23 ms·

The takeover of America's legal system

207 points by kvee 5y ago

tomohawk 5y ago
> “I got into this job because I liked to play devil’s advocate,” said the tenured professor, who identifies as a liberal. “I can’t do that anymore. I have a family.” And tech is the next menu item that they will gobble up.
- tharne 5y ago
  > And tech is the next menu item that they will gobble up. Will? I'd say that's already in progress.
verisimi 5y ago
I agree with the main thrust of the article. I boil it down to this as the new overarching maxim: 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 https://odysee.com/@the-quash-w-legalman:5 He asks all the difficult questions.. that don't really have good answers.
gadflyinyoureye 5y ago
- dang 5y ago
  Please don't post flamebait to HN. It's not what this site is for, and it destroys what it is for. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
  - gadflyinyoureye 5y ago
    - zzzeek 5y ago
      - disgruntledphd2 5y ago
        To be fair, every time I see a post from Bari Weiss on HN, it's flagged to death within an hour. We'll see what happens with this one I suppose.
        eropple 5y ago
        I flag them because they're bait for this sort of resentful complaining. Normally I hide them rather than look at the comments, too, but I went "maybe this one is better?". And it's not. Standard cancel-culture hand-wringing about literally nothing, by an author whose claim to fame is finding increasingly nasty things to say and claiming that no, it is everyone else who is mean. It's tiresome, HN doesn't need it, flag and move on.
        disgruntledphd2 5y ago
        > I flag them because they're bait for this sort of resentful complaining. That's an interesting perspective. Personally, the stuff about not being able to get a lawyer to represent one is deeply concerning (to me, at least). I'd much prefer if this didn't happen, because innocent until proven guilty is an incredibly important feature of our society. Can you clarify what exactly you feel like the resentful complaining is?
      - gadflyinyoureye 5y ago
        Considering the article directly discusses how professors and professionals are self-censoring because of the woke community threatening their livelihoods, I have to say you are quantitatively wrong.
      - happytoexplain 5y ago
        Yes. "Cancel culture" is, apparently, the result of a combination of the observation of mass unfairness, and the public voicing of reactions to bad behavior. Both of these things are natural and do not represent a change in culture - what's changed is the social internet's inherent (i.e. it would happen regardless of any bias) effect of making both things hyper-visibile (which multiplies, since more visibility of the former produces more instances of the latter, which in turn are also more visible). The reaction to cancel culture is mostly a dissatisfaction with this completely natural problem, but which attempts to paint it as a whole-cloth invention of their political enemies, and uses highly cherry-picked examples of bad outcomes to falsely represent the whole massive phenomenon. In short, when hundreds of millions of people's voices are public by default, every opinion, thought, or emotion looks like a "mob".
  - verisimi 5y ago
    I would agree, except that flamebait is whatever goes against the consensus opinion, regardless of whether the article or post is well sourced discussions and rational. So I have sympathy are there really aren't many options for those who are frustrated with the narrow views around here, and where even daring to suggest that this is the case, means that they stand to be accused of flamebait.
    - dang 5y ago
      Even if you're right, there are degrees of inflammation and it's important to avoid the hotter ones. > the narrow views around here Hmm, I'd be careful about such generalizations—they usually come from a much smaller set of data points than it feels like they do, resulting in false feelings of generality. People who go down that path mostly end up feeling like "around here" is dominated by the views they most dislike, which is usually neither a pleasant nor an accurate perception. https://hn.algolia.com/?dateRange=all&page=0&prefix=true&query=by%3Adang%20dislike%20notice&sort=byDate&type=story&type=comment https://hn.algolia.com/?dateRange=all&page=0&prefix=true&que... https://hn.algolia.com/?dateRange=all&page=0&prefix=true&query=%22false%20feelings%20of%20generality%22&sort=byDate&type=comment https://hn.algolia.com/?dateRange=all&page=0&prefix=true&que...
      - panavision 5y ago
ttyprintk 5y ago
It’s very important, if on trial, that you and your lawyer are able to frame your actions as a reaction to unfairness in our society. This article gives a concrete example where sentencing was halved when the prosecutor noted a defendant’s political alignment.
- knighthack 5y ago
  So the "right" politics reduces criminal culpability. How just.
  - HyperRational 5y ago
  - ttyprintk 5y ago
    You’re not off to a good start. People dispensing justice want to see that you’re making strides in their movement. This article is about the people defining injustice now defining justice. It’s rational to prepare some long-lived online agreement with anyone whose goal is redefining justice.
    - knighthack 5y ago
      > People dispensing justice want to see that you're making strides in their movement. 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.
eli_gottlieb 5y ago
I really wish Weiss would make her case more quantitatively. But while I'm at it, does she have a piece on the general structural phenomenon of institutional capture, how it works and how to fight it? 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.
- blisterpeanuts 5y ago
  (Aaron Sibarium wrote the article, not Bari Weiss.) 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.
actionfromafar 5y ago
I sort of agree, but the American legal system wasn't exactly in great shape before. The reaction described in the article is not good, but a reaction of some sort was expected.
- namlem 5y ago
  Yeah, we have bigger problems in the American legal system. Such as the fact that we do almost no data collection. We have no idea how effective individual judges, courts, prisons, or prosecutors are because no one writes it down anywhere.
  - Ekaros 5y ago
    Isn't everything recorded? It is just that it is gatekept behind paywalls and no effective data is generated from those records?
    - giantg2 5y ago
      Judicial complaints and wrongdoing are so secret that it surpasses your right to exculpatory evidence. An investigation of a judge can find that they were biased or screwed up and that you were innocent, yet they are not required to turn that over to you.
    - namlem 5y ago
      Yes I should have clarified that it is not written down in a manner that can ever be analyzed.
  - giantg2 5y ago
    "because no one writes it down anywhere." 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.
eli_gottlieb 5y ago
One gestalt impression I'm getting from the parts about "burn the place down" is that the economic precaritization of the professions has produced a mass cohort of young professionals who seriously don't care about the institutions they staff and the social purpose of those institutions. They see themselves as something of a generational social movement instead, taking over and coopting institutions they view as offering them a mostly adversarial social contract to begin with.
