Anyone who followed Harvard lawprof Laurence Tribe on twitter had to wonder what he was thinking when he twitted “Louise Mensch is right.” Was he using his scholarly cred to validate a nonsensical conspiracy theorist? Did he lose his mind?

Carissa Byrne Hessick has drafted a short symposium paper directed to establishing “academic norms” for law professors on twitter.

This short symposium contribution discusses the virtues and the vices of law professors participating in a now-popular form of public discourse: Twitter. It also offers some tentative thoughts on what professional norms ought to apply to law professors who identify themselves as law professors on Twitter. Specifically, it suggests that law professors should assume that, each time they tweet about a legal issue, they are making an implicit claim to expertise about that issue. It also suggests that law professors who participate on Twitter should do so primarily to help promote reasoned debate.

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I didn’t much care for 2017. It was a year lost to breathless whining, hysteria and fear, all of which went nowhere. The sky didn’t fall. In fact, not much of substance happened. The same problems that existed at its start exist as its end.

A sober assessment of the year is that it was squandered, wasted by those empowered to express their saddest feelings that convinced no one who didn’t already share their beliefs. A few more bodies were burned on the pyre. And then I saw this twit* by Huffington Post editor Emily McCombs which summed it all up for me.

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We know what the cops thought. We know because they’re still alive to tell us, and the 911 call that brought them to the house made abundantly clear that they were about to confront a killer who still held hostages. They went in with the idea that there could very well be more death to come, and they surely had no plan of making their wife a widow that night.

What Andrew Finch was thinking is another matter. Police lights outside his home brought him to the door, to look outside to see what was happening. A perfectly normal thing to do, since he couldn’t possibly have a clue why cops were on his street, outside his home. He was a good guy. He had no reason to suspect as he opened the door to his home they were there for him.

“Officers gave him several verbal commands to put his hands up and walk towards them. The male complied for a very short time and then put his hands back down to his waist. The officers continued to give him verbal commands to put his hands up, and he lowered them again. Continue reading →

Some people believe that consent decrees are a crucial mechanism for ending police impropriety. I’m not one of them. Granted, federal investigations that precede them tend to confirm claims of unconstitutional policing, which makes for good newspaper articles and solid evidence to demand change. But change never seems to happen as a result of them, and the consent decrees that follow make us feel as if we’re accomplishing something, until the next scandal or tragedy, the next investigation and the next consent decree.

But then, it’s not as if consent decrees aren’t good for anybody.

Demoralized law enforcement officers in Arizona’s most populous county are leaving in droves while a controversial police monitor gets millions of taxpayer dollars to scrutinize their agency over allegations of racial discrimination, according to records obtained by Judicial Watch. Maricopa County is paying a politically-connected firm called Warshaw and Associates big bucks to reprimand the sheriff’s department for immigration enforcement as permitted by key provisions of a state law upheld by the U.S. Supreme Court. So far, the county has paid Warshaw $10.9 million to oversee the Maricopa County Sheriff’s Office (MCSO), a force of about 700 deputies.

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A variety of state and federal laws prohibit discrimination in property rentals, but that wasn’t good enough for Seattle. As long as there was discretion, there was the possibility of discrimination, and so they enacted a law to prevent implicit bias by requiring landlords to rent to the “first qualified” potential tenant.

The goal is to ensure prospective renters are treated equally, according to Councilmember Lisa Herbold, who championed the policy. When landlords pick one renter among multiple qualified applicants, their own biases — conscious or unconscious — may come into play, she says.

There are questions, even after a tenant meets the basic “qualifications” for renting, such as credit rating, ability to pay* and prior landlord recommendations. Prior criminal history cannot be a question, though, as Seattle has forbidden landlords from running a rap sheet. Chief among them is that landlords lose any discretion for intangible qualifications, from a tenant with a bad attitude to one whose personal hygiene could present a problem for other tenants. Continue reading →

Nebraska Senior District Court Judge Richard Kopf called bullshit. He does that sometimes, but this time it was about the “vanishing jury trial.”

Nostalgia for a bygone era is not a sufficient reason to worry that the sky is falling. We must remember that criminal jury trials are a means to an end, and not an end by themselves. Ultimately, the federal district courts are intended to resolve disputes and we are doing just that whether by plea or trial. And, I should emphasize, we are doing so promptly and I believe more fairly than ever.

Perhaps in flyover country, where tiny but adorable John Deere tractors are good enough, there are enough trials, and few enough judges, that their absence makes the wheels of justice grind more effectively. Perhaps this “means to an end” is deemed “more fair than ever” because we’ve gotten so used to the small testimonial lies, the concealed Brady, the warped guilt of conspiracy indictments and practiced testimony of agents with fresh haircuts who look so totally honest and sincere, that the very notion of testing them seems silly. Continue reading →

We still don’t know why New Yorker writer Ryan Lizza was fired. We know the New Yorker publicly announced that he was “engaged in what we believe was improper sexual conduct,” but what that means is anybody’s guess. Lizza denied it. He’s fired anyway.

BuzzFeed News White House correspondent, Adrian Carrasquillo, has now been fired. It started with his name appearing on an anon list called “Shitty Media Men,” which certainly sounds like a valid basis to investigate a guy.

“In responding to a complaint filed last week by an employee, we learned that Adrian violated our Code of Conduct by sending an inappropriate message to a colleague. This followed a recent reminder about our prohibition against inappropriate communications.” Continue reading →

Over the last three decades, there has been a steady overall decline in federal criminal jury trials. For compelling proof and a penetrating explanation of why this decline has taken place, see Honorable Robert J. Conrad, Jr., United States District Judge for the Western District of North Carolina and Kathy Clements, The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judge, 86 GEO. WASH. L. REV. __ (forthcoming Mar. 2018). I can’t compliment these authors too much. Their work is superb.

Consider the following charts taken from The Vanishing Criminal Jury Trial for the period of 1980-1999[i] and 2000-2016[ii]:

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Yale Law professor Stephen Carter counsels his first year students with the following wisdom: never support a law you aren’t willing to kill to enforce. Apparently Timothy J. Farnum, a Colorado area doctor, is ready to kill if it means retailers don’t sell smartphones to minors.

“One of my sons, I took [his smartphone] away, and it was a pretty dramatic, very violent outburst,” said Dr. Timothy J. Farnum, a father of five who is an anesthesiologist by training. “He was very addicted to this little machine. It kind of scared me, and that’s really how it started.”

By “it,” Dr. Farnum means “Parents Against Underage Smartphones,” his 501(c)(4) political action group dedicated to stopping smartphones from reaching the hands of preteen children. The group’s mission, according to their website, is stemming the tide of “easy nonstop internet access for children disguised as progress.” Continue reading →

In the far reaches of my fading memory, I recall a guy passed out on the couch in my fraternity’s TV room after a party. Blue Meanies was our beverage of choice, consisting of grain alcohol and Blue Curaçao, poured into red solo cups and occasionally the floor. The passed out guy, whose nickname was Ski Pole, survived. I can’t remember any women passing out. I assume they were smarter than Ski Pole and knew their limit.

Ski Pole was incapacitated. Others, myself included, were merely drunk. Had someone taken sexual advantage of Ski Pole (for the record, no woman ever did), it would have been sexual assault. I, however, could not have been a victim, because I had the capacity to give consent. Yes, I was drunk. No, I was not incapacitated.

My judgment was likely poor, but that was my fault. No one forced me to drink that Blue Meanie. I could walk, talk, make decisions. Even if I made a decision I later came to regret, the choices were mine, and the responsibility for those choices were mine. Hey, I made bad decisions stone sober too. Continue reading →