Batshit crazy law students

I am very serious. Some law students who call themselves feminists have gone batshit crazy.

If you care about the ethics and customs of American lawyers who actually practice law or you care about American legal education and intellectual honesty, please read Debra Cassens Weiss, Is teaching rape law too risky? Sensitive law students don’t want to discuss it, law prof says, ABA Journal (December 16, 2014).* After you have finished screaming, crying or vomiting, tell me what you think.**


*Kudos to Ms. Weiss and the ABA Journal.

**For the female trial lawyer, who also happens to be one of the best around these parts, thanks for sending me the link to this article and your wry comments related thereto.


For this and related matters in the context of the state of legal education, see Scott Greenfield’s excellent piece entitled, The Environmental Cleanup of Toxic Academia published today at Simple Justice.

Posner pisses off plenty of people on privacy

Entitled “On Privacy, Free Speech, & Related Matters — Richard Posner vs David Cole & Others,” Ronald K.L. Collins has this post at “Concurring Opinions.” As I frequently do, I tip my hat to Howard Bashman at How Appealing.

What is most interesting to me about this piece on Posner is not the judge’s provocative statements suggesting that privacy is far less important than national security. What is really interesting to me is the shocked and vituperative reaction he received as a result. See, e.g., here (Nick Gillespie) and, for an especially tough piece, here (Glenn Greenwald). Posner is not much of a romantic when it comes to privacy and free speech, and that apparently makes some folks froth at the mouth.

Image credit:

Image credit:

I don’t agree with a lot of what Judge Posner has to say on privacy and free speech. That said, perhaps I have signed too many search warrants for electronic data and Title III interception orders for wiretaps and bugs, but I pretty much agree with him on one point. We should not fear the government scooping up too much information in pursuit of crime or in furtherance of the national security. On the contrary, we should fear that a risk averse government will seek to scoop up too little.* However, reasonable people can certainly disagree, and that value judgment is not as simple as Judge Posner seemingly thinks.

As an aside, I bet Posner and I see the world in the same, almost paranoid, terms and that accounts for our agreement on this point. Why that paranoia does not extend to the government is a question for which I don’t have much of an answer. For myself, all I can say is that I try to be a good German.

Anyway, Professor Collins once again does a wonderful job helping us understand the brilliant Judge Posner and, this time, the judge’s views on privacy and free speech. I encourage you to read this most recent piece.


*You would be fascinated to know about the government’s technological capacity to listen in on anyone anywhere. You would also be impressed (and maybe depressed) by how hard it is for the government to get the judicial authority to do so. Having said that, I have had only indirect involvement with national security matters as compared with far more experience in criminal cases. In short, I am only slightly better informed on government snooping for national security purposes than the man or woman on the street.

Good questions from a very bright journalism student

I get questions at this blog’s e-mail address from college and law students fairly frequently. I always try to answer them, and this time I thought a blog post might be instructive. Here are four question that a bright journalism student sent me. He has a deadline, so my answers will be brief, and, I hope, to the point:

1) In your decades of courtroom experience, how have the mandatory minimum sentence laws changed the power dynamic between prosecutors and judges? In your view, are these laws an encroachment upon the judicial branch and the prerogative of the individual judge by the executive and legislative branches?

Yes, mandatory minimum sentences give much more power to prosecutors since they get to determine what charges to file and thereby decide whether to trigger a statutory minimum. Attorney General Holder has done some things to encourage prosecutors to avoid mandatory minimums where they are inappropriate and that is a good thing.

As to the second part of your question, there is nothing inherently wrong with Congress enacting mandatory minimums. After all, Congress has the power to pick specific and definite sentences for any crime on the books. That said, if you believe in the Sentencing Guidelines, as I do, mandatory minimum sentences distort them because they require the Sentencing Commission to implement those minimums and then peg the rest of the sentences around those benchmarks. In order to maintain proportionality between offenders mandatory minimums tend to drive up sentences under the Guidelines when there is frequently no good theoretical reason to do so.

2) While mandatory minimum sentences have been accused of creating one-size-fits-all sentencing, what about the possibility that eliminating them would create a nebulous system wherein the judge’s ideological beliefs would influence sentencing to the point of creating a roulette-like situation for defendants? Considering this possibility seems especially salient in the wake of United States v Booker, which made the federal sentencing guidelines advisory rather than mandatory.

