05 May 2010

A Round Tuit (30)

A Round Tuit

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

First Do No Harm T-Shirt

I've always been slightly jealous of my friends in the medical profession who have their Hippocratic Oath to feel smug about. Many people incorrectly attribute the pithy phrase "first, do no harm" ("primum non nocere") to that Oath, but in fact, Hippocrates was kind of a jerk and encouraged his followers to harm anyone and everyone they could. Or perhaps that was Hypocrites; I can never keep them straight.

As far as I can recall, the legal profession has nothing like "primum non nocere" to guide it; we might, mixed-in amongst all that Latin crap listed in the backs of our copies of Black's Law Dictionary, but I can't be bothered to check right now. This Round Tuit post doesn't write itself, people, and time's a wastin'. Regardless, if no phrase existed before, one could probably find something to guide the profession in the ongoing discussion in the legal blogosphere over the past couple of weeks concerning the implications of ineffective assistance of counsel.

Mark Bennett began things with a discussion of legal malpractice in Texas. Long story short, officially there isn't much; unofficially, there's more than enough and Bennett wrote about the need to acknowledge and correct errors:
Criminal defense lawyers in Texas are all but immune from liability for malpractice. In Peeler v. Hughes and Luce the Texas Supreme Court held that a convicted defendant’s crime is the sole proximate cause of any injury he suffers as a result of the prosecution; in order to sue a criminal defense lawyer for negligence, he has to reopen the case and win.


Most of us in Texas are judgment-proof, so we don’t need insurance to protect us against an improbable judgment. But what if you look at malpractice insurance as protecting the clients, rather than the lawyer?

“All but immune” is not “immune.” Lawyers make mistakes that hurt people. Even—no, especially lawyers who think they don’t. There have been cases, and will be more, in which convicted defendants have been exonerated. There have been and will be cases—perhaps like that of Brisby Brown, described in Rick Casey’s Chronicle column yesterday—in which innocent defendants have suffered jail time because of their lawyers’ negligence.

If you consider the criminal defense lawyer’s responsibility not to harm his clients, and to mitigate the harm if he does, then malpractice insurance takes on a new light. It’s right that, in the unlikely even that we make mistakes for which we are liable, we should have the ability to compensate those we’ve harmed.
In another post, Bennett continued his discussion of the Peeler decision and its consequences for the criminal defense bar:
The criminal defense lawyer’s job doesn’t end when a client is convicted. Getting the client the lightest possible sentence is part of the job too. It is no less unjust for a factually-guilty person to be punished too severely than for an innocent person to be convicted.

The aim of the legal system—civil and criminal—when someone is sentenced to more time through the fault of his lawyer should be to reduce that person’s sentence, rather than to compensate him for it. Getting lawyers to help fix their own mistakes should take priority over getting them to pay up.

A rule that encourages lawyers who make mistakes that harm their clients to come clean is preferable to one that encourages them to stonewall. Allowing clients to sue lawyers because their sentences are too long encourages lawyers to stonewall. As the law stands, even with no practical sanction, too many criminal defense lawyers treat an ineffective-assistance claim as a personal affront; better lawyers treat it as one last opportunity to help the client get free. Add a financial penalty, though, and it’ll be only the rare (or well-insured) lawyer who tries to help his client get his sentence reduced.

So the rule that a person who hasn’t been acquitted can’t sue his lawyer for negligence, even if that negligence resulted in a lengthier sentence, benefits not only the criminal defense bar but also—and maybe more so—the wrongfully sentenced.
Scott Greenfield agreed that candor about mistakes is critical:
The problem is largely one of our own creation. Not only do lawyers too often fail to perform satisfactorily, engage in the diligent effort to represent their clients by either "ordinary injustice" or a deeper concern for the fee than the work, but then hide from the outcome of these failures. Not every lawyer by any stretch, and not in every case. But it happens, and it happens far more than it should.


The mistake is a problem, but not the most significant problem. The one that undermines our integrity, and gives rise to Rick Casey's complaint, is our inability to admit our error and correct it. Rather than concede error, lawyers try to bury it. The deniers and apologists will proclaim that this doesn't happen, that we're just the most wonderful thing since sliced bread. Other lawyers will applaud them for being so bold. We love it when our peers back us up in our failures. I'm okay. You're okay. Be happy. No worries. Nobody is every bad, or wrong, or stupid, or screws up, as long as you will love me for supporting you.

Tell it to the guy sitting in a prison cell because you blew it. No doubt he'll care deeply about not hurting your feelings. It's probably the most important thing in his life, the one he spends in prison because you screwed up. But as long as some relatively anonymous 12 year old on twitter tells you that you're the cat's meow, everything is just hunky-dory. Your mistake doesn't go away because somebody you don't know twits that she thinks you did just fine.


