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Constitutional Daily

30 Seconds for Brian Loncar

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Law firm with "HURT" in the phone number? Even Sweet Brown got time for that!

Should You Take a Document Review Job?

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Yesterday we gave you this picture from the ABA's website of a blonde LF10 talking to a brunette RW10, asking for possible captions. As a commenter pointed out, they are probably discussing just how the hell that folder is flying, cause neither of them seems to be holding it. Is this the sort of next level shit they showcased at the ABA Tech Show?


Not liking to play fair, we already had the winning caption in hand, provided by none other than the ABA itself. This picture appears on the top of all pages in the publications section of the ABA website, but one page in particular stood out:



You can read the ABA's full analysis of doc review jobs, but we've selected two gems:

Document-review work is not glamorous, but it is a common way to gain legal experience and provides valuable insight into the discovery process in many different areas of law. It is often done by solo practitioners looking for extra income or new law school graduates who have not yet secured permanent employment.

Document review is not legal experience. Not by a long shot. You might get a little bit of knowledge about privilege, but you could have just grab a free MPRE study guide and get the same information. The number of valuable insights to be had in document review is less than the number of opportunities for promotion.

The ABA also misses the mark in saying it's something you can do as a solo, or to earn "extra" income. Truth is document review is going to be all or nothing. It's rare that a company will let you work your doc review schedule around the few client meetings and court appearances you have for your struggling solo practice. There's an oversupply of lawyers willing to do this work, and doc review companies want 40+ hours a week.

Although most assignments are done with a looming discovery deadline, it is uncommon to work over forty hours a week. Best of all, document review assignments rarely involve weekend work. Some attorneys may find this schedule preferable to a demanding firm job. At minimum, document review work is a good way to get your feet wet and earn a steady paycheck.

It's uncommon to find a document review position for less that 40 hours a week; more than 40 hours is common, though overtime rates are not. And plenty of doc review jobs require working 6 days a week (as noted in a different article the ABA has on document review). Despite the hours, doc review still has a schedule that's preferable to most firm jobs because when your day is done, it's done. You're not on call 24/7. Although, firm jobs pay year-round. Doc review's schedule means constantly being in search for your next gig.

Despite their being some slight perks to the schedule, it's entirely disingenuous to say that some people "prefer" that schedule. They don't. They'd prefer the schedule of working 60-70 hours a week and being on call all the time because that's the schedule that comes with a real lawyer job where you do real legal work (see the ABA article on minority attorneys being "left to languish" on document review projects). If you neither advise nor represent clients, and doing so is nowhere in the future of your job, you're not a real attorney.

That's nowhere to be found in this introduction to document review. You might need a license to do the job, but you're not practicing law. And you're not getting your feet wet either. You're part of the legal process, but you're in a deadend bottom position, and legal secretaries get to see more of the process than you.

But, to answer the question, should you take a document review job? The answer is quite simple. How desperate are you for money? If you still hold out hope of having a professional career, and your water hasn't been shut off yet, no. Don't do document review. If you don't mind being a basement dwelling nobody for the rest of your career, or are living in conditions so squalid that guinea worms are a real threat, then yes, take it.

Captain Contest

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Here's a picture. You know how caption contests work. Get going.

But first, a tiny bit of back story. This image is from the ABA website. We also already have in hand the winning caption, provided by the ABA itself which we'll post tomorrow, but we're going to give the rest of you shlubs a chance to play.

When you play the game of TV time slots, you watch live, or you DVR

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Maybe your Sunday evening doesn’t revolve around TV scheduling, in which case, congratulations on your exciting and fulfilling life. If you’re like at least half of the ConDaily staff, though, it does, and last night presented a bit of a dilemma: watch the AMC premiere of Mad Men at 9ET/8CT, or watch the second episode of Game of Thrones on HBO at the same time?

If you’re like us, you decided to watch Mad Men first. Both HBO and AMC had a night of back-to-back encores planned, but Mad Men had a two-hour time slot, so going to Game of Thrones first would mean an hour break between show. Or waiting an hour and catching the second Game of Thrones and immediately going in to Mad Men, but why would you want to delay your happiness by an hour? Mad Men then immediately Game of Thrones was the clear decision. Except that Mad Men wasn’t a 2 hour premiere. It was a 2 hour and 8 minute premiere. Thanks for the heads up on that, AMC. Oh wait, you didn’t give us one. Sure, there’s the actual time listed in the digital cable guide, but this is news worthy of a smart phone app blast. I didn’t realize that the episode had gone 8 minutes over until you saw the credits and looked at the clock to see if you had time for a potty break before switching to GoT. This is what I get for having blind faith in television producers staying in their projected time slots.

