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November 12, 2017

Interesting case comments on notable SCOTUS OT '16 cases in new Harvard Law Review

The first issue of each new volume of the Harvard Law Review is traditionally its November offering filled with articles, commentary and case comments looking back at the past US Supreme Court term. This year's version of that traditional HLR issue is now available at this link, and a good number of the cases that get the full case-comment treatment are criminal law cases. Based on a too-quick review, I think sentencing fans might find these case comments particularly interesting:

BONUS TRIVIA: As I was doing this post, it dawned on me that it was exactly a quarter century ago that I had the honor of having my SCOTUS case comment published in Volume 106 of the Harvard Law Review.  Perhaps foreshadowing my professional future, I wrote on a case (Hudson v. McMillian, 503 U.S. 1 (1992)), that would certainly have been fodder for this blog had it existed during the 1991 Supreme Court Term.

November 12, 2017 at 12:06 PM | Permalink


The note on Packingham did not address this question. If social media are public forums, can they exercise viewpoint discrimination? Can they exercise discrimination against races, genders, disabled people?

Posted by: David Behar | Nov 12, 2017 12:23:16 PM

A comment on the comment. Congrats on the anniversary.

For those interested, Oyez.com has posted audio for the opinion announcements from last term, including those cases. No, that isn't Travis Bickle.

Posted by: Joe | Nov 12, 2017 12:51:33 PM

Can you post your 25-year-old comment? It would be fun and perhaps instructive to read your thoughts from those days.

Posted by: Elaine Mittleman | Nov 12, 2017 2:53:23 PM

Still on Packingham.

Livestreaming a crime on Facebook should be an aggravating factor at sentencing.


Posted by: David Behar | Nov 12, 2017 2:57:30 PM

What is the purpose of these Notes? They repeat the content of an opinion. The language is as hard to follow. There is no explanation of why the idiots decided as they did. Why not just post a link to the Supreme Court site?

The idea that students have anything to say about a difficult professional controversy is ridiculous. Imagine a second year asshole commenting on bridge design, on surgery, on plumbing problems, on accounting methods. Ridiculous. They don't know shit.

Posted by: David Behar | Nov 12, 2017 3:03:21 PM

Elaine. I know exactly what you will read. You will hear a Harvard radicalized student lawyer argue to coddle the lawyer customer, the criminal. He would have been gone after passing 1L. Lost to the criminal cult enterprise, permanently.

Posted by: David Behar | Nov 12, 2017 5:03:37 PM


"The idea that students have anything to say about a difficult professional controversy is ridiculous."

Law is not a profession anymore than ethics is (it is not an objective science like STEM fields). If second-year students have nothing interesting to say about a political (or ethical) controversy, it's not because they don't yet have a degree and license, it's because they haven't read enough. Perhaps it's because they spent high school reading English Lit rather than Con Law books.

Posted by: Pride and Resilence | Nov 12, 2017 5:43:14 PM

It is volume 106.

Posted by: Joe | Nov 12, 2017 6:01:41 PM

Joe, you are right, and I have fixed the main post to get the volume # correct (as I guess I wanted to imagine myself 10 years younger). The cite to my comment is 106 Harv. L. Rev. 220 (1992), and I cannot seem to find a link on-line to a public/free version. Not sure it is worth paying for....

Posted by: Doug B | Nov 12, 2017 6:25:24 PM

Pride. The toilet is repaired in plumbing, or it still leaks. How to do that may result in a lot of plumber argument.

The law is similar. You can walk the streets unmolested, or you cannot. You were tried, and declared innocent or guilty, correctly or falsely. The law has hard physical outcomes, and for every single person.

I see the Rule of Law as an essential utility product. When it is on, you have Switzerland. When it is shut off, you have Fallujah.

Which do you think is harder or more complicated, plumbing or the Rule of Law? Should 2L's be saying anything unless extremely talented, and precocious in their law knowledge?

Posted by: David Behar | Nov 12, 2017 7:13:06 PM


Whether, say, the Miranda Warning or the Exclusionary Rule is a part of the Rule of Law (ninth amendment?) is not a question that can be answered objectively (like a question in plumbing) with knowledge of the law, but must be answered subjectively based on one's values. [Whether a person can defend their values isn't a matter of education, but skill.]

If the question is merely, is the case consistent with the enumerated constitution or stare decisis, then it may only be answered by someone who has the knowledge--like someone with a degree or license.

But if the question is, should the ninth amendment cover the right in question (say abortion or gay marriage or presumption of innocence) or the tenth amendment prevents the power in question (say mandatory health insurance), that is a matter of values, which anyone can (at least in theory) argue over philosophically.