The answer isn't disclosing whether we possess malpractice insurance. The answer is being a real criminal defense lawyer, warts and all, rather than just pretending to be one for the benefit of being part of the gang. Do the hard work that minimizes the potential for mistakes. But when a screw-up happens, as it invariably will, make it right.
Jamison Koehler led by example and described an incident from his own past as a public defender. Gideon reminded that attorneys have a professional obligation to not only make our own mistakes right but to hold others to that standard:
Ineffective assistance of counsel is a sort of “dirty” phrase in the criminal defense world. It is viewed by many as a personal attack and is met with scorn, anger and derision directed toward those who practice in the post-conviction arena. That this view is prevalent among the bar is alarming. It belies a fundamental misunderstanding of the duties and responsibilities of the defense lawyer in the criminal justice system.

IAC claims are not a taint on your reputation nor is it an indictment of your abilities. It is a recognition of the simple fact that we are all working within a juggernaut of a system that from time to time overwhelms even the best of us.


Why does IAC evoke such polarized reactions among us? Are we that sensitive? Or is it because we view ourselves as separate and distinct from our clients? Do we believe that the players in the criminal justice system are the State, the judge, the defendant and the defense lawyer? If so, that is a terribly misbegotten view.

This may be getting repetitive, but it cannot be said enough that in order to truly serve our clients we must view ourselves as nothing but an extension of the individual client. We must be the client, at every moment that we represent them. We – criminal defense lawyers – are not parties to a criminal case. The client is. We are his representative. We must, at all times, remember that and act like it.
Gideon continued, issuing a call to arms as persuasive as any I've read:
If this is to change, if we are to truly care about the people that are processed like cogs on an assembly line, then the first step is to view ourselves not as entities distinct and separate from the people we represent, but as a manifestation of them. An incarnation, if you will.

If the conviction of the client is a conviction of the lawyer; if the days spent in jail by the client are days that the lawyer will have to also suffer, then and only then will the interests align. To be sure, there are few who already possess this view. The vast majority do not. To them, the attempt by the convicted client to shave a few years off his sentence, because of something the lawyer missed (or not), or the attempt to seek a new trial or to withdraw the plea of guilty are nothing more and nothing less than personal insults that impugn the reputation of the lawyer who goshdarnit did his best for the cretin that happened to walk through his door.

Us and them. While this divide exists, we cannot truly be counselor and representatives of our clients. We cannot change the system that views “them” differently. We cannot fulfill our duties and responsibilities to ensure that our clients’ rights are paid more than lip service.

This doesn’t happen overnight, there will be no sudden realization. It takes small steps. One lawyer here, one lawyer there who refuses to laugh along with the crowd at the ridicule of the defendant. Two lawyers who recognize the importance and value of The Great Writ, who have the courage to admit their errors even where they may be negligible. To realize that they have the comfort of going to their own homes at night, while the client will suffer in isolation. Whether this be by letting go of our egos as Scott writes or some sort of penalty as Mark considers and rejects or a change in the jurisprudence, it must be done for the sake of the client.
Mirriam Seddiq also touched upon the "us and them" mentality, cautioning that we need to move past it to fulfill our professional obligations:
We've all made mistakes. We've been naive or caught off guard, gotten that deer in headlights look while we quickly reach for our evidence books to find out why something we desperately need our witness to say isn't hearsay. But we've come to expect so little from our brothers and sisters on this side of the aisle that we look the other way and make excuses in the face of clearly deficient representation.


Public defender, court appointed, private counsel - we are all in this fight together, but we're not the thin blue line. Let the light shine in.
Rick Horowitz wrote a very thoughtful post praising public defenders generally but cautioning that diminishing resources vastly increase the probability of professional malpractice:
[T]here is a real dilemma developing in our county, our state, and our nation when it comes to Public Defenders. The budget crunch means that many Public Defenders — who have always been overworked and under-appreciated — are being worked to the point where they cannot effectively do their jobs.


Sometimes clients who clearly cannot afford a private attorney (not me, or any other good private attorney) sob, weep, and even become hysterical at the thought that they’re “going to get stuck with a Public Defender.” I usually explain to them what I’ve said above. Public Defenders exist for just these sorts of people and 99% of the time, they do just fine. Lately, as I’ve seen budget cuts hack the Public Defender’s Office to the bone, I’m not so sure I can honestly say that anymore.


More importantly, as the noose tightens around Public Defender budgets around the nation, we should remember that even the bestest lawyer in the world, once he or she becomes one of the busiest, is bound to end up doing a bad job for some (if not all) of their clients.

We must speak up against anything that causes clients to get anything less than what they deserve: our best defense.

Girl with Harvard T-Shirt

Hundreds of years ago, if you acted like the village idiot, only those in your village knew. Then Gutenberg invented the printing press and if someone in your village had access to one, your gaffe might make it a few villages over and, if you were truly unfortunate, be preserved for as long as the paper held up. Once more modern technologies like the telegraph and telephone were invented, staggering acts of idiocy and lesser acts (to the extent committed within earshot of a motivated correspondent) could be widely-shared, reported, re-reported, and embellished for mass entertainment. In simpler times, people had bad days; in modern times, they became cautionary tales.

