Arkansas put Ledell Lee to death after the Supreme Court denied a stay by a 5-4 margin. Is his blood on the newest associate justice’s hands? Of course it is. Just as it’s on the hands of the other four judges who refused the stay. And all the state court judges who did the same. And Governor Asa Hutchinson.

But the New York Times uses new math to make this all about Justice Gorsuch.

It’s not entirely fair to judge a Supreme Court justice based on his first vote. Urgent matters arise unexpectedly, and the court must sometimes act quickly.

This is a curious intro, as it creates a veneer of fairness, deflects criticism, by conceding that it’s “not entirely fair.” But it raises a strawman. Was the problem an emergency stay? Was it too urgent for the new kid to grasp? Was he forced to act too quickly to make the right decision? Was that the problem? If he had more time, might he have done as the Times believes he should have done? Please. Continue reading →

The announcement that Whittier Law School was closing couldn’t have been a huge surprise. Too many law schools pumping out too many graduates for too few jobs and too little money. At SJW law blog, Above the Law, Staci Zaretsky slyly posed whether it was being shut down because “it’s full of minority students.” The 2016 bar passage rate for Whittier was 22%.

Make of that what you will, but it seems inconceivable, bordering on impossible, that any law school could do that badly. Yet it did. What has gone so horribly wrong?

At the Atlantic, Leigh Abramson, a former lawyer, writes that law is the only profession that has an industry devoted to helping people quit.

I went to law school because I didn’t know what to do after college and I’m bad at math. Law school seemed like a safe, respectable path and gave me an easy answer to what I was going to do with my life. And, as part of the millennial generation obsessed with test scores and academic achievement, I relished the spoils of a high LSAT score, admission to an Ivy League law school, and a job offer from a fancy corporate law firm. Continue reading →

The Constitution and social justice aren’t good friends. The talk may make it seem as if they are, but talk is cheap. Former Democratic presidential candidate and Vermont governor for life, Howard “The Cowboy” Dean nailed that on the twitters.

Maybe somewhere, but not in this country. Defending the Constitution, even though it means forsaking the passionate feelz of social justice, used to be the mission of the American Civil Liberties Union, a shoestring organization that took up unpopular causes because, well, that’s how the Constitution gets defended. Popular causes don’t need a defense.

But then came the Muslim ban, and no longer were they constrained to drink tap water. Flush with millions of dollars of contributions, they could now afford the fizzy stuff from France. So what if the nice folks sending loot didn’t grasp the organization’s mission. They weren’t going to dissuade them, and they surely weren’t giving the money back. Continue reading →

Arkansas executed Ledell Lee last night, even though he may have been innocent.

In Lee’s case, the records show shocking failures of his defense attorneys, both at trial and post-conviction, which were compounded by egregious conflicts of interest. His trial judge was having an affair with the prosecutor; the two would later get married. The same judge later expressed his regret at appointing a lawyer to Lee’s state habeas proceeding who showed up to court obviously intoxicated. A state prosecutor raised concerns that the attorney was slurring his words, stumbling in the courtroom, and speaking incoherently, while “introducing the same items of evidence over and over again.” Later, the judge told the lawyer that he was unaware he had only recently been in rehab. “If I had known that, I would not have put you on this case,” he said.

Capital punishment is usually rationalized as acceptable with slogans like “the worst of the worst,” to make us feel not nearly so awful about the state killing a person in our name. Maybe Lee was the worst, but 20 years after the death of Debra Reese, doubts persist. While fortune-cookie slogans bring comfort to the simplistic, it’s impossible to think this legal system sufficiently trustworthy, adequately effective, to kill a man. It’s just not that good.

As the days, minutes edge toward the killing hour, we obsess over the individuals few knew, or cared, about up to then. When there was a chance to put a stop to the gears that end in the machinery of death, they’re invisible. The cases get little attention and nightmare scenarios, like the judge dating the prosecutor, fliy under the radar. Continue reading →

Brown University is an Ivy League school, such that one might suppose the education to be received will be worth the cost and effort, and assure its graduates of a successful and happy life in whatever their endeavors. But the acceptance letter sent out this year might give rise to some doubts.

The problem isn’t that you didn’t get in, but that “they” did.

Brown University has pushed these changes even further in its acceptance letters this year by using “they” as the “gender-inclusive” pronoun.  Thus the letter refers to “their” achievements when referring to the singular admitted student.