This question reflects a very sophisticated understanding of the problem. The reason for the Sentencing Guidelines was primarily to avoid unwarranted sentencing disparity among like offenders. Now, judges are much more free to impose their personal preferences when they sentence people. That is becoming a big problem with judges across the nation, and even in the same district, imposing vastly different sentences for similar offenders. A good example may be found in child pornography sentences that seem to vary widely despite the similarity of offense and offenders. Thus, selective mandatory minimums are a way of imposing a minimum level of equality, albeit it at a great cost.

3) Prosecutors argue that the threat of minimum sentencing is a useful tool in extracting information that can lead to capturing bigger fish in exchange for a plea bargain, but do you feel this way of doing things can lead to a defendant being implicitly punished for exercising their Sixth Amendment rights?

Yes, but only sorta. There is no doubt that people facing a stiff mandatory minimum sentence take on more risk by deciding to go to trial when facing a mandatory minimum. But it is also true that mandatory minimum sentences provide an incentive for criminals to cooperate with the government. Whether the cost–a “tax” on the right to trial–is worth the benefit–cooperation–is a policy question that is hard to answer. On balance, I would do away with mandatory minimums not because of the trial “tax” but because they skew the Guidelines and detract from the Sentencing Commission’s ability to do the job it was designed to do by imposing external minimums that may have little or nothing to do with the proper sentence.

4) Is there a poignant case that you presided over which illustrates the ineffectiveness or insensibility of these laws? Or conversely, their necessity.

I sentenced a young black man (around 30) to a mandatory life sentence because of two relatively minor prior drug felonies after he rolled the dice and went to trial on a third drug charge. The evidence against this fellow was overwhelming and he was an idiot for going to trial. He had a good lawyer who he ignored. He fully knew the risks. He was involved with crack and powder cocaine. He was not a drug king pin, but he did harm to his community by making crack and selling the drug. No guns were involved, and he was not otherwise violent. I leave it you to judge whether sending a 30-year-old drug dealer to prison for the rest of his life because of two relatively minor prior drug felonies is good or bad policy.

For experienced prosecutors and criminal defense lawyers who read this blog, I urge you to add your comments so that the journalism student will have the benefit of your wisdom. Thanks.


In memory of Hal Blostein

Recently, I received the following e-mail at the Gmail account for this blog:

You probably don’t remember me, but we both went to college in Kearney and were in Hal Blostein’s class together at least once. I’m trying to put together a brief (pardon the pun!) bio on him to be downloaded to If you have any recollections or anecdotes of him or his class(es), I would appreciate reading them for inclusion in this memorial.
Bruce Kelly
Boone, Iowa

Bruce, on the contrary, I do you remember you. And, I am ever so glad you wrote.

If you search the Internet, you will find virtually nothing about Hal. Tucked away on page 20 in a University of Nebraska Alumni magazine entitled UNK Today, Spring 2008, you will find Hal’s obituary: “Hal Blostein of Cochiti Lake, New Mexico, died December 24. Blostein was a professor of political science at UNK from 1964 until his retirement in 1991. He was 80.” A similar brief remembrance appears in New Mexico Obituaries, “Harold Leon Blostein, September 22, 1928 – December 24, 2008, Cochiti Lake, New Mexico.”  That’s it. I can’t find anything else of value. Not even an image. For a man who influenced so many lives, the absence of tributes to Hal’s time on this earth hits me hard. He was, after all, a great teacher.

What do I remember about Hal? Here are some of the things:

* Hal did not have a PhD, although the college (but certainly not Hal) insisted that we refer to him as “Dr.”  He had a law degree from Chicago.

* He constantly smoked a pipe. In fact, I remember him in a cloud of smoke. I copied him. I started smoking one while taking his classes, and I still smoke a pipe today. Lord, how I wish I was as smart as Hal with or without a pipe

* I still have the text-book he used to teach classical political thought. The cover has fallen off, and that makes me love the book even more. (William Ebenstein, Great Political Thinkers, from Plato to the Present, Holt, Rinehart and Winston (3rd edition, (March, 1961). Over the years, that book has influenced me at least as much as any other book I have ever read.

* Hal was a Democrat until he became a Republican.

* His use of the Socratic method was far better than any professor I encountered in law school, save perhaps for the brilliant Harvey Perlman. I learned more about the life of the mind from Hal than any other person I have encountered. For that, Hal has my eternal gratitude.

* Hal was not a warm person, but he was not unpleasant either. His life and manner were like cold-rolled steel and that generated an unusual attraction for those around him. He loved ideas, and regarded with obvious affection those who shared his love.

Henry Adams said, “A teacher affects eternity; he can never tell where his influence stops.” When applied to Harold Leon Blostein, no truer words were ever written.




