Lawprof and member of the United States Civil Rights Commission Gail Heriot is no greater fan of the School to Prison pipeline than anyone else. And yet, her approach comes from a direction that few consider, and fewer still find acceptable.

During the Obama Administration, one of the Department of Education’s primary missions was to stop schools from suspending or otherwise disciplining African American students at higher rates than white or Asian American students:

… One of its primary strategies would be for its Office for Civil Rights (OCR) to pore over statistical evidence from every school district, looking for evidence of racial disparate impact in discipline. When a school district was found to be disciplining African-American students at a significantly higher rate than Asian or white students, the school district could expect to be subjected to an investigation. As one media report put it, rather than waiting for “cases [to] come in the door,” the Obama Administration “plans to use data to go find [civil rights] problems.”

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Michelle Carter, the 17-year-old Massachusetts women who urged her 18-year-old boyfriend to “do” the suicide he was contemplating, was convicted of involuntary manslaughter. Her case is now on appeal, and Robby Soave at Reason reiterates the First Amendment argument against her conviction for speech.

But is she a killer? As I wrote in an op-ed for The New York Times a year ago, her conviction runs afoul of the First Amendment:

Ms. Carter’s conduct was morally reprehensible. But—at least until today’s ruling—it was clearly legal. While some states criminalize the act of convincing people to commit suicide, Massachusetts has no such law. Moreover, speech that is reckless, hateful and ill-willed nevertheless enjoys First Amendment protection. While the Supreme Court has carved out narrowly tailored exceptions for literal threats of violence and incitement to lawless action, telling someone they should kill themselves is not the same as holding a gun to their head and pulling the trigger.

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Yale lawprof Akhil Reed Amar argues that liberals shouldn’t fear the newest nominee for the Supreme Court. University of Calfornia at Irvine lawprof Leah Litman argues that he will be terrible, but takes an entirely new tack from her voluminous writings about how everything that relates to Trump in any way is the Apocalypse.

The courts were never going to save our constitutional democracy, but that doesn’t mean they are unimportant.

Up until the point where Kennedy retired, the Supreme Court’s one job was to protect her personal flavor of vulnerable no matter what the law provided. You know, women win, men lose. Corporations lose, workers prevail. Subject matter be damned. Reasoning is for kids. Law? Only haters cared about law, provided it didn’t produce her desired goals. When it did, she loved the law. Continue reading →

The arguments in favor of outlawing “hate speech” are made with the passion and earnestness of a religious zealot, all in the name of protecting the marginalized and vulnerable from the “violence” of harsh words. That it’s impossible (not difficult, but impossible) to define “hate speech” is one obvious problem. That it violates the precepts of free speech is another, more easily wiped away by the high priestesses of wokeness who decide for the rest of us what speech has “value” and what does not.

But a third problem with this well-intended notion was raised via Cathy Young on the twitters. Cathy, for reasons I can’t fathom, has a thing for otters. It doesn’t involve eating them. She finds them adorable. Well, to each his own, right? And one person who regularly proffered otter-cuteness was “Otter Jesus.” Until Otter Jesus was suspended from twitter.

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Some years ago, I wrote a post that extolled the virtues of public defenders. I received an email from an old friend, a lawyer with more than 200 felony jury trials under his belt, inquiring why I would be so overly kind when we all knew that PDs were no more worthy of praise than anyone else.

Some were great lawyers. Most were not. Whether they just didn’t have the chops for the trenches, were burned out, were jaded or just didn’t give a damn, being a public defender, per se, made no lawyer better or worse. Why contribute the lie that they were somehow virtuous by dint of the job they held?

My answer was that PDs get treated poorly. Defendants hated them, assume they’re a bunch of incompetent losers and failures, or they would have a decent job. People tend to value others based on what they cost. PDs came free, and consequently were worth what their clients paid. This was unfair to PDs. Then again, some were awful lawyers, walking ineffective assistance of counsel.  Continue reading →

Finding it mind-boggling to watch academics and lawyers of varying flavor twitting nonsensical predictions about who would be named last night to fill the seat of retiring Justice Anthony Kennedy, I did something. I’m not exactly proud of it, as it was less than dignified, but I enjoy a good joke as much as the next guy, providing the next guy enjoys humor over a life of abject misery, but it turned out far funnier than I imagined. I twitted this:

Jeanine Pirro spotted walking out of Reagan National Airport in new shoes to a waiting black SUV.

