"It's quite clear, we don't have a Facebook page."

That was Justice Breyer at a speech yesterday. More:

If I'm applying the First Amendment, I have to apply it to a world where there's an Internet, and there's Facebook, and there are movies like ... 'The Social Network,' which I couldn't even understand," he said.
Oy.

It doesn't get better:

Although Breyer was making a point about judicial philosophy, he also touched on the court's sometimes limited grasp of technological developments. For example, Chief Justice John Roberts in a public employee privacy case before the court earlier this year tried to figure out the role of a text-messaging service in enabling an exchange between two people.

"I thought, you know, you push a button; it goes right to the other thing," Roberts said. Responded Justice Antonin Scalia: "You mean it doesn't go right to the other thing?"

And in a recent case dealing with a California law regulating the sale or rental of violent video games to children, Justice Anthony Kennedy pressed a skeptical state lawyer on whether the v-chip blocking device, rather than a state law, could be used to keep children away from the games.

"V-chips won't work?" Kennedy asked, before the lawyer politely explained they are limited to television programming.
I do agree with Breyer here:

Breyer said he disagrees with those who argue that originalism is "a good system because it will keep the subjective impulses of the judge under control."

"If you want to have history solve everything, let's get nine historians and not nine judges," Breyer said. "And you'll discover that the nine historians are fighting about the various points on which these cases turn anyway."

Adam Liptak from the NY Times has an interesting article today about how vague Supreme Court opinions are and how lower courts are struggling trying to figure them out. Here's a passage from the article dealing with the text messaging case:

In the privacy case that infuriated Justice Scalia and mystified Judge Hull, City of Ontario v. Quon, the Supreme Court ruled that a California police department had not violated the constitutional privacy rights of a member of a SWAT team when it audited the text messages on a pager the city had issued him.

Justice Kennedy took the unusual step of accepting three important points in the case only for the sake of argument, and he spent much of his opinion explaining that the court had taken pains to decide as little as possible.

“Cellphone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification,” Justice Kennedy went on. “On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cellphones or similar devices for personal matters can purchase and pay for their own.”

Given that, he said, the case should be decided on grounds so narrow that the decision would have almost no precedential effect. “The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear,” he wrote.

In his concurrence, Justice Scalia decried this approach.

“Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case, we have no choice,” he wrote. “The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.”

Many scholars say there is an important place in Supreme Court jurisprudence for incremental rulings, purposeful ambiguity and the delegation of discretion to lower court judges.

“If the goal is to clear up any conflict in the lower court opinions, then you may want a clearer opinion,” Professor Spriggs said. “But a real bright line may create some injustices in the system.”

We're # 2!!

From the New Times: "MIA Ranked Second Most Hellish Airport in U.S. for Second Year Running". We were bested by Newark. Newark!

I actually like the new D terminal, despite the really long walks. The train 3 floors up isn't really convenient. But at least there are some restaurants along the way.

Howard Stern & Billy Joel

Okay, I know this is way off topic, but I couldn't get out of my car this morning, listening to Howard Stern interview Billy Joel. It was fantastic hearing him play his music in the studio and explaining how the song was written, etc. Here's one of his best to get your Tuesday morning started:




Okay, one more:

Monday morning quick hits

-- No word yet on who has interviews from the JNC. We do know that interviews will take place on November 30.

-- The NY Times covers Miami cyber-criminal Albert Gonzalez in a lengthy article. It's a fascinating piece about how Gonzalez fell back into a life of crime after cooperating with the feds. He explains that he would have been better off just serving his time instead of snitching in the first place.

-- Does anyone really think that we should still have judicial elections? This is ridiculous.

-- First opinions of the Term come out today. Check out ScotusBlog around 10am.

-- Judge Cooke won't be in trial this week. She's in Atlanta sitting as a visiting judge on the 11th Circuit.

UPDATE -- the Supreme Court decided one case, Abbott v. United States, No. 09-479, holding that Section 924(c) and does not preclude the imposition of mandatory minimum sentences for different counts of conviction.

Who's the most at blame here?

The trial judge, the appellate judges, the prosecutor or the defense attorney? Via Volokh, you'll see totally absurd events unfold:

Here’s what happened in the middle of a trial of parents for killing their child through child abuse (felony murder under Georgia law):

[T]he prosecutor, in the final moments of her concluding argument on behalf of
the State, “clicked” her fingers at which signal one of the deputies in the
courtroom turned out the lights and an associate prosecutor “popped out a cake
out of a grocery bag” complete with eight candles, which were then lit with a
lighter brought into the courtroom; the prosecutor and her associate then
proceeded to sing to “dear Josef,” i.e., the deceased victim, the celebratory
words to “Happy Birthday.”

