Barely Legally

Confessions of a Moot Court Bailiff

How To Read News Like A Search Warrant Application

Popehat’s Ken White, on How To Read News Like A Search Warrant Application:

If you’re not familiar with them, search warrant applications include a declaration under penalty of perjury from the investigating officer or agent. The declaration and supporting paperwork are supposed to identify the location to be searched, the items to be seized, and the specific facts providing probable cause that those items are evidence of a crime. Federal courts scrutinize search warrants more closely than state courts. That’s not the law; that’s just reality.

When I was a prosecutor, my job was to review proposed warrant applications from federal agents and make sure that they complied with legal requirements before submitting them for approval to federal magistrate judges. As a criminal defense attorney, my job is to analyze warrant applications that have yielded searches of my clients and scrutinize them for flaws and constitutional failures that I can present carefully and forthrightly to a judge so that the judge can then ignore or rationalize them. The critical eye that prosecutors and judges are supposed to use when reviewing a warrant application — and that defense lawyers use in evaluating whether they can be challenged — comes in handy in assessing the trustworthiness of news. Three doctrines in particular come to mind.

​Handy advice for critical thinking in any situation.

Published in Bureau of Fake Search Warrants on

How Democrats Killed Their Populist Soul

As the Democratic Party regroups and prepares for its time as an opposition party, it’s worth re-reading Matt Stoller’s piece in The Atlantic,How Democrats Killed Their Populist Soul. He begins immediately after Watergate, when a wave of reform-minded young Democrats were elected to Congress. These “Watergate Babies” swept out establishment Democrats who had led Congress since the economic populism of the New Deal era.

Over the next 40 years, this Democratic generation fundamentally altered American politics. They restructured “campaign finance, party nominations, government transparency, and congressional organization.” They took on domestic violence, homophobia, discrimination against the disabled, and sexual harassment. They jettisoned many racially and culturally authoritarian traditions. They produced Bill Clinton’s presidency directly, and in many ways, they shaped President Barack Obama’s.

The result today is a paradox. At the same time that the nation has achieved perhaps the most tolerant culture in U.S. history, the destruction of the anti-monopoly and anti-bank tradition in the Democratic Party has also cleared the way for the greatest concentration of economic power in a century. This is not what the Watergate Babies intended when they dethroned Patman as chairman of the Banking Committee.

Here’s a spoiler of how this story ends, with Bill Clinton elected the 43rd President with a platform completely silent on anti-monopoly policies for the first time since the 1920s. ​

Old problems also reemerged. Financial crises unseen since the 1920s began breaking out across the world, from Mexico to East Asia, prompted by “hot-money” flows. Deflation, rather than inflation, and a capital glut, rather than a capital shortage, started to concern policymakers. And it turns out, according to a McKinsey study, that a disproportionately large amount of the productivity gains from the remarkable computerization of the economy were the result of just one company: Walmart, the new A&P. The mega store’s economic influence “reached levels not seen by a single company since the 19th-century.” The gains of the 1990s, it turns out, were not structural, but illusory. Early in Bush’s term, the stock-market bubble burst and wages collapsed. A few years later, a global banking crisis, induced by a financial sector that had steadily gained power for 40 years, erupted. Concentration of power in the private sector, it turned out, had its downsides.

Published in The Do Not Pass Go Chronicles on

How Statistics Lost Their Power

William Davies, writing in The Guardian about how statistics lost their power:

In theory, statistics should help settle arguments. They ought to provide stable reference points that everyone – no matter what their politics – can agree on. Yet in recent years, divergent levels of trust in statistics has become one of the key schisms that have opened up in western liberal democracies. Shortly before the November presidential election, a study in the US discovered that 68% of Trump supporters distrusted the economic data published by the federal government. In the UK, a research project by Cambridge University and YouGov looking at conspiracy theories discovered that 55% of the population believes that the government “is hiding the truth about the number of immigrants living here”.

This is an unwelcome dilemma. Either the state continues to make claims that it believes to be valid and is accused by sceptics of propaganda, or else, politicians and officials are confined to saying what feels plausible and intuitively true, but may ultimately be inaccurate. Either way, politics becomes mired in accusations of lies and cover-ups.

And sometimes, what you don’t study is as ​much a political choice as what you do study.

The fact that GDP only captures the value of paid work, thereby excluding the work traditionally done by women in the domestic sphere, has made it a target of feminist critique since the 1960s. In France, it has been illegal to collect census data on ethnicity since 1978, on the basis that such data could be used for racist political purposes. (This has the side-effect of making systemic racism in the labour market much harder to quantify.)

Published in Three out of Four Dentists Agree on

The President's Phone is Spying on Him

Nicholas Weaver for Lawfare:

Lost amid the swirling insanity of the Trump administration’s first week, are the reports of the President’s continued insistence on using his Android phone (a Galaxy S3 or perhaps S4). This is, to put it bluntly, asking for a disaster. President Trump’s continued use of a dangerously insecure, out-of-date Android device should cause real panic. And in a normal White House, it would.