The internet, the greatest enabler of human interaction and communication yet conceived, enables thousands of complete strangers to share in your worst moments, instantaneously and at great distances. Blogging gives anyone the ability to create a record of those moments. Search technologies preserve its accessibility indefinitely. We are now a global village and village idiocy is thus global as well, as demonstrated this week by the tale of a third-year Harvard Law student.

Kashmir Hill reported the story and updated her initial reports as it developed. In a nutshell, the facts are these: the student dined with two friends and during their dinner, they discussed (amongst other matters, presumably) whether innate intelligence has a genetic (meaning in this context racial) component. The student thought that she had "misstated her position" and that some clarification or continuation of her dinner remarks was necessary and she sent a lengthy e-mail to her friends; that message read in part:
I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent. I could also obviously be convinced that by controlling for the right variables, we would see that they are, in fact, as intelligent as white people under the same circumstances. The fact is, some things are genetic. African Americans tend to have darker skin. Irish people are more likely to have red hair. (Now on to the more controversial:) Women tend to perform less well in math due at least in part to prenatal levels of testosterone, which also account for variations in mathematics performance within genders. This suggests to me that some part of intelligence is genetic, just like identical twins raised apart tend to have very similar IQs and just like I think my babies will be geniuses and beautiful individuals whether I raise them or give them to an orphanage in Nigeria. I don’t think it is that controversial of an opinion to say I think it is at least possible that African Americans are less intelligent on a genetic level, and I didn’t mean to shy away from that opinion at dinner.


In conclusion, I think it is bad science to disagree with a conclusion in your heart, and then try (unsuccessfully, so far at least) to find data that will confirm what you want to be true. Everyone wants someone to take 100 white infants and 100 African American ones and raise them in Disney utopia and prove once and for all that we are all equal on every dimension, or at least the really important ones like intelligence. I am merely not 100% convinced that this is the case.
Concluding her e-mail with a reference to a former Harvard president whose remarks concerning women's aptitude for the sciences was widely spread and condemned, the student, "Steph", asked her friends not to "pull a Larry Summers on me". Neither did at that time, but months later, after a quarrel during which she threatened to "ruin" the student's life, one of the (now former) friends, "Yelena", retrieved that e-mail and sent it to several recipients; it was eventually forwarded to an unofficial listserv associated with the Harvard Black Law Students Association, reported far and wide, and sent to the influential Above the Law blog. Hilarity ensued.

In reporting the weeklong firestorm over the racist (or at least racially insensitive) e-mail, David Lat emphasized that:
It appears that Yelena did this out of a personal vendetta, not because she was upset by its content.... We understand that Yelena was actually pleased by the attacks heaped upon Steph for the email, at least initially. (Query whether at some point Yelena started to regret her actions.)

It’s clear, however, that Yelena didn’t dredge up and disseminate the email due to outrage at its contents. As far as we know, Yelena sat on Steph’s email for over five months before spreading it around — behavior not consistent with a sense of anger. In addition, Yelena has written online opinion pieces condemning “oversensitivity” on matters related to race, and attacking affirmative action in college admissions as a form of “racism.” So Yelena hardly seems like a crusader for either racial justice or political correctness (depending on your point of view).
Mike Rappaport also singled out Yelena's calculating and cynical actions, suggesting that she "abused the system", and he condemned Harvard's dean for participating in that abuse with her comments on the matter:
The author did not intend her e mail to be made public. Thus, the hurt and harm that the Dean focused upon were not the intent of the author. Rather, they were caused by the recipient.

We also know that the recipient has "used" the Dean and the Harvard Black Law Students Association to further her private dispute with the author. Finally, we know that the recipient released the e mail in breach of a trust with a fellow student or friend. The recipient knew that the author would not have sent the email if it was going to be disclosed. The recipient breached that friendship and confidentiality to pursue a private grievance.

If the Dean was going to speak about this case, then she should not have ignored this part of the incident. She should have criticized the recipient for causing this harm to the public and for breaching a trust as part of a private grievance.

But the Dean ignored all of this. I suppose it was not part of the "narrative." The personal is not political, except if it is necessary to make a political point. The perpetrator of the e mail could not herself have been a victim. To discuss this part would have made clear that the Dean was being used. And that the Dean was concerned about "evil thoughts" rather than wrongful actions.
Orin Kerr had one of the more measured comments on the matter this week; he advised us not to judge Steph on the basis of a single personal e-mail:
I think we should be cautious about judging a person in that setting. It doesn’t mean we shouldn’t do it at all, of course. But I think it does counsel caution. Especially so when we’re trying to construe statements that could be read in different ways based on the context.


Whatever you think of the e-mail as a whole, I think it’s only fair to recognize that the intended message of that controversial statement hinges in considerable part on the conversation that came before it. That conversation was the context. But none of us were there except for the sender and the initial recipient. Given that, perhaps a little caution is warranted before judging a person based on one single forwarded e-mail.
I tend to agree that some benefit of the doubt should be afforded to Steph (though I think her e-mail reveals more about her than does Kerr); nonetheless, in this matter, I think that it is possible to judge the character — including the professional character — of someone based on the events in this week's controversy. That person isn't Steph, the author of the e-mail, but Yelena, the former friend who used the private message months after receiving it, for her own gain and to retaliate for a perceived slight.

