Wednesday, December 31, 2014

More on Maryland and the death penalty

As we noted at the time,Maryland abolished its death penalty back in May 2013. We did not note, however, that the bill abolishing the death penalty did not apply to people in Maryland who had been sentenced to death. i.e., on Maryland's death row, but not yet executed. For those people, any celebration over the death penalty being abolished was probably muted.  

The Washington Post reports that outgoing Maryland Governor Martin O'Malley has commuted the sentences of the prisoners on Maryland's death row to life in prison without the possibility of parole. According to the story, four prisoners are affected by Governor's move. The Post also says that at the time the death penalty was abolished in Maryland there were five prisoners on death row but that one died of natural causes.

What do you think Mr. Torvik? Is commuting the sentences an act of mercy? Is it thwarting the will of the Maryland Legislature? Or is Merle Haggard (via the Byrds here) right that serving life in prison is worse than being executed?

Wednesday, November 12, 2014

Actual proof that kids today have it worse.

Normally when I hear someone talk about how much better children have it today than in previous generations, I think that the speaker is spewing nonsense. But I do not tell the speaker that they are spewing nonsense because I do not have any proof to back up this thought.  Now I have proof.

Friday, November 7, 2014

Do you remember Arthur J. Mellott, Delmas C. Hill, and Walter A. Huxman?

I hope to post more about the Sixth Circuit's decision to uphold same-sex marriage bans later today. The decision is here. But I had one thought that I thought I could share quickly.

Tuesday, October 14, 2014

How a 10-year-old gets charged as an adult.

The ABA Journal has an article about a shocking crime: a 10-year-old boy in Northeastern Pennsylvania has been charged with beating a 90-year-old woman to death.

Friday, September 26, 2014

Death, part 2

Last week I argued that not many Americans actually love the death penalty so much that they are okay with killing innocent people. Yet there's good reason to believe that innocent people have been put to death, which raises the suspicion that innocent people will be put to death. So what do we do about it?

This is part of the context in which claims of "actual innocence" arise. Judge Kopf says that he would sentence a man he knows (or believes?) to be innocent to death in three situations: (1) where clear precedent forbids him to consider claims of actual innocence; (2) where there is a swift pardon process available; or (3) where the defendant sat on his rights and waived his opportunity to raise his claim of actual innocence.

But what does it mean for a judge to know that a defendant is factually, actually innocent? Well, it could be that there is a credible confession from another person. Or it could be that there is exculpatory DNA evidence that

In those cases, though, we generally rely on the prosecutor to agree that the conviction is unjust and to move the court to vacate the convictions. That's what happened in the Central Park jogger case, for example.  Judges aren't usually asked to make determinations of guilt or innocence. That's the role of the police, the prosecutor, the grand jury (in some cases), and finally and irrevocably, the jury.

Judge Kopf was originally motivated to post on the subject in response to another post by the Salon blogger Digby, who tore into Justice Scalia for his supposed belief that "he does not believe it matters under the Constitution if the state executes innocent people."

I share Judge Kopf's antipathy toward Digby's foolish and reductive characterization of Justice Scalia's position. Of course it "matters under the Constitution" whether the state executes innocent people. The question is: how do we determine innocence? If a person has been indicted, tried, convicted, and sentenced to death after a separate penalty hearing; then had that conviction and sentence affirmed after an opportunity to appeal the conviction, the sentence, and every evidentiary ruling underlying it; can the defendant raise, on a collateral attack of that conviction and sentence—in other words, on a petition for habeas corpus—the claim that he is actually, factually innocent of crime the jury convicted him for? In other words, can he get a new trial on the merits by federal judge after having been convicted of trial by state jury?

You could set up a justice system where the answer to that question is yes. Because "death is different," people should not be put to death until their claims of innocence are rejected by a jury at trial and by a judge in a trial on collateral appeal. Maybe that's what it would take to apply the libertarian principle underlying Blackstone's Ratio to the infinite finality of a death sentence.

But does the constitution require this? Scalia implies that he doesn't think so. He implies that he thinks the constitution requires a conviction by a jury of one's peers, and all other due process allowed for. This is far from a radical position. It's the idea that the best way we have come up with to figure out whether someone is "actually innocent" is a public trial with a jury of one's peers. Judges don't have some special access to the truth.

So here's where I come down on this. I'm opposed to the death penalty because I think the killing of innocents is inevitable and this outweighs any potential benefits of capital punishment. But I agree with Scalia that "actual innocence" isn't a colorable basis for collateral review (by a judge) of a punishment that has been imposed after trial and conviction by a jury. Actual innocence in that scenario is a basis for a pardon, or a basis to convince the prosecutor's office to vacate the judgment. Perhaps there's a role for judges to play in staying execution until colorable claims of actual innocence based on newly discovered evidence can be considered by the proper parties (prosecutor, governor, president). But I don't see judges playing a proper role as last-ditch re-triers of fact.

Thursday, September 25, 2014

Keep Your Government & Corporate Hands Off My Passwords

You may have heard that Apple has implemented a robust new security feature with its latest mobile operating system: the phone's data is now encrypted by default, and Apple retains no record of your passcode or other "backdoor." As a result, Apple cannot "unlock" your phone, even if it has physical possession of the phone, and even if it is served with a lawful warrant or subpoena. It's simply "technically infeasible" for Apple to comply. Law enforcement might as well send the iPhone to Google, which probably is just as likely to have a record of your iPhone passcode somewhere in its vast treasure trove of data about you.

There's nothing nefarious or even new about this, as this has been the standard for encrypted hard drives since forever. I'm writing this post on a 2010 MacBook Pro (with upgraded RAM and SSD drive, I might add!), and its hard drive is encrypted using Apple's standard File Vault utility. Apple offers to keep a copy of your recovery key, but it's not required. If you care about having a truly secure computer, especially as a lawyer, you decline the offer like I did.

But because lots of people have iPhones, important people have noticed the change in Apple's default iPhone security settings, and some of them are freaking out. Most notably, Professor Orin Kerr—a well-respected and influential 4th Amendment scholar who blogs at Volokh Conspiracy—called Apple's move a "dangerous game" that would "thwart" lawful warrants and probably lead to reactionary legislation far worse for privacy interests and civil liberties than simply letting Apple store a copy of your passcode.

I had a lot of thoughts in response to Prof. Kerr's post, but I'm a terrible blogger so the vast majority of them have already been ably expressed by others:
  • Julian Sanchez detailed all the ways in which Apple's move is nothing new, so presents no shift in the overall "equilibrium" between privacy and law enforcement interests, and certainly is not in derogation of the public interest.
  • Matthew Green at Slate did the same, pointing out in particular how any ability we give the US government can be used equally by less friendly governments.
  • Windypundit explained how any backdoor Apple can exploit for the government is a backdoor bad guys can exploit. 
  • Kerr himself has admirably walked back from his original overreaction ("very troubling") to a more scholarly investigatory mode ("need more information to decide" and "where do you draw the line?").
I recommend you read all these responses. But there are a few things I think have been left unsaid.

