If things are bad, the natural reaction is to seek change. But that ignores a truism, that things can always get worse. In 1994, Newt Gingrich and the Republicans pulled off a paradigm shift with the Contract With America. Then there was the Tea Party in 2009. Did they achieve what they promised? Anything? The answer will shift based on expectations, but one thing is clear. America wasn’t “fixed” as far as its national debt is concerned.

The midterm elections of 2018 offer another shift, this time motivated progressives, a very significant number of whom are women, have decided to run for office. One of the complaints was the lack of female elected officials, until someone pointed out that you need to run for office to be elected. If women didn’t run, they had no one to blame but themselves.

So this year, they’re running. That’s good. It’s always good to expand the universe of candidates from which to elect the people who best reflect what we seek in an elected official. But as much as you can’t win if you don’t run, that’s only the first step in the process. Continue reading →

Via Doug Berman’s Sentencing Law and Policy, Southern District of West Virginia Judge Joseph Goodwin took a very strong, very controversial stand against plea bargains in United States v. Stevenson.

On June 26, 2017, I rejected the proffered plea agreement in United States v. Charles York Walker, Jr. after determining that it was not in the public interest.  On October 10, 2017, I rejected the proffered plea agreement in United States v. Antoine Dericus Wilmore after determining that it also was not in the public interest.  In both opinions, I stated that it is the court’s function to prevent the transfer of criminal adjudications from the public arena to the prosecutor’s office for the purpose of expediency at the price of confidence in and effectiveness of the criminal justice system. Continue reading →

The conclusion was clear as could be:

“Diversity of thought” is white supremacy.

What isn’t, by the reasoning of MIchael Harriot, “World-renowned wypipologist. Getter and doer of “it.” Never reneged, never will. Last real negus alive.” His reasoning is that the phrase was used to defend some academic he described as pro-confederate. Whether the prof was racist isn’t the point. Someone used “diversity of thought” to justify the person Harriot says is a white supremacist, so the phrase itself is now white supremacy.  Continue reading →

“This groundbreaking rule for jury selection will reduce the damage done by racial and ethnic bias to the integrity of our judicial system and to communities of color.”

Studies show that the racial makeup of a jury can make the difference between a defendant going home and being put to death. On April 5, the Washington Supreme Court adopted a rule change that seeks to narrow the racial bias gap in jury selection.

During jury selection for trial, attorneys for the defendant and the plaintiff can use peremptory challenges to dismiss jurors without providing a reason. In Washington, that process now includes a step that the American Civil Liberties Union of Washington (ACLU-WA) says makes it the “first court in the nation to adopt a court rule aimed at eliminating both implicit and intentional racial bias in jury selection.” Continue reading →

Maybe the idea began as a memorial, an homage, to Judge Stephen Reinhardt, one of the “liberal lions” (with sober driving skills) of the Ninth Circuit. But Linda Greenhouse just couldn’t do it without making it about politics. Her politics.

I heard that Judge Reinhardt had given a speech in which he criticized me for naïve and muddled thinking: How could I depict as in any way moderate a Supreme Court with William H. Rehnquist as chief justice and with Clarence Thomas sitting in Thurgood Marshall’s seat? Never having had any contact with Judge Reinhardt, I wrote to him, inviting him to tell me directly what he had told his audience. He replied that he was about to visit Washington and would take me to lunch.

Greenhouse’s thinking being “naive and muddled” is nothing new, which explains why she writes for the New York Times and teachers at Yale Law School. But moderate? Continue reading →

Of all the people to protest, it was Josh Blackman. Of all the law schools, it was CUNY. It’s not Harvard, where the elite students can afford their childish indulgences before they set off on the great adventure of Biglaw bonuses. You see, CUNY has branded itself a “public interest” law school, which is the nice way of saying they aren’t the best and brightest, and won’t have jobs when they graduate. The slogan, “students who couldn’t get admitted anywhere else” isn’t a great marketing tool.

This isn’t to say that the lawyers they produce won’t be good lawyers, even excellent lawyers. It doesn’t take genius to be a good lawyer, but hard work and dedication. There is absolutely no reason why CUNY law students couldn’t excel. But for themselves.

Continue reading →

When the constitutionality of a law is challenged, the most critical factor is the test used by the court in deciding whether it passes scrutiny. If it’s strict scrutiny, the law almost always gets crushed. But then, strict scrutiny is reserved for laws that implicate fundamental rights, which are fundamental because the Supremes say they are.

And the others?

Last week the Illinois Supreme Court upheld a state law banning sex offenders from public parks, overturning a 2017 appeals court ruling that deemed the statute “unconstitutional on its face because it bears no reasonable relationship to protecting the public.” The seven members of the higher court unanimously disagreed, saying, “We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state.” Continue reading →

In the quiet, secret world of people who call themselves legal scholars and public intellectuals, a discussion was had: Is it time to end the misery? Carissa Hessick defends the zombies.

One criticism of law review articles that they are too long.  If you can’t make your argument in 25 pages, so the argument goes, you should simply write a book instead.  I disagree.  I can think of plenty of arguments that cannot be fully supported and defended in only 25 pages.

But then, there are plenty of law review articles that could make their extremely limited point in ten pages, if you cut out the “appreciation” footnote. Assuming the law review article is worthy of publication at all, rather than fodder to fill the empty pages of the multitude of journals every law school produces to give the kids something to put on their resume, most would be more than sufficient at ten pages to state and support their position.  Continue reading →

Mark Zuckerberg sat alone at a table in one of the most massive Senate joint committee hearings ever, with 44 senators, nearly half the Senate, in attendance so as not to miss the opportunity to speechify for the cameras. The senators understood one thing: the internet is bigger and more powerful than they are, and there was no way they were going to pass up the opportunity to create a record about how they’re going to protect the children.

My first joke was that Zuck’s entrance into the chamber brought the average age of the room down by 58 years. Cute, if hyperbolic, right? But what wasn’t an exaggeration was that Zuck showed up wearing a blue suit, a white shirt, a lavender tie, like a normie. He dressed respectfully, which means he didn’t have the guts to wear a Def Leppard tee. What a coward.

Even worse, he behaved himself. He listened to the 44 speechify, threaten, ask insipid questions (how many Nevadans had their data breached? Are you kidding?), and he responded. No snark. No ridicule. He played it straight. It was disgusting. Continue reading →

Donald Trump twitted “Attorney-client privilege is dead.” It was no less inane than any other Trump twit, but buried within the typically ignorant grasp of law is a matter of grave concern for lawyers and clients. The search of his lawyer’s office fell within the long-recognized crime/fraud exception, but the cheering and jeering of the groundlings should be disturbing.

Never before has the sanctity of the attorney/client privilege been so thrillingly dismissed. Even if, as is almost assuredly the case, there was exceptionally good cause to breach the privilege, it should never be taken lightly. It should never be treated as a facile resort, founded on mere probable cause.

Does Michael Cohen have other clients? What of their privilege? Does Cohen have privileged communications of his prime client that have no bearing on the evidence for which the warrants were issued? These privileged communications may well be seen as the feds parse Cohen’s papers, computers, for what they’re authorized to search for by the warrant. They may get what they came for, but they will get a whole lot more in the process. What if it’s not Trump that comes into plain view, but someone else? What if that someone else is you? Oops. Continue reading →