It’s hard to come up with a truly novel defense for having coerced a confession and put an innocent 16-year-old in jail for three years, but Worcester managed to pull it off.  Way to go, Worcester!

The lawyer for a woman suing the city alleging a host of civil rights violations has, in an unusual legal turn of events, himself become a defendant in the civil case he filed.

In answering the lawsuit brought late last year by Nga Truong, who was charged by Worcester Police with killing her infant son four years ago based on what was later ruled to be a coerced confession, city lawyers have hit back with a third-party complaint against her lawyer, Edward P. Ryan Jr.

The city’s complaint in federal court claims that if Ms. Truong is entitled to damages for the nearly three years she spent in jail awaiting trial, then Mr. Ryan is as much to blame as the city because he took too long to get the coerced confession tossed out of court by the judge.

“Ryan’s breach of his duty was a direct and proximate cause of plaintiff’s alleged injuries and damages,” according to the city’s claim.

“Her lawyer allowed almost two years to pass before he made a motion to get her released by suppressing her confession. While there are numerous defenses in this case, our position on this point is that, if the city is somehow found liable for the excessive incarceration, then the lawyer who represented her also bears liability for her time in jail,” [City Solicitor David M.] Moore said.

Legal observer David E. Frank, a lawyer and managing editor of Massachusetts Lawyers Weekly, called the city’s effort to include the lawyer who got her released from prison in any damages resulting from her confinement an unusual one.

Mr. Frank noted that Mr. Ryan likely had to watch the video tapes of his client’s questioning many times, carefully review recent Supreme Judicial Court cases involving confessions and collect testimony from expert witnesses before filing a motion to suppress.

“Is the city saying that the lawyer should have just whipped something together and filed it quickly in a case where a 16-year-old girl was looking at life in prison? That argument seems like a stretch to me,” Mr. Frank said. “The stakes couldn’t have been higher.”

The  doctrine of Standing is generally a pretty good one. Derived from the Constitution’s Article III requirement of a case or controversy for jurisdiction, It prevents some guy in Des Moines deciding he doesn’t like what some guy in North Carolina did, and suing him for it, forcing the North Carolina guy to have to defend a case against some guy who has nothing whatsoever to do with the claim.

Yet when a good doctrine is combined with those dreaded words, the majority opinion written by Justice Alito, it’s enough to send chills down one’s spine.  That happened in the Supreme Court’s 5-4  reversal in Clapper v. Amnesty International, challenging the constitutionality of §1881a surveillance under the Foreign Intelligence Surveillance Act of 1978, as amended in 2008.

Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA),50 U. S. C. §1881a, added by the FISA Amendments Act of 2008,permits the Attorney General and the Director of National Intelligence to acquire foreign intelligence information by jointly authorizing the surveillance of individuals who are not “United States persons” and are reasonably believed to be located outside the United States. Before doing so, the Attorney General and the Director of National Intelligence normally must obtain the Foreign Intelligence Surveillance Court’s (FISC) approval. Surveillance under §1881a is subject to statutory conditions, judicial authorization, congressional supervision, and compliance with the Fourth Amendment.

To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Monsanto Co. v. Geertson Seed Farms, 561 U. S. ___, ___. “[T]hreatened injury must be ‘”certainly impending” ’ to constitute injury in fact,” and “[a]llegations of possible future injury” are not sufficient. Whitmore v. Arkansas, 495 U. S. 149, 158.

More broadly, the ruling illustrated how hard it is to mount court challenges to a wide array of antiterrorism measures, including renditions of terrorism suspects to foreign countries and targeted killings using drones, in light of the combination of government secrecy and judicial doctrines limiting access to the courts.

“Absent a radical sea change from the courts, or more likely intervention from the Congress, the coffin is slamming shut on the ability of private citizens and civil liberties groups to challenge government counterterrorism policies, with the possible exception of Guantánamo,” said Stephen I. Vladeck, a law professor at American University.

Justice Alito wrote that the prospect that no court may ever review the surveillance program was irrelevant to analyzing whether the plaintiffs had standing. But he added that the secret court does supervise the surveillance program.

It is also at least theoretically possible, he added, that the government will try to use information gathered from the program in an ordinary criminal prosecution and thus perhaps allow an argument “for a claim of standing on the part of the attorney” for the defendant.

Mr. Jaffer said the situations were far-fetched.