A Galaxy S3 does not meet the security requirements of the average teenager, let alone the purported leader of the free world. The best available Android OS on this phone (4.4) is a woefully out-of-date and unsupported. The S4, running 5.0.1, is only marginally better. Without exaggerating, hacking a Galaxy S3 or S4 is the type of project I would assign as homework for my advanced undergraduate classes. It’d be as simple as downloading a suitable exploit—depending on the version, Stagefright will do—and then entice Trump to clicking on a link. Alternatively, one could advertise malware on Breitbart and just wait for Trump to visit.

This should be a gigantic scandal. As Weaver says, it’s trivial for even undergraduates to compromise a phone this old and turn it into a 24/7 remote recording device. Nation states have significantly more resources and capabilities than students. Every conversation in the President’s presence is almost certainly being heard by at least one foreign intelligence agency. This is not a hypothetical situation.

Someone on the President’s staff needs to destroy his phone immediately. Don’t give him another one.

Published in Manchurian Release Candidates on

An Oral History of Double Dare

There are almost too many gems to choose from in the AV Club’s oral history of the Double Dare obstacle course:

We had an obstacle called the Sewer Chute, which was, you’d go up a ladder and then go down a ladder in a very narrow sort of Plexiglass box, and the kid coming down fell backwards, and it looked like he snapped his neck. I thought he was dead. If you see me on the course, all I say over and over again is, “Are you okay? Are you okay? Are you sure you’re okay?”

So the kid only got to obstacle number six, and we said, “Hey, nice job. You’re doing great. See you tomorrow on Double Dare.” Well, we found out that the kid’s father was an attorney, and he came into the control room afterwards and said, “You know, that was a very dangerous obstacle course.” “Yeah, I know, we’ll remember that.” And he goes, “A large-screen TV was the prize for obstacle number seven.” Then he takes out his business card and hands it to us and says, “I’ll be happy not to sue you guys if you give him the TV from obstacle number seven. Otherwise, we got a problem here.” They went into a room, came back, and said, “Yes, sir, you want that TV? That’s your TV. No problem.” And that was the end of that.

From that point, they always looked at the kids’ applications, and if any kid had a parent who was an attorney, they never got on the show after that.

​Sound legal strategy.

I remember that Double Dare was criticized for wasting tons of food, but every article I’ve read about Double Dare since then has been quick to point out that the show used expired food. That factoid permeated into seemingly every corner of pop culture, and it turns out it wasn’t true at all:

Marc Summers, host: Klinghoffer [eventually] made [something] up, because he was the best at this stuff. [He would say] we would go to food warehouses and try and find product that was dated that they couldn’t sell in supermarkets or to restaurants anymore, and they would sell us the dated stuff. It was more B.S. than I can begin to tell you, but we just got tired of dealing with people saying that we were not helping homeless people by throwing eggs and using pudding.

My entire childhood was a lie. ​

Published in Things Only 90s Kids Remember on

Simpler Times

Popehat’s Ken White, on punching nazis:

We have social and legal norms, including “don’t punch people because their speech is evil, and don’t punish them legally.” Applying those norms is not a judgment that the speech in question is valuable, or decent, or morally acceptable. We apply the norms out of a recognition of human frailty — because the humanity that will be deciding whom to punch and whom to prosecute is the same humanity that produced the Nazis in the first place, and has a well-established record of making really terrible decisions.

You — the bien-pensant reader, confident that sensible punchers and prosecutors can sort out Nazis from the not-Nazis — will likely not be doing the punching or prosecuting. The punching and prosecuting will be done by a rogue’s gallery of vicious idiots, including people who think that Black Lives Matter should be indicted under RICO and that it’s funny to send women death threats if they write a column you don’t like.

Compare Twitter in 2017, in which a nazi celebrating the president’s inauguration is sucker punched on camera (and we all spend a lot of time seriously considering the political necessity of punching nazis) with Twitter in 2015, when we joked about killing baby Hitler. We were so young and innocent then.

On the topic of what White says, I couldn’t agree more. It’s a great application of the Kantian categorical imperative to our current political environment: ​

So act according to the maxim where you can will your actions to become a universal law.

It’s sort of a beefed up version of the golden rule. This is handy, because most of the discussion in my liberal social media bubble seemed to take the golden rule to mean something like:

Do unto nazis as you would have other do unto nazis.

This is a much more convenient philosophy, because we all support the punching of nazis as a general rule. But as White points out, the categorical imperative makes it impossible to rationally want to impose a law allowing everyone to punch everyone with whom they violently disagree. Because the nazis disagree with you and I. And some people find Black Lives Matter activists as repulsive as you and I find the nazis. You can’t rationally hope that someone punches you for disagreeing with them, because nobody wants to get punched.

Here’s hoping this is the last ‘conversation from 1930s Germany’ we have in 2017.

Published in I'll Buy War Bonds Instead on