Yesterday was a happy day. I conducted a naturalization ceremony in the special proceedings (big) courtroom in Lincoln. The place was packed with all types of people including little kids who ran around having the time of their lives.

I conduct a rather bare bones ceremony. I introduce myself, the naturalization examiner and the women and men (mostly old, like me) from the civic groups that help us. Then the examiner names each new citizen. The poor fellow struggles over pronunciation, but he gets close. He then makes a formal motion to admit the candidates to citizenship upon their taking the required oath. Of course, I grant the motion.

After each new citizen is identified, they stand and raise their right hands. The courtroom deputy administers an oath to the citizens, and then I start clapping and everyone else joins in. Everyone sits down, and we play a video of the President speaking to the new citizens.

I then make a short address to the new citizens.  Here is my address:

It is customary to speak to our new citizens about what a great country we have, and how fortunate they are to become citizens of this great country. However, it struck me that this country became great and remains great in large part because of its immigrants. Therefore, I thought it appropriate to celebrate this moment not by boasting about this country, but rather by stressing that those of us who are born to American citizenship should be thankful to immigrants past, present and future. Let me elaborate briefly.

First, all too often those of us who were born to American citizenship forget that each of us, with the exception of Native Americans, has an immigrant in our history. Many of us descended from German, Swedish, English, Irish, Czech, Russian, French or Italian stock. Others of us have more exotic immigration histories in our families. But virtually all of us have our forefathers to thank for the traumatic task of immigration. Whether they were dragged here in the terrible confines of a slave ship or booked passage on a luxury liner, our immigrant ancestors took risks to come to this country. Therefore, most native-born citizens owe a real debt of gratitude to the immigrants in our past–a debt that we should not forget.

Second, all too often we forget what each generation of new immigrants has done for this country. Our political system was inspired by immigrants. Our railroads, our coal mines, our cotton fields, our oil wells and our steel mills were built, dug, tended, drilled or stoked by immigrants. Our space program is a testament to immigrants. Our wars were fought by immigrants. Virtually everything of value that we have in this country–from political freedom to economic progress–was in some positive way influenced by immigrants.

Third, all too often we forget that immigrants by their mere presence bless us with a diversity that truly enriches our spirit. What would Boston be without the sound of an Irish brogue? What would Milwaukee be without German food? Could there really be a San Francisco without Chinatown? Can you imagine Chicago without the ethnic neighborhoods of Poles, Czechs and Hungarians? Wouldn’t Miami be a boring expanse of sand without the Cubans? Aren’t cities with names like San Antonio, Santa Fe and Los Angeles contradictions in terms without the Mexicans? Our art, our food, our music, our humor, our language, our literature and, indeed, our daily lives are made immensely more interesting because of immigrants.

In summary, those of us who today welcome our new citizens would do well to reflect on how lucky we–not they–are. The new citizens we welcome today will enrich this nation beyond any expectation. It is with these grateful thoughts that I welcome each and every one of our new citizens.

Here is a photo of a dear, dear friend and former law clerk (Mary) and her little boy. Long ago, I had the privilege of conducting that naturalization ceremony when he became a citizen. He is all grown up now.

Here is a photo of a dear, dear friend and former law clerk (Mary) and her little boy. Long ago, I had the privilege of conducting the naturalization ceremony when he became a citizen. He is all grown up now, but I never tire of this photo and the memory it evokes.

After my little speech, I walk down from the bench. One by one the new citizens and I greet each other. I hand each person their nice looking certificate. Almost always, the family wants to take photos with the new citizen, the examiner and myself. We happily oblige. Sometimes I hold the children, although yesterday I picked up one chunky but darling little boy without realizing the kid weighed almost more than I could lift. My struggle caused giggles all around. I love handing out the certificates because it allows me to chat briefly and individually with each new friend, and those chats are heartwarming. I take care not to offer to shake the hands of Muslim women since that is offensive to some. Other than that, the task is easy and fun.

Following the ceremony in the courtroom, the citizens can attend a reception in their honor in our jury assembly room. Cookies, cake and punch are served by the civic groups. The new citizens can also register to vote in a booth set up near the reception area. Additionally, they can meet with the Social Security folks to get their SS cards. By then, I am back in my office with a big grin on my face.


