Saturday, December 15, 2012

MU leaves the Big East!

Congratulations to Marquette, Seton Hall, Georgetown, Villanova, St. John's, Providence, and DePaul -- the Big East's basketball only schools -- for finally leaving the conference! (Knightly, left, is thrilled with the news.)  For these basketball schools, it puts an end to the ship-jumping and conference realignment forced on them by football schools chasing an extra buck of television revenue while destroying their historical, regional rivalries in the process.  I've been hoping for this break-away for years, and wrote about it more than a year ago.  Hopefully this group of seven will pick up three more schools from the region to form a nice, ten-team league with each team playing every other team twice -- once at home and once on the road.  These are exciting times for fans of the seven schools.  It's like March Madness, but in December.            

Happy Holidays from Hitch!

With all the magical and religious thinking going on this time of year, I can’t help but miss the calming, rational voice of the world’s greatest iconoclast.  For those of you who feel the same way I do, enjoy some of Hitchens’ most famous quotes, after the jump.  But for those of you who enjoy the holidays, don’t read on; instead, watch this fun holiday rap video.

Friday, December 14, 2012

Wisconsin's on Popehat! Wisconsin's on Popehat! Wait . . . this is not a good thing.

Wisconsin has proved, once again, that we have way too many government bureaucrats with way too much time on their hands.  In my first book, subtitled Myths, Oddities, and Lies About Our Legal System, I use the very first chapter to expose Kenosha’s “mashing” ordinance, which prohibits improperly ogling someone of the opposite sex.  Yes, our elected government officials seriously got together and wrote that law.  They didn’t prohibit ogling someone of the same sex, however, which is strong evidence that they thought gays and lesbians existed only in California.  In any case, Wisconsin’s legislators—this time those of Vernon County—are at it again.  But instead of dictating the manner in which we may look upon an attractive person of the opposite sex, they’re attempting to trample our free speech rights.

Happy Bowl Season!

Aside from the passing of Beano Cook, it has been a glorious year of college football.  And although I prefer watching thirteen straight hours of regular season games every Saturday, the bowl season is fun too.  Here are The Dog’s picks for the BCS bowl games:

Ø      BAMA crushes Notre Dame.  This one won’t even be close.  I could see Bama winning this game by 28 points, which means that if I were in Vegas (I’m not) and if I were a betting man (I’m not), I’d take Bama minus the points.  In the end, Mark May will get revenge.

Ø      DUCKS fly past the Cats.  This is the best of the BCS.  It will be a high scoring affair, and might even set a record for most combined points in a BCS bowl.  But in the end, Chip Kelly’s crew is just too fast and too athletic for K-State.  And their uniforms and their cheerleaders are guaranteed to entertain.  

Ø      WISCO upsets the overrated (and overpriced) school named after a color.  That's right, the Badgers will stun the Harvard Crimson wannabe Stanford Cardinal.  I’m not a Badger fan, but I will admit that my former hatred for them has been completely redirected toward Notre Dame, now that they’re winning again and Lou Holtz won’t shut up about it.  Anyway, "On Wisconsin!"

Ø      FSU will beat NIU.  The bigger question: Do the Huskies belong?  Yes.  Check the BCS’s complex criteria – the dogs have earned their bid.  But do they really belong?  Again, yes.  If the ACC is still entitled to an automatic birth in a BCS bowl after going 2 – 13 for a .13 winning percentage in previous BCS bowls, I don’t think anyone has the right to gripe about the Huskies.  I’ll be rooting for NIU, but in the end, FSU’s numerous soon-to-be NFL drat picks will be too much for the dogs to handle.      

Ø      GATORS chomp the Cardinals.  That’s Cardinals, plural.  That’s the bird, not the color.  You see how that's done, Stanford?  But despite getting their nickname and mascot right, Louisville just can’t hang with an SEC powerhouse.  This will be the biggest blowout of the BCS. 

Saturday, November 10, 2012

Wisconsin’s costly paternalism


Tyler H., a thirteen-year-old Wisconsin kid, was having a really bad day.  First, his brother didn’t like the way Tyler was chewing his food, so he “hit Tyler in the back.”  Then, when the inevitable wrestling match ensued, the boys’ mother got into the act and hit Tyler in “his mouth.”  After getting struck by his mother, Tyler did not react physically; instead, he swore at his mother and smartly “left the house.”  But then Tyler’s mother decided to exacerbate her disastrous parenting by calling the police—that’s right: the police.  And once these government agents were invited into what should have been a family matter, things got even worse for young Tyler.

