Category Archives: Uncategorized

Hirsch: Exactly When We Decided To Become A Lawyer

[Ed. Note: The following is reprinted with permission from Judge Milt Hirsch’s “Constitutional Calendar.” Judge Hirsch sits in the criminal division of the 11th Judicial Circuit Court in Miami-Dade, Florida. Before being elected to the bench, he was a board member of the National Association of Criminal Defense Lawyers and president of FACDL Miami.]

If you’re a judge or lawyer about my age – and yes, there are still a few people and several sequoia trees that are about my age – I know exactly why you decided to become a lawyer.  In fact, if you’re about my age, I know exactly when you decided to become a lawyer. Continue reading

Blame The Line Prosecutors

Is it true that progressive prosecutors have failed to create the change they promised? That’s almost impossible to say, both because some have been far more successful than others and because there’s no metric by which to measure success. Some district attorneys have opened bureaus to review old cases that have resulted in exonerations or, if not quite exonerations, at least concessions that convictions were wrongfully obtained, resulting in reversal and dismissal. Others have prosecuted cops for everything from rape, and theft to murder, where nary a cop was prosecuted before.

Is this not a significant step forward?

And yet, two prawfs assume it’s been a bust. The reason? Prosecutorial mutiny. Continue reading

Seaton: Sheriff Roy Goes To Prison

[Ed. Note: See here for Part I and here for Part II.]

If one called Belle Reeve Penitentiary in Louisiana a “shithole,” one would do no favors for shitholes. A better description of Belle Reeve might be “if a shithole and a third world country run by a tyrannical despot had a baby.” Often spoken of by guards as a black site where the most dangerous criminals were held by the federal government for participation in a top secret series of near-suicidal missions because handlers said so, Belle Reeve was an intimidating structure of concrete and black metal in the south of the state. Continue reading

Short Take: How Many “Does” Are There?

At VC, noted ‘nymophobe (just kidding) Eugene Volokh runs through his Judicature article on the choice of pseudonyms. Most of us take for granted that pseudonymous litigants will use the name “John Doe” or “Jane Roe,” but that gives rise to a problem.

To give just one example, there are six Doe v. Trustees of Indiana University cases just from 2020 to 2022 that have yielded opinions available on Westlaw, all in the same field (higher education law). These seem likely to be joined by new cases each year, and they will remain potentially citable for decades to come. Continue reading

The “Blatantly Unconstitutional” Injunction Against The Government

Being a fan of history, I often enjoy Heather Cox Richardson’s discussion of current events in a historical context. But she’s a much better historian than lawyer, which makes sense since she’s not a lawyer, but doesn’t seem to give her pause to consider whether she should incorporate  her legal insights into her daily newsletter.

That the injunction claims to protect free speech by forcing people to stop communication was not lost on observers. Harvard constitutional law professor Laurence Tribe called the injunction “blatantly unconstitutional” and noted: “Censoring a broad swath of vital communications between government and social media platforms in the name of combating censorship makes a mockery of the first amendment.” Tribe joined law professor Leah Litman to eviscerate the “breathtaking scope” of the order.

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Is Diversity Dead?

As I’ve said already, I’m a believer in the proposition that a racially and ethnically diverse student population serves a valid pedagogical purpose. And indeed, it was the purpose in Justice Lewis Powell’s plurality opinion in Bakke, which served as the closest thing to a majority opinion, to sustain the constitutionality of affirmative action under strict scrutiny.

Josh Blackman argues that the Supreme Court’s decision in the SFFA cases reveals the diversity rationale to be a sham that has outlived its purpose and is now a dead letter. Was I wrong? Was I that wrong? Continue reading

Kagan: Better Bureaucracy Than Judiciary

Jamelle Bouie raises a very interesting point from Justice Elena Kagan’s dissent in Biden v. Nebraska, where she accuses the majority of the Supreme Court of violating the Constitution by holding the Secretary of Education lacked the authority to cancel student loan debt.

“From the first page to the last, today’s opinion departs from the demands of judicial restraint,” Kagan wrote. “At the behest of a party that has suffered no injury, the majority decides a contested public policy issue properly belonging to the politically accountable branches and the people they represent.”

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The Moral Panic in HR

In reaction to the Supreme Court’s holding that affirmative action is unconstitutional, Jane Coaston reminded us that this was a first world problem.

Getting into Harvard, Yale and Stanford will be hampered if they don’t use race as factor in admissions. Getting into Trinity Washington University, not so much.

