Over the past few years, definitions have fallen out of favor, replaced by Humpty-Dumptyisms that serve their purpose in twitter-level discussion. But the vagaries that make total sense in the context of the echo chamber have yet to be accepted in court. As Eric Goldman discusses, there is a definitional void that needs fillin’.

This is an interesting opinion from the Texas Supreme Court on citing Wikipedia as a dictionary. The underlying case involves an article in D Magazine titled “The Park Cities Welfare Queen.” The article purports to show that the plaintiff, Rosenthal, “has figured out how to get food stamps while living in the lap of luxury.” After publication, evidence emerged that the plaintiff has not committed welfare fraud. She sued the magazine for defamation.

So what is a “Welfare Queen”? Much as it has become a common slur, roundly understood as such, is there an “official” definition? If so, who gets to decide what it is?

The appeals court denied the magazine’s anti-SLAPP motion in part because it held the term “Welfare Queen,” as informed by the Wikipedia entry, could be defamatory. The Texas Supreme Court affirms the anti-SLAPP denial, but it also criticizes the appeals court for not sufficiently examining the entire article’s gist. Along the way, the court opines on the credibility and validity of Wikipedia as a dictionary. TL;DR = the Supreme Court says don’t treat Wikipedia like a dictionary.

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Did you know John Hanson of Maryland was the first American president? Well, maybe not exactly, since he was under the Articles of Confederation. You knew about them, right? Sure, you’re lawyers, you’re interested and knowledgeable. Of course you did. But your children might not. As George Santayana famously said, “those who do not remember the past are condemned to repeat it.”

Harvard has decided to eliminate the pilgrims from its school song.

For decades, Harvard students and alumni have sung an alma mater that calls on them to be heralds of light and bearers of love “till the stock of the Puritans die.”

University officials teach the refrain to freshmen on arrival and sing it again when the students graduate years later.

But this week, a university steeped in tradition said the time had come for a change.

To affirm Harvard’s commitment to inclusion in a time when college campuses are routinely finding themselves at the center of national debates on race and identity, university officials said they are seeking suggested rewrites of that disquieting final line.

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The sound of echoes.

Over the past two months, as the nation has watched a new president drop one depth charge after another — banning Muslim refugees; ordering the demolition of broadly accepted rules protecting air, water and American consumers; flaunting conflict-of-interest and other ethical standards honored by his predecessors in office — Americans have looked to the courts, the one aspirationally nonpartisan branch of government left to them, to stop him.

Yet of late their faith in the judiciary, including the Supreme Court, the system’s ultimate arbiter, has been flagging.

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Long after the rest of the policing world accepted the premise that body cams weren’t going away, and might actually help police when they were in the right, New York Police Department persisted in its fight against them. It’s not just that it’s as big as a medium-sized country’s army, but that they were scared to death of what it would show about the job. With good reason. Stop and frisk, anyone?

So then-Southern District Judge Shira Scheindlin ordered a pilot program of 1000 body cams. That was in 2013, before Bill de Blasio was elected mayor so he (she, xe, they, it?) could turn NYC into a progressive mecca, and before BdB got his butt kicked by the police union. Almost four years later, New York City is finally discovering what police across the country have known for years, that body cams exist. Right on top of things, guys.

But like all good bureaucracies, NYPD has to have rules and regs, and they take time to establish since no excellent bureaucracy isn’t required to reinvent the wheel as if everybody hadn’t been using body cams already. And the rules they created are, as one might guess, peculiar to the New York experience.

The first “big” question is when will cops be required to turn their body cams on, since having them doesn’t actually serve much of a purpose if they’re turned off. Continue reading →

Nobody gave a damn about the deportations. There were no news reports, no hand-wringing editorials, no protests. When a father who had lived here for decades, arriving as an infant, was taken from his family, his children, and sent to a country he never knew, no one cared. When it happened hundreds of thousands of times, it was just a statistic.

But now, it’s all the rage to care about deportations. Having magically discovered it happens, the deeply passionate demand it be fixed, and so the guy who desperately wants the votes of the deeply passionate will do what he must to prove his loyalty to their feelz by diverting tax monies from things necessary to the progressive palliative of the moment.

The 2018 New York State budget included a grant of $4 million to significantly expand the New York Immigrant Family Unity Project (NYIFUP), a groundbreaking public defense program for immigrants facing deportation that was launched in New York City in 2013.

New York has become the first state to ensure that no immigrant will be detained and permanently separated from his or her family solely because of the inability to afford a lawyer.

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Law is hard, but not that hard. After three years of study at an accredited law school, it’s not unreasonable to believe that one would have the ability to pass the bar exam. And yet, many don’t.

Graduates who fail face losing jobs already started, not getting jobs that were promised, debt, embarrassment and more debt. Simply taking the exam again costs more than $700, and add to that the cost of further bar review classes, living expenses in the meantime and income lost. All told, thousands more dollars may be piled onto law school debt that is increasingly well above $100,000.

