Pyschodrama as the best tool to win over jurors? The LA Times explains.

The article focuses on personal injury lawyers, but it is also used by criminal defense lawyers. It's a really interesting topic, bound to provoke strong reactions from non-lawyers. The article begins:

The lawyer stood sobbing in the center of a darkened hotel conference room, ringed by dozens of other personal-injury lawyers. As the attorney recalled the final moments of his mother's life, his voice cracked and his body shook with repressed grief. And all around the circle, the lawyers watching him also began to weep.

Then the others began to make their own confessions: "My parents died … ," one began, his voice husky with tears. "I was disconnected from my father …," another said. "All of a sudden, I thought about my mother … ," a third added.

The seminar leader is a lawyer named Judd Basile,who learned the method from Gerry Spence who has been teaching it at his trial college for years. Every lawyer I know how has attended Spence's 3 week course in Wyoming swears by it.

Via atrios, the New Jersey Supreme Court handed down its decision on gay marriage. Quoting the syllabus:

HELD: Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed samesex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to samesex couples, whether marriage or some other term, is a matter left to the democratic process.

I got an idea, why don't we call them civil unions.

At TAPPED, Scott Lemeiux catches Justice Scalia fibbing again:

One student asked whether Scalia believed the 2000 decision in Bush v. Gore was an example of judicial activism . . . "My first response to that question always is, it's six years ago. Get over it!" Scalia said. He then explained that "It surely is not activist to apply the text of the Constitution, which is what the court did."

Six years? Get over it? Heck, Roe was 33 years ago. When you gonna get over that Justice Scalia? But the more serious point is the claim of textualism for Bush v. Gore. Let's discuss it on the other side.

(Guest Post from Big Tent Democrat)

In discussing Scott Lemieux's piece on Dred Scott (Lemieux responded here), I touched upon the issue of Constitutional Interpretation. On Constitutional interpretation I wrote:

It seems undeniable to me that Dred Scott was a results oriented decision. And in that respect, Lemieux's statement that "[a]spirational" jurisprudence is only as good as the aspirations of the judge involved" is obviously correct. However, that does the "theory of a living Constitution" short shrift. The theory (or at least my theory) of a Living Constitution does not rest on "aspirational jurisprudence", but rather on common law judicial principles and the Constitution itself.

More on this on the other side.

Santa Barbara prosecutor Joyce Dudley wrote a novel about herself and her life as a prosecutor. Obviously, not lacking in ego, she describes her character as:

Ms. Danner, Ms. Dudley writes, has "the poise and sexiness of a dancer, the brains of a scholar and the protective passion of a mother." "She had always been attractive," Ms. Dudley continues, "but now, having reached middle age, experience, confidence and poise further enhanced her beauty."

She also suffers from Dick Wolf syndrome, where prosecutors are g-ds and defense lawyers are scum.

Prosecutors in "Intoxicating Agent" are fearless champions of the truth; defense lawyers, unethical and manipulative; and defendants, despicable and unattractive. One is called "felony ugly."

A real-life defendant in a date-rape drug case sued because one of the cases in her book is so close to his still-pending case. The judge issued a strong opinion, disqualifying her from the real-life case.

(Guest Post from Big Tent Democrat)

Scott Lemieux responds to my reaction to his post on Dred Scott. I will respond to Scott's points that I feel pertinent to my argument. Lemieux writes, in part:

To take the key points as they come up:

• BTD then articulates a structuralist theory of Constitutional interpretation, identified with John Marshall, and locates a similar theory in Lincoln's famous Cooper Union speech. Now, I am something of a structuralist myself, and I agree that Lincoln constructs a perfectly plausible reading that I of course find infinitely more attractive than Taney's arguments for moral reasons. But this isn't enough; the question is not whether there are plausible arguments against Taney, but whether Lincoln provides the only plausible reading of the Constitution in 1857. And the answer to this is clearly that he doesn't (see pp. 57-76 of the Graber book.)

(Guest Post from Big Tent Democrat)

Scott Lemieux pens a very interesting article on the Dred Scott decision and its merits and meaning in today's law and politics. It is worth reading in its entirety but I want to focus on a few points made by Lemieux:

. . . George W. Bush -- demonstrating the forthright advocacy of conservative jurisprudence for which Republicans are famous -- went out of his way to assure the public during one of the 2004 presidential debates that he would not, in fact, appoint Supreme Court justices who would interfere with the ability of Congress to ban slavery in Puerto Rico. Bush's strange remarks were widely interpereted as a dog-whistle signal to his anti-abortion-rights base, some of whose intellectuals (most notably Justice Scalia in his dissents in Planned Parenthood v. Casey and Stenberg v, Carhart) have compared Roe v. Wade to Dred Scott. Jeffrey Rosen turned this comparison against Scalia in his merciless evisceration of the justice's support for the Court's egregious Bush v. Gore decision. And on it goes. But should this much weight really be put on Dredd Scott?

