The Attorney General of Texas, Ken Paxton, issued an opinion calling it unconstitutional. Montana tried it. The legislature stepped in, passing a resolution that it was unconstitutional. The bars in Pennsylvania, Illinois and South Carolina also rejected it as unconstitutional. Not a single state has adopted it.

ABA Model Rule 8.4(g):

It is professional misconduct for a lawyer to:

(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules. (Emphasis added.)

Part of this rule is uncontroversial. It had already existed in most disciplinary codes, and reflected the extant law under Title VII. But then, part of it exists nowhere else, except in the fevered brows of social justice warriors lawyers. Continue reading →

Humor is a remarkably effective means of making a point. In the hands of a master craftsman, it’s far more compelling than the most passionate plea of the most sincere advocate. The”why” is easy. We actually want to pay attention to humor, and, when well done, it can be far more incisive than any lecture.

Then there’s Samantha Bee. She has a TV show called “Full Frontal,” because she didn’t want to be too flagrant. There’s only one (with about a million subparts) issue with Sam. She’s kind of a dolt. Granted, who am I to call her a dolt, given that she’s on TV and I’m, well, not, but Alf was a big hit too, so there.

Samantha Bee went after an issue of some importance to criminal defense lawyers. Well, not exactly “an issue,” as she starts by addressing the failure of using a preclusive field drug test as affirmative proof of drugs. But then she couldn’t control her impulse and stay on topic.

Continue reading →

It was announced that patron of the arts, Agnes Gund, sold a Lichtenstein for $150 million so she could put $100 million to work. Not too shabby.

Ms. Gund is confirming that sale now, revealing that she parted with the painting (for what was actually $165 million, including fees) for a specific purpose: to create a fund that supports criminal justice reform and seeks to reduce mass incarceration in the United States.

This new Art for Justice Fund — to be announced Monday at the Museum of Modern Art, where Ms. Gund is president emerita — will start with $100 million of the proceeds from the Lichtenstein.

“The larger idea is to raise awareness among a community of art collectors that they can use their influence and their collections to advance social justice,” said Darren Walker, the Ford Foundation’s president. “Art has meaning on a wall, but it also has meaning when it is monetized.”

Which is it? Criminal justice reform or social justice? They are not the same thing. Continue reading →

For years now, the criminal justice system has embraced technology, algorithms, empiricism, in a belief that it improves fairness and gives judges and jurors the ability to do better than the historic knee-jerk voodoo that’s been hidden behind fancy phrases like “judicial discretion” and “beyond a reasonable doubt.”

What if tech can sincerely distinguish the guilty defendant from the innocent? The defendant who will kill again or flee the jurisdiction? Isn’t that good for the defendant who won’t, who will get that “break” he was denied when it was nothing more than a gut-based guess?

But then, there’s money to be made off the system. The sellers claim that they can’t disclose their source code or they’ll suffer irreparable harm. The judges want the black-box magic, and fear disclosure will kill the goose that lays the empirical eggs. They may not be sure it works, or how it work, or whether it works, because it’s science, but they know their own failings and figure the black box must certainly do better than they can.

And the defense? There’s that Sixth Amendment right to challenge the basis upon which a guy is going to be convicted, imprisoned, held forever, and it’s not possible to challenge a black box when we have no clue what goes on inside of it. There’s nothing new here.  There’s no interest in changing things. And given the conflict between protecting the vendor’s trade secret and protecting the defendant’s constitutional rights, who wins? Continue reading →

It starts with an homage to Gertrude, but it’s understandable given that the air has been fouled by a pervasive, presidentially-repeated, fairy tale that plays to the saddest of tears and most fragile of sensibilities. But after that, it kicks butt.

But let’s also be very clear that, especially on American college campuses, there are few crimes where the deck is more stacked against the accused. Good intentions, political capital, and the lure of presumed expertise have combined to create a system that inflates the incident rate, perpetuates misinformation, and ignores due process. In what has been aptly described as an over-correction, higher education has turned the very premise of judicial logic on its head.

Linda LeFauve goes right at it. While there is a question whether there was a need for a correction, such that the current state of affairs is an over-correction, the post at RealClear Politics tries to thread the needle between what we have come to believe versus what’s real. It’s not easy to do.