Is 8 minutes really that big of a deal? You tell us. A lot can happen in that time. You can commit adultery (Don Draper), bang a prostitute (Tyrion Lannister), do 8 minute abs (maybe Namby?), and be more or less done making box mac and cheese (all the rest of us, and the ATL staff, and pretty much every under-employed legal type).

And so I missed the first 8 minutes of GoT. Sure, if we were real upset about it, we could’ve waited ‘til the next showing, or gotten on HBO Go, or On Demand, or begged someone to tell us what happened. (As an aside, I still haven’t seen it, so that tells you how eager I am, and by extension how upset I was).

But, let’s assume, for the sake of argument, that AMC had given us (and HBO) a heads up about this running over thing. What if they called up HBO and were all, “Hey, could you delay GoT a few minutes? We’re running a little long on this premiere of Mad Men.” And HBO could’ve been all like, “Yeah sure, AMC. We know that there’s a lot of overlap in our audiences (the people who care about good TV audience), and this is a small concession to make in order to let everyone watch both shows without a stupid one hour break in the middle or delaying the whole 188 minute TV marathon by an hour.”

And because this hypothetical is already ridiculous, picture it ending with the douchiest characters from each show high-fiving: Theon Greyjoy and Pete Campbell. (Spoiler alert: this joke is much funnier if you’ve seen the latest GoT.)

Jumping into the legal analysis, this agree is, on its face, anti-competitive. As in “hey, let’s not compete over this chunk of time.” Anti-competitive collusion usually happens at the expense of the consumer and to the benefit of the business. But in this instance, if the networks had “colluded,” then everyone’s happy. The fans see all of each episode, so they’re happy, which (should) make the networks happy, and would certainly make advertisers in those last 8 minutes of Mad Men happy to not have a chunk of their audience switch over to HBO.

HBO doesn’t have much incentive to cooperate, but maybe AMC agrees to pay a portion of the last block of advertising money, or HBO just puts up a message saying “Game of Thrones has been delayed a few minutes while we wait for viewers to join us from Mad Men” and gains a lot of good will. Even viewers who don’t watch Mad Men will appreciate the gesture, and HBO can just run some filler, like cast interviews they’ve already taped, or run a promo for Louis CK’s new special.

Or even better, we could take our legally dubious collusion to the next level and send the Game of Thrones staff over to Mad Men and help them find 8 minutes to cut, because good lord that episode was slow. Maybe trim a few seconds off each of the close-ups showing Don looking—yet again—constipated? How about losing the entire thing with the wedding and the lighter? Maybe the photo shoot? The goulash? So many things. In the entire 2+ hours, Mad Men packed in about 3 moments of interest. The best thing the episode had going for it was getting all the disappointment out in one evening instead of ruining next Sunday as well. But nope, that didn’t happen, and instead we didn’t just get a poorly paced episode of Mad Men and a conflict of Game of Thrones, but I also got stuck with an assignment from BL1Y to analyze whether antitrust laws would prevent two networks from coordinating their scheduling. Thanks a lot everyone. I hope you get [spoilered] just like [spoiler] does to [spoiler] during [spoiler]’s [spoiler].

Does Ken Cuccinelli Sodomize His Wife?

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Virginia's Republican Attorney General Ken Cuccinelli is pushing for what has to be an extremely unpopular law: the re-criminalization of sodomy. That's right, no blowjobs or buttsex. Why? Probably because he thinks that those things are totally gay and only gay people do them and bad gay bad.

What he doesn't realize is that a lot of straight couples engage in the same activities. Actually, he probably does realize it, but knows that the law would be selectively enforced against gay couples, and is essentially a backdoor into criminalizing homosexuality.

Virginia's anti-sodomy law was struck down earlier this month in a 2-1 decision by the 4th Circuit, and Cuccinelli is seeking an en banc review of that decision. As abhorrent as anti-sodomy laws are, and as settled as Lawrence v. Texas is, Judge Diaz's dissent may hold water:

The majority grants MacDonald federal habeas relief on the basis that the Virginia anti-sodomy provision facially violates the Due Process Clause. The Virginia Court of Appeals, citing its own precedent, concluded that Lawrence did not facially invalidate all sodomy statutes, but rather only the application of such statutes to private, consensual sexual activity among adults. Accordingly, the Virginia Court of Appeals concluded that the Virginia anti-sodomy provision was constitutional as applied to MacDonald because his sexual conduct involved a minor. [Internal citations omitted; get the opinion here.]

