As Jen posted Tuesday, the Supreme Court has ruled the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a “search.” The five-justice majority notably left out its thoughts on whether that search was unreasonable and required a warrant.

U.S. v. Jones involved a drug dealer who appealed his conviction for conspiring to distribute drugs that was based on evidence the police collected via a GPS monitor physically attached to his vehicle. The police used the GPS monitor to track Antoine Jones’ movements for more than a month without a warrant. All nine justices upheld an appellate court decision reversing Jones’ conviction.

While the Supreme Court mentioned that police might need a probable cause warrant from a judge to physically attach a GPS device to a vehicle and monitor the vehicle’s movements, SCOTUS omitted a clear opinion on what specific situations required a warrant.

While the decision is better than what the government contended — that it could affix GPS devices on the vehicles of all members of the Supreme Court, if it desired, without a warrant — it is hard to tell where we stand in the increasing debate over our rights to privacy.

Justice Sonia Sotomayor, in a concurring opinion, suggested Americans have more rights to privacy in data held by phone and Internet companies than the Supreme Court has held in the past. I did not own an iPhone at the time when everyone found out that Apple tracked its users, but I do own one now. And let me tell you — every time my device asks me whether it can “use my location,” I wonder if I should let it.

John W. Whitehead, writing at The Huffington Post, listed several sources of technology that spur the privacy debate. Drones, smart dust devices, surveillance cameras, facial recognition software, iris scanners and your very own cell phone are some of the items available to the police without engaging in a “search” pursuant to U.S. v. Jones.

This is because these technologies do not require the government to engage in a physical trespass of one’s property to gain information.

On another note, I sent in my very first set of discovery requests a few weeks ago that utilized requests for information available via social media. The latest case law (and there is still not much of it yet) leads us to believe that pokes, wall comments, status updates and the like will be discoverable if relevant to the matter being litigated. Is anything we do via our gadgets and on the Internet going to be protected in five years? What are your thoughts? Where do we draw the line?

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Despite our nation fighting wars on at least three fronts (Libya, Iraq, and Afghanistan), U.S. news outlets, for the most part, have focused much of this past year on domestic issues such as the debt ceiling, President Obama’s jobs bill, and the Republican presidential primary.

This week has been a break from the usual milieu with attention centered on international issues such the Palestinian bid for statehood and Iran’s release of the two imprisoned American hikers. Noting the change, I began to wonder about the relationship between law and international affairs; namely, whether our legal system is being affected by international players.

While I believe different nations require different approaches because of  differing cultures and beliefs, I also acknowledge that to deny globalism’s rise is unwise. As our technologies increase, so does the world’s interdependence. In a sense, we are becoming a global village.

There are many examples of legal globalism: the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child, International Criminal Court and International Court of Justice, to name a few. While these organizations do not confine the United States to compulsory jurisdiction, the United States appears to moving towards it.

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I can’t promise to make appellate briefs easy, but compared to what some lawyers are doing now, they can be easier.

There are a lot of rules governing appellate briefs — content, typography, number of copies, communications with opposing counsel and deadlines. I don’t often get the chance to dabble before the appellate courts, but every time I do I learn something that I should do to make my life easier. Most of this is probably common knowledge for superstar appellate lawyers, but perhaps something I write will help a newbie in his first appellate assignment. In no particular order:

