There’s an ongoing series at Slate called the Supreme Court Breakfast Table. I don’t know what they serve, but it’s clearly not bagels and lox, as proven by the fact that nobody invited me to dine.  But then, who would want a trench lawyer horning in on the polite conversation of important legal minds so early in the morning, right?

Except that Judge Richard Posner is in there, serving up a huge portion of grits.  The Seventh Circuit’s firebrand is the “Dick” in the title, which is what some of the participants call him in the dialogue. Not Indiana lawprof Dawn Johnsen, however, who offered this parenthetical:

(I note that by using Judge Posner rather than “Dick,” I hope I am being appropriately but not “too respectful;” addressing a judge known from clerkship days by his first name feels to me as unnatural as would calling my fourth-grade teacher “Lee” and not Mr. Tintle, even decades later.)

Like Johnsen, I call judges “Judge,” though my reason is somewhat different. It’s not because of some personal clerkship quirk, or any concern about being obsequious. I will call them “judge” while being slightly critical of their decisions. No, my reason is institutional. They’re judges and I’m not. They get to be called by their title out of respect for the institution and the fact that they hold an office in it which I do not. Continue reading →

Much as USA Today’s Brad Heath is to be commended for bringing to the forefront another mind-numbingly dumb thing a judge said, it’s not without a problem.

This is from United States v. Matish, another of the Playpen cases where the feds took an ongoing kiddie porn site, continued to commit the crime it contends is so heinous to identify its users by dubious means, and are now facing challenges in various federal courts around the country.  This decision was from Virginia Senior United States District Judge Henry Coke Morgan, Jr.  And it’s not only ignorant from a computer point of view, but its logic fails by any calculus. Continue reading →

At Reason, a former federal prosecutor turned defense lawyer tells all. Granted, it’s just one guy’s story, but it is his story whether you like it or not. As it happens, that one guy is my buddy, Ken White.

When I left the U.S. Attorney’s office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I’m a defense-side true believer—the very sort of true believer that used to annoy me as a young prosecutor.

Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly. I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion—and even paranoia—from the wrong end. I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.

What follows is an explanation of the forces that framed his mindset, his perspective. Whether this is an overarching explanation for all prosecutors, or just how one came to be the prosecutor he was, and his epiphany that he was the prosecutor he didn’t want to be, I dunno.  Continue reading →

In the aftermath of the Brexit vote, while all the really smart people are explaining that the Brits who voted to leave are stupid racists, few (if any) seem to factor into the equation that this is what happens when you leave decision-making to the will of the majority. You can argue whether the vote actually reflected the will of the majority, but that, too, is a fool’s argument. They took a vote. Leave won. That’s how voting happens. Excuses don’t change it.

Watching the blind adoration of every nouvelle concept in the past decade, there would seem to be no way to miss the fact that early adopters, loud and passionate, at the fringes keep trying to push their way to the center, to make their idea the mainstream. They talk their way past the objections, sometimes with slogans, other times with anger and viciousness, always with the certainty that simpletons clutch to their chest that they are right.

Maybe the Brits who voted to leave are stupid racists. So what? Even stupid racists get to vote. More realistically, even regular folks who aren’t on the cutting edge, who aren’t willing to sacrifice what few gains they’ve made in their own life to your gender and racial politics, to the sacrifices you feel are worthy because of whatever sense of fairness and equality you feel, get to vote. Continue reading →

Milo Yiannopoulos, who twits under the name @Nero, trades in outrageousness to make his gay conservative point as tech editor at Breitbart. Hate him all you want (and for SJWs, that was plenty), but it failed to serve as compelling justification to remove his blue check mark. Robert Stacy McCain wasn’t so lucky, being stricken from the twitters for being too harshly conservative.

Now, it’s Josh Smith.

Josh Smith, a Cornell graduate who runs a private legal practice in Pennsylvania, had his account “@ThisIsJoshSmith” suspended and then restored five times over the course of six months, without any explanation from Twitter. This led Smith to believe that his suspensions were “false positives” – a flaw in the platform’s algorithms.

Josh Smith comes across as polite, mild-mannered, and intellectual. He publishes long, thoughtful posts on politics, the law and society on his personal website, which only rarely descend to personal attacks. If he wasn’t a conservative, he’d be the last person you’d expect to have had his Twitter account suspended multiple times.