And then there's some stuff about how he may be wrong, and the Supreme Court can smack Virginia around, but that the 4th Circuit should defer to the Virginia Court of Appeals on a matter of state law:

If a federal court is to grant a writ of habeas corpus to a state prisoner incarcerated under Virginia law, it needs to be more than "confident" that the underlying criminal conviction violates the Constitution. The foundation for the issuance of the writ requires a certainty, not just a likelihood, that a state court ruling "reached a decision contrary to clearly established federal law." Unlike the majority, the district court here remained faithful to that distinction in declining to issue the writ.

Obviously someone is wrong here, as is necessarily true every time there's a dissent. And, we're not going to dig into the law to try to figure out who's right. That's what SCOTUS is for. And then SCOTUSBlog to tell us what SCOTUS said. We're also not going to guess at the judge's motivations. Could he be secretly homophobic and dissent out of prejudice? Sure. But he is at least presenting a viable legal argument. Likewise the majority could be influenced by bias, or could be following what they genuinely believe to be the law.

But we will speculate about Ken Cuccinelli. There's a good chance he's had a little bit of sodomy at some time. And maybe it was a bad experience for him. In fact, it's quite likely it was a bad experience for him, because anyone who's ever followed the story of an ardent anti-gay advocate knows how the story always ends. Ken Cuccinelli is probably gay.

That makes it a little bit tougher to drop the hammer on him. His anti-gay campaigning is probably a manifestation of his own internal struggle. Most people don't feel that strongly about gays, even your typical redneck who will agree with the most homophobic stuff you can think of at the end of the day really doesn't care. The people who do care are the ones fighting their nature because for them homosexuality is an issue that dominates their own lives, and so they think the rest of the world is as concerned as they are. If I, a straight man, want to suck Governor McDonnell's dick so bad, the gay agenda must be dangerously close to corrupting everyone!

We have convincing evidence this lawyer is a dick

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Step 1: Take a pic of your dick.

Step 2: Put that pic in an inbox.

Step 3: Regret.

We’ve all heard about the “problem” and “dangers” of sexting, we’ve seen the Law and Order episodes, we’ve seen someone’s personal dirty pic to their then-partner became very public very quickly after a breakup. This year has been no stranger to weird legal sex cases, from judges sexting on the bench to defense attorneys banging clients and then billing them for that time. But we haven’t seen anything quite like this.

We’d like to introduce to Dwayne Beck, the inspiration behind this headline, “Lawyer Asks Judge to Seal Photo of His Penis from the Public Record.”

Beck is an Orange County attorney charged with sexual battery, assault and five other charges. While we don’t know what those other five charges are, and we’re not interested enough to pay to find out, if you are, click here and search by name. You’re welcome.

The alleged victim in this case filed suit as Jane Doe. According to her complaint, she is a translator and interpreter for a legal service and worked with Beck, although it’s not clear for how long or on how many occasions. The complaint alleges that Beck repeatedly propositioned Doe, brushed against her, asked to take pictures of her breasts, and blocked her from leaving a room while he had an erection. The exit-blocking incident ended with Beck texting Doe a photo of his penis.

But that’s just the tip of the story. When she filed suit, she went balls to the wall. Taking no chances that the complaint would contain insufficient allegations and be prematurely dismissed, Doe included the offending photo.

Before anyone gets offended by us making a joke of sexual harassment. We’re not. Sexual harassment is a serious issue and should be treated as such. But the guy sending dick pics? He’s fair game. And since he seems to have been struggling with the concept of rejection, we’re giving our kudos to Miss Doe for sending the most unambiguous rejection we can think of, suing someone and putting a picture of their dick into the public record.

While Beck apparently had no problem sending a picture of his penis to someone he knew (or at least should have known) did not want to see it, he apparently does have a problem with that same photo being viewable by people who do want to see it (at least, by way of public record). Beck admitted in an ex parte application to seal the complaint that the dick in the pic is indeed his.