A gentle rebuke to some Columbia law students

Re: “Columbia University Law School is allowing its students to reschedule their exams if they feel traumatized by the recent grand jury decisions in the Eric Garner and Michael Brown cases.” Jacob Gershman, Columbia Law School Lets Students Postpone Exams Due to Grand Jury Decisions, Wall Street Journal LawBlog (December 8, 2014)

Dear Columbia Law Students,

I mean this in the kindest way possible: If you postponed your exams because the Garner and Brown cases “traumatized” your psyche, there is a distinct possibility that you are unfit to practice law. If you are one of those who claimed “trauma,” and you still want to practice law, you must toughen up before you agree to take on a client. The practice of law is not about you.

downloadIn the world where practising lawyers toil, life is far more harsh than what you have experienced within the confines of your fine law school. Let me give you three examples of what I mean, expressed in the words of the lawyers* who lived those experiences:

1.  I’m not sure if this is what you are thinking of but I did ask the Fifth Circuit once to delay argument in a case because I was on maternity leave after my first child was born and still breast feeding. I don’t think i asked for that long a delay, maybe a month? but they were having none of it — it was an en banc argument and they were anxious to reverse i think — and denied the request. I doubted the court thinks of maternity leave as a valid reason for a delay in any case, which is an arguable point. I went to the argument, brought my breast pump with me. It broke on the way there. things were uncomfortable, you might say distracting, as a result. 🙂 They argued amongst themselves during argument, and Judge Jolly, acting as the Chief Judge, had to reprimand some of them to keep them in line and to allow me to answer questions. They kept cutting me off to argue with the questioner. I needn’t have been there at all which is of course sometimes true in these matters. (Punctuation, capitalization and “People Emoji” as in original.)

2.  I represented a woman in an employment discrimination and ADA case in Southern District of New York. Judge had set a discovery deadline. A week before the deadline, client was set to appear for a deposition. But then her mother died suddenly, and I was out of the country. Client was bereft and in mourning, and incapable of dealing with it. Judge said no extension. So I had to get another lawyer for her and she had to show up that week.

3.  We started o[u]r new law firm in January 1995. That month, one of my senior partners (I was the junior of the four of us) dropped dead in the office on a Saturday preparing for a trial on Monday. I saw the judge Monday morning to request a continuance because of my partner’s death. The judge insisted that this was a landlord-tenant case and therefore a high priority. I explained that no one else at the firm [k]new the client [or] had spoken to any of the witnesses. The judge was not moved. I kept pleading. Finally, the judge asked me when the funeral was to be held. I told her the funeral was Thursday, so she set the trial for Friday. Needless to say, I was not as well [prepared] for trial as I would have liked to be.

I wish you all the best, but I fear that you will be ineffective unless you heed this warning. Far more importantly, I worry for the clients that you may one day represent if you fail to heed this warning. Allow me to restate, the practice of law is never, ever about you.


*None of the lawyers who gave me these examples knew how I intended to use them.


Please view the following from Scott Greenfield at Simple Justice:

Please help me for a post tomorrow–I need examples

Please send me examples of when a judge or another lawyer has not accommodated you in a continuance or similar request for delay of some sort and therefore required you to gut it out despite a pressing personal or professional problem that was distracting you.  As along as the example really happened, the nastier and the more unreasonable the example the better. Thanks.


If you play football at Nebraska, don’t kill a raccoon with a wrench after it bites you in the leg even if you fear it might be rabid because, in return, PETA will chew your ass

I can’t make this stuff up. See here. The Lincoln paper’s headline screams, “PETA calls for punishment, training after Husker player kills raccoon.”

In part, the story recounts the saga this way,

Huskers defensive end Jack Gangwish was driving his pickup north of town on Dec. 3 when spotted a raccoon in the road and decided to take a photo of himself with the animal.

The raccoon wasn’t as keen on the idea and bit 21-year-old Gangwish in the calf.

“It was a raccoon selfie gone completely wrong,” he said later.

Gangwish said he thought the raccoon should be tested for rabies, so he grabbed a wrench with the aim of subduing it.

“It was death by crescent wrench,” said the 6-foot-2, 260-pound Gangwish, who later tweeted that he did not have rabies.

Wild animals account for 90 percent of rabies cases in the United States, and raccoons make up almost half of those, according to the website of the Centers for Disease Control and Prevention. There were about 6,200 cases of animal infection and one case of human infection in 2012.

On Wednesday, Gangwish said his wound was doing OK and declined further comment.

In her letter to Eichorst, PETA President Ingrid Newkirk said, “No animal deserves to be bludgeoned to death, and cruelty is not acceptable under the law. It’s time for acts of cruelty to animals committed by players to be taken extremely seriously, and with violence in football culture now under the microscope, this is the time to address the issue.”

Trigger warning: I next write figuratively and not literally:  I love all creatures great and small, but this asinine complaint makes me want to beat PETA with a wrench.


%d bloggers like this: