How Not to Lie: A Don\u27t-Do-It-Yourself Guide for Litigators

Over the past few years, a number of high-profile attorneys have been sanctioned or suspended from the practice of law because they lied. The instance that probably received the greatest media attention came in June of 2021, when the Appellate Division of the Supreme Court of the State of New York ordered the immediate suspension of Rudy Giuliani’s license because he had made demonstrably false statements to the courts, lawmakers, and the public at large concerning the 2020 presidential election. In a 33- page opinion, the court considered the arguments Giuliani raised in his defense but concluded that his pants were indeed on fire

Unprecedented Precedent and Original Originalism: How the Supreme Court’s Decision in Dobbs Threatens Privacy and Free Speech Rights

The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has drawn considerable attention because of its reversal of Roe v. Wade and its rejection of a woman’s constitutional right to terminate her pregnancy. The Dobbs majority, and some of the concurring opinions, emphasized that the ruling was a narrow one. Nevertheless, there are reasons to think the influence of Dobbs may extend far beyond the specific constitutional issue the case addresses. This article explains why Dobbs could have significant and unanticipated implications for the law of privacy and the law of free expression. I argue that two approaches to constitutional adjudication taken by the Court in Dobbs could unsettle a number of important privacy and free speech principles that we have come to think of as established. In short, I maintain that in Dobbs, the Court took an unprecedented approach to precedent and an unhappily original approach to originalism

Of Bee Stings, Mud Pies, and Outhouses: Exploring the Value of Satire Through the Theory of Useful Untruths

In this article, I attempt to fill this conceptual gap within Hustler by offering a theory of how satire functions and why it has a distinctively important place in our public discourse. That theory draws on the work of philosophers like Kwame Anthony Appiah, Hans Vaihinger, Kendall Walton, and Lon Fuller, who have discussed the concept of “useful untruths”—lines of thought where we proceed as if something we know to be false is in fact true, because doing so serves a useful and valuable purpose. In my view, the philosophy of useful untruths can help us understand the complexity of satire, its paradoxical relationship with truth and falsity, why it has an indispensable role in a democratic society, and the reasons it resists tidy analysis under general First Amendment doctrine

Soft-Core Perjury

Despite its greater pervasiveness, however, soft-core perjury has generated considerably less discussion and debate than hard-core perjury has. There are reasons for this, but they are not good ones. Indeed, we might summarize the matter this way: Lawyers tend to dismiss the soft-core perjury problem because they do not see it as a problem. They do not see it as an ethical problem, and they do not see it as a practical problem. They are wrong on both counts. The idea that soft-core perjury poses no ethical problem comes from the view that the lawyer\u27s dilemma-or trilemma, if you will-arises only ifhe or she knows the client is committing perjury. In other words, soft-core perjury isn\u27t ethically troublesome because, well, it isn\u27t hard-core perjury. What we don\u27t know can\u27t hurt us, and we needn\u27t trouble ourselves with the fact that it may still hurt the integrity of the justice system

Ethics for Media Lawyers: The Lessons of Ferguson

Ferguson, Missouri, has a population of roughly 21,000 people. Thirty cities in Missouri have larger populations. The Edward Jones Dome, where the St. Louis Rams play football, seats three times as many people. Most of us had never heard of Ferguson prior to August 9, 2014, when a police oficer named Darren Wilson shot and killed an unarmed black teenager named Michael Brown. But, to paraphrase the grim observation of Ambrose Bierce, war is how Americans learn geography. So, as violence and vandalism erupted on its streets, the nation turned its attention toward Ferguson and labored to understand the place, its people, and its problems

Are Trump\u27s Attacks on the Media Adversely Affecting Public Opinion?

Both during the election cycle and as president of the United States, Donald Trump has enthusiastically and aggressively attacked the media. On Twitter, in speeches, and at rallies he has repeatedly deployed his favorite “f words” against mainstream broadcast, print, and online news sources: “fake,” “fraudulent,” “failing,” and (phonetically) “phony.” Some attacks have been personal to individual journalists, some have been more institutionally focused, and some have been made in contexts that appeared to create physical risk to reporters who were present. But whatever the variation in lavors, the frequency of the attacks has remained constant. Indeed, Trump has devoted more tweets to attacking the news media than he has to job creation, one of the centerpieces of his campaign platform

What Litigators Can Learn from B Movies

We litigators take our guidance when and where we can find it. Sometimes we stumble across it very late at night, on television. Weary, intellectually spent, and pining for entertainment that makes no demands on us, in the wee small hours of the morning we find ourselves watching a so-called B movie - a film that had a low production budget or that manages to be bad despite an ample one. And, lo, enlightenment ensues through this unlikeliest of messengers. Submitted for your consideration are some gems from half a dozen movies that most sensible people won\u27t admit watching but that contain lessons for litigators everywhere

Doe v. University of Michigan: Free Speech on Campus 25 Years Later

I would like to use as the launching pad for my remarks today the 1989 federal district court decision in Doe v. University of Michigan. Doe is the seminal case on campus speech codes and it just recently passed its twenty-fifth anniversary. I thought this symposium would be a good occasion to look back, see where we were, assess where we are, and ask whether we have made any progress. Spoiler alert: the news is not good

Misappropriation of Trade Secrets

This is an action for injunctive and monetary relief brought by Plaintiff pursuant to the Michigan Uniform Trade Secrets Act of 1998, MCL 445 .1901 et seq. Specifically, Plaintiff alleges that Defendant {corporation I individual}, in violation of state law, has {acquired Plaintiff\u27s trade secrets knowing, or having reason to know, that the trade secrets were acquired by improper means I disclosed or used Plaintiff\u27s trade secrets without Plaintiff\u27s consent}

Proof at the Salem Witch Trials

As of the writing of this article, President Donald Trump\u27s tweets have included roughly 400 references to witch hunts. In a sense, this is unsurprising. The Salem witch trials have a special place in our national identity and vocabulary. Most Americans understand the reference, even if they know few of the historical details. And the phrase witch hunt serves as a useful shorthand for any frenzied chase after something that does not exist. The Salem trials also inspire a peculiar fascination: Perhaps no other site of deadly mass hysteria has become a major tourist destination. Still, most practicing litigators probably know very little about the Salem witch trials. That\u27s a shame because the Salem proceedings have a lot to teach us. They offer countless insights into the significance of a stable and impartial judiciary, the indispensable place of legal counsel, the critical role of procedure, and - most importantly for the purposes of this article - how the concept of proof can go terribly wrong. As tends to hold true with Salem\u27s lessons, these are mostly cautionary tales