In addition, Beck argued last week that: (1) Doe should have to reveal her name for the record; (2) Beck should get to change his name in the case to John Doe; and (3) the entire complaint should be sealed. You’re probably as shocked as we were that Beck went 0 for 3 on those arguments. He did get a small concession, in that the judge did allow the dick pic to be sealed.

We can only assume this incident will put Beck in front the California Attorney Disciplinary System, sooner or later. In between now and then, we can’t help but wonder if Beck will try to use this dick-pic-as-public-record thing as the basis for a sexual harassment case against Jane Doe. That just seems like the kind of thing you could expect from a middle-aged dude who hasn’t realized that no one really wants to open their inbox and see that. Dick in the box didn’t even end well for JT, guys. It won’t end well for you either.

New AP Style Guidelines

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The Associated Press announced in its blog that it will be ditching the terms "illegal immigrant" and "illegal alien" and instead use the term "person living in or entering a country illegally or without legal permission."

We suspect someone over there is getting paid per word, but the reason AP gives is that:

[W]e had in other areas been ridding the Stylebook of labels. The new section on mental health issues argues for using credibly sourced diagnoses instead of labels. Saying someone was “diagnosed with schizophrenia” instead of schizophrenic, for example.

And that discussion about labeling people, instead of behavior, led us back to “illegal immigrant” again.

In keeping with this trend of labeling actions rather than people, here are some new terms we expect all proper-minded progressives to follow, er... sorry. People who think in the proper, progressive fashion.

"Criminal" is now "a person who has committed or been convicted of a criminal offense."

"Lawyer" is now "a person who is licensed or engages in the practice of law."

"Reporter" is now "a person who reports."

"Professional athlete" is now "a person who engages in athletic activities for profit."

"Same sex couple" is now "two people of the same sex who have entered into a mutual relationship."

"Software pirate" is now "a person who engages in the exchange of software or other electronic media illegally or without legal permission."

And of course, "blowhard" is now "a person who blows hard."

Georgia town arms every home to stop crime

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Nelson, GA, population 1314, and soon to be home to more guns. Maybe.

The city council has recently enacted an anti-crime ordinance, requiring every household to own a firearm. [Reuters] The town has only one police officer, and has been plagued by petty thefts, so the city counsel decided to essentially deputize every household, but of course without any of the training and oversight that would come from actually deputizing them.

Anyone who understands anything about rights of course will recognize the problem. Almost all of our rights come with a corresponding right to not exercise that right. Freedom of speech comes with the right to no speak at all. The right to counsel includes the right to represent yourself. And the right to keep and bear arms comes with the right to not own a weapon if you don't want to. That's why it's called the right to keep and bear arms, and not the universal mandate to keep and bear arms.

The town thinks it has a workaround to the pesky little 2nd Amendment issue though. Included in the ordinance are several exemptions. Felons are not required to own a weapon, nor are people with physical or mental handicaps. There's also an exemption for people who object to owning a firearm. Bingo-bango, solves the problem. And on top of the conscientious objector exemption, there's also no penalty for disobeying the ordinance, so the entire thing is symbolic.

And as far as symbolic gestures go, this one stinks. The town, in its toothless symbolic ordinance is saying: We don't think you should have 2nd Amendment rights.

If they wanted to promote gun ownership for crime reduction, they should have their one police officer spend some time helping people with gun safety, marksmanship, and getting their license. Or just have a symbolic 2nd Amendment Appreciation Day. The last thing you do is pass an ordinance saying you oppose the choice to not own a gun.


Just to pile on though, the idea is going to be completely counterproductive. The town's problem is a lack of law enforcement, and too many thefts. So they're going to put guns in all the homes. Of course most thefts occur during daytime hours when no one is at home. So no one is there to use the gun to stop the thief. So the thief still breaks in and steals your stuff, and now he steals your gun too.

Not only are guns great merchandize for selling on the black market, so there's an increased incentive to break into a home in Nelson, GA, but all the thieves are going to be armed as well.

Let this be a lesson to small town councils: The next time you have an idea, don't.

Not Quite Jamaica, Rhode Island Decriminalizes Marijuana

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Recreational marijuana smokers in Rhode Island can now enjoy that habit without fear of criminal penalties. The new RI law goes into effect today, changing the penalty for being an adult caught with small amounts marijuana from possible jail time and/or $500 fine to a $150 fine.