“Justice Alito’s opinion for the court seems to be based on the theory that the secret court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come,” Mr. Jaffer said. In many national security cases, he added, the government has prevailed at the outset by citing lack of standing, the state secrets doctrine or officials’ immunity from suit.

There’s a discussion brewing at Concurring Opinions around a book by lawprofs   James Fleming and Linda McClain entitled  Ordered Liberty: Rights, Responsibilities, and Virtues, which has raised a troubling question. Should the federal government be allowed to compel schools to teach children to be patriots?  No, not your kind of patriots. Not my kind either. The kind of patriots who yell “America, love it or leave it.”

Kent Greenfield questions the propriety of forced patriotism:

[Fleming and McClain] use  as an opening foil an op-ed I wrote in the New York Times in 2011 arguing that Constitution Day is a bad idea and “probably” unconstitutional. In that essay and in a couple of others, I have revealed Constitution Day to be a bete noire of mine. Constitution Day, as you probably know if you’re an academic, is a federal mandate dating from 2005 that any school receiving federal funds — public or private, kindergarten or law school — conduct some kind of educational program on the constitution on or about September 17 of each year. My basic argument is that it operates as a federal content-based mandate on those schools and thus amounts to coerced speech under the First Amendment. More broadly, I argue that coerced patriotism is a Bad Thing, using as my text Justice Jackson’s admonition in West Virginia v Barnette: “To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.”

Greenfield poses the question, “Does our judgment of what constitutes a valid exercise of the federal government’s power to encourage civic virtue depend on the content of what is being encouraged?” Our answer is, yes, it most certainly does. As we put it, quoting the Supreme Court, government may “inculcate fundamental values necessary to the maintenance of a democratic political system.”

You’ve got African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you — a light bulb doesn’t go off in your head and say, This is a drug deal.

Tell the truth. There are plenty of you out there who are thinking to yourselves, “well, yeah. Duh.” It’s just like that old joke, “what do you call four black men in a Cadillac? Grand theft auto!” Because that’s what blacks and hispanics do. They’re mostly criminals. And welfare cheats. And lazy. And violent. Not all, of course. Some of your best friends are black and Hispanic, but those are the ‘good” ones. They’re different.

Some white folks try their best to recognize their inherent prejudice and fight it. They realize that the black and Hispanic experience is very real. They aren’t proud of themselves for their inability to think of others with different skin color or ancestry, or gender or sexual preference, without imposing some degree of bias, but they are sufficiently aware to make the effort to not let their prejudice manifest itself in a statement like the quote that starts this post.  They try to be better. They hope that the day will come when these ideas no longer exist in the deep recesses of their mind.

But the fellow who uttered these words didn’t see the problem.  When Supreme Court Justice Sonia Sotomayor, who sits on the Hispanic seat, read these words, she was sufficiently offended that she wrote about it.

It is deeply disappointing to see a representative of the United States resort to this base tactic more than a decade into the 21st century. Such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law. We expect the Government to seek justice, not to fan the flames of fear and prejudice.

She was not so offended that she voted for the court to hear the case, however. Nor was she sufficiently offended as to include the name of the offending government official.  As Jeff Gamso notes, so much for there being any consequences for doing wrong. Well, at least if you’re a government official. Otherwise, there are consequences aplenty.

Rather than merely bemoan the grievous wrong of such an inflammatory and prejudicial statement, Ken at  Popehat did what no one in the media or on the Supreme Court (or any lower court, for that matter) was willing to do.  He typed the letters that spelled out a name and identifying information of the person who uttered those offensive words.

Assistant United States Attorney Sam L. Ponder of the U.S. Attorney’s Office for the Western District of Texas in San Antonio

While Sam Ponder isn’t the only man in America who lacks the metacognitive skills to recognize his prejudice, or the interest to overcome it, the fact that he’s a federal prosecutor and exercises the power of his office in furtherance of his prejudice is a matter of great public concern.  It should be important enough that the media identify the prosecutor who said it, that the courts identify the person who said, that the Supreme Court Justice who was so offended identify the person who said it. 

Yet, no one did except Ken.

At the juncture of guts and media, former fuzzy-slipper wearing blogger turned Huffington Post media celebrity, Radley Balko, was moved by Ken’s boldness.

