Those damn French

According to Wikipedia, the metric system is an internationally agreed decimal system of measurement that was originally based on the mètre des Archives and the kilogramme des Archives introduced by France in 1799. And that brings me to the Sentencing Guidelines.

When it comes to drugs, the Sentencing Guidelines punish offenders using drug quantity as a proxy for culpability. In doing so, the question of “how much” relies upon the metric system instead of the good old English system of customary units (like pounds). We (the drug dealers and I) have been confused ever since.

Who knew an eight ball was 3.5 grams?*


*It is true that this has stimulated the American market for gram scales. But that is only good for the Chicoms who have a monopoly on the business of making these handy hand-held devices.

From the litigation list: Steve Schmidt

There are a lot of really good clinical faculty at the law schools throughout this country who also get into the trial courtroom frequently. Today, I highlight one of those persons.

Professor Steve Schmidt

Professor Steve Schmidt

Steven J. Schmidt is an Associate Professor of Law at Nebraska. If memory serves, he received tenure last year. He also holds a courtesy appointment as an Associate Professor of Forensic Science. Professor Schmidt is responsible for the Criminal Clinic.

In the Criminal Clinic 3rd year law students are assigned misdemeanor and low-grade felony matters to consider whether to charge and, if charged, to prosecute. Schmidt supervises the students from start to finish. He participates with the students in their daily criminal court appearances including arraignments, preliminary hearings, bond reviews, docket calls and sentencing proceedings.

He is with the students in bench trials and jury trials. With students, Professor Schmidt regularly conducts jury trials on child abuse, assault, carrying a concealed weapon, resisting arrest, theft, forgery and felony drunk driving cases. His classroom duties include teaching the students the steps of the criminal justice system in Nebraska from charging through sentencing. He also instructs the students on prosecutorial ethics and professionalism.

In addition to his regular teaching duties, Professor Schmidt is also heavily involved in an ongoing project with the National Autonomous University of Mexico (UNAM) and the College of Law. At UNAM, he assists as Mexico transitions its criminal justice system from a mixed inquisitorial to an oral adversarial model. He spends several weeks each semester in Mexico City teaching advocacy skills and working on that project.

Among a long list of other presentations both in the United States and Mexico, in the last year Schmidt has served as Conference Organizer and Presenter, Teaching Oral Trial Skills: Superior Court of Justice, Mexico City, MX – a 5 day workshop and he has served as a Presenter, Teaching Advocacy in an Overseas Environment, Educating Advocates: Teaching Advocacy Skills, at the Stetson University College of Law, Gulfport, FL.

Schmidt received his B.S. degree in 1987 and spent the next eight years as an infantry officer in the United States Marine Corps, receiving various decorations including the Combat Action Ribbon for combat operations during Operation Desert Storm in Kuwait,  He received his M.A. degree in 1994 and his J.D., with distinction, in 1998. From May of 1998 through May of 2006, he worked as a prosecutor in Lincoln, Nebraska. As a Deputy County Attorney, he primarily prosecuted sexual assault and domestic violence cases, but also handled a wide variety of other felony and misdemeanor cases including a murder case.  As a line prosecutor, he tried lots of cases to juries. He joined the faculty at the College of Law in June of 2006.

Schmidt is an active member of the bar. In 2009, he was elected President of the Lincoln Bar Association. He also served as President of the Robert Van Pelt American Inn of Court and that Inn awarded him the Warren K. Urbom Mentoring Award. Nationally, Professor Schmidt presently serves as an “At Large” Trustee of the American Inns of Court.

I conclude with a personal note. Long ago, Professor Schmidt was a student in a course on trial advocacy that I taught. He was my best student. I knew he would become an exceptional trial lawyer. Like many superb trial lawyers, Professor Schmidt has become a great teacher too.




A honest campaign ad for a judge

Thanks the Gods I don’t live in a state where judges are elected. Nebraska uses the Missouri Plan.

I received a video link from Brandon Muller, a guy with a neat sense of humor. Check out the sleeping Brandon/Lion photo on his page.

Anyway, view the attached video. It is funny, except, perhaps, if you live where judges are elected.

Thanks Brandon.


From the litigation list: Mark A. Lemley

From my call for law professors who actually appear in trial courts, one commentator “nominated” Mark A. Lemley, a professor at Stanford. Even the most cursory examination of his law school bio and Curriculum Vitae shows why Lemley stands out.

Mark A. Lemley

Mark A. Lemley

Mark Lemley is the William H. Neukom Professor of Law at Stanford Law School, the Director of the Stanford Program in Law, Science and Technology, and the Director of Stanford’s LLM Program in Law, Science and Technology. He teaches intellectual property, computer and internet law, patent law, and antitrust. He is the author of seven books (most in multiple editions) and 142 articles on these and related subjects, including the two-volume treatise IP and Antitrust. He clerked for Judge Dorothy Nelson on the United States Court of Appeals for the Ninth Circuit

Outside of his teaching duties, Professor Lemley is a founding partner of Durie Tangri LLP. He litigates and counsels clients in all areas of intellectual property, antitrust, and internet law. His clients have included Comcast, Genentech, DISH Network, Google, Grokster, Guidewire, Hummer Winblad, NetFlix, and the University of Colorado Foundation. He has litigated in over 90 cases in his more than two decades as lawyer. He was recognized as one of the top 50 litigators in the country under 45 by the American Lawyer (2007).

