Legal Research Blog


Episode 11: NSA Only Cares You’re an Attorney if the Client is Indicted?

Cover of Fastcase Album

Former Fastcase intern and all-around sharp legal mind Aaron Kirschenfeld joins us on the podcast today. Aaron didn’t get his Merit Award Scholarship by not subscribing to The Law Review Podcast on iTunes or not giving it a 5-star rating, if you know what I’m saying. Note that this is the first podcast we’ve done via Skype and it’s a little grainy. I’m hoping we can get that squared away before the next Skype episode. Apologies about that.

1. I think we’re going to need a Missouri bumper for the cast. Missouri AG Chris Koster filed a suit Monday alleging California state would violate the Commerce Clause by banning the sale of eggs from hens housed in small cages. ABA Journal commenter Virginia Bachmann sums up my (naive?) thoughts: don’t like CA laws? Don’t sell to CA.

2. The Nation has a neat article discussing the potential violations of attorney-client privilege that arise by virtue of government wiretapping. The article addresses a weird quirk I didn’t know about whereby although intelligence agents must stop recording and note when conversations with suspects’ attorneys begin, they are only required to do so when the suspect is indicted. If they’re not indicted, apparently the privilege “minimization” protocol isn’t triggered. I suspect Aaron and I will spend the majority of the literature review section discussing this odd quirk.

3. Jacob Gershman at The Wall Street Journal discusses the overwhelming tendency of insider trader defendants to remain silent. I talk about my [relatively limited] experience watching defendants put on the stand.

4. The Governance Lab brought to our attention that the Government Printing Office partnered with the Library of Congress today to make summaries for House bills available to download, in bulk, in XML format. This will give third parties (of which, spoiler alert, Fastcase is one) the ability to download reports prepared by the Library of Congress’s Congressional Research Service intended to limn (yeah, I said it) the implications of the legislation

Please also take note of our subreddit at Feel free to submit stories there or vote on the stories you’d like to hear us discuss that day. You can also email us at podcast /at fastcase /dot com.

Thanks for listening!

Episode 10: High Fives, High Beams, High Courts

Cover of Fastcase Album

I’m joined today by Fastcase black letter content guru Deb “Kat Chow” Letz who says that you should subscribe to The Law Review Podcast on iTunes or she’ll be very cross with you.

1. Slap hands, bro. Courtney Allen Curtis [D], a member of the Missouri House of Representatives, recently introduced House Bill No. 1624, amending the state code to read:

The “high five” is selected for and shall be known as the official state greeting in the state of Missouri.

Allegedly it’s sort of a joke, but I hope it passes anyway. Rep. Curtis can reportedly be seen slapping hands around the floor of the House with some frequency.

2. Speaking of fun Missouri laws, a federal judge in the Eastern District of Missouri thinks it’s possible that defendants could prevail on a claim that flashing high beams is an expression of protected speech. This is interesting because we’re really talking about an act intended to bring someone into conformity with the law, which often gets statutory carve outs in state statutes. I also wonder about implications of things like DUI checkpoint warning apps (arguably a different analysis as these people could not really be brought into conformity with the law but rather can just try to avoid detection?).

3. The Justices have been giving talks all over the country during the SCOTUS recess and Justice Alito said yesterday in Florida that he’s cool with people hating on the Court. “There is a reason why the Constitution gives federal judges life tenure. We are supposed to do our jobs without worrying whether our decisions are pleasing to anybody.” Feeling whole-heartedly seconded. Coming from a practice in Pennsylvania state courts, I’ve felt the struggle of elected judges who clearly feel the pressure of a popular election. Keep calm and cert on, Justice Alito.

4. Eugene Volokh writes about the odd practice of PA trial court judges asking intermediate appellate courts to deny appeals in the absence of written opinions. Typically, the language is along the lines of, “This Court respectfully requests that the instant appeal be denied for the following reason(s):” I used to see this all the time and I just brushed it off as typical Pennsylvania attorney verbosity. Curious whether anyone actually thinks this is an inappropriate prayer given that in PA, criminal defendants have a right of first appeal.

Please also take note of our subreddit at Feel free to submit stories there or vote on the stories you’d like to hear us discuss that day. You can also email us at podcast /at fastcase /dot com.

Thanks for listening!

Episode 9: Mini Preview of LegalTech and ReInvent Law

Cover of Fastcase Album

I made a commitment to read on the air the first five-star review left after you subscribe to The Law Review Podcast on iTunes (reserving the right to make editorial edits as I deem necessary). Ed Walters joins me today and gives us a preview of the upcoming LegalTech and ReInvent Law conferences.

