New Supreme Court case expands access rights, unlocks government data
Peter Scheer, Executive Director
First Amendment Coaltion
Dec. 2013
The First Amendment Coalition won a major victory last week in a test case about government transparency and public access to government data. I'm writing to share the good news and to use the occasion to ask you to make a year-end donation to FAC.
The California Supreme Court, in a unanimous decision, established that no agency of government can exempt itself from the public's right to know. The State Bar—an arm of the judiciary that regulates lawyers—had argued that, since it is not covered by California's FOIA law, it has no obligation to make its records available for public review. The Court's answer: Sorry, but you do!
The Court said the Bar's records--specifically, Bar admissions data needed for academic research on affirmative action---are subject to a “common law” right of access. This right is not limited to records of official actions or records in court cases, but extends to any government records whose “disclosure would contribute significantly to public understanding of government activities,” the Court held.
This revived common law right of access could have a far-reaching impact, potentially providing an alternate remedy whenever state FOIA laws, for a variety of reasons, are of no avail.
But there's more . . .
The Court also held that government data can’t be withheld on privacy grounds as long as the data are “de-identified” by stripping out identifiers, controlling data cell sizes, and other steps that have become standard in professional research. The Court’s reasoning: There is no conflict between privacy rights and public access rights when the disclosed data can’t be linked to identifiable individuals.
This aspect of the Court's decision settles a central issue in debates over public access to, and use of, government data that pertain to private individuals---an issue that comes up in many contexts. The Court's holding is a powerful tool for unlocking government databases.
Our victory comes after a long battle with the State Bar—a battle that may drag on, unfortunately, if the Bar chooses to contest the procedures proposed by FAC and our co-plaintiff, UCLA Professor Richard Sander, for de-identifying the Bar's admissions data.
Tuesday, December 31, 2013
Friday, December 20, 2013
Los Angeles doctor runs down pedestrian, then gets him arrested
Author Steve Bevilacqua
Doctor causes harm, then lies about it to escape blame. Haven't I heard this before?
"...road rage lunatic who happened to be a doctor...The driver also pulled the gender card and claimed that her actions were justified because she was "very afraid" of me, despite the fact that she was in a car and I was on my ass in the street."
Book: A Layman's Handbook for Those Falsely Accused of Felonies
Man Run Over By Doctor Faced Lengthy Prison Sentence & Was Then Redeemed On National TV By Judge Judy
Ryan McCormick
Nov 19, 2013
One day Steve Bevilacqua was hit by a car crossing the street and almost went to prison for it. The driver who ran him down was charged with nothing, and Steve spent months in court fighting mandatory prison sentences for imaginary crimes. His book "KAFKA AT THE BEACH: A Layman's Handbook for Those Falsely Accused of Felonies" offers a firsthand account of being on the wrong end of America's justice system.
In KAFKA AT THE BEACH Steve Bevilacqua reveals:
How & why he was facing an 18-month mandatory prison sentence for assault, battery, and strong-armed robbery against the woman who ran him over with her car - crimes he did not commit.
How after he was run over, the driver cursed him, got out of her car, and then attempted to physically assault him.
A corrupt LAPD detective adds more false charges to Steve's existing ones.
In court, Steve meet the alcoholic city attorney who, chomping on pretzels and nursing a hangover, keeps confusing his case with others and becomes hellbent on sending Steve to prison for two years.
Redemption: TV's Judge Judy ruled in Steve's favor as he was suing the driver for cost incurred of her making deliberate false statements.
Santa Monica courthouse
"In the bizarre totalitarian odyssey that devoured a year of my life. I fought off a ferocious campaign to put me in prison, experienced the joys of bankruptcy, and struggled through an absurd maze of court-ordered therapy. However, I ultimately triumphed, achieving vindication on national television at the hands of the snarling modern-day Solomon known as Judge Judy." Steve Bevilacqua
Lights, Camera, Justice: If Only the Los Angeles Court System Were More Like Judge Judy
Steve Bevilacqua
Huff Post
07/31/2013
I was run down by a car while crossing the street, and almost went to prison for it, thanks to our local court system. Granted, what happened to me was an extreme incident, propelled by a road rage lunatic who happened to be a doctor yet should never have been listened to by anyone. The driver also pulled the gender card and claimed that her actions were justified because she was "very afraid" of me, despite the fact that she was in a car and I was on my ass in the street. But what transpired for the next 8 months in our city's court system was a totalitarian nightmare straight out of Kafka's The Trial.
Hundreds of hours, thousands of dollars, and one surreal stint in court-ordered therapy later, I was ravaged but free. Then this legal deathmarch was to play itself out again, on television. Amazingly enough, in one extremely loud afternoon, my fiasco was set right by the modern-day Solomon known as Judge Judy. The actual court system spent months squeezing every technicality in their agonized efforts to send me to prison at the expense of the obvious truth. Judge Judy was direct and ferociously sensible...
During my months in court, I endured City Attorneys defending a driver's right to run down a pedestrian with her car, while refusing to charge her with anything. The driver even admitted giving the finger to the downed pedestrian as she fled the scene, yet she didn't even receive a traffic ticket...
I have yet to see an argument based on some pigshit technicality succeed on Judge Judy while, in real courts, it seems to happen as often as not...
Wednesday, December 18, 2013
It's Hard for a White Guy to Get Himself Arrested
From Courthouse News
...Constantino, who was wearing the same ensemble that he has worn for many of his demonstrations: a Hugo Boss suit, Yves Saint Laurent tie, a lion-decorated silk handkerchief in his breast pocket and Cole Haan wingtip oxford shoes. Constantino wears the self-styled "magic invisible suit of miracles" in wry comment on the trappings of white privilege...
It's Hard for a White Guy to Get Himself Arrested
By Kevin Drum
Daily Kos
Dec. 17, 2013
Over at The Atlantic, a former prosecutor named Bobby Constantino has a piece called "I Got Myself Arrested So I Could Look Inside the Justice System." It's oddly riveting. It starts with a description of his former career:
In between the important cases, I found myself spending most of my time prosecuting people of color for things we white kids did with impunity growing up in the suburbs. As our office handed down arrest records and probation terms for riding dirt bikes in the street, cutting through a neighbor’s yard, hosting loud parties, fighting, or smoking weed — shenanigans that had rarely earned my own classmates anything more than raised eyebrows and scoldings — I often wondered if there was a side of the justice system that we never saw in the suburbs. Last year, I got myself arrested in New York City and found out.
In a nutshell, this guy desperately tried to get himself arrested for walking around New York City with a stencil and a spray can (a class B misdemeanor) and had no luck. So he tagged City Hall. With a surveillance camera recording him. Still no luck. He turned himself in. They turned him away. He literally found it impossible to get arrested.
He finally succeeded, spent a night in jail, and went to court. And then just the opposite happened. He was initially sentenced to five days community service until the prosecutor suddenly realized the case file was flagged "no deal." So he went back to court, and this time they insisted on throwing the book at him. The judge was so pissed off at him that he then doubled the book.
There's more, and it's worth a read. A white guy in a suit, it turns out, is practically invulnerable to being arrested. But when he uses this fact to embarrass the judicial system, the judicial system suddenly turns on him with a fury. Welcome to America.
I Got Myself Arrested So I Could Look Inside the Justice System
A former prosecutor fights the law and lets it win.
Bobby Constantino
Dec 17 2013
Left to right: A snapshot of the author's graffiti; a "selfie" of the author, dressed in his suit and tie and ready to vandalize; a surveillance video still of the work in progress (Bobby Constantino)
Ten years ago, when I started my career as an assistant district attorney in the Roxbury neighborhood of Boston, I viewed the American criminal justice system as a vital institution that protected society from dangerous people. I once prosecuted a man for brutally attacking his wife with a flashlight, and another for sexually assaulting a waitress at a nightclub. I believed in the system for good reason.
But in between the important cases, I found myself spending most of my time prosecuting people of color for things we white kids did with impunity growing up in the suburbs. As our office handed down arrest records and probation terms for riding dirt bikes in the street, cutting through a neighbor’s yard, hosting loud parties, fighting, or smoking weed – shenanigans that had rarely earned my own classmates anything more than raised eyebrows and scoldings – I often wondered if there was a side of the justice system that we never saw in the suburbs. Last year, I got myself arrested in New York City and found out.
On April 29, 2012, I put on a suit and tie and took the No. 3 subway line to the Junius Avenue stop in the Brooklyn neighborhood of Brownsville. At the time, the blocks around this stop were a well-known battleground in the stop-and-frisk wars: Police had stopped 14,000 residents 52,000 times in four years. I figured this frequency would increase my chances of getting to see the system in action, but I faced a significant hurdle: Though I’ve spent years living and working in neighborhoods like Brownsville, as a white professional, the police have never eyed me suspiciously or stopped me for routine questioning. I would have to do something creative to get their attention.
“What does that say?” the officer asked me incredulously. I held the stencil up for him to read. “What are you, some kind of asshole?”
As I walked around that day, I held a chipboard graffiti stencil the size of a piece of poster board and two cans of spray paint. Simply carrying those items qualified as a class B misdemeanor pursuant to New York Penal Law 145.65. If police officers were doing their jobs, they would have no choice but to stop and question me.
I kept walking and reached a bodega near the Rockaway Avenue subway station. Suddenly, a young black man started yelling at me to get out of Brownsville, presumably concluding from my skin color and my suit that I did not belong there. Three police officers heard the commotion and came running down the stairs. They reached me and stopped.
“What’s going on?” one asked.
“Nothing,” I told them. “What does that say?” the officer interrupted me, incredulously, as the other two gathered around. I held the stencil up for them to read.
“What are you, some kind of asshole?” he asked.
I stood quietly, wondering whether they would arrest me or write a summons. The officers grumbled a few choice curse words and then ran down the stairs in pursuit of the young man. Though I was the one clearly breaking a law, they went after him.