Saturday, November 3, 2012

Wisconsin Supreme Court muddies the waters in plea bargaining


In State v. Frey, the defendant agreed to plead to certain charges and the state agreed to dismiss certain charges outright, rather than read them in, at sentencing.  This distinction between dismissing charges outright and dismissing and reading them in has always been a critical one.  In countless cases (including this one, for example) courts routinely recognized the distinction.  Even the official plea form that the defendant is required to fill out and sign warns him that “the judge may consider read-in charges when imposing sentence[.]”  Of course, in light of this warning, the only rational conclusion is that charges dismissed and not read in, i.e., dismissed outright or simply dismissed, cannot be considered by the judge when imposing sentence.  This makes sense for a couple of reasons.

Saturday, October 27, 2012

The criminal defense lawyer: three jobs in one


The defense lawyer often has to do three jobs at once: the prosecutor’s job, the judge’s job, and his own job.  That is, when the prosecutor does something illegal at trial—whether intentionally or “accidentally”—the defense lawyer had better jump on it, bring it to the judge’s attention immediately and in exactly the preferred manner, and then ask for the proper remedy at precisely the right time.  If the overwhelmed defense lawyer missteps in any respect, and if the defendant loses at trial and appeals, the appellate court will blame the defense lawyer for not freezing time and correcting the prosecutor’s cheating (or ineptitude) at the time of trial.  But the law doesn’t just require that the defense lawyer keep one eye on the prosecutor while also doing his own job; the law requires that the defense lawyer do the judge’s job as well.

Socrates on politics: cancel the election


I had my fill of politics this season as soon as I tuned-in to one of the presidential debates.  First, I heard Romney claim—and I’m paraphrasing here from my flawed memory—that “President Obama raised taxes on the middle-class by $3,000 per household.”  Then, I waited just long enough to hear Obama’s response.  Again, paraphrasing: “I’ve cut taxes on the middle-class thirteen times during my term.”

I had just about enough by that point.  My interest in politics died nearly as quickly as it began.  Instead of making any effort to get to the bottom of their respective and mutually exclusive claims, the participants and the moderator moved swiftly forward, with each candidate trying to prove that he was more forceful, articulate, confident, and likable than his adversary.  It quickly became obvious that the so-called “debate” was nothing more than a live political advertisement for each party.  And, as Socrates knew, “Politicians are concerned only with making cheap rhetorical points” rather than getting to the underlying truth of the matters at hand. 

So what’s Socrates’ solution?  Skip the election.  Flip a coin instead.

Talk radio


The Tried and Convicted “radio tour” is now complete.  After visiting radio stations coast-to-coast (from the comfort of my office), I’ve managed to gather a few of my twenty-plus interviews and put them in a single place, which you can find here.  The book is available here.

Legal fees: You get what you pay for?


From a defense lawyer’s standpoint, the simplest cases to defend are non-domestic fights.  You know, the good old-fashioned fisticuffs, often taking place in a bar or related setting, and often involving a self-defense claim.  The reason they’re “simple” cases is that they don’t involve complex pretrial or trial issues.  Normally, you simply have some eyewitnesses who testify as to what happened, and each side cross-examines them about their biases, motives, ability to accurately recount what they saw (or what they think they saw), etc.  Then, each side argues about the strength of the evidence, burden of proof, etc.  Unlike other cases, these self-defense cases usually don’t involve lengthy motions to suppress evidence, or time-consuming preparation for expert witnesses, or witness recantations to muddy-up the waters, or complicated “other acts” motions, or complex hearsay issues that can confuse the judge.  In other words, the classic battery case with a self-defense claim is the ideal case for a second-year law student’s trial advocacy course, or even for the new attorney fresh out of law school.  So how did one attorney get $100,000-plus in fees to defend a client in a four-day battery trial stemming from a simple throw-down at a trendy New York bar?

Saturday, October 20, 2012

The college football halftime interview: a toxic, airborne event


Maybe I’m a little edgy today.  Maybe I’m still upset by the recent death of the great Beano Cook.  Maybe I’m irritated that Notre Dame will likely win again against BYU before suffering the first of its two inevitable losses next week.  But whatever the reason, it’s time to call-out college football and demand a change.  No, I’m not referring to putting the “student” back in “student-athlete”; I’m referring to the dreaded halftime interview.

The next bailout

Our government has a long, rich history of using taxpayer money to bailout the poor decision-makers among us.  Most recently, of course, we had a bailout of what seemed like the entire “financial system,” and even had to bailout the American auto industry.  But these days, we’re moving into a new “bubble,” and a new bailout is underway.  It turns out that when we blindly accept long-held beliefs—such as “more education is better”—bad things happen.  Today, there is more than $1 trillion in student loan debt outstanding, with many of these debtors unemployed and in default on their payments.  This, of course, has given rise to an education bubble, and has even spawned several books on the topic and a website of the same name.

Stop the medical studies already!

