Wednesday, October 21, 2020

New Book Released!

I am thrilled to announce that my latest book was just published. It’s called You Are What You Do. The book is a call to action, with tips, advice, and encouragement about how to live the life you were meant to live.

The book collects all the bits of wisdom that I’ve learned over the years and that I wish someone had told to me a long time ago. Just writing the book has helped me be more deliberate about doing the things I value most, and I hope it helps other people as well.

You can check out the book on Amazon: You Are What You Do

Tuesday, July 7, 2020

The Legal Mind Video Series Launched!

Today, I am very proud to announce that, after years of saying I was going to do it, I finally launched my YouTube Channel based on my book, The Legal Mind.

Since its publication, The Legal Mind has consistently appeared in the top 100 hundred books in its category on Amazon, and on one glorious day, even reached number one. But not everyone learns the same way. My new YouTube series is for those who are more visual learners.

The inaugural episode is short (only four minutes!) but important. In it, I explain the critical distinction between questions of fact and questions of law. These two concepts are two of the key pillars of the legal system and legal thinking in general.

I hope you enjoy the videos. Please feel free to spread the word to anyone who might be interested. 

Here’s the link to the video: Thanks for watching it!

Sunday, March 29, 2020

The Needs of the Many

There is a famous saying in legal circles that goes something like this “Better that ten guilty persons escape than one innocent suffer.”

The idea is that, if the justice system is to make mistakes—as all things administered by imperfect human beings do—it is better to err on the side of protecting the innocent rather than punishing the guilty.

As with any time the concept of “better” is invoked, even in a hoary and oft-quoted legal maxim, the question must be asked: better for whom?

This morning, I was reading Oathbringer by Brandon Sanderson. In one scene, one of the main characters recounts a story of a hog farmer who was found grievously wounded behind a barn. With his last breaths, the dying man revealed that his murderers were three other hog farmers. The trouble was that there were four other hog farmers in the village.

Each of the four loudly protested that he was the innocent man, but there was no way to know for sure. What the villagers knew was that three of the four men were heinous murderers and one was innocent. What should the villagers do with the four hog farmers?

There seem to be two choices:

  • Let them all go. Better that the three murderers go free than that the innocent man suffer.

  • Punish all four. Better that the one innocent man suffer than that three murderers remain free to kill again.

Which is the right decision?

If you are the innocent person, it is a great injustice to be punished for a crime you did not commit.

If you are one of the future victims of the three killers, it is a great injustice to die at the hands of criminals that could have been stopped.

In some ways, this is a version of the famous Trolley Problem. Imagine you believe that each of the three killers will kill again. If you condemn the one innocent man, you save three people from murder at the hands of the killers. Is saving those three lives worth sacrificing an innocent person’s life? What if you would be saving 30 lives? 100?

In other words, do the needs of many, outweigh the needs of the few, or the one?

I don’t think that there is a single answer to this question. There’s a reason the Trolley Problem is one of philosophy’s most famous conundrums. Fortunately, most of us will never have to make these decisions, but some people will. Whatever those few decide, we as a society will collectively have to live with the consequences—and with ourselves.

Monday, February 4, 2019

Why Do So Many Companies Require Arbitration in their Contracts?

Why do so many companies include arbitration clauses in their contracts? The one word answer is: juries. Or more precisely, fear of juries (but that’s three words).

In the American legal system, civil lawsuits (meaning private claims for damages) are decided by juries. A jury consists of a group of citizens chosen (mostly) at random from the local community. Juries are considered a bulwark of liberty because they allow ordinary citizens rather than government functionaries to decide the outcome disputes.

So why would a company fear juries? Several reasons.

First, juries have no expertise. If you were sick and you wanted a diagnosis, you probably wouldn’t gather twelve random people, have a group of experts try to train them over the course of a few days, and then ask them to render an opinion. If it were your life on the line, you would want an expert.

Second, juries might be more inclined toward the “little guy.” Since jurors are chosen at random, it is much more likely that the jury will be filled with regular working people than titans of industry, and in a dispute between an ordinary working person and a faceless company, the worry is that jurors’ natural sympathies will be with the underdog.