1. Pay attention to deadlines: There are a number of deadlines in the Rules. I admit that I’ve been caught off guard by the rules of communication with opposing counsel regarding the Record Extract (Rule 8-501). As a result, I had to send opposing counsel a list of the items I proposed for the Extract very late, and I had to hope they had time to look at it and get back to me. Ideally, all of these deadlines should be diaried up the instant you get that first notice from the court. Even better, if you are the appellant, once you get the transcript from the trial (which you should order the instant you decide to appeal) and the copied court exhibits, send an initial letter to counsel informing them of your preliminary designations for the record extract, and asking them for their counter-designations. It doesn’t matter if your proposal is all inclusive — you can still add more documents in the final days of writing your brief. But, you should have a preliminary idea, and this is one less thing to worry about later.
2. Calendar the oral argument dates: The court gives you a number of possible days for oral argument — when you get the notice, put a hold on your calendar for those days.
3. Stipulate to extension of time: Rule 8-502(b) allows counsel to stipulate to an extension of time to file any brief, as long as the reply brief is due at least ten days before argument. Once you get your briefing schedule, send an immediate request to opposing counsel to iron out a stipulated deadline for briefs — you can get a few extra months because oral arguments are usually scheduled so far in advance. I learned this the hard way — I asked for an extension from opposing counsel about two weeks before my due date, one lawyer refused (hey buddy, if that’s your position, don’t ask me for any favors), and I wasn’t left with enough time to ask the Court for an extension. It’s too bad, too. I could have told the court in my motion that “Appellant’s counsel requested a stipulation to extend the briefing schedule, but Appellee refused that request.”
4. Record Extract: I know some lawyers are still putting all of their record extract documents in a pile, and giving them to their assistant to manually page number and copy. Maybe that works for you. But there’s a better way. If you are a “paperless” firm, just copy all documents to a separate electronic folder titled “Record Extract.” If you are not a paperless law firm, collect the documents as usual and have your assistant scan them in to a folder. As you receive counter designations from opposing counsel (I encourage them to e-mail me scanned versions), put those in the folder as well. Then, using Adobe Pro, you can select all of the documents, right-click and then click “Combine in Adobe Acrobat.” The program will ask you to put them in order, and it will make them into one gigantic document. To page number my Record Extract I use LexisNexis’ CaseMap, but there are features allowing you to do this with Adobe, as well.
5. Record Extract II: Another tip on the Record Extract — when you have it scanned in, use OCR (optical character recognition). This will convert it to searchable text which really helps when you sit down to write the brief.
6. Record Extract III: When assembling the final Record Extract, be sure to add a cover page. You can do this electronically, as well, by simply printing your Word/WordPerfect coverpage to PDF, then adding that page to your Record Extract.
7. The Brief: Give yourself two days to outline the general scope of the brief, a full week to research law, and a full week to write it. Then, make sure you have a week after that to ignore it, and one more week to come back and look at it fresh. Really, your process should begin about a month before it is due. Remember, you will always be distracted in the office, so try to take some time to do this from home or on weekends in the office.
8. Get it Printed: When you are done with the brief, print it to PDF, and save it to a flash drive along with the Record Extract.  Take it to your printer, they can download it, and then they can print and bind them for you.

I hope this helps someone. The most important thing if you are new to this process is to have smart lawyers on standby who don’t mind stupid questions. I go to David Kopstein and John Bratt, two phenomenal appellate lawyers who never judge me for my dumb questions (“Does the record extract page numbering include the ‘E,’ or is that just for the citation?”).

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Over the summer, the U.S. Supreme Court revealed that it had no idea what a text message was.

The case is City of Ontario v. Quon, and the issue was “simply” whether the police department has the right to read personal text messages from an employee using a work page.

(In this case, a pager capable of sending text messages which, honestly, I had never heard of. Are people still using pagers?)

The transcript is a fascinating read. Here are some nuggets from the bench:

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When President Obama nominated Justice Sonia Sotomayor to the Supreme Court, I was overjoyed. A woman and a minority — ’bout time, I thought.

I truthfully didn’t think he’d nominate another woman — not sure why, but I didn’t. So when I heard that Elena Kagan was next up, well, you can imagine my reaction.

I know, I know. Lots of people don’t understand this thought process. Why do you necessarily want a woman over a man? Shouldn’t they be evaluated individually? I’ll take a page from Justice O’Connor on this one. In this New York Times op-ed piece, she is quoted as saying: “Our nearest neighbor, Canada, has four women on its nine-member court, and one is their chief justice. And they’re a great group. Now what’s the matter with us? You know, we can do better.”

So here’s my view on this Supreme Court nomination thing — strangely, this is not a job with a tiny applicant pool. President Obama didn’t post an ad on Craigslist and get 10 resumes. There are probably a couple hundred (at least) lawyers out there qualified to sit on the Supreme Court. The number may not be in the thousands, but there are still a lot of them. Women and men. White people and non-white people. Enough equally qualified candidates that he pretty much can choose what “type of person” he wants.

So, you may ask, why should he necessarily choose a woman over a man? Read the rest of this entry »

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Just as we saw after Justice Sotomayor was nominated, the web is teeming with pro- and anti-Kagan articles, blog posts and anecdotes.  Times like these demonstrate how incredibly valuable the quick-to-press, divergent view, blogging model has become.

On slow news days, the number of television news channels and newspapers seems staggering, but in truth, airtime and column space is limited, resulting in a tendency for television news and newspapers to highlight the opinions of talking heads that specialize in analysis that is partisan, knee-jerk and decidedly not analytical.

Enter the blogosphere.

Below are a few of the more interesting and (sometimes) well-reasoned blog posts and articles I have seen on the internet regarding Elena Kagan’s nomination to the Supreme Court: Read the rest of this entry »

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