The takeover of America's legal system

https://bariweiss.substack.com/p/the-takeover-of-americas-legal-system

by kvee • 4 years ago

207 288 4 years ago

bariweiss.substack.com

tomohawk• 4 years ago

“I got into this job because I liked to play devil’s advocate,” said the tenured professor, who identifies as a liberal. “I can’t do that anymore. I have a family.”

And tech is the next menu item that they will gobble up.

tharne• 4 years ago

And tech is the next menu item that they will gobble up.

Will? I'd say that's already in progress.

verisimi• 4 years ago

I agree with the main thrust of the article. I boil it down to this as the new overarching maxim:

The new law is 'cancel culture and corporate policy'.

Legalman does the best deconstructions of law, and why it isn't as we think: https://odysee.com/@the-quash-w-legalman:5

He asks all the difficult questions.. that don't really have good answers.

ttyprintk2• 4 years ago

It’s very important, if on trial, that you and your lawyer are able to frame your actions as a reaction to unfairness in our society. This article gives a concrete example where sentencing was halved when the prosecutor noted a defendant’s political alignment.

knighthack6• 4 years ago

So the "right" politics reduces criminal culpability. How just.

ttyprintk2• 4 years ago

You’re not off to a good start. People dispensing justice want to see that you’re making strides in their movement. This article is about the people defining injustice now defining justice. It’s rational to prepare some long-lived online agreement with anyone whose goal is redefining justice.

rdmond• 4 years ago

Weiss (unsurprisingly) gives a really bad-faith mischaracterization of this. What the prosecutor noted was the defendant's frame of mind because they had to in order to calculate what sentence to ask for. It's not political, it's a formula and you can read it for yourself https://www.courtlistener.com/docket/17441998/67/united-stat...

blisterpeanuts2• 4 years ago

>> Weiss (unsurprisingly) gives a really bad-faith mischaracterization of this.

Well, Weiss didn't write this article. It was written by Aaron Sibarium, a contributing writer, not by Bari herself. She may well agree with his major points, however.

eli_gottlieb9• 4 years ago

I really wish Weiss would make her case more quantitatively. But while I'm at it, does she have a piece on the general structural phenomenon of institutional capture, how it works and how to fight it?

For instance:

The problem has come not just from students, but from administrators, who often foment the forces they capitulate to. Administrators now outnumber faculty at some universities—Yale employs 5,066 administrators and just 4,937 professors—and law schools haven’t been spared the bloat.

This is an actual quantitative, causal explanation. Why does it not pothole to an entire article or study? I want to know more.

blisterpeanuts2• 4 years ago

(Aaron Sibarium wrote the article, not Bari Weiss.)

It would be interesting to see whether law schools in specific have "administrator bloat". It's certainly true that generally universities have more admin than faculty--and admin frequently are higher paid, as well, especially in this era of adjuncts making $50/hour and no benefits or job security.

actionfromafar• 4 years ago

I sort of agree, but the American legal system wasn't exactly in great shape before. The reaction described in the article is not good, but a reaction of some sort was expected.

namlem2• 4 years ago

Yeah, we have bigger problems in the American legal system. Such as the fact that we do almost no data collection. We have no idea how effective individual judges, courts, prisons, or prosecutors are because no one writes it down anywhere.

Ekaros3• 4 years ago

Isn't everything recorded? It is just that it is gatekept behind paywalls and no effective data is generated from those records?

giantg29• 4 years ago

"because no one writes it down anywhere."

Oh no, it is written down. The courts have determined that their notes/complaints/etc are deserving of such secrecy that you can't even subpoena judicial complaints even if they contain exculpatory evidence. They reason that releasing complaints would undermine public trust in the judiciary. I argue that would only be the case if inappropriate punishments (or lack of punishment) were taking place. How about that for conflict of interest - the court granting themselves protections that only apply to themselves...

I had a magistrate show consistent bias (retired police chief no less), unwarrantly yell at the defense, and prevent the defense from voicing a petition to dismiss based on rights violations with the response "that's not gonna happen" (a violation of due process and the state constitution that requires defendants to be heard). It was all recorded pursuant to law. I filed a judicial complaint. They closed the complaint saying there was no evidence of wrongdoing, even though their website lists uncurteous behavior like yelling as a disciplinary infraction and I had a recording. I raised the rights violations and the fact that we were denied from having our petition even heard (another rights violation). The judge said that we would need a record that the concerns were raised in the magisterial court, even though the issue was that we couldn't raise them since we weren't allowed to present the petition. Not to mention, it was a trial de novo ("a complete do-over" according to the judge), which means this is our chance to have complete reconsideration, including the petition.

Same case had an ADA violate several rules. I filed a complaint there too. The Bar's response is that they only investigate prosecutors if the court has already formally declared prosecutorial misconduct occurred. Useless.

Honestly, incompetence and bias is rife in the judiciary. They plainly side with the institution. After all, the government is the one who pays their check, and the more buddy buddy they are with the enforcement side means the less likely they will be cited or charged with anything.

eli_gottlieb9• 4 years ago

One gestalt impression I'm getting from the parts about "burn the place down" is that the economic precaritization of the professions has produced a mass cohort of young professionals who seriously don't care about the institutions they staff and the social purpose of those institutions. They see themselves as something of a generational social movement instead, taking over and coopting institutions they view as offering them a mostly adversarial social contract to begin with.

helen___keller2• 4 years ago

They see themselves as something of a generational social movement instead, taking over and coopting institutions they view as offering them a mostly adversarial social contract to begin with.

Thanks for pointing this out. Don’t really care for the OP or most of the discussion, but I think this observation is really something to think on.

I’m not part of law so I can’t relate to that topic, but I can apply this pattern to most institutions (or markets) I’ve interacted with:

* healthcare market (movement to socialize)

* big tech institutions (lots of younger techies support unions, blatantly hate on their big tech employers, etc)

* housing market (upzone or socialize housing are popular topics)

* university (everyone wants the student loan status quo to change, the elite school status quo is garbage too)

Etc…

FooBarBizBazz• 4 years ago

* big tech institutions (lots of younger techies support unions, blatantly hate on their big tech employers, etc)

Anyone who works in Tech sees this at just about any All Hands meeting. It's really amazing to watch.

nerdponx2• 4 years ago

Very well said. I'm going to borrow this phrasing.

banannaise• 4 years ago

The final section blames South Africa's recent issues on... checks notes... the end of apartheid.

I have questions.

throwaway0a5e2• 4 years ago

The final section blames South Africa's recent issues on... checks notes... the end of apartheid.

You have a much more creative sense of reading comprehension than I do.

Nobody said anything about the end of apartheid. They are complaining about the bad things that can/could come having a legal system that is not demographically blind. The article quoted someone saying something dumb about implementing a policy like SA did that had less than stellar results. And then the article went on to quote people who were calling that original quote dumb.

rory• 4 years ago

That's like saying criticism of the current Russian government is blaming issues on the end of Bolshevism.

notreallyserio2• 4 years ago

It's quite a leap from someone not personally wanting to represent an alleged rapist to not wanting someone to have representation at all, but the author made that leap easily within only a few paragraphs. The rest of the article goes in to the real point they're making (anti-CRT yadda yadda) but the original premise is so shaky that I just can't take it seriously.

torstenvl2• 4 years ago

someone not personally wanting to represent an alleged rapist

(1) That isn't what happened. The junior associate wanted severance because the named partner represented him.

