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White House (by Cezary p via Wikimedia)
Which U.S. president married the daughter of his law partner?
Hint: The story actually takes a creepy turn since he became her legal guardian when she was orphaned at 11. She remains the youngest wife of a sitting president.
See the answer on the next page.
One of the foundational concepts of monetary theory is Gresham’s Law. Named after the Tudor-era financier who founded the Royal Exchange — who didn’t actually formulate it but gets the credit — it states that bad money drives good money out of circulation. If you have copper and zinc pennies in circulation, both nominally worth one cent, but the value of copper is higher, you create an arbitrage opportunity and gradually the copper coins will be taken out of circulation by enterprising individuals.
But the bad tends to drive out the good everywhere. Bad habits overpower good habits. Bad people push away good people. Bad procedures make good procedures irrelevant.
Keep An Eye On Your Bad Habits
So keep an eye on your bad habits. If you’re not careful, they’ll quickly overpower your good ones. No matter how carefully researched and thoughtfully drafted your brief is, a few typos will completely ruin the effect and turn the brief into a mess. One badly argued section will burn your credibility for the rest of the brief and probably the rest of the case.
This certainly doesn’t mean that you should be afraid of taking risks — in fact, timidity almost always reflects badly upon its practitioner — but you should always keep in mind that the importance of carefulness is almost always even more than you expect. Carelessness compounds, and a sloppy mistake is almost always going to draw attention. That’s in large part because you’re expected by all parties — clients, judges, and other lawyers — to be careful and present things clearly and correctly. No one will give you extra credit for doing the basic aspects of your job, nor should you expect them to.
Keep On Task And On Message
It’s likewise important to keep things on task, on message, and on a consistent theme. An otherwise clear, persuasive argument is ruined once you start rambling about some confusing or unrelated topic that the judge doesn’t follow, or start misstating an authority.
Instead, always remember to stay organized and focused, looking to shave off any areas of weakness or distraction that you can find. There are always areas to improve in any argument, and time spent on improvement is rarely wasted. When I prepare for an argument, I typically go over it in my head and type up notes, then go over the notes again and again to tighten it, find weak points to emphasize and see anywhere where I can improve. Briefs should go the same way: it never hurts to go over everything another time — including the old trick about reading it backward — to look for weaknesses and areas of improvement. And pulling in someone else never hurts. It’s sometimes shocking how, after you look too long at something, you end up missing something that is obvious when reading it the first time.
Always Keep Focused On Continual Improvement
Perhaps the best way to avoid the slow rot of Gresham’s inevitable and misattributed warning of atrophy is to focus singularly on continually improving whatever is before you. By keeping your eye on all of your potential weak spots, you can more easily find where the weaknesses actually are. So start today, and make it your goal to keep the bad from driving out the good.
Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is a partner at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.
Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.
The New Jersey Supreme Court has made the Fifth Amendment discussion surrounding compelled production of passwords/ passcodes more interesting. And by interesting, I mean frustrating. (h/t Orin Kerr)
The issue is far from settled and the nation’s top court hasn’t felt like settling it yet. Precedent continues to accumulate, but it’s contradictory and tends to hinge on each court’s interpretation of the “foregone conclusion” concept.
If the only conclusion that needs to be reached by investigators is that the suspect owns the device and knows the password, it often results in a ruling that says compelled decryption doesn’t violate the Fifth Amendment, even if it forces the suspect to produce evidence that could be used against them. Less charitable readings of this concept recognize that “admitting” to ownership of a device is admitting to ownership of everything in it, and view the demand for passcodes as violating Fifth Amendment protections against self-incrimination. The stronger the link between the suspect and the phone, the less Fifth Amendment there is to go around.
This decision [PDF] deals with a crooked cop. Sheriff’s officer Robert Andrews apparently tipped off a drug dealer who was being investigated. The dealer tipped off law enforcement about Andrews’ assistance with avoiding police surveillance — something that involved Officer Andrews telling the drug suspect to ditch phones he knew were being tapped and giving him information about vehicles being used by undercover officers.
Two iPhones were seized from Andrews who refused to unlock them for investigators. Investigators claimed they had no other option but force Andrews to unlock them. According to the decision, there was no workaround available at that time (at some point in late 2015 or early 2016).