- helen___keller 5y ago
  > They see themselves as something of a generational social movement instead, taking over and coopting institutions they view as offering them a mostly adversarial social contract to begin with. 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…
  - FooBarBizBazz 5y ago
    > * big tech institutions (lots of younger techies support unions, blatantly hate on their big tech employers, etc) Anyone who works in Tech sees this at just about any All Hands meeting. It's really amazing to watch.
    - eli_gottlieb 5y ago
      >* big tech institutions (lots of younger techies support unions, blatantly hate on their big tech employers, etc) 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.
jeffbee 5y ago
- eli_gottlieb 5y ago
  I actually agree that common law systems kinda suck in a lot of ways, but their replacement with personal power pretending to be professional judgement is a step backward, not forward.
- tharne 5y ago
  Careful what you wish for. Just because something is flawed, doesn't mean that burning it down will replace it with something better. It's the same reason why most revolutions to overthrow dictators usually become as bad or worse than what they replaced.
  - jeffbee 5y ago
    The article isn't about revolutionaries throwing incendiary devices through the windows of law schools. It's about the vested members of the establishment itself voting by a 20-to-1 margin to reflect on the flaws of their system. It's the most mild, milquetoast revolution of all time.
banannaise 5y ago
The final section blames South Africa's recent issues on... checks notes... the end of apartheid. I have questions.
- etrautmann 5y ago
  - eli_gottlieb 5y ago
    And what inferences do you draw from who she is that we can't draw from what she has gone on the record saying, regarding her opinions of South African apartheid?
  - kyrra 5y ago
    Read the by line, it's not by her. Even if it was by her, what about her would be your argument here?
- throwaway0a5e 5y ago
  > The final section blames South Africa's recent issues on... checks notes... the end of apartheid. 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.
- rory 5y ago
  That's like saying criticism of the current Russian government is blaming issues on the end of Bolshevism.
notreallyserio 5y ago
It's quite a leap from someone not personally wanting to represent an alleged rapist to not wanting someone to have representation at all, but the author made that leap easily within only a few paragraphs. The rest of the article goes in to the real point they're making (anti-CRT yadda yadda) but the original premise is so shaky that I just can't take it seriously.
- torstenvl 5y ago
  > someone not personally wanting to represent an alleged rapist (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.
  - giantg2 5y ago
    It sounds like being fired with severance is exactly what they want. Maybe better to let them leave on their own.
  - knighthack 5y ago
    To add: the defence provided to a client is limited ordinarily to what is legally feasible, and what is ethically honourable (i.e. 'winning' does not mean going to the extent of pulling out dishonourable defences to ensure the accused client win). 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.
    - 5y ago
ReactiveJelly 5y ago
"none of this was supposed to happen" 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.
- bo1024 5y ago
  According to the article, you have been pushing your insidious critical race theory for 40 years now! We have always been at war with Eurasia.
KoftaBob 5y ago
> Then, an associate in her late twenties stood up. She said there were lawyers at the firm who were “uncomfortable” with Boies representing disgraced movie maker Harvey Weinstein, and she wanted to know whether Boies would pay them severance so they could quit and focus on applying for jobs at other firms. 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.
- ibejoeb 5y ago
  This is eroding also. For example, Kathy Hochul ordered that priority be given to patients of "Non-white race or Hispanic/Latino ethnicity" when seeking certain covid therapies, citing "longstanding systemic health and social inequities." The framework operates on a points system, and that affords a point. See page 3: https://coronavirus.health.ny.gov/system/files/documents/2021/12/prioritization_of_mabs_during_resource_shortages_20211229.pdf https://coronavirus.health.ny.gov/system/files/documents/202...
  - deleted 5y ago
    [deleted]
  - ta1647960311 5y ago
  - lp0_on_fire 5y ago
    Of course Kathy Hochul, a white woman herself, would get platinum care because she's governor. Disgusting.
    - geodel 5y ago
      Maybe we can extend her logic like depending on one's standing in society their treatment priority will be reversed. So governor as first citizen of the state would be last person to be treated for ailments and so on.
giantg2 5y ago
'... on how the legal system in America, as one prominent liberal scholar put it, is at risk of becoming “a totalitarian nightmare.”' 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.
- Ekaros 5y ago
  Following certain lawyers on Youtube points that prosecutorial misconduct is not exactly rare and entire thing is more about narrative and misleading jury about law than the facts...
  - giantg2 5y ago
    Oh yeah, I've witnessed it. An ADA held a known unsupported charge that carried pretrial restrictions only found under that charge. Then they prevented us from talking to court scheduling to secure remote accommodations for a witness (so they couldn't testify) - even though the rules of procedure/discovery didn't allow them to do that for a summary case, and violated the Bar's rules of professional conduct. I filed a complaint with the Bar. The Bar didn't even look at it. They did they'll only investigate after a court formally declares that prosecutorial misconduct occurred. Ok... so what do you actually investigate if the determination has to already be made?
- _jal 5y ago
  The best justice money can buy. If you look past the silly complaints about word choice and such, people like Weiss are complaining that people want to change that. 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.
joshenberg 5y ago
I don't find these examples particularly compelling. Likes to cite examples of overreach but never describe the counter arguments. 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.
- akamaka 5y ago
  Indeed, and in another example he complains of someone getting “only” a 10 year sentence, instead of the maximum 20. If anything, that’s a counter-argument, proving that the changes happening are not of great significance.
- francisofascii 5y ago
  > I think over-conviction of vigilantes is clearly preferable 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.
- m0llusk 5y ago
  Agreed. These are important issues, so discussion would be enriched by robustness and completeness. Critical Race Theory is mostly about the problem and might be addressed by any number of actions. In this piece only one possible reaction is examined. It is also very important to look at the full range social variation within what we call race. Currently Nigerian immigrants are one of the top earning groups and while the Black middle and upper class may be small they do not necessarily share the same issues as people who are stuck in ghettos or living on the street.
