Thursday, December 24, 2020

Now in print!


Check out my new article, now in print, Under the Gun: Plea Bargains and the Arbitrary Deadline, 93 Temple L. Rev. 89 (2020), which you can find here.  This article addresses one of the rare situations when a prosecutor and a defense lawyer will be aligned.  (You can read the abstract after the jump.)  All of my articles, organized by topic, are available here.  My books, including critics' reviews, are here.  Enjoy!

Thursday, December 17, 2020

Free Advice to College Kids: “Don’t be Nuts”

Things have gotten really crazy on most college campuses these days.  And the focal point of the craziness is often race.  To get a taste of what I mean, just read the College Fix for a week.  After you get past the initial shock of what colleges now call racist, you’ll likely conclude that when everything is allegedly racist, then nothing is really racist as the word loses all meaning.  And a recent fiasco at Georgetown University demonstrates this point.

Georgetown—a truly “elite” college, ranked in the top 25 of all colleges—has a “minority fellowship program . . . designed to mentor students of color” and give them a leg up in the real world.  It is one of many such programs at Georgetown, and is housed in the school’s “Center for Multicultural Equity & Access.”  Sidebar: It’s never enough to have programs; the programs also need to be administered by numerous highly-paid bureaucrats, who are usually employed through a “center,” which in turn drives up tuition and fees, which in turn puts most students deeper in debt.

Yet I wonder how much value this minority fellowship program actually delivers.  According to the College Fix article, “every current member” has resigned, citing, among other complaints, that the “minority fellowship program” is guilty of racism, sexism, classism, and elitism.  A phobia was also alleged, but I’ll focus on these complaints.  But before we begin, go ahead: soak in the irony of students at a truly elite college complaining of elitism.  Okay, finish laughing at their expense, and let’s get down to brass tax.

Saturday, December 12, 2020

A Decade of Daubert in Wisconsin: State 134, Defense 0

Knightly can't believe the numbers
(Photo by Amy Kushner)
Knightly and I haven’t been posting much as we’ve been hard at work on a new article, The Daubert Double Standard.  I’ll be submitting it in late January to the law reviews for publication, but here’s a sneak peek.

About a decade ago in 2010, Wisconsin lawyers learned that our state would soon be switching to the Daubert reliability standard for the admissibility of expert testimony at trial.  In criminal cases, the prosecutor (not the defense lawyer) uses the vast majority of expert witnesses, so this change from mere relevance to the more stringent reliability was supposed to benefit the defense.  It was supposed to end the prosecutor’s use of pro-state advocates masquerading as experts to put the gloss of faux expertise on the state’s cases.

Despite what was supposed to happen, many of us in the criminal defense bar knew better.  In 2010, I complained aloud to anyone that would listen that this new, more stringent Daubert reliability standard would not limit the prosecutor’s use of “experts” in any way; it would only make it more difficult for defendants to use their own, legitimate experts at trial.

Now that nearly a full decade has passed, what happened?