Stalin is infamously alleged to have said that “one death is a tragedy, a million are a statistic.” It’s not that the death of one individual matters more (or less) than the death of others, but that the mind works in ways that allow it to focus on smaller bites of information of interest while bigger bites of greater vagary go unconsidered. All of this made for an opportune cry that the worldwide fascination with the five people who died in the Titanic submersible proves how racist we are.

On one vessel, five people died on a very expensive excursion that was supposed to return them to the lives they knew. On the other, perhaps 500 people died just days earlier on a squalid and perilous voyage, fleeing poverty and violence in search of new lives. Continue reading →

In a curious twist of logic, Josh Blackman recounts when Nino Scalia was asked which of his decisions he was most proud of.

When I was a 2L, I attended an event on Justice Scalia’s book, Making Your Case. During the Q&A session, someone asked Justice Scalia what opinion he was most proud of. Without any hesitation, he said Crawford v. Washington (2004). This landmark decision applied an originalist framework to the Confrontation Clause. Prior to that Crawford, Ohio v. Roberts (1980) imposed a “reliability” standard to determine whether out-of-court testimony could be introduced. But in Crawford, Justice Scalia turned back the clock to the deep historical roots of the right to confrontation.

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If there were any justice a criminal defense lawyer wouldn’t mind being smacked, fairly or not, it’s Sam Alito. As previously noted, the worst words at the start of a Supreme Court opinion are  “JUSTICE ALITO delivered the opinion of the Court.” No words assure that what follows will be bad. And yet, even the dreaded Justice Alito should have the opportunity to defend himself. Whether his argument prevails is another matter, left to the discretion of the reader. So was his Wall Street Journal op-ed designed to pre-empt the coming accusations of ProPublica wrong?

Josh Blackman comes to the defense of Alito’s op-ed.

Why did Justice Alito take this unorthodox step to preempt the scoop? Because ProPublica has proven itself unreliable. The outlet could not be trusted to accurately provide Alito’s rejoinder in context. And Alito’s concerns proved prudent.

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Tim Cushing does an excellent job of saying what needed to be said about the Third Circuit’s decision in Fenico v. Philadelphia.

The First Amendment protects speech, even the horrible stuff. It can’t protect the speaker from being criticized for being abhorrent, despite what many abhorrent people believe. It can, however, in certain cases, protect the speaker from being punished for this speech.

It’s not blanket coverage. The person engaging in the speech generally has to be punished by a government entity for this protection to kick in. A private company can fire someone for their speech without worrying too much about the Constitution. But a state entity needs to be far more careful, even when it’s dealing with its own employees. Continue reading →

To be fair, Hunter Biden’s plea deal, two years probation for failing to timely pay taxes for two years, even though already paid up, was pretty sweet. Even sweeter was the deal of diversion for lying on the form to obtain a handgun that he wasn’t an addict. It was a good deal. A really good deal. But with good counsel, even really good deals happen.

But what about Garland, the attorney general appointed by none other than Hunter Biden’s daddy? The investigation and prosecution of Hunter Biden was under the auspices of the United States Attorney for the District of Delaware. His name is David Weiss. He was appointed not by Biden, but by Trump, in 2018. Biden did not replace him with a new United States Attorney of his own choosing, as he could, because he sought to avoid the appearance of exactly what’s running through the overly fertile minds of conspiracy believers. Continue reading →

Yesterday, Trump gave another confession. He didn’t mean to, I suppose, but he lacks the capacity to tell the difference between something that legally damns him and something that just makes him look foolish and incompetent on the telly. There is an increasingly strong likelihood that Trump will be convicted at trial for his retention of national security papers and obstruction of justice.

In anticipation of this increasingly likely scenario, some have been calling for the pardon of Donald Trump. Continue reading →

No one is arguing that Duane Owen wasn’t a monster who committed horrific crimes. Whether that means that the death penalty is the right punishment is another matter, perhaps best argued based on opposition to the death penalty than that Owen’s crimes were not so horrible that execution wasn’t warranted. As monsters go, Owen’s actions would certainly qualify.

Owen was convicted for the 1984 rape and fatal stabbing of teenager Karen Slattery and for the rape and killing of 38-year-old Georgianna Worden in Palm Beach County.

It should be noted that Owen was convicted in 1984, nearly 40 years ago. Whether it makes any sense to execute anyone for a crime committed 40 years earlier is another good question. Yet these were not the foremost issues that outraged the ACLU, which felt compelled to make a public assertion of the harm suffered by Duane Owen. Continue reading →

In one sense, it’s a meme. But in another, there’s a good deal of truth in the assertion that Mario Puzo’s The Godfather teaches all the life lessons one needs to know. And in light of the new Academy of Motion Picture Arts and Sciences “rules” for diversity, it does so again.

Starting with the March 2024 awards, movies will not be considered for a Best Picture nomination unless they feature a lead or significant supporting character from an “underrepresented racial or ethnic group,” have a main storyline that focuses on an underrepresented group, or at least 30% of the cast comes from two or more underrepresented groups (women, ethnic minorities, LGBTQ or the disabled).

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Ten years ago, maybe even five, no one would have blinked at the bold assertion that there are only two genders. Some now argue to the contrary, and perhaps have made a legitimate argument that there are more than two and that the assertion that there are but two genders either “erases” their existence or, to put it more aggressively, is an act of violence against them. Massachusetts district court Judge Indira Talwani agreed.

The First Amendment has long been understood to protect messages on kids’ T-shirts in school, as long as they weren’t vulgar or likely to cause a disruption. For example, a federal appeals court ruled that a kid had the right to wear a T-shirt saying, “Be Happy, Not Gay.” But that was back in 2008, a less woke time, when judges were not as eager to sacrifice free speech rights at the altar of political correctness. Continue reading →

Every once on a while, the same old argument arises to do away with the bar exam because it’s a poor test of the skills needed to practice law and it reduces the number of lawyers, thereby increasing the cost of representation and leaves many without access to representation. This time, Ilya Somin at VC has latched onto a study that appeared in an ABA Journal article to pursue his belief in deregulation of the legal profession.

An important new study by Washington University (St. Louis) legal scholar Kyle Rozema finds that bar exam requirements massively reduce the number of lawyers. While some might cheer that result, the main effect is to increase the cost and reduce the availability of legal services. Lack of access to affordable legal representation is a serious problem in our legal system, particularly for the poor and lower middle class.

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