A recent study demonstrated that children and teenaged pedestrians who are distracted by their “mobile devices” are at greater risk of being hit by cars.  Seriously.  Someone or some group felt that a “study” was warranted to prove this.  Equally inexplicable, some organization felt that this study should actually be funded.  (I realize that it’s possible the study was designed for some other purpose, yet yielded this finding; if that is the case, the authors should have been too embarrassed to publish it.)  But most alarming is that the authors proclaim “their findings should prompt pediatricians to advise parents and children about pedestrian safety during routine check-ups.”  No.  Stop right there.  Medical doctors have better uses for their time.  I don’t want them advising children on how to cross city streets any more than I want Charles Barkley to serve as a role model.  And if this is the last frontier for medical knowledge, then our learning is done.  We now know all there is to know.  So please, stop the studies. 

Knightly sniffs out some legal goodness

The Legal Watchdog is pleased to introduce Popehat, “a group complaint about law, liberty, and leisure.”  Popehat covers topics that typically fall outside of the Dog’s reach, and does so without pulling any punches.  For example, Popehat exposes how the state of Minnesota intrudes into its citizens’ lives to control what they can learn and how they can learn it.  As another example—and this post is my favorite—Popehat illustrates the extreme dangers of limiting our free speech rights.  So check out Popehat, and learn what our numerous governments are doing to infringe on our rights in areas other than our criminal justice system. 

Saturday, October 6, 2012

Dear appellate court judges: prosecutors are laughing at you


When reading my weekly cases, I just saw that yet another prosecutorial misconduct decision was handed down by the appellate court.  Reading the decision reminded me how prosecutors are allowed tremendous leeway to blatantly violate the basic rules of trial practice—for example, by hiding evidence of innocence from the defendant or making improper comments to the jury—in order to win convictions.  And when defendants appeal their convictions, the appellate courts repeatedly decide that it’s not their job to deter prosecutorial misconduct, so they routinely tell the defendant: “yes, the prosecutor cheated, but too bad, your conviction stands.”  Now, that’s a big problem in itself, and I’ve written about it in the Seton Hall Law Review and the Marquette Law School Faculty Blog.  But it’s what happens next that really has our nation’s prosecutors holding their sides in laughter.   

Sunday, September 30, 2012

Let’s hold judges to the same standard as NFL referees


I’ve always been a bit of a contraian.  For example, growing up in Wisconsin I knew at the very young age of four that I really hated the Packers.  I just got so tired of seeing Packer fans wear those horrific colors—I challenge anyone to find uglier shades of green and gold—that I aligned myself with another team even before I started kindergarten.  (Unfortunately, I aligned myself with the Vikings—a team with much cooler uniforms, but no super bowl victories.  This brought me some pain as a child, but I’m happy to report that my interest in professional sports faded a couple of decades ago.)  In any case, even though I have zero interest in the Packers today, it does appear that a rule-breaking wide receiver for Seattle, and three blown calls on a single play, unjustly cost “the Pack” a victory.

Saturday, September 22, 2012

Big business and government unite (again)

Big business loves to gripe about how government unnecessarily intrudes into our lives.  (Agreed.)  However, when big business needs a major bailout at taxpayer expense—a very common and costly occurrence throughout our country’s history—then the government is (temporarily) okay after all.

But big business and government unite in ways other than bailouts.  One way (that I briefly touched on more than a year ago) is for big retailers to sell items to poor credit risks and then use the local prosecutor’s office to criminally prosecute the consumers (at public expense) to collect payment for the retailers.  And it now looks like prosecutors and businesses are uniting to take this practice to a whole new level.

Saturday, September 8, 2012

Law School Reform: More Practical Legal Education? Not Yet.

The blogs are buzzing these days about law schools.  It’s now widely believed that even after the recent freefall in law school applicants, and the corresponding (but less severe) decline in law school enrollment across the country, we’re still producing more than two lawyers for every available law job.  (And, many argue that the law degree isn’t terribly helpful—and possibly even harmful—in an unemployed lawyer’s attempt to land a non-legal job.)  But my main problem with law schools isn’t that they turn out way too many lawyers.  Instead, as a practicing lawyer, I’m still peeved about the way that law schools turn out lawyers (and future judges) who can’t understand basic legal principles.

Saturday, August 25, 2012

In a dark, ironic sort of way

Michael O’Hear, law professor and writer at Life Sentences, just reviewed my new book, Tried and Convicted.  Much to my delight, he called it entertaining, “in a dark, ironic sort of way.”  But then things got even better with a comparison to the late, great one: “I don’t know if Cicchini is an admirer of the late Christopher Hitchens, but . . . Cicchini seems to take a similar delight in skewering hypocrisy and intellectual laziness.”  (That kind of comparison, of course, is a writer’s dream.)  O’Hear also adds that, “Although the book is intended for a general audience, Cicchini’s acerbic prose makes it a good read even for someone who is already familiar with the legal issues he discusses.”  You can read the entire review here, which includes several of O’Hear’s own compelling insights into the criminal justice system, as well as a brilliant—perhaps even “dark”?—historical reference. 