Ken at Popehat is right — those of us who cover these issues need to do a better job of identifying prosecutors who cross the line. But this is also information that should be readily and publicly available. These are public officials. They work for us. And they have incredible power — the power to ruin lives. There’s really no good reason why their misconduct should be obscured.

To that end, I’m going to start a recurring feature at this blog that will — as Popehat puts it — “name and shame” misbehaving prosecutors.

Radley points out, correctly, that questions and statements uttered in the course of a prosecution that play upon the incipient prejudice that remains at the core of whites is just one aspect of the wrongdoing that gives rise to Gamso’s “no consequences.”

Distasteful as Ponder’s question was, prosecutors frequently get away with far more damaging misconduct — withholding or even manufacturing evidence, for example — and thanks to this habit of not naming them in appellate opinions, they not only escape professional sanction, but public accountability.

The problem goes even further than this, extending to the remedies provided by courts in those rare instance where misconduct is found.  Forget naming the evil-doer. Forget the evil-doer suffering real-world consequences, whether getting fired or suffering financial liability for his conduct. The typical remedy is a do-over, where the government gets a second chance to do it the way it should have been done in the first place.  The message is if you do wrong and get caught, a big “if” to begin with, the worst that will happen is that you will have to do it again the right way.

Those of us who type out words while  wearing a bathrobe  may not be considered serious by those who get paid to type out words on subjects about which they know little, but we have one thing going for us that more important voices lack.  We have an appreciation of the fact that the courts protect those who do wrong while receiving a government paycheck. They may speak ill of their conduct, like a parent chastising a child for the 397th time to not put his elbows on the table, but never imposing any more of a punishment than making them get their darn elbows off the table.

Ken did what a Supreme Court justice lacked the fortitude to do.  Gamso made the point that a Supreme Court justice failed to do when, despite her offense, she completed a unanimous denial of certiorari.  Radley did what journalists who write for widely read “legitimate” media are loathe to do, compromising their access to power by taking a stand that will anger important government officials.

Putting Sam Ponder’s name into the title of this post isn’t sufficient.  He should no longer be in the government’s employ, but he is. The best the blawgosphere can do is impose our own brand of incentive to prevent prosecutors who do wrong from never suffering any consequences, not even the most minor of public exposure.

But at least we’re trying and doing something. Otherwise, you would never know the name of Sam Ponder, the guy who thinks that blacks and Hispanics plus a bag of money equals drug dealing.  And Sam’s name deserves to be known, at the very least.

While not the only amendment in the bill of rights of importance to criminal defendants, it’s certainly the one the generates the most litigation by a mile.  The Fourth.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

In what is quite possibly the most (only?) useful post ever written in the legal blogosphere, John Wesley Hall, author of a massive treatise of 4th Amendment Law, gives us a preview of the next edition with 13 “realities” of the 4th Amendment obvious to him after reading a shit-ton (that’s a legal term) of cases. Don’t be fooled. This is essentially a primer for 4th Amendment law. He’s giving away the outline here.

13. If you find you don’t completely understand the Fourth Amendment, you’re not alone because hardly anybody does any more. To me, much of the Fourth Amendment has turned into a Rorschach test that means different things to different people, all depending on how they want it to come out. How did just 54 words generate untolled [sic] millions of words in cases, treatises, and law review articles? The U.S. Supreme Court alone has decided about 250 Fourth Amendment cases.

It isn’t accidental that Hall suggests that doctrine takes a back seat to outcome. If there is one factor that is most significant in determining the outcome of a suppression motion, it’s the inclination of the judge. It’s not the facts. It’s not the law. It’s the willingness of the judge to do the dirty deed of telling the prosecution that they can’t use the great evidence that nails the coffin shut on the guilty defendant.  The criminal goes free because the constable stumbles.

A great many thoughtful people will find this astounding, contrary to the beloved platitude that we are nation of laws, not men.  But words can wiggle, and no word wiggles better than “unreasonable.” With minimal effort, there is always an argument to be made that the great value of public safety trumps the minor intrusion on individual rights.

The black letter law is that a warrantless search is per se unreasonable. This line will appear in almost every decision involving the 4th Amendment.  The rest of the decision will explain why it doesn’t apply. When it comes to search and seizure, the exceptions to the doctrine have completely overwhelmed the rule.

For a judge to come out on the wrong side of the equation is to risk personal ruination.  Consider Southern District of New York Judge Harold Baer’s 1996 ruling in Bayless.

