At Slate, Cato’s Clark Neily calls for more judges with criminal defense experience, going so far as to call for a moratorium on judicial appointments from the ranks of prosecutors.

Fortunately, the solution is simple: a temporary moratorium on nominating former prosecutors to the bench and a strong preference for lawyers with substantial experience representing individuals against the government in criminal and civil cases. If that proposal seems extreme, consider the image of a federal judiciary in which former public defenders outnumbered prosecutors 4 to 1. Notwithstanding the transformative effect that would have on our deeply dysfunctional criminal justice system, not to mention the Bill of Rights, it’s probably not a good idea. But neither is it wise to continue doing nothing while the imbalance runs the other way.

Given the climate these days, few social justice warriors will disagree, and some might even split their donations between the ACLU and Cato. Not that it will happen, because the idea isn’t simple, but simplistic, and there are a host of reasons why it will not do what simple minds believe it will do. Continue reading →

Jails have a smell, a combination of disinfectant and disgust. The former never really washes away the latter, and the combination of the two odors is repulsive. Rikers Island was a repulsive place, and it bred a culture of cruelty among not only its transient residents, but among the staff overpaid to keep them in line.

Close Rikers became a rallying cry, even though it was nothing more than an island with human warehouses. Corrections officer culture had become toxic, and unionization plus political inertia prevented any serious change, so the simpler sell was that Rikers had evil walls, and ceilings and steel bars. Blame the buildings and it would fix the problem, as if any other jail wouldn’t smell as awful.

There were two actual problems with Rikers, its isolation and its size. Isolation was its virtue when it was built, since nobody wants a jail in their neighborhood, and the folks who reside there weren’t welcome on Sutton Place. Size was a by-product of necessity, when crack, and its daily killings, caused the need for cells to explode. When Rikers Island ran out of room, they put people on a barge brought in to take the overflow. Nobody ever said they would rather be on the barge than Rikers. Jails smell the same, and both had water views. Continue reading →

S. Lee Merritt, the Gloria Allred of Michael Avenattis, twitted that she was playing video games with her 8-year-old nephew, which doesn’t help nearly as much as he apparently thinks it does. Was his point that “Tay,” as he calls her as if they were old friends, was a neglectful, if not abusive, aunt? It was 2:25 in the morning, not really the time of day to play video games with a child.

But even if that’s true, despite the fact that Merritt’s history of presenting accurate claims isn’t exactly reliable, so what? Jefferson was, without question, safely ensconced in the one place in the world where she didn’t have to explain what she was doing, why she was there. She was in her home, her castle, and that’s all that matters.

Officers responded at 2:25 a.m. to the house in the 1200 block of East Allen Avenue. James Smith, who called a non-emergency police number, said he saw the doors were open and the lights were on, which struck him as unusual. He knew Jefferson, his neighbor, was home with her 8-year-old nephew.

Continue reading →

Jesse Wegman asks a fair question for the wrong reason.

To be sure, the mere presence of an underrepresented demographic on the court doesn’t guarantee a specific outcome — a point Justice Marshall emphasized when he rejected the idea that he should be replaced by another black justice. “There’s no difference between a white snake and a black snake,” he said. “They’ll both bite.” (Justice Marshall’s seat was filled by Justice Clarence Thomas.)

There are a great many underrepresented demographics in America, and if one is a slave to intersectionality, the number might reach 300,000,000, since each of us is our own unique combination of racial, sexual, class attributes. If we’re going to each get a justice who “looks like us,” whether literally or metaphorically, they’re gonna need a really big bench. Continue reading →

At the Bulwark, Walter Olson offers an interesting post about the trio of cases argued before the Supreme Court this week, characterizing the issue as the “surprise plain meaning” approach to textualism.

The argument is this: If an employer would never fire Ginger for taking a romantic interest in men, but does fire George when it learns that he does so, it has treated him differently because of his sex. Similar arguments can reach the case of an employee’s gender identity.

You might call the phenomenon “surprise plain meaning”—a meaning of the text that the drafters did not intend or notice at the time. Every law student learns about this early on, as with the question of whether a “No Vehicles in the Park” rule covers bicycles, skateboards, or a statue of the general in his Jeep.

