Law School Nonsense

The WSJ recently reported that Yale, and then Harvard, withdrew from the US News law school rankings.  My initial reaction was, of course Harvard is going to copy Yale.  They’ve been chasing Yale ever since those rankings came out.  They didn’t have the guts to do it first, but they quickly jumped on Yale’s bandwagon.  A Harvard spokesperson said that his school had been “deliberating the move for several months.”  At best, that’s typical academic navel-gazing; more likely, Harvard was waiting for its law-school superior, Yale, to pull the trigger first.

My second reaction was that these schools aren’t actually withdrawing; they’re just not cooperating with the US News.  Marquette Law did this many years ago, i.e., it stopped cooperating and submitting data, and the school still got ranked.  And the WSJ later confirmed in a follow-up article that, of course, Harvard and Yale will still get ranked.  So these two institutions aren’t even doing anything novel, but the media will fawn on them as if they are ground-breakers or trend-setters.  In reality, they’re walking a path beaten long ago by Marquette Law.  (Note: post-rebellion, MU has since rejoined the US News fold.)  And that already-beaten path leads nowhere new.  

Anyway, why did Y. and H. decide to stop cooperating?  Here’s the part of the original WSJ article that caught my eye:

Court-approved drinking mugs?

David Lee Roth, et al.

The judge in Racine County who allegedly threatened a lawyer with contempt for not having his shirt's top button buttoned (see here) has also issued special court-approved drinking mugs, according to this short story in the ABA Journal.  

What kind of soft, liberal nonsense is that?  Any hard-liner worth his salt would prohibit in-court hydration entirely!  I remember a "professor" at MU Law many years ago when I brought out my plastic water bottle in class.  He asked, "What are you going to do if you get thirsty in court? Pull out a water bottle?"  I replied, "Um, yes?"

He didn't find it humorous.  But neither did I.  Nor did he offer a better alternative to the time-tested H2O in a bottle.  He was indeed a hard-liner.  (He was also lazy.  Who gives a commercially available, multiple choice final in law school?  If you don't want to grade issue-spotter questions, at least make up your own multiple choice.)

In any case, I don't practice in Racine so I don't have one of those special, court-approved mugs.  And for you out-of-county lawyers who also lack the court-approved drinkware, but may be venturing into Judge Gene Gasiorkiewicz's court room in the future, The Legal Watchdog has obtained "inside information" that he will also permit you to drink out of a Van Halen mug.  

Don't research that.  Just trust me on this one.

Judicial Bias, the Top Button, and the Criminal Case Backlog [Updated 9-17-22]

As a criminal defense lawyer, judicial bias is a subject of great interest to me.  In 2019, I published a law review article titled Combating Judicial Misconduct: A Stoic Approach.  (You can find all of my law review publications, organized by topic, here.)  In that article, I described how judges can be incompetent, hostile, biased, and in some cases flat-out unhinged.  I also provided strategies for combating such misconduct, including the defense motion to recuse the offending judge.  I have filed such motions in the past, and I included a sample motion in the article for criminal defense lawyers to adapt and use in their own cases.

While I have no reason to believe he ever read my article, I was very interested to learn that another defense attorney, Christopher Carson, recently filed his own motion to recuse a criminal court judge.  Carson alleges in his motion that Racine, Wisconsin trial-court jurist Eugene A. Gasiorkiewicz conducted himself so poorly in the courtroom that it constituted judicial bias against the defense, thus requiring recusal.

The entertaining facts alleged by Carson in his motion include these.  In front of a packed courtroom—i.e., “lawyers, defendants, members of the public and court staff”—the judge became “emotionally triggered” and publicly lambasted Carson for not buttoning the top button of his dress shirt.  However, Carson “could not comply with the Court’s novel interpretation of the lawyer’s dress code” because, possibly due to recent weight gain, “his shirt’s collar was too small for buttoning at the top, given the melancholy thickness of [his] neck.”  After yelling at Carson, the judge then allegedly threatened him with a contempt finding should he ever repeat this fashion misstep.

The Daubert Double Standard -- Now In Print!

Check out my newest article, The Daubert Double Standard, now in print at the Michigan State Law Review.  Daubert has been an absolute disaster for the defense.  The now decade-plus old law was supposed to make it tougher to use so-called expert testimony at trial.  But the actual outcome was easy to predict: with regard to the state's evidence, nothing has changed.  The courts simply rubberstamp any pseudo-expert the state tries to use.  Worse yet, the courts impose the high Daubert hurdle on the defense, thus turning Daubert into a pro-state double standard.  In my study of all appellate and SCOW cases in roughly the first decade of Daubert, the state is 134-0 against the defense.  

