Less than 24 hours ago, Attorney General Jeff Sessions issued a memorandum rescinding the Ogden and Cole memos as superfluous. And the impact was immediate.

As arrests mount once again, as the black market bounces back, as vital police resources are wasted, Trump’s new era of prohibition will have the same effect as that of the old Prohibition: to make criminals of nonviolent citizens, and cynics of the law.

Except arrests didn’t mount. The black market hasn’t bounced back. Vital police resources weren’t wasted. The reason none of this happened, despite it appearing in the New York Times as if it did, is that the Sessions Memo doesn’t do much of anything, anymore than the Cole Memo did much of anything. Not that it won’t make people shriek and write op-eds about how the sky is falling.

Ken White at Popehat does the heavy lifting of explaining why this is so. The Sessions Memo, like the Cole and Ogden Memos before it, is about allocation of scarce federal prosecutorial resources. Marijuana has been a Schedule I drug all along, and is illegal to sell or possess under federal law. That hasn’t changed. Continue reading →

Judge Richard Kopf raised a question that served as a litmus test for language. Were the words “characteristically emotional,” without any further information, sexist? As the judge noted, many thought so, and one lawyer who raised the question of whether the words might not be sexist, but rather an individualized, maybe even accurate, description was not treated well for doubting.

The other day, the question was raised whether academics should be subject to detailed, specified twitter “norms” to maintain the image of propriety of the Legal Academy. UNC lawprof Carissa Byrne Hessick received support for her idea,* but also some pushback.

I find it a bit odd that in making the case for, among other things, more civility from professors who tweet, I’ve been criticized for failing to call out, by name, those profs who have not been particularly civil.

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In his inaugural speech, newly-elected Philly District Attorney Larry Krasner said that he would do what he promised:

He reiterated those goals during his inaugural address, saying he wanted to begin “trading jails — and death row — for schools,” “trading jail cells occupied by people suffering from addiction for treatment and harm reduction,” and “trading division between police and the communities they serve for unity and reconciliation.”

Whether it works out the way he says will be seen, as it’s not so easy to trade jail cells for schools, but there remains an open question. What to do about the people who commit crimes. The big crimes are easier, murder and rape, but what about the small ones? Putting people in jail for petty offenses is ruinous. It destroys lives and achieves no legitimate sentencing objective. And it’s very expensive. Continue reading →

Ever since the Kozinski horror, I have been more intently reading[i] and listening[ii] to the stories of female lawyers who have suffered various kinds of abuse or disrespect from male lawyers because of their gender. I was, and am, not so much interested in assaults or explicit sexual harassment because it is obvious that no one should suffer such things.

I was, and am, more interested in the interactions (sometimes subtle) of male and female lawyers in the courtroom. Taxonomy is important. There is, at least to me, an important distinction between incivility writ large and sexism. In my view, it is important to distinguish between the two if only to avoid confusion, but as this post illustrates (I hope), that can be difficult. People of good will can easily conflate the two and the resulting uncertainty may cause us to talk past each other.

I stumbled across a twitter thread from a female lawyer, perhaps a CDL given her twitter handle (@CriminelleLaw), that I encourage you to read.[iii] I want you to assume, as I do, that CriminelleLaw and the lawyers who later responded in the twitter exchange are all well-intentioned. Continue reading →

The weed didn’t walk in there on its own, you know. Somebody bought it. Somebody brought it. But when the cops arrived, nobody had it on their person. When the cops asked whose weed it was, nobody raised their hand. So the cops arrested them all.

At least 63 people were arrested over the weekend on suspicion of possessing less than an ounce of marijuana after police were unable to identify the actual owner of the drug stash found at a house party in Cartersville, Georgia, over the weekend.

Of course, nobody is arrested “on suspicion” of anything. Suspicion is not a crime. They were arrested for possession. Less than an ounce of pot was found, and 63 people were arrested.

Officers also found less than an ounce of marijuana, reported the Cartersville Daily-Tribune. When no one admitted to owning the weed, everyone still at the party was arrested. Continue reading →

Eugene Volokh proposed a “thought experiment” of the unseemly sort by posing a hypothetical scenario in a brothel.

Let’s assume a country or state in which brothel prostitution is legal (as it is in some Nevada counties and in some European countries). And let’s assume a brothel that caters to many sexual orientations, and as a result has both male and female prostitutes working in it.

A gay man comes to the brothel, and says “I’d like a man to perform oral sex on me”; he’s not picky about the man. They go to the room and start to get down to business — but the gay man realizes that the man is physically a woman.

“Wait, I asked for a man!,” the customer says. “I am a man,” the prostitute says; “I self-identify as a man. And what do you care about whether I have a penis? You’re just asking me for oral sex.” “I don’t care how you self-identify,” the customer says, “I want someone who is physically a man, even if I’m not going to be touching his genitals.” The customer leaves (without paying) and complains to the brothel. Continue reading →

It was masterful, and made the deeply passionate intellectual elite very, very angry.

Liberally citing work by feminist epistemologists, philosophers of science, and critical theorists — including two of Social Text’s editors, the NYU American-studies scholar Andrew Ross and Stanley Aronowitz, a sociologist at CUNY Graduate Center — Sokal endorsed the notion that scientists had no special claim to scientific knowledge. Just as postmodern theory revealed that so-called facts about the physical world were mere social or political constructs, he wrote, quantum gravity undermined the concept of existence itself, making way for a “liberatory science” and “emancipatory mathematics.”

I know, right? It doesn’t get any deeper than this. Except: Continue reading →

To his enormous credit, Kyle Smith concedes that the National Review got it wrong.

As of December 27, New York City saw 286 homicides in 2017, down 12 percent from the previous year, itself a near-record low. That is a rate of about 3 per 100,000 population. By contrast, Chicago’s homicide rate for 2017 was about 24 per 100,000. The figure for Baltimore is about 56. There were more murder victims in Baltimore than in New York City in 2017, even though New York has nearly 14 times as many residents.

These numbers are extraordinary. Back in the 1990s, the hope was to bring the number of murders below 2000 per year. Small fluctuations now will have out-sized impact on percentages, but in raw numbers, this is about as safe as it gets. And it happened without stop and frisk. Continue reading →

Dear Arthur,

Congratulations on taking the helm of the greatest newspaper on earth. Granted, you were weaned for this position, extending the dynasty that created something of immense power and value, but dynasties fall. Yet, here you are. I remember when we talked a few years ago. I was impressed by your interest, knowledge, and nuts-and-bolts concerns.

And here you are, publisher of the New York Times. Whew. That’s a hefty burden.

But in reading your note, I have some concerns. For context, my wife and I were home delivery subscribers for decades. It’s an expensive deal, frankly, but that’s the price of keeping informed. In the past year, we canceled our subscription. To cut to the chase, as you must be busy, the problem is that the Times strives too hard to report the “truth” rather than the facts. Continue reading →

Anyone who followed Harvard lawprof Laurence Tribe on twitter had to wonder what he was thinking when he twitted “Louise Mensch is right.” Was he using his scholarly cred to validate a nonsensical conspiracy theorist? Did he lose his mind?

Carissa Byrne Hessick has drafted a short symposium paper directed to establishing “academic norms” for law professors on twitter.

This short symposium contribution discusses the virtues and the vices of law professors participating in a now-popular form of public discourse: Twitter. It also offers some tentative thoughts on what professional norms ought to apply to law professors who identify themselves as law professors on Twitter. Specifically, it suggests that law professors should assume that, each time they tweet about a legal issue, they are making an implicit claim to expertise about that issue. It also suggests that law professors who participate on Twitter should do so primarily to help promote reasoned debate.

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