Category Archives: Uncategorized

Incentive Lost: The Lottery Future

In her incisive Weapons of Math Destruction, Cathy O’Neil laid bare the inadequacies of algorithms as a simplistic and deeply flawed way to predict who would be a criminal. With that in mind, her modest proposal for predicting who should go to Harvard is either brilliant satire or a surprising rejection of the calculus she once championed.

After yet another spring in which millions of American kids endured the anxiety of discovering whether their chosen colleges had accepted them, pundits are yet again lamenting the absurdity and social ills of the process. Why should a cabal of admissions officers hold so much sway over high-school students’ self-esteem and access to the elite? Continue reading →

The Versatility of a Swiss Army Knife (Update)

There has been significant pushback on judges trying to incorporate pop culture into their decisions, perhaps to make them more accessible to non-lawyers who are reading decisions that before would only be reported in serious legal periodicals. Or perhaps they just want their opinions to go viral and be adored by the groundlings for their wit and wisdom.

Georgia Court of Appeals Judge Stephen Dillard offers a fair explanation.

An occasional literary or pop-culture reference can be helpful in explaining or emphasizing a particular point in a unique or colorful way (we are writers after all), but context matters greatly. Judges should always strive to be respectful of the lawyers and parties.

No doubt that’s true, but it doesn’t do much to distinguish when and whether any particular case is the right one for that “occasional literary or pop-culture reference.” Judge Roger Benitez  of the Southern District of California learned this the hard way. In Miller v. Bonta, Judge Benitez issued a decision that he knew was going to get a lot of attention.

California prohibited the sale of assault weapons in 1989. The law was challenged in a suit filed in 2019 against the state’s attorney general by plaintiffs including James Miller, a California resident, and the San Diego County Gun Owners, a political action committee.

The judge, Roger T. Benitez of the U.S. District Court for the Southern District of California, wrote that sections of the state’s penal code that defined assault weapons and restricted their use were “hereby declared unconstitutional and shall be enjoined.”

To hold a law that’s been around since 1989 unconstitutional is a pretty big deal. When that law defines the dreaded “assault weapons,” a phrase that evokes extreme reactions on both sides of the debate over gun control, the ruling shifts from “big” to “huge.” The rationale of the decision was written in a straightforward, readable way.

This case is not about extraordinary weapons lying at the outer limits of Second Amendment protection. The banned “assault weapons” are not bazookas, howitzers, or machineguns. Those arms are dangerous and solely useful for military purposes. Instead, the firearms deemed “assault weapons” are fairly ordinary, popular, modern rifles. This is an average case about average guns used in average ways for average purposes

What could possibly go wrong? The opening sentence, for one thing.

Like the Swiss Army Knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment. Good for both home and battle, the AR-15 is the kind of versatile gun that lies at the intersection of the kinds of firearms protected under District of Columbia v. Heller, 554 U.S. 570 (2008) and United States v Miller, 307 U.S. 174 (1939).

Did he just compare an AR-15 to a Swiss Army Knife? You bet he did, which led to such headlines as this:

California’s assault weapons ban overturned as federal judge compares AR-15 to Swiss Army knife

It’s not false, but in a world where people tend to skim the headlines to decide what’s worthy of their outrage, it doesn’t quite convey the message accurately either.

The reference to a Swiss Army knife was clearly intended to analogize this notably versatile knife, with its many uses to cover a broad array of potential needs, to the AR-15, as the gun in question is similarly versatile.

As an aside, the “assault weapon” epithet is a bit of a misnomer. These prohibited guns, like all guns, are dangerous weapons. However, these prohibited guns, like all guns, can be used for ill or for good. They could just as well be called “home defense rifles” or “anti-crime guns.”

As my gun friends invariably inform me, there is no such thing as an “assault weapon” as a category of rifle, and it’s merely a pejorative phrase given by anti-gun activists in order to vilify rifles that look scary. I demur, since I’m not a gun guy and have no personal knowledge of the issue. I do know, however, that the “AR” in AR-15 does not stand for “assault rifle,” but for “Armalite Rifle,” its creator.

Judge Benitez wrote a thoughtful, and well reasoned, opinion. Whether it will withstand scrutiny in the Ninth Circuit (and beyond) remains a mystery. Decisions giving rise to seismic shifts in the social fabric tend to be heavily scrutinized, and this is such a decision. But there’s little discussion by those outraged at the ruling about a law that defines weapons being grounded in hyperbole and claims devoid of fact,

Instead, the spin is that Judge Benitez doesn’t think assault weapons are any more dangerous than a Swiss Army knife. His analogy to a pocket knife whose popularity and existence is largely based on its breadth of utility, a knife that do anything from stab a person in the heart to pick errant food from one’s teeth, wasn’t a bad analogy. But was this the occasional pop culture reference Judge Dillard was talking about to help in explaining a point in a colorful way? If so, the color was red and that’s what its detractors saw.

Update: I missed this tasty morsel on page 47 of the decision, for which I apologize.

More people have died from the Covid-19 vaccine than mass shootings in California.

Had the nice folks bent on outrage read deeper, they might have latched onto this line rather than twisting the Swiss Army knife analogy in Judge Benitez’s back.

Who’s Responsible For Rudy’s Lost Year?

