I was spurred to write a post this morning by two op-eds in the New York Times, one by Roxane Gay and the other by Michelle Goldberg. After doing so, I decided not to post it. The crux of their world is misery, everything is horrible and they want everyone to wallow in misery just like them. In response, I wrote what I would call a “Pollyanna Post,” that the world is filled with joy, love and happiness.

After claiming that students turn to her for assurance that everything will be okay, a claim I find utterly full of shit since who would ever turn to someone as utterly miserable as Gay for anything, Gay writes:

I don’t traffic in hope. Realism is more my ministry than is unbridled optimism.

Continue reading →

There’s a bit of a trick lurking beneath the surface that you might miss if you’re unfamiliar with how such things happen when someone, say Ava DuVernay, produces a Netflix show about a highly, and rightly, volatile case like the Central Park Five.

In an interview with The Daily Beast, Ms. DuVernay said she reached out to Ms. Fairstein before she wrote the script. She said she asked if they could have a conversation so Ms. DuVernay would have Ms. Fairstein’s perspective in her head. According to Ms. DuVernay, Ms. Fairstein said she would sit down only if certain conditions were met, including approval over the script. Ms. DuVernay said no, and the conversation didn’t happen.

For someone as media savvy as Linda Fairstein to ask for script approval sounds ridiculous. There was no way she would get it, though there is good cause for concern given that the script for the new Netflix four-part series “When They See Us” was not only going to be a “dramatization,” but one that would certainly place the blame on Fairstein, who has gone from law enforcement hero as chief of Sex Crimes in the Manhattan DA’s office for 25 years to adored mystery writer to . . . the racist primarily responsible for convicting five young black men against whom there were no evidence save their botched false confessions. Continue reading →

The word “civility” is a zombie, returning to life after being brutally murdered over and over. Most people, judges in particular, use it incorrectly, in lieu of some vague expectation that people will address each other kindly, gently and with respectful appreciation of each other’s opinion, disagreement notwithstanding. The definition of “civility” is much simpler: politeness. It means using the formal norms of polite society in discourse and behavior.

The problem is that civility is used as a dodge. Remember UNC prawf Bernie Burk’s polemic against the group Law School Transparency in 2013 because, he cried, of their “toxic tone“? Only moderated rhetoric that meets the listener’s approval for “measured and thoughtful” compels a substantive response. If they’re not sufficiently civil, as per the respondent’s sensibilities, he is relieved of any duty to take the substance seriously and can rely on their incivility as reason enough to reject them.

While the heated and angry rhetoric that pervades online discourse offends many, one might think it has become sufficiently ubiquitous that we’ve gotten past the cries for civility. Sure, it’s nicer, but norms of politeness have broken down on all sides, and more importantly, isn’t it more important to get things right than get things nice? Continue reading →

Some people just don’t get how Twitter works. And some of those people get paid to teach.

Teacher Georgia Clark told Fort Worth school district officials she didn’t realize her comments about illegal immigration were public when she reached out to President Donald Trump on Twitter.

How else would one have a private, personal chat with the President of the United States if not on Twitter?

Clark, an English teacher at Carter-Riverside High School, was placed on administrative leave with pay last week after a series of posts caused a backlash on social media. She urged Trump to pay attention to illegal immigration and specifically called out her campus.

“Mr. President, Fort Worth Independent School District is loaded with illegal students from Mexico,” read one of the posts linked to her account. “Carter-Riverside High School has been taken over by them.”

Continue reading →

No one takes a job as a public defender because they’re in it for the money. Some do it because they believe in the social utility of the job, a critical cog in the grinding wheels of justice. Some for the experience, to get thrown into the deep end of the well and start being a lawyer on Day 1. No one, however, takes the job for the big bucks, and they understand going in that this is going to be a financial struggle.

So why should it come as a surprise that lawyers at the Legal Aid Society moonlight as Uber drivers and bartenders?

Ms. Boms and many of her Legal Aid colleagues are lawyers by day, representing those who most need, but can least afford, legal services. Then, out of financial necessity, they become bartenders, dog walkers or Uber drivers by night. Continue reading →

Back when the practical blawgosphere took Joseph Rakofsky to task, a charge was leveled that he was the victim of “internet mobbing,” the mob consisting of lawyers who piled on to ridicule and abuse him for being worthy of ridicule and abuse. Was that what was happening? Were we, lawyers ripping a kid to shreds, just a mob?

