"[Judge Kyle] Duncan was treated like a politician, because that’s what he is..."

"... and politicians have long understood that, in the United States, shouting at them is our birthright.... The idea that a political speech deserves the quiet deference one brings to a golf course or a tennis match is an idea that runs counter to our American traditions. I’m old enough to remember the last State of the Union address, and I recall Majorie Taylor Greene spending the president’s entire speech braying like a howler monkey looking for a date. I see no reason for Stanford Law students to comport themselves better than Republican members of Congress."

 
Writes Elie Mystal in "Protesting an Anti-Trans Trump Judge Isn’t Disrespectful, It’s American/Judge Kyle Duncan lashed out at students who protested his appearance at Stanford Law School, but shouting at political figures is our most protected speech right" (The Nation). 

Crack.

https://t.co/c6sbWNpKNF

— Mannie Lennox (@EmmanuelSpamer) April 30, 2022

"When confronted with the reality that the Democratic Party is losing Black and Latino moderates, the response on the left is often to treat their views as morally beyond the pale."

"'Yes, it turns out that a number of people of color, especially those without a college education, can see the allure of the jackboot authoritarian thuggery offered by modern Republicans,' wrote The Nation’s Elie Mystal....  Obviously, nobody is proposing Democrats run on authoritarian thuggery. The question is whether any compromise with the center is acceptable. Obama competed for moderate views by promising that people could keep their private insurance even as he covered those who couldn’t get any coverage, that he would secure the border even as he gave amnesty to Dreamers. Reducing all these spectra of belief to a simple binary, then declaring the opposing position so horrific it cannot be accommodated, is not a political strategy. It is a kind of anti-politics. This anti-politics did not materialize out of thin air. It is the working assumption of a vast array of progressive nonprofit organizations and the millionaires who fund them. Over the past half-dozen years, several people who work in and around the nonprofit world have told me, the internal political culture at progressive foundations has undergone the same changes that have torn through elite universities, mainstream-media newsrooms, and private schools. An uncompromising version of left-wing political rhetoric has put the leadership of these organizations on the defensive and often prodded them to fund more radical organizations and ideas than before."

From "Joe Biden’s Big Squeeze Progressive donors to the left of him, cynical centrists to the right — a theory of why his popular agenda is so unpopular" by Jonathan Chait (NY Magazine).

"After a long day of fighting Republicans in real life, I don’t always feel like fighting with hobgoblins in a game, even though the digital versions are at least bound by rules and artificial logic."

"So the game I keep coming back to, for well over a decade now, is the one that gives me ultimate control over every little detail of my virtual life: The Sims....I picked a neighborhood and moved all the prepackaged Sims out. I moved my Sim family and Sim friends in. I have to be around Sims that I want to be happy, after all. No Republicans are allowed in my game. I’ve even deleted the files of prepackaged Sims that give me any kind of Republican vibe.... The friends I do put in the game are people I really like in real life, people I’m happy to be reminded of as my Sim-self jogs through town... My world is much browner and, well, gayer than what I started with. That’s just what happens when you let Sims flirt with whomever they want and marry people who share their interests. But I do occasionally have to add a family I don’t personally know just to decrease the chances of inbreeding: So, the Obamas are in my game. Sasha grew up and married my grandson. I’m buried in their backyard. Frankly, I couldn’t write a better utopian postscript for myself: a founding member of a brown, gay, rainless world that banished Republicans who is buried under the kiddie swing of his progeny.... Sometimes, I just need the terrible world to leave me alone with my doll." 

 Writes Elie Mystal in "In My Own Private Utopia, There Is No Rain—or Republicans/In The Sims, one of my favorite video games, my goal is for everyone to be as happy as possible" (The Nation).

Jonathan Turley writes that he was "a tad naive in hoping that an academic discussion on the history and standards of it might offer a brief hiatus from hateful rhetoric on both sides."

Hate! Don't say that word! Nancy Pelosi is a Catholic, and she freaks out at the word "hate."

Here — at The Hill — is Turley's reflection on his sojourn before the House Judiciary Committee. It's almost entirely a self-defense, because he's being attacked for contradicting things he said in testimony when Obama was President and when Bill Clinton was President:

Despite 52 pages of my detailed testimony, more than twice the length of all the other witnesses combined, on the cases and history of impeachment, [Washington Post columnist Dana Milbank] described it as being “primarily emotional and political.” Milbank claimed that I contradicted my testimony in a 2013 hearing when I presented “exactly the opposite case against President Obama” by saying “it would be ‘very dangerous’ to the balance of powers not to hold Obama accountable for assuming powers ‘very similar’ to the ‘right of the king’ to essentially stand above the law.”

