Seth Godin offers a lot of idea in his role as marketing philosopher, and most offer some germ of wisdom that has the potential to be applied in all walks of life, law included.  Sometimes, however, he comes up with a really boneheaded notion, like this:

Self sufficiency appears to be a worthy goal, but it’s now impossible if you want to actually get anything done.

All our productivity, leverage and insight comes from being part of a community, not apart from it.

The goal, I think, is to figure out how to become more dependent, not less.

Is “autarky” dead, as Godin contends?  Or more to the point, should it be our goal to become more dependent? 

The reason this strikes so close to home is that it’s happening at an alarming rate, that people (and I include lawyers in that group) need for others has grown to co-dependency levels, whether for answers to questions that people could answer for themselves if they exerted minor effort or, worse still, validation from any source available. 

The problem is that many justify their behavior by saying they just enjoy the camaraderie and the ease of getting a little help from their friends.  What’s the problem?  What’s so wrong with being co-dependent?   The problem is that people can’t manage for themselves.  Pull away the security blanket and they crumble.  They need others, just as Godin urges they should, but they can’t manage without them anymore.

The group, or tribe as Godin prefers to call it, is the greatest machine ever made to achieve mediocrity.  For many, that’s a step up from where they would be on their own.  What a sad commentary on people, but the truth is that they aren’t willing to work too hard, think too much, expend a whole lot of energy to do better.  So dependency turns out to be a positive way of life for those who would otherwise firmly hang on to the bottom rung of the ladder.

Others, however, will work hard, think harder and expend whatever energy is needed to accomplish their goals.  They not only don’t they embrace group, but avoid the group’s pressure for conformity.  The group doesn’t want anybody to bust the curve, making the rest of them look bad.  The group can’t tolerate a new, vibrant idea because all ideas must measure up to the lowest common denominator to obtain approval.  This is what dependency brings you.

This isn’t to say that we don’t help each other, cooperate, leverage our own abilities by those of others.  A self-reliant person enjoys the benefits of others when available, and others enjoy the benefits of the self-reliant person in return.  We use each other’s knowledge, experience, contacts, insight to the extent it helps. 

The key, however, is that when the self-reliant individual differs from groupthink, he goes down the path of his own choosing.  He doesn’t sublimate his own ideas to the group, nor does he blame the group when he makes the wrong move.  He assumes responsibility and takes it.

Given the “tribes” that have and continue to form all around us, in the blawgosphere, on twitter or Facebook, maybe LinkedIn or at your office or school, it’s all too easy to wrap oneself up in dependency, slough off personal responsibility and defer to the tribe.  This gives rise to the age of neediness, our willingness to shed our own thoughts, ideas, initiative so that we don’t disrupt the happiness of the tribe.  The ease and validation we receive in return is worth our giving away our independent thought and judgment.

Independent people won’t care what Seth Godin says, which is part of the irony of his push toward the need for dependence.   Codependent people won’t care either, as there was never any chance they would function on their own.  But there remains a group on the cusp of independence who aren’t sure if it’s worth it to work hard, think hard and expend the effort to be an individual.  This group enjoys the warmth of the crowd and seeks its approval, but still has that nagging feeling that they could do better, do more.

Godin’s advice makes perfect sense if you’re sheep, bees, lemmings, and that portion of people who can’t think or function on their own.  It’s not so good for lawyers.  What we do demands the ability to think on our feet, without the approval or advice of the tribe to bolster our insecurities and need for validation. We need to be able to disagree with others when we disagree with them. We need to be capable of providing sound, independent thought.  We need to rise above mediocrity.  This can’t be accomplished while looking around for the warmth of the tribe’s approval.

Enjoy the benefits of the group to the extent it’s actually beneficial, but if you can’t break away from seduction of dependency and exercise independent thought and responsibility, then you’re in trouble.  If you don’t have it in you to tell the tribe to get lost, then you can’t be a lawyer.

Chief Judge of the General District Court in Loudoun, Virginia, Dean S. Worcester, took a stand and raised a ruckus.  From the Washington Post :

In Loudoun County, Chief General District Court Judge Dean S. Worcester ruled last week that he would defy the Virginia Supreme Court because the justices were simply wrong.

The decision stems from a state high court ruling last month that said judges in Virginia may not use an obscure writ to reopen cases of immigrants who weren’t told that a criminal conviction could lead to their deportation.

Hooray!  We love it when a judge shows the guts of his convictions and stares down bad precedent, refusing to become a slave to law he knows to be wrong.  Woo hoo!!!

But wait a sec.  We think this decision is wonderful because we favor the outcome, that defendants who were not informed of the collateral immigration consequences of a conviction should be allowed to make a fully informed decision.  We applaud Judge Worcester’s refusal to adhere to precedent because we don’t like the precedent.  It’s wrong, we say. Wrong, wrong, wrong.

