"Do not let yourself be conned" by those (including me) who object to campaigns against the firms, they say: The lawyers are "suicide bombers trying to blow up democracy" who must be condemned and shamed. To disagree is to argue that lawyers should "never be held accountable."
That is true, Dahlia and Mark argue, even if the lawyers have arguments that might win in court. If judges agree with the lawsuits, that just shows that judges are in on the con. The judges and their false views of "law" are acting just as illegitimately as the lawyers.
I have a different view, and I thought I would expand on why.
First, I don't think anyone is arguing that the lawyers shouldn't be held accountable for bogus lawsuits. Under the ethics rules, lawyers can be punished for filing frivolous suits. They can even be disbarred.
It's entirely appropriate for a lawyer who filed a lawsuit in violation of the ethics rules to be punished by the bar for that. I'm fine with severe punishments for that if appropriate, including disbarment. That's fine.
But what is happening here is quite different, I think.
The @ProjectLincoln's campaign against @JonesDay isn't criticism about a particular lawyer who filed a particular claim. It's an effort to pressure a 2,5000 lawyer firm to drop a client.
The starting premise is that @JonesDay lawyers are internally divided on this representation, so that upping the pressure on the firm -- by criticizing the firm, hurting recruitment, and getting other clients to complain -- can get them to drop out. reuters.com/article/usa-el…
Dahlia and Mark celebrate this as "democracy in action." Their rosy view is premised, I gather, on their confidence that there's a simple line between good and evil and that everyone obviously knows the difference (even if some people try to "con" you by pretending otherwise).
But I don't think that's right. Which side of highly controversial legal cases involves good or evil is often contested, entirely in good faith. Sometimes that's just because people are on different sides. But it's also b/c because people just use different reference points.
For example, imagine a lawyer is representing a truly reprehensible client who happens to have a strong legal claim for relief based on a legal doctrine that courts have wrongly recognized and that has problematic effects but that might vindicate an important principle.
On one hand, you could say that the lawyer's claim is evil because it tries to help a reprehensible client, it causes problematic effects, and it relies on a doctrine that shouldn't exist.
On the other hand, you could say that the lawyer's claim is good because it is a strong legal claim under current law, and it might vindicate an important principle.
It seems to me that you can get agreement on which side is right in specific cases among those that share all the same priors. But the agreement quickly breaks down once you go outside that bubble.
Given that I see the good/evil line as often contested in good faith, and murkier than it seems, I tend to see campaigns to get law firms to drop despised clients as problematic generally. I tend to see examples of it as part of that problematic whole.
Of course, I realize others disagree, and in good faith. I think it's just two ways of looking at the problem. /end
• • •
Missing some Tweet in this thread? You can try to
force a refresh
When the govt obtains a warrant to track two suspects traveling in a car together using the GPS on one's phone, the other lacks standing to challenge the tracking. CA5, per Oldham.
The Court approaches the standing question by looking first at how the warrant was phrased. The warrant that the location of the phone was the "place to be searched," so that mostly governs. It was not D's phone, so he had no standing in that "place."
But I'm not sure how the drafting of the warrant can be relevant. 4A standing is about whether a person has rights to challenge a search that occurred, not how the govt drafted a warrant to justify the search that occurred.
Trump's refusal to admit he lost the election is the most predictable thing in the world. Remember, he's the guy who, when asked before the *2016* election if he would accept the results as legitimate, responded that he would -- "if I win." cnn.com/2016/10/20/pol…
And after he won the electoral college in 2016 but lost the popular vote, he insisted that he *did* win the popular vote -- but that massive fraud led to millions of illegal votes being illegally counted against him.
I'll be posting a new article draft in a week or two about government-ordered content preservation -- when the government tells your e-mail or messaging provider to save a copy of your entire account for the govt in case the govt comes back later with a warrant to disclose it. /1
This happens to hundreds of thousands of U.S. accounts every year. The government does it all the time, with no cause. I argue in the article that preservation is a seizure that requires at least reasonable suspicion, and in most cases, probable cause. /2
A key part of the article is the first-ever public explanation of how preservation requests work. How the govt and providers think of it; how requests are made and how providers respond; how it relates to ultimate production; and why it's all secret, hidden from the user. /3
1) Going after lawyers for representing unpopular clients in unpopular legal claims has a really bad history, and tends to not go well. Our legal system needs lawyers to take on unpopular clients. Focus on the clients, not the lawyers.
I'm reminded of when conservatives went after the law firms representing terrorist suspects at Gitmo. (I was one of the conservatives who signed a counter-letter, organized by @benjaminwittes objecting to going after the lawyers.) brookings.edu/wp-content/upl…
I'm not sure I agree with this new 5th Circuit case (per Duncan, J.) allowing the seizure of a trailer that was homemade and therefore lacked a VIN. Quick thread. ca5.uscourts.gov/opinions/unpub…
The opinion case starts with the premise that Texas state law permits a trailer to be seized when the VIN has been removed. But here, the VIN hadn't been removed: it was a homemade trailer, which never was assigned a VIN.
That makes no difference, CA5 says, b/c Tex state law still requires that each trailer has a VIN -- the DMV assigns one if it didn't come with it. So the trailer could still be seized because it lacked a VIN.
Whoever wins the election, it's worth noting that the difference between a clear victory and a coin flip in a Presidential election these days amounts to decisions of just a few percent -- a handful of people in a room of 100. As a nation, we're sharply divided either way.
I'm seeing a lot of people say, "I can't believe so many people support Trump, I wasn't expecting this to be so close." Understandable surprise given the polls, but note that so many people support Trump under any of these outcomes. We're sharply divided as a nation.
That's part of what I was trying to bring out with my "two completely different worlds" series of tweets. There's a real sense in which we have two completely different worlds -- two separate sets of facts, two separate languages.