Harvard law professor Jacob Gerson landed a big soapbox at the Wall Street Journal for his op-ed. As he teaches admin law, it’s hardly surprising that the focus of his post was the technical requirements of an administrative agency ignoring the procedures mandated by law for the creation and imposition of its rules and regulations. Hammer, nail, stuff.

In the past several years politicians have lined up to condemn an epidemic of sexual assault on college campuses. But there is a genuine question of whether the Education Department has exceeded its legal authority in the way it has used Title IX to dictate colleges’ response to the serious problem of sexual assault.

Whether there is an “epidemic,” an oft-repeated word that has become part of the untouchable myth of the problem, is highly debatable, both in terms of what constitutes rape and sexual assault, and whether it’s happening or perceived by those who conflate feminist politics with criminal conduct, stealing very serious words untethered from meaningful definition.

And indeed, there is a “genuine question” of whether the DoE has exceeded its legal authority. But the failure to use the requisite administrative procedure, though certainly a very real flaw, is but one flaw, and likely the least significant one.  After all, had the agency not unilaterally rammed its “guidance” down the open mouths of universities, and instead employed the required notice and comment before crafting its rules, would the outcome have been different? Continue reading →

The trial of New York City Police Officer Peter Liang is beginning. Who, you ask?  Liang, the cop who killed Akai Gurley.  There was no question that Gurley did nothing, absolutely nothing, to justify dying at the end of a cop’s bullet, yet there are no protests, no cries of “no justice, no peace,” for his death. And the cops don’t give a damn about what happens to one of their own either.

What gives?

In the scheme of things to get outraged about, this just doesn’t make it onto the radar.  There is no venal intent, so no one seems capable of getting too worked up about a black kid’s death. This time.

Liang is not accused of intentionally shooting Gurley, who was walking in the unlit stairwell with his girlfriend. The bullet ricocheted off the wall and struck Gurley in the chest. Continue reading →

It must suck to be the speaker of New York City Council.  Melissa Mark-Viverito holds that position of great power and importance, and yet has so little to do that she, in conjunction with Mayor Bill de Blasio, have put her energies into crafting a compromise that fulfills two pressing progressive needs: How to micromanage the behavior of New Yorkers without unduly impacting blacks and Hispanics.

To this end, they’ve come up with a package of eight new city laws to eliminate “quality of life” offenses, the sort of stuff that was the target of “broken windows” policing.

New York City is poised to reshape how it treats many so-called quality-of-life offenses, softening its stance toward low-level infractions like public urination and drinking alcohol in public by steering those cases away from the criminal court system.

Under the legislation, New Yorkers given tickets by the police for offenses such as violating city park rules, a misdemeanor now, would in many cases be steered to a civil process rather than criminal court.

Continue reading →

The argument is twofold: first, that without someone who wants to view kiddie porn, there would be no call for anyone to create kiddie porn. Second, that every time someone views child pornography, the child is again victimized.

That was the justification for not only the absurdly long sentences imposed on defendants, but the demand for the imposition of restitution in the amount of $3.4 million on each and every one of them.  They deserved it. The harm was so horrible, so awful, that every one of them deserved it.

This argument was taken so seriously that it wound up before the Supreme Court in Paroline, an opinion so vague as to leave everyone pondering why the justices got paid that day.  So Sen. Orin Hatch proposed the Amy and Vicky law, because this harm was so horrible that it demanded remediation. Continue reading →

While it’s hardly new to have a federal judge spill his guts these days, it’s also not the norm for judges to put themselves on the line in full public view. To his credit, District of Connecticut Judge Stefan R. Underhill does so in a New York Times op-ed, in which he openly questions a sentence he imposed years ago.

In 2006, I sentenced a man to 18 years in prison. I have been wrestling with that decision ever since.

As a federal district judge, I’ve sentenced hundreds of people, but I’ve rarely agonized as much as I did over this man’s fate.

Before delving further, two things need to be understood. Judge Underhill’s reference to the hundreds of people he’s sentenced, and to the fact that he has wrestled with his 2006 sentencing decision, speaks well of him.  But then, he was charged with sentencing human beings, a judicial responsibility, for which he was poorly prepared. Continue reading →

While I gave DeKalb County, Georgia, District Attorney Robert D. James, Jr., the benefit of the doubt, it would be untrue to suggest that I thought he could pull it off.

Whether the announcement by the DeKalb County district attorney means that he thinks he’s got a shot a getting an indictment of Officer Olsen, or just wants to put on a play to show the public that he’s doing his job, isn’t clear. He seems sincere, but what’s running through his head is unknown.

