The Right To Disagree (No Matter How Mind-Numbingly Stupid)

In the Age of Disinvitation, it’s to Ohio State’s credit that K.C. Johnson was not only invited to speak, but allowed to speak. Prevailing collegiate wisdom is that no sounds should be uttered that could hurt any students’ feelings, and K.C., if nothing else, was going to say things that would make students sad.

Johnson, who co-wrote the book about the false rape allegation against the Duke lacrosse team, has been trying to bring sanity back to the debate over how college campuses handle sexual assault accusations by explaining repeatedly that accused students should not be convicted based on an allegation, without the ability to defend themselves.

And that’s where the activists disagree.

After all, hearing words that don’t confirm their deeply held feelings has become unacceptable in the world of intellectual growth and freedom.  It’s both the nouvelle view of free speech, redefined to mean only speech with which students agree, combined with the neo-feminist view of rape being conclusively proved by accusation, false or not. Continue reading

The Wild Side of Statutory Interpretation

Over the past few years, textualism has not only become fashionable, but swept the legal world by storm under the leadership of Justice Antonin Scalia and his faithful sidekick, Bryan Garner. The gist of their view is that the specific language of a statute is not only all that’s needed to interpret it, but all that’s permitted.  The use of legislative history as a tool in getting to “the intention” of a law is wrong, as it’s merely a “meaningless front for lawmakers to grandstand.”

It’s hard to muster a counterargument to that.  Yet, Second Circuit Chief Judge Robert A. Katzmann does, offering in his own book, Judging Statutes, support to the view that legislative history still has a role in statutory interpretation.

David Lat at Above the Law gives a recap of Judge Katzmann’s interview at Yale Law School and provides a listicle (because ATL readers adore listicles) of the five takeaways. Not entirely surprisingly, he begins with a rousing homage to Scalia:

Textualists like Justice Antonin Scalia oppose the use of legislative history in statutory interpretation, arguing that “[w]e are governed by laws, not by the intentions of legislators…. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself.” Opponents of using legislative history argue that it can be manipulated, abused, and quoted selectively. As one judge famously put it, relying on legislative history is like “looking over a crowd of people and picking out your friends.”

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The Threat of History

The arrest of 72-year-old retired school teacher, Gordon Van Gilder, for possession of an unloaded flintlock pistol between 250 and 300 years old, in the Garden State has been roundly criticized for its outrageousness and absurdity.  Clearly, he was no intentional criminal, despite his treatment upon arrest as a threat to society.

But New Jersey law prohibiting possession of a weapon, NJSA 2C:39-5, expressly includes a curious phrase:

Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same . . . is guilty of . . . a crime of the second degree.

That this magnificent historical artifact, this flintlock, should be a crime is, standing alone, ridiculous, but as Van Gilder correctly notes to Charles C.W. Cooke,

 I did break the law — to my shock,” Gordon Van Gilder tells me over the phone. He sighs. “Legally, they’re right.”

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Did Loretta Lynch Dig Herself Into The Swartz Hole?

As potential attorney general appointees go, Loretta Lynch of the Eastern District of New York  struck me as one of the better ones.  No, she’s not Ramsey Clark, but who is?  Yes, she’s up to her eyeballs in federal in rem forfeitures, but her turf covers two huge airports and, well, much as I hate to admit it, only Volokh Conspiracy’s David Post and I seem to remember the days when U. S. v. One 1936 Model Ford V-8 De Luxe Coach (that the law abhors a forfeiture) was the rule.

So I’ve been fairly lenient, probably more so than many others, in excusing Lynch’s “issues” in consideration of her appointment.  You see, the job of AG is unlikely to be handed to someone who shares my sensibilities toward the law, and so my perspective is from the “who will do the least harm” point of view.  On the whole, my dealings with the EDNY have been pretty good, finding them to be far more realistic and reasonable than, say, their pals over at SDNY.  That doesn’t mean there isn’t a better office in flyover land, but then, their United States Attorney isn’t getting the nod anyway, so who cares?

Yet, my hopes were dashed upon reading Mike Masnick’s Techdirt post about Lynch’s response to a question from former Saturday Night Live writer Al Franken.  The subject of his question?  Aaron Swartz and the Computer Fraud and Abuse Act. Continue reading

Peace, Officer

There is another kickstarter campaign for a documentary film to be shown at South by Southwest (SXSW) film festival that could use a little love. It’s called Peace Officer, and here’s the trailer, including the beloved smiling face of Radley Balko speaking to police militarization:

The film is by Scott Christopherson and Brad Barber, who offer this description: Continue reading

Disparity or Proportionality: Pick One

Former federal judge turned Harvard lawprof Nancy Gertner makes the point:

The mythology of rampant sentencing disparity without guidelines has driven American sentencing for decades. The problem is that you cannot build a rational sentencing regime if the only important question is this one: Am I doing the same thing in my courtroom that you are doing in yours, even if neither of us is imposing sentences that make sense, namely, that work to reduce crime? You cannot talk about disparity unless you understand the context—disparity in sentencing with respect to what? What purposes? What characteristics? Similarly situated with respect to what? The offense? The chances of deterrence? Amenability to treatment?

When my buddy, Jake DiMare, proposed the Sentence-O-Matic 1000 as the solution for the issues surrounding the rhetorical ambiguity of 18 USC § 3553(a), his goal was to use empiricism to create a consistently applicable answer for judges when considering the question of what constitutes a proper sentence. Continue reading

Threatened By The Marketplace of Ideas

The abiding principle of free speech is that the ideas that prevail in the marketplace are the ones worthy of our support.  This wouldn’t seem to be a very controversial notion, as ideas that can’t withstand scrutiny get rejected and those that can prevail.  Woo hoo!

