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October 2006
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Overcriminalization Alert

Today the Department of Justice has released statistics showing that 1-in-32 adults are "in the system."  That is, they're in prison, or on probation or parole.  Of those people, "inmates in federal prison for drug offenses [account] for 49 percent of total prison population growth."  Even more depressing:

In the 25-29 age group, 8.1 percent — about one in every 13 — of black men are incarcerated, compared with 2.6 percent of Hispanic men and 1.1 percent of white men. And it's not much different among women. By the end of 2005, black women were more than twice as likely as Hispanics and over three times as white women to be in prison.

Forgive me for paraphrasing Jesse Jackson, but there's a real problem when we as a society spend more money sending black men to jail than we do to Yale.

The Sins of a Lawyer?

University of St. Thomas professor Robert Delahunty has been hired to teach at the University of Minnesota Law School.  Many professors object to his joining the faculty - even for one semester - because of the work he did as a lawyer.  Among other things, he

  • kept an alleged child p0rnographer from prison by successfully arguing that the law being applied to his client was unconstitutional under Ashcroft v. Free Speech Coaliation;
  • successfully had a murder case dismissed against his client on corpus delicti grounds.

Because of his work, several law professors have argued that he should not be allowed to teach law at their school.  A lawyer, they argue, should not represent unpopular clients or take unpopular positions.  Lawyers should wear white shoes and eat white bread.

UPDATE: Oops.  As it turns out, Professor Delahunty is hated for taking other unpopular positions.  My apologies to everyone involved.

What is Hypocrisy?

Ted Frank, blogging at Overlawyered, has an interesting post on hypocrisy.  Check it out.

My take: I'm suspicious of a person whose words and actions are incongruent.  If a person claims to be a tort reformer, but himself files frivolous lawsuits, then I wonder if the person really supports tort reform.  So while the person might not be a hypocrite, his actions would make me wonder what ulterior motive he has for "supporting" tort reform.

Similarly, if someone like former Senator John Edwards claims to love the poor, I have to wonder why he devotes so much time to accumulating wealth - especially when he has made enough to retire for several lifetimes.  A person's words and deeds should generally overlap.

So while I'm not sure it's appropriate to call an alleged tort reformer who files lawsuits a hypocrite, it is appropriate to question that person's motives for "supporting" tort reform.  If a person really cared about fixing a problem, why would he work to make the same problem worse?  If John Edwards really cared about the poor, why is he spending most of his time making himself rich?

The answer, of course, is this: Most politicians "support" tort reform because they have been paid off by big companies.  Most politicians who "support" the poor do so to get elected - and thus accumulate personal power.  When a person cannot obtain more power with the tort-reform or support-the-poor gig, then he will find another way to serve his interests.  In the case of Trent Lott, he'll file lawsuits.  In the case of John Edwards, he'll "sell out" to a large consulting company.

[Ed's note: I used John Edwards and Trent Lott to keep things politically balanced.  Also, I want to be clear that I do believe people like Ted Frank and Walter Olson (unlike most politicians) actually support tort reform as an intellectual matter.]

NC State Bar to Law Students: Ethics are Optional

KC Johnson is a college professor and indefatigable critic of prosecutorial misconduct in the Duke LaCrosse case.  In his most-recent post, he examines startling cases of severe and unpunished prosecutorial misconduct in North Carolina.  Like most people who work in the criminal system, Professor Johnson learned that prosecutors are rarely, if ever, punished for even blatant misconduct. 

A law student responds to the post:

I'm a law student and I had Professional Responsibility last semester. It's a required class and you have to take and pass a separte exam - the MPRE (Multistate Professional Responsibility Exam) along with the Bar exam to be admitted to the bar.

In school, they make a big deal out of the ethical canons that lawyers have to adhere to. I'm beginning to think the whole thing is a bunch of crap though. A slap on the wrist for railroading someone onto death row? Please.

Frankly, this case and Nifong's actions are eroding my confidence in the legal system and are making me seriously question things. What is the point of having all these ethical canons and legal procedures? It seems like you don't have to follow them if you don't want to. Prosecutors are free to pull any stunt they want - even to the point of committing felonies and no one does anything about it.

It seems like the law they teach you in law school is just a bunch of theory. The law in practice is something else all together and it's not very pretty. It seems to amount to nothing more than politics. I have to wonder how many innocent people are in jail and on death row in North Carolina because the state bar refuses to do anything about misconduct.

Is this the message the State Bar of North Carolina wants to send to future lawyers?

eBay Shuts Down Bidding On OJ Book

Although there has been no official announcement, it appears as though eBay has shut down bidding on O.J. Simpson's "If I Did It." For two days there was brisk and unusual bidding. The hammer was ready to fall in one auction, with the price hovering in the six thousand dollar range. And then? All of the books disappeared.

For a few hours after the books disappeared, there were dust jackets of the book and promotional art for the sale of the book at auction. Those, too, have disappeared.

Rupert Murdoch's goons have been busy this weekend.

O.J. Gets A Giggle

Despite the Thanksgiving holiday, bidding was fast and furious on eBay for O.J. Simpson's, "If I Did It." The very day that ReganBooks recalled the books from boostores, the book became a collector's item. And why not? The murders of Nicole Simpson and Ron Goldman may have been another ho-hum domestic violence crime, but O.J.'s trial made it the crime of the century, according to some. Surely, this book will go down in history as the greatest subjunctive confession of all time.

The cover alone is a tease. The words "I Did It" are in blood red. The word "If" is white, and is set within a light background. A quick and careless look at the cover makes it look as though the author is confessing to the crime.

O.J. himself is said to have been paid $3.5 million as an advance on the book. He calls it "blood money." That money is sure to be long gone and well beyond the reach of judgment creditors in the form of the family of Ron Goldman, a family spawning a new concept in American pathology: "Predatory rage."

Bidding for several copies of the book proceeded by fits and starts. Sellers must have delighted to see the book quickly fetch $1,000 then $5,000, and then, well, let's wait a minute, $100,000. And then came bids in the millions. This is no Gutenberg Bible. Snarky bidders with no intention of buying were simply fouling the auctions. The sellers had to cancel and restart several times.

I cast my bid, and tried every back channel I knew, even calling an acquaintence who was part of the Simpson defense team. As of this writing, I do not possess a copy of the book. But I am still trying. I'll cast a line for any fish swimming against the current.

This may not be a banned book in the classic sense of the term. No library refused to shelve it for fear of offending. No, this is a new genre. Rupert Murdoch, a man of ferocious temperament, pulled the book less he offend public opinion.

O.J. must be laughing all the way to the bank.