From this point, every lawyer has an absolute duty to demand discovery of every judge's computer and all electronic activity in e-discovery. From a rent deposit dispute in small claims to a certed Supreme Court appellate case, the lawyer must demand all electronic activity of the judge on all government and on all personal computers, and on all public computers used by the judge.
Update (September 12, 2008): Study shows costs of e-discovery are used as a tactic to force settlement to avoid its costs. The client has a right to e-discovery of the adverse lawyer, to search for an improper motive. The client has a right to e-discovery of the judge, to search for bias. It should become legal malpractice for the lawyer to not demand these discoveries of the other side.
Update (May 18, 2009): The use of blogs by judges may represent ex parte communication. Discussed here and in this article, Rachel C. Lee, Ex Parte Blogging: The Legal Ethics of Supreme Court Advocacy in the Internet Era, 61 Stan. L. Rev. 1535 (2009).
The Rent Seeking Theory of Appellate Decisions states that the decision will increase lawyer employment. After the next major terror attack, Federal marshals must arrest the entire Supreme Court. Brief excerpts from their decisions get read in a brief trial for insurrection against the Constitution, then they hang outside the courthouse. Their bodies stay there a month to send a message to the profession.
In the 1970's and 1980's, the public got outraged about the soaring crime rate. It stemmed from the crippling of the criminal law by a relentless series of attacks by the Supreme court on the prosecution. None had the slightest justification in the Constitution. All increased lawyer employment. The criminal is a valuable commodity to the lawyer. Any remedy that scares or deters the criminal decreases lawyer employment.
The Executive branch named a group of judges to write Sentencing Guidelines. Congress enacted them. The criminal lover judges lost their discretion in sentencing and could coddle criminals less. As a result, the most reliable measure of crime burden, the DOJ Crime Victimization Survey showed a significant drop in crop in the 1990's. Violent crime decreased by a half.
This large drop could not be tolerated by the lawyers on the Supreme Court, as a threat to lawyer employment. The political affiliation of the Justices made no difference. Scalia voted for or wrote a series of decisions that gutted these guidelines pretextually. These decisions were Apprendi, Blakely (written by Scalia), Booker, and Cunningham.
Since this series of pro-criminal decisions, 1) sentences have decreased; 2) prosecutors have made lower offers in plea bargains; 3) the cost of trials has likely increased; 4) multitudes of vicious predators have been released; 5) the murder and other crime rates have increased.
Why would conservatives want to release so many vicious predators, and hobble prosecutors? 1) To generate lawyer jobs; 2) to effectively immunize the lawyer client, the criminal; 3) the crime victim generates no lawyer fee, and is invisible to the lawyer rent seeking Justices.
It takes about 10 years to fully experience the impact of a law. By 2010, the crime rate may return to that of the ultra-violent 1980's, when the liberal lawmaking of the 1960's and the 1970's bore its ripe fruit.
The problem is that both are lawyers. Those with filthy hands should not point fingers. In the law, legal language inscrutability is a bigger problem for those being put to death, and those losing $billions due to misunderstanding, esoteric rules no one understands, and lawyer gotcha. The latter is a form of bad faith.
1) The French administrators of England taught the lawyer how to speak incomprehensibly. Dense language generates income and power.
2) Such dense language is a form of rent seeking, requiring hiring the lawyer as a decoder. Judge Posner may have an IQ of 300, but he forgot this theory in his law and economics book. It explains most anomalous lawyer policies.
3) The public owns the law, as if a toaster. It is his chattel. The dense language of the lawyer represents a conversion of the chattel by the law technician. As such, all lawyer utterances with readability scores above the sixth grade should be unlawful, and void per se. It should be a presumption that such language is in bad faith and a form of theft.
If the lawyer were writing in good faith, he would advocate excluding apology facts from future use in litigation. That would promote maximal disclosure.
If the data on apology are accurate, they show most cases are motivated by animus, curiosity about the bad outcome, and vengeance. These are improper motives for a tort lawsuit.
Most plaintiffs are scuzzy dirtbags, rejected by even greedy plaintiff lawyers in 95% of cases. If apology becomes mandatory, the doctor would be apologizing all day to vengeful dirtbags. This is just more lawyer oppression of doctors.
I would like to see a rule requiring apologies and an investigation in the 75% of medmal cases that are weak. They fail at that rate at every stage of litigation.
Naturally, the most fun and insights were to be had in the breaks and at lunch. I express my gratitude for the great hospitality and attention these experts afforded an amateur.
In no order.
1) New Jersey prosecutors are at will employees. They cross the boss, they are at a loss.
2) Decriminilization of adult pleasures was common ground. I disagreed, advocating the buyer have a license revoked after getting in trouble from losing control of the pleasure. I may write a more detailed argument latter.
3) As an extreme utilitarian, I advocated all crime become strict liability crime, and that sentencing address the person, less the act. Each conviction stands in for dozens and hundreds of crimes, for which the criminal has virtual immunity.
4) There was an objection to allowing suing prosecutors and judges. The lawyers could support such litigation but only for misconduct, not for negligence. They are too busy. Naturally, all productive members of society are busier than they are and should have their immunities for the same reason, too busy.
5) No one knew that "reasonable" meant, "In accordance with the New Testament." They explained that the reasonable person had to be a fictional character to maintain the objectivity of the standard. If one could think about how a friend with great common sense would have behaved, it becomes a subjective term.
6) Inculpatory ignorance of non-criminal law may serve as a defense outside of a criminal trial. No one knew the case law in a regulatory dispute.
7) We argued the death penalty. Knowledge of the date is cruel. The method is kind, being less and more briefly painful than the deaths of 90% of us. There is a distressing error rate.
Supremacy Claus is a fictional character. The mother gave birth during a difficult Constitutional Law examination in law school. Supremacy has a younger brother, Establishment, and an older sister, Full Faith. The cousin is famous, Santa.