According to the State, its Telephone Intelligence Unit was unable to search Andrews’s iPhones — an iPhone 6 Plus and an iPhone 5s — because they “had iOS systems greater [than] 8.1, making them extremely difficult to access without the owner/subscriber’s pass code.” A State detective contacted and conferred with the New York Police Department’s (NYPD) Technical Services unit, as well as a technology company called Cellebrite, both of which concluded that the cellphones’ technology made them inaccessible to law enforcement agencies. The detective also consulted the Federal Bureau of Investigation’s Regional Computer Forensics Laboratory, which advised that it employed “essentially the same equipment used by” the State and NYPD and would be unable to access the phones’ contents. The State therefore moved to compel Andrews to disclose the passcodes to his two iPhones.
Apple implemented encryption-by-default in September 2014. Andrews was arrested in July 2015. This would be about the same time the DOJ was trying to force Apple to crack open an iPhone for it in the San Bernardino shooting case. This was ultimately resolved by an outside contractor (most likely Cellebrite), but it appears that no one had a workable solution when investigators in this case attempted to crack the seized phones.
Andrews challenged the compelled production of passcodes, claiming this violated his Fifth Amendment rights. The trial court disagreed, as did the state appeals court. The state’s top court arrives at the same conclusion.
The state argued it actually knew far more than what’s needed to clear the “foregone conclusion” bar.
[T]he State argues that communication between co-conspirators has no special privacy status, that the State “has established . . . that it already knows what is on the phone[s],” and that the State has a superior right to the contents of the phones because of the unchallenged search warrant.
The court finds in favor of the state, but it does recognize that passcodes are more testimonial than fingerprints or other biometric features used to unlock devices.
A cellphone’s passcode is analogous to the combination to a safe, not a key. Communicating or entering a passcode requires facts contained within the holder’s mind — the numbers, letters, or symbols composing the passcode. It is a testimonial act of production.
It also recognizes there may be no clear way to distinguish between passcodes and biometrics when dealing with compelled production.
We also share the concerns voiced by other courts that holding passcodes exempt from production whereas biometric device locks may be subject to compulsion creates inconsistent approaches based on form rather than substance. The distinction becomes even more problematic when considering that, at least in some cases, a biometric device lock can be established only after a passcode is created, calling into question the testimonial/non-testimonial distinction in this context.
The court says the state has proven enough to be granted the “foregone conclusion” exception to the Fifth Amendment.
The State’s demonstration of the passcodes’ existence, Andrews’s previous possession and operation of the cellphones, and the passcodes’ self-authenticating nature render the issue here one of surrender, not testimony, and the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination thus applies. Therefore, the Fifth Amendment does not protect Andrews from compelled disclosure of the passcodes to his cellphones.
The dissent disagrees. It says that although the tech has changed, the underlying principles of the Fifth Amendment haven’t. And it’s not just the dissent saying this. It’s also the nation’s top court, which has never held that the compelled production of incriminating testimony complies with the Constitution.
In a world where the right to privacy is constantly shrinking, the Constitution provides shelter to our innermost thoughts — the contents of our minds — from the prying eyes of the government. The right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of our law, protected by the Fifth Amendment and our state common law. No United States Supreme Court case presently requires otherwise. No case from this Court has held otherwise. That protection deserves utmost respect and should not be lessened to authorize courts to compel a defendant to reveal the passcode to a smartphone so law enforcement can access its secured contents.
Given the current split in both federal district courts and state courts on the issue, the dissent says the New Jersey Supreme Court shouldn’t be an enabler of potential Fifth Amendment violations in the absence of US Supreme Court precedent.
Until the Court clarifies its intentions about application of the act of production doctrine in this setting, I would follow the only sure directional signs the Court has given…
Things may be slightly harder for investigators at the moment, but it’s not the court’s role to make things easier for the government. They’re supposed to be a check against government power grabs, not an ally in its attempts to limit the protections it supposedly granted to its citizens. We live in a “golden age of surveillance.” There’s more information available in unencrypted form than there’s ever been. And the arms race between device makers and encryption crackers is ongoing. It hasn’t ended and device encryption has not been declared the winner.
Law enforcement must find another means of obtaining access to the encrypted substantive information on two cell phones whose contents it wishes to search and for which the government has a search warrant. Technological barriers must be overcome without sacrificing constitutional, deep-seated historical protections against governmental intrusions forcing individuals to become assistants in their own prosecutions. Modern technology continues to evolve, bringing new problems; but it also may bring new solutions.
But that’s just the dissent. The majority says the Fifth Amendment can be bypassed if the state can find enough connective tissue between the locked device and the person who refuses to unlock it.
