sleeve and told me to look up.

High up on the walls was a large, subtle 180 degree mural of the neighborhood right outside the door: Our area’s hills, valleys, houses, schools, roads. It was beautiful and lifelike and done in such an understated way, that it pulled you in without you even realizing it.

But there was more. If you look very carefully, you can see that the muralist included small phrases and messages and questions throughout the nooks and crannies of the mural. Below the rain gutter of a house. Hidden on a roof.

The one my eyes jumped to was “What kind of stories do you tell?”

What stories do you, unhappy attorney, tell yourself?

What stories do you tell yourself … that keep you in the place you are right now?

I am and being a lawyer is just what we do.
I was a liberal arts major, so I can’t do anything but be a lawyer.
I love to teach, but the pay to be a high school history teacher is too low.
Financial security is my number one life priority.
I have difficulty receiving compliments.
Better to be humble than to be great.
I’m fine. I’m okay.
I am not good asking for help.
I have never been comfortable with taking risk.
I could get hurt.
I am best when I’m pleasing others.
The firm will take care of me.
I don’t need a lot of money, I deserve to just be comfortable.
Death is bad and makes me very scared.
Change is for someone else, not me.

You become the stories you tell yourself.

Casey Berman (University of California, Hastings ’99), is the founder of Leave Law Behind, a consulting practice that helps unhappy attorneys leave the law for alternative careers. Casey focused primarily on software licensing for five years before leaving the law behind in 2004. Since then, his career has helped him develop a wide range of skills, as Management Consultant, VP Operations, Chief Communications Officer and Investment Banker.

http://feedproxy.google.com/~r/abovethelaw/~3/tb8vY3imaBc/

Non-Sequiturs: 02.25.18

Stephen McDaniel

* Audacious: former Mercer Law student Stephen McDaniel, who took apart the body of Lauren Giddings after brutally murdering her, seeks habeas corpus.

* “Did #MeToo really bring a reckoning to the legal industry?” A discussion featuring Katherine Ku, Dahlia Lithwick, Leah Litman, Ian Samuel, and me.

* Speaking of #MeToo and the legal profession, look for more disturbing stories like this one to emerge in the weeks ahead.

* Best friends: which amici in the Supreme Court have the strongest track records in major cases?

* Speaking of SCOTUS, if you were a billionaire who dropped $32.5 million on beachfront property, you too would hire Paul Clement to seek certiorari in your takings case.

* As someone with a mild case of prosopagnosia (aka face-blindness), I totally agree with Eugene Volokh’s recommendations about nametags at conferences.

* Divorce lawyer and former Playboy model Corri Fetman, no stranger to our pages, is running for Cook County Circuit Court judge — and calling out her opponents for running body-shaming attack ads.

* Here’s what the United States can — and can’t — learn from the small, happy, and fairly homogenous nation of Denmark (by Megan McArdle via Glenn Reynolds).

* If you share my confusion about blockchain, here’s a recommendation: check out the new Integra Wallet, just released by legal-blockchain pioneer Integra Ledger.

* Speaking of leveraging the power of blockchain, you simply must check out Casey Flaherty’s new Magic Money Machine™.

* If you work a lot with expert witnesses, you might want to check out Courtroom Insight, for reasons explained by Jean O’Grady.

* Congratulations to Professor Jennifer Levi, recipient of the ABA Stonewall Award for her pioneering work on transgender rights!

David Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

http://feedproxy.google.com/~r/abovethelaw/~3/ynOFVMztRqs/

Sunday, February 25, 2018

Please Tell Me That You Don’t Use Facebook

Whether we like it or not, social media networks are a part of our daily lives. So many people use some form of social media every day. Even grandma has a Facebook account these days. Social media accounts benefit many by giving them the means to stay connected with people on a regular basis with access to instant communication with friends and loved ones, even if they live thousands of miles apart. But every innovation has its negative side effects. Facebook and other social media network users sometimes overshare otherwise private information and post text and photos that they may later regret. We have all heard the stories about the job offer that was rescinded after the prospective employer discovered the forgotten frat house party photos posted years before. In litigation, social media networks can be a rich resource for investigation, information gathering and impeachment material. Every personal injury defense lawyer wants that photo of the plaintiff posted after their accident showing them doing the very thing they claim they can no longer do.

In New York, at least up until a week ago, civil litigants could often avoid disclosure of the contents of their Facebook accounts as long as there was nothing posted on their public profiles that suggested there was material relevant to their claims on the private portion of their page. The New York State Court of Appeals, the highest appellate court in the state, changed that with its recent decision in Forman v. Henkin, No. 1, 2018 WL 828101 (N.Y. Feb. 13, 2018). The Plaintiff in that case fell from a horse owned by defendants and claimed that due to that fall, she suffered from “spinal and traumatic brain injuries resulting in cognitive deficits, memory loss, difficulties with written and oral communication, and social isolation.” During her deposition, the plaintiff testified that she had a Facebook account that she deactivated about 6 months after the accident, and that before the accident, she posted “lots” of photos of her “active” lifestyle. Id. She also testified that she could not remember if she posted any post-accident photos on her page. Id. Additionally, the plaintiff testified that she could no longer compose emails quickly or without difficulty, and that they contained many grammatical and spelling errors when she did due to her cognitive injuries. Id.