Kerr's Sense of "Public Interest" is ... Very Troubling

Kerr's original reaction was based his inability to imagine how Apple's change (encryption by default plus no backdoor) could possibly be in the "public interest." This only reveals either his impoverished imagination or his perverted sense of the "public interest." Others (above) have adequately exposed his lack of imagination, but the deeper problem, I think, is that his sense of the public interest essentially boils down to "law enforcement interests." The fact that Apple's change will make tens of millions of Americans more secure in their papers, effects, documents, photos, etc., apparently doesn't register for Kerr as something that could possibly count as in the public interest. That's really weird. Maybe this is a cheap shot, but Kerr's mindset makes it hard for me to imagine how the 4th Amendment's warrant requirement would meet his definition of the "public interest" if it were up for debate today.

Indeed, Kerr's initial response to Apple's move was suspicion because he thinks anything that makes warrants—the "gold standard" of privacy protection—less effective is presumed illegitimate. Apple's move therefore could not possibly be in the "public interest" because it would make it harder for law enforcement and counter-terrorist officials to crack cases, and Apple's old way already protected people from government snooping without a warrant.

But the existence of the 4th Amendment warrant requirement proves that there is indeed a "public interest" in respecting people's privacy: making millions and millions of Americans more secure in their possessions adds up to an almost insurmountable public interest. Warrants are the minimum constitutional requirement for an invasion of privacy.  It does not follow that there is no freestanding public interest in allowing people to maximize the security of their own possessions. 

Consider, for example, a law that imposed criminal penalties for the destruction of any electronic documents. From Kerr's perspective, this would seem to be obviously beneficial to the public interest. After all, allowing people to destroy documents makes it inevitably less likely that future crimes will be solved. And all of these documents would be protected from government snooping without a valid warrant, and nowadays there's no practical limitation to the number of documents that a person can store so there's no legitimate reason to destroy an electronic document.

Perhaps there's some basis for finding such a law unconstitutional, but my belief is that most people confronted with such a proposal would recoil in terror at such an intrusion on their privacy and autonomy. Such a law, which would decrease the "private interests" of millions, has a huge bar to clear to be considered in the "public interest" overall because for the most part the public interest is just the sum of private interests. And I think this analysis applies almost directly to the question of any policy to make mobile phones less secure than is technically feasible (which is what Kerr's conception of the public interest would require).

If Backdoors are in the Public Interest, Why Require Private Companies to Possess Them?

Now let's consider what would seem to be the natural response if you accept Kerr's premise that Apple's move is in derogation of the public interest: legislation to fix it. That's how we usually advance public interests. He proposes a simple amendment to a 90s law that essentially required cell-phone makers to let law enforcement tap them. Kerr thinks we'll see a movement to change that law just to require smartphone manufacturers to keep a backdoor or a copy of your decryption key so they can crack open a phone's data if served with a lawful warrant.

But even if Kerr is right that it's in the public interest for law enforcement to have this capability (he's not, of course), it's unclear to me why the answer is that people should be forced by government mandate to trust private, profit-maximizing companies with the their secrets. I'm aware of no analogous legislation, and I think it would be quite radical.

Instead, if we really think it's in the public interest for all smartphones to be crackable by government, any "key escrow" should be in public hands. In other words, the legislation should require smartphone passwords to be registered with the FBI or some other government agency. Maybe event the Supreme Court. Or maybe the legislation could require mobile operating systems to have a backdoor that only the government itself is allowed to access. The same rules would apply: e.g., law enforcement could only access this publicly held database of passwords with a lawful warrant.

Now, the black helicopter brigade will scream and moan—"Are you crazy!? Trusting the government with out secrets??" But this is a modest proposal. Would you rather trust a private corporation like Apple, or the public-spirited civil servants in the good ole United States government? 

And of course it would be made a serious crime for anyone to access this data without a warrant or for any improper purpose. To some extent we have no choice to trust the people in power, and wouldn't we rather this information be in the hands of public servants rather than private corporations, if we're going to force it to be in someone's hands? This would also alleviate the concerns about bad-guy foreign governments being able to serve warrants on Apple; they'd have no rights to the information held secure by Uncle Sam in its Fort Know bunker.

Obviously, I'm trying to illustrate the absurdity of the proposed legislation. It strikes me as absurd to legislate that people register their passwords with the government. But it's obviously more absurd to require that they register their passwords with private companies. Isn't it?

    Friday, September 19, 2014

    Americans Don't Want to Kill Innocent People

    I've been meaning to respond to Mr. Gillette's thoughtful post inspired by Judge Kopf's statement that “many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases.”

    Perhaps this is a simple statement of admirable humility: the death penalty is administered by error-prone humans, and thus innocent people will be ground up in the machinery of death that it creates.


    Indeed, Judge Kopf relies on a democratic principle: Americans surely know the justice system is imperfect, yet they support the death penalty as part of the justice system. Therefore, the American people are comfortable with the occasional execution of an innocent person. His job as judge is just to implement the justice system established by the democratically enacted laws.

    I think there's profound error here. Yes, the American people know the justice system is "imperfect," but not in the way Judge Kopf thinks. I would bet a lot of money that the most well-known aphorism about the American criminal justice system is Blackstone's ratio:
    It is better that 10 guilty persons escape than that one innocent suffer. 
    Based on this, the popular perception of the American criminal justice system is that it is too lenient. There are too many technicalities, too many loopholes, too many appeals. O.J.!

    So I reject Judge Kopf's supposition that people who support the death penalty assume, or are even comfortable with the fact, that innocent people will inevitably be put to death. In all my years of arguing with people about the death penalty (and I've been on both sides) I've never heard the pro-death side acknowledge that innocent people will be killed, thems the breaks. No one has ever argued for what I'll uncharitably christen Kopf's Ratio:
    It's okay to kill one innocent man so that 10 guilty men can be put to the death the people think they so richly deserve.
    This is not a cherished principle of American law, thank God, and let's hope it never is.

    Unfortunately, we are coming to learn that Kopf's Ratio might better reflect the reality of American law, and that raises the question of what to do about post-conviction claims of "actual innocence." More on that next week (if you're lucky).

    Monday, September 15, 2014

    The Greatest Game (2014 edition)

    I am trying, and sometimes failing, to pay less attention to football. As a result, I did not do a post about the Most Important College Football Game Of The Year, i.e., the University of Iowa vs. Iowa State. We have previously covered the 2013 and 2012 versions of the MICGCOTY game here and here.

    Recognizing the importance of MICGOTY, sports writer (and Marquette University alum) Charles P. Pierce has an article about the game on Grantland. Mr. Pierce devotes a fair amount of his article to the fact that Iowa State initially missed the game winning field goal but Iowa head coach Kirk Ferentz called time-out at the last moment before the snap in order to try to "ice the kicker." The move backfired as Iowa State made the field goal after the time out. Mr. Pierce suggests that this outcome wonderful because icing the kicker is bad coaching.

