Bret Stephens, the Times’ evil conservative columnist stolen from the more evil Wall Street Journal, engages in a thought experiment.

It’s in our moral and constitutional DNA that we take extraordinary pains to safeguard the rights of the accused, even when it means letting the guilty go free. But we also believe in justice, and the fact is that sexual assault is a brutal reality of modern campus life, abetted in too many instances by a culture of binge drinking. How best to change this without compounding one injustice with another, or intruding too far into private life, or violating fundamental rights is a matter of debate. That it has to change isn’t, or shouldn’t be.

Long on sentiment, short on detail, this Gertruding is the preface to Bret Stephens posting a letter he received from a “friend” about her rape on campus.

After the column’s publication, a young friend wrote me a personal note to share her experience of being raped in college. Her letter is so detailed, devastating, honest and thoughtful that I thought the best thing to do was give her the full stage of an Op-Ed column in The Times.

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My pal, David Feige, has a spectacular op-ed in the New York Times calling on the Supreme Court to correct one of the most egregious errors to find its way into their decisions and popular mythology.

This month the Supreme Court will have a rare opportunity to correct a flawed doctrine that for the past two decades has relied on junk social science to justify punishing more than 800,000 Americans. Two cases that the court could review concern people on the sex offender registry and the kinds of government control that can constitutionally be imposed upon them.

In Snyder v. Doe, the court could consider whether Michigan’s broad scheme of regulating sex offenders constitutes “punishment.” The other case, Karsjens v. Piper, examines the constitutionality of Minnesota’s policy of detaining sex offenders forever — not for what they’ve done, but for what they might do.

The consequences have been draconian, with the overwhelming support of the public because, in part, of a shockingly false myth:

And when these restrictions have been challenged in court, judge after judge has justified them based on a Supreme Court doctrine that allows such restrictions, thanks to the “frightening and high” recidivism rate ascribed to sex offenders — a rate the court has pegged “as high as 80 percent.” The problem is this: The 80 percent recidivism rate is an entirely invented number.

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Almost ten years ago, I called out a marketeer* who showed up in the comments at SJ to smooth over the gap between elitist lawyers who disdained the then-current fad of online legal marketing and the new lawyers who saw the internet as a way to shamelessly promote their wares.

It took time to hone their legal chops, gain the skills that would attract clients and establish their bona fides as good lawyers. It took no time at all to hire a marketeer who would create a persona to distinguish a young lawyer from the pack. There was one inherent problem, that there was no legitimate basis to claim any distinction, so they would basically bullshit their way around such arcane ethical prohibitions as not lying, conceal relevant facts like their admission a month before, and lay claim to being the most trustworthy, empathetic and experienced lawyer ever. I was highly intolerant of the scheme. I still am. Lying is lying, and this was all about fudging the edges of deception.

So when the marketeer appeared here to try to weasel his way between reality and bullshit, I was harsh in my condemnation. Of all places to come to rationalize why it was totally reasonable for lawyers to wear hot pants, SJ was a particularly poor choice.

Go sell your sleaze elsewhere.  Do you really feel compelled to push the envelope here so that I’m forced to call you an unmitigated whore and utter disgrace.  Go find some gutter to wallow and stay away from here.

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My mind wanders.[i] So, I will inflict my affliction on you, the noble readers of SJ.

*On my own, I write about 40 percent of the non-death penalty habeas corpus cases on the pro se docket of our court. I am responsible for all pro se cases save for death penalty pro se cases in the District of Nebraska. That docket includes almost all of the habeas cases because habeas petitioners seldom have counsel. The pro se law clerk, whom I supervise, writes the rest. Continue reading →

It’s hard to blame Scott Schneider for being an insipid shill. It’s his bread and butter, and he’s watching his livelihood swirl down the toilet before his eyes. Sure, lawyers with integrity can sneer at his game, but he’s doing the best he can with essentially nothing to work with. After all, the sad tears of the unduly emotional don’t play out well when put into words. He’s trying.

But that doesn’t mean the Chronicle of Higher Education isn’t blameworthy. Nobody forced it to publish such vague and disingenuous tripe. After pointing this out, Chronicle reporter Eric Kelderman challenged me to show how Schneider’s op-ed was gibberish, because my lawyer time is owed him to either make my case or be wrong. It’s not as if there aren’t dozens, if not more, exceptional pieces from the likes of Emily Yoffe (whose trilogy at The Atlantic is a must-read) that provide details that Kelderman seems to know absolutely nothing about.