Of course, based on plaintiff’s claims, the defendant requested an authorization to obtain the contents of her entire Facebook account. When she did not provide one, the defendant filed a motion to compel discovery of the Facebook material. They argued that based on plaintiff’s claims and testimony, all of the material and photos on her page were relevant. In particular, the defendant argued that the time stamps for written posts might bear on the plaintiff’s credibility concerning her claims of cognitive deficits. The plaintiff opposed that motion, arguing that because the public portion of plaintiff’s Facebook profile only contained one photograph that did not contradict her claims, the defendant could not make a showing that the postings on the private portion of the account might contain anything relevant or material to the defense. Id. The lower court granted the defendant’s motion, but limited the scope of discovery and ordered the plaintiff to produce “all photographs of herself privately posted on Facebook prior to the accident that she intends to introduce at trial, all photographs of herself privately posted on Facebook after the accident that do not depict nudity or romantic encounters, and an authorization for Facebook records showing each time plaintiff posted a private message after the accident and the number of characters or words in the messages.” Id. Although this was only a partial victory for the defendant, it was actually the plaintiff who appealed the decision to the Appellate Division. That court further limited the order and directed plaintiff to provide only photographs posted on her Facebook account that she intended to use at trial. Id. The defendants decided to appeal that order in the Court of Appeals and won.

The Court of Appeals reversed the Appellate Division order and reinstated the original Supreme Court order that allowed for broader discovery of information from plaintiff’s Facebook account. The Court reasoned that New York’s discovery statutes allow for broad discovery of information that is material and necessary to prove or defend an action. Id. In other words, if information is relevant, or might lead to relevant information which bears on the facts and will assist the parties in sharpening the issues and preparing for trial, it should be disclosed. Id. The Court further reasoned that information in a Facebook account, whether posted on a public or private page, should be no exception. Although litigants should be protected from vague and overbroad discovery requests that amount to nothing more than a “fishing expedition” any relevant information is fair game. The Court of Appeals ruled that there should be no heightened standard for Facebook accounts (which some of the lower courts had used) that requires a party seeking discovery to show that there may be relevant material in the private portion of the account based on what can be accessed in the public portion, in particular, because this allows the Facebook user to artificially control access simply by limiting what is on their public profile. Id. Rather, the only standard should be whether the request for discovery is “reasonably calculated” to obtain relevant information in the account or information that might lead to the discovery of relevant information. The Court reasoned that, as in this case, when a litigant places something in issue, such as her mental or physical condition, even private information, like material posted on a private Facebook page, is subject to disclosure if it is relevant to those issues. Id. This is the standard for all other types of information, including medical records, so the Court ruled that Facebook information should be no exception. Id.

Plaintiffs may see this as a loss because it will now be a bit more difficult to avoid disclosure of Facebook information in the future regardless of whether the plaintiff maintains a public or private account. This is, however, less a loss and more a cautionary tale. In reality, before the Forman decision, the lower courts in New York, while applying the heightened standard for discovery of Facebook information, often ordered disclosure of private Facebook information relevant to specific claims in a litigation anyway. Some of these decisions are discussed at length in Forman. Even the Forman court acknowledged that disclosure of a litigant’s entire Facebook account is not automatically required simply because a person commenced an action. The plaintiff in Forman was only required to provide material relevant to facts she placed at issue by her own testimony. This is the same standard that applies to all discovery in civil litigation.

The good news is that the scope of Facebook discovery can easily be limited. Litigants are still not entitled to unlimited access to Facebook material simply because there might be something relevant in the account. A request for unlimited access to Facebook information can be appropriately rejected with an objection that it is too broad and vague. Litigants are still required to tailor their requests so that they seek only specific information relevant to the claims and facts at issue. In other words, do not ask for the entire Facebook account, but ask for photos depicting particular activities or postings about certain topics within a designated time period that makes sense based on the case. If you must respond to such a request, be specific about why you object, if you do, and about what information you provide in response. More importantly, be glad that you are involved in a civil litigation, and not a criminal matter. In criminal matters, courts often grant search warrants that may require disclosure of everything in a Facebook account. This is common in large scale drug and gang conspiracy cases where what someone else posts about you could be used as evidence to link you to the conspiracy – and then your whole Facebook account and every other social media account is fair game.

The real lesson here is not a new one. Be careful what you post on social media and on other internet platforms. Advise your clients to be careful and discreet with posts. Anything that goes up on a site that others can view, whether or not that network is private, is vulnerable and subject to discovery. I am always thrilled when I ask a client if they use Facebook and the answer is no.

Christine A. Rodriguez is of counsel to the firm Balestriere Fariello and successfully represents individuals and small businesses in all manner of employment discrimination, civil rights, criminal defense, civil litigation and commercial litigation matters. She also advises small businesses on all aspects of legal matters from contract to employee issues. You can reach her by email at christine. a. rodriguez@balestrierefariello. com.

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Isidore Starr, known as the father of law-related education, dies at the age of 106

Obituaries

By Debra Cassens Weiss

Posted February 23, 2018, 4:12 pm CST

Isidore Starr. Photo courtesy of Margaret Fisher.

Isidore Starr, an educator and law grad who is known as the father of law-related education, died earlier this month at the age of 106.

“Isidore lived a very productive 106 years,” says Norman Gross, a former director of the ABA Division for Public Education. “He was known as the ‘father of law-related education’ for good reason.”

Starr brought social studies to life with legal issues and cases, challenging both teachers and students to reach a better understanding of the U.S. Constitution and laws, Gross said.

Starr not only developed an engaging, interactive method of teaching, he also created a national and international movement to include law in social studies. His educational content and methods are still being used, according to Margaret Fisher, a practitioner in residence at Seattle University School of Law.

“To answer how Isidore Starr influenced education is like answering how William Shakespeare influenced English literature,” she says.

