At Volokh Conspiracy, Ilya Somin concludes with a statement that should be so obvious as to not need to be said, but it does.

Ultimately, we should try, as much as possible, to base government policy on reason and evidence. That means resisting calls to give special credence to the views of the young and crime victims, except in the rare instances where they really are likely to have valuable insights on policy. Indeed, it pays to be skeptical of all emotional appeals that are more likely to short-circuit our judgment than improve it.

But appeals to emotion have become the advocates’ stock in trade. It’s de rigueur to begin an article with an anecdote, not as an example but to evoke an emotional response that compels the reader to feel that something must be done. And when it comes to bringing a sad tear to our eyes, no one does it better than children. Continue reading →

Everyone knows that the Supreme Court is the ultimate arbiter of constitutionality, because it says so, right? Right?!? Badass lawprof Josh Blackman raises an intriguing argument that maybe this is one of those things that all lawyers know even though it may not be the case.

Despite its constitutional provenance and majestic grandeur, the Supreme Court of the United States operates like any other court. While its judgments bind the parties before the Court, its precedents are not self-executing for non-parties. The distinction between the Supreme Court’s judgment and precedent is often conflated due to Cooper v. Aaron. This 1958 decision, spurred by the desegregation crisis in Little Rock, forged two crucial concepts. First, the Justices announced the doctrine that came to be known as judicial supremacy: a simple majority of the Supreme Court could now declare, with finality, the “supreme law of the Land.”

Second, Cooper asserted a principle this article calls judicial universality: the Supreme Court’s constitutional interpretations obligate not only the parties in a given case, but also other parties in similar cases. These unprecedented assertions of judicial power were, and remain, entirely inconsistent with how all courts, including the Supreme Court, operate. They cannot be supported as constitutional rules, but only as mere cultural norms.

Continue reading →

Margaret Atwood takes up shelves in bookstores, to the extent actual bookstores still exist, because her writing and thinking captured a generation of serious thought. Not that it helped her from being reduced to a cardboard cutout when someone unworthy decided to debate her bad feminism.

Not quite the Thrilla in Manila, but then, Atwood’s image on the poster belied the fact that she wouldn’t be there. This was Julie Rak, whoever she is, fighting a caricature.  Continue reading →

One step ahead of the United States, where the American Bar Association approved Model Rule 8.4(g) to require lawyers to adhere to social justice orthodoxy or be deemed unethical, the Law Society of Upper Canada demanded lawyers swear an oath to “promote equality, diversity and inclusion generally, and in their behaviour towards colleagues, employees, clients and the public.”

In the National Post, Christine Blatchford noted how law schools took up arms in furtherance of the cause.

[Adam Dodek, the dean of the common law faculty at the University of Ottawa] said, in part, “We recognize that the legal institutions of this country have not only failed to deliver justice to Indigenous peoples of this country but have in fact continued to perpetrate many injustices. We acknowledge that racism still very much exists in our justice system. Continue reading →

While Harper Lee’s “To Kill A Mockingbird” may have been the foremost inspiration for lawyers to defend the accused, it’s not a book without issues. It’s fair for people to take issue with its themes, language and, well, message. No one should be forced to read it if they don’t want to.

But is it fair for Aaron Sorkin to take Lee’s book and turn it into a woke vision of what Harper Lee would have written if she was Sorkin? Her estate says no.

One of the year’s most anticipated Broadway plays — the screenwriter Aaron Sorkin’s adaptation of Harper Lee’s novel “To Kill a Mockingbird” — faces a legal challenge from Ms. Lee’s estate, which is suing over Mr. Sorkin’s version of the story.

In a complaint filed Tuesday in federal court in Alabama, the estate argued that Mr. Sorkin’s adaptation deviates too much from the novel, and violates a contract, between Ms. Lee and the producers, which stipulates that the characters and plot must remain faithful to the spirit of the book.