New Jersey Supreme Court Says ‘Forgone Conclusion’ Trumps Fifth Amendment In Crooked Cop Case
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The Internal Revenue Service recently issued a memorandum declaring that companies offering daily fantasy sports services should be required to pay a federal excise tax of 0.25%. The opinion held that the tax should not be applied to season-long fantasy sports competitions that may be held by those same companies.
DraftKings and FanDuel would be burdened the most by the imposition of a new 0.25% excise tax on their operations. In 2017, the Federal Trade Commission authorized legal action to block a proposed merger between the two companies based on an understanding that a newly formed combined entity would control more than 90% of the U.S. market for paid daily fantasy sports contests. The companies never merged, but still maintain their dominance over the industry.
“Our expectation is that DraftKings and FanDuel will use the substantial amount of ambiguity present in the opinion and corresponding statute to argue for a delay in implementation,” said Chris Grove of Eilers & Krejcik Gaming, a research firm focused on the U.S. gambling industry. “We believe they will likely be successful in obtaining this delay. What follows from there is less certain, as the potential impacts range from a nominal settlement to a material impact on each company’s bottom line. Smaller fantasy operators may be even more vulnerable to that potential range of outcomes as they lack the balance sheet and customer values that will insulate DraftKings and FanDuel.”
The statute referred to by Grove and included in the IRS memo is 26 U.S.C. § 4401, which states that there shall be imposed on any legal wager an excise tax equal to 0.25% of the amount of such wager. The ambiguity is in the definition of “wager” as it is used in that federal statute.
A definition for “wager” is provided in 26 U.S.C. § 4421(1), but it is not very helpful. In fact, the statute basically says that a wager is a wager, which makes it an impossibility to appropriately determine whether a daily fantasy sports entry fee should be construed as a wager for the purposes of applying the stated excise tax. The statute says,
The term “wager” means— (A) any wager with respect to a sports event or a contest placed with a person engaged in the business of accepting such wagers, (B) any wager placed in a wagering pool with respect to a sports event or a contest, if such pool is conducted for profit, and (C) any wager placed in a lottery conducted for profit.
It is one of the worst crafted definitions that I have ever seen. While companies offering daily fantasy sports options are certainly providing a service based on a sports event, the definition does not in any way help determine whether those companies are in the business of accepting wagers or whether the entry fees are wagers.
The IRS also recognized the lack of clarity and pivoted to applying the term’s “plain, obvious, and rational meaning” by citing to the Random House College Dictionary, which defines a wager as something risked or staked on an uncertain event, or a bet. It thus conveniently concluded that a daily fantasy sports entry fee fits into the definition of wager.
However, as my colleague Daniel Wallach astutely pointed out, numerous courts have held that the risk of loss element must be present on both sides of a transaction for the transaction to be considered a wager. For instance, an individual who places a bet with a sportsbook for the Miami Heat to beat the Indiana Pacers is, in effect, placing a wager because both the individual and the sportsbook has the risk of losing based on the outcome of the game. With daily fantasy sports, the operator does not bear the same type of risk; the only risk to the operator is that it will guarantee a certain prize pool and lose money if not enough people pay entry fees to cover the pre-set guaranteed prizes.
The IRS apparently does not believe there is any ambiguity, Grove says there could be ambiguity that the likes of DraftKings and FanDuel may be able to take advantage of, and Wallach’s position is the same as that of the IRS — there is no ambiguity — but comes to the total opposite opinion as the governmental entity.
Yet, the most important part of the IRS memorandum may be that it is not binding. As such, DraftKings, FanDuel, and other daily fantasy sports companies may continue to spurn the opinion, as there is currently no true threat that an excise tax will be enforced against them in the near future.
Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.
There’s a global pandemic raging and the economy is a wreck, but the federal government has bigger problems today. They’ve got to save the world from mean tweets directed at the president’s delicate, orange ears!
The same president who demands free rein to tout quack cures to his hundreds of millions of followers wants the Supreme Court to give him the right to block his critics from seeing or interacting with his Tweets.
Back in July of 2017, Knight First Amendment Institute at Columbia sued on behalf of seven twitter users who’d been blocked by the president. The U.S. District Court in the Southern District of New York said he couldn’t do that. The Second Circuit agreed. And then a panel of the Second Circuit refused to rehear the case en banc, affirming that the president has converted his personal account into a public forum and “when the President creates such a public forum, he violates the First Amendment when he excludes persons from the dialogue because they express views with which he disagrees.”