Starr first began using the law to teach his civics students in 1934, when he was a teacher at Brooklyn Technical High School and also attending St. John’s University School of Law in the evening, according to a Legacy Washington profile.

The lesson plans, which promoted memorization and rote learning about government structure, “were deadly,” Starr recalled in the article and in this video. The first time he turned to the law in class, the lesson was supposed to be about the bureaus of the police department. He decided to lead the lesson by asking his students about the use of torture to gain confessions, an issue he had studied in law school.

Starr recalled telling his students: “Look, we create a police department to apprehend criminals. Then we handcuff them by saying, ‘You can’t torture them.’ Do you think that’s right?”

“The classroom atmosphere changed,” Isidore told Legacy Washington. “We were beginning to discuss moral reasoning, what’s right and what’s wrong in dealing with situations.” A transcript of Isidore’s interview with Legacy Washington author Anna Samuels is here.

Isidore left teaching to serve in the Army during World War II and then returned to the high school classroom. Later he taught at Queens College.

Starr wrote a series of articles about using law to teach controversial issues, which were later compiled and published in a book. He also received an M.A. in American history from Columbia University and a Ph.D from the New School for Social Research.

The ABA Division for Public Education established an annual award in 1983 known as Isidore Starr Award for Excellence in Law-Related Education. Starr presented the award established in his name and participated in the division’s national conferences well into his 90s, according to Mabel McKinney-Browning, a former director of the division.

“Everyone always marveled at his expertise and sense of humor,” McKinney-Browning recalled. “Isidore often reminded audiences of the importance of the partnership between educators and lawyers in building programs to strengthen understanding of the rule of law and its critical role in our democratic republic.”

Gross says Starr served for decades as an informal adviser to the ABA in its efforts to educate the public about the law. “Today, his vision lives on through the ABA’s public education efforts and the many law-related education programs throughout the country,” Gross says.

Gross and others who knew Starr commented on his intellect, his mentoring and love of learning. Simon Fraser University education professor Wanda Cassidy says she was among the people mentored by Starr. “I continue to be inspired by Isidore’s ideas, and also by who he was—a compassionate, astute, insightful, inquisitive, humorous, and truly lovely human being,” she said.

In the Legacy Washington profile, Isidore said that education holds the key to the future, and people have to be educated that humanity “is a many-splendored thing” with “many views, many opinions, many ideas.”

“We have to be tolerant of each other, accept each other, weigh each other’s arguments, and argue without killing each other or without destroying each other,” he told the interviewer.

Starr, the son of Russian immigrants, is survived by his son, Larry, along with three grandchildren and three great grandchildren, according to his obituary. His wife, Esther Kay Rubin, died in 2008.

http://feedproxy.google.com/~r/abajournal/topstories/~3/4ZzBYJ-PPyc/isidore_starr_known_as_the_father_of_law_related_education_dies_at_the_age

In-House Work Is A Delicate Balancing Act

Olga V. Mack is a startup enthusiast, tech lawyer by design, general counsel by choice, mother of two, wife of one, prolific writer, enthusiastic public speaker, and passionate, fearless advocate for women in corporate boards and leadership. Notes to My (Legal) Self is her attempt to synchronize her left and right brains. After all, a picture is worth a thousand words, even when you practice law… @olgavmack

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Saturday, February 24, 2018

ATL Set To Unveil New Ranking: What In-House Counsel Really Think About Law Firms

Next week, Above the Law will unveil its comprehensive law firm brand rankings based on an extensive survey of in-house counsel. Joe Patrice and Elie Mystal sat down with Above the Law Research Director Brian Dalton to talk a little about the ranking and what clients are looking for in a law firm.

Stay tuned next week for the rankings!

http://feedproxy.google.com/~r/abovethelaw/~3/LAjFfCeTBMQ/

Wherein White People Prove My Point And Send Me Hate Mail

Yesterday, I waded into the guns-for-teachers debate by pointing out the likelihood than an armed group of teachers would inevitably turn those weapons on their black and brown students, murdering them in schools just as cops kill unarmed minorities in the streets. We know that police officers, who receive lots of training in the use of deadly force, regularly kill them without justification. And we know that the legal system lets them off the hook for it almost every time. There’s simply no reason to believe that teachers would behave any better than the police.

I almost didn’t write the post because the point was so obvious it bordered on banal. I certainly didn’t expect it to be “controversial.” Of course, since I’m an openly black writer, some blowback is to be expected whenever I publish anything. But I expected them to be of this variety (ed. note: I’m redacting the names from all the emails, even from people who used real email addresses, because frankly I’m a better person than these people; all grammatical errors are in the originals, because of course they are):

Subject: your recent article about armed teachers shooting black students.
Body: heres hoping youre right. 😉

The winky face really puts the entire homicidal threat in context, don’t you think?

Pointing out that white teachers were likely to do what white cops already do resulted in a torrent of “you’re the real racist” type of emails. Here’s one of my favorites:

Subject: WHITE PEOPLE HATE?
Body: Elie,

I just read your article that if teachers are armed they will shoot black kids. How long have you been this racist? I was deeply disturbed by the article and your hatred toward white people? How did you get a platform to speak such negative bullshit?

I will make sure your article is shared and spread and I’m gonna contact your editor today. One of the most disturbing things I’ve seen on social media in a minute. People with thinking like yours are a menace to society. Where is the love?

Thank you,

There’s something delightful about a person threatening to… share my work. “You’ve stepped in it now, hoss. I’m gonna READ IT and make OTHER PEOPLE READ IT TOO!” My “editor” says “thanks.”

