One duty of the president is to nominate individuals to the federal judiciary, including the Supreme Court.  The appointment clause in the Constitution, Article II, §2, cl. 2, makes the process remarkably clear unfortunately opaque.

[The President] shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

That the president “shall” nominate is pretty clear. That it shall be “by and with the Advice and Consent of the Senate” is where things get cloudy. There is a dearth of law* on the issue, and general views seem to be governed more by political expediency than anything else.  The arguments of the teams are entirely unprincipled and designed to screw the other team. Each team’s cheering section is trying to out-cheer the other. Continue reading →

The number for 2015 was 149. If that was out of 150, it would be a hugely significant number. But it’s out of tens of thousands, hundreds of thousands. Suddenly, 149 doesn’t seem like that big a deal.

In 2015, 149 people convicted of crimes large and small — from capital murder to burglary — were exonerated. It is the highest yearly total since this grim form of record-keeping began, in 1989.

In that time, there have been at least 1,733 exonerations across the country, and the pace keeps picking up. On average, about three convicted people are now exonerated of their crimes every week, according to the annual report of the National Registry of Exonerations. The registry defines an exoneration as a case in which someone convicted of a crime is cleared of all charges based on new evidence of innocence.

If there was someone with any gravitas asserting that our legal system was perfect, this would be significant.  But no one does. Even the apologist platitude, “it may not be perfect, but it’s the best system there is,” incorporates the reality that mistakes will be made.  So out of hundreds of thousands of convictions, there were 149 mistakes? Most people would not only not lose sleep over it, but feel pretty damned good about our success rate of convicting only the guilty. Continue reading →

My old pal Mike from the train used to tell me stories of Nino Scalia, cadet captain, from high school where he was a year behind. It was a Catholic military school, and Mike was Irish. The Irish kids and the Italian kids were always trying to show each other who was “better.” Kids are like that. They hold their identities dear. Too dear.

Some of the stories were funny. Some were about how Nino Scalia was a very tough kid, unyielding in his power over other cadets. All were about a person, a human being. It’s hard to hate a person when they become real rather than a cartoon character, a one-dimensional cutout that can be characterized simply as good or evil. I had the benefit of hearing Mike’s stories. Nino Scalia became a person to me, even though I never met him nor had much chance of hanging out with him to find out for myself.

Justice Scalia wrote decisions that I consider horrible. He also wrote opinions like Crawford, Johnson, Jones, Kyllo, and his dissent in County of Riverside. Ronald Collins runs down his First Amendment opinions. Jonathan Adler sums it up:

Justice Scalia would not invent or discover unwritten rights in the constitution, but he would vote to strictly enforce those that are enumerated, such as the requirement that defendants may confront the witnesses against them or the defendant’s right to a jury trial.

Continue reading →

Nine years ago today, the first post appeared at SJ.  As of today, there have been 7,641 posts (including this one) here. That’s a lot of posts. In internet time, nine years seems like forever.

I never kept count of the number of people I’ve angered, disappointed, infuriated and outraged over the years. On the other hand, some of you have enjoyed SJ and found it somewhat useful.

Either way, I’m still at it. At least for now.

What? You didn’t think it was going to be Revolution 9, did you? That song sucks.

Some of the screams of online outrage are ridiculously adorable. Some are batshit crazy. Some just keep screaming and screaming, supported by the popcorn lobby. Some become legends.

Sit down, Mike Masnick. I have something to tell you and it’s going to make you sad.  The cries of defamation from Australia by Milorad “Michael” Trkulja fail to rise to any meaningful level of hilarity. They’re banal, boring and silly. We’ve seen so much better, so much funnier, that Trkulja’s complaints don’t make the cut.

But that’s not the end of it. Oh, no. Not by a long shot. Because it’s not just about pathetic Milorad Trkulja, but the Aussie solicitor who took up his misbegotten cause, Stuart Gibson. What Trkulja failed to offer, Gibson provides. Funny how that happens.

Continue reading →

Upon reading the Daily Princetonian’s story of the nightmarish racist treatment of a Professor of African Studies, the first thought that popped into my mind was of the absurd complaints surrounding the Aaron Swartz prosecution. His family, friends and supporters thought the system singled him out for abuse, and constructed a narrative as to why.

