The takeover of America's legal system
bariweiss.substack.com
bariweiss.substack.com
Most legal bills are paid by large corporations. The U.S. is the leader in this respect--on average U.S. companies spend about 0.4% of their revenue on legal services, almost triple the rate in a civil law country like Germany. Effectively most lawyers (including me) work directly or indirectly for businesses. This means that the legal education system, and to a lesser extent, the court system, are shaped by and largely serve the needs of businesses.
And what are all of these businesses doing with their legal spending? Largely litigation defense, transactions (M&A, issuing securities, or buying/selling assets like real estate), and interacting with government and regulators.
Lawyers that don't work for large business organizations spend their time representing individuals or classes of plaintiffs in tort litigation or in matters like criminal defense, immigration assistance, family law, or estate planning. Things that may not involve the huge dollar amounts of business transactions but that matter a lot to the people affected.
For every law school class on critical race theory or other topics the writer criticizes, a law student will take dozens on administrative procedure, taxation, federal courts, etc. etc. etc.
There are many valid criticisms of the American legal system. For example, you might feel that it's too easy to file a frivolous lawsuit that will settle for nuisance value. Or you might observe that corporations have been able to cripple or stall regulation that the public demands. Or that mass incarceration is bad social policy. This kind of introspection, including CRT, has long been a part of the academy and the profession, and I think a useful one.
The situation depicted in this article, that everyone's suddenly gone out of control "woke," is just ridiculous and doesn't at all fit my own experience.
I became skeptical right off the bat when she compared Boies' civil representation of Weinstein (at ostensibly $2,000+ per hour) to the defense attorneys who volunteered to represent Guantanamo detainees.
I'm just pointing out the obvious: there's an enormous difference between (i) an indigent defendant's right to a public defender in a murder trial and (ii) the "right" to be represented in a civil suit by one of the most successful, famous and expensive lawyers in the country. The first is a constitutional right - the second is a market transaction (on both sides).
Consider that Boies makes more in a (long) day working for Weinstein than some public defenders stand to make in a year. Boies has plenty of other clients he could work for and be paid lucratively - public defenders don't have the luxury of choosing their cases (and aren't in it for the money).
1. Alleged foreign jihadists. An incredibly small minority of whom have actually been convicted, mostly (6 of 8) through plea deals. [1]
2. Little surprise (though, citation needed) that most Americans disagree the Constitution. That doesn't mean we should burn the document.
[1] https://www.aclu.org/issues/national-security/detention/guan...
I agree! Tell that to the folks this article is talking about, who say stuff like “the Constitution is racist.” (E.g. https://www.newsweek.com/elie-mystal-doubles-down-against-ha.... Author is the former editor of a popular legal news site.)
These folks want to upend the taboo that currently exists in the legal profession over judging other lawyers based on who they choose to represent. My point is that this sort of politicization of the profession doesn’t go down the road they think it does. There is no stable equilibrium where lawyers face social blowback for representing Weinstein or Catholic hospitals or Trump but are lauded for representing suspected terrorists and sex traffickers.
You seem to be doing pretty much doing exactly what the woke ppl do w/r/t men accused of sexual assault: you seem to want to decline to apply the protections of the law and its underlying ethical norms to people you don't like and disparage the notion they should have legal assistance.
Her article is idiotic and so is most of this thread.
I myself was extremely irked that many of my progressive law school classmates were basically like Trump supporters in that they cared more about their desired policy goals and outcomes than the underpinnings of the law, and didn't have much of a value system beyond their ideologies. They would love to pack the courts with ideologues like conservatives have been fairly successful at doing.
But that was a minority of people. What's more, our professors were definitely not of the same mind. The prof I had for con law, for example, is a prominent, highly regarded young liberal intellectual who posed hypotheticals to challenge the class's liberal assumptions, chiding us with "you guys are good liberals right?" He also regularly attends FedSoc panels (the FedSoc chapter at Columbia is doing just fine btw).
She also simply fails to understand how unmoving and slow-to-change the law is. She presents it as much more fungible and modifiable than it is. Her pointing to Breyer re: preemptory challenges is dumb, and almost a counter-argument, given that Breyer is not a particularly ideological justice.
Weiss is an uncredentialed pseudo-intellectual who has latched onto a real problem, but who does not have the knowledge or experience to write competently on the subject.
Why is this relevant? It's also wrong considering she has graduated with a degree from Columbia...
You originally replied to this comment:
"Weiss is an uncredentialed pseudo-intellectual who has latched onto a real problem, but who does not have the knowledge or experience to write competently on the subject."
I was simply trying to find out what she actually majored in to gauge whether there is any truth to this statement. Furthermore, the difficulty in finding the exact degree program seems very suspicious.
So you indeed are implying that she lied about her degree
So what exactly are you suspicious of?
Think about how many articles get tech stuff wrong. Articles about law tend to be even worse because of the political/emotive aspects, which writers (such as here) try to inflame.
(The actual author also seems unqualified to argue the issue)
This entire discussion is about the law and the legal system. For Weiss’ degree to be remotely relevant to this discussion she has to have a law degree from Columbia. She doesn’t. She graduated in 2007 with a BA.
Meanwhile the person you’re speaking to claims to have graduated recently from Columbia Law.
Maybe it's a fashionable research topic in that also gets web traffic but is otherwise far removed from the work of most legal practitioners.
Unless it was Yale, I'd wager you're finding examples of something that triggers you everywhere because ppl are primed to do that.
It's one of the fallacies of the woke crowd as well.
Would be interested in hearing more about your exp. I can provide more details of mine as well.
I read these pieces about political disruptions to our system of laws with some concern that those deep in the thing might not understand the extent of their own biases. Better to err on the side of caution. A stitch in time saves nine.
You and I both went to T14s and clearly have different political beliefs from those people. Most people at such schools are pretty progressive, but not extreme, and will end up just working in biglaw and various government positions and as in-house counsel. Sadly for the woke, any attemp they make to obtain and exercise actual legal power by the same obnoxious behavior they exhibit in law school will not make a wrinkle in the stone face of the law. Only changes agreed-upon by less extreme elements can make it through--they need the votes.
Congratulations. You're the kind of junior lawyer the article warns against.
The article makes claims about elite law schools and what the culture is like there. I was at one more recently than you. The article makes a logical leap to connect the increasing "wokeness" of young law students and lawyers to some alleged "takeover" of American law that is in no way manifesting itself. None of your comments substantiate the notion that such a takeover is eminent.
The "business considerations" of biglaw partners or my experience handling, e.g., commercial litigation, are irrelevant.
These trends are hitting academia and the non-profit sector first. At my law school, one of the top ones in the country, the Dean got up and declared himself a “white supremacist” at a town hall meeting: https://www.washingtonexaminer.com/news/northwestern-univers...
My friend who works at a public interest organization—herself very liberal—has been surprised by attorneys refusing to work in cases because of the political beliefs of clients and donors (which have nothing to do with the organization’s purpose).
The changes at the ACLU are well documented: https://www.nytimes.com/2021/06/06/us/aclu-free-speech.html
Efforts by the ABA to impose commitments on lawyers that could interfere with the duty of zealous advocacy are well documented: https://judicature.duke.edu/articles/a-speech-code-for-lawye...
The only thing shown here is the fear of being ostracized, and the costs with being contrarian. You think this was contrition? I think it was simply them realizing they were better off lying than being genuine.
To explain this a bit more: there was a fairly wide conversation during 2019/2020 about systemic advantages for white people in America. One observation was that systemic racism which favors a specific race could be described as inherently supremecist - in this case, white supremecist. If you accept that argument then benefitting from the system admits sympathy with white supremacy, and so saying “I’m a white supremecist and I’m trying to do better” is a way to admit to systemic problems and to state a desire to rectify them. If anybody remembers the blowup at the Basecamp all-hands meeting, this was the conversation that happened there. Unfortunately the line of logic is hard to communicate because “white supremecist” typically suggests an active intent to displace or destroy other races, which is why the dean’s statement seems so bizarre without context.
You say “unfortunately it’s hard to communicate”, but I think it would be absolutely trivial to avoid overloading words in the first place or failing that, to use words consistently. It definitely feels like the confusion is a feature of CRT discourse rather than a bug.