But when you really analyze how this guy thinks, what he’s really saying is that he lives in a world where people say horrible things every day that would cost them their jobs if their boss or more people knew what they said. He assumes I live in that world too. The concept of being able to proudly say what you really think is foreign to him, because what he probably “really thinks” is so disgusting that he can’t get away with saying it anywhere other than his own alt-right enclave. It’s why these people think “political correctness” is such a scourge. Because when these people crawl out from under their rocks, decent people are horrified. And these guys mistake that horror for hyper-sensitivity.

In any event, eventually my post ended up on Breitbart, and that’s when my inbox really started vomiting on me. I’ve received over 100 emails expressing some measure of… displeasure. Here are some lowlights:

Subject: Being a sitting duck!!
Body: I can’t even begin to explain how wrong and stupid your article sounds shit back children being murdered. What facts do you have? Are you saying that all black kids have an authority issue? That all black kids don’t respect teachers and that the only way a teacher can respond is by shooting them? Or like in Sandy Hook where the shooter walks in the class and the only defense the teacher and kids had was to duck down and pray. Your ignorance is overwhelming!!

Subject: Arming teachers
Body: Will you please shut up with such racist stories against white people this doesnt move the country forward at all. Ive spoke to many of black peers and what ive said time and again is govt and the media try and drive a wedge between blacks and because since the founding of this country we have fought together and if we ever become truly united we are an unstoppable force and u know what theyagree

Subject: (no subject)
Body: You are a racist! Most violent crimes are commit by by people of color in this country and aboard , that’s a fact you cannot excuse! !!!!

Subject: Give teachers guns
Body: Cops don’t murder blacks. They shoot when their commands are not followed and their safety is at risk!

Subject: Arming Teachers
Body: Sir, But why, why would a student ever need to threaten a teacher?
There is no civil justification for it.
When you publish articles like this, do you not have to start with the base assumption it’s acceptable to threaten teachers? Are you ok with students threatening teachers? Your article gives young boys the impression physical violence is justified and hence may cost them their lives. Is not your premise potentially lethal if taken as truth?
The second Amendment is about stopping tyranny. Wether in a classroom or the home

Subject: Incredible
Body: You are quite possibly the biggest piece of shit I’ve ever seen. Do you really think that being black is so fucking important? Do you really believe that race baiting is the pinnacle of political statements? Seriously, you should kill yourself, and I mean that with the least amount of respect possible. You’re the type of person to call someone a coon for not agreeing with you.

In short: you’re a nigger, and you always will be, because you refuse to be anything else. Keep blaming all your problems on YT. That’ll really set your name in stone as someone who’s worth listening to.

Subject: Armed Teachers
Body: Armed white teachers shooting black and brown hoodlums.
I’m good with that.
How many times we read and see video of rabid punks beating the shut out of a teacher. Yout’s of color, ms-13 animals.
.45 with heaviest lead unjacketed hollow points might work.
Maybe it would save us the expense of incarcerating the gangstas later

Subject: Your racism comments…
Body: I have news for you…blacks in America, are not now, never have been and never will be the “black race”!
Though there is only 1 other country whose population has more black people than America, your average “racist” has no proplem with black people they meet and interact with while traveling in other countries, or when met and interacted within America.
The problem white people have with black people born and raised in America has nothing to do with their race or skin color…it has to do with the sub-culture they’ve created. The Ebonics, rap music so inundated with violence, thug lifestyle, gang trouble, baby mama/baby daddy, etc. Not to mention — as a percent to the overall population — the excessive crime, use of government entitlement programs, drug abuse, etc.
And why does this sub-culture exist? Because blacks in America refuse to assimilate into American culture and simply be “American’s”…instead, they create, maintain and require a constant barrier between blacks and whites, simply because they refuse to stand up and be actual individuals in what could easily be a “color blind” country…if only they’d stop leveling the heinous charge of “racist” every time things don’t go their way.
I honestly don’t know what was the greatest waste…50+ years of affirmative action, or the death of one of the greatest men in history, MLK, Jr. whose inspirational words fell on black deaf ears.
Sincerely,

If there’s one thing Martin Luther King Jr. stood for, it was for black people to stop leveling the heinous charge of “racist” at white folks, and instead assimilate into American culture. If only millions of black people had listened to him while he was alive, we wouldn’t have compounded the tragedy of his death with affirmative-action, which has only been the most effective social policy since Emancipation. What a waste.

Sarcasm off.

Look, the overwhelming messages from these emails are:

I’m racist.
Black kids are dangerous.

And that entirely proves my point. You’ll note that the people I’ve pulled out of the pile here don’t even argue that teachers WON’T SHOOT MINORITY CHILDREN. They accept the fundamental premise of my post. All these people are arguing is that dead children will have done something to deserve their fates. And somehow I’m racist for pointing out what it seems we all know is going to happen.

Anyway, like I say, I have over a hundred of these. (And some very nice letters too!) But two really stood out to me. This one is just chilling:

Subject: Teachers with guns.
Body: After working at schools for over 28 years I am all for teachers having guns. Maybe putting a cap in a black asshole maybe they will be put on notice follow the rules like everyone else does. Then maybe they will be able to read and write and learn something for once.
Love, White”e

Based on the turn of phrase, I’m assuming this person is not a teacher. He says he’s “working at schools,” so I’m guessing some kind of auxiliary support staff like a maintenance person. It recalls to mind one of the most difficult things I had to learn about being black as I grew up: white people that you don’t even notice are always around you, watching you, and ready to end your life at the slightest opportunity. Like, as a black person, you’re always on the lookout for the virulent racist who has some kind of power over you — the cop or the store clerk or, yes, your teacher. But at some point you learn that the life-threatening racism could come from anyone, at any time.