Police Officer Robert Olsen shot and killed the naked and disturbed Anthony Hill.  There were plenty of reasons why Olsen should be indicted for the killing, but those reasons haven’t proven very successful lately ever.  And unlike the failed grand jury presentations for the murders of Tamir Rice and Eric Garner, to name a couple, the law in Georgia added an extra layer of problem on top of the usual latitude shown an officer who mouthed the “I feared for my life” free pass.

While this places the prosecution in a difficult position in any state but Georgia, creating that inherent conflict between the interlocking arms of the prosecutorial function, DA James faces a singular challenge.  Georgia law provides a police officer protections that can be found nowhere else.

Continue reading →

Eight seconds.  According to Timothy Egan, that’s all there is.

A survey of Canadian media consumption by Microsoft concluded that the average attention span had fallen to eight seconds, down from 12 in the year 2000. We now have a shorter attention span than goldfish, the study found.

Attention span was defined as “the amount of concentrated time on a task without becoming distracted.” I tried to read the entire 54-page report, but well, you know. Still, a quote from Satya Nadella, the chief executive officer of Microsoft, jumped out at me. “The true scarce commodity” of the near future, he said, will be “human attention.”

While SJ isn’t a 54-page report, a typical post is going to require more than 8 seconds of your attention.  Likewise, to understand and process a legal issue, pretty much any legal issue, requires more than 8 seconds. This doesn’t bode well for law.

As I was somewhat testily responding to a commenter yesterday, whose beef was that I lacked sufficient empathy to quit using thought and, in its place, hold hands and cry with him, the ubiquitous trend toward resolving all complex issues by resort to emotion was uppermost on my mind.  How did this happen? When did people decide that their feelz answered all questions?  When did people give up thinking? Continue reading →

It’s not mere chance that so much bad law comes out of Nassau County, New York. The former District Attorney, Kathleen Rice, planned to ride her drunk driving crusade all the way to Washington, and she did. With the blessing of those who were only too happy to ship her out of town.

But we’re still cleaning up the mess she left behind, including the misbegotten prosecution of James Ryan for the bizarre death of Police Officer Joseph Olivieri.  At Fault Lines, Ken Womble provides the backstory from the Appellate Division, Second Department’s decision reversing the dismissal of homicide charges:

According to the evidence presented to a grand jury, on October 18, 2012, before dawn, the defendant allegedly caused two collisions when he drove his car on the Long Island Expressway while he was under the influence of alcohol. In the immediate aftermath of those collisions, the defendant’s stopped vehicle was in the eastbound High Occupancy Vehicle (hereinafter HOV) lane, facing perpendicular to the direction of traffic. Within a few minutes, a police officer responded to the scene. While the officer was standing near the defendant’s stopped car, he was struck and killed when the driver of a sport utility vehicle traveling in the HOV lane did not see him or the defendant’s stopped car in time to avoid hitting them.

Unlike federal law, New York allows a defendant to move to dismiss charges in an indictment for legal insufficiency. The trial court tossed charges against Ryan based upon the disconnect between his conduct, drunk driving, and the death of Olivieri. The appellate court reversed. Continue reading →

The University of Kentucky tried once, resulting in a one-year suspension of a guy who was on the losing end of drunk sex. How drunk isn’t known, but drunk enough to lose under the peculiar view of two drunk kids means the guy is a rapist and the gal is a survivor.  But to its credit, the decision was reversed and sent back for a Mulligan.

The second time, the sentence was a five-year suspension. That will teach him not to appeal, and indeed, he learned the lesson after the Appeals Board tossed it a second time and sent it back for round three.  Instead, he took it to federal court in an effort to hop off the merry-go-round.

The male student complained that the “hearing” provided by UK was constitutionally deficient, in that he was denied due process by the “withholding of critical evidence and witness questions,” as was held on appeal. The second try wasn’t any better.

The UK response was a promise that they would do better the third time. Really, they would, and that they were entitled to try under the Younger abstention doctrine. Continue reading →

When CNN published a story about the report of the American Council of Trustees and Alumni, everybody went nuts over the last sentence of the opening paragraph.

There is a crisis in American civic education. Survey after survey shows that recent college graduates are alarmingly ignorant of America’s history and heritage. They cannot identify the term lengths of members of Congress, the substance of the First Amendment, or the origin of the separation of powers. They do not know the Father of the Constitution, and nearly 10% say that Judith Sheindlin—“Judge Judy”—is on the Supreme Court.

That means 90%* know that Judge Judy is an entertainer, playing a judge on TV, where she amuses the audience by her prescient cries that one of her small claims litigants is lying before they even say a word.  How much fun is that!

Well, Jonathan Turley isn’t amused. Continue reading →