Category Archives: Uncategorized

Believe The Victims (of the SPLC)

The open letter from SAVE, Stop Abusive and Violent Environments, was not only well argued and fully footnoted, but signed by a great many lawyers, academics and advocates. Almost 140 of them. And as its title said, it argued strenuously against the “trauma-informed” approach to sex offenses under both Title IX and in the legal system.

It’s a good letter, and cites to some important thought, statistics and arguments. The short version is that “believe the victim” reverses the presumption of innocence and rationalizes away due process for the accused. No regular reader of SJ is unfamiliar with these views. That almost 140 people signed their names to the letter, particularly the profs for whom questioning the ideology of victimhood could be career-ending, is significant. They thought this worthy of taking a huge risk on a hot bonfire.

So what’s the reaction? The first is the unsurprising fallback that relies on a grasp of statistics colored by belief. Continue reading

The Park Avenue Jail

The best argument to be made for closing the notorious Rikers Island is that it’s hard to get to, isolated and thus a logistical problem for getting defendants to court as well as families visiting their loved ones. Of course, that was also its primary benefit, as it kept prisoners isolated. Not only was it harder to escape from an island, but it meant you didn’t have a jail next door.

Nobody wants a jail next door.

But the cries for closing Rikers have now reached the promise stage.

Mayor Bill de Blasio on Wednesday unveiled his long-awaited plan to close the troubled jail and open or expand slammers in four boroughs to house the extra inmates. Continue reading

The Meaning Of “Take A Look”

Back in the heyday of the crack epidemic, automotive artists created secret compartments in cars in which uptown drug dealers hid their stash. They were called “clavos,” and could only be opened by some bizarre combination of actions. When the cops figured out that drugs were being secreted in these hidden car voids, it presented a problem.

Not just the problem of finding the clavos, since they were never going to discern the actions needed to pop them open, but doing the search itself, since they were done on the street, on the fly, and there was neither basis nor interest in getting a warrant. But there was the “consent search” exception, whether real or manufactured. They would ask, “mind if I take a look around?” Then they would dismantle a car on the street, ripping off fenders, shrouds and carpeting. Often, body parts were dented when they were tossed to the side.

For years, challenges to these “consent searches” were losers. Courts held that if a person consented, then that was that. The argument was that the consent was to “look around,” not to take apart and destroy. An ordinary person’s understanding of the words “look around” was just that, to look, not touch. Judges shrugged. “Consent,” they muttered, right before “denied.” Continue reading

Short Take: His Wokeness Responds

I, for one, deeply appreciate New York Times Opinion honcho James Bennett being a faithful SJ reader, even if he doesn’t always agree. So his response to me deserves to be aired.

A lot of the work we get to do in Opinion is fun: We get to tackle big ideas, write with verve, experiment with new forms and ways of making arguments. But this is also a real struggle we are engaged in. It’s not easy to believe passionately in certain positions and then work with people who see the world very differently. This is one reason, I think, that departments like ours, and even many newsrooms, have always been at risk of becoming homogeneous in various ways over time. It’s particularly hard now, when an echo chamber in social media grabs hold of one piece we publish and treats it as the whole, rather than one of dozens of opinions we publish in running arguments across a week. It’s particularly hard now because, even as we keep getting attacked from the right, left-wing sites are insistently telling the same story — that we’ve added conservative voices in a rightward frogmarch — while ignoring inconvenient realities like the powerful new voices from the left that have also joined our ranks. It’s hard because some of the critics like to resort to labels without actually contending with the arguments our people make. (The good ones contend and sometimes out-argue us. They’ll make us better.)

Continue reading

Short Take: Mueller’s “Reprehensible” Pit Bull

Eastern District of New York Judge Charles Sifton was a soft-spoken guy, not prone to emotionalism or hyperbole, and razor sharp. For him to have named names is, well, serious. Yet he did.

AUSA Weissmann’s myopic withholding of information must also be viewed in the same context: while reprehensible and subject, perhaps, to appropriate disciplinary measures, it does not begin to approach the level of uncivilized and indecent behavior that would necessitate the extraordinary relief which defendants seek.

