When Sonia Sotomayor noted empathy as a trait in favor of her appointment to the United States Supreme Court, it evoked some concern. Her statement broke from the view espoused by Ruth Bader Ginsburg at her confirmation hearing.

In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O’Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” said Judge Sotomayor, who is now considered to be near the top of President Obama’s list of potential Supreme Court nominees.

Is empathy, “the capacity to experience the feelings of others, and particularly others’ suffering,” a good thing? It would seem to be obvious, but at Room for Debate, Yale’s Paul Bloom argued that it could produce tragic results. Continue reading →

As treason may be committed against the United States the authority of the United States ought to be enabled to punish it: but as new tangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other, the Convention has with great judgment opposed a barrier to this peculiar danger by inserting a Constitutional definition of the crime.

–James Madison, Federalist 43, as reported in the New York Times, January 25, 1861

Whether the policy decision or its execution suit your pleasure, President Obama took action against Russia and, in response, Vladimir Putin did not. Naturally, PEOTUS felt compelled to twit.

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Maybe the most meta-pedagogical post ever. At PrawfsBlawg, Toledo law prof Agnieszka McPeak teaches the other prawfs how to use twitter.

I’ve put together some tips for tweeting, which may be useful for those who are new to Twitter or who don’t tweet much. And for more experienced users, I’ve included info on some of the 2016 changes to Twitter.

Twitter’s most distinctive trait is its 140-character limit for all tweets. This format cuts down on text and allows for a quick view of a lot of content.

But it’s not all fun and games. So Twitter, how does it work? Continue reading →

ACLU lawyer Josh Block was having none of it. Eugene Volokh pondered the question of whether University of Oregon law professor Nancy Shurtz wearing blackface to a party was racist. This is mentioned not because of Eugene’s analysis or outcome, but because he deigned to ask the question.

For this, Block attacked him because Eugene wasn’t black. Since blackface wasn’t something that, from Block’s perspective, a white person would find offensive, Eugene could not “persuasively”* parse the question, arrive at an answer. It wasn’t that he doubted Eugene’s bona fides as a First Amendment scholar, “There are 1A principles at stake but can’t just use examples of speech you don’t personally find offensive.”

The reaction came from Josh Blackman, who has emerged as one of the boldest academics in law these days,

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When Bill Clinton’s staff left their desks for the final time, they’re reputed to have taken the “W”s off the keyboard. Childish, but funny. But childish.

The agency put the cost at $13,000 to $14,000, including $4,850 to replace computer keyboards, many with damaged or missing W keys.

Other “pranks” might sound more like what would be expected in this peaceful transition of power.

Six White House employees told investigators that they had seen graffiti derogatory to Mr. Bush on the wall of a stall in a men’s room. Other White House employees saw a sticker in a filing cabinet that said, ”Jail to the thief,” implying that Mr. Bush had stolen the 2000 election.

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Ars Technica isn’t a website for criminal lawyers, even though there are often posts that will be of interest to criminal lawyers. It’s a tech website. So why then, aside from having shit to throw up on the screen, would they try their best to make their readers stupider?

The basic idea behind the Miranda warning is to provide someone being arrested with information about their constitutional rights against compelled self-incrimination (Fifth Amendment) during a custodial situation and to reassure them of their right to an attorney (Sixth Amendment).

Oh wait. That’s the basic idea? Nice of Cyrus Farivar to explain what he thinks the basic idea is. Because, you know, he knows stuff. No, he’s not a lawyer, but hey, he writes for Ars, so shouldn’t he be explaining law to nerds? What could possibly go wrong? Continue reading →

The word “normalize” has become totes trendy, and so commonly misused, even by the press secretary for Rep. Keith Ellison, who seeks to be the chairman of the Democratic National Committee. Isaiah Breen’s twit, which began “honor Carrie Fisher,” included:

-normalize mental illness and its treatment

As press secretary, Breen is someone who should be a wordsmith, and so its misuse is noteworthy. I took note. So too did nearly 200,000 others who “liked” or “retweeted” his misuse of the word.

In response, people “explained” to me what he meant. Their explanations differed, but that’s not the point. If he meant to say “de-stigmatize” mental illness, then that’s what he should have said. One response I received was, “Pretty sure you know what he meant and you’re kinda just being a dick.” Continue reading →

To listen to the horrifying anecdotes of the victims, whether of “harassment,” “bullying,” even revenge porn, one can appreciate that there are bad things happening that are causing people pain. And yet, there are harsh and uncaring people who keep doing their utmost to prevent solutions from happening. Why would anyone, me for instance, be so mean and hateful?

Fortunately, Europe is way ahead of us in its protection of people’s privacy from other people, from hurtful speech and expression. It provides insight into what will happen if we adopt their ways. It’s not that the anecdotes aren’t true, but that they only tell one side of a story. It’s the other side that advocates deny and sycophants ignore that will come to bite us in the butt.

You might think it’s cute to snap a photo of your toddler running around in a playground or having a temper tantrum, and then posting it on social media. But did you ever think it might be a mistake, or even illegal?

The French government earlier this year warned parents to stop posting images of their children on social media networks. Continue reading →

When I first met him before arraignment, there it was, a perfect Glock-shaped contusion of many colors on the left side of his face. I pointed it out to the magistrate, who duly shrugged before adjourning the case for a detention hearing. The AUSA explained that he fell hard and hit the pavement, and it was purely coincidental that the bruise was in the exact shape of a Glock. Go figure?

And right after this unfortunate fall, which had nothing to do with the agents, he confessed. At the suppression hearing, the emergency room physician’s assistant testified that she could not state to a reasonable degree of medical certainty that the bruise that bore the exact shape of a Glock was caused by a Glock. The judge shrugged. Denied.

These were the protectors and defenders of our constitutional rights.

In quiet little corners of the country, local sheriffs and police chiefs run their own little fiefdoms, with the cooperation, if not endorsement, of the judiciary. It’s not a big secret. Local defense lawyers and public defenders know all about it, and fight it, and occasionally scream about it into the void. Continue reading →

A joke? That’s how Robby Soave took it.

On the 24th day of December in the year of our Lord, two-thousand and sixteen, a Drexel University professor tweeted, “All I want for Christmas is white genocide.”

It sounds like the professor, George Ciccariello-Maher, was probably joking. Indeed, he claims that he was. And Ciccariello-Maher has made similar remarks—with varying levels of seriousness—in the past.

The Drexel prof followed up his twit with more of the same.

In a follow-up tweet, he added, “To clarify: when the whites were massacred during the Haitian revolution, that was a very good thing indeed.”

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