Constitutional Daily

Founding Principles

The Tenure Paradox - Robot pimp

Slap on the Wrist for "Non-Consensual Sex" - Lampshade, Esq.

Intelligence: The Gathering - Graphic and Gratuitous

Grads are the New Illegals - Robot Pimp

Meet Entitlement Eric - Robot Pimp

Wherein I Solve World Peace - Lampshade, Esq.

A Necessary Delusion - Shadow Hand

Do you even need to shave overhead? - Lawyerlite

LSAT Jenga - Publius Picasso

http://www.constitutionaldaily.com/index.php?option=com_content&view=article&id=1573:legal-reasoning-redux-5&catid=38:there-and-never-back-again&Itemid=65

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Constitutional Daily

Whorder in the Court

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"I will treat you with respect each time we are in contact."

"Attorney Bajaj serves a variety of counties and will be willing to travel to you if necessary. She serves DeKalb, Boone, Winnebago, Kane, DuPage, Ogle, Lake, McHenry, and Lee. This list is not exhaustive of where she will go to help a client."

A Sycamore, IL attorney has been arrested and charged with prostitution.

Reema Bajaj, a graduate of Northern Illinois University College of Law, was charged with three counts of prostitution. The counts contend that Bajaj engaged in sexual acts for $100 (Class A misdemeanor) and within 1000 feet of a school (Class 4 felony).

Bajaj was a known prostitute, having previously been charged with offering sexual favors for $50 (the price she now charges for a demand letter), but she claims she has not engaged in prostitution since being admitted to the bar last November.

Bajaj turned herself into the police last Tuesday, after a warrant was filed for her arrested. Conveniently enough, she was already at the courthouse with a client, a man charged with possessing child pornography and aggravated sexual assault.

She has withdrawn from that representation, and will likely be dropping a few more clients after the state bar disciplinary committee get involved.

[Daily Chronicle, gavel wave Faux Trixie]

[Bajaj firm website]

NYC Cops' Acquittal Pretty Reasonable Actually

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A lot of people have weighed in the recent NYPD rape case, including a protest with several hundred people shortly after the not-guilty verdicts came down.

One of the chief talking points is that some how the jury managed to accept the defense's argument that the victim was simultaneously too drunk to accurately remember the events of the evening, but sober enough to consent.

We're here to set the record straight. First thing's first, in a criminal prosecution the defense doesn't have to argue a damn thing. The burden is on the prosecution. There was evidence (an admission) that the officer in question had sex with the victim, but sex is not a crime to which consent is an affirmative defense. No, sex without consent is a crime, and proving a lack of consent is on the state.

In this case, the jury wasn't even hung. They came back unanimously to say the prosecution failed to make its case. But, a bunch of really angry people decided they knew the evidence better that the jury, and insisted that two cops got away with rape. (They were found guilty of official misconduct and were immediately terminated.)

 

More importantly, being too drunk to be a credible witness and being sober enough to consent are not mutually exclusive.

Someone can be black out drunk, that is to say, too drunk to form credibly and complete memories, and still be able to function in a reasonably competent manner. We don't condone drunk driving, but the vast majority of people driving home hammered every weekend night arrive home without incident. And, many of those people will have no memory of leaving the bar, driving home, putting their pajamas on, or drunk dialing their ex girlfriend.

We don't know how drunk the victim in this case was, but we do know that there's drunk, drunk, and passed-the-fuck-out, and that the jury did not find there was sufficient evidence to prove the victim was drunk enough to not consent. Sorry to everyone who likes to have knee-jerk reactions, but "drunk sex" does not always mean rape, no matter how many times you describe that as "overwhelming evidence."

[Jezebel]

The Paper Waste: Legal Academic Writing

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What if you were to hear that law schools spend over $10 million dollars a year paying professors to write articles that virtually no one reads?

What if you were to hear that by "law schools" we actually meant "one law school." ...Yeup. Students at Michigan shell out about $10k each, every single year, to pay for articles no one wants, and no one reads.

There are over 10,000 articles published every single year by law journals. If there's a worthwhile piece among them, you'll never find it.

Read more about the great white and green paper waste here: The Paper Waste: Legal Academic Writing

Bugger...