Third, juries might not understand just how much money they might be awarding. If a jury finds for the plaintiff in a particular case, the jury must also award damages, that is, a monetary amount that the defendant must pay to the plaintiff. But how much money should a plaintiff get for, say, losing the ability to walk because of an accident or for having their home wrongfully foreclosed? One hundred thousand dollars? One million dollars? Ten million dollars? One hundred million dollars? All the money in the world? Companies are afraid that jurors can’t tell the difference between these vastly different sums of money.

While fear of juries is a primary reason why companies prefer arbitration, there are other reasons as well. Here is a short list:

1. More limited discovery. The most expensive part of litigation is the discovery process (where the parties to the lawsuit exchange information). Many arbitration rules streamline discovery and thereby reduce costs.

2. No class actions. Companies can ban class actions in arbitrations. That limits their exposure in any particular case and is a disincentive for unscrupulous lawyers to bring weak claims with massive potential damages that can force unfair settlements.

3. Faster resolution. Courts in many places are backlogged. Arbitrators are paid by the hour, and so they are generally more available, and so cases can be resolved more quickly.

4. Confidential proceedings. Court trials all take place in public, where reporters can publicize the allegations and the proceedings, which can damage the company’s reputation, even if the company ultimately wins in the end. Arbitrations are more private, so arbitrated disputes attract less attention from the media. Also, the results are often confidential, which limits the risk to the company’s reputation.

5. More sympathetic decision-makers. This one is a bit controversial, but it is possible that companies believe that arbitrators, who are primarily paid by the companies, will have a more business-friendly tilt, at least when compared to judges who are public servants and juries who are ordinary citizens and who might even have an ax to grind against business.

That said, I believe that the primary driver behind consumer arbitration clauses is fear of the jury system. I should note that it is not entirely clear that juries are more likely to make decisions based on sympathy or to award inflated damages, but companies clearly think so.

Wednesday, January 9, 2019

Why Are Contracts Not Written in Plain English?

Why are contracts not written in plain English? The short answer: to reduce misunderstandings. The one word answer: ambiguity. Let me explain.

Ordinary, everyday language is rife with ambiguity, but often we don’t notice. Here's an example. Take the words “day” and “night.”  Those words seem simple enough, but when does a “day” end and when does a “night” begin (and vice versa)?

It’s very likely you can come up with an answer for yourself for what is the difference between night and day, but how sure are you that other people would have the exact same definitions? And are you sure that *everyone* would have the exact same definitions?

Let me offer some possibilities:

  • End of day is the end of the standard work day (as in, “Get me that report by the end of the day!”), so 5:00 p.m. (but is this really the end of the “standard” work day? What is the “standard” work day anyway? You see how ambiguity multiplies??)
  • End of day is the moment the sun fully sets, but even after sunset, it is still light out because of the twilight, so…
  • End of day is the moment when darkness completely falls.
  • End of day is when the clock strikes midnight and the next “day” begins.

There may be even more possibilities, but the point is that “plain” language, when scrutinized, often is not as plain as it seems.

Why don’t we notice the ambiguity of ordinary speech more often? Mostly, because ambiguities are routinely cleared up through conversation.

For example, I might say, “See you at the end of the day.” And you might say, “Great. Um…do you mean 5 o’clock?” And I might say, “Sorry, I meant 5:30.” And through the conversation we would understand each other.

Conversations, however, are not very useful for understanding legal documents for a simple reason: when legal documents come into play, there is usually a dispute, and if there is a dispute, both parties have an incentive to interpret words in the way that is most favorable to that person’s personal interests. So, just asking someone what they “meant” is unlikely to elicit a fully truthful answer.

What’s the solution? Be specific. Very specific. That means use technical terms with well understood meanings. That means use verbose descriptions. That means try to cover all conceivable contingencies.

Once you start writing defensively like this, you get unwieldy, hard-to-read documents, or what is sometimes called “legalese.”

It’s not pretty. It’s not easy to read. But when done correctly, these legal documents avoid disputes by having a clarity that our ordinary speech usually lacks.

By the way, if you’re interested in this topic and others like it, I discuss this at length in my book The Legal Mind: How the Law Thinks, which you can check out on Amazon by clicking here.

Note: This post first appeared in response to a question posed on Quora.

