The blawgosphere was agog with the news that Associate Justice Clarence Thomas spoke during oral argument in Boyer v. Louisiana. The Washington Post said so. So did the Los Angeles Times. It was a story in the New Yorker and it provoked the most thought seen in years from Adam Liptak at the New York Times. I even got emails from non-lawyers about it. This was beyond huge, as it’s been seven years since Thomas uttered a word during argument.
But the importance was made clear by the Favorite Philosopher of 1 First Street, Tom Goldstein :
Wow, slow news day. On the Supreme Court front, the chatter has been over the sentence Justice Thomas interjected during today’s oral argument in Boyer v. Louisiana. Some of the commentary has devolved into psychoanalysis of the Justice’s supposed hostility towards Yale Law School. The real question to be asked is: can you take a joke?
You know what’s missing in every single one of these articles? A mention of Boyer. Who’s Boyer, you ask? Boyer, of Boyer v. Louisiana [SCOTUSBlog preview; oral argument transcript here]. Boyer, who sat in jail for 5 years facing the death penalty because the State could afford to only pay one of his lawyers – one that wasn’t qualified to represent him in a death penalty case. Boyer, in whose case witnesses died while he was waiting for the political football of indigent defense funding to stop getting punted around from endzone to endzone like it was a Browns vs. Cardinals game. Boyer, whose egregious delay the state of Louisiana seeks to shrug off as not really important and certainly not their fault.
That wasn’t funny. Not even close to funny. Jeff Gamso can’t take a joke either.
The Supremes decided.
Actually, they decided not to decide. Which is, of course, a decision.
The Supreme Court decided not to hear the appeal of Jason Pleau, who the feds wants to execute but Rhode Island Governor Lincoln Chaffee, whose state has no death penalty, does not.
Which means it’s over. The feds get Pleau. To keep him. To try to kill him.
You want a story? I’ll give you a story: this is the 50th anniversary of Gideon v. Wainwright. That the decision trumpeted the arrival of an era of equal justice for all, but that era has never materialized. That states still woefully underfund indigent defense; that access to justice isn’t equal and that people get screwed. Every. Single. Day.
Still not funny. It’s not that there was nothing else discussed in the blogosphere yesterday. The handful of people who had yet to write anything about the suicide of Aaron Swartz and couldn’t bear to be left out, offered desperate attempts at relevance. It included such gems as Ian Millhiser’s piece at ThinkProgress about ten crimes that were worse than Swartz’s but have less severe sentences, the sort of simpleminded fluff that appeals to people who hang out at the intersection of Passion and Ignorance.
While Millhiser’s post was inadvertently funny, its audience didn’t find it a laughing matter.
The Washington Post immediately realized how important the news of the day was.
Still, the utterance set off a small quake among those who closely follow the Supreme Court. It quickly lit up Twitter, and parts of official Washington waited for a transcript of the proceedings or a scrubbing of the tape of oral arguments. It prompted the kind of intense analysis that usually accompanies one of the court’s important decisions.
If you’re keeping score, we’ve got two guys facing execution, one of whom sat for five years because nobody wanted to spend enough money to get him a lawyer. One guy and suicide over his prosecution. And the anniversary of a promise made to provide a defense to any American who was too poor to defend himself that he would be given counsel, which was broken as soon as the bill came.
It’s not like any of this would have interested anyone anyway. Thank the Lord that Clarence Thomas showed up to give us something worth talking about, which may or may not have been a cute little joke about Ivy League law schools if only someone hadn’t stepped on his punch line.
Gideon provides the closing synopsis:
TL;DR: Thomas mumbles, internet creams itself, Boyer sits in jail, Gideon weeps.
In the first part, District of Colorado Senior Judge John Kane offered his assessment of the state of law schools, and thus new lawyers. Though one might think that young lawyers and law students would appreciate that an Article III judge cared enough about their plight to speak out, instead some castigated Judge Kane for not providing a quick and easy solution to their problems.
In the process, one commenter engaged in an attack that has become sadly and pathetically common among his peers, the attribution of baseless characteristics to diminish the worthiness of his enemy. Not only is it a low-rent logical fallacy, but its pervasive use by baby lawyers suggests that they neither appreciate sound argument nor have the competence to respond with anything better than such puerile crap.
In anticipation of the reactions to Judge Kane’s fix, let’s dispel a few of the stupider retorts. He is hardly an effete Ivy League patrician, born with a silver spoon in his mouth. John Kane had to work for a living, just like the rest of us.
I worked throughout law school tending bar in a blue collar neighborhood, didn’t get help from mommy and daddy and I practiced as a public defender and as a partner in a civil rights, criminal defense practice in the ‘hood with an African American (The only integrated firm in Colorado at that time.).
Regardless of your take on Judge Kane’s fix, baselessly characterizing him as having been born with a silver spoon in his mouth is not only wrong, but reveals that the attacker is a moron. The problems of young lawyers are bad enough without their adding to the disdain by demonstrating foolishness and the inability to respond with anything remotely resembling a rational argument. Yes, there are some federal judges who live in an Ivory Tower. Not Judge Kane. Get over it.
Judge Kane’s initial recognition of the failure of law schools to serve their purpose is significant in that few federal judges either care enough, are aware enough or are bold enough to speak out. Judge Kane did so, and this fact should be appreciated. He has life tenure, kiddies, and he doesn’t need to rub your tummies to meet your approval. Yet he did what few others have done, even though you aren’t the center of his universe. Bear that in mind.
Following his earlier statement, I asked Judge Kane what he thought could be done, and what role the judiciary should play in reforming legal education. This was his response to my questions:
I think judges qua judges need to stay out of individual circumstances because litigation is pending and one can anticipate more to come.
Essentially this is a matter for the organized bar — if it ever decides to stop acting as a marketing association figuring out more sophistries to avoid the discipline of not having conflicts of interest. The ABA needs to grasp the nettle of law school profligacy and reject the apparent catechism that the mythical free market is the sole source of virtue and freedom.
However formal or informal it might be, the law as a profession is a guild with an obligation to provide pupillage, apprenticeship and journeyman status to its members. Thus, there is a reason for law schools and for bar examinations. There is a dire need for better apprenticeship and by that I mean mentoring whether through employment or monitoring. Law schools cannot be justified solely on the basis of providing a haven for a few scholars and spewing out graduates to support the enterprise. Law firms cannot be justified solely on the basis of being profit centers or business enterprises. I don’t wish to be misunderstood as asserting that making money, even lots of it, is a bad thing; I wish to be understood as insisting that such is not and cannot morally be the raison d’etre of any profession. If law is merely a business and not a means of providing valuable service and benefits to others and to society at large, it is deserving of all the contempt and scorn presently heaped on it and even more.
