Of all the aspects of the proposed Title IX revisions to focus on, Cornell lawprof Mike Dorf oddly chose the burden of proof, probably the least significant aspect of the changes to trial lawyers. When Catherine Lhamon, head of the Department of Education’s Office of Civil Rights told colleges to use the “preponderance of evidence” standard or else, her purpose was to facilitate findings of guilt.

Dorf adopts the argument preferred by twitter lawyers in favor of the reduced burden.

Why was the ED specifying the burden of proof in college grievance procedures? Some schools had been requiring that complaints of sexual violence be proven by clear-and-convincing evidence or even proof beyond a reasonable doubt. The rationale for these heightened evidentiary standards was dubious. The beyond-a-reasonable-doubt standard applies in criminal cases where a defendant risks imprisonment. The clear-and-convincing standard applies in civil commitment hearings, where personal liberty is also at stake. It also applies in some other settings. However, in the vast majority of civil cases, the preponderance standard applies, even when the stakes are high, as when a plaintiff sues for defamation based on damage to her reputation.

Continue reading →

The introduction to Harvard lawprof and public intellectual, Cass Sunstein’s new book, On Freedom, opens with a question and non-responsive response:

Does freedom of choice promote human well-being? Many people think so.

The problem is that this putative question isn’t a question at all, but an assumption framed as a question, which serves as the lead in to his thesis that people struggle with navigating the “right” choices, and thus his solution, that “choice architecture,” unavoidable no matter what, should serve to nudge people toward the choices that best promote human well-being while allowing them the freedom to ignore the nudges and do as they please. Continue reading →

I vaguely remember getting the letter and reading the opening paragraph. It was from a prisoner whose name sounded somewhat familiar, Martin Tankleff. I remembered it from the newspapers, a kid convicted of killing his parents. Years later, he would be exonerated for the murder, and I would think about how I tossed the letter in the garbage rather than reply.

Criminal defense lawyers get letters from random prisoners all the time. They’re often long letters. They occasionally come with papers or transcripts, sometimes hundreds of pages. They proclaim their innocence and beg for a lawyer to save them. Pro bono, of course.

It takes time to read these letters from unknown prisoners, and after reading the first few, you realize they are largely incomprehensible, replete with gushing words about justice and devoid of any substantive basis for action, other than the prisoner’s denial of guilt. You become inured to the protestations of innocence. They all say so. Few are. Almost none can prove it. Continue reading →

I remember taking the final in college. It was traumatizing, not because of the subject matter (which might well have been traumatizing had I been inclined to be traumatized), but because I forgot that I was registered in the class and never went to a lecture or read the books. It wasn’t until I received notification of when the final was to be held that I realized my error. It was too late to drop the course, so I had no other option than to show up for the final and do my best to pull it off.

I should have gone to Sheffield University.

Professors already give “trigger warnings” when using images from video games, war photographs and depictions about the crucifixion of Jesus Christ or when organising discussions about underage sex, homelessness and religion. Continue reading →

There’s a weird thing that goes through the heads of some defendants, where they start to believe their own malarkey. Like they’re innocent, when they’re guilty as sin, caught on video doing the dirty. It makes for some very weird discussions about the handling of their case. But regardless of outcome, the last thing you want to hear about is how innocent they were, and how they deserved the outcome as opposed to some damn fine lawyering that saved their very guilty butt.

Meek Mill has parlayed his profile as rapper into innocent spokesperson for the downtrodden in the system. While on probation in Philly, he came to New York City and pulled a wheelie on a dirt bike, which was put up on Instagram, because that’s what cool people do. He got pinched for reckless endangerment. His lawyer, Joe Tacopina, got him an adjournment in contemplation of dismissal, which means that if he stays clean for six months, the case is dismissed. He was also sentenced to 30 hours of community service.

An ACD is a good disposition, and the subsequent dismissal of charges, essentially a second chance built into the law, let’s a person walk away from their offense. But it’s not innocence. It is specifically not a “disposition in favor of the accused,” so as to distinguish an ACD from innocence. It’s just a Mulligan, and Joe Tac did a good job getting an ACD for Mill. Mind you, Joe doesn’t come cheap. Continue reading →

Some might have been put off by the fact that this steaming pile of crap appeared in no less a newspaper that was supposed to keep a critical eye on the doings of junk forensic science than the New York Times. After all, had the failings not been made abundantly clear?

Once seen as crime scene detritus, bullets and ejected shell casings — which have unique sets of scratches, grooves and dents — are recognized these days as vital pieces of evidence. More officers are now taking the time to collect shell casings from petty crimes and nonviolent shootings, like when joy riders use stop signs for target practice, because they may eventually help solve more dangerous acts of violence.

As the feds dearly love to do, they gave their database a cool name, National Integrated Ballistic Information Network, and fed a story of their glory to a willing “journalist,” who duly reported it. Continue reading →

Last week the house was full of young people, my son’s roommates who graduated college with him and remained to get advanced degrees. They talked, we talked, they talked some more. They were very smart kids, but very much kids.

One of the things discussed stemmed from another young person who was killed doing something foolish. It wasn’t so much about the activity itself, but about how he did it, failing to take the usual precautions students took to be safe. From there, the discussion digressed to their foremost concern for safety.

As a parent, I was torn. No parent wants to see harm come to his child. But at the same time, I didn’t want to bubble wrap my kids, for they needed to take chances and tempt the possibility that they might be harmed. But there was a force preventing them from tempting fate. There were rules, there to protect they were led to believe, and rules must be obeyed. Continue reading →

Not that stereotypes should be considered truth, even though stereotypes aren’t created out of thin air, but that only applies to those stereotypes that we prefer not apply. Apparently, the awful stereotype of black men doesn’t prevent a black woman from burning them for their failure to do as she would expect.

White female voters in Georgia showed little interest in helping black women fulfill their dream of electing Stacey Abrams as governor, which would have made her the first African American woman to head a state in the nation’s history.

As everyone, except white women, knows, they’re awful. After all, isn’t politics all about helping a black woman fulfill her dreams, rather than, say, electing a person to office because that’s the person they choose to vote for? Continue reading →

When something slips though the cracks of government, taken for granted until we learn that it wasn’t, there are calls to regulate it. We must fix it. Something must be done. And so things get regulated, whether it’s some requirement to take thousands of hours of classes to get a license to braid hair, or refusal to give a job to someone who risked their lives bravely fighting California wildfires because they were in prison at the time.

Once we regulate, we must enforce the regulations, for unenforced regulations are worthless. And to enforce our regulations, there must be punishment for a violation of them. There must be, and since our regulations are critical to the maintenance of society, the punishment must “send a message.” And if we try hard enough to achieve a well-regulated society, we could end up like Greece.

An initial court ruling two years ago handed the woman a 15-year prison term for defrauding the public; the sentence was reduced this month, and she has been in Thiva prison in central Greece ever since. Continue reading →

There is nothing to suggest that Miyekko Durden-Bosley is going to win any citizenship awards for her actions that night.

Durden-Bosley, then 23, was intoxicated and verbally abusive during the incident outside the home of a Seattle man whose mother had called the police. Shepherd, the first of three officers to arrive at the scene, ultimately told her and the man he was losing his patience with their contradictory explanations.

As the video shows, dealing with Durden-Bosley wasn’t a pleasant task. Continue reading →