We often discuss the professional obligations attorneys have to respect confidences, refrain from vindictive and punitive behaviors, and to maintain a high standard of personal integrity at all times, and Yelena clearly falls short of the mark. Yes, this arises from a personal exchange and a personal quarrel, but it speaks volumes about her personal character; where as here she's close to graduation from one of this nation's leading law schools and about to enter the profession, I don't think it's unfair to suggest that it speaks to her suitability to be a member of the bar.

Elie Mystal thought that the actions of — or, more properly, the absence of action from — the Harvard Black Law Students Association reflected badly on them:
Few things embarrass me like the Harvard Black Law Students Association. It could be the most credible foil to systemic racism against black law students. It has instead become a convenient tool to be used by those who wish to ignore the racial tensions in our system of legal education.

Don’t believe me? Earlier this week, we learned that a sole white kid called blacks genetically dumber than whites, and Harvard BLSA backed down — stepped and fetched, if you will — in the face of one solitary white person. It’s not the first time (we’ll get to the tragically impotent reaction to Kiwi Camara later). But at a point when the entire law school world would have at least considered what Harvard BLSA had to say, the organization sought to cover their own ass in the media, instead of standing up on the behalf of maligned black law students everywhere.

I cannot and do not wish to speak for all black law students and lawyers. But when confronted with abject racism, I can find the courage to speak for myself. I believe that gives me more balls than BLSA…
Shortly after that post, the HBLSA did issue a statement which was thoughtful and measured; Mystal called it "a pitch-perfect assessment" but nonetheless chastised them for their efforts to avoid commenting on a matter which touched on issues so central to the group's purposes:
I am more than a little surprised that BLSA is so aggressively trying to not be a part of this debate. From a certain point of view, this controversy is an opportunity for HBLSA to engage and expose the “soft racism” of what some white people say when they think people of color are not listening. Right now — based on our traffic numbers, and the way this story has been discussed in the mainstream media — the entire law school world is watching. Seems like a perfect time to say … something.

That’s not just my opinion. It appears that, at least initially, HBLSA recognized that there was a way to turn this sad email into a teachable moment. From the BLSA open letter:
Harvard BLSA recognizes the opportunity – After learning of this disappointing email and before this incident ever went viral, the outgoing and incoming HBLSA Presidents immediately sent an email to our members calling for a “well thought-out and strategic” response. We began brainstorming and soliciting ideas from our members to determine the best way to seize this opportunity. We called for strategies that would promote constructive dialogue and meaningful solutions, not those that would merely serve to further inflame racial prejudices. Moreover, we foresaw that sensationalized blogging would be reactive and counterproductive.
Further inflame racial prejudices? One of your white classmates said that “I think it is at least possible that African Americans are less intelligent on a genetic level,” and then that email was forwarded around the entire school (and beyond). I think racial prejudices are pretty much erupting on a Mount Eyjafjallajokull level at that point. You can’t sensationalize something that already goes all the way up to 11.
Though she apologized for her private remarks, Steph's identity was outed by a gossip blog, which glibly wished her "happy trails" (Above the Law had taken pains to that point to keep her identity out of their reports). Kashmir Hill aptly summed things up:
We won’t say her life is ruined, but it’s certainly not been a good week. People have emailed the judge she’s rumored to be clerking for. She has issued an apology. And the Harvard Law School dean has issued a statement, distancing the school from [Steph's] views. And hell, it’s finals time.
David Lat noted that the three editors at Above the Law (those three being himself, Elie Mystal, and Kashmir Hill) had "rather divergent views on this episode". He described his concern that some considered Steph's remarks about African-Americans' relative intelligence to be not just ill-advised but completely off-limits in an academic setting like Harvard:
In an academic setting, it should be possible to put any proposition on the table for debate. No position should lie beyond the pale. Some — in fact, many — such positions will be stupid or wrong. But we should be able to debate all issues rationally, vigorously and openly, without having to worry about offending anyone.


Why did I want to put “racist” in scare-quotes? First, I wasn’t sure the email was actually “racist.”


Second, in an academic environment, it’s not helpful to respond to ideas — even bad ones — by throwing around “-ist” labels: e.g., racist, sexist, Fascist. Instead of calling your opponents names, like “racist” or “sexist” or “homophobe,” you should respond to arguments you don’t like with better arguments, accompanied by evidence.

Rational debate. Isn’t that what free speech and academic discourse — and, incidentally, the practice of law — are all about?
Eugene Volokh shared Lat's concern that treatment of certain topics as academic taboo elevated sensitivity and faith over scientific inquiry and rational debate:
Whether there are genetic differences among racial and ethnic groups in intelligence is a question of scientific fact. Either there are, or there aren’t (or, more precisely, either there are such differences under some plausible definitions of the relevant groups and of intelligence, or there aren’t). The question is not the moral question about what we should do about those differences, if they exist. It’s not a question about what we would like the facts to be. The facts are what they are, whether we like them or not.


