The Dream Team, If Dream Means Failure

It’s bad enough to be on the receiving end of tons of flackcrap, announcing the critically important news that some lawyer won a case or some federal agency managed not to totally screw up the job for which it exists. But once in a while, I open a press release for kicks to find that some publicist hit send after taking a massive dose of a forbidden narcotic. This one was special enough to share.

The new Legal Dream Team!

Hi Scott,
When you hear “dream team,” you’re likely to think of the 1982* United States Men’s Olympic Basketball Team.

But what if we told you there was a legal “dream team” right in the heartland … this one comprised of all-women.

Meet Cathy Kelaghan, Pam Williams and Kathy Kiefer, who lead Anthem Insurance’s Legal Department, based in Indianapolis. Continue reading

Clearing The Backlog: Rape Kits To Nowhere

Emily Winslow was raped in 1992. To call what happened to her rape raises no red flags, as rape was still rape in 1992, before the word lost all meaning and it became fashionable among one’s friends to be a rape “survivor.” This was the rape that forms our disgust and hatred of the crime. And, under the circumstances as they played out, there is no reason to doubt that she was raped.

Winslow wrote about it, reflecting a knowledgeable understanding of why, 20 years later, the rape kit prepared in 1992 wasn’t tested.

MY rape kit was created on the evening of Sunday, Jan. 12, 1992, at Magee-Womens Hospital in Pittsburgh. Tiny pieces of evidence were swabbed, plucked and combed from me: bits of me and, they hoped, bits of him, to be used in court one day to prove who had done this to me. Like many evidence kits collected at that time, it was not analyzed for DNA, and became part of what is called the backlog: untested rape kits across the country, which number at minimum in the tens of thousands.

Rather than bemoan the backlog, Winslow took the time to understand it. Continue reading

Judge Kneels And Welcomes His Governmental Overlords

When it was revealed that the Federal Bureau of Investigation, when pushed to the limit, planned to tell the judge to kiss their collective butts, it gave rise to a question:

So you big-time, important, federal judge, you. How do you like a bunch of guys in polyester suits telling you they really don’t give a shit what you order (unless it’s what you order what they want you to order), because you’re a joke in a robe and they’ve got guns. How does that sit with you, Judge?

This is where some genius will quote Hamilton in Federalist 78 about the judiciary being “the least dangerous branch.”  So what? Either it’s a co-equal branch of government or it’s not. If not, then it’s a palliative, something we do to pretend it matters and suck the will out of us to do something effective, something real.

But Judge Robert J. Bryan of the Western District of Washington, the judge who refused to back down in the face of the FBI’s refusal to comply, engaged in some high math, calculated the integrity of the judicial branch of government relative to the guns of the executive branch, and arrived at the solution. Continue reading

The Limits of Infallibility

Supreme Court Justice Robert Jackson famously wrote in his concurrence in Brown v. Allen,

We are not final because we are infallible, but we are infallible only because we are final.

Finality is a funny thing. A debate has been playing out at Fault Lines over the AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996, which has come back into focus because of the presidential race.

Josh Kendrick kicked it off with his post about how AEDPA “castrated” habeas corpus. Judge Richard Kopf followed up, arguing that it reflected a political judgment that habeas can’t go on forever.  Andrew King provided a deep dive into the history of habeas, and argued that our current adoration of innocence distorts our expectations of habeas.

Jeff Gamso, who has stood beside too many dead men walking, calls bullshit on the innocence fetish, and speaks to the fallibility of judges, courts, the system, to get it right for anyone, guilty or innocent.  Of course the creation of law is political; that’s how it’s meant to be. But there is a built-in assumption that a political decision is the right way to arrive at what the law should be. From that starting point, we vest a belief in judges to rise above the partisanship, the making of the sausage, as if this thing called “law” has a right answer. Continue reading

13 Questions While The Poor Have No Lawyers

Some people just love empiricism. They don’t really “get” empiricism, but give ’em some stats and they get all warm and fuzzy, feeling more brilliant with every numeral. Unless the numbers don’t confirm their guts, in which case something is horribly wrong, though they don’t have a clue what. But it is.

