While the New York Times looked the other way. Cathy Young addressed the Tara Reade accusation of sexual assault against Joe Biden, arguing that based upon what was known at the time, it was implausible.

And yet even with minimal scrutiny, Reade’s account has major credibility problems.

In response, Ben Burgis agreed that the “believe the woman” mantra was an absurd mantra, but that the accusations were plausible.

The moral calculation underlying the “guilty beyond a reasonable doubt” standard for criminal trials is “Blackstone’s Ratio.” It’s better for ten guilty people to go free than for one innocent person to be imprisoned or executed. This isn’t even the standard for civil trials, and it not only shouldn’t but can’t be the standard used by private citizens trying to muddle through the epistemic morass and decide what we think of Kavanaugh or Biden.

Continue reading →

Ed. Note: This is a guest post by Madison, Wisconsin, criminal defense lawyer Christopher Van Wagner.

A news item today, Monday, described a significant spike in the non-COVID death rate since the pandemic’s onset. It seems, historically speaking, that pandemics tend to coincide with spikes in deaths from “other” causes. The reporting experts note various causes, including delays in some needed medical care leading to premature deaths, not to mention heart attacks, strokes and cancer deaths. Those death certificates do not say “COVID-19,” but in reality they should, for practical purposes if not for political or economic ones. Continue reading →

The best framing Larry Tribe could pull off was to call the case “kooky,” And he’s not wrong, but naturally not for the reasons he believes. As is well known and overwhelmingly clear, New York hates guns. Well, lawfully possessed guns, anyway, and illegally possessed guns come with heart-wrenching stories, unlike those of people who jump through the hoops at One Police Plaza to comply with the law.

Despite the Supreme Court’s rulings in Heller and McDonald, there is no “right” to possess a gun in New York, and the Second Circuit has been totally fine with that. For more than a decade, the Second Circuit has made clear it’s not going to apply the law, daring the Supreme Court to do something about it. And the justices hid under their bench and let it slide. Continue reading →

Some days, it seems as if the “news” amounts to little more than random dumb ideas that see the light only because there’s nothing actually new or serious to consider. Today is one of those days. So a few random thoughts.

Jill Karofsky won a ten-year term on the Wisconsin Supreme Court as a progressive, defeating the Trump-backed judge, despite the Supreme Court’s refusal to allow the Democratic governor’s last minute attempt to unilaterally change the law to accommodate mail voting by expanding the time period. Judge Karofsky argues that the principle is more important than winning. Continue reading →

Without adult supervision, the New York City Council has done as much as it can think of to serve the needs and causes of the oppressed, the marginalized, the downtrodden, micromanaging everything from hairdos to pronouns. And with the pandemic upon it, it’s found a new shark to jump.

Mom-and-pop shops as well as medium-sized businesses find themselves hanging by a thin hair in this crisis — yet City Council Speaker Corey Johnson wants to add to their burdens with a bundle of new mandates.

One bill would force essential businesses to retain every employee unless they have a “just cause” to fire someone. A second part of the package would require employers of 100 or more to pay low-wage shift workers a premium of $40 to $75 per shift during the pandemic.

Continue reading →

How many times has the question of prosecutorial misconduct by concealing Brady material been the subject of discussion here? By quick count, there have been 274 posts at SJ. Without vetting them all, my guess is that none of them distinguished the issue by the wealth or race of the defendant denied, but about Wild Bill Douglas’ nastiest joke on the criminal defense, dangling the duty to disclose exculpatory evidence without the minor details of when the duty must be fulfilled or what happens if it’s not.

Now, I learn that all of this discussion about Brady was all wrong. David Oscar Markus wrote about Brady concealment in the prosecution of Lori Loughlin and the defense’s effort to have the indictment tossed as a sanction. Continue reading →

It would strike few people as far-fetched to expect that our system of compulsory education, the public school system, provided less than a right to a “basic minimum education.” It certainly costs enough to expect some minimal efficacy, both in taxes and opportunity costs. Some schools do a fabulous job of educating young people. Some do not. Sometimes, the problem is the school. Sometimes, the problem is the students. You can require a student to come to school, but you can’t make him learn.

But what about students who want to learn but whose schools are just awful?

[I]n Gary B. v. Whitmer, a divided panel of the U.S. Court of Appeals for the Sixth Circuit concluded that the Fourteenth Amendment’s Due Process Clause protects a fundamental right to a “basic minimum education” that is potentially violated when the state fails to provide adequate public schools. The majority opinion by Judge Clay, joined by Justice Stranch, is over 60 pages. Judge Murphy authored a 23-page dissent.

Continue reading →

Colin Wright is a Penn State evolutionary biologist, which already puts him at a disadvantage when it comes to raising such issues. After all, he’s not just a scientist, but one for whom human evolution and biology matter, which puts him at odds with those true believers in science, provided it adheres to their ideology.

So when he pointed at the issue raised at the Yale Law Journal, of all places, he was clearly straying from his lane. After all, what’s law got to do with evolutionary biology, right? Except the substance, this time, was one of interest to both law and science, but more importantly, the peer review process had morphed from an accepted paper into a petition demanding the scholarship be “deplatormed.” It’s an issue that would concern any rational person. Wright was right. Continue reading →

Who doesn’t want a vaccine for COVID-19?

So why was my initial relief at hearing Oxford and Imperial are racing away to develop the vaccine followed by worry?

Let’s suppose that Oxford does develop the first vaccine. What happens next?

Most people, rational people, wouldn’t ask this question. It wouldn’t even dawn on them to ask this question, because the goal is the development of a vaccine to save mankind. Oops, did I say man-kind? Continue reading →

While the bail reform activists were thrilled with the coup pulled off in the dark of night, more serious and more concerned criminal law folks cringed. For decades, we tried to reform various aspects of the New York criminal legal system that most of us knew and agreed were bad, unfair and, as might be admitted at the bar in Forlini’s, unconstitutional. But knowing the system was a wreck was the easy part. Coming up with changes to the system that would serve everyone’s interests, that everyone could live with, was hard. Very hard.

With the “blue wave” of 2018 came Democratic control of the New York Senate, and with it came people utterly unaware of the serious concerns, the years of trying to come up with sustainable reform and the recognition that swinging the pendulum too far the other way didn’t mean it would work, but that it would swing back.

Not that they understood. Or cared. Oh, they were so filled with their power and importance, and had the support of their tribe of brilliant activists, like Shaun King and the new breed of internet hucksters who spewed their mix of simplistic nonsense and half-truths to the useful idiots. Continue reading →