The dean of Berkeley Law School has long been acknowledged as an “expert” on the First Amendment. Then again, Harvard’s Larry Tribe has long been acknowledged as a constitutional scholar. But while most eyes are on Trump, if only because people have chosen to divert their eyes from Harvey Weinstein interviews involving potted plants, an old issue continues to get flogged in Congress. Revenge porn.

The symposium also featured Professor Erwin Chemerinsky, dean of the University of California Berkeley School of Law and nationally distinguished scholar of constitutional law, who spoke at length on the topic of “revenge porn” and the First Amendment. Describing himself as a “staunch advocate of freedom of speech,” Chemerinsky provided a comprehensive explanation of why laws prohibiting nonconsensual pornography do not violate free speech. (Emphasis added.)

The “symposium” consisted of the usual same four gals who have been pushing this all along, putting on a show within their echo chamber where they repeat the same cool stories over and over, nodding their heads in the righteousness of their lies. And Chemerinsky is hardly new to the cause, having been the one academic with any credentials who hasn’t made that face one makes when one smells something truly awful. But this comes up again because they’re still hoping to sneak a law past Congress while everybody is watching Darth Cheeto twit something crazy. Continue reading →

The Los Angeles Times has chimed in on the big problem with the California Bar Exam’s cut rate.

California’s bar exam is notoriously difficult. Or, more to the point, it’s notoriously difficult to pass, which is not quite the same thing. The questions that prospective lawyers must answer aren’t necessarily harder here than those on other states’ exams, but the grading is tougher. It’s as if you only have to get a C+ to be an attorney in Illinois, but you need an A- in California. Fewer than half the would-be lawyers who took the test here in the last three years passed it.

That might be OK if it meant that California’s attorneys were more competent, and the public better protected against poor lawyering, than in other states. But there is no evidence to support any such contention. The pass rate, as set by the state, is relatively arbitrary.

The word “relatively” does a lot of heavy lifting here. As Pepperdine lawprof Derek Muller responded on the twitters, there is a claim buried in there that’s simply false, that there is no evidence that higher bar scores correlate to protecting the public from bad lawyers.  Continue reading →

In the absence of any other hook to hang your hat on, there was no doubt that the slaughter in Vegas would immediately become a “we need to have a discussion” about gun control by people who knew nothing about guns. This was a given. But what about people who made their bones on other issues? Were they to be left out of the discussion?

There was Harvard’s newest darling, Shaun King, connecting dots that no rational person could see.

Bet you didn’t know that, because you looked to the killer’s motive, his goals, to figure out whether this was an act of terrorism. But look at those sweet numbers, the retwits and likes (and those were from yesterday, so there’s a good chance a few more geniuses have embraced this deep thinking), and you can easily see why Shaun King has morphed from Daily News pundit to Harvard scholar. Continue reading →

Ed. Note: This is a guest post by Roswell, Georgia, lawyer Charles Landrum, who has contributed some seriously good thoughts in his comments here and, as the post shows, has some serious thoughts about the potential damage from an ill-advised suit that could well end up establishing a seriously bad precedent.

DRE: a “drug recognition expert.” A name-drop giving cops magical powers to detect drugs that don’t exist and drug use that didn’t happen, like when the arrestee is impaired…because he is having an ischemic stroke. See, e.g., Love v. Tift County, Georgia. Unfortunately, there is a strong appeal to refer to cops as “experts.”

In Steed v. State, the Court of Appeals pointed out the cop’s training despite it being irrelevant to the run-of-the-mill lay observations giving rise to probable cause:

Miller, who, in addition to his regular training, had taken extensive additional training to be recognized as a drug recognition expert and traffic accident reconstruction expert, recognized the odor of alcohol coming from Steed and noticed that his eyes were watery and bloodshot.

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Maybe Gloria Allred’s little girl has a brain, but she’s done everything humanly possible to conceal it. Sure, she’s borrowed from mom’s playbook of shameless self-promotion, vapid blathering and trying desperately to get her TV-cutie mug in front of TV cameras by haranguing on behalf of alleged rape victims. But Lisa Bloom is supposed to be a lawyer.

Ms. Bloom, who says she is working only as an “adviser” to Mr. Weinstein, is known for her work representing alleged (and often confirmed) victims of sexual harassment, including those who took on Mr. O’Reilly.

“Only” an adviser? That’s why they call lawyers “counselors.” Advising is what lawyers do. Advising isn’t an “only” thing. Advising is a lawyer thing. Bloom fails in her attempt to slough off her relationship to Harvey Weinstein, who it turns out has been using his clout as movie mogul to nail women who would otherwise never give him the time of day,. And something about getting off on them watching him shower, for whatever that’s worth.