Wednesday, August 22, 2012

Cicchini on "The Morning Show" with Greg Berg

Listen to my interview with Gregory Berg on The Morning Show, where we discuss my new book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights. The book, published by Roman & Littlefield, is available in bookstores and online here and here.

Monday, August 20, 2012

Law School Management 101 (or how to deal with your school’s looming fiscal crisis)

If memory serves, when I started law school about 16 years ago tuition was about $13k per year, which made me very hesitant to enroll in the first place.  And by the time I graduated, tuition was fast approaching $20k per year.  I remember wondering how much longer most law schools could continue to exist.  In other words, who would want to go to law school at these prices?  It turns out that I was more price-sensitive than most, and my concern was actually about 10 years premature.  Much to my amazement, law school applications and enrollments kept climbing over the next decade, even as tuition continued to skyrocket well above the rate of inflation.

Saturday, August 11, 2012

When is a bribe not a bribe?


I love the 1995 case U.S. v. Boyd.  After sitting through a four month trial that ended in a guilty verdict, the trial judge overturned the conviction and granted the defendant a new trial.  Why?  Well, the prosecutors' star witnesses against the defendant were actually incarcerated themselves.  That, in itself, is rarely a problem.  Instead, what bothered the trial judge was that the prosecutors were bribing their prisoner-witnesses leading up to and during the defendant’s trial.  The gifts and favors included providing the prisoner-witnesses with access to illegal drugs, access to visitors with whom they had sexual relations, prosecutor-funded birthday parties, multiple items of clothing, and even phone sex with the prosecutor’s paralegals.  In fact, the litany of gifts and favors was literally so amazing that it makes the case worth reading in its entirety—something that can rarely be said of a judicial decision.

Friday, August 3, 2012

Cicchini on "Culture Shocks" with Barry Lynn

Listen to my radio interview with Barry Lynn, a constitutional lawyer and longstanding civil libertarian. Barry and I discuss my new book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy our Constitutional Rights. The interview was broadcast nationally, including in major markets like Los Angeles and, closer to home, Madison, Wisconsin. But you can find the interview archived on the Culture Shocks website. Once you get there, just press the play button and enjoy the show, or navigate to the home page and subscribe to Culture Shocks via iTunes.     

Thursday, July 26, 2012

Cicchini on The Rude Awakening morning show—FM 98.1, Ocean City, Maryland


Listen to my interview about my new book, Tried and Convicted, on The Rude Awakening morning show out of Ocean City, Maryland.  My interview is toward the end of the 7/26/12 episode, and is now available on podcast

Wednesday, July 18, 2012

Now Available!

My second book, Tried and Convicted: How Police, Prosecutors, and Judges Destroy Our Constitutional Rights (Rowman & Littlefield Publishers, Inc.), is now available.  Stay tuned for future posts linking to podcasts and radio interviews about the book.  For information on my first book, visit my amazon author home page.

Saturday, June 30, 2012

Sex, money, juries, and administrative bodies


I don’t mind when a juror is deadpan or stone-faced.  What does bother me, however, is when I see jurors sighing, eye-rolling, sleeping (literally), and complaining in the courthouse hallways about how they don’t want to be there.  (Is watching a jury trial and protecting a fellow citizen from a wrongful conviction really that much worse than their regular jobs?)  Some jurors just don’t seem to realize that it could easily be them sitting at the defense table, instead of in the jury box.  If they understood this, they would instantly appreciate the importance of having an alert (or at least conscious) jury.

But despite my own feelings on the subject, one recent criminal defendant must have been furious with his jury.  The evidence showed that he had taken a passing interest in a woman who—oops!—was an undercover cop.  He was then criminally charged with propositioning her for sexual intercourse, which required the state to prove that, roughly speaking, he (1) requested sexual intercourse (2) in exchange for money. 

Thursday, June 14, 2012

The law school industrial complex: “Will somebody please incentivize me?”

Law professors have it pretty easy.  First, they make a lot of money—sometimes "between $320,000 and $410,000 per year" when you count their stipends, bonuses, and other creatively-labeled cash payments.  (In fairness, though, a prof’s total salary at most law schools typically falls within the $110,000 - $225,000 range.)  Second, they teach only three or four courses per year—that’s right, per year—and the word “year” in law school-speak equates to about eight months out of the calendar year; in other words, summers off.  Third, while requirements vary, typically a law professor will only have to publish four articles in seven years in order to get tenure.  (To put this into context, in my most recent seven-year span I’ve published more than three times that much—ten articles and two books—in addition to actually practicing law.)

