No doubt there’s a reason why law reviews exist as a place for legal academics to publish their scholarly writings with the acceptance, approval and oversight of student editors. If I cared enough, I could research it and find out, but I don’t. Rather, it’s sufficient for now that the system involves the least knowledgeable, least capable and least attuned to the realities of law making decisions for a profession of which they’ve yet to earn a place.

Most things are published that they may be read. Law review articles are published that they may be written. – J. Posner

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It’s one of those things that people never expected and can’t imagine how it could be possible, constitutional. It’s not just that it offends our sense of fairness, but it offends the legitimacy of the process. Why have a trial if the outcome of not guilty on one offense doesn’t mean that the defendant beat the rap. How could there be such a thing as “acquitted conduct sentencing”?

If a jury convicts a defendant on some charges but not others, it has found that the facts supporting the acquitted charge were not proved beyond a reasonable doubt.  That does not mean those allegations are not true or have not been proved by a preponderance of evidence or even clear and convincing evidence. Continue reading →

Notwithstanding my personal choice to avoid fixing what’s not broken, most of us nonetheless believe that the people onto whom we entrust our bodies, our lives, are the best and brightest we can find. No, they’re not perfect, and one would have to be an idiot to believe that there aren’t docs who are less than sufficiently competent. But we believe, because there really isn’t much of a way to endure medical treatment if we didn’t.

But medical schools are making it hard. So very hard. Continue reading →

There’s a law school at Leland Stanford Junior University, and it’s decided to give Yale a run for its money as the school least capable of teaching its students the virtue of humility. The debacle began with Judge Kyle Duncan being invited for a lunchtime presentation by the Federalist Society and ended with Judge Duncan leaving the room. What happened in between, and then some, is laid out by David Lat.

As I first learned via this detailed Twitter thread and subsequent Bench Memos post by Ed Whelan, yesterday Judge Kyle Duncan of the Fifth Circuit was the subject of a highly disruptive protest when he spoke at Stanford Law School. I have received extensive information about the event from multiple sources at or affiliated with SLS, as well as Judge Duncan himself, whom I interviewed by phone, and I’ll share it with you now. I also reached out to Stanford Law, but have not yet heard back; I will update this story (or write a new one) if and when I do. [UPDATE (10:49 p.m.): I would note, however, that Dean Jenny Martinez issued a school-wide message about the protest, which I have posted near the end of this story; I’m guessing she crafted it with the knowledge that it would be published, as I and others have done.]

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Sheriff Roy was a typical man in that he had no use for doctors unless they were absolutely necessary. Still, his job mandated he see one once a year, so Mud Lick’s top law enforcement officer found himself in the exam room of a veterinarian’s office.

You see, friends, back in the days of Mud Lick’s formation, the Town Elders got it in their heads the chief cop in Mud Lick should be someone of sound bodily and mental health. Therefore every year the Sheriff was to undergo a physical examination by a trained medical professional and a competency evaluation by a psychiatrist. Continue reading →

Much has been said about the CDC’s survey showing that progressive (mischaracterized as liberal, which they most assuredly are not) girls suffered more and greater depression than progressive boys and conservative boys and girls. Jonathan Haidt and David Brooks both did something surprising, pointing to reformed progressive Matt Yglesias and progressive feminist Jill Filipovic to explain this phenomenon of misery.

Yglesias wrote that “part of helping people get out of their trap is teaching them not to catastrophize.” He then described an essay by progressive journalist Jill Filipovic that argued, in Yglesias’s words, that “progressive institutional leaders have specifically taught young progressives that catastrophizing is a good way to get what they want.”

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Following the crisis of 9/11, Congress did what it does best. Give its power away. It wasn’t that Congress hadn’t done so before (anyone remember the Gulf of Tonkin Resolution?), but post 9/11, the confluence of two things ramped up governance by executive bureaucracy. On the one hand, Congress was paralyzed, incapable of accomplishing much of anything because of divisive politics and the fear of being responsible for its own actions. On the other hand, executive agencies were reaching their full stride, no longer humbled by limits and expertise, but available as harbingers of change where Congress perpetually failed.

And this was the case for all executives, regardless of party or purpose. Continue reading →

There are hosts of questions, from why House Speaker Kevin McCarthy would pretend giving Fox Entertainment’s Tucker Carlson exclusive access to more than 40,000 hours of video footage was the beloved “transparency” to video showing the Qanon Shaman being accompanied through the capitol’s hallways by a phalanx of police.

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The effort immediately brought to mind the survey about how many unarmed black men were killed by cops.

The results were revealing. Overall, nearly half of surveyed liberals [sic] (44 percent) estimated roughly between 1,000 and 10,000 unarmed black men were killed whereas 20 percent of conservatives estimated the same.

Most notably, the majority of respondents in each political category believed that police killed unarmed black men at an exponentially higher rate than in reality. Over 80 percent of liberals guessed at least 100 unarmed black men were killed compared to 66 percent of moderates and 54 percent of conservatives.

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A law prof emphatically made the point, that while Florida’s governor seems to be on a drunken unconstitutional law enactment spree, until such time as some of the goofier bills become law, and aren’t laughed out of court as unconstitutional crap, they’re not worth getting too worked up about.

After all, performative bills are nothing new, and until they actually become law and are sustained, they’re just plays put on to soothe the fevered breasts of useful idiots. Laugh or cry, they don’t matter until they matter. One such performative law seeks to undo the seminal 1964 Supreme Court decision in New York Times v. Sullivan. Ron DeSantis doesn’t like it. Continue reading →