In one form or another, elite colleges have used affirmative action since 1965 to socially re-engineer the racial mix of their student bodies. Since first upheld in Bakke in 1978, it skirted a fine line under the Equal Protection Clause of the Fourteenth Amendment. At no time did the Court hold that discrimination on the basis of race was constitutional. At no time did the Court hold that discrimination on the basis of race was permissible to remedy past discrimination in college admissions.

The closest the Court came was to approve the use of race as a “plus” factor among fully qualified applicants to achieve what the Court held to be a constitutionally acceptable pedagogical goal, a diverse student body. When the Court affirmed this in the 5-4 decision of Grutter v. Bollinger in 2003, Justice Sandra Day O’Connor, in her majority opinion, raised two difficult questions. Will the need to consider race, a stop-gap measure to achieve diversity, ever come to a conclusion? What is the ultimate goal, as in what would constitute a sufficiently diverse body and what would it look like? Continue reading →

Not long ago, I took a look at the University of California, Berkeley, rubric for assessing faculty hires on diversity, equity and inclusion. This arose when someone asked me what, in the process of teaching an engineering subdiscipline, they could possibly say to assuage the student interviewers who care nothing about the teaching or the discipline, but only about DEI.

What part of thermo had anything to do with DEI? Beats me was the best response I could give, since I’m disinclined to string together meaningless incoherent phrases that students seem to find appealing and persuasive, ignoring that they are total gibberish.

Unlike my interlocutor, Yoel Inbar had an answer to the question. His answer was that DEI has little to do with his teaching or research. The kids were not impressed by his honesty or clarity. Continue reading →

News broke yesterday that Casetext, the legal-space start-up by Jake Heller and Pablo Arredondo, was bought by Thomson Reuters for $650 million. Having followed Casetext from the beginning, when it started with a dumb idea of a collaborative legal research tool to its pivot into legal research, and further pivot to include AI legal research. As recent experience before Judge Kevin Castel showed when papers included non-existent cases invented by AI, bad legal tech can cause some very real problems for lawyers and their clients. It’s avoidable with a little effort, certainly, but bad tech nonetheless.

But the ethos of “move fast, break things,” assumes that no one is going to be harmed should an attempt at innovation go awry. When it comes to most tech and innovation, that’s mostly true, although there can always be an argument made that by a few gyrations harm ultimately befell someone. And when it comes to spotty tech like generative AI in the law, what sort of lazy, sloppy lawyer wouldn’t check the cites generated by AI to make sure they existed? After all, who would believe that when ChatGPT tells you that Smith v. Jones is a 1978 District of New Jersey case that was on all fours, it pulled it out of its artificial anus? Continue reading →

Assuming, arguendo, the Supreme Court holds that race-conscious college admissions are unconstitutional, then what? Given that universities are dedicated to the existential cause of diversity, equity and inclusion, regardless of what the Supreme Court has to say about the matter, the likelihood is that they will change the head on the corpse in an effort to accomplish the same goals of increasing minority admissions without calling it, or admitting that it is, race conscious.

One possible avenue was that seized upon by the University of California after affirmative action was banned in 1995. Continue reading →

I characterized it as “subconstitutional” back in 2015, not because I had the future potential of a claim of quasi-judicial immunity in mind, but because I wasn’t a big fan of calling it a “kangaroo court” because it was insulting to kangaroos. But in response to the question posed in the referral from the Second Circuit, the Connecticut Supreme Court gave chapter and verse as to what a sham and due process fiasco Yale’s Title IX procedures in holding that accusations made against Saifullah Khan were not entitled to absolute immunity.

If the name sounds familiar, it’s because Khan was prosecuted, and acquitted, of rape in Connecticut. Accusers’ Rights organizations condemned the verdict as a “victim’s worst nightmare” of being discredited on the witness stand. A more objective view would be that the accuser was revealed as a liar on cross. So what did Yale do about its falsely accused student? Take a wild guess. Of course it expelled Khan, because reasons. Continue reading →

Stalin is infamously alleged to have said that “one death is a tragedy, a million are a statistic.” It’s not that the death of one individual matters more (or less) than the death of others, but that the mind works in ways that allow it to focus on smaller bites of information of interest while bigger bites of greater vagary go unconsidered. All of this made for an opportune cry that the worldwide fascination with the five people who died in the Titanic submersible proves how racist we are.

On one vessel, five people died on a very expensive excursion that was supposed to return them to the lives they knew. On the other, perhaps 500 people died just days earlier on a squalid and perilous voyage, fleeing poverty and violence in search of new lives. Continue reading →

In a curious twist of logic, Josh Blackman recounts when Nino Scalia was asked which of his decisions he was most proud of.

When I was a 2L, I attended an event on Justice Scalia’s book, Making Your Case. During the Q&A session, someone asked Justice Scalia what opinion he was most proud of. Without any hesitation, he said Crawford v. Washington (2004). This landmark decision applied an originalist framework to the Confrontation Clause. Prior to that Crawford, Ohio v. Roberts (1980) imposed a “reliability” standard to determine whether out-of-court testimony could be introduced. But in Crawford, Justice Scalia turned back the clock to the deep historical roots of the right to confrontation.

Continue reading →

Brauner’s Country Market was a bit of a staple in Alabama life, especially for the folks in Driftwood County. Started by an Amish family that made their way south for a better life, the market was a sort of country store offering various handmade knickknacks and old time remedies for various ailments.

The most talked about feature of Brauner’s was the deli counter. Here one could purchase all manner of freshly made sandwiches served on bread baked that day. Such sublime sandwich artistry was highly regarded in Mud Lick, and it was these sandwiches that had Sheriff Roy Templeton at the door of Brauner’s with several slips of paper in hand—orders from other men and women at the Sheriff’s Department. Continue reading →

If there were any justice a criminal defense lawyer wouldn’t mind being smacked, fairly or not, it’s Sam Alito. As previously noted, the worst words at the start of a Supreme Court opinion are  “JUSTICE ALITO delivered the opinion of the Court.” No words assure that what follows will be bad. And yet, even the dreaded Justice Alito should have the opportunity to defend himself. Whether his argument prevails is another matter, left to the discretion of the reader. So was his Wall Street Journal op-ed designed to pre-empt the coming accusations of ProPublica wrong?

Josh Blackman comes to the defense of Alito’s op-ed.

Why did Justice Alito take this unorthodox step to preempt the scoop? Because ProPublica has proven itself unreliable. The outlet could not be trusted to accurately provide Alito’s rejoinder in context. And Alito’s concerns proved prudent.

Continue reading →

Tim Cushing does an excellent job of saying what needed to be said about the Third Circuit’s decision in Fenico v. Philadelphia.

The First Amendment protects speech, even the horrible stuff. It can’t protect the speaker from being criticized for being abhorrent, despite what many abhorrent people believe. It can, however, in certain cases, protect the speaker from being punished for this speech.

It’s not blanket coverage. The person engaging in the speech generally has to be punished by a government entity for this protection to kick in. A private company can fire someone for their speech without worrying too much about the Constitution. But a state entity needs to be far more careful, even when it’s dealing with its own employees. Continue reading →