There’s a problem. Judge Kopf tried to show it with his post about Chief Judge John Marshall, and some of the comments, in return, made it hard to ignore. With the utmost earnestness, some struggled to find a principled distinction between the “good” old Americans and the bad ones. Others just condemned them all, because they failed miserably to meet the moment’s vision of a Great American.

Whom are we allowed to honor? Whom should we remember? How do we distinguish the good from the evil?

At Prawfsblawg, Rick Hills took his life in his hands by positing a metric that might satisfy the scholars with torches and pitchforks, as well as the little children who would gather the firewood so they can be burned at the stake.

That we should all be judged by the temper of our times naturally gives rise to the question: How well would we score if we were born in earlier times? There is a progressive smugness that judges the past by what we know today but avoids the touchy question of how we would be judged were we born in the world of yesterday. Continue reading →

She was an alpine skier in the 1998 and 2002 Olympics under the name Shaffer, and is now a nurse at Salt Lake City’s University Hospital. It may not take bravery to be an elite skier, but it takes grit. And Alex Wubbel had both bravery and true grit.

Det. Jeff Payne wanted to take a blood draw from an unconscious patient, not because he had any probable cause to believe that he was drunk or high, but because he was told to do so. The patient, a reserve police officer who drove a tractor-trailer, had been in a fatal crash and was severely burned.

Payne was told by his watch commander to draw blood. Wubbels refused to let him. Payne had cuffs and a gun. All Wubbels had was law and the grit to tell the cop “no.” Continue reading →

The National Enquirer and Radar Online claimed that Richard Simmons was a tranny, which really ground his gears. So he sued for defamation.

Simmons sued the publications in May over a story alleging that he was in the process of becoming a woman. While affirming his support for trans people, Simmons has vehemently rejected the claim.

But in his tentative ruling, Judge Gregory Keosian ruled that being misidentified as transgender does not inherently expose someone to “hatred, contempt, ridicule or obloquy,” and therefore does not rise to the level of defamation.

As Turley discusses, defamation per se had long been based on our American tradition of Puritan ickiness with sexuality. Continue reading →

While many shake their heads at the inane headline to Chicago lawprof Laura Weinrib’s op-ed, she’s got a point.

To correct the prevailing misconception, we need to look back to the 1930s, when economic desperation was fueling a battle between reactionary impulses and radical aspirations, and Nazis first appeared on American streets. Even as American fascists appealed to anti-Semitism and white privilege, the ACLU fought for their right to hold rallies. Although it did not oppose regulations against armed marches, it insisted that “the right to parade,” even “in brown shirts with swastikas,” should “never be denied.”

Why did the ACLU defend Nazis when they were terrorizing Germany and their virulence was painfully apparent? As the organization acknowledged in its pamphlet on Nazi speech, it was a “practical tactic” as much as an “abstract principle.”

Way back, the ACLU wasn’t the “civil liberties” organization we think of today, but a radical leftist organization. These were the days of Wobblies and Pinkertons, when the AFL and CIO hated each other, when the idea of workers joining together to amass clout against the bosses was anarchy. The ACLU was part of this fight, and very much on one side of the war between capital and labor. Continue reading →

Think for yourself.

In today’s climate, it’s all-too-easy to allow your views and outlook to be shaped by dominant opinion on your campus or in the broader academic culture. The danger any student — or faculty member — faces today is falling into the vice of conformism, yielding to groupthink. At many colleges and universities what John Stuart Mill called “the tyranny of public opinion” does more than merely discourage students from dissenting from prevailing views on moral, political, and other types of questions. It leads them to suppose that dominant views are so obviously correct that only a bigot or a crank could question them. Since no one wants to be, or be thought of as, a bigot or a crank, the easy, lazy way to proceed is simply by falling into line with campus orthodoxies.

Try it and you’ll never have to worry about being invited to the social justice sleepover party. Continue reading →

In 1901, James Bradley Thayer wrote a short biography of Chief Justice John Marshall. (You can download the book here for free.) At the end of this little book, Thayer, a legal giant in his own right, beautifully describes a monument to the greatest Chief Justice in our nation’s history.