Now, high pay and lax job requirements are fair game for criticism (especially if you’re a recent, unemployed law grad who had to foot the bill for the professors’ laidback lifestyle), but what really upset me was that two professors actually published an article about how to “incentivize scholarship”—something that is already part of the highly-paid law prof’s job.  Stated another way, professors are publishing articles about how to get professors to publish articles.  No kidding.  According to this summary, here are ways for law schools to “provide greater institutional support for their faculty's research efforts”:

Saturday, June 9, 2012

The difference between doctors and lawyers

A law degree is really just a second bachelor’s degree.  Sure, you need a B.S. or B.A. (or B.-something) to get admitted to law school, but there are no other prerequisites.  In other words, a B.F.A. in puppetry with an emphasis in children’s theatre from the University of West Virginia will get you into law school just as easily as a B.S. in bioengineering from Cal Tech.  (In fact, the law degree used to be called the LL.B., or bachelor of laws, but its name was changed to J.D., or juris doctor—probably in an effort to gain respect and prestige.)  But medical schools, on the other hand, require very specific and rigorous coursework before an applicant can even be admitted, let alone graduated and licensed.  (Puppetry majors need not apply.)

In addition to education, another thing that separates lawyers from doctors is supply and demand.  Due to a massive oversupply, law graduates today have very limited employment opportunities, and, for those who are "lucky" enough to land law-related jobs, they often earn very little money.  Doctors, on the other hand, remain highly employable.    

But despite all of this, a brilliant television show called Community hit the nail right on the head about three years ago.  The following exchange between characters Jeff and Abed, in the episode “Beginner Pottery,” brilliantly and succinctly captures the difference between doctors and lawyers:

Wednesday, May 30, 2012

What’s Your Motive?

Criminal law is riddled with double standards.  For example, suppose that two seventeen-year-olds get into fisticuffs in the state of Wisconsin, and one of them gets a bruise on the cheek.  Typically, the winner of the fight gets prosecuted regardless of who started it, so let’s further suppose that the kid without the bruise gets charged with felony child abuse.  How can this be?  In Wisconsin, he’s considered an adult because he’s seventeen, and therefore can be charged criminally in adult court.  But wait: the kid who got the bruise on his cheek is also seventeen, so how can this be “child” abuse?  Because there’s a double standard: when considering the age of the accuser, seventeen-year-olds are considered to be mere children, rather than adults.  But as absurd as this double standard is, it pales in comparison the double standard for motive and the third-party defense.  

Tuesday, May 8, 2012

I see grooming behavior

As I sat on my couch watching the latest edition of Sports Center, I happened to catch a Kay Jeweler’s commercial.  You know the ones: “Every kiss begins with Kay.”  Well, this one was marketing jewelry for kids.  A handsome chap was presenting a little gem to, well, a little gem, and he told her “I’m so happy to be marrying your mom, and I’m really happy that you’re gonna be in my life, too.”  And, because it’s a commercial, the child absolutely loved the gift, and the mom looked on lovingly from the background. 

I wasn’t able to find this commercial on YouTube, so I can’t link to it.  But most people who watch this commercial will see a brilliant marketing campaign (after all, they’re opening up a whole new market for their product), or maybe the frivolous side of capitalism (does a child really need jewelry?), or maybe even a sweet moment (there’s no way this marriage will end in divorce).  You wanna know what I see?  I see grooming behavior. 

Friday, May 4, 2012

I don’t care about your child

As a criminal defense lawyer, I fear cases where children are the ones making the accusations.  The reason is that no matter how bizarre, implausible, or flat-out false the accusation might be, some people seem to have an inherent pro-child bias which can, in some cases, cause them to suspend reality.  It also enables them to see and hear things that don’t exist.  But this pro-child bias is not limited to jury trials; rather, it infects most aspects of our lives, and was on full display when a nice looking couple went to a baseball game and caught a foul ball.  Because of this, they made national news and were demonized for failing to cater to a nearby crying child that wasn’t theirs, and that they didn’t even see.

Friday, April 20, 2012

Socrates goes to law school

The legal profession is littered with lawyers and judges that are unprepared to do their jobs.  Some of us are incapable of understanding even the simplest legal doctrines.  Yet others among us have the ability, but simply are not interested in gaining a deep, working knowledge of our craft.  And many of us are just lazy beyond belief.  All of this manifests itself in inefficiencies and astronomical costs – costs that are borne by the litigants and the taxpaying public.

I recently wrote about one such case in Milwaukee where the judge went to great lengths to avoid giving the defendant his trial.  In the process, he completely botched the law, and, twenty-three court hearings and an appeal later, the case was still unresolved.  (Update: after a few more hearings – about thirty in total – the prosecutor finally dismissed the case.)  More recently, defense lawyers in a Racine case had to spend an astronomical amount of time researching, briefing, litigating, and appealing a simple legal issue, just because the prosecutor and the judge didn’t understand (or refused to accept) the law. 

And these examples are far from anomalous; rather, they are common occurrences.  But where does this incompetence, laziness, disinterest, and cavalier disregard for the law come from?  I’ve given it a great deal of thought, and I think we can blame the ancient Greek philosopher Socrates.

Monday, April 9, 2012

What’s going on with the Supreme Court?

