Texting In The First Degree

It’s definitely a problem in cities, as you try to walk down the street only to have some jerk walk into you because his eyes are laser-focused on his iToy and he’s got absolutely no clue what’s happening around him and can’t bring himself to care. It’s likely a problem everywhere, as the problem occurs wherever people can’t manage to walk without staring at their phone.

And then there’s the schadenfreude that occurs when they walk into a wall or sign post, which can be very damaging and painful, even if caused by their own inability to get their head out of their…phone. But is making texting while walking a crime the way to fix it?

Officials in Montclair, in Southern California, decided that their 39,000 residents needed a heads-up — literally. There were accidents that resulted in part from pedestrians burying their noses in smartphones with their minds miles away. Something had to be done about these “cellphone zombies,” Edward Starr, the city manager, said. So Montclair made it illegalto cross streets while on a phone, texting or listening to music with buds in both ears. Fines of $100, and as much as $500 for repeat offenses, will go into effect in August.

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Racial Income Disparities: Outcomes Without Explanations

Spend time in the trenches and you get to know a lot of black and Hispanic kids very well. You take responsibility for their lives, and in the course of being their lawyer, you talk. You learn about them, their lives, their families. You learn about their education, their problems, their world. It’s not quite a representative sampling, since the people you get to know best have the common thread of being arrested and prosecuted, but you get close to a great many.

Unlike public defenders, private criminal defense lawyers get to spend far more time with their clients, and accordingly get to know them far better as people. We get to know their spouses, kids, parents and friends. These aren’t destitute people, but generally people who have sufficient funds to retain our services, so they aren’t exactly poor.

And one perpetual realization* has been that, had they not been black, not been Hispanic, they could be the CEO of a multinational corporation. You think it’s easy to create an organization where your competitors want to take away your market share with extreme prejudice? And beyond the competition, the 3-4 Precinct regulates your business with guns? Yet, they do. Some of these guys are quite brilliant, incredible organizers motivators and business people. So why aren’t they ruling the world? Continue reading

Studying At The Library of Harm

If you’ve ever had the sense that no one takes note of what you put out on social media, maybe that you’re not quite as fascinating as you believe you are, there’s hope. At least if you’re a college student.

Campus Safety Magazine reports that the University of Virginia contracts with a service called Social Sentinel for $18,500 a year to monitor its students’ public social media posts. It works by scanning student social media accounts based on a “library of harm” of thousands of words curated by Social Sentinel in addition to words tailored to the specific school contracting with them. Posts from students containing words on these lists are forwarded to the police, who then decide whether or not to investigate the students.

Unless the school has a major donor with the last name “harm,” this is a bit disturbing. It likely surprises no one that there is a list of forbidden words, or that someone has created an algorithm to search students’ social media accounts for their appearance. That schools are doing so is Big Brother enough; but that they forward students’ posts to the police should they contain a verboten word reduces it to an entirely new depth of problems. Continue reading

The Appeal of Children

At Volokh Conspiracy, Ilya Somin concludes with a statement that should be so obvious as to not need to be said, but it does.

Ultimately, we should try, as much as possible, to base government policy on reason and evidence. That means resisting calls to give special credence to the views of the young and crime victims, except in the rare instances where they really are likely to have valuable insights on policy. Indeed, it pays to be skeptical of all emotional appeals that are more likely to short-circuit our judgment than improve it.

But appeals to emotion have become the advocates’ stock in trade. It’s de rigueur to begin an article with an anecdote, not as an example but to evoke an emotional response that compels the reader to feel that something must be done. And when it comes to bringing a sad tear to our eyes, no one does it better than children. Continue reading

Josh Blackman: The Supremacy Sham?

Everyone knows that the Supreme Court is the ultimate arbiter of constitutionality, because it says so, right? Right?!? Badass lawprof Josh Blackman raises an intriguing argument that maybe this is one of those things that all lawyers know even though it may not be the case.

Despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States operates like any other court. While its judgments bind the parties before the Court, its precedents are not self-executing for non-parties. The distinction between the Supreme Court’s judgment and precedent is often conflated due to Cooper v. Aaron. This 1958 decision, spurred by the desegregation crisis in Little Rock, forged two crucial concepts. First, the Justices announced the doctrine that came to be known as judicial supremacy: a simple majority of the Supreme Court could now declare, with finality, the “supreme law of the Land.”

Second, Cooper asserted a principle this article calls judicial universality: the Supreme Court’s constitutional interpretations obligate not only the parties in a given case, but also other parties in similar cases. These unprecedented assertions of judicial power were, and remain, entirely inconsistent with how all courts, including the Supreme Court, operate. They cannot be supported as constitutional rules, but only as mere cultural norms.

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Short Take: Bitter Writers, You’re Not Atwood

Margaret Atwood takes up shelves in bookstores, to the extent actual bookstores still exist, because her writing and thinking captured a generation of serious thought. Not that it helped her from being reduced to a cardboard cutout when someone unworthy decided to debate her bad feminism.

Not quite the Thrilla in Manila, but then, Atwood’s image on the poster belied the fact that she wouldn’t be there. This was Julie Rak, whoever she is, fighting a caricature.  Continue reading

Even In Canada, Lawyers Defend Clients

One step ahead of the United States, where the American Bar Association approved Model Rule 8.4(g) to require lawyers to adhere to social justice orthodoxy or be deemed unethical, the Law Society of Upper Canada demanded lawyers swear an oath to “promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public.”

In the National Post, Christine Blatchford noted how law schools took up arms in furtherance of the cause.

[Adam Dodek, the dean of the common law faculty at the University of Ottawa] said, in part, “We recognize that the legal institutions of this country have not only failed to deliver justice to Indigenous peoples of this country but have in fact continued to perpetrate many injustices. We acknowledge that racism still very much exists in our justice system. Continue reading

Reinventing Atticus

While Harper Lee’s “To Kill A Mockingbird” may have been the foremost inspiration for lawyers to defend the accused, it’s not a book without issues. It’s fair for people to take issue with its themes, language and, well, message. No one should be forced to read it if they don’t want to.

But is it fair for Aaron Sorkin to take Lee’s book and turn it into a woke vision of what Harper Lee would have written if she was Sorkin? Her estate says no.

One of the year’s most anticipated Broadway plays — the screenwriter Aaron Sorkin’s adaptation of Harper Lee’s novel “To Kill a Mockingbird” — faces a legal challenge from Ms. Lee’s estate, which is suing over Mr. Sorkin’s version of the story.

In a complaint filed Tuesday in federal court in Alabama, the estate argued that Mr. Sorkin’s adaptation deviates too much from the novel, and violates a contract, between Ms. Lee and the producers, which stipulates that the characters and plot must remain faithful to the spirit of the book.

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The Judge Aquilina Show

If some woman, call her Rosemarie Aquilina, wants to rent a church or auditorium and spend her day sitting on a high-backed chair listening to women tell their stories of harm, some serious and some petty, some real and some imagined, then she should. But there is a fair chance that few would show up to bear witness to this woman.

Unless, of course, this wasn’t merely a random woman, but a judge. And not merely some unknown state judge, but the judge who became overnight-famous during the sentencing of Larry Nassar. How famous? Natalie Portman on Saturday Night Live famous.

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No Reason To Investigate If You “Believe The Victim”

The list of accusations by Eboni Sanders against Thomas Mowbray, and later Patrese Thompson, because she “put herself into the situation when she began seeing Mowbray,” is long and prolix. And if that was as much as you knew about the situation, this poor woman who was subject to threats, harassment and domestic violence, you wouldn’t feel all that bad about the time Mowbray and Thompson spent in cells after their being arrested by Pittsburgh cops.

Except none of it was true. Sanders fabricated all of it, from calling in threats to herself to creating a phony Facebook account to solicit a contract killer to do her in. And almost every aspect of the accusations against Mowbray and Thompson was subject to collateral evidence, videos, fingerprints, telephone records, that would have proven as conclusively as possible that Sanders was fabricating it all.

But the cops didn’t bother to investigate her claims. Instead, they believed the victim. Continue reading