Super Lawyers
William C. Altreuter

Thursday, June 07, 2018

When I was a child I was (to put it mildly) a rather indifferent student, and a frequent threat was that if I didn't shape up I'd be sent to military school. In my instance this may have been an empty threat, but I can tell you that there were certainly other kids I knew who heard this. I knew kids that went to military academies as well. Take a look at this photo. Better yet, let's have a look at each of these cadets:

How would you describe the expressions on the faces of these 18 year old men? They are in full dress uniform, and plainly posing for a photograph, so this is an occasion when they are on display. Parent's weekend? Homecoming? Senior Day? We can assume it is some sort of important event- this isn't regular Saturday drill, I think, because if it were there'd be more cadets around. Do you think these men look fierce? Indomitable? Proud? To me they mostly look frightened, or nervous. Remember, these cadets are not marching off to war, or into battle-- this is a yearbook photo from a military academy. I think they are afraid they will screw up- and not something big, although it might have seemed big. (One of the things military school tries to impart is that it's all big, that any mistake damages the institution and brings dishonor.)  I know when I was 18 years old that was something I thought about a great deal.

Perhaps you see where this is going. Let's look at Cadet 2 again:

This is, of course, Donald J. Trump, then a senior at the New York Military Academy in Cornwall, New York. There's certainly a lot of backstory here, including a hazing scandal in which Trump's lack of leadership was implicated, but I don't want to read too much into how someone's high school career shaped their future. My Facebook feed suggests that some people are defined by high school a great deal (as does the career of Maureen Dowd), but other people move on. What interests me is the deeper question of what it must have felt like to have been such a chronic fuck-up that Trump's father pulled him out of a ritzy country day school and put him into a military academy. How would that have made a 13 year old boy feel? What does a 13 year old boy think when his parents send him out of their home into a place like that?

Three years ago NYMA went bankrupt and was auctioned to a group of Chinese investors after a fundraising effort by a group of alumni fell short. I haven't been able to find out if Trump kicked in-- the alum raised about $6 million bucks. 

Wednesday, June 06, 2018

The two part NYTimes article about the Texas man convicted of murdering his wife on the basis of blood splatter evidence is an interesting jumping off point for thinking about the way that law relies on science, and on the breakdown that occurs when science gets pushed too hard. Really what we are talking about are two ways of considering evidence, and the way that the law operates only superficially resembles the approach science takes: a conclusion drawn "to a reasonable degree of scientific certainty" is close enough for jazz, but not really the way that science regards anything. I am sympathetic to Errol Morris' view -- I have to be, if I want to believe in evidence at all-- but "a reasonable degree of scientific certainty" is always going to be an uncomfortable fit with "proof beyond a reasonable doubt". The blood splatter stuff impresses me as pretty shaky science, at least as it is described in the article, but really the psychology of eye witness identification suggests that Redd Foxx may have been on to something: Who you gonna believe, me or your lyin' eyes?

Of course, as a practical matter criminal convictions, or even civil verdicts, don't typically hinge exclusively on scientific proof, and juries are explicitly instructed to take into account the totality of the credible evidence, and interpreted through their personal life experience. My theory of jurisprudence is informed more by Rousseau than by any concept of absolute truth; I am not prepared to be swallowed up by solipsism.

Tuesday, June 05, 2018

Presidential self-pardon. Consider that Nixon was a solid enough lawyer to have actually practiced after his run for the California governorship failed. (He was probably mostly a rainmaker at Mudge, Rose, but still-- that was a reputable shop back in the day.) Nixon stopped short of pardoning himself. Nixon was a lot of things, but he was probably the last Republican President who was something other than a figurehead for shadowy interests.