— Scott Greenfield (@ScottGreenfield) July 9, 2018

My timeline blew up, with some getting the joke and others losing their minds. On the right, there were people thrilled at the prospect. Continue reading →

Shoring up his damaged reformist cred, New York County District Attorney Cyrus Vance, Jr., has decided to go to war with the New York Police Department over the creation of a searchable database for police misconduct. Does it get more wonderful than this?

The Manhattan district attorney’s office is locked in a battle with the New York Police Department over electronic access to disciplinary records of officers and investigative reports that prosecutors contend they need to catch bad arrests earlier in criminal proceedings.

The level of access to police records that prosecutors are seeking would fundamentally change the flow of information between the police and prosecutors in New York City, upending decades of practice and altering the traditional roles of each institution.

It’s not inaccurate to say that it would “fundamentally change” the flow, but it’s absurdly misleading. Police misconduct files have been denied defense lawyers, hiding behind § 50-a of the Civil Rights Law and requiring a Gissander motion, which is almost never granted and, even if it was, meant the defendant sits in jail for months as it pends. And then you get spit as a result. So the lure of Cy’s plan is obvious. Continue reading →

A memo to the Board of Delegates of the American Bar Association closes with as clear a statement of its moribund state as possible.

Of course, another option is to do nothing. However, that is a false choice. Our internal data and market research clearly show that the ABA is on a trend line that will render it irrelevant and fiscally unviable. As a result, we believe that a new membership model is the most practical first step that the Association can take to secure its future. The Board must find a path that allows for the implementation of a new membership model while fairly allocating the responsibility to contribute to member value and the risk and reward of the new membership model across all aspects of the Association. The Association missed its opportunity in 2010 to make meaningful change and, while it must be prudent, that cannot happen again. Otherwise, the ABA and the entities that are part of it will wither on the vine.

This comes as no surprise, as the failure of the ABA to reflect the needs and interests of the bar has been manifest for quite a while. In fact, they asked and were told in clear terms why lawyers fled en masse. Continue reading →

When Mark Bennett, the Texas Tornado, says he’s “made a study of the psychology and social dynamics of the process and taught the science and practice of it to countless lawyers across the country,” he doesn’t mean it in the Shaun King sense of clueless pretense. He’s not only got the experience to back it up, but he’s put together one of the most well-conceived, scientifically-grounded, experience-based classes for lawyers in jury selection I’ve had the honor of seeing. He can be annoying that way.

So when Bennett explains how to get on a jury, he knows what he’s talking about.

But why would you want to sit on a jury in the first place? Because in a criminal trial, if you can read and reason and resist being swayed by emotion, you will make a better juror than most of your fellow members of the community. A jury is the entity that acts as the voice of the community, and serving as a juror allows you to contribute to that voice.

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As the editor of the Colorado Independent, Susan Greene was not someone who the passionate among us would characterize as “powerless.” If the pen is mightier than the sword, then she should certainly have had some clout. And, indeed, based upon what she had to say about it afterward, Greene has power. But for the period of time she was on the street, it happening around her, to her, she realized how utterly vulnerable she was, how the power of her words wouldn’t help her.

What happened to Susan Greene is no travesty of justice. She wasn’t beaten. Wasn’t killed. Wasn’t falsely accused of a crime to make her appreciate the obsequiousness demanded by the cop on the street. It was an utterly banal interaction. What makes it noteworthy is her subsequent ability to put into words the momentary hopelessness of a person, even a person with some power, in a confrontation with police.

It started with the sight of a black man, handcuffed and seated naked on a Colfax Avenue sidewalk across from the Statehouse, his private parts covered only with a small towel, while several Denver police officers stood around him.

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