(2) I would fire any junior attorney who said such a thing. You may think it's acceptable; I do not. Everyone deserves an attorney, not just even when accused of heinous crimes, but especially when accused of heinous crimes. Prejudging a client or potential client based solely on the allegation and news media is antithetical to everything the profession stands for.

giantg29• 4 years ago

It sounds like being fired with severance is exactly what they want. Maybe better to let them leave on their own.

knighthack6• 4 years ago

To add: the defence provided to a client is limited ordinarily to what is legally feasible, and what is ethically honourable (i.e. 'winning' does not mean going to the extent of pulling out dishonourable defences to ensure the accused client win).

The above are fair, and reasonable considerations for any lawyer to mete out to an accused client, in the interests of a fair trial, and for the ends of justice.

Yet what the "woke" community asserts is that any form of representation for accused people - accused, not convicted - is heinous in itself. It is surprising, since the legal fraternity should be first to understand that allegations are not truth -- that even law students have fallen short of this is worrisome, as they are the future lawyers and judges of the country.

mschuster912• 4 years ago

Everyone deserves an attorney, not just even when accused of heinous crimes, but especially when accused of heinous crimes.

Yes, but no lawyer should be forced to defend a specific person either. Effective representation requires at least a basic level of trust and communication between client and lawyer - the consistent negative outcomes associated with poor persons unable to afford their own lawyer and being forced to rely on public defenders who are often overworked and underpaid are long known [1] [2], not to mention that unlike e.g. Germany, DAs in the US are not required to also search for evidence that is helpful to the defense.

In the end, issues of payment aside there will always be a lawyer interested in taking on any case - no matter how heinous - simply because of the publicity that showing good work in defending a client will bring.

[1] https://www.jstor.org/stable/27977109

[2] https://www.theguardian.com/commentisfree/2015/jun/17/poor-r...

notreallyserio2• 4 years ago

1) It looks like I misread subtext. I took it to mean the lawyer did not want to assist Boies in defending Weinstein. I suppose it's a little different if they're just some random unrelated lawyer at the firm. Still, the author made a huge leap from point A to point B.

2) Sure, firing them is your right. I just think it is perfectly acceptable to hold people accountable for their actions even if they felt morally obligated to perform those actions. And I fully support those that choose not to associate themselves with anyone, for any reason.

erellsworth• 4 years ago

Can we not pretend that taking the Weinstein case wasn't about some high-minded, principled act? This is the same law firm that hired private investigators to spy on victims in an effort to build smear campaigns. They did it for money, not morality.

Yes, everyone deserves an attorney. That's why public defenders are a thing. If Harvey Weinstein weren't rich and famous, that's likely what he would have had for his defense.

There's a huge leap from "everyone deserves an attorney" to "everyone deserves a big, high-powered, (and I would argue unscrupulous) law firm"

Shalomboy• 4 years ago

The leap from 'junior associate at a fancy law firm made a bold request based on principles' to 'the American legal system is under attack by whiny, ultra-liberal wreckers' blew me away. But as you pointed out, that's not the point of the article. The author's purpose is to whine about right-wing windmills for 5,000 word.

I can't believe we take these people seriously.

ReactiveJelly• 4 years ago

"none of this was supposed to happen"

It really wasn't, and I'm sorry. I'll bring this up at the next Deep State meeting. Keeping college kids under control is something that all political conspiracies struggle with, and we'll do better.

bo1024• 4 years ago

According to the article, you have been pushing your insidious critical race theory for 40 years now! We have always been at war with Eurasia.

KoftaBob• 4 years ago

Then, an associate in her late twenties stood up. She said there were lawyers at the firm who were “uncomfortable” with Boies representing disgraced movie maker Harvey Weinstein, and she wanted to know whether Boies would pay them severance so they could quit and focus on applying for jobs at other firms.

This is an odd hill to die on, especially for an attorney who knows how the US legal system works. Everyone, no matter how despicable, is entitled to legal representation.

You see a similar "code" in medicine. For instance, when the Boston Marathon bomber Dzhokhar Tsarnaev was arrested by SWAT, he was taken to the hospital and treated by doctors for his wounds. The medical staff wouldn't even think of objecting to treating a known terrorist, because their duty is to be physicians.

ibejoeb2• 4 years ago

This is eroding also. For example, Kathy Hochul ordered that priority be given to patients of "Non-white race or Hispanic/Latino ethnicity" when seeking certain covid therapies, citing "longstanding systemic health and social inequities." The framework operates on a points system, and that affords a point.

See page 3: https://coronavirus.health.ny.gov/system/files/documents/202...

lp0_on_fire5• 4 years ago

Of course Kathy Hochul, a white woman herself, would get platinum care because she's governor.

Disgusting.

nicwolff• 4 years ago

You left out that those inequities "have contributed to an increased risk of severe illness and death from COVID-19" which is accurate according to the CDC.

https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investi...

0des• 4 years ago

This is racist.

tzs• 4 years ago

That document is talking about triaging when there is a shortage of monoclonal antibodies and oral antivirals so they can't treat everyone. The goal then is to try to minimize the number of people whose COVID progresses to severe COVID.

Like it or not the fact is that race and ethnicity is in fact a decent indicator of probability that someone's case will progress to severe COVID.

Maybe that is due to "longstanding systemic health and social inequities" or maybe it is due to something else but the why doesn't really matter from a triaging point of view. From a triaging point of view it is not much different than obesity or age or any other observable characteristic or attribute of the patient that experience has shown correlates with outcomes.

staticman22• 4 years ago

Wealthy people don't pay for the most expensive lawyers for mere "legal representation".

They do it in the hopes the most charismatic people in the law profession can actively mislead the judge and jury.

Or in other words they do it in the hope that who ever is best at arguing will win.

frockington1• 4 years ago

People to tend to buy the best they can afford. I don't think this is unique to the legal system

throwaway0a5e2• 4 years ago

he was taken to the hospital and treated by doctors for his wounds. The medical staff wouldn't even think of objecting to treating a known terrorist, because their duty is to be physicians.

They are the only institution that came out of that looking like anything other than a bunch of idiots.

Feds? Dropped the ball and engaged in witch hunt to make up for it.

Staties? Dropped the ball, endangered the public and violated civil rights left and right.

Courts? Needlessly shoddy kangaroo trial.

philjohn3• 4 years ago

The author is also putting a LOT of stock in a single misguided person asking a question.

giantg29• 4 years ago

'... on how the legal system in America, as one prominent liberal scholar put it, is at risk of becoming “a totalitarian nightmare.”'

It isn't already? My experience indicates that rule of law is commonly ignored, prosecutorial and law enforcement discretion leads to biased and unequal application of the law, letter of the law and strict construction is ignored in the aim to convict people who "deserve" it, and that the rights of the people are often ignored.

I think that training on bias is a good idea. After all, some of these lawyers become judges and attention to all potential bias would be useful, and necessary for a fair trial.