It is a feature. If the ideology is splintered into many subfields, and has a legion of names, but all have broadly the same thrust, it's hard to talk about the phenomenon in a way that's easy to grasp. And in any case, you will have to give it a stable name you can refer to because the advocates themselves will just switch what name they're using, while the underlying ideal and methods stay the same.
This is one reason people are so angry at Rufo for pulling the CRT stunt and calling related things CRT. Is it wrong? Yes, in detail, but not in substance. And importantly, it is right in the part that matters and caught on, so people are losing their minds over it. Notice how they're not in the least visibly upset about, say, Wesley Yang calling wokeness "the Successor Ideology" - it never caught on, never managed to give people a name for the wrongness they could see with their own eyes.
There is a rhetorical strategy coined the motte and bailey, which gets its name from the motte and bailey fortification setup with a fortification (the motte) in the center and a broad, lucrative field around it. The idea is you can live in the lush bailey and expand it, and if attacked retreat to the more defensible motte to frustrate attackers. Once they are defeated or leave, you resume work in the broader field that can't be defended as well.
The motte and bailey rhetoric works the same way: When not pressed, you advance shakier, ambitious claims people might want to challenge, but when pressed equivocate that you're just talking about something unobjectionable.
As one example, second and third wave feminism unquestionably had an entire history and culture around them, with detailed theories of society w/ patriarchy, sex vs. gender and all - this wide, deep culture and spreading it is the bailey. Press people on some of the more tenuous aspects of this, and they'd retreat about "feminism being about equality" - this is the motte fortification, since barely anyone in the West is against equality at least in some form or another. Once the attacker goes away, back to spreading theories of patriarchy and oppression it was.
The modern wokeness runs this strategy all over the place. Want to curtail what you see as a blinkered approach to teaching history? You clearly don't want people learning about slavery or segregation, and so on. Racism is simultaneously the ordinary state of affairs in a country people actively want to immigrate to, and Klansmanship.
Someone else said something a little closer to that, but still not that. I've also linked to the Dean's response elsewhere in the thread.
So I'm at a loss how you think that the "context" helps. The whole point of the article is that law schools have adopted radical activist ideology. The fact that folksy faculty members of a Midwestern law school are using radical activist rhetoric (which, as you acknowledge, seems "bizarre" to the 95% of folks who are unfamiliar with the terminology) seems to support the article's thesis.
* circa 2009, when "CRT" was better known as a near-obsolete display technology than a boogeyman of the American political right.
Exactly. Which is why it's bizarre to suggest that liberal professors at NYU and Northwestern are suddenly upset in 2022 about something that was routinely taught when they went to law school. It's more reasonable to assume that they're responding to something else that they're observing.
> * circa 2009, when "CRT" was better known as a near-obsolete display technology than a boogeyman of the American political right.
"CRT" is just a vernacular shorthand for a collection of ideas that have become prevalent in certain circles in the last few years, which share common threads such as abandoning the ideal of race neutrality in law and policy. It's similar to how "supply-side economics" being used to refer to Reaganite economic policies. Whether those ideas are technically CRT is beside the point.
Opposition to that collection of ideas is not limited to the "American political right."
Insofar as "CRT" encompasses, for example, Ibram Kendi's assertion that positive discrimination is required to overcome past discrimination, most Americans oppose that: https://www.pewresearch.org/fact-tank/2019/02/25/most-americ... (in college admission); https://www.insightintodiversity.com/majority-of-americans-b... (in hiring decisions).
Insofar as "CRT" is associated with various left-wing criminal justice ideas, most Americans, including so-called "people of color" oppose them: https://www.pewresearch.org/fact-tank/2021/10/26/growing-sha...
The "American political right," moreover, is hardly the only one that has realized that these ideas and policies share common roots. Emmanuel Macron, of the French center, has come out against them too: https://www.newsweek.com/macron-france-reject-american-woke-...
Insofar as more Democrats don't oppose CRT, I suspect it's because they haven't heard much about it or are skeptical that it's just a right-wing effort. But I sent this article to my dad--an immigrant from a Muslim country who has supported Democrats since Carter--and he expressed concerns about "critical race theory." Because he's a strong proponent of "color blindness" as a foundational principle of law and society. He was alarmed, as a public health expert, by proposals to prioritize non-whites for vaccinations. He was likewise alarmed by TJHSST, the high school I attended, recently abandoning its admissions test under the theory that it was "racist." I suspect there are a lot of Democrats like him who are skeptical that Republicans are acting in good faith, but don't actually agree with progressives that we need fundamental changes to our legal system.
A sobering example: if Justice Thomas votes against race-based college admissions in the Harvard case, white progressives will call him "racist" for adopting a view shared by 62% of Black people.
Luckily Dem voters reject far left candidates in broader elections; see Biden, Eric Adams. Dems currently seem to elect moderates at a higher rate, whereas Republican moderates tend to have to retire (Flake, Kinzinger) or suffer vicious attacks and get voted out (Liz Cheney)
It's harmless if you consider it in isolation. But I think it reflects a troubling power dynamic. At Northwestern they renamed "Hispanic Heritage Month" to "Latinx Heritage Month" (https://www.northwestern.edu/msa/programs/heritage-months/la...). Big deal, sure. But it shows that white progressives and their allies have tremendous power over issues relating to minorities--down to what to call a group of minorities--and minorities have very little power to assert their own preferences. I don't think that's harmless.
> Luckily Dem voters reject far left candidates in broader elections; see Biden, Eric Adams.
I think this illustrates my point, though. In the primary, Black and Latino New Yorkers overwhelmingly supported Adams, while Asians supported Yang. But the Black, Latino, and Asian progressive activists mostly opposed both and sided with the candidates preferred by white progressives. Matt Yglesias wrote an excellent article addressing the disconnect between Asian actvists and asian voters: https://www.slowboring.com/p/yang-gang?s=r.
But there's a whole lot of things--especially the things addressed in this article--that are not put to a popular vote. Do so-called "people of color" actually want the ABA to change well-worn principles of color-blind justice in favor of affirmative anti-racism? Do "people of color" want hospitals to send white people to the back of the vaccine line? Do they want hiring policies that expressly consider race? It doesn't matter because they don't get a vote.
When somebody says Muslim, a particular race doesn't come to mind amongst the informed.
So their experiences and perceptions in a society where race has historically been a reasonably large part of weighting can be drastically different.
Our Latino law school classmates at places like Northwestern and Columbia are by and large progressive, and thus that change likely reflected the preferences of the Hispanic student body at Northwestern Law. I'm not sure why the preferences of moderate Hispanics who aren't there should matter in that context.
> I think this illustrates my point, though. In the primary, Black and Latino New Yorkers overwhelmingly supported Adams, while Asians supported Yang. But the Black, Latino, and Asian progressive activists mostly opposed both and sided with the candidates preferred by white progressives. Matt Yglesias wrote an excellent article addressing the disconnect between Asian actvists and asian voters: https://www.slowboring.com/p/yang-gang?s=r...*It doesn't matter because they don't get a vote.*
Bro, as you stated, they literally voted in the mayor in one of the most important--if not the most important--cities in the country lol. While the academic bubble is getting more progressive, New York went from having a progressive dodo for a mayor to having a moderate ex-Republican ex-cop as the mayor.
and even if latino folks have spoken up against it ... it's no use, because it's not about them, it's about (virtue signalling :D and partly) about a slightly justified ignorance of the needs of minorities. (and nowadays everybody writes to every single person on the planet at once - thanks to twitter - so maximal inclusive language became a proxy for actual inclusiveness.)
To use a different example, my dad remarked the other day he was upset that Ilhan Omar had “become the face of Islam in America.” Of course, it’s white progressives in the media decide who gets used in stories as a proxy for minority groups. (There’s almost certainly more Muslim Republicans than Muslim DSA members, but you’ll never see one of the former be given the mike to speak on “Muslim issues.”) Likewise, it’s white liberals in university faculties that decide who gets tenured as an “Islamic Studies” professor. It’s also white liberals who bankroll most political activist groups claiming to speak for Muslim Americans. (CAIR might be an exception given foreign funding.)