But I was not speaking of an impeachment then. It was a discussion of the separation of powers and the need for Congress to fight against unilateral executive actions, the very issue that Democrats raise against Trump. I did not call for Obama to be impeached....

In my testimony Wednesday, I stated repeatedly [as I stated in my testimony during the Clinton impeachment] that a president can be impeached for noncriminal acts.... My objection is not that you cannot impeach Trump for abuse of power but that this record is comparably thin compared to past impeachments.... ... Democrats have argued that they do not actually have to prove the elements of crimes.... In the Clinton impeachment, the crime was clearly established and widely recognized.... [W]e are lowering impeachment standards to fit a paucity of evidence and an abundance of anger.... 

There should have been a witness who did take the position that the President can only be impeached for criminal acts. Turley took a middle position, and perhaps he demonstrates the dangers of moderation. He's drawing distinctions that his antagonists can fail or decline to see.

I see there's a column at The Nation titled "The Republicans’ Star Impeachment Scholar Is a Shameless Hack/Jonathan Turley’s testimony was so inconsistent, it contradicted his own previous statements on impeachment." Elie Mystal writes:

"As I said (toot, motherf***king toot) when previewing Sessions v. Dimaya, the key question would be whether Gorsuch acted as a servant of Antonin Scalia, or a servant of Donald Trump."

"Here, Gorsuch decided to go with the intellectual hobby-horse that brought him to prominence, instead of the President who appointed him. We’ll see if that center can hold."

Writes Elie Mystal at Above the Law, in "Gorsuch Did Not Side With ‘The Liberals,’ He Sided With Antonin Scalia/The only thing Gorsuch and the liberals agreed on was that Clarence Thomas is an idiot."

This is the case we talked about here yesterday, where I said something similar (minus the disrespect).

A "hobby-horse" is, figuratively, a favorite topic (Mystal is referring to originalism). Literally, it's this sort of horse costume...



... or the children's toy horse head on stick (also called a cock horse or a stick horse)...

"He breaks that chain of self-causation by exiting the vehicle. He takes himself out of that toxic environment that it has become."

"She instructed Mr. Roy to get back into the truck, well knowing his ambiguities, his fears, his concerns. This court finds that instructing Mr. Roy to get back in the truck constituted wanton and reckless conduct, by Ms. Carter creating a situation where there is a high degree of likelihood that substantial harm will result to Mr. Roy."

And so Judge Lawrence Moniz found Michelle Carter guilty of involuntary manslaughter.

ADDED: "Being A Bitch Is Now A Criminal Offense, Apparently/Teen convicted for texting someone to death." That's the headline at Above the Law. Elie Mystal writes:

If “free will” is to mean anything, you cannot “suicide” a person to death. You can murder someone, you can accidentally murder someone, you can pay someone to murder someone for you, you can set up a criminal organization under which murders occur on your behalf, you can even set up conditions so inherently unsafe that you are criminally responsible for anybody who happens to die. But you can’t kill a person who kills themselves. The self-killing breaks the causal chain between your actions, however reprehensible, and the death.

Until today....

"The reason why job prospects are improving for law students is because the amount of people in law school is going down."

"We're not creating more real lawyer jobs, we're just decreasing the supply of would-be lawyers."  

"Is that a bad thing?"

"Thank God Sigma Alpha Epsilon's University of Oklahoma chapter dared to go above and beyond to prove their racism."

"Thank God they actually sang a song. Because they pretty much could have done anything else without anybody suspending them or even complaining about racist behavior. Think about the chant: 'There will never be a n**** SAE.' You think they just came up with that?"

Writes Elie Mystal at Above the Law.

UPDATE: Breaking news email from CNN:

Two University of Oklahoma students were expelled today for their alleged "leadership role" in a racist chant by Sigma Alpha Epsilon fraternity members, a decision that President David Boren says speaks to his school's "zero tolerance" policy for such "threatening racist behavior."

Above the Law's Elie Mystal compares the LSAT to a condom and to a manhole cover.

In this post about the decision by a some law schools to accept applicants who have not taken the LSAT.

These law schools are trying to turn the purchase of legal education into an impulse buy. Don’t buy a prep course that costs a thousand bucks, instead spend $150,000 bucks on a lark. This is the law school version of the guy who tells you that he doesn’t use condoms because it “kills the mood.” The LSAT is a de-minimus prophylactic that, if used properly, can help protect students from harm. But Iowa and SUNY just want you to trust them.