Ekaros3• 4 years ago

Following certain lawyers on Youtube points that prosecutorial misconduct is not exactly rare and entire thing is more about narrative and misleading jury about law than the facts...

giantg29• 4 years ago

Oh yeah, I've witnessed it. An ADA held a known unsupported charge that carried pretrial restrictions only found under that charge. Then they prevented us from talking to court scheduling to secure remote accommodations for a witness (so they couldn't testify) - even though the rules of procedure/discovery didn't allow them to do that for a summary case, and violated the Bar's rules of professional conduct. I filed a complaint with the Bar. The Bar didn't even look at it. They did they'll only investigate after a court formally declares that prosecutorial misconduct occurred. Ok... so what do you actually investigate if the determination has to already be made?

_jal• 4 years ago

The best justice money can buy. If you look past the silly complaints about word choice and such, people like Weiss are complaining that people want to change that.

Same as the nonsense about 'cancelling' - the actual complaint is that uppity low-status people are talking back.

With people like this, every complaint is an admission.

joshenberg• 4 years ago

I don't find these examples particularly compelling. Likes to cite examples of overreach but never describe the counter arguments.

i.e. peremptory strikes. Jury selection was clearly, with many many examples, used in the past to create a group not that was not the defendant's 'peers'. Even with the '86 court ruling that nominally ended peremptory strikes on the basis of race, most lawyers recognize (as do Gerrymanderers) you can find related reasons to strike them within the realm of plausible deniability (i.e bias against police).

The author presents no reasoning from those in favor, only disgruntled and largely anonymous counterpoints.

Furthermore, the praise of S African policy is a cherry picked example and clearly far outside the mainstream. One American official praising an approach is hardly a bellwether.

Re: Kyle Rittenhouse, citing one example as a potentially adverse ruling ("liberals would hate to convict this black man!") is hardly a good counterargument towards vigilantism. Just this week, a Florida 70 year old was acquitted after shooting dead a man who threw popcorn in his face. Even if we had to admit there is no perfect middle ground (may or may not be true), I think over-convinction of vigilantes is clearly preferable to allowing greater death and destruction through the furtherance of stupid legal theories like Stand Your Ground.

akamaka• 4 years ago

Indeed, and in another example he complains of someone getting “only” a 10 year sentence, instead of the maximum 20. If anything, that’s a counter-argument, proving that the changes happening are not of great significance.

francisofascii2• 4 years ago

I think over-conviction of vigilantes is clearly preferable

You are kinda making the author's point. The notion that we should over convict for the greater good is NOT what the American justice system should aim for. It is better for some guilty to go free rather than some innocent to get punished. While I agree Stand Your Ground laws are not good and suffers from the same problem: this notion of presuming guilt until proven otherwise.

m0llusk• 4 years ago

Agreed. These are important issues, so discussion would be enriched by robustness and completeness. Critical Race Theory is mostly about the problem and might be addressed by any number of actions. In this piece only one possible reaction is examined. It is also very important to look at the full range social variation within what we call race. Currently Nigerian immigrants are one of the top earning groups and while the Black middle and upper class may be small they do not necessarily share the same issues as people who are stuck in ghettos or living on the street.

peppermint_tea2• 4 years ago

"are more important to more and more law students than due process, the presumption of innocence, and all the norms and values at the foundation of what we think of as the rule of law."

this assumes that there was due process, presumption of innocence and a "rule of law" to start with.

truth is, rich people can afford the best lawyer, poor people have to take a 10 years plea deal.

I gave a bit of thought into this and came out with a solution which is called "loto-lawyer" you spin the wheel, and you get what you get as a lawyer. As ridiculous as it may sound, it would be something closer to justice...

simonsarris• 4 years ago

this assumes that there was due process...

The article doesn't assume that at all. Just because a system is unable to live up to its ideals in all (or even most) cases, we should still be concerned if the ideals themselves erode. This is a silly way to downplay the central subject.

dang3• 4 years ago

This is a silly

Please don't call names in arguments here. It's against the site guidelines (https://news.ycombinator.com/newsguidelines.html) because it leads to much worse discussion. Your comment would be fine without that last sentence.

Miner49er• 4 years ago

This article doesn't offer up compelling evidence that the "ideals themselves" are eroding. It's just a collection of anecdotal examples, showing in some cases it doesn't live up to the ideals, in the author's opinion.

peppermint_tea2• 4 years ago

The central subject is people refusing the statu quo of the current justicial system. The article does not assume that indeed, but reference to people that do (lawyers over 50 etc).

I stand behind my comment and loto-lawyer to illustrate how broken the system is until we find a better alternative.

your net worth should not have anything to do with "how much justice you can afford."

I have plenty of examples to back this up.

trylfthsk• 4 years ago

As a big proponent of sortition, I fully endorse loto-lawyer.

Maybe then we can continue with the lower houses of US legislatures.

giantg29• 4 years ago

Eh, the lawyer quality is only one small part.

A much larger part is the unequal application of the law through prosecutorial and law enforcement discretion. Also, the best lawyer won't mean much if you get an incompetent or biased judge.

Then you have the issue of just being charge will cost a ton of money. Even if you're innocent, you're financially punished. Most summary offenses cost more to hire a lawyer to defend your innocence than to plead guilty and pay the fine. This is by far the biggest farce of justice - being punished as much as a guilty person just to defend your innocence.

diputsmonro• 4 years ago

this assumes that there was due process, presumption of innocence and a "rule of law" to start with.
truth is, rich people can afford the best lawyer, poor people have to take a 10 years plea deal.

Exactly this. The author does a lot of hand-wringing about the loss of the current institutional practices, but never stops to consider that maybe those institutional practices were never as good as they were sold to be anyway.

Justice has never been truly blind, for exactly the reasons you note. In a society that is structurally, historically biased (based on race, wealth, etc.), any institution that pretends that bias doesn't exist will simply allow that bias to be continue. This new generation has seen the flaws in that mentality and has chosen to fix them instead of continuing the problem.

To put it another way: "evil prevails when good men do nothing". The system effectively "does nothing" now by ignoring existing structural bias, and thus allows the existing evils in society - racism, classic, etc. - to affect its outcome. It doesn't matter if the system isn't designed to be "evil", or that the people acting within it don't consider themselves to be evil - The evils in society will persist if they are not actively opposed.

A change in mentality has occurred among the profession (and also as a wider cultural movement) that societal evils need to be actively called out and opposed rather than quietly tolerated. And honestly, I find it hard to disagree.

motohagiography• 4 years ago

A better answer to the, "‘How can you represent someone who’s guilty?’ question is that defense lawyers defend the integrity of the legal system and process against the people who have found themselves in government because the sovereignty of the process is what the rule of law means.

However, the process of litigation is not the representation or discovery of truth, it means currying the favor of a judge or jury - which is what makes current critical theories of social justice so pernicious, because they are also based on this "throw everything at it and see what sticks," approach to political power. Students coming out of schools appear to not be educated as stewards of truth and culture, but as raiders and looters of it.

If you have ever found yourself in opposition to someone using political complaints, they also often litigate in the same way, where you may not have even done something objectively wrong, but you have let yourself become exposed to someone leveraging a taboo against you the way that prosecutors can choose to lever laws, and it doesn't have to be true, if you have something they want (or don't want) there are no conseqeunces to lying or misrepresenting facts in the course of social justice. The judge and jury today is social media and this ubiquitous "narrative," where participants trade in slanders.

