It can be more like seeing the world through the eyes of a toddler than lawyer, the shock and surprise when a judge you vilified because she was appointed by the president you despise, the judge who was going to destroy all the good of the law and strip decent people of those emanations and penumbras that get in the way of enumerated rights. And then suddenly, without warning, they turn out to be . . . judges. Sometimes, they end up on the side with which you agree. Sometimes not. You know, like judges.

The newest Supreme Court justice, Amy Coney Barrett, is the latest in the trio of presumptively conclusively evil judges, and by definition will use their vote on the Nine to destroy the good law. This certainty gives rise to pre-emptive warnings about how a case may come before the Court because she is now the “deciding vote.” Adam Liptak explains that in one of the most controversial of all constitutional evils, allowing people with prior felony convictions to enjoy fundamental constitutional rights as if they were just like any other citizen. Continue reading →

The obvious problem with a great many studies is that they’re cited for a proposition by people who never read them. They become part of a myth of a study, such as the Lisak study persistently used to show that only 2-10% of rapes are false. It’s not remotely what the study says, and yet it’s become an article of faith, repeated constantly, believed without question. But that’s just one issue.

For people who care enough, as opposed to people who simply cite a study assuming its validity, there are numerous problems that arise, from a study conflating definitions or issues (such as a study about “rape” that includes in its definition the “ear rape” of hearing unwanted words) to the methodology of size, self-selection, payment or incentive. It’s as if I did a study of what everyone living at Casa de SJ thought about something. It might look as official as any other study, but it wouldn’t be of much value to anyone but us. Continue reading →

Thousands took to the streets of Paris in protests that were “mostly peaceful” until they weren’t.

Although the protests across France were mostly peaceful, some violent clashes erupted later in the day between demonstrators and security forces. Some protesters smashed shop windows and set cars and a cafe on fire in Paris, while the police responded by firing tear gas and using water cannons.

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The First Amendment to the United States Constitution protects the free exercise of religion, which makes it a pretty big deal, even if a lot of us aren’t particularly religious, don’t look to a deity to tell us how to live our lives and, frankly, think people who do are kinda bonkers and dumb, believing in some dead sky zombie.

On the other hand, there’s science, and it tells us that COVID-19 can kill. We’re not all that good with dying, or having our family members die, and so in the scheme of relative values, our concern for protecting ourselves and our loved ones from pandemic is far more important than protecting the constitutional rights of a bunch of zombie-fanatics to congregate, spread disease among themselves and then go forth into the community and infect the rest of us. Continue reading →

A conservative law prof raised the common complaint about the lack of diverse political views in academia, which I figured was a complaint that has played out too many times for anything new to be said. I was wrong. A black prawf chimed in with a series of twits that included this:

My own practice has always been to let students know I have views, where they can find them but that I will always demand that they treat each other with respect and dignity and equality in my classroom and when they fail to do so I will hold them accountable.

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There were policies that got a rise out of the angry crowd, like keeping “illegals” from “shithole countries” away from our borders. But there was no screaming about the failure to execute enough people. If it didn’t happen, no one would care, no one would wrap themselves in a MAGA flag to argue whether Trump was bigger than Jesus. Executions just weren’t on the radar. So what happened?

Last week, the Justice Department announced that it plans to execute three more inmates on federal death row. If the administration does so, along with two other executions already scheduled, it will have put 13 prisoners to death since July, marking one of the deadliest periods in the history of federal capital punishment since at least 1927, according to data from the Federal Bureau of Prisons.

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Looking through some of my past Thanksgiving posts provides some needed perspective for me. For many, this has been the worst year ever, between politics, COVID, the economy, education, riots and the culture war. And perhaps it is, at least for some. But what the past reminds us is that problems, suffering and misery have always been here, and if it’s your suffering, it’s the worst.

But this is why we give thanks. Not for the suffering we endure, but for the suffering we don’t. Continue reading →

Try not to make people stupider about law. It’s been a guiding principle here, whether it serves to promote outcomes I support or prefer or not. This doesn’t mean that I won’t argue against extant law that I think is wrong, but that I won’t claim that the law says something it does not, omit salient facts which impact an outcome or introduce facts that I don’t believe to be accurate. I may fall short on occasion, for which I apologize, but I will not do so intentionally.

Others do not share my concerns. Some play fast and loose with facts, law and the heartstrings of non-lawyers for the sake of collecting “likes,” followers or validating the feelings of the ignorant. It’s often done for their cause, and justified by the sincere belief that the outcome matters enough, so much, that there is no means so dishonest, disreputable, disgraceful, that they would not use it. “By any means necessary” matters more than honesty. Continue reading →

Had there been any reason to suspect that an 11-year-old girl had been the person the cops were looking for, might pose a threat of harm to the officers, there might be some nagging voice in the back of your head saying, “well sure, it’s needless, wrong and just perversely cruel, but not totally outside the realm of reason.” Except none of this was true for 11-year-hold Honestie Hodges.

“Put your hands on top of your—,” an officer ordered them before he was interrupted by Honestie’s mother screaming, “She is 11 years old, sir!”

“Stop yelling!” the officer responded, as recorded by an officer’s body camera. He ordered Honestie to walk backward toward him with her hands up.

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There are more flavors of “defund police” than ice cream at Baskin Robbins, each of which claims ownership of possibly the worst slogan ever. A group called Project NIA put together a video to pitch their version of “defund police.”

It’s a curious effort, indulging in stereotypes, ahistorical claims and grossly simplistic “truths,” which are only “truths” because they want them to be. On the other hand, it makes some valid points about many of the intransigent problems in policing and society.

What’s right? What’s wrong? Is it persuasive or not? Putting aside the misbegotten slogan, what of the seeds of ideas that form the basis for changing the relative dedication to policing, not to mention its cost both in terms of money and social damage? Continue reading →