I continued west, through Crown Heights, Prospect Heights, and then north through Fort Greene, carrying the stencil, talking to residents. I crossed the Brooklyn Bridge and arrived at City Hall. I walked around the building a few times, and then went down Broadway to the Wall Street Bull. From Brownsville to downtown Manhattan, I would estimate that I passed more than 200 police officers, some from a distance, some close enough to touch. Though I was conspicuously casing high-profile public targets while holding graffiti instruments, not one of them stopped, frisked, searched, detained, summonsed, or arrested me. I would have to go further. I walked up to the east entrance of City Hall and tagged the words “N.Y.P.D. Get Your Hands Off Me” on a gatepost in red paint. The surveillance video shows me doing this, 20 feet from the police officer manning the gate. I moved closer, within 10 feet of him, and tagged it again. I could see him inside watching video monitors that corresponded to the different cameras. As I moved the can back and forth, a police officer in an Interceptor go-cart saw me, slammed on his brakes, and pulled up to the curb behind me. I looked over my shoulder, made eye contact with him, and resumed. As I waited for him to jump out, grab me, or Tase me, he sped away and hung a left, leaving me standing there alone. I’ve watched the video a dozen times and it’s still hard to believe. I woke up the next morning and Fox News was reporting that unknown suspects had vandalized City Hall. I went back to the entrance and handed the guard my driver’s license and a letter explaining what I’d done. Several police officers were speaking in hushed tones near the gates, which had been washed clean. I was expecting them to recognize me from eyewitness descriptions and the still shots taken from the surveillance cameras and immediately take me into custody. Instead, the guard politely handed me back my license, explained that I didn’t have an appointment, and turned me away. I went home and blogged about the incident, publicizing what I’d done and posting pictures, before returning to the guard tower the next day, and the next, to hand over my license and letter. Each time, the guards saw a young professional in a suit, not the suspect they had in mind, and each time they handed me back my license and turned me away. On my fifth day of trying, a reporter from Courthouse News Service tagged along. At first skeptical, he watched in disbelief as the officer took my license, made a phone call, and sent me on my way. On Friday May 4, 2012, I turned myself in at Manhattan Criminal Court. Two Intelligence Unit detectives arrived and testily walked me outside to a waiting unmarked police car. Court papers show that they’d staked out my apartment to arrest me, and that I unwittingly kept eluding them. In one dramatic instance, two officers had tailed me as I walked down Eastern Parkway. I’d entered the subway station at the Brooklyn Museum, unaware that I was being followed. One of the officers had followed me through the turnstiles while another guarded the exit. The report states that the officers then inexplicably lost contact with me. Now, we drove west on Canal Street during rush hour, inching across Manhattan to the West Side before turning around and crawling back to a precinct in the East Village. Eight hours later, around midnight, the officers drove me to central booking, in the basement of the courthouse where I had surrendered. “The judge just left, man, your timing sucks,” one of my cellmates told me as the iron door clanged shut. The cell was approximately 20 feet by 30 feet, and a large metal toilet platform occupied a quarter of the room. I stepped over several men lying on the floor and took the open seat adjacent to the platform. The toilet over me had no door and no partition, and the entire room had a view of sitting users. Feces and urine were caked onto the metal and smeared on the concrete next to me, which is why the seat was vacant. Each time, the guards saw a young professional in a suit, and each time they handed me back my license and turned me away. Over the next 24 hours, I watched as men and women came and went, many with cuts, bruises, and welts. I asked several of them how they’d been injured, and they described fierce struggles with the police. One young man cradled what he reported was a broken wrist. Another pulled up his shirt and revealed three Taser burns. Yet another removed his fitted cap and pointed to a swollen knot on his head. I exchanged uncomfortable glances with the few other white men in the cellblock. “Did they treat you like that?” I whispered. “No, you?” “No.” We held out our wrists to compare. “I’m trying man, but they won’t listen to me,” another man implored through the phone, “Hold on—” “When will you let me see my attorney? He’s been upstairs waiting to see me for two hours!” another man called out in the direction of a group of corrections officers sitting and talking out of view. Some time later, around 2:00 a.m., an older man started calling out, pressing himself against the bars. “CO, I’m diabetic. I need my sugar pills,” he pleaded. Nothing. “CO, please,” he begged another CO with thin-rimmed glasses walking by. “CO, I’m diabetic, I need my sugar—” “Sir, can’t you see I’m busy here?” he interrupted, without stopping. Some time later the door swung open and a CO led three more men into our cell. Eighteen men were now sitting and lying feet to head, or feet to feet, along the length of the bench and floor. “Sir, do you think this is the right way to treat people, piling them on top of one another, when you have an empty cell open all night?” I said indignantly, when morning came, pointing at a vacant cell across the hall. “I’ve been doing this 22 years,” the officer replied. “So yeah, I do.” Around midnight, after 34 hours in custody, I was led to a courtroom upstairs to be arraigned. The district attorney’s office, responsible for prosecuting offenders, asked the judge to dismiss my case with three days of community service. This is standard practice for first-time, nonviolent misdemeanor offenders. The judge read through the paperwork and agreed, though he raised the number of community service days to five. I accepted the sentence and the clerk began reading it into the record. “Your honor, wait!” the assistant state attorney interrupted. Startled by the outburst, the judge looked up and scowled as the attorney read something written on her file. She blushed and continued, “I’m sorry, I have to withdraw my offer.” As the judge shook his head and set a date to return, I felt an odd pang of empathy for her. Once, as a rookie prosecutor, a judge had humiliated me in open court for being evasive about a file that had an ominous yellow “do not dismiss” sticky note on it.
Two months later I arrived at Manhattan Criminal Court at 9:00 a.m. and stood in a line of people that stretched out to the street. I found my way to the courtroom and watched cases being called until around noon, when my attorney beckoned me into the hallway and confirmed what had been written on the assistant state attorney's file at arraignment. “The district attorney’s office is playing hardball. They are seeking a guilty plea against you and requesting jail time if you don’t take it.”
“But it’s a first-time misdemeanor, that ridiculous—”
“I know, but they aren’t budging. Your only chance at avoiding the consequences of a guilty conviction is going to trial.”
Seven subsequent months of visits offered snaking lines, courtrooms packed with misdemeanor offenders, assistant state attorneys threatening jail time, and the steady issuing of fees, fines, and surcharges.
In the end I was found guilty of nine criminal charges. The prosecutor asked for 15 days of community service as punishment. My attorney requested time served. The judge—in an unusual move that showed how much the case bothered him—went over the prosecutor's head and ordered three years of probation, a $1000 fine, a $250 surcharge, a $50 surcharge, 30 days of community service, and a special condition allowing police and probation officers to enter and search my residence anytime without a warrant.
At my group probation orientation, the officer handed each of us a packet and explained that we are not allowed to travel, work, or visit outside New York City.
“Wait, what?” I blurted out. “This is true even for nonviolent misdemeanors?”
“Yes, for everyone. You have to get permission.”
After the orientation, I went straight to my probation officer and requested permission to spend Christmas with my family in Massachusetts. I listened in disbelief as she denied my request—I’d worked with probation departments in several states, and I knew that regular family contact has been shown to reduce recidivism. My probation officer also refused to let me go home for Easter and birthdays. After six or seven of these refusals, I complained to a supervisor, citing New York’s evidence-based practices manual, and was assigned to a new probation officer.
In May, I requested permission to visit a class of third graders in my old neighborhood. The year before, when I’d set out to march from Boston to Florida to protest the handling of the Trayvon Martin case, the class had joined me for a day, calculated my route, and located places for me to sleep. After one of the students, Martin Richard, was killed in the Boston Marathon bombing, the class invited me to march with them in his memory. Though my new probation officer and I have an excellent relationship, and she has allowed me to visit my family twice, she denied this request...
Monday, December 16, 2013
Just how far to the extreme right is Catholic University of America? Charles Koch likes it a lot, giving $1 million to business school
Charles Koch
Our own Judge Judith Hayes of San Diego Superior Court is a graduate of Catholic University of American in Washington DC, as is the infamous retired judge Sharon Armstrong of Seattle.
Scholars Protest Charles Koch's Donation to Catholic University
—By Stephanie Mencimer
Mother Jones
Dec. 16, 2013
Last month, the Charles Koch Foundation pledged to donate $1 million to the new business school at Catholic University of America in DC to contribute to its effort to advance the study of "principled entrepreneurship." Now some of the school's staff and other scholars at other Catholic universities around the country are crying foul. They're asking Catholic University to reject the donation because the Koch foundation and its funder have long pursued a conservative political agenda that's at odds with Catholic social teaching, especially as recently emphasized by the new Pope. In a letter to school's leadership delivered on Monday, they write that accepting the contribution may "send a confusing message to Catholic students and other faithful Catholics that the Koch brothers' anti-government, Tea Party ideology has the blessing of a university sanctioned by Catholic bishops."
Indeed, Catholic University is not just any Catholic school. It was created by US bishops and they sit on its board. Meanwhile, the Charles Koch Foundation is funded by the chairman and CEO of Koch Industries, the oil and gas conglomerate, and one half of the Koch brothers political duo. The Kochs (who aren't Catholic) have spent tens of millions of dollars over the past four decades pushing a free-market agenda that has included opposing the minimum wage and a host of environmental regulations.
Between 2007 and 2011, Koch-related foundations donated more than $30 million to 221 colleges and universities in the US. Charles Koch's donations to academic institutions have been controversial in the past. In 2011, his foundation sparked a minor controversy in Florida when it pledged $1.5 million to fund teaching positions in Florida State University's economics department. The donation enabled the foundation to have a say in hiring decisions for a new program promoting "political economy and free enterprise"; the foundation also wanted the school to start a new class on "Market Ethics: The Vices, Virtues, and Values of Capitalism," in which books by libertarian icon Ayn Rand would have been required reading.
The academics write that "as Catholic bishops affirm the rights of workers to collectively bargain and organize, the Koch brothers give generously to elected leaders like Gov. Scott Walker of Wisconsin who strip public employee unions of their rights to bargain." And the they quote a pastoral letter from the bishops that states emphatically that the church "fully supports the rights of workers to form unions and other associations to secure their rights to fair wages and working conditions… No one may deny the right to organize without attacking human dignity itself." (Koch Industries did not respond to a request for comment. We will update the post if they do.)
The scholars also knock the Kochs for fighting the expansion of Medicaid in many states through their advocacy group Americans for Prosperity, another position that puts the brothers at odds with Catholic social teaching. (The church supports the expansion.) To make their case, Catholic University faculty and others who signed on to the letter are invoking "Time Man of the Year" Pope Francis. "While the Koch brothers lobby for sweeping deregulation of industries and markets," they write, "Pope Francis has criticized trickle-down economic theories, and insists on the need for stronger oversight of global financial markets to protect workers from what he calls 'the dictatorship of an economy which is faceless and lacking any truly humane goal.'"
The letter-signers aren't the only ones who are unhappy about Catholic University's decision to take Koch money. Faithful America, a progressive Christian group, launched a petition last month urging the university to reject the donation. So far, more than 28,000 people have signed it. "The Koch brothers bankroll a political movement that is working to undermine much of what the Catholic social tradition has stood for over the past century," said John Gehring, Catholic program director at Faith in Public Life, an advocacy group in Washington. "It's reasonable to ask why a business school at a Catholic university would want to even risk giving the impression that it endorses a libertarian view of economics. The faith in unfettered markets and anti-government zealotry that has become a theology for many on the right is simply incompatible with Catholic identity."
The bishops who sit on Catholic University's board have increasingly moved away from the church's focus on social justice and aligned with more conservative political elements. The US Conference of Catholic Bishops has pulled back funding for anti-poverty groups that have been caught working in coalitions that included gay-rights advocates, for instance, and it's cracked down on nuns who supported President Obama's health care reform initiative. Catholic University would never take a donation from Planned Parenthood or a foundation that promoted abortion rights, but it doesn't see a problem with taking Koch money.
The university issued a statement defending the donation and accusing Faith in Public Life, which helped coordinate the letter campaign, of an "unfortunate effort to manufacture controversy and score political points at the expense of The Catholic University of America." The school says the Koch foundation will have no role in hiring or course material, and that "the aim of the Charles Koch Foundation grant—to support research into principled entrepreneurship—is fully consonant with Catholic social teaching." The university says the grant has not inspired any opposition on campus and notes that Koch donations to universities are so widespread and uncontroversial that some of the academic signers of the protest letter seem unaware that their own institutions already take Koch money (including Notre Dame, Villanova, and Holy Cross). To that end, the university declares that it "has no intention of revisiting its decision to accept the grant from the Charles Koch Foundation."
Is the San Diego Bar Association using public property and public funds to maintain a private club for lawyers?
John W. Adkins
Open letter to the San Diego Public Law Library chief administrator:
Dear Mr. John Adkins, Director:
I strongly urge you to bring back the introductory legal classes for members of the public that were offered before the recent re-purposing of the San Diego Public Law Library.
Previously there were many classes giving an overview of the legal system and teaching citizens how to conduct lawsuits and appeal decisions.
A few years ago I took those classes, making it possible for me to defend my constitutional rights against a large law firm that wanted to shut down my public interest website. I won in the Court of Appeal in 2011, and I recently filed another appeal. [Here's the Leagle web page with the earlier decision.]
I suspect that the legal establishment in San Diego wants to limit poor litigants to those few who have been chosen for pro-bono representation because they allow business as usual to proceed in the legal community. Certainly the legal clinics offered by USD law students do not fill the void created by the canceled classes. It seems that local lawyers (and judges) want to make sure that people like me (who critique the local justice system) are prevented from protecting themselves in state and federal courts.
It appears that the the San Diego Bar Association has influenced the Public Law Library to help in this goal.
It is improper to sabotage and undermine the longstanding purpose of the Public Law Library. Please return the library to its former purpose of educating the public as well as educating attorneys.
Sincerely,
Maura Larkins
[Note: I sent a message to your staff using the "Request a class" page of the Public Law Library website on Nov. 27, 2013. I received no response. ]
See SDER web page on the San Diego County Public Law Library
See also: The profession's in crisis, but law schools don't care. They're steeped in a toxic, hyper-capitalist worldview
Wednesday, December 11, 2013
Teen Kills 4; Judge LITERALLY Lets Him Off Because He is Rich!
Judge Jean didn't concern herself with rehabilitation and well-being when it was a 14-year old black kid who punched a guy who fell down and died. 10 years. Updated: Teen Kills 4; Judge LITERALLY Lets Him Off Because He is Rich!
by SemDemFollow
Daily Kos
Dec 11, 2013
...16-year old Ethan Couch was driving drunk at THREE times the legal limit and had Valium in his system. He plowed into four people going 70 miles per hour in a 40 mile per hour zone, killing them. Other victims are severely injured; one has severe brain damage. Even after he killed and maimed those people, he was uncooperative and combative with the emergency services and walked away from the police saying "I'm outta here".
He pleaded guilty, of course. But Ethan's parents are very wealthy. (We are talking the 1%.) They hired an attorney that brought on a psychologist to say Couch was "a product of wealth" and was used to getting "whatever he wanted". Because he was so affluent and accustomed to never having consequences, the attorney argued that he should get therapy as opposed to jail.
