He used to be Harvard’s head honcho, which is a pretty cool thing to be if you’re of that ilk. He was also treasury secretary and director of the White House National Economic Council.  So Larry Summers, even though he only holds an endowed professorship these days, is probably pulling down a decent paycheck.

I bet he pays for stuff with a credit card, because he’s too smart to use a debit card. But what Larry Summers doesn’t do is use big bills.

Harvard’s Mossavar Rahmani Center for Business and Government, which I am privileged to direct, has just issued an important paper by senior fellow Peter Sands and a group of student collaborators. The paper makes a compelling case for stopping the issuance of high denomination notes like the 500 euro note and $100 bill or even withdrawing them from circulation.

Oh cool. Stuff Harvard thinks. That’s certainly important. Continue reading →

The ridicule was all over the twitters, as word spread that a judge ordered Apple to unlock an encrypted iPhone. It was particularly ironic, given that the people mocking the order had it wrong.  At Techdirt, Mike Masnick explains.

So… have you heard the story about how a magistrate judge in California has ordered Apple to help the FBI disable encryption on the iPhone of one of the San Bernardino shooters? You may have because it’s showing up everywhere. Here’s NBC News reporting on it:

A federal judge on Tuesday ordered Apple to give investigators access to encrypted data on the iPhone used by one of the San Bernardino shooters, assistance the computer giant “declined to provide voluntarily,” according to court papers.

Many people are now mocking this ruling, pointing out that with end-to-end encryption it’s actually impossible for Apple to do very much to help the FBI, which makes the order seem ridiculous. But that’s because much of the reporting on this story appears to be wrong.

So if it’s wrong, what’s right? Continue reading →

It has to be hard these days, finding a middle ground between things you actually know and the lies you tell others. After all, if you told them the truth, it could totally kill your biz mojo, and nobody wants their biz mojo totally killed.  So I felt badly for my pal, Kevin O’Keefe, who has a deep interest in getting and keeping lawyers engaged in social media. Although, Kevin’s bread is buttered by blogs, and his pitch was about twitter.

Twitter is under siege with people saying its days are numbered. Users are threatening to leave for any of number reasons – most of them baseless. Financial analysts and reporters, looking at Twitter’s declining stock price, see a dying company.

I couldn’t disagree more. Twitter is what it is, one of the more powerful, if not the most powerful, news and information reporting utilities in the world. I doubt that Reuters, UPI or the AP had near the influence and importance in their first decade.

This might have been an opportune moment to discuss the actual problems being raised. Instead, Kevin dismissed them as “baseless,” the only issue being twitter’s stock price.  And that issue, of course, is inextricably woven into the problem that twitter, despite public participation, has no sound business plan to monetize all those eyeballs. Continue reading →

It’s past surprising that college students, and their adult enablers, are analogized to 1984’s Ministry of Truth, but when the trend extends into cries that appellate court opinions should be sanitized to omit offensive language, it’s noteworthy.  That it happened in Scotland may make some feel less concerned, but that it happened at all suggests that the United States could well be next.

From the Herald Scotland:

Calls have been made to remove jokes about paedophilia and the murder of a child from a ruling on the judiciary’s official website after they were deemed too offensive for the public

The Scottish Court Service has been urged to delete details of a hearing which centred on whether an accused, Liam Rodgerson, should have been placed on the sex offenders register for posting distasteful jokes on Facebook.

How distasteful? Continue reading →

When the Seventh Circuit held it constitutional to impose a $30 booking fee on every person arrested, guilty or innocent, because it was “rational” to collect the cost of processing an arrest from the person who chose to be arrested, only one judge refused to get the idea that innocent people are arrested too, and it was facially absurd to make them pay for the privilege.

This should be a simple case. The village’s “booking fee” ordinance is unconstitutional on its face. It takes property from all arrestees—the guilty and the innocent alike—without due process of law. The deprivation occurs at the time of arrest, immediately and finally. It occurs based on only the say-so and perhaps even the whim of one arresting officer. By no stretch of the imagination can that be due process of law.