This is not to say that I wouldn't rather hear a tenured philosophy professor talk about why or why-not the ninth amendment protects the Miranda Warning or abortion, but that is because I believe they are wise, not because they have objective knowledge about what rights people should have.

Posted by: Dartmouth Pride | Nov 12, 2017 9:14:45 PM


"You can walk the streets unmolested, or you cannot."

The question is "what does the word 'molested' mean?". In Lawrence v. Texas--arresting someone for gay sex was considered being molested by the state and therefore prohibited by the rule of law that is substantive-due-process.

But whether it is or is not, is not a question that can be answered objectively with knowledge of the law, it's a moral question that is answered by one's values. Whether someone can argue those values is not based on their education, but their skill.

But you're right that most students will be far less able to do this than graduates. Having interesting original thoughts about what the rule of law should be to be consistent with our values is probably mostly confined to the elite.

Posted by: Polarizing the Equator | Nov 12, 2017 9:29:19 PM


Law students are certainly learning "what the law is", but most court cases are court cases precisely because there's no agreement among "professionals" about what the law says and how it applies in this particular case.

There is no clear, straight-forward objective criteria for what constitutes sexual harassment or substantive-due-process, for instance.

You can't just look up what words will and won't get you charged with sexual harassment, anymore than you can look up a list of what the court considers to be protected by the fourteenth amendment's liberty-clause. (Kennedy may change is mind tomorrow.)

You have to ask the court if something is a "protected liberty interest" or if an amendment has been incorporated against the states.

And when a court does answer that a liberty interest is involved because of vague abstract language in Palko, or has been incorporated because of vague abstract language in Duncan, you can argue for or against their viewpoint based on your values (not your education), because ultimately their (the court's) decision itself rested on values (not their law knowledge)---like in Roe, Lawrence, etc.

But you're right that most students are worth listening to, but the same could be said of most journalists, even though they have degrees.

Posted by: Philip | Nov 12, 2017 9:44:45 PM


Unlike plumbing that teaches you a set of facts about the science of plumbing and a set of skills to fix problems in plumbing, legal education doesn't teach you any facts, it teaches you a method of thinking, similar to how you learn the scientific method in science class.

A legal scholar doesn't know anymore about what rights should or shouldn't be included in the ninth amendment, for instance, but they do have a more sophisticated way of thinking about why or why not certain rights should or shouldn't be included based on axiomatic legal principles like presumption of innocence and mens-rea.

But absent such legal training in legal methodology, a person may still have interesting thoughts on why Roe or Lawrence, for instance, should've come out one way or the other; otherwise we would only let lawyers vote. We don't require people to pass a test to vote because all people can think about the law.

Posted by: Portnoy's Complacency | Nov 13, 2017 1:19:41 AM


Also, if lawyers had more knowledge than other people, we'd require a legal education not just to vote, but to run for office. But to disqualify people from the franchise or office due to a lack of education would be to violate their most fundamental right to vote and hold office.

That's why you never hear someone say "he's not qualified to be president" is because there's no legal "knowledge" that is gained from legal education that makes one person more qualified than another on the topic of the law.

If there was knowledge about how to operate societies (rather than just competing values), then we would require people to have that knowledge to run for office, or even to vote.

Posted by: Portnoy's Complacency | Nov 13, 2017 1:29:33 AM

PC says, "legal education doesn't teach you any facts, it teaches you a method of thinking, similar to how you learn the scientific method in science class."

Did you get that from The Paper Chase? In reality, the real teacher was a short Italian asshole, not a WASP patrician. I read his book, it was impossible to understand. He had some kind of language disorder. Then this jerkoff, in real life, caused a student uprising described in 1L by Scott Turow.

What these assholes do not tell you is this. The education makes the lawyer the stupidest group of people in our country. Among lawyers, the stupidest are the Harvard Law School radicalized students. Harvard Law grads are stupider than Life Skills Class students learning to eat with a spoon. Among the Harvard Law radicalized grads, the stupidest are those on the Supreme Court. Putting Life Skills students on the Supreme Court would immediately upgrade the intelligence of the decisions and the clarity of the opinions. These assholes are literally, the stupidest of the stupidest, the nonplus ultra of stupidity.

For example, Article I Section 1 of the constitution gives "all" lawmaking power to the Congress. Yet, they continue to make laws, repeal laws, amend laws. These uber asshole, Harvard radicalized jerk offs think the word, "all" is the same as the word, "some," and that the word, "Congress" is the same as the phrase, "Supreme Court."

I could explain these words to a Life Skills student, and they would understand it better than the nitwits on the Supreme Court.

