Law

A Guide to Anti-Choice Concern Trolling

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If you're a supporter of reproductive rights in the United States, you're forced to endure various forms of concern trolling. The centrist form, perfected by Slate 's Will Saletan, exhorts supporters of abortion rights to concede that abortions are icky and that the good faith of people who support criminalizing abortion must be conceded even when their arguments are a moral, political, and legal shambles . While outright opponents of abortion rights are certainly willing to use these techniques, they have innovations of their own. The concern-troll-in-chief for opponents of reproductive rights is Ross Douthat of The New York Times . Last weekend's manifestation is a particularly good example, both because the arguments are relatively sophisticated and because Douthat is frequently generous enough to provide the material that refutes his own arguments. So, as a public service, I use Douthat's latest column to provide a handy guide to the pillars of anti-choice concern trolling, and,...

Teacher, May I Plead the Fifth?

flickr/SarahSandri
flickr/amitbronstein I n January 2008, a school resource officer —a policeman assigned to a school — named David Pritchett brought eight-year-old Anthony J. Hunt into the reading lab at Shields Elementary School in Lewes, Delaware. He planned to question him about a missing dollar, stolen from an autistic student on the bus that morning. Pritchett was almost certain that the student already waiting in the room, a fifth-grader named AB in court papers, had stolen it. Pritchett had trouble getting him to confess. After sitting Hunt down and closing the door, Pritchett began his interrogation. He warned the boys against lying and told them about Stevenson House, a youth detention center where “people are mean” and where Hunt would not be able to see his siblings. Hunt began to cry, after which AB confessed to stealing the dollar. Two years later, Hunt’s mother sued the state, and three years after that the Delaware Supreme Court ruled in her son’s favor, agreeing that Hunt’s Fourth...

California's Teeming Prisons

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N early 30,000 California prisoners are on hunger strike to protest various abuses , including the extensive use of solitary confinement. This strike is the latest reflection of just how broken the state's prison system is. In turn, the problems in California showcase the myriad messes that increasingly define American crime-control policy. The disastrous state of California prisons two years ago compelled the federal courts to intervene. The Supreme Court ruled that the overcrowding had become so dire that it violated the Eighth Amendment, upholding a lower court order that the prison population be reduced. California Governor Jerry Brown, however, has been resistant to meeting the target of set by the courts (which require California to reduce its prison population to "only" 137.5 percent capacity). Declaring the problems in California prisons solved, Brown has issued a plan that flatly refuses to meet the targets. That proposal was again rejected by the Ninth Circuit. The hunger...

Ginsburg's (Pyrrhic?) Triumph

AP Photo/Ron Edmonds
AP Photo/Pablo Martinez Monsivais T he two major same-sex marriage cases decided by the Supreme Court in June were puzzling for at least two reasons. Windsor , which struck down a major provision of the Defense of Marriage Act, featured a notably opaque opinion by Justice Anthony Kennedy. Hollingsworth v. Perry, on the other hand, which resulted in legal same-sex marriage in California—albeit through a technicality—had a vote lineup that bore little relationship to how justices typically vote in standing cases, suggesting strategic voting on both sides. Part of the reason for these anomalies might be the Justice Kennedy's uneasiness. But it's worth noting that the outcome produced by these two cases is consistent with the long-held beliefs of one justice who was (unlike Kennedy) in the majority in both cases: Ruth Bader Ginsburg. Court observers have interpreted the unusual vote lineup in Perry (Republican appointees Chief Justice Roberts and Justice Scalia, joined by their more...

Chart of the Day

It can hardly be said too often that the George Zimmerman trial, or any one trial for that matter, only tells us a tiny bit about what happens when one person kills another and how they're treated by the justice system. Before the verdict, I predicted that Zimmerman would be acquitted, not because I'm some kind of genius, but based on two factors: There was no one alive who could contradict Zimmerman's account of what happened, and Florida law permits you to chase someone down, start a fight with them, and then shoot them if you start losing the fight. But what if we broaden our view a bit, and look not just at one case, but at thousands of cases? Does race matter? You may be saying, of course it matters, but let's look at some data. John Roman of the Urban Institute took data from 53,000 homicides over the last few years gathered by the FBI, and produced this stunning chart (h/t Richard Florida ): In case you're having trouble seeing the lines, the combination least likely to be...