This was the argument, mind you, used in the defense:
He said Couch got whatever he wanted. As an example, Miller said Couch's parents gave no punishment after police ticketed the then-15-year-old when he was found in a parked pickup with a passed out, undressed 14-year-old girl.
Miller also pointed out that Couch was allowed to drive at 13. He said the teen was emotionally flat and needed years of therapy. At the time of the fatal wreck, Couch had a blood alcohol content of .24, said Tarrant County Sheriff Dee Anderson. It is illegal for a minor to drive with any amount of alcohol in his or her system.
Prosecutors tried to get 20 years. The Defense argued for therapy and probation.
Texas State District Judge Jean Boyd bought the inane "I'm too rich for consequences" defense and actually sided with the Defense and gave him probation:
(Video of the breaking news report. Includes talk with a victim's family member.)
The kid is not remorseful in the slightest. I'm sure he always expected to get off. He always has before. Meanwhile, the victim's families are devastated.
Tell me again how there are NOT two Americas and two sets of rules.
Look at this lady, this young man, and this poor kid. Notice a theme?
Does anyone for a second think if this kid was poor and black he would not be facing death row?
After all, Texas executed this guy even though he was mentally retarded. Yet that's never been a legitimate defense in Texas.
But apparently, if you are white and superich, "affluenza" now is.
Disgraceful.
2:18 PM PT: The father is owner/president of Cleburne Sheet Metal, the truck the kid was driving was a company truck "entrusted" to this kid by his dad. What makes this story even worse is that apparently they built a lot of their wealth with taxpayer money/government contracts. The local representative is Kay Granger. Let her know NO More Government Contracts for this company! (Zip code is 76135 to leave a message).
6:12 PM PT: Judge Jean didn't concern herself with rehabilitation and well-being when it was a 14-year old black kid who punched a guy who fell down and died. 10 years. H/t Ivycompton.
7:33 PM PT: CNN picked up the story and as usual, left a lot out. Nothing of his action at the scene, or since, or his past history. As a result there are several comments expressing sympathy for what he must be going through. At least they covered it finally unlike other outlets.
Wednesday, December 4, 2013
Prosecutor withholds evidence, destroys innocent lives, allows killer to kill again, becomes a judge--then spends three days in jail
THE CRIMINAL IN THE PROSECUTOR'S CHAIR: Prosecutor Ken Anderson. It's about time the legal system took some action against prosecutors and judges who knowingly destroy innocent lives.
Innocent man: How inmate Michael Morton lost 25 years of his life
By Josh Levs
CNN
December 4, 2013
...A few years ago, a group of attorneys, working pro bono on Morton's behalf, managed to bring the truth to light. Not only was Morton innocent, but the prosecutor, Ken Anderson, was accused of withholding crucial evidence.
The little boy, Eric, had seen the attack and told relatives that daddy was not home at the time. He described the man who did it. Neighbors had described a man parking a green van behind the Mortons' house and walking off into a wooded area. A blood-stained bandana was found nearby. None of that evidence made it into the trial.
It took years of fighting, but Morton's attorneys finally got the bandana tested for DNA. It contained Christine Morton's blood and hair and the DNA of another man -- a convicted felon named Mark Norwood.
Norwood had killed Christine Morton. And since no one figured that out after her death, he remained free. He killed another woman in the Austin area, Debra Baker, in similar circumstances less than two years later, authorities say.
Norwood has now been convicted in Morton's killing, and indicted in Baker's killing. A documentary details how Michael Morton -- with help from the Innocence Project -- proved he didn't kill his wife.
Morton was freed in October 2011. He was 57 years old. "I thank God this wasn't a capital case," he said.
Morton's story, told in the CNN Films' documentary "An Unreal Dream," shines a spotlight on wrongful convictions in the United States. More than 2,000 wrongfully convicted people were exonerated between 1989 and 2012, according to data compiled by the University of Michigan Law School.
But Morton's case has paved new ground that could affect cases nationwide.
Last month, Anderson -- Morton's prosecutor who in 2001 became a judge -- pleaded no contest to criminal contempt for deliberately withholding exculpatory evidence.
Anderson's punishment pales in comparison to Morton's experience. The former prosecutor stepped down from his position as a judge and agreed to 10 days in jail. He then served only five of those days, under Texas laws involving good behavior behind bars.
He also agreed to a $500 fine, 500 hours of community service, and the loss of his law license, according to the Innocence Project, a legal clinic affiliated with Yeshiva University's Cardozo Law School.
It's "an extremely rare instance, and perhaps the first time, that a prosecutor has been criminally punished for failing to turn over exculpatory evidence," the Innocence Project said.
The "historic precedent demonstrates that when a judge orders a prosecutor to look in his file and disclose exculpatory evidence, deliberate failure to do so is punishable by contempt," said Barry Scheck, the project's co-director.
The organization is working with the Texas Criminal Defense Lawyers Association and the Innocence Project of Texas to coordinate a review of Anderson's cases.
Anderson, meanwhile, has not publicly acknowledged any personal wrongdoing. In court, he said he couldn't remember details of the case, and that he and his family have been through false accusations over it.
"I apologize that the system screwed up. I've beaten myself up on what I could have done different and I don't know," he said, acknowledging Morton's "pain."
Morton asked a judge to "do what needs to be done, but at the same time to be gentle with Judge Anderson."
In prepared remarks outside the courthouse, Anderson repeated that he wanted to "formally apologize for the system's failure to Mr. Morton and every other person who was affected by the verdict."
Sunday, November 24, 2013
The profession's in crisis, but law schools don't care. They're steeped in a toxic, hyper-capitalist worldview
The real reason law schools are raking in cash
The profession's in crisis, but the schools don't care. They're steeped in a toxic, hyper-capitalist worldview
Benjamin Winterhalter
Salon
Nov 24, 2013
Since at least 1985, the American Bar Association’s Section on Legal Education has published annual statistics about the rates of enrollment at American law schools, the costs of attendance, and the eventual employment of law graduates. Looking at how these numbers have changed since the financial crisis of 2008, one thing is clear: Law schools are doing quite well for themselves. Tuition at private law schools has steadily increased, climbing from a mean of $34,298 in 2008 to a mean of $40,634 today – an increase that, by my calculations, outpaces inflation by about $3,000. And although enrollment has declined slightly from its all-time peak of 52,488 new students in 2010, the general trend has been unmistakably positive.
But if you sought information about how law schools weathered the financial storm in the pages of the New York Times, the Wall Street Journal or the Atlantic, I would not have faulted you for coming to the conclusion that they must be undergoing a major crisis. As these publications have tirelessly (and accurately) reported, the picture for law graduates is rather bleak. Student debt is astronomical, with some law students borrowing upwards of $200,000 to finance their educations, and employment prospects are dismal, with even well-established, “white-shoe” law firms being forced to make massive cuts and layoffs.
As a straight value proposition, it seems, it is no longer clear that going to law school makes any sense. So, law schools, one might reasonably expect, surely must be feeling the pressure. College students, one could not be blamed for thinking, surely must be considering other careers. But it has not been thus.
Why? How, in other words, can we explain the fact that young people are still going to law school in droves? How are we to make sense of the fact that so many intelligent college graduates are, to all appearances, deciding to commit financial suicide? The accounting just does not add up.
A couple of answers suggest themselves. First, there is the fact that law school is uniquely positioned to exploit the ambitions of students whose majors do not lead obviously to a particular career. Economic choices, in other words, are not made in a vacuum; we can select only among the finite alternatives that precipitate from our actual pasts. For the upper-middle-class junior at Amherst whose parents are doctors or professors or – say – lawyers, but who always found herself more interested in 19th-century French painting than in computer programming or corporate accounting, law school may be the only way out. The other choices are to move home (obviously shameful) or (gasp!) get a PhD in art history or some equally esoteric field, which – every sensible person she knows will tell her – is thoroughly useless and not very likely to get her a job. Yes, it is true – the various influences in her life will whisper – sadly in our society everyone must become a technician, but becoming a lawyer is becoming a technician with a heart. Justice, fairness, equality – certainly these are worth caring about? And don’t you want to make something of yourself?
Next, there is the fact that the sorts of people who want to go to law school tend to be exactly the sorts of people who think they can beat the odds. There are, in fact, many books on the market warning prospective students not to go to law school. These books bear such ominous titles as “Law School Confidential” and (more simply) “Don’t Go to Law School.” They describe in gory detail the veritable intellectual, emotional and spiritual wringer into which students are about to voluntarily insert their heads. There is, for instance, the Socratic method – a mode of instruction whose sole discernible purpose is to torture students through the elaborate belaboring of obvious points. And there is, for another, the end-of-semester exam, a three-hour rite of passage that is graded anonymously, covers an entire semester’s worth of material, and counts for 100% of one’s grade. But for a certain kind of person – the kind who found the coddling atmosphere at his private schools stultifying, the kind who positively lusts for real competition – it is difficult to imagine a better advertisement for law school. Indeed, the tacit message of these cautionary books might be paraphrased: Don’t go to law school… unless you are just the sort of exceptionally talented smart person who can succeed in a ruthless competition with other smart people.
But there is another obvious question about the discrepancy – the gulf between the continuing financial success of American law schools and the grim financial realities of their graduates – that no one seems to be asking. The prevailing silence, I think, comes from an implicit recognition that to ask the question is to answer it – that to speak the words aloud is to break a very serious taboo. If we start talking about that, everyone seems to know, we will never be able to sleep at night. The monster has been shut away in the closet for good reason.
That question, the one that is so obvious that even thinking about it is deeply painful, is this: Why aren’t law schools ashamed of themselves? Where is their sense of pity, of remorse, of human decency? After all, aren’t the very ideals that law schools purport to teach about – justice, fairness, equality – fundamentally and exactly opposed to this sort of naked capitalist exploitation? In the standard liberal vision of a functioning democracy, isn’t the rule of law supposed to be our salvation from the savagery of the free market? Isn’t the usual story of how our society has come to have meaningful civil rights, to have real restraints on abuses of government power, a story about pivotal triumphs in the legal system? Brown v. Board of Education? Loving v. Virginia? Gideon v. Wainwright? If law schools are selling an education in these values, the lamentable truth can only be that they have failed to practice what they preach.
It might be tempting simply to shrug one’s shoulders and say “Well, people like money.” And lawyers, it seems, are particularly guilty of this vice. The negative stereotypes about the profession – the bumbling fraudster, the ambulance chaser, the greasy-haired, sharp-suited man on TV promising you “the settlement you deserve, and fast!” – exist for a reason. Is it really any surprise that law schools, composed as they are of lawyers, are happy to dip their cup in the river of cash that seems to be flowing their way?
Perhaps not. But this cynical attitude overlooks a deeper, darker truth about law school – one that, unfortunately for entering students and conveniently for law school administrators, requires attending it to fully comprehend. While most people probably have some vague sense of the peculiarities of the law classroom from cultural touchstones like ”The Paper Chase” and ”One L” (or, more recently, “Legally Blonde”), they probably assume that these references are exaggerated and outdated. Which is true enough. But what they – along with John Jay Osborn (who wrote “The Paper Chase”) and Scott Turow (who wrote “One L”) – have missed is that law school’s indifference to student suffering results not from an inexplicable love of torturous methods of instruction, nor from the inevitability of natural human selfishness, but from a profound ideological commitment to a particular version of neoliberal capitalism.
Over the past several decades, by far the dominant intellectual trend among legal scholars has been one called, rather uncreatively, “law and economics” (or usually just “law and econ”). Law and econ was pioneered by two economic theorists, Ronald Coase and Guido Calabresi. Their idea, essentially a distillation of Chicago School economics, is simple but powerful: The utility of legal rules should be analyzed in terms of their ability to promote economically efficient outcomes. And the question of law’s efficacy as a social force is, first and foremost, one of how well its systems of rules and regulations allow the market to function.
Initially only moderately influential, law and econ quickly gained traction when, in the early 1970s, an assertive law professor by the name of Richard Posner – who is now a judge for the Seventh Circuit Court of Appeals – published a book entitled “Economic Analysis of Law.” Posner’s book carried the fundamental law-and-econ thesis to Procrustean comprehensiveness, offering an amateur economist’s take on each and every aspect of the American common-law system. Posner spoke with great eloquence about the efficiencies and inefficiencies of those parts of the legal system that form the groundwork of the first-year curriculum at literally every American law school: contracts, torts and property. Posner’s efforts were further buoyed by the work of legal scholar and political scientist Lee Epstein, who turned the behavioral and empirical modeling techniques of economics on judicial thinking itself.
