For the non-lawyers, moot court is where law students argue appeals as if they were real lawyers. All law students are required to do a moot court argument,* and thereafter they can be invited to join teams which compete against other schools.

For years, I judged moot court competitions, and loved it. Law schools invite real judges and lawyers to be the moot court judges, and the job is to question counsel during argument, score them and, after, critique their effort. For years, it was not only fun, but an excellent opportunity to watch some great, and occasionally some awful, law students at work. Most were quite good, and it gave us faith that the profession would survive.

But times changed, and with them, the nature of argumentation by students. I still get invited to judge a few times a year, but I politely decline. The last time I judged, we were prepped by the lawprof running the competition about what we were allowed to ask during argument and say during critique so as not to hurt the little darlings’ feelings. Continue reading →

Having just passed the 55th anniversary of the Supreme Court’s decision in Gideon v. Wainwright, holding that an indigent defendant is denied his fundamental right to a fair trial without assistance of counsel, Georgetown lawprof Paul Butler has revisited his 2013 Yale Law Review article on Gideon.

Have we failed indigent defendants by our societal refusal to adequately fund indigent defense? Nah, that’s not his problem at all.

A low income person is more likely to be prosecuted and imprisoned post-Gideon than pre-Gideon. Poor people lose in American criminal justice not because they have ineffective lawyers but because they are selectively targeted by police, prosecutors, and law makers. The critique of rights suggests that rights are indeterminate and regressive. Gideon demonstrates this critique: it has not improved the situation of most poor people, and in some ways has worsened their plight. Gideon provides a degree of legitimacy for the status quo. Even full enforcement of Gideon would not significantly improve the loser status of low-income people in American criminal justice.

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The announcement of the Knight Columbia First Amendment Institute was encouraging, even if its first foray into the courts seemed a bit petty. Enough so that I expressed an interest in being involved, which was summarily ignored by Jameel Jaffer. Fair enough, though it would have been nice if he replied.

In any event, when the word came out that Knight/Columbia was holding a First Amendment symposium, that sounded interesting, and indeed it was, but not in the way I would have expected. The title was curious:

A First Amendment for All? Free Expression in an Age of Inequality

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It’s definitely a problem in cities, as you try to walk down the street only to have some jerk walk into you because his eyes are laser-focused on his iToy and he’s got absolutely no clue what’s happening around him and can’t bring himself to care. It’s likely a problem everywhere, as the problem occurs wherever people can’t manage to walk without staring at their phone.

And then there’s the schadenfreude that occurs when they walk into a wall or sign post, which can be very damaging and painful, even if caused by their own inability to get their head out of their…phone. But is making texting while walking a crime the way to fix it?

Officials in Montclair, in Southern California, decided that their 39,000 residents needed a heads-up — literally. There were accidents that resulted in part from pedestrians burying their noses in smartphones with their minds miles away. Something had to be done about these “cellphone zombies,” Edward Starr, the city manager, said. So Montclair made it illegalto cross streets while on a phone, texting or listening to music with buds in both ears. Fines of $100, and as much as $500 for repeat offenses, will go into effect in August.

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Spend time in the trenches and you get to know a lot of black and Hispanic kids very well. You take responsibility for their lives, and in the course of being their lawyer, you talk. You learn about them, their lives, their families. You learn about their education, their problems, their world. It’s not quite a representative sampling, since the people you get to know best have the common thread of being arrested and prosecuted, but you get close to a great many.

Unlike public defenders, private criminal defense lawyers get to spend far more time with their clients, and accordingly get to know them far better as people. We get to know their spouses, kids, parents and friends. These aren’t destitute people, but generally people who have sufficient funds to retain our services, so they aren’t exactly poor.

And one perpetual realization* has been that, had they not been black, not been Hispanic, they could be the CEO of a multinational corporation. You think it’s easy to create an organization where your competitors want to take away your market share with extreme prejudice? And beyond the competition, the 3-4 Precinct regulates your business with guns? Yet, they do. Some of these guys are quite brilliant, incredible organizers motivators and business people. So why aren’t they ruling the world? Continue reading →

If you’ve ever had the sense that no one takes note of what you put out on social media, maybe that you’re not quite as fascinating as you believe you are, there’s hope. At least if you’re a college student.

Campus Safety Magazine reports that the University of Virginia contracts with a service called Social Sentinel for $18,500 a year to monitor its students’ public social media posts. It works by scanning student social media accounts based on a “library of harm” of thousands of words curated by Social Sentinel in addition to words tailored to the specific school contracting with them. Posts from students containing words on these lists are forwarded to the police, who then decide whether or not to investigate the students.

Unless the school has a major donor with the last name “harm,” this is a bit disturbing. It likely surprises no one that there is a list of forbidden words, or that someone has created an algorithm to search students’ social media accounts for their appearance. That schools are doing so is Big Brother enough; but that they forward students’ posts to the police should they contain a verboten word reduces it to an entirely new depth of problems. Continue reading →

At Volokh Conspiracy, Ilya Somin concludes with a statement that should be so obvious as to not need to be said, but it does.

Ultimately, we should try, as much as possible, to base government policy on reason and evidence. That means resisting calls to give special credence to the views of the young and crime victims, except in the rare instances where they really are likely to have valuable insights on policy. Indeed, it pays to be skeptical of all emotional appeals that are more likely to short-circuit our judgment than improve it.

But appeals to emotion have become the advocates’ stock in trade. It’s de rigueur to begin an article with an anecdote, not as an example but to evoke an emotional response that compels the reader to feel that something must be done. And when it comes to bringing a sad tear to our eyes, no one does it better than children. Continue reading →

Everyone knows that the Supreme Court is the ultimate arbiter of constitutionality, because it says so, right? Right?!? Badass lawprof Josh Blackman raises an intriguing argument that maybe this is one of those things that all lawyers know even though it may not be the case.

Despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States operates like any other court. While its judgments bind the parties before the Court, its precedents are not self-executing for non-parties. The distinction between the Supreme Court’s judgment and precedent is often conflated due to Cooper v. Aaron. This 1958 decision, spurred by the desegregation crisis in Little Rock, forged two crucial concepts. First, the Justices announced the doctrine that came to be known as judicial supremacy: a simple majority of the Supreme Court could now declare, with finality, the “supreme law of the Land.”

Second, Cooper asserted a principle this article calls judicial universality: the Supreme Court’s constitutional interpretations obligate not only the parties in a given case, but also other parties in similar cases. These unprecedented assertions of judicial power were, and remain, entirely inconsistent with how all courts, including the Supreme Court, operate. They cannot be supported as constitutional rules, but only as mere cultural norms.

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Margaret Atwood takes up shelves in bookstores, to the extent actual bookstores still exist, because her writing and thinking captured a generation of serious thought. Not that it helped her from being reduced to a cardboard cutout when someone unworthy decided to debate her bad feminism.

Not quite the Thrilla in Manila, but then, Atwood’s image on the poster belied the fact that she wouldn’t be there. This was Julie Rak, whoever she is, fighting a caricature.  Continue reading →

One step ahead of the United States, where the American Bar Association approved Model Rule 8.4(g) to require lawyers to adhere to social justice orthodoxy or be deemed unethical, the Law Society of Upper Canada demanded lawyers swear an oath to “promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public.”

In the National Post, Christine Blatchford noted how law schools took up arms in furtherance of the cause.

[Adam Dodek, the dean of the common law faculty at the University of Ottawa] said, in part, “We recognize that the legal institutions of this country have not only failed to deliver justice to Indigenous peoples of this country but have in fact continued to perpetrate many injustices. We acknowledge that racism still very much exists in our justice system. Continue reading →