"Does Experiential Learning Improve JD Employment Outcomes?"

A short paper by my Wisconsin colleague Jason Yackee:

The current "law school crisis" poses a number of serious challenges to the legal academy, and how law schools should respond is hotly debated. One common suggestion is that law schools should reform their curriculum to emphasize the development of practical skills through experiential learning, rather than emphasize what is described as the impractical, theory- and doctrine-heavy book learning of the traditional law school curriculum. Employers are said to be more likely to hire those with substantial skills training. This paper provides a simple empirical examination of that basic hypothesis. To summarize the paper's key finding: there is no statistical relationship between law school opportunities for skills training and JD employment outcomes. In contrast, employment outcomes do seem to be strongly related to law school prestige.

Orin Kerr discusses the paper here, saying: "I’ll be interested to see how other empirical legal studies scholars respond to the paper, and whether they think its conclusions hold up."

Paul Caron notes the paper here, where a reader observes that some schools cook the numbers by hiring many of their own students so they report them as employed, and Jason responds in the comments.

AND: Instapundit says: "It's Potemkin diplomas all the way down."

ALSO: Here's Elie Mystal at Above the Law:

"Proof That Typos Are Racist."

"The partner evaluators found an average of 2.9 spelling and grammar errors for the ‘Caucasian’ authors and 5.8 such errors for the ‘African American’ authors."

"Seriously? The mere image of eight women and one man puts you in mind of '... a high-class escort service and an ad for Charlie’s Angels LLP'?"

"Then how about this caption: 'Staci Zaretsky — get a sex-change operation already. You're embarrassing the rest of us!'"

Wow! What a sexist screwup at Above the Law.

I noticed that today, as Zaretsky had to deem somebody the winner of what was an embarrassing-from-the-start caption contest. Here's the photo that was supposed to inspire hilarity:



This reminds me of the blind judging I did back in 2008, when Above the Law had a contest to determine who would replace David Lat as the chief writer at the blog. I criticized one contestant for racism, and the contestant — Elie Mystal, who won — turned out to be black. He thought I'd be embarrassed to have said that, because ha ha he's black:

I’m male. I’m liberal. I’m Catholic (of the “a la carte” variety). I believe in evolution and global warming. I’m happily married. I’m African-American (Althouse. “Racism alert.” What does that even mean? Go jump in a Great Lake)....

Note the similar defense made by Staci Zaretsky, in her apology here:

Old stereotypes persist within the legal profession, and as Above the Law’s sole female editor, even I am guilty of propagating them, for which I sincerely apologize (some of the resulting entries in our recent caption contest were despicable)....

Jonathan Turley's civility bullshit about my calling "bullshit" on his Court-packing plan.

ABT's Elie Mystal writes:

Jonathan Turley seems hurt that Ann Althouse and other conservative academics acted in a way that shows “we have lost the tradition of civil discourse in this country.” Yeah, umm, Professor Turley, perhaps you didn’t read the footnotes, but here on the internet we don’t have a tradition of civil discourse. We do have a tradition of ad hominem attacks, hyperbole, and pictures of cats.

My posts are "Don't like the Supreme Court's decision? Propose a Court-packing plan!" and "How did Jonathan Turley come up with 19 as the best number of Supreme Court Justices?"

Obviously, Professor Turley doesn't enjoy my fun-loving, bloggy approach to his professorly musings and proposals. It's not what he's used to, and it's not what the Washington Post is hoping for when it publishes all those op-eds from law professors to launder its partisan politics into something with that looks scholarly and thoughtful. These lawprofs who experience the inflation of elite media publication — and I've been there — do not want other lawprofs tweaking and puncturing them. It might seem that I'm just crossing a line and being unprofessional or insufficiently submissive when I call bullshit — and in this case I literally called bullshit. ("Oh, spare me the bullshit.")

What I'm doing might seem careless and lightweight. But I am passionate and serious about what I am doing, which is about speaking clearly and showing you things you might not be able to see. Most law professors write for other law professors (as well as elite media and powerful politicians). In this enterprise of career building, they cultivate and trade on respect. Most law professors accept this discipline, because they imagine it's in their self-interest, and it actually is. In this game, I'm a big outlier. I call out the lawprofs, and I've been doing it a lot lately, because —in advance of the health-care decision — the big newspapers have been publishing a lot lawprof op-eds. (By the way, did you know that "19 of 21 constitutional law professors who ventured an opinion" — and who were elite enough to be polled by Bloomberg  — said the law is constitutional?)