Continue reading →

The outcome of Fisher v. University of Texas, holding that the holistic consideration of characteristics such as race that would otherwise violate the Equal Protection Clause of the Fifth and Fourteenth Amendments is constitutional, is one I support on a policy basis.  In other words, I believe that a diverse student body provides inherent virtues.

But “stuff I believe” is hardly a valid legal test, any more than stuff you (or anyone else) believes. And indeed, it wasn’t the test applied by the Supremes, because the law requires that UT’s race-cognizant admissions pass muster under strict scrutiny.  Before you scream that strict scrutiny is too high a bar, remember that it’s the same test if the same characteristics were used, but in the opposite direction. Would a college admissions policy favoring whites only be constitutional? Strict scrutiny applies there too. Happy now?

But Hans Bader raises a problem that might easily be obscured by the fact that UT’s policy is on the side of the angels.

The Court conceded that under its own past precedents, “A university’s goals cannot be elusory [sic] or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them.” It then upheld the use of race to promote vague “educational values” whose achievement was unproven (and which would probably not be measurable to begin with) as a “compelling government interest”: Continue reading →

They mean well. They always mean well. Lord, save us from the well-intended.

Dubbed the Campus Equality, Fairness, and Transparency Act (CEFTA), the bill would largely overturn the regulatory apparatus that has governed campus sexual-misconduct proceedings since the Department of Education’s 2011 “Dear Colleague” letter, now the subject of litigation.

Though CEFTA is written for introduction in Congress, its author – Stop Abusive and Violent Environments – wrote that it could be modified for the state level as well.

The bill won’t be enacted, so it’s not like it’s worth the time to parse it in detail. This is good, because writing a law is very difficult and while this was a fine effort for n00bs, it’s replete with internal inconsistencies. What? Well, how about the accused having the right to remain silent, but the complainant having the right to “safely” (whatever that means) examine the accused. Continue reading →

On one level, the Supreme Court’s ruling in Birchfield v. North Dakota seems like the kind of opinion we hope for. It gives us a rule, a bright line test, as to what the police are authorized to do and what they’re not.  The holding is that after an arrest, they can compel a breath test, but they can’t compel a blood test without a warrant.  A job well done (finally)?

Absolutely. Except for the lingering questions about how this plays out in real life. The perennial bugaboo of law is that final official decisions are made in an ornate, quiet, impressive, dignified courthouse, while it’s executed on dirty, mean, nasty streets.

Putting aside the obvious detail that makes this ruling somewhat less significant than it might appear, that a cop can get a warrant to do pretty much anything he wants at any time of the day or not with a quick phone call, rendering the rest of the ruling rather silly, at least it forces the process to pretend to be a little closer to the unloved warrant clause than it might otherwise be. But then there are the easy words used by the majority that seem so very clear but get all fuzzy on the road.

You’re under arrest. Continue reading →

Sure, there were other pressing matters requiring New York City’s attention. Like crafting an effective law that authorized people to make up their own words and titles, and mandating that other people use them upon pain of death.  But then, how hard was it to put body cams on a thousand cops?

Three years have passed since a Federal District Court ruled that New York City’s stop-and-frisk program violated constitutional prohibitions against unreasonable search and seizure and discriminated against minority citizens, who were disproportionately and unjustifiably singled out for stops. A court-ordered reform process — overseen by an independent monitor — is off to a promising start. But some of the thorniest and most contentious issues lie ahead.

Three years? And this is “a good start”?

In 2011, at the height of the program, the police stopped people on the streets an astonishing 685,000 times — up from just 97,000 a decade earlier. In practical terms, this meant that individuals in heavily policed neighborhoods could be stopped on the street without cause multiple times within a given year.

Continue reading →

It’s hard, if not impossible, for this picture not to evoke a reaction.

House Democrats staged a sit-in to, something, something, “common sense” gun control. There were twits aplenty about how it was just “common sense,” a phrase with which I’ve taken some small issue in the past, but only because it’s a ploy to pander to the hard of thinking in order to make their feelings appear rational in the absence of any thought at all.

The concept of a sit-in raises some questions as to its purpose, what the participants hoped to gain.  After all, they are sitting on the ground in a chamber where they have comfy seats, where the public cannot tread, where they are the stewards of the chamber, together with their Republican colleagues.  What were they hoping to gain? Continue reading →