This guy didn’t use a real full name, or else I’d try to alert his employer. Because this guy is dangerous. This is the guy who is going to plant something in your locker. This is the guy who will give false testimony against you. If you give teachers guns, this is the guy is going to find a way to get his hands on one. This is the guy in the shadows. He doesn’t seem to be part of the system, but he’s actually a key cog in the oppression of minority children.

The other really notable example of how biased this country is comes from another institution altogether:

Subject: (no subject)
Body: I feel sorry for you living with such bitterness, anger, and racism in your heart.

I am a Chaplain and I provide emotional and spiritual support in the hospital to everyone equally.

I am so thankful the minorities I have the pleasure of meeting don’t have your mindset.

Even the prisoner patients aren’t like you.

Yes, there is injustice.

You come across as if you are just fine, gleeful, perhaps if a white person is killed.

Actually, I realize it is students with your attitude that probably would be shot on purpose just to shut you up.

I really am going to pray for you. Along with all of our fellow Americans.

That there is a man of the cloth figuring I would probably be shot just because I wouldn’t shut up. I guess feeding me to a literal lion would be too time-consuming for the average schoolteacher. But, it’s cool, the chaplain is gonna pray for me.

Oh, what the hell, let’s end this on a high note:

Subject: WOW!!!???
Body: You are truly out of your mind. I agree there needs to be something done with our current gun laws. But that was by far the most unintelligent immature racist (Yes racist) shit I have read in a long time. I mean really are you that stupid? Because I’m pretty stupid and I could come up with something way more intelligent and interesting than this juvenile click bait tantrum that you just wrote. May God, Buddha, Mohamed, etc… have mercy on stupid soul. The world is now a scarier place. Now that people as dumb as you exist. Have a great day or whatever. Good luck in life.

May God indeed “have mercy on stupid soul.”

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

http://feedproxy.google.com/~r/abovethelaw/~3/GxhoadQzpfI/

Meanwhile, On Earth 2 — See Also

THIS BIGLAW DAD MAKES ME FEEL BAD ABOUT MYSELF: I should try to learn from him, but, since I’m a guy, my impulse is to challenge him to some kind of combat. But I’d probably lose. I think I’ll just drink and play some Playstation. She never judges.

PRESIDENT TRUMP IS ABOUT TO UNLEASH A NEW WAVE OF JUDICIAL NOMINEES: I think I will trying sneezing on them, War of the Worlds style, and see if that helps.

ANOTHER NEW YORK LAW SCHOOL GETS ON THE GRE TRAIN: It’s getting to be like when the conductor says “there’s another train right behind us” but everybody crowds onto the subway car anyway. Then it randomly skips your stop because it decides it need to be an “express” train without really telling you.

THE NCAA IS TRYING TO SHOW HOW COLLEGE ATHLETES ARE VERY MUCH LIKE PRISONERS: When it comes to whether or not those athletes are “employees” of their universities. The NCAA has made this argument for years, but it’s good to remind ourselves to be disgusted by it every now and again.

BANK PAYS MEN TWICE AS MUCH AS WOMEN: If the wage gap were a man, he’d be in worse trouble than Harvey Weinstein.

http://feedproxy.google.com/~r/abovethelaw/~3/yzTBOx2tNng/

Friday, February 23, 2018

Bah Gawd! That’s Don McGahn’s Music!

http://feedproxy.google.com/~r/abovethelaw/~3/xcGd_wjdHtw/

Thinking Of Changing Your Firm’s Tech Setup? Don’t Panic!

http://feedproxy.google.com/~r/abovethelaw/~3/Y1hPuiDLjx0/

That Poor Dog — See Also

(Not the actual dog from the story.)

Trigger Warning For Animal Lovers: Okay, maybe that isn’t the best turn of phrase here… Anyway a lawyer got arrested for sexually abusing a dog — it’s awful.

Summer Associate Programs Are Shrinking: Try not to freak out too much.

Biglaw Firm Is Big Ballin’: Latham & Watkins racked up over $3 billion in revenue in 2017.

The Trump Bump Is Real: The increase in law school applications goes beyond anecdotes.

Let’s All Point And Laugh At The Non-Lawyer: It is actually pretty funny.

http://feedproxy.google.com/~r/abovethelaw/~3/MnVHKY5gXOw/

Thursday, February 22, 2018

Juror tells judge he didn’t want to convict Martin Shkreli’s BigLaw lawyer

Trials & Litigation

By Debra Cassens Weiss

Posted February 22, 2018, 7:00 am CST

Martin Shkreli, the former client of Evan Greebel/Shutterstock.com.

Jury deliberations in the trial of former BigLaw lawyer Evan Greebel were “a complete mess,” according to a juror affidavit.

The jury was unanimous when it convicted Greebel on Dec. 27 of conspiracy to commit wire and securities fraud, but one juror now says he felt threatened by other jurors and was forced to vote guilty. Courthouse News Service and Bloomberg have stories.

Greebel, a former income partner at Katten Muchin Rosenman was convicted in connection with his representation of convicted former drug company CEO Martin Shkreli.

Greebel was accused of helping Shkreli pay off investors who lost money in his hedge funds with assets from drug company Retrophin. Prosecutors had argued Greebel used fraudulent settlements and consulting agreements to transfer the money.

In a Feb. 17 affidavit, juror Desmond Sankar said he was confused throughout deliberations. Sankar said he told other jurors he believed prosecutors had not proved their case against Greebel, and thinks the lawyer should never have been charged.