I have a modest suggestion that all law school alumni associations and all bar associations stop giving money to law schools and instead direct their largesse to assisting law graduates with student loan repayments and otherwise repair the damage being caused by the law school glut. Modesty alone would suggest an end to having buildings and chairs named after the largest contributors.
Asking law profs to resolve the law school problems of hyperenrollment and superfluous courses, of misleading statistics, etc., is quixotic at best. The ABA and the ALSA could, however, insist that all law schools in order to maintain accreditation require all faculty and staff to be admitted to practice in the jurisdiction in which the law school is located, be required to maintain active membership in state and local bar associations and be required to meet all continuing legal education requirements. In sum, rather than fighting the law profs efforts to keep noncompliant lawyers’ noses out of their business, law profs should be required to participate fully in meeting the professional obligations implicit in the functioning and governance of the profession.
There are a few changes that are inevitable and the product of the inexorable forces of evolution: The billable hour is on its way out, so is academic tenure. One hopes that multiple choice, computer graded examinations for both entrance to law schools and the bar are ill-fated. One also hopes that if a law degree is to be a doctorate, that a thesis or dissertation will be required. As for pro bono work, such needs to be a matter of the heart and that, in sum, is what is lacking in the present lamentable circumstances. Without the formation of character, the rest is futile.
No magic bullet in there. Two key points are that legal academics cannot be left to their own devices to fix the problems of law schools, not the least of which is their misguided self-absorbtion with scholarship, and that lawprofs must return be forced to their roots as lawyers rather than scholars.
While I appreciate Judge Kane’s view that lawyers need to get involved rather than defer to whatever the lawprofs and students hash out, I have serious doubts about the ability of the organized bar to accomplish anything. The ABA has shown neither the guts nor brains to take a firm stand on anything, no less do something to fix a problem it has been integral in creating. To expect a sudden change of heart seems unduly optimistic.
And as Judge Kane notes, the organized bar has become little more than a marketing association for older lawyers, and frankly cares little about the problems of young lawyers. Rather than change for the better, it appears this will only get worse.
The final line of Judge Kane’s view is one that is likely to enrage many young lawyers:
Without the formation of character, the rest is futile.
To some, this will sound like a “let them eat cake” response, as you need, and demand, instant relief from your crushing circumstances, and have no interest whatsoever in archaic platitudes about honor, integrity or character. You want money.
Many will read this sentence and respond that Judge Kane doesn’t get it. I read this line and respond that he very much gets it.
In an op-ed in the New York Times, Sheila Weller writes of the loss of her cousin, Ellen Hover, in 1977.
ON a hot July day in 1977, one of New York’s ugliest summers, my 23-year-old cousin, Ellen Hover, left her Third Avenue apartment. She had an appointment with a young photographer who had asked to take pictures of her. His name, he’d told her, was John Berger.
She never returned. Posters of Ellen’s face went up all over Midtown Manhattan. Private detectives were hired. I was racked with guilt: because of a family argument, I hadn’t seen my cousin in years. Now I never would. Eleven months later, her bones were found on the grounds of the Rockefeller estate in Westchester County.
Certainly a horrible crime and a terrible loss. Eventually, the family came to learn that the man was named Rodney Alcala, who left a trail of death across the country, and was eventually captured and prosecuted in California.
It was not until July of 1979 that he was arrested in California on charges of murdering a 12-year-old girl named Robin Samsoe. He was tried, convicted, sentenced to death and remanded to death row in San Quentin State Prison in California the following year.
Over the years Rodney Alcala’s lawyers managed to twice overturn, on technicalities, his conviction for the murder of Robin Samsoe. He aggressively fought the use of DNA evidence against him, but ultimately lost. Finally, in February 2010, a jury re-re-convicted him of the murder of Robin Samsoe, along with the other four California women. He has not stopped fighting his execution sentence and suing the state for things like failing to provide him with a low-fat diet.
Assuming, for the sake of argument, that Alcala is precisely as evil as claimed, and unquestionably guilty of the death of Ellen Hover as well as Robin Samsoe, despite his lawyers using “technicalities” to compel his guilt being proven according to law, since it couldn’t be anyone else’s fault for causing “technical” flaws that exposed the conviction to being reversed twice, he’s been re-re-convicted and re-re-sentenced to death.
Not good enough, is Weller’s point. Her cousin’s murder remained a cold case, open and unresolved as far as New York was concerned, even though they were certain of her killer and he was facing execution.
For two years investigators worked to turn Ellen’s cold case warm. Despite the fact that her killer was already sentenced to death and would never be released, despite the time and the resources and the terrible memories involved, they didn’t give up. Eventually, their painstakingly obtained evidence built a timeline of Rodney Alcala’s whereabouts, his route before and after murdering Ellen. It seemed to me like a devotional act.
A devotional act is an apt description, as it bore far more similarity to religion than law. The case was ancient, such that witnesses were long dead and evidence was gone or decayed. The resources needed to warm this case would come at the expense of current unsolved crimes, and there remained no way to execute the murderer twice, if not more. But that didn’t matter.
Every victim deserves her own day in court, no matter what else the culprit has been arrested for, no matter how long ago the crime: this is the pure integrity of opening a cold case.
When the claim is framed in terms of what a victim “deserves,” it’s a blatant appeal to emotion. Most people find this compelling, despite its being irrelevant to the existence of a criminal justice system. This isn’t to be unsympathetic to the loss of a human life, or the pain suffered by the survivors of tragedy, but that it deflects from the purpose of the system: to prevent people from engaging in conduct civilized society deems unacceptable and punish those who do. In the case of capital murder (which exists in California though not in New York), there is no rehabilitative purpose, and so it need not be considered.
It’s not about what victims deserve. It’s not even about what the survivors of victims feel they deserve, which masks their own desire for closure and retribution. Such emotional-laden assertions lead us away from a system that serves society, one that is concerned with making certain that the person convicted was the person who committed the crime.
When all of our angst and anger is focused on making certain that someone pays for the tragedy, concern for the reliability of evidence, the adherence to constitutional rights are cast as “technicalities.” Who cares about the rights of the murderer when we focus on what the victim deserves?
It’s disturbing to argue against the tide of emotion flowing from the survivor of a terrible tragedy. It feels wrong to be unsympathetic to such pain. But the system isn’t about personal vindication of whatever emotional needs remain unsatisfied in the aftermath of a crime. As terrible as that might sound, particularly since it often brings such accurate reactions like “you wouldn’t feel that way if it was your child who was murdered,” and this is true for most of us, it’s not the point.