SCOTUS
Benjamin Barton’s recent empirical study explores the pre-appointment legal experience of our Supreme Court justices.  One of the things Barton looks at is the justices’ actual years of private practice experience, which is defined as the number of years a justice actually served clients, including not just real people, but also corporations and not-for-profits.  It turns out that the current Court has the lowest number of years ever of private practice experience per justice (six years), and two of the justices have never served any client in the practice of law.  And just because a justice may have some experience working in private practice, the experience is typically at a large law firm or corporation, where the justice probably never actually handled a real case (of any kind) from start to finish.  

Friday, March 16, 2012

A Response to Brian Leiter: First, Don’t Kill All the Law Reviews

Okay, okay.  I know I just announced my blogging hiatus a few hours ago, but something on the web just caught my eye and I had to write a post.  (Then, it’s back to my hiatus.)  Brian Leiter, a law professor, recently wrote Four Changes to the Status Quo in Legal Education That Might Be Worth Something.  Leiter has a Ph.D. in philosophy (which is one of my favorite subjects), so I like him already.  However, I strongly disagree with the third of his proposed legal education reforms, which is to “[c]ut the number of law reviews by 75%, and turn the remaining ones over to faculty supervision[.]”  It’s true, as Brian contends, there is a lot of “worthless scholarship” out there.  However, those extra articles aren’t really hurting anyone, and there are at least three good reasons to keep law reviews out of faculty hands. 

Hiatus

The Legal Watchdog is going on a brief hiatus.  I have a lot of editing and proofing to do on my forthcoming book, Tried and Convicted (Roman & Littlefield Publishers, Inc.), and a lot of preparing to do for an upcoming jury trial.  During the hiatus, Knightly (pictured) will rest and gather his strength for The Dog’s next post, which is expected early to mid-April.  In the meantime, you can read some advance praise for Tried and Convicted, which is due out this summer, after the jump.

Sunday, March 11, 2012

Happy March Madness!

Ring Out Ahoya!
Welcome, once again, to the most wonderful time of the year!  The NCAA tournament is the greatest sporting event in the world.  Heroes will be born.  Hearts will break.  Cinderellas will rise.  Giants will fall.  And Bill Raftery will, at some point, say “Lingerie on the deck!” “Square the puppies!” and “A little nylon!”  (And his able partner-in-crime, Verne Lundquist, will laugh heartily.)  Meanwhile, Knightly (left) celebrates Marquette’s 3-seed and picks the Final Four:

#1 Kentucky (South).  The question isn’t whether Coach Cal will get to the Final Four again, but rather, will the appearance later be vacated?  His two previous Final Four appearances (with U-Mass and Memphis) have been wiped from the books due to later-discovered NCAA violations, though he, personally, was notdirectly implicated in anything.” 

#3 Florida State (East).  After knocking off both Duke and North Carolina, the ACC tournament champion Seminoles (and their ACC coach of the year Leonard Hamilton) are a tough out.

#2 Kansas (Midwest).  North Carolina is too erratic.  The Big Twelve’s regular season champion will emerge from the Midwest.  Now all they need is a new fight song.

#4 Louisville (West).  Kentucky might not even be the best team in, well, Kentucky.  Slick Rick has the Cardinals' press in high gear, and Peyton Siva might be the fastest man on the planet, with or without a basketball in his hand.

Champion: Louisville Cardinals.

Saturday, March 3, 2012

Miranda: Custody within Custody?

Is this man in custody?
When the police have a suspect “in custody” and they want to interrogate him, they must first read him his Miranda rights, which still include (arguably) the right to remain silent.  And the test for whether a suspect is “in custody” has produced some very interesting cases.  For example, assume that the police are questioning a suspect at his home, but while pointing their guns at him; is the suspect “in custody”?  Or what if the police use the old bait-and-switch and “invite” a suspect to come to the police station under false pretenses, and then start interrogating him once he gets there; is the suspect “in custody” in that situation?  You might be able to formulate good arguments on both sides of these coins.  But, when a suspect has been formally imprisoned and put in a jail cell, and the police go to question him, surely that prisoner is “in custody” and entitled to the Miranda warning, right?  Not so fast.  The Supreme Court says that we have to look at whether there was "custody within custody."

Are you in the “Top 14”?

Sorry, number fifteen.
Reading about the legal “academy” is pretty fun (unless you’re a recent J.D. grad who is still fuming over your high student debt load and your poor job prospects).  One of the things I’ve always chuckled at is their reference to the “Top 14” law schools.  The schools (and graduates of the schools) that fall just inside of this cutoff like to refer to it, because it’s better to be in the “Top 14” than the “Top 15" (sorry, UCLA).  And of course, those outside of it like to refer to the “Top 20,” or even the “Top 25.”  (Anything beyond that is sacrilegious in the academy; sorry, Boston College.)  And for some purposes (e.g., landing a federal clerkship) the more meaningful cutoff is probably the “Top 5” or maybe the “Top 10.”  But where does the “Top 14”—mathematically an even number, but rather odd for ranking purposes—come from?