But wrong precedent is a two way street.  What if the Virginia Supreme Court had nailed it, held that defendants whose pleas were less than knowing, voluntary and intelligent, and some trial court judge decided that he didn’t care for the precedent and denied their writ?  Bad judge?  Sure, but is it only because of whose ox is gored? 

Orin Kerr took up this fight over at Volokh Conspiracy.  Not surprisingly, many of his commenters/detractors immediately took the leap of faith toward  Judge Clyde Roger Vinson’s decision holding President Obama’s healthcare reforms unconstitutional.  Others asked less politically charged questions, but made the same point, what’s a judge to do when faced with precedent he believes to be bad law?

Orin answers :

Orin Kerr says:

Dave H asks a hypo:

You are a lower court judge, and your superior court hands down a ruling that explicitly orders a private citizen to allow a solider to be quartered in his house in a manner that was explicitly not prescribed by law. It is left to you to enforce this. What do you do?

I think there are two lawful options: Follow the precedent or resign from the bench. As for which lawful option I pick in this hypo, you have not provided me with enough information to make that decision.

Quibbles with the hypo aside, Orin argues that the only “lawful” options available are comply or quit.  Some others offer snarky options, like never decide or find some dubious fact and twist a decision out of it to reach the desired outcome, but these really don’t address the problem.

I can’t agree with Orin’s contention that the choices are limited to slavish adherence to precedent or the bread line.  Not that I don’t understand both the law’s reliance on precedent and its underpinnings, and how this reliance can work for or against a position with equal impropriety. 

Rather, I don’t view the judge’s function as so ministerial that it’s inherently limited to the rote application of precedent.  If that were so, the law would never evolve.  There are some who believe it shouldn’t, though I’m unaware of anyone who’s pining for the return of Dred Scott. 

This isn’t a matter of judicial activism, per se, as its not in support of judges usurping the legislative function, but rather taking the risk of reversal and ruling as they believe to be the proper interpretation of law despite precedent to the contrary.  The worst that can happen is they get reversed, which can happen even when rulings are less than principled.

The problem with Orin’s options, apply precedent or quit, is that it precludes a judge from exercising judgment.  Judges are not mere umpires at the ballgame, calling balls and strikes based on a well-delineated zone.  Little in the law is quite that clear, and to the extent that judges are constrained to rule in a way that so significantly offends their view of the law, there must be a means of expressing their decision short of resignation.  Quitting just isn’t a sufficiently meaningful way to make a point, and is too extreme a message to challenge a particular bit of precedent.  There are just too many troubling precedents to quit over all of them.

Indeed, the outcome oriented appellate decisions are no more worthy of principled adherence than outcome oriented lower court decisions.  How many appellate decisions are grounded in utterly nonsensical reasoning, defying reality in the trenches or glaringly omitting obvious arguments that would compel a different conclusion?  And what about the rationales that cause lawyers everywhere to laugh out loud?  We know they’re there, and yet they come from a court entitled to dictate how lower courts rule.  What to do?

It strikes me as fundamentally contrary to the judicial function to demand that a judge comply with precedent that he believes to be unlawful.  It’s not for lack of appreciation of precedent, or respect for appellate authority, but for the ability of a judge at the trial court level to achieve the result he believes to be correct.  To expect judges to do harm in their rulings strikes me as nonsensical, and reduces the judicial function to ministerial.

The upshot is that judges will still adhere to precedent, both because of its force of reason as well as the judge’s lack of such a strong principled disagreement that he essentially begs to be reversed.  That said, there must be some outlet for principled disagreement that doesn’t require a judge to quit in disgust or issue an order that he believes manifestly wrong.

Or do we only want judges who are dedicated followers, because if the independent thinkers all quit, that’s all we’ll have left.

Via Adjunct Law Profs, Mitchell H. Rubinstein posts about a New York Supreme Court decision, Finkel v. Dauber, by Nassau County Supreme Court Justice Randy Sue Marber.  The plaintiff sued for defamation stemming from nasty comments on Facebook.

This action arises out of prurient statements posted by the officers of a Facebook group. The group’s information page shows that its name is “90 Cents Short of a Dollar”, and lists five officers and six members, five of whom are the officers…. The listed purpose of the group is “just for fun” and “inside jokes”.

Ninety Cents Short of a Dollar (hereafter referred to as “Ninety Cents”) is a “secret” Facebook group, which has no public content and does not appear on a Facebook member’s profile. New members must be invited by an administrator, here either of the Defendants… Although Ninety Cents lists only six members or “cents”, ten people are listed as “cents” in the group’s “recent news”.

What this means, “Ninety Cents,” eludes me completely.  Perhaps it’s some inside joke, or a cool reference to some movie favored by people younger than my favorite pair of shoes, but the judge doesn’t break a sweat worrying about it.  The comments, however, I get.