After his decision was issued in late January, Judge Baer was widely criticized by public officials, including Mayor Rudolph W. Giuliani, as well as by radio talk show hosts and others, who said it was an example of a judiciary that cared more for the rights of criminals than for the rights of the public.

Much of the criticism focused on a comment he made about four men who the police said had dropped two duffel bags stuffed with $4 million worth of drugs in Ms. Bayless’s trunk on April 21, 1995. The judge said he considered it reasonable and not suspicious for the men to flee when they saw police officers in Washington Heights, a neighborhood that he said was beset by police brutality and corruption.

“Had the men not run when the cops began to stare at them, it would have been unusual,” he wrote, adding that the act of fleeing was not enough to justify police officers’ pulling over the woman’s car.

Calls for his impeachment came from all quarters, including the Clinton White House. Miraculously, the judge decided to revisit his ruling “in the interest of justice,” and reversed himself, thus staving off his impending trial in the Senate.  And that’s how Judge Baer saved his future as a Supreme Court Justice. Or a Second Circuit Judge. Or still a district court judge with no future potential of ever being named to a higher bench.

Still, the occasional unlawful search and seizure will result in suppression. It happens.  And it’s those rare cases, those rare judges, who inexplicably yet boldly decide to honor the Constitution and rule in favor of the defendant despite all incentives to do otherwise, that make this area of criminal law so confounding.

So you’re in Maricopa County, driving along, just fine, and the cops pull you over. Busted.  Via Reason :

An Arizona appeals court has ruled that motorists don’t actually have to be under the influence to be prosecuted for driving under the influence.

Via the Associated Press:

An appeals court has issued a ruling that upholds the right of authorities to prosecute pot smokers in Arizona for driving under the influence even when there is no evidence that they are actually high.

Ironically, while the law is facially absurd, the ruling of the Arizona Court of Appeals is completely logical.

Our legislature has determined it is unlawful for a person to drive a vehicle while there is any drug, as defined in A.R.S. § 13-3401 (2012), or “its metabolite” in the person’s body. A.R.S. § 28-1381(A)(3). This statutory prohibition “was enacted as part of Arizona’s comprehensive law regulating drivers under the influence of intoxicating liquor or drugs (“DUI”) and designed to protect the public by reducing the terrible toll of life and limb on our roads.”

The crime isn’t driving while intoxicated. The crime is driving while having a metabolite in one’s blood, even though the metabolite bears no connection to being under the influence or inability to drive safely.

The metabolite was a remnant of old marijuana use, possibly up to four weeks prior, and itself bore no connection to being high or compromising ability.  In other words, having the metabolite in one’s blood meant nothing when it came to being fully able to drive safely.  What it did mean, however, was that sometime in the prior four weeks you smoked pot.

In Phillips, the defendant challenged the facial validity of A.R.S. § 28-692(A)(3) (1994) (now § 28-1381(A)(3)), arguing it was unconstitutionally vague and overbroad. 178 Ariz. at 370, 873 P.2d at 708. We disagreed, noting that the legislature intended to create a “per se prohibition” and a “flat ban on driving with any proscribed drugs in one’s system.” Id. at 372, 873 P.2d at 710 (emphasis added). We determined that the legislative ban extends to all substances, whether capable of causing impairment or not.

Crazy as the outcome may seem, it is the logical outcome if one separates the law from its true purpose. As the court of appeals held, the law imposed a “flat ban on driving” after one smoked pot, even if it was long out of one’s system but for the metabolite it left behind.

The question is whether this is the crime the legislature intended to create, or rather somebody, in their zeal to not let anyone escape conviction by arguing that the evidence of drug use was merely a metabolite rather than the active chemical, crafted a law that criminalized something well beyond what any rational law would demand.

In other words, the outcome of the law is ridiculous, but the problem isn’t that the court interpreted the law wrong, but it was just a bad law.  In Arizona. Who would have guessed?

At the same time, the Court of Appeals wasn’t constrained to reach this decision, separating the purpose of the from its effect.  Due process and equal protection analysis would have allowed the court to reject slavish adherence to strict construction of the legislative language by holding that a law that criminalizes conduct that is distinct from the evil the legislature sought to cure is overbroad and vague.