When Sankar asked to see more evidence, one juror threatened to remove him from the jury and to write him up to the judge if he didn’t vote to convict, Sankar said. That juror and a second one said Sankar would never vote to convict because he was Catholic. “My religious faith did not prevent me from being fair and impartial,” Sankar said.

Sankar said he had called the court the day after the verdict because his guilty vote was not what he wanted to do. He said he answered the judge’s questions, but he thought the judge was asking only about physical threats.

Sankar, a part-time worker for a delivery service, also said jurors discussed the case before deliberations began and other jurors had said they believed Greebel was innocent.

Defense lawyers are asking U.S. District Judge Kiyo Matsumoto to vacate the guilty verdict or order a new trial.

http://feedproxy.google.com/~r/abajournal/topstories/~3/JkyeezO1EeM/juror_tells_judge_he_didnt_want_to_convict_martin_shkrelis_biglaw_lawyer

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Who You Gonna Call? — See Also

WE’VE MADE A HELPFUL CHART TO HELP IN-HOUSE COUNSEL KNOW WHEN THEY SHOULD CALL IN THE BIG GUNS: Well, “helpful” might be an exaggeration.

REGARDLESS OF WHERE YOU STAND ON #METOO, THIS “PUNISHMENT” HELPS NOBODY: A bunch of women accuse a guy of sexual harassment. Option A: You believe the claims to be truthful, and you fire the guy. Option B: You don’t believe the claims, and you leave the guy alone. The Option where you let the guy resign as Dean but keep him on as your highest paid professor is not a “option” so much as a move of pure idiocy that SOLVES NOTHING.

PRESIDENT BANKRUPTCY MAY CLARIFY STUDENT LOAN BANKRUPTCY: Trump, the King of moral and financial bankruptcy, might actually know how to reform rules here in a way that makes sense.

LAW FIRMS SHOULD PROVIDE STUDENT LOAN ASSISTANCE TO THEIR LAWYERS: ATL-Columnist Jordan Rothman is significantly younger than me and thus might not have learned all of the lessons from Bendini Lambert and Locke. But, trust me, if a Firm offers to pay your debts and buy you a house in Memphis… rest assured that there’s an Albino monitoring your every move.

SCHOOL IS SUED OVER ITS ANTI-MUSLIM BULLYING CAMPAIGN: In our latest evidence for why we can’t have nice things.

http://feedproxy.google.com/~r/abovethelaw/~3/Au0_hMcz4vE/

Wednesday, February 21, 2018

Trump asks Justice Department to write regulations banning gun bump stocks

Attorney General

By Debra Cassens Weiss

Posted February 20, 2018, 5:31 pm CST

President Donald Trump said Tuesday he has asked the U.S. Justice Department to draft regulations that would ban devices known as “bump stocks” that are used to accelerate gunfire on semi-automatic weapons.

Trump said at the White House that banning the devices could help prevent mass shootings, report the New York Times, ABC News, NPR and the Washington Post. “I expect that these critical regulations will be finalized … very soon,” Trump said.

Trump said in a memorandum that the Justice Department has already begun the process of promulgating a federal regulation interpreting the definition of “machine gun” to clarify whether bump stocks should be illegal. The advance notice of rulemaking has already concluded, and the Justice Department received more than 100,000 comments.

“Today, I am directing the Department of Justice to dedicate all available resources to complete the review of the comments received, and, as expeditiously as possible, to propose for notice and comment a rule banning all devices that turn legal weapons into machine guns,” Trump said in the statement.

The Las Vegas gunman had used a bump stock to kill 58 people at a country music festival last year. The 19-year-old suspect in the high school shooting last week in Parkland, Florida, had used an AR-15-style semi-automatic rifle that was purchased legally, USA Today has reported. There have been no reports that he used a bump stock, according to NPR.

The Bureau of Alcohol, Tobacco, Firearms and Explosives had concluded in 2010 that bump stocks weren’t regulated by existing law. Sen. Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, said in a statement that she does not believe the ATF has the authority to ban bump stocks and legislation is needed.

“If ATF tries to ban these devices after admitting repeatedly that it lacks the authority to do so, that process could be tied up in court for years,” Feinstein said, “and that would mean bump stocks would continue to be sold.”

http://feedproxy.google.com/~r/abajournal/dailynews/~3/VzCw7XMuqMg/trump_asks_justice_department_to_write_regulations_banning_gun_bump_stocks

Blockchain For Dummies Non-Transactional Lawyers

If you come from a litigation and/or humanities background, as I do, you probably share my confusion about this whole “blockchain” thing. Sure, you understand the theory behind blockchain — it’s “an open, distributed ledger that can record transactions between two parties efficiently and in a verifiable and permanent way” — but you’re unclear about how it works as a practical matter.

In the pages of Above the Law, we’ve published a number of posts about blockchain that do a nice job of explaining the technology. But if you still have questions even after reading all those stories, you’ve come to the right place.

During Legalweek, here in ATL’s home base of New York City, I headed uptown to the offices of Orrick for an event hosted by the Global Legal Blockchain Consortium (GLBC). As noted on its website, the GLBC’s mission is “to organize and align the stakeholders in the global legal industry with regard to the use of blockchain technology to enhance the security, privacy, productivity, and interoperability of the legal technology ecosystem.” The Consortium currently boasts more than 24 members, and it expects to have more than 40 within a few months.

This month is a big one for the GLBC. As noted during introductory remarks by David Fisher — interim chairman of the Consortius and CEO of Integra Ledger, a leading blockchain company in the legal space — the Consortium is organizing a Global Legal Hackathon, taking place in more than 45 cities on six continents from February 23 to 25. The GLBC hopes to have some 10,000 participants, which would make it the largest legal hackathon and one of the largest hackathons of any kind, period.