That’s why it seems to me that the author’s statement that “I absolutely do not rule out the possibility that African Americans are, on average, genetically predisposed to be less intelligent” — or a similar statement, as I suggested, about Jews, or whites, or the irreligious — is perfectly proper, and in fact is the way that people should approach scientific questions of all sort.


[S]ome might just argue that even the openness to the possibility that there may be racial differences in intelligence will offend people, and that the author should have recognized that the e-mail she sent to a couple of people might be forwarded to others who might be offended.

But this presupposes that it’s somehow wrong for people in a free country to discuss scientific questions because of the possibility that some people might learn about that and be offended. That can’t be right.

It especially can’t be right for students at a research university. But I think that it can’t be right for anyone anywhere. I realize that in the real world there might be bad consequences to speakers who offend others, however legitimate the speaker’s position — which, I stress again, is a position of openness to scientific evidence — might be. But we should work against that phenomenon, and its tendency to suppress honest discussion about scientific questions. We should not just give in to it as inevitable and, worse still, somehow right.
In a follow-on post, Volokh argued that the invalidity of the e-mail's contentions or, indeed, any other controversial topic could only be satisfactorily proved through free and open inquiry:
[T]he very attempt to suppress the openness to the possibility that there might be racial differences will make it impossible to disprove that possibility. Even if then the scientific community loudly says, “The evidence is clear: There are no racial differences in intelligence,” that statement should no longer be credible to us. Scientific consensus is trustworthy only to the extent that it’s the result of a process in which scientists — and others — are free to espouse all rival views. To the extent that espousing some views is too dangerous, the consensus that then emerges without the expression and discussion of those views stops being reliable.

So if you hope — as I do — that there are no racial differences in intelligence, and want to be able to reach that conclusion at some point with confidence based on science, not faith, you should be defending people who express an openness to the alternative scientific claim (that there are racial differences). It is only through such openness, and through allowing people to defend that claim, that the position that you hope is true can actually be demonstrated to be true.
David Bernstein suggested that there should be no taboos in academic discussion in part because the labeling of certain subjects as taboo is inherently political, not scientific or academic: "[W]hat’s taboo on elite American campuses is ideas and actions that many people find offensive, but only if those ideas and actions happen to conflict with the felt commitments of left-wing ideology." Orin Kerr agreed that academic taboos are inescapably problematic, but advised that inflammatory subjects be discussed only with elevated sensitivity to and awareness of their history:
After an argument is used in a particular way for a few centuries, that argument is going to be heard by many others in light of its past. Sure, some listeners will hear the argument on its own terms without any historical baggage. And I assume that’s the way you’ll intend it. But others will assume that you’re well-versed in the history. If you make the argument without any caveats, those listeners may wonder if (or even assume that) you share the racist beliefs of the people who made that same argument in the past.

Let me be clear: That doesn’t mean the entire topic is taboo. And it doesn’t mean that you shouldn’t express any opinion on the topic at all if it comes up. But it does mean that you should recognize that the argument has a racist history, and that you need to go out of your way to establish your good faith and distance yourself from that racist history. So make the argument, or ask the questions, if you like. But just recognize that the history of that particular issue will create a lot of suspicions about your motives unless you make a clear and sustained effort to show others that you recognize that history and condemn it.
Volokh replied that unless we are willing to allow for more leeway, not less, on historically controversial subjects, a "proceed only with extreme caution" approach will tend toward a chilling of discussion, if not complete silence on such subjects:
First, I’m not sure that — especially on this topic — they will give the speaker that much protection. Maybe I’m mistaken, but my sense of some of the reaction is that even the most carefully (but honestly) expressed suggestion that one is open to the possibility of genetic race-based differences in intelligence would be very risky to one’s career. And that is even more so if one actually wants to explain why one thinks — whether or not such thoughts ultimately prove correct — that there is evidence supporting that position.

Second, and as important, this incident suggests that Orin’s advice, to be effective, requires a level of constant watchfulness that many people might find hard to muster.


[I]f the consequences of an occasional slip were an occasional raised eyebrow, or quiet reprimand, or personal insult that requires a personal apology — as they generally are with most occasional departures from tact, caution, and good judgment — there would be little to say about that. But when the consequences of one little slip are an institution-wide airing of the slip, a public condemnation from the Dean, a national news story, the danger of possible lost jobs for years to come, would a sensible person really say
[I should] make the argument, or ask the questions .... But [I] recognize that the history of that particular issue will create a lot of suspicions about [my] motives[, so I will always] make a clear and sustained effort to show others that you recognize that history and condemn it. It’s not easy .... It requires [constant, unflagging] judgment and tact [even in personal e-mails, representing only small portions of a conversation, to a few people who I thought did not require the caveats]. But [I’m] going to be a Harvard Law student, and I’m sure [I’m] up to it.
Or would the sensible person realize that the risk of inadvertent error on this subject — and perhaps other similarly dangerous subjects, bearing on race, religion gender, sexual orientation, and the like — is so great that it’s better just to avoid the matter when possible, and (if the issue does come up) to pretend to embrace the safe position regardless of whether one has doubts about that position?
Brian Leiter was dismissive of the nuanced approach debated at The Volokh Conspiracy; he characterized this week's debate as "not... a shining moment for the right-wing Volokh blog". Writing at the True/Slant blog rather than Above the Law, Elie Mystal was considerably more blunt about those who would raise or defend views like those expressed by the Harvard student's e-mail. Mystal wrote that intellectualism has been used here as merely a cover for racist demagoguery:
[I]t’s impolite to openly espouse racist beliefs. And so society has provided a new, hi-tech method of expressing these thoughts, while still giving people the cover they need in order to function in society: the question.


