This is whimsical but true. If I mightily stretched things, I could even say this is about legal realism.

Long ago—when I was 12—I lived in Florida. I took to water skiing. One day while racing along on two skis I decided to drop one and ski on the other.[i] The remaining one was not a slalom ski. But, I made it work until it didn’t.

As I fell forward into the onrushing water the ski submerged tip first. Then, the butt end popped back up and hit me in the mouth. My teeth, and particularly my lowers, were never the same.

My parents evidently had an aversion to dentists (as I do now) and, eventually, I came to like my new look anyway. Think of actor Bill McKinney in Deliverance.[ii] Continue reading →

Some people worry about one thing. Some people worry about other things. Some people see their worrying as a commodity for which they deserve compensation. They’ve given this a name, emotional labor.

The crying, the snapping at him—it all required damage control. I had to tell him how much I appreciated the bathroom cleaning, but perhaps he could do it another time (like when our kids were in bed). Then I tried to gingerly explain the concept of emotional labor: that I was the manager of the household, and that being manager was a lot of thankless work. Delegating work to other people, i.e. telling him to do something he should instinctively know to do, is exhausting. I tried to tell him that I noticed the box at least 20 times over the past two days. He had noticed it only when I was heaving it onto the top shelf instead of asking for help. The whole explanation took a lot of restraint.

This is a leap into the middle of a narrative, and the “box” referred to, the “box” giving rise to “the crying, the snapping at him,” was a box of gift wrap that was taken out to give the writer, Gemma Hartley, a necklace for Mother’s Day.

I stumbled over the box of gift wrap he had pulled off a high shelf two days earlier and left in the center of our closet. In order to put it back, I had to get a kitchen chair and drag it into our closet so I could reach the shelf where it belonged.

Continue reading →

It was remarkable, both for its substance and the fact that it came from a source that was, by any stretch of the imagination, inclined to be against guns and in favor of regulation. But FiveThirtyEight’s Leah Libresco did something that is rarely done.

Before I started researching gun deaths, gun-control policy used to frustrate me. I wished the National Rifle Association would stop blocking common-sense gun-control reforms such as banning assault weapons, restricting silencers, shrinking magazine sizes and all the other measures that could make guns less deadly.

Then, my colleagues and I at FiveThirtyEight spent three months analyzing all 33,000 lives ended by guns each year in the United States, and I wound up frustrated in a whole new way. We looked at what interventions might have saved those people, and the case for the policies I’d lobbied for crumbled when I examined the evidence.

We all know the solutions to critical problems that must be solved. They’re just common sense. And since we believe what we believe, how could they not be right? Continue reading →

We love algorithms. We love crowdsourcing. We love the democracy of information on the internet. Except when we don’t.

In the crucial early hours after the Las Vegas mass shooting, it happened again: Hoaxes, completely unverified rumors, failed witch hunts, and blatant falsehoods spread across the internet.

But they did not do so by themselves: They used the infrastructure that Google and Facebook and YouTube have built to achieve wide distribution. These companies are the most powerful information gatekeepers that the world has ever known, and yet they refuse to take responsibility for their active role in damaging the quality of information reaching the public.

It seems that a group from 4Chan managed to get itself “amplified” by the algorithm because algorithms don’t differentiate based on feelings. At least is wasn’t reddit. Remember, as bad as it is, it can always get worse. Continue reading →

Upon learning of the slaughter in Vegas, I “called” for a day of respite before the “causes” kicked in. Silly moi. As horrific as it was, this was a problematic mass murder. The targets were people attending a country music festival, meaning the shooter was unlikely to fit the hoped-for narrative of racist, sexist, homophobic.

Indeed, it was quite possible, once a motive was ascertained, that the shooter was on the “good” side. Since no tragedy can go unexploited by the opportunists, and there being no easy target of their invective, the narrative plucked the low-hanging fruit: guns. The narrative, inexplicably, was “there is never a good time to talk about guns,” designed to overcome people like me who called for breathing room before the hysteria, before seizing upon death to further the cause.

It was ironic, of course, because we talk about guns all the time. But that’s not really what they mean. What they mean is that regulation hasn’t happened, making “talk about guns” a euphemism for regulating guns. After all, no real talk could end in anything other than regulation, since there is no other “correct” outcome. Continue reading →

Around the start of the last century, collective action by workers who were abused by the bosses gave rise to a belief that by joining together, the workers would have the power to stand up to bosses, to force them to negotiate, to challenge the powerful on equal footing. Lives were lost to the cause, but it eventually produced the Wagner Act, the National Labor Relations Act, which mandated that employers negotiate with the union as the lawful representative of its workers.

But as Stanford lawprof David Freeman Engstrom remind us, there were other forces at play at the same time.