Barring a recreation of the Muslim-GOP alliance of 2000, it’ll be white liberals who have the biggest say in appointing the first “Muslim” Supreme Court Justice. It will be no surprise that this person will think white liberals are right and the vast majority of Muslims are wrong on every issue where the two disagree.
> It’s also white liberals who bankroll most political activist groups claiming to speak for Muslim Americans. (CAIR might be an exception given foreign funding.)
??
What your dad is complaining about also represents a generational gap within the Muslim community. There are a lot of young Muslim Americans who are quite religious (more personally pious and abiding by the dictates of the religion than me, certainly) and simultaneously very comfortable identifying as progressive and allying with groups who hold views contrary to our religion's beliefs. For example, I was briefly the president of the Muslim Law Student's Association at Columbia. Our year and the previous year were not that practicing, but the year I was president, we had two incoming 1Ls join who were two hijabi girls who were simultaneously very religious and very progressive. They wanted to partner with all sorts of organizations whose beliefs are, in my view (and your dad's), inconsistent with Islam (i.e. pretty left LGBTQ groups). They also wanted to lobby the law school for prayer space within the building because they pray 5x a day.
What's more, plenty within the Muslim community, irrespective of age or views on social issues, believe that far-left positions on economics and also the environment are more consistent with Islam than moderate or conservative positions on those issues. Shit, I know a Muslim guy who voted for Trump because he hates feminism who agrees that market socialism is the most consistent economic position from an Islamic perspective.
> It will be no surprise that this person will think white liberals are right and the vast majority of Muslims are wrong on every issue where the two disagree.
Whose fault is that? Why fault liberals for appointing an ideologically-aligned justice instead of faulting Christian conservatives for their bigotry and short-term thinking w/r/t Muslims?
With due respect to you given our back-and-forth in this thread, what you're saying does not strike me as logically tenable, and instead seems more driven by a kind of emotional response. I agree with the general sentiment of being against this stuff, but I think you want to see what basically amounts to a kind of "conspiracy" here that doesn't exist. A huge part of why all of the issues raised in this thread exist is because of a dynamic where this country has tended to skew heavily conservative (compare us to the rest of the Western world) and biased, and substantive change seldom happens. IMO, there's a huge backlash factor at play that makes contemporary progressives more extreme than they should be.
Not sure how far this is the case in this instance, but immigrants (and many Americans) generally have a blind spot where race and law intersect in US history. Most have only consumed the prevailing narrative of US history promoted by the dominant society which is heavily sanitized to say the least.
After studying what would be considered heterodox US history (much of which can be verified by economic history) and becoming aware of the how gears have really worked in the US, I wonder how much of this "general ignorance" reality that I'm describing applies to your anecdata.
There’s lots of “data” you can bring to bear on this—poor asian children are more than twice as likely as poor white children to become affluent as adults. Hispanics (who mostly come here in poverty) have similar economic mobility to whites and converge economically with whites within a couple of generations. Etc.
My dad remarked the other day that, after more than 30 years in the US (in a county that was solidly red for the first 15 years we lived there, including right after 9/11), he was pleasantly surprised by how he had encountered almost no racism. My family members, who have immigrated all over the country, most recently to Texas, have had the same experience. And I don’t think these experiences are unrepresentative: https://www.pewresearch.org/fact-tank/2013/09/16/miss-americ...
Why do we need some history course to tell us that we’re oppressed?
For the people that fought for the rights of non-European (Asian, African, South/Central American) immigrants including your Dad, to come here and also fought for the seemingly non-racist present your Dad enjoys, ignoring history is a betrayal of their sacrifices.
This ignorance is also used as a tool to attack their valid claims about extensions of the racist past that leak into the present and their long term losses as the earliest uncompensated investors in the US project.
It's ironic that I heard Ketanji Brown Jackson at her Supreme Court confirmation hearing this morning, defending her work defending Guantanamo detainees as their public defender.
As she (rightfully imho and more eloquently) put it, a core aspect of the US legal tradition is that everyone deserves representation. Regardless of what they're accused of doing and who they are.
https://wwws.law.northwestern.edu/about/news/newsdisplay.cfm...
I spent most of my career doing things like criminal defense and representing people with disabilities. In those areas of practice, things like CRT are badly needed. There can be no realistic dispute that the heavy hand of the law comes down more heavily on criminal defendants of color than it does those who are white - examination of the roots and causes of institutional racism are the best ways to combat this issue, and perhaps some discussion of these topics even in law school is warranted.
That said, I agree that most legal education is more practical and traditional than what is depicted in this article.
There can be and there is significant realistic dispute: https://www.clarionledger.com/story/opinion/columnists/2016/...
There can be no realistic dispute that CRT has caused far more harm, division, and destruction for our society than it has benefited anyone. It is a cancerous ideology that needs to be excised.
I also tend to be skeptical of left-wing outrage fodder. We live in a media environment where outrage and stoking of controversy are king. Instead of "if it bleeds it leads," it's "if it offends it leads." It's this way because it gets clicks.
Consider that skilled developers might, on principle, prefer not to work at Facebook/Google or in the defense industry, etc. Maybe they just don't agree with the means and ends that a company uses to generate large profits (and salaries). So sure, a good attorney might prefer not to use his or her rare talents to support a business that gets paid millions of dollars to support/justify a cause/person/business/policy that the attorney doesn't personally agree with. Nothing wrong with that - and certainly not proof that the legal system (or tech industry) has been "taken over" by those who simply prefer to work at other firms with missions they believe in.
My Linkedin is already associated with my HN account (for better or worse, probably the latter), so I'll post the link below and you can contact me on there if that's convenient and you're interested:
https://www.linkedin.com/in/samier-saeed-9335553a/
Thanks
I am in a similar position as you. I have practiced for more than 10 years, and at one of the largest law firms (which will be kept anonymous), and I have forever been a full-time trial litigator. And I do not share your experience.
I've seen the exact opposite, i.e. as per what the article has described - 'woke' juniors coming in with ridiculous expectations, and being a bit too forward despite their lack of experience. I've seen resumes where applicants wrote that they preferred not to be hired at the firm if it didn't include the diversity policy of their choosing (and which is shameless, since a large firm has no ends of good applicants to select from), and where these applicants listed their own social activities (none of which included legally-relevant matters) with 'woke' topics as if that were of any inducement to a large legal firm that was billings-first, over virtue-signalling. I've seen some of these folks during meetings virtue signal and judge against other associates who they thought didn't reflect their standards, which was very toxic for the work environment as your political/social ideologies should really be kept out of the workplace. And so on.
If law firms are shaped by businesses, then the institutions producing these new students - and capitulating to these unrealistic 'woke' demands - are educating the new generation completely devoid of legal business reality.
When there is a progressive version of FedSoc, then they might be poised to takeover the legal system. But for now, conservstives have taken it over by correctly identifying the power of the judiciary--the least accountable branch, btw.
Personally, I am fortunate to be at one of the least woke biglaw firms and nobody in my first year class is like that.
However, Bari Weiss did resign from the NYT over "Cancel Culture":
https://en.wikipedia.org/wiki/Bari_Weiss#2020:_Resignation_f...
The whole wiki is a great read, if you want to understand what her slant is.
Most law firms run extensive diversity programs. If you bother to look into at all, it's obvious that black and hispanic applicants to law firms get a massive boost. This is on top of the massive LSAT bonus they get. Getting into a top 14 law school as a white guy requires being in the top 5% of the test scorers. For blacks and hispanics, it's more like top 20-30%. Same goes for law school grades and recruiting into law firms. So by the time a black guy gets hired at a top firm, they've had multiple, stacking advantages over white people.
As an associate at one of these elite firms, you will be dragged into diversity training where older associates boast about reporting people to HR for various microaggressions.
The vast vast majority of big law firms will refuse to approve pro bono work for socially conservative right wing causes. Nor will they allow you to represent a racist in their criminal or civil disputes. These same law firms will happily represent murderers and child molesters to try to get them out of jail (as they should, but they should represent the people with unpopular opinions too).
So if you're not seeing this stuff and noticing how crazy it is, it's probably because it's aligned with your politics and you don't mind.
And when I say everyone, I mean it. People assume that it's just "conservatives" complaining about these ideological changes. But to be clear, all of the people quoted in this article--like the overwhelming majority of lawyers--are liberals: David Boies, Andy Koppelman, Nadine Strossen, etc. Indeed, they're probably well to the left of your average Democrat.