peppermint_tea 5y ago
"are more important to more and more law students than due process, the presumption of innocence, and all the norms and values at the foundation of what we think of as the rule of law." 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...
- simonsarris 5y ago
  > this assumes that there was due process... 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.
  - dang 5y ago
    > This is a silly Please don't call names in arguments here. It's against the site guidelines (https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html) because it leads to much worse discussion. Your comment would be fine without that last sentence.
    - gadflyinyoureye 5y ago
      How about "This is a mentally slothful way..." It's same thing. Comment is about how poor the thought was behind their view.
      - dang 5y ago
        That would break the same guideline in the same way. It isn't necessary to call names—it doesn't add information. It suffices to point out what's wrong with an argument and trust the reader to be smart enough to get it.
motohagiography 5y ago
A better answer to the, "‘How can you represent someone who’s guilty?’ question is that defense lawyers defend the integrity of the legal system and process against the people who have found themselves in government because the sovereignty of the process is what the rule of law means. 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.
- giantg2 5y ago
  'A better answer to the, "‘How can you represent someone who’s guilty?’ question is...' Is that the person is innocent until proven guilty.
  - xboxnolifes 5y ago
    I think the question is more "How do you represent someone who has told you they are guilty, but wants to minimize negative outcome".
julesqs 5y ago
very funny to write an article about the crisis in the legal system without addressing how it is a pretty good example of almost complete elite capture by a few top law schools whose admissions are far from meritocratic. Or talking about Steven Donziger vs Chevron, a case so shameful the UN Commission on Human Rights has called for his release. Or talking about the basic truth of the US legal system, where the wealthiest can nearly always afford to win a civil case just through a war of attrition by hiring incredibly expensive lawyers while the bottom 50% of America could never hope to hire one lawyer. 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
- ss108 5y ago
  Law school admissions are pretty meritocratic. Not sure the basis on which you would argue otherwise.
  - julesqs 5y ago
    you don't think there are exceptions to the formula of LSAT/GPA? who do you think those exceptions are made for?
    - ss108 5y ago
      As someone who went through this process intensely and was an avid reader of places like r/lawschooladmissions (which has a lot of people posting stats and results--could be interesting to datamine and analyze), I would say no. 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).
rayiner 5y ago
An important thing to bear in mind is that the legal profession is largely self-regulated, and lawyers have a monopoly over the legal system. State bars and bar organizations are largely unaccountable to the public. If these organizations abandon principles of neutrality and objectivity, and become overtly ideological, they can use their power over lawyers to exert tremendous, anti-democratic influence over every aspect of life. Everyone should be worried about this. 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.
- olsonjeffery 5y ago
  - FooBarBizBazz 5y ago
    > "The majority of Donald Trump supporters are women and people of color" Interesting semantic game. I had to stop and think for a second, but, yes, that is probably literally true (albeit just barely). Of white Trump voters, probably a little under half are women. Some of-color people (that semantic boundary is itself flexible) also voted for Trump, probably enough to make up for whatever man/woman difference there was among the white voters, plus enough to get over the 50% threshold. So yes, literally, "the majority of Donald Trump's voters in 2016 and 2020 were women and people of color" is probably true. Interesting trick.
danabrams 5y ago
This article is describing what happens when an institution starts to lose trust. There's a perception, even by participants in the system, that the system results in too many wrongful convictions and too many wrongful acquittals. 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.
- twofornone 5y ago
  >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.
  - etchalon 5y ago
    CRT specifically attacks equal treatment under the law. The idea it attacks outcomes is a woefully simplistic understanding of its core criticism.
matthewmcg 5y ago
I have practiced law for more than ten years, attended some of the institutions mentioned, and have worked in and with firms that would be considered "elite." I don't recognize any of the phenomena described in this article. Frankly the writer is either very far from the reality of modern legal practice (chasing noise in the system, without any real data) or she's viewing things selectively to serve some ideological purpose. 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.
- deleted 5y ago
  [deleted]
- hobbyjogger 5y ago
  Same here (M&A/VC lawyer for nearly a decade). Agree 100% on all of the above. 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.
a_shovel 5y ago
> All of sudden, critical race theory was more than mainstream in America’s law schools. It was mandatory. Starting this Fall, Georgetown Law School will require all students to take a class “on the importance of questioning the law’s neutrality” ... 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.
- philjohn 5y ago
  But dangerous as they can be easily spun into sound bites to be repeated ad nauseum.
  - a_shovel 5y ago
    I'd say these articles are the thing spinning random disputes into sound bites.
- brimble 5y ago
  > > > 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. 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.
ss108 5y ago
The sophomoricism in this thread is one of the things that irked me about tech and made me go into law. 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.
- panda-giddiness 5y ago
  > [Lawyers] 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?
  - ss108 5y ago
    Thanks. My theory is there are 2 reasons: 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.
    - sjg007 5y ago
      People think they know something well until they have to explain it or explain the opposing position. Lawyers have to do this all the time which is probably why there is more balance. Basically the trick is to ask folks to explain something to you as if you were five.
vegetablepotpie 5y ago
Articles like this push a narrative of woke social justice warriors ruining society by ignoring customs and norms. Certainly there are exploitationists who gravitate to any movement to attain power. However, everyone who tries to affect change in bureaucratic organizations knows that the worst things are not the word ‘no’ but complete silence. Customs and norms allow institutions an excuse continue the status quo without thinking too hard about it. 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.
