Out of the blue, Seventh Circuit Judge Richard Posner announced he was quitting the bench to spend his waning years reading hand-written pro se habes crying for the denial of doooo process and the peculiar flavor of Nutraloaf. Joltin’ Joe has left and gone away.

Chicago lawprof Eric Posner turns out to be a chip off the very old block.

Twitter works on the same principle. When you send out a tweet, the reward is variable. Depending on the number of followers you have, your tweet will normally not be retweeted or retweeted only occasionally. From time to time, you will hit the jackpot—a media personality (or his or her factotum) retweets it to thousands of followers, generating a cascade of retweets and likes. At other times, you receive a small reward of a few or dozens of retweets or likes. I suspect the power curve strongly resembles the slot-machine version.

And with that harsh analogy, Eric Posner quit twitter. Continue reading →

Time for another Tuesday Talk, where the rules are trashed and you get to scream at the top of your lungs from atop my soapbox. Today’s subject is this editorial from the Oregon Mail Tribune on less-than-unanimous verdicts in criminal trials.

Today, in 2017, Oregon is one of only two states that allow criminal defendants to be convicted with a less-than-unanimous jury verdict. The other is Louisiana.

Why does it matter whether all 12 jurors in a felony case vote to convict, or only 10 of 12?

For starters, a unanimous jury verdict has been presumed to be the standard for criminal conviction since before the U.S. Constitution was written. The Sixth Amendment guarantees the right to a trial by jury, although it does not mention a unanimous verdict. But the Supreme Court has held that a unanimous verdict is included in that guarantee — in federal trials. State trials, the court has held, are a different matter, and the court has declined to impose that constitutional requirement on the states based on the equal protection clause of the 14th Amendment, although it has done so for other rights guaranteed in the U.S. Constitution, including the Second Amendment right to keep and bear arms.

A terrible idea, even if left to states to decide for themselves whether they wish to adopt the federal unanimity requirement? That’s one issue, but the editorial doesn’t stop there, In fact, this is merely the preface to its real point. Continue reading →

I’ve never had strong feelings about now-former Seventh Circuit Judge Richard Posner’s opinions. When I could use them to advance my client’s cause, I did. When I couldn’t, they faded into the mist. But as judges who weren’t on the Supreme Court go, Posner was considered special.

Judge Richard A. Posner, whose restless intellect, withering candor and superhuman output made him among the most provocative figures in American law in the last half-century, recently announced his retirement.

Adam Liptak describes him kindly. Others suggest that he became overripe and started to rot.

“About six months ago,” Judge Posner said, “I awoke from a slumber of 35 years.” He had suddenly realized, he said, that people without lawyers are mistreated by the legal system, and he wanted to do something about it. Continue reading →

Paul Caron notes that University of Pennsylvania law professor Amy Wax won a prestigious award.

In 2015, Professor Wax received the University of Pennsylvania’s Lindback Award for Distinguished Teaching (only three other Penn law professors have received the award in the past twenty years).

On the one hand, this informs us that she must have been a pretty damn good teacher, which isn’t something one necessarily finds among academics. Ironic, sure, but they’re loved for their scholarship far more than their ability to do the job of teaching students.

On the other hand, so what? Had Amy Wax not won this bourgeois distinguished teaching award, would it then be fine that the students of the Penn law school chapter of the National Lawyers Guild wanted to banish her?

While we do not challenge Professor Wax’s right to express her views, we question whether it is appropriate for her to continue to teach a required first-year course. The Penn Law administration has long been aware that her bigoted views inevitably seep into her words and actions in the classroom and in private conversations with students. We call on the administration to consider more deeply the toll that this takes on students, particularly students of color and members of the LGBTQIA community, and to consider whether it is in the best interests of the school and its students for Professor Wax to continue to teach a required first-year class.

Continue reading →

New Jersey, of all places, is leading the nation in the elimination of bail. While bail bondsmen are screaming about how criminals will be released to rape your daughter at night, not that they have a financial horse in the race, and the Attorney General has tweaked the guidance a few times, it turns out that low-level defendants are being cut loose. So it’s working?