Also, when it comes to the legal system, you shouldn't disregard complaints from "conservatives." The reason legal process works is because, even though it results in winners and losers, everyone at least everyone agrees in the process and the principles underlying it. The faith Americans have in the legal system is remarkable given that 90% of lawyers are liberal Democrats, while most Americans are Republicans or conservative Democrats. (Fun fact: about two-thirds of the country still opposes the half-century old Supreme Court precedent banning school prayer.) Abandoning the dedication to neutrality and objectivity that has been championed by even liberal legal organizations up to this point will have profoundly negative consequences for the rule of law.
This is an odd hill to die on, especially for an attorney who knows how the US legal system works. Everyone, no matter how despicable, is entitled to legal representation.
You see a similar "code" in medicine. For instance, when the Boston Marathon bomber Dzhokhar Tsarnaev was arrested by SWAT, he was taken to the hospital and treated by doctors for his wounds. The medical staff wouldn't even think of objecting to treating a known terrorist, because their duty is to be physicians.
See page 3: https://coronavirus.health.ny.gov/system/files/documents/202...
Disgusting.
https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investi...
So the white people who have poor socioeconomic status, access to health care or are exposed as front-line workers are just out of luck, eh?
It's a racist policy prima facia.
Like it or not the fact is that race and ethnicity is in fact a decent indicator of probability that someone's case will progress to severe COVID.
Maybe that is due to "longstanding systemic health and social inequities" or maybe it is due to something else but the why doesn't really matter from a triaging point of view. From a triaging point of view it is not much different than obesity or age or any other observable characteristic or attribute of the patient that experience has shown correlates with outcomes.
They do it in the hopes the most charismatic people in the law profession can actively mislead the judge and jury.
Or in other words they do it in the hope that who ever is best at arguing will win.
Is a lawyer who has liberty to reject a client because the client can't afford the lawyer's billable hours also at liberty to reject a client because damage to the lawyer's reputation for representing that client is factored into the cost of doing business?
"Representing you will actively damage my future business, so you can't afford me" seems like a consistent position a lawyer could take on why a client must seek representation elsewhere.
The most talented lawyers would say "I don't take cases from scumbags like you. Find yourself one of the lower tiered lawyers.". Instead of saying "I work for whoever has the most money."
They are the only institution that came out of that looking like anything other than a bunch of idiots.
Feds? Dropped the ball and engaged in witch hunt to make up for it.
Staties? Dropped the ball, endangered the public and violated civil rights left and right.
Courts? Needlessly shoddy kangaroo trial.
However, the process of litigation is not the representation or discovery of truth, it means currying the favor of a judge or jury - which is what makes current critical theories of social justice so pernicious, because they are also based on this "throw everything at it and see what sticks," approach to political power. Students coming out of schools appear to not be educated as stewards of truth and culture, but as raiders and looters of it.
If you have ever found yourself in opposition to someone using political complaints, they also often litigate in the same way, where you may not have even done something objectively wrong, but you have let yourself become exposed to someone leveraging a taboo against you the way that prosecutors can choose to lever laws, and it doesn't have to be true, if you have something they want (or don't want) there are no conseqeunces to lying or misrepresenting facts in the course of social justice. The judge and jury today is social media and this ubiquitous "narrative," where participants trade in slanders.
Part of this ideology is that "muh freedom," e.g. limits to state power and accountability to principle, only deprives marginalized people of complete power to wield justice if/when they seize the reins of it, but it is supported by another intellectual solvent of subjectivity that means there is no objective truth, only appeals to power and consequences.
These are the factors that made their way out of the courts, into the culture, and are now making their way back into the courts as a zombie freak ideology where there is no truth or meaning in language, and sadly I don't see the centre holding.
Is that the person is innocent until proven guilty.
That's part of being a lawyer in the American legal system and if you can't deal with that then you shouldn't be one.
This echos of some of the "doctors" during COVID who declared they'd rather let unvaccinated people die than treat them. Granted, most of them were probably saying this for attention and twitter points but it's still an amazing declaration to make.
Although I do agree this scenario of quitting a firm because the firm represented someone is a stark departure from these traditional exceptions. I get that people don't want to work for a company that does morally wrong stuff, but I don't think providing a defense should fit that. The whole concept of the system is that it should be a fair fight under the rules of law/procedure. It's almost like they're saying that they think the rules aren't fair, but that they would rather not afford people their due protection than try to correct the actual injustices in ehe system.
Now in practice, you would probably have to tell them their best chance is to make a deal (like 80% or so of all cases anyways). This generally benefits the courts (volume is too high to process), the prosecutors (guaranteed win), and the defendant (lesser sentence).
You might even think that the rules/laws are wrong or are not just. This shouldn't interfere with the idea that everyone gets a trial under those rules. If this is case, then it might be a good idea to get out of that line of work.
Also, there is a big difference between not wanting to work at a firm that represented someone and not taking on a case personally. You can personally say you don't want a case for some reasons (like not being able to do a good job), but if you're saying that nobody should represent them, that's an affront the the principles of your profession.
I think it can be really hard on lawyers at times. Society really frowns upon a criminal defense attorney's representation of a rapist, and of course their opinion isn't changed when the defendant is found factually innocent at trial.
The USA has a legal system wherein even a guilty murderer can walk free if the police used unconstitutional means to gather the evidence against them. This system was put in place by judges (not by legislators) simply because they were sick of police and prosecutors using these unethical methods to convict, and then there was no investigation or misconduct charges against them.
While guilty murderer can walk, courts are also super eager to accept shoddy "scientific" evidence. And being defense layer is also worst for your career the being prosecutor. So, I am not sure it is as rosy as you make it sound.
Thanks for pointing this out. Don’t really care for the OP or most of the discussion, but I think this observation is really something to think on.
I’m not part of law so I can’t relate to that topic, but I can apply this pattern to most institutions (or markets) I’ve interacted with:
* healthcare market (movement to socialize)
* big tech institutions (lots of younger techies support unions, blatantly hate on their big tech employers, etc)
* housing market (upzone or socialize housing are popular topics)
* university (everyone wants the student loan status quo to change, the elite school status quo is garbage too)
Etc…
Anyone who works in Tech sees this at just about any All Hands meeting. It's really amazing to watch.
The mindfuck for me is (we have these types in academia too) how they rack up a thousand and one political aspirations other than better wages and working conditions, before ever actually achieving a legally recognized union that can bargain a contract.
Our current "unionization effort" at my job has stances on dormitory construction, affordable housing, at least two theaters of foreign policy, COVID policy, racial justice, gender justice, and other issues. Also it gave up trying to obtain a formal union election and a contract from 2017-2021 because Trump was staffing the NLRB with the wrong people. Now under Biden we're "trying" to unionize again, but it seems to be the second year of the effort and everyone's still taking "solidarity stances" while conducting "trainings" for how to go and get people to actually sign union cards.
I signed my freaking card in 2018 and de facto they've done everything except fight for our interests as workers. I think that terms like "social justice" are often far too vague for useful discussion, but I've started thinking the vagueness is the point. "Social justice" seems to provide a useful way of melting down many different causes and different constituencies into a nondescript stew from which activists can spoon themselves "campaigns" to work on, without any accountability for having to win something concrete.
The real story here is that institutions have gained so much power in society such that they have eclipsed every function in daily human life. The people who lead them have arbitrary and capricious control over prices, investment, transportation, and justice. The way people have responded to this is just part of the story. I want journalists to report on the whole story.
Sounds like the issue is the bureaucratic organizations, not the people who choose to be silent about certain issues/topics.
I'm not sure this characterization is correct. Their argument is much more about the SJW groups pushing new erosive and pernicious norms instead.
Very true. The question is not why left-wing college grads can wield arbitrary personal power based on some job they got at a prestigious private institution. The question is why jobs at prestigious but still ultimately private, undemocratic, unaccountable institutions have so much arbitrary power in the first place.
And IMHO the answer to that involves a lot of talk about how stupid, untrustworthy, self-serving, racist, corrupt, etc the actual voting public supposedly is.