I’m not even going to begin to get into the substance of this question. You can’t academically debate a question where every single premise is flawed and poorly (or flat out incorrectly) defined. If you really think that it is “possible” that African-Americans are less intelligent on a genetic level than any other race, I sincerely urge you to help yourself to a science book. Please come up with working definitions of “intelligence,” “genetics,” and the difference between “red hair,” red herrings, and human intellectual capacity. Then tell me who the hell you’re talking about when you say African-Americans. I’ll not waste my time arguing with people who won’t even put forth the effort to understand basic evolutionary biology, yet want me to take a CAT Scan to satisfy their curiosity.


In an Above the Law poll, 57% of respondents said that the initial email was not racist.

It’s disappointing that so many people think it’s possible that something as basic as human intellectual capacity can be influenced by something as fleeting as skin color. It’s disappointing that so many people want to believe it’s a fair question for academic inquiry. It’s disappointing that so many people are waiting for science to prove a negative, and simply won’t “rule anything out” until it does.

The fact that all men are created equal is not debatable, it is “self-evident.” To formulate the question in your mind, you have to be open to the possibility that an entire race of humans might just be intellectually inferior to an entire other race of humans. We have a word for people who think it is even possible for one race to be inferior to another.


Thanks to deductive logic, I don’t need to know everything about gravity or everything about physics or everything about how the brain works to know that the human brain cannot make me fly. I can dismiss the possibility outright. Some questions are just dumb.

It’s the height of intellectual laziness to throw out a poorly conceived, stupid question and yet hide under the apron strings of “honest debate” when somebody tells you that the premise of your question is flawed and offensive. At the Harvard I went to, intellectualism wasn’t something we were taught to hide behind. Debate was not the appropriate forum to expose ignorance. Every student that has ever gotten into Harvard has learned the value of homework. You came to class, prepared, or you kept your mouth shut when adults were talking. This ridiculous universe where even questions from the slow witted and lazy are respected under the guise of academic debate doesn’t exist.

It pains me to see so many people trying to twist the free exchange of academic ideas into something that supports not-so-thinly veiled racism. Universities are supposed to be places where people learn to overcome the nascent prejudiced beliefs that they harbor without an iota of hard evidence. Not places where people are rewarded for couching racist beliefs in the language of academia. “Are black people intellectually inferior, genetically, to white people” is not an open scientific question, it’s a competing (and wrong) theory of reality. A reality which presupposes that: A) there could be a subclass of humans living among us, B) I could be one of them, C) As long as we don’t stop people from “asking tough questions,” science may one day “prove” that I’m subhuman.

Is there anything more racist than that?
I tend to agree with Mystal that there are some "questions" which can be asked only to provoke or demonize, not to honestly debate and explore. It's unfortunate that this is so, but it is so nonetheless. Some are simply stupid, such as modern-day claims that the Earth is flat; some, such as Holocaust denialism, are simply wrong and further inquiry is inherently dishonest; some are inescapably dangerous, as would be a theory that promoted sexual contact with children (like ancient Greek pederasty) as beneficial to those children and to society generally. I suspect that, considering our nation's history, attributing innate intelligence (at least in part) to immutable racial characteristics has aspects of all three — such arguments have been bolstered by manipulated "science" to diminish and exclude non-whites too often in America to make academic debate of it now something benign. Even if racial intelligence theories are not over the line, these are so close as to make little difference.

Orin Kerr might be right that sensible, cautious people can discuss such a charged subject rationally and productively; Eugene Volokh might be right that it's important that such inflammatory topics be studied to finally put them beyond the realm of debate. I don't agree, but I'll allow for the possibility. Regardless, if debate is possible and productive, it's not possible and productive here and now by us. To cite another example, if Holocaust and Nazi revisionism is a legitimate topic for inquiry, Germany is not the place to do it and the Germans aren't the best ones to lead the study. Our history is too damning and our institutions too political to honestly consider matters like the relative intelligence of various races or, frankly, many other racial topics. Perhaps these matters deserve some thought and study, but elsewhere and by others.