The victim does not deserve anything of the criminal justice system. Society has gotten its pound of flesh from this convicted murderer, and it will exact its revenge with his execution. That is all the system is meant to do, and perhaps more so. The survivors of the victim do not get to spit on the dead body of the killer, kick it, throw garbage into his grave, even if that would make them feel better.
In a Manhattan courtroom last month, Rodney Alcala, now 69, pleaded guilty to Ellen’s and Cornelia Crilley’s murders. After 35 and 41 years — much longer than the young women lived — he pleaded out, just like that. It was the first time in his long criminal history that he had ever confessed to a killing. The collapse of his resistance seemed taunting to all of us: Sure I killed them. What took you guys so long?
And yet it failed to satisfy the need within Weller for, what? Justice? Weller concludes by again asserting that every victim deserves “singular justice, as late as it may be in coming, as much a formality as may be the punishment.” But it will be as unfulfilling as Alcala’s plea, because the system doesn’t exist to fill the emotional void that crime leaves behind, and can never be driven by the claim of what a victim deserves. It serves no one.
It would be outrageously presumptuous for me to suggest anything about why Hacktivist Aaron Swartz too his life, but others who knew him, including his family, have offered insight, and it would be wrong to ignore it.
His family explains the pressures that drove him to this final act:
Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles.
Larry Lessig, who was involved in Swartz’s defense for a period of time, speaks to the government’s “bullying”:
But all this shows is that if the government proved its case, some punishment was appropriate. So what was that appropriate punishment? Was Aaron a terrorist? Or a cracker trying to profit from stolen goods? Or was this something completely different? Early on, and to its great credit, JSTOR figured “appropriate” out: They declined to pursue their own action against Aaron, and they asked the government to drop its. MIT, to its great shame, was not as clear, and so the prosecutor had the excuse he needed to continue his war against the “criminal” who we who loved him knew as Aaron.
Lessig goes on to make a sentencing argument, why the wrong wasn’t so wrong, the harm hardly so harmful. When Swartz’s case first became news, I wrote about it.
By no stretch of the imagination do I believe that Swartz’s attempt to download the JSTOR content was acceptable or lawful. He’s no Robin Hood, and the ideologue’s belief that digital content should be free for the taking is nothing more than religious pap, a belief that fails to bear out under rational scrutiny.
At the same time, this prosecution seems to be nothing more than a vindictive act by the government, given JSTOR’s agnostic, at worst, stance toward Swartz. They worked it out and the story should have been over. It’s just that the government can’t let it go, given that they finally have a case against a targeted individual. Vindictive prosecution, no matter what the underlying wrong, is a due process violation.
While I didn’t (and still don’t) share the Hacktivist’s creed that all information must be free, I’ve since learned a great deal more about MIT’s “cherished principles,” which both explains why Swartz’s access to a closet and ability to engage in this conduct at MIT was not only hardly as “criminal” as it might have been elsewhere, but frankly a tolerated, if not encouraged, way of life there.
As Alex Stamos, who was to be Swartz’s expert at the trial, explains:
In the spirit of the MIT ethos, the Institute runs this open, unmonitored and unrestricted network on purpose. Their head of network security admitted as much in an interview Aaron’s attorneys and I conducted in December. MIT is aware of the controls they could put in place to prevent what they consider abuse, such as downloading too many PDFs from one website or utilizing too much bandwidth, but they choose not to.
There is no doubt that this is an accurate reflection of the community ethos of the Institute. Why the office of legal counsel at MIT did not show the guts to make this plain to the government is inexplicable, and disingenuous. Did they cower in fear of the government’s bullying too? If so, then they are an embarrassment to the Institute and are unworthy of their jobs. And if not, then their failure to tell the government to get lost is inexcusable and flies in the face of the MIT ethos. Again, they are unworthy of their jobs. No matter what the excuse, the fact that MIT counsel didn’t do everything in their power to quash this prosecution from their end is a disgrace.
But there remains a side of this tragedy that the geek community misses. Government overreaching, “bullying” as Lessig calls it, didn’t start on the day Aaron Swartz was arrested. The eulogists, friends, watchers from the Hacktivist side seem to think this was an affliction that happened only to Swartz.
Hardly. Aaron Swartz was just today’s victim of government overreaching and abusive prosecution, largely undistinguishable from the multitudes who came before him. But you don’t know about them, as they weren’t 14-year-old RSS code writers. So you didn’t notice. You didn’t care. They didn’t exist to you, even as they faced 50 year sentences just like Swartz.
Not even his friends argue that what Swartz did wasn’t a technical violation of law. They did argue that the vehemence with which the government went after him, the threat of so many decades in prison, the pressure of being the target of such overwhelming power, was wrong and more than he could stand. Not merely the pressure from the government itself, but its emanations as well. Philip Greenspun tells of his talk with Swartz’s lawyers:
I asked the lawyers “Suppose that the government’s case is completely frivolous and Swartz is guaranteed to be acquitted. What would he expect to spend in legal fees to defend the case?” They didn’t want to reveal anything particular to Aaron’s case but said “Generally the minimum cost to defend a federal criminal lawsuit is $1.5 million.”
While a federal defense may well be worth $1.5 million, this is one of the wildest claims I’ve ever seen. Maybe 1% of defendants pay anything close to this amount, though it’s certainly to their benefit to be able to do everything possible to defend. The other 99% make do on a tenth, or a hundredth, and still fight. Bennett wonders whether Swartz’s lawyers were milking him. Greenspun continues:
A daunting prospect for anyone. Apparently too daunting for a 26-year-old.
Absolutely daunting, as it is for the tens of thousands of others who were forced to endure the unwanted attention of the government.
So it wasn’t on the radar of the computer geeks until one of their own was the target? They weren’t aware of how daunting it was for all the others who came before Aaron Swartz, some younger than the 26-year-old, some with children whose lives would be ruined because of a parent’s stupidity, some who, like Swartz, did wrong but certainly nothing wrong enough to justify the government laying waste to their lives? These cases, these lives, were the precursors to the harsh treatment of Aaron Swartz, and yet you didn’t know or care that any of this was happening because it didn’t touch someone you knew.
Now you know what we know. Will your anger and interest end when Aaron Swartz is buried, and you can go back to writing code and thinking cool ideas? If you want to honor his memory, perhaps you might want to put all those brilliant minds to use changing the system that drove Swartz to take his own life. It’s still here, and it’s still just as bad as it was in Swartz’s case. And it will continue to be, even as you move back to your more pleasant pursuits.
But you can no longer pretend to be surprised about what the government does to people. It happened to Aaron Swartz, and you hated it. And it will continue to happen, as it happened before Swartz was caught in its web. What now?
