“You come in here with a head full of mush and you leave thinking like a lawyer.”

— Professor Kingsfield, The Paper Chase, 1973

Kevin Twitty, a software engineer “with a hobbyist’s interest in law,” sent an email asking for an explanation of what it means to think like a lawyer.  This isn’t exactly a new question, and others, like Lawprof Nancy Rappaport, have written at length on the question (and from whom I borrowed the opening line above).

The concept of thinking like a lawyer was at the heart of the movie The Paper Chase, which was meant as both homage and condemnation of legal education, and provided the first popular glimpse into the pressure and insanity of becoming a lawyer.

The answer to Kevin’s question isn’t all that hard.  Thinking like a lawyer, at its most basic, is taking a myriad of facts, identifying the salient facts, spotting the issue and analyzing the law as it applies to the issue.  Saying this is easy. Doing it is not. Continue reading →

Ah, that rascally New York Times, trying desperately to make sense out of this crazy world of ours.  In an article entitled “Key Factor in Police Shootings: ‘Reasonable Fear’” they offer a very thoughtful, deeply conscientious explanation of the rules of engagement between the police and the rest of us.

Each time police officers draw their weapons, they step out of everyday law enforcement and into a rigidly defined world where written rules, hours of training and Supreme Court decisions dictate not merely when a gun can be fired, but where it is aimed, how many rounds should be squeezed off and when the shooting should stop.

The Ferguson, Mo., police officer who fatally shot an unarmed African-American teenager two weeks ago, setting off protest and riots, was bound by 12 pages of police department regulations, known as General Order 410.00, that govern officers’ use of force. Whether he followed them will play a central role in deliberations by a St. Louis County grand jury over whether the officer, Darren Wilson, should be charged with a crime in the shooting.

You might get the impression that the use of force, the killing of another human being, is subject to strict regulation.  And indeed, that’s the paradigm, but for a few notable details. Continue reading →

I got a call the other morning from Lenore Skenazy of Free Range Kids fame.  Among the things we chatted about was her concept of “worst-first thinking,” which she saw in Colorado District Court  Judge R. Brooke Jackson’s decision to deny summary judgment to the Cinemark Theater that failed to have armed guards in place just in case a madman with guns happened to drop by to shoot up the place.

The judge there held within the realm of foreseeable the one-in-a-million act of a crazy, because the worst, most bizarre, least foreseeable possibility was, in his view, foreseeable.  Lenore saw worst-first thinking at work.  Notably, Ken White at Popehat thought the judge was correct.

Lenore’s concept is a variation on the physician’s zebra rule: when you hear the sound of hoofbeats, don’t assume it’s a zebra.  Expect the normal, unless there are reasons to think otherwise.  Don’t look to the outlier, the one-in-a-million shot, simply because it’s within the realm of possibility.  Don’t leap to the worst-case scenario when every probability suggests otherwise. It will make your head do crazy things, have terrible thoughts, and react to a relatively benign world in strange ways.

Lenore offers an example: Continue reading →

The Associated Press reported that all you social media addicts are enabling the bad guys.

SEATTLE (AP) — Police in Washington state are asking the public to stop tweeting during shootings and manhunts to avoid accidentally telling the bad guys what officers are doing.

The “TweetSmart” campaign began in late July by a coalition of nine agencies, including the Washington state patrol and the Seattle police, and aims to raise awareness about social media’s potential impact on law enforcement.

This explains why so many chases are interrupted so the criminals can check twitter on their smartphones to figure out what their next move should be. Continue reading →

In what may be one of the most bizarre gaps of logic offered as if it makes any sense at all, Amanda Marcotte at Slate’s XX Factor contends that the statute of limitations for rape should be eliminated.

State Sen. Wendy Davis, the Democratic candidate for Texas governor who rose to national fame last year by spearheading a fight against a draconian abortion bill, held a press conference Wednesday to highlight her ideas on how to fight sexual assault. Talking about her legislative efforts to process the estimated backlog of 16,000 untested rape kits in the state, Davis said she wanted to take the solution a step further. She proposed lifting the statute of limitations for sexual assault entirely, in no small part to make sure that rapists don’t escape justice just because a rape kit lingered untested for so long that the window for prosecution closed.

Texas has a ten-year statute of limitations for rape, already substantially longer than most states, but that’s not good enough.  After all, they have a backlog of untested rape kits, and can’t possibly get to them within ten years.

One solution, of course, would be for the state to test the friggin kits timely.  You know, do the job right?  But no, that would cost money. That would be hard on the state. Doing things right is not a solution that brings a smile to politicians faces, as it suggests they are doing things wrong, which suggests they suck at running government. That would never do. Continue reading →

The New York Times Room for Debate raised the question, again, of whether online anonymity, what it called “The War on Trolls,” must be stopped:

The Internet may be losing the war against trolls, a broad term for destructive agitators who torment and heckle others online.

Robin William’s daughter, attacked by Twitter followers, quit the service, and the writers and editors of the feminist website Jezebel published an open letter, pleading for a technical solution to graphic images that were anonymously posted in droves in the comments section.