The following explicit material is necessary for analysis (spelling, punctuation and typos are as in original):

ooooh i like this group.

BTW the 11th cent, unbeknownst to many, acquired AIDS while on a cruise to Africa (with another member of the group who shall remain nameless). While in Africa she was seen fucking a horse. NICHTE NICHTE eleventh cent! I mean you know . . . I kinda felt bad for the eleventh cent…but then again I felt WORSE for the horse. … (Leah Herz 1/29/07, 5:04pm)

In regards to the 7th cents comments,,, it was not from an African cruise… it was from sharing needles with different heroin addicts, this led to cross “mojination” which caused the HIV virus… she then persisted to screw a baboon which caused the epidemic to spread.

(Jeff Schwartz 1/29/07, 7:43pm)

I heard that the 11th cent got aids when she hired a male prostitute who came dressed as a sexy fireman. apparantly .. she was lonely, because her friends no longer associated with her. her sexy fireman prostitute was her only company. in addition to acquiring aids, this nameless 11th cent aquired crabs, and syphillis. (Melinda Danowitz, 1/29/07, 8:00 pm) also i heard that the stds (sexually transmitted diseases) she got were os bad that she morfed intot he devil in one of our pictures…oops did i reviel the 11th cent?>

(Michael Dauber, 1/29/07, 8:32 pm)

For those of you reading this, what did you think your children were doing online after you went to sleep and they hid in their bedroom playing on the computer?  They write nasty, often dirty, stuff.  Sometimes about others.  Sometimes about each other.  Sometimes about you, but you will never know it because you aren’t a member of the Ninety Cents group.

One might suspect that a judge, being less than personally involved in the doing of an infantile online tribe proving their maturity by typing nastiness on a screen, would be outraged by the content of these comments.  You would be wrong.

A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil. Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other.

While the posts display an utter lack of taste and propriety, they do not constitute statements of fact. An ordinary reader would not take them literally to conclude that any of these teenagers are having sex with wild or domestic animals or with male prostitutes dressed as firemen. The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact.

Precisely.  The internet is replete with such nonsense, and no doubt will be stuffed full of more as children continue to lay hands on keyboard and confuse vulgarity with maturity.  It’s going to happen because kids are kids, and by definition do foolish things.

Insofar as the Plaintiff’s counsel suggestion that the posts constitute cyber bullying, the Courts of New York do not recognize cyber or internet bullying as a cognizable tort action. A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyber bullying as a cognizable tort action.

While many, particularly the lawprofs, assume the existence of some generic wrong they call “cyberbullying,” and legislatures are prompted by vague public pressure to make bad things on the internet go away, Judge Marber refused to hop on the bandwagon and manufacture a wrong that doesn’t exist. 

On the legal side, no one has yet come up with  a viable definition such that we can even begin an intelligent conversation about the propriety of criminalizing (or tortifying?) cyberbullying.  On the practical side, Judge Marber has called out this “puerile attempts by adolescents” at vulgar humor for what it is.  Of course it’s ugly and nasty, but nobody believes it’s true.

As is invariably the way of civil actions, all parties demanded summary judgment, because all parties naturally believe there is no issue of fact to be tried and the only question, as far as plaintiff’s lawyers are concerned, to be answered by a jury is how much do they get a third of.  Judge Marber answered the question in a clear, crisp, single word.  Dismissed.  Well done.

If junior can’t handle the rough and tumble world of adolescence on the internet, then pull the plug on the WiFi router.  Better still, tell junior to toughen up, that throughout life people will call him mean names when they are angry with him, just as he calls other people mean names (though he’s not going to admit that to you). 

We would all do a lot better for our children to regularly repeat the old saw about sticks and stones, and stop elevating hurt feelings to mythical status worthy of life and death choices.

Two “requests” arrives yesterday, one from a young lawyer and another from a law student, interested in finding an experienced lawyer to guide them in their quest for success.  The law student cold-called, informing me that he had taken crimlaw and wants to be a criminal defense lawyer.  What should he do?

I chose my words carefully: Walk over to the courthouse and sit in a busy courtroom for a day.  Say nothing.  Just listen.  Go back the next day and ask any lawyer who you think won’t bite your head off if you can work for him for nothing, carry his briefcase and fetch his coffee, just to be around a real lawyer doing real lawyer work.  And if you’re truly ambitious, go to the Legal Aid Society and offer yourself for anything, absolutely anything, you can do to help.

He responded, “What’s legal aid?”

I sighed. “Do you know anything about the actual practice of criminal law,” I asked?  He informed me that he didn’t, which was why he was calling me.  I suggested he wasn’t ready yet.  He asked if he could call me back in a month.  I told him no. Maybe a year.

The young lawyer sent me a humorous email, with the subject line “New Lawyer Looking For Free Advice.”

The subject line may already have you mentally working on a post that involves something about Avvo Answers and Slackoisie, but please hear me out.