This may seem like an unusually technocratic approach to public defense. But it’s not so unusual anymore, at least not in New Jersey, where the state has recently undergone a holistic technological transformation of its arcane court system, all in the service of eliminating the use of bail statewide.

Jersey took the algorithm route, which predicted a defendant’s likelihood of returning to court or committing a new crime on a scale of 1 to 6. The purpose was to end the pre-trial incarceration of indigent defendants for the inability to pay bail.

In 2016, the Department of Justice, under President Obama, also issued a Dear Colleague letter to state and local courts around the country, advising them that courts “must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.”

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Was it Kristallnacht or Citronellanacht?

For those who saw this as proof that 1939 was back, it’s been notably quiet since then, but for the talk about who these preppie-wannabes really are. Having already challenged the epithet “Nazis” as being a ridiculous characterization, and by kismet finding the word “Naxos” instead, I’ve answered the Goldilocks question: is it too harsh, too lenient or just right?

In the New York Times Magazine, Sasha Chapin parses the word choice, though it’s not at all clear why his values should be taken any more seriously than anyone else’s. Continue reading →

High school kids do silly things, both because they’re kids and, well, that’s what one does in high school. So when the seniors at Braintree High decided to teach the juniors a lesson about respecting their elders, the cops decided to teach them a lesson.

Students at Braintree High School learned a hard lesson Friday when the Braintree Police Department wrote $975 in tickets at the senior parking lot.

Police said 65 cars in total were ticketed for parking across white parking lines, instead of within the lines, in a Facebook post on Friday.

“We know it has been so long since you parked in the student lot so here’s a parking lot refresher. You better sit down for it,” police wrote. “Park ‘between’ the white lines. Not across.”

This wasn’t merely poor parking skills, but a bit of senior anarchy. Continue reading →

I was on my way to the New York Giants training camp, a walk-on short, old lawyer for the position of wide-out. After all, I might not have speed, hands or, well, any skills that would commend me for the job, but how many short, old lawyers did they put on the field?

Then again, if the Giants let me suit up, would you watch? Okay, maybe for the highlight film, but after you’ve seen me fail spectacularly once, would the lulz be as good the second time?

Amanda Hess makes a shocking admission.

Some background, if you are not a “Bachelor” superfan like me and the 8.4 million Americans who watched last season’s finale: The show generally chooses its leads from runners-up in the previous season of “The Bachelorette,” finding people that viewers are already invested in and extending their romantic arcs. But lately, the franchise has failed to produce such men.

Continue reading →

Over the past couple of days, there have been a great many deep-dive articles, editorials and op-eds written over the silly little Title IX sexual misconduct problems I’ve been writing about for years. Poor KC Johnson probably has terminal writer’s cramp by now. All are valued academics and pundits, and all are standing atop far larger soapboxes than SJ.

I should be thrilled. After all, misery loves company, But I’m neither miserable nor mind being a lone voice, as I was for years before others hopped aboard.

Jeannie Suk Gersen’s New Yorker article sums up one of the problems that have been taken for granted by so many of those who are speaking out now in support of ending the campus star chambers.

Title IX requires schools that receive federal funds not to discriminate on the basis of sex. The law itself does not mention sexual violence, but its interpretation by courts and by the Education Department since the law’s passage, in 1972, has led to the common understanding that Title IX’s ban on sex discrimination requires schools to address sexual violence among students.

Continue reading →

They don’t think of themselves as rich, as they’re not quite the One Percenters, the mega-wealthy who own private planes and 300-foot-long yachts. But they don’t miss any meals.

My interviewees never talked about themselves as “rich” or “upper class,” often preferring terms like “comfortable” or “fortunate.” Some even identified as “middle class” or “in the middle,” typically comparing themselves with the super-wealthy, who are especially prominent in New York City, rather than to those with less.

When I used the word “affluent” in an email to a stay-at-home mom with a $2.5 million household income, a house in the Hamptons and a child in private school, she almost canceled the interview, she told me later. Real affluence, she said, belonged to her friends who traveled on a private plane.

These are the deeply-progressive, socially-conscious, Democratic-voting working class. And their empathy cannot be understated. Continue reading →