When
the number of law school applicants plummeted a few years ago, many schools
dipped very deep into the applicant pool – as in near open enrollment – to fill
seats and boost revenues. Not
surprisingly, three years later when these students graduated, some schools’ bar
passage rates dipped – and in some cases went into free-fall. (You can see the carnage in California ,
for example, here.) The problem is that a
low enough bar passage rate for a long enough period of time could put the
school’s ABA accreditation at
risk. So the natural response of some law
schools was to blame the bar exam as being an unfair test – a position that now
aligns nicely with their desire to fill their seats with any student loan
conduit applicant who can pass the mirror test. But now, two deans have written an op-ed on
the Tax Prof Blog to point out the flaws in law schools’ worn-out arguments. Kudos to them; you can find their work
here.
Monday, December 19, 2016
Friday, December 16, 2016
The Joe Mixon Video
I just saw the Joe Mixon video on Sports
Center , and it’s also available here. I wish they would have discussed two things. First, Mixon starts to walk away
at which point the victim appears to say something to him, pushes him, and then
smacks him in the side of the head — all before he strikes her. Maybe it’s just the criminal defense lawyer
in me, but I’d like to hear a debate about what type of response, if any,
would have qualified as reasonably necessary to terminate her unlawful interference
with his person. (As an example of a self-defense statute, Wisconsin ’s is here.) Would a shove have been okay? What if the shove was forceful enough to put her on the ground but did not cause any injury? Second, according to Sports
Center , Mixon “pleaded guilty to
the charge without making an admission of guilt.” How can a person plead guilty without
admitting guilt? Isn’t that what
a no contest plea accomplishes? (This is
either bad reporting or a quirk in Oklahoma
law.) Finally, an observation. From a purely practical standpoint, there’s
a lesson here that should not be overlooked: If you don’t push and smack a person in the head, you will
dramatically decrease your odds of getting knocked out. You know, an ounce of prevention and all that.
Thursday, December 15, 2016
A Tale of Two Schools
I just read a Boston Globe article about DeVry
University agreeing to pay $100
million to settle a lawsuit. (Hat tip to “the Chow.”) The suit
alleged that DeVry provided misleading employment data to prospective
students. The school had boasted a 90
percent employment rate. However, “DeVry
was counting students who found jobs outside the fields they studied” including
“a graduate who studied in the health care field but found work as a restaurant
server and another who worked as a car salesman[.]”
Wednesday, December 14, 2016
Law Schools, Lawyers, and Dead Philosophers
What's the relationship between/among law schools, lawyers, and dead philosophers? Read my new Wisconsin Law Journal column and find out.
Saturday, December 3, 2016
Knightly to remain at the Legal Watchdog
Saturday, November 5, 2016
Talking out of both sides of their mouths
For the latest in disingenuous judicial babble, read my newest Wisconsin Law Journal post, "Wisconsin Courts as Superlegislatures," available here. Enjoy!
Sunday, October 23, 2016
Amanda Knox’s Trip to Italy
Let’s face it: It could be many, many months before Season 2
of Making a Murderer is released — although my book on Avery and Dassey will
available April 4th. In the meantime, be
sure to watch the Netflix documentary Amanda Knox. It’s just like Making a Murderer, only
set in beautiful Italy
instead of Manitowoc , Wisconsin . Okay, it’s not just like it, but there are numerous, uncanny parallels between
the Amanda Knox case and the Avery and Dassey cases, including these:
Tuesday, October 11, 2016
How to fix the presidential debates
These so-called debates are so absurd that I can’t stand to
watch them. Even when I’m at home alone,
I get too embarrassed and have to turn the channel. I try to watch, but I just can’t. And these debacles don’t in any way resemble
an actual debate. Rather, the participants’
goals seem to be: (1) interrupt your opponent as often as possible; (2) ignore
the question whenever possible and instead talk about something completely
unrelated; and (3) work in as many sound bites as possible. And the moderators don’t help either. Their two biggest problems are: (1) they seem
to be participating in the debate rather than moderating it; and (2) they ask
absurd questions about topics that are far beyond the reach of the office of
the president. The good news, however,
is that there is a simple fix. Because
the Commission on Presidential Debates seems to be really dense, and has no
idea how to structure debates to “provide the best possible information to viewers and listeners,” I’ll put this advice in the form of a simple
numeric list.