At the GLBC event I attended, three groups shared their “proofs of concept” for how blockchain could be used in different areas of the legal industry. First up: Trent Carlyle, CTO and co-founder of Lawgical, the company behind ServeManager, the most popular software for process-serving firms and their clients. (Lawgical also owns Legal Talk Network, producer of many great law-related podcasts, including Above the Law’s own Thinking Like A Lawyer.)

Showing that blockchain isn’t just for transactional attorneys, Carlyle demonstrated how blockchain can aid a task dreaded by many litigators: service of process. One of the biggest challenges associated with service is providing proof that process was served or attempted to be served. How would blockchain address this problem? As explained by Carlyle, after a process server in the field completed or attempted to complete service, she would open up the ServeManager app and enter the metadata related to that effort — information such as GPS coordinates, a timestamp, or device data. ServeManager would then, via API call, provide that metadata to Integra Ledger. Integra would in turn post this metadata to blockchain, generating a unique blockchain ID for that attempt.

This blockchain ID could then be added to the attempt information within ServeManager and to any physical affidavit relating to the service attempt. This ID could then be queried to display the untampered attempt data, allowing a client, law firm or court to confirm that the data on the affidavit or related service of process records has not been altered since entry. (For more, check out the demo on the ServeManager website.)

One question posed to Trent Carlyle: could GPS spoofing be used to generate incorrect location information (e.g., making it appear that a process server was at a particular location when actually she wasn’t)? Carlyle acknowledged that this is an issue, which is an issue related to blockchain technology in general: the blockchain is only as good as the information provided to it. For example, a blockchain ID can verify that certain service-of-process information has not been altered since entry, but it can’t verify the correctness of the information itself.

After Carlyle’s presentation, Laura Fetter, a partner at the Fasken law firm in Toronto, explained how blockchain could be used for the Continuing Legal Education (CLE). Fasken offers CLE sessions to its clients for free, and the firm would now like to use blockchain technology to help those clients record and report their CLE credits.

Recording and verifying CLE credits is an administrative task that lends itself to automation and blockchain verification. After a client attended a CLE session, she would simply “save” that attendance in the software used for tracking CLE. This software would then provide the relevant information about the CLE session to Integra, which would in turn generate an identity ID (just like the identifier used for service of process).

The CTO of Integra, David Berger, explained that right now Integra focuses primarily on this issue of digital identity — i.e., assigning an ID number to people, institutions (like law firms), documents, and transactions (like a CLE session). Once such a digital-identity regime is more widely used, it will become very powerful and practical. As described by IBM, a major player in the blockchain world:

Digital identity is critical to many business and social transactions. It enables ways to interact with billions of users in the digital world. However, traditional identity systems are costly, disjointed, fallible, and hindering innovation and greater customer experience.

The distributed trust model is a new way of managing identities. Blockchain technology empowers consumers to control their own identity and share between trusted entities with their consent. Also, no single institution can compromise a consumer’s identity.

Right now, Berger said, most blockchain products (including Integra) focus on recording and providing a unique identifier for digital matter that exists outside the blockchain. In other words, a given blockchain ID would refer to some external document or data — e.g., data about an attempt to serve process, or attendance of a CLE session — and confirm that the document or data hasn’t been tampered with or otherwise altered. But the blockchain doesn’t store the entire binary string representing the specific provisions of a given document. (There’s no theoretical impediment to doing so, but it would require an extremely vast amount of data and capacity.)

The final demo of the evening came from Peter Buck and Mike Sanders of NetDocuments, a leading cloud-based document and email management company. With some 7 billion documents under management, NetDocuments aims to host and deliver documents securely to its clients. To this end, it wants to move to digital-first agreements and increase trust in digital documents — which explains its keen interest in blockchain.

Buck and Sanders outlined a scenario familiar to pretty much all transactional lawyers. Imagine you have eight different versions of a document — they took a non-disclosure agreement (NDA) as their example — floating around. You have a bunch of drafts, as Word documents, and you have a final version, as a PDF file. How can the parties to the agreement make sure that they are working from the same, final document, and access that document easily in the future?

Using NetDocuments and Integra, it’s easy. First, the parties negotiate the NDA. Second, the parties submit the executed document to blockchain. Submitting the final document, the PDF file, generates a blockchain ID associated with that document.

If one of the parties ever wants to check that the document they have is the final version, they just access the NetDocuments platform, enter the blockchain ID for the final document, upload the document they’re wondering about, and click a button. NetDocuments, powered by Integra, will then tell the user whether the uploaded document is the same as the document connected with the blockchain ID. The NetDocuments platform also allows users to compare how documents held locally on a specific computer compare to documents previously sent to the blockchain, again using the blockchain IDs for verification purposes. (This is, roughly speaking, also what underlies so-called “smart contracts.”)

Still a little confused about blockchain? Don’t worry; the practical application of new technologies often takes a while for companies to implement and for consumers to understand. But as I learned from the Global Legal Blockchain Consortium’s event, the applications for blockchain in the law are myriad.

The best way to understand a technology is to use it — and if you’re a practicing lawyer, the chances are high that you’ll be using blockchain before you know it.

Global Legal Blockchain Consortium
Global Legal Blockchain Consortium Forms, Integra Ledger A Key Member

http://feedproxy.google.com/~r/abovethelaw/~3/uvfmXR7lLJk/

Let’s Try Treating Diverse Attorneys Like People, Not Collectibles — See Also

Meet A Minority Attorney, Get BINGO! Maybe the firm was really trying to make sure diverse attorneys had meaningful networking opportunities, but this? This is not how you do that.

