SBM Blog

Sixth Circuit: Dogs Will Be Dogs

Another case asking whether a narcotic dog's jump inside a car is an illegal search under the Fourth Amendment. And, like the 3rd circuit, the 6th circuit in United States v. Sharp just decided, "Nah." And for the same reason as the 3rd circuit -- dogs will be dogs.  Specifically, from the summary of the decision:

It is well-settled that a dog’s sniff around the exterior of a car is not a search under the Fourth Amendment. Defendant appeals the district court’s denial of his motion to suppress because a narcotics dog jumped into his car and sniffed inside the car before “alerting” to the presence of narcotics. The canine’s jump and subsequent sniff inside the vehicle was not a search in violation of the Fourth Amendment because the jump was instinctive and not the product of police encouragement. Therefore, we AFFIRM.

Congratulations to MLW's 2012 Women in the Law Honorees

Michigan Lawyers Weekly's 2012 Women in the Law honorees have been announced.  Congratulations to all!

• Hon. Louise Alderson — 54A District Court
• Hon. Susan Dobrich — Cass County Probate Court
• Audrey Forbush — Plunkett Cooney PC
• Julie Gafkay — Gafkay & Gardner PLC
• Denise Glassmeyer — Young Basile Hanlon & MacFarlane PC
• Cynthia Haffey — Butzel Long
• Hon. Marilyn Kelly — Michigan Supreme Court
• Monica Labe — Dickinson Wright PLLC
• Marilyn Lankfer — Varnum LLP
• Marla Linderman — Linderman Law PC
• Anna Maiuri — Miller, Canfield, Paddock and Stone PLC
• Cary McGehee — Pitt, McGehee, Palmer, Rivers & Golden PC
• Valerie Newman — State Appellate Defender Office
• Rosalind Rochkind — Garan Lucow Miller PC
• Carol Rosati — Johnson, Rosati, Schultz, & Joppich PC
• Sangeeta Shah — Brooks Kushman PC
• Amy Timmer — The Thomas M. Cooley Law School
• Ann Marie Uetz — Foley & Lardner LLP
• Rebecca Walsh — Reiter & Walsh PC

The Dog Days of Halloween

The U.S. Supreme Court has just released its fall schedule for next term. On Halloween, the United States Supreme Court hears oral argument in two cases to decide whether police violated the Fourth Amendment by taking a dog trained to smell for drugs to the door of a house where they suspected that marijuana was being grown, and whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is enough to establish probable cause for the search of a vehicle.

See SCOTUSblog on Florida v. Jardines, and Florida v. Harris.

Evil in the 21st Century

There's been a lot of loose talk of "evil" in the wake of the twin shocks of the Penn State scandal and the Aurora massacre.  We touched upon the topic of what neuroscience might have to say about unspeakable acts before (see, for example, "Will Brain Scan Analysis Replace M'Naghten Rules?")  What I like about yesterday's New Yorker blog essay "What Do We Mean By Evil?" is that it connects the threads of horror underlying the conclusion that someone is evil to our impulse for justice:

“Evil” has become the word we apply to perpetrators who we’re both unable and unwilling to do anything to repair, and for whom all of our mechanisms of justice seem unequal: it describes the limits of what malevolence we’re able to bear. In the end, it’s a word that says more about the helplessness of the accuser than it does the transgressor. As Dews writes, “Basic notions of offence and punishment, of transgression and forgiveness, seem to lose their grip in the face of profound, far reaching desecrations of the human.” For those kinds of crimes, “evil” is still the only word we’ve got.

"As Such" As Pointless Throat Clearing

The distinguished Cromwell professor of law at Harvard, Mark Tushnet, being "grumpy" about the writing in law reviews, nails one of my own pet peeves:

The dangling "as such." Sometimes the phrase "as such" actually does something -- when it refers back to something that serves as an example of what's about to be said, or to some characteristic of the thing referred to that's about to be introduced. ("She was an Estonian. As such, she was especially interested in the travails of the national soccer team.") In law reviews, though, "as such" is almost always pointless throat clearing. I used to blame legal writing instructors for this, but I've located blog posts going back at least to 2006 by legal writing instructors criticizing the usage. So, where are law faculty and law review editors getting this?

Would that this problem were confined to law reviews where the pain would be inflicted upon a very small, masochistic, and deserving audience, but alas, the annoying verbal tic is prevalent throughout the legal writing world. Except, perhaps, blogs.