And said as though the left-wing college grads are completely immune to being stupid, untrustworthy, self-serving, racist, corrupt, etc. (OK, they may be less racist. It's a start. The rest still applies, though.)
That hit painfully close to home. I once said I liked the speech George Bush gave about Islam after 9/11–based on being a brown guy after 9/11–and was confronted by a white woman who told me I should “educate” myself on how “Islamophobia had damaged Black and brown people in America.” (She was, of course, “too tired” to educate me herself.)
I like to think I'm a good driver, but sometimes I am (let us say) rather relaxed about strictly following the stripes on the road. My wife sometimes says how tiring it is trying to keep the car on the road when you don't have a steering wheel. Well, people like this lady you ran into must find it exhausting trying to keep the culture on the path of righteousness when all they have is nagging.
For a job, the scope of responsibility should match the scope of authority, or it's very frustrating. The scope of their authority very much does not match the scope of their self-appointed responsibility. One would wish that the frustration would lead them to question whether they really should take on that self-appointed responsibility, but many won't...
Like, guess who really hates Daesh/ISIS? Middle Easterners. You haven't seen someone hate ISIS until you've seen Syrian refugees hate ISIS.
That's a problem that should be talked about and addressed, but blaming people who are knowledgable about the system (licensed attorneys) for a changing set of values due to reduced trust in the system is silly. If a system is consistently producing outcomes that are different from its value, the system is broken, and it people are going to rationally lost faith in its old customs.
Except the evidence that these ideologues cite for this divergence from values is inequality of outcome, which is a ridiculous metric to gauge the fairness of a system which presides over a culturally and genetically heterogeneous population. And that's the key issue with so called CRT, which has become somewhat of an umbrella term both for directly influenced pedagogy and ideologies with underpinnings which are simply similar to CRT in spirit: when you naively presume that all peoples are identical in ability and behavior, save for influences of the economic and justice systems (i.e. ignoring culture and genes), then naturally the only allowable answer to the question of inequity is discriminatory injustice. And the outcome of such shortsightedness is broken, often reverse racist policy, which is exceedingly quick to make excuses for suspects of the "right" (minority) demographic and particularly harsh on suspects of the "wrong" ("privileged") demographic.
This is ultimately an overcorrection to the injustices of slavery/jim crow and WWII-era nazism - we've taken race and cultural blindness a step too far, conflating equal treatment under the law with equal outcome under the law (and in other institutions as well). If your ideology does not allow for differences in average behavior/ability/values as an explanation for different average outcomes then it becomes trivially easy to see the boogeyman of racism/sexism across institutions and justify what amounts to throwing the baby out with the bathwater.
I'm not sure what to say to that.
But such evidence would point to the system not being demographically blind.
If you disagree then you disagree with CRT, meaning we don't have to convince you that CRT is bad, you already agree with us.
There exists a disparity between black men and white men when it comes to sentencing, and a disparity between black women and white women.
So while yes, gender is a variable in outcomes, race is an additional variable, that's constant between genders.
The "what about gender!?" argument against CRT is just what-aboutalism that addresses neither issue.
But it's a funny one in that it acknowledges the core complaint of CRT (a facially neutral system can result in discrimination based on secondary characteristics evidenced by outcomes) while shifting the characteristic that is being discriminated against.
If only there was some field of study or theory that considered the intersection of these characteristics and how they can overlap and impact outcomes.
It explicitly acknowledges gender as an intersecting variable.
The idea disparate outcomes between genders are "fair" isn't supported logically or evidentially, especially when we consider misdemeanor crimes without a component of violence.
Can you link to a prominent CRT advocate speaking up about white men getting harsher sentences than black women? Otherwise I don't believe you when you say they don't consider this fair. The times I have argued about this they always start bringing up culture or genes to explain the differences, never that men are less privileged under these circumstances.
You seem to want to discredit CRT based not on its actual academic discussion, but how it gets distorted within pop culture.
So they say, them saying it doesn't mean it is actually true though.
> You seem to want to discredit CRT based not on its actual academic discussion
You were free to link an academic discussion where they pointed out these things, but you didn't. Nothing comes up when I try to google for it, hence I'll conclude it doesn't exist.
Edit: The problem with these discussions is that you use the ideals for your own things and the actual implementations for others. Take meritocracy for example, meritocracy is inherently anti-racist but in practice it might be racist. So when you see someone argue pro meritocracy you see them as probably racists or at least not anti-racist. Similarly when I see someone argue for CRT I don't see all the things they say CRT to be, but what it is in practice. Ultimately you can't hide behind theoretical definitions, trying to practice meritocracy leads to some problems and we should acknowledge that, similarly the CRT we see in practice also has lots of problems we should acknowledge.
That's not a debate worth having.
Hence you can't just say that I need to read more, I have read enough that I know the topic isn't something they care about so it is basically absent everywhere. If they actually do care about it I would like to read the book or study, I have searched a lot for them but they don't seem to exist.
And you can't say that the topic is so obscure that it wouldn't be covered anywhere. The rate at which men get shot by police and get put into prison more is one of the highest and most notable disparage effects any demographic faces, black people are twice as likely to get shot as white people, but men are 20 times as likely to get shot as women. If they really cared about those things then this would be covered in every introductory book to the subject, yet I fail to find even a single one who even brings it up as a footnote.
I'd be fine with CRT if it was practiced properly, but everything I've seen of it tells me it isn't practiced properly. That is what happens when you call everyone who criticises it racists or similar, then you don't listen to feedback and the field gets corrupted.
It's a critical academic framework. "Practiced properly" it's something academics debate. There is no "proper practice" beyond applying the generalized methodology by examining outcomes and asking whether they're the result of bias.
I'm not here to provide you a free education, but literally all of the foundational works by Bell, Crenshaw, Guinier, et. al. cover intersectional as a component of their criticism.
There exists a disparity between men and women when it comes to behavior, which is reflected in sentencing. This is the key component that people are unwilling to acknowledge because they have been conditioned to express a visceral reaction to anything remotely appearing to suggest differences in behavior/decisionmaking among demographics. Which, again, leads us to the invalid assertion that all differences in outcome are born of unequal treatment; invalid because the other half of the answer is socially taboo.
Not sure where to start with that.
"Deserve" is a loaded term, a moral judgement and has no actual bearing on this argument. And let's also acknowledge that not all blacks in the US have these problems, Nigerian immigrants are one of the most successful demographics in the country by all measures, despite the supposed abundance of racism holding all other African Americans back.
That the Nigerian Diaspora is relatively successful, especially when compared to the native population isn't shocking when we remember that most "legal" immigrant communities are more successful than the native population.
That disparity generally disappears by the third or fourth generation.
Turns out the process of immigration is a fairly good self-selection process [0].
But, the differences between immigrant groups has a racial component too.
I've not done enough in depth reading on the disparity (mostly summaries from other people I vaguely remember), but I do often think about Gladwell's piece "Black like them" [1] when the topic comes up.
Definitely something I need to read more about.
[0] https://www.nytimes.com/2019/10/28/upshot/immigration-americ... [1] https://web.archive.org/web/20110514033755/http://www.gladwe...
You can't use the outcome as evidence the outcome was justified.
This is why these differences are studied.
Are you simply unwilling to acknowledge any (subjectively) negative differences between cultures? Does culture influence decisionmaking or not? Is respect for law and academic achievement not a cultural trait? This is such a trivially obvious argument if you are willing to move past the irrational taboo that relegates us to pretending that culture can only vary positively. Does culture influence behavior and decisionmaking or not?
We only know how many Black Americans are charged with and then convicted of murder.
Accepting the disparity that exists because "well, it's more." is, if nothing else, lazy.
We do not have a good understanding of the violence incidence rate amongst Black Americans (or any demographic). We do have a precise understanding of victimization across demographics.
But, even if you just assume that any wrongfully convicted Black American would be replaced by a different Black offender, you still have to deal with the disparity in wrongful convictions and its implications in terms of criminal justice and race.
That you managed to skim that paper and find the one already established statistic from the same flawed data set, without considering those implications is unsurprising.
You are bending over backwards to deny the fact that black men are killing black men in black communities in significantly higher numbers than any other group. No amount of false convictions erases this fact, the bodies are hard to miss. That alone indicates a cause other than discrimination in the legal system.