In 1938, a 42-year-old autoworker named Florence St. John was angry about being paid less than men doing the same job on a General Motors assembly line in Lansing, Mich. Banding together with two dozen other women, she sued one of the world’s most powerful companies and — to the astonishment of all — won history’s first big damages award in a discrimination case.

An amazing win, at a time when the notion of paying women less than men, particularly when there were no variables upon which to hinge the distinction, would have been shrugged off by most people. But that was 1938. In 1935, Congress changed the game by enacting the NLRA, which gave exclusive representation to unions, and compelled the bosses to negotiate the terms of employment collectively. One huge advance was the negotiated term of mandatory arbitration, forcing employers to submit disputes to labor arbitration.  Continue reading →

Ed, Note: The following guest post is by Alex Bunin, the Harris County (Houston) Public Defender, formerly the Federal Defender for the Northern District of New York, with regard to the New York Legal Aid Society’s treatment of Appellate Squawk.

Blawger Appellate Squawk’s May post, “Are you a cissy?” drew scrutiny from management in the office where Squawk is an assistant public defender. The post satirically described an exchange by an assistant public defender with a defendant in a holding cell.

The lawyer repeats by rote a list of questions meant to determine the client’s chosen gender identity. The defendant grows uneasy and then angry with the lawyer’s failure to sense the client’s potential danger from cell mates because of the implication he may not be masculine. The humor of the post – and it is funny – is not at the expense of persons who identify as lesbian, gay, bisexual, transgender or queer. The satire is about how one-size-fits-all policies (no matter how well-intended), can dehumanize clients.

Even the title is inoffensive. “Cissy” is a play on the term “cisgender,” which means a person who identifies their gender as their birth sex. It was not “sissy” – traditionally, a demeaning term for a male who appears effeminate. Continue reading →

ProPublica has a mission, one that has usually proven enormously valuable at a time when reliable sources of information about what the government is doing are scarce.

The Mission

To expose abuses of power and betrayals of the public trust by government, business, and other institutions, using the moral force of investigative journalism to spur reform through the sustained spotlighting of wrongdoing.

What’s not to like? That one phrase in there, “moral force,” stands out. It’s not just that morality is squishy and completely subjective, but that it would seem to create an internal conflict. Is the metric law and honesty, or is it morality? One can slough it off when the mission is directed toward “government, business and other institutions,” but ProPublica is now heading down a different path.

ProPublica is now “documenting hate.” Continue reading →

An appellate* public defender was snatched in broad daylight and forced into the interrogation room. A public defender was given the third degree, demanded to reveal the co-conspirators. Not by the government. Not by the cops. Not by some shady cartel.

By the New York City Legal Aid Society. The public defender was Appellate Squawk, because the Squawk had been ungood. It began when the LAS changed its policies to focus first on social justice and later, if the opportunity presented itself, on defending the indigent. The Squawk reacted as any experienced public defender would, with satire.

Woke fantasies aside, the trenches are a tough place, where real people wallow in real misery, and the machinations of the deeply passionate are pretty damned foolish, bordering on dangerous, when applied to reality. This was obvious to Squawk, who understood the job of public defender is to defend the accused. To LAS, this was secondary to assuring that a lockup of killers, dealers and the downtrodden felt heard as to their gender expression. Continue reading →

We teach our children to study hard, do well, get into a good college and become whatever they dream of becoming. We teach them that if they follow the path, there will be a pot of gold at the end. And statistically, that’s generally true. with a long list of caveats. So why are there so many radicalized, angry, miserable Ph.D.s out there?

In August, Michael Isaacson, an adjunct instructor of economics at the John Jay College of Criminal Justice in New York, wrote on Twitter, “Some of y’all might think it sucks being an anti-fascist teaching at John Jay College but I think it’s a privilege to teach future dead cops.” Though he later said he was not wishing for his students’ deaths, but merely predicting some would die, his post was roundly condemned. He received death threats and was suspended from his job, ostensibly in the interest of campus safety.

There have been similar cases in recent weeks. A sociologist holding a temporary position at the University of Tampa was fired after tweeting that Hurricane Harvey was karmic payback for Republican-voting Texans. Officials at California State University, Fresno, dismissed a history lecturerfor tweeting that “Trump must hang.” And an adjunct instructor in gender studies — who had already been fired from Rutgers — lost his fall employment offer from Montclair State University after the revelation that he’d tweeted about his wish to see President Trump shot.

This gives a somewhat false impression. It’s not that these aren’t accurate examples, but a few anecdotes don’t make for pervasive craziness. According to Colby College sociology prof, Neil Gross, these examples share one common theme, they’re all adjuncts. Continue reading →