At the adorable Marshall Project, the only media outlet to seriously discuss criminal law issues (since no one else on the internet does*) and which has graced our nation by putting together a fabulous group of writers who have a grand total of absolutely no experience in criminal law whatsoever, they offer a listicle of really cool empirical questions that, wait for it, no one can answer!

A few weeks ago, the White House trumpeted the progress of its Police Data Initiative. The nearly one-year-old project prods local cops to publish data on their operations in a bid to increase transparency and build trust with the communities they police.

The results were underwhelming. Of nearly 18,000 police agencies from coast to coast, just 53 had signed on to the effort. Of that inaugural class, eight released data on officer-involved shootings, and six published information on their officers’ use of force.

Continue reading

Obama Takes The Easier Route: Forgiveness (Update)

Rear Admiral Grace Hopper wrote that it’s easier to ask for forgiveness than permission. That was President Obama’s tact, expressed in one of the most worthless interviews of a president ever conducted, where a fawning Chris Geidner of Buzzfeed, wearing his Paul Stuart tie bought specifically for the occasion, embarrassed the internet by proving that it’s not up to the task of creating even the appearance of competence.

In fairness, few on the internet would expect much of Buzzfeed, in general, or Geidner in particular. No doubt the president chose carefully, given that the hardball interrogation by a Larry King-type would be too much for the president to handle. Who, among “legal journalists,” would pitch the ball slowest?

The choices ranged from the hard hitting Salon to the crucible of Vox, from the deep challenge of Huffington Post to the incisive Slate. But no, Buzzfeed got the nod, and lawyer-for-a-day Geidner bought a tie to pretend to be a grown-up. Obama could not have been more proud of his choice.

But why would a lame-duck president take to Youtube anyway?  The answer is that he had a controversial message to send: he did it. It’s done. He didn’t ask permission. Continue reading

Silent Green

The Dartmouth Review provides the sequence of events, starting with the Dartmouth College Republican club using its bulletin board to display “Blue Lives Matter” for National Police Week.

dart1

On the one hand, it’s hard to imagine a display more deliberately provocative than this, both because of the adoption of the Black Lives Matter slogan and because Dartmouth is a hotbed of inane protest, where students risk paper cuts to protest their cause.

But speech that’s politically provocative is free speech. It’s often mistakenly expressed as the speech worthy of greatest protection, mistakenly because it suggests there are degrees of protected speech. And unsurprisingly, this bulletin board soon became the battleground, as its content was removed and replaced by Black Lives Matters materials, while students guarded the board so that the College Republicans couldn’t remove the protest materials and restore their speech.

Dartmouth, naturally, wanted only to avoid confrontation and hard feelings. Continue reading

Brooklyn Boilerplate Bites The Dust

For anyone who has never had the joy of reading a warrant application, it consists of many pages of squiggly lines, most of which appear in every application. It’s called boilerplate, the words, sentences, paragraphs, the citations, parentheticals and footnotes, that someone crafted to meet the statutory language and saved on a computer deep in the bowels of the United States Attorneys office. Whenever a new warrant is sought, someone presses the “paste” key and, boom, there ya go.

If you’re a Magistrate Judge, this pathetic excuse to kill trees ends up on your bench, day after day, as if you would actually read it. As if it might say something that wasn’t said in every warrant application ever placed on your desk. If it wasn’t fascinating the first ten times, it surely wasn’t fascinating the last thousand. And you thought the job of mag was all fun and games?

But Eastern District of New York Magistrate Judge James Orenstein got tired of flipping through the first 24 pages of the application in search of the three lines of actual substantive content, only to find nothing there. Continue reading

Comey’s Coward Cops

Jim Comey has been paying attention to the voices of America. What he’s learned is how we latch on to simplistic slogans that strike a chord among the unwary. This wasn’t exactly an epiphany, as the United States Attorney for the Southern District of New York had a double secret department dedicated solely to coming up with cool platitudes back when Comey was a trial assistant there.

