Overlawyered: Chronicling The High Cost Of Our Legal System

Dees-graceful: proposing a new orthodoxy at GW Law

Updated twice: According to college paper Nota Bene, the student bar association Senate at George Washington University is asking the law school to consider a proposed policy which would attach substantial new restrictions to student decisions to invite speakers from “hate groups” to campus. (More: GW Patriot; a list of the asked-for restrictions, which include hiring security personnel at the expense of the inviting group and making “this is a hate group speaker” pre-announcements to audiences, is here; Nota Bene reports that the demand will not be considered this semester, and other sources say NB coverage has overstated how far the proposal managed to get). Making matters especially problematic, the blacklist would consist of groups designated as “hate groups” by Morris Dees’s Southern Poverty Law Center [SPLC] or the Anti-Defamation League.

Dees, long a deeply controversial public figure and polemicist, has been roundly criticized in recent years for expanding his list of “hate” and “extremist” groups, sent to law enforcement groups across the country, far beyond violent and criminal groups to include organizations and websites that advocate various (typically conservative) causes in a vehement and unpleasant manner, and thus offend liberal SPLC donors (and typically offend me as well). This year SPLC came in for widespread derision when it added a new category in its hate group report for “pickup artist” blogs, a target of feminist ire.

The demands for a policy change at GW were apparently triggered by an appearance on campus by the anti-gay Family Research Council, a spinoff of James Dobson’s Focus on the Family group. I have about as low an opinion of the FRC as it’s possible to have, but it’s not exactly to be confused with the Aryan Nations — major Republican politicians are willing to appear at its events, for example — and if you’re a student at a law school, it’s probably not a bad idea to be made aware that there are people out there with a wide range of views on the controversies of the day.

When I speak to audiences about the ideological law school atmosphere described in Schools for Misrule, I’m sometimes asked whether the pressures for conformity and silence are getting worse. Usually I argue the reverse, that law schools have tended to become more open in recent years to a broad spectrum of debate. If the advocates pushing the GWU initiative manage to get their proposal taken seriously by the law faculty, I may need to revise my thinking. [Updated 3/28 to reflect subsequent NotaBene report and questioning of its coverage; h/t Peter Bonilla, FIRE]

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“It’s just bad public policy to allow unfettered access to all kinds of food.”

Meet the meddlers: officials from California to Gotham to London who believe that so long as we remain free to smoke, drink and consume potato chips in the privacy of our home, “government isn’t doing its job.” [Gene Healy, Examiner]

P.S. As readers rightly point out, the post should have noted that the speaker quoted in the headline was referring to the subsidized food stamp program, not the same thing as restricting consumer access to foods generally (though some “food policy” buffs certainly do favor the latter.)

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NYT profiles Randy Barnett

The Times devotes a front page profile to the Georgetown law professor (and Cato colleague),who is more closely identified than any other thinker with the legal case against ObamaCare’s individual mandate. (More: ABA Journal, Bernstein/Volokh, Chicago Reader.) I’ve known Prof. Barnett and admired his work for longer than I can remember and this gives me the chance to point out self-servingly that he also wrote one of the very nicest blurbs for my book Schools for Misrule:

“While the public loves to bash lawyers, judges, and politicians, law professors have escaped all blame. Olson provides the inside story of how progressive political ideology became the reigning orthodoxy of elite legal education, providing the legal theories responsible for an overweening government committed to mandating, prohibiting, or regulating every aspect of American life in the ‘public interest.’ I wish I could say he exaggerates but, sadly, the legal foundation of the road to serfdom was devised by law professors.”

— RANDY E. BARNETT, Carmack Waterhouse Professor of Legal Theory, Georgetown Law Center; author of Restoring the Lost Constitution: The Presumption of Liberty

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Will Stand Your Ground change the outcome of the Martin/Zimmerman case?

The Orlando Sentinel asked me to analyze how Florida’s Stand Your Ground law affects the Trayvon Martin shooting case. I conclude that in most likely scenarios, the law will make no difference one way or the other on George Zimmerman’s guilt or innocence, though it does help him on some points of procedure. Jacob Sullum has related thoughts at Reason (more at Cato).

The other piece in the point-counterpoint is from Florida prosecutor Buddy Rogers who emphasizes that claims of justifiable homicide have risen sharply (from 12 to 33 a year), even if homicides per capita themselves have not. I took a look at the crime numbers in this Cato post.

To answer a question, it was the Sentinel editors who elected to describe the antagonists in the Sanford confrontation by way of a given name for one (“Trayvon”) but a surname for the other (“Zimmerman”). My own inclination is to use a surname for both.

Michael Mannheimer has an important post on the role of “provocation” in the Martin/Zimmerman case at PrawfsBlawg. Earlier here, here, and here.

P.S. David Kopel similarly argues that Zimmerman’s guilt or innocence (depending on which version of events is accepted) is no different in Florida from what it would be under the law of New York or any other state; he also defends the rationale for Florida’s use of an immunity, which he argues “does not change the law, but… apparently is effective at reminding law enforcement officers of the standard they are required to obey” under court precedents forbidding arrest without probable cause.

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March 27 roundup

  • NYC: “Lawsuit Blames Apple’s Glass Doors for Plaintiff’s Broken Nose” [Lowering the Bar, CBS New York]
  • Some who pushed enhanced punishment for Dharun Ravi may now be doubting they really want it [Scott Greenfield, earlier here, etc.]
  • NYT editorial on FMLA state immunity is as bad as anyone had a right to expect [Whelan]
  • “Pleading, Discovery, and the Federal Rules: Exploring the Foundations of Modern Procedure” [Martin Redish, FedSoc “Engage”] Summary of important ’09 Redish book Wholesale Justice calling into question constitutionality of class actions [Trask]
  • Would trial-by-DVD be so very wrong? [James Grimmelmann, Prawfs]
  • Contested memorabilia: lawsuits filed over estate of gay rights pioneer Franklin Kameny [MetroWeekly]
  • Feds’ “distracted driving” guidance could impair usefulness of car navigation systems [Cunningham/CNet, earlier]

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Krugman, Brady, and Stand Your Ground laws

I mostly ignore the frothings of Paul Krugman in the New York Times, but his column today pursues a logic that’s insane even for him: in an attack on the right-of-center American Legislative Exchange Council (ALEC), he proposes that Stand Your Ground (SYG) laws tie into a trend of “growing incarceration” intended to line the coffers of private prison contractors. Earth to Krugman: SYG laws bolster criminal defendants’ rights, and your colleagues at the Times have been complaining that as a result it’s too hard for prosecutors to send people to prison for long terms. Next time, could you stop and think before hitting the send button?

In the opinion piece I’m finishing up, I expect to argue that as more facts emerge about the Feb. 26 Martin/Zimmerman confrontation, the 2005 changes to Florida self-defense law known as Stand Your Ground are looking less and less likely to control the legal outcome of the case. Along those lines, I notice in Friday’s Washington Post what I read as a straw in the wind:

“We’ve never thought by itself that the law is the main issue,” said Dan Gross, president of the Brady Campaign to Prevent Gun Violence. “What we think is the main issue is the mentality that that law provides.”

Hmm. So despite hundreds of press assertions to the contrary in the past week, the actual content of the Florida law (as opposed to its supposed furtherance of a vague “mentality”) doesn’t turn out to be the main issue after all. Earlier here and here (& Reason).

Don’t miss related analysis from Eugene Volokh on the scope of the self-defense justification in American criminal law and the standards for probable cause in arresting someone who claims that justification. And Jennifer Rubin weighs in at Washington Post “Right Turn” (quoting me). More: Scott Greenfield, Steve Chapman.

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