I’ve been an attorney now for a little more than two years. Until recently, I worked for a small town “general practice” firm (criminal defense, divorce, and a little of whatever we can get). I just went solo, and I’m trying hard to figure out how I should do things now that I’m the one in charge.

I’ve been reading your blog for perhaps more than a year now, though I don’t think I’ve ever left a comment .  I sometime have put fingers to keyboard thinking I’d tell you my opinion, but usually thought it best to keep it to myself. After all, I have a diploma that says I can charge money for my opinions, so why should I give them away for free?

I know you don’t owe us young attorneys anything, but I appreciate your being willing to give your opinions away for free.  Most of the stuff out there is from marketers, law professors, or law students… I’m glad to have your perspective on things.

Most of your posts about my generation address our weaknesses. However, should you ever decide to write a post or two that started off with something like “If I were a new attorney just starting out, I’d…”, I’m sure it would help a few of us new attorneys. I know I’d love to read it.

Weeks passed, and every once in a while Mr. P. would give me a shot and drop me in the hallway, sending my books flying. The other students didn’t know what to think. More weeks passed, and I was steadily adding new weights to the bar. I could sense the power inside my body growing. I could feel it.

Right before Christmas break I was walking to class, and from out of nowhere Mr. Pepperman appeared and gave me a shot in the chest. I laughed and kept going. He said I could look at myself now. I got home and ran to the bathroom and pulled off my shirt. I saw a body, not just the shell that housed my stomach and my heart. My biceps bulged. My chest had definition. I felt strong. It was the first time I can remember having a sense of myself. I had done something and no one could ever take it away. You couldn’t say s–t to me.

Today a man who invited a boy into the weight room to lift would be called a pedophile. Would you be alone in a room with a young boy? I sure as fuck wouldn’t. Projecting her own Oedipus fantasy, some meddling bitch would call the police on me, explaining that any interest with a young boy must be sexual.

Let’s get the obvious out of the way.  Arianna Huffington is better looking than me and has a cool accent.  On the other hand, nobody has to ask me to repeat myself because they didn’t understand what I said the first time around. 

On the plus side, I still use my AOL email address of SHGLaw, seized back in the days when Compuserve was still king, even though most of you techie-kids make fun of me for it.  Where’s the appreciation for my loyalty?

And now, AOL has announced that  it will acquire the Huffington Post for $315 million. 

AOL Inc. disclosed early Monday morning plans to acquire online news website Huffington Post for $315 million, as part of the Internet company’s attempt to turn its business around with a strategy of becoming a top producer of news, entertainment and other digital content.

Huffington Post, a news and analysis website founded in 2005, reached 25 million unique visitors in December, according to comScore. AOL says that a combination of the two sites will reach a total of 117 million unique U.S. visitors.

My heart is broken.  Sure, HuffPo reaches more readers than I do.  But I’ve read their stuff.  Some of it is great, but a lot is total crap written by hack writers who don’t know squat about the subject of their posts.  They will pretty much let any jerk with a keyboard post there, quality be damned. 

If they want digital content, I’ve got digital content.  Lots of it. A ton.  And if I do say so myself, some of it beats the crap out of what HuffPo puts out.  But for the fact that I have to earn a living practicing law, I could spend my free time playing internet savant just like Huffington.  

Arianna Huffington tells how it happened:

I got an email from Tim Armstrong (AOL Chairman and CEO), saying he had something he wanted to discuss with me, and asking when we could meet. We arranged to have lunch at my home in LA later that week. The day before the lunch, Tim emailed and asked if it would be okay if he brought Artie Minson, AOL’s CFO, with him. I told him of course and asked if there was anything they didn’t eat. “I’ll eat anything but mushrooms,” he said.

The next day, he and Artie arrived, and, before the first course was served — with an energy and enthusiasm I’d soon come to know is his default operating position — Tim said he wanted to buy The Huffington Post and put all of AOL’s content under a newly formed Huffington Post Media Group, with me as its president and editor-in-chief.

This doesn’t even make sense.  Why would Arianna ask Armstrong if there was anything “they” didn’t eat when it was Armstrong who invited her for lunch? And what’s wrong with ‘shrooms”?  It’s not like there’s a restaurant out there that offers nothing but dishes predicated on mushroom variations.  Just order something without mushrooms in it, you wuss.

Or maybe it has to do with this:

I flashed back to November 10, 2010. That was the day that I heard Tim speak at the Quadrangle conference in New York. He was part of a panel on “Digital Darwinism,” along with Michael Eisner and Adobe CEO Shantanu Narayen.

Mushrooms and flashbacks have a special meaning to people of a certain age, and Arianna and I both know what she’s talking about here.  Wink, wink, AH.  But did any of you wonder  where that notion of “digital Darwinism” came from?  Note the date, kids.  Almost exactly a year earlier.  And did Eisner send me a bottle of wine?  Nope. Nothing.  Another wuss.

