Assuming, arguendo, the Supreme Court holds that race-conscious college admissions are unconstitutional, then what? Given that universities are dedicated to the existential cause of diversity, equity and inclusion, regardless of what the Supreme Court has to say about the matter, the likelihood is that they will change the head on the corpse in an effort to accomplish the same goals of increasing minority admissions without calling it, or admitting that it is, race conscious.

One possible avenue was that seized upon by the University of California after affirmative action was banned in 1995. Continue reading →

I characterized it as “subconstitutional” back in 2015, not because I had the future potential of a claim of quasi-judicial immunity in mind, but because I wasn’t a big fan of calling it a “kangaroo court” because it was insulting to kangaroos. But in response to the question posed in the referral from the Second Circuit, the Connecticut Supreme Court gave chapter and verse as to what a sham and due process fiasco Yale’s Title IX procedures in holding that accusations made against Saifullah Khan were not entitled to absolute immunity.

If the name sounds familiar, it’s because Khan was prosecuted, and acquitted, of rape in Connecticut. Accusers’ Rights organizations condemned the verdict as a “victim’s worst nightmare” of being discredited on the witness stand. A more objective view would be that the accuser was revealed as a liar on cross. So what did Yale do about its falsely accused student? Take a wild guess. Of course it expelled Khan, because reasons. Continue reading →

Stalin is infamously alleged to have said that “one death is a tragedy, a million are a statistic.” It’s not that the death of one individual matters more (or less) than the death of others, but that the mind works in ways that allow it to focus on smaller bites of information of interest while bigger bites of greater vagary go unconsidered. All of this made for an opportune cry that the worldwide fascination with the five people who died in the Titanic submersible proves how racist we are.

On one vessel, five people died on a very expensive excursion that was supposed to return them to the lives they knew. On the other, perhaps 500 people died just days earlier on a squalid and perilous voyage, fleeing poverty and violence in search of new lives. Continue reading →

In a curious twist of logic, Josh Blackman recounts when Nino Scalia was asked which of his decisions he was most proud of.

When I was a 2L, I attended an event on Justice Scalia’s book, Making Your Case. During the Q&A session, someone asked Justice Scalia what opinion he was most proud of. Without any hesitation, he said Crawford v. Washington (2004). This landmark decision applied an originalist framework to the Confrontation Clause. Prior to that Crawford, Ohio v. Roberts (1980) imposed a “reliability” standard to determine whether out-of-court testimony could be introduced. But in Crawford, Justice Scalia turned back the clock to the deep historical roots of the right to confrontation.

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Brauner’s Country Market was a bit of a staple in Alabama life, especially for the folks in Driftwood County. Started by an Amish family that made their way south for a better life, the market was a sort of country store offering various handmade knickknacks and old time remedies for various ailments.

The most talked about feature of Brauner’s was the deli counter. Here one could purchase all manner of freshly made sandwiches served on bread baked that day. Such sublime sandwich artistry was highly regarded in Mud Lick, and it was these sandwiches that had Sheriff Roy Templeton at the door of Brauner’s with several slips of paper in hand—orders from other men and women at the Sheriff’s Department. Continue reading →

If there were any justice a criminal defense lawyer wouldn’t mind being smacked, fairly or not, it’s Sam Alito. As previously noted, the worst words at the start of a Supreme Court opinion are  “JUSTICE ALITO delivered the opinion of the Court.” No words assure that what follows will be bad. And yet, even the dreaded Justice Alito should have the opportunity to defend himself. Whether his argument prevails is another matter, left to the discretion of the reader. So was his Wall Street Journal op-ed designed to pre-empt the coming accusations of ProPublica wrong?

Josh Blackman comes to the defense of Alito’s op-ed.

Why did Justice Alito take this unorthodox step to preempt the scoop? Because ProPublica has proven itself unreliable. The outlet could not be trusted to accurately provide Alito’s rejoinder in context. And Alito’s concerns proved prudent.

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Tim Cushing does an excellent job of saying what needed to be said about the Third Circuit’s decision in Fenico v. Philadelphia.

The First Amendment protects speech, even the horrible stuff. It can’t protect the speaker from being criticized for being abhorrent, despite what many abhorrent people believe. It can, however, in certain cases, protect the speaker from being punished for this speech.

It’s not blanket coverage. The person engaging in the speech generally has to be punished by a government entity for this protection to kick in. A private company can fire someone for their speech without worrying too much about the Constitution. But a state entity needs to be far more careful, even when it’s dealing with its own employees. Continue reading →

To be fair, Hunter Biden’s plea deal, two years probation for failing to timely pay taxes for two years, even though already paid up, was pretty sweet. Even sweeter was the deal of diversion for lying on the form to obtain a handgun that he wasn’t an addict. It was a good deal. A really good deal. But with good counsel, even really good deals happen.

But what about Garland, the attorney general appointed by none other than Hunter Biden’s daddy? The investigation and prosecution of Hunter Biden was under the auspices of the United States Attorney for the District of Delaware. His name is David Weiss. He was appointed not by Biden, but by Trump, in 2018. Biden did not replace him with a new United States Attorney of his own choosing, as he could, because he sought to avoid the appearance of exactly what’s running through the overly fertile minds of conspiracy believers. Continue reading →

Yesterday, Trump gave another confession. He didn’t mean to, I suppose, but he lacks the capacity to tell the difference between something that legally damns him and something that just makes him look foolish and incompetent on the telly. There is an increasingly strong likelihood that Trump will be convicted at trial for his retention of national security papers and obstruction of justice.

In anticipation of this increasingly likely scenario, some have been calling for the pardon of Donald Trump. Continue reading →

No one is arguing that Duane Owen wasn’t a monster who committed horrific crimes. Whether that means that the death penalty is the right punishment is another matter, perhaps best argued based on opposition to the death penalty than that Owen’s crimes were not so horrible that execution wasn’t warranted. As monsters go, Owen’s actions would certainly qualify.

Owen was convicted for the 1984 rape and fatal stabbing of teenager Karen Slattery and for the rape and killing of 38-year-old Georgianna Worden in Palm Beach County.

It should be noted that Owen was convicted in 1984, nearly 40 years ago. Whether it makes any sense to execute anyone for a crime committed 40 years earlier is another good question. Yet these were not the foremost issues that outraged the ACLU, which felt compelled to make a public assertion of the harm suffered by Duane Owen. Continue reading →