Part of this ideology is that "muh freedom," e.g. limits to state power and accountability to principle, only deprives marginalized people of complete power to wield justice if/when they seize the reins of it, but it is supported by another intellectual solvent of subjectivity that means there is no objective truth, only appeals to power and consequences.

These are the factors that made their way out of the courts, into the culture, and are now making their way back into the courts as a zombie freak ideology where there is no truth or meaning in language, and sadly I don't see the centre holding.

giantg29• 4 years ago

'A better answer to the, "‘How can you represent someone who’s guilty?’ question is...'

Is that the person is innocent until proven guilty.

xboxnolifes2• 4 years ago

I think the question is more "How do you represent someone who has told you they are guilty, but wants to minimize negative outcome".

kingcharles2• 4 years ago

You're misquoting. It is "presumed innocent". Most criminal defendants are guilty of the crime for which they are charged.

I think it can be really hard on lawyers at times. Society really frowns upon a criminal defense attorney's representation of a rapist, and of course their opinion isn't changed when the defendant is found factually innocent at trial.

The USA has a legal system wherein even a guilty murderer can walk free if the police used unconstitutional means to gather the evidence against them. This system was put in place by judges (not by legislators) simply because they were sick of police and prosecutors using these unethical methods to convict, and then there was no investigation or misconduct charges against them.

julesqs2• 4 years ago

very funny to write an article about the crisis in the legal system without addressing how it is a pretty good example of almost complete elite capture by a few top law schools whose admissions are far from meritocratic. Or talking about Steven Donziger vs Chevron, a case so shameful the UN Commission on Human Rights has called for his release. Or talking about the basic truth of the US legal system, where the wealthiest can nearly always afford to win a civil case just through a war of attrition by hiring incredibly expensive lawyers while the bottom 50% of America could never hope to hire one lawyer.

But I don't expect much else from Bari Weiss' publication, where the scariest thing in the world is always some college kids that asked each other their pronouns or something. Why is this even on HN

ss10826• 4 years ago

Law school admissions are pretty meritocratic. Not sure the basis on which you would argue otherwise.

julesqs2• 4 years ago

you don't think there are exceptions to the formula of LSAT/GPA? who do you think those exceptions are made for?

rayiner18• 4 years ago

An important thing to bear in mind is that the legal profession is largely self-regulated, and lawyers have a monopoly over the legal system. State bars and bar organizations are largely unaccountable to the public. If these organizations abandon principles of neutrality and objectivity, and become overtly ideological, they can use their power over lawyers to exert tremendous, anti-democratic influence over every aspect of life. Everyone should be worried about this.

And when I say everyone, I mean it. People assume that it's just "conservatives" complaining about these ideological changes. But to be clear, all of the people quoted in this article--like the overwhelming majority of lawyers--are liberals: David Boies, Andy Koppelman, Nadine Strossen, etc. Indeed, they're probably well to the left of your average Democrat.

Also, when it comes to the legal system, you shouldn't disregard complaints from "conservatives." The reason legal process works is because, even though it results in winners and losers, everyone at least everyone agrees in the process and the principles underlying it. The faith Americans have in the legal system is remarkable given that 90% of lawyers are liberal Democrats, while most Americans are Republicans or conservative Democrats. (Fun fact: about two-thirds of the country still opposes the half-century old Supreme Court precedent banning school prayer.) Abandoning the dedication to neutrality and objectivity that has been championed by even liberal legal organizations up to this point will have profoundly negative consequences for the rule of law.

danabrams• 4 years ago

This article is describing what happens when an institution starts to lose trust. There's a perception, even by participants in the system, that the system results in too many wrongful convictions and too many wrongful acquittals.

That's a problem that should be talked about and addressed, but blaming people who are knowledgable about the system (licensed attorneys) for a changing set of values due to reduced trust in the system is silly. If a system is consistently producing outcomes that are different from its value, the system is broken, and it people are going to rationally lost faith in its old customs.

twofornone9• 4 years ago

If a system is consistently producing outcomes that are different from its value, the system is broken, and it people are going to rationally lost faith in its old customs.

Except the evidence that these ideologues cite for this divergence from values is inequality of outcome, which is a ridiculous metric to gauge the fairness of a system which presides over a culturally and genetically heterogeneous population. And that's the key issue with so called CRT, which has become somewhat of an umbrella term both for directly influenced pedagogy and ideologies with underpinnings which are simply similar to CRT in spirit: when you naively presume that all peoples are identical in ability and behavior, save for influences of the economic and justice systems (i.e. ignoring culture and genes), then naturally the only allowable answer to the question of inequity is discriminatory injustice. And the outcome of such shortsightedness is broken, often reverse racist policy, which is exceedingly quick to make excuses for suspects of the "right" (minority) demographic and particularly harsh on suspects of the "wrong" ("privileged") demographic.

This is ultimately an overcorrection to the injustices of slavery/jim crow and WWII-era nazism - we've taken race and cultural blindness a step too far, conflating equal treatment under the law with equal outcome under the law (and in other institutions as well). If your ideology does not allow for differences in average behavior/ability/values as an explanation for different average outcomes then it becomes trivially easy to see the boogeyman of racism/sexism across institutions and justify what amounts to throwing the baby out with the bathwater.

etchalon21• 4 years ago

CRT specifically attacks equal treatment under the law. The idea it attacks outcomes is a woefully simplistic understanding of its core criticism.

kelseyfrog• 4 years ago

ignoring culture and genes

Am I reading this wrong? Interested in hearing which cultural and genetic elements impact legal outcomes.

matthewmcg3• 4 years ago

I have practiced law for more than ten years, attended some of the institutions mentioned, and have worked in and with firms that would be considered "elite." I don't recognize any of the phenomena described in this article. Frankly the writer is either very far from the reality of modern legal practice (chasing noise in the system, without any real data) or she's viewing things selectively to serve some ideological purpose.

Most legal bills are paid by large corporations. The U.S. is the leader in this respect--on average U.S. companies spend about 0.4% of their revenue on legal services, almost triple the rate in a civil law country like Germany. Effectively most lawyers (including me) work directly or indirectly for businesses. This means that the legal education system, and to a lesser extent, the court system, are shaped by and largely serve the needs of businesses.

And what are all of these businesses doing with their legal spending? Largely litigation defense, transactions (M&A, issuing securities, or buying/selling assets like real estate), and interacting with government and regulators.

Lawyers that don't work for large business organizations spend their time representing individuals or classes of plaintiffs in tort litigation or in matters like criminal defense, immigration assistance, family law, or estate planning. Things that may not involve the huge dollar amounts of business transactions but that matter a lot to the people affected.

For every law school class on critical race theory or other topics the writer criticizes, a law student will take dozens on administrative procedure, taxation, federal courts, etc. etc. etc.

There are many valid criticisms of the American legal system. For example, you might feel that it's too easy to file a frivolous lawsuit that will settle for nuisance value. Or you might observe that corporations have been able to cripple or stall regulation that the public demands. Or that mass incarceration is bad social policy. This kind of introspection, including CRT, has long been a part of the academy and the profession, and I think a useful one.

The situation depicted in this article, that everyone's suddenly gone out of control "woke," is just ridiculous and doesn't at all fit my own experience.

hobbyjogger4• 4 years ago

Same here (M&A/VC lawyer for nearly a decade). Agree 100% on all of the above.