You seem to be bending over backward to skim past those, focusing on a single statistic that allows you to push a simplistic, prejudiced narrative.
Even if the murder rate disparities are 100% accurate, that does not explain or justify any of the other disparities we see in evidence.
If you believe people should be in jail for non-violent drug offenses, we can agree to disagree. I'm primarily a libertarian, and believe in the basic ethos of bodily autonomy.
Don't you think you're reaching a little? Or do you honestly mean to imply that whites commit just as much murder per capita, but are simply 10x more likely to avoid arrest and conviction, because racism?
Now add race: "If more black people end up in jail, because blacks are committing more crimes, it's not discrimination towards blacks, but discrimination towards crimes".
But yes, to your point, you can't judge solely based on how many are in jail, that they must be committing more crimes... because the justice system isn't perfect, and innocents do end up in jail. But again, to the other's points, it's entirely in the realm of possibility that black people are in fact committing more crimes, and hence there should be disproportionately more of them in jail. As to whether that's actually the case, is not easy to say.
Am I reading this wrong? Interested in hearing which cultural and genetic elements impact legal outcomes.
And then genes have direct (e.g. warrior gene, brain structure) and indirect (e.g. hormone concentrations/sensitivity) influences on behavior and decision making. In addition to the heritability of intelligence which is going to influence both propensity for law breaking and conviction rate.
You can't celebrate diversity while only pretending that demographic differences are positive (itself a culturally subjective measure). That's a recipe for cross-demographic resentment and suboptimal legal and social outcomes, as we're increasingly seeing with this new generation of up and coming ideologues across our institutions.
People see sentiment like this and recoil in horror as though it justifies racism against individuals; on the contrary, these differences are merely shifts in normal-like distributions, i.e. we should still treat individuals equally in law and industry, but we must acknowledge that there will be average differences in outcome across demographics if we want a society based on equality of opportunity. Equality of outcome can only be achieved by handicapping the competent individuals that we rely on for progress of technology and civilization.
Despite what you may have heard, reality does not have a liberal bias, it unfortunately has a racial bias, because of the nature of evolution. Thousands of generations of adaptation to vastly different geographies has left it's mark, and denying this truth, while well intentioned, is dangerously misguided.
> If you are a Common Sense reader, you are by now highly aware of the phenomenon of institutional capture. From the start, we have covered the ongoing saga of how America’s most important institutions have been transformed by an illiberal ideology—and have come to betray their own missions.
> Medicine. Hollywood. Education. The reason we exist is because of the takeover of newspapers like The New York Times.
> Ok, so we’ve lost a lot. A whole lot. But at least we haven’t lost the law. That’s how we comforted ourselves. The law would be the bulwark against this nonsense. The rest we could work on building anew.
> But what if the country’s legal system was changing just like everything else?
Feels like it's kind of pointless to talk about the article and try to have a conversation between individuals who believe this and individuals who think that all sounds like a wild conspiracy theory.
Hollywood has betrayed its mission? And you click through and it says Hollywood used to be a 'boys club', by which I guess they mean full of sexual predators who were above the law? But now it's lost its way?
The clash of worldviews makes any opinions on specific items almost irrelevant.
https://www.greenpeace.org/usa/democracy/the-lewis-powell-me...
> Current examples of the impotency of business, and of the near-contempt with which businessmen’s views are held, are the stampedes by politicians to support almost any legislation related to “consumerism” or to the “environment.”
When the organization that represented Nazis because of its singular commitment to free speech changes that approach, I don’t know how you can call it a “conspiracy theory.” https://www.nytimes.com/2021/06/06/us/aclu-free-speech.html
If you want a conservative anti-"woke" angle on things, The Weekly Dish and Matt Taibbi are much better reading. Even if you disagree with a lot of what they write, at least they mostly try to argue in good faith.
But who knows really. It could also just be people supporting her because they want what Fox News used to provide but in online format.
I'm going back into tech because the culture of law is much more broken and repellant, but one thing I can say in favor of lawyers over engineers is that, IME at least, they are overall much more willing to recognize when they aren't well-versed in other fields, including both substantively and in terms of mental models.
That's a refreshing perspective. Any inkling as to why? I'm guessing prolonged exposure to the adversarial process would cause lawyers to be a bit more introspective about the limits of their knowledge, but are there other reasons, too?
1. Lawyers must really internalize an attitude of recognizing the limits of what they know. They have to speak precisely. They can't make claims they can't substantiate. They can't speculate. Sometimes lawyering involves making a lot of assessments of who knows precisely how much. It also involves dealing personally with a wide range of other subject-matter experts. So what you said about the adversarial process is correct, I think.
2. Many (not all) engineers seem to downplay non-STEM qualitative thinking. On phone, so hard to fully explain, but I think part of it is that they think that because what they do is specialized and hard, other stuff is easy. Lawyers are arrogant too, but in different ways.
Maybe non-STEM stuff is easier, but it has its own complications, and I think engineers are not inclined to see them.
Would like to hear if this is consistent with the experiences of others.
Yeah this is probably key.
this assumes that there was due process, presumption of innocence and a "rule of law" to start with.
truth is, rich people can afford the best lawyer, poor people have to take a 10 years plea deal.
I gave a bit of thought into this and came out with a solution which is called "loto-lawyer" you spin the wheel, and you get what you get as a lawyer. As ridiculous as it may sound, it would be something closer to justice...
The article doesn't assume that at all. Just because a system is unable to live up to its ideals in all (or even most) cases, we should still be concerned if the ideals themselves erode. This is a silly way to downplay the central subject.
Please don't call names in arguments here. It's against the site guidelines (https://news.ycombinator.com/newsguidelines.html) because it leads to much worse discussion. Your comment would be fine without that last sentence.
"Silly" modifies "way," meaning the line of argumentation, not the speaker. Are you changing the guidelines to prohibit criticism of argument?
"When disagreeing, please reply to the argument instead of calling names. 'That is idiotic; 1 + 1 is 2, not 3' can be shortened to '1 + 1 is 2, not 3."
I stand behind my comment and loto-lawyer to illustrate how broken the system is until we find a better alternative.
your net worth should not have anything to do with "how much justice you can afford."
I have plenty of examples to back this up.
Maybe then we can continue with the lower houses of US legislatures.
A much larger part is the unequal application of the law through prosecutorial and law enforcement discretion. Also, the best lawyer won't mean much if you get an incompetent or biased judge.
Then you have the issue of just being charge will cost a ton of money. Even if you're innocent, you're financially punished. Most summary offenses cost more to hire a lawyer to defend your innocence than to plead guilty and pay the fine. This is by far the biggest farce of justice - being punished as much as a guilty person just to defend your innocence.
>truth is, rich people can afford the best lawyer, poor people have to take a 10 years plea deal.
Exactly this. The author does a lot of hand-wringing about the loss of the current institutional practices, but never stops to consider that maybe those institutional practices were never as good as they were sold to be anyway.
Justice has never been truly blind, for exactly the reasons you note. In a society that is structurally, historically biased (based on race, wealth, etc.), any institution that pretends that bias doesn't exist will simply allow that bias to be continue. This new generation has seen the flaws in that mentality and has chosen to fix them instead of continuing the problem.
To put it another way: "evil prevails when good men do nothing". The system effectively "does nothing" now by ignoring existing structural bias, and thus allows the existing evils in society - racism, classic, etc. - to affect its outcome. It doesn't matter if the system isn't designed to be "evil", or that the people acting within it don't consider themselves to be evil - The evils in society will persist if they are not actively opposed.
A change in mentality has occurred among the profession (and also as a wider cultural movement) that societal evils need to be actively called out and opposed rather than quietly tolerated. And honestly, I find it hard to disagree.
It isn't already? My experience indicates that rule of law is commonly ignored, prosecutorial and law enforcement discretion leads to biased and unequal application of the law, letter of the law and strict construction is ignored in the aim to convict people who "deserve" it, and that the rights of the people are often ignored.
I think that training on bias is a good idea. After all, some of these lawyers become judges and attention to all potential bias would be useful, and necessary for a fair trial.
Same as the nonsense about 'cancelling' - the actual complaint is that uppity low-status people are talking back.
With people like this, every complaint is an admission.