The post isn’t legally perfect, as there are some omissions, but in the scheme of things, and without an additional thousand words, it’s understandable. Perhaps the only thing that really needed to be included was the untethering of the words “rape” and “sexual assault” from definitions. Continue reading →

It was 1978 when a group of neo-Nazis wanted to march through the Chicago suburb of Skokie, a neighborhood with its share of Holocaust survivors. As bad as that was, they had the right to think stupid and ugly thoughts, and the First Amendment protected their right to express them. The ACLU famously came to their defense, not because there was anything likable about neo-Nazis, but because the vitality of the First Amendment was invariably tested by the nastiest speech.

It was a proud moment for the ACLU. And in 2017, the ACLU still fondly recalls this proud moment, as it hasn’t done much for free speech since.

This once-favored right has fallen into disrepute with the rise of social justice, and the ACLU has taken guidance from the same fortune-cookie philosophies that apologize for authoritarianism. It’s not that they’re against free speech (except when they are), but that sanitizing the world of disagreeable speech is more important.

So when the current flavor of neo-Nazis (did you think they went away while there’s still tin foil to be had?) was put to the test, who was there to call?  Marco. Not because Marco likes Nazis. Not because Marco thinks their conduct swell. But because somebody had to fight for free speech, even for these guys, for the same reason the ACLU did so in 1978. Continue reading →

It’s infuriating that some guy is rich enough to fight Dallas over taking his land. infuriating, she says.

Why can’t he be like most people and just give up his land when and as Dallas commands? Did I mention infuriating?

H/T Keith Kaplan, Landowner

My mother used to tell what she thought was a hysterically funny joke, that when she was a child, she never knew she was poor because nobody told her. She was no Samantha Bee. But her point was that she lived pretty much like her peers in Newark, New Jersey. She didn’t have much, but she didn’t miss what she didn’t know. Sure, rich people lived like rich people, but what did that have to do with her?

But what she could, and did, manage to accomplish was to send her two kids to college to become something. Like most Jewish parents, education was the one gift she had to give her children. It was the one thing the Nazis couldn’t take away. They could take your homes, your possessions, even your life, but they couldn’t take your education. As it turned out, that was enough.

Richard Reeves, a senior fellow at The Brookings Institution, finds this to be unfair.

The big difference is that most of the people on the highest rung in America are in denial about their privilege. The American myth of meritocracy allows them to attribute their position to their brilliance and diligence, rather than to luck or a rigged system.

Continue reading →

Claire Fox isn’t the first person many would go to for their life philosophy. The Brit’s wiki page opens with a very weird description:

Claire Regina Fox (born 5 June 1960 in Barton-upon-Irwell, Greater Manchester) is a British libertarian writer. She is the director and founder of the think tank the Institute of Ideas and a former member of the Revolutionary Communist Party.

For many, the “libertarian” thing would be enough. Add to it the Revolutionary Communist Party and we’re pretty deep into tin-foil hat territory. So take Terry Murray’s review of her book, I find that offensive, with a grain of salt.

Fox recalls how before the corpses of the Charlie Hebdo journalists had even grown cold, many who had initially defended the principle of free expression had U-turned to denouncing as inflammatory and offensive the cartoons that catalysed the incident, implying that the Hebdostaff were themselves to blame for the violence they suffered. So low has the tolerance bar fallen that one no longer has even to be conscious of her own ‘racism’, ‘sexism’, ‘homophobia’, ‘cissexism’ or ‘Islamophobia’ in order to be guilty of these thought crimes. Continue reading →

Much like Bill Lewinski is the guy to call when you’re a killer cop, always ready with an excuse for whatever went wrong, Veronique Valliere is the psych to call when the prosecution needs a witness to explain away the flaws of a rape case.

During its case in chief, over defense objection, the Government presented expert
testimony from Dr. Veronique N. Valliere, on the areas of victim recantation, delayed
reporting, and victims’ tendency to stay in the relationship. In an Article 39(a), UCMJ,
10 U.S.C. § 839(a), hearing on this issue, the Government proferred that Dr. Valliere
would testify about counterintuitive behaviors by victims of domestic violence. Specific
areas would include delayed or staggered reporting, returning to the offender, recantation,
potential aggressiveness towards an offender, and the concepts of fear and dynamics of
fear in a domestic violence relationship.

It’s expert testimony, as provided by psychologists like Valliere, that distinguishes the obvious, the purported “common sense” grasp of facts, from the narrative the prosecution wants to sell to the jury.

Why would a rape victim not immediately run to police? Why would a rape victim continue to maintain a relationship with her rapist? Why would a rape victim deny it was rape, then later allege the opposite? The key word here is “counterintuitive,” and it’s Valliere’s job to explain away what people would otherwise naturally believe to the ordinary and expected human behavior. Continue reading →