So now the DOJ is running to Chief Justice Roberts with a 187-page cert petition in hand, begging him to preserve Donald Trump’s right to shit-tweet at will without fear of comment by American citizens. Because what better use of taxpayer dollars than putting the entire Solicitor General’s Office on the case, right?
And so we are treated to yet another exegeses on OKAY, GRANDPA, TWITTER IS LIKE …
Twitter enables users to interact with each other in a variety of ways. Users can “favorite” or “like” another user’s tweet by clicking on a heart icon that appears under the tweet. Users can also “mention” another user by including the other user’s handle in a tweet. A Twitter user mentioned by another user will receive a notification that he or she has been mentioned in the other user’s tweet. In addition, users can “follow” other users, which enables them to receive notifications every time that other user posts a tweet. . And they can “retweet[]”—i.e., repost— the tweets of other users onto their own timelines. [Citations omitted.]
Acting Solicitor General Jeffrey Wall argues that Trump’s shitposts are simply the rantings of a private citizen. And like a soapbox preacher, Trump’s nattering about DEEP STATE and HOAX and DEMOCRAT CITIES are not subject to the First Amendment’s prohibition on government regulation of speech. But this requires a certain suspension of disbelief.
Unlike the town drunk whose words have no effect, the president routinely uses his account to make and announce federal policy and personnel changes. For example, the ban on transgender Americans serving in the military was announced on Twitter. (In point of fact, he hadn’t consulted his generals. The nine minute pause between these tweets sent the Pentagon into a panic that he was about to declare war on North Korea.)
And Secretary of Homeland Security Kirstjen Nielsen learned that she’d been fired the same place the rest of us did — from the president’s Twitter account.
Nevertheless, the SG argues that Twitter is not government speech, or in the alternative, if it is government speech, then it’s simply a one-way megaphone where the president has no obligation to allow anyone to talk back.
“[T]he President uses his account to speak to the public, not to give members of the public a forum to speak to him and among themselves,” he insists, likening the platform’s blocking feature to “a Congressman who forbids the placement of certain yard-signs on his front lawn.”
Neither the trial judge nor the Second Circuit bought this argument, but who knows what will happen at SCOTUS. Maybe they’ll kick the can down the road until the issue gets mooted in January if and when Joe Biden is sworn in. (We hear Justice Kavanaugh likes cans.) Maybe they’ll order briefs on Twitter’s exciting new feature limiting who can reply to a Tweet.
Or maybe they’ll break with precedent and refuse to grant the SG’s cert petition because … for the love of God, WHO EVEN CARES?
Donald J. Trump v. Knight First Amendment Institute at Columbia University [Petition for Certiorari]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
As states and cities across the nation are in different phases of reopening amid an ongoing pandemic, employers and their attorneys are tasked with getting back to business while implementing new health and safety precautions. Here are the top three things you need to help your clients do to keep their business running smoothly.
1. Create a Safe Work Environment. Employers need an action plan for reopening, based on CDC, state, and local guidelines. The CDC recommends employers promote healthy hygiene practices and social distancing, encouraging behaviors like hand washing and wearing a face covering, and retrofitting the workspace to allow for extra spacing between employees. Where possible, employees should still be encouraged to work from home, and employee shifts and breaks should be staggered for those on site to have minimal contact with each other.
2. Monitor Employee Health. Screening employees can help prevent the spread of COVID-19. Self-screening should be encouraged as the first line of defense: employees with a fever or who are exhibiting symptoms should not enter the workplace. If an employer implements health screening measures onsite, such as temperature checks and active symptom checks, the guidelines for what temperature and symptoms will bar entry should be made clear and focus on new symptoms, not pre-existing conditions. If screening will take place on site, proper safety precautions should be in place to protect the screener’s health as well.
3. Protect the Business from Liability. A top concern among employer-side attorneys is the liability employers may face if an employee contracts the virus. While it may seem appealing to have employees sign liability waivers to establish a contributory negligence defense, courts are unlikely to enforce such agreements, especially for current employees. Also, keep in mind that while every state requires employers to maintain workers’ compensation insurance, the extent of the coverage will vary. So far, 14 states have expanded coverage to include Covid-19.
For more information about PPP loans, liability waivers, and other business considerations, check out the recent CLE Reopening Workplaces During COVID: Rehiring Staff and Mitigating Risk through Health and Planning a Return-to-Work During the COVID-19 Pandemic.