Posner’s underlying idea – that understanding why the rules are what they are is a matter of understanding whether they promote economic efficiency – is now so deeply ingrained in the teaching at U.S. law schools that it is regarded as dogma. Law and econ, that is, is not presented as one among many possible theoretical orientations one could have toward the law, but as a set of truths to be memorized. Law professors recite chapter and verse from Posner and Epstein as though their conclusions represented objective, undeniable facts about how the world has to function if things are going to run smoothly. Rather than subjects for examination and discussion about which students are invited to take a position, the law-and-econ position about, say, contracts is presented as part of the “material” that students must ingest and eventually regurgitate. Posner has argued, for instance, that courts should choose rules for interpreting contracts by figuring out what approach maximizes financial rewards between the parties. In one of his tiresome articles, he even writes out a little “equation” for this purpose – to interpret the contract correctly, Your Honor, just use good old C = x + p(x)[y + z + e(x, y, z)]! And those professors who do not actually assign his writings will simply take his approach for granted. The implication is clear: The debate, if ever there was one, has ended, and the economists have won.
If you need proof of law and econ’s influence, just ask any weary twenty-something lugging around a needlessly expensive torts casebook. Most of the cases in that book are followed by an arcane and confusing set of “notes,” which ask pointless rhetorical questions and propound overlong lists of citations to law review articles that no one – least of all the casebook authors – will ever read. Without fail, the questions will encourage you to wonder whether another rule might not lead to increased market efficiency. And invariably, many of the citations in those long lists will be to Posner or one of his many disciples – he is, in fact, the single most cited legal scholar of all time.
It is not as though there are no well-meaning liberals – and some holdout proponents of “Critical Legal Studies,” the left-wing alternative to law and econ – at American law schools. There are plenty. But aside from the easily-memorized-and-parroted set of rules that comprise the actual law, and aside from some basic, practical skills about constructing a legal argument, what most students take from the first year of law school is that their intuitions about justice, fairness and equality are hopelessly naïve; that the relevant consideration is the smooth functioning of the market; and that the point of a life in the law is to oil the machine. Law school tells them that their beliefs about social justice are silly; their simplistic moral views untrustworthy; and their ways of talking insufficiently precise. And all of this is conveyed as though it represented some universally accepted, decidedly modern, and – indeed – scientific consensus about how we should think about legal systems. Students cannot help but perceive that, with the exceptions of a handful of reactionary holdouts and Marxist cranks, everyone seems to agree. At no point will they be let in on the secret that law and econ is merely a modeling technique; that there are other ways to conceive of law’s influence and social possibilities; and that economic explanations like Posner’s rely on a heavily debated set of theoretical assumptions.
While it is true that today’s law schools are, by and large, nowhere near as bad anything in “The Paper Chase,” the rigidly hierarchical structure of law classes, where the professor is permitted endless liberties and students are expected to endure equally endless abuse, only serves to reinforce the core message: Things have to be more or less the way they are. Despite its arbitrariness, the market (like law school) picks winners and losers neutrally, and where it fails to, the goal is to reduce the amount of noise by tweaking the rules that govern it. Our socioeconomic system (like law school) is basically meritocratic – or as nearly meritocratic as possible given the constraints of the real world. And the division of economic rewards that system generates are fundamentally just – or as nearly just as possible given the unfortunate realities of life in the marketplace.
The law curriculum, thus, does a double disservice: First, it obscures the workaday practice of law by cloaking it in a ridiculous shroud of technical complexity, when in fact the best and easiest way to learn the skills of practice is simply to try them yourself. And second, it obscures the nature of legal theory as a mode of intellectual inquiry, instead teaching students to uncritically accept the central premises of neoliberal economics as a somehow post-ideological social order. Students come away both unprepared for anything but apprenticeship at an established law firm, where they will come to understand what lawyers actually do, and disaffected and bored with theoretical discourse about law. As any law student knows, the “discussion” in most law classes is tedious and irrelevant – only the exam matters. Indeed, law students often get angry at their peers for evincing anything like genuine interest in a classroom conversation, since most people in the 100-person lecture hall are – quite justifiably – just wondering when it will finally end.
In short, the answer to the question “Why aren’t law schools ashamed of themselves?” is that most of their professors have been disabused of their beliefs in justice, fairness and equality; they do not see things as their bright-eyed-and-bushy-tailed first-year students do. They have accepted, instead, the law-and-econ formulation of these values: markets, efficiency and capitalism. It is a strange and frustrating situation: The only people who might have interesting thoughts about how law can function for the betterment of society are those who do not yet know enough about law to have an informed opinion.
I am not, of course, the first person to notice this terrible and distressing reality. In 1982, Harvard law professor Duncan Kennedy wrote an article entitled “Legal Education and the Reproduction of Hierarchy: A Polemic Against the System.” Kennedy’s piece describes, in revelatory detail, how every aspect of the law curriculum – down to the physical placement of seats in the lecture hall – is arranged to convey its conservative message about what law is and how it works. Despite the pretentions of objectivity and neutrality provided by the economists’ vernacular, Kennedy observes, law schools remain “intensely political places.” He so neatly summarize the entire situation today that it’s scary: “The trade-school mentality, the endless attention to trees at the expense of forests, the alternating grimness and chumminess of focus on the limited task at hand – all these are only part of what is going on. The other part is ideological training for willing service in the hierarchies of the corporate welfare state.” When I stumbled across these words during my own third year of law school, I found it physically impossible to stop my head from nodding in agreement. If you are young, smart and liberal, and are considering going to law school, read Kennedy’s piece first. It is as true today as the day it was written.
There is, however, a final question: Why aren’t the thousands of unemployed, over-indebted and disaffected young lawyers doing anything about the situation? Why, that is, have they not gone back to their law schools to seek relief, to demand recompense, or at the very least throw rocks? There have been some attempts to sue law schools for publishing misleading employment figures, and some attempts by the Bar to rein in overeager admissions offices, but these efforts were mostly ineffectual (in the case of the lawsuits, largely because they were ill-conceived). By and large, the response among young attorneys has been one of resignation and glum acceptance of their sorry fates.
Kennedy’s answer to my question is simple and compelling. For most students, the ideological training “takes” – like a plant in new soil. So when they find themselves enduring tough economic times, they assume that, other than grab hold of their bootstraps, there is nothing they can do. As they learned so many times in law school, the market wants what it wants, and it seems – at least at the present moment – not to want them. Since the market, the organ of social judgment, the grumbling gut of a hungry nation, has spoken, there is nothing for them to do but listen. To try, in other words, to make the best of it, all while sensing – if the plant has truly put down roots – the unavoidable conclusion of the law-and-econ doctrines: they deserve their fates.
I think, though, that there is another, simpler reason that law grads aren’t striking back. Lashing out at law school means admitting certain truths about their own lives that are too hard to face: That many of the people they trusted to provide them with meaningful, honest instruction about the law failed them. That the purpose of the harsh methods of instruction was not teach them the rigors of being a lawyer, but to rank and sort them ever more finely. That the ranking process then fulfilled the prophecies of the free-market ideology they absorbed, as the best-performing among them were rewarded, even in tough economic times, with clerkships, prestigious summer internships and – eventually – high-paying positions at big firms. That their own reasons for going to law school were less than completely altruistic – that they did, in fact, want to make something of themselves. That they still, despite their hand-wringing about the unfairness of it all, live in circumstances of enormous wealth and privilege. To strike back, that is, is to admit all the contradictions and injustices of the very system that produced you. It means, in other words, turning against yourself. What is there to do, then, but stare blankly out the window of the downtown office over the cityscape, as the sun splatters a gorgeous blood red against the evening clouds, and wonder what to do about the injustice?
The profession's in crisis, but the schools don't care. They're steeped in a toxic, hyper-capitalist worldview
Benjamin Winterhalter
Salon
Nov 24, 2013
Since at least 1985, the American Bar Association’s Section on Legal Education has published annual statistics about the rates of enrollment at American law schools, the costs of attendance, and the eventual employment of law graduates. Looking at how these numbers have changed since the financial crisis of 2008, one thing is clear: Law schools are doing quite well for themselves. Tuition at private law schools has steadily increased, climbing from a mean of $34,298 in 2008 to a mean of $40,634 today – an increase that, by my calculations, outpaces inflation by about $3,000. And although enrollment has declined slightly from its all-time peak of 52,488 new students in 2010, the general trend has been unmistakably positive.
But if you sought information about how law schools weathered the financial storm in the pages of the New York Times, the Wall Street Journal or the Atlantic, I would not have faulted you for coming to the conclusion that they must be undergoing a major crisis. As these publications have tirelessly (and accurately) reported, the picture for law graduates is rather bleak. Student debt is astronomical, with some law students borrowing upwards of $200,000 to finance their educations, and employment prospects are dismal, with even well-established, “white-shoe” law firms being forced to make massive cuts and layoffs.
As a straight value proposition, it seems, it is no longer clear that going to law school makes any sense. So, law schools, one might reasonably expect, surely must be feeling the pressure. College students, one could not be blamed for thinking, surely must be considering other careers. But it has not been thus.
Why? How, in other words, can we explain the fact that young people are still going to law school in droves? How are we to make sense of the fact that so many intelligent college graduates are, to all appearances, deciding to commit financial suicide? The accounting just does not add up.
A couple of answers suggest themselves. First, there is the fact that law school is uniquely positioned to exploit the ambitions of students whose majors do not lead obviously to a particular career. Economic choices, in other words, are not made in a vacuum; we can select only among the finite alternatives that precipitate from our actual pasts. For the upper-middle-class junior at Amherst whose parents are doctors or professors or – say – lawyers, but who always found herself more interested in 19th-century French painting than in computer programming or corporate accounting, law school may be the only way out. The other choices are to move home (obviously shameful) or (gasp!) get a PhD in art history or some equally esoteric field, which – every sensible person she knows will tell her – is thoroughly useless and not very likely to get her a job. Yes, it is true – the various influences in her life will whisper – sadly in our society everyone must become a technician, but becoming a lawyer is becoming a technician with a heart. Justice, fairness, equality – certainly these are worth caring about? And don’t you want to make something of yourself?
Next, there is the fact that the sorts of people who want to go to law school tend to be exactly the sorts of people who think they can beat the odds. There are, in fact, many books on the market warning prospective students not to go to law school. These books bear such ominous titles as “Law School Confidential” and (more simply) “Don’t Go to Law School.” They describe in gory detail the veritable intellectual, emotional and spiritual wringer into which students are about to voluntarily insert their heads. There is, for instance, the Socratic method – a mode of instruction whose sole discernible purpose is to torture students through the elaborate belaboring of obvious points. And there is, for another, the end-of-semester exam, a three-hour rite of passage that is graded anonymously, covers an entire semester’s worth of material, and counts for 100% of one’s grade. But for a certain kind of person – the kind who found the coddling atmosphere at his private schools stultifying, the kind who positively lusts for real competition – it is difficult to imagine a better advertisement for law school. Indeed, the tacit message of these cautionary books might be paraphrased: Don’t go to law school… unless you are just the sort of exceptionally talented smart person who can succeed in a ruthless competition with other smart people.
But there is another obvious question about the discrepancy – the gulf between the continuing financial success of American law schools and the grim financial realities of their graduates – that no one seems to be asking. The prevailing silence, I think, comes from an implicit recognition that to ask the question is to answer it – that to speak the words aloud is to break a very serious taboo. If we start talking about that, everyone seems to know, we will never be able to sleep at night. The monster has been shut away in the closet for good reason.
That question, the one that is so obvious that even thinking about it is deeply painful, is this: Why aren’t law schools ashamed of themselves? Where is their sense of pity, of remorse, of human decency? After all, aren’t the very ideals that law schools purport to teach about – justice, fairness, equality – fundamentally and exactly opposed to this sort of naked capitalist exploitation? In the standard liberal vision of a functioning democracy, isn’t the rule of law supposed to be our salvation from the savagery of the free market? Isn’t the usual story of how our society has come to have meaningful civil rights, to have real restraints on abuses of government power, a story about pivotal triumphs in the legal system? Brown v. Board of Education? Loving v. Virginia? Gideon v. Wainwright? If law schools are selling an education in these values, the lamentable truth can only be that they have failed to practice what they preach.