With Colorado and Washington leading the way last November, many states are having similar discussions in their legislatures. Rhode Island neighbor, Maryland, currently has a bill in the House for decriminalizing marijuana. The measure already passed in the Senate. Maine introduced a bill for legalization with 35 cosponsors last week.

If you like interactive maps as much as we do, check out this one on, a site working to reform marijuana laws. You can click tags by state to see what states have decriminalized, legalized, and allowed medical marijuana use.

On the one hand, it’s great that we’re making progress on getting rid of stupid pot laws. Lighter punishments and a lack of a criminal record is a nice step in the right direction (especially come C&F time). But on the other hand, decriminalization isn’t quite what it sounds like. Under the new Rhode Island law, your third offense within 18 months is a misdemeanor. The prosecution will get to prove one element of the crime, the two prior possessions, with a diminished burden of proof because those earlier offenses were civil matters without a reasonable doubt standard. To pile on, in civil matters you also don’t have the right to counsel.

We already hear Scott Greenfield asking “but what about the clients?” but come on, fewer criminal marijuana cases means a lot less work for lawyers. Especially young lawyers who need these minor offenses to learn the ropes, and who rely on court appointments while building a network and reputation.

Sure decriminalization reduces the workload for law enforcement and prosecutors, freeing them up to go after serious offenses. And it will reduce overcrowding in jails which is another cost savings to the state, not to mention the savings to the people who don’t have to go to jail. But won’t someone think of the lawyers? This is just kicking the legal employment scene when it’s already down.

In Ohio, North Carolina, Minnesota, and Oregon, possession is still a misdemeanor, but there’s no risk of incarceration, just a fine (ranging from $150 if you’re lucky and in Ohio, or $1000, if you’re not lucky and you’re in Oregon). Of course, for your second offense, incarceration and the need to hire an attorney come back on the table.

California, Mississippi, and Nebraska will let you go with a non-criminal infraction the first time, but it’s a jail-able misdemeanor the second. In Nevada and New York, you get until your third offense before you’re looking at jail time.

If this trend keeps up soon we’re going to see full legalization of marijuana and thousands of attorneys who are out of work and thus unable to afford their own marijuana.

We need to reverse this dangerous trend and go in a new direction: legalization of marijuana for middle-class white people. Keep it criminalized for poor minorities, to provide for a bulk of cases, and also criminalized for 16-25 year old white kids from upper-class families who will pay a lot to keep the charges off their records, to provide for quality cases. That keeps money flowing into the legal market, while protecting the lawyers themselves from prosecution.

UPS to stop delivering drugs, FedEx takes a stand

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Bad news for people who buy prescription painkillers online (without a valid prescription) from bogus pharmacies. Also, good news for the same people. We'll start with the bad.

UPS has agreed to pay the government a fine of $40 million for its role in delivering controlled substances purchased online. The settlement also means that UPS will begin putting measures in place to make sure that you can't get your drugs delivered by them, so don't expect the big brown trucks to keep delivering your little yellow pills. And if you have been getting drugs delivered with UPS, be worried that they'll turn your address over to the DEA.

The good news though is that FedEx is taking the opposite position, not cooperating with the feds, and preparing to defend against whatever criminal action the government brings. FedEx's spokesman said about potential charges, "It is unclear what federal laws UPS may have violated." [WSJ]

We have to agree. The Controlled Substances Act makes it illegal to distribute a controlled substance except under certain exceptions (the normal method for getting a prescription and going to a pharmacy). However, these are specific intent crimes. FedEx would need to know more than the fact that it's services are being used to commit crimes. It would need to know what specific transactions are illegal. It's going to be hard to prosecute when everything is automated and FedEx just delivers a package no questions asked.

They can't be hit with a conspiracy charge either. Anyone who's taken the bar exam should know that the sale of ordinary goods, in an ordinary manner, for an ordinary price does not create a conspiracy, even if the other guy tells you that he's going to commit a crime. Mobster comes in to your hardware store and says "I need a shovel to bury some stoolies I'm about to whack," you can sell him the shovel and there's no problem. BarBri didn't cover the provision of ordinary services, but it's safe to assume the same rule applies.

FedEx taking a stand against whatever the feds throw at them raises one serious question though, ...why did UPS fold so quickly? If the cases were progressing in the same way, and FedEx really doesn't even know what crimes they might be charged with, what was UPS doing? You don't plead guilty before the prosecution even tells you what you're charged with. Sounds like someone's legal counsel was a little bit paranoid. We can't think of anything that causes paranoia.

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