By a vote of 56-0, the New York Senate passed passed a bill making cyberbulling a misdemeanor punishable by fine or up to one year in jail. Not a single senator voted against this bill, which has the huge virtue of being tough on crime and demonstrates their concern for children. Nobody wants to be on the side of cyberbullies, right?

Except there’s one question that didn’t occur to a single senator. What’s cyberbullying?

This isn’t exactly a new problem following the Court of Appeals holding in People v. Marquan M. that Albany County’s cyberbullying law was unconstitutional. The issue isn’t whether bullying isn’t a problem or doesn’t do harm, but defining what it is and doing so in a way that doesn’t violate the First Amendment. As Eric Turkewitz explains, that’s hard to do. Continue reading →

Voters will go to the polls in Santa Clara County today and vote on whether or not to recall Judge Aaron Persky. While most here aren’t from California and won’t get the chance to have their say, this vote reflects a cancer of lies that’s metastasized to make a bad system untenable.

This has nothing to do with the sentence Judge Persky imposed on Brock Turner, whether you think it was right, wrong or otherwise. I thought it too lenient, and said so, but so what? It was one sentence. That a judge doesn’t impose the sentence that I would have doesn’t make him a bad judge. Judges aren’t perfect, which is why we have appeals courts, but more to the point, a bad ruling doesn’t make a bad judge. And if one had to have a bad ruling, being too lenient is hardly the worst thing that could happen. Continue reading →

And the answer is . . . no one knows.

The president believes he is above the law. That’s the takeaway from the confidential 20-page memo sent by President Trump’s lawyers to the special counsel, Robert Mueller, published over the weekend by The Times. And it’s the same sentiment that Rudy Giuliani expressed on Sunday when he suggested that Mr. Trump has the power to pardon himself.

The long and dubiously artful letter by John Dowd and Jay Sekulow on behalf of their client isn’t likely to persuade Special Counsel Robert Mueller of much of anything. It will play to its tribe and be ridiculed by the other tribe.  Continue reading →

Apart from all other issues surrounding the possession of a handgun, few would argue that an FBI agent, a Fibber of all people, shouldn’t carry his piece. After all, the FBI are the good ones, the smart ones, the agents of law enforcement who stand above the riff-raff. Or not.

Cool backflip, even if one might suppose that he might have a greater concern about the gun in his waistband than his moves on the dance floor. Continue reading →

Two facts about Patrick Frey: He’s a prosecutor and an unabashed conservative. Two aspects of Patrick’s nature: He’s exceptionally smart and honest. One thing about his politics: He thinks Trump is a moron unworthy of being president. And Patrick has now been culled from the RedState herd because of this.

Several writers at RedState were fired today, including me. All those fired were Trump critics.

Salem, the owner of RedState, is perfectly within its legal rights to do this. They can take their site in any direction they want. But the message sent by firing a group of writers en masse, all of whom have been vigorous critics of the President, will have a chilling effect — both on the remaining writers at the site, and the conservative movement as a whole.

Continue reading →

People of a certain age remember well the revelations by the former Legal Aid lawyer, turned then-respected journalist, Geraldo Rivera, of Willowbrook State School. It was horrifying to see how children were being treated in institutions, and gave flight to a movement to end state abuse of the mentally ill and intellectually challenged. It was not only an affront to their humanity, but the state couldn’t be trusted to care for them humanely.

The institutions were closed. The inmates (as they weren’t patients) released. The buildings and land sold off. A few years later, people started to wonder where all the homeless people came from. It became commonplace for criminal defense lawyers to see serious issues with their clients, who clearly were suffering from some sort of deficit.*

We fixed the problem of terrible institutions by creating the problem of the mentally ill on the street or in the prisons. So the New York Times has come to the rescue. Continue reading →

An interesting thing happened when I posited a relatively benign assertion on the twitters.

If your beliefs don’t prevail in the marketplace of ideas, the problem isn’t the marketplace, but your beliefs.

I was subtwitting at the time, unbeknownst to many who replied to my twit, as there had been a flurry of people contending that the problem with social justice not being the predominant ideology wasn’t because of a flaw with social justice, but because people were too venal, stupid and evil to recognize it as “truth.” Continue reading →

Even a blind squirrel finds a nut on occasion, and sometimes people are wrong. I am willing to admit my prior criticisms of the General Assembly, backed by the words of no less a luminary than Task Force Chairman William Koch, were somewhat unfounded. The Tennessee General Assembly decided this month if they dangled a little extra money in front of the trench lawyers, all of their problems would go away.

[Tennessee’s] FY 2018/19 state budget includes an additional $9.7 million in recurring funding for indigent representation reform. On April 19, 2018, the Tennessee Senate and House of Representatives approved the budget. On May 21, 2018, Gov. Haslam signed the appropriations bill. The funding becomes available July 1, 2018.

What this $9.7 million reoccurring appropriation does is raise the rates of compensation for court-appointed attorneys to a flat $50 per hour. It also increases the caps on the amount of money attorneys can get in given cases. Continue reading →

Qualified immunity is not merely a hated (by some of us) concept in law, but is exposed to attack by the fact that it was created by judicial fiat out of nothing. After Will Baude ripped it to shreds, there seemed to be momentum building to kill this judicial Frankenstein that protected cops from their outrages with the flimsiest, most malleable of excuses.

And then the Supremes doubled down in White v. Pauly, clearing the path for circuit courts to rule any damn way they pleased if they would only put in the minor effort to come up with one detail, real or imagined, to distinguish this murderous scenario from every other murderous scenario. It was sheer, unadulterated cover for cops to kill with impunity.

But lawprofs Christopher Walker and Aaron Nielson have done the unthinkable. Continue reading →

Some years ago, I called for law professors to take back the classroom. At the time, the questions presented ranged from students majoring in Facebook to the shift in their relative roles, students deeming their professors to be their peers, demanding that they “respect” their opinions as opposed to telling them when they were wrong, or worse still, telling them they “respect” their opinions as opposed to tell them when they were wrong, or worse still, tell them they didn’t belong in law school.

What type of educator panders to youth culture in this way?  All types, actually.

At PrawfsBlawg, Howard Wasserman wrote a sentence that was astounding.* Continue reading →