As a law student, the predominant theory of constitutional interpretation was the “living Constitution.” That’s what we were taught. That’s what we believed to be right. It made sense, as the document ratified in 1789 couldn’t possibly account for all that would follow, and the only way it could survive was to evolve to address the needs of a nation over time. Frankly, I never thought all that hard about it at the time. All the prawfs said so, and so it was.

As the word “originalism” began to emerge as an alternative to interpretation, I was forced to give it some thought. I didn’t want to, as thinking was hard and could lead to unpleasant things, like headaches. Who needed that? But then, emanations and penumbras never really made a lot of sense, even when the outcome was something with which I agreed. As a principled approach, it was essentially, “we want to get there and, well, we got nothing, so emanations and penumbras, baby.” Sure, I would take it when it worked in my favor, but that nagging idea that it would eventually turn on me, bite me in the butt, was disturbing. Continue reading →

That prosecutorial misconduct is a problem isn’t exactly news, even as prosecutors vehemently deny that it’s widespread, that there are already ways to deal with it and that it will hamper their effectiveness by making prosecutors fearful of doing their job without fear of repercussions.

Of course they hate being denigrated. Who doesn’t? But that doesn’t change the facts.

The problem is obvious: Prosecutors don’t like to admit it, but even though most are honest and law-abiding, misconduct in prosecutorial ranks remains all too common. A review of 250 exonerations in New York since 1989 found that one-third involved prosecutorial misconduct, like tampering with key evidence, withholding evidence from the defendant or coercing a witness to give false testimony.

Then again, the fact that a problem exists does not lead inexorably to the conclusion that any solution will fix the problem. The syllogism is well worn. Continue reading →

The report of a homicide prepared by police included basic facts: the gender of the deceased. The name. The sort of basic information that would comprise any police report, that would be expected of any police report. And yet, it’s not only the subject of controversy, but outrage. What could possibly make the recording of facts so very wrong?

Laverne Cox says she “sobbed and wept” after reading a new report from ProPublica about multiple transgender murder victims who were repeatedly misgendered by the police departments and agencies charged with working the cases.

Cox said the lack of policies in place to ensure transgender murder victims’ gender identities are respected was an “injustice on top of injustice.”

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Not the Supreme Court in Washington, but not too far from it, either. The West Virginia Supreme Court consists of five justices, but there are only four at the moment, and the Judiciary Committee of the House has decided that they suck.

West Virginia’s House Judiciary Committee has adopted articles of impeachment against all four justices on the state’s Supreme Court of Appeals, accusing the judges of a range of crimes and throwing the court’s immediate future into disarray.

Approved on Tuesday afternoon, the articles of impeachment recommend that the entire bench — Chief Justice Margaret Workman, Justice Allen Loughry, Justice Robin Davis and Justice Elizabeth Walker – be impeached “for maladministration, corruption, incompetency, neglect of duty, and certain high crimes and misdemeanors.”

Justice Loughry is under indictment, based upon claimed travel expenses he wasn’t due, plus taking a historic desk and putting it in his home office. Continue reading →

So what if she’s a lying liar when she’s her lying liar.

Omarosa Manigault Newman, the reality show villain who campaigned for Donald Trump and followed him into the White House, is an amoral, dishonest, mercenary grifter. This makes her just like most people in Trump’s orbit. What separates her from them is that she might be capable of a sliver of shame.

What separates Goldberg’s willingness to invite Omarosa to her sleepover party is that the target of her vitriol is Trump. Continue reading →

When law and philosophy prof Brian Leiter revealed academic and feminist superstar Judith Butler’s disgraceful and flagrantly hypocritical letter defending her sister superstar, NYU prof Avital Ronell, I was ready to pull the trigger. I have a post, dated June 13, 2018, fully written, but never published. I knew something Leiter didn’t.

At the time the Butler letter was sent around for signatures, threatening NYU with the wrath of scholars if Ronell wasn’t exonerated, the university had already found Ronell responsible. The only remaining question was what to do about it, one of the university’s brightest academic lights had sexually harassed a gay male student under her care.

This wasn’t one of the faux Title IX cases of post-hoc regret, but the real deal. Ronell was grad student Nimrod Reitman’s doctoral adviser. He came to NYU because of her, to study under her. And from the start of his graduate studies, she turned him into her boy toy upon the implicit threat of destroying his career. And it continued throughout his graduate studies, as proven by Ronell’s emails. Continue reading →

It was a year since the march of the Naxos, tiki torches in hand. The media geared up for it. The cops put on their finest riot gear. The Antifa wore their blackest blacks and the protesters were worked up into a lather.

And then . . .

It was supposed to be the start of another show of force by white nationalists: Unite the Right 2, the follow-up to last year’s disastrous and violent demonstrations in Charlottesville, Virginia, which concluded with a Nazi sympathizer ramming his car into a crowd of counterprotesters, injuring several and killing one.

But Dan, who said he was a supporter of “peaceful” ethnic cleansing, was the only white nationalist to be seen at the march’s starting point, the Foggy Bottom metro station. Continue reading →

Nebraska hasn’t executed anyone in 21 years, but the people of Nebraska are jonesing for a kill and Carey Dean Moore* looks to be the one to do it. Unlike the fiasco in Tennessee with Billy Ray Irick’s torture by midazolam, Nebraska will use the dreaded opioid, fentanyl.

A federal judge on Friday rejected a drug company’s request to block Nebraska from using what the company believes are its products in an execution next week, clearing the way for the state to carry out its first lethal injection and the country’s first execution using the powerful opioid fentanyl.

The German drug company, Fresenius Kabi, contends that it must have manufactured the fentanyl Nebraska intends to use, and that Nebraska must possess it unlawfully since it refuses to sell the drug for the purpose of executions and includes restrictions on the use of its drug when it’s sold. It doesn’t want the drug it manufactures to be used for that purpose. It doesn’t want to be known as the company that provides drugs to kill.  Continue reading →

Yesterday, Chris Seaton sent me a link to a 1993 clip from the David Letterman show of a comedian, Bill Hicks, doing his shtick. It was shocking, to say the least, to see how much comedy has changed, how the range of acceptability has narrowed over the years. Then, Hicks’ comedy routine was suitable for television. Today, he would be drawn and quartered for it.

A few days ago, I wrote about a post that appeared in the renamed Harvard Fair Punishment Project blog, The Appeal. It was about a serious problem in criminal law, the use of the rap sheet, or if no sheet, whatever was available, to smear the victim of violence as being unworthy of concern. Except instead of focusing on the problem, it was a jargonized polemic about “white-approved notions of innocence and respectability.”

It didn’t just reduce a systemic problem to a racial problem, but pitted black against white, blaming the latter. Not only was this a grossly unproductive way to approach a very real problem, but it was irrational and false, with a heavy dose of “I dare you to disagree, since that makes you a racist, you racist.” Continue reading →

It hardly seemed like much of a stretch for some lunatic on the right to take Trump’s constant chant of “fake news” and “enemy of the people” to heart, and act upon it. It’s not just the believers gonna believe, but that it’s assumed that anyone tied to the alt-right was at an intellectual deficit to begin with, and would need only the tiniest of pushes to go over the edge.

Violence? Any moment now. Then boom, there is was.

Antifa Protesters Attack NBC Reporter @CalNBC & The Entire Camera Crew In Charlottesville, VA pic.twitter.com/LYgiCFm64o

— Breaking911 (@Breaking911) August 12, 2018

Continue reading →