It should be uncontroversial for a teacher or professor to openly support Black Lives Matters, whether as a concept or an organization, even if the two aren’t quite the same and the former is more of existential concept than a particular ideology with clear edges and purpose. After all, black lives matter, and to affirmatively suggest they don’t matter is the racism sought to be eradicated.

But does failure to attend protests, wear BLM-branded clothing, say it regularly on social media make one a racist? In some quarters, it does. What about saying anything positive about police, supporting the cops while others riot for their abolition? Is that a fair view to espouse? Is it “anti-black” to express any view that isn’t aggressively pro-BLM? Apparently, April Mustian believed that to be the case, and took her point to social media. Continue reading →

The fact pattern is the sort that makes for a good crim law exam, implicating a broad array of bad Supreme Court law designed to facilitate the worst cop in taking action for the worst reasons, not the least of which is the assumption that a black man driving a Mercedes convertible has to be a drug dealer. After all, how else could Clarence Jamison have such a cool car?

The irony is that Judge Carlton Reeves held that the cop, Nick McClendon, was protected by qualified immunity, the judge-made rule superimposed on Section 1983 under the assumption that police were too stupid to not violate people’s constitutional rights in good faith, subsequently worsened when the Supreme Court held that district judges need not address the two prongs of their judge-made escape hatch, that a constitutional right was, in fact, violated, and that the right violated must be “clearly established,” whether sequentially or at all, thus allowing violations of rights to persist, never to be “clearly established” because courts weren’t required to rule on that prong. Continue reading →

A twit of such banal obviousness caught a little attention for an unexpected reason:

2+2=4

I will die on this hill.

No, this wasn’t written by a third grader, but by an old lawyer. And the reason anyone noticed is because this silly childish equation has become either the center of controversy or, as Rendall argued, a strawman. The answer, as is often the case, depends on what you see and what you know. As with Rendall, the issue exploded after a math nerd gave an abstract math definition, followed by James Lindsay’s ridiculing it as post-modern math. Continue reading →

It’s never entirely clear what makes crime go up or down, although theories abound. Sometimes, like the crack epidemic of the late ’80s, a causal connection between cheap, ubiquitous drugs and crime smacks you in the face, but the subsequent diminution of crime remains a mystery. The cops take credit for it, naturally, because it can’t be proven that it wasn’t their brilliant work that made crime drop precipitously. But there’s no evidence to back it up, and there’s plenty of evidence that whatever they claim is doubtful.

Nonetheless, we’re now experiencing a significant rise in murders, even if they remain at historic lows and the percentage increases seem bigger than they really are given the law of small numbers. Then there’s the fact that while murders are up, other crimes are down. That makes little sense, but yet that’s the case. Why? Continue reading →

As a joke, I twitted for a few days the date, that everyone was still full of shit, and have a nice day. It was funny because it was true, as many folks on twitter have gained substantial popularity and credibility with others who are either desperately inclined to believe them no matter what or too clueless to grasp they’re being lied to.

But in the scheme of people who are full of shit, BethAnn McLaughlin, founder of the advocacy group MeTooSTEM, takes the cake.

McLaughlin, a neuroscientist who says she lost her tenure bid at Vanderbilt University due to her activism against “harassholes,” has lots of Twitter followers. So did Sciencing_Bi, who sometimes defended McLaughlin against critics who said she was a toxic, controlling leader within MeTooSTEM.

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Poor Senator Sheldon Whitehouse is going to have a conniption. After all his efforts to exert control over the Federalist Society by pushing to force federal judges to quit their membership, it not only amounted to nothing, but ended up backfiring.

On January 21, 2020, I circulated the Judicial Conference Committee on Codes of Conduct’s draft Advisory Opinion No. 117 as an exposure draft for your review and comment. The draft opinion addressed judges’ memberships in certain law-related organizations. The 120-day Judiciary comment period ended on May 21, 2020, and the Committee received comments from about 300 judges expressing a wide variety of views. At its July 2020 meeting, the Committee reviewed the comments and after extensive deliberation decided to table issuing draft Advisory Opinion No. 117 and not to publish it. Instead, the Committee will rely on the advice it has previously provided concerning membership in law-related organizations. See, e.g., Advisory Opinion No. 82: “Joining Organizations.”

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A running debate within the Legal Academy was whether law school was a “trade school,” teaching students the nuts and bolts of the law and how to use them in a workmanlike fashion, or a philosophy grad degree, where students were asked to ponder the mysteries of legal thought and worry more about Hobbes than perpetuities. It always struck me as a silly debate, since a “craftsman” at law needed to be able to use theories and philosophy as tools of persuasion, which is how one crafts a good argument, so the obvious answer is both.

The deans of 150 law schools have decided that there’s too much dead time in their programs, not enough to teach their young charges now that messy classes like Evidence and maybe even Crim Pro really aren’t necessary first year subjects since, as the sophists argue, not everybody defends the accused or tries cases. So if students matriculating at law school need no longer learn, you know, law, what then should they be taught? Continue reading →

My old pal, Jon Rapping, of Gideon’s Promise, alerted me to an interesting op-ed in the New York Law Journal about a very tricky issue, the treatment of misdemeanors during a pandemic.

In recent months, some New York district attorneys’ offices and the New York courts have issued statements proclaiming their commitment to equality and anti-racism. They’ve also expressed their interest in both protecting the safety of the community as the state seeks a careful balance between reopening the court system and protecting the community from risks associated with COVID-19.

If these entities are serious about addressing both of these critical issues, a good place to start would be reimagining the prosecution of low level offenses. With cases backlogged and judges processing a fraction of the cases they used to every day, courts and prosecutors should not sweat the small stuff—that is, misdemeanors, which are, by definition, “minor wrongdoings.”

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It can be a matter of law, whether there’s trespass, vandalism or worse, but that tends to deflect from the more fundamental question: Is going after politicians and public employees at home fair game?

It’s happened to Portland Mayor Ted Wheeler, and NYPD Police Commissioner Dermot Shea.

It obviously has consequences for “innocent” bystanders, the neighbors, spouses and children. Assuming that no laws are broken, per se, and that the conduct is an exercise of constitutionally protected protest, the question remains whether it crosses a line, a norm, of going after a public official in his or her personal capacity, at home, involving the family, the children. Continue reading →

A ubiquitous phrase to describe the protests in Portland is that they were “mostly peaceful.” Except when they weren’t. While there was much to question and condemn about the handling of the response, it’s hard to ignore that the less-than-peaceful folks were less than peaceful. Were they supposed to let the courthouse be bombed and breached, burned down or seized?

For the moment, the rioters have been held back from their preferred course of conduct by other protesters who want to make sure that it appears the riots are over now that the feds have backed off in favor of Portland police and this was all a product of the introduction of federal agents into the mix. Hopefully, this will hold, even if the violence began on July 4th, before there were the feds were sent to defend the courthouse. Continue reading →