This article was prepared with help from Max J. Cheslow, a Seton Hall Law student.
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It’s a sign of desperation. I want to know: When did police officers get their law degrees, when did they get voted into being judges, and when does four people do the job of … [a] jury?
— Selwyn Jones, uncle to George Floyd, commenting on court documents filed by Earl Gray, an attorney for Officer Thomas Lane, where Gray argued that Floyd “killed himself” by dying of a fentanyl overdose and an underlying heart condition, and that the police officers involved “were doing their jobs.” Officer Derek Chauvin knelt on Floyd’s neck for nine minutes during the arrest that led to his death. “None of these guys — even Chauvin — actually killed him,” Gray said. Lane is charged with aiding and abetting second-degree murder and aiding and abetting second-degree manslaughter in connection with Floyd’s death.
Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.
The coronavirus pandemic has been a fairly unmitigated disaster for any and all who serve the now non-existent travel industry: Airlines, car-rental agencies, duty free, hotels. You might expect that short-term vacation rental sites would be among. Certainly, that’s how things looked early in the crisis, when Airbnb stopped paying its hosts, raised billions to stay afloat, cut advertising and slashed a quarter of its workforce.
As it turns out, however, COVID-19 may be the best thing that ever happened to Airbnb. As Americans began self-righteously fleeing their urban homes for the presumed safety (for themselves, of course: the risk of their bringing the disease into previously unaffected small communities never seems to be a consideration) of the suburbs and beyond, the leaner, meaner Airbnb was there for them. And now its ready for its payday.
Airbnb on Wednesday announced that it has submitted a draft registration to the Securities and Exchange Commission for an initial public offering….
Airbnb rebounded… after a surge of rentals in rural areas as residents with means fled pandemic-stricken cities.
Airbnb was valued at $18 billion following its latest funding round in April. That was nearly half what the company was worth in 2017.
Judge Paul M. Sushchyk of Worcester, Massachusetts, has been accused of groping a court employee at a court-sponsored event. A hearing officer assigned to the matter found the judge engaged in misconduct by touching the woman without her consent and gave false statements during the course of the investigation.
As reported by the ABA Journal, the hearing officer found the judge’s behavior clearly crossed the line of propriety:
“The line crossed here is not a murky one,” said the report by the hearing officer, Bertha D. Josephson. “The touching engaged in here was offensive and an affront to one’s bodily integrity and dignity.”
The incident took place in April of 2019, when there’d been a conference followed by a happy hour, followed by a dinner, followed by a trip to a pub. According to the woman, Sushchyk brought a flask of whiskey with him to these events. At the pub, the hearing officer’s report says the woman “felt the distinct sensation of a hand grabbing the left side of her buttocks and applying a full-handed squeeze to it.” “The contact lasted several seconds. Stunned, [the worker] froze in place, making no move to acknowledge the affront or the culprit. She was aware at that moment that Judge Sushchyk was the only one passing behind her.”
The woman decided to report the incident, and the judge initially said he “couldn’t have done something like that” but failed to disclose his flask of whiskey in his first account.
But Sushchyk’s story of exactly what happened would change:
In a written statement to the chief justice, Sushchyk said he “was somewhat unsteady on [his] feet, feeling the effects of past hip replacement surgery, the long day, the evening meal and the alcohol consumed.”
He said after returning from the restroom, he passed the worker and placed his hand in the direction of her chair, reached out to steady himself, and “came into momentary contact with a portion of her lower body.”
The story changed when Sushchyk testified under oath, the report said. Sushchyk denied any physical contact with the worker at all. Because he didn’t think the worker would lie, Sushchyk said, he had concocted a scenario in the written statement to rationalize what she said.
The hearing officer said the court worker “gave a cogent, credible, consistent account of what occurred,” while “Judge Sushchyk has not been honest in his accounts.”
The hearing officer wrote that this lack of forthrightness doomed the judge’s credibility:
“One problem with lying is once it begins, it’s hard to know when it ends,” the hearing officer wrote. “Judge Sushchyk’s lack of candor at the inception of this matter undermines his credibility at hearing. His initial response suggests that he did what he was accused of doing and sought to minimize his culpability for it. I do not find Judge Sushchyk’s testimonial denials of intentional contact with [the worker] reliable or believable.”
The hearing officer’s recommendation is that the judge be removed from office, or be allowed to retire.
Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).