Thayer writes:

On the west side of the Capitol at Washington, midway between the staircases that ascend from the garden to the great building, and a little in advance, there is a colossal bronze figure of Marshall by the sculptor Story, the son of the great man’s colleague and friend, —placed there in 1884. It is a very noble work of art, worthy of the subject and the place. The Chief Justice is sitting, clothed in his judicial robe, in the easy attitude of one engaged in expounding a subject of which he is master. The figure is leaning back in the chair with the head slightly inclining forward; the right arm rests on the arm of the chair, with the hand open and extended; the left hand, holding a scroll, lies easily on the other arm of the chair. The crossed legs are covered by the gown, while low shoes and buckles, and hair gathered in a queue, speak of life long habits. The solid and beautiful head, and the grave and collected dignity of the features and the whole composition are very noble, satisfactory, and ideally true.

Continue reading →

It’s fair that four female Harvard lawprofs express their views about how problems of “sexual wrongdoing” should be handled on campus. Expressing views is the American way, and they’re every bit as entitled as anyone else. Even better, they recognize that the current regime, invented in the fevered dreams of Catherine Lhamon when she ran her fiefdom at the Department of Education, Office of Civil Rights, is patently unfair to the accused and violates due process.

Yay? Well, somewhat, and advocates for changing the star chamber of Title IX adjudication are happy to have such august “experts” on their side, at least to the extent of supporting the elimination of the worst of the nightmarish system calculated to assure that males be found guilty and punished. Often, not in that order.

But this isn’t just a matter of Title IX team sports, but a matter of law. For these Harvard lawprofs, there isn’t much concern about law when it comes to the starting point of their feelings.

It is extremely important for colleges and universities to have robust policies and procedures to address sexual wrongdoing on campus. Schools’ struggles with providing fair procedures have led some observers to throw up their hands and propose 1) that schools should not decide these cases at all; 2) that schools should toss these cases off to law enforcement instead; and 3) that schools should be legally required to refer all reports of criminal acts to law enforcement regardless of whether the schools also adjudicate the cases (sometimes called “mandatory referral”). These proposals are irresponsible.

Continue reading →

If you didn’t know better, Joan Biskupic’s post at CNN might give rise to a serious concern: why are the judges not condemning this atrocity?

President Donald Trump’s pardon of former Sheriff Joe Arpaio has been widely denounced as another instance of the President’s scorn for the judiciary. Yet one set of voices has been missing: that of Chief Justice John Roberts and the nation’s leading judges.

They have been silent since the beginning, when Trump derided a judge of Mexican heritage during the 2016 presidential campaign and during the furor over an immigrant travel ban early in his presidency when he referred to a “so-called judge.”

Wait, what? Oh my god, she’s right!!! Except this is utter nonsense, as she begs the question by falsely suggesting that judges are politicians who can, or should, show up on the Rachel Maddow Show with furious tears in their eyes for this affront to the Least Dangerous Branch. Continue reading →

I asked Senior United States District Judge John Kane (D.Colo.) his thoughts about Judge Jack Weinstein’s plan to push law firms to allow younger female lawyers the opportunity to speak in court. This is his response:

Just about anything Jack Weinstein does or says is great in my book. I admire him for this as well as a host of other actions he has taken. I must state, however, that I haven’t noticed a paucity of female lawyers in the cases before me. That is probably because our U.S. Attorney’s Office and our Federal Public Defender’s Office are about equally balanced between women and men.  We also do quite a few Section 1983 cases because Colorado has the largest federal prison complex in the country and a very active and dispersed state prison system.

Many of the defendants are represented by insurance defense firms that have a fairly large complement of women, and so do the municipal governments and the state Attorney General’s office. Our Criminal Justice Act panel is comprised largely of former public defenders and I don’t see any gender disproportion there either. Continue reading →

Any lawyer should have seen this coming. It was obvious to me.

But this isn’t just about one’s colleagues, the fellow lawyers of the Legal Aid Society, as the hurt and trauma one might endure from discrimination and harassment can come from anywhere. So anywhere it is:

This policy is for the benefit of and applies to all employees and applicants for employment, regardless of whether the prohibited conduct is engaged in by fellow employees, supervisors, managers, or someone not directly connected with the Society (e.g., a client, judge, opposing counsel, co-counsel, volunteer, or outside vendor).

Apparently, the LAS policy dictates the words and actions of not only its own people, but judges and opposing counsel. How, exactly, it plans to discipline judges and prosecutors for not using a LAS lawyer’s preferred pronoun is hard to imagine, and as for co-counsel, chances are poor that they will find their dictating prohibited conduct to aid in cooperation for their clients’ benefit. Continue reading →