Within the guild, disagreeing with judicial decisions is a staple of our existence. We dispute them in motions, briefs, memoranda and, occasionally, on a blawg. Rarely, however, is a judge attacked for being disingenuous in the motivations leading to the decision. Sure, there is pro-police bias. Sure, there is anti-minority bias, explicit or implicit. But rarely the rank politicization of the judiciary.

Until now. Mark DeGirolami has written an op-ed for the Weekly Standard claiming that the blight of “fake news” has now reached the bench, coining a new usage: Fake Law.

Something ugly is happening to the First Amendment. It is being contorted to enable judges to protest Donald Trump’s presidency. The perennial impulse of judges to manipulate the law to achieve morally and politically desirable ends has only been exacerbated by the felt necessity to “resist” Trump. The result: Legal tests concerning the freedoms of speech and religion that in some cases were already highly dubious are being further deformed and twisted.

Welcome to the rise of fake law.

DeGirolami extends the fake news phenomenon from the spin fed us by self-righteous journalists to make sure that our news sources lead inexorably to the “right” conclusions to the motivations of judges. Continue reading →

To argue, as so many are apt to do, over the latest edition of the Repeal and Replace law is pointless at this stage. The Senate has yet to deal with it, and the pointlessly rushed House bill takes a bad law, Obamacare, and makes it far worse. How it will end up remains a sufficiently long way off as to make it a pointless discussion at this time. It’s bad policy.

But one aspect, coverage of pre-existing conditions, is at the core of the debate over whatever eventually is enacted, and it’s game on for the battle over the saddest stories designed to persuade the nation that people who suffer from pre-existing conditions can’t be left out. There are two thrusts to this argument*, the first being that everyone has or will have a pre-existing condition at some point, the purpose of which is to make this an issue that touches each of our lives so that we see the personal benefit in supporting coverage.

The second is that those who suffer pre-existing conditions aren’t bad people, didn’t do something to deserve it such that their problems are unworthy of our concern and the basic appeal to emotion, the sad stories of those who will be hurt. And indeed, the stories can be very sad.

When my child was first diagnosed, I struggled with uncharacteristic rage. I felt as if other families were enclosed in a smug bubble, spared the understanding that misfortune can be random and inexplicable. Over the years, I have learned that anger was sadly misplaced. I have watched tragedy touch too many. Schadenfreude is no remedy. Continue reading →

Ed. Note: The following post was written last week and, in a moment of weakness, submitted to the New York Times as an op-ed. Yesterday, it was politely declined. 

As Adriene Holder, the Attorney-in-Charge of the Legal Aid Society’s civil practice, said, “Mayor de Blasio is not the court, judge and jury.” Where does he come off deciding that there are 170 offenses that he deems too evil, too icky, too unworthy, for a piece of the $16 million he has set aside in his budget to provide free lawyers for immigrants facing deportation?

These immigrants may not the same ones you’re hearing about, as they aren’t necessarily undocumented. These may be completely lawful immigrants, well-documented, here since they were six months old. They may have families and businesses. They may pay taxes and hold green cards, allowing them to work like anyone else. They aren’t the illegals Trump wants to rid from our midst.

And yet, they aren’t worthy of Bill de Blasio’s largesse. As commissioner of the Mayor’s Office of Immigrant Affairs, Nisha Agarwal, spun it: Continue reading →

The basic concept is that there are three competing interests, three legs of the stool, if you will. Security. Liberty. Equality. The problem, as with any stool, is keeping the three legs in balance. If one is longer, or shorter, the stool tilts and you fall off.  The three legs are rarely of the same length, as the moment’s influences make on concern prevail over the others. Today is no exception.

The genesis of this platitudinous twit is the anticipated religious Executive Order, feared to destroy everything from gay rights to the ozone layer. As it has yet to be released, the fears might be a bit overblown. It even has its own hashtag, #LicenseToDiscriminate, so that people prone to anticipatory freaking out have a place to call home. Continue reading →

While the criminal law ecosystem is somewhat fragile, the players managed to live together. We didn’t necessarily get along all the time, but we realized that we were all necessary parts of the system. Begrudgingly, perhaps, we admitted that each of us was necessary to make the system work. Even the most vicious of prosecutors, cops, understood that the defense had to exist.