Thursday, December 27, 2018

Hooray for the Public Domain

For the first time in twenty years, on January 1, 2019, some copyrighted works in the United States will at long last enter the public domain. This is big news, reports Glenn Fleishman for the Smithsonian Magazine in For the First Time in More Than 20 Years, Copyrighted Works Will Enter the Public Domain.

It’s been so long since any copyrighted works have entered the public domain, it’s possible that many of us have forgotten what the public domain even is. 

A work in the public domain can be copied, distributed, modified, and publicly performed by anyone and everyone. You can republish the work verbatim or create adaptations (like Pride and Prejudice and Zombies). It’s the plays of Shakespeare, the music of Mozart, and the adventures of Sherlock Holmes (mostly). The public domain is our shared culture, free to be used and reused by the people at large.

And for twenty years, not a single copyrighted work in the United States has entered the public domain due to the expiration of its copyright term. That’s a long time.

The original Copyright Act (enacted by many of the same people who wrote the American Constitution) provided that all copyrights expired in 14 years. Let that sink in: 14 years. Nowadays, copyrights last the life of the author plus 70 years or 95 years in the case of corporate copyrights. In other words, if a twenty-year-old songwriter pens the next great American ballad, assuming the songwriter lives to be 80 years old, that song would not enter the public domain for 130 years (that is, the year 2,148).

The effect of this gigantic expansion of the terms of copyrights is that more than three quarters all of the culture created in the 20th century is still under copyright and has yet to enter the public domain. The last works to see their copyright terms expire and enter the public domain were published when Warren G. Harding was President of the United States, the roaring ’20s were just getting started, and the Great Depression, World War II, and the atom bomb were still far in the future. 

We are the first generation of Americans not to have free access to the culture of our grandparents, all because of the massive expansion of copyrights.

Finally, that is beginning to change. Unless Congress pulls the rug out from under the American people (again), every year from now on, another year’s worth of twentieth-century copyrights will expire, beginning next year with works published in 1923, and then slowly marching, year by year, through the rest of the century. When these works enter the public domain, they will be available to anyone and everyone to do with whatever their imaginations can think of. I, for one, can’t wait to see what creative people come up with. 

Tuesday, November 27, 2018

The Case Against Patents

You probably already know that patents are monopolies granted by the government that prohibit anyone but the patent holder from making, using, or selling the patented invention for some period of time (twenty years in the United States). Generally, the law frowns on monopolies because they are bad for competition, which usually means bad news for consumers in the form of higher prices and limited supplies, but patents are an exception to the general rule. 

Why’s that? Good question. The theory is that patents provide incentives for people and companies to invent new things and the general public is better off getting access to these innovations, even if it means they have to pay monopoly prices for a couple of decades.

But patents have their critics. Mainly the critics argue that patents don’t generate that many new products or services that wouldn’t have been created even without the government-granted monopoly, and instead nowadays patents are very often wielded as weapons that stifle innovation by threatening lawsuits against companies that are providing valuable services to the public.

Whether patents are good or bad is a complicated question, but PolyMatter has a great video on YouTube that explains the case against patents in a way that’s easy to understand. Whatever your opinion is on patents, the video is worth watching to stimulate your thinking on an important topic.

Link to video: The Case Against Patents - Amazon’s 1-Click “Invention”

Sunday, July 22, 2018

What's a Preliminary Injunction?

It is not at all uncommon for a plaintiff in a lawsuit to ask a court for a preliminary injunction. So, what’s a preliminary injunction?

An injunction is an order from a court instructing a person to do something or to refrain from doing something. For example, say your local zoning board has refused to issue a permit, but you think that under the law you’re entitled to the permit. If a court agrees, it could issue an order to the zoning board commanding the board to give you the permit. That order would be an injunction.

But what about a preliminary injunction? Preliminary means something that comes before the main action or event. In lawsuits, the main event is the trial. So, a preliminary injunction is an injunction that a court issues before trial.

It sounds simple, but this is actually somewhat surprising and kind of a big deal. Why? Because the trial is when the court decides who wins and who loses the case. Issuing a preliminary injunction means that the court is ordering someone to do something, even though who will be the ultimate winner and loser is still up in the air.

Everyone is entitled to their day in court, and it’s kind of unfair to treat someone like they’ve already lost before they had a full hearing. Nevertheless, sometimes preliminary injunctions are necessary to make sure that the court’s decision in a case has a real impact and doesn’t become just an academic exercise.