While stopping teaching due to student fragility is rather unfortunate. I have to say this is one aspect of America's brand of justice that I think needs to change. My lay understanding is that retribution simply does not work -- and often is actually counterproductive, especially once you price in the cost of enacting the retribution. Furthermore a vengeful society or plaintiff needs to have some cooling off time, or spiritual growth to come to grips with the reality that life is full of horrific things and that making the best of it (neither nihilism nor resentfulness) is the true optimization of the system.
Instead I'd suggest that American justice needs to focus purely on rehabilitation. How can what remains be optimized? Yes that might even include giving an education to a <insert deplorable> so that they can contribute net positively to society.
It's not that the Prof is endorsing them, merely the fact that he is willing to discuss those theories is enough to trigger these students.
Oh no, it is written down. The courts have determined that their notes/complaints/etc are deserving of such secrecy that you can't even subpoena judicial complaints even if they contain exculpatory evidence. They reason that releasing complaints would undermine public trust in the judiciary. I argue that would only be the case if inappropriate punishments (or lack of punishment) were taking place. How about that for conflict of interest - the court granting themselves protections that only apply to themselves...
I had a magistrate show consistent bias (retired police chief no less), unwarrantly yell at the defense, and prevent the defense from voicing a petition to dismiss based on rights violations with the response "that's not gonna happen" (a violation of due process and the state constitution that requires defendants to be heard). It was all recorded pursuant to law. I filed a judicial complaint. They closed the complaint saying there was no evidence of wrongdoing, even though their website lists uncurteous behavior like yelling as a disciplinary infraction and I had a recording. I raised the rights violations and the fact that we were denied from having our petition even heard (another rights violation). The judge said that we would need a record that the concerns were raised in the magisterial court, even though the issue was that we couldn't raise them since we weren't allowed to present the petition. Not to mention, it was a trial de novo ("a complete do-over" according to the judge), which means this is our chance to have complete reconsideration, including the petition.
Same case had an ADA violate several rules. I filed a complaint there too. The Bar's response is that they only investigate prosecutors if the court has already formally declared prosecutorial misconduct occurred. Useless.
Honestly, incompetence and bias is rife in the judiciary. They plainly side with the institution. After all, the government is the one who pays their check, and the more buddy buddy they are with the enforcement side means the less likely they will be cited or charged with anything.
It feels, at best, like it's purposefully conflating these things so it can discredit those criticisms.
It is not a good article.
Since when was that the case? The "people dispensing justice" are judges - and separation of powers takes away the interest of the judiciary from being minded in advancing politics, ideology, and 'movements'.
The "people dispensing justice" have no business in the politics of their day -- their business is strictly concerned with law and evidence, not the fashionable ideology of a particular era - especially in the originalist and constitutional context. Any attempt by "the people dispensing justice" intentionally to advance a cause is malpractice and an abuse of process, not sound law.
It is especially worse now that the 'people defining injustice' are now being asked to jump to conclusions and assign culpability upon sand - i.e. upon allegations, rather than upon evidence. That is not the legal system of America that we know of.
Constitutional originalism is the fashionable ideology of a particular era - the belief that only the inferred opinions of a closed circle of white slaveowning gentry from the 18th century are relevant to any Constitutional question, and that the centuries of social, political and cultural progress from then onward must be disregarded as "radical" and "revisionist."
Originalism is about the *original intent* of laws, at the time when they are made.
The whole idea is rooted in stability of construction/interpretation of laws. Why this is important: if the meaning of a word of law can change so radically based on current events, then judges would find it very difficult to issue decisions and make just judgments based on precedents/stare decisis. (And judges in any event are not to interpose their personal beliefs, or current events onto the interpretation of existing law.)
Parliament makes laws, and amend laws, according to the will of the people - and judges then enforce those laws and changes. Even in the most liberal of (say common law) legal systems, judges are not to make up their own ideas of what the law means as they like.
I have no idea why you're misleading this discussion, that "Constitutional originalism is the fashionable ideology of a particular era". Originalism is not about orthodoxy, or being conservative, or the "inferred opinions of a closed circle of white slaveowning gentry", nor is it against revision - originalism is a strong way to ensure the stability of the legal system (which is the point of the article), and respect for the separation of powers, a key point of modern democracy.
Well, Weiss didn't write this article. It was written by Aaron Sibarium, a contributing writer, not by Bari herself. She may well agree with his major points, however.
“We have successfully frozen their brand ‘critical race theory’ into the public conversation and are steadily driving up negative perceptions. We will eventually turn it toxic, as we put all of the various cultural insanities under that brand category."
The whole purpose of this phrase as used by the Bari Weiss types is to be non-specific, hard to pin down, to mean different things to different people. In other words, to make productive conversation or debate impossible.
Here's some common sense: Most people are reasonable and aren't interested in promoting a totalitarian nightmare. If all the scary implied slippery slope stuff started actually affecting people's lives in a real and visible way, all those reasonable people would change their worldview because reasonable people want to make other people's lives better.
We need a system focused on justice between individuals, not this pay to win legal system.
Edit - Ban plea deals, and publicly tar and feather any judge or prosecutor who fails to uphold the highest legal ideals.
But who I am kidding... The US was unable to even move from the imperial units and Farenheit.
For instance:
>The problem has come not just from students, but from administrators, who often foment the forces they capitulate to. Administrators now outnumber faculty at some universities—Yale employs 5,066 administrators and just 4,937 professors—and law schools haven’t been spared the bloat.
This is an actual quantitative, causal explanation. Why does it not pothole to an entire article or study? I want to know more.
It would be interesting to see whether law schools in specific have "administrator bloat". It's certainly true that generally universities have more admin than faculty--and admin frequently are higher paid, as well, especially in this era of adjuncts making $50/hour and no benefits or job security.
Meanwhile many businesses are starting to adopt the ideologies complained about in the article. Soon you won't be a viable option for providing services if you do not bear the mark "anti-racist" . Already my employer would likely retaliate and/or limit my career if it was found that I commented anything but purely affirmative towards all forms of anti-racist or critical race theory rhetoric. A rhetoric that completely strips me of any credibility due to my race and gender.
It's an area of study, nothing more, nothing less. That one side of the political spectrum is hell-bent on cancelling it should give us pause for thought.
[1] Which is not a novel tactic, and it sure looks like that's what happened with this—but enough discussion of the process by some of those involved took place in the open that we don't just have to guess that that's what was going on, this time. This kind of process is carried out semi-publicly surprisingly often, I suppose because doing so is both easier and more effective than trying to keep it a secret, and, counterintuitively, evidence that it was a deliberate plan rarely seems to harm the effort or blunt its effect.
They're a smoke-screen for getting a certain demographic worked up using fear.
Every word spoken says "different", every actual piece of policy says "there should be no differences whatsoever". But if people's starting positions and cultures were different, they would certainly produce differential outcomes, even in a completely fair system.
Mere disparity cannot be proof of bigotry.
But I don't expect much else from Bari Weiss' publication, where the scariest thing in the world is always some college kids that asked each other their pronouns or something. Why is this even on HN
The one exception is affirmative action; being Black or Mexican (it's not even really generally Hispanic, IIRC, just Mexican) or Native American has a quantifiable effect equivalent to like +10 LSAT, +.x GPA or something. It's quite unfair, IMO. But it's very mechanical. For example, undergrad school prestige matters only at the very margins. Better to have a 4.0 from rando state school and a 170 LSAT score than a 4.0 from Harvard and a 167 LSAT for most law schools.
There is a whole site where people post stats and admissions results that is central to people trying to go to top schools. Nobody was getting results that deviated greatly. The racial boost was also well quantified on there (you check a box if you're an applicable race).
i.e. peremptory strikes. Jury selection was clearly, with many many examples, used in the past to create a group not that was not the defendant's 'peers'. Even with the '86 court ruling that nominally ended peremptory strikes on the basis of race, most lawyers recognize (as do Gerrymanderers) you can find related reasons to strike them within the realm of plausible deniability (i.e bias against police).
The author presents no reasoning from those in favor, only disgruntled and largely anonymous counterpoints.
Furthermore, the praise of S African policy is a cherry picked example and clearly far outside the mainstream. One American official praising an approach is hardly a bellwether.