My conclusions in this don't bring me much comfort; frankly, I find it very unsettling to realize that whatever unknowns exist in this area are best left unknown and unexplored by us. Perhaps the passage of time will change things; I think that considerable strides have been made over the past few decades and each generation is more enlightened than the last. Nonetheless, when enough time has passed, we'll probably realize and accept that only some longer time thereafter. I suppose we can call that extra time a penalty our past misdeeds have imposed upon us, but our history in matters of race makes us uniquely ill-suited to honestly debate matters of race; by accepting this relatively limited taboo area in academia, I think we'll better preserve other topics for honest, principled debate.
Odds n Ends Shop

A little knowledge is a dangerous thing. Never is that adage more true than when it's applied to a law student. As youngsters flushed with a likely-wrongheaded grasp of a few basic legal concepts, it takes a few encounters with the unenlightened general public to remind us that the world doesn't always operate strictly in accordance with the law and you beclown yourself when you explain to them how they're doing things all wrong. Recently, I read about someone who discovered that every cartoon in the New Yorker caption contest can plausibly carry the punchline "Christ, what an asshole"; it works doubly-well as an observation about most law student pronouncements.

Case in point: law student David's gripping tale of his latest run-in with his local constabulary. It seems that these Keystone Kops' ignorance of the details of Michigan Compiled Laws (MCL) 257.709(3)(d), pertaining to car window tinting, is simply dismaying. Well, David knows his rights, he's mad as hell, and he's not going to take it any more. Read it in its entirety... out loud and using different voices for each character. I suggest a William Shatner voice for the cop — channel your inner T.J. Hooker. Reflecting on his brush with the law, David concluded:
A traffic stop is an investigatory detention that must be supported by reasonable suspicion to be lawful. Reasonable suspicion is an objectively justifiable suspicion based on specific facts or circumstances that would cause a reasonable officer to believe a person has been, is, or is about to be engaged in criminal activity. There are only two possibilities in this case:

A) Officer is incompetent, poorly trained, and un-knowledgeable about the basic aspects of his patrol job because didn't know that the window tint statute does not apply non-Michigan registered vehicles and that the common type of spotlight on my vehicle are specifically authorized.


B) The second option is that Officer pulled me over without valid reasonable suspicion, knew he didn't have reasonable suspicion to justify the detention, and just assumed that I wouldn't know.
Christ, what an asshole. (See how well that works?)

Jeff Gamso offered a bit of friendly advice to this aspiring criminal defense lawyer:
David understands two things. First, he does not have a legal obligation to converse with the cops. Second, if he has not violated the law, then any officer who thinks he has is (a) a fool and (b) acting illegally. The first is true. You don't have to chat with the cops, and for the most part it's spectacularly good advice not to. The second is somewhere between wrong and really really really wrong.


Don't be an asshole. Some battles aren't worth fighting. One of the tricks to representing your clients effectively is knowing what's appropriate to argue about and what isn't. There are times to stand up, times to fight tooth and nail, to assert every right and rule and principle. And there are times to say, "That one doesn't matter here. All it will do is piss off the judge or the prosecutor or the cop; it doesn't preserve anything, doesn't accomplish anything." You don't get extra points for being right. You lose points for being obnoxious about it.

But David, and I say this with all due respect because we were all young and stupid once, when the cop says, "Good afternoon," it's both polite and wise to respond "Good afternoon, officer." You don't have to. The only offense for not doing it is Contempt of Cop. You won't find it in the Motor Vehicle Code or the Penal Code, so that won't be the charge. But it will happen. And it will likely be accompanied by a whole lot of bruises, maybe some broken bones, maybe permanent injury. And felony charges.

But gee, you'll have been right.
Mike Cernovich and Norm Pattis understand this; their encounter with cops ignorant of matters more consequential than Michigan's window tinting laws went more smoothly:
[R]esistance is futile.

We could have been dicks. After all, the cop was. What would that have gotten us?

We'd have been detained at the scene. We'd have been forced to exit the vehicle, standing out in sub-zero weather. The police would radio for backup, and we'd wait until someone logical came on the scene. Eventually we'd have been let go.

That's the best case.

Worst case involves a baton to the head.


There is no legal duty to be nice to police. In truth, one has a First Amendment right to be a prick. While you can't legally yell, "Fire!" in a crowded theater, you can yell, "Fuck the police!"

In reality, you'd be wiser to break the law rather than follow it. Causing a public disturbance ("Fire!") is a misdemeanor diversion plea. Telling a cop to fuck off is going to get you the ass beating of your life - in addition to charges of resisting and obstructing an officer and battery of an officer.


Oh, but what about standing up for the Right Thing? Sure, man, I get that. But a cop's detaining me for no good reason is as much of an injury to my dignity as sitting in traffic.


Get over the petty slights to yourself. There are real people with real suffering out there. If you want to Do the Right Thing, find someone with real problems, and stand up for for him.
Though I'm a great fan of Apple's computers and Mac operating system, I can't say that I'm as enthused about the company's stances on intellectual property protection and their proprietary "walled-garden" approach to their products. Cathy Gellis discussed Apple's rejection of the widely-used, but proprietary, Adobe Flash technology:
Linguistically the French language is actually pretty flexible. But officially it is not: l'Academie Francaise tightly controls the vocabulary and grammar the French language can officially be seen to incorporate. In this sense it's a fairly proprietary language, not openly extensible by its users. Thus it often makes sense to use languages other than French, like English, which is more open and adaptable by its users.

