Judge Warren Keith Urbom is dead at age 91. He died on July 28, 2017. I am not sad.

Warren attended the Iliff School of Theology, an independent graduate school related to the United Methodist Church, before deciding to study law at the University of Michigan, where he graduated with honors. He understood, far better than many, that death is a part of living.

Death can come too early and it can come too late. In Warren’s case, it came slightly late, but not so late that he was robbed of too much of his dignity. That makes me happy.

Warren was my judicial colleague for a long time: from 1987 to 1992, when I was a magistrate judge, and from 1992, when I was appointed a district judge[i], to April of 2014, when he stopped coming to the office.[ii] I knew him far longer, beginning when I was a law clerk to Judge Donald R. Ross of the Eighth Circuit (1972-1974). He was then, even in his early years, regarded as one of the finest federal trial judges in the country.[iii] Continue reading →

At this point, there have been quite a few really thoughtful dissections of former Googler James Damore’s infamous memo. Some have explained why the hysteria surrounding it, as reflected in CNN’s twit and a few million feminist and ally rants. On the other side, it was pointed out by people who actually read the memo that it didn’t say what so many tried to reduce it to saying.

The obsession on one side was that Damore was “scientifically wrong” that women were biologically ill-suited to their jobs at Google. The obsession on the other was that the justification for women being given special treatment was that they were, indeed, different, and can’t have it both ways.

In the middle, the question of the accuracy of Damore’s memo was irrelevant. Putting aside that it was impossible to reduce the memo to a one-liner, which many did to argue their bias, as the memo was long and covered a great many ideas, including Damore’s embrace of gender diversity while he disagreed with the mechanisms to do so, so what?

Google’s express employment policy was to encourage free and open exchange of ideas, including politically unpopular ideas. So it fired Damore for doing so. Continue reading →

Following up on last week’s remarkably successful Tuesday Talk, this will be come an occasional quasi-regular feature, but with a twist. As many suggested, a little directed focus would help to rein in the discussion of favored meats (not that there’s anything wrong with that) and redirect the efforts toward subjects of broader interest.

Over the past week, I’ve had some discussions with Jake and Keith Kaplan that raised interesting issues. Keith make the point that if 100 people were asked whether they supported affirmative action, 30 would enthusiastically back it. I think Keith’s estimate is low, according to how the question was posed. To broaden the question a bit, let’s frame it like this:

Do you support equality for all people?

I would certainly expect, and hope that the vast majority of respondents would immediately exclaim, “of course.” But that’s because the framing of the question makes it easy to answer. This is where we get into the nitty-gritty, where Jake and I ended up. Continue reading →

G.K. Chesterton is best known for his fence aphorism, that you don’t take down a fence until you know why someone put it up. Split rail or pickets aside, this was a test of politics. The liberal will see a fence in his way and rip it down without further thought because it blocks his path. The conservative, on the other hand, will exercise caution, waiting to learn the fence’s purpose for being there before tearing it down.

But Chesterton went a little deeper than just the fence.

His definition of tradition as “the democracy of the dead” has always impressed me as a formidable truth. We are dwarfs on giants’ shoulders; but this includes not just the geniuses who have preceded us and paved the way for our own minor discoveries, but also the myriads of ordinary, anonymous people who have created, step by step, with occasional strokes of genius and many more trials and errors, the civilization we enjoy today.

Behind every single thing, habit or institution of our life there are centuries of experiments, attempts, failures and success.

Humans have been around for a while now, and we’ve developed traditions, norms, rules and, obviously, laws. Each came about for a reason. Some reasons are good and some not so good. Some made sense at the time, but changes in society have vitiated the reasons and the time has come to adapt. Others reflect truisms about our state of being, and persist even if we don’t think they should. Continue reading →

It was like winning the lottery when your case was wheeled out to Judge Shira Scheindlin in the Southern District of New York. It wasn’t that getting Judge Scheindlin meant a win, and, in fact, she could be a bit testy. But she listened to the defense argument and, unlike some other judges, might actually rule in your favor. If you’ve never tried a federal criminal case, you have no idea how huge that was.

But Judge Scheindlin has since retired and moved on to other concerns, one of which appears in her op-ed in the New York Times. It’s a curious concern, given that she was female and a federal judge, which means that she must have been sufficiently recognized as a lawyer to get the wink. But then, not every women enjoys that level of recognition.

As a Federal District Court judge in New York, I often encountered this courtroom scene: A senior partner in a large law firm would be arguing a motion. I would ask a tough question. He (and it was usually a man) would turn to the young lawyer seated next to him (often a woman). After he conferred with her repeatedly, I would ask myself why she wasn’t doing the arguing, since she knew the case cold.