Update: MIT President L. Raphael Reif has issued a statement regarding the death of Aaron Swartz, that includes Computer Science Professor Hal Abelson to “lead a thorough analysis of MIT’s involvement from the time that we first perceived unusual activity on our network in fall 2010 up to the present. I have asked that this analysis describe the options MIT had and the decisions MIT made, in order to understand and to learn from the actions MIT took.”
That’s fine, though thought ahead of action, or in this case death, might have been more useful. “Better late than never” is particularly unsatisfying.
Update 2: Anonymous crashed the MIT computer network in protest of District of Massachusetts United States Attorney Carmen Ortiz’s overreaching in Aaron Swartz’s prosecution, lack of information freedom and the excessive sentences in computer crime cases.
While it’s understandable that those utterly unaware that this wasn’t the first instance of overreaching, or injustice from the myopic perspective, and that Carmen Ortiz may well have seriously overreached, but hardly more so than the government (meaning the DOJ and United States Attorneys across the country) has done in tens of thousand of other cases that didn’t involve someone well-known to the computer geek community, the sudden interest in the criminal justice system is astoundingly naive.
The “fight” isn’t about a single case, or a single criminal law, a single punishment regime or a single United States Attorney, and the fight didn’t begin yesterday and won’t finish tomorrow, after Ortiz collapses in fear of your awesomeness, and all the other prosecutors run and hide because a bunch of computer people called Ortiz mean names and Anonymous took out a network for a few hours. And then you can go back to playing on your X-box, satisfied that you’ve changed the world.
Bad cases make bad law, and it seems that any case involving Crystal Cox is, almost by definition, bad. Bad, bad, bad. Which is why it’s painful to see the newest issue raised in one of the most bizarre cases around, Obsidian Finance Group, LLC v. Cox .
Having obtained a judgment against Cox, and Cox having slightly less blood than a rock with which to satisfy the judgment or post a bond to stay execution pending appeal, the plaintiffs have moved forward to execution while Cox pursues, though her pro bono counsel, Eugene Volokh, an appeal.
It’s worth noting that Eugene’s involvement reflects a true dedication to the underlying First Amendment cause, rather than any particular love of the individual. That said, I can’t help but wonder whether there are any regrets, given that his client is the one no experienced lawyer would allow near his office, and the significance of the free speech issues at stake are not, upon reflection, nearly as important as they first appeared. Indeed, the issues are fact-bound, and the facts are awfully ugly.
Yet, this bad case begets another bad issue, as Eugene explains :
Obsidian Finance and Kevin Padrick sue Crystal Cox. They win at trial, and get a large judgment.
Cox appeals on First Amendment grounds (I’m representing her on appeal). Cox has very little money, so she can’t put up a so-called “supersedeas bond” (a bond for the full amount of the judgment) that is required to keep plaintiffs from seizing her assets to execute the judgment. But that doesn’t block her appeal, since under federal law one generally doesn’t need to put up a bond in the amount of the judgment to appeal — one only needs the bond to stop execution on the judgment pending appeal.
But plaintiffs have a different view: They go to Oregon court, register the judgment, get a writ of execution, and ask the sheriff to seize and sell to the highest bidder Cox’s “intangible personal property,” in the form of … Cox’s right to appeal.
The reaction is a motion before the district court for a stay of execution. The motion has been fully briefed, opposed and replied, with Eugene taking the early lead on heft. The core question is whether a party can execute a judgment against the intangible right to appeal, and thus prevent the appeal of the judgment. On its surface, it just seems utterly wrong.
While the papers go on at length wrangling over procedural issues, where the plaintiff’s fairly straightforward contentions, particularly about Younger abstention over the state court execution of a judgment, appear far more persuasive than Eugene’s efforts to get the district court to stick its nose in. But the core issue, whether the right to appeal can be sold out from under a litigant who can’t afford to post bond, is one with far larger implications. And of course, it has to arise in this case, with this defendant.
Eugene finally gets around to mentioning this problem at page 10 of his memorandum in support of the motion:
Yet if plaintiffs’ end run around the Rules were accepted, then poor defendants in civil cases would routinely lose their rights to appeal. Defendants would not be able to afford to get a bond for the amount of the judgment. Plaintiffs would then be able to get sheriffs to levy on the defendants’ right to pursue the appeal. Plaintiffs would buy the right cheaply at the sheriff’s sale, since nobody would be competing with them at the auction. And they would then use the newly acquired right to drop the appeal against them.
The appeal bond requirement that the Federal Rules rejected would thus come in through the back door. Poor defendants would be unable to effectively challenge the judgments against them. And the development of the law would be distorted because appellate courts would be unable to hear the defendants’ appeals. This is not consistent with the system that the Rules strive to create.
Well, yeah. That’s a problem, and that’s exactly what would happen. It would happen to Crystal Cox. It would happen to any other poor litigant, unable to bond a stay of execution.
While some would argue that the losing defendant doesn’t deserve the right to appeal, as it will burden the prevailing plaintiff with the cost of appeal, and should the defendant lose on appeal, the plaintiff will have no chance of recovering a bill of costs since the defendant can’t cover the initial judgment, that’s not how the system is supposed to work.
An appeal as of right is an integral part of the system. Courts aren’t perfect, and even the poor are entitled to review. At least that’s the way I always thought it was supposed to work.
David Aman, representing Obsidian in opposition to the motion, has come up with some caselaw supporting the proposition that the right to appeal is one of the intangible rights against which the plaintiff is entitled to execute judgment. He contends that if Cox wants to appeal, all she need do is bond her judgment, thus assuring plaintiff of recovery if she loses on appeal. If she can’t or won’t, then the plaintiff is entitled to do whatever he can to collect, and that includes “choses in action,” including her appeal.
The underlying issue is disturbing, in that depriving a poor person of their right to appeal by what Eugene properly characterizes as an “end run” has implications for all poor defendants. It is not, as Eugene argues, harmless to the opposition to stay execution despite the absence of a bond, as there are real costs associated with defending against an appeal. On the other hand, that’s part of the scheme of civil litigation, and the burden isn’t so great as to justify depriving poor litigants of their right to appeal.
The one aspect that remains unclear is whether Eugene brought his motion in the right court for the right relief. It seems that he might have been better off moving for relief before the state court, under whose jurisdiction execution would happen, and thus eliminate the Younger abstention issue. The other choice was the 9th Circuit, who could have ruled that they would consider the appeal regardless of the sale of Cox’s right to appeal as a matter of their own supervisory authority.