I became skeptical right off the bat when she compared Boies' civil representation of Weinstein (at ostensibly $2,000+ per hour) to the defense attorneys who volunteered to represent Guantanamo detainees.

rayiner18• 4 years ago

Most Americans would say that an American businessman has more of a right to effective legal counsel than foreign jihadists detained in Guantanamo. Once you start making the distinction between clients who have more or less of a right to effective legal counsel, you’ve already bought into the ideology complained of in the article.

ss10826• 4 years ago

I just graduated from Columbia Law and am currently a biglaw first year. I agree with you pretty much entirely.

Her article is idiotic and so is most of this thread.

yeahwhatever10• 4 years ago

Articles like this that are mostly based on a collection of one off examples always make me cautious. What do you think of the examples given? Are they extreme outliers, or common place in law schools?

TruthIsHeresy2• 4 years ago

I just graduated from an Ivy League law school and I found the article spot-on. So which of us is wrong?

newbamboo• 4 years ago

People really do hate the profession with an intensity that seems at times, as you said, idiotic.

I read these pieces about political disruptions to our system of laws with some concern that those deep in the thing might not understand the extent of their own biases. Better to err on the side of caution. A stitch in time saves nine.

rayiner18• 4 years ago

I’m privy to the mailing list threads another T14. The article is spot on.

metalliqaz• 4 years ago

Who is "her"? Are you referring to an article other than the OP? (author is Aaron Sibarium)

knighthack6• 4 years ago

You're a fledgling first-year practitioner, with no direct access to the thoughts and business considerations of biglaw firm partners or what they deal with. And yet you confidently conclude that the article "is idiotic and so is most of this thread", as if your statement were fact, with not even a contrary opinion to support your statement.

Congratulations. You're the kind of junior lawyer the article warns against.

rayiner18• 4 years ago

CRT dates back to the 1970s. I assure you that the liberal NYU and Northwestern professors quoted in the article didn’t just wake up in 2022 and decide to complain about people saying that “mass incarceration is bad social policy.”

These trends are hitting academia and the non-profit sector first. At my law school, one of the top ones in the country, the Dean got up and declared himself a “white supremacist” at a town hall meeting: https://www.washingtonexaminer.com/news/northwestern-univers...

My friend who works at a public interest organization—herself very liberal—has been surprised by attorneys refusing to work in cases because of the political beliefs of clients and donors (which have nothing to do with the organization’s purpose).

The changes at the ACLU are well documented: https://www.nytimes.com/2021/06/06/us/aclu-free-speech.html

Efforts by the ABA to impose commitments on lawyers that could interfere with the duty of zealous advocacy are well documented: https://judicature.duke.edu/articles/a-speech-code-for-lawye...

ta16479603113• 4 years ago

These trends are hitting academia and the non-profit sector first. At my law school, one of the top ones in the country, the Dean got up and declared himself a “white supremacist” at a town hall meeting: https://www.washingtonexaminer.com/news/northwestern-univers...

The only thing shown here is the fear of being ostracized, and the costs with being contrarian. You think this was contrition? I think it was simply them realizing they were better off lying than being genuine.

pfraze2• 4 years ago

At my law school, one of the top ones in the country, the Dean got up and declared himself a “white supremacist” at a town hall meeting

To explain this a bit more: there was a fairly wide conversation during 2019/2020 about systemic advantages for white people in America. One observation was that systemic racism which favors a specific race could be described as inherently supremecist - in this case, white supremecist. If you accept that argument then benefitting from the system admits sympathy with white supremacy, and so saying “I’m a white supremecist and I’m trying to do better” is a way to admit to systemic problems and to state a desire to rectify them. If anybody remembers the blowup at the Basecamp all-hands meeting, this was the conversation that happened there. Unfortunately the line of logic is hard to communicate because “white supremecist” typically suggests an active intent to displace or destroy other races, which is why the dean’s statement seems so bizarre without context.

matthewmcg3• 4 years ago

My constitutional law professor did some CRT scholarship in the 1980s and brought this perspective to our class* in an interesting way. The syllabus was pretty traditional, but he would add color, giving what he called "the conventional view" (basically, that the Supreme Court has steadily and inevitably protected the rights of minorities) and then his own view challenging this. It was far from indoctrination. Rather, he encouraged us to think critically about each decision and what it did and didn't do, and the institutional capabilities of courts vs. legislatures, rather than just vaguely celebrating social progress won through landmark decisions.

* circa 2009, when "CRT" was better known as a near-obsolete display technology than a boogeyman of the American political right.

ethbr0• 4 years ago

attorneys refusing to work in cases because of the political beliefs of clients and donors

It's ironic that I heard Ketanji Brown Jackson at her Supreme Court confirmation hearing this morning, defending her work defending Guantanamo detainees as their public defender.

As she (rightfully imho and more eloquently) put it, a core aspect of the US legal tradition is that everyone deserves representation. Regardless of what they're accused of doing and who they are.

ZeroGravitas5• 4 years ago

Over the past week, certain corners of the Internet have identified and mischaracterized the events of a community conversation held at Northwestern Law on June 3, together with a few comments made at that event. Although we had hoped not to dignify these mischaracterizations with a response, they continue, with potentially harmful effects both to individual members of our community and to our community as a whole.

https://wwws.law.northwestern.edu/about/news/newsdisplay.cfm...

marlowe221• 4 years ago

I'm a former attorney. I left the profession after 13 years of practice and became a software developer.

I spent most of my career doing things like criminal defense and representing people with disabilities. In those areas of practice, things like CRT are badly needed. There can be no realistic dispute that the heavy hand of the law comes down more heavily on criminal defendants of color than it does those who are white - examination of the roots and causes of institutional racism are the best ways to combat this issue, and perhaps some discussion of these topics even in law school is warranted.

That said, I agree that most legal education is more practical and traditional than what is depicted in this article.

PathOfEclipse• 4 years ago

There can be no realistic dispute that the heavy hand of the law comes down more heavily on criminal defendants of color than it does those who are white

There can be and there is significant realistic dispute: https://www.clarionledger.com/story/opinion/columnists/2016/...

There can be no realistic dispute that CRT has caused far more harm, division, and destruction for our society than it has benefited anyone. It is a cancerous ideology that needs to be excised.

escapedmoose3• 4 years ago

No law experience, but this is what I had gathered as well. The examples in this article sound like cases of over-correction. Which isn’t great, but it’s probably better than the alternative of not recognizing the issues at all.

api• 4 years ago

It's really hard for me to tell how much of this stuff is real and how much is right-wing outrage trolling. I tend to assume that it's either totally made up, misinterpreted, or its influence is exaggerated.

I also tend to be skeptical of left-wing outrage fodder. We live in a media environment where outrage and stoking of controversy are king. Instead of "if it bleeds it leads," it's "if it offends it leads." It's this way because it gets clicks.

ss10826• 4 years ago

It's real, it's just blown way out of proportion (see my comment above).

hobbyjogger4• 4 years ago

Agreed with ss108. Sure, there are a few law schools (among other higher education institutions) that have overreacted to "wokeness." But that plus a few anonymous accounts from (mostly junior) practicing attorneys doesn't at all mean that the movement has "taken over" America's legal system.