In a later post, I'll respond to more of Turley's long, professorly post which denies that his Court-packing plan arises out of a distaste for the Supreme Court's opinions. In the bloggerly tradition, I'm keeping this post short and clear. My point is: I'm about clear speech, telling the truth, starting conversations, and having some fun. I'm not about being nice to powerful speakers.

And I'm really not about getting pushed back with calls for "civility." As you know if you're a regular reader of this blog, my tag for this subject has long been "civility bullshit." So this is another post with the "civility bullshit" tag — and it's one where someone used civility bullshit against me for saying "bullshit."

***

Here's a cool book on bullshit called "On Bullshit." It's by a professor! ("One of the most salient features of our culture is that there is so much bullshit. Everyone knows this. Each of us contributes his share. But we tend to take the situation for granted.")

UPDATE: The promised additional post is here. 

"Every time an NYU Law prof reuses an old exam (to the outrage of students), I have to write an entirely new post..."

"even though the underlying issues of laziness and disregard for student concerns are the same. But if I were employed by NYU, I wouldn’t even have to go through the motions, I could just take the most recent post I wrote decrying the NYU Law faculty doing this, change the dates, and go back to watching the Australian Open on television. Does anybody know if NYU is hiring?"

Blogging is hard work, lawproffing not so much... according to Elie Mystal, who is a blogger and not a law professor. I'm both, though I'm not an NYU professor. I am an NYU Law grad, though, so I have a selfish interest in defending the school. But I won't. I've never reused an exam, by the way. Not in 25+ years of lawproffing. I've never even taken an old exam question and reworked it into a new question.

What's my opinion on the question whether blogging and lawproffing are hard work? The individual has an immense amount of control — of course, I love that — and you can make both enterprises extremely difficult or fairly easy. The range is different though. The easiest approach to law professing is significantly harder than the easiest approach to blogging. There's no upper limit on how hard both can be. The correlation between hard word and quality work, however — as always — is a mystery.

"Now I wish I could write you a melody so plain/That could hold you dear lady from going insane..."

"That could ease you and cool you and cease the pain/Of your useless and pointless knowledge..."

Oh, it's crossed my mind occasionally, over the last 25 years, to resort to a Bob Dylan lyric — notably, that one — when a law student has asked me for the wrong kind of answer. I managed to resist. Now, imagine a law professor — a Harvard Law professor — making an exam out of 2 nothing questions and tossing in a Dylan quote as a taunt — "'There must be some way out of here,' said the joker to the thief/'There’s too much confusion, I can’t get no relief,'"

Via Instapundit, Elie Mystal gives Professor Charles Nesson a pass.

That exam — which you can read at the last link — reminds me of an anxiety dream I once had. I suddenly realized I had to give an exam. The students were all in the room ready to go, and I had nothing to hand out. All I could think of to do was to walk up and begin to write on the blackboard, making up the exam questions as I formed the letters of the words. Beginning with a Dylan quote would be a useful way to stall while scrambling for something that could plausibly be considered an exam question.... before going insane.

"Come on, can’t you hear the keystrokes clicking by somebody over at Fox or Althouse just so eager to defend this next 'brave young person' who dared to 'tell the truth' at Harvard Law School?"

Somebody over at Althouse? I'm the only one here. I've been solo-blogging with nary a guest blogger for nigh on 8 years. If you're talking about somebody over at Althouse, you're talking about me. Or are you dragging my name through the "raaaaccciissssttt!!!!" mud over what you imagine a commenter might say?

Dammit. Now I know Elie Mystal at Above the Law has an old issue with me about calling things racist. Back in 2008, there was a contest — which he won — to determine who would be the new blogger at Above the Law. I was one of a panel of judges — a la "American Idol" — and we were looking a the writing of several competitors without seeing the details of who was writing. Judging one of Mystal's entries, I said: "Racism alert." I didn't know that Mystal is, in fact, African American.

Anyway, in the present case, Mystal is writing about a blog called “Harvard Law Caveman,” which is some kind of satirical blog opposed to affirmative action. I have never linked to it, though the author pitched it to me via email a couple times about 10 days ago. I'm not amused by the crude use of racism even when I think the writer meant to lampoon racism. Mystal's belief that I am "just so eager to defend this next 'brave young person' who dared to 'tell the truth'" is nothing but mudslinging.