Imagine, for example, that the city has decided to build a freeway through the middle of your house. You like your house and would very much prefer not to have cars traveling at high speeds through your living room. So, you sue the city, but you have a problem. The city’s bulldozers are on their way to knock your house down, and your trial is still a year away. What to do?

You guessed it. The answer is to get a preliminary injunction and have the court order the city to stop its bulldozers from flattening your house. The court order keeps your house standing until a trial can sort out whether the city has the right to knock it down.

In other words, the purpose of a preliminary injunction is not to give one side an advantage over the other, but rather to preserve the parties’ positions until a trial can figure out who is right under the law. Because preliminary injunctions have a tightly defined purpose and because they ask the court to take a significant action without the benefit of a trial and a final judgment, preliminary injunctions are hard to get. Courts have described them as an “extraordinary remedy” that will be granted only if certain conditions are met.

What are those conditions? I’m glad you asked. There are four.

First, the plaintiff must show a likelihood of success on the merits. In other words, the plaintiff must show that she is likely to win the case when she gets to trial. People with weak cases don’t get preliminary injunctions.

Second, the plaintiff must show that, without the injunction, she will suffer irreparable harm. A harm is irreparable if there is no way for it to be fixed later. If a bulldozer knocks down your house, there is no way to put the house back together again just as it was.

Lots of injuries can be fixed by money. But some things are unique, and the irreparable harm idea is to give protection to things that once lost or broken can never adequately be repaired.

Third, the plaintiff must show that the balance of the equities tips in her favor. This is a fuzzy concept, but it gets at the idea that if the plaintiff has acted badly or has created the problem herself in some way, then she doesn’t deserve extraordinary help from the court in the form of a preliminary injunction.

For example, if the plaintiff hastily constructs a shack directly in the path of the city’s bulldozers, a court might decide that the danger to the structure was self-inflicted, and so the equities tip against giving the plaintiff a preliminary injunction.

Finally, the public interest must support the issuance of the preliminary injunction. This factor is also a little squishy, but it gets at the idea that in some cases, more people than just the parties to the lawsuit have an interest in the outcome, and since a preliminary injunction is an extraordinary remedy, the court should only issue one if doing so is in the public interest.

So, what’s a preliminary injunction? It’s an extraordinary order from a court, issued before trial, commanding a party to take an action or to refrain from taking an action that can be obtained only by showing (1) a likelihood of success on the merits, (2) irreparable harm, (3) the balance of the equities, and (4) the public interest.

And that’s it. If you had ever wondered what a preliminary injunction was, now you know .

Saturday, June 23, 2018

How to Start a Lawsuit in Federal Court

How do you start a lawsuit in federal court? The answer is given in Federal Rule of Civil Procedure Number 3.

Federal Rule of Civil Procedure Number 3 is short and sweet: “A civil action is commenced by filing a complaint with the court.”

Yet in this one sentence, there is a lot going on. Let’s unpack it.

“A civil action” is a lawsuit that does not seek criminal penalties, like fines or imprisonment. Usually, civil actions are between private parties, but governments can also bring civil actions and have civil actions brought against them.

Typical civil actions are claims for breaches of contracts—that is, where one party fails to perform a promise—or for torts—that is, where one party injures another party, either by accident or on purpose, like, for example, in a car accident.

How does one commence a civil action, or in other words, how do you start a lawsuit? As explained in Rule 3: by filing a complaint with the court.

“Filing … with the court” usually means going to the courthouse, finding the clerk’s office, and delivering the necessary paperwork, and of course, paying the required filing fees. Recently, electronic filing is becoming increasingly available, so trips to the court house may not be necessary for much longer.

And what is it that you have to file with the court to get your civil action going? Rule 3 has the answer for that as well: A complaint.

That’s … not very illuminating. What’s a complaint, you might ask? Good question.

A complaint is a written document, and it’s the way the plaintiff in a lawsuit notifies the court and the defendant of why the plaintiff is bringing the lawsuit. Complaints have three main parts.

First, complaints contain allegations. Allegations are the plaintiff’s version of events. At this point in the process, a plaintiff doesn’t have to offer any proof that the allegations are true. The plaintiff merely asserts that the allegations are true. Proof of whether the allegations are true or not will come later in the process.

