Category Archives: Uncategorized

The Prize Goes To Waleed Abulkhair

My old friend, Dan Arshack, took on a cause pro bono that few in the United States either know or care about.  He’s had a lonely time of it, despite the nature of the fight.  It involves a lawyer imprisoned for doing his job.  Except that it happened in Saudi Arabia, and the lawyer’s name is Waleed Abulkhair.

Yes, you never heard the name before.  You probably didn’t read this Huffington Post article about him.  We’re on outrage overload, and there are just way too many things at home to be concerned about to spend much time or energy on bad stuff happening on the other side of the world.  But Danny has, on his own dime, and the least I can do to support his efforts is use my soapbox to spread the word.

Waleed Abulkhair remains in prison, even as he won the Ludovic Trarieux Human Rights Award, first given to Nelson Mandela. So Danny hopped a plane to Geneva to accept the award on his client’s behalf.  This is what he said.

If Waleed has become an outlaw he just as certainly has remained a patriot. He continues to express a deep love for his country and its promise, despite being separated from his wife and daughter and imprisoned by a tyrannical regime that wields its limitless power as a sword against the best and brightest of its citizens. Continue reading

Randall Kennedy: A Grown-Up At Harvard Law

The Friday after Thanksgiving is about as dead a news day as there is.  So naturally, the New York Times chose it to publish one of the best op-eds ever addressing the volatile campus race revolts. Harvard Law professor Randall Kennedy will restore your faith that there remain some grown-ups in the Academy.

A week ago, someone put slivers of black tape over the faces of most of the African-American professors. I am one of those whose photograph was marked.

Last Thursday, on my way to teach contracts, I received an email from a student who alerted me to the defacement. I saw the taped photos, including my own, right before class. Since then I have been asked repeatedly how I feel about having been targeted by what some deem to be a racial hate crime. Questioners often seem to assume that I should feel deeply alarmed and hurt. I don’t.

He raises the unraisable, the unthinkable, the thoughtful. Continue reading

The “Safe Space” In The Jury Room

Without more, it’s impossible to know what motivated the juror to write the note.  Maybe she was the sort of person who was just your typical, New York, neurotic nutjob who somehow eluded detection in voir dire.  Or was acceptable to both sides despite being a nutjob.  Or maybe she was a fragile teacup, as are being trained in special education on university campuses nationwide.

In any event, she sent out a note to Southern District of New York Judge Valerie Caproni, presiding over the corruption trial of Shelly Silver, former Speaker of the New York State Assembly.*


I am wondering if there is anyway I can be excused from this case, because I have a different opinion/view so far in this case and it is making me feel very, very uncomfortable…I’m feeling pressured, stressed out … told that I’m not using my common sense, my heart is pounding and my head feels weird. I am so stressed out right now that I can’t even write normally. I don’t feel like I can be myself right now! I need to leave!

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Happy Thanksgiving

It may not seem this way all the time, but I really do appreciate the fact that anyone takes the time out of their busy day to read what I write. I am deeply thankful. And I am especially thankful for David M’s invaluable help in making SJ happen by making my typos go away and making me appear less of a dolt.

Hope dinner at your house is a lot like mine.  

And I am very thankful to be on my way in the early morning (instead of writing SJ, as is my norm) to pick up my son at the airport. I miss him very much.

Mens Rea And The Koch Conspiracy

Everybody loves bipartisan crim law initiatives, and one put forth by Republican Congressman Jim Sensenbrenner seemed destined for broad approval.  The bill sought to impose a mens rea requirement on criminal conduct when Congress was too lazy to include it in its initial enactment.

Default state of mind proof requirement in Federal criminal cases

If no state of mind is required by law for a Federal criminal offense—

(1) the state of mind the Government must prove is knowing; and

(2) if the offense consists of conduct that a reasonable person in the same or similar circumstances would not know, or would not have reason to believe, was unlawful, the Government must prove that the defendant knew, or had reason to believe, the conduct was unlawful.

The inclusion of a specific mens rea requirement is common in criminal laws. For example, first degree murder usually requires the “intent to kill,” whereas lesser degree murders or manslaughters may only require “recklessness.” Continue reading

The Demands, The Resistance

When black students, armed with rifles, took over Willard Straight Hall in 1969 in reaction to a burning cross outside Wari House, they made their demands known.  There was a stump outside the Straight, and students thereafter stood atop it to announce their purposes. The stump is gone, and black Cornell students now make their demands in secret.

These are the demands issued by Cornell University Black Students United in the secret meeting with President Garrett. They include mandatory for-credit courses for all undergrads, grads, and professors about “privilege” and “white hegemony;” curtailing academic freedom for all professors on social justice issues; hiring Gannett doctors, psychiatrists, and other counselors based on race; renaming the Cornell Plantations; shaking up the “white” Greek system; redirecting funds from other strapped humanities departments to create tenure lines and stipends for majors/PhD programs in minority studies; make Black Students United the official spokespeople for all People of Color on campus with direct access to the president. President Garrett is to reply by Monday. The Cornell community has a right to know and debate, before decisions are made.

The problem with these demands is that they affect every student’s life and education. The demands seek to recreate higher education around the feelings of one identity group, and come at the expense of others. Continue reading

Fault Lines Makes The ABA Beauty Pageant, And Yet…

Every parent knows the sense of pride and joy that comes of a child accomplishing something worthy of praise and recognition, and that’s how I feel about Fault Lines, barely a six-month-old infant, being named to the ABA Journal Blawg 100.  Thank you, ABA Journal guys, for embracing the efforts of the Fault Lines writers and putting this baby on your list.