Bonus Season Is Still Going On: And associates at Cooley are very happy about that indeed.

Use Twitter To Get A Celeb Date To The Barrister’s Ball: The acceptance might be 3 years late, but what can you do?

Yale FedSoc Is Holding A Tasteless Gun Event: Because really, why would anyone else’s feelings ever matter.

“Common Sense”? “Willful Ignorance”? It’s all pretty much the same to Justice Clarence Thomas.

http://feedproxy.google.com/~r/abovethelaw/~3/oNqv3wlstic/

Tuesday, February 20, 2018

FBI Admits To Not Following Protocols After Tip On Florida School Shooter

As reports have leaked out about alleged Florida school shooter, Nikolas Cruz, a disturbing amount of people have basically said that they knew something was wrong with the individual.

How this clearly disturbed individual was able to get his hands on an AR-15 is an America crisis which we will refuse to address as we just patiently wait for the next mass shooting.

But, given that we live in a homicidal society that nobody has the political will to address, we really need law enforcement to be on the ball whenever one of these threats is made known to them. Here, it would appear that the FBI dropped the ball. From NPR:

The FBI says that someone called its tip line to report concerns about Nikolas Cruz, who has told police he killed 17 people in a Florida high school this week — but that the bureau failed to follow protocols to assess the threat.

The bureau says a person close to Cruz contacted the FBI’s Public Access Line on Jan. 8 to report concerns about him. Those concerns included information about Cruz’s gun ownership, a desire to kill people, erratic behavior and disturbing social media posts.

The caller specifically mentioned the potential for Cruz to carry out a school shooting.

Under FBI protocols, that information should have been assessed as a potential threat to life and forwarded to its Miami field office for further investigation.

But that never happened.

I can’t help feeling that if the shooter had been named “Muhammed Al-Scarypants” somebody would have followed up.

We might not have the political will to address our national addiction to guns. But hopefully we can at least hold the responsible officials accountable for this failure of law enforcement. “If you see something, say something” doesn’t work if law enforcement doesn’t see white kids as potential threats.

FBI Received A Tip Last Month About Florida Shooting Suspect — But Nothing Was Done

Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.

http://feedproxy.google.com/~r/abovethelaw/~3/9d3PpPiuaro/

Federal Judge Ruined The Internet Yesterday

Judge Katherine B. Forrest has put up with a lot of ridiculous and horrible bulls**t in her tenure on the bench. So let’s establish off the bat that she doesn’t deserve most of the guff she takes.

But her decision yesterday in Goldman v. Breitbart, et More Respectable Outlets, is just awful. And it’s not even that it’s necessarily wrong… just awful. Read the whole thing here.

In a nutshell, the Goldman case is about a photo of Tom Brady and Danny Ainge. Goldman took the picture and then uploaded it to Snapchat. The picture bounced around social media and ended up on Twitter. The defendants, a number of media organizations, “embedded” the Tweets, allowing their readers to see the original Tweets posted publicly on Twitter’s servers.

Defendants argued for the “Server Test,” a modestly developed doctrine that basically says it’s only a violation if someone hosts the infringing image on their server. It’s a sound and entirely necessary doctrine because otherwise Google would be bankrupt for showing previews of search results.

Judge Forrest went the other direction:

Having carefully considered the embedding issue, this Court concludes, for the reasons discussed below, that when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party (Twitter) does not shield them from this result.

That’s disturbing. Defendants had warned — without hyperbole — that walking away from the Server Test would “cause a tremendous chilling effect on the core functionality of the web” and amici argued that it could “radically change linking practices, and thereby transform the Internet as we know it.”

Why in the world would the Server Test not apply?

He and his amici caution that to adopt the Server Test broadly would have a “devastating” economic impact on photography and visual artwork licensing industries, noting that it would “eliminate” the incentives for websites to pay licensing fees, and thus “deprive content creators of the resources necessary to invest in further creation.”

Then don’t put it on f**king Snapchat.

Look I don’t know what to tell you, but if you wanted licensing fees for your work, go sign up with Getty or something. But if you’re going to post them on Instagram or Snapchat — the photography equivalent of scribbling “For a good image call…” on a bathroom wall — you shouldn’t get to walk in here and act like social media took food out of your kids’ mouths.

And this sentiment mirrors Judge Forrest’s parting words too:

In this case, there are genuine questions about whether plaintiff effectively released his image into the public domain when he posted it to his Snapchat account. Indeed, in many cases there are likely to be factual questions as to licensing and authorization. There is also a very serious and strong fair use defense, a defense under the Digital Millennium Copyright Act, and limitations on damages from innocent infringement.

But this is the whole problem with this opinion that is Judge Forrest’s fault. Maybe she’s right and she’s just the messenger for a copyright regime in need of desperate overhaul in light of modern technology, years of lobbying mischief, and that nonsensical Aereo opinion. Or maybe she’s wrong and created an unnecessary and inefficient hurdle for media by creating a violation without realistic redress sparking frivolous lawsuits against media outlets for years to come.

But regardless of the substance, what really sucks about this opinion is her agreeing to the parties’ stipulation to sever the display right issues from the defenses and force the court to put out an opinion lacking critical context. Now all we know is that embedding social media posts created by users for the express purpose of free public viewing is a violation. We just have to stay tuned to find out if it’s one that gets an outlet in trouble or not.

That’s all well and good when you’re managing a busy docket, but every media outlet in the country woke up this morning trying to figure out if they can report on the President without violating the Copyright Act.

(The full opinion is unironically embedded on the next page.)

Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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