About five years ago, a mind-numbingly moronic “response” was written to one of my posts about questioning the untethering of the word “rape” from any cognizable definition with the simplistic admonition that if one didn’t want to be accused of rape, “don’t rape.”

It was written by a young lawyer. Not a bright one, but a lawyer. The subtext was quite surprising to me, as it was hard for me to fathom any lawyer being so vacuous as to not be capable of grasping that not doing something required that something to be objectively defined. I was so naive back then.

I suppose there were plenty of lawyers who shared this depth of intellectual incapacity, but they were pressured by norms of intelligence to keep it to themselves and not reveal to the world they were, well, dumb. For the sake of law students, remember that they all passed the bar exam, which conclusively proves anyone can pass the bar exam and it’s not worth stressing over. It’s not hard. Continue reading →

As the Texas Tornado replied, “NOBODY COULD HAVE PREDICTED THAT CALLS FOR CENSORSHIP MIGHT BACKFIRE,” because, of course, he did, I did, many people did. It’s not that we’re prescient, though we may be, but because it was so obvious that there was essentially no chance that censorship wouldn’t result in Youtube overshooting even its own mark.

YouTube’s campaign against hateful and racist videos is claiming some unintended victims: researchers and advocates working to expose racist hatemongers.

A video published by the Southern Poverty Law Center was among those taken down after the company announced plans Wednesday to remove more videos and channels that advocate white supremacy.

Putting aside the irony that “unintended victim” was published by SPLC, the nature of the video was opposite of what the purge intended to remove. Continue reading →

What are the chances that a former Harvard lawprof, criminal defense lawyer, raging liberal, whose time had come and gone, would be relevant again? Not bad, as long as you’re willing to sling the crazy on behalf of the the president who makes Nixon look trustworthy and George W. look smart.

On the one hand, Alan Dershowitz challenges many of the wacky excesses of the “resistance,” which has shown no reluctance to resort to TrumpLaw, irresponsible reversals of law and logic specifically directed at a president for whom law and logic would mean nothing if he were aware of them and capable of grasping them. But on the other hand, persisting in the defense of the absurd has put Dersh in the position of having to push the envelope ever farther. When it comes to impeachment, Dersh pushed it over the edge.

President Trump has suggested periodically that the Supreme Court would intervene to block a hypothetical impeachment and trial since (he argues) he has not committed a high crime or misdemeanor. Of course, Trump does not just make this stuff up. He has actual lawyers advising him who tell him these things—among them, Rudy Giuliani, who recently tweeted that the “Supreme Court could overrule an unconstitutional impeachment.” Giuliani, in turn, was amplifying an argument that Alan Dershowitz has been making for a while, most recently at The Hill. But Dershowitz is wrong.

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Lance Sonorus, who self-identifies as “a guy who knows everything,” left a courtroom in shock and shackles this week after a jury found him guilty of assaulting an elderly man with a milkshake.

“I don’t get it,” Sonorus muttered, contemplating his sentencing from a local jail cell.

I researched my case on the internet for months. I posted several pressing questions to Reddit. I even pirated a copy of the Federal Rules of Evidence so I would know how to introduce stuff. And I’m still guilty? What went wrong?

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I was spurred to write a post this morning by two op-eds in the New York Times, one by Roxane Gay and the other by Michelle Goldberg. After doing so, I decided not to post it. The crux of their world is misery, everything is horrible and they want everyone to wallow in misery just like them. In response, I wrote what I would call a “Pollyanna Post,” that the world is filled with joy, love and happiness.

After claiming that students turn to her for assurance that everything will be okay, a claim I find utterly full of shit since who would ever turn to someone as utterly miserable as Gay for anything, Gay writes:

I don’t traffic in hope. Realism is more my ministry than is unbridled optimism.

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There’s a bit of a trick lurking beneath the surface that you might miss if you’re unfamiliar with how such things happen when someone, say Ava DuVernay, produces a Netflix show about a highly, and rightly, volatile case like the Central Park Five.