But why must it happen that this issue arises in a case with such an unsavory hero? Why does it always seem to happen that way? Nonetheless, even the most unsympathetic litigant is entitled to the same rights as the beloved one, and even the deservedly poor are entitled to the legal protections afforded the fabulously wealthy. And so, we’re stuck with another Crystal Cox issue, and forced to root for the dark side.
Jacoby and Meyers was a ground-breaking concept when it first burst onto the legal scene in 1972. Forget the mahogany paneled rooms and rich blood-red leather chairs. You sat on a milk crate and they charged what “ordinary” people could afford to pay for a lawyer. It was a good idea. Shame it failed.
But that doesn’t mean that the good folks at J&M don’t want to be on the cutting edge again, this time bringing non-lawyer money into their storefronts. Via Bloomberg :
Jacoby & Meyers LLP, the discount law firm with storefront offices across the U.S., won an appeals court ruling reinstating its legal attack on a New York statute barring nonlawyers from owning an interest in law firms.
Jacoby & Meyers, which wants capital to expand into communities with working-class and immigrant families, has asked federal courts in New Jersey and Connecticut as well as New York to throw out such laws. A judge last year dismissed the New York case citing jurisdictional grounds.
The U.S. Court of Appeals in New York today issued an order modifying a November ruling that reinstated the suit and returned it to the trial court.
Despite overly simplistic assumptions that anyone who doesn’t embrace every new money-making scheme for lawyers is either a Luddite or hater, there are some ideas worthy of pursuit and some not. For example, I like the idea of lawyers having a kiosk in Wal-Mart, much as doctors have doc-in-a-box acute care facilities. Bring the law to the people, eliminating unnecessary expense so that lawyers can earn a living while clients are provided quality counsel at a reduced cost? Great idea.
What about non-lawyers owning law firms?
They want a cash infusion to expand, and want to go to the capital markets for the money rather than borrow it. Maybe no one will lend it to them. Maybe they would prefer not to pay back the debt, but use profit participation. Fair enough.
The Brits already allow it, as do the Aussies. Of course, they do plenty of things differently than we do.
On the other hand, the concern is that non-lawyer investors will compel choices that are inconsistent with the ethical responsibilities of lawyers. The law doesn’t fit well with typical cost-benefit analyses, often requiring us to do things to serve our clients which are contrary to our own financial self-interest. It’s not that we don’t like profit. We like profit. We just don’t put profit ahead of obligations.
The Second Circuit decision remitting the case to Judge Lewis Kaplan clearly anticipates a ruling on the merits, which is good. It’s time to put this issue to rest, so we can either move forward with investment or put the dreams of law firm IPOs to rest. The perpetual schemes of futurists for a reimagined profession are confusing a great many new lawyers as to where they should focus their energies and how they should plan their futures. At some point, the cries for a paradigm shift have to either happen or stop.
Ironically, Jacoby & Meyers was at the forefront of lawyer advertising all those years ago. Most young lawyers can’t imagine a world without lawyer advertising, whether the cheesy television commercials or their websites promoting how they’re aggressive, caring and offer free consultations.
Here’s where I say something that is going to make you call me mean names. Lawyer advertising has been the worst thing to happen to the profession.
Yes, I’m well aware of all the arguments, First Amendment and level the playing field, and all that stuff, in favor. What I’m also aware of is that it started the race to the bottom, with unintended consequences wherever one turns.
Has it worked for you? Has it made legal representation more available and affordable to the public? Has it made lawyers wealthier and happier? Well, maybe the few who jumped in early, but it came at the expense of others and bore no relation to the value of legal services or the quality of representation.
But who cares about such crap? It’s all about making money, right, and if it makes you money, then it has to be good. It just has to.
There is a segment of the profession who argues that law is a business, and I suspect they are right as far as they are concerned. For others, there is a business component to the practice of law, certainly, but it is not a business in the same way as non-professions. That the perception has changed isn’t a reflection of the future, but a misperception of the present. They see law as a business because they can’t comprehend what it means for law to be a profession. They see ethics and competence as the archaic weapons of old men to keep them down, to make them poor, to maintain their hegemony over the machine that cranks out money.
To the extent lawyers have adopted this belief, the step of non-lawyer ownership is hardly a big one. If anything, it makes perfect sense and is entirely consistent with law being no different than selling laundry detergent. And if that’s all the legal profession is to you, then there is no real impediment to opening the door to anyone who wants to skim a few points off the top of the law.
And the next step is to rid society of pesky lawyers altogether, and let anyone open a law shop and sell their wares. Would you like a mocha frappucino with your complaint?
So Jacoby & Meyers, and all those who are certain law is just another business, will finally get the opportunity to pursue wealth. Hopefully, this will present an opportunity to stop the race to the bottom.
District of Colorado Senior Judge John Kane offers his views on Law Schools (originally posted at Paul Campos’ Inside the Law School Scam).
ON THE FAILURES OF LEGAL EDUCATION
It is no secret that many lawyers are dissatisfied with their profession. Of the million or so lawyers in the United States (more per capita by far than any other country) over half are said to be unhappy and giving serious consideration to leaving the practice of law. A burgeoning industry of coaching, counseling, and career change assistance has developed to guide such people to new opportunities. Facing declining applicant pools, law schools advertise that a legal education is worth its steep price irrespective of whether the graduate intends to practice law or engage in some other pursuit. But a number of recent law graduates have sued their schools, alleging that the law schools misrepresent post-graduate employment opportunities, that few jobs as lawyers are available, and those jobs that are available pay substantially less than law schools have represented. Indeed many law graduates are saddled with large student loan debts that place them in indentured servitude for years. The average debt for recent graduates exceeds $100,000.00.
Law professors are among the highest paid academics, and enjoy the newest buildings on ever-enlarging campuses. Law schools employ many part-time adjuncts who teach large enrollment classes for meager fees, generating even more profits for the law school budget, and less teaching time for the tenured faculty. Overhead costs for laboratories, equipment and floor space are nearly non-existent. Yet the law schools are engaged in fierce competition for increased enrollment and that most elusive of goals: academic prestige. The annual ranking of law schools by U.S. News and World Report becomes the coveted benchmark. Because law schools are profit centers for the universities, there is little external oversight of their operations. The litany of ensuing dubious practices includes puffing up of enrollees’ Law School Aptitude test scores and undergraduate GPAs, misleading and rigged graduate placement reports, and some not-so-subtle innovations such as paying stipends to recent graduates to work for free in courts, prosecutors’ offices and private firms during the sampling period.