Three Things You’ve Got Wrong about the Filibuster

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AP Photo/Henry Griffin W ith the Senate showdown on executive branch appointments—and eventually filibuster rules—moving towards the moment of truth, it’s a good time to revisit some of the myths surrounding one of the hallowed chamber’s most perplexing procedures. Here are three: 1. Filibusters ≠ Cloture Votes Really: Filibusters are not the same as cloture votes. All those charts and fact sheets you’ve seen showing the explosion of filibusters in 2009? Well, it happened, but the explosion was due to an increase in cloture votes, which are—get it now?—not the same as filibusters. Cloture—or cutting off debate on a bill, nomination, or motion, which by rule in the Senate requires three-fifths of all Senators—is one way the majority can end a filibuster. But it’s not the only way. Filibusters can end through attrition (that is, the minority tires of doing it); through cutting a deal on some minority demand, such as allowing one nomination to go through while another is withdrawn; or...

When Justice Is Blind and Deaf

AP Images/Matt Smith
AP Images/Matt Smith I f justice is a conspiracy between moral logic and the law, then the revelation of the 36 hours following the George Zimmerman verdict is just how complete justice’s failure has been. The shambling closing statement at the trial last Thursday by attorney Bernie de la Rionda was a testament to how fully the state was seduced—with only occasional bulletins from some larger perspective by fellow prosecutor John Guy—into allowing the terms of the contest to be defined by Zimmerman’s counsel, Second City-wannabe Don West and Mark O’Mara, who was his own greatest competition in the sweepstakes for who could make the proceedings’ most flabbergasting comment. After telling the apparently beguiled jury that his client wasn’t accountable for a single moment of the events of February 26, 2012, that led to the death of teenager Trayvon Martin in Sanford, Florida, O’Mara declared at Saturday night’s press conference that had the ethnicities of defendant and victim been...

The Withered Writ

Habeas corpus, the age-old means for prisoners to challenge their detention, has never been more restricted than it is now.

AP Images/Jon Elswick
T he writ of habeas corpus, until not long ago, was a mysterious yet potent safeguard of liberty in American law. It worked like an incantation to break an evil spell. A prisoner petitions a court for a writ. “Habeas corpus” means “May you produce the body,” spoken from the point of view of a judge. He orders whoever is depriving the prisoner of his freedom to bring him to court—a warden confining a prisoner, the secretary of defense holding a detainee, or a magistrate who has denied bail to someone jailed but not convicted—and to justify the detention. The judge then decides whether the petitioner is being detained in breach of the Constitution or some other law. In 1963, Justice William Brennan Jr. wrote that “government must always be accountable to the judiciary for a man’s imprisonment.” The prisoner is “entitled to his immediate release,” the justice emphasized, if the government violates the law in putting him behind bars. Brennan was one of the most influential justices of the...

The Zimmerman Acquittal Isn't about "Stand Your Ground"

AP Photo/Mike Brown
AP Photo/Bay Area News Group, Anda Chu Y esteday, a jury in Sanford, Florida acquitted George Zimmerman, who had been charged with second-degree murder (with a lesser-included charge of mansluaghter) for shooting and killing the unarmed, 17-year-old Trayvon Martin. That Zimmerman was not punished for kiling Martin is certainly disturbing. But it is disturbing for somewhat different reasons than much of the case's media coverage posits. The problem with the Zimmerman acquittal was not Florida's ill-conceived "stand your ground" law. The problem with the acquittal was not a racist and unreasonable jury, either. Rather, the acquittal of Zimmerman reflects something else equally serious and unsettling: the failure of the law in many states to keep up with the realities of America's gun culture. In a society in which many African-Americans are presumed to be criminals and large numbers of people carry concealed deadly weapons, some ways of defining self-defense (even if they do not entail...

Online LL.M.'s: A New Way to Rob Peter to Pay Paul?

flickr/David Ortez
Two weeks ago, faculty at Seton Hall’s School of Law were informed their pay would be cut by 10 percent during the upcoming term. All junior (untenured) faculty were told they could be fired after the 2013-2014 school year. Seton Hall joined Florida Coastal, (where 10 percent of staff were fired ) and Vermont Law School (one-fifth of tenure-track faculty positions were removed ), in delivering a message professors not at elite schools have long feared was coming. As the legal job market remains in shambles and law school applications continue their historic free-fall, schools will be forced to take a variety of drastic measures to remain solvent until the millions in disappearing tuition dollars return. Firing faculty and downsizing staff—perhaps even closing whole schools—will likely soon be common; so will the appearance of the LL.M., a degree whose strange history may be emblematic of the most serious problems in legal education. The LL.M., awarded after the first degree in law,...