But $315 million dollars, with $300M cash?  Smart deal, after what happened with AOL and Time Warner.  Get your cash up front, and forget about taking taking those Wang Lab warrants off their hands.  They’ll never be in the money.

For this paltry sum, AOL gets content, content and more content.  Is it worth it?  You bet.  AOL needs to do something to bring back the eyeballs that fled when the cool kids realized that it was only geezers like me who still had their name in my email address.  That’s no recipe for future success.

What is, however, is solid, informative, accurate, meaningful content, and I’ve got plenty of it too.  So here’s the deal, you don’t need to name any department after me, or actually put on a management committee.  I’m not all that big on committees anyway, and if I show up for meetings, it’s usually for the donuts anyway.  But I can give you solid stuff, better than most of what passes for fodder over at HuffPo, and a great deal to boot.

For a fraction of what you’re paying Arianna, say like 10% (maybe a bit more), you can class up the joint with the best of Simple Justice.  And I can go with the beard or clean shaven, whichever best fits your image.  No tattoos, but we can always lie and say I’ve got a tweetie bird or a pokemon hidden where the sun don’t shine.  The kids will never know.

Email me, Armstrong.  Let’s do lunch.

In the scheme of criminal justice politics, gender has grown to be a rather persistent problem.  The clash between tacitly favoring women by reducing expectations of evidence while increasing the value of their feelings, and recognizing the politically unpopular notion that they can put a person in prison with no greater proof than mouthing the words, “I said No!”

Ironically, those who push the gender agenda like to wrap themselves up in feminist rhetoric, when the soul of their point is that women are too weak, too emotional, too incapable to fend for themselves.  And those who note the obvious are labeled by the dreaded misogynist epithet.

At Concurring Opinions, University of Miami lawprof Mary Anne Franks goes after a local Georgia lawmaker for doing the unthinkable, calling those who accuse “accusers.”  This is a direct slap in the face of the feminist cult of victimhood, and Franks isn’t going to stand for it.

Georgia state representative Bobby Franklin (R-Marietta) has recently proposed a bill that would require the word “victim” to be replaced with “accuser” in the state’s criminal codes. If this were the whole story, the bill might pose a moderately interesting metaphysical question: aren’t all crime victims merely accusers unless and until a court delivers a conviction?

While the answer to that question is perhaps rather obviously no, that is not the question the bill actually raises: Rep. Franklin doesn’t think that people who claim to have been robbed, assaulted, or defrauded are merely “accusers.” No, those people are still “victims” even before a conviction is handed down, and indeed even if no conviction ever materializes. The bill only applies to certain crimes – namely, rape, stalking, and family violence. That is, the only crimes affected by this bill are those crimes disproportionately committed against women and committed disproportionately by men.

I’ve broken up Franks’ lengthy paragraph (you know how lawprofs write) to make it marginally readable.  While she includes what purports to be a link to the proposed bill in her content, it’s not.   Here is a link to the Georgia bill,  Franks’ link goes to the opposition party’s criticism of the bill.  It must have been an inadvertent mistake, no doubt.

As Franks teaches criminal law, as well as “law and gender,” one might suspect that she would recognize the nuance that there are two independent elements basic to any prosecution, the first being that a crime has been committed, and the second that the defendant committed the crime.  But nope, no room for nuance when it comes to the gentler sex.

What accounts for this exceptional treatment? Neither the bill nor Rep. Franklin himself offers insight into the bill’s logic, and so we are left to speculate. Perhaps Rep. Franklin has fallen victim (or do I mean accuser?) to the unfounded yet persistent belief that false accusations of rape are significantly more common than those of other crimes. The bill provides yet another opportunity for misogynists to rehash hysterical statistics on false rape reports…as well as a host of other anti-feminist canards, such as the claim that feminists don’t believe women ever lie about rape. How wearying it is to have to cover the same ground, over and over: of course people sometimes lie about rape.

She’s quite right that thinking is hard work, and obviously has tired her out, though not sufficiently to prevent her from sticking the word “misogynist” in there, as no righteous feminist rant is permitted without calling their enemies names and impugning their motives in the absence of basis. 

While Franks’ point, that there are other crimes aside from those disproportionately committed by men against women where it’s unclear that a crime has in fact been committed, thus making it unclear whether the person is victim or accuser, there is no crime which is disproportionately based on the mere say of one person against another.  Violent rape is a clear exception, but it’s also a great rarity. 

While few criminal defense lawyers would disagree with Franks if her point was that all purported “victims” be referred to as accuser until such time as a conviction was had, such that they aren’t brought into court on a stretcher, evoking sympathy before any evidence that a crime was committed has been adduced and approved by a jury.  But she isn’t saying that, and certainly doesn’t mean that.  The point here is that rape victims and victims, no additional proof required.  If a woman cries rape, then rape it is, and anyone who questions the accuser victim is a misogynist.