You can find the article here.  You can find all of my articles here.  You can read the abstract for the article after the jump.  And for more on Daubert, see my U. Illinois L. Rev. Online article, Daubert Strategies for the Criminal Defense Bar.

Make-Work at Georgetown? [Updated Below]

When I was employed in the corporate world as a cost accountant, I sometimes had work that was interesting on a theoretical level, and sometimes even enjoyable on a practical level.  But the worst part of those corporate gigs was that there wasn’t enough actual work to fill most days.  The result was a bunch of make-work, particularly inter-departmental meetings and special projects dominated by corporate lingo about stakeholders, internal customers, thinking outside of the box, and driving the business.  The exact language changes over time, of course, so that consultants can keep selling their schemes to corporate management.  (You can learn about that scam in this wonderful book.)  But the make-work was enough to make me sick to my stomach or put me to sleep—depending on my mood on any given day.

On the other hand, one of the best things about being a self-employed criminal defense lawyer is that every bit of the work has real meaning.  If it didn’t, I wouldn’t do it because I don’t have to do it.  Some days require 12 or even 14 hours of work.  On other days, there’s very little work to do.  And when that’s the case, I don’t have to create any make-work to look busy.  Instead, I can write, take a nap, watch TV, or (rarely) do something healthy like go for a walk.  (I really should do more of that, my doctor tells me.)

Beware of Democrats crying “misinformation”

I’ve written before how the word “misinformation” is used to justify silencing (or at least discrediting) speech that the Left doesn’t like.  (See here and here.)  As if we needed another example, consider the former Mayor of New York, the freedom-hating, BLM-loving Bill de Blasio.

This article reports that de Blasio was criticizing “vaccine misinformation, which he called a national disease.”  As an example of such “misinformation,” the article cited one Ms. Green, another politician, who tweeted that the virus “is not dangerous for non-obese people and those under 65.”  For that tweet, she faced consequences from twitter.

But interestingly, the CDC says that obesity is a huge factor in virus-related hospitalizations and deaths.  Similarly, the CDC says there is also a strong correlation between age and outcomes, with those over 65 facing dramatically greater health risks—at least 65 times that of 18-29-year-olds. 

So was Ms. Green’s statement really “misinformation”?

“Whatever it is that I have said here today”

In one of my favorite movies (Back to School), Dean Martin, dean of the fictional Thornton Melon School of Business, gives a speech during the groundbreaking ceremony at the site of the school’s future, state-of-the-art building.  He said:

The business of America is business.  And the business of an educational institution such as ours is to create young minds that understand that the business of America is the kind of business that it actually is.

Perhaps acknowledging the nonsensical nature of what he’s spewing, Dean Martin concludes: “Whatever it is that I have said here today . . .”  The Dean’s circle speak then provokes a humorous, headshaking response from Thornton Melon.

Miranda Madness

Judge Bruce Schroeder’s scolding of the prosecutor during the Ritttenhouse trial drew a great deal of media attention.  Unfortunately, media outlets were less interested in discussing the underlying problem that caused the judge’s eruption. 

The underlying problem is a common one.  Prosecutors frequently—some, routinely—will comment on defendants’ post-arrest, post-Miranda silence.  In the Rittenhouse trial, the prosecutor did this in two ways.  FIRST, he asked Rittenhouse on cross-exam to admit that this is the first time he’s chosen to talk about the incident, thus implying that he had declined to talk to police upon his arrest.  SECOND, because the state has to go first at the trial, the prosecutor also got Rittenhouse to admit that he had the “benefit” of listening to the state’s witnesses and seeing the state’s video evidence before finally talking about the incident.

Disorderly Conduct

Check out my recently published article, Disorderly Conduct: An Investigation into Police and Prosecutor Practices.  I wrote the article in response to some pretty outlandish claims by law professors about how the police are allegedly using the disorderly conduct statute.  You can read my article's abstract after the jump.  You can also read my Q&A / interview about the article at the Kenosha County Eye.  And you can find the article itself on the LMU website.  All of my articles, organized by topic, are available on the articles page of my website.  Enjoy!

Rittenhouse and Race

Check out my guest post, titled Rittenhouse and Race, at the Kenosha County Eye.  In it, I address the surprising claim that Rittenhouse's actions and the jury's acquittal were motivated by "fear of black people."  