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New speech codes will soon arrive in Australia.

The local government for the state of Victoria is set to pass a law that would give police officers the ability to issue tickets for offensive or obscene speech in public. The police can already arrest people for their public obnoxiousness, but the new measure is aimed at giving police a quicker, more convenient punishment rather than the time consuming process of making an arrest.

A ticket for public swearing comes with an AUS$240 (US$257) fine.

Well, not everyone can be as awesomely pro-free speech as the United States. America, fuck yeah!

[Brietbart]

Actually, That's Dr. X

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Over on Prawfs Blawg, professor Lyrissa Lidsky (Levin) complains that students are addressing their male professors with a greater sense of respect than their female professors:

I and many other women professors I've talked to have had students refer to us as "Ms." or "Miss Y" literally in the same sentence that they refer to a male colleagues as "Professor X."

Quick aside, the female professor should be X, and the male professor Y. Either because you understand sex chromosomes, or because you put your alphabet in the correct order.

On to the substance of her complaint (which is followed by a dilemma about correcting students); we found it very easy to come up with a scenario where this would be entirely acceptable:

Ms. Lidsky, will you be attending Professor Man's lecture tonight?

It's pretty common to refer to third parties with a greater sense of formality (especially below the Mason-Dixon Line), and if you have a more relaxed relationship with your students, you're going to create a disparity. In her conversations Lidsky is never a third party, and third party professors are more likely to be male, so this disparity might be fairly common. But, there is nothing disrespectful about it.

There is of course a more problematic possibility to what Lidsky is referring to:

I attended a wonderful lecture last night by Professor Man and Ms. Woman.

That sounds terribly awkward to us though. If a student speaks like that, you may need to address the level of respect they give to female professors, but the more pressing issue is their inability to form a naturally-flowing sentence.

[PrawfsBlawg]

Maine Considers Unicameral Legislature

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State governments are generally a good source of wacky ideas. You take the weird ideas that the federal government comes up with, and then crank up the heat, spitting stuff out at a rate 50 times faster.

The Maine House of Representatives gets major originality points for its latest proposal. In an 8-5 vote, the House State and Local Government Committee approved a bill that, if passed, would put before the voters the option to change to a unicameral government. The state would have only a senate, with 151 members.

The idea is to streamline the legislative process. A single house eliminates the possibility of the two houses being controlled by opposing parties, as well as the need for conference committees.

As soon as the citizens of Maine realize that the opposing party would also get to take advantage of the process, it's likely this proposal will fail.

[The Republic]

Bartow v. Solove, Round 2

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Yesterday we discussed a bit of a slap fight going on between Professor Ann Bartow and Professor Daniel Solove. If you're already familiar, skip down past the break for round two. If you're not familiar, basically, Solove wrote an article about privacy, Bartow wrote a review of it, and said that it would have been more effective with a bit more color and "dead bodies:"

To phrase it colloquially, in this author’s view, the Solove taxonomy of privacy suffers from too much doctrine, and not enough dead bodies. It frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.

Now, Solove has a book coming out, and has published some excerpts as separate articles, and in one of them he states:

Investigating the nothing-to-hide argument a little more deeply, we find that it looks for a singular and visceral kind of injury. Ironically, this underlying conception of injury is sometimes shared by those advocating for greater privacy protections. For example, the University of South Carolina law professor Ann Bartow argues that in order to have a real resonance, privacy problems must “negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” She says that privacy needs more “dead bodies,” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other [types of harm]."

Bartow's objection is actually consistent with the nothing-to-hide argument. Those advancing the nothing-to-hide argument have in mind a particular kind of appalling privacy harm, one in which privacy is violated only when something deeply embarrassing or discrediting is revealed. Like Bartow, proponents of the nothing-to-hide argument demand a dead-bodies type of harm.

Solove took Bartow's critique of his style, and turned it into a substantive position which there's no evidence that she holds, and Bartow complained about this on a blog.


And now, the slap fight continues. Last night, Solove decided to post a comment on the blog, in response to Bartow's accusation that he distorted what she said:

Your post comes as a big surprise to me, and I am very sorry to hear that you are so upset over what I’ve written. By no means did I deliberately intend to twist or mischaracterize what you said — any such distortion was purely unintentional.