Rather than leave any doubt as to the emptiness of her logic, Franks rams it home with this reasoning.

Even if there might be some merit in a general prohibition on the term “victim” prior to a court determination that a crime has been committed (although whatever merit this prohibition would have is meager indeed, as it defies logic to claim that a person has only been victimized if some perpetrator is proven guilty of the crime in a court of law. This would mean that all unsolved murders have no victim; all unreported crimes have no victim; all crimes not resulting in convictions due to bad lawyering or jury error have no victim), to apply this prohibition only to crimes committed primarily against women is simply unjustifiable.

“All unsolved murders have no victim?”  Here’s where we get back to that whole thoughtful nuance thing that kicks the crap out of feminist rhetoric.  You see, unsolved murders leave dead bodies behind.  Most crimes have evidence that facially supports the occurrence of a crime.  That’s what the knife sticking out the dead person’s chest means, that someone killed him.  But even then, it’s impossible to say it’s a murder until we know that it wasn’t some women fending off a would-be rapist who, after the fact, decided to become part of that grand under-reporting statistic.  Screw the dead body, who’s the real victim here?

On the other hand, the vast majority of alleged sexual assaults and rapes come with no evidence that a crime occurred.  The only thing that distinguishes a rape is a woman’s word that she did not consent to sex.  That’s a pretty big difference, yet one that eluded Franks when she chose to disparage Bobby Franklin’s motives.

Not knowing Franklin or having any particular reason to defend his family honor, I won’t ascribe lofty purpose to his sponsorship of this bill.  At the same time, placing the mantle of victimhood on anyone merely because of gender is wrong and irrational.  If there were any real feminists left out there anymore, they would denounce these neo-feminists whose argument is ultimately grounded in the notion that women are just too weak, too fragile, to manage without special dispensation.

Neo-feminism does neither women nor law much good, demeaning both in the name of an agenda.  It doesn’t matter in a court whether women are the gentler sex, especially deserving of the title “victim” lest their feelings be hurt.  Either there’s proof of a crime or not, regardless of how many men are called misogynist in the process.

Not knowing anything more about 21 year old Robert Michelson, it’s impossible to say whether he is a moron or under the influence of a controlled substance.  That said, we teach our children that the way to get answers is to ask questions. 

That doesn’t mean, however, that 911 is the best place to ask. 

What scares me most about this is that Michelson hails from Farmington, Connecticut, close enough that we might have been driving on the same road at the same time at some point.

For future reference, 911 is for emergencies.  It’s 411 for information, though this isn’t really the right place to ask this question either.  Just saying.

Last February, the Israeli ambassador to the United Nations, Michael Oren, went to the University of California at Irvine to speak.  It was controversial, as the Muslim Student Union took issue with Israeli policies.  No surprise there.  Regardless of one’s position, there is little doubt that others will disagree.

A group of Muslim students made a decision, that they would engage in a concerted protest against Israel by standing up during the speech, yell a slogan expressing their political opposition to Israel’s policies, and peacefully walk out, into the waiting arms of police.  There would be no violence, no chaos.  But they would seize the opportunity, with Oren standing there, to state their opposition.

It was a principled protest.  These students believed in their cause and purpose.  They realized they would suffer some form of sanction for the actions, particularly since it was seen as a serious breach of academic etiquette to disrupt an invited speaker.  Indeed, UC Irvine founding Dean, Edwin Chermerinsky, whose liberal passions are legend, refused to recognize the free speech of the protesters trumping the free speech of the Israeli ambassador.

The nature of protest being what it is, the school was not happy about the students’ decision to protest, and disruption of the event.  No doubt the students expected as much and were prepared to face the consequences.  Perhaps they would have to endure a stern talking-to by Dean Chermerinsky.  Maybe suspension and picking up trash around the campus.  While they might have hoped that the school would perceive their effort as akin to the peaceful resistance offered by Martin Luther King, they must have realized that there was a very good chance that no day would be named after them.

What they did not anticipate, however, was that Orange County District Attorney Tony Rackauckas would see the actions of the Irvine 11 as an opportunity to strike a blow for America by prosecuting these students for the felony of conspiring to commit a misdemeanor.  Apparently, in Orange County it’s a crime for Muslim’s to interrupt.

During an NPR Interview, Dean Chermerinsky denounced the prosecution.

Dean Chemerinsky’s position is that the students didn’t have a first amendment right to disrupt the speech, but that criminal charges aren’t warranted.  UCI had already taken disciplinary action against the disruptive students and suspended the Muslim Student Union for the fall 2010 quarter.  The MSU is also serving two years of probation.

Typical of the academic mindset, they can’t understand why what happens in Vegas UC Irvine doesn’t stay in UC Irvine.  The problem, it appears, is that the outside world doesn’t seem to respect the walls around academia, much like a parent and wayward child, or angry spouse.  Publicly complain, and darn if there’s a public reaction. 