Sunday, September 25, 2016
Convicting Avery (Prometheus Books, 2017)
How often is Wisconsin criminal law and procedure front and center on the national stage? Probably once, and that is thanks to the Netflix documentary Making a Murderer. But of course, a ten-hour documentary about three criminal cases (two for Avery and one for Dassey) doesn't allow much time to explore the laws and procedures behind the convictions. Therefore, I wrote a book titled Convicting Avery: The Bizarre Laws and Broken System behind "Making a Murderer." It is being published by Prometheus Books and will hit the shelves on April 4, 2017. As the title makes clear, the book will expose the numerous flaws in Wisconsin's criminal justice system that contributed to the three convictions. In the meantime, if you're one of the few people in the world yet to see Making a Murderer, watch it now on Netflix. And if you're looking for up-to-the minute links, news, and commentary on Avery and Dassey, check out the Tick Tock Manitowoc group on Reddit. Finally, for my first two books, check out my amazon author page.
Monday, September 12, 2016
Convicting Dassey: Five Easy Steps to a False Confession
Friday, September 9, 2016
Henry Fool on Politics and Other-Acts Evidence
Sorry for the lack of posts as of late. I've been busy writing a law review article on other-acts evidence, and I also find myself spending far more time than expected watching and reading about this ongoing train wreck otherwise known as the presidential race. (With private servers, political donations, and now "Trump University" lawsuits, there's just so much of substance to take in.) And both of these things -- other-acts evidence and politics -- remind me of Henry Fool. With regard to politics, Henry was rather dismissive of the process: "When noble minds shrink from the task of leadership, scoundrels will rush in to fill the void." And as for other-acts evidence, Henry had firsthand knowledge of its life-long impact: "So my word is not enough; my promise worthless; the fact that I have served my time nothing but the emblem of my continuing guilt." For more of Henry's wisdom, check out Henry Fool, Fay Grim, and now part three of the trilogy, Ned Rifle. And of course, please enjoy the mesmerizing, ongoing media debate about whether Hillary or Trump is the lesser of the two evils, and should therefore be elected president.
Thursday, August 4, 2016
Ethics rules clash; SCOW flops on free speech
Check out my latest column at the Wisconsin Law Journal, titled All "Riled" up: SCOW flops on ethics rule 1.9. In it, I discuss the Supreme Court of Wisconsin's decision on my petition to change ethics rule 1.9, as well as SCOW's recently published case In Re Riley, 2016 WI 70, where the court found a lawyer acted unethically for not violating rule 1.9! As Prosser stated in his dissent, there is "serious tension" between the ethics rules, and had the attorney decided to violate rules 1.6 and 1.9 in order to comply with the other set of rules, he could have been fired from his job and even sued by his former client. The lesson is that with Wisconsin's selectively applied, irrational, and conflicting ethics rules, no lawyer is safe from the long arm of the OLR, which, as one of our state's prosecutors noted, is "more concerned with how they look in the zealous pursuit of an attorney pelt, rather than what result should be reached." (2014 WI 31, ¶ 39.) On Wisconsin!
Wisconsin's Unconstitutional Burden of Proof
Sunday, July 17, 2016
Getting closer to the associate’s degree in law
More than two years ago I wrote about Community’s Jeff Winger, a fictional character that faked a bachelor’s degree, went straight from high school to law
school, graduated, passed the bar, practiced law, was ratted-out, was disbarred,
and had to go back for a post-J.D. bachelor’s to be readmitted to the bar. (Seasons one through six on DVD here; season
six online here.) I also argued that in
real-life, the J.D. is nothing more than an associate’s degree, and law schools
should recognize this. First, as the
fictional Jeff Winger and every real-life law student prove, law school
doesn’t require a single, college-level prerequisite to get in. So what’s the difference if the student
spends four years and $100,000-plus for a B.A. in puppetry or skips college altogether
as Jeff Winger did? And second, I
argued, the third year of law school is pure silliness and should be
eliminated. In fact, some schools at the
time were designing two-year programs, but were still squeezing three years’
worth of tuition dollars out of their victims students. But now that would-be law students are better
educated about the limited value of the J.D., law schools are forced to look
for creative ways to fill their seats so they can pay their faculty to write
cutting-edge legal scholarship.