The most obvious way to help colleges level the field among students is to level the field among colleges. But the largest gifts in higher education often go to the institutions with the most resources. Harvard University recently received a gift of $300 million, the University of Chicago received a gift of $100 million and Columbia University received a gift of $175 million. The combined endowments of these institutions add up to more than $74 billion. They can already afford to fund expensive diversity efforts. What if, instead of the $500 million that the Chan Zuckerberg Initiative has pledged to Harvard, it spread that kind of money around institutions like Trinity Washington University, where a majority of students are Black or Hispanic and 63 percent of students are Pell Grant recipients?

The writer, Angel B. Pérez is the chief executive of the National Association for College Admission Counseling and a self-proclaimed beneficiary of affirmative action, giving him two horses in the race. His op-ed starts out with one sketchy claim and one glaring omission, which makes it hard to take him seriously.

I’ve been traveling the country speaking to corporate executives about seismic shifts in higher education: a demographic cliff, decreased state funding, ever-rising tuition and a recent poll showing that over half of Americans don’t believe college is worth the cost. And, of course, the Supreme Court’s decision on affirmative action, which was handed down on Thursday, banning the use of race in college admissions.

Is he really saying that he’s been traveling around the country speaking about a Supreme Court decision that came out a two days before his op-ed was published? Or is he just not a writer capable of clear expression? Perhaps he should ask his college for a refund as it failed him in thinking and writing.

But more importantly, a majority of Americans not only think college isn’t worth the cost, but that race-conscious admissions are wrong. Maybe he missed that Pew Survey when he was busy traveling around the country speaking about the Supreme Court decision that had yet to exist?

But he also makes a point that, his own cred aside, is worthy of some consideration.

If you haven’t connected the dots for how this will affect your organizations, it’s time to wake up, I have been warning them. For decades, companies in America have relied on colleges and universities to deliver a diverse and well-prepared work force. That gravy train is officially over.

Gravy train? Is educating students so that they may enjoy a future of success in the workplace a, if not the, purpose of college?

But creating that labor pool — taking people from wildly different backgrounds and circumstances and turning them all into polished graduates with comparable skills — is tremendously hard, expensive work. Most corporations that reap the benefits contribute almost nothing to the effort. They sit back and wait, content to let the nation’s colleges and universities scout and nurture that talent.

That’s not going to work anymore.

While colleges turning students from “wildly different backgrounds and circumstances” into “polished graduates with comparable skills” may be a bit hyperbolic, he’s not wrong that the college to C-suite and professional school pipeline might be adversely affected if the handful of elite universities that compete for the handful of well-qualified minority students who are prepared and capable of surviving the rigors of an elite education fail to push out enough warm bodies.

What goes unsaid is that there is tremendous pressure on corporations and professions, law included, to have black people in upper management, the bench and the operating room. One of the most difficult, yet rarely mentioned, problems is that corporations can’t hire and promote minorities when there are not enough to fill the quotas.

Much as quotas are unconstitutional and wrong, it’s always been about quotas since we know what the percentage of black people in the general population is and we know what the percentage of black people in upper management is, and the tacit assumption is that if they’re not at least reasonably close, it must be racial discrimination because what else could it possibly be?

What Perez neglects to mention in his “fixes,” which are essentially that corporations and foundations should throw money at the problem, is that black graduates from Harvard B School are in extreme demand. Black graduates from Trinity Washington University are not. The former have the credentials that are expected of CEOs, whereas Trinity Washington University is already churning out black graduates. Hear a lot about them running Fortune 500 corporations or being nominated to the federal bench?

Perez’s point, that without elite colleges being feeders to top positions in corporations and professional schools, the well of “polished” black graduates will be smaller and competition for them will be increasingly intense in order to bulk up their diversity numbers. Corporate human resource departments are going to be placed in an untenable position, being commanded to find enough black grads to make the corporation or grad school appear to be diverse and inclusive when the numbers aren’t there.

This will likely cause a panic in HR, as nobody wants to say that the reason there aren’t enough black people in management or law or medicine is that there aren’t enough warm bodies who check enough boxes to create the appearance of being dedicated to diversity. The obvious fix is to dig down deeper to find more people without whose primary qualification is their skin color rather than their “polish” or “comparable skills.” Suddenly, Trinity Washington University grads will be in high demand. Not all, of course, but a majority of them. The rest will have to survive the rigors of an elite education.

To Waive and Modify

Biden knew it was unlawful. Pelosi too.* But when it became good politics, both because doing it would endear him to that cohort that really wanted their student loans discharged and because the inevitable Supreme Court reversal would prove another reason to elect Biden because of these radical right-wing “unelected” judges, it was a win-win. And so it is, politically.

Serious standing issues aside, Biden v. Nebraska came down to a couplet in the HEROES Act which gave the Secretary of Education the power to “waive or modify” the terms of student debt repayment. Continue reading