Didn’t anybody notice that Rudy Rivera disappeared for 355 days? Maybe he had no family. Maybe he had no friends. Maybe nobody outside noticed, but Rudy was inside and there was one entity that knew where to find Rudy Rivera, and it used to be called Corrections Corporation of America until it changed its name to CoreCivic. They knew where to find Rudy Rivera because they had him.

Rivera was arrested in California in October 2015 and appeared before a federal judge there before he was transferred in custody to Nevada on an indictment charging him with marijuana-related offenses.

And there he sat. Continue reading →

Book Review: “A Good Mother” By Lara Bazelon

Diving into Lara Bazelon’s first novel, A Good Mother, I had some trepidation. For one thing, I knew Lara was a real trial lawyer, and that meant Lara knew that real trials were boring and tedious, so writing a book about a trial meant it had to be juiced up, edited, and gamed to some extent to create something thrilling enough that it made you want to read the next page. There’s a reason some lawyers (and judges, though they’ll deny it) fall asleep during trial, you know.

But what’s very hard to do is create a trial that’s both compelling enough to make you want to read more of it while incorporating the aspects and “feel” of a trial that made it real. There’s a lot of that in A Good Mother, and trial lawyers will see the gems under the surface they know only too well rather than just the hyped-up drama that ranges from overly pat to overly melodramatic. And yes, occasionally so wild that you have to suspend your disbelief. This is not a hornbook. Then again, nobody wants to read a hornbook for giggles. You’ll want to read A Good Mother. Continue reading →

Seaton: We Need A Task Force X

Like many adult males, I recently sat through the “Friends” reunion. As I spend the rest of the month perusing all the DC Comics material on HBO Max, I realized we’re overlooking a valuable idea in the criminal justice system.

We need our own Suicide Squad.

If you’re not familiar with the Suicide Squad, they’re a team of some of the worst villains the DC Universe could dream up. Each has a small bomb implanted in their neck. If any gets out of line or tries to escape during a mission, a commanding officer activates the bomb, blowing the subject’s head off their shoulders. Continue reading →

Short Take: The Battle For Chicago Avenue

More than a year has passed since the killing of George Floyd, and Minneapolis decided it was time to take back the autonomous zone of “George Floyd Square.” Without advance warning or fanfare, workers showed up, bulldozers huffed and concrete barriers were removed. And then the battle began.

Crews on Thursday removed the concrete barriers that blocked traffic at a Minneapolis intersection where a memorial to George Floyd was assembled after his death last year, but community activists quickly put up makeshift barriers and resumed chanting the name of the Black man whose killing galvanized the racial justice movement. Continue reading →

SCOTUS Limits Reach of CFAA

A former Georgia police sergeant, Nathan Van Buren, used his patrol car computer to access license plate information for cash. Clearly wrong for a bunch of good reasons, but the feds chose to prosecute him for a violation of the Computer Fraud and Abuse Act. The CFAA was an anticipatory law, enacted in 1986 at the dawn of public computer use in recognition of these new folks, hackers they were called, breaking in and wreaking havoc. It was, as one might expect, an endless source of confusion as to what the words meant and what constituted a crime.

The Supreme Court, in a 6-3 decision written by Justice Amy Coney Barrett, limited the reach, if not the grasp, of one of the CFAA’s most troubling vagaries, making it a crime to ““to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” Barrett, going full textualist, hung the decision on the meaning of the word “so,” as if anyone in Congress put in that much thought as to the phraseology. Continue reading →

Short Take: Grinnell’s Bad Bet On Ternus and The Cat’s Paw

Why, one might reasonably wonder, would Grinnell College, the party school of Iowa, pick someone to be the Title IX sex adjudicator who they knew was flagrantly biased against male students? On the one hand, that’s apparently exactly what they wanted from their adjudicator, a person who would adeptly make sure that the guy would come out guilty. On the other hand, it was almost as if the college was handed someone so impervious to criticism that she was above reproach.

So Grinnell College made a big bet by retaining Marsha Ternus, former chief judge of the Iowa Supreme Court, to serve as their Title IX adjudicator. After all, who could question the bona fides, integrity or neutrality of the former chief judge? Continue reading →

The Bill Comes Due For Katie Hill

When suit was brought, the two divergent views were as clear as possible. On the one side were lawyers and academics who both cared and knew about First Amendment law. On the other was the “revenge porn” crowd who pushed defrocked congresswoman Katie Hill to go after the Daily Mail for publishing naked pics of her with a staffer. She did, with Carrie Goldberg as her lawyer and the unduly passionate as her bankroll.

It did not go well. It has now gone worse. Continue reading →

8th Circuit Rejects The Title IX “Victim Bias” Excuse

Getting over the hump of Twombly/Iqbal pleading standards, that a complaint must present allegations of fact that not only establish the elements of a cause of action, but that they are “plausible” rather than merely conceivable, has long presented a high hurdle in campus Title IX litigation. On the fact side, there is rarely a smoking gun, where a college administrator says “we hate men” or “the man is guilty because he’s male.”

Sure, there are the now-routine allegations of the pressure brought to bear on universities from once-former-and-soon-to-be-again head of the DoE Office of Civil Rights Catherine Lhamon’s bureaucratic jihad to let no grievance go unpunished. There are the campus protests and demands that colleges protect women at all costs. There are the procedures carefully designed to deny due process to the accused while creating the appearance of fairness. And there are the determinations that ignore facts and exculpatory evidence to reach the conclusion that the male is guilty. But courts often found this insufficient to establish sex discrimination against men. Continue reading →