I pointed Kelderman to my posts, as well as those of Yoffe, Christina Hoff Sommers, KC Johnson. I left out Jeannie Suk Gersen, et al., though I should have included those as well. Not that it mattered. He had no interest in them, and while he didn’t say so, I suspect he was fully aware of what they wrote. He couldn’t have read Ross Douthat yet, as his column didn’t come out until today. but I suspect that wouldn’t have mattered either. Continue reading →

Out of the blue, Seventh Circuit Judge Richard Posner announced he was quitting the bench to spend his waning years reading hand-written pro se habes crying for the denial of doooo process and the peculiar flavor of Nutraloaf. Joltin’ Joe has left and gone away.

Chicago lawprof Eric Posner turns out to be a chip off the very old block.

Twitter works on the same principle. When you send out a tweet, the reward is variable. Depending on the number of followers you have, your tweet will normally not be retweeted or retweeted only occasionally. From time to time, you will hit the jackpot—a media personality (or his or her factotum) retweets it to thousands of followers, generating a cascade of retweets and likes. At other times, you receive a small reward of a few or dozens of retweets or likes. I suspect the power curve strongly resembles the slot-machine version.

And with that harsh analogy, Eric Posner quit twitter. Continue reading →

Time for another Tuesday Talk, where the rules are trashed and you get to scream at the top of your lungs from atop my soapbox. Today’s subject is this editorial from the Oregon Mail Tribune on less-than-unanimous verdicts in criminal trials.

Today, in 2017, Oregon is one of only two states that allow criminal defendants to be convicted with a less-than-unanimous jury verdict. The other is Louisiana.

Why does it matter whether all 12 jurors in a felony case vote to convict, or only 10 of 12?

For starters, a unanimous jury verdict has been presumed to be the standard for criminal conviction since before the U.S. Constitution was written. The Sixth Amendment guarantees the right to a trial by jury, although it does not mention a unanimous verdict. But the Supreme Court has held that a unanimous verdict is included in that guarantee — in federal trials. State trials, the court has held, are a different matter, and the court has declined to impose that constitutional requirement on the states based on the equal protection clause of the 14th Amendment, although it has done so for other rights guaranteed in the U.S. Constitution, including the Second Amendment right to keep and bear arms.

A terrible idea, even if left to states to decide for themselves whether they wish to adopt the federal unanimity requirement? That’s one issue, but the editorial doesn’t stop there, In fact, this is merely the preface to its real point. Continue reading →

I’ve never had strong feelings about now-former Seventh Circuit Judge Richard Posner’s opinions. When I could use them to advance my client’s cause, I did. When I couldn’t, they faded into the mist. But as judges who weren’t on the Supreme Court go, Posner was considered special.

Judge Richard A. Posner, whose restless intellect, withering candor and superhuman output made him among the most provocative figures in American law in the last half-century, recently announced his retirement.

Adam Liptak describes him kindly. Others suggest that he became overripe and started to rot.

“About six months ago,” Judge Posner said, “I awoke from a slumber of 35 years.” He had suddenly realized, he said, that people without lawyers are mistreated by the legal system, and he wanted to do something about it. Continue reading →

Paul Caron notes that University of Pennsylvania law professor Amy Wax won a prestigious award.

In 2015, Professor Wax received the University of Pennsylvania’s Lindback Award for Distinguished Teaching (only three other Penn law professors have received the award in the past twenty years).

On the one hand, this informs us that she must have been a pretty damn good teacher, which isn’t something one necessarily finds among academics. Ironic, sure, but they’re loved for their scholarship far more than their ability to do the job of teaching students.

On the other hand, so what? Had Amy Wax not won this bourgeois distinguished teaching award, would it then be fine that the students of the Penn law school chapter of the National Lawyers Guild wanted to banish her?

While we do not challenge Professor Wax’s right to express her views, we question whether it is appropriate for her to continue to teach a required first-year course. The Penn Law administration has long been aware that her bigoted views inevitably seep into her words and actions in the classroom and in private conversations with students. We call on the administration to consider more deeply the toll that this takes on students, particularly students of color and members of the LGBTQIA community, and to consider whether it is in the best interests of the school and its students for Professor Wax to continue to teach a required first-year class.

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New Jersey, of all places, is leading the nation in the elimination of bail. While bail bondsmen are screaming about how criminals will be released to rape your daughter at night, not that they have a financial horse in the race, and the Attorney General has tweaked the guidance a few times, it turns out that low-level defendants are being cut loose. So it’s working?

This may seem like an unusually technocratic approach to public defense. But it’s not so unusual anymore, at least not in New Jersey, where the state has recently undergone a holistic technological transformation of its arcane court system, all in the service of eliminating the use of bail statewide.

Jersey took the algorithm route, which predicted a defendant’s likelihood of returning to court or committing a new crime on a scale of 1 to 6. The purpose was to end the pre-trial incarceration of indigent defendants for the inability to pay bail.

In 2016, the Department of Justice, under President Obama, also issued a Dear Colleague letter to state and local courts around the country, advising them that courts “must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.”

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