Friday, November 6, 2015


Sorry for the lull in the posts.  I've got about ten good topics lined up in the writing queue, but they're all going to have to wait.  Even though Knightly is currently resting up, I've been working on a new project with coauthor Larry White.  More specifically, many Wisconsin criminal defense lawyers have lamented that our state's burden of proof instruction allows conviction with far less than proof beyond a reasonable doubt. (I've always thought that the prosecutor's burden in our state was more like a preponderance of the evidence standard.)  So our new study and soon-to-be law review article tested that hypothesis.  And sure enough, mock jurors that were given the Wisconsin jury instruction convicted at a much higher, statistically significant rate than did mock jurors given a straight reasonable doubt instruction.  We plan to start submitting the article for publication to journals in February, and, historically, I've received offers on my articles by mid-March if not sooner.  Hopefully at that time the publishing journal will let us post a pre-publication version of the article to SSRN.  This should give defense lawyers some ammunition when filing pretrial motions to modify Wisconsin's burden of proof instruction.  Ultimately, the article should convince our jury instruction committee to modify Wisconsin's instruction to the constitutionally guaranteed beyond-a-reasonable-doubt standard.  Stay tuned!  

Monday, October 12, 2015

The lawyer advertising double standard

Unemployed and under-employed law graduates have sued several law schools, claiming the schools used false or misleading employment data to induce them to enroll and spend $150,000-or-so of their yet-to-be-earned dollars.  One law school advertising tactic, for example, was to label jobless graduates as “not seeking” employment; this allowed a school to hide the abysmally high unemployment rate of its graduates.  Another, more common tactic was to count graduates as “employed” even when their jobs had absolutely nothing to do with law (e.g., working at Starbucks), or were only temporary jobs created by the law school to artificially boost its employment statistics.  Another was to say that, for example, 92 percent of all grads were employed, when in fact only 92 percent of the 40 percent who responded to the survey were employed.  In sum, law school advertising at many schools took tremendous liberties in spinning the facts.    

Sunday, October 4, 2015

Free speech today [Updated]

Many people — especially people at colleges and universities — have come to believe they have a right not to be offended.  The only explanation for this oversensitivity is the complete misunderstanding of the First Amendment.  (Click here for a First Amendment primer.)  This is particularly obvious when someone claims that another person’s speech isn’t free speech, but offensive speech.  Of course, the First Amendment protects offensive speech.  And, as a practical matter, if the speech weren’t offensive, it probably wouldn’t need constitutional protection in the first place.  The most recent incident of this came when a college newspaper published an op-ed questioning whether the tactics of a particular political movement were really effective.  What followed after the publication of the “controversial” essay was predictable: offense was taken; outrage was expressed; punishment was demanded; apologies were issued; and, likely, the college newspaper has learned not to publish any articles that express a contrarian viewpoint or question today’s politically correct stances.  But how did we become such a bunch of spineless, mealy-mouthed worms who insist that free speech has to take a backseat to our imagined right not to be offended?  Ken White at Popehat explains how this happened in his post titled “Safe Spaces” and the Mote in America’s Eye.  The post is also filled with links to numerous other posts, essays, and related works — a must read for anyone interested in the current state of free speech.  In sum, there is a real risk that the First Amendment, at least in some settings, will soon go the way of the Fourth Amendment — so enjoy this constitutional right while it lasts.  [UPDATE: Richard Dawkins on free speech on campuses, here.]

Monday, September 28, 2015


In her Oscar-winning documentary Citizenfour, Laura Poitras exposes the extent and impact of our government’s domestic spying operations.  Her documentary focuses on Edward Snowden, and includes many of the things you’d expect to see in great filmmaking.  For example, there is the early congressional testimony of an NSA bureaucrat who repeatedly denied that the government intercepts our emails, phone calls, texts, and google searches.  But later, another NSA bureaucrat testified and tried to spin it: The NSA does not intercept such data “wittingly.”  It does so “inadvertently, perhaps,” but not “wittingly.”  (This type of statement makes the testimony of cigarette company executives — “I believe that nicotine is not addictive” — appear truthful by comparison.)