Consider that skilled developers might, on principle, prefer not to work at Facebook/Google or in the defense industry, etc. Maybe they just don't agree with the means and ends that a company uses to generate large profits (and salaries). So sure, a good attorney might prefer not to use his or her rare talents to support a business that gets paid millions of dollars to support/justify a cause/person/business/policy that the attorney doesn't personally agree with. Nothing wrong with that - and certainly not proof that the legal system (or tech industry) has been "taken over" by those who simply prefer to work at other firms with missions they believe in.

knighthack6• 4 years ago

I have practiced law for more than ten years, attended some of the institutions mentioned, and have worked in and with firms that would be considered "elite." I don't recognize any of the phenomena described in this article. Frankly the writer is either very far from the reality of modern legal practice (chasing noise in the system, without any real data) or she's viewing things selectively to serve some ideological purpose.

I am in a similar position as you. I have practiced for more than 10 years, and at one of the largest law firms (which will be kept anonymous), and I have forever been a full-time trial litigator. And I do not share your experience.

I've seen the exact opposite, i.e. as per what the article has described - 'woke' juniors coming in with ridiculous expectations, and being a bit too forward despite their lack of experience. I've seen resumes where applicants wrote that they preferred not to be hired at the firm if it didn't include the diversity policy of their choosing (and which is shameless, since a large firm has no ends of good applicants to select from), and where these applicants listed their own social activities (none of which included legally-relevant matters) with 'woke' topics as if that were of any inducement to a large legal firm that was billings-first, over virtue-signalling. I've seen some of these folks during meetings virtue signal and judge against other associates who they thought didn't reflect their standards, which was very toxic for the work environment as your political/social ideologies should really be kept out of the workplace. And so on.

If law firms are shaped by businesses, then the institutions producing these new students - and capitulating to these unrealistic 'woke' demands - are educating the new generation completely devoid of legal business reality.

digisign2• 4 years ago

Sounds depressing, however an over-correction to real phenomena. A lot of young people come to the working world with unrealistic expectations that get realigned after time. It's part of growing up, saying/doing dumb things. Will it get worse or moderate? Time will tell.

ss10826• 4 years ago

But won't those people simply not rise through the ranks if they don't perform well? At the next step, how would they really "take over" the legal system just by being woke at work? They still have to make the same arguments the rest of us make in partnership disputes, proxy battles, sec lit, etc. Even by doing pro bono, best one can hope for is a good result for an individual, not systemic change. Most judges aren't woke. Going from A to Z here is rife with issues.

When there is a progressive version of FedSoc, then they might be poised to takeover the legal system. But for now, conservstives have taken it over by correctly identifying the power of the judiciary--the least accountable branch, btw.

Personally, I am fortunate to be at one of the least woke biglaw firms and nobody in my first year class is like that.

RajT88• 4 years ago

Bari Weiss is not a lawyer.

However, Bari Weiss did resign from the NYT over "Cancel Culture":

https://en.wikipedia.org/wiki/Bari_Weiss#2020:_Resignation_f...

The whole wiki is a great read, if you want to understand what her slant is.

legalcorrection• 4 years ago

Most major corporations demand that teams assigned to their legal matters have a certain % of minorities on them. You can literally be staffed on a matter solely because you are black or hispanic. If the law firm refuses or fails to hit the quota, the client will threaten to take their legal work elsewhere.

Most law firms run extensive diversity programs. If you bother to look into at all, it's obvious that black and hispanic applicants to law firms get a massive boost. This is on top of the massive LSAT bonus they get. Getting into a top 14 law school as a white guy requires being in the top 5% of the test scorers. For blacks and hispanics, it's more like top 20-30%. Same goes for law school grades and recruiting into law firms. So by the time a black guy gets hired at a top firm, they've had multiple, stacking advantages over white people.

As an associate at one of these elite firms, you will be dragged into diversity training where older associates boast about reporting people to HR for various microaggressions.

The vast vast majority of big law firms will refuse to approve pro bono work for socially conservative right wing causes. Nor will they allow you to represent a racist in their criminal or civil disputes. These same law firms will happily represent murderers and child molesters to try to get them out of jail (as they should, but they should represent the people with unpopular opinions too).

So if you're not seeing this stuff and noticing how crazy it is, it's probably because it's aligned with your politics and you don't mind.

a_shovel2• 4 years ago

All of sudden, critical race theory was more than mainstream in America’s law schools. It was mandatory. Starting this Fall, Georgetown Law School will require all students to take a class “on the importance of questioning the law’s neutrality” ...

Sounds good. Lots of people mistake the law for morality, it's important to make them think about how that's not the case, and if the law is made by agenda-driven politicians, it will necessarily be unfair to some.

As of last month, the American Bar Association is requiring all accredited law schools to “provide education to law students on bias, cross-cultural competency, and racism,” ...

Sounds good. These are things adults should know about.

One criminal law professor at a top law school told me he’s even stopped teaching theories of punishment because of how negatively students react to retributivism—the view that punishment is justified because criminals deserve to suffer.

Sounds good. Deterrence is ineffective, and the criminal justice system needs to move to a more rehabilitative model.

[reparations & prison abolition shirt image]

I'm not sure why I should care about this. It's not censorship or illiberalism to advocate for these positions.

At Boston College Law School this semester, a constitutional law professor asked students: “Who does not think we should scrap the constitution?” According to a student in the class, not a single person raised their hand.

This would be the expected response to any question in an 8 a.m. class.

I could go on. These cancel culture/critical race theory/campus illiberalism stories are junk.

philjohn3• 4 years ago

But dangerous as they can be easily spun into sound bites to be repeated ad nauseum.

a_shovel2• 4 years ago

I'd say these articles are the thing spinning random disputes into sound bites.

brimble2• 4 years ago

> > At Boston College Law School this semester, a constitutional law professor asked students: “Who does not think we should scrap the constitution?” According to a student in the class, not a single person raised their hand.
This would be the expected response to any question in an 8 a.m. class.

Not only that, you're gonna get a fair number of votes for "scrap" in any classroom full of people who've spent much time studying and thinking about the constitution. Most "no" votes will likely be from people approaching it practically, as too difficult to realistically improve on in the current political environment—an "in an ideal world" kind of framing would have a real chance of getting a very sincere and considered, universal "yes" from the whole class.

This is because it's fairly bad, and it's been (plenty) long enough to see exactly how and why it's bad. Some parts never worked right (the electoral college comes to mind, which broke completely about as soon as it came in contact with reality and effectively never worked the way, or had the effect, that was intended, at all) and a bunch more kinda work, but are clearly not optimal compared with proven alternatives.

ss10826• 4 years ago

The sophomoricism in this thread is one of the things that irked me about tech and made me go into law.

I'm going back into tech because the culture of law is much more broken and repellant, but one thing I can say in favor of lawyers over engineers is that, IME at least, they are overall much more willing to recognize when they aren't well-versed in other fields, including both substantively and in terms of mental models.

panda-giddiness• 4 years ago

[Lawyers] are overall much more willing to recognize when they aren't well-versed in other fields, including both substantively and in terms of mental models.

That's a refreshing perspective. Any inkling as to why? I'm guessing prolonged exposure to the adversarial process would cause lawyers to be a bit more introspective about the limits of their knowledge, but are there other reasons, too?

ss10826• 4 years ago

Thanks. My theory is there are 2 reasons:

1. Lawyers must really internalize an attitude of recognizing the limits of what they know. They have to speak precisely. They can't make claims they can't substantiate. They can't speculate. Sometimes lawyering involves making a lot of assessments of who knows precisely how much. It also involves dealing personally with a wide range of other subject-matter experts. So what you said about the adversarial process is correct, I think.