- TruthIsHeresy 5y ago
  > However, everyone who tries to affect change in bureaucratic organizations knows that the worst things are not the word ‘no’ but complete silence. Sounds like the issue is the bureaucratic organizations, not the people who choose to be silent about certain issues/topics.
  - vegetablepotpie 5y ago
    I explained that badly. The people who compose bureaucratic institutions are silent. Going neutral, not taking a stance, no comments, are the safe moves, and produce no change either good or bad. Depriving institutions of neutrality is a way to erode their power. This is a tool activists have.
- adamsmith143 5y ago
  >Articles like this push a narrative of woke social justice warriors ruining society by ignoring customs and norms I'm not sure this characterization is correct. Their argument is much more about the SJW groups pushing new erosive and pernicious norms instead.
- eli_gottlieb 5y ago
  >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. 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.
MrBuddyCasino 5y ago
Another good take on the subject is Richard Hanania making the case that "Woke Institutions is Just Civil Rights Law": https://richardhanania.substack.com/p/woke-institutions-is-just-civil-rights https://richardhanania.substack.com/p/woke-institutions-is-j...
afpx 5y ago
I'm just an average American with limited understanding of the "narratives" these days, but what's wrong with teaching CRT if it can help address disparities in criminal justice stats? The system doesn't seem as just as it should be, and the profession should try to fix that.
- philjohn 5y ago
  Nothing - it's been deliberately and systematically demonised and now is used as a stand in for any anti-racist teaching. 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.
- francisofascii 5y ago
  Fair question. I would argue that is is the wrong way to fix injustice. If we want impartiality in the system, and the system in not impartial, we should not add more unfairness to try to balance out the system. It it like adding more bugs to software to try to counteract the existing bugs.
- brimble 5y ago
  "CRT" as a thing that political actors complain about, and "CRT" the academic topic, are basically unrelated. The former is a Frankenstein's monster bogey-man built from every bad-seeming thing its crafters could attach to it[1] in order to build a rhetorical weapon. Label bad things CRT until people associate it with bad things only, then start labeling things that are good but that you don't like CRT so people automatically hate it, since you've primed them to. Any relation to academic-related CRT is incidental. [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.
  - 5y ago
ZeroGravitas 5y ago
Do people actually agree with the intro to this piece: > 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.
- ZeroGravitas 5y ago
  And just in case you think this is some new development, here's the Powell Memo from 1971: https://www.greenpeace.org/usa/democracy/the-lewis-powell-memo-a-corporate-blueprint-to-dominate-democracy/ 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.”
- rayiner 5y ago
  When doctors are proposing to discriminate in giving vaccines based on skin color, https://khn.org/news/article/vermont-gives-blacks-and-other-minority-residents-vaccine-priority https://khn.org/news/article/vermont-gives-blacks-and-other-..., I don’t know how you can call this a “conspiracy theory.” 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 https://www.nytimes.com/2021/06/06/us/aclu-free-speech.html
ta1647960311 5y ago
> and to a lesser extent, the court system, are shaped by and largely serve the needs of businesses 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.
ta1647960311 5y ago
> 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. 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.
- adamsmith143 5y ago
  > he’s even stopped teaching theories of punishment 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.
paganel 5y ago
I've recently read Huntington's American Politics: The Promise of Disharmony [1], which I highly recommend. 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-Huntington/dp/0674030214 https://www.amazon.com/American-Politics-Disharmony-Samuel-H... [2] https://www.vox.com/polyarchy/2016/1/6/10725086/promise-of-disharmony https://www.vox.com/polyarchy/2016/1/6/10725086/promise-of-d...
etchalon 5y ago
This article seems to be purposefully conflating social dynamics (increased social accountability for previously acceptable 'neutral' actions) with the embrace of valid, structural criticisms of the legal system in this country and their increasing acceptance as "obvious" in legal academia. It feels, at best, like it's purposefully conflating these things so it can discredit those criticisms. It is not a good article.
bannedbybros 5y ago
fuoqi 5y ago
A bit tangential, but I wonder if it's realistic to gradually migrate the common law system to something closer to the civil one. I think that the precedent bloat is one of major factors which makes lawyers expensive and judicial system badly accessible for non-lawyers. But who I am kidding... The US was unable to even move from the imperial units and Farenheit.
fallingfrog 5y ago
If you want a real story about takeover of the legal system, read about the Stephen Donzinger case. Donzinger represented indigenous Ecuadorians in a suit against Chevron. Chevron, having unlimited resources to put into the suit, lost in Ecuador- but has not paid their fine, instead attempting to make an example of the lawyer representing the Ecuadorians by burying him in frivolous lawsuits, trying to get him disbarred, placing him in prison for refusing to violate attorney-client privilege. They appointed a private law firm- one that used to represent Chevron- to represent the government in the case. At this point, when it really matters to them, major corporations own the United States legal system. https://www.theguardian.com/commentisfree/2022/feb/08/chevron-amazon-ecuador-steven-donziger-erin-brockovich https://www.theguardian.com/commentisfree/2022/feb/08/chevro...
gverrilla 5y ago
Very funny article: absolutely clueless.
helen___keller 5y ago
Ironic the blog is titled "Common Sense", while the contents of the blog are asking you to discard your common sense and accept the implication that somehow the growth of interest in racial equity implies we are approaching "a totalitarian nightmare". 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.
AcerbicZero 5y ago
I find the current state of the US legal system to be abhorrent, for a variety of reasons not listed in this article. While I'm sure adding woke nonsense to the pot won't help, getting all of that culture war stuff out of the legal system still won't fix the root(s) of the problem(s). 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.
deleted 5y ago
[deleted]
weeblewobble 5y ago
When arguing about Critical Race Theory it's useful to keep in mind this quote from the person (Christopher Rufo) who brought the term to mainstream prominence over the past year or so: “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.