Did the Arizona legislature really mean to create a punishment for all people who have a nonactive pot metabolite in their bloodstream without regard to their ability to safely drive a car?  The language could be read that way, but the justification for the conduct being criminal, living in a post-pot stage for whatever period of time it takes for a metabolite to dissipate from the blood stream, is the protection of lives on the road. Does it do that?  Nah.

Perhaps the court was trying to embarrass the legislature into crafting better laws by making such an absurd ruling. Perhaps they hate pot smokers so much that they want to criminalize their very existence, without regard to whether they present any risk of harm to anyone.  This is Arizona, the land of crazy law and wild courts, so who knows?

And yet, driving sober in Arizona without four weeks of smoking pot is a crime. Guide yourself accordingly.

Update:  The Arizona Supreme Court has reversed, holding that you have to actually be high to be prosecuted for being high, rather than have metabolites in your blood. This further proves that not everybody in Arizona is totally nuts.

H/T FritzMuffKnuckle

The Supreme Court, in a 6-3 split decision, figured out something that the Second Circuit couldn’t: no rubber band can stretch a mile.  In Bailey v. United States, the Court held that Chunon Bailey’s seizure about a mile away from an apartment where a search warrant was being executed wasn’t close enough.

Before anyone says “duh,” bear in mind that this wasn’t the outcome below, and failed to capture the votes of three justices.  The problem wasn’t that these jurists were distance impaired, but that their vision was fuzzy by one critical fact: they guy was guilty.  That’s when the pull out the balancing test.

As the  New York Times editorial explains:

[O]fficers in a small New York town got a warrant to search for a handgun in an apartment allegedly used by a drug dealer. Detectives conducting surveillance observed two men, both matching a description of the dealer, get in a car near the apartment. The detectives followed the car for about a mile before making the stop. One of the men was Chunon Bailey. The officers handcuffed both men and drove them back to the apartment. The search team found a gun and cocaine. One of Mr. Bailey’s keys fit the apartment door. Mr. Bailey was convicted of drug trafficking and gun possession, and sentenced to 30 years in prison.

The Court of Appeals’ mistake, echoed by the dissent, was to replace that straightforward, binary inquiry with open-ended balancing. Weighing the equities—Bailey “posed a risk of harm to the officers,” his detention “was not unreasonably prolonged,” and so forth—the Court of Appeals proclaimed the officers’ conduct, “in the circumstances presented, reasonable and prudent.”

The Court of Appeals read Summers’ spatial constraint somewhat more promiscuously: In its view, it sufficed that police observed Bailey “in the process of leaving the premises” and detained him “as soon as practicable.” 652 F. 3d, at 206 (emphasis deleted); see also post, at 6–7. That has pragmatic appeal; police, the argument runs, should not be precluded from seizing the departing occupant at a distance from the premises if that would be safer than stopping him on the front steps. But it rests on the fallacy that each search warrant entitles the Government to a seizure incident to the execution of a warrant “is not the Government’s right; it is an exception—justified by necessity—to a rule that would otherwise render the [seizure] unlawful.”

Who doesn’t hate a promiscuous reading of spatial constraints?  Throwing its editorial heft behind the decision, the Times stated:

But the Supreme Court rejected that ruling, noting that distance from the scene matters. Detentions made away from the place being searched “resemble a full-fledged arrest,” Justice Anthony Kennedy wrote in the majority opinion.

Resemble?  As in “she has her mother’s eyes” resemble?  That the majority even goes there is disturbing, even though it ultimately reaches the right result. 

The flavors of seizure of a person have come to rival Baskin-Robbins.  When police seize a person, who is then not free to exercise his constitutional right to walk away, he is arrested. When the slap on cuffs and unceremoniously put him in the back seat of their cruiser. he’s arrested.  Even if they don’t smack him around in the process, he’s arrested. How did we reach the point where police can do as they please with a human being’s body and it’s something shy of an arrest?

The answer is unfortunately simple: when you humpty-dumpty the characterization enough, concepts that demand to be clear, such as arrest, fall into the beloved rhetorical black hole of “reasonableness.”  Mangle the details a bit and throw in a few pointed adjectives, especially from the perspective of the police, and pretty soon everything sounds fairly reasonable. And obvious reasonable is better than unreasonable, right?