    I don't know what Mr. Torvik thinks of the icing the kicker strategy but I do know that he is delighted when 13 of the 14 Big 10 schools lose.

    Wednesday, September 10, 2014

    Some heavy reading on the death penalty.

    Judge Richard Kopf has an terrific post (first and third definitions) on his blog, Hercules and the Umpire today. It concerns the death penalty and the execution of people who are "factually," i.e., actually, innocent. I'll do a poor job of summarizing the post in a minute but you should really read the post and then click back to this. I'll wait.

    Friday, August 22, 2014

    "People can't shoot themselves more than once."

    At least that is what Pine County, Minnesota Sheriff Robin Cole told the Associated Press in this story about a man who said he accidentally shot himself four times.The man, who was taken to a Duluth, Minnesota hospital, told investigators that his four gunshot wounds were self-inflicted.The story says the investigators did not believe the man and instead arrested his girlfriend on charges of first-degree assault.

    Friday, August 15, 2014

    Two sides to every story.

    As our Reader(s)™ might have gathered from prior posts, I did not go to law school straight from college. Instead, I kicked around for several years trying to “make it” with my band. During that time, I worked in a couple of restaurants and also as a production worker in a factory (really it was a high-speed bakery but if you tell people you worked in a bakery they get an image of hipsters making artisanal breads. This job was not that. The factory made and bagged 3000 pounds of bread every 12 minutes).

    In August 2000, I started law school. About the same time that I started law school, an African-American co-worker of mine from the restaurant (who I liked a lot and always worked really hard at what was a really crappy minimum wage job) pled guilty to 1st degree reckless homicide and was sentenced to 40 years in prison followed by 20 years of supervised release. When his incarceration ends in November 2040, I will probably be a retired grandparent. I can’t guess what life will be like for my former coworker then. He and I are the same age and I have no idea how an ex-con in their mid-70s would find employment.

    I was thinking of my friend today because I just got back from vacation and am catching up on the chaos in Ferguson, Missouri. In reading about the story, it reminded me that one day my friend and I were working and I described to him how early one morning the police had found me passed out against a tree in my neighborhood and had given me a ride home rather than arrest me. My coworker looked at me with incredulity and said “Adam, your dealings with the police are a lot different than mine.” He then described a number of incidents of what is now called driving while black.

    I do not have any big thoughts to share about Ferguson but whenever there is a story about possible police misconduct, I wonder whether the dealings with the police that the reporter/pundit/blogger/internet commentator has had are more similar to mine or my former coworkers.

    Wednesday, August 6, 2014

    More on executions

    Last week, I posted about an execution in Arizona where the condemned prisoner took almost two hours to die. Part of the post, and the comments, questioned whether the drugs used in the execution where the proper ones. Whatever the problems with Arizona's execution methods, Missouri does not seem to have similar issues.

    Saturday, July 26, 2014

    The secret principle behind all statutory and constitutional interpretation

    We haven't yet discussed the latest legal challenge to Obamacare, which is now in the news thanks to conflicting decisions issued by the DC Circuit and the 4th Circuit on the same day last week.

    The issue is that the Obamacare statute says that certain tax credits are available to people who enroll for health insurance on exchanges "established by the State." The act defines "State" to mean a state or territory of the United States, so this raises the question of whether the tax credits are available to people who enrolled on an exchange established not by a state but by the federal government. This is a live issue because many states have not established exchanges, so the federal government has stepped in as a backstop, and the IRS has issued regulations permitting the tax credits for people who enrolled on those federal exchanges.

    The court decisions have mostly fallen down along party lines, as has the underlying commentary. Republican judges have found the language of the statute to be unambiguous: the tax credits are authorized only for people who enrolled in exchanges "established by the State" and not by the federal government. Whether or not this was what was "intended" by Congress, there's no real ambiguity in the statute, so it must be applied as written. Besides, this kind of carrot-and-stick federalism is not unheard of—the federal government often puts conditions on its statutes to encourage states to act—so the result is not absurd.

    Democratic judges have found plenty of ambiguity in the statute when viewed as a whole, and believe the result—denying affordable health insurance to millions based on a poorly drafted statute—is absurd and clearly contravenes the intent of Congress and the purpose of the Act.

    This suspiciously partisan split over the meaning of words has led to some consternation and cynicism. For example, liberal blogger Matt Yglesias:
    The deep nature of the division is illustrated by the suspicious way in which legal opinions and policy preferences are lining up on this issue. Essentially everyone who believes the Affordable Care Act was an important step toward securing social justice also agrees that it would be absurd to construe the statute in a manner that’s plainly inconsistent with congress’ goals. And essentially everyone who believes it’s crucially important to give the crucial sentence the most straightforward possible reading rather than defer to the IRS’ efforts to make sense of the law as a whole, also believes that the law is a scandalous boondoggle.
    Libertarianish economist Scott Sumner agrees, and goes further:
    It’s an embarrassment that the two sides of the debate line up so predictably on a narrow technical issue. It says that intellectuals cannot be trusted to argue in good faith.
    That's a bold statement. Can the principles of the Enlightenment be saved from this pit of cynicism and contempt?

    I think so. Here's the secret principle behind all good faith legal decision making, including all statutory and constitutional interpretation—a principle that is deeply held by all public intellectuals and by all honest legal scholars, judges and justices of left, right, and center:

    Do justice.

    Well, okay, you say, but that's a pointless abstraction. Not so. It is the saving grace girding our legal system. Once you realize that people of good faith have profoundly held but deeply opposed conceptions of how to do justice, most of the world's seeming hypocrisy melts away.

    Let's take Matt Yglesias, for example. In his post on the new Obamacare challenges, he starts out by stating how frivolous he thinks this legal challenge is:
    I'm no lawyer, but from the first time I heard it the theory advanced by the plaintiffs in the Halbig case has struck me as laughably far-fetched and as best I can tell most objective legal observers agree that they are unlikely to prevail.
    Reader(s)™ may remember, however, that Yglesias was one of the major proponents of the Trillion Dollar Platinum Coin. In that case, he applied a hyper-textualist reading to the coinage statute to find that it allowed minting of platinum coins of any denomination whatsoever. Now, however, he finds the same analysis (hypertextualism) to be laughably far-fetched. How can these positions possibly be reconciled? Isn't Yglesias just a hypocrite?

    Not at all. The cases can easily be reconciled as long as you treat hyper-textualism as a tool to do justice rather than something to be achieved for its own case. In the Platinum Coin case, Yglesias was seduced by hyper-textualism because it provided an opportunity to do what he thought was just: to fund the federal government over what he thought was an insane and probably unconstitutional obstructionism by Republicans. In the new Obamacare case, however, hyper-textualism does a terrible injustice by undoing Obamacare.