207 points by kvee 5y ago

> “I got into this job because I liked to play devil’s advocate,” said the tenured professor, who identifies as a liberal. “I can’t do that anymore. I have a family.” And tech is the next menu item that they will gobble up.

tharne 5y ago
> And tech is the next menu item that they will gobble up. Will? I'd say that's already in progress.

verisimi 5y ago

I agree with the main thrust of the article. I boil it down to this as the new overarching maxim: 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 https://odysee.com/@the-quash-w-legalman:5 He asks all the difficult questions.. that don't really have good answers.

gadflyinyoureye 5y ago

dang 5y ago
Please don't post flamebait to HN. It's not what this site is for, and it destroys what it is for. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
- gadflyinyoureye 5y ago
  - zzzeek 5y ago
    - disgruntledphd2 5y ago
      To be fair, every time I see a post from Bari Weiss on HN, it's flagged to death within an hour. We'll see what happens with this one I suppose.
      - eropple 5y ago
        I flag them because they're bait for this sort of resentful complaining. Normally I hide them rather than look at the comments, too, but I went "maybe this one is better?". And it's not. Standard cancel-culture hand-wringing about literally nothing, by an author whose claim to fame is finding increasingly nasty things to say and claiming that no, it is everyone else who is mean. It's tiresome, HN doesn't need it, flag and move on.
        disgruntledphd2 5y ago
        > I flag them because they're bait for this sort of resentful complaining. That's an interesting perspective. Personally, the stuff about not being able to get a lawyer to represent one is deeply concerning (to me, at least). I'd much prefer if this didn't happen, because innocent until proven guilty is an incredibly important feature of our society. Can you clarify what exactly you feel like the resentful complaining is?
    - gadflyinyoureye 5y ago
      Considering the article directly discusses how professors and professionals are self-censoring because of the woke community threatening their livelihoods, I have to say you are quantitatively wrong.
    - happytoexplain 5y ago
      Yes. "Cancel culture" is, apparently, the result of a combination of the observation of mass unfairness, and the public voicing of reactions to bad behavior. Both of these things are natural and do not represent a change in culture - what's changed is the social internet's inherent (i.e. it would happen regardless of any bias) effect of making both things hyper-visibile (which multiplies, since more visibility of the former produces more instances of the latter, which in turn are also more visible). The reaction to cancel culture is mostly a dissatisfaction with this completely natural problem, but which attempts to paint it as a whole-cloth invention of their political enemies, and uses highly cherry-picked examples of bad outcomes to falsely represent the whole massive phenomenon. In short, when hundreds of millions of people's voices are public by default, every opinion, thought, or emotion looks like a "mob".
- verisimi 5y ago
  I would agree, except that flamebait is whatever goes against the consensus opinion, regardless of whether the article or post is well sourced discussions and rational. So I have sympathy are there really aren't many options for those who are frustrated with the narrow views around here, and where even daring to suggest that this is the case, means that they stand to be accused of flamebait.
  - dang 5y ago
    Even if you're right, there are degrees of inflammation and it's important to avoid the hotter ones. > the narrow views around here Hmm, I'd be careful about such generalizations—they usually come from a much smaller set of data points than it feels like they do, resulting in false feelings of generality. People who go down that path mostly end up feeling like "around here" is dominated by the views they most dislike, which is usually neither a pleasant nor an accurate perception. https://hn.algolia.com/?dateRange=all&page=0&prefix=true&query=by%3Adang%20dislike%20notice&sort=byDate&type=story&type=comment https://hn.algolia.com/?dateRange=all&page=0&prefix=true&que... https://hn.algolia.com/?dateRange=all&page=0&prefix=true&query=%22false%20feelings%20of%20generality%22&sort=byDate&type=comment https://hn.algolia.com/?dateRange=all&page=0&prefix=true&que...
    - panavision 5y ago

ttyprintk 5y ago

It’s very important, if on trial, that you and your lawyer are able to frame your actions as a reaction to unfairness in our society. This article gives a concrete example where sentencing was halved when the prosecutor noted a defendant’s political alignment.

knighthack 5y ago
So the "right" politics reduces criminal culpability. How just.
- HyperRational 5y ago
- ttyprintk 5y ago
  You’re not off to a good start. People dispensing justice want to see that you’re making strides in their movement. This article is about the people defining injustice now defining justice. It’s rational to prepare some long-lived online agreement with anyone whose goal is redefining justice.
  - knighthack 5y ago
    > People dispensing justice want to see that you're making strides in their movement. 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.

eli_gottlieb 5y ago

I really wish Weiss would make her case more quantitatively. But while I'm at it, does she have a piece on the general structural phenomenon of institutional capture, how it works and how to fight it? 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.

blisterpeanuts 5y ago
(Aaron Sibarium wrote the article, not Bari Weiss.) 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.

actionfromafar 5y ago

I sort of agree, but the American legal system wasn't exactly in great shape before. The reaction described in the article is not good, but a reaction of some sort was expected.

namlem 5y ago
Yeah, we have bigger problems in the American legal system. Such as the fact that we do almost no data collection. We have no idea how effective individual judges, courts, prisons, or prosecutors are because no one writes it down anywhere.
- Ekaros 5y ago
  Isn't everything recorded? It is just that it is gatekept behind paywalls and no effective data is generated from those records?
  - giantg2 5y ago
    Judicial complaints and wrongdoing are so secret that it surpasses your right to exculpatory evidence. An investigation of a judge can find that they were biased or screwed up and that you were innocent, yet they are not required to turn that over to you.
  - namlem 5y ago
    Yes I should have clarified that it is not written down in a manner that can ever be analyzed.
- giantg2 5y ago
  "because no one writes it down anywhere." 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.

