Advocate or Scholar: Pick One

As much as practicing lawyers may disdain the pontifications of the academic elite, who easily spout caselaw and theory as if oracles of the law gods, the tacit reality is that law professors in the well carry that extra bit of credibility when offering their arguments.

They are what we are not: scholars.  We make a highly technical argument that compels a judge to think hard and it’s dismissed out of hand. They make the same argument and, boom, it’s considered. The same is true of outlandish arguments.

To the practicing lawyer, this really burns our butts.  We may be every bit as sound in our position as the prawf, but we’re just plain, old advocates.  But who is a judge to dismiss a scholar with the imperial wave of the hand?  It’s not that they necessarily win the point, but at minimum, they are taken more seriously. A world renown constitutional scholar must know something about the Constitution, right?  He cannot simply be ignored.

Harvard’s Larry Tribe is such a scholar, which is why his representation of Peabody Energy to challenge environmental limitations designed to stave off global warming caught some serious attention. Continue reading

The Death of Apology

The failure of so many of us, myself included, to have taken the Rolling Stone report of a forcible rape at University of Virginia that never happened  with sufficient skepticism of both accusation and reporting should be a clarion call to constrain the passion of belief until facts are proven.  And yet, Rolling Stone’s retraction of its story in the face of a report by Columbia School of Journalism as to its pervasive abject failure to be accurate and dispassionate fails as an apology and, instead, twists its lie to serve the very same purpose that gave rise to its blind, and grievously misguided, faith.

As Eugene Volokh notes, the writer of the false story, Sabrina Rubin Erdely, offered an “apology.”

Here’s the apology from Sabrina Rubin Erdely, who wrote the now-discredited Rolling Stone story alleging that there was a gang rape at the Phi Kappa Psi fraternity:

The past few months, since my Rolling Stone article “A Rape on Campus” was first called into question, have been among the most painful of my life. Reading the Columbia account of the mistakes and misjudgments in my reporting was a brutal and humbling experience. I want to offer my deepest apologies: to Rolling Stone’s readers, to my Rolling Stone editors and colleagues, to the U.V.A. community, and to any victims of sexual assault who may feel fearful as a result of my article.

Continue reading

A Reply To Senator Franken (or lending Jim Comey a hand)

The ranking member of the Senate Subcommittee on Privacy, Technology and the Law, Al Franken, proving this his comedic chops are neither greater nor lesser than they were when he held down a real job, has sent FBI Director James Comey a letter.

Jim, being a busy guy given the time he’s constrained to spend putting Department of Justice Inspector General Michael Horowitz in his place, not to mention winning the War on Drugs, could probably use some help fielding Franken’s questions. After all, Franken, despite being rank, isn’t a lawyer, which explains why he would have a seat on that subcommittee.  I’m here to help.

Dear Senator Al, Continue reading

He’s Baa-aack, Again

After a grueling nine hours of deep sleep and the miraculous epiphany that reindeer is tastier than I ever would have thought and steak Fiorenza may be the finest dinner ever, I’m back. To those who sent me emails with links to current stories or questions requiring thousand-word answers plus a legal education, I hate you.

I’ve been gone before, and while it’s hard to keep tabs on interesting things happening in the world about which I’m dying to have my say, I restrained myself.  This time, I didn’t bring a computer with me, but skimmed life via smartphone, often yelling at people on the twitters and wondering why no one thought it prudent to stop micro-aggressing me by making me feel guilty about my silence.

One observation came from the juxtaposition of what seems like the perpetual whining noise coming from the youth of the United States as compared to those of Europe: instead of searching under every rock for something to be offended about, to blame for the trauma done their delicate sensibilities, some sounds that needed to be silenced, they were busy living life and having a great time of it. Continue reading

The Fear of Fear Isn’t Justification

David Kassick probably isn’t the kind of guy most would want to hang out with.  He had addiction issues, and enough paranoia, maybe, that when Hummelstown police officer Lisa Mearkle turned on the turret lights, he took off rather than stop.  For an expired inspection sticker.  No, Kassick exercised some pretty poor judgment.

Yet, it wasn’t bad enough for him to die.

Authorities said Mearkle had attempted to pull over Kassick for expired inspection and emissions stickers before he sped away. She caught up to Kassick near his sister’s home where he had been living for a short time.

He got out and ran before Mearkle incapacitated him with a stun gun, held in her left hand. He was on the ground when she shot him twice in the back with the gun in her right hand, police said.

Given that Kassick was at his sister’s home when he was stopped, one might question the pressing need to tase him, as opposed to calling back-up and having a nice chat with Kassick about his reaction to a minor traffic infraction. But given what happened afterward, all that seems rather trivial. Continue reading

But The Other Guy

At Above the Law, fellow curmudgeon Mark Herrmann confuses new lawyers with a foreign and hated concept: responsibility.

I recently heard an in-house lawyer bemoaning her fate.

But she didn’t have to be in-house; lawyers at firms experience exactly the same thing.

“I was told to accomplish a certain thing. Only one person could make it happen — a very senior executive had to make a phone call to strike a deal. So I sent an email to the senior executive asking him to make the call. He didn’t. Three weeks later, people were blaming me. How can that be? I’m just a low-level in-house lawyer. I can’t force Mr. Big to act. How can people possibly blame me for this?”

