G.K. Chesterton is best known for his fence aphorism, that you don’t take down a fence until you know why someone put it up. Split rail or pickets aside, this was a test of politics. The liberal will see a fence in his way and rip it down without further thought because it blocks his path. The conservative, on the other hand, will exercise caution, waiting to learn the fence’s purpose for being there before tearing it down.

But Chesterton went a little deeper than just the fence.

His definition of tradition as “the democracy of the dead” has always impressed me as a formidable truth. We are dwarfs on giants’ shoulders; but this includes not just the geniuses who have preceded us and paved the way for our own minor discoveries, but also the myriads of ordinary, anonymous people who have created, step by step, with occasional strokes of genius and many more trials and errors, the civilization we enjoy today.

Behind every single thing, habit or institution of our life there are centuries of experiments, attempts, failures and success.

Humans have been around for a while now, and we’ve developed traditions, norms, rules and, obviously, laws. Each came about for a reason. Some reasons are good and some not so good. Some made sense at the time, but changes in society have vitiated the reasons and the time has come to adapt. Others reflect truisms about our state of being, and persist even if we don’t think they should. Continue reading →

It was like winning the lottery when your case was wheeled out to Judge Shira Scheindlin in the Southern District of New York. It wasn’t that getting Judge Scheindlin meant a win, and, in fact, she could be a bit testy. But she listened to the defense argument and, unlike some other judges, might actually rule in your favor. If you’ve never tried a federal criminal case, you have no idea how huge that was.

But Judge Scheindlin has since retired and moved on to other concerns, one of which appears in her op-ed in the New York Times. It’s a curious concern, given that she was female and a federal judge, which means that she must have been sufficiently recognized as a lawyer to get the wink. But then, not every women enjoys that level of recognition.

As a Federal District Court judge in New York, I often encountered this courtroom scene: A senior partner in a large law firm would be arguing a motion. I would ask a tough question. He (and it was usually a man) would turn to the young lawyer seated next to him (often a woman). After he conferred with her repeatedly, I would ask myself why she wasn’t doing the arguing, since she knew the case cold.

In the 22 years I spent on the federal bench before stepping down last year, not much changed when it came to listening to lawyers. The talking was almost always done by white men. Women often sat at counsel table, but were usually junior and silent. It was a rare day when a woman had a lead role — even though women have made up about half of law school graduates since the early 1990s.

Continue reading →

From the bench, Chief Justice John Roberts asked in Fisher v. Texas what diversity brought to physics. The reaction from the cheap progressive physics seats was unsatisfying.

We reject the premise that the presence of minority students and the existence of diversity need to be justified, but meanwhile segregation in physics is tacitly accepted as normal or good. Instead, we embrace the assumption that minority physics students are brilliant and ask, “Why does physics education routinely fail brilliant minority students?”

In other words, they’ve got nothing, which was a shame as there was a sound answer. But the question was a good one, and a difficult one, as science isn’t dependent on feelings, but facts. You don’t have to like gravity, but you’re going to have one hell of a time denying its existence.

But the argument has been creeping into such disciplines as engineering that gravity is just social construct born of white supremacy. Glaciers are sexist. The days of science remaining aloof from the vicissitudes of social justice may soon be over. Continue reading →

Yale Law School dean Heather Gerken wrote a rainbows and unicorns post at Time about how law students were special and adored free speech.

In this, the summer of our discontent, many college presidents are breathing a sigh of relief that they made it through a politically fraught spring without their campuses erupting. Nobody wants to be the next Middlebury or Claremont McKenna, where demonstrations disrupted controversial speakers.

Law deans, in sharp contrast, have reason to be cheery. Their campuses have been largely exempt from ugly free-speech incidents like these.

While the campus eruptions haven’t broken down by major or grad schools, but rather by broad-based, undifferentiated student protect, fair enough. Continue reading →

As of yesterday, SJ has changed hosts from A2Hosting to Fused. There may be some bugs to work out along the way, because technology is wonderful and fixes everything. If you see a problem with SJ, please let me know. That doesn’t mean I’ll know what to do about it, but at least I can try.

And immediately after the switch, I lost the capacity to access the SJ dashboard. After an intriguing discussion about equality v. freedom, Jake came to my rescue and helped me fix this vexing problem. Thanks, Jake.

At the moment, I’m having a bit of an issue here, with SJ pages rendering in a lovely but unreadable shade of blue.

Whether this is happening to you, I dunno. I’ve already sent an email to my new host, and if anybody reading actually knows* why this is happening, I would appreciate hearing from you. There will be bugs. I will keep trying. Bear with me, please.

*As in, you actually know how to birth babies.

If you squint hard enough, you could see the unicorns prancing in the rainbow well. Where was this miracle happening? Drug courts. It had the two things that make for a spectacularly successful pitch. First, the theory played into the visceral desire to help people who desperately needed help. Second, it fit neatly on the little piece of paper gently foldable within even the smallest fortune cookie. Drug courts. What could be bad?