    There's a common principle here, that everyone can agree with: it is right, proper, and moral to use every tool at one's disposal to do justice. And this makes perfect sense of the partisan judicial split. Republicans are happy to apply a hyper-textualist interpretation of the Obamacare act because they don't think it's a just law—or at least, they don't think undoing it would lead to any profound injustice. Indeed, they probably see it as poetic justice that the law would be undone on a technicality, given the unusual and rushed procedures used to get it passed. Democrats, on the other hand, see the hyper-textualist interpretation as leading to so much injustice as to be practically absurd.

    Descriptively speaking, I think there's really an underlying ur-canon of statutory interpretation: apply the plain text unless it seems really unfair or unjust. That's what both the Republican and Democratic judges are actually doing in this Obamacare case, and that's what most judges do most of the time. I don't have a problem with that, and you shouldn't either.

    Thursday, July 24, 2014

    What is the proper method of execution?

    Michael Kiefer of the Arizona Republic has a story about witnessing the execution of Joseph Wood on Thursday afternoon. I recommend you read it.

    Mr. Wood was supposed to be executed by lethal injection. When most people hear that term, I think they imagine the condemned receiving an injection, quickly passing out and dying. According to Mr. Kiefer, that is not what happened to Mr. Wood.

    Tuesday, July 22, 2014

    Judge Posner is Cat Crazy

    It is by now well known that Judge Richard Posner is a cat person. It is perhaps somewhat less well known that his love of cats has infected his judicial decision making to an alarming degree.

    For example, take Judge Posner's opinion in yesterday's en banc opinion, Markadonatos v. Village of Woodbridge. The case is about whether a town's $30 booking fee imposed on all people arrested—whether innocent or not, whether based on probable cause or not—is a violation of their civil rights.

    In typical Posner fashion, he would have decided the case by making up his own interpretation of the ordinance to avoid the constitutional issue, even though no one—not the village police department who actually imposed the fee, not the village lawyers, not the plaintiff, not the district court judge, not one of the three judges who each wrote an opinion for the original panel, etc.—had ever previously raised this interpretation as a possibility, much less argued that it was correct. Even on the full Seventh Circuit court, only two of the other nine judges thought Judge Posner's interpretation was permissible after he thought it up. (The decision in the case is a weird one: there are four different opinions, and none of them carry a majority of votes, so the district court's judgment is affirmed by default.)

    Anyhow, one explanation for what was going on with Judge Posner's opinion is that he just couldn't stop thinking about his beloved cat. Basically every legal issue that Posner considers somehow turns into a discussion of cats.

    First, we learn of Judge Posner's greatest fear—catnapping. Not a short nap like a cat takes, no, no. Something much more sinister:
    The plaintiff’s counsel tells us that the $30 “booking fee” provision is unique among the provisions of the ordinance because it alone imposes a fee for what may be innocent conduct mistakenly believed by police to be illegal. He instances the $15 fee for “release of [an] impounded dog or cat.” But of course a dog or cat may escape the owner’s control, and later be impounded, without fault on the owner’s part. The animal may have been stolen, or have escaped from its home because a careless workman had left a door or window ajar, or been lured from its litter box by a rogue Woodridge police officer with catnip.
    I myself have wondered about all those extra compartments on the police officer's standard belt. But it never occurred to me that one of them might be filled with catnip.

    Second, we consider the things that Judge Posner's cat likes to jump on:
    It’s like interpreting the phrase “my cat enjoys jumping on trampolines and beds” to mean that she enjoys jumping on both things, as opposed to her enjoying jumping only on trampolines and, separately, enjoys beds for reasons unrelated to jumping on them.
    So now I imagine this scenario: Judge Posner's cat jumping on a trampoline while he lounges admiringly on his bed, and we soon find out that his cat does indeed enjoy the bed for reasons unrelated to jumping.

    Monday, July 21, 2014

    A coda to our discussion of religious exemptions?

    According to the Washington Post, the Executive Order signed by President Obama to prohibit workplace discrimination against gay, lesbian, and transgendered employees who work for federal contractors (and discussed by Mr. Torvik here) does not contain any religious exemptions for employers who think employing  a gay, lesbian, or transgendered person violates the employer's religious beliefs. In reality, I suspect the issue is more accurately hiring since until today this kind of discrimination by federal contractors was not prohibited.

    I hope and that the distinction Mr. Torvik (and others) make between the Hobby Lobby case and employment discrimination. I suppose we will find out in about a year.

    Thursday, July 17, 2014

    Hobby Lobby & Discrimination, part 2

    Following up on our earlier discussion (wherein sparks flew), I thought I'd direct your attention to this open letter sent by 50 law professors to President Obama, urging him not to carve out a religious exemption to his expected executive order banning discrimination against gays among federal contractors. It is quite persuasive, and worth a read.

    Notably, the law professors' first argument is that Hobby Lobby in no way compels this kind of exemption:
    [T]he Supreme Court's opinion in Hobby Lobby and order in Wheaton College do not compel in any way the inclusion of religious exemptions language in an executive order prohibiting discrimination against LGBT employees of federal contractors. Both actions were predicated on the Court’s belief that the government could fully realize its compelling goals of furthering women’s health and equality through other means – because it could arrange for alternative contraception coverage for affected employees, who then would suffer no harm as a result of an employer exemption. By contrast, there is no such alternative here. Exempting religious employers would harm LGBT employees and it would frustrate the Administration’s compelling interests in providing equal rights and protection against employment discrimination for LGBT people, particularly in taxpayer funded situations.
    This is essentially the same point made by Professor Althouse, which sparked our discussion.

    For the contrary view, see this earlier letter from the Institutional Religious Freedom Alliance. As the law professors' letter notes, however, the IRFA letter cites no authority for its core assertion that religious employers are "free under Title VII to maintain a conduct standard that reflects their religions’ sincerely held beliefs, which include deep convictions about human sexuality." Instead, Title VII merely allows "religious organizations" to prefer people of their own faith in hiring.

    Wednesday, July 16, 2014

    Maybe the backlash against helicopter parenting has gone too far

    recent New York Times op-ed extols the supposed virtues of unsupervised childhood. The argument in the op-ed is essentially that letting kids get into a little trouble makes them more well-rounded human beings, leading them to live better lives as adults.

    I call bullshit. There's no science, or evidence of any kind, behind this idea that letting kids break their bones and start forest fires is actually good for them, or us. On the contrary, the evidence I'm aware of shows that this generation of youngsters is, in pretty much every way, superior to my generation and all the generations that preceded it. For example, kids these days are shockingly less likely to commit crimes. They are just better people, on average, than we were. I'd be surprised if better and more conscientious parenting weren't part of it, but it hardly seems to be hurting.