I haven’t always been kind to the beauty pageant.  It’s not that a little recognition for being in the pie eating contest of blawging isn’t appreciated. Blawgers certainly suffer the indignation of pseudonymous insults for not meeting the tastes, whether by content or tone, of the potential 100 million readers on the internets, and so they could stand a bit of appreciation once in a while.

That said, pitting blawg against blawg has always been unseemly. To their credit, the ABA Journal has finally done away with this nonsensical competition, that served more to reveal the neediness for recognition as to who begged for votes than the worthiness of their efforts. Thankfully, that’s done. It was an embarrassment.

The writers at Fault Lines work pretty damn hard to produce posts that enlighten and illuminate criminal law. For their efforts, they get to enjoy vast wealth and fame the opportunity to write some more, so someone out there can nitpick their work. But that’s the nature of blawging, so it comes with the territory.  Much as I may not have cared much about this for my own sake, I’m thrilled (and I mean that, sincerely) that these exceptional writers received the nod. They deserve it. They earned the tummy rub. Continue reading

Better To Be Lucky Than An Imposter

Mark Bennett wrote about it. Keith Lee did too. Even Mirriam Seddiq had her say. The Imposter Syndrome.

The impostor syndrome, sometimes called impostor phenomenon or fraud syndrome, is a psychological phenomenon in which people are unable to internalize their accomplishments. Despite external evidence of their competence, those with the syndrome remain convinced that they are frauds and do not deserve the success they have achieved. Proof of success is dismissed as luck, timing, or as a result of deceiving others into thinking they are more intelligent and competent than they believe themselves to be.

Ah, how people love to come up with explanations for why they are better than what they feel they are. This is what comes of having too much time on their hands and indulging their inner Sunshine Superman.  As Bennett explained it:

So much of what we criminal-defense lawyers achieve is objectively the result of luck—getting the right case with the right facts at the right time, drawing the right jury panel, finding the right piece of evidence—that much of what is described as “impostor syndrome” is accurate self-assessment. Even beyond that, though, successful men in criminal defense are, I believe, more likely to think of ourselves as lucky undiscovered frauds than as brilliant lawyers receiving our due.

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DEA’s Chuck Rosenberg And Reefer Madness

The 1936 propaganda movie, Reefer Madness, has since morphed into a cult favorite. If you somehow haven’t seen it, get some munchies and prepare to laugh. But acting head of the Drug Enforcement Administration, Chuck Rosenberg, still thinks it’s a documentary.

“What really bothers me is the notion that marijuana is also medicinal — because it’s not,” Rosenberg said in a briefing to reporters. “We can have an intellectually honest debate about whether we should legalize something that is bad and dangerous, but don’t call it medicine — that is a joke.”

The absurdity of Rosenberg’s assertion is striking, particularly in his suggestion that we can have an “intellectually honest debate” provided we ignore all medical evidence proving his head is deeply embedded in his ass. That marijuana has significant medical uses isn’t a matter of debate. Hell, heroin has medical uses as well, it being just another opiate.

But Rosenberg’s comments have given rise to calls for his ouster by medical marijuana patients and even members of Congress. Continue reading

Princeton Without Wilson: To What End?

Princeton University was as tied to Woodrow Wilson as a school could be.  Not only was Wilson the nation’s 28th President, but also the president of Princeton.

As the school’s president in the early 20th century, Wilson initiated its expansion into a full-scale university. He lifted educational standards, created academic majors and introduced the small-group classes, often led by professors, known as precepts.

And so, his name was on the wall there.

To honor him, Princeton created the Woodrow Wilson School of Public and International Affairs — an elite institution within an elite institution — and a residential complex, Wilson College, where quotations from the revered leader have been displayed on a television screen in the dining hall.

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When Rights Become “Incidental” To Death (Update)

Some people find it unbearable to read what “the other side” has to say about the issues we find clear and substantial.  After all, they’re WRONG, WRONG, WRONG!!! But neither hiding from contrary views, nor allowing oneself to indulge in outrage does much to help.  Reading, understanding and addressing views that are “wrong” is far more productive.

The murder of John Livingston was discussed here and at Fault Lines, by Josh Kendrick.  Within this story of a guy killed for doing what the courts tell us he’s entitled to do are two significant problems:

Even more unfortunately, Livingston’s killer was a cop. So now we have a problem. Livingston doesn’t, because he is dead. It will remain to be seen if the killer cop has a problem, because we don’t like to prosecute cops, even for killing innocent civilians.

But in this case, North Carolina law is on the side of the angels. Though its little comfort to Livingston, North Carolina statute § 14-51.2(c)(4) says a North Carolinian can use force against a law enforcement officer who is attempting to enter a home illegally.

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After The Gushing: Sentencing Reform Is Inadequate

A mere month ago, everybody was gushing praise over the “bipartisan” sentencing reform that finally won the blessing of Iowa Senator Chuck Grassley, who holds the keys to change as chair of the Senate Judiciary Committee. Even FAMM got behind the bill, and if FAMM backed it, it must be good.

Not perfect, perhaps, but, as the New York Times proclaimed as they issued their good housekeeping seal of approval, “a crucial first step on the long path toward unwinding the federal government’s decades-long reliance on prisons as the answer to every ill.” Anybody could see that, right?

Except one old, negative curmudgeon who called bullshit.

As the glow of irrational exuberance wore off, and people actually read the bill, thought about what it gave and what it didn’t, not to mention took away, it slowly began to dawn on people that this glorious bipartisan proposal kinda didn’t do muchContinue reading