Monday, June 27, 2016
On Writing, Publishing, Making Money, and “Making a Murderer”
Photo by Brenda VanCuick |
I was searching the web to see if Prometheus Books had posted
any type of announcement about my forthcoming book, Convicting Avery: The
Bizarre Laws and Broken System behind "Making a Murderer". But before I could find anything, I came across
a website called Reddit. (At
least I think it’s a website; it really just seemed to be a string of comments.) There was a discussion of my recent Wisconsin
Law Journal article about how the Denny rule prevented Jerry Buting
and Dean Strang from putting on a third-party defense at Steven Avery’s trial. Most people in the thread liked my article. And so did a guy or gal who wrote “not a bad column.” (Given
there is a lot of bad writing out there, I’ll take that as praise.) However, he or she also wrote “$$$”
and indicated that the dollar signs “were a criticism over the fact that a
random lawyer out of Kenosha with
no ties to the case is writing a book with ‘Making a Murderer’ in the title.” I tried to post a response, but couldn’t
figure out how. (The problem, I’m sure,
lies with my technological ineptitude; for example, I’ve never snapchatted
or pintrested, I’m not even on facebook, and I don’t even know what
Reddit is.) So instead, I decided to write
this post to dispel some myths and offer some tips to would-be writers:
Tuesday, June 7, 2016
Avery, Dassey, and Denny
Photo by Rebecca Slye |
Friday, May 27, 2016
Bill Clinton appointed as “special prosecutor” to investigate Ken Starr [Updated Below]
In a long-delayed but ironic turn of events, Baylor
University has just appointed former
United States President Bill Clinton to serve as “special prosecutor” in the internal
probe of its alleged mishandling of sexual allegations. According to Baylor sources, Clinton
will be investigating Kenneth Starr — the university’s former president who has
since been stripped of that title but remains employed in other capacities. One of Clinton ’s
directives, sources say, is to determine what Starr knew, when he knew it, and
what actions he took with regard to allegations that certain student athletes had
committed sex-related misdeeds. Decades earlier, of course, the roles were reversed: Starr led
a multi-year, multi-million dollar investigation ostensibly into Clinton ’s
Whitewater real estate transaction; however, that investigation quickly shifted from real estate to Clinton ’s
sexual indiscretions while in office.
The investigation eventually culminated in the so-called Starr Report, also
known as “Kenneth Starr’s $70 million bag of garbage.”
Saturday, May 7, 2016
Hiatus and Bar News
Blogging Hiatus |
Wednesday, March 23, 2016
Truth or Doubt?
Friday, March 18, 2016
State bar confuses silence with loyalty (again)
The state bar has run an on-line article about our rule petition to change SCR 1.9 so that Wisconsin attorneys can exercise our basic free speech rights with regard to public information about our former clients' cases. You can find our petition and supporting documents here. You can find the state bar's article here. And reproduced below is my comment to the article:
This [state bar] article demonstrates that Rule 1.9 is so unclear, even the state bar ethics committee can't tell us what it means. In addition to the discussion of all of the possibilities of what it might mean, Tim Pierce even gets part of it wrong. For example, the article states (quoting Tim Pierce from the earlier oral arguments on the rule petition) that informed consent does not have to be in writing. Well, wait until you are in front of the OLR for a violation. Here's what the Wisconsin comment to Rule 1.9 reads: "The Wisconsin Supreme Court Rule differs from the Model Rule in requiring informed consent to be confirmed in a writing signed by the client."
This [state bar] article demonstrates that Rule 1.9 is so unclear, even the state bar ethics committee can't tell us what it means. In addition to the discussion of all of the possibilities of what it might mean, Tim Pierce even gets part of it wrong. For example, the article states (quoting Tim Pierce from the earlier oral arguments on the rule petition) that informed consent does not have to be in writing. Well, wait until you are in front of the OLR for a violation. Here's what the Wisconsin comment to Rule 1.9 reads: "The Wisconsin Supreme Court Rule differs from the Model Rule in requiring informed consent to be confirmed in a writing signed by the client."