The LA Times, similarly, condemns the protest.

The behavior of the students was wrong. They could have held up signs or distributed leaflets or chanted slogans outside the lecture hall, but they should not have tried to shut down the event by making it impossible for Oren to speak. Protesters have the right to voice their objections in many ways, but not to silence those they disagree with. This principle is especially important at a university, which exists, in part, to promote the free exchange of ideas.

You know, protest all you want, but do it nicely, in a way the doesn’t annoy anybody.  Everybody enjoys a nice, orderly protest.  While the point is well taken, that silencing speech in the name of speech reflects an inherent contradiction, it misses the point of protest.  UC Irvine didn’t invite the Muslim Student Union to take a seat on stage and offer a rebuttal following Oren’s talk.  When you elevate one side of a political controversy to preferred status, does it surprise that the other side turns to more extreme measures to have its voice heard?

Yet the times, like Chermerinsky, condemns the prosecution as well.

Criminal charges, however, are not appropriate. They would be overkill, a punishment out of proportion to the offense. Is it really necessary to threaten the futures of students who engaged in a nonviolent protest that didn’t, ultimately, stop Oren from delivering his remarks? These students have been punished already, in an effort to make clear the difference between legitimate protest and their unacceptable actions. We hope they’ve learned a lesson. Now it’s time to move on.

Definitely inappropriate.  Clearly overkill.  But those aren’t words that ring well in the criminal justice system.  There is no motion to dismiss inappropriate charges.  Instead, district attorneys are elected with the implicit understanding that they will exercise discretion to reflect the sensibilities of their constituents.  Not all their constituents are holed up in the Ivory Tower.

But there is a “harder” argument to be made against the prosecution of the Irvine 11, notwithstanding their flagrant breach of academic etiquette.  Prosecutor’s don’t indict students for interrupting speeches on campus, or intervene in such parochial matters.  Except, perhaps, when the protestors are Muslim and the speaker is the Israeli Ambassador?  

This smacks of the selective prosecution of Muslim students because, well, we hate Muslims for blowing up the Twin Towers, the USS Cole and a couple of embassies in East Africa.  How many chances does the Orange County DA get to strike a blow for American against Muslims?  Carpe Islam.

Caveat: This post is not about whether Israel is right in its treatment of Palestinians or settlement policy.  Do not post comments expressing your view that the Irvine 11 are wrong, dumb, ugly or dress funny, or that Michael Oren is the front man for an oppressive Zionist regime.  The underlying politics has nothing to do with the fact that there are two sides (actually, more) to this very controversial issue, and that the Irvine 11 protestors reflect a side that strongly opposed the policies of the nation Oren represents.  I don’t happen to agree with Irvine 11’s position, but I fully understand their desire to have their position recognized.  Leave it at that.

It’s not that the Irvine 11 get a free pass at consequences for their actions.  If they want to proudly wear the mantle of Martin Luther King, they need to remember that he was a regular at the Birmingham jail.  King was willing to pay the price of his convictions (pun required).  That’s how nonviolent protest works.

And so does disapproval of prosecution for such protests, when the only group worthy of prosecution for engaging in disruptive speech just happens to be a bunch of Muslim students.

If Tony Rackauckas was a speech martinet, prosecution disrupters without regard to their views or religion, maybe he could be forgiven for inappropriate emphasis on the Irvine 11.  By singling out these Muslim students for prosecution, however, he’s just another opportunist trying to squeeze some All-American political juice out of them.  Selective prosecution, however, is unAmerican, even when “red-blooded” Americans bristle at the content of their character.

Few, if any, trench fighters don’t cringe whenever  another story of zero tolerance disaster comes across the news.  The stories are legion, and condemnation is essentially universal amongst those of us who fight for rationality and proportionality against those bureaucrats who are given a set of rules to be treated as absolutes. 

How, we wonder, can any thinking person, not recognize that zero tolerance, a palliative for the simple-minded, is a failure?

How indeed.  Enter a particularly fine mind, UCLA lawprof Eugene Volokh, in support of zero tolerance.  So what, you mutter, comforted by the self-righteousness of being merely correct.  Let’s not forget that people, and by people I mean journalists, politicians, elected officials and, perhaps most importantly, school administrators, adore professors. 

Have you ever noticed how, in the midst of a story about some heinous crime, the reporter will insert a paragraph stating the views of some crimlaw prof who knows absolutely nothing whatsoever about the actual practice of law, but who opines as to the magnitude of the crime and likely outcome?  Why, you wonder, would this reporter ask someone who is utterly clueless when there are literally thousands of incredibly knowledgeable lawyers available for comment?  Because he’s a professor.  Being hired by the Academy imbues an otherwise unemployable, and certainly incompetent, lawyer with the most important of magical abilities:  Instant credibility.