At the time, the accusation seemed ludicrous. His conduct was facially reprehensible on many levels, and the fact that a few dozen blawging lawyers all reached the same conclusion, and thought it proper to condemn him for it, was hardly surprising. No doubt it felt to him like a mob, but then, how else would being universally condemned by others in one’s profession feel?

The question recently arose again on the twitters, since cries of mobbing have become somewhat ubiquitous as tribal condemnation of the hour’s latest word that cannot be uttered or idea that’s definitely hurtful came under scrutiny by a few million of your closest friends. This time, it was broken down into two questions, the first being whether there can be such a thing as a “virtual mob” at all, as opposed to a physical mob. The second is how one distinguishes a mob from a million independently sentient voices all reaching the same conclusion simultaneously. Continue reading →

David Brooks uses numbers to make the point:

The generation gap is even more powerful when it comes to Republicans. To put it bluntly, young adults hate them.

In 2018, voters under 30 supported Democratic House candidates over Republican ones by an astounding 67 percent to 32 percent. A 2018 Pew survey found that 59 percent of millennial voters identify as Democrats or lean Democratic, while only 32 percent identify as Republicans or lean Republican.

The difference is ideological. According to Pew, 57 percent of millennials call themselves consistently liberal or mostly liberal. Only 12 percent call themselves consistently conservative or mostly conservative. This is the most important statistic in American politics right now.

Continue reading →

The editorial board of the New York Post occasionally has a point.

One of the top goals of today’s criminal-justice-reform movement is to undo excesses of the past — heavy-handed laws that required long prison stretches for relatively minor offenses, by robbing judges of the discretion they traditionally had when it came to sentencing. But some reformers are now making exactly the same mistake.

Mind you, the Post wasn’t exactly reluctant to enthusiastically endorse the “heavy-handed laws.” There have been far too many tough-on-crime initiatives piled atop and beside each other over the past 40 years, from the inane “Three Strikes” laws to mandatory minimums, from the excessive sentences for drugs crafted in hysterical reaction to the overdose of Len Bias to the excessive sentences for corporate crime in the aftermath of Enron. Continue reading →

The story of how Houston Texans wide receiver Keith Mumphery was ousted from his job upon an old story being dredged up, and the story itself being a classic example of the failure of due process on multiple levels, was bad. Very bad.

Mumphery graduated in 2014 and was going for his masters as he played for the Houston Texans. Until the Detroit Free Press learned of the matter and asked the Texans how it missed this when drafting Mumphery. He was then unceremoniously cut from the team. It’s #MeToo time.

Mumphery did the best thing he could do, retain Andrew Miltenberg to sue the notorious Michigan State, long-time home of sexual abuser Larry Nasser whose decades of abuse were ignored. The college had to get out from under its reputation of protecting Nasser, and Mumphery was an excellent person to sacrifice. Miltenberg was not going to let that happen. Continue reading →

A legion of lawyers, judges and law professors hate the Sentencing Guidelines. I am not one of them. From the beginning, I thought that the Guidelines made sense because they held out the hope that unwarranted sentencing disparity could be addressed, if not eliminated.

When the poorly reasoned sentencing decisions by the Supreme Court came out that ultimately turned the Sentencing Guidelines into Swiss cheese (based, as they were, on a misreading of history at the time of the Founding[i]), we show ponies (federal judges) were off to the races. Always insanely jealous of our prerogatives, a large number of us began to sentence people as we liked despite what our colleagues down the hall did in similar circumstances.

We now know for certain that what sentence you receive in the same federal court in the same large city often depends upon what judge you draw, and the difference is frequently significant. U.S. Sentencing Commission, Intra-City Differences in Federal Sentencing Practices, Federal District Judges in 30 Cities, 2005 – 2017, p. 7 (2019) (stating simply: “In most cities, the length of a defendant’s sentence increasingly depends on which judge in the courthouse is assigned to his or her case.”)[ii] (“Intra-City Differences”).[iii] Continue reading →