The dissent (in Smith v. State, decided Monday by the Georgia Supreme Court) argued that this was prosecutorial misconduct that required reversing the convictions, even though the defense lawyer did not object:

There was no legitimate reason for what the prosecutor did. It was neither
argument nor rebuttal, because there is nothing at all in the record about
birthdays and birthday cakes to raise even the slightest possibility that the
prosecutor was drawing a reasonable inference from the evidence presented or the arguments made by defense counsel. To the contrary, the evidence established that the victim’s family followed an austere lifestyle, including dietary
restrictions, that eliminated the possibility of the victim experiencing the
type of birthday event dramatized by the prosecutor. The prosecutor’s birthday
production was not meant to be argument or rebuttal: it was a theatrical stunt
spun out of pure fantasy. Its sole purpose was to prejudice the rights of
appellants before the jury in an impermissible attempt to invoke the jury’s
passions and divert the jury from the evidence. It offended the dignity and
decorum of the court and violated every precept of professionalism and fair
play. Yet the trial court did absolutely nothing. The event played itself out
without the trial judge performing his duty to maintain decorum in the
courtroom. Moreover, after observing this “‘preposterous’” performance, the
trial court took no steps of any kind to minimize the prejudice. There was no
rebuke to counsel; there was no direction to the jury to ignore the spectacle
they had just witnessed; there was no charge to the jury that sympathy for the
victim was to play no role in their verdict.

[Footnote: I am giving the prosecutor the benefit of the doubt by concluding that her motive for pulling this stunt was simply to evoke sympathy for the victim in an unprofessional attempt to obtain guilty verdicts at any cost, as this motive is less offensive than the other possible motive raised by this case, i.e., that she was
deliberately pandering to the television audience observing the proceedings on
Court TV. See defense counsel’s testimony at the hearing on appellants’ motion
for new trial (“I understand the cameras were rolling and everybody wants to be
Nancy Grace’s friend”).]

The majority agreed the prosecutor’s behavior was improper, but concluded that the defense lawyer’s decision not to object was a strategic judgment, and therefore not grounds for reversal. (“Arora testified at the motion for new trial hearing that he made a strategic decision not to object to the ‘Happy Birthday’ song during closing argument. Specifically, Arora thought that the ‘Happy Brithday’ song was so ‘preposterous,’ ‘absurd,’ and ‘over the top’ that ‘it would turn the jurors off,’ and that he should not call any more attention to it by objecting to it.”)

HT: MC

16 Applicants for Judge Huck's seat

Jerald Bagley
Betty Butchko
Mary Barzee
Darrin Gayles
Michael Hanzman
Judy Korchin
Robert Levenson
Peter Lopez
Ana Marie Martinez
Caroline Heck Miller
John O’Sullivan
Robin Rosenbaum
Robert Scola
Barry Seltzer
Will Thomas
John Thornton

I'm struck by the very low number of applicants. Looks like 8 state court judges applied and 3 federal magistrates. Only two private practitioners.

I'll have more soon.



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If a tree falls in a forest and no one is around to hear it, does it make a sound?

Well maybe, if that tree is DOJ... Here's DOJ saying the fraud guidelines need to be updated (from Main Justice). Federal judges were also piping in, with one calling the loss guidelines "a crock."

I'm sure the DOJ officials at this conference weren't staying in the forest though; they were probably staying at the Ritz. Kosher Meatball Blog (I still don't get the name) has more on this OIG report entitled "A Review of U.S. Attorney Travel that Exceeded the Government Lodging Rate." It's not pretty.

Miami Herald cites SDFLA and SFLawyers!

Pretty cool. Meantime, I can't get the CHiPs theme song out of my head.

Over the weekend, Jay Weaver profiled Eric Bustillo, the SEC chief. It's a nice piece. Here's the intro:

A product of Jesuit schools in Latin America, Eric Bustillo entered Tulane University in fall 1981.
Within months, his bright future would take a dark turn: He and his friends were returning to the New Orleans campus one night when their car swerved to avoid another and slammed into a tree. Bustillo's spinal cord was severed, leaving him paralyzed.
Today, as he sits in a wheelchair in his corner office overlooking Biscayne Bay, Bustillo displays only optimism. A lawyer for more than 20 years, he is director of the Miami regional office of the U.S. Securities and Exchange Commission, in charge of protecting investors in a region riddled with fraud, from old-fashioned boiler rooms to newfangled Ponzi schemes.
``I could have wallowed in my misfortune, or worked hard, educated myself and not let it become an obstacle,'' said Bustillo, 45, born in New Jersey to Cuban exile parents who moved the family around to Venezuela, Panama and other countries.