The defendants of whom Judge Sifton wrote were soldiers in the Colombo mob. Bad dudes. Bad enough that AUSA Andrew Weissmann’s concealment of Brady material, reprehensible though it was, wasn’t bad enough to cut killers free. A new trial was sufficient. It was, however, bad enough to name Weissmann in the decision, something that almost never happens.

That was in 1997. So what’s become of Andrew Weissmann? Summarily fired from the EDNY United States Attorney’s office? Disbarred? Humiliated? Disgraced for his reprehensible Brady violation? Have you been paying attention? Continue reading


Rarely has the aphorism “his reach exceeds his grasp” been more applicable than to black activist Shaun King. His social media following is huge, but he’s a simplistic dolt. That could explain his appeal. Unfortunately, his “reach” has made him a hot commodity for those who have little reach of their own.

When King hooked up with Harvard’s Fair Punishment Project, he gave them a huge audience they would never otherwise have. And they gave him cred he would never otherwise have. And never deserve.

Eventually, even Shaun King processes things that other people, smarter people, figured out long before him, and he’s capitalizing on one such idea. For some time, Democrats holding office as prosecutors have spouted reform rhetoric, but then gone about their jobs as usual. As my joke goes, Republicans were happy to put people in prison. Democrats felt badly about it, but locked them away nonetheless. The upshot was the same. Continue reading

Short Take: A Cop’s Weighty Burden

They’re trained at the Academy how to make a collar, fire a gun, appear credible when they testify and not let the reasonable requests of the people they’re hired to protect and serve bother them too much. But what about them? Are they not human beings with needs too?

A morbidly obese city cop got a hefty pension when he retired on disability at age 43, but he’s still hungry for more dough — so he’s suing the NYPD, claiming the job left him corpulent.

“The job is like a tyrant,’’ said ex-NYPD Officer Jose Vega, who is 5-foot-10 and tips the scales at 360 pounds.

Could it be the . . . donuts? Continue reading

All The News That’s Woke Enough To Print

For people born yesterday, the fury was about New York Times’ editorial writer Bari Weiss’ “racist” twit.

Mirai Nagasu was not an immigrant, though her parents were. So Weiss’ twit, a reference to the play Hamilton, was technically inaccurate. What it was not was mean or hateful. She lauded Nagasu’s achievement. It was positive toward immigrants. It checked a few boxes, but that wasn’t good enough. Continue reading

A Failure to Communicate: Clarity v. Offense

A decade ago, I learned that lawprofs didn’t care much for practicing lawyers. We were vulgar, harsh and intemperate (that’s a word used in moderated speech to mean we said nasty things). We had two unpleasant tendencies: we said what we meant and when we disagreed, we made our position clear.

Some academics don’t like this at all. Or to be more precise, they hate it when it’s done to them. They give themselves greater latitude when they do it to others, because they’re right so it’s justifiable. They make up rules (there seems to be a huge affinity for rules) that explain all this, inconsistent though they usually are, and only tell us after we’ve violated them.

This happens to me all the time, because I’m a terrible person. It happened on the twitters between Georgia State prawf Eric Segall and Alan Gura. The subject matter was one that isn’t particularly controversial. Continue reading

Autism Doesn’t Care About Good Intentions

When mediator Lucy Moore saw pony-tail man’s BMW idling longer than she felt was appropriate, she indulged in “revenge” fantasies of sticking a potato in the exhaust. Fortunately, unenvironmental car idling has yet to be made a killable offense, so there was no option of calling the cops on the miscreant.

Not that Lucy would have done so. It was just a fantasy. Enough of a fantasy that she felt the need to write about it and tell people of her secret desire to do harm. But she says should would never actually do harm. I have no reason to dispute her.

When the “victim” of the person doing something you feel is wrong is a child, however, there is not only a basis to invoke the wrath of government, but a moral imperative. At least, that’s the justification proffered by the well-intended. Continue reading