I, for one, welcome our new Computer overlords.

— Ken Jennings, upon losing to Watson on Jeopardy

Unbeknownst to most, one of the start-ups in the Big Data tech arena of law is a company called Lex Machina.  For the moment, it’s limited to the IP niche of law, but what it seeks to do is rather astounding:

We mine litigation data, revealing insights never before available about judges, lawyers, parties, and patents, culled from millions of pages of IP litigation information.

We call these insights Legal Analytics, because analytics involves the discovery and communication of meaningful patterns in data.

In other words, they purport to be able to cull from the pages of court documents Continue reading →

In my effort to understand and appreciate the controlled rhetoric of sex offenses, traditional and newly conceived, I’ve raised questions about the definition of rape and the definition of revenge porn.  While it’s fine to non-lawyers to cry “rape is rape,” the fuzziness of feminist rhetoric makes it difficult, if not impossible, to nail down what they’re talking about so that anyone who hasn’t OD’d on the Kool-Aid can discuss intelligently the merit of their view.

One reaction that comes with regularity, and the anger that suggests that anyone who doesn’t grasp and embrace it is, by definition, the scum of the earth, is the phrase “rape culture.”  It’s a catch-all justification for feminists, and spit at people as if no further explanation is needed.  If one doesn’t “get” rape culture, it’s proof of their misogyny. Not only do I not get it, but I didn’t really know what it meant as it was being thrown my way.  I may be thick, but it wasn’t part of my worldview.

Wikipedia, which is beyond dispute as a font of wisdom, has a “rape culture” page. The definition is: Continue reading →

Checking Radley Balko’s morning links, I came across a bullet point that simply said

• “The Sorry State of Indigent Defense”

How could I resist? It was criminal defense lawyer clickbait, and I fell for it. The link took me to The Crime Report, another of those self-important websites that claims to be “your complete criminal justice resource,” as determined by the John Jay College of Coppery and Shoe Repair.  What it lacks in depth, it more than makes up for in superficiality.

The post was by Sheldon Krantz, whose description at the bottom of the post says:

Sheldon Krantz is a Distinguished Visiting Professor of Law at the University of Maryland Carey School of Law.  For close to two decades, he was a litigation partner at DLA Piper, Continue reading →

The initial reaction to a huge win is always the same: Elation. It doesn’t happen often, and it means one more innocent life is snatched from the belly of the beast. And so the Court of Appeals decision in People v. Adrian Thomas, suppressing his confession made after hours of coercive interrogation, was cause for celebration.

Inasmuch as we conclude that defendant’s inculpating statements were not demonstrably voluntary, we reverse the order of the Appellate Division affirming defendant’s conviction (93 AD3d 1019 [3d Dept 2012]), grant defendant’s previously denied motion to suppress those statements, and direct a new trial.

Sure, it would have been sweeter had the Court phrased it differently, that the “inculpating statements” were the product of manipulation, coercion, compulsion, but “not demonstrably voluntary” will do. After all, without  the confession, there is no evidence of guilt. The “new trial” is a formality. They’ve got nothing. Continue reading →

Via the Daily News’ crack court reporter, Oren Yaniv, a decision was issued in New York’s first “revenge porn” prosecution:

New York’s first “revenge porn” case was nixed.

A Manhattan judge dismissed criminal charges Tuesday against a man who shared naked photos of his girlfriend on his Twitter account and also sent the nudes to her sister and employer.

“The Court concludes that defendant’s conduct, while reprehensible, does not violate any of the criminal statutes under which he is charged,” Criminal Court Judge Steven Statsinger wrote in a decision published Wednesday.

The opinion, People v. Barber, starts with a shaky premise: Continue reading →

At the New York Times Room for Debate, the issue on the table was “Sentencing and the ‘Affluenza’ Factor,” which baits the question from the outset with the “affluenza” silliness that was a creation of the media rather than a rationale adopted by the court.

This month a judge in Texas  ordered a 16-year-old boy who killed four people in a drunken-driving crash to enter rehabilitation as part of 10 years of probation she imposed without a jail sentence. A defense psychologist had said the teenager suffered from ”affluenza,” his judgement stunted by his pampered, privileged upbringing.

The case has angered many who have said that a poor person would have been imprisoned, without the same considerations. To what extent should life circumstances affect sentencing?

Despite the nuance of the question, Continue reading →

The First Rule of Policing claims another victim. Via WSB-TV in Atlanta:

In a very provocative claim, Penn lawprof David Abrams contends that we’ve been wrong this whole time. Via Dan Markel at PrawfsBlawg:

Almost every teacher of criminal procedure is aware of the idea of the “trial penalty,” which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain.

Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it’s true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there’s a trial discount not a trial penalty. Continue reading →

A few days ago, an email came in from my friend, lawprof Ellen Yaroshefsky at Cardozo, with the first report from its Youth Justice Clinic. Among the many recommendations for dealing with youth incarcerated on Riker’s Island, foremost was the elimination of solitary confinement.

For an adult, long-term solitary confinement is torture.  For a child, it is an inexcusable outrage. In considering sources to support these contentions, there are too many, too solid, to select one.  If you feel compelled to demand support for the assertion, go Google it. There is plenty to read. In my view, the proposition that solitary confinement of children is inhumane requires no additional support.

The use of solitary confinement isn’t to protect the lives of corrections officers, but to teach prisoners who’s the boss. Continue reading →

Will Baude at VC/WaPo pointed to a fascinating article by Florida lawprof John Stinneford, entitled “The Illusory Eighth Amendment.”  As much fun as the 8th may be, the part that made this particularly curious had little to do with it, but rather with the Supreme Court’s punting in Miranda v. Arizona.

Discussion of Miranda these days is largely limited to two aspects, the first being that it’s a prophylactic rule, and the second that the Court expected that once given, no one would ever talk to cops again.  After all, could it be any clearer that anything you say can and will be used against you in a court of law?  Of course, experience has shown otherwise.

The surprise here, according to Baude, is that Stinneford raises what Miranda failed to address: Continue reading →