2. Many (not all) engineers seem to downplay non-STEM qualitative thinking. On phone, so hard to fully explain, but I think part of it is that they think that because what they do is specialized and hard, other stuff is easy. Lawyers are arrogant too, but in different ways.

Maybe non-STEM stuff is easier, but it has its own complications, and I think engineers are not inclined to see them.

Would like to hear if this is consistent with the experiences of others.

vegetablepotpie2• 4 years ago

Articles like this push a narrative of woke social justice warriors ruining society by ignoring customs and norms. Certainly there are exploitationists who gravitate to any movement to attain power. However, everyone who tries to affect change in bureaucratic organizations knows that the worst things are not the word ‘no’ but complete silence. Customs and norms allow institutions an excuse continue the status quo without thinking too hard about it.

The real story here is that institutions have gained so much power in society such that they have eclipsed every function in daily human life. The people who lead them have arbitrary and capricious control over prices, investment, transportation, and justice. The way people have responded to this is just part of the story. I want journalists to report on the whole story.

TruthIsHeresy2• 4 years ago

However, everyone who tries to affect change in bureaucratic organizations knows that the worst things are not the word ‘no’ but complete silence.

Sounds like the issue is the bureaucratic organizations, not the people who choose to be silent about certain issues/topics.

vegetablepotpie2• 4 years ago

I explained that badly. The people who compose bureaucratic institutions are silent. Going neutral, not taking a stance, no comments, are the safe moves, and produce no change either good or bad. Depriving institutions of neutrality is a way to erode their power. This is a tool activists have.

adamsmith1437• 4 years ago

Articles like this push a narrative of woke social justice warriors ruining society by ignoring customs and norms

I'm not sure this characterization is correct. Their argument is much more about the SJW groups pushing new erosive and pernicious norms instead.

eli_gottlieb9• 4 years ago

The real story here is that institutions have gained so much power in society such that they have eclipsed every function in daily human life. The people who lead them have arbitrary and capricious control over prices, investment, transportation, and justice. The way people have responded to this is just part of the story. I want journalists to report on the whole story.

Very true. The question is not why left-wing college grads can wield arbitrary personal power based on some job they got at a prestigious private institution. The question is why jobs at prestigious but still ultimately private, undemocratic, unaccountable institutions have so much arbitrary power in the first place.

And IMHO the answer to that involves a lot of talk about how stupid, untrustworthy, self-serving, racist, corrupt, etc the actual voting public supposedly is.

AnimalMuppet2• 4 years ago

And IMHO the answer to that involves a lot of talk about how stupid, untrustworthy, self-serving, racist, corrupt, etc the actual voting public supposedly is.

And said as though the left-wing college grads are completely immune to being stupid, untrustworthy, self-serving, racist, corrupt, etc. (OK, they may be less racist. It's a start. The rest still applies, though.)

MrBuddyCasino• 4 years ago

Another good take on the subject is Richard Hanania making the case that "Woke Institutions is Just Civil Rights Law": https://richardhanania.substack.com/p/woke-institutions-is-j...

afpx• 4 years ago

I'm just an average American with limited understanding of the "narratives" these days, but what's wrong with teaching CRT if it can help address disparities in criminal justice stats? The system doesn't seem as just as it should be, and the profession should try to fix that.

philjohn3• 4 years ago

Nothing - it's been deliberately and systematically demonised and now is used as a stand in for any anti-racist teaching.

It's an area of study, nothing more, nothing less. That one side of the political spectrum is hell-bent on cancelling it should give us pause for thought.

francisofascii2• 4 years ago

Fair question. I would argue that is is the wrong way to fix injustice. If we want impartiality in the system, and the system in not impartial, we should not add more unfairness to try to balance out the system. It it like adding more bugs to software to try to counteract the existing bugs.

brimble2• 4 years ago

"CRT" as a thing that political actors complain about, and "CRT" the academic topic, are basically unrelated. The former is a Frankenstein's monster bogey-man built from every bad-seeming thing its crafters could attach to it[1] in order to build a rhetorical weapon. Label bad things CRT until people associate it with bad things only, then start labeling things that are good but that you don't like CRT so people automatically hate it, since you've primed them to. Any relation to academic-related CRT is incidental.

[1] Which is not a novel tactic, and it sure looks like that's what happened with this—but enough discussion of the process by some of those involved took place in the open that we don't just have to guess that that's what was going on, this time. This kind of process is carried out semi-publicly surprisingly often, I suppose because doing so is both easier and more effective than trying to keep it a secret, and, counterintuitively, evidence that it was a deliberate plan rarely seems to harm the effort or blunt its effect.

sjg0075• 4 years ago

CRT has been adopted by a long line of book burners as a boogie man to get out Republican votes using this single issue item.

Damogran6• 4 years ago

Well...what's wrong with being anti-fascist? Or keeping the murderers and rapists from crossing our borders?

They're a smoke-screen for getting a certain demographic worked up using fear.

soundnote3• 4 years ago

But are disparities a problem, on their face? We're supposed to have a country of diverse cultures and people. Yet, somehow, these cultures are supposed to yield more or less equal rates of people interested in different fields, more or less equal rates of success across the academic ladder, etc.

Every word spoken says "different", every actual piece of policy says "there should be no differences whatsoever". But if people's starting positions and cultures were different, they would certainly produce differential outcomes, even in a completely fair system.

Mere disparity cannot be proof of bigotry.

ZeroGravitas5• 4 years ago

Do people actually agree with the intro to this piece:

If you are a Common Sense reader, you are by now highly aware of the phenomenon of institutional capture. From the start, we have covered the ongoing saga of how America’s most important institutions have been transformed by an illiberal ideology—and have come to betray their own missions.
Medicine. Hollywood. Education. The reason we exist is because of the takeover of newspapers like The New York Times.
Ok, so we’ve lost a lot. A whole lot. But at least we haven’t lost the law. That’s how we comforted ourselves. The law would be the bulwark against this nonsense. The rest we could work on building anew.
But what if the country’s legal system was changing just like everything else?

Feels like it's kind of pointless to talk about the article and try to have a conversation between individuals who believe this and individuals who think that all sounds like a wild conspiracy theory.

Hollywood has betrayed its mission? And you click through and it says Hollywood used to be a 'boys club', by which I guess they mean full of sexual predators who were above the law? But now it's lost its way?

The clash of worldviews makes any opinions on specific items almost irrelevant.

ZeroGravitas5• 4 years ago

And just in case you think this is some new development, here's the Powell Memo from 1971:

https://www.greenpeace.org/usa/democracy/the-lewis-powell-me...

Current examples of the impotency of business, and of the near-contempt with which businessmen’s views are held, are the stampedes by politicians to support almost any legislation related to “consumerism” or to the “environment.”

rayiner18• 4 years ago

When doctors are proposing to discriminate in giving vaccines based on skin color, https://khn.org/news/article/vermont-gives-blacks-and-other-..., I don’t know how you can call this a “conspiracy theory.”