Putting aside the price of admission, forfeiture of constitutional rights, maybe innocence and occasionally a few well-placed “distraction*” punches to the face while a gaggle of blue sit on your back to crush the air from your lungs, isn’t it worth it if addicts finally, finally, get treatment?

Also put aside that if there’s anyplace in the world where drugs are not just readily available, but ubiquitous, it’s a drug treatment facility. It’s the Willie Sutton theory, that’s where the addicts are. But you can’t stop capitlalism.

And then there’s pharma sales folk chatting up the drug court judge, because there’s no one more qualified to determine appropriate medication than someone who went to law school and has the hubris to believe that whatever pops into his head is real. Continue reading →

After Seattle’s incumbent mayor withdrew from the race amidst nasty allegations of purchasing sex from a minor and abusing his foster son, the field was wide open. Three candidates ran in a primary, Jennifer Durkan (the closest thing to an establishment candidate), Cary Moon and Nikkita Oliver. They ended up in that order, with Durkan and Moon to have a run off.

The voters spoke. Sam Keller didn’t care for what they had to say, so she  wrote Moon an open letter.

A few weeks ago, you said something that made me respect you: “We think: Oh, we’re all good liberals, and give ourselves a pass. I believe it’s our shared responsibility to work with people of color who have been leading this effort for decades, and support them and listen to them to make changes.” Now, with the numbers in, it’s time for you to live up to those words and honor the leadership of people of color. You need to end your candidacy for Seattle mayor and boldly support Nikkita Oliver.

The rhetoric of inclusion put to the test. A very bold proposition, to ask a candidate to withdraw and “boldly” support another candidate. Who is Sam Keller to ask such a thing? Continue reading →

I got an email from a senior federal judge (not from Nebraska, so no, not the robed rider), which ended with something that scares the daylights out of me.

“…a dying profession.”

Is law dying? Are lawyers part of a dying profession? If so, then why am I wasting my time and energy trying to keep it from dying?

There are objective criteria that suggests the profession is dying. Bar exam pass rates are outrageous bad. Are we only getting the dumb kids going to law school?

The bastion of the old guard, the American Bar Association, has forsaken anything to do with the practice of law in favor of becoming a shining beacon of social justice.  Continue reading →

I had a daughter make it through college without getting raped. Not even sexually assaulted or harassed. She might have heard a dirty joke or two that would count as a microaggression or marginalize the vulnerable, but she laughed instead. Because it was funny and she wasn’t searching for excuses to be traumatized. Amazing, given that the rep being spread is that colleges are rape factories. And my daughter is very pretty, even if I’m her father.

I had a son make it through college without being charged with rape, or even compelled to have a sit down with the Title IX administrator. There was one time when it might have happened. His best friend was in a suite with an ex-girlfriend, and he would visit his friend regularly. His ex would see him, and complained to an RA that my son’s presence in the suite made her feel “uncomfortable.” The RA, knowing both of them, told her to grow up. She survived and both graduated.

That taps out my children.

I was asked by a deeply emotional activist why I wrote about Title IX, what happened in my life to make me a misogynistic rape apologist who didn’t care about the traumatic harm done to “survivors”? The assumption was that I had to have a horse in the race, an agenda to promote, a cause, just like her. After all, there could be no other reason for me to give a damn, and certainly no other reason for me to be on the “wrong side of history.” Continue reading →

While the non-lawyer narrators try to scam the unwary into believing that a campus adjudication is all about one trick or another, one problem and failure, at it’s close enough, the “real McCoy” criminal justice system goes on its merry way. Courts provide the fully array of due process protections. Guilt is determined under the “beyond a reasonable doubt standard.” If college trials are good enough, these must be so spectacularly fair that there is no chance anything could go wrong.

A major piece in the New York Times magazine by Emily Bazelon dissects the conviction of Noura Jackson for the murder of her mother. Jackson was 18 at the time and a bit of a ne’er do well, especially if the only things you knew about her were the bad things. But as with most murders that get on the radar, pressure mounted for the police to find her mother’s killer, mostly because people watch too much TV and think cops can actually investigate things, have magic CSI voodoo or a sixth sense that informs them that the butler did it in the library with a candelabra. But action was demanded, and something had to be done.

With concern about the case mounting — ‘‘Mystery Stabbing Death Unsolved,’’ local ABC news reported that August — the case went to Amy Weirich, who at 40 was a rising star in the Memphis prosecutor’s office. A long-­distance runner and the mother of four children, Weirich was a former chief of the gang-­and-­narcotics unit and the first woman to be named deputy district attorney in Shelby County. She was considered a highly skilled trial lawyer.

At 28 years of age, someone can be a “rising star.” At 40, one is a dinosaur in a district attorney’s office. But since Amy Weirich is the goat of the story, a little melodrama is needed to cast the villain. And Weirich, “highly skilled” or not, earned her castigation. Continue reading →