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.  

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.

What’s going on with the Supreme Court?

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.  

A response to Brian Leiter: First, don’t kill all the law reviews

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. 

Miranda: Custody within 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”?

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?

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.

Keep your hands off the 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.

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 Don’t Overeat Bowl, which will be played next year after the PoppaJohns.com Bowl and before the Kraft Fight Hunger Bowl.  The Don’t 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. 

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.