That, of course, was from Judge David Hamilton’s dissent.  But lest anyone suspect that there is something in the water in Wisconsin, as opposed to, say, Flint, Michigan, the same insanity appears to infect Texas as well. Continue reading →

One duty of the president is to nominate individuals to the federal judiciary, including the Supreme Court.  The appointment clause in the Constitution, Article II, §2, cl. 2, makes the process remarkably clear unfortunately opaque.

[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

That the president “shall” nominate is pretty clear. That it shall be “by and with the Advice and Consent of the Senate” is where things get cloudy. There is a dearth of law* on the issue, and general views seem to be governed more by political expediency than anything else.  The arguments of the teams are entirely unprincipled and designed to screw the other team. Each team’s cheering section is trying to out-cheer the other. Continue reading →

The number for 2015 was 149. If that was out of 150, it would be a hugely significant number. But it’s out of tens of thousands, hundreds of thousands. Suddenly, 149 doesn’t seem like that big a deal.

In 2015, 149 people convicted of crimes large and small — from capital murder to burglary — were exonerated. It is the highest yearly total since this grim form of record-keeping began, in 1989.

In that time, there have been at least 1,733 exonerations across the country, and the pace keeps picking up. On average, about three convicted people are now exonerated of their crimes every week, according to the annual report of the National Registry of Exonerations. The registry defines an exoneration as a case in which someone convicted of a crime is cleared of all charges based on new evidence of innocence.

If there was someone with any gravitas asserting that our legal system was perfect, this would be significant.  But no one does. Even the apologist platitude, “it may not be perfect, but it’s the best system there is,” incorporates the reality that mistakes will be made.  So out of hundreds of thousands of convictions, there were 149 mistakes? Most people would not only not lose sleep over it, but feel pretty damned good about our success rate of convicting only the guilty. Continue reading →

My old pal Mike from the train used to tell me stories of Nino Scalia, cadet captain, from high school where he was a year behind. It was a Catholic military school, and Mike was Irish. The Irish kids and the Italian kids were always trying to show each other who was “better.” Kids are like that. They hold their identities dear. Too dear.

Some of the stories were funny. Some were about how Nino Scalia was a very tough kid, unyielding in his power over other cadets. All were about a person, a human being. It’s hard to hate a person when they become real rather than a cartoon character, a one-dimensional cutout that can be characterized simply as good or evil. I had the benefit of hearing Mike’s stories. Nino Scalia became a person to me, even though I never met him nor had much chance of hanging out with him to find out for myself.

Justice Scalia wrote decisions that I consider horrible. He also wrote opinions like Crawford, Johnson, Jones, Kyllo, and his dissent in County of Riverside. Ronald Collins runs down his First Amendment opinions. Jonathan Adler sums it up:

Justice Scalia would not invent or discover unwritten rights in the constitution, but he would vote to strictly enforce those that are enumerated, such as the requirement that defendants may confront the witnesses against them or the defendant’s right to a jury trial.

Continue reading →

Nine years ago today, the first post appeared at SJ.  As of today, there have been 7,641 posts (including this one) here. That’s a lot of posts. In internet time, nine years seems like forever.

I never kept count of the number of people I’ve angered, disappointed, infuriated and outraged over the years. On the other hand, some of you have enjoyed SJ and found it somewhat useful.

Either way, I’m still at it. At least for now.

What? You didn’t think it was going to be Revolution 9, did you? That song sucks.

Some of the screams of online outrage are ridiculously adorable. Some are batshit crazy. Some just keep screaming and screaming, supported by the popcorn lobby. Some become legends.

Sit down, Mike Masnick. I have something to tell you and it’s going to make you sad.  The cries of defamation from Australia by Milorad “Michael” Trkulja fail to rise to any meaningful level of hilarity. They’re banal, boring and silly. We’ve seen so much better, so much funnier, that Trkulja’s complaints don’t make the cut.

But that’s not the end of it. Oh, no. Not by a long shot. Because it’s not just about pathetic Milorad Trkulja, but the Aussie solicitor who took up his misbegotten cause, Stuart Gibson. What Trkulja failed to offer, Gibson provides. Funny how that happens.

Continue reading →