For years, I’ve highlighted failings within the legal system. Police are one of the major sources of problems. Prosecutors, judges and defense lawyers too, but police play a far different role in society. Most of the time, cops didn’t like what I had to say about them much. I was always criticizing, and it hurt their feelings not to be recognized for the good they do. Even when I wrote something nice about cops, it wasn’t enough for them. They were heroes in their own mind, and while they all acknowledged that there were bad cops, they weren’t the bad ones. The bad ones were always some other cop, not them.

But I wrote out of concern, not so much for the individual cops themselves, for their existence. Bad as they can be, and they can be horrifically bad, they are still a necessary part of a functioning society. Continue reading →

Today we’re going to visit a story about America’s national pastime, cultural insensitivity, and how one determined lawyer can fuck everything up. In other words, this is about as American a story as one can tell.

Baseball is a game played all over the world. It’s common to see players in Major League Baseball from all nationalities. Even though it’s referred to as “America’s National Pastime,” there are leagues in places like Japan and Korea where games draw huge crowds of enthusiastic fans. These days, if someone in a league overseas wants to play in MLB, it’s not hard for agents to negotiate a deal for that player to come to the states. Continue reading →

The children running the Daily Tar Heel, the campus newspaper for the University of North Carolina at Chapel Hill, sued the school under the state public records law for the identities of students “found responsible” for sexual misconduct under Title IX. Its reason, unsurprisingly, was “transparency.” Not transparency for its own sake, but for the “survivors.”

When we asked the University for these records in September, I wrote a column about why we wanted to take on this fight. All those reasons are still true.

But this isn’t an ordinary story, or even an ordinary lawsuit. Continue reading →

It should be uncontroversial for a teacher or professor to openly support Black Lives Matters, whether as a concept or an organization, even if the two aren’t quite the same and the former is more of existential concept than a particular ideology with clear edges and purpose. After all, black lives matter, and to affirmatively suggest they don’t matter is the racism sought to be eradicated.

But does failure to attend protests, wear BLM-branded clothing, say it regularly on social media make one a racist? In some quarters, it does. What about saying anything positive about police, supporting the cops while others riot for their abolition? Is that a fair view to espouse? Is it “anti-black” to express any view that isn’t aggressively pro-BLM? Apparently, April Mustian believed that to be the case, and took her point to social media. Continue reading →

The fact pattern is the sort that makes for a good crim law exam, implicating a broad array of bad Supreme Court law designed to facilitate the worst cop in taking action for the worst reasons, not the least of which is the assumption that a black man driving a Mercedes convertible has to be a drug dealer. After all, how else could Clarence Jamison have such a cool car?

The irony is that Judge Carlton Reeves held that the cop, Nick McClendon, was protected by qualified immunity, the judge-made rule superimposed on Section 1983 under the assumption that police were too stupid to not violate people’s constitutional rights in good faith, subsequently worsened when the Supreme Court held that district judges need not address the two prongs of their judge-made escape hatch, that a constitutional right was, in fact, violated, and that the right violated must be “clearly established,” whether sequentially or at all, thus allowing violations of rights to persist, never to be “clearly established” because courts weren’t required to rule on that prong. Continue reading →

A twit of such banal obviousness caught a little attention for an unexpected reason:

2+2=4

I will die on this hill.

No, this wasn’t written by a third grader, but by an old lawyer. And the reason anyone noticed is because this silly childish equation has become either the center of controversy or, as Rendall argued, a strawman. The answer, as is often the case, depends on what you see and what you know. As with Rendall, the issue exploded after a math nerd gave an abstract math definition, followed by James Lindsay’s ridiculing it as post-modern math. Continue reading →

It’s never entirely clear what makes crime go up or down, although theories abound. Sometimes, like the crack epidemic of the late ’80s, a causal connection between cheap, ubiquitous drugs and crime smacks you in the face, but the subsequent diminution of crime remains a mystery. The cops take credit for it, naturally, because it can’t be proven that it wasn’t their brilliant work that made crime drop precipitously. But there’s no evidence to back it up, and there’s plenty of evidence that whatever they claim is doubtful.

Nonetheless, we’re now experiencing a significant rise in murders, even if they remain at historic lows and the percentage increases seem bigger than they really are given the law of small numbers. Then there’s the fact that while murders are up, other crimes are down. That makes little sense, but yet that’s the case. Why? Continue reading →

As a joke, I twitted for a few days the date, that everyone was still full of shit, and have a nice day. It was funny because it was true, as many folks on twitter have gained substantial popularity and credibility with others who are either desperately inclined to believe them no matter what or too clueless to grasp they’re being lied to.

But in the scheme of people who are full of shit, BethAnn McLaughlin, founder of the advocacy group MeTooSTEM, takes the cake.

McLaughlin, a neuroscientist who says she lost her tenure bid at Vanderbilt University due to her activism against “harassholes,” has lots of Twitter followers. So did Sciencing_Bi, who sometimes defended McLaughlin against critics who said she was a toxic, controlling leader within MeTooSTEM.

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Poor Senator Sheldon Whitehouse is going to have a conniption. After all his efforts to exert control over the Federalist Society by pushing to force federal judges to quit their membership, it not only amounted to nothing, but ended up backfiring.

On January 21, 2020, I circulated the Judicial Conference Committee on Codes of Conduct’s draft Advisory Opinion No. 117 as an exposure draft for your review and comment. The draft opinion addressed judges’ memberships in certain law-related organizations. The 120-day Judiciary comment period ended on May 21, 2020, and the Committee received comments from about 300 judges expressing a wide variety of views. At its July 2020 meeting, the Committee reviewed the comments and after extensive deliberation decided to table issuing draft Advisory Opinion No. 117 and not to publish it. Instead, the Committee will rely on the advice it has previously provided concerning membership in law-related organizations. See, e.g., Advisory Opinion No. 82: “Joining Organizations.”

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A running debate within the Legal Academy was whether law school was a “trade school,” teaching students the nuts and bolts of the law and how to use them in a workmanlike fashion, or a philosophy grad degree, where students were asked to ponder the mysteries of legal thought and worry more about Hobbes than perpetuities. It always struck me as a silly debate, since a “craftsman” at law needed to be able to use theories and philosophy as tools of persuasion, which is how one crafts a good argument, so the obvious answer is both.

The deans of 150 law schools have decided that there’s too much dead time in their programs, not enough to teach their young charges now that messy classes like Evidence and maybe even Crim Pro really aren’t necessary first year subjects since, as the sophists argue, not everybody defends the accused or tries cases. So if students matriculating at law school need no longer learn, you know, law, what then should they be taught? Continue reading →