In the 22 years I spent on the federal bench before stepping down last year, not much changed when it came to listening to lawyers. The talking was almost always done by white men. Women often sat at counsel table, but were usually junior and silent. It was a rare day when a woman had a lead role — even though women have made up about half of law school graduates since the early 1990s.

Continue reading →

From the bench, Chief Justice John Roberts asked in Fisher v. Texas what diversity brought to physics. The reaction from the cheap progressive physics seats was unsatisfying.

We reject the premise that the presence of minority students and the existence of diversity need to be justified, but meanwhile segregation in physics is tacitly accepted as normal or good. Instead, we embrace the assumption that minority physics students are brilliant and ask, “Why does physics education routinely fail brilliant minority students?”

In other words, they’ve got nothing, which was a shame as there was a sound answer. But the question was a good one, and a difficult one, as science isn’t dependent on feelings, but facts. You don’t have to like gravity, but you’re going to have one hell of a time denying its existence.

But the argument has been creeping into such disciplines as engineering that gravity is just social construct born of white supremacy. Glaciers are sexist. The days of science remaining aloof from the vicissitudes of social justice may soon be over. Continue reading →

Yale Law School dean Heather Gerken wrote a rainbows and unicorns post at Time about how law students were special and adored free speech.

In this, the summer of our discontent, many college presidents are breathing a sigh of relief that they made it through a politically fraught spring without their campuses erupting. Nobody wants to be the next Middlebury or Claremont McKenna, where demonstrations disrupted controversial speakers.

Law deans, in sharp contrast, have reason to be cheery. Their campuses have been largely exempt from ugly free-speech incidents like these.

While the campus eruptions haven’t broken down by major or grad schools, but rather by broad-based, undifferentiated student protect, fair enough. Continue reading →

As of yesterday, SJ has changed hosts from A2Hosting to Fused. There may be some bugs to work out along the way, because technology is wonderful and fixes everything. If you see a problem with SJ, please let me know. That doesn’t mean I’ll know what to do about it, but at least I can try.

And immediately after the switch, I lost the capacity to access the SJ dashboard. After an intriguing discussion about equality v. freedom, Jake came to my rescue and helped me fix this vexing problem. Thanks, Jake.

At the moment, I’m having a bit of an issue here, with SJ pages rendering in a lovely but unreadable shade of blue.

Whether this is happening to you, I dunno. I’ve already sent an email to my new host, and if anybody reading actually knows* why this is happening, I would appreciate hearing from you. There will be bugs. I will keep trying. Bear with me, please.

*As in, you actually know how to birth babies.

If you squint hard enough, you could see the unicorns prancing in the rainbow well. Where was this miracle happening? Drug courts. It had the two things that make for a spectacularly successful pitch. First, the theory played into the visceral desire to help people who desperately needed help. Second, it fit neatly on the little piece of paper gently foldable within even the smallest fortune cookie. Drug courts. What could be bad?

Putting aside the price of admission, forfeiture of constitutional rights, maybe innocence and occasionally a few well-placed “distraction*” punches to the face while a gaggle of blue sit on your back to crush the air from your lungs, isn’t it worth it if addicts finally, finally, get treatment?

Also put aside that if there’s anyplace in the world where drugs are not just readily available, but ubiquitous, it’s a drug treatment facility. It’s the Willie Sutton theory, that’s where the addicts are. But you can’t stop capitlalism.

And then there’s pharma sales folk chatting up the drug court judge, because there’s no one more qualified to determine appropriate medication than someone who went to law school and has the hubris to believe that whatever pops into his head is real. Continue reading →

After Seattle’s incumbent mayor withdrew from the race amidst nasty allegations of purchasing sex from a minor and abusing his foster son, the field was wide open. Three candidates ran in a primary, Jennifer Durkan (the closest thing to an establishment candidate), Cary Moon and Nikkita Oliver. They ended up in that order, with Durkan and Moon to have a run off.

The voters spoke. Sam Keller didn’t care for what they had to say, so she  wrote Moon an open letter.

A few weeks ago, you said something that made me respect you: “We think: Oh, we’re all good liberals, and give ourselves a pass. I believe it’s our shared responsibility to work with people of color who have been leading this effort for decades, and support them and listen to them to make changes.” Now, with the numbers in, it’s time for you to live up to those words and honor the leadership of people of color. You need to end your candidacy for Seattle mayor and boldly support Nikkita Oliver.

The rhetoric of inclusion put to the test. A very bold proposition, to ask a candidate to withdraw and “boldly” support another candidate. Who is Sam Keller to ask such a thing? Continue reading →