The other part of this, the part that really doesn't seem to be said as much as it perhaps should be is that although we think of the Constitution as our foundational legal document it was certainly also intended as an outline which showed the frontiers of how American politics was expected to operated. We are on beyond Zebra now, but norms are still important in answering these questions. The best way to think about something like the limits of Article II Executive powers is probably to ask, Would a judge see it  that way? Put aside the politics of the Supreme Court for a moment-- what would the arguments in the District Court look like? What would you expect to read in the briefs before the DC Circuit Court of Appeals?

Impeachment is a political process that only looks like a criminal trial, and then only if you squint. I don't see this drama ending that way, but if it does I do not think there is a court in the land that would buy into to self-pardon idea. Accepting a pardon is an admission (see, Burdock v. US) and in the face of such an admission the job of the Senate would be to determine if removal constitutes the proper outcome.

Monday, June 04, 2018

“To describe a man’s faith as ‘one of the most despicable pieces of rhetoric that people can use,’ ” [Kennedy] wrote, “is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.”

So, okay Justice Kennedy, I suppose I can see a sense in which religious beliefs shouldn't be subjected to criticism from the government, although I'll bet you a nickle that you and I can both come up with examples where we'd agree that free exercise should be limited. Actually, the Colorado Civil Rights Commission came up with a couple that work for me: "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust....". Don't like those? As I recall the use of certain Schedule I drugs for religious purposes is a problem for some Supreme Court Justices, and if I walked into a religious not-for-profit shouting "Death to the infidels," I don't think my assertion of free exercise would get me very far.

Religion perpetuates ignorance and hatred and has done so throughout history, but hey, as long as folks keep it inside and away from me I'll defend their right to believe pretty much anything anyone wants. But please let's not kid ourselves over what religions are really about: they are self-perpetuating belief systems that are actually proud of the fact that they are utterly unsupported by any evidence, intended to assert social control. The front page of yesterday's Buffalo News had a story in which the Bishop of Buffalo asserts that the diocese isn't hiding any evidence of clerical sexual abuse. Now really, who would believe such a thing, given the evidence, if the person saying it wasn't a bishop? In fact, the history of lies about this issue ought to demolish any credibility the speaker has, and when you add to that the fact that the man's entire career has been spent promoting outright fiction as divine truth is really just the cherry on the top. So why do we believe that the sort of discrimination justified in Masterpiece Cakeshop v. Colorado Civil Rights Commission is permissible? The Bible is full of examples of persons claiming exemptions from this or that on the grounds of their piety-- and if I recall correctly things usually go badly for those guys. Religion is no excuse for behavior which would otherwise be unacceptable.

Thursday, May 24, 2018

As I have said repeatedly, now is an interesting time to be teaching Constitutional Law. One of themes I tried to emphasize this past semester is the necessity of understanding the role that norms and values have in our legal system. It's a subject that I frequently think about: something as basic as the understanding that a statement made under oath should be treated more seriously than an ordinary statement depends on a belief that this is a shared value, for example, as mundane as it sounds, is essential for the courts to operate. Every day, all over the country, tattered courtroom Bibles are employed as a sort of social polygraph. Why does this work? Clap hands if you believe. Good piece here from Five Thirty Eight.

Monday, May 21, 2018

I interviewed some of the main players in the "Hide in Plain Sight" story for an article in Buffalo Spree which doesn't appear to be on line. Glad to see it being screened- it's a pretty good movie

Wednesday, May 16, 2018

I'd love to read about Tom Wolfe's time with the Merry Pranksters- or about his reportorial methods generally. Bonfire of the Vanities is about my Bronx, or at least the Bronx I moved in back then, and its verisimilitude gives everything else I've read by him serious credibility. That said, he was a curmudgeonly critic, and an oddly conservative cat. The Painted Word is about as wrongheaded as anything this side of Mailer's Prisoner of Sex. Still and all, if I were teaching a course on the Sixties The Electric Kool-Aid Acid Test, Hunter Thompson's Hells Angels: A Strange and Terrible Saga, Mailer's Armies of the Night, and James Baldwin's The Fire Next Time would be on the syllabus, along with Betty Friedan's Feminine Mystique. 

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