But that doesn't mean there's never any place for French. There are certain concepts that are simply better conveyed, if not also exclusively capable of being conveyed, by the French language.


Just as the choice of a spoken language can transcend the basic gist of its words, the choice of a programming language is about more than the basic functionality of the resulting program. Which is why a ban on Flash is as equally problematic as a ban on spoken languages. It may be true that much of the basic functionality offered by Flash can also be offered by HTML5, which Apple is pushing as a substitute. It may even be that for many purposes HTML5 is even better. But to the extent that these development mediums are not the same (e.g., their outputs are different, their development environments are different, their programmers have varying fluency in each…) the consequence of suppressing one is that the kinds of expressions uniquely suited to it will also be suppressed.
From French and the Flash technology, I'll turn to Paris and gadgetry — namely, Dan Hull's discussion at What About Paris? of the place of technology in practice:
If e-tools and e-gadgets allow you to do better problem-solving, that may be because they help "open up" and expose the problem you are working on. In other words, the tools--from multiple regression analysis programs to WestlawNext and Lexis to Google Scholar and more--may reveal a different problem: more nuanced and complex, deeper, even bigger.

Now solving the problem will take more time than if you hadn't used them in the first place. There is more of, in and to your problem to sift through and analyze--but you are much, much better off. Good news: you have a bigger and better picture. Those e-tools work great. The bad news: there is more work to do.

That vast arsenal of Digital Tools. They just made your problem a lot fancier--but easier to fathom, and way more clear, even elegantly clear. Now start using your brain (and your e-tools, too) on the problem again. But don't tell us you were done the first time through. You're weren't.

So e-tools don't make you (a) smarter or (b) faster. Neither. And maybe just the opposite....


Get over yourself. You're probably dropping the ball with Tech. (We all are.) No matter who you are, Tech poses lots of problems--sometimes very different ones--for people of all professions, ages and cultures.
Criminal defense is a difficult endeavor; when the evidence is stacked against one's client, the law is unforgiving. Even when there is no evidence against one's client, the law can be unforgiving. In the latter instance, "justice" seems an even more hollow a concept than it usually does. Norm Pattis shared "a sobering rejection" with us this week, in the wake of an adverse verdict:
On the theory that a lawyer is only as good as his last verdict, I am not very good at all.


I tried a good case. I know I did. And there is nothing more I could have done for my client. But still the sense of failure weighs heavily on me. I look at this case and wonder whether I would ever consent to babysit an eight-year-old child, or otherwise be left alone with a child. And the answer is simple: I would want a witness. It is too easy for a child to see Santa one moment and wicked uncle Ernie the next. Jurors apparently feel obliged to take any utterance from the mouth of a babe and rely upon it.

So I failed my client. He was convicted. He proclaims still his innocence. But to six jurors and now a world of strangers who will never know him, he is a child molester. But I wonder, really, whether it should be so simple to reach these devastating judgments on such flimsy evidence. I wonder whether the truth was not crucified in this trial. I wonder, and I retreat into a place of silent recrimination as I prepare for the next such trial.
Brian Tannebaum has also learned the hard lessons of criminal defense in his fifteen years of practice; he offered those lessons and some easier ones to us in a post which deserves to be printed and saved by all of us in legal practice. Whereas some of us are on pace to learn four worthwhile things in a career, Tannebaum has averaged four per year — sixty lessons in all. To select one does an injustice to the others, but one in particular struck a chord with me: "Anyone who advocates for a client and does it well is a lawyer deserving of respect." I wish I'd written that. Congratulations, Mr. Tannebaum, from another lawyer from the class of 1995. I'm looking forward to sixty more lessons from you in 2025.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., zazzle.com, A Photographer in Paris, and Paris Odds n Ends Thrift Store.


Holden Oliver said...

Thank you, Colin. And greetings from Austria--where no one can ever sport-jaywalk. I am forwarding to Dan, who's traveling. What a thoughtful and well-organized tome you did. A few fine writers out there. Even Greenfield has some good runs this week; so WAC/P?'s coaching has helped him. It's very satisfying. Almost like sponsoring someone in a 12-step program. We feel Warm. Fuzzy. And much closer to God.

Unknown said...

Thanks for the kind words. I didn't realize that Dan had taken on the daunting role of Greenfield's life coach. I will no longer envy Hull's glamorous, jet-setting lifestyle now that I know its terrible price. This explains his comment about "that accursed monkey's paw" the last time we spoke.

My Law License said...

Thanks for recognizing my post marking 15 years of practice. I am overwhelmed by the response, particularly the desire of some to print it out and save it. I have always believed the only value a person really has is the ability to influence one other person on this planet. I hope I have done that.