Thursday, February 25, 2016
The Legal Watchdog goes to the Supreme Court of Wisconsin
SCOW |
Earlier this week we argued to the Supreme Court of Wisconsin in support of our petition to reform ethics rule 1.9. We’re trying to change the rule so that
attorneys can enjoy basic free speech rights with regard to public information,
e.g., published appellate court opinions, about their closed cases. You can find the arguments at this link — but
you have to press “Part 2” on the right hand side of the web page in order to
get to us. Rob Henak and Ellen Henak
also spoke in support of the petition. On
the other side, a representative from our state bar opposed our petition, which
was disappointing. The state bar can get
away with suppressing its members’ speech because it is compulsory, i.e., we
lawyers have no choice but to join. As I’ve
argued before, however, the bar should rethink its position, as it might not
always have that guaranteed stream of compulsory bar dues to fund its bureaucracy. In Arizona, for example, the Irreverent Lawyer’s “house bill 2221” to make their bar voluntary just passed by a vote of
31-29.
Thursday, February 11, 2016
Educating tomorrow's lawyers
Check out my newest article, Two Rules for Educating Tomorrow's Lawyers, in my Critic's Corner column in this month's edition of the Wisconsin Law Journal.
State Bar News
SECOND, our state bar here in Wisconsin opposes our proposed change to ethics rule 1.9 -- color me surprised. Our bar collects our dues and is supposed to be working for us, yet has chosen to "protect" the public from lawyers' discussion of public information, rather than protecting our basic free speech rights. If the Wisconsin bar has its way, we lawyers will still be prevented from talking about even the public aspects (e.g., published appellate court decisions) of our former clients' cases -- also known as our cases. This is clearly unconstitutional, but our bar and other mandatory bars love to be perceived as protecting the public at its lawyer-members' expense.
THIRD, Wisconsin's mandatory bar can get away with taking our money and then working to violate our basic constitutional rights because it's an entrenched bureaucracy that we are forced to join. But the bar ought to rethink its position, because it might not enjoy this insanely privileged status forever. In Arizona, for example, the Irreverent Lawyer is leading a movement to dismantle the mandatory bar and turn it into a voluntary organization. If he is successful, their state bar bureaucracy would shrivel up faster than a grape in the southwest desert summer sun. (That is, few lawyers would join if they're not forced to do so.) Good luck, Irreverent One! Why don't you take care of business in Arizona, and then come to Wisconsin and take on our mandatory bar? Knightly offers his assistance in the fight for freedom of speech and freedom of association.
Saturday, January 23, 2016
Another hole in the Fourth Amendment
During the course of The Legal Watchdog’s short-lived but
glorious podcast, we discussed the court of appeals case State v. Dumstrey
where the court held — despite a scathing dissent — that we don’t have a
privacy interest in our locked, underground, enclosed parking garage of our condo
or apartment. The case was obviously so
wrongly decided — every single one of the factors in the multifactor balancing
test pointed toward the existence of a privacy interest — that the state supremes
announced they would be taking the case for review. At the beginning of this podcast we gave our predictions. Although “the skeptic in me” was cautious, I
said that I was “going out on a limb for our supreme court.” I predicted that “even
this supreme court, with these justices, will reverse it.” So what happened?
Friday, January 15, 2016
Robots Rising
I absolutely
hate those super trendy commercials showing young people completely enamored
with their “apps,” “social media,” and “mobile devices.” Sure, this “technology” feeds their
insatiable appetites for a non-stop stream of mindless “content.” But what the kids don’t realize is that this
same technology, while well-suited to their short attention spans, is also taking
away their jobs—or preventing them from landing jobs in the first place. In Rise of the Robots: Technology and the Threat of a Jobless Future, Martin Ford explains how robots—or, more accurately, smart
algorithms that know how to teach themselves—are now doing jobs that college
grads used to do. This, in turn, forces a
very large percentage of college grads into jobs that do not, in any imaginable
way, require a college degree. Then, the
workers that would typically have held those unskilled jobs are forced into
long-term or even permanent unemployment or underemployment.
Friday, January 8, 2016
Goin' mainstream
I recently joined the Wisconsin Law Journal as a monthly columnist. My first article, A Call to Arms (So to Speak), just came out in print, and is now available on-line. My monthly column, CRITIC'S CORNER, will archive all of my articles as the months pass. I'll put a link to that on the right hand side of the blog, near the links to my books, articles, and MU blog posts. Enjoy!
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