Except there was nothing whatsoever special about Swartz’s treatment. He was treated as poorly as anyone else, as tens of thousands of people have been treated. The “problem” wasn’t that Swartz was treated differently, but that he was treated the same. They just didn’t realize it. They had no clue how anyone was treated because they didn’t give a damn until it touched someone they cared about.

It seemed pretty much the same when it happened to a professor at Princeton:

Imani Perry, the Hughes-Rogers Professor of African American Studies at the University, was arrested in the borough of Princeton for an outstanding parking ticket from three years ago on Saturday, according to Perry’s Twitter account. Continue reading →

Last year, I did a quick run through LegalTech, the trade show for businesses with a lifespan of about a month to show how cool their legal technology is. It was the “swag report,” and it was for fun, though some of the vendors who got caught on video didn’t think it was funny at all. Defectum humoris non curat lex.*

I didn’t return this year. One year of wading through that crap was enough. It was a crashing bore.  And there was someone who will follow my lead, saving me from any thoughts of having to suffer LegalTech again.

But there are others who not only went to LegalTech this year, but did so because they wanted to go. I know, but it’s true. My old pal, Niki Black, was there.  She has an interest in legal technology that I don’t necessarily share, which is cool. Each to their own. And she decided to test these “innovators” while she was at it.

After talking to all of these innovators, I decided take a tour of the Exhibit Hall. But instead of seeking out booth swag, I decided to recreate an experiment that I conducted at the ILTA conference last fall. Continue reading →

Rookie New York City Police Officer Peter Liang was convicted in Brooklyn of Manslaughter 2° for the killing of Akai Gurley in the stairwell of the Pink Houses. Gurley is still dead, not to mention smeared for the audacity of being the body in which the bullet landed.  By its verdict, the jury found that Liang was reckless in causing the death of Gurley.

§ 125.15 Manslaughter in the second degree.
A person is guilty of manslaughter in the second degree when:
1. He recklessly causes the death of another person;

The case didn’t breed the level of outrage that so many other killings of innocent black guys have.  After all, this wasn’t a venal act, an indictment of the police for their hating young black men so much that their lives mean nothing.  This was flagrant incompetence.

The reaction to the verdict has been, well, peculiar.  But then, so too has the quiet surrounding the trial itself. Continue reading →

Among the myriad complaints arising from colleges adjudicating rape and sexual assault claims following the unlawful and misguided efforts of the Department of Education, Office of Civil Rights, to compel schools to recreate their campuses into gender-Utopias, is that the accused are denied due process.  This is but one of the failings, but it’s a huge one.

But colleges and universities are by no means prevented from providing students accused of crimes the basic protections that comprise minimal standards of fundamental fairness, and not all schools have chosen to burn some students in order to pander to the feelings of others.  University of Tennessee is such a school. And six female students have had enough of it.

Six women filed a federal lawsuit on Tuesday claiming the University of Tennessee has created a student culture that enables sexual assaults by student-athletes, especially football players, and then uses an unusual, legalistic adjudication process that is biased against victims who step forward.

An “unusual, legalistic adjudication process”?  That sounds pretty scary. What could they be talking about? Continue reading →

I haven’t always been kind to former federal judge turned victims’ rights advocate and law professor, Paul Cassell.  That’s not going to change now, even though it might appear to some that he’s done something praiseworthy.

A former federal judge in Utah asked President Obama Tuesday to “swiftly” give clemency to Weldon Angelos, a man he sentenced to 55 years in prison in connection with selling marijuana.

Calling the sentence “one of the most troubling that I ever faced in my five years on the federal bench,” Paul G. Cassell, now a professor at the University of Utah’s law school, said the mandatory minimum sentence he was required to impose on Angelos was one of the chief reasons he chose to step down as a judge.

It’s not that Angelos is undeserving of clemency. It’s not that his sentence, a by-product of the government’s charging decision and the stacking requirements of 18 U.S.C. § 924(c), plus the Supreme Court’s uncharitable decision in Deal v. United States, is not absurd. Indeed, Cassell said as much in his written opinion following sentence.  Continue reading →