Why twelve? Why not 14 or 10? It’s not an unfair question but for the fact that a number existed at the time the Bill of Rights was ratified that was so deeply embedded in common law history and tradition that it was accepted as the number of people that made up a jury for the trial of serious criminal offenses.

And while scholars may debate the precise moment when the common-law jury came to be fixed at 12 members, this much is certain: By the time of the Sixth Amendment’s adoption, the 12-person criminal jury was “an institution with a nearly four-hundred-year-old tradition in England.”

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Will it be a red wave or a blue vindication? Both tribes have done everything possible to lose, to demonstrate their inability to break free of their most radical influences that the vast majority of a nation despises, to offer candidates that people want to vote for rather than hate the least.

Nobody knows what tomorrow will bring. At least I don’t, no matter what I suspect. Is it the death of democracy as the president and the New York Times claim, or is it the pocketbook concerns that affect ordinary Americans in their daily lives? Continue reading →

The phenomenon of “citizen journalists” has had a curious history since social media allowed anyone to claim the protections of the First Amendment’s Freedom of the Press. Some, like Carlos Miller, with his blog Photography is not a Crime, spawned movements to protect the constitutional right to video police. Others wore the mantle in the expectation that they could use it to falsely attack with abandon and then hide behind the claim of being a journalist exposing baseless conspiracies.

In Laredo, Texas, Priscilla Villarreal was a bit of both, revealing actual news on her Facebook page, LaGordiloca, with harsh criticism of law enforcement and prosecution. Unsurprisingly, this gained her a significant following as well as some people who didn’t like her very much. Continue reading →

I dipped my toe in controversy yesterday, not because I have any particular feelings about basketball, in general, or the Nets, in particular. It was because I, being Jewish, could say something that a non-Jew would have been ripped to shreds as a hater for saying. Yes, it was about a basketball player named Kyrie who rode the Kanye (Ye?) West’s antisemitism train into suspension, and possibly the end of his career.

Here’s the weird thing. I have never, to my knowledge, watched Kyrie Irving play basketball. I assume he plays well or he wouldn’t be in the NBA, but beyond that, he means nothing to me. To be honest, I’m not exactly an aficionado of Ye either and wouldn’t be able to name a song of his or, until I googled it, tell you what his sneakers looked like. But I digress. Continue reading →

Ladies and gentlemen, friends of the Friday Funny, I hope you’re as excited as I am for tomorrow. The biggest football game of the year will take place on November 5 in Athens, Georgia. That’s where the #2 ranked University of Tennessee Volunteers are going to hand the defending National Champions, the Georgia Bulldogs, their first loss and cement the Vols’ shot at the SEC Championship game in Atlanta.

When I last spoke of football on Rocky Top, I’ll admit I was apprehensive about Florida. Sure, the Vols got revenge from last year on Pitt, but I wasn’t sure we had the gear in us to beat the Gators. Continue reading →

Despite the efforts of “amicus” Eugene Volokh to use the Doe v. MIT Title IX case to push his war against pseudonymous litigation, the First Circuit held that there were four “paradigms” that compelled the district courts to allow a plaintiff to sue as a John Doe.

Volokh pursued the generic right of the public to know who was using the courts to sue to try to force an innocent male accused, whose identity had been protected under FERPA during the campus sex tribunal, to expose his name and the false accusations against him for which he was wrongfully found responsible because of the denial of due process and the institutional bias against males. Continue reading →

There’s a curiosity about rap music, rappers adopting names to make themselves sound tough, like a thug, to establish street cred. What made this curious to me was that there were people who were “tough,” who had street cred, not because they made up rhymes to music but because they were violent and used violence to pursue their ends. In criminal defense, we knew the people who rappers pretended to be. They were tough on the streets, not for show.

Did some rappers act in ways that aligned with their image? Of course. Particularly with some of the early rappers, they were very often the “thugs” they said they were. Indeed, some of the beloved elder rappers today were not the sort of people you wants to come across in a dark alley when they were young street kids trying to establish themselves as tough motherfuckers. Continue reading →

Lawyers are good at many things. Okay, not many, but spinning baseless arguments into rational sounding positions designed to prevail in the face of ignorance is one of our strengths. That was the position in which Judge Carlton Reeves found himself when the case before him argued that the felon in possession statutes, 18 U.S.C. § 922(g)(1), was unconstitutional under the Supreme Court’s recent decision in Bruen.

As courts have realized, after Bruen, adjudicating the issue presents certain difficulties.1 Bruen instructs courts to under‐ take a comprehensive review of history to determine if Second Amendment restrictions are “consistent with the Nation’s historical tradition of firearm regulation.” 142 S. Ct. at 2130. In fact, Justice Alito commends the majority for its “exhaustive historical survey.” Id. at 2157 (Alito, J., concurring).

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“You should sand and repaint the deck, honey,” Dr. S. tells me one day last week. “It really shouldn’t take more than a day to do.”

Before I continue, dear readers, let me rattle off a list of things I think I’m pretty good at:

Arguing before a judge or jury
Debating
Pushing through large amounts of paperwork
Sleight of Hand
Hypnosis
Theatrical Pickpocketing Continue reading →

In the aftermath of oral argument in the Harvard and University of North Carolina affirmative actions cases before the Supreme Court, it seems fairly clear from the nature and tenor of questions from the bench that six justices are not in favor of sustaining affirmative action as currently used.

The Supreme Court on Monday appeared ready to rule that the race-conscious admissions programs at Harvard and the University of North Carolina were unlawful, based on questioning over five hours of vigorous and sometimes testy arguments, a move that would overrule decades of precedents. Continue reading →