In an interview with The Daily Beast, Ms. DuVernay said she reached out to Ms. Fairstein before she wrote the script. She said she asked if they could have a conversation so Ms. DuVernay would have Ms. Fairstein’s perspective in her head. According to Ms. DuVernay, Ms. Fairstein said she would sit down only if certain conditions were met, including approval over the script. Ms. DuVernay said no, and the conversation didn’t happen.

For someone as media savvy as Linda Fairstein to ask for script approval sounds ridiculous. There was no way she would get it, though there is good cause for concern given that the script for the new Netflix four-part series “When They See Us” was not only going to be a “dramatization,” but one that would certainly place the blame on Fairstein, who has gone from law enforcement hero as chief of Sex Crimes in the Manhattan DA’s office for 25 years to adored mystery writer to . . . the racist primarily responsible for convicting five young black men against whom there were no evidence save their botched false confessions. Continue reading →

The word “civility” is a zombie, returning to life after being brutally murdered over and over. Most people, judges in particular, use it incorrectly, in lieu of some vague expectation that people will address each other kindly, gently and with respectful appreciation of each other’s opinion, disagreement notwithstanding. The definition of “civility” is much simpler: politeness. It means using the formal norms of polite society in discourse and behavior.

The problem is that civility is used as a dodge. Remember UNC prawf Bernie Burk’s polemic against the group Law School Transparency in 2013 because, he cried, of their “toxic tone“? Only moderated rhetoric that meets the listener’s approval for “measured and thoughtful” compels a substantive response. If they’re not sufficiently civil, as per the respondent’s sensibilities, he is relieved of any duty to take the substance seriously and can rely on their incivility as reason enough to reject them.

While the heated and angry rhetoric that pervades online discourse offends many, one might think it has become sufficiently ubiquitous that we’ve gotten past the cries for civility. Sure, it’s nicer, but norms of politeness have broken down on all sides, and more importantly, isn’t it more important to get things right than get things nice? Continue reading →

Some people just don’t get how Twitter works. And some of those people get paid to teach.

Teacher Georgia Clark told Fort Worth school district officials she didn’t realize her comments about illegal immigration were public when she reached out to President Donald Trump on Twitter.

How else would one have a private, personal chat with the President of the United States if not on Twitter?

Clark, an English teacher at Carter-Riverside High School, was placed on administrative leave with pay last week after a series of posts caused a backlash on social media. She urged Trump to pay attention to illegal immigration and specifically called out her campus.

“Mr. President, Fort Worth Independent School District is loaded with illegal students from Mexico,” read one of the posts linked to her account. “Carter-Riverside High School has been taken over by them.”

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No one takes a job as a public defender because they’re in it for the money. Some do it because they believe in the social utility of the job, a critical cog in the grinding wheels of justice. Some for the experience, to get thrown into the deep end of the well and start being a lawyer on Day 1. No one, however, takes the job for the big bucks, and they understand going in that this is going to be a financial struggle.

So why should it come as a surprise that lawyers at the Legal Aid Society moonlight as Uber drivers and bartenders?

Ms. Boms and many of her Legal Aid colleagues are lawyers by day, representing those who most need, but can least afford, legal services. Then, out of financial necessity, they become bartenders, dog walkers or Uber drivers by night. Continue reading →

Back when the practical blawgosphere took Joseph Rakofsky to task, a charge was leveled that he was the victim of “internet mobbing,” the mob consisting of lawyers who piled on to ridicule and abuse him for being worthy of ridicule and abuse. Was that what was happening? Were we, lawyers ripping a kid to shreds, just a mob?

At the time, the accusation seemed ludicrous. His conduct was facially reprehensible on many levels, and the fact that a few dozen blawging lawyers all reached the same conclusion, and thought it proper to condemn him for it, was hardly surprising. No doubt it felt to him like a mob, but then, how else would being universally condemned by others in one’s profession feel?

The question recently arose again on the twitters, since cries of mobbing have become somewhat ubiquitous as tribal condemnation of the hour’s latest word that cannot be uttered or idea that’s definitely hurtful came under scrutiny by a few million of your closest friends. This time, it was broken down into two questions, the first being whether there can be such a thing as a “virtual mob” at all, as opposed to a physical mob. The second is how one distinguishes a mob from a million independently sentient voices all reaching the same conclusion simultaneously. Continue reading →