1. Will you have the chicken or the steak? It’s a question that could have saved a lot of money as the Indiana Supreme Court begins to consider whether it was proper for the Indiana Court of Appeals to fine a religious home-schooling support group for failing to provide an alternative dinner to a child with a severe allergy to chicken. When she filed a complaint with the Indiana Civil Rights Commission, the child was expelled from the nonprofit group. Is this a case of administrative overreaching in the context of an organization not acting like a school (framing via Petitioners) or is it disability discrimination and retaliatory treatment (framing via Respondent)?

2. Via Aaron Kirschenfeld (@kirschsubjudice): Aaron points us to a NYTimes article discussing the recent Supreme Court of New Jersey argument regarding whether it was proper for a prosecutor to introduce evidence of the defendant’s rap lyrics at trial.

3. The Ninth Circuit recently held that bloggers have the same First Amendment defamation protections as real, honest-to-goodness journalists, finding fault with the district judge’s requirement that the defendant produce “evidence of her status as a journalist.” We talk a bit about this opinion during the literature review.

Please also take note of our subreddit at Feel free to submit stories there or vote on the stories you’d like to hear us discuss that day. You can also email us at podcast /at fastcase /dot com.

Thanks for listening!

Episode 8: Law Life is Like a Fleet of Ubers — You Never Know What You’re Gonna Get

Cover of Fastcase Album

Happy Friday! Why not celebrate by subscribing to us on iTunes and giving us a five star review? It helps people find us, it takes almost no time, and whenever you do it, an angel gets its wings.

1. The New York times wrote yesterday about the unprecedented decision of the Justice Department to ask for help from attorneys in identifying low-level, non-violent drug offenders sentenced during the era of disparate crack cocaine sentences. The Justice Department is encouraging these people to apply for clemency in an effort to make right the disparate sentencing  that took place prior to Congress reducing the disparity in 2010.

Incidentally, part of a bill approved yesterday by the Senate Judiciary Committee would allow people sentenced under these laws a mechanism to ask for clemency from judges while at the same time reducing some mandatory minimum sentences. In response, a group of the Attorney General’s subordinates submitted a letter to Mr. Holder voicing the following concerns:

Mandatory minimum sentences are a critical tool in persuading defendants to cooperate, thereby enabling law enforcement to dismantle large drug organizations and violent gangs.

2. Derek Khannain is crowd-sourcing a list of Disney works created from the public domain. The existing list contains the revenues from the Disney works. Khannain believes the information is important for Congress to appreciate the long-term costs associated with extending copyright terms. (h/t Above the Law.)

3. Do you resent the idea of not spending your afterlife with your beloved pet? Virginia’s got your back. A proposed bill would allow for the burial of companion animals in a separate section of a cemetery. Currently, cemeteries are relegated to human remains by law in Virginia, but this bill would open the door for spot to join you in your eternal resting place.

4. Carolyn Elefant wonders whether lawyers can learn a lesson from Uber. Consider the things people usually dislike about lawyers and make them your strengths. She suggests, for example, having a wifi password prominently displayed while the client waits for you.

Please also take note of our subreddit at Feel free to submit stories there or vote on the stories you’d like to hear us discuss that day. You can also email us at podcast /at fastcase /dot com.

Thanks for listening!

Episode 7: Cafeteria Justice

Cover of Fastcase Album

Hello, friends. Josh here in the office (alone, again!) laying down some stories so that you don’t have to troll your RSS feeds tomorrow.  (Incidentally, if you would be so kind, please subscribe to us on iTunes and give us a five star review. It helps people find the podcast and makes me not regret recording alone in the office at 8p.)

1. Continuing our Glass discussion, Ed Walters pointed me to this article by Bruce Thomas over at LII. I talk about the nifty prototype they hacked together over at Cornell.

2. The Police Unions have been trying to intervene in the stop-and-frisk suits happening in New York right now and while the Mayor announced today that the City made a settlement offer, police unions are expressing serious concerns

3. Indirectly via @ouij: the first sale doctrine is pretty clear that once you sell something, you can’t control the downstream use. Someone is apparently not telling that to the lunch ladies (lunch professionals? cafeteria workers?) about the nuances of property because they’re instead dealing some street justice by repossessing the meals of $2 with overdue balances on their lunch accounts. 30 students were allegedly “humiliated and demoralized” when the cashier threw their food in the trash rather than adding another $2 to their tab.

App of the Day!

I’ve been using Duolingo every day for the past two months or so and I’m pretty much in love with it. I’ll tell you why in the cast.

Please also take note of our subreddit at Feel free to submit stories there or vote on the stories you’d like to hear us discuss that day. You can also email us at podcast /at fastcase /dot com.

Thanks for listening!