Most of those who fail their first attempt eventually pass the bar on the second or third try. After each attempt, however, these graduates do not learn to be better lawyers, they simply learn how to beat the test. And the damage done from the initial failure can be great. In addition to the financial costs, they may find themselves timed out of promising professional opportunities that never reappear. Finally, there are the emotional and psychological costs that are possibly the most overwhelming consequence of even one failed attempt.

This is all true, a veritable laundry list of terribles that come from failing the bar exam. But notably, it’s all one-sided, the narrative of the failed. As Dean of UC Hastings School of Law, David Faigman is likely smart enough to have deliberately tried to fool readers by this narrative. But it’s in his best interest as a law school dean to try to game the discussion. Continue reading →

There is much to criticize about the justices of the Supreme Court of the United States. They don’t work too hard. Under the guise of “judicial modesty,” they leave glaring issues on the table for years, sometimes decades, rather than do their job and provide meaningful guidance to lower courts. And, despite what we all take for granted, their core purpose, as we understand it today, derives from judicial activism, when Chief Justice John Marshall pulled judicial review out of his butt in 1803.

And sometimes, monumental issues of law are determined by a single justice, who breaks a tie, shifting the paradigm of a nation’s constitutional rights from one side to another. In a more rational world, one might suspect that such a shift should be determined by unanimity, if not plurality. After all, if four go one way and four the other, how certain can a nation be that the decision is right? Is it too much to expect that nine people agree before we accept a fundamental change in the interpretation of the Constitution? Is it good enough that one justice, one swing vote, be sufficient to change everything?

Yet, that’s how it works. And that’s why voices you believe are knowledgeable and trustworthy lie to you.

When Merrick Garland was nominated to the Supreme Court by President Obama, it was a smart gambit, knowing full well that the Republican-held Senate had announced they wouldn’t give anyone nominated by Obama a shake. He was a moderate nominee who could have been offered by a president from either party. There was nothing wrong with Garland, and the Republicans in the Senate, with minor exception, took no issue with the judge put forward. Continue reading →

Back in 2009, the criminal law blawgosphere was atwitter with posts about the duty of criminal defense lawyers. Back then, the question was about whether it was acceptable for lawyers to neglect, no less throw under the bus, criminal defendants when it offended their personal sense of morality because they were GUILTY!!! Good times.

But those good old days, the simple, bucolic times when children confused their feelz with their duty, are now behind us, as Mark Bennett learned when he engaged with a young lawyer, referred to only as “David*,” who sought to school Bennett on the finer points of a criminal defense lawyer’s duty.

After taking a breath, I realize that we all do our jobs on a very slippery slope. I personally try to navigate that slope a little bit more than most, as I do everything in my power to avoid taking on clients I can’t empathize with (I represent guilty people, but not if they’ve done something I find indefensible).

Up to this point, it reeks of the old-school heresy that the duty of a criminal defense lawyer is tempered by his personal feelz, his empathy. Old news. Continue reading →

After enduring the years of harassment, retaliation and vilification, otherwise known as college at Columbia University, Paul Nungesser sought to turn the tables on the abusive use of Title IX. What about him? What about the guy who was the target of Emma Sulkowicz, the infamous Mattress Girl, who took to the campus after her claims of rape were rejected?

Andrew Miltenberg’s first attempt to hold Columbia University accountable for its neglect of a male student, its complicity in Sulkowicz’ antics, its failure to stop her from bringing her mattress onstage at graduation, got shot down by SDNY Judge Gregory Woods.

The first decision was sound, but disappointing:

Disappointment in the outcome doesn’t stem from the court’s vindication of Mattress Girl’s actions, or Columbia’s complicity in them. Judge Woods had no kind words for either, and his ruling as to liability under a variety of ancillary state court claims was rather thin.

But what gives rise to disappointment is the manifest disconnect between how the Department of Education’s Office of Civil Rights, and the colleges that have applied its “guidance,” has abused Title IX for its own political agenda, where Nungesser was denied the ability to do the same.

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In the police report, it’s typical to see a description of the person who allegedly committed the crime in pathetically vague terms:

Male, 6′, 18-30, wearing jeans, dark hoodie.

That covers a lot of folks, some nice, one (at least) maybe not so much. Oh wait, there’s one additional piece included in every description: race. On the one hand, it serves the purpose of limiting the field of people who stand to be thrown against the wall or have guns pointed at their heads. On the other, it can be costly at the University of Minnesota.

The University of Minnesota has agreed to pay $65,000 to a former employee who claimed she was fired for speaking “candidly and passionately” against the racial profiling of African-Americans on campus.

Alysia Lajune, 41, was hired in March 2012 as assistant director of orientation and the transfer experience, according to a federal lawsuit she filed last May. Continue reading →