eli_gottlieb 5y ago

One gestalt impression I'm getting from the parts about "burn the place down" is that the economic precaritization of the professions has produced a mass cohort of young professionals who seriously don't care about the institutions they staff and the social purpose of those institutions. They see themselves as something of a generational social movement instead, taking over and coopting institutions they view as offering them a mostly adversarial social contract to begin with.

helen___keller 5y ago
> They see themselves as something of a generational social movement instead, taking over and coopting institutions they view as offering them a mostly adversarial social contract to begin with. 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…
- FooBarBizBazz 5y ago
  > * big tech institutions (lots of younger techies support unions, blatantly hate on their big tech employers, etc) Anyone who works in Tech sees this at just about any All Hands meeting. It's really amazing to watch.
  - eli_gottlieb 5y ago
    >* big tech institutions (lots of younger techies support unions, blatantly hate on their big tech employers, etc) 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.

jeffbee 5y ago

eli_gottlieb 5y ago
I actually agree that common law systems kinda suck in a lot of ways, but their replacement with personal power pretending to be professional judgement is a step backward, not forward.
tharne 5y ago
Careful what you wish for. Just because something is flawed, doesn't mean that burning it down will replace it with something better. It's the same reason why most revolutions to overthrow dictators usually become as bad or worse than what they replaced.
- jeffbee 5y ago
  The article isn't about revolutionaries throwing incendiary devices through the windows of law schools. It's about the vested members of the establishment itself voting by a 20-to-1 margin to reflect on the flaws of their system. It's the most mild, milquetoast revolution of all time.

banannaise 5y ago

The final section blames South Africa's recent issues on... checks notes... the end of apartheid. I have questions.

etrautmann 5y ago
- eli_gottlieb 5y ago
  And what inferences do you draw from who she is that we can't draw from what she has gone on the record saying, regarding her opinions of South African apartheid?
- kyrra 5y ago
  Read the by line, it's not by her. Even if it was by her, what about her would be your argument here?
throwaway0a5e 5y ago
> The final section blames South Africa's recent issues on... checks notes... the end of apartheid. 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.
rory 5y ago
That's like saying criticism of the current Russian government is blaming issues on the end of Bolshevism.

notreallyserio 5y ago

It's quite a leap from someone not personally wanting to represent an alleged rapist to not wanting someone to have representation at all, but the author made that leap easily within only a few paragraphs. The rest of the article goes in to the real point they're making (anti-CRT yadda yadda) but the original premise is so shaky that I just can't take it seriously.

torstenvl 5y ago
> someone not personally wanting to represent an alleged rapist (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.
- giantg2 5y ago
  It sounds like being fired with severance is exactly what they want. Maybe better to let them leave on their own.
- knighthack 5y ago
  To add: the defence provided to a client is limited ordinarily to what is legally feasible, and what is ethically honourable (i.e. 'winning' does not mean going to the extent of pulling out dishonourable defences to ensure the accused client win). 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.
  - 5y ago

ReactiveJelly 5y ago

"none of this was supposed to happen" 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.

bo1024 5y ago
According to the article, you have been pushing your insidious critical race theory for 40 years now! We have always been at war with Eurasia.

KoftaBob 5y ago

> Then, an associate in her late twenties stood up. She said there were lawyers at the firm who were “uncomfortable” with Boies representing disgraced movie maker Harvey Weinstein, and she wanted to know whether Boies would pay them severance so they could quit and focus on applying for jobs at other firms. 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.

ibejoeb 5y ago
This is eroding also. For example, Kathy Hochul ordered that priority be given to patients of "Non-white race or Hispanic/Latino ethnicity" when seeking certain covid therapies, citing "longstanding systemic health and social inequities." The framework operates on a points system, and that affords a point. See page 3: https://coronavirus.health.ny.gov/system/files/documents/2021/12/prioritization_of_mabs_during_resource_shortages_20211229.pdf https://coronavirus.health.ny.gov/system/files/documents/202...
- deleted 5y ago
  [deleted]
- ta1647960311 5y ago
- lp0_on_fire 5y ago
  Of course Kathy Hochul, a white woman herself, would get platinum care because she's governor. Disgusting.
  - geodel 5y ago
    Maybe we can extend her logic like depending on one's standing in society their treatment priority will be reversed. So governor as first citizen of the state would be last person to be treated for ailments and so on.

giantg2 5y ago

'... on how the legal system in America, as one prominent liberal scholar put it, is at risk of becoming “a totalitarian nightmare.”' 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.

Ekaros 5y ago
Following certain lawyers on Youtube points that prosecutorial misconduct is not exactly rare and entire thing is more about narrative and misleading jury about law than the facts...
- giantg2 5y ago
  Oh yeah, I've witnessed it. An ADA held a known unsupported charge that carried pretrial restrictions only found under that charge. Then they prevented us from talking to court scheduling to secure remote accommodations for a witness (so they couldn't testify) - even though the rules of procedure/discovery didn't allow them to do that for a summary case, and violated the Bar's rules of professional conduct. I filed a complaint with the Bar. The Bar didn't even look at it. They did they'll only investigate after a court formally declares that prosecutorial misconduct occurred. Ok... so what do you actually investigate if the determination has to already be made?
_jal 5y ago
The best justice money can buy. If you look past the silly complaints about word choice and such, people like Weiss are complaining that people want to change that. 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.

joshenberg 5y ago

I don't find these examples particularly compelling. Likes to cite examples of overreach but never describe the counter arguments. 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.