For many, the use of such plural pronouns for a single individual is confusing and ungrammatical.  However, the Associated Press recently adopted the use of “they” as a preferred pronoun in recognition of transexual and other individuals who may not be comfortable with traditional genders.

The AP style book has long been a source of acceptable writing. It’s no Strunk and White, but still. And if they AP says plural pronouns can be used for single individuals, it can’t be confusing and ungrammatical. But more importantly, it will prevent those who eschew traditional genders from feeling uncomfortable. Continue reading →

It was 2004 when the phenomenon hit home: to young people, humor was the new journalism.

Tom Brokaw, Peter Jennings, Dan Rather … and Jon Stewart?

Readers over 30 might scoff at Stewart’s inclusion – assuming they know who he is. For many under 30, the host of Comedy Central’s “The Daily Show” is, improbably, a source for news.

A poll released earlier this year by the Pew Research Center for the People and the Press found that 21 percent of people aged 18 to 29 cited “The Daily Show” and “Saturday Night Live” as a place where they regularly learned presidential campaign news.

By contrast, 23 percent of the young people mentioned ABC, CBS or NBC’s nightly news broadcasts as a source.

It wasn’t that Jon Stewart held himself out to be Dan Rather Tom Brokaw. He made clear that his show was comedy. But there was nothing he could do to prevent the phenomenon from happening. If young people wanted to get their news from him rather than the nightly news, what’s a comedian who wants increased viewership and more money to do? Continue reading →

Nassau County, New York, Acting Supreme Court Justice John Galasso no doubt meant well. But somebody, a law clerk, a colleague, someone, should have warned him that he was about to open up a huge can of whup ass.

Supreme Court Justice John Galasso, who wants us to scrub the man’s name from an October 2016 story, must have missed the day the Constitution was taught in law school.

The defendant’s name is Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Eric Lerner. Furthermore, Eric Lerner.

In fairness, there is nothing in Justice Galasso’s background to suggest he’s ever worked with the First Amendment’s right to a free speech and free press. Continue reading →

With the disproportionate emphasis on acceptance of transgender folks comes a secondary problem that few might see, but for this mother’s explanation of her daughter’s choices.

“I just wanted to check,” the teacher said. “Your child wants to be called a boy, right? Or is she a boy that wants to be called a girl? Which is it again?”

I cocked my head. I am used to correcting strangers, who mistake my 7-year-old daughter for a boy 100 percent of the time.

In fact, I love correcting them, making them reconsider their perceptions of what a girl looks like. But my daughter had been attending the after-school program where this woman taught for six months.

“She’s a girl,” I said. The woman looked unconvinced. “Really. She’s a girl, and you can refer to her as a girl.”

Continue reading →

Maybe this seemed as if it would be funny to the 13-year-old girl. Maybe it seems funny to someone. Maybe I just don’t understand what constitutes funny anymore, because there is nothing about it that strikes me as funny. Not even a little bit.

Tysen Benz was in his room when he read text messages saying someone he knew had committed suicide.

Shortly after, the 11-year-old boy from Michigan’s Upper Peninsula hanged himself.

Now, a 13-year-old girl is facing criminal charges in his death. Marquette County Prosecuting Attorney Matt Wiese said the girl posed as someone else when she faked her own death during a text conversation with Tysen. The boy, for reasons still unclear, believed it and killed himself within two hours of receiving the messages, Wiese said.

There is a causal connection issue between the prank and the suicide. Much as it seems obvious when the story is told along this timeline, there may well be influences that made Tysen susceptible to suicidal ideation, that caused him to consider killing himself at all. Maybe this was the straw that broke the camel’s back. Maybe not. Continue reading →

In a very provocative post at Dorf on Law, lawprof Eric Segal argues that Supreme Court justice nominees should shed the veneer of judicial neutrality and come clean for the sake of a nation.

The main reason the confirmation process is broken is that the way the public and the Senate view (or at least talk about) the Supreme Court is at odds with reality. Before we can fix the confirmation process, we need to have a more honest conversation about the Court itself.

Segal asserts that the Court is political, and has been since 1803.

By “political”, I mean that the Justices resolve cases, both important front-page controversies and less publicized back-page ones, through a combination of personal preferences, life experiences, partisan politics, and values writ large, where traditional legal norms play only a marginal role in generating (as opposed to explaining) their decisions.

The fiction that prevents us from having a meaningful confirmation process is the repeated falsity that law plays a primary role in the Court’s decisions.

Continue reading →