Saturday, February 18, 2012

Econ Talk and the Environment

The Electric Car
I’ve never been too swayed by movements to save “the environment.”  After all, the only reason we enjoy the quality of life that we do is that our species has been able to keep nature in check, at least for the most part, most of the time.  But whether it’s a tsunami, a volcanic eruption, a deadly mutating virus, a near-miss asteroid, a dangerous solar flare, a flesh eating bacteria, an earthquake, a deadly spider, the ice age that’s right around the corner, or even our own highly imperfect evolution, nature and “the environment” are aligned against us and could kill us at any time in any number of terrifying ways.  True, I live in Wisconsin where I happen to be shielded from many, but not all, of these completely natural but deadly creatures and phenomenon.  Also true, I’ve yet to fall victim to my aging and disease-prone genes (although I likely have lived more years than I have left in front of me).  But my point is that “the environment” strikes me as more of an adversary than a thing worthy of my charity or concern. 

"Hot for Teacher" and Free Speech

In a recent post I wrote about a college student who was kicked out of school for engaging in "unlawful individual activity."  His crime?  In a free-writing exercise in a creative writing class at a public university, he wrote that his teacher was attractive.  A few days after The Dog's post, ABC News picked up the story, and you can now see a video of the student explaining his side of things.  Even the Van Halen News Desk is paying attention.  (Scroll down the VH News Desk link and you can enjoy Hot for Teacher—quite possibly the greatest rock video ever made.)  You can also find the student's actual journal entries, as well as a letter written by the hot teacher, all on the Foundation for Individual Rights in Education website.  I love it when education and Van Halen come together.  (Pictured left: Eddie Van Halen's guitar.)   

Spin Doctors

Dealing with prosecutors on a daily basis, I often get to hear some pretty outlandish spin on both facts and law.  But even the most motivated prosecutor would get dizzy from the spin put on these two former Duke University employees.

First, there’s the case of a former Duke medical research doctor.  As 60 Minutes just reported in Deception at Duke, the doctor was involved in what might turn out to be one of the “biggest medical research frauds ever.”  In a nutshell, the doctor claimed to have decoded the genetic makeup of cancer tumors which allowed him to match a person’s cancer to the best treatment with 80 percent accuracy.  His work was hailed as groundbreaking, but when two Houston doctors analyzed the results, they found something odd: the Duke doctor’s data was riddled with what were thought to be errors.  Duke ultimately concluded (many years later) that far from being filled with errors, the data was being manipulated to reach the desired outcome.  The result, unfortunately, was that patients in the Duke clinical trials might have been receiving “not the best drug for their tumor, but the worst.”  You can imagine what happened to them.

Saturday, February 11, 2012

"I want to believe."

Poster available at
Zazzle.com
While wanting to believe may be necessary for the religious and Fox Mulder, I think society could benefit from a healthy attitude shift toward the don’t-rush-to-judgment end of the spectrum.  An objective, skeptical, cautious, and even indifferent approach to life has its rewards.  Unfortunately, however, the attitude on some college campuses these days seems to be leaning—or, more accurately, falling over—in the opposite direction. 

We all know what happened in the Duke Lacrosse case a few years ago.  I’m not referring to the false allegation itself; that sort of thing happens all the time.  Even a poorly constructed web search will reveal hundreds of proven false allegation cases, including those at Duke University, in small town Port Washington, WI, and at Northeast High School in Macon, GA.  And of all the false allegations that are levied, only a fraction of those can be conclusively proven false, and only a fraction of that fraction are ever reported by the media.  In reality, then, there is good reason (and evidence) to believe that a very large percentage of all accusations are, in fact, false.  But again, that’s not my point.

Monday, January 30, 2012

MBA or JD?

One business executive makes a compelling case for B-School.  (Apparently, it's too cumbersome to say "business school.")  Click here to see the hilarious video.       

Sunday, January 29, 2012

Book Review—The Management Myth: Debunking Modern Business Philosophy

As far as employment went, I somewhat enjoyed financial analysis and accounting-related work.  But what drove me out of the business environment and into law school was the intellectually hollow corporate babble that seemed to invade most aspects of the job.  There was the constant talk of “driving the business,” the prodding to “think outside the box,” and even the brilliance of “management by walking around.”  (They seriously called it that, and management gurus made a fortune selling it to brain-dead business leaders.)  And of course, any employee who refused to place his faith in the latest management buzzwords and catchphrases, and instead questioned the underlying thinking, was not being “a team player.”  Fortunately, in response to all of this stupidity, Matthew Stewart has written what should be mandatory reading for everyone in the corporate world: The Management Myth: Debunking Modern Business Philosophy.