Second, complaints contain claims. Claims are the legal grounds that justify the plaintiff’s lawsuit. These theories could be anything the law allows, including lawsuits for breach of contract or negligence, but also violations of anti-discrimination or antitrust laws, or anything else authorized by the legislature or the courts. By the way, “claims” are , also sometimes called causes of action, a name that makes sense because the claim is what causes the action, which is another name for lawsuit.

Finally, complaints contain prayers for relief. The prayer for relief describes what the plaintiff hopes to get out of the lawsuit. Usually, plaintiffs want damages, which is another word for money. Sometimes, plaintiffs also want injunctions, which are court orders compelling the defendant to do something or to refrain from doing something. There are other remedies available, but damages and injunctions are the big ones, so a discussion of other remedies will have to wait for another time.

And … that’s about it. To recap, Federal Rule of Civil Procedure 3 requires civil actions to be commenced by filing a complaint in court. Complaints have three parts: allegations, claims, and prayers for relief.

And with that simple piece of paper, your lawsuit is off and running.

Sunday, January 15, 2017

Raise Your Right Hand

On January 20, Donald J. Trump will take the oath of the office to become the 45th President of the United States. In all likelihood, when he takes the oath, he will place his left hand on a Bible and raise his right hand in the air. This is the tradition for presidential oath-taking in recent years, but just how far back does this tradition go?

George Washington Leads the Way

George Washington, our nation’s first president, established innumerable precedents for how a President should act. These precedents, however, did not include raising his right hand when he took the first oath of office in New York in March 1989.

Washington's Inauguration

While there are no photographs of the event, this artist’s rendering shows Washington placing his right hand on a Bible, while his left hovers over his heart.

Another artist depicted more or less the same stance: right hand on the Bible, left hand by his side and resting on the hilt of his sword.

Washington 1789 Swearing In

So when did Presidents start raising their right hands? It’s not entirely clear.

Drawings of early presidential inaugurations can be hard to find, and of course, you can never be sure whether the drawing depicts what really happened or is just a product of the artist’s imagination.

In 1817, James Monroe became the fifth President of the United States. At his swearing-in, Monroe followed Washington’s lead and placed his right hand on a Bible and kept his left hand by his side.

1817  monroe inauguration P

Andrew Jackson Puts His Hand Up

In 1829, Andrew Jackson ascended to the presidency riding a wave of white populism. In this portrait, Andrew proudly holds his right hand high. This is the earliest depiction of a President that I could find of where the President’s right hand is up and left hand is on the Bible.

1829  Andrew Jackson

You might think, then, that Andrew Jackson kicked off the tradition of raising your right hand and the practice stuck from then forward, but that doesn’t appear to be the case.

Abraham Lincoln Puts His Hand Down

Abraham Lincoln, the sixteenth president, seems to have reverted to Washington’s model of right hand on Bible and left hand down for at least his second inauguration.

1865  LincolnUlysses S. Grant, the eighteenth president, seems to have followed Lincoln’s lead. While I couldn’t find a drawing of Grant’s first inauguration, at his second, he puts his right hand on the Bible and keeps his left hand by his side.

1873  Ulysses S Grant

Ups and Downs

In 1877, after a bitterly contested election, Rutherford B. Hayes ascends to the presidency. Hayes, it seems, decided not to touch a holy book and instead raised his right hand and kept his left hand by his side.

1877  Rutherford B Hayes

James Garfield and Chester Arthur both followed Hayes’s lead when they were sworn in as president in 1881, Garfield first, and then Arthur after Garfield was assassinated.

1881  Garfield

1881  Chester Arthur

So it would seem that, by this point, the matter is settled. Right hands go up during swearing-ins. But not necessarily.

In 1889, Benjamin Harrison in a rain-soaked ceremony put his right hand on the Bible and kept his left hand down.

1889  harrison2

Finally a Photograph

William Mckinley became president in 1897. He seems to have thrown all tradition to the wind and put his left hand on the Bible and kept his right hand by his side.

1897 McKinley  first

And finally in 1901, we have a photograph. McKinley is inaugurated a second time, and this time we have a photo that clearly shows that, indeed, McKinley did not raise his right hand. In the photo, however, McKinley has his right hand on the Bible, while in his left hand he holds some papers.