Tuesday, September 15, 2015

Race matters in eyewitness identifications

By now, most people have seen the video of former professional tennis player James Blake being roughed up by a New York cop in a case of mistaken identification.  (If you’re familiar with names like Agassi, Sampras, and Federer but haven’t heard of Blake, the guy was not a superstar but he was legit; he earned more than $1 million in prize money alone in 2008.)  And once this video surfaced, several worthwhile issues have been raised, including police brutality, police cover-ups, and disparate treatment of minorities.  But two topics have largely been glossed over.

Wednesday, September 9, 2015

Petition to modify Wisconsin SCR 20:1.9

Madison, WI
Most attorneys confuse ethics rule 1.9 with the evidence rule of attorney-client privilege. (Chalk this up to another colossal failure of legal education.) But ethics rule 1.9 is much broader, and essentially prevents an attorney from discussing, writing about, or otherwise disclosing even public information about his or her closed cases. Among other problems, this rule is a clear violation of an attorney’s free speech rights. In fact, the state of Virginia has already said as much, as its supreme court held that an ethics rule may not prevent an attorney from discussing the public aspects of his or her closed cases. And other states, such as Alaska, permit attorneys to discuss the public aspects of their closed cases for CLE purposes. So fellow attorney Terry Rose and I have filed a petition with the Wisconsin Supreme Court to modify ethics rule 1.9. The very modest modifications would permit an attorney to discuss, write about, or otherwise disclose public information about his or her closed cases. You can find our two-page petition at this link. You can find our fifteen-page supporting memorandum that blasts rule 1.9 at this linkWisconsin attorneys who want to support our petition can do so by following the instructions at this link. Our petition and memorandum are based on my forthcoming article, On the Absurdity of Model Rule 1.9, which will be published in the Vermont Law Review in January, 2016.

Saturday, September 5, 2015

Reversing the lawyer glut?

As the graph to the left indicates, law school applicants are at their long-time low, and are down 47 percent from their recent peak.  (The graph and a full report come courtesy of Paul Campos.)  This decline is due in large part to scam-blogs and even some mainstream media outlets that have exposed the staggering debt loads and limited job opportunities for new law grads.  This decline in applications is also great news for practicing lawyers, although it will likely take awhile for the existing oversupply of lawyers to start to correct itself.  Meanwhile, law profs are weighing in with their usual nonsense. 

Monday, August 24, 2015

How stupid is “the market”?

Few things are as annoying as a business analyst talking about the stock market like it’s a human being.  “The market reacted to this,” or “the market doesn’t like that.”  In reality, such statements are just after-the-fact attempts to make sense of irrational price movements.  But let’s play along.  Let’s assume that the stock market’s movements do have rational explanations.  And today, after a week of price declines totaling about ten percent of market value, almost all of the talking heads agree: the cause is the ongoing collapse of China’s economy, which hurts even U.S. stocks in our “interconnected world.”  Okay, good enough.  But this explanation, in turn, leads to another question: How stupid is the market?

Sunday, August 16, 2015

Seneca on judges (and a 2,000 year-old practice tip for defense lawyers)

I’ve written numerous times how judges often fail to grasp even the most basic legal principles — including, for example, the concept of hearsay.  (See here, here, and here for just a few of those posts.)  This is incredibly frustrating for defense lawyers who go to trial intending to put on evidence in defense of their clients.  But there’s good news.  A Stoic philosopher named Lucius Annaeus Seneca (4 bc – 65 ad) offers some advice for the criminal defense lawyer.  This advice will certainly help us keep our composure in court, and might even increase our odds of successfully educating the judge — though educating the prosecutor, who typically raises the inappropriate objection to our evidence in the first place, may be beyond hope.

Thursday, August 6, 2015

Tom Brady, Deflate-Gate, and the Criminal Justice System

Photo by Jeffrey Beall
One of my favorite bloggers, Paul Campos, recently studied the transcript of deflate-gate and concluded that “The NFL’s case against Brady is a joke.”  I don’t doubt his claim for a minute; in fact, it’s what I suspected from the get-go.  (Who the hell would want to play with an under-inflated football anyway?  Not Tom Brady.  See p. 50 of the transcript.)  But that’s not the point of this post.  Rather, my point is that Campos’s observations about due process in the Brady case are also relevant to defendants charged with crimes.  For example:

Saturday, August 1, 2015

“I think I’m dead, therefore I exist”

Some blogs get a lot of praise and even make a lot of money by simply linking to -- and, despite copyright laws, sometimes actually reprinting -- the writing of other blogs and websites.  The Legal Watchdog, on the other hand, consists nearly entirely of original work.  But every once in a while I come across a flurry of other articles, blog posts, and podcasts that I simply must share with The Dog’s readers.  Let’s begin out west, and the state of their state bars.  As the Irreverent Lawyer tells us, there is evidence that Cal Bar is a “bloated, arrogant, oblivious and unresponsive” bureaucracy.  (I’ve previously written about the Golden State here and here.)  So when the AZ Bar wanted to remake itself, where did it look for guidance?  You guessed it: Goin’ back to Cali.  Read the Irreverent One’s sharp, biting, entertaining, and comically illustrated post, “State auditor slams the Cal Bar . . .

Saturday, July 11, 2015

Podcast: Episode 12: Three Rules for Educating Tomorrow’s Lawyers

Welcome to our twelfth episode of The Legal Watchdog podcast.

Today we discuss legal education reform and, more specifically, my recently published essay Three Rules for Educating Tomorrow’s Lawyers.  These rules are so simple that even law professors could implement them!  First, professors should teach a real body of law, instead of the useless mishmash of cases found in the typical casebook.  Second, professors should teach all of the topics within a given subject area, rather than just the topics they find interesting.  And third, professors should publish law review articles that are useful to lawyers and judges.  Matt, of course, disagrees with many of my ideas; surprisingly, though, so does Amy.  (Knightly would have agreed with me, but he was off on a wine tasting tour of northern Wisconsin.)  

Here are additional links to some of the things we referenced in the podcast:

My other law review articles are available here.

The law review article (not mine) simply titled Fuck can be found here.  (Hat tip to my favorite law blog, the Irreverent Lawyer, for alerting me to that one.)

A discussion of the Texas law profs raking in huge salaries, bonuses, and even “forgivable loans” can be found here.

We also mentioned the scam blog movement — a group of blogs that exposed, well, the law school scam.  This movement is probably chiefly responsible for the huge decline in law school enrollment.  (The practicing lawyers of the country thank you, scam bloggers!)  Some of my favorite scam blogs include OTLSS, LSTCITLSS, 3TR, JDD, LSTB, and ATL.

To meet your podcast hosts, click here

Our funky, jazzy theme song ("Cold Hurt") and our cool intermission song ("Murgatroyd") were generously provided by David Pizarro.  To hear more of David's music you can listen to his philosophy-psychology podcast Very Bad Wizards, or go directly to his SoundCloud page.

Finally, here is the podcast:

Tuesday, June 30, 2015

Would-be lawyers, beware!

About forty percent of all lawyers are solo practitioners.  Another large percentage of all lawyers find themselves in very small partnerships, e.g., two or three lawyers, which is essentially the same thing as being a solo practitioner.  So if you go to law school, the odds are great that this is where you’ll end up.  Therefore, before you take the plunge and spend all that money on tuition, and yet another three years sitting in a classroom, you should take a look at what kind of money you can expect to earn.  Now, I’ve written several times about the incredibly embarrassingly low pay for solo lawyers, including here and here.  But, as the law professors like to say, that was just “anecdotal.”  So here’s some better salary data. 

Monday, June 29, 2015

Fixing Law Schools

Any reader of The Legal Watchdog -- or of ATL, LGM, OTLSS, LSTC, or 3TR, among others -- knows that law schools are desperately in need of reform.  But the problem is that most ideas for reform are pie-in-the-sky.  Why?  Because law schools are typically run by deans and professors and even clinical instructors who have never (or barely) practiced law, thus making serious reform a practical impossibility.  But reform, to some extent, can still happen.  And that's what I've written about in my latest essay, Three Rules for Educating Tomorrow's Lawyers.  Stay tuned for an upcoming podcast episode on the same topic; in the meantime, enjoy the essay!  And for those short on time, read the abstract after the jump:

Saturday, June 27, 2015

Swim with the Sharks

I don’t mind admitting that Shark Tank is flat-out addictive.  Essentially, five “sharks” — billionaires or multimillionaires looking to invest money — listen to pitches from entrepreneurs seeking capital for their businesses.  Sometimes the entrepreneurs’ ideas are so bad that the sharks will ridicule these people to the point of making them cry.  Other times, the business ideas have such profit potential that the sharks will fight each other for an ownership stake in the entrepreneur’s company.  Yes, I love Shark Tank, but probably not for the reason I’m supposed to.