The schadenfreude of Bloom burning her brand on Weinstein’s dinosaur is good for a few lulz, since she was never someone to be taken seriously in the first place, but no one licks boots (or body parts) more than a wannabe. Continue reading →

I posed the question of which Michelle Goldberg would appear on the op-ed page of the New York Times. The question is answered in her apologia for the budding student radicals, testing the boundaries of their youthful good intentions. It’s the Goldberg with Slate-level intellectual depth, trying to pull off the sort of spin that Mark Joseph Stern gets away with* when accuracy is secondary to clicks and feelz.

The confrontation began just as the A.C.L.U.’s Claire Gastañaga started talking about “knowing your rights during protests and demonstrations.” A multiracial group of around a dozen black-clad students marched to the front of the auditorium, arrayed themselves before the stage and began chanting things like “A.C.L.U.! You’d protect Hitler too!” They’d been moved to protest because the A.C.L.U. had defended the rights of white supremacists to rally in Charlottesville, Va. At one point they intoned “Shame! Shame! Shame!” in a cadence that recalled a disturbing scene of public humiliation from “Game of Thrones.” Gastañaga was not able to continue speaking.

I likened this to burning the heretic at the stake. Goldberg was more generous toward the “multiracial…black-clad students.”

It can be hard to know what to make of reports of a free speech crisis on college campuses. Some progressives claim that concerns about left-wing student authoritarianism are overblown, and occasionally I’m tempted to believe them.

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For reasons that aren’t easily explained, people fail to put together two immutable facts: when a person runs for public office, that person needs to raise money for the campaign. When people donate to a campaign for a person running for public office, they may have a less than aspirational reason for doing so.

The District Attorney of New York County, Cyrus Vance, Jr., won the post in a hotly contested election after his predecessor, Robert Morgenthau, retired. Elections cost money.

The New Yorker reports that DANY was about to prosecute Ivanka and Donald, Jr. until a meeting with Trump’s long-time lawyer, Marc Kasowitz, who has conclusively demonstrated his lack of skill in criminal defense.

On May 16, 2012, Kasowitz visited Vance’s office at One Hogan Place, in downtown Manhattan—a faded edifice made famous by the television show “Law & Order.” Dan Alonso, the Chief Assistant District Attorney, and Adam Kaufmann, the chief of the investigative division, were also at the meeting, but no one from the Major Economic Crimes Bureau attended. Kasowitz did not introduce any new arguments or facts during his session. He simply repeated the arguments that the other defense lawyers had been making for months.

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The lesson was obvious: either do exactly as the kids with the torches and pitchforks demand, or you’re a heretic. And when you’re a heretic, there’s only one thing to do with you.

The ACLU, flush with cash and its own self-importance, thought it could survive with a foot in both worlds, being woke to the transient feelz of social justice while maintaining a distant finger on what was once its mission, civil rights.

So silly. Continue reading →

After twenty-three years of motions, hearings, trials and sentencings in over 4,000 criminal cases spanning four districts, I want to share my thoughts on the art of arguing the frivolous.

I practiced federal criminal defense law for seventeen years before I became a federal judge. For whatever reasons, in both retained and CJA cases, I had excellent client relations and to my knowledge never once argued a frivolous motion a client suggested. I listened and was patient with clients, but was able to convince clients why arguing frivolous positions was not in their best interest.

On occasion, I explained to clients, and confirmed in written detail for them, why I would not argue their frivolous claims. On very rare occasions I indicated that I would withdraw before I would argue the frivolous position. I explained why arguing a frivolous position harmed my credibility with the judge, probation office and the AUSA, and worse for them, harmed their chances of getting the best result possible. I do not recall ever having to withdraw.

So it is against this experiential backdrop that, to be blunt, I have been stunned by how often criminal defense lawyers argue frivolous positions. And I have a generous view of what frivolous means. It has to be totally devoid of a factual or/and legal basis, and be illogical, bordering on the ludicrous, before I am willing to label it frivolous. Continue reading →

Tennessee has an indigent representation problem. No less an authority than Justice Sharon Lee knows this. That’s why untold sums of taxpayer dollars were thrown at an “Indigent Representation Task Force,” which rambled across the state listening to aggrieved attorneys and citizens.

That task force, after nearly two years’ work, issued a series of recommendations on how to fix the indigent representation problem. When the recommendations were formally announced, attorneys across the state rejoiced. They were solid, responsible reforms to the current system that would fulfill the mandate of Gideon v. Wainwright. The justice system wouldn’t be a drawn out Tennessee Waltz, it would actually resemble justice.

Current Chief Justice Jeff Bivins understands there are major problems with the current system. He was happy enough to tell the world in a press release on October 3.

The task force confirmed what many of us already suspected: The system needs major [reforms.]

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