Fact checking the fact checkers: State v. Rittenhouse

I really hate—yes, “hate,” which can be a good thing—how social media platforms will censor a person’s political speech for allegedly being “false” when it is really just the expression of an opinion.  And now this practice has crossed the line separating the political and legal arenas.  As a practicing criminal defense lawyer, this hits close to home for me.  Hitting even closer to home, I’ve actually been cited in support of a fact checker’s decision to double down on his earlier fact check which declared someone’s speech as “false.”  This is somewhat ironic, given my love of free speech and my hatred of “speech codes,” censorship, and the asinine phrase “hate speech” which is bandied about by nasty children and freedom-hating bureaucrats on college campuses.

You can read all about it here.  In a nutshell, someone wrote on facebook that it was “perfectly legal” for Kyle Rittenhouse, a 17-year-old boy, to possess the gun he possessed when he shot three white men who separately (1) threatened to kill him and chased him, (2) pointed a gun at him, and (3) struck him with a skateboard, all during the Kenosha riots in 2020.  A fact checker then “fact checked” the claim about “perfectly legal” and determined it was false.  The facebook user was ultimately silenced or censored or deleted or whatever they do on “social media” when someone says something politically unpopular.

New motion to modify Wisconsin’s J.I. 140 on the burden of proof

I’m using a new pretrial motion, usually as part of a motion in limine, to modify J.I. 140, Wisconsin’s burden of proof jury instruction.  This new motion is shorter, it acknowledges SCOW’s Trammel decision, and it incorporates the recent revelation that Wisconsin’s pattern instructions are not authored by judges, but rather by unidentified employees of UW.  This should put to rest the prosecutorial argument that the pattern instruction should not be modified because it was painstakingly written by an imminent judicial committee of great legal minds.

If Wisconsin lawyers want the motion to modify J.I. 140, go to the very bottom of my J.I. 140 page, here.  It’s the last document on the page.  And for more on the jury-instruction committee fiasco, including a sample motion to modify any pattern instruction, see the draft of my forthcoming article in the Albany L. Rev., here.

Thanks for the music and the memories, Diamond Dave!

"Gimme a bottle of anything. And a glazed doughnut. To go!"

Songs like Jump and Panama elevated both David Lee Roth and his band, Van Halen, from mere rock-star fame to household names.  Unfortunately, the dust had barely settled after the Hot for Teacher video when Van Halen started to breakup.  The boys did eventually get back together—albeit way too late and for only one studio album.  But in the 1980s, DLR was king of the rock world.  After releasing four platinum albums that decade with VH, Dave minted another three post-VH platinum records before the 80s ended: Crazy from the Heat, Eat ’Em and Smile, and Skyscraper.  I’m no music historian, but being a hard-rock lead singer with seven platinum albums out of seven tries, in a single decade, no doubt puts Dave in a truly elite class. 

In any case, about a year ago, Eddie Van Halen passed away.  And now, DLR has announced his retirement.  Retirement is not death, of course, though Dave seems to acknowledge that the inevitable isn’t too far way when he said: “Hey Ed, objects in the rearview mirror are probably me.”  (Sounds like Panama-inspired words of wisdom: “right behind in the rearview mirror now!”)  But although DLR still roams the earth, it feels to me like another small piece of my world has died—or at least is slowly fading from existence.  For me, Dave’s post-1984 music was a big part of my life, and is now intertwined with memories of better days.  So to keep those memories alive, and to celebrate his solo career, here are some of my favorite songs from my four favorite DLR albums.

Now in print!

Check out the published version of my law review article, Deal Jumpers, hot off the press at the U. Illinois L. Rev., here.  Defense lawyers in other states are often shocked to learn that Wisconsin judges can take a defendant's plea, jump the plea deal, and sandbag the defendant with a harsher sentence than the parties agreed upon.  And the defendant has no recourse whatsoever.  Absolutely amazing.  We don't call Wisconsin the "hell mouth" for nothin'.  

As always, you can find my other law review articles here, and my books here.

A heap of sand, law review publishing, and the high cost of legal education [updated]

There’s a paradox called Sorites Paradox which takes numerous, related forms.  Here’s one.  You’ve got a heap of sand.  If you take away one grain, do you still have a heap?  Of course.  Therefore, given that Heap – 1 grain = Heap, “[i]t follows, absurdly, that even a single grain makes a heap. Thus soritical reasoning appears to show both that no number of grains make a heap and that any number of grains make a heap.”

It really isn’t much of a paradox.  The problem, of course, is in the vagueness of language—specifically, the word heap.  We all know that if you keep removing grains of sand, one by one, eventually you will no longer have a heap.  People may not agree on the exact point at which that occurs, but we would all agree, for example, that a mere two remaining grains of sand, sitting sadly side by side, is no longer a heap.