This black guy was tried and acquitted in 1999. Throw a parade? The system worked? How often do we decry racism in the legal system, the chances that an innocent black man will be wrongfully convicted. But not this time. This time, the defendant was acquitted.

Sure, criminal defense lawyers will applaud the fact that a jury tested the allegations and concluded that they failed to prove guilt beyond a reasonable doubt. Sure, we will explain why the presumption of innocence remains intact, that this man, this black man, is innocent, as in everyone who is not convicted of a crime. Because this is how the system works. Because this is our legal system as its best.

And certainly the social justice warriors, while clueless as to the legal aspects of trials and acquittal, will stand behind this innocent black man and praise this outcome, right?  The mere “technicalities” of law, that they either embrace or ignore according to the outcomes their religion dictates, favor this innocent defendant, because systemic racism is a tenet of their belief system. But no. Not this time.

The High Priestess of Feelings, Roxane Gay, cannot muster the empathy. As for the intelligence, she doesn’t bother to try, inherently realizing it’s a lost cause. Continue reading →

At Fault Lines, Noel Erinjeri writes about a problem that has long plagued the criminal defense bar, to the extent such a beast exists.  Who argues for us?

As it turns out, Supreme Court advocacy for criminal defendants is subject to a lot of the same constraints that affect criminal defense at less rarified levels. The Minnesota Law Review recently published an article by Andrew Crespo, a professor at Harvard Law, which analyzes the development of criminal jurisprudence in the Supreme Court and why the field is tilted against the defense; along with some suggestions on how to fix it.

It hasn’t always been tilted, of course. During the Warren Court, the heyday of defendants’ constitutional rights, the Supreme Court was inclined toward the defense, some would argue too inclined. But then came Chief Justice Burger, and then Rehnquist, and it’s been downhill since.

So aside from the fact that the defense has no friends on the bench, nor any justice since Marshall who has actual experience on the defense side of criminal law, what’s Crespo’s view of the problem? Continue reading →

Nick Denton sent a memo to the writers to pack up their belongings, as Gawker is gone. It was sold at bankruptcy auction to Univision for $135 million because a local judge, Pamela Campbell, vacated the stay of execution of judgment pending appeal after finding that Denton lied about the value of his stock in Gawker.

Denton’s 30% share failed to suffice to secure the $140 million judgment awarded by a local jury for damages to Terry Bollea, the alter ego of Hulk Hogan.  The judge had previously refused to reduce the verdict as excessive.  At this point, there was little left to do.  Even though it was learned after trial that Bollea’s litigation was being financed by Paypal billionaire Peter Thiel, that fact, without more, didn’t alter the calculus.

There are three things that have made it impossible for most people to view what happened here with a rational, detached perspective. The first is hatred, whether toward Gawker and Denton, for what they did to Bollea which most people find distasteful at best, disgusting and inexcusable at worst, or outing Thiel as gay, which gave rise to his secretly funding this and other suits against Gawker as revenge.

It’s in vogue to give vent to emotion, so there’s no shame in letting feelings get in the way of reason. If anything, the rational voice is the outlier, under attack by the angry mob. And Gawker and Denton have done everything possible to generate the angry mob. If it’s right for emotions to prevail, then perhaps Denton earned the mob’s ire. And if not Denton, then certainly former editor A.J. Daulerio, for whom saying outrageously stupid stuff is a way of life. Continue reading →

The trend is clear. Prosecutors are charging people who “deal” drugs with murder when the end user dies from an overdose. It may be the drug dealer on the street corner, or the user who shared drugs with another. In the scheme of drug law, it’s all the same.  Whether you give someone drugs for money or just share, it’s distribution as far as the law is concerned. And if they end up dead, you did it.

Doug Berman notes an AP article about this trend toward prosecuting overdoses as murders.

“We need to send that message that you can’t sell things that are the functional equivalent of poison,” says New Hampshire Attorney General Joseph Foster, whose state has witnessed an explosion in drug-related deaths in recent years….

Continue reading →

After essentially universal condemnation for his politically-motivated ethical violation, Harvard Law School constitutional law professor, Laurence Tribe, has decided to violate the First Rule of Holes in his effort to pretend he didn’t.  His initial effort, on the twitters, was this “childish” attempt to double down:

I’ve concluded my Trump notes probl’y aren’t priv’gd. I cd release em if I decided yes, but I’ve decided no.

And in response to the tsunami of twits in response to Tribe’s very public effort to smear Trump, he offered this bit of absurdity:

You must think just seeking legal advice makes someone look guilty of wrongdoing. What about the rule of law? Crazy!

What about the rule of law, Larry? Glad you brought that up, as did Jacob Gershman at the WSJ Lawblog, who sent Tribe an email asking for an explanation for his highly public revelations. Tribe took his time responding, such that he offered nothing in response in a sufficiently timely manner to get it into Jacob’s initial post, but finally emailed his “defense.” Continue reading →

There isn’t always something fascinating to be found at law professor blogs, which makes an issue raised by Shima Baradaran Baughman at PrawfsBlawg all the more significant. In a nutshell, the question raised was whether she should be disturbed by the fact that she sought to be addressed by her students as Professor Baughman, but her students, without her approval, took the liberty of calling her “Shima.”