Continue reading →

If some woman, call her Rosemarie Aquilina, wants to rent a church or auditorium and spend her day sitting on a high-backed chair listening to women tell their stories of harm, some serious and some petty, some real and some imagined, then she should. But there is a fair chance that few would show up to bear witness to this woman.

Unless, of course, this wasn’t merely a random woman, but a judge. And not merely some unknown state judge, but the judge who became overnight-famous during the sentencing of Larry Nassar. How famous? Natalie Portman on Saturday Night Live famous.

Continue reading →

The list of accusations by Eboni Sanders against Thomas Mowbray, and later Patrese Thompson, because she “put herself into the situation when she began seeing Mowbray,” is long and prolix. And if that was as much as you knew about the situation, this poor woman who was subject to threats, harassment and domestic violence, you wouldn’t feel all that bad about the time Mowbray and Thompson spent in cells after their being arrested by Pittsburgh cops.

Except none of it was true. Sanders fabricated all of it, from calling in threats to herself to creating a phony Facebook account to solicit a contract killer to do her in. And almost every aspect of the accusations against Mowbray and Thompson was subject to collateral evidence, videos, fingerprints, telephone records, that would have proven as conclusively as possible that Sanders was fabricating it all.

But the cops didn’t bother to investigate her claims. Instead, they believed the victim. Continue reading →

The trend to reimagine a drug overdose into a murder has been going on for a while. Hysteria takes hold, the word “epidemic” grabs us by our throats and we begin to accept the premise that “something must be done.” But turning the corner from a useful, rational approach to solving a problem to the knee-jerk resort to harsh, unhelpful and carceral responses is just a breathlessly outraged scream away.

When a bullet-riddled body turns up in a gutter, there’s no question that a police investigation will follow. When a person dies of a drug overdose, however, police often dismiss it as a case of self-harm and close the file. That’s a mindset that should change so that victims’ families get justice and so murderers — make no mistake, dealers in fatal overdoses are murderers — get taken off the streets.

“Make no mistake” isn’t an argument. It’s playing your emotions by circumventing reason because someone ends up dead. Any needless dead person is a tragedy, even if it’s death by overdose at the drug user’s own hand. But it’s not even remotely similar to the bullet-riddled body, where someone deliberately cause the death of another person.  Continue reading →

Hard as it is to hold a cop accountable for his violation of constitutional rights, given Qualified Immunity, liability does occasionally accrue. Yet, the prosecutor holding his hand walks away unscathed because his immunity isn’t qualified, but absolute.* Senior United States District Judge Frederic Block of the Eastern District of New York says it’s time to end this travesty.

According to Taylor v. Kavanagh, based upon Supreme Court law, “The falsification of evidence and the coercion of witnesses…have been held to be prosecutorial activities for which absolute immunity applies. Similarly, because a prosecutor is acting as an advocate in a judicial proceeding, the solicitation and subornation of perjured testimony, the withholding of evidence, or the introduction of illegally-seized evidence at trial does not create liability in damages.”

Subornation of perjury? Concealment of evidence? Introduction of illegally-seized evidence? Not the sort of stuff that brings the majesty of the law to mind, that gives you faith in a system that puts people in cages. So when these acts, some of which are crimes, happen, what possible reason could there be to give the wrongdoers, the criminals, a free pass? Continue reading →

It was announced by twit: The Denver Post would be cutting 30 people from its newsroom, a third of its staff. That’s 30 more people, as it’s the third round of cutting in the past two years.

The Denver Post recently cut 10 positions in 2017, according to the Denver Business Journal. More than 20 staffers also took buyouts or were laid off in 2016, according to Westword.

It was a good newspaper, the major paper of Denver, which is a real city and should have a real paper. Now it will be a shell. The paper is owned by a hedge fund, Digital First Media, which is being blamed for putting profit above people, savings above mission. But then, newspapers are cutting, closing all over. And not just old dead tree papers, but digital media as well. And the ones that remain are too often staffed by children, who work cheap and know nothing, with maybe a star journalists here or there to maintain the facade of credibility. Continue reading →