As for the Harvard Law Caveman, why give him attention just to trash him? Is it so you can trash somebody who has profile, like me? But I didn't link to him. Maybe back when he pitched his blog to me, the Caveman also pitched it to Above the Law. Maybe Mystal has been waiting to see whether someone like me would link so he could attack. Time passed. Did anyone link? But he nevertheless portrays me as "eager" to link! I call bullshit, Elie.

This guy launched a racist blog using as much HLS branding as he could, but the school is not going to actually do anything about it. 

Like what?! It's free speech, and Mystal must know damned well that taking action would draw attention to this erstwhile unnoticed blog and also turn the writer into a free speech martyr. The criticism of Harvard Law School is thus also bullshit.

... But this is life at Harvard Law School. The school is so big. And there are so many people there who are still pissed that they didn’t get into Yale. The racist crap one hears from the HLS student body on just a casual level I think would blow most people away. I once had a white guy argue to my face that I didn’t “belong” there — and this was after we’d both figured out that I got a better grade in the class we took together.

Shine a light on whatever HLS "racist crap" you really see, but it only undercuts your credibility to make crap up. The way you just treated me makes me wonder what was the whole context of that "belong" quote? Let's talk about what's actually true. It works a whole lot better that way.

Why is Elie Mystal so annoyed at the Stanford lawprof who wrote a book called "Is Marriage for White People?"?

I'm reading this blog post over at Above the Law because Instapundit linked to it.  Instapundit did one of those ultra-sleek posts shorn of all opinion: "ELIE MYSTAL has a question for Stanford." That points us to a question that is the post title — "Stanford Law School: Why Are Your Professors Writing Books That Sound Like They’ve Been Written By Bloggers?" — but the post isn't mainly a challenge to Stanford to do something about lawprofs writing books that are insufficiently larded with citation and sober rumination. Mystal's post is mainly about the specific content of a book written by Ralph Richard Banks and aimed at general readers and — it's pretty obvious — TV and radio talk shows. Want to talk about black people and marriage? Bring on Professor Banks. He'll say some provocative things in language that will charge up the audience.

Maybe Mystal is a little jealous:

Now, if I were a blogger looking to make a quick buck, that’s exactly the kind of book I’d write. In fact, look for my upcoming book, “Why White People Can Afford To Piss Away Time & Money in Law School, But Blacks Can’t.”

But Ralph Banks isn’t a blogger, he’s a Stanford Law professor. Shouldn’t we expect less sensationalized bullcrap from him?

Here's Ralph Banks, who is, like Mystal, a black male writer with an elite legal education, and he's writing a book about marriage and black people, and he's also a Stanford law professor, while Mystal is writing for a blog. Moreover, Banks — if we're to believe an advance review (the book's not out until September) — is arguing that black women can "shift the power balance" by marrying white men. Mystal states more than once that he is married to a black woman, but:

For what it’s worth, I have no problem whatsoever with interracial marriage...

So whether or not Professor Banks has a worthwhile point, my objection rests with the way it was stated. I do this every day. I know a sensational headline when I’m looking at one. I’m familiar with how one writes generally reasonable arguments for 90% of a piece interspersed with ten percent of barely coherent hyperbole. We live in a culture where getting heard over the white noise sometimes requires you to shout a little bit. I get that.

I just don’t see why we need that from Stanford Law School, and I don’t see why we need it on a topic where there has been so little top-notch scholarly work.... Couldn’t the Stanford Law professor give us something a little bit more than Is Marriage for White People? Couldn’t the SLS prof tell his publisher (who, dollar-to-donuts, is the one who came up with this title): “Come now, that’s dumb. After the initial shock value, people will just say I’m being dumb, and that’s not going to be good for sales.”

Look, it's a great title, and people are going to stop and pay attention — in part because of the title and in part because of Banks's status as a high-level lawprof. Now, maybe that feels unfair to Mystal, who toils as a blogger unassisted by lawprof status. (But Mystal didn't build his own blog traffic; he stepped up onto a writing-platform built by David Lat.) Maybe it also seems unfair that lawprof-bloggers get some initial attention as bloggers because they are lawprofs. (But the information superhighway is littered with little-read blogs written by lawprofs who thought lots of people would want to know what they had to say about this and that because they are lawprofs. It's not that easy!)

I think it's fine for lawprofs to speak to the general public about a variety of public issues. We need smart and interesting people contributing to the national dialogue. And some of these people are law professors. I wouldn't want to say to law professors — especially to the lawprof named Althouse — you need to crawl back into the stereotypical lawprof box and write books and articles that look more like something conventional people can glance at and say: Scholarship!