Of all the people to protest, it was Josh Blackman. Of all the law schools, it was CUNY. It’s not Harvard, where the elite students can afford their childish indulgences before they set off on the great adventure of Biglaw bonuses. You see, CUNY has branded itself a “public interest” law school, which is the nice way of saying they aren’t the best and brightest, and won’t have jobs when they graduate. The slogan, “students who couldn’t get admitted anywhere else” isn’t a great marketing tool.

This isn’t to say that the lawyers they produce won’t be good lawyers, even excellent lawyers. It doesn’t take genius to be a good lawyer, but hard work and dedication. There is absolutely no reason why CUNY law students couldn’t excel. But for themselves.

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When the constitutionality of a law is challenged, the most critical factor is the test used by the court in deciding whether it passes scrutiny. If it’s strict scrutiny, the law almost always gets crushed. But then, strict scrutiny is reserved for laws that implicate fundamental rights, which are fundamental because the Supremes say they are.

And the others?

Last week the Illinois Supreme Court upheld a state law banning sex offenders from public parks, overturning a 2017 appeals court ruling that deemed the statute “unconstitutional on its face because it bears no reasonable relationship to protecting the public.” The seven members of the higher court unanimously disagreed, saying, “We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state.” Continue reading →

In the quiet, secret world of people who call themselves legal scholars and public intellectuals, a discussion was had: Is it time to end the misery? Carissa Hessick defends the zombies.

One criticism of law review articles that they are too long.  If you can’t make your argument in 25 pages, so the argument goes, you should simply write a book instead.  I disagree.  I can think of plenty of arguments that cannot be fully supported and defended in only 25 pages.

But then, there are plenty of law review articles that could make their extremely limited point in ten pages, if you cut out the “appreciation” footnote. Assuming the law review article is worthy of publication at all, rather than fodder to fill the empty pages of the multitude of journals every law school produces to give the kids something to put on their resume, most would be more than sufficient at ten pages to state and support their position.  Continue reading →

Mark Zuckerberg sat alone at a table in one of the most massive Senate joint committee hearings ever, with 44 senators, nearly half the Senate, in attendance so as not to miss the opportunity to speechify for the cameras. The senators understood one thing: the internet is bigger and more powerful than they are, and there was no way they were going to pass up the opportunity to create a record about how they’re going to protect the children.

My first joke was that Zuck’s entrance into the chamber brought the average age of the room down by 58 years. Cute, if hyperbolic, right? But what wasn’t an exaggeration was that Zuck showed up wearing a blue suit, a white shirt, a lavender tie, like a normie. He dressed respectfully, which means he didn’t have the guts to wear a Def Leppard tee. What a coward.

Even worse, he behaved himself. He listened to the 44 speechify, threaten, ask insipid questions (how many Nevadans had their data breached? Are you kidding?), and he responded. No snark. No ridicule. He played it straight. It was disgusting. Continue reading →

Donald Trump twitted “Attorney-client privilege is dead.” It was no less inane than any other Trump twit, but buried within the typically ignorant grasp of law is a matter of grave concern for lawyers and clients. The search of his lawyer’s office fell within the long-recognized crime/fraud exception, but the cheering and jeering of the groundlings should be disturbing.

Never before has the sanctity of the attorney/client privilege been so thrillingly dismissed. Even if, as is almost assuredly the case, there was exceptionally good cause to breach the privilege, it should never be taken lightly. It should never be treated as a facile resort, founded on mere probable cause.

Does Michael Cohen have other clients? What of their privilege? Does Cohen have privileged communications of his prime client that have no bearing on the evidence for which the warrants were issued? These privileged communications may well be seen as the feds parse Cohen’s papers, computers, for what they’re authorized to search for by the warrant. They may get what they came for, but they will get a whole lot more in the process. What if it’s not Trump that comes into plain view, but someone else? What if that someone else is you? Oops. Continue reading →

Ellery Dake graduated from Stanford in 2014, but whatever demons she possessed as an undergraduate have never left her. And she apparently has many demons, all of which were awakened by her #MeToo moment. And eight years later, she demands “alumni justice.”

While Ellery Dake ’14 was a Stanford undergraduate, another student — then a member of the football team — allegedly raped her. Nearly eight years later, this January, Dake began pursuing punitive action against him through Stanford’s Title IX Office.

The lede is somewhat misleading. Apparently Dake was raped with some regularity, and this is but one of them. And before she sought “punitive action” against a guy eight years later, after both had taken their diplomas and moved on, she engaged in “self help” by writing letters, as her feelings compelled her to do as her demons demanded. Continue reading →

When news broke that a warrant issued out of the Southern District of New York for multiple raids on Michael Cohen, Donald Trump’s lawyer and, as some newspapers add, “fixer,” as if that’s not redundant, there was only one thing clear: this was going to be a big deal.

No, not a big deal as in the equivalent of a judge issuing a warrant to allow a cop to take pictures of a teenager’s erect penis. Nor a big deal as in an unarmed black man shot to death. Those are substantive “big deals,” as in they are real. This was a perceived “big deal,” as in millions of people lose their minds over every burp and fart by, for or to this president. And the SDNY case was “referred” by Special Counsel Robert Mueller.

So this was a big deal, if you define that by the talking heads on cable TV discussing nothing else, and nothing they know anything about. because millions of people will watch, eat up every morsel of mindless and mindful speculation, believe in the most vague and meaningless weasel assertions without once stopping to ask, “wait, exactly how long is ‘many, many, many weeks,” because some WaPo reporter says that based on her experience, this “must have” been in the works for that long to put together such a complicated raid. None of this, by the way, is necessarily true, but it can be, or not, if she actually said anything substantive. Continue reading →

It wasn’t long after the Supreme Court’s decision in Citizens United that serious, if not hysterical, concerns were raised about corporations expending huge sums of money to buy state court judges. With some exceptions, it didn’t come to pass. Given the way state courts work, it wasn’t a solid investment.*

But times change, and the Least Dangerous Branch succumbed to the screeches of politicization that permeated people’s perception of everything.

Last week in Wisconsin, an election for an open seat on the State Supreme Court was so bitterly contested that voters were barraged with more than $2.6 million in television and radio ads. Most of the money was spent by partisan outside groups attacking the candidates, who were nominally nonpartisan, for past decisions in criminal cases.

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Whenever the push is on for private platforms to censor their environment, someone will raise the issue of free speech, and someone else will respond that the First Amendment only applies to government. Of course, that’s correct, and every private company, be it Facebook, Youtube or Twitter, can choose to censor its platform as it sees fit.

But as Jesse Walker argues, as legally accurate as that may be, it’s not the full story.

When YouTube, Facebook or Twitter cracks down on some form of expression — conspiracy theories, radical rants, terrorist propaganda — some of the targets inevitably complain that their freedom of speech is under attack. (This feeling of victimhood may be what sent Nasim Aghdam to YouTube headquarters, gun in hand.) There is a strong retort to this: These are private platforms with a right to decide what they publish. It is no more a violation of the 1st Amendment for YouTube to muzzle a channel it finds offensive than it is for this newspaper to refuse to run a column calling for Minnesota to invade Wisconsin. Continue reading →

Is there any group of academics friendlier than philosophers?

In February, a group of philosophers, including me, submitted an amicus curiae brief to the New York Court of Appeals in support of legal personhood for Kiko and Tommy. (Members of the group contributed to this article as well.) The court is considering whether to allow the case to proceed.

Kiko? Tommy? They’re philosophers’ friends too. Continue reading →