It might be tempting simply to shrug one’s shoulders and say “Well, people like money.” And lawyers, it seems, are particularly guilty of this vice. The negative stereotypes about the profession – the bumbling fraudster, the ambulance chaser, the greasy-haired, sharp-suited man on TV promising you “the settlement you deserve, and fast!” – exist for a reason. Is it really any surprise that law schools, composed as they are of lawyers, are happy to dip their cup in the river of cash that seems to be flowing their way?
Perhaps not. But this cynical attitude overlooks a deeper, darker truth about law school – one that, unfortunately for entering students and conveniently for law school administrators, requires attending it to fully comprehend. While most people probably have some vague sense of the peculiarities of the law classroom from cultural touchstones like ”The Paper Chase” and ”One L” (or, more recently, “Legally Blonde”), they probably assume that these references are exaggerated and outdated. Which is true enough. But what they – along with John Jay Osborn (who wrote “The Paper Chase”) and Scott Turow (who wrote “One L”) – have missed is that law school’s indifference to student suffering results not from an inexplicable love of torturous methods of instruction, nor from the inevitability of natural human selfishness, but from a profound ideological commitment to a particular version of neoliberal capitalism.
Over the past several decades, by far the dominant intellectual trend among legal scholars has been one called, rather uncreatively, “law and economics” (or usually just “law and econ”). Law and econ was pioneered by two economic theorists, Ronald Coase and Guido Calabresi. Their idea, essentially a distillation of Chicago School economics, is simple but powerful: The utility of legal rules should be analyzed in terms of their ability to promote economically efficient outcomes. And the question of law’s efficacy as a social force is, first and foremost, one of how well its systems of rules and regulations allow the market to function.
Initially only moderately influential, law and econ quickly gained traction when, in the early 1970s, an assertive law professor by the name of Richard Posner – who is now a judge for the Seventh Circuit Court of Appeals – published a book entitled “Economic Analysis of Law.” Posner’s book carried the fundamental law-and-econ thesis to Procrustean comprehensiveness, offering an amateur economist’s take on each and every aspect of the American common-law system. Posner spoke with great eloquence about the efficiencies and inefficiencies of those parts of the legal system that form the groundwork of the first-year curriculum at literally every American law school: contracts, torts and property. Posner’s efforts were further buoyed by the work of legal scholar and political scientist Lee Epstein, who turned the behavioral and empirical modeling techniques of economics on judicial thinking itself.
Posner’s underlying idea – that understanding why the rules are what they are is a matter of understanding whether they promote economic efficiency – is now so deeply ingrained in the teaching at U.S. law schools that it is regarded as dogma. Law and econ, that is, is not presented as one among many possible theoretical orientations one could have toward the law, but as a set of truths to be memorized. Law professors recite chapter and verse from Posner and Epstein as though their conclusions represented objective, undeniable facts about how the world has to function if things are going to run smoothly. Rather than subjects for examination and discussion about which students are invited to take a position, the law-and-econ position about, say, contracts is presented as part of the “material” that students must ingest and eventually regurgitate. Posner has argued, for instance, that courts should choose rules for interpreting contracts by figuring out what approach maximizes financial rewards between the parties. In one of his tiresome articles, he even writes out a little “equation” for this purpose – to interpret the contract correctly, Your Honor, just use good old C = x + p(x)[y + z + e(x, y, z)]! And those professors who do not actually assign his writings will simply take his approach for granted. The implication is clear: The debate, if ever there was one, has ended, and the economists have won.
If you need proof of law and econ’s influence, just ask any weary twenty-something lugging around a needlessly expensive torts casebook. Most of the cases in that book are followed by an arcane and confusing set of “notes,” which ask pointless rhetorical questions and propound overlong lists of citations to law review articles that no one – least of all the casebook authors – will ever read. Without fail, the questions will encourage you to wonder whether another rule might not lead to increased market efficiency. And invariably, many of the citations in those long lists will be to Posner or one of his many disciples – he is, in fact, the single most cited legal scholar of all time.
It is not as though there are no well-meaning liberals – and some holdout proponents of “Critical Legal Studies,” the left-wing alternative to law and econ – at American law schools. There are plenty. But aside from the easily-memorized-and-parroted set of rules that comprise the actual law, and aside from some basic, practical skills about constructing a legal argument, what most students take from the first year of law school is that their intuitions about justice, fairness and equality are hopelessly naïve; that the relevant consideration is the smooth functioning of the market; and that the point of a life in the law is to oil the machine. Law school tells them that their beliefs about social justice are silly; their simplistic moral views untrustworthy; and their ways of talking insufficiently precise. And all of this is conveyed as though it represented some universally accepted, decidedly modern, and – indeed – scientific consensus about how we should think about legal systems. Students cannot help but perceive that, with the exceptions of a handful of reactionary holdouts and Marxist cranks, everyone seems to agree. At no point will they be let in on the secret that law and econ is merely a modeling technique; that there are other ways to conceive of law’s influence and social possibilities; and that economic explanations like Posner’s rely on a heavily debated set of theoretical assumptions.
While it is true that today’s law schools are, by and large, nowhere near as bad anything in “The Paper Chase,” the rigidly hierarchical structure of law classes, where the professor is permitted endless liberties and students are expected to endure equally endless abuse, only serves to reinforce the core message: Things have to be more or less the way they are. Despite its arbitrariness, the market (like law school) picks winners and losers neutrally, and where it fails to, the goal is to reduce the amount of noise by tweaking the rules that govern it. Our socioeconomic system (like law school) is basically meritocratic – or as nearly meritocratic as possible given the constraints of the real world. And the division of economic rewards that system generates are fundamentally just – or as nearly just as possible given the unfortunate realities of life in the marketplace.
The law curriculum, thus, does a double disservice: First, it obscures the workaday practice of law by cloaking it in a ridiculous shroud of technical complexity, when in fact the best and easiest way to learn the skills of practice is simply to try them yourself. And second, it obscures the nature of legal theory as a mode of intellectual inquiry, instead teaching students to uncritically accept the central premises of neoliberal economics as a somehow post-ideological social order. Students come away both unprepared for anything but apprenticeship at an established law firm, where they will come to understand what lawyers actually do, and disaffected and bored with theoretical discourse about law. As any law student knows, the “discussion” in most law classes is tedious and irrelevant – only the exam matters. Indeed, law students often get angry at their peers for evincing anything like genuine interest in a classroom conversation, since most people in the 100-person lecture hall are – quite justifiably – just wondering when it will finally end.
In short, the answer to the question “Why aren’t law schools ashamed of themselves?” is that most of their professors have been disabused of their beliefs in justice, fairness and equality; they do not see things as their bright-eyed-and-bushy-tailed first-year students do. They have accepted, instead, the law-and-econ formulation of these values: markets, efficiency and capitalism. It is a strange and frustrating situation: The only people who might have interesting thoughts about how law can function for the betterment of society are those who do not yet know enough about law to have an informed opinion.
I am not, of course, the first person to notice this terrible and distressing reality. In 1982, Harvard law professor Duncan Kennedy wrote an article entitled “Legal Education and the Reproduction of Hierarchy: A Polemic Against the System.” Kennedy’s piece describes, in revelatory detail, how every aspect of the law curriculum – down to the physical placement of seats in the lecture hall – is arranged to convey its conservative message about what law is and how it works. Despite the pretentions of objectivity and neutrality provided by the economists’ vernacular, Kennedy observes, law schools remain “intensely political places.” He so neatly summarize the entire situation today that it’s scary: “The trade-school mentality, the endless attention to trees at the expense of forests, the alternating grimness and chumminess of focus on the limited task at hand – all these are only part of what is going on. The other part is ideological training for willing service in the hierarchies of the corporate welfare state.” When I stumbled across these words during my own third year of law school, I found it physically impossible to stop my head from nodding in agreement. If you are young, smart and liberal, and are considering going to law school, read Kennedy’s piece first. It is as true today as the day it was written.
There is, however, a final question: Why aren’t the thousands of unemployed, over-indebted and disaffected young lawyers doing anything about the situation? Why, that is, have they not gone back to their law schools to seek relief, to demand recompense, or at the very least throw rocks? There have been some attempts to sue law schools for publishing misleading employment figures, and some attempts by the Bar to rein in overeager admissions offices, but these efforts were mostly ineffectual (in the case of the lawsuits, largely because they were ill-conceived). By and large, the response among young attorneys has been one of resignation and glum acceptance of their sorry fates.
Kennedy’s answer to my question is simple and compelling. For most students, the ideological training “takes” – like a plant in new soil. So when they find themselves enduring tough economic times, they assume that, other than grab hold of their bootstraps, there is nothing they can do. As they learned so many times in law school, the market wants what it wants, and it seems – at least at the present moment – not to want them. Since the market, the organ of social judgment, the grumbling gut of a hungry nation, has spoken, there is nothing for them to do but listen. To try, in other words, to make the best of it, all while sensing – if the plant has truly put down roots – the unavoidable conclusion of the law-and-econ doctrines: they deserve their fates.
I think, though, that there is another, simpler reason that law grads aren’t striking back. Lashing out at law school means admitting certain truths about their own lives that are too hard to face: That many of the people they trusted to provide them with meaningful, honest instruction about the law failed them. That the purpose of the harsh methods of instruction was not teach them the rigors of being a lawyer, but to rank and sort them ever more finely. That the ranking process then fulfilled the prophecies of the free-market ideology they absorbed, as the best-performing among them were rewarded, even in tough economic times, with clerkships, prestigious summer internships and – eventually – high-paying positions at big firms. That their own reasons for going to law school were less than completely altruistic – that they did, in fact, want to make something of themselves. That they still, despite their hand-wringing about the unfairness of it all, live in circumstances of enormous wealth and privilege. To strike back, that is, is to admit all the contradictions and injustices of the very system that produced you. It means, in other words, turning against yourself. What is there to do, then, but stare blankly out the window of the downtown office over the cityscape, as the sun splatters a gorgeous blood red against the evening clouds, and wonder what to do about the injustice?
Saturday, November 16, 2013
Marissa Alexander Is Given No Bail Today - New Evidence Comes To Court
"Ironically, the same state attorney that failed to successfully prosecute George Zimmerman, is the same attorney that sent Marissa Alexander to prison. State Attorney Angela Corey 'twisted the knife' by refusing to drop Alexander's case,even after it was overturned in September."
Updated: Marissa Alexander Is Given No Bail Today - New Evidence Comes To Court
by Leslie Salzillo
Daily Kos
Nov 13, 2013
Marissa Alexander, the Florida woman who was sentenced to 20 years for firing a warning shot to ward off her abusive husband, was granted no bail Wednesday afternoon in a Jacksonville courtroom. The mother of three will most likely not get to spend Thanksgiving or Christmas with her children, as the 'deciding judge' opted to make no decision and set another hearing for January 15, 2012 - pending of course, that he does, or does not, change his mind.
In 2010, just days after giving birth, Marissa Alexander fired a warning shot in self-defense to keep her abusive husband, Rico Gray, from attacking her. In his deposition, Gray who has a history of abusing Alexander, admitted it, stated he intended to hurt her had she not fired the warning shot, and said she did the right thing. He also said Alexander did not aim he gun at him. Gray then changed his story once the case went to trial. He walked out a free man - Marissa Alexander, the battered wife, received 20 years. The Florida Stand Your Ground Law did not work for Alexander because she fired a warning shot. Had she shot and killed Rico Gray that day, she would have most likely served no time at all.
My source who was in the courtroom today, reported new evidence has been brought forth - a text message of Rico Gray asking Marissa to come over for sex while there was an order of protection. Rico Gray claims Marissa should not be let out on bond because he is afraid of Marissa; he fears/feared for his life. Does asking her for sex sound like someone who feared for his life?
“I was in a rage. I called her a whore and bitch and . . . I told her, you know, I used to always tell her that, if I can’t have you, nobody going to have you. It was not the first time of ever saying it to her.”~ Rico Gray in his deposition on November 22, 2010.
Again, does this sound like a man fearing for his life?
Marissa Alexander's case has been highly publicized from the start, and the Free Marissa Now campaign has grown throughout social media. The case was catapulted into even more national spotlight, following the George Zimmerman case. In July 2013, Zimmerman was set free after killing teenager, Trayvon Martin, even though Zimmerman was the aggressor. Ironically, the same state attorney that failed to successfully prosecute George Zimmerman, is the same attorney that sent Marissa Alexander to prison. State Attorney Angela Corey 'twisted the knife' by refusing to drop Alexander's case,even after it was overturned in September.
Unless something changes, it doesn't look as though Marissa Alexander and her three children will be having happy holidays, as she awaits a new bail hearing, and then a whole new trial in March 2014. Supposedly the next trial will be different. This time, Florida courts say the burden of proof will be placed upon them rather than Marissa Alexander. Isn't that how it's supposed to work, Florida?
If you're in an abusive relationship, or know someone who may be, there is help: Call: 800-799-SAFE/National Domestic Violence Hotline or Call: 800-656-HOPE/RAINN (Rape,Abuse, & Incest National Network)
Updated: Marissa Alexander Is Given No Bail Today - New Evidence Comes To Court
by Leslie Salzillo
Daily Kos
Nov 13, 2013
Marissa Alexander, the Florida woman who was sentenced to 20 years for firing a warning shot to ward off her abusive husband, was granted no bail Wednesday afternoon in a Jacksonville courtroom. The mother of three will most likely not get to spend Thanksgiving or Christmas with her children, as the 'deciding judge' opted to make no decision and set another hearing for January 15, 2012 - pending of course, that he does, or does not, change his mind.
In 2010, just days after giving birth, Marissa Alexander fired a warning shot in self-defense to keep her abusive husband, Rico Gray, from attacking her. In his deposition, Gray who has a history of abusing Alexander, admitted it, stated he intended to hurt her had she not fired the warning shot, and said she did the right thing. He also said Alexander did not aim he gun at him. Gray then changed his story once the case went to trial. He walked out a free man - Marissa Alexander, the battered wife, received 20 years. The Florida Stand Your Ground Law did not work for Alexander because she fired a warning shot. Had she shot and killed Rico Gray that day, she would have most likely served no time at all.
My source who was in the courtroom today, reported new evidence has been brought forth - a text message of Rico Gray asking Marissa to come over for sex while there was an order of protection. Rico Gray claims Marissa should not be let out on bond because he is afraid of Marissa; he fears/feared for his life. Does asking her for sex sound like someone who feared for his life?
“I was in a rage. I called her a whore and bitch and . . . I told her, you know, I used to always tell her that, if I can’t have you, nobody going to have you. It was not the first time of ever saying it to her.”~ Rico Gray in his deposition on November 22, 2010.
Again, does this sound like a man fearing for his life?
Marissa Alexander's case has been highly publicized from the start, and the Free Marissa Now campaign has grown throughout social media. The case was catapulted into even more national spotlight, following the George Zimmerman case. In July 2013, Zimmerman was set free after killing teenager, Trayvon Martin, even though Zimmerman was the aggressor. Ironically, the same state attorney that failed to successfully prosecute George Zimmerman, is the same attorney that sent Marissa Alexander to prison. State Attorney Angela Corey 'twisted the knife' by refusing to drop Alexander's case,even after it was overturned in September.
Unless something changes, it doesn't look as though Marissa Alexander and her three children will be having happy holidays, as she awaits a new bail hearing, and then a whole new trial in March 2014. Supposedly the next trial will be different. This time, Florida courts say the burden of proof will be placed upon them rather than Marissa Alexander. Isn't that how it's supposed to work, Florida?
If you're in an abusive relationship, or know someone who may be, there is help: Call: 800-799-SAFE/National Domestic Violence Hotline or Call: 800-656-HOPE/RAINN (Rape,Abuse, & Incest National Network)
Monday, October 7, 2013
District Attorney candidate Robert Brewer basks in the admiration of Dan Shinoff and Leslie Devaney
Robert Brewer
Leslie Devaney's and Dan Shinoff's endorsements of Robert Brewer can be found HERE.
“I have had the great privilege of knowing Mr. Brewer for over 30 years. He is an outstanding individual who is the consummate professional who treats everyone he deals with with great respect and always is a person of tremendous integrity. The County would be most fortunate to have Robert Brewer as District Attorney.”
Daniel R. Shinoff
STUTZ ARTIANO sHINOFF & HOLTZ
I imagine Mr. Shinoff is quite incensed at Bonnie Dumanis for indicting his clients Manuel Paul, Bertha Lopez, and others at Southwestern College, Sweetwater Union High School District, and San Ysidro School District.
Of course, it's sort of strange that Dan Shinoff feels he has to muzzle a retired teacher in order to protect his own reputation as person of integrity. (See my San Diego Education Report blog posts re Stutz v. Larkins.) Does Mr. Shinoff really think that people who have known him for years will think his ethics are questionable just because of something I say? Most of the facts that I discuss have been published in newspapers, or at least in court documents, and few people read my websites, anyway. Why does Mr. Shinoff see me as a threat to his reputation?
Wednesday, August 28, 2013
Judge beleives that disturbed 14-year-old who later killed herself was "as much in control of the situation" as male teacher who had sex with her
Does this look like the face of a person with the sexual sophistication of a fourteen-year-old? This teacher, and the judge in his case, apparently agreed that since 14-year-old girl had already had sex, the teacher wouldn't be causing any more harm by getting a piece of the action. Others think the teacher took advantage of a disturbed child who ended up killing herself. I wonder if he could have made a difference if he had involved himself in her life in a more positive way.
UPDATE: New opinion piece by Meteor Blades
Unfit judge rules rape victim who killed herself 'was as much in control of the situation' as rapist
by Meteor Blades
Daily Kos
Aug 28, 2013
Outrage is growing against a Billings, Montana, judge who handed down a 30-day sentence to a rapist teacher and said the victim, who had killed herself, "was as much in control of the situation" as the teacher—35 years her senior at the time—because she was “older than her chronological age.” Prosecutors had sought a 20-year sentence in the case, with 10 years suspended. District Judge G. Todd Baugh imposed a 15-year sentence and suspended all but 31 days of it, with one day credited for time already served. The judge noted that the crime "did not warrant a lengthy sentence."
Whatever other rulings the 66-year-old Baugh has made during his time on the bench, that one makes him unfit to serve a single day longer.
The outrage began when the girl's mother, Auliea Hanlon, upon hearing the judge's ruling, stormed out of the courtroom repeatedly screaming "You people suck!" She had testified that the sexual relationship between her 14-year-old daughter and high school teacher Stacey Dean Rambold, then 49, had been a major factor in the girl's suicide a few weeks before her 17th birthday. Talk of the case on the internet and coverage in various traditional media have multiplied Hanlon's outrage far and wide.
Organizers plan a rally and protest for Thursday in a park next to the Yellowstone County Courthouse against District Judge G. Todd Baugh. A petition seeking his removal from the bench has been post online.
The case began in 2008 when Stacey Rambold, now 54, a high school teacher who four years earlier had been warned not to touch or be alone with female students, was discovered to be having a relationship with Cherice Morales, a 14-year-old student. He was arrested and initially pleaded guilty to a single felony charge. He was placed on paid leave from his teaching job, soon resigned and was forced to give up his teaching credential. In October 2008, he was charged with three counts of sexual intercourse without consent. The age of consent in Montana is 16. But before the case came to trial, Cherice killed herself, complicating things for the prosecution.
A settlement was reached. Rambold was granted deferred prosecution and ordered to complete a sexual offender treatment program after which the charges would be dropped. He finished the first two of the program's three phases. But then he stopped coming to sessions. It was learned that he was having unsupervised visits with minors and had begun a sexual relationship with an adult without telling the program's supervisors. "The violations were serious enough when taken together to kick Rambold out of the program, although it was learned that the minors Rambold was visiting were family members." Of course, sexual offenders never ever prey on family members...
Former teacher in Montana gets 30 days in jail for raping student who later committed suicide
By Associated Press
August 27, 2013
BILLINGS, Mont. — A former Billings Senior High School teacher who pleaded guilty to raping a 14-year-old student who later killed herself has been sentenced to 30 days in jail by a judge who said the victim was “older than her chronological age” and “as much in control of the situation” as the teacher.
District Judge G. Todd Baugh sentenced Stacey Dean Rambold to 15 years in prison for sexual intercourse without consent, with all but 31 days suspended. He gave Rambold credit for one day already served, The Billings Gazette reported (http://bit.ly/1dmuHZo ).
The girl’s mother repeatedly screamed, “You people suck!” and stormed out of the courtroom Monday.
Rambold, now 54, was charged in October 2008 with three counts of sexual intercourse without consent alleging that he had an ongoing sexual relationship with Cherice Morales, starting the previous year when she was 14.
Morales took her own life in February 2010 while the case was pending.
In July 2010, Rambold entered a three-year deferred prosecution agreement with prosecutors that said the charges would be dismissed if Rambold completed a sex offender treatment program and met other conditions, including having no contact with children. He also admitted to one rape charge.
The case was revived last December when prosecutors learned Rambold had been terminated from the sex offender treatment program.
Treatment provider Michael Sullivan said Rambold started missing meetings in August 2012, but Sullivan said he met with Rambold and he appeared to be back on track with his treatment.
Rambold was terminated from the program in November when it was learned that he had been having unsupervised visits with minors, who were family members, and did not inform counselors that he had been having sexual relations with a woman.v Defense attorney Jay Lansing said Rambold has since continued his treatment with a different program and an evaluation found him at low risk to re-offend.
Baugh said he was not convinced that the reasons for Rambold’s termination from treatment were serious enough to warrant the 10-year prison term prosecutors recommended.v The judge said he listened to statements given by Morales before her death and believed that while she was a troubled youth, she was “as much in control of the situation” as Rambold and was “older than her chronological age.”
Yellowstone County Attorney Scott Twito told The Associated Press on Tuesday that he would not appeal the judge’s sentence.
“We respect the court’s sentencing decision. We obviously disagree with it, based on the recommendations my attorneys made, but it appears to be legally permissible,” he said.
Asked about Baugh’s reasoning that a 14-year-old girl below the state’s age of consent had an equal share of control of the relationship, Twito declined to answer directly.
“The judge’s reasons are his reasons and his reasons alone. He has broad authority under state law, given the proper criteria,” Twito said.
The case resulted in a $91,000 wrongful death settlement between the school district and Morales’ family.
Rambold reached a confidential settlement with the girl’s family.
Mont. judge apologizes for comments in teen's rape
By MATT VOLZ and MATTHEW BROWN
Associated Press
August 28, 2013
ILLINGS, Mont. (AP) — A Montana judge apologized Wednesday for saying a 14-year-old rape victim was "older than her chronological age" and had as much control of the situation as the teacher who raped her — remarks that prompted protests and a petition for his resignation.
District Judge G. Todd Baugh made the comments Monday while sentencing former Billings Senior High School teacher Stacey Rambold to a 15-year prison sentence then suspending all but 31 days and giving him credit for one day already served.
...Faced with backlash over his comments and the sentence that protesters considered too light, Baugh wrote an apology in a brief letter to the editor to The Billings Gazette. The newspaper provided a copy of the apology to The Associated Press.
"I'm not sure just what I was attempting to say but it did not come out correct," he wrote. "What I said is demeaning of all women, not what I believe and irrelevant to the sentencing. My apologies to all my fellow citizens."
"I will add an addendum to the court file to hopefully better explain the sentence," he added.
A protest scheduled for Thursday outside Yellowstone County Courthouse will go on despite the apology, said organizer Sheena Rice, stressing that it's important for the community to show it is not going to stand for victim blaming.
"I'm glad he apologized, but he should have known better as a judge," Rice said. "The fact that he said it makes me think he still believes it."
A petition will be circulated at the protest calling for Baugh's resignation. An online version of the petition had more than 8,500 signatures by Wednesday morning.
If the petition and protest aren't enough to force Baugh's resignation, protesters will shift to defeating him in the 2014 election, Rice said.
He was first elected to the bench in 1984 and has been re-elected every six years since then without an opponent.
Rambold was charged in October 2008 with three counts of sexual intercourse without consent after authorities alleged he had an ongoing sexual relationship with Cherice Moralez, starting the previous year when she was 14. Moralez killed herself in 2010 at age 16 while the case was pending.
The girl's mother, Auleia Hanlon, said in a statement to the Gazette that she no longer believes in justice after Baugh's sentence and remarks about her daughter.
"She wasn't even old enough to get a driver's license. But Judge Baugh, who never met our daughter, justified the paltry sentence saying she was older than her chronological age," Hanlon said. "I guess somehow it makes a rape more acceptable if you blame the victim, even if she was only 14."
Under state law, children younger than 16 cannot consent to sexual intercourse.
Monday, August 26, 2013
The Roberts Court is taking from ordinary Americans rights they have enjoyed for a very long time
"[T]he Roberts Court is unusually willing to take from ordinary Americans rights they have enjoyed for a very long time. The Supreme Court has a long history of standing athwart history yelling stop. This Supreme Court, however, wants to shift history into reverse."
Justice Ginsburg’s Terrifying Assessment Of Her Own Court
By Ian Millhiser
Thinkprogress.org
August 26, 2013
In an interview with the New York Times’ Adam Liptak, Justice Ruth Bader Ginsburg offered a grim assessment of the Court where she so often finds herself leading a four justice dissent — the Roberts Court is “one of the most activist courts in history.”
As an historic matter, this is a pretty staggering claim. The Supreme Court in 1905 handed down a decision called Lochner v. New York that is now widely taught in American law schools as an example of how judges should never, ever behave. Lochner treated any law improving workplace conditions or helping workers to obtain an adequate wage as constitutionally suspect. And Lochner was hardly an anomalous moment in the Court’s history.
Thirteen years after Lochner the Supreme Court struck down federal child labor laws in a decision that is also widely taught as an example of inexcusable judicial activism. In 1895, the Supreme Court rendered the country virtually powerless against monopolies and other powerful combinations of corporate power, and then it held an income tax on the wealthiest Americans unconstitutional just a few months later. The Supreme Court has, with rare exception, been a largely malign force in American history.
There is, however, one important way in which the Roberts Court is distinguishable from the Courts that decided cases such as Lochner. Laws such as the Sherman Antitrust Act and the first federal ban on child labor arose as lawmakers with struggling with many of the negative side effects of the Industrial Revolution. The birth of the railroad and the dawn of mass production massively improved the American standard of living, but they also enabled monopolists to thrive and they resulted in mass exploitation of the working class. The Supreme Court in this era did not so much tear down established rights as it stood for a status quo that favored capital over labor and the rich over the rest of the nation.
The Roberts Court, by contrast, has actively rolled back existing laws protecting workers, women and people of color. The Nineteenth Century Supreme Court blocked America’s first meaningful efforts at racial equality, but the Roberts Court stole from minority voters rights that they had enjoyed for decades. The Lochner Court strangled basic protections for workers in their crib, but the Roberts Court takes fully matured protections for workers and carves them up a piece at a time. And, while Lochner Era courts acted out in the open, undermining human rights in published opinions. the Roberts Court pushes an alternative, corporate-run arbitration system that operates largely in secret.
None of this is to say that the world we live in now is worse than the world our great-grandparents lived in under the Lochner Court — if the Roberts Court’s goal is to bring us back to this era, they are currently shy at least one vote. Nevertheless, the Roberts Court is unusually willing to take from ordinary Americans rights they have enjoyed for a very long time. The Supreme Court has a long history of standing athwart history yelling stop. This Supreme Court, however, wants to shift history into reverse.
Justice Ginsburg’s Terrifying Assessment Of Her Own Court
By Ian Millhiser
Thinkprogress.org
August 26, 2013
In an interview with the New York Times’ Adam Liptak, Justice Ruth Bader Ginsburg offered a grim assessment of the Court where she so often finds herself leading a four justice dissent — the Roberts Court is “one of the most activist courts in history.”
As an historic matter, this is a pretty staggering claim. The Supreme Court in 1905 handed down a decision called Lochner v. New York that is now widely taught in American law schools as an example of how judges should never, ever behave. Lochner treated any law improving workplace conditions or helping workers to obtain an adequate wage as constitutionally suspect. And Lochner was hardly an anomalous moment in the Court’s history.
Thirteen years after Lochner the Supreme Court struck down federal child labor laws in a decision that is also widely taught as an example of inexcusable judicial activism. In 1895, the Supreme Court rendered the country virtually powerless against monopolies and other powerful combinations of corporate power, and then it held an income tax on the wealthiest Americans unconstitutional just a few months later. The Supreme Court has, with rare exception, been a largely malign force in American history.
There is, however, one important way in which the Roberts Court is distinguishable from the Courts that decided cases such as Lochner. Laws such as the Sherman Antitrust Act and the first federal ban on child labor arose as lawmakers with struggling with many of the negative side effects of the Industrial Revolution. The birth of the railroad and the dawn of mass production massively improved the American standard of living, but they also enabled monopolists to thrive and they resulted in mass exploitation of the working class. The Supreme Court in this era did not so much tear down established rights as it stood for a status quo that favored capital over labor and the rich over the rest of the nation.
The Roberts Court, by contrast, has actively rolled back existing laws protecting workers, women and people of color. The Nineteenth Century Supreme Court blocked America’s first meaningful efforts at racial equality, but the Roberts Court stole from minority voters rights that they had enjoyed for decades. The Lochner Court strangled basic protections for workers in their crib, but the Roberts Court takes fully matured protections for workers and carves them up a piece at a time. And, while Lochner Era courts acted out in the open, undermining human rights in published opinions. the Roberts Court pushes an alternative, corporate-run arbitration system that operates largely in secret.
None of this is to say that the world we live in now is worse than the world our great-grandparents lived in under the Lochner Court — if the Roberts Court’s goal is to bring us back to this era, they are currently shy at least one vote. Nevertheless, the Roberts Court is unusually willing to take from ordinary Americans rights they have enjoyed for a very long time. The Supreme Court has a long history of standing athwart history yelling stop. This Supreme Court, however, wants to shift history into reverse.
Thursday, August 22, 2013
From The Onion: Judge Rules White Girl Will Be Tried As Black Adult
This story is hilarious and heartbreaking at the same time.
Judge Rules White Girl Will Be Tried As Black Adult (VIDEO)
The Onion
The court ruled a white teen who stabbed a classmate to death will face the jury as a 300-pound black man.
See video here: Judge Rules White Girl Will Be Tried As Black Adult
Friday, August 9, 2013
Those who passed the bar exam have failed to create a just legal system; it's time to let other experts practice law
“'This is the 50th anniversary of Gideon,' said Shapiro, referring to the landmark 1963 Gideon v. Wainwright Supreme Court decision requiring states to provide lawyers to criminal defendants who can’t afford one.
'If this continues, there won’t be anyone to hear Gideon’s trumpet,' she said.
"Chief Judge Jonathan Lippman of the New York Court of Appeals, the highest court in that state, suggested the Gideon approach of publicly paid lawyers should be applied to some civil cases.
"He proposed that other changes, such as greater use of expert non-lawyers, should also be considered."
Deep Cuts To Court Funding Make CA Chief Justice “afraid to see the future”
San Francisco Appeal
August 9, 2013
The chief justices of California, Texas and New York and three federal judges deplored funding cuts and other roadblocks to public access to justice at an American Bar Association meeting in San Francisco Thursday.
California Supreme Court Chief Justice Tani Cantil-Sakauye said she had reluctantly supported some increases in court fees as “desperate measures” in the face of deep funding cuts that have resulted in the closure of 40 courthouses and 77 courtrooms statewide.
“When it comes to keeping courts open, if these aren’t desperate measures, I’m afraid to see the future,” she said.
Cantil-Sakauye and the five other judges spoke at a session entitled “Are Courts Dying? The Decline of Open and Public Adjudication” on the first day of the ABA’s annual meeting at Moscone Center West.
About 8,000 lawyers and guests are attending the meeting, which continues through Tuesday.
The judges said public access to courts is impaired not only by funding cuts but also by the high cost of lawyers in civil cases and the so-called “outsourcing” of adjudication.
Examples of outsourcing, they said, are the use of private judges for those who can afford it and the use of mandatory, closed-door arbitration instead of open courts to resolve consumer disputes.
“There are reports that 75 percent of the people in our state can’t afford a lawyer” in civil cases, said Texas Supreme Court Chief Justice Wallace Jefferson.
“There are people who have been denied their rights who will just give up,” he said.
U.S. District Judge Norma Shapiro of Philadelphia and retired U.S. District Judge Royal Furgeson of Dallas said funding cuts are hurting federal as well as state courts.
They said the current U.S. budget sequestration is resulting in reductions in federal public defenders, limits on auxiliary services such as probation supervision and delays in needed technology upgrades.
“This is the 50th anniversary of Gideon,” said Shapiro, referring to the landmark 1963 Gideon v. Wainwright Supreme Court decision requiring states to provide lawyers to criminal defendants who can’t afford one. “If this continues, there won’t be anyone to hear Gideon’s trumpet,” she said.
Chief Judge Jonathan Lippman of the New York Court of Appeals, the highest court in that state, suggested the Gideon approach of publicly paid lawyers should be applied to some civil cases. He proposed that other changes, such as greater use of expert non-lawyers, should also be considered...
"Chief Judge Jonathan Lippman of the New York Court of Appeals, the highest court in that state, suggested the Gideon approach of publicly paid lawyers should be applied to some civil cases.
"He proposed that other changes, such as greater use of expert non-lawyers, should also be considered."
Deep Cuts To Court Funding Make CA Chief Justice “afraid to see the future”San Francisco Appeal
August 9, 2013
The chief justices of California, Texas and New York and three federal judges deplored funding cuts and other roadblocks to public access to justice at an American Bar Association meeting in San Francisco Thursday.
California Supreme Court Chief Justice Tani Cantil-Sakauye said she had reluctantly supported some increases in court fees as “desperate measures” in the face of deep funding cuts that have resulted in the closure of 40 courthouses and 77 courtrooms statewide.
“When it comes to keeping courts open, if these aren’t desperate measures, I’m afraid to see the future,” she said.
Cantil-Sakauye and the five other judges spoke at a session entitled “Are Courts Dying? The Decline of Open and Public Adjudication” on the first day of the ABA’s annual meeting at Moscone Center West.
About 8,000 lawyers and guests are attending the meeting, which continues through Tuesday.
The judges said public access to courts is impaired not only by funding cuts but also by the high cost of lawyers in civil cases and the so-called “outsourcing” of adjudication.
Examples of outsourcing, they said, are the use of private judges for those who can afford it and the use of mandatory, closed-door arbitration instead of open courts to resolve consumer disputes.
“There are reports that 75 percent of the people in our state can’t afford a lawyer” in civil cases, said Texas Supreme Court Chief Justice Wallace Jefferson.
“There are people who have been denied their rights who will just give up,” he said.
U.S. District Judge Norma Shapiro of Philadelphia and retired U.S. District Judge Royal Furgeson of Dallas said funding cuts are hurting federal as well as state courts.
They said the current U.S. budget sequestration is resulting in reductions in federal public defenders, limits on auxiliary services such as probation supervision and delays in needed technology upgrades.
“This is the 50th anniversary of Gideon,” said Shapiro, referring to the landmark 1963 Gideon v. Wainwright Supreme Court decision requiring states to provide lawyers to criminal defendants who can’t afford one. “If this continues, there won’t be anyone to hear Gideon’s trumpet,” she said.
Chief Judge Jonathan Lippman of the New York Court of Appeals, the highest court in that state, suggested the Gideon approach of publicly paid lawyers should be applied to some civil cases. He proposed that other changes, such as greater use of expert non-lawyers, should also be considered...
Sunday, August 4, 2013
Superior Court Judge Cline retires after 15 years
Judge Richard Cline.
Superior Court Judge Cline retires after 15 years
By Daily Transcript Staff Report
July 31, 2013
San Diego Superior Court Judge Richard Cline announced his retirement Wednesday, capping a 15-year career on the bench. His last day will be Friday.
Cline is well-known in the North County, having spent his legal career in that region before joining the bench.
Prior to his judicial career, he was an associate at the Law Offices of Richard D. Ring and then partner at Ring and Cline Law Firm in Vista. He also served as the president of the North County Bar Association.
Cline was appointed to the Municipal Court in September 1998 by then-Gov. Pete Wilson and then joined the Superior Court three months later.
While he has spent the majority of his judicial career in probate court, Cline has presided over criminal and civil cases as well.
During his tenure on the bench, Cline has spearheaded such community outreach projects as Youth in Court Day and the On My Honor programs -- both designed to expose students to courtroom procedure.
In addition, he has worked with California State University, San Marcos to develop the On My Honor Teachers Institute. The institute provides training statewide to elementary and high school teachers in an effort to enhance understanding of the state judicial system.
"It quickly became apparent that many of the citizens throughout our community had an inaccurate and grossly incomplete understanding of the role and operation of the court and the third branch of government," Cline said. "Much of this problem is traceable to the skewed information presented by the media, especially television. Many of my colleagues share this view. I decided I could do my part in educating the public through youth outreach programs."
A 1965 graduate of Claremont Men’s College (now Claremont McKenna College), Cline served from Ensign to Lieutenant in the U.S. Navy from 1965 to 1972. He received his law degree from University of San Diego School of Law in 1973.
Cline has both chaired and served on numerous committees for the Center for Judicial Education and Research, where he also served as faculty. In addition, he received a statewide “Ralph N. Kleps Award” for his work on the On My Honor program.
“Judge Cline’s outstanding community service work demonstrated his commitment to educating the public about the justice system," said Presiding Judge Robert Trentacosta. "It will be a fitting tribute to Judge Cline’s legacy for our court to continue this important outreach.”
Video and update on "M. E. Thomas", the lawyer in a wig who claims to be a sociopath; BYU law school is not amused
See original post HERE.
Dr. Phil thinks "M. E. Thomas" (above), the pseudonymous law professor who appeared recently on his program, might be perpetrating a scam.
I would say she's pulling off a cool trick--but not necessarily a scam. Her clever trick is to tell the truth--or something pretty close to it.
Sometimes it's hard to tell the difference between a narcissist and a sociopath. Many, if not most, people are skilled at rationalizing their own bad behavior. Isn't it possible that people's ability to feel guilt varies from high to low, and would show up as a bell-shaped curve if we were to create a graph of how this trait is distributed across the population? Wouldn't the graph look pretty much like the graphs of our heights, weights, and IQs?
It's perfectly believable that Ms. "Thomas" ranks quite low on the scale of ability to feel guilt.
It's not illegal to be a sociopath. It's not even considered a mental illness. You only lose points in your mental health score if you sabotage yourself; it's considered normal, apparently, to sabotage others. I think the biggest factor undermining her claim is that she does sabotage herself. Either way, sociopath or narcissist, she seems to have calculated that she can get rich and famous by simply being herself, so why not?
If you see 100 people today, you'll probably catch a glimpse of a few sociopaths. One or more of them might even work with you. If you're at a meeting with as few as 10 CEOs, you will probably be sharing the room with a sociopath.
The problem is that the legal profession is not tolerant of discussions of its ruthlessness. But perhaps this Mormon female law professor barred in CA, who is likely Jamie Lund, is tired of being a law professor and wants to be a celebrity/author instead. Plus, she'll have a very interesting case if Brigham Young University fires her.
The Author of ‘Confessions of a Sociopath’ Might Be This Law Professor
By Elie Mystal
Above the Law
17 May 2013
It appears that a lot of you would like to know which law professor authored the “Confessions of a Sociopath” summary and book that we discussed yesterday. I guess it’s news if it appears that one of your law professors has gone on television to say that she might murder someone. Sources have come forward about the author’s possible identity, so we’ll share with you what we’re being told while noting that the anonymous author hasn’t yet officially come forward.
It seems that donning a wig and going on Dr. Phil to talk about your sociopathic thoughts doesn’t protect your identity as much as one would think
[Note the UPDATE after the jump....]
Let’s start with the video tape. Multiple sources and commenters reported that the the woman in the second half of this Dr. Phil promo is a law professor in Texas. Her segment on Dr. Phil is called “Confessions of the Sociopath” which is exactly the same title of the article from Psychology Today. The alleged professor shows up at the 29 second mark of the video below.
She calls herself “M.E.” to Dr. Phil. The author of the article and book “Confessions of a Sociopath” is “M.E. Thomas.”
Tipsters report that this M.E. Thomas woman is Professor Jamie Rebecca Lund of St. Mary’s School of Law. St. Mary’s, coincidentally, took down her bio just today (more on that later). But we captured a screen shot before the page was removed (click to enlarge):
That chin seems like the smoking gun to me.
You’ll note that there are many aspects of her bio that link up to details the author of the sociopath tell-all piece revealed yesterday. She went to college at BYU, she’s admitted in California (note however that St. Mary’s Law School is in Texas), and she worked for Irell & Manella… which has to make you wonder if there is some senior associate or junior partner at Irell “named Jane.”
A student of professor Lund’s contacted us to say that he believed his former professor to be the one who authored the article. From the student:
She was generally known as the IP law professor with big tits (she only taught trademarks and copyrights because she had no science background) and there were A LOT of guys (and girls) that were infatuated with her. The sociopathic part that people were able to pick up on was the stare – that blank, empty, uncaring stare. I met with her in office hours once. I wasn’t sure if she wanted to f**k me or eat me. I’m assuming now that it was likely both.
You’ll remember that in her article she talked about her “predator stare.”
But is this all a scam? Dr. Phil seems to think so. We reached out to Professor Lund, but thus far she has not responded. In the extended interview with Dr. Phil, M.E. Thomas says that “My primary reason for staying anonymous is that I have a family, and little relatives — nieces and nephews — who have done nothing to bring any sort of notoriety to themselves.”
We also contacted St. Mary’s. A spokesperson there said that the removal of her bio today was pure coincidence:
Her listing on the website came down today as part of a year-end update of law faculty not returning next year. After spending the past year as a visiting professor at another institution, she notified the School of Law early in the spring semester about not returning to teach.
Enter another Above the Law source. This source says that Lund did indeed intend to leave St. Mary’s for… BYU Law. Again, if you read yesterday’s article you know that the author crowed about how “[t]he Church of Jesus Christ of Latter-day Saints is a sociopath’s dream.” From our tipster:
She was set to become a law professor at BYU Law School. The Dean there is “getting his legal ducks in a row” in order to fire her. Can’t say I blame them, but kind of an ugly result nonetheless. She was courting that result, though: so many unusual biographical disclosures that pointed her way (Mormon female law professor barred in CA reduces it to a class of one, I think).
[UPDATE: 3:20] Additional sources confirm the BYU hired Professor Lund. BYU Law alumni have received a their new faculty list from the school, and they list “Jamie Lund (JD, University of Chicago Law School)” as one of the new hires.
Unlike St. Mary’s, BYU Law has not responded to our multiple requests for comment. Arguably, if Professor Lund is the author of “Confessions,” it does put BYU in a weird spot. Not that “alleged sociopath” is a protected class or anything, but talking about thoughts you have that you don’t act on doesn’t usually get people fired. I mean, she’s published, right!
But that brings us back to Dr. Phil’s “scam” allegation. Perhaps there is a sociopath out there who looks a whole lot like Professor Lund who went on Dr. Phil, and wrote an article and book with a bunch of identifying details in order to frame the professor and harm her in some way. But, absent the “evil twin” scenario, it sure appears that a law school professor went on Dr. Phil to talk about how she might kill somebody, then thought that people wouldn’t notice because she wore a wig. Is that what sociopaths do?
One of our commenters to yesterday’s story said:
Sociopaths are a nice a break from the swarming narcissists that currently dominate the profession.
Sadly, the wigged woman on Dr. Phil seems much more like a narcissist looking for attention. Maybe the only thing she wants to murder is her professorial career?
Dr. Phil thinks "M. E. Thomas" (above), the pseudonymous law professor who appeared recently on his program, might be perpetrating a scam.
I would say she's pulling off a cool trick--but not necessarily a scam. Her clever trick is to tell the truth--or something pretty close to it.
Sometimes it's hard to tell the difference between a narcissist and a sociopath. Many, if not most, people are skilled at rationalizing their own bad behavior. Isn't it possible that people's ability to feel guilt varies from high to low, and would show up as a bell-shaped curve if we were to create a graph of how this trait is distributed across the population? Wouldn't the graph look pretty much like the graphs of our heights, weights, and IQs?
It's perfectly believable that Ms. "Thomas" ranks quite low on the scale of ability to feel guilt.
It's not illegal to be a sociopath. It's not even considered a mental illness. You only lose points in your mental health score if you sabotage yourself; it's considered normal, apparently, to sabotage others. I think the biggest factor undermining her claim is that she does sabotage herself. Either way, sociopath or narcissist, she seems to have calculated that she can get rich and famous by simply being herself, so why not?
If you see 100 people today, you'll probably catch a glimpse of a few sociopaths. One or more of them might even work with you. If you're at a meeting with as few as 10 CEOs, you will probably be sharing the room with a sociopath.
The problem is that the legal profession is not tolerant of discussions of its ruthlessness. But perhaps this Mormon female law professor barred in CA, who is likely Jamie Lund, is tired of being a law professor and wants to be a celebrity/author instead. Plus, she'll have a very interesting case if Brigham Young University fires her.
The Author of ‘Confessions of a Sociopath’ Might Be This Law Professor
By Elie Mystal
Above the Law
17 May 2013
It appears that a lot of you would like to know which law professor authored the “Confessions of a Sociopath” summary and book that we discussed yesterday. I guess it’s news if it appears that one of your law professors has gone on television to say that she might murder someone. Sources have come forward about the author’s possible identity, so we’ll share with you what we’re being told while noting that the anonymous author hasn’t yet officially come forward.
It seems that donning a wig and going on Dr. Phil to talk about your sociopathic thoughts doesn’t protect your identity as much as one would think
[Note the UPDATE after the jump....]
Let’s start with the video tape. Multiple sources and commenters reported that the the woman in the second half of this Dr. Phil promo is a law professor in Texas. Her segment on Dr. Phil is called “Confessions of the Sociopath” which is exactly the same title of the article from Psychology Today. The alleged professor shows up at the 29 second mark of the video below.
She calls herself “M.E.” to Dr. Phil. The author of the article and book “Confessions of a Sociopath” is “M.E. Thomas.”
Tipsters report that this M.E. Thomas woman is Professor Jamie Rebecca Lund of St. Mary’s School of Law. St. Mary’s, coincidentally, took down her bio just today (more on that later). But we captured a screen shot before the page was removed (click to enlarge):
That chin seems like the smoking gun to me.
You’ll note that there are many aspects of her bio that link up to details the author of the sociopath tell-all piece revealed yesterday. She went to college at BYU, she’s admitted in California (note however that St. Mary’s Law School is in Texas), and she worked for Irell & Manella… which has to make you wonder if there is some senior associate or junior partner at Irell “named Jane.”
A student of professor Lund’s contacted us to say that he believed his former professor to be the one who authored the article. From the student:
She was generally known as the IP law professor with big tits (she only taught trademarks and copyrights because she had no science background) and there were A LOT of guys (and girls) that were infatuated with her. The sociopathic part that people were able to pick up on was the stare – that blank, empty, uncaring stare. I met with her in office hours once. I wasn’t sure if she wanted to f**k me or eat me. I’m assuming now that it was likely both.
You’ll remember that in her article she talked about her “predator stare.”
But is this all a scam? Dr. Phil seems to think so. We reached out to Professor Lund, but thus far she has not responded. In the extended interview with Dr. Phil, M.E. Thomas says that “My primary reason for staying anonymous is that I have a family, and little relatives — nieces and nephews — who have done nothing to bring any sort of notoriety to themselves.”
We also contacted St. Mary’s. A spokesperson there said that the removal of her bio today was pure coincidence:
Her listing on the website came down today as part of a year-end update of law faculty not returning next year. After spending the past year as a visiting professor at another institution, she notified the School of Law early in the spring semester about not returning to teach.
Enter another Above the Law source. This source says that Lund did indeed intend to leave St. Mary’s for… BYU Law. Again, if you read yesterday’s article you know that the author crowed about how “[t]he Church of Jesus Christ of Latter-day Saints is a sociopath’s dream.” From our tipster:
She was set to become a law professor at BYU Law School. The Dean there is “getting his legal ducks in a row” in order to fire her. Can’t say I blame them, but kind of an ugly result nonetheless. She was courting that result, though: so many unusual biographical disclosures that pointed her way (Mormon female law professor barred in CA reduces it to a class of one, I think).
[UPDATE: 3:20] Additional sources confirm the BYU hired Professor Lund. BYU Law alumni have received a their new faculty list from the school, and they list “Jamie Lund (JD, University of Chicago Law School)” as one of the new hires.
Unlike St. Mary’s, BYU Law has not responded to our multiple requests for comment. Arguably, if Professor Lund is the author of “Confessions,” it does put BYU in a weird spot. Not that “alleged sociopath” is a protected class or anything, but talking about thoughts you have that you don’t act on doesn’t usually get people fired. I mean, she’s published, right!
But that brings us back to Dr. Phil’s “scam” allegation. Perhaps there is a sociopath out there who looks a whole lot like Professor Lund who went on Dr. Phil, and wrote an article and book with a bunch of identifying details in order to frame the professor and harm her in some way. But, absent the “evil twin” scenario, it sure appears that a law school professor went on Dr. Phil to talk about how she might kill somebody, then thought that people wouldn’t notice because she wore a wig. Is that what sociopaths do?
One of our commenters to yesterday’s story said:
Sociopaths are a nice a break from the swarming narcissists that currently dominate the profession.
Sadly, the wigged woman on Dr. Phil seems much more like a narcissist looking for attention. Maybe the only thing she wants to murder is her professorial career?
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