At the same time, Columbia is a scrupulously politically correct institution, one that wrings its hands over racial injustice. Back-to-back no-bills in two high-profile police homicides involving white officers and black decedents is a perfect scapegoating opportunity. It allows students and administrators alike to save face by blaming students’ academic difficulties on their exposure to disturbing news stories rather than on the intractable awfulness of Ivy League law and its practitioners. It allows them to avoid stating the awful truths that their institution is a crazymaking racket, that