A few brave and talented legal academics such as Paul Campos of the University of Colorado and Brian Tamanaha of Washington University St. Louis have risked becoming pariahs among their colleagues by exposing the failures and shortcomings of the law school institution. Accused of failing to prepare graduates to enter the profession, the law schools attempt to address the issues through economic arguments. Their students, they claim, are “practice ready,” meaning law firms can shift their most basic investment in young associates from the corporate clients who are no longer willing to foot the bill back to the very institutions responsible for creating the glutted market. In turn, graduates are forced to work long hours with less supervision on stultifying tasks at pay levels making service of their acquired debt nearly impossible, all for the promise of a partnership that has become a vanishing hope.
Recent accounts, such as Running From The Law by Deborah Arron assert that more than half of young lawyers leave the law knowing they have been lied to. They have sought the law as a means of earning a comfortable and secure living. They have been taught that academic standing in class increases one’s job prospects. The law schools have abandoned teaching that the most fundamental aspect of the profession is one of service. When the primary purpose of service is ignored, the practice of law is condemned to drudgery, to the pure hell of endless hours of performing rote work for a fee.
Plato knew that people learn by example, and from demonstrations illustrating the lessons to be learned. It is all well and good for law schools to offer courses in the substantive subjects of the law, but more fundamental to acquiring knowledge and forming character is the conduct of teachers and the institution they attend. (Indeed the word “attend” literally means “to pay attention to.”) Just as bad parenting produces bad children who grow up to become bad parents, what the student sees and feels counts more than routines of “practice ready” performance.
No wonder law students are learning to be materialistic and cynical, to consider the profession of law as gamesmanship, and merely a way to earn more money than the next person. When law schools misrepresent LSAT scores and job opportunities, offer third year courses with little or no pedagogic purpose or value, engage in grade inflation and charge ever-increasing tuition and fees, students learn that fraud, dissimulation and ethical corner-cutting are acceptable standards of behavior. When they learn of the gross separation in salaries and status and the relatively soft work schedules of the doctrinal faculty compared with clinical instructors with whom they have much closer personal contact, when they learn that adjunct faculty are paid pittances and used and abused as profit centers, when they see that school administrators outnumber scholars and that tenure is becoming obsolete, how can they not be expected to accept that this status quo is the criterion for the professional life?
Law schools claim that pragmatism is the only way to address fierce competition. To what end? Making graduates “practice ready” is an illusion, which is not only impossible to achieve, but in fact detrimental to the life and career of the student. The goal should be to produce young lawyers who, as Thomas Wolfe described writers attending workshops, are “ready to commence to begin to start” to learn, through a lifetime of practice, the art and craft of guiding others to safe passage through the extremities of experience, to achieve socially appropriate goals, and to insist on leading ethical lives. It is not to produce yet another cadre of cynical shysters grasping for more fees or a legion of those who flee the profession in despair.
As Judge Kane’s comments make clear, the problems facing law students and new lawyers aren’t limited to those who are suffering the consequences of unemployment and debt. The word is out. The judiciary is aware of what’s happening in the real world. One would think this is a good thing, recognition and validation of some of the concerns at the core of a new lawyer’s world.
Not so fast. As much as the issues recognized by Judge Kane may reflect some of the concerns, his failure to embrace their “needs” and elevate their money-demands above all else produced some curious reactions :
Well, thankee-you your honor!
You managed to sum up none of our real life problems, nor provide any solutions.
In case we’re just too far below your prestigious federal perch for you to see clearly, here’s the basics. First, there are twice as many law grads as there are jobs. Second, law school is twice as expensive as it should be.
Until those two problems are resolved, you can spout off all of your Ivy League, pre-Boomer idealogy as you like. Service? Professionalism? Socially appropriate goals? Ethical lives? What are you, the ABA advertising committee?
My god, you have managed to prove, in those few short paragraphs, that the federal bench is probably the only place in the entire legal profession that is more out of touch with the needs of legal education than law professors themselves. With your Ivy League, prestigious, upper-class, well-connected backgrounds, your attendance at law school when law school was cheap and lawyers were comparatively rare, your lack of student loans, your lack of real struggle, and your utter impracticality. Don’t try to pretend that most things in your professional life weren’t handed to you on a silver platter. There are few rags-to-riches federal judges.
But I do appreciate the lesson in the origins of the word “attend”. That’s worth its weight in gold! All our problems are solved! You be makin’ it rain, bro!
Aside from the usual facile projections that youngun’s use to trivialize ideas that fail to meet all of their demands, always a flawed riposte and yet employed all the time (is this what they’re taught in law school these days?), the core response is that as bad as law schools might be, the only thing new lawyers want is to make money.
Screw serving clients. Screw integrity. They’re hungry and couldn’t give a damn. They want money, and if you don’t have a solution that puts money in their pockets right now, screw you too.
Judge Kane castigates the law school establishment for “teaching by example,” thus producing new lawyers who are “materialistic and cynical.” Apparently, it’s the one thing they’ve taught well. There is much to correct and change in our approach to legal education, but there is also much to correct and change in the attitudes and understanding of law students and young lawyers.
The law does not exist so you can make a decent living and have a comfortable life. The law exists to serve clients. A decent living is a collateral consequence of a well-conceived profession, not its purpose. As much as legal academia is a fiasco, so too are the misguided, entitled attitudes of some of the new lawyers who are certain they’ve been cheated out of their due.
When a federal judge goes out on a limb to support reform, you don’t spit at him for not rubbing your tummy exactly the way you want him too. Grow up.
In Dauphin County, Pennsylvania, Judge Lawrence F. Clark Jr. made a ruling that shakes the foundation of the magic black box that has convicted more drivers of drunkenness than any other. Via TheNewspaper.com , Judge Clark found in Pennsylvania v. Schildt :
The unvarnished facts of this case ultimately establish that the array of breath testing devices presently utilized in this commonwealth, and in particular the Intoxilyzer 5000EN device manufactured by CMI, Inc., as those devices are presently field calibrated and utilized in this commonwealth, are not capable of providing a legally acceptable Blood Alcohol Content (BAC) reading, which is derived from a defendant’s breath, outside of the limited linear dynamic range of 0.05 percent to 0.15 percent,
As a result of the evidence produced at the hearing, it is now extremely questionable as to whether or not any DUI prosecution which utilizes a reading from an Intoxilyzer 5000EN breath testing device could presently withstand scrutiny based upon the startling testimony of the commonwealth’s own witness, Mr. Faulkner, at the hearing,
Breaking away from the magic black box myth is a huge step forward in the elevation of forensic science to empirical proof, rather than religious adherence. But as victories go, it may not be one that makes things a lot better for people.
