All posts filed under: Law

Should Critical Race Theory Be Banned in Public Schools?—a Conversation with Christopher F. Rufo

The creators and defenders of Critical Race Theory, or CRT is it’s often known, describe it as a legal and academic movement aimed at critically examining the many ways in which racism manifests, with a view toward pushing beyond traditionally liberal color-blind laws and solutions. It has been around since the 1970s, but in the wake of Black Lives Matter, CRT has suddenly become a lot more prominent in progressive activism and academia. And while many conservatives have pushed back on CRT throughout the years, basically accusing its champions of using postmodern language to justify reverse racism, no one has pushed back quite as hard as Christopher Rufo. As a speaker, media personality, web pundit, and now filmmaker, he has railed hard against CRT and called for efforts to ban its inclusion in public school curricula. Last year, when then President Donald Trump took action to block CRT-based training materials from being used in federal government agencies, it was because he’d seen Rufo appear on Fox News. Rufo has been so successful in getting his …

No, Critical Race Theory Isn’t a New Civil Rights Movement. (Just the Opposite)

Critical Race Theory has become a prominent subject in American political discourse. Several state legislatures have advanced measures aimed at banning it from public schools, on the basis that its rigid moral categorization of people as either “privileged” or “oppressed” is offensive and even racist. Yet supporters argue that Critical Race Theory is vital to the project of eliminating racism, which they see as an omnipresent contaminant in every sphere of American life. Only by constantly and explicitly taking race into account in every aspect of policy-making, the theory goes, can we rid ourselves of its presence. One of the most ideologically ambitious defenses of Critical Race Theory presents the doctrine as the next logical stage in the process that began with the civil rights movement. This is the argument made by the American Bar Association, the largest voluntary association of lawyers in the world. The ABA instructs us that Critical Race Theory provides a “powerful approach for examining race in society,” as well as a “lens through which the civil rights lawyer can imagine …

Gender Activists Co-Opted British Columbia’s Courts. Meet the Woman Who Stood Up to Them

We have become so habituated to acts of deplatforming that many of us can no longer keep up: Though each new incident still elicits a ritual sigh of regret, we increasingly shrug it off as just another sign of these crazy times. Yet many of these episodes signify important injustices that deserve our attention. The recent deplatforming of British Columbia lawyer Shahdin Farsai falls into that category. The back story begins on December 16th, 2020, when the B.C. Provincial Court issued an announcement advising lawyers and the public of a new practice directive stipulating that all parties appearing in court would henceforth be asked to specify what pronouns they want others to use when referring to them, as well as their preferred forms of address. (Examples provided are “Mr./Ms./Mx./Counsel Jones.”) The Chief Justice of the B.C. Supreme Court issued a similar practice directive on the same day, though without a press release. “Using incorrect gendered language for a party or lawyer in court can cause uncomfortable tension and distract them from the proceedings that all …

Georgetown’s Cultural Revolution

Sandra Sellers, an adjunct professor at Georgetown University’s Law Center, was forced to resign because she was caught on video saying to her colleague and co-teacher David Batson: “I hate to say this… I ended up having this, you know, angst every semester that a lot of my lower ones are blacks. Happens almost every semester. And it’s like, ‘Oh, come on!’ You know? Got some really good ones but there’s usually some that are just plain at the bottom. It drives me crazy. Of course there are the good ones… but come on…” Batson appeared in the video nodding embarrassedly. The video was a class recording which is only accessible to students in the class and is password protected. The conversation took place after students had logged out and the professors, unaware that the recording of the class ran for 10 minutes after the end of class time, thought they were having a private conversation. A student (not enrolled in the class) posted the video on Twitter and it instantly got thousands of retweets. …

Degree Requirements for Police Officers Will Not Make Us Safer

On December 7th, 2020, California State assemblyman Reggie Jones-Sawyer (D-Los Angeles), introduced a bill that sought to codify a condition for police hires in the state that has already become de rigueur in so many other fields—to require that all new officers have a university degree. Jones-Sawyer is not unique amongst middle class persons in recommending such prerequisites, nor is he even the first politician to propose such a requirement for police officers explicitly; several such bills have been introduced throughout the country during the last few years and some jurisdictions already require that new police officers be university-educated. Indeed, the argument that police officers should be mandated to be university-educated extends to the 1960s, after successive racial riots in American municipalities were blamed in part on police-community tensions.1 Despite the fact that university degrees are not yet explicitly mandatory, slightly more than half of all American police officers hold an associate’s degree and nearly a third hold a bachelor’s degree.2 Yet while many individual police officers have taken it upon themselves to earn degrees, …