Proving that a law professor can be a distinguished scholar and a distinguised trial lawyer, Mark A. Lemley is remarkable. Stanford law students are lucky to have such a “dual threat.”



The litigation list

I am interested in collecting a list of law professors who litigate in the trial courts of this country while also teaching law. I don’t care whether such litigation is civil or criminal in nature. I don’t care whether the litigation takes place in state or federal court. I understand and appreciate that busy law professors only have so much time. As a result, I don’t expect the list to contain law professors who are constantly in our trial courtrooms. But, I do want to know about law professors who try enough cases on a fairly regular basis that one might conclude that they are presently competent to sit at the first chair representing a client before a jury or a trial judge.

So, dear readers, if you would be so kind, send me your “nomination” via a comment, including the details (who, what, when and where) about your favorite litigating law professor. I am solely interested in tenured or tenure track professors, no adjuncts please. Additionally, I am only interested in law professors who litigate while they also teach law. Exclude professors who were once trial lawyers but who no longer spend time in the trial courtroom.

One caveat: Please, please, please, no snark. I honestly have no interest in picking a fight. On the contrary, I am sincerely hoping to recognize and praise law professors who litigate in the many trial courtrooms of our nation while also regularly teaching law. 

I look forward to hearing from you.  Thanks.


The Feds made Christie and Cuomo blink

When the feds leaned and leaned hard on them to dump their over-inclusive, unnecessary and non-science based Ebola quarantine policy, Governors Christie and Cuomo blinked. See, for example, Dylan Scott, The Blundering Rise And Epic Fall Of The Christie-Cuomo Ebola Quarantine,TPM DC (October 27, 2014). Hopefully, other state authorities will take note that the feds will not allow local politicians to violate the Constitutional rights of our citizens to placate the unwarranted fears of some members of the public.


UPDATE: Hansen, Hasen and “My bad,” sorta

There is nothing that upsets law professors more than having their names misspelled.  As he points out, the correct spelling of the Professor’s last name is “Hasen” and not “Hansen.”

The Professor also claims that I “also was wrong about . . . practicing law. I did (and still do).” Come on Rick. You know I didn’t write about signing appellate briefs. I wrote about trial lawyers.  So, perhaps you will tell us how many jury trials you have first chaired, and how many bench trials you first chaired. It would be good too if you gave us the dates and details. That way we could judge whether your views about what is “classy” have ever been tested in the rough and tumble world where you must learn to take a punch.

Hasen also writes, “Nothing like waking up Monday morning to an ad hominem attack by a federal judge.”  Given the Professor’s unprompted post about my lack of “class,” the hypocrisy of claiming to be a victim is something I have come to expect from academics when they are challenged.

But let me not distract the reader from my earlier post.  Who anointed Hasen (or even Hansen) as Ms. Manners and why should anyone care about his perceptions of what is “classy?” Besides, what the hell does “classy” have to do with the substance of what I wrote.

Finally, just this minute, I see that Professor Hasen has written a new piece entitled, Judge Kopf Continues to Make Inappropriate Remarks; Time for Him to Retire.  I have my own thoughts about this piece, but for now I simply urge folks to read it and make their own judgments.


PS I continually refer to Scott Greenfield as “Jeff” but Scott (Jeff) takes it in stride.  I make mistakes like this ’cause I’m old and don’t proof read worth a damn.  So, what’s-his-name ought not feel either special or particularly aggrieved.

Guilty pleasure

Photo credit:  eric molina.  Used pursuant to Creative Commons Attribution 2.0 Generic license. The image has not been altered.

Photo credit: eric molina. Used pursuant to Creative Commons Attribution 2.0 Generic license. The image has not been altered. (There is a possibility that only Scott Greenfield and close followers of Simple Justice will understand the true significance of this photo.)


In my post, The evisceration of Dahlia Lithwick, I referred to Ms.Lithwick as being “very bright.” Among a lot of other things, I also added: ” Lithwick can be a tiresome scold. Taking her down several pegs is a good thing if you care about intellectual rigor and the national legal commentariat.” I “pimped” Scott Greenfield’s incisive critique off Lithwick’s comparison of the Court’s First Amendment jurisprudence to other Constitutional values that she evidently holds more dear.

Rick Hansen Hasen, a law professor and blogger, responded with a post entitled, “Judge Kopf Calls Dahlia Lithwick a ‘Tiresome Scold.‘” Professor Hansen’s Hasen’s first sentence reads this way “Keeping it classy, as usual. (More here.).” Subsequently,  Michelle Olsen ‏@AppellateDaily chimed in, writing, among other things, “To show my cards, I find honest criticism (à la @ScottGreenfield) helpful, rooting for ‘evisceration’ of a ‘scold,” weird.'” In response, Professor Hansen Hasen wrote, “Not just weird, but sexist” and in a second tweet, “But we should expect this from judge who writes about ‘ample chests’ of lawyers arguing before him.”

I confess to taking guilty pleasure in annoying law professors who have never made their living trying cases and who dictate manners to others when a fellow “highbrow” is grilled. Now, I both admit and realize that “guilty pleasure” is the “distillation of all the worst qualities of the middlebrow.” But, unlike Professor Hansen Hasen, I have never thought of myself otherwise.


*Corrected at 4:55 PM on October 27, 2014 to correctly spell Professor Hasen’s name.


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