This is why the indictment of New Orleans Public Defenders investigator Taryn Blume is so shocking. And dangerous.

“One Taryn Blume late of the parish of Orleans, between the first day of January in the year of our Lord, two thousand and fourteen, and the first day of April in the year of our lord, two thousand and fourteen in the parish of Orleans, did impersonate a peace officer or assumed, without authority, any uniform or badge by which a peace officer is lawfully distinguished …” the indictment read.

“I had no idea why or what that meant,” Blume, now 26, told the Guardian.

Continue reading →

It’s far short of a backlash to the legitimization of advocacy journalism, but at least some are beginning to question whether it’s a good idea for media that purports to be neutral to be flagrantly partisan. That people have lost faith in media may have something to do with it, although those people aren’t the people media cares about. They’re not their kind of people.

At Slate Star Codex, Scott Alexander takes a long and prolix scalpel to Vox’s David Robert’s post, Donald Trump and the rise of tribal epistemology. Don’t blame me, I didn’t write the headline. But the subtitle says more:

Journalism cannot be neutral toward a threat to the conditions that make it possible.

When you start out with sophistry like that, where can you possibly go? Continue reading →

Despite what some might believe, it’s worth the effort to try to understand what people are talking about when they use words like “intersectional,” if for no other reason than to clean out those excess brain cells. Would it not be unfair to be judgmental without giving them a chance to make their case?

We use the term in many vague ways. “We really need to be sure our work is intersectional…We need to be more intersectional in how we talk about student identities…Our teaching strategies must be intersectional and culturally responsive.” I don’t use “we” in the royal sense. This is something I do all the time without thinking critically about my meaning.

But what the hell are we even saying when we use the term?

I ask that question a lot. But it appears that no matter what the answer may be, it may still not be good enough to avoid the rebuke, if you’re lucky, or the death penalty, if you’re not, of not being correct enough. Continue reading →

The headline was, at best, misleading.

Sent to Prison by a Software Program’s Secret Algorithms

Eric Loomis wasn’t sent to prison by a software program. And he wasn’t sent to prison by a program’s secret algorithms. He was sentenced to prison by a judge, just like anyone else sent to prison. Never forget that. But the length of time for which he was sent to prison was influenced by a program and its secret sauce.

The report in Mr. Loomis’s case was produced by a product called Compas, sold by Northpointe Inc. It included a series of bar charts that assessed the risk that Mr. Loomis would commit more crimes.

The Compas report, a prosecutor told the trial judge, showed “a high risk of violence, high risk of recidivism, high pretrial risk.” The judge agreed, telling Mr. Loomis that “you’re identified, through the Compas assessment, as an individual who is a high risk to the community.”

Continue reading →

His family’s lawyer, Lee Merritt, summed it up.

They have a dead child, they have the identity of the shooter, and they have no explanation for the shooting.

A 15-year-old boy, leaving a party that had gotten out of hand, is dead. They couldn’t find a bad thing to say about him, an excuse, a story, a lie, to turn this great kid into someone less than worthy of our concern. By all accounts, he was just a great young man.

Jordan, a popular football player, was killed shortly after leaving a party with a group of friends on Saturday night.

The cops responded to a 911 call about drunken kids at a party, and the story is that they heard gunfire from an “unknown altercation.” That’s about as close as it will get to explaining why one officer was so filled with fear and loathing that it was more important that he fire blindly than risk any chance that a bullet might strike him.  Continue reading →

The Associated Press’ story is chilling and horrible.

Chaz Wing was 12 when they came after him. The classmates who tormented him were children, too, entering the age of pimples and cracking voices.

Eventually, he swore under oath, the boys raped him and left him bleeding, the culmination of a year of harassment. Though Chaz repeatedly told teachers and administrators about insults and physical attacks, he didn’t report being sexually assaulted until a year later, launching a long legal fight over whether his school had done enough to protect him.

That a 12-year-old could be anally raped three times in a public school, and nothing is done about it, is an outrage. According to the story, this is a huge problem.

Relying on state education records, supplemented by federal crime data, a yearlong investigation by The Associated Press uncovered roughly 17,000 official reports of sex assaults by students over a four-year period, from fall 2011 to spring 2015.

Continue reading →