Taking that a step farther, when the professor is one who can be called “well-respected,” as opposed to the double assistant adjunct prof at Okefenokee Junior College and Auto Repair, his word is written in stone.  No mere person of actual competence can challenge or question it, as he’s a Scholar and we’re mere groundlings, barely worthy of fetching him sherry.

Now I’m not saying that Eugene thinks this, and know, in fact, that he doesn’t.  He appreciates the work of trench lawyers, and realizes that we do the heavy lifting while he gets to hang out by the pool with those UCLA law school starlets.  Still, he understands the power of being a professor.  He needs to use it wisely.

To begin with, a zero tolerance policy means zero tolerance for some class of behavior, with some mandatory penalties. This suggests that some such zero tolerance policies might be good, depending on what is banned and what the penalties are. Zero tolerance for, say, fighting (with an exception for self-defense), with mandatory penalties starting with an afternoon of detention and working up from there, might well be sound. Zero tolerance for bringing sharp knives to school, with no exception for honest mistakes, but with mandatory penalties starting with a week of suspension and working up from there, might also be sound (depending on the circumstances). Zero tolerance for bringing toy pistols to school, with the penalty being a call to the parents, admonition to the child, and confiscation of the toy might be sound as well.

Eugene goes on to explain why discretion on the part of school administrators is problematic, offering a number of instances where discretion feeds both the behavior to be eliminated as well as the perception of unfairness, from which he finds:

This suggests that there are substantial possible benefits to a zero tolerance policy, where at least some punishment is required with no possibility of discretionary waiver, and no “honest mistake” defenses. And while there are some costs to such a policy, those costs are comparatively low for modest punishments, though much higher for greater punishments.

With the equivocal “tentative,” Eugene concludes:

This leads me to tentatively think that the problem is not with zero tolerance policies as such; some zero tolerance policies are probably a good idea, depending on the sorts of student behavior problems and administrator-parent tensions that might be present in the school or the school system. The real problem is with zero tolerance policies that (1) are defined too broadly (for instance, to include butter knives, nerf guns, easily identifiable over-the-counter medicine, and the like) or (2) carry punishments that are highly unjust as to a nontrivial fraction of the incidents in which the policy will be applied.

It’s hard to pin down a problem Eugene’s views, since he does the putatively undoable: He supports zero tolerance with caveats.  The problem, of course, is that there is no animal like that.  Zero tolerance, by definition, doesn’t come with reasonable discretion, which is what makes it zero (as in, “zero”) tolerance.

From an academic perspective, Eugene’s views are completely understandable, as scholars can equivocate like nobody’s business.  From the bureaucratic perspective, they offer solace to grocery clerk with a checklist who expels students for the most absurd offense.  Why?  Because a professor endorsed zero tolerance.  Not just any professor, mind you, but a well respected one.

Just as we keep scratching our heads and wondering how it’s possible that anyone, anyone, could cause the mindless, idiotic harm to children that school administrators so routinely, and so unapologetically, do, a well-respected academic like Eugene comes along and offers an overly nuanced, highly qualified (as in, too many qualifiers to make “zero” mean “zero”) yet open endorsement of likely the most dangerous and damaging approach to discipline around. 

Eugene, don’t do it.  I realize that intellectual freedom, the need to discuss, raise, question, challenge ideas, pushes your curiosity into such matters.  To the scholar, this might be a worthy debate on a theoretical level.  But like it or not, you have power to influence others.  They will seize on your words and use it to prove that zero tolerance is a wonderful concept, a justified and justifiable concept, and they will expel students with nerf guns, or who point fingers, or draw images of bombs bursting in air. 

Sure, we know that your musings aren’t worthy of such recognition, but they don’t.  The media, the politicians, the grocery clerks, are so overwhelmingly impressed by your professorial status that they will hang their policies on your conclusions, and hang their students alongside.  Is this what you want?  Do you want to be the cause of such mindless pain and suffering?

No doubt it’s been an interesting intellectual exercise thus far, and I truly hope you’ve enjoyed it, Eugene.  But please, I’m begging you, see the writing on the wall, how your words will be spun, shortened, simplified and abused.  Your support for zero tolerance will be the counterweight to all those voices screaming for its demise.  Don’t let that happen.

Eugene, use your power for good rather than evil.  Denounce zero tolerance.  Do it for the children.

There is was,  right on twitter this morning, much to my surprise.

The Rocket Matter, LLC Daily is out! ▸ Top stories today via @ consumerfinance @ lavocate @ davisesq212 @ scottgreenfield

@ rocketmatter‘s response will be “I’m doing you a favor by promoting your blawg. You’re welcome.”

Do you never want anyone to quote a sentence of yours or link to your posts? What is OK and what is not?

My lord @ scottgreenfield complains so much he sounds like an old lady on a bus.