How the Conservative Media Are Eating Up the Zimmerman Trial

George Zimmerman during his interview with no-nonsense journalist Sean Hannity.
George Zimmerman's trial in the shooting of Trayvon Martin is coming to a close. For what it's worth, I think he'll probably get acquitted, since 1) the lack of any eyewitnesses leaves room for doubt, and 2) my impression is that in Florida it's perfectly legal to pursue somebody, confront them, and then when the confrontation turns physical and you begin to lose the fight, shoot them in the chest. You know—self defense. In any case, conservative media are feasting on the Zimmerman trial (as are some other media). Their basic storyline goes like this: Trayvon Martin was a thug. George Zimmerman's gated community was beset by roving gangs of vicious black teen criminals. Zimmerman was in the right. And most critically, this whole thing is being drummed up by racial provocateurs, most especially Barack Obama and Eric Holder, to continue their ongoing war on white people, who are the real victims of racism in America today. Let's take, for instance, this little story. After Martin's...

How to Keep Bad Cops on the Beat

A few states forego a key tool protecting the public from rogue police officers.

AP Photo/Harold Valentine
AP Photo/Elise Amendola David Silva died during an arrest in Bakersfield, California on the night of May 8. The Kern County sheriff’s department contends that the 33-year-old was drunk and uncooperative and fought back during the arrest. The sheriff’s deputies on the scene also fought back during the arrest—using unreasonable and excessive force, as the civil-rights lawsuit Silva's family filed charges—allegedly beating Silva with batons while he lay on the ground. One of the accused deputies has the same name as one charged in the 2010 beating of a man that resulted in a $4.5-million court judgment against Kern County. County sheriff Donny Youngblood declined to tell The Los Angeles Times whether he is the same officer. If the deputy is one and the same and the lawsuit succeeds, the circumstances will fit an emerging pattern in the state—police departments retaining cops with questionable records. In October 2011, two San Joaquin Valley TV stations revealed that several officers with...

Meet Rick Perry's Most Likely Replacement

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AP Images/LM Otero W hen Rick Perry's staff advertised a press conference on Monday to unveil his "exciting future plans," they didn't say just who the plans would excite. Would it be Perry’s Texas supporters, thrilled to hear he was running for re-election in 2014? Would it be the political pundits and national supporters, pleased to discover Perry would make another bid for president? As it turned out, the people most excited weren’t Perry’s people at all. After the longest-serving Texas governor announced he would not seek re-election—while avoiding the question of whether he might take another whack at the presidency in 2016—it was Republican Attorney General Greg Abbott whose supporters were celebrating. Abbott may not have formally announced that he’s running for governor, but his new Austin campaign offices and his whopping $18 million war chest do a lot of talking for him. Until Monday, speculation was rampant about what would happen if Perry—who lost much of his intimidating...

Affirmative Action's Ominous Future

AP Photo/Paul Sakuma
AP Photo/Charles Dharapak O ne thing the three most anticipated cases of the recently completed Supreme Court had in common: They left the big questions unanswered. Hollingsworth v. Perry , by ducking the question on jurisdictional grounds, left the constitutional status of state bans on same-sex marriage unresolved. Shelby County v. Holder theoretically permitted Congress to update the preclearance formula to put the teeth back into the Voting Rights Act. However, the Court gave lower courts and future Supreme Courts no useful guideline for how Congress could proceed. (Admittedly, the answer for how Congress can constitutionally proceed, at least for the Roberts Court, is almost certainly "it can't.") The term's clearest passing of the buck was the decision in the affirmative-action case, Fisher v. University of Texas . While many people (including me) expected the Court to use the case as a vehicle to declare virtually all affirmative action in public higher education...

All Tomorrow’s Parties

Gay Equality 1, Civil Rights 0 – join us in wondering how to celebrate this Fourth of July. (Hint: not by seeing Johnny Depp’s new movie, that’s for sure.)

AP Photo/The Omaha World-Herald, Brynn Anderson
AP Photo C all it coincidence, but my bedside reading for the past couple of weeks has been the new two-volume boxed set of the Library of America’s Reporting Civil Rights . Awe-inducing and frequently thrilling, this monumental anthology of on-the-scene coverage of the fight for black equality features contributions by scores of writers, some rightly renowned—James Baldwin, Garry Wills, et. al.—and some unjustly obscure. Part One deals with the years 1941-1963; Part Two tackles the pressure-cooker decade that followed King’s “I Have A Dream” speech. Each volume also includes a sheaf of photographs, primarily of the writers themselves at the time. They’re often evocative ones, even if the era’s great photojournalism—no less worthy of commemoration—gets short shrift as a result. Anyway, I won’t pretend I’ve made much more than a dent in the set’s almost 2,000 pages. But that’s not the point, since Reporting Civil Rights could easily keep my idle hours occupied until Christmas. (Not...

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