    Don't get me wrong: I'm all for shooting down helicopter parents and trying to get everyone to chill out and turn it down about five clicks. I'm almost certainly in the bottom (most laid-back) ten percent of parents when it comes to this stuff—not just currently, but in all of human history. Yet the idea that juvenile delinquency is good strikes me as a fairy tale, a romantic conception. Certainly, the burden of proof to provide some evidence should be on people like the op-ed writer to provide something more than a just-so story.

    Obviously, it could be that helicopter parenting makes better people but still isn't worth it because it costs too much in other ways. For example, the culture of parenting has changed so much that things Mr. Gillette and I were allowed to do every day back in the 70s and 80s would possibly subject our parents to criminal charges today, and this is creating some collateral damage. For example, I'm sure you've heard the story of the mother who got arrested because she was dropping her nine-year old daughter off at park while she went to work every day. The kid had a cell phone in case of emergency, so she was probably fine.

    Even so, this case is a little ... strange. Even when I was growing up, I don't think it was common for parents to drive their kids across town and leave them alone at a park. In my day, parents just left their kids at home with the tv and a Nintendo. That's my America! I can't help wondering why this mother didn't just leave her kid at home. I suppose she could have thought the kid would get bored and just go exploring on her own. Maybe. But home seems like the better option.

    One reason why leaving her home might not have been so appealing is that there doesn't seem to be any kind of neighborhood youth culture any more. When I was young, the local youths would gather around the neighborhood after school and during the summer. There was safety in numbers, even if there was more delinquency. Nowadays, since kids aren't let out of the house alone, there just aren't kids hanging around to a hang around with. It's kind of a vicious circle, I guess.

    On the bright side, we get a lot less forest fires and broken streetlights. By the way, my frequent use of the example of "forest fire" is in no way an admission that I started a forest fire when I was a kid. Nor is it a denial. But if I did it surely made me the wonderful man I am today.

    Tuesday, July 15, 2014

    Lawyering against destiny

    When I was spending a few months over at the Minneapolis City Attorney's office, the big issue in misdemeanor criminal defense was "source code" challenges to the Breathalyzer test in DUI cases. The criminal defense bar was arguing that it needed access to the machine's "source code" so that the results could be attacked with a scientific expert witness. In my view, this was a red herring—what mattered was whether the machine worked, something that could be verified with experiments, and it made no difference what assortment of ones and zeroes lived in its guts. (My understanding of "source code" remains murky.)

    Anyhow, the state would have gladly turned over the source code if it had it, but of course it did not. The source code was owned by the maker of the Breathalyzer machines, and that company considered it a trade secret. So it was a perfect issue for the DUI attorneys: they could demand the source code, and when it was not forthcoming, move to exclude the evidence of the breath test as a sanction for failing to produce it.

    The issue was raised in one my cases, a case that just so happened to be assigned the judge considered to be very pro-defense: Judge Jack Nordby. From the moment of the judge assignment, I knew my chances of success on the source code motion were slim-to-none. But Judge Nordby set a briefing schedule, and I intended to do my best.

    Just a few days later, however—well before my brief was even due—the order came down: motion to suppress granted. I suspected that this was a sort of mistake; that Judge Nordby had issued the same order in the dozens of cases where the source code issue had been raised, and his clerk just threw my case in with the rest of them. But I couldn't presume that the judge had made a mistake like this. So I filed an emergency motion to reconsider, asking for at least a chance to be heard. This led to one of the weirder moments in my legal career: the phone rang, and Judge Nordby was on the line. He was calling to apologize: of course he would vacate the order and allow the briefing to go forward.

    Which was nice. But, still, I knew I was going to lose. I'd already seen the order! Nonetheless, I wrote a pretty awesome brief. The one good thing about having seen the order in advance was that I could attack Judge Nordby's reasoning directly—I didn't have to guess at which arguments the judge would find most persuasive. And it turned out that Judge Nordby's order was more or less contradicted by his own treatise on criminal procedure. So I was pretty proud of my little brief.

    But, still, I knew I was going to lose.

    When the hearing came and Judge Norbdy handed down his ruling, he was very kind, complimented the brief, and said that he had seriously reconsidered his decision. But. He was not changing his ruling.

    Which brings me to the Seventh Circuit fiasco known as Motorola Mobility v. AU Optronics, a Richard Posner production.  The story is set forth here, and I urge you to follow the link because it is pretty much unbelievable.

    In short: there was a district court order, and it was appealed on an interlocutory basis—this means that the order wasn't "final" and wouldn't usually be appealable, but Motorola argued that it should be appealed right away. That request for interlocutory appeal was heard by a "motions panel" of the Seventh Circuit, which granted the motion to allow the appeal. At the same time, however, the motions panel (in an opinion by Judge Posner) decided the case on the merits, and affirmed the district court's order without allowing any briefing or arguments by anyone on this merits.

    This was extraordinary, perhaps unique, and ruffled a lot of feathers. Among the feathers ruffled were those of the eagle in Great Seal of the United States, because the issue decided concerned anti-trust law that affects international business and international relations (somehow—I don't pretend to understand exactly how). So when Motorola filed a petition for rehearing in front of all the Seventh Circuit judges, the U.S. Department of Justice filed an amicus brief stating its view that the decision was wrong.

    This led to the second round of nuttiness: Judge Posner issued an order, out of the blue, to the Departments of Commerce and State, asking them to submit their own briefs—even though the Department of Justice is ultimately the legal representative of both agencies. The Solicitor General wrote the court to inform it that the previous brief had been submitted on behalf of the United States, and that no agency-specific briefs would be forthcoming. Judge Posner responded with another singular order, ordering the Solicitor General, personally, to name the specific federal officers who had been consulted in preparing the brief, and the nature of the consultation. He was given a week to do so.

    Then the panel withdrew that bizarre order the next day. Still, the appeal of the appeal went on. Until now. Today, the motions panel changed its mind, and set a briefing schedule on the merits. So it's like none of that stuff ever happened.

    But, still, Motorola knows it is going to lose, right?

    They've seen the order. So they are going to spend countless hours preparing briefs, spending god knows how much in legal fees, so that Judge Posner can just issue the same order in six months. What's the point? Just this, I guess: there's some lawyering to be done.


    After some extensive lawyering, Judge Posner—surprise!—affirmed the district court's partial summary judgment (again).

    Tuesday, July 8, 2014

    The Criminal Element

    Wired has a truly shocking report of deception and lawlessness by the U.S. Marshals service, the Florida State Attorney's office, and local police departments:
    Police in Florida have, at the request of the U.S. Marshals Service, been deliberately deceiving judges and defendants about their use of a controversial surveillance tool to track suspects, according to newly obtained emails.
    At the request of the Marshals Service, the officers using so-called stingrays have been routinely telling judges, in applications for warrants, that they obtained knowledge of a suspect’s location from a “confidential source” rather than disclosing that the information was gleaned using a stingray.
    Once, when a police officer made the mistake of actual describing how the location information was obtained, the State's Attorney issued a stern rebuke with strict orders never to tell the truth again, to ensure "that we may continue to utilize this technology without the knowledge of the criminal element."

    When the ACLU made a FOIA request to get to the bottom of what was going on, the U.S. Marshals swept in and seized the evidence:
    The release of the emails showing interference by a state attorney and the U.S. Marshals Service comes two weeks after agents from the Marshals Service took the extraordinary measure of seizing other public documents related to stingrays from the Sarasota Police Department in order to prevent the ACLU from examining them.
    The documents, which were responsive to a FOIA request seeking information about Sarasota’s use of the devices, had been set aside for ACLU attorneys to examine in person. But hours before they arrived for the appointment to view the documents, someone from the Marshals Service swooped in to seize the documents and cart them to another location.
    The police argue that the use of these stingrays without a warrant is unobjectionable "because the devices don’t collect the content of phone calls and text messages, but instead operate like pen-registers and trap-and-traces, collecting the equivalent of header information." Perhaps so, but it is hard to see how this justifies their secret use, or how it justifies lying about using them in sworn affidavits. Or am I over-reacting?

    Tuesday, July 1, 2014

    Could the Hobby Lobby case lead to religious exemptions for race discrimination in employment?

    Absolutely not.

    The Good Ole Days

    Minnesota Litigator has an interesting guest post today by retired bankruptcy judge Dennis O'Brien. What struck me was the arc of Judge O'Brien's career. After graduating from William Mitchell in 1974, he practiced at a small firm in Duluth for a couple of years, then went solo as a general practitioner. Just a few years later, in 1983, he applied to become the part-time bankruptcy judge in Duluth. Apparently he was the only applicant--mainly because the structure and jurisdiction of the bankruptcy court was being gutted and in complete disarray. Even so, it is impossible for me to imagine that any similar job for a federal appointment (even one that was doomed to last just six months or less) would not be swarmed with applicants today.

    Friday, June 27, 2014

    Are the people advising President Obama about food the same people advising him about judges?

    If they are not, they should. President Obama visited Minneapolis yesterday and, as reported here, went to Matt's Bar and had a Jucy Lucy. The Jucy Lucy, two beef patties which enclose melted cheese, is arguably the finest cheeseburger known to humankind.  Wouldn't you agree Mr. Torvik that whoever picked this destination for the President's lunch clearly has the taste and refinement necessary to remedy President Obama's inexplicable failure to name us to the federal bench?

    Monday, June 23, 2014

    Greenhouse Gases and the Platinum Coin

    The Supreme Court issued another statutory interpretation opinion today in UARG v. EPA. Justice Scalia took the opportunity to torpedo the ridiculous argument that the U.S. Treasury has authority to mint a one-trillion dollar platinum coin. Well, not in so many words, but for all practical purposes he did.

    The background is pretty interesting. In 2007, the Court ratified the EPA's power under the Clean Air Act to regulate greenhouse gases as an "air pollutant" in the context of motor vehicles. But this created a bit of problem in another section of the Clean Air Act, which requires the EPA to regulate, by issuing permits, for major "stationary" emitters of "any air pollutant." The statute defines major permitters as those emitting more than 250 tons of an air pollutant in a year.

    The problem is that tens of thousands of buildings, schools, malls, etc, emit that much in greenhouse gases, and thus would need to be permitted if that section applied. Everyone agreed that was not intended. To avoid that absurd result, the EPA issued a regulation setting a different, much higher, threshold for the emission of greenhouse gases (between 50,000 and 100,000 tons, depending on the circumstances).

    Today, the Court struck down those regulations, finding that "air pollutant" in the context of the stationary emitters means something different than what it meant in the context of the Act-wide definition applicable in the motor vehicle case. Based on context, and prior regulations, the Court held that "air pollutant" means something much narrower in the relevant section of the act, since the broader definition would render it ridiculous. Justice Scalia had no problem finding the same term to mean different things in different parts of the same statute: "the presumption of consistent usage readily yields to context, and a statutory term—even one defined in the statute—may take on distinct characters from association with distinct statutory objects calling for different implementation strategies."

    So the Court found that nothing in the statute compelled the EPA to treat greenhouse gases as "air pollutants" in this context. Next, it considered whether the EPA's interpretation that it was even allowed to regulate the stationary emitters because of their greenhouse gas emissions. Justice Scalia said no, for a variety of reasons. Most interesting me, though, was this:
    EPA's interpretation is also unreasonable because it would bring about an enormous and transformative expansion in EPA's regulatory authority without clear congressional authorization. When an agency claims to discover in a long-extant statute an unheralded power to regulate "a significant portion of the American economy," we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance."... [I]t would be patently unreasonable—not to say outrageous—for EPA to insist on seizing expansive power that it admits the statute is not designed to to grant.
    Now, maybe it's just me, but I think Justice Scalia actually might have been thinking of the ridiculous argument for the trillion-dollar platinum coin here. Substitute "Treasury" for "EPA" and that is exactly what you'd see in any opinion considering the minting of a trillion-dollar platinum coin. There is no credible argument that Congress intended for the platinum coin statute to grant Treasury the last say on the nation's fiscal and monetary policies. It would be absolutely outrageous if Treasury pretended that it had such power.

    Overall, this is another lesson in the vagaries of statutory interpretation.  Just like "air pollutant" doesn't always means "air pollutant," the phrase "such denominations as the Secretary may prescribe" doesn't actually include a denomination with 12 zeros before the decimal point.

    (By the way, this decision is not the end of the world. The Court held that the EPA had discretion to regulation the greenhouse gas emissions of those stationary emitters who were otherwise under the EPA's thumb based on their emissions of the narrower kind of "air pollutants." This gave the EPA pretty much every thing it wanted—despite the tweets of certain hacks to the contrary.)

    This is Part 9 in The Gillette-Torvik Blog's 94-Part Series on the Trillion Dollar Platinum Coin idea

    Friday, June 20, 2014

    Does the Internet link things forever?

    It is hard to imagine that any Reader(s)™ of this blog are not also aware of Seth Leventhal's fantastic blog Minnesota Litigator. But in the unlikely event that someone has not visited there first, today Seth ran this post about a high school student who is suing his former school because of how it handled a tweet written by the student. Seth linked to the Complaint the student filed in federal court. While Seth wrote about the cartoon used in paragraph 80 of the Complaint, a different section caught my attention.

    Wednesday, June 11, 2014

    My favorite thing about the Cook County Clerk of Court's website

    Is this text, which appears in the footer of every page:

    "© 2002 - 2009, Office of the Clerk of the Circuit Court of Cook County."

    This gives you a good idea of the last time anyone paid any particular attention to that website.

    Friday, June 6, 2014

    Kenneth Kratz, a.k.a "The Prize," suspended for four months

    Longtime Reader(s)™ surely recall the saga of Kenneth Kratz, the Wisconsin prosecutor who sent sexual texts (what the kids call "sexts") to a victim in a domestic abuse case he was charged with prosecuting, and other terrible behavior.