akamaka 5y ago
Indeed, and in another example he complains of someone getting “only” a 10 year sentence, instead of the maximum 20. If anything, that’s a counter-argument, proving that the changes happening are not of great significance.
francisofascii 5y ago
> I think over-conviction of vigilantes is clearly preferable 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.
m0llusk 5y ago
Agreed. These are important issues, so discussion would be enriched by robustness and completeness. Critical Race Theory is mostly about the problem and might be addressed by any number of actions. In this piece only one possible reaction is examined. It is also very important to look at the full range social variation within what we call race. Currently Nigerian immigrants are one of the top earning groups and while the Black middle and upper class may be small they do not necessarily share the same issues as people who are stuck in ghettos or living on the street.

peppermint_tea 5y ago

"are more important to more and more law students than due process, the presumption of innocence, and all the norms and values at the foundation of what we think of as the rule of law." 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...

simonsarris 5y ago
> this assumes that there was due process... 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.
- dang 5y ago
  > This is a silly Please don't call names in arguments here. It's against the site guidelines (https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html) because it leads to much worse discussion. Your comment would be fine without that last sentence.
  - gadflyinyoureye 5y ago
    How about "This is a mentally slothful way..." It's same thing. Comment is about how poor the thought was behind their view.
    - dang 5y ago
      That would break the same guideline in the same way. It isn't necessary to call names—it doesn't add information. It suffices to point out what's wrong with an argument and trust the reader to be smart enough to get it.

motohagiography 5y ago

A better answer to the, "‘How can you represent someone who’s guilty?’ question is that defense lawyers defend the integrity of the legal system and process against the people who have found themselves in government because the sovereignty of the process is what the rule of law means. 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.

giantg2 5y ago
'A better answer to the, "‘How can you represent someone who’s guilty?’ question is...' Is that the person is innocent until proven guilty.
- xboxnolifes 5y ago
  I think the question is more "How do you represent someone who has told you they are guilty, but wants to minimize negative outcome".

julesqs 5y ago

very funny to write an article about the crisis in the legal system without addressing how it is a pretty good example of almost complete elite capture by a few top law schools whose admissions are far from meritocratic. Or talking about Steven Donziger vs Chevron, a case so shameful the UN Commission on Human Rights has called for his release. Or talking about the basic truth of the US legal system, where the wealthiest can nearly always afford to win a civil case just through a war of attrition by hiring incredibly expensive lawyers while the bottom 50% of America could never hope to hire one lawyer. 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

ss108 5y ago
Law school admissions are pretty meritocratic. Not sure the basis on which you would argue otherwise.
- julesqs 5y ago
  you don't think there are exceptions to the formula of LSAT/GPA? who do you think those exceptions are made for?
  - ss108 5y ago
    As someone who went through this process intensely and was an avid reader of places like r/lawschooladmissions (which has a lot of people posting stats and results--could be interesting to datamine and analyze), I would say no. 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).

rayiner 5y ago

An important thing to bear in mind is that the legal profession is largely self-regulated, and lawyers have a monopoly over the legal system. State bars and bar organizations are largely unaccountable to the public. If these organizations abandon principles of neutrality and objectivity, and become overtly ideological, they can use their power over lawyers to exert tremendous, anti-democratic influence over every aspect of life. Everyone should be worried about this. 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.

olsonjeffery 5y ago
- FooBarBizBazz 5y ago
  > "The majority of Donald Trump supporters are women and people of color" Interesting semantic game. I had to stop and think for a second, but, yes, that is probably literally true (albeit just barely). Of white Trump voters, probably a little under half are women. Some of-color people (that semantic boundary is itself flexible) also voted for Trump, probably enough to make up for whatever man/woman difference there was among the white voters, plus enough to get over the 50% threshold. So yes, literally, "the majority of Donald Trump's voters in 2016 and 2020 were women and people of color" is probably true. Interesting trick.

danabrams 5y ago

This article is describing what happens when an institution starts to lose trust. There's a perception, even by participants in the system, that the system results in too many wrongful convictions and too many wrongful acquittals. 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.

twofornone 5y ago
>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.
- etchalon 5y ago
  CRT specifically attacks equal treatment under the law. The idea it attacks outcomes is a woefully simplistic understanding of its core criticism.

matthewmcg 5y ago

I have practiced law for more than ten years, attended some of the institutions mentioned, and have worked in and with firms that would be considered "elite." I don't recognize any of the phenomena described in this article. Frankly the writer is either very far from the reality of modern legal practice (chasing noise in the system, without any real data) or she's viewing things selectively to serve some ideological purpose. 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.

deleted 5y ago
[deleted]
hobbyjogger 5y ago
Same here (M&A/VC lawyer for nearly a decade). Agree 100% on all of the above. 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.

a_shovel 5y ago

> All of sudden, critical race theory was more than mainstream in America’s law schools. It was mandatory. Starting this Fall, Georgetown Law School will require all students to take a class “on the importance of questioning the law’s neutrality” ... 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.

philjohn 5y ago
But dangerous as they can be easily spun into sound bites to be repeated ad nauseum.
- a_shovel 5y ago
  I'd say these articles are the thing spinning random disputes into sound bites.
brimble 5y ago
> > > 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. 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.

ss108 5y ago

The sophomoricism in this thread is one of the things that irked me about tech and made me go into law. 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.

panda-giddiness 5y ago
> [Lawyers] 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?
- ss108 5y ago
  Thanks. My theory is there are 2 reasons: 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.
  - sjg007 5y ago
    People think they know something well until they have to explain it or explain the opposing position. Lawyers have to do this all the time which is probably why there is more balance. Basically the trick is to ask folks to explain something to you as if you were five.

vegetablepotpie 5y ago

Articles like this push a narrative of woke social justice warriors ruining society by ignoring customs and norms. Certainly there are exploitationists who gravitate to any movement to attain power. However, everyone who tries to affect change in bureaucratic organizations knows that the worst things are not the word ‘no’ but complete silence. Customs and norms allow institutions an excuse continue the status quo without thinking too hard about it. 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.