But turning this on its head, some student groups at the University of North Carolina – Wilmington received an invitation to offer their ideas and, instead of accepting, instead of rejecting, they responded by crying “threat” and then issued their own threat to “take action.”

Madison Marston sent personal email invitations to UNCW’s National Abortion and Reproductive Rights Action League (NARAL), PRIDE, and the Women’s and Gender Studies Student Association (WSSA), to extend an invitation to Ratio Christi’s “Abortion and Human Equality: A Pro Life Defense of the Unborn” discussion. The three organizations collectively declined while threatening Marston for sending the invitation.

“Each of the leaders of PRIDE, NARAL and WSSA ask that you no longer contact us directly,” the email, obtained by Campus Reform said. “As a student organization, your events are on the CAIC calendar, part of Hawk e-News, and disseminated in a variety of other ways, which is sufficient for us to be aware of them. We do not need, nor want, these invitations. If you continue to attempt to contact any of us, we will take further action.”

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Chief Judge Lippman’s Solution

In his 2015 State of the Judiciary message, New York’s Chief Judge Jonathan Lippman offered two proposals to address the public’s manifest lack of confidence in the grand jury system when it comes to crimes committed by police officers following the “no true bill” in the killing of Eric Garner.

From the Democrat & Chronicle:

In his annual state of the judiciary address Tuesday, Chief Judge Jonathan Lippman proposed two major changes dealing with grand juries, including a bill that would allow courts to release transcripts and documents from the closed-door proceedings if the grand jury does not choose to indict.

He also called for having a judge present for the entire grand jury process if it stems from a violent incident between civilians and police.

It’s a curious reaction, in the face of many calling for the reinstitution of a special prosecutor to alleviate the conflict of interest of a county prosecutor dealing with the same police he relies upon to do his job. Continue reading

If Juries Had A Say

Northern District of Ohio Judge James S. Gwin did something few federal judges do: he looked to the jury.

The prosecutors sought the statutory maximum sentence of 20 years’ imprisonment, and the federal sentencing guidelines would have allowed a term of as long as 27 years.

But the federal district judge in the case, James S. Gwin, thought that such a sentence might be out of touch with the community’s sense of justice, and so he did something that judges almost never do. Before dismissing the jury, he asked each member what they thought would be an appropriate sentence for someone who had downloaded child pornography. According to Gwin, the average of the sentences they recommended was only 14 months.

The disparity is shocking. This is one of the reasons judges are precluded from informing juries about the sentences the law requires when they are deciding guilt.  If they realized how absurdly draconian the penalties for a guilty verdict would be, it might well push them to acquit the guilty rather than have to live with the outcome of their verdict. Continue reading

Harvard Women Disinvite Bronx Defenders’ Robin Steinberg (Update x2: The Rest of Harvard Disagrees)

It’s not the first time Harvard Law School students have demonstrated that they don’t deserve the legacy credibility that comes with the diploma, but this may be the most disgraceful.  It was first reported in New York’s nastiest pro-cop rag, the NY Post, that Harvard Women’s Law Association and the Law and International Development Society included Robin Steinberg among the women honored for International Women’s Day, to celebrate the ILGWU’s struggle.

Robin Steinberg is among 50 female lawyers and policymakers who will be lauded next month as an “inspiration” to aspiring attorneys at the elite grad school.

So the Post fulfilled its job as PBA boss Pat Lynch’s soapbox:

NYPD union leaders blasted the school for honoring Steinberg, with Patrolmen’s Benevolent Association president Pat Lynch calling it “embarrassing.”

“In that she lied to city investigators regarding her role in the disgusting ‘Hands Up’ cop-killer video, it is obvious that she is not being honored for her ethics, integrity or for her management skills,” he fumed.

“Holding her up as a role model effectively tarnishes the award.”

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Pending The Investigation

Our attention span is short, and every day brings a new case, a new situation, that calls out for scrutiny.  There is only so much we can follow, except for those who have dedicated themselves to a specific instance.  The problem with that is that the rest of us, those for whom it’s just one data point in a universe of data points, don’t share their obsession with one case.  We move on.

And even when the instance is big, huge, at the time, our limited attention gets diverted to the next big deal long before anything happens, because they utter the magic words, pending an investigation.  No, it’s rarely said when it’s a regular perp, who is caught as quickly as possible, immediately convicted by press conference and smeared with whatever they have available.  But when the perp is a cop, they immediately start screaming about rush to judgment, time to investigate, blah, blah, blah.

There isn’t much to say about this assurance that they will conduct a full and thorough investigation. There is no argument against investigating, as if it’s a bad thing. But the one thing it guarantees is that by the time it’s done, assuming it’s done, all eyes will be elsewhere and interest will have long faded away.  Maybe not always, but it’s a good bet. Continue reading

The Flood Gates Myth

A petition for cert has been filed by UC Irvine Dean Erwin Chemerinsky to argue the case against Orleans Parish District Attorney Harry Connick that, if one is to believe the majority in Thompson v. Connick, would satisfy the absurd demand that a defendant who spent years, decades, in prison has no municipal recourse unless he can show a municipal policy or custom of such unconstitutional conduct.  The message of Thompson is that one is not enough.

Here, Earl Truvia and Gregory Bright spent 28 years in prison because of a flagrant Brady violation coming out of the office of, Ta Da, Harry Connick.  They had their violation, Thompson’s violation, and amassed a record of others, including a former prosecutor who flipped on his old office who spilled the beans that no Brady would be disclosed. So?  Summary judgment against them, affirmed by the 5th Circuit.

What would it take to meet the Monell requirements to hold a municipality liable?

The New York Times offers an editorial in support of the Supreme Court taking the case, and more importantly, holding prosecutors’ offices liable. Continue reading