    Today, nearly five years after the conduct, the Supreme Court of Wisconsin has imposed its punishment: a four-month suspension.

    Justice Prosser dissents, in part, basically calling out what he sees as a broken attorney discipline process.

    h/t Legal Profession Blog

    Take another minute to remember.

    Last year, we ran the post below on the 69th anniversary of D-Day. Today, of course, is the 70th anniversary.  I thought we should run it again.  I updated it to reflect that it is a year later.

    70 years ago today, Allied Forces invaded France to free it, and Europe, from Nazi occupation. Among the thousands of American, British, and Canadian soldiers who participated in the Normandy landings was an lieutenant in the Army Rangers named Gerald Heaney. After the war Lieutenant Heaney went back home to Duluth, Minnesota where he practiced law until President Lyndon Johnson named him as judge for the United States Court of Appeals for the Eighth Circuit. Many would say that Judge Heaney was one of the greatest judges to serve on the Eighth Circuit. In 2007, Congress named the federal courthouse in Duluth after him.

    Tuesday, June 3, 2014

    People do go to prison for copyright infringement.

    Mr. Torvik did a post about decriminalization last week and asked "how many people are wasting away in prison on a copyright rap?" In a comment to the post, I said I didn't know but suspected not many. Then I remembered that I wrote my comment on a device that is a pretty fair research tool. I did a Google search "prison sentence for copyright infringement" and got some interesting hits.

    Chemical Weapons and the Platinum Coin

    Reader(s)™ have lodged many complaints against the blog over the years, but the most recent complaints have been:

    • Mr. Torvik seems to have gone AWOL; and
    • Specifically, Mr. Torvik appears to have abandoned his promised 94-part series on the Trillion Dollar Platinum Coin.

    All I can say, dear Reader(s)™, is that I hear you, and I am doing my best. To wit, today I give you Part 8 in the platinum coin series.

    The impetus for today's post is the Supreme Court's decision in Bond v. United States. The facts are simple: British secret agent James Bond went rogue and stole a large cache of chemical weapons from Saddam Hussein in 2002 (yes, that's where they went). Over the next several years, he sold the chemicals to terrorists on the black market, eventually amassing enough money to purchase nearly 60% of all platinum known to exist. Then he attempted to use that platinum to create a one-trillion-dollar coin, which he intended to gift to the United States treasury, thus solving all our fiscal problems. It was kind of a Robin Hood thing. Yesterday, the Supreme Court put the kibosh on the whole scheme.

    Sunday, June 1, 2014

    More Lawyers + Fewer Crimes = Tough Times for Young Lawyers

    As we know, it's hard to be a young lawyer these days, mainly because there are more lawyers chasing less work. Today I want to look at one particularly stark example of this, which is actually caused by the intersection of two separate trends:

    1) The long term rise in the number of lawyers in the United States; and
    2) The continuing decrease in the amount of crimes committed in the United States.

    Together, these trends have drastically reduced the number of potential clients available for young criminal defense lawyers. Keep this in mind when old criminal defense lawyers who hung out their shingles during the golden age of criminal defense (1968-1992) make fun of the young lawyers trying to do the same thing in today's much harsher environment

    More Lawyers

    Since 1969, the per capita rate of licensed lawyers in the US has increased 150%, from 1.6 per 1,000 people to 4.0:

    Fewer Crimes

    For a while—and purely by coincidence I'm sure—the proliferation of lawyers was accompanied by a proliferation of crime. Crime exploded from 1960 to 1980, dropped off for a few years, and then peaked again in 1991. Since then, however, the crime rate has plummeted, and the major crime rate is now lower than it was when the lawyer-boom began in 1969. The following chart shows the rate of the FBI's "Part I" crimes (a combination of the violent crimes and the major property crimes):

    Major Crimes Per Lawyer: Dropping like a Brick

    Put the two trends together, and here is what you get:

    Between 1968 and 1991, there were an average of 22 major crimes per licensed lawyer. In 2012, that number was down to 8, and there is every reason to believe that the bottom is still dropping out. In the 70s and 80s, criminal lawyers could afford to be choosy, and the lack of competition meant there was little need to compete on price. Times have changed.

    Arrests Per Lawyer Dropping Too

    One objection to the graphs above is that the crime rate is not strictly speaking relevant to the number of potential clients for lawyers; what matters is the arrest rate. The arrest data I could find only goes back to 1980, but that's far enough to tell the same story. Here are the number of arrests for major crimes per lawyer since 1980:

    Between 1980 and 1991, there were an average of 3.9 arrests per lawyer. By 2012, that had dropped had dropped 56% to 1.7.  Roughly speaking, in the 80s there were twice as many arrests for major crimes per lawyer as there have been in the 21st century.

    Expanding the data to look at all arrests again paints the same general picture:

    In this graph you can see the effect of the drug war, which kept the overall arrest rate from dropping too steeply until 1997. Still, from peak to trough, there are twice as many lawyers per arrest than there was just a generation ago.

    Obviously, it's a very good thing that there's so much less crime now than there used to be. But criminal defense has historically been one of the main practice areas available to solo practitioners and small firms, even for lawyers just graduating from law school. That opportunity likely no longer exists, as the older, established criminal defense lawyers now snap up the vast majority of the much scarcer work. 

    This dynamic is exacerbated by the demographic shift in the legal profession. In 1980, a full 50% of lawyers were under 40. By 2005, only 26% of lawyers were under 40, and the median lawyer age was up to 49. There are a lot more experienced lawyers than there used to be, and given the nature of legal services older lawyers have a big competitive advantage. 

    A Fiercer Market

    Being a lawyer has, undoubtedly, always been difficult, and it always took hard work to succeed. But it takes more hard work and more luck than it used to, at least for young lawyers who didn't graduate from top schools or at the top of their classes.  So it's a bit ridiculous when the old-timers make fun of the recent law grads as the "slackoisie" without acknowledging the demographic and social factors that made things so much easier for them—particularly when the market for legal services used to be significantly bigger precisely because those baby boomers were so, so much more likely to be criminals. 

    Thursday, May 29, 2014

    Unnecessary crime of the day: Hazing

    Following up on my post about Judge Posner's musings on things that don't need to be crimes, here is a fresh example: hazing.

    This will be a continuing series. 

    Posner on Decriminalization

    Judge Posner has a lengthy essay / book review in the New Republic, discussing the topic of crime and punishment and the fact that too many Americans are in prison. It is worth a read.

    Like me, Judge Posner thinks there should be fewer crimes. Decriminalization of marijuana and other drugs is the low-hanging fruit, but Posner does not stop there:
    There are also other candidates for decriminalization, such as prostitution and copyright infringement (which should be just a civil offense); and it is time that the age of consent were reduced to 16 or even 15, in recognition of contemporary sexual mores. Gambling should be decriminalized, and probably environmental offenses as well, such as killing a migratory bird; such offenses should be left to the civil law, with its financial sanctions.
    I'm with him on prostitution, of course, but some of his other ideas strike me as a little strange—or at least trivial. How many people are wasting away in prison on a copyright rap? And would changing the age of consent from 16 to 15 make any difference whatsoever to prison populations?