When the organization that represented Nazis because of its singular commitment to free speech changes that approach, I don’t know how you can call it a “conspiracy theory.” https://www.nytimes.com/2021/06/06/us/aclu-free-speech.html

nerdponx2• 4 years ago

I remember checking out Common Sense once, and it quickly became apparent that it was a conservative reactionary paranoia engine and not a platform for intelligent discussion.

If you want a conservative anti-"woke" angle on things, The Weekly Dish and Matt Taibbi are much better reading. Even if you disagree with a lot of what they write, at least they mostly try to argue in good faith.

nebula88048• 4 years ago

What is more worrying is that Weiss is one of the top subscribed to substack authors. So just imagine the amount of people reading this garbage. It is sad.

colinmhayes• 4 years ago

Back when the facebook top ten twitter still existed it consisted solely of nut job alt-right talk show hosts. Nut job alt right conspiracy theorists being at the top of substack is wholly unsurprising.

ta16479603113• 4 years ago

and to a lesser extent, the court system, are shaped by and largely serve the needs of businesses

Meanwhile many businesses are starting to adopt the ideologies complained about in the article. Soon you won't be a viable option for providing services if you do not bear the mark "anti-racist" . Already my employer would likely retaliate and/or limit my career if it was found that I commented anything but purely affirmative towards all forms of anti-racist or critical race theory rhetoric. A rhetoric that completely strips me of any credibility due to my race and gender.

ta16479603113• 4 years ago

One criminal law professor at a top law school told me he’s even stopped teaching theories of punishment because of how negatively students react to retributivism—the view that punishment is justified because criminals deserve to suffer.

While stopping teaching due to student fragility is rather unfortunate. I have to say this is one aspect of America's brand of justice that I think needs to change. My lay understanding is that retribution simply does not work -- and often is actually counterproductive, especially once you price in the cost of enacting the retribution. Furthermore a vengeful society or plaintiff needs to have some cooling off time, or spiritual growth to come to grips with the reality that life is full of horrific things and that making the best of it (neither nihilism nor resentfulness) is the true optimization of the system.

Instead I'd suggest that American justice needs to focus purely on rehabilitation. How can what remains be optimized? Yes that might even include giving an education to a <insert deplorable> so that they can contribute net positively to society.

adamsmith1437• 4 years ago

he’s even stopped teaching theories of punishment

It's not that the Prof is endorsing them, merely the fact that he is willing to discuss those theories is enough to trigger these students.

paganel• 4 years ago

I've recently read Huntington's American Politics: The Promise of Disharmony [1], which I highly recommend.

I used to be quite hateful when it came to Huntington, I regard his "clash of civilisations" theory quite bogus (or I used to, not so much anymore with this war in Ukraine), and as such this was my first book by him that I've read. Published in 1981 it goes through what Huntington calls periods of creedal passion, which are somehow cyclic: 1770-1780 (the Revolutionary period), 1830-1840 (the Jackson years), 1890-1900 (the progressives/populists), 1960-1975 (the civil rights movement, revolts against the military-industrial complex).

I was reminded of that book because of this quote from the article:

At the University of Illinois Chicago, for example, a law professor’s classes were cancelled and his career threatened for including a bleeped out “‘n____’” on an exam in a hypothetical scenario about employment discrimination. (He had used the same scenario for years without incident.) (italics mine)

because Huntington had mentioned the same thing happening in the 1960s-first part of the 1970s (especially the first part of the 1970s), when things that used to be regarded as normal (for lack of a better word) when carried out by the powers that be (the Government, the police, the University administrations etc) suddenly became tabu and very, very blameable. I.e. exactly like described in this article.

I wouldn't have probably brought this up if the description above wouldn't have reminded me of another excellent comparison Huntington made in his book, that between the creedal passion period of the 1960s-early '70s present in the US and what happened during China's Cultural Revolution. This actual fear (because that's what it is) the professors/teachers have now of their students (supposedly the same thing happened back in the '60s) is pretty similar, as a feeling, at least, to what the University professors in China must have felt during the Cultural Revolution (and yes, I do know that the Chinese professors ended up having a definitely worst fate, but I was talking/writing about the general feeling present in both cases).

Really interesting stuff. Google-ing around for some sources I've also found this Vox article [2] from 2016 that writes about the same book, this time with Trump's election as a focus (I personally think Trump's election and what's described in this article are part of the same, greater thing).

[1] https://www.amazon.com/American-Politics-Disharmony-Samuel-H...

[2] https://www.vox.com/polyarchy/2016/1/6/10725086/promise-of-d...

etchalon21• 4 years ago

This article seems to be purposefully conflating social dynamics (increased social accountability for previously acceptable 'neutral' actions) with the embrace of valid, structural criticisms of the legal system in this country and their increasing acceptance as "obvious" in legal academia.

It feels, at best, like it's purposefully conflating these things so it can discredit those criticisms.

It is not a good article.

fuoqi• 4 years ago

A bit tangential, but I wonder if it's realistic to gradually migrate the common law system to something closer to the civil one. I think that the precedent bloat is one of major factors which makes lawyers expensive and judicial system badly accessible for non-lawyers.

But who I am kidding... The US was unable to even move from the imperial units and Farenheit.

fallingfrog• 4 years ago

If you want a real story about takeover of the legal system, read about the Stephen Donzinger case. Donzinger represented indigenous Ecuadorians in a suit against Chevron. Chevron, having unlimited resources to put into the suit, lost in Ecuador- but has not paid their fine, instead attempting to make an example of the lawyer representing the Ecuadorians by burying him in frivolous lawsuits, trying to get him disbarred, placing him in prison for refusing to violate attorney-client privilege. They appointed a private law firm- one that used to represent Chevron- to represent the government in the case. At this point, when it really matters to them, major corporations own the United States legal system.

https://www.theguardian.com/commentisfree/2022/feb/08/chevro...

gverrilla• 4 years ago

Very funny article: absolutely clueless.

helen___keller2• 4 years ago

Ironic the blog is titled "Common Sense", while the contents of the blog are asking you to discard your common sense and accept the implication that somehow the growth of interest in racial equity implies we are approaching "a totalitarian nightmare".

Here's some common sense: Most people are reasonable and aren't interested in promoting a totalitarian nightmare. If all the scary implied slippery slope stuff started actually affecting people's lives in a real and visible way, all those reasonable people would change their worldview because reasonable people want to make other people's lives better.

AcerbicZero• 4 years ago

I find the current state of the US legal system to be abhorrent, for a variety of reasons not listed in this article. While I'm sure adding woke nonsense to the pot won't help, getting all of that culture war stuff out of the legal system still won't fix the root(s) of the problem(s).

We need a system focused on justice between individuals, not this pay to win legal system.

Edit - Ban plea deals, and publicly tar and feather any judge or prosecutor who fails to uphold the highest legal ideals.

weeblewobble• 4 years ago

When arguing about Critical Race Theory it's useful to keep in mind this quote from the person (Christopher Rufo) who brought the term to mainstream prominence over the past year or so:

“We have successfully frozen their brand ‘critical race theory’ into the public conversation and are steadily driving up negative perceptions. We will eventually turn it toxic, as we put all of the various cultural insanities under that brand category."

The whole purpose of this phrase as used by the Bari Weiss types is to be non-specific, hard to pin down, to mean different things to different people. In other words, to make productive conversation or debate impossible.

The takeover of America's legal system

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