. . . The most common attack on Dred Scott, however, does not concern the finer points of interpretive theory. Rather, it's a critique borne out of a romanticized view of legislatures as being better able to resolve difficult social questions than courts. . . .

It may have been the most common attack but it was not the best one. Abraham Lincoln, most notably in his Cooper Union address, presented, to me at least, the most devastating arguments against the legal correctness of the Dred Scott decision. I'll discuss that and a few other things on the other side.

When is a website liable for posting nasty stuff about other people? Take a look at Don't Date Him Girl, a website that allows women to post trashy stuff about men they think have cheated on them, as a warning to other women. (You can search their site here to see if you are listed.)

Pittsburgh criminal defense attorney Todd Hollis wasn't amused when he was listed. He sued Tasha Joseph, the website owner, two other women, one of whom he alleges wrote the initial post, another he says wrote a follow-up post, and five unnamed "Does" who posted or commented about him on the site. The complaint is here (pdf). How Appealing has been following the case and posted links to the website owner's Motion to Dismiss (pdf) and accompanying affidavit (pdf).

Now, according to How Appealing,

I'm headed to Washington, D.C. today for the Annual American Constitution Society Convention, "Democracy and the Rule of Law." If you're in D.C. and into progressive law-related subjects, check it out.

It opens Friday morning with an address by Sen. Hillary Clinton, who got a decidedly mixed review at the Take Back America Conference yesterday.

At the ACS convention (full schedule here) the topics and speakers are outstanding. I'm looking forward to hearing Sen. Gary Hart speak on restoring the balance to our separation of powers, the ACLU's Ann Beeson, law Prof David Cole and Marc Rotenberg on challenging post 9/11 policy, Richard ben Veniste and Eric Holder on policing the Justice Department, Abbe Lowell on representing the high profile defendant, Lucas Guttentag on Immigration reform,
Yale law prof Jack Balkin on the Constitution and many many more.

I'll be on a panel Saturday morning called "Leakers and the Press" with 9th Circuit Judge Stephen Reinhardt, and Law Professors Maimon Schwarzschild and Geoffrey Stone. I don't think I've ever been on a panel with a federal judge before, so that should be extra fun.

Dateline Aspen: Today is the final day of the NORML Aspen legal seminar. Troy Hooper of the Aspen Daily News (link fixed) takes a look at the first day's events including my presentation on Terrorism and the War on Drugs: The Shrinking of the Constitution.

Gerry and Chris Goldstein once again have opened their home to all of us, hosting a very fun pre-dinner Wednesday night and a NORML benefit dinner last night. Last night's dinner was attended by more than 50 people, and included Aspen Sheriff Bob Braudis (recovering from bronchitis, it was his first day out) and Anita and Juan Thompson (Hunter Thompson's wife and son). Chris Lanter, the incredible chef of Aspen's Cache-Cache restaurant, took charge in the kitchen and contributed not only his time but all of the food. Why? He told me:

The American Constitution Society will be holding its annual convention, Democracy and the Rule of Law from June 16 to 18 in Washington, D.C. The complete schedule of speakers is here.

Friday's Convention events will begin with an opening plenary session focusing on the separation of powers, entitled "Restoring the Balance among the Branches," and featuring former Senator Gary Hart, Dawn Johnsen, Harold Koh, Douglas Kmiec and Beth Nolan. Afterwards, a series of breakout sessions will address subjects including: litigating civil liberties cases since 9/11; redistricting; constitutional checks and balances; and the implications of recent exonerations for the criminal justice system.

by TChris

High profile lawyers capture headlines, but less heralded lawyers, laboring in the trenches daily, go out of their way to make the legal system work for ordinary people. They rarely get the recognition they deserve. One of them, Ray Brescia, is profiled in the NY Times.

Mr. Brescia, 39, is director of the community development project at the Urban Justice Center in Manhattan, a nonprofit legal clinic founded in 1984. ...

Last month, lawyers from the Urban Justice Center's community development project sued Jing Fong, the largest restaurant in Chinatown, alleging that it had violated labor laws violations by, among other things, siphoning off tips from waiters and busboys.

"As a former busboy and waiter, I care about this stuff," he said.