And, indeed, every law student learns, or at least used to learn, about the blunt weapon of words, meant to convey one meaning, one purpose, but resulting in unintended applications despite the non-lawyer’s retort, “but you know that’s not what they meant.” That’s why writing law is hard, and why recognizing how words often encompass things not intended, but unavoidable, when they’re later used to apply in way that are entirely within the word’s ambit while being completely beyond the law’s intended reach. It happens all the time. Continue reading →

It was malarkey, total nonsense, I was told in response to the complaint by some young men that they would no longer take the “risk” of approaching a young woman in real life. The men feared that they could step on a mine at any moment which would blow up by screams of “rape.” The women, together with their male allies who flit about their feet, responded with deeply simplistic snark that if they didn’t want to be called “rapist,” don’t be a rapist.

Was Jamie Griffiths a rapist?

“The complainant’s evidence was very clear, logical and without embellishment,” a magistrate told the young man. “We can think of no motivation for you to touch the victim other than sexual. Had she not taken evasive action the assault was likely to have been even more serious.”

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NYU prof and vice provost, Ulrich Baer, has never been shy about crossing lanes into oncoming traffic, so it’s unsurprising that he wrote a book on a subject about which he knows nothing. What else would a passionate academic do, particularly when the climate is ripe for assertions that would have gotten him laughed off campus before intellectual rigor was replaced by sad tears.

Baer’s book, What Snowflakes Get Right: Free Speech, Truth and Equality on Campus, got him an interview at that bastion of academic freedom, Inside Higher Education, where he plays the most popular game among scholars these days, Guess my logical fallacy!

Q: What’s wrong with the way the free speech debate is understood on campus? Continue reading →

Most of the women with whom I’m friends have two common attributes. They’re smart. They’re tough. Not tough in the “beat up people in bars” sense, although I have little doubt they would if warranted, but tough in the sense that they’re nobody’s pushover. There is a space between overly assertive and perpetual victims. Somehow, this is the space they occupy.

So they don’t constantly apologize for things they haven’t done wrong. Yet, that seems to be a stereotype some women apply to themselves, and Ruth Whippman is angry about it.

Take apologizing, the patient zero of the assertiveness movement. Women do too much of it, according to countless op-ed essays, books, apps and shampoo ads. There’s even a Gmail plug-in that is supposed to help us quit this apparently self-destructive habit by policing our emails for signs of excessive contrition, underlining anything of an overly apologetic nature in angry red wiggles.

Continue reading →

At oral argument, Stanford lawprof Pamela Karlan stood on behalf of the two gay men who sought the protections of Title VII against sex discrimination. One was Zarda. The other Bostock. Going into this argument, the question was whether the word “sex” (which all concede was never intended to mean “sexual orientation” at the time enacted, and all similarly concede has been subject to continuous efforts to expand the law to include sexual orientation, but has been refused by Congress) should be expanded to mean sexual orientation. That was a dubious policy stretch.

What’s Karlan to do?

But if you’re a real textualist, all of that is beside the point. As Pamela Karlan, the lawyer for the two gay men at the center of the first half of Tuesday’s session, put it in her straightforward first few minutes at the podium, Title VII as it exists today resolves the case: Continue reading →

If a killer used email to lure his victim to her death, would the email provider be responsible? If a pedophile used an app to convince an underage girl to meet him at some seedy motel, would the app be at fault? If a restaurant served dinner to a mass murderer right before his killing spree, would the restaurant be at fault? The cook, perhaps? The server?

There is a theory that would say yes, if there was some after-the-fact detail, some hook, some explanation, that in retrospect could arguably suggest they could have known, should have known, what was about to happen if only they had seen the signs. As Mary Anne Franks has expanded her reach beyond revenge porn to guns, so too has she expanded her chaos theory view of collective liability.

We have reached a point in America at which mass shootings happen so often that the country sometimes only has a few days — sometimes only a few hours — to catch its breath in between. When the shooter is white and male, as mass shooters so often are, the narrative of the “lone wolf” quickly becomes dominant. Anti-gun control ideologues, from the National Rifle Association to Republican lawmakers, assure us that the shooter was a monstrous singularity, just one bad guy who happened to have a gun. Continue reading →