Sorry, Charlie — it’s your fault.

With minor variations, this scenario plays out with pathetic regularity. For the corporate types, it may be an executive. For the criminal law types, it may be a client, family member, witness perhaps, or even the prosecutor.  One moving part in the Rube Goldberg machine fails to budge, and so we sit there, stymied, helpless. Continue reading

Gone Fishing

By the time this posts, I will be leaving on a jet plane, seated next to Dr. SJ, pondering the delights awaiting me in various very cool European destinations.  I have left my computer home, and will take a breather from writing for a couple of weeks, focusing all my attention instead on my beautiful, wonderful and tolerant wife.

No doubt, you will miss me terribly, but you’ll get over it.  See you when I get back.  Oh, and if I get a chance to moderate comments, I will, but it’s not high on my agenda so don’t get pissed with me if they don’t post instantaneously.  Frankly, it’s probably a good time to forget about commenting and express your critically important views elsewhere.

Have a great couple weeks, and see you upon my return.

Bye.

Rape Culture, Finally Defined

A while back, I asked for a definition of “rape culture.”  It wasn’t that I was being deliberately difficult, but it was one of the fuzzy phrases thrown back at anyone who questioned anything about the alleged epidemic of sexual assault and rape.  If the reason was “rape culture,” then it was critical to know what that meant.

One reaction that comes with regularity, and the anger that suggests that anyone who doesn’t grasp and embrace it is, by definition, the scum of the earth, is the phrase “rape culture.”  It’s a catch-all justification for feminists, and spit at people as if no further explanation is needed.  If one doesn’t “get” rape culture, it’s proof of their misogyny. Not only do I not get it, but I didn’t really know what it meant as it was being thrown my way.  I may be thick, but it wasn’t part of my worldview.

Unsurprisingly, there was no answer.  There was no definition. It was two words, strung together,  that conveyed some amorphous sense of terrible wrongfulness, rape being an extremely loaded word, without any parameters.  People could give examples of what they deemed to be “rape culture,” but they were examples because they felt they were. Without a definition, examples are hollow. Continue reading

A Snapshot Of Two Proposed Laws

Via the Chron, Texas Representative Jason Villalba (R-Dallas) has introduced House Bill 2918, which would make it a crime for private citizens to photograph or record police: “within 25 feet of them a class B misdemeanor, and those who are armed would not be able to stand recording within 100 feet of an officer.”

Villalba contends that while citizens have a right to photograph cops, his bill has no constitutional implications as he’s not preventing them from doing do, but just adding some definition to what constitutes interfering with police:

“(My bill) just asks filmers to stand back a little so as to not interfere with law enforcement.”

Meanwhile, Colorado Rep. Joe Salazar, a Democrat from Thornton, has introduced House Bill 15-1290, which:

would impose up to $15,000 in civil penalties if a law enforcement officer seizes or destroys a citizen’s recording or interferes with someone trying to film them.

The Colorado bill addresses police commanding people to stop filming or seizing their cameras or content. Continue reading

But For Video: Police Math Edition

There are five cops. There are two perps. One is white. One is black. Do the math.

But the lingering questions remain, how far does the white guy get with his hands cuffed behind his back? How does he get the cuffs off?  And what was the cop who watched the white guy run off thinking about?  Donuts?

The “Secret Trial” of Garner’s Killer Remains Secret

Justice William Garnett heard argument for the disclosure of the grand jury minutes against Police Officer Daniel Pantaleo for the killing of Eric Garner and ruled. Did you know?  Do you still care?  Oh, it was so very hot at the moment, but that was months ago, an eternity. Has your attention waned and your interest focused on something else?

If not, or at least not totally, this was the ruling:

The prosecutor in the Brown case made public much of the information about the Ferguson grand jury. But on Staten Island, Justice William E. Garnett of State Supreme Court decided against the request for public disclosure sought by the New York Civil Liberties Union; the city’s public advocate, Letitia James; the National Association for the Advancement of Colored People; and The New York Post.

Justice Garnett sided with the Staten Island district attorney, Daniel M. Donovan Jr., who has fought the release of grand jury materials, arguing such disclosure would have a “chilling effect” on witnesses.

The Times’ characterization is a bit unfair.  The judge didn’t so much side with Donovan, as apply the law. The movants, seeking disclosure, just didn’t win. Continue reading

Judge Jeffrey Weill: No Zealous PDs Allowed

Perhaps the nicest thing any judge could say about public defenders is that they’re too zealous in the defense of their clients.  It should happen everywhere, except in the courtroom of Hind County, Mississippi Judge Jeffrey Weill. He’s having none of it, according to Jon Rapping.

Judge Jeffrey Weill seems to believe public defenders should be more deferential to him and less passionate in the representation of their clients.  Apparently disapproving of the zealous advocacy of one public defender, Judge Weill removed her from all of her cases and, according to Public Defender Michelle Harris, to identify any specific behavior that violated the lawyer’s professional obligations to her clients, or the court.

The story is frustrating, in that Weill fails to offer anything the PD did, “any specific behavior,” that justifies, or even explains, what got him bent out of shape.  As described in the Clarion-Ledger, the biggest issue is that the PD, Allison Kelly, wins too much. Continue reading