On Fantasies About Retirement

It's pretty much a given these days that human beings are bad at retirement planning.  Heck, whole countries appear to have screwed it up pretty badly. (I'm talking about you, Europe.) But closer to home, I fear that we lawyers are not immune from the magical thinking described in this NYT's op-ed, "Our Ridiculous Approach to Retirement." I can't vouch for data or the economic analysis of the piece, but I did like the concluding sentence of this paragraph, as it is the same point we try to make in relation to self-lawyering:

It is now more than 30 years since the 401(k)/Individual Retirement Account model appeared on the scene. This do-it-yourself pension system has failed. It has failed because it expects individuals without investment expertise to reap the same results as professional investors and money managers. What results would you expect if you were asked to pull your own teeth or do your own electrical wiring?

Anyone got a rebuttal?  Or a solution?

The Ruth Bader Ginsburg Bobblehead Doll

You know you want one. From the geniuses at The Green Bag, who explain:

"We distribute these items willy-nilly, with no promises to anyone about what we might make, when we might make it, or who might get it."

Check out the annotated version here, and other Green Bag goodies here.

 

Murder Trial Juror Member Of Facebook Group Against Defendant

The judge in a New Brunswick, Canada murder trial has declared a mistrial after the victims' family told him that one of the jurors belonged to a Facebook group created against the defendant and had posted comments on it. Here's the CBC account.

HT: Slaw

More Testing of Fine Writing

In an earlier post we drew attention to an amusing online tool, The Writer's Diet, that rates writing samples for "fitness" or "flabbiness" and exposed excerpts of writing from various Michigan Supreme Court justices to the test, just for fun. Did we say the tool was addictive?  It is. We've now been inspired to test the writing of one of Michigan's most celebrated writers, Jim Harrison, author of such gems as Legends of the Fall and The English Major.  Fittingly, we tested a sample from Jim Harrison's first Smoke Signals food column, EAT YOUR HEART OUT. Here's the sample:

You said you were curious about my meals with Orson Welles, who of course, is a bit of a trencherman. The most memorable was at Ma Maison (the restaurant with the unlisted phone number out there in Glitzville.) The two of us were accompanied by a beautiful Hungarian countess who left in either boredom or disgust half way through the meal. You see, Mike, she was slender and could not comprehend our great, sad hearts, choked as they were with fatty deposits.

Orson began by clearing his palate with a half dozen bull shots in quick succession. As we were hungry, the first course was a half-pound of fresh caviar with an iced bottle of Stolichnaya. (Politics! In Palm Beach 2 years ago a liquor store refused to supply me with Stolichnaya because of what the Russians were doing in Afghanistan. I explained to him that the residents of that sorry country of Afghanistan were Muslims and don't drink vodka. My account was such that I got my vodka.) The next course was a wonderful ragu of sweetbreads in pastry covered by a half-quart of black truffle sauce, accompanied by a rare old burgundy, the name of which would mean nothing to the impoverished hippies who read your magazine. Then without a moment's rest arrives a whole poached Atlantic salmon in a sorrel sauce and a white Bordeaux. At this point the countess wrapped herself in her cape and spun into the night.

The Writer's Diet verdict? "Needs Toning." Here's what the results look like:

 

 

 

 

 

 

 

Opinions on Writing: Good Writers Don't Nominalize

In "Zombie Nouns" in the New York Times, English professor Helen Sword rails against nominalizations (nouns formed from other parts of speech), which she says, "cannibalize active verbs, suck the lifeblood from adjectives and substitute abstract entities for human beings." She offers this as an example of nominalized writing (the nominalizations are in italics):

The proliferation of nominalizations in a discursive formation may be an indication of a tendency toward pomposity and abstraction.

Lawyers, she says, as well as academics, bureaucrats, and business writers, love nominalizations.  Think that doesn't apply to you?  She points us to her own fun online tool to check the health of your writing, according to her standards. The Writer's Diet Test scores your writing for flabbiness or fitness. Just for fun, we ran Chief Justice Young's and Justice Markman's statements from the recent order on the challenge to the Emergency Manager law referendum through the test. Both statements rated "flabby," but for different reasons. The chief justice's nouns put his statement in "heart attack" territory, while Justice Markman's verbs were the culprit. Those results whetted our appetite -- could we find any legal writing that met the fitness test?  We turned to the latest Supreme Court opinion and things started looking up immediately.  A sample of Justice Mary Beth Kelly's majority opinion rated "needs toning," a distinct improvement, but a sample of Justice Markman's concurrence again fell into heart attack territory, this time for both nouns and verbs, plus an abundance of "waste words." And then finally, a clean bill of health: Justice Cavanagh's dissent rated "fit and healthy."

The prior paragraph, by the way, rated "flabby."  It's all about those nouns.

We do not endorse the test as a definitive assessment of good writing, but it is a lot of fun. We recommend combining the pleasure of playing with it with another entertaining distraction, such as watching a TV broadcast of a Tigers game.