1901  Mckinley 2d

A few months after his inauguration, McKinley is assassinated, and his Vice President Theodore Roosevelt becomes President, at the relatively tender age of 41. In a sketch of the hurried swearing in, Roosevelt holds his right hand high and uses his left to clutch the lapel of his jacket.

1901  Theodore Roosevelt  first

Roosevelt’s second inauguration was a more formal affair, and here again we have a photograph. While the angle is not ideal, it seems clear that Roosevelt indeed is raising his right hand while his left hand hangs by his side. 

1905  TR

When Is This Tradition Going to Start?

Roosevelt was followed by William Howard Taft, but I could not find a photo of Taft’s inauguration. In 1913, however, Woodrow Wilson becomes President, and Wilson goes his own way, placing his right hand on a Bible and holding the Bible with his left hand. 

1913  wilson inaugural 1


The next President is Warren G. Harding, who takes the oath of office in 1921. Unlike his immediate predecessor, Harding clearly raises his right hand and keeps his left hand by his side.

1921  harding2

Calvin Coolidge, Harding’s successor, also goes with the right hand up and the left hand down.

1925 coolidge inauguration

Just when you think the tradition is firmly established, Herbert Hoover comes along and goes back to putting his right hand on the Bible and keeping his left hand down.

1929  Hoover inauguration

And then in 1933 we get to Franklin Delano Roosevelt, the man who will take the oath of office of the President of the United States more times than any other person in the country’s history. As he takes the oath for the first time, he stands with his right hand held high.

1933  Roosevelt2

So that’s it then, right? Right hands up  it is. That is, until the next person, which is Harry S. Truman, Roosevelt’s Vice President, hastily inaugurated in the waning days of World War II after Roosevelt’s sudden death. What does Truman do in his private swearing-in ceremony? It looks like right hand on top of the Bible and left hand underneath it.

1945  Truman

But in another photo, it seems Truman is holding the Bible and raising his right hand. So maybe Truman started with both hands on the Bible and then raised his right hand. It’s not entirely clear.

1945  Truman hand up

Truman’s second inauguration in 1949 is more clear. This time, Truman clearly takes the oath with his right hand raised.

1949  Truman s Second Inauguration

Can We Call It a Tradition Yet?

In 1953, Dwight D. Eisenhower, the General who was the Supreme Allied Commander during World War II, becomes President with his right hand raised.

1953  Eisenhower

And he does the same thing for the beginning of his second term in 1957.

1957  Eisenhower

At this point, it’s right hands up all the way through. For completeness, pictures of the other presidential swearing-in ceremonies follow.

1961 — John F. Kennedy

1961  Kennedy

1963 — Lyndon B. Johnson

1963 Lyndon Johnson

1965 — Johnson again

1965  LBJ


1969 — Richard M. Nixon

1969  Nixon

1973 — Nixon Again

1973  Nixon

1974 — Gerald F. Ford

1974  Ford Inauguration


1977 — Jimmy Carter

1977  carter

1981 — Ronald Reagan

1981  Reagen

1985 — Reagan again

1985  Reagen


1989 — George H.W. Bush

1989  George HW Bush


1993 — William Jefferson Clinton

1993  clinton first inaugural


1997 — Clinton again

1997  clinton

2001 — George W. Bush

2001  George W Bush


2005 — Bush again

2005  George W Bush second inauguration

2009 — Barack Obama

2009  obama

2013 — Obama again

2013  Obama

In summary...

So that’s it. It seems that the tradition of raising the right hand to take the oath of office became firmly established in the twentieth century. What this stroll through history shows, however, is that even though it may seem that right hands raised may be the only way to take an oath, it has not always been so in our nation’s history. Time’s change, and even seemingly firmly rooted traditions are susceptible to the shifting sands of time.

Saturday, January 7, 2017

DOJ Releases Guidance on Eyewitnesses and Photo Arrays

Good news in the fight against unreliable eyewitness identifications. This week the U.S. Department of Justice released guidance on steps law enforcement agents should take to reduce the chance of influencing a witness when a witness tries to make an identification from a photo array.

A photo array is a group of photos shown one at a time or all at once to a witness who is asked by police whether he or she sees the perpetrator in the array. The array may or may not include the suspect.