A Reasoned Judgment and a Reputation in Ruins

Well, now it’s not just the word of British tabloid the Sun, it’s also the rather weightier opinion of Mr Justice Nicol: Johnny Depp is a wife-beater who assaulted Amber Heard on at least 12 separate occasions during their relationship. Like many others who have brought libel actions to clear their names, Depp has found that using the law to defend your reputation is a very expensive way of shattering it—in this case, probably beyond hope of repair. A lot of his fans don’t like it, of course. #JusticeforJohnny has been trending, along with out of context—or simply invented—quotations from the judgment. There have also been lurid suggestions that it was “corrupt” for Nicol J to sit on the case because he once co-wrote a book on media law with Geoffrey Robertson QC, whose wife was friendly with Jennifer Robinson, a barrister who had advised Heard. That ground of appeal, I can confidently predict, will get him nowhere. Nevertheless, dubious or false allegations of physical or sexual violence are by no means unheard of, whether …

Police Violence and the Rush to Judgment

In the days and weeks following George Floyd’s death in May, activists flooded the streets with placards and slogans to denounce racism and police violence. But the zeal with which they mobilized support for their cause frequently clouded complex issues and events that demanded greater scrutiny than conviction and piety provide. For partisans on social media, hearsay and rumor became grist to ideological mills and facts were only relevant if they were politically useful. An inquisitorial climate developed in which everyone was expected to take a side without unseemly hesitation. Are you on the side of social justice or are you on the side of racial oppression? Silence on this question is violence, we were told. As a result, a rush to judgment is disfiguring how we consume and understand reports of events unfolding rapidly in confusing circumstances. The political biases of the loudest voices may be obvious and their manipulations may be crude, but doubt and restraint risk accusations of callousness and racism, which is often motivation enough to declare one’s allegiance before the …

Getting Rid of Bar Exams Won’t Help Anyone

For years, affirmative-action proponents have urged colleges and universities to reduce (or eliminate) their reliance on standardized tests as a basis for admission. The COVID-19 pandemic has opened up a window of opportunity for these activists, as many high-school students have been unable to sit for tests. And so a growing list of schools are waiving SAT and ACT requirements for their applicants. What is less known is that the same trend is gaining traction in the professional sphere. Last month, Darleen Ortega, a judge on the Oregon Court of Appeals, cast doubt on the value of state bar exams, arguing that the bar-passage requirement “does not function to protect the public by assuring a minimum level of competence to practice law… I have never heard anyone make a cogent connection between the types of lawyer conduct that harms the public and the screening that occurs via the bar examination.” Similar arguments have appeared in the Washington Post and trade publications. Under the headline COVID Should Prompt Us To Get Rid Of New York’s Bar …

Arguing in America

Jacob Siegel’s recent essay for Tablet entitled “The New Truth” manages to capture something important about the current state of discourse in America. Essentially, the marketplace of ideas is beholden to a despotic elite, and is being used to proselytize a new moral order. This moral order is perpetually in flux and is subject to ongoing revisions from its adherents. The only constant is that current systems of morality have failed and are, in fact, perpetuating immorality. The important question of how we got here has yet to receive a satisfactory answer. Yes, clear and early warning signs about the growth of this new culture on campuses were missed or dismissed. Yes, the hard sciences are becoming increasingly politicized and pressured to accept that “other ways of knowing” are at least as valuable as the scientific method. But none of the existing answers properly explains how the national discourse has surrendered to the ascendant dogma of what Seigel’s Tablet colleague Wesley Yang has called the successor ideology. The successor ideology is what happens when ideas …

Pell’s Pyrrhic Victory

In an essay published on this site nearly two months ago, I analysed George Pell’s conviction for child sex offences alleged to have occurred in Melbourne, Australia, in December 1996 and February 1997. On Tuesday, Australia’s highest court unanimously ruled—along substantially the same lines as those explored in my argument—that Pell was wrongfully convicted. A short time later the 78-year-old was released from the maximum security prison in which he had been serving his sentence in solitary confinement. The question for the High Court was the same as that presented to the Victorian Court of Appeal which rejected Pell’s first appeal: was it open to the jury, acting reasonably, to convict the accused based on the available evidence? Rarely for a case heard in the nation’s highest court, the judges were concerned principally with factual rather than legal matters. The court reviewed the evidence and concluded that a rational jury could not have convicted Pell on this basis, and that the Victorian Court of Appeal erred in failing to find this. The accusations, briefly stated, …