Blowing into a magic black box may not be all its cracked up to be, but on the intrusiveness scale, it beats the alternatives , argued before the Supreme Court yesterday in Missouri v. McNeely, which SCOTUSBlog’s Lyle Dennison wrote provided about as clear an indication that the court is heading toward a compromise on the use of drunk driving blood draws as one can get.
Most of the hour-long argument was spent in imagining the details of such a compromise outcome: start with the premise that getting a warrant is the preferred approach, but then define a set of “exigent circumstances” that will excuse the inability to get one within a fairly brief time — perhaps no more than a half-hour. There would be no authorization, it appeared, for warrantless blood samples, across the board, on the premise that alcohol is always going to be disappearing fairly rapidly from the human bloodstream.
Let’s play out the scenario argued before the Court. Assuming there is no blanket authority to draw blood rather than get a warrant to do so, the police officer pulls a driver over and hits number 7 on his speed dial.
Cop: Judge, I need a warrant to draw blood. Judge: What do you have, Joe? Cop: Swerving all over the place, Stinks of gin. Bloodshot eyes and slurred speech. The usual. Judge: Done. Hope you got a clean needle, Joe. Heheheh. (chuckle optional)
The end result is that the driver gets a needle in his arm. Or the other side of the compromise.
Cop: So I called Judge Smith a half hour ago, and haven’t heard back. It’s needle time.
While the judge could, theoretically, refuse to authorize the warrant for the blood draw, and end the roadside nightmare, bear in mind that the only information she receives is what the cop provides. There is no one to inform the judge that the driver is a diabetic who hasn’t touched a drop of booze, or had one shot on the way out of the party and isn’t impaired at all. Or even that the cop is full of it, and is miffed that the driver was disrespectful and the cop will use the needle to teach the driver manners.
This is what the argument was really all about. And if the blood draw fails to show that the driver was drunk, then he’s sent on his way and no one ever hears about it again. No, there will be no civil rights suit, because a judge authorized the warrant. No, there will be no suit because the cop lied, since there is no way to prove that happened. It’s either a needle and prosecution or a needle and a pass.
So does no one escapes the needle? Not exactly, as there is always the tube. If the Supremes thought the needle was intrusive, they probably will think the same of the tube. And demand a warrant as well, unless it isn’t forthcoming fast enough, in which case they won’t.
At Volokh Conspiracy , Orin Kerr also writes about oral argument in McNeely, which I assume means he was present even though it isn’t clear. He raises another possibility, even more disturbing.
Several Justices caught on to one of the reasons why it might not matter much: The warrant protection doesn’t mean very much here because the facts of DUI cases and blood draws are very standardized. Requiring a warrant may amount to a formality. Along the same lines, there’s an interesting question as to whether the inevitable discovery exception would apply were a court to require a warrant that an agent does not obtain. If the court requires a warrant and an agent conducts a warrantless search anyway, can the agent argue that the blood recovered should be admitted anyway under the inevitable discovery exception to the exclusionary rule because he would have successfully obtained a warrant if he had not conducted the warrantless search?
Since every cop gets a blood draw warrant for the asking anyway, what’s the point of the charade of pretending to honor the Fourth Amendment. It just means a judge doesn’t get a good night’s sleep, since the cop is going to get his evidence one way or another.
Boiling all of this down to its basics, there are a few elements that no longer appear in dispute. The foremost concern of the courts is that police and prosecutors are not denied evidence of drunk driving, so that no alleged drunk driver escapes conviction. The Court may not be thrilled at the prospect of warrantless blood draws, but as with convicting a few innocent folks to make sure we get all the guilty ones, it’s a necessary evil that there will be some collateral damage in order to win the war against drunk driving.
And it’s just a baby step from a needle in the arm to a tube in the genitals. Given the options, it makes the magic black box look much better than it used to, even if it is scientific nonsense.
There will be no one inducted into the Baseball Hall of Fame this year. It’s not because there are no baseball players whose accomplishments on the field of dreams aren’t adequate for such recognition. There most certainly are. But protesting with their votes, the baseball writers of America have chosen not to vote for these players because they’ve been tainted by steroids.
In the most resounding referendum yet on the legacy of steroids in baseball, voters for the Hall of Fame emphatically rejected the candidacies of Barry Bonds and Roger Clemens in balloting results announced on Wednesday.
In their first year on the ballot, Bonds and Clemens, perhaps the most decorated hitter and pitcher in the game’s history, fell far short of receiving the necessary 75 percent of votes from baseball writers. Bonds, the career home runs leader, received only 36.2 percent, while Clemens, who won a record seven Cy Young Awards, did slightly better, with 37.6.
And Sammy Sosa too, who was reported to have failed a drug test in 2003.
For a sport whose links to performance-enhancing drugs have forced it to endure Congressional hearings, public apologies from players, tell-all books and federal trials, Wednesday offered a profound moment. Writers decreed that two of baseball’s greatest players would not be officially recognized with the game’s highest honor, at least for now and perhaps forever.
One can hardly fault the baseball writers for taking the principled stand of choosing not to endorse careers founded upon performance enhancing drugs. As Sports Illustrated writer Tom Verducci said, ““My vote is an endorsement of a career, not part of it, and how it was achieved. Voting for a known steroid user is endorsing steroid use.” Fair enough.
But what makes someone a “known steroid user”? Did Verducci see Bonds shoot up with his own eyes? Plenty of people say steroid use was rampant. Individual players deny it.
“To penalize players exonerated in legal proceedings — and others never even implicated — is simply unfair,” said the statement from Michael Weiner, the union’s executive director. “The Hall of Fame is supposed to be for the best players to have ever played the game. Several such players were denied access to the Hall today.”
The problem is that they were convicted in the court of public opinion, from which there is no appeal. That they were exonerated in legal proceedings doesn’t mean it didn’t happen. That they were convicted in the minds of people who only watched from a distance doesn’t mean it did.
Granted, this isn’t about whether a person goes to prison, but whether an honor is bestowed upon him. It doesn’t implicate the Constitution, and no one is owed induction into the Hall of Fame. The baseball writers can vote for, or withhold their vote, a player with a good reason or no reason at all. They are allowed to be as arbitrary in voting as they are in their writing.
The message is about the taint of accusation that can never be cleansed. Bonds and Clemens are not guilty in the eyes of the law, but they will never be innocent in the eyes of the public. There will be no DNA exoneration one day, with a parade to celebrate the clearing of their good names. Those who are certain of their use of steroids believe it to be true, much as people believe in a Supreme Being. But they weren’t there. They don’t know. Still, they believe.
Maybe the baseball writers, having made their point by refusing to vote for two players whose accomplishments would otherwise make them a shoo-in for the Hall of Fame, will relent in their condemnation and forgive them their trespasses, real or believed. Maybe they will decide to be merciful and put an end to their exile from the good graces of the baseball gods. But even if they do, it will be an act of charity, despite the taint.