TruthIsHeresy 5y ago
> However, everyone who tries to affect change in bureaucratic organizations knows that the worst things are not the word ‘no’ but complete silence. Sounds like the issue is the bureaucratic organizations, not the people who choose to be silent about certain issues/topics.
- vegetablepotpie 5y ago
  I explained that badly. The people who compose bureaucratic institutions are silent. Going neutral, not taking a stance, no comments, are the safe moves, and produce no change either good or bad. Depriving institutions of neutrality is a way to erode their power. This is a tool activists have.
adamsmith143 5y ago
>Articles like this push a narrative of woke social justice warriors ruining society by ignoring customs and norms I'm not sure this characterization is correct. Their argument is much more about the SJW groups pushing new erosive and pernicious norms instead.
eli_gottlieb 5y ago
>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. 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.

MrBuddyCasino 5y ago

Another good take on the subject is Richard Hanania making the case that "Woke Institutions is Just Civil Rights Law": https://richardhanania.substack.com/p/woke-institutions-is-just-civil-rights https://richardhanania.substack.com/p/woke-institutions-is-j...

afpx 5y ago

I'm just an average American with limited understanding of the "narratives" these days, but what's wrong with teaching CRT if it can help address disparities in criminal justice stats? The system doesn't seem as just as it should be, and the profession should try to fix that.

philjohn 5y ago
Nothing - it's been deliberately and systematically demonised and now is used as a stand in for any anti-racist teaching. 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.
francisofascii 5y ago
Fair question. I would argue that is is the wrong way to fix injustice. If we want impartiality in the system, and the system in not impartial, we should not add more unfairness to try to balance out the system. It it like adding more bugs to software to try to counteract the existing bugs.
brimble 5y ago
"CRT" as a thing that political actors complain about, and "CRT" the academic topic, are basically unrelated. The former is a Frankenstein's monster bogey-man built from every bad-seeming thing its crafters could attach to it[1] in order to build a rhetorical weapon. Label bad things CRT until people associate it with bad things only, then start labeling things that are good but that you don't like CRT so people automatically hate it, since you've primed them to. Any relation to academic-related CRT is incidental. [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.
- 5y ago

ZeroGravitas 5y ago

Do people actually agree with the intro to this piece: > 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.

ZeroGravitas 5y ago
And just in case you think this is some new development, here's the Powell Memo from 1971: https://www.greenpeace.org/usa/democracy/the-lewis-powell-memo-a-corporate-blueprint-to-dominate-democracy/ 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.”
rayiner 5y ago
When doctors are proposing to discriminate in giving vaccines based on skin color, https://khn.org/news/article/vermont-gives-blacks-and-other-minority-residents-vaccine-priority https://khn.org/news/article/vermont-gives-blacks-and-other-..., I don’t know how you can call this a “conspiracy theory.” 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 https://www.nytimes.com/2021/06/06/us/aclu-free-speech.html

ta1647960311 5y ago

> and to a lesser extent, the court system, are shaped by and largely serve the needs of businesses 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.

ta1647960311 5y ago

> 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. 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.

adamsmith143 5y ago
> he’s even stopped teaching theories of punishment 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.

paganel 5y ago

I've recently read Huntington's American Politics: The Promise of Disharmony [1], which I highly recommend. 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-Huntington/dp/0674030214 https://www.amazon.com/American-Politics-Disharmony-Samuel-H... [2] https://www.vox.com/polyarchy/2016/1/6/10725086/promise-of-disharmony https://www.vox.com/polyarchy/2016/1/6/10725086/promise-of-d...

etchalon 5y ago

This article seems to be purposefully conflating social dynamics (increased social accountability for previously acceptable 'neutral' actions) with the embrace of valid, structural criticisms of the legal system in this country and their increasing acceptance as "obvious" in legal academia. It feels, at best, like it's purposefully conflating these things so it can discredit those criticisms. It is not a good article.

bannedbybros 5y ago

fuoqi 5y ago

A bit tangential, but I wonder if it's realistic to gradually migrate the common law system to something closer to the civil one. I think that the precedent bloat is one of major factors which makes lawyers expensive and judicial system badly accessible for non-lawyers. But who I am kidding... The US was unable to even move from the imperial units and Farenheit.

fallingfrog 5y ago

If you want a real story about takeover of the legal system, read about the Stephen Donzinger case. Donzinger represented indigenous Ecuadorians in a suit against Chevron. Chevron, having unlimited resources to put into the suit, lost in Ecuador- but has not paid their fine, instead attempting to make an example of the lawyer representing the Ecuadorians by burying him in frivolous lawsuits, trying to get him disbarred, placing him in prison for refusing to violate attorney-client privilege. They appointed a private law firm- one that used to represent Chevron- to represent the government in the case. At this point, when it really matters to them, major corporations own the United States legal system. https://www.theguardian.com/commentisfree/2022/feb/08/chevron-amazon-ecuador-steven-donziger-erin-brockovich https://www.theguardian.com/commentisfree/2022/feb/08/chevro...

gverrilla 5y ago

Very funny article: absolutely clueless.

helen___keller 5y ago

Ironic the blog is titled "Common Sense", while the contents of the blog are asking you to discard your common sense and accept the implication that somehow the growth of interest in racial equity implies we are approaching "a totalitarian nightmare". 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.

AcerbicZero 5y ago

I find the current state of the US legal system to be abhorrent, for a variety of reasons not listed in this article. While I'm sure adding woke nonsense to the pot won't help, getting all of that culture war stuff out of the legal system still won't fix the root(s) of the problem(s). 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.

deleted 5y ago

[deleted]

weeblewobble 5y ago

When arguing about Critical Race Theory it's useful to keep in mind this quote from the person (Christopher Rufo) who brought the term to mainstream prominence over the past year or so: “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.