    I'm all for legalizing all forms of gambling, but again I wonder how many people actually go to jail on gambling offenses. When I was a law clerk, Judge Rosenbaum did preside over a money-laundering trial that came out of an FBI take down of a St. Paul bookie operation, so it's not fanciful. But the defendant who was convicted (one was acquitted) was sentenced to probation. My understanding is that most money laundering and gambling prosecutions are efforts to go after the more public manifestations of organized crime. So I guess if you made gambling legal it might have the side-benefit of making organized crime less profitable.

    I guess I'd be okay with decriminalizing migratory bird murder, too, but it would be pretty far down the list as well.

    What do you think, Mr. Gillette? Should the Man get out of the copyright-enforcement racket? Any other crimes you'd like to see taken off the books?

    Saturday, May 24, 2014

    Tattoos part deux

    Last month, I posted about a gentleman accused of murder in Kansas had to bring a motion asking the court to allow him to cover up a tattoo on his neck that spelled "MURDER" (or "REDRUM" depending on how you were looking at it). At the time, I thought it was sort of a unique motion. I was wrong. This month brings a similar motion in an Indiana murder trial.

    Friday, May 16, 2014

    First thought is not always the best thought.

    I belong to the generation of people that cannot point to World War II or the Great Depression as a thing that made my childhood rough. Instead, the thing I can point out to children as being rough about my childhood is that people only got 3 or 4 channels on their TV.* These were ABC, CBS, NBC, and PBS. If I recall correctly, the only baseball we could watch was the Game of the Week on Saturday afternoon. Since it was often nice out when the game was airing, I did not watch it very much.

    Thursday, May 8, 2014

    Punk in Drublic (apologies to NOFX)

    The Arizona Republic has a story about a recent ruling by the Arizona Court of Appeals that overturned a Scottsdale, Arizona ordinance that prohibited being drunk in public. The ruling is here. Why can't the city ban being drunk in public? Because it turns out that an Arizona state law prevents local governments (counties, municipalities, or "other" political subdivisions) from adopting or enforce any local law, ordinance or resolution includes "being a common drunkard or being found in an intoxicated condition" as one of the elements of a criminal offense. The state law has been on the books for over 40 years. 

    Wednesday, April 30, 2014

    Is Oklahoma ok?

    Two recent news items caught my interest this morning. The first is Slate's story about a study by the National Academy of Sciences that 1 in 25 criminal defendants sentenced to death in the United States are actually innocent. The other is this story about a botched execution in Oklahoma. As a result of the botched execution, Clayton Lockett "convulsed several times," spoke three times after prison officials tried to declare that Mr. Lockett was unconscious and according to USA Today eventually died of a heart attack 40 minutes after the execution began.

    Friday, April 25, 2014

    When a tattoo might mean trouble.

    The poet Alan Ginsberg used the motto "first thought best thought" as his guiding principal on how to be a fearless writer. Should that motto apply when the writing in question is a tattoo?

    Thursday, April 17, 2014

    A nice return on an investment.

    In 1985, former Wisconsin Senator Herb Kohl purchased the Milwaukee Bucks basketball team for $18 million. According to ESPN, Senator Kohl is now selling a majority interest in the team for $550 million. The Bucks had a record of 15-67 this year, which is the worst record of any team in the NBA. I know the value of an NBA franchise is not based entirely on the team's record but one wonders what price Senator Kohl could have gotten for the team if it had been good.

    Friday, April 4, 2014

    Being the champion and the nature of reality.

    Given his love of basketball, I am a little surprised that Mr. Torvik has not already pointed out that our joint alma mater, the University of Minnesota, won the NIT men's basketball championship last night. Some might say that the Golden Gophers are one of two national champions in men's college basketball. Given that the other tournament, run by NCAA, contains 68 teams, others might say this means the Gophers are the 69th best team in the country. It's all a matter of perspective.

    Saturday, March 29, 2014

    How is this possible?

    Today is the 244th birthday of the tenth president of the United States, John Tyler. If he is remembered at all, President Tyler remembered for being the first Vice-President to become President upon the death of the President. President Tyler might also be remembered for being the back half of the political slogan "Tippecanoe and Tyler too."

    But what I find most incredible about President Tyler is that two of his grandsons, Lyon Tyler and Harrison Tyler, are still alive. Amazing when one considers that President Tyler died 152 years ago.

    Thursday, March 27, 2014

    Winter is starting to get to at least one police officer.

    This is from February, but if the weather in Madison, Wisconsin is the anything like it has been in Minneapolis this week, I suspect the police offer is still writing this sort of incident report.

    Monday, March 24, 2014

    Major League Baseball and the nature of reality (part two)

    Jack Moore at Sports on Earth has a post about how the Detroit Tigers have reached an impasse in talks to extend their contract with pitcher Max Scherzer. Mr. Scherzer won the American League Cy Young Award last season and is a big part of the Tigers' hopes on winning the American League Central Division and more this season.

    Wednesday, March 19, 2014

    Are retirement ages for Minnesota Supreme Court justices constitutional?

    I recently attended a fundraising party at a downtown Minneapolis law firm. As you probably know fundraisers are sort of like rent parties in college. The host provides some alcohol and snacks and the guests provide some cash for the person or organization seeking the funds. In college one would then try to drink enough alcohol to make attending the rent party a good investment of scarce funds. That sort of behavior is frowned on at fundraisers held at law firms.  So that is one difference between a rent party and a fundraiser.

    Tuesday, March 18, 2014

    For some people, Christmas means dressing up like a Nazi.

    OK, I have not blogged in a long time. There are a number of reasons for this but they are mostly not worthy of discussion. Suffice to say that if Judge Kopf can post while undergoing cancer treatment, I can be better about posting while eating Reese's Peanut Butter Cups and thinking about March Madness.

    Friday, February 21, 2014

    Grudge Match: Basketball Edition

    You may be forgiven, dear Reader(s)™, for thinking this blog was dead. But it isn't! It was just, well, frozen. I, for one, am currently obsessed with: (1) pursuing justice on behalf of my saintly clients; and (2) blogging about college basketball.

    On the latter point, tomorrow is the rematch of the Iowa – Wisconsin basketball game. Wisconsin is going for the sweep, hoping that Iowa's coach once again blows his top.

    Mr. Gillette's birth-state honor is on the line, as the football team also lost to the mighty Badgers in the fall.

    May the best state school (that is, Wisconsin) win.

    "I answer yes, though I’m a cat person and consider his dog hideous."

    Says Judge Posner, expounding on his prodigious ability to tell spontaneous lies.