But America has entered a golden age of simplistic slogans over the past few years, and millions rally behind slogans that don’t bear up to scrutiny. Why not make it work for law enforcement? And who better to voice the rallying cry than the director of the FBI? That would be Jim. Last week, he did his grand unveiling of the slogan that would fix the horrible public relations fiasco that has sapped the blind faith of America in support of his team, and out came his uber-cool effort: the Viral Video Effect.

James Comey, the director, said that while he could offer no statistical proof, he believed after speaking with a number of police officials that a “viral video effect” — with officers wary of confronting suspects for fear of ending up on a video — “could well be at the heart” of a spike in violent crime in some cities.

“There’s a perception that police are less likely to do the marginal additional policing that suppresses crime — the getting out of your car at 2 in the morning and saying to a group of guys, ‘Hey, what are you doing here?’” he told reporters.

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Sexsplaining, Transgender Edition

Gertrude Warning: This post is not to suggest there is anything wrong with  being transgender. Be whoever you want.  What this post does address is the consequences of the Government’s Transgender Letter, redefining sex discrimination to include discrimination based on gender identity.

In a deliberately provocative twit, I suggested the unthinkable:


This was more than some could accept, and in the best internet fashion, I was asked to explain. But given that twits are a poor format for thoughtful explanation, I instead do so here. Continue reading

Beware The Morality Police

While I usually find lawprof Frank Pasquale to be one of the more rational, less emotional, minds in academia, he took me by surprise in a Concurring Opinions post he titled “Platform Responsibility.”

Internet platforms are starting to recognize the moral duties they owe their users. Consider, for example, this story about Baidu, China’s leading search engine:

Wei Zexi’s parents borrowed money and sought an experimental treatment at a military hospital in Beijing they found using Baidu search. The treatment failed, and Wei died less than two months later. As the story spread, scathing attacks on the company multiplied, first across Chinese social networks and then in traditional media.

After an investigation, Chinese officials told Baidu to change the way it displays search results, saying they are not clearly labeled, lack objectivity and heavily favor advertisers. Baidu said it would implement the changes recommended by regulators, and change its algorithm to rank results based on credibility. In addition, the company has set aside 1 billion yuan ($153 million) to compensate victims of fraudulent marketing information.

I wish I could include this story in the Chinese translation of The Black Box Society. On a similar note, Google this week announced it would no longer run ads from payday lenders. Now it’s time for Facebook to step up to the plate, and institute new procedures to ensure more transparency and accountability.

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When “Intent” Was Written Out Of The Model Penal Code

It’s not that there is some nefarious conspiracy by a social justice brain trust to undermine the basic concepts of law in order to achieve ends that could never otherwise be achieved, but little by little, it’s happening anyway. Indeed, most of its supporters likely have no clue that they’re complicit in this endeavor, seeing only the shining bright light of Utopia off in the distance. But damn, we’re going to be really unhappy when they get their way.

May 17th will be a big day. It’s when the American Law Institute, the once respected group of scholars and practitioners who produced the model penal code, the template upon which state legislators relied in fashioning state criminal law, will hold a vote on the proposed new rape and sexual assault laws.

[NYU Law School Professor Stephen] Schulhofer and “associate reporter” Erin Murphy explained in an “introductory note” to an earlier draft that they wanted to criminalize “commonplace or seemingly innocuous” behavior in order to change “existing social expectations” and reshape social norms.

This reflects their view that many millions of women are routinely pressured to have sex in ways that are not now—but in their view should be—illegal. The current Schulhofer draft would also impose unprecedented limits on defendants’ ability to introduce evidence suggesting innocence. The May 17 ALI votes will be on two key sections of the massive “Tentative Draft No. 2”: the definitions of “consent” and of “Sexual Penetration Without Consent,” a felony punishable by up to five years in prison.

Continue reading