Re: Kyle Rittenhouse, citing one example as a potentially adverse ruling ("liberals would hate to convict this black man!") is hardly a good counterargument towards vigilantism. Just this week, a Florida 70 year old was acquitted after shooting dead a man who threw popcorn in his face. Even if we had to admit there is no perfect middle ground (may or may not be true), I think over-convinction of vigilantes is clearly preferable to allowing greater death and destruction through the furtherance of stupid legal theories like Stand Your Ground.
You are kinda making the author's point. The notion that we should over convict for the greater good is NOT what the American justice system should aim for. It is better for some guilty to go free rather than some innocent to get punished. While I agree Stand Your Ground laws are not good and suffers from the same problem: this notion of presuming guilt until proven otherwise.
https://www.theguardian.com/commentisfree/2022/feb/08/chevro...
Sounds good. Lots of people mistake the law for morality, it's important to make them think about how that's not the case, and if the law is made by agenda-driven politicians, it will necessarily be unfair to some.
> As of last month, the American Bar Association is requiring all accredited law schools to “provide education to law students on bias, cross-cultural competency, and racism,” ...
Sounds good. These are things adults should know about.
> One criminal law professor at a top law school told me he’s even stopped teaching theories of punishment because of how negatively students react to retributivism—the view that punishment is justified because criminals deserve to suffer.
Sounds good. Deterrence is ineffective, and the criminal justice system needs to move to a more rehabilitative model.
> [reparations & prison abolition shirt image]
I'm not sure why I should care about this. It's not censorship or illiberalism to advocate for these positions.
> At Boston College Law School this semester, a constitutional law professor asked students: “Who does not think we should scrap the constitution?” According to a student in the class, not a single person raised their hand.
This would be the expected response to any question in an 8 a.m. class.
I could go on. These cancel culture/critical race theory/campus illiberalism stories are junk.
> This would be the expected response to any question in an 8 a.m. class.
Not only that, you're gonna get a fair number of votes for "scrap" in any classroom full of people who've spent much time studying and thinking about the constitution. Most "no" votes will likely be from people approaching it practically, as too difficult to realistically improve on in the current political environment—an "in an ideal world" kind of framing would have a real chance of getting a very sincere and considered, universal "yes" from the whole class.
This is because it's fairly bad, and it's been (plenty) long enough to see exactly how and why it's bad. Some parts never worked right (the electoral college comes to mind, which broke completely about as soon as it came in contact with reality and effectively never worked the way, or had the effect, that was intended, at all) and a bunch more kinda work, but are clearly not optimal compared with proven alternatives.
It really wasn't, and I'm sorry. I'll bring this up at the next Deep State meeting. Keeping college kids under control is something that all political conspiracies struggle with, and we'll do better.
I used to be quite hateful when it came to Huntington, I regard his "clash of civilisations" theory quite bogus (or I used to, not so much anymore with this war in Ukraine), and as such this was my first book by him that I've read. Published in 1981 it goes through what Huntington calls periods of creedal passion, which are somehow cyclic: 1770-1780 (the Revolutionary period), 1830-1840 (the Jackson years), 1890-1900 (the progressives/populists), 1960-1975 (the civil rights movement, revolts against the military-industrial complex).
I was reminded of that book because of this quote from the article:
> At the University of Illinois Chicago, for example, a law professor’s classes were cancelled and his career threatened for including a bleeped out “‘n____’” on an exam in a hypothetical scenario about employment discrimination. (He had used the same scenario for years without incident.) (italics mine)
because Huntington had mentioned the same thing happening in the 1960s-first part of the 1970s (especially the first part of the 1970s), when things that used to be regarded as normal (for lack of a better word) when carried out by the powers that be (the Government, the police, the University administrations etc) suddenly became tabu and very, very blameable. I.e. exactly like described in this article.
I wouldn't have probably brought this up if the description above wouldn't have reminded me of another excellent comparison Huntington made in his book, that between the creedal passion period of the 1960s-early '70s present in the US and what happened during China's Cultural Revolution. This actual fear (because that's what it is) the professors/teachers have now of their students (supposedly the same thing happened back in the '60s) is pretty similar, as a feeling, at least, to what the University professors in China must have felt during the Cultural Revolution (and yes, I do know that the Chinese professors ended up having a definitely worst fate, but I was talking/writing about the general feeling present in both cases).
Really interesting stuff. Google-ing around for some sources I've also found this Vox article [2] from 2016 that writes about the same book, this time with Trump's election as a focus (I personally think Trump's election and what's described in this article are part of the same, greater thing).
[1] https://www.amazon.com/American-Politics-Disharmony-Samuel-H...
[2] https://www.vox.com/polyarchy/2016/1/6/10725086/promise-of-d...
I have questions.
You have a much more creative sense of reading comprehension than I do.
Nobody said anything about the end of apartheid. They are complaining about the bad things that can/could come having a legal system that is not demographically blind. The article quoted someone saying something dumb about implementing a policy like SA did that had less than stellar results. And then the article went on to quote people who were calling that original quote dumb.
And tech is the next menu item that they will gobble up.
Will? I'd say that's already in progress.
(1) That isn't what happened. The junior associate wanted severance because the named partner represented him.
(2) I would fire any junior attorney who said such a thing. You may think it's acceptable; I do not. Everyone deserves an attorney, not just even when accused of heinous crimes, but especially when accused of heinous crimes. Prejudging a client or potential client based solely on the allegation and news media is antithetical to everything the profession stands for.
The above are fair, and reasonable considerations for any lawyer to mete out to an accused client, in the interests of a fair trial, and for the ends of justice.
Yet what the "woke" community asserts is that any form of representation for accused people - accused, not convicted - is heinous in itself. It is surprising, since the legal fraternity should be first to understand that allegations are not truth -- that even law students have fallen short of this is worrisome, as they are the future lawyers and judges of the country.
Yes, but no lawyer should be forced to defend a specific person either. Effective representation requires at least a basic level of trust and communication between client and lawyer - the consistent negative outcomes associated with poor persons unable to afford their own lawyer and being forced to rely on public defenders who are often overworked and underpaid are long known [1] [2], not to mention that unlike e.g. Germany, DAs in the US are not required to also search for evidence that is helpful to the defense.
In the end, issues of payment aside there will always be a lawyer interested in taking on any case - no matter how heinous - simply because of the publicity that showing good work in defending a client will bring.
[1] https://www.jstor.org/stable/27977109
[2] https://www.theguardian.com/commentisfree/2015/jun/17/poor-r...
Their budget, and therefore, the amount of hours/resources they can devote to your case is a tiny fraction of that of the prosecutor's office.
If everyone on trial had to use a public defender, you'd see this system get fixed by next year. But they don't - which is why people like the author of TFA can wring their hands over how unfair it is that Weinstein is poo-pooed for getting the legal representation in the world. What a travesty! What an injustice! What a generation-defining moment! But please, pay no attention to how the animals and proles get to navigate the legal system.
They're finding quite the hill to die on.
My last jury trial is a good example. There was a lot of mitigating evidence and the prosecutor didn't have a grudge against our client. A non-criminal disposition was discussed and tentatively agreed between myself and the prosecutor. Retained counsel advised against it and client proceeded to trial. Lost on the merits and now has a conviction for a dozen counts of fraud. Then mitigation evidence came in during sentencing and he got no jail time, just had to pay restitution.
But he still has a criminal record. And he didn't need to have one. But the retained counsel got paid, so...
2) Sure, firing them is your right. I just think it is perfectly acceptable to hold people accountable for their actions even if they felt morally obligated to perform those actions. And I fully support those that choose not to associate themselves with anyone, for any reason.
Yes, everyone deserves an attorney. That's why public defenders are a thing. If Harvey Weinstein weren't rich and famous, that's likely what he would have had for his defense.
There's a huge leap from "everyone deserves an attorney" to "everyone deserves a big, high-powered, (and I would argue unscrupulous) law firm"
Then we ought also infer that the junior associates trying to quit-with-severance in objection were doing it for money, not morality.
I can't believe we take these people seriously.
The new law is 'cancel culture and corporate policy'.
Legalman does the best deconstructions of law, and why it isn't as we think: https://odysee.com/@the-quash-w-legalman:5
He asks all the difficult questions.. that don't really have good answers.