Saturday, January 21, 2012

Keep your hands off the meat

Choice Meat
Criminal defendants are often shocked when they wind up in jail or even prison for minor transgressions.  In such cases, their crimes run the gamut from negligent and strict liability crimes (where there is no criminal intent and often no direct or indirect harm to anyone) to small-time property offenses (where the financial harm is very minimal).  The best example of harsh punishment for property crimes can be found in California, where the Golden State’s infamous three-strikes-and-you’re-in program often puts petty shoplifters behind bars for decades or even for life.  But Wisconsin is no slouch either, as one criminal defendant recently found out the hard way.

Sunday, January 15, 2012

Tic Toc, Pro Se Defendant

If you're interested in criminal law but you're not yet following Michael O'Hear's Life Sentences Blog, well, tic toc.  Check out his latest post describing how a pro se defendant got caught up in a maze of state and federal law and narrowly missed a filing deadline with disastrous results.  The post -- titled Delay in Criminal Procedure: What's Good for the Goose Is . . . Well, Never Mind -- has a nice ironic twist, too, which makes it well worth the read.  It is also cross-posted here on the Marquette University Law School Faculty Blog.  

Saturday, January 14, 2012

A satirical take on college bowl games: Area doctor launches “Don’t Overeat Bowl”

Bowl games aren’t just for the big corporations and not-for-profits anymore.  Area doctor Joseph Mathew has just announced the Joseph Mathew Dont Overeat Bowl, which will be played next year after the PoppaJohns.com Bowl and before the Kraft Fight Hunger Bowl.  The Dont Overeat Bowl will be held in Springfield Memorial Park Stadium, located in Dr. Mathews’ home town of Springfield, Illinois, and will feature the sixth team from the Big Ten "Leaders" Division versus the fourth team from the Sun Belt Conference.  

What if the BCS was more like the ABA? Goodbye ACC; hello BSU.

College Football
Two of my favorite subjects are legal education and college football.  And, as it turns out, the two might have an interesting commonality.  In legal education, membership in the American Bar Association (ABA) makes or breaks a school.  If a school is an ABA member, its graduates are qualified to take the bar exam of any state, and the school has a chance to be a national player in legal education.  Similarly, in college football, membership in the Bowl Championship Series (BCS) is the gold standard.  Why?  Because when a school wins a BCS conference’s regular season title, it gets an automatic bid to a BCS bowl game—the Orange, Sugar, Fiesta, Rose, or national title game.  This translates into incredible prestige and, possibly but not always, money.  So what does all of this mean for schools that are not ABA or BCS members?  Simply put, non-ABA and non-BCS schools are second-class citizens in their respective peer groups and find themselves on the outside looking in.  But what would happen if, with regard to membership, the BCS was just a little more like the ABA?     

Saturday, January 7, 2012

Prosecutor babble and double-speak

By now, most people have heard of the Wisconsin prosecutor who threatened to criminally charge school teachers for teaching sex-ed classes, even though parents could opt their children out of the sex-ed program, and even though the sex-ed program itself had been approved by the state legislature.  But not all prosecutors take this anti-legislature approach; some will justify their acts, no matter how absurd, by attempting to align themselves with the legislature.  That is, if the legislature fails to specifically forbid the bizarre, unimaginable thing they want to accomplish, then, they reason, their actions must be acceptable.  That’s the tactic a different Wisconsin prosecutor used to justify charging a six-year-old child with felony sexual assault for "playing doctor" with a five-year-old.

Friday, January 6, 2012

Technically, That’s Illegal: A Blog and a Book

Ridiculous laws can be interesting and fun to read about.  But the fact is that they are not anomalous; rather, they engulf us all.  From people being detained for taking pictures of law enforcement officers or pictures with “no aesthetic value” (as determined by law enforcement officers), to people being imprisoned for failing to sod their lawn, to teenagers being forced to register as sex-offenders for typical teen shenanigans, author Ann Sattley demonstrates that we’re all at risk for detention, formal arrest, conviction of a crime, or even worse.  If you want to be entertained—or possibly infuriated—by our multiple levels of overreaching government, check out her blog, “Technically, That’s Illegal,” along with her book by the same name.  You’ll be happy—or possibly angry—that you did.

Monday, January 2, 2012

The Law School Tuition Bubble: A Blog

Photo by Phillip Capper
Happy arbitrary point in space-time—or, if you prefer, happy New Year.  While aimlessly surfing the web yesterday, I stumbled across a true gem: “The Law School Tuition Bubble: An Amateurly Illustrated Think Tank of One.”  This blog is published by fellow Marquette University Law School graduate Matt Leichter.  (I don’t know Matt, and he graduated several years after I did.)  Matt does a tremendous job covering a wide range of issues including, obviously, the law school tuition bubble.  In two of my favorite posts, Matt explains why law school is so expensive, and also points out the flaws with a recent New York Times editorial on legal education.  His blog is a must read for anyone interested in law school or the legal profession.  Enjoy!