Possibly, the most significant reform is that federal agents investigating crimes should administer photo arrays using a “blind” procedure, meaning that the person who shows the witness the photos shouldn't know which photo in the array is of the suspect. The idea is to make it impossible for the person showing the photos to signal (consciously or unconsciously) to the witness which photo the police think that the witness ought to pick.

The DOJ guidance is just the latest of a growing recognition in legal circles that eyewitness identifications often cannot be trusted.

In 2012, the Supreme Court of Oregon pushed this insight significantly forward when it explicitly embraced the large body of social science research that shows that the confidence of eyewitnesses  in their identifications was not a reliable measure of accuracy and that witnesses were highly susceptible to having their memories shaped by subtle and not-so-subtle cues from police and prosecutors. To minimize the risk of identifications produced by suggestive procedures, the Oregon high court required prosecutors to prove that the identifications they wanted to introduce into evidence were not obtained using suggestive procedures.

Also in 2012, the Supreme Court of Kansas put an end to the practice in that State of telling jurors that the “certainty” of a witness was a good reason for believing or disbelieving an eyewitness identification.

These, and other developments like them, will go a long way toward ensuring that judges and juries who must weigh the testimony of eyewitnesses have the best information available when they are making decisions where justice hangs in the balance.

Wednesday, February 18, 2015

Murderer Takes Selfie With Victim's Corpse

What's there to say? An early frontrunner for dumbest criminal of the year. TechDirt has the story.

Your Fate in Others' Hands

One of the scariest things about litigation is that your fate is in the hands of people you don't know who may or may not see the world the same way you do. Everyone has their own prejudices, biases, experiences, and understandings of what makes sense to them and what doesn't. Sometimes the mental predispositions of other people line up with your own thinking and sometimes they don't. It's not necessarily that one world view is "right" and another is "wrong." It's just that different people see things in different ways. Often that's a good thing because different viewpoints can be an engine of progress and a fountain of new and interesting ideas.

In a legal setting, however, these differences can be terrifying because what makes perfect sense to you might seem utterly foreign or unbelievable to someone else or vice versa.

Take, for example, a case where a woman reports that she was sexually assaulted. An investigation reveals that the morning after the alleged assault, the woman sent text messages to the alleged assailant saying "I'm ok" or "I'm fine." What is the right way to interpret the significance of those messages? Are the text messages admissions that nothing really happened the night before or are they signals that the woman is still processing the trauma she experienced?

In a recent article in the Chronicle of Higher Education by Andy Thomason and Robin Wilson, here is what one lawyer who specializes in investigating allegations of sexual assaults on college campuses is quoted as saying:
"I’ve seen text messages exchanged very, very soon after an alleged assault, and I put less weight onto those," she says. If a woman is saying things like "It’s OK" or "I’m fine," says Ms. Kurker, "they don’t mean anything except the person just doesn’t want to deal with the situation right now." 
But if, weeks on, the alleged victim is sending friendly texts to the alleged perpetrator, that could mean something different. "It doesn’t make sense," she says, "that they would be exchanging flirty text messages after that time if something had gone wrong."
What's interesting about this statement by the investigator is not whether her view of what different messages at different times might mean for a particular person is right or wrong, because how would you know, especially in an individual case. Rather, the statement is striking because it offers a glimpse into the influence of preconceived notions on interpreting events and forming judgments about them.

And here's the real point: everyone comes to questions of fact with preconceived notions. Sometimes we call these notions experience. Sometimes we call them common sense. Those are the positive descriptors. If we disagree with the predispositions, we call them bias, prejudice, or ignorance.

For people caught up in the legal system, the reality is that winners and losers will in many cases be decided, right or wrong, by what makes sense to other people whether we agree with them or not.

Thursday, February 12, 2015

$60k for One Year of Stanford

The San Jose Mercury News has this report today:
Stanford University will hike its tuition this fall by 3.5 percent, bringing it to $45,729, the campus announced Wednesday.
The new fees will raise the undergraduate tab to $60,427 for next year, a total that includes $14,107 for room and board and $591 for a mandatory health fee.
Because of financial aid, most students don’t pay the full sticker price, but still, that’s a lot of money. Paying full freight for four years at Stanford costs a cool quarter million. And the costs keep going up.