Well, not according to Scalia, who cuts through the malarkey to get at the only real point raised by the case, and yet somehow not factored into the ruling except by his co-concurrers, Justices Ginsburg and Kagan.  The test isn’t wiggly line, subject to balancing and the rhetoric of reasonableness.  It’s a search warrant.  It’s the authorization to search a premises, not to seize people wherever they may be.  That they get to nab people inside the premises, or in the immediate vicinity is a gift, not an entitlement.

Just because Summers gave the cops one free ride doesn’t mean they get to ride forever.  Even the Times doesn’t seem to grasp that each step on the slippery slope doesn’t give create a new government entitlement, only to be extended at every opportunity.

Bailey would have seemed to be one of the most straightforward suppression cases possible, his being arrested a mile away from the search, and yet it took a split Supreme Court to figure out that it was a bust too far.  Even so, six justices fail to appreciate that sometimes the government just can’t do anything it pleases even if they use the word “reasonable” enough.  Sometimes, a line has to be drawn.

While it’s not exactly clear where that line is drawn, at least we now know that a mile is beyond it. Duh.

In a  recent post revisiting the Aaron Swartz case, Orin Kerr noted (I think with some humor) a quote of his, in a remarkably ill-conceived post by my  favorite Slate legal pundit, on the 9th Circuit’s  Nosal en banc opinion being “superb and extremely insightful.”  The “inside joke” of the quote is that all ideas are “superb and extremely insightful” if we agree with them.

This brings me to a post by Orin that every thinking person needs to read, subtly entitled Brilliant People Agree With Me.

One of the consequences of confirmation bias is that we are overly impressed by ideas that we happen to share. It’s a natural instinct, if not watched carefully. If you read something that reflects or resonates with your own views, you’ll agree with it. Upon agreeing with it, you’ll think it is highly persuasive. And if it’s highly persuasive, it’s probably brilliant. You see this often in the blogosphere when bloggers link to someone’s “superb” and “extremely insightful” post. You click on the link, and you’re underwhelmed by the post. But you realize it is strikingly similar to what the original linker thinks about the topic. It’s possible to take our blinders off, or, more realistically, to minimize them. But it often requires some work, and the amount of work that different people give varies considerably.

I explained before why brilliant people agree with me. I want to talk about the other side of the picture. I’ve come to the realization that people who disagree with me are just arguing in bad faith. How do I know? Well, when I get into an argument, no one who disagrees with me ever says anything I find persuasive. They never even come close. It seems to me that if a person who disagrees with me were smart and acted in good faith, surely he would say something that persuaded me (even if only a little). But since that never happens, people who disagree with me must be either stupid or acting in bad faith. I’m a generous person, so I won’t assume the other guy is stupid. And that leads me to conclude, reluctantly, that people who disagree with me are arguing in bad faith.

But what about lawprofs? Aren’t they entitled to a little happiness too?

Backing up yet another effort to justify the value of legal scholarship, this time by lawprof  Tamara Piety at the  Faculty Lounge, which was met with some less than enthusiastic support by the poor disgruntled students and new lawyers who feel that it comes on their backs and at their expense,  Michael Mannheimer offers his views a PrawfsBlawg.

Coming out swinging, Mannheimer notes that the Philistines attack because of the cost of legal scholarship, while Piety’s arguments deal with their value and utility. Legal academia still smarts from smacks like that handed out by Chief Justice John Roberts, who made it clear that legal scholarship was a bore less than useful to judges, exacerbated by the latest efforts to defend the value of law faculty without practice experience charged with teaching students how to practice law. 

Her defense of scholarship is well inside the box. Sometimes it can useful, and besides, the baby was always ugly. So there. So what if the useful scholarship is overly burdened by obtuse jargon and 10,000 words too long? If there is one in a hundred that furthers legal thought, isn’t that worth it?

Her defense of academics who don’t practice, on the other hand, is lame, but then it was always a silly argument. Of course practice experience in the hands of a good teacher makes them better able to impart their knowledge to students. Too many words have been murdered on this obvious point already.

In contrast to the wasted effort of arguing a lost cause, Mannheimer spills the beans (which I’ve broken into multiple paragraphs for readability):

In addition, most of the professors I know at non-elite institutions are like me:  we went into academia because (1) we love teaching the few areas in which we have a real expertise and interest and (2) we love writing about them.  If I didn’t do scholarship and were weighted down teaching classes in which I have no interest, academia starts to look a lot like practice:  a 60-80 hour work week doing something I don’t particularly enjoy. 

