The big push a few years ago was the emergence of organized advocates for juror nullification. There were sincere and serious arguments that the ability of a jury to nullify a conviction was not merely permitted by law, but a foundation of the jury system. Yet judges instructed juries that they are to apply the law as given them by the court and not let emotion stay them from their duty.

Of course, one aspect of nullification its advocates never really appreciated is that if jurors believed themselves entitled to ignore law, the outcome might well be that they ignored doctrinal instructions like the presumption of innocence or the burden of proof and convict for reasons less savory than there was no reasonable doubt the defendant committed the crime. The assumption that nullifying jurors would always side with the defense might have been a bit naive. Continue reading →

Harvard lawprof Nico Bowie submitted written testimony to the Presidential Commission on SCOTUS, which was theoretically created to address issues arising from the three justices appointed by the last president that gave rise to fear and outrage that the Supreme Court now had a conservative wing of political hacks. Or to pacify the outraged by creating a committee that would spend a lot of time murdering words and ultimately do nothing, if you’re just a wee bit cynical.

Bowie argues that the Supreme Court is anti-democratic, which, of course, is correct. But his argument is that it should be democratic. Continue reading →

I like Patrick Frey, better known online as Patterico, even if we tend to disagree about many things. But we did agree on two things, that the current spate of laws being proposed and enacted to prohibit the teaching of critical race theories in K-12 public schools are bad laws, poorly written, vague and overbroad, often unconstitutional and will wreak havoc on both education and law.

Law is hard, and expressing in the blunt instrument of words what you’re trying to accomplish is hard when the goal is simple and straightforward is often too difficult to do. Expressing something as ephemeral as a prohibited concept is likely impossible. But at the same time, both Patrick and I agree that indoctrinating students into an array of CRT, Kendian anti-racist curricula, dumbing down education to accommodate excuses for disparate outcomes, is a legitimate problem that needs to be addressed. Continue reading →

As the current comptroller of New York City, and a guy with all the right words on his resume to become the mayor of the Big Apple, Scott Stringer should have been in the middle of the fight. Yet the best he could do was a fifth place finish. Even Yang finished ahead of him, for crying out loud.

He had great TV commercials. He had an impeccable background. He had strong progressive endorsements. Oh wait. He did, then he didn’t, because he got accused. Or as people like to say these days, “credibly accused,” which means there is no conclusive proof that the accusation was false, so it could be true. Was that what took Stringer down? Continue reading →

This is hard. Very hard. My feelings toward Rudy Giuliani have been decidedly ungood since the 1980s, and they haven’t gotten any better since, which makes him a test case for whether I can not join the schadenfreude chorus singing hallelujah at the New York Appellate Division, First Department’s interim suspension of his license to practice law.

For the reasons that follow, we conclude that there is uncontroverted evidence that respondent communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump’s failed effort at reelection in 2020. These false statements were made to improperly bolster respondent’s narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client. We conclude that respondent’s conduct immediately threatens the public interest and warrants interim suspension from the practice of law, pending further proceedings before the Attorney Grievance Committee.

Continue reading →

It’s curious that South Carolina lawyer David Traywick chose not to fight. His lawyers expressly refused to assert a First Amendment defense, and the Court, in deciding the case, expressly chose not to consider it. Instead, they grounded their decision in two rules of professional conduct, Rule 402(h)(3) requiring lawyers to “maintain the dignity of the legal system,” and Rule 7(a)(5), prohibiting conduct tending to bring the courts or the legal profession into disrepute.

It happened on Facebook, where Traywick wrote some angry and vulgar posts. There are, according to the decision, 12 statements at issue, but only two are recited in the decision. Presumably, they are the most offensive of the bunch. They were sufficiently offensive to cause 46 people to complain about Traywick. It’s unclear from the decision whether these were lawyers, clients, judges or just 46 random people who happened to see his Facebook page. Apparently, the number of people was of sufficient consequence to make the opinion. Continue reading →

Years ago, Carl Malamud took on a valiant cause, to make law free for all. Statutes would be online. Caselaw would be online. No longer would a person need a law library with shelves lined with books, with pocket parts, to know what the law was. No longer would someone have to be a lawyer to read law. Law was for all of us, so why shouldn’t all of us have access to it?

It was a sound argument and a virtuous goal. With access to legal source materials, people would have the ability to know what the law is. Of course, having the ability isn’t the same as using that ability. It occurred to me yesterday, in the aftermath of Derek Chauvin’s sentence, that the problem isn’t the availability of legal information. The problem is that people just don’t care enough to learn and, more importantly, won’t let information get in the way of their beliefs. Continue reading →

The underlying case was horrific, even if it wasn’t really a qualified immunity decision as many misconstrued it. The kicker to QI isn’t the first prong, that there was a constitutional violation, but the second, that the violation was “clearly established.” After all, if there was no constitutional violation in the first place, then the cops did nothing wrong. Even if there was no QI, cops would still prevail. This seems to get lost in the sauce for many.

After the original Fifth Circuit panel dismissed the complaint under Rule 12(b)(6), holding that tazing a guy soaked in gasoline such that he burst into flames was not a violation of his constitutional rights because there were others, cops included, placed in danger and the police had, the court found, no other option. The complaint did not plead a plausible cause of action. Continue reading →

The Washington Post headline made clear that the evil governor of Florida wasn’t satisfied with his bad Critical Race Theory law, but now signed another evil law to control the minds of Florida’s college students by requiring them to verify their politics.

In push against ‘indoctrination,’ DeSantis mandates surveys of Florida college students’ beliefs

And The Hill twitted much the same. Continue reading →

Trigger Warning: You can’t say trigger warning anymore.

Wesley Yang has thoughtfully noted that Brandeis University, that bastion of liberal thought and expression, has provided a list of words and phrases that must not be uttered. Continue reading →