To see how bad things are, ask any lawyer on this blog, even the Harvard Law School radicalized ones. They have no idea what I am talking about.

Posted by: David Behar | Nov 13, 2017 2:43:34 AM

What is amusing, DB, is what you are talking about is really a variation on the Critical Legal Studies movement that got a huge boost in the 1980s at ---- the Harvard Law School. Have you read up on CLS? Do you see why I see your attitude and theirs about laws and judges are in the same tradition?

Posted by: Doug B | Nov 13, 2017 11:13:42 AM

Prof. Berman.

I am the sole member of the Loving Critical Legal Studies movement. Everyone hates your profession, especially its members. I love your profession. I want it updated to save it, and to make it soar and fulfill its essential function better.

I had friends in French Literature, so had some understanding in the 1970's.

We have always followed French intellectuals, from the beginning.

Even today, we still practice the 13th Century law in Henry of Bratton’s Notebook. Bratton is now called Brittany, a French province. Henry attended the school of St. Thomas Aquinas in Paris. The IRAC, the brief, the motion, the mind reading, the future forecasting, the word, reason, the loopholes, the exceptions, the exceptions to the exceptions, the adversarial process (called disputation in Scholasticism), the Church looking court, the gavel, the clerical robes, the pursuit of procedure for fees, were all French. Imagine John Roberts at his confirmation hearing, saying a lot but saying nothing at the same time, now imagine that in fluent Latin, French and in English. Any lawyer allowing his case to get past procedure and to substance felt humiliated. That is the origin of the culture and of 90% of the methods of today.

In the 1750's, French intellectuals said slavery was wrong, the individual was important, and Hellenic ideals were important. That is where the Founding Fathers got their ideas.

In the 1970's, French intellectuals put a package together. It contained Marxist analysis, psychoanalytic principles (now considered medical quackery, and denial of the real sexual abuse of female patients by their fathers in 19th Century Vienna), and the idea of deconstruction. Some Yale people went on summer vacation in France, and brought this disease back, infecting the entire American academic intellectual class. Harvard Law faculty caught this disease.

It is ironic that critics of the law as a tool of politics were the most intense advocates of using the law for their partisan, left wing goals.

Here is a nice review.


I support the purging of all such individuals because they are deniers, quacks and frauds. Harvard must be defunded of all government funds and subsidies. Its endowment must be fully taxed, and seized. It should be investigated and its officials arrested. To deter.

Empty it out, and start it over. Yale, I would shut down permanently. You cannot do so much damage to our country and still be allowed to exist. The Midwest is a far better source of effective leadership.

When, in the early 1980's, French intellectuals said Communism was a failure and ridiculous, I knew The Soviet Union would soon end, and that China would go capitalist, years ahead of the CIA.

Posted by: David Behar | Nov 13, 2017 1:50:11 PM


The 20th-century American Intellectual Tradition was heavily influenced by the children of Jews (not Frenchmen)--Von Mises, Rothbard, Murray, Friedman, Nozick, Rand, Derrida, Volokh, Barnett, Haidt, Einstein, Kurzweil, Chomsky, Pinker, Hitchens, Alinsky, Zinn, Abe Fortas (wrote Tinker v. Des Moines) . . . to name a few.

Posted by: Don't Look Back at France | Nov 13, 2017 5:30:01 PM

Don't Look.

You may be right. I was referring to Harvard Law School. If you wish, some of the vectors of this sickness were French Jews.

If you have no other purpose in life than rent seeking, the French methodology is your best bet. All that progressive way of talking came from France. The big government, Democratic Party platform to transfer assets of the productive to the parasites in Washington, came from France. The parasites are not the poor people of DC. I am talking about the members of those $300,000 a year country clubs. They should be rounded up, tortured for their foreign bank accounts, and shot. They are the failed elite.

Volokh? What the fuck? He is the poster boy for the Lawyer Dumbass, starting with an IQ of 1000, and ending up one of the stupidest people in the country. He is a retard. Ask him the real definition of the word, reasonable, some time. He is an expert on the case law of crosses in city flags, not as endorsement of religion, but as tourist attraction advertising. He has no awareness of the religious nature of the word, reasonable, and why it is the central word of the common law. When I tried to share my high school knowledge, he banned me from his old blog. He wrote a super nasty, mean spirited, and hurtful banning policy, too, the same day. Then, he blocked me on the new one, in the Washington Post. When I complained to jeff@amazon.com, he was straightened out. He is a lawyer dumbass, par excellence, if I may use my French.

Posted by: David Behar | Nov 13, 2017 8:03:51 PM

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