But there’s one big difference:  in practice, I can do things I don’t particularly enjoy for a lot more money.  Most law professors at non-elite schools make far below their market value.  The trade-off is that we do what we enjoy, set our own research agenda, and have flexible hours.  Take that away and being in academia is not worth it. 

So, at least as far as the non-elite schools are concerned, faculty who can leave academia and get better pay will do so; those who can’t will put in as little effort as possible; and, perhaps most importantly, those schools will stop attracting faculty who go into academia as a choice and attract only those who do so because they can’t make it in practice.  As mediocrity of the faculty increases, of course, the salaries they demand should go down, which should lower tuition.  But that’s like saying that it’s cheaper to eat at McDonalds than at the Corner Bistro.

There’s the rub: lawprofs do what they enjoy doing.  Aren’t they entitled to be happy? Aren’t they entitled to leave a job they dislike, perhaps even hate, to take their place in the Academy where they do only what brings a smile to their face?

It’s not that they don’t love teaching, but that love teaching only those things they love to teach. Aren’t they entitled to only teach courses they love to teach? Isn’t their happiness more important the loading them up with teaching assignments in areas they “don’t particularly enjoy,” that would make them sad? Do you want a sad lawprof? 

They get to do only what pleases them. They get a paycheck while being free to indulge their interests. They have “flexible hours,” which smells remarkably like work/life balance. It makes them happy. Don’t you want them to be happy?

Take that away and being in academia is not worth it.

Then comes the fist in the velvet glove. They aren’t being happy for themselves, but for your benefit, grasshoppers. They are sacrificing horribly for you, forsaking the great wealth they would command in the legal marketplace for the pittance they receive as scholars.  And if they weren’t otherwise happy, they would flee en masse back to the trenches, where they would be miserably rich, leaving students in a cesspool of mediocrity.

And if law schools are staffed by cheeseburgers, as opposed to steak au poivre, tuition may well go down, but only because you’re buying off the dollar menu.  Who knows that’s in those burgers?

No doubt some lawprofs could command a mighty fine salary in the marketplace. But there is a great deal of doubt that most could. Indeed, there’s a pretty good argument to be made that few could survive practice, But since this claim is untested, there never having been a mass exodus from academia into practice, it can’t be proven. At the same time, neither can the lawprof myth that they are financially undervalued, which remains an article of faith in the academy, and a foundation upon which many of their rationalizations are built.

Yet it’s the manifestly cavalier concern for their own pleasure is what pisses everyone off, and Mannheimer appears completely tone-deaf. No, debt-laden law students and unemployed new lawyers really aren’t more concerned about your happiness than their misery.  To be frank, nobody feels particularly badly for the lawprof who is forced to teach a class that doesn’t interest him.  Big boys and girls do what they have to do, even when it isn’t fun. 

While it’s long been suspected that the stalwarts of the  legal academy’s resistance to change was just a matter of protecting a job and lifestyle made them happy, Mannheimer now confirms that it’s true.  Out of the closet in the Ivory Tower emerges the Slackoisie, entitled to a life that pleases them.  Your life sucks? Too bad you’re not them.

The irony is the threat, that absent the entitlement to a life of scholarly and financial pleasure, the law schools that have sucked the joy out of so many young people would collapse, leaving them at best to be trained as auto mechanics in the law.  Maybe it’s time to test this theory, to see whether academia is worth it, whether lawprofs could go to the trenches and command vast, even if miserable, wealth. I suspect their dreams of grandeur might be so easily fulfilled, and that they will come to appreciate how fabulous their life in the academy has been.  And I suspect they will be more than happy to teach an additional class, maybe even two, rather than have to face the harsh reality of practicing law.

Maybe then, tuition will come back down to earth. Maybe then, students will no longer be taught the practice of law by a prof who once read a book about it. And by the way, when your car is broken, what you need is a damn good mechanic. Don’t look down on them.

No clue what happened or why this individual became the focus of police attention, but the visuals are pretty clear.  It raises a question, however. Are all perps so darn tough that they require so many police officers to beat them at once? 

Wouldn’t just one or two be enough to teach a lesson to a person who is laying on the ground in a submissive position?  Or do cops just do such a really awful job beating people that it takes so many? Just asking.

Apologies for the background music. Inappropriate and unhelpful.