When I wrote that “Bartow’s objection is actually consistent with the nothing-to-hide argument,” I was attempting to say — unfortunately not as clearly as I could have said — that I thought your argument about dead bodies had certain assumptions in common with the nothing-to-hide argument — not that it was the equivalent of the nothing-to-hide argument or that you were making the nothing-to-hide argument. I did not intend to suggest or imply that you thought privacy doesn’t matter if you lack dead bodies. I used phrases such as: “For example, the University of South Carolina law professor Ann Bartow argues that in order to have a real resonance, privacy problems must . . .” and “Bartow is certainly right that people respond much more strongly to blood and death than to more-abstract concerns.”

I am not intending to argue that you advance the nothing-to-hide argument. Nor am I intending to argue that you contend that privacy doesn’t matter if there are no dead bodies. My intent is to argue that there is a common demand made by you and proponents of nothing-to-hide for a more visceral kind of harm. The nothing-to-hide proponents make this demand because they don’t believe privacy matters unless it results in a visceral harm. You argue that characterizations of privacy harms need more dead bodies in order to have more resonance. I am not intending to suggest that you reject privacy harms that lack visceral injuries. Instead, I am attempting to critique the argument that we can — or should — characterize privacy harms in a way that enhances the blood and death.

I’m sorry if this wasn’t clear from what I wrote.

First, Professor Solove, you need to learn that you have to get things right before you send your book to the publisher. There are a ton of law students and recent graduates without jobs, and you can easily find someone to proof read and cite check on the cheap. We know how much law professors make, and you can afford to hire a kid for $10/hr as your research assistant, or probably get the school to pony up the cash itself. If it's too late to edit the book, see if the publisher will consider adding a pocket part to make up for your mistakes. Do you allow your students to challenge their grades if they made really good arguments, but just weren't clear enough in their writing?

Now, a bit of a metaphor.

An author, who we'll call Han Solo Love, writes:

Investigating the Final Solution argument a little more deeply, we find that it looks for a singular and visceral kind of injury. Ironically, this underlying conception of injury is sometimes shared by those advocating for holocaust memorials. For example, Jewish proponents of holocaust museums sometimes argue that in order to have real resonance, persecution must "negatively impact the lives of living, breathing human being beyond simply provoking feelings of unease." They say that the holocaust needs more "dead bodies."

The Jews objection is actually consistent with the Final Solution. Those advancing the Final Solution have in mind a particular kind of appalling harm. Like the Jews, proponents of the holocaust demand dead-bodies type of harm.

Then the Jews, naturally, get upset over the way they're being characterized, because it sounds like they want more Jews to be killed. So, we get some clarity from Solo Love:

I am not intending to argue that Jews advance the holocaust. Nor am I intending to argue that Jews contend that antisemitism doesn't matter if there are no dead bodies. My intent is to argue that there is a common demand made by Jews and the proponents of the Holocaust for a more visceral kind of harm. The holocaust proponents make this demand because they don't think a master race can be created without the extermination of the Jews. The Jews argue that characterizations of the holocaust need more dead bodies in order to have more resonance.

 

Do Bartow and the nothing-to-hide proponents have something in common? The nothing-to-hiders think that privacy proponents need to show there's a real harm. Bartow argues that showing real harms makes for good rhetoric. So, all that they have in common is they both say "show the dead bodies." They have as much in common as proponents of a holocaust museum and an SS officer both saying "show the dead bodies."

What they share is at best tenuous, but more importantly, it's irrelevant. Who cares that their different points of view sometimes make use of the same phrase? If this were a book about linguistics, it might be interesting, but it's not. Putting Bartow and the nothing-to-hiders in the same paragraph adds nothing of substance, but does confuse the issue.

The average reader would have to spend a long time picking apart Solove's words to understand what he's saying, but I don't think we can reasonably expect readers to put more time into this passage than Solove did.

Worst Commencement Ever

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You may have heard about Emory Law School's commencement speech in which professor Sara Stadler told students upset about their employment prospects to STFU. [ATL]

Get over it. [...] The one thing standing in the way of your happiness is a sense of entitlement.

But, before telling students that writing a check to Emory comes with the very real possibility that you'll have to move to a farm town in Nebraska and eke out $30,000 a year for the rest of your life, and that doing this will make you unbelievably happy, Stadler made another boneheaded remark:

When people ask me for advice, for example about starting a business, I say 'absolutely,' just make sure you're selling something the government doesn't care about. Make sure there's not much law there, [...]

Like...a law school education? Unregulated by the government? Check.

Not much law there? Check.

 

Emory's class of 2009 had an employment rate of only 66% at graduation, and 87% nine months out. Only 70% of students found a job working full time as a lawyer. It used to be the "look at the person to your left, now look at the person to your right" speech ended with the assurance that one of those people would fail out. Now, the story is that one of those people will graduate, but with the same employment prospects as someone who failed out, and an extra $100,000 in debt.

 

Stadler's remarks start at about the 35 minute mark.

Bartow v. Solove, Professorial Slap Fight

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Ever seen a slap fight between two law professors?

Some time back in 2006, Professor Daniel Solove (George Washington) wrote an article titled A Taxonomy of Privacy, which was published in the Pennsylvania Law Review. The journal invited Professor Ann Bartow (South Carolina) to write a review. Bartow's primary criticism was that Solove didn't dive deep enough into the harms people suffer when there privacy is invaded and that the article could have used a little more color.

To phrase it colloquially, in this author’s view, the Solove taxonomy of privacy suffers from too much doctrine, and not enough dead bodies. It frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.

 

Now, in an article released to promote his new book, Solove provides an argument against the idea that the only people who care about privacy are the ones with something to hide:

Investigating the nothing-to-hide argument a little more deeply, we find that it looks for a singular and visceral kind of injury. Ironically, this underlying conception of injury is sometimes shared by those advocating for greater privacy protections. For example, the University of South Carolina law professor Ann Bartow argues that in order to have a real resonance, privacy problems must “negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” She says that privacy needs more “dead bodies,” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other [types of harm]."

Bartow's objection is actually consistent with the nothing-to-hide argument. Those advancing the nothing-to-hide argument have in mind a particular kind of appalling privacy harm, one in which privacy is violated only when something deeply embarrassing or discrediting is revealed. Like Bartow, proponents of the nothing-to-hide argument demand a dead-bodies type of harm.

Solove has transformed Bartow's criticism of his style into a substantive position on the law and policy, which she never expressed. It would be like someone saying "Avatar is just a lame, unimaginative knockoff of a story that has been told too many times already, and provides nothing new to the genre," and then accusing that person of saying that space exploration is lame, we've done enough exploring already, and we're not going to find anything new out there.

Bartow has accused Solove of making "gross misstatements" which border on defamation. It's a pretty serious accusation, and we think Bartow is right, Solove's take on Bartow's review makes him look reading impaired. We can say that because we're not really worried about defamation suits here. It's also why we can say this:

The vast majority of academic legal writing is completely worthless. Odds are none of the papers written by these professors will be read by our nation's law makers, much less actually influence their opinions on the matter, or otherwise alter society in any tangible way. You may have some really sophisticated, intelligent, nuanced positions, but you're not actually contributing to anything. If, instead of being warehoused in law school libraries, your articles were stuck in the bottom of an abandoned nuclear missile solo, the only difference the world would see is a minor shifting in the US News law school rankings. (Not that we contribute much to society, but at least we're not financing our literary playtime with other people's non-dischargeable debt burdens.)

[The fight continues in Round 2]

[Bartow's Take on Solove at Madisonian]

[Solove's Article discussing Bartow]

Formal Wear Map: Dress Nicer Than Your Client

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As a companion to BL1Y's Business Casual: The Definitive Guide, we are now pleased to offer a guide to figuring out what to wear when you don't have a big firm policy handed down to you.

Dress a little nicer than your client, sure, but what happens if your client shows up in a suit? Or scrubs? Or a pith helmet?

We've got you covered: Formal Wear Map: Dress Nicer Than Your Client.

Page 95 of 135

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