Does anonymity on the web give people too much license to heckle and torment others?

There is no doubt that people can be complete assholes on the internet, protected by anonymity (or pseudonymity, if you need to nitpick), more so than they tend to be IRL.  It can be unpleasant, and can devolve into conduct that’s criminal.  So what’s worse than these awful anonymous trolls?

How about intellectually dishonest law professors who pander to the butthurt and ignorant?  Danielle Citron, of Cyber Civil Rights ignominy, is tapped by the Times to protect the internet’s delicate flowers from mean words. Continue reading →

After the monumentally disturbing op-ed in the Washington Post by “homeland security” professor Sunil Dutta,  I’m a cop. If you don’t want to get hurt, don’t challenge me, Judge Richard Kopf posed an interesting question:

I wonder whether Terry v. Ohio, improperly understood and mistakenly taught in police academies to give virtually unlimited power to stop (and frisk) citizens as they go about their business, emboldened generations of cops to be overly aggressive when they encounter citizens who simply don’t look right? If I am right that Terry is at least partially responsible for the Robo Cop mentality that you decry, then maybe someone ought to ask the Supreme Court to reconsider. In my view, unless Terry goes away, “stand and deliver” is the sensible mantra for citizens accosted by overzealous cops.

As commenters noted, Justice William O. Douglas in dissent on Terry thought this was a really bad decision:

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment.

What they’re talking about is the dreaded Terry Stop, where police can stop and question a person based upon a “reasonable suspicion,” meaning “articulable facts” that a person has, is or will be committing a crime. If there is a reasonable basis to believe the person poses a threat, they can pat down clothing for weapons. Continue reading →

A question was posed about what could have been going through Kajieme Powell as he waited for St. Louis police to arrive.  Lacking that magical power to read the minds of others, to project my thoughts into his and assume they were valid, I demurred.  Of course, Powell can’t explain because he’s dead.

The background was unsatisfying.

Authorities said Kajieme Powell stole donuts and energy drinks from a store yesterday afternoon, which prompted the owner to call police, according to KSDK. When two officers arrived shortly before 1 p.m., they said they observed Powell acting erratically. He refused to put down a knife when commanded to do so, police said.

Witnesses said the suspect yelled, “Shoot me now. Kill me now,” before approaching officers. Some people who saw the shooting described it as “suicide by cop,” according to USA Today.

Maybe.  Or maybe Powell, a few miles away from Ferguson, decided to test the police, to challenge them to kill another young black man. Maybe he thought he would be a martyr to the cause. Or maybe he suffered from mental illness and lacked the ability to recognize that what he was doing was not merely wrong, but fatally dangerous.  Maybe Powell could explain, but he can’t. He’s dead. Continue reading →

To a UC Santa Barbara professor of feminist studies, there are small wrongs and big wrongs.  Mireille Miller-Young committed a small wrong, for which she offered a small apology in anticipation of sentence:

“As much as the images they displayed were offensive and distressing to my students, and to me, I had no right to take their poster or destroy it,” she writes.

The poster refers to the anti-abortion poster used by Thrin and Joan Short.  Miller-Young saw it, lost it, seized it and, in the process, committed battery on Thrin.  But all this, from the suppression of ideas Miller-Young found wrong to the physical harm of Short, was secondary to the big wrong.  The big wrong was that the Shorts were WRONG, WRONG, WRONG about abortion, meaning that they must be silenced and their ideas must be eradicated by any means necessary.

Not surprisingly, there was strong, perhaps even overwhelming support, for the feminist prof.  Those who agreed with her backed her up, because the Shorts were WRONG.   The inability to distinguish between the process of allowing people to express their thoughts even when they differ from your own is apparently too much to bear when they are WRONG,  Thankfully, Miller-Young possessed no weapons at the time.

Others who shared Miller-Young’s certainty that any ideas inconsistent with her own were wrong stood up for her at sentence to explain her behavior. Continue reading →

One question that keeps poking its ugly head through the mist of obfuscation in Ferguson, Missouri, is why the police have the full panoply of weapons for an invasion of Fallujah, but there was no camera to be had when Darren Wilson shot Michael Brown down in the street.  So many questions might have been answered, quickly and cleanly, if only a neutral record existed.

But it didn’t. No body cam. No dash cam. No cameras to be had.

Cameras are the answer, many have said.  And they may well have been, in this instance. Unless, of course, something went “wrong.”  Our reliance on extrinsic solutions, particularly those tech tools that, in theory, would facilitate the desired clarity, is well-placed only to the extent two things occur: the tech works, and humans don’t get in the way.

Via Jonathan Turley,

In New Orleans, Armand Bennet, 26, was shot in the forehead during a traffic stop by New Orleans police officer Lisa Lewis. However, the police department did not reveal until much later that Lewis turned off her body camera just before shooting Bennett. Bennett survived and has now been charged under prior warrants for his arrest. It also reviewed that Lewis had had a prior run in with Bennet who escaped about a week earlier.

Continue reading →