I introduce myself every year in class as “Professor Baughman” pronounce it and sign all of my emails “Prof. B”, but still somehow, I am referred to as “Shima” by a large number of students. I understand that I went from one hard to pronounce last name (Baradaran) to another (Baughman) when I got married, but I don’t think that’s the problem here. I’ve spoken to several colleagues and they have experienced frustration with this nonconsensual first-name calling as well.

I wonder what percentage of law professors encourage or allow students to call them by their first name and whether this is a good move. I tend to think that it is not a good development.

Her primary argument is that law, unlike many other areas of endeavor, retains much of its formality, and students should appreciate this professional norm by addressing their professors with the formality they would use in addressing a judge.* Continue reading →

In the constellation of stars hovering over Harvard Law School, Laurence Tribe’s burns bright.  A constitutional law professor of great renown, he’s also gained some traction by having argued 35 cases before the United States Supreme Court.  So make fun of academics all you want, Tribe is no slouch.

Which made this twit all the more inexplicable and bizarre:

I have notes of when Trump phoned me for legal advice in 1996. I’m now figuring out whether our talk was privileged. https://t.co/2v2BgxjXQ3

— Laurence Tribe (@tribelaw) August 16, 2016

My initial reaction was one of shock that someone of Tribe’s stature would ask a question that any first year could answer with his eyes closed. I responded, “It just doesn’t seem possible that a Harvard law professor would ask this.” Upon further deliberation, however, my reaction was inadequate. Continue reading →

There are a number of perfectly lawful businesses that sit at the edge of political acceptability. The most obvious is the marijuana biz, in states where it’s lawful. But try to use that cool credit card with the magic chip and you might get a shock. You see, the feds, who hate cash because only criminals use cash (and they can’t track your every purchase), won’t let banks maintain accounts for weed sellers and have a program, a quiet program, to prevent credit card companies from processing payments.

But marijuana is a Schedule I drug, so why should they? Fair enough. What about knives?

A major knives manufacturer from central California says his company was denied access to an internet payment processing service because they sell weapons online, raising questions about whether an anti-fraud program called Operation Choke Point is continuing to block legal businesses in the firearms and weapons industries from accessing basic banking services.

“It was pretty simple and straightforward,” Aaron Hogue, co-owner of Hogue Inc., said of the situation he faced with Wells Fargo bank. “They called my controller, and said, ‘Sorry, but we’re not going to be able to process any credit card transactions for the sale of weapons online.’”

Continue reading →

Imagine if you sent an email from your Android phone to your buddy, who happened to use an Apple iPhone that his kid threw away when the newer, shiner iPhone came out.  You’re both lawyers, working on a case, and your email said, “the defendant was found in possession of a gun.”  Except the email your buddy received said, “the defendant was found in possession of a toy.”

Ridiculous? Maybe not as much as you think, as Apple has decided that it doesn’t like guns. And in furtherance of some policy dreamed up by someone at Apple, they’ve decided that their machines won’t use guns. Not the word gun, for the moment, but the cartoon image of a gun. You know, emojis. Apple has replaced the gun emoji with a squirt gun.

This month, Apple previewed some changes to its next generation of iPhones and iPads with the promise that “all the things you love to do are more expressive, more dynamic and more fun than ever.” That especially includes emojis, those little icons that, according to one study, 92 percent of the online population now make part of their everyday communication.

One change in particular, though, is not delighting everyone. Apple’s new suite of operating systems appears to replace its pistol emoji, which was an image of a six-shooter, with a squirt gun.

Continue reading →

Is there really a wage gap?  Of course. And not exactly.

How many times have you heard that “women are paid 77 cents on the dollar for doing the same work as men”? Barack Obama said it during his last campaign. Women’s groups say it every April 9, which is Equal Pay Day. In preparation for Labor Day, a group protesting outside Macy’s this week repeated it, too, holding up signs and sending out press releases saying “women make $.77 to every dollar men make on the job.” I’ve heard the line enough times that I feel the need to set the record straight: It’s not true.

Like most statistics thrown about to rile up the troops, who are looking for proof that what they feel is what is real, the platitudinous wage gap is a simplistic fiction. But that doesn’t mean there isn’t a real wage gap, where a man and a woman are hired to perform the same job for the same number of hours per week, but are paid a different wage to do so.

Is this wrong? From a fairness perspective, obviously. From an employer’s perspective, not at all. After all, someone doesn’t run a business for the purpose of paying wages higher than necessary. Every dollar they pay out in employee wages is one less they earn in profit. It’s not hard to understand.  Employers are leveraging the ability to get women to work for less than men to enhance their bottom line. Continue reading →