This isn’t to say that legal proceedings should be embraced by the public, and the baseball writers, as the final word on truth. Legal truth, whether it results in conviction or acquittal, is just as subject to doubt as any other belief. The law is no more magical in discerning truth than anything else.
However, the fact that an accusation, once made, becomes a part of a person’s reality in the eyes of others, even if it’s never proven, should give us pause. The world will not come to an end because Bonds and Clemens never get their seat in Cooperstown. And in the grand scheme of important things, it’s not nearly as consequential as the wrongful execution of Cameron Todd Willingham, though far more people worry about baseball than about killing the innocent.
Barry Bonds and Roger Clemens, and even Slammin’ Sammy Sosa, had incredible careers as baseball players and achieved things that make them worthy of the honor of being inducted into the Hall of Fame. And all three are tainted by allegations of drug use that may keep them from receiving the honor. No one will ever be certain if this is right or wrong, and there is nothing they can do about it now. Even though they’ve never been convicted, they are guilty forever because the accusations were made.
So if one is tried in the court of public opinion, what is the burden of proof? Who distinguishes reliable evidence from hearsay? And if the conviction is against the weight of the evidence, who reverses?
You know what I think happened? I think someone sent [Sarah Pierson] Beaulieu an email like this:
Hello,
I wanted to drop you a quick email regarding your site at theenlivenproject.com and ask whether you would be interested in us making an infographic for you? I’m sure you receive several similar guest post requests each week, so I wanted to quickly point out what I’m proposing and why this would be of value to you: · We’ll provide you with an exclusive infographic created by us. Rather than simply sending you a text based article, we do all of the research and arrange for one of our designers to create an infographic solely for use on your site. This isn’t something that has been or will be published elsewhere.
· Some examples of infographics that we have recently designed and placed include…
Beaulieu bit, and is now scrambling to justify publishing this nonsense.
I don’t blame her. I blame the American educational system, which has created a nation of statistically innumerate consumers of easily digested but false information, including her and everyone who unquestioningly spread this graphic around the internet.
Blawgers get pitches for infographics all the time, the giveback being that they include a link to their source, usually a for-profit website seeking a backlink. This infographic, however, has no such backlink. Instead, it links to the Enliven Project post and notes it was “designed by Paul Pierson.” It’s unclear who this person is, but sharing a name with the Sarah Pierson Beaulieu might suggest a connection between the two.
Regardless, the Enliven Project makes a very big claim for itself:
The Enliven Project is a truth-telling campaign to bring sexual violence out of the closet and convert the most powerful bystanders to new allies.
If your purpose is to be a “truth-telling campaign,” then you really have to make an effort to tell the truth. As the comments to the Enliven post make abundantly clear, this infographic is astounding wrong from essentially every perspective. Even the basic math is wrong, where the made-up number of 2% false accusations is displayed as 2 people out of a thousand in stead of 20. But if they got the math right, it would still be wrong because “truth-telling” people can’t just make stuff up.
So what’s the big deal, you wonder? Isn’t the internet a cesspool of misinformation, a trap for the ignorant and unwary? Of course it is, but that doesn’t alter the ability of a piece of utter nonsense like this infographic from finding its way into the hands of people who are unconcerned about accuracy and will instead use it to promote their cause. This is how misinformation becomes part of the myth of the internet, and ultimately cleansed of its falsity so that it becomes a source of information for the future.
Yes, really. Consider, for example, the statistics provided by Roxanne Beecher, presenting as a member of the animal rights committee of the Westchester Bar Association, in support of an Animal Abuse Registry.
Ms. Beecher stated that Westchester County ranks number 9 out of 62 counties in the state for cases filed for animal abuse and this is why they are asking for animal abuser registry. She said 71% of abused or battered women report that their abuser has hurt or killed animals, 32% of battered women with children report that their children have hurt or killed animals, and 25-48% of battered women report delaying leaving their abuser for fear of their animal being abused.
She said there was a woman (not in Westchester) in a domestic violence shelter who received photos from her mother of her estranged husband cutting off her dogs ears with garden shears and he was threatening to hurt her other animals. This woman left the shelter to go rescue her animals and she has since disappeared.
Ms. Beecher continued by saying 40% of battered women report that they are forced to perform sexual acts with animals, 48% of rapists have committed acts of animal cruelty as adolescents, 30% of child molesters have committed acts of animal abuse, and 15% of active rapists also rape animals.
Pretty damning statistics, but for one problem: I was unable to find any basis for most of the statistics. From what could be found, these were made up of whole cloth. Yet the Westchester County Legislature bought it, and approved the registry. After all, a lawyer from the Westchester County Bar Association is certainly a credible source, right? And I fully expect these numbers to magically become irrefutable fact going forward, even if they are utter nonsense.
And the Enliven Project promotes a “truth-finding campaign.” Truth, truth, truth. Except that it’s not. Not even close. But who would be evil enough to take issue with a cause as dear to the hearts of so many as the elimination of rape? Or the elimination of animal abuse?
And this is how myths begin, and get repeated until eventually they become truth, even though it’s not.
Update: And the infographic is repeated at the Washington Post’s WonkBlog in a post by Dylan Matthews under the title, The saddest graph you’ll see today, who got it from Huffington Post‘s Laura Bassett and was subsequently picked up at Salon:
Update: Rape statistics are notoriously hard to collect, and Amanda Marcotte has a compelling critique of the methods used here, which Enliven describes in more detail here. So while the phenomena described here are real (and Marcotte argues that, if anything, the chart exaggerates the number of false accusations), be aware that the exact numbers are subject to dispute.
According to her bio, “Amanda Marcotte is a journalist, opinion writer, and author of two books on progressive politics.” Apparently, statistics wasn’t one of her strengths. While she’s correct that false rape accusations are a subset of false rape allegations, that by no means translates into exagerating the numbers if the source numbers aren’t accurate in the first place. And this goes from wrong to wronger.
Update 2: Wally Olson at Overlawyered has more on the “wronger,” notably the Marcotte “correction” piece:
P.S. This supposedly corrective piece at Slate is if anything worse than the chart it purports to correct, straining to minimize false accusation as even rarer than portrayed. (It’s worth remembering that its author, Amanda Marcotte, has a bit of a history herself when it comes to credulity on this subject.) Bennett again provides a needed corrective: “Forensic DNA typing laboratories — as numerous commentators have noted — encounter rates of exclusion of suspected attackers in close to 25 percent of cases.”
Which just goes to show, the alternative to wronger can be even more wronger.
