: The Blawgraphy
Life of a Law Student, University of Houston Law Center

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Thompson on Eyewitness Identification Testimony

Houston Law Prof Sandra Guerra Thompson (my own crim law prof) has posted a new paper, Beyond a Reasonable Doubt?: Reconsidering Uncorroborated Eyewitness Identification Testimony, to SSRN, publication forthcoming at UC Davis Law Review.

Pointing out that “eyewitnesses identify a known wrong person (a “filler” or “foil”) in approximately twenty percent of all real criminal line-ups” and that “erroneous eyewitness identifications are by far the leading cause of convicting the innocent,” Thompson notes that courts nevertheless treat eyewitness testimony with a presumption of reliability that seems unfounded.

Given that background, there are disturbing statistical gaps – the percentage of exonerations on the basis of DNA evidence, mostly rape cases, suggests that in cases in which there is seldom DNA evidence (robbery, burglary, assault with a deadly weapon, etc.) there is a false positive rate that remains unknowable but is likely much higher than it should be. Thompson asserts that “if DNA evidence were available in robbery cases, we would likely have an additional four times the numbers of individuals exonerated to date, and these would only include cases dating back about twenty years.

The solution is a corroboration element for the eyewitness identification of strangers -

A simpler and more effective approach to systemic reform would shift the focus away from what the police do or fail to do in gathering evidence, and focus instead on changes to the rules of criminal procedure that govern the sufficiency of evidence for conviction…. exclud[ing] from those cases in which victims and culprits knew each other prior to the date of the crime.

A corroboration requirement operates at the investigative stage, making it incumbent on police investigators to continue their investigations even after obtaining a positive identification.

Plaintiff Moves for an Erection

As hard as it is to believe, this motion was actually argued in an actual court –

New Haven attorney Rob Serafinowicz opened his civil case against former Middlebury First Selectman Edward B. St. John by asking Judge Jane S. Scholl to force St. John to submit to a photograph of his penis, fully aroused.

Who needs Boston Legal when you’ve got Rob Serafinowicz?

Above the Law: The Plaintiff Moves for an Erection

Must Read Literature: Posner, How Judges Think

Last night I got my copy of Judge Richard Posner‘s How Judges Think which was released well… today (damn Amazon’s fast).

I only allowed myself time enough for the first chapter before study-guilt caught up with me, but I’m getting excited about this one –

Judicial preconceptions are best understood, we shall see, with the aid of Bayesian decision theory. Not hat this is how judges themselves would describe their thought processes. And ‘Bayes’s theorem’ is not the only term I shall be using that is likely to alarm some readers of a book about judges. Nor are “occasional legislators” and “dissent aversion” the only others. readers will have to brace themselves for “reversal aversion,” ideology drift,” “tolerable windows,” “utility function,” “Sartrean bad faith,” “option value,” “risk aversion,” “zone of reasonableness,” “monopsony,” “cosmopolitanism,” “authoritarian personality,” “alienation,” “agency costs,” “rule pragmatist,” and “constrained pragmatist.” I do not apologize for these terms or, more generally, for discussing judicial thinking in a vocabulary alien to most judges and lawyers. Judicial behavior cannot be understood in the vocabulary that judges themselves use, sometimes mischievously.

Oh this is going to be a good one.

Public Interest Lawyers – Thank You for Not Being Evil

I had to laugh at this April 1st article from the Harvard Law School Record, School Holds “Thank You For Not Being Evil” Ceremony:

As part of its continuing campaign to encourage students and graduates to pursue careers in public interest, the law school held a “Thank You For Not Being Evil” ceremony last Wednesday recognizing graduates who chose to take jobs with employers who are not primarily dedicated to destroying weaker businesses, poor people, or the environment.

“You,” Dean Kagan told the assembled crowd, “are exemplifying what this law school is all about: not actively working to make the world a worse place. You should be proud of yourselves for bucking peer pressure and institutional inertia and instead making a courageous choice to live up to your own ideals and the bare minimum standards of human decency.”

Ah ha, ha, ha…… it’s funny cause it’s true. No really.

Stephen Bainbridge of UCLA takes Erwin Chemerinsky, the inaugural dean of the new UC Irvine Law School in Erwin Chemerinsky: A Law School for the 21st Century:

You want to help make society a better place? You want to eliminate poverty? Become a corporate lawyer. Help businesses grow, so that they can create jobs and provide goods and services that make people’s lives better.

Those whose livelihood depends on corporate enterprise cannot be neutral about political systems. Only democratic capitalist societies permit voluntary formation of private corporations and allot them a sphere of economic liberty within which to function, which gives those who value such enterprises a powerful incentive to resist both statism and socialism. Because tyranny is far more likely to come from the public sector than the private, those who for selfish reasons strive to maintain both a democratic capitalist society and, of particular relevance to the present argument, a substantial sphere of economic liberty therein serve the public interest.

I took another look at Chemerinsky’s post A law school for the 21st century for the offending condemnation of corporate lawyers -

Using law to help people and society is neither liberal nor conservative. It is about the duty of every lawyer to use his or her training for the social good. Law schools must instill this throughout the curriculum and must look for ways, such as summer stipends, post-law school fellowships, and loan forgiveness programs, to encourage more law students to pursue careers in public interest law. All law students, whatever their field of practice, should graduate believing that they have the duty to do pro bono work and use their training to improve society.

Hmmmm…. damn law school deans trying to improve society….

Dave Hoffman seems to do a better job explaining it at Concurring Opinions, contending that

The big idea to agree with here is that it is a terrible fact that law deans, and law professors, continually push out the message that corporate lawyering is a less moral & desirable career path than “public interest” lawyering.

Hoffman goes on to offer up some moral implications, but I would argue that the more pertinent question is why we assume that public interest practice (this is a misnomer, IMHO) is somehow immune or unresponsive to the market mechanisms that operate in corporate law land. There is a high degree of market failure in these cases, I’ll grant, but this is not an insurmountable economic problem. Becoming a corporate lawyer is one way to attack that problem, though a lot of people don’t have that long to wait for the benefits to trickle on down. The work of Muhammad Yunus with the Grameen Bank offers a more useful model.

Lawyers representing people in ‘public interest’-type cases need to get a long tail by which I mean a particular method of economic pie-expansion, the biggest hurdle to which I believe lies in the rules governing lawyers in structural and billing practices. I’m working on a business plan relevant to this subject in an Entrepreneurship class I’m taking right now. I’ll post it after I, well, after I actually get around to writing it, and we’ll see where this conversation goes.

Former SCOTUS Clerks Drafted into Arguing Abandoned Cases

From’s Supreme Court Justices Turn to Ex-Clerks for Unusual Role, comes the surprising news that Supreme Court litigants sometimes decide, ‘hey, you know what you were right after all, no need to waste SCOTUS’ time with this argument’ at which point SCOTUS say, ‘Whoa, not so fast, we’re the only ones who get to decide whether or not our time gets wasted and waste it we will.’

In which case some lucky aspirant gets to cut their teeth on the side nobody wanted to argue anymore. Sound like an appointment from hell? Not necessarily:

Early in the Reagan administration, Justice Department officials decided they did not want to defend a lower court ruling that had upheld the IRS’ rejection of tax-exempt status for schools and universities that discriminate on the basis of race. So the Court appointed famed civil rights attorney William Coleman Jr. — also a former high court clerk — to defend the decision in the 1983 case Bob Jones University v. United States. Coleman carried the day.

It should be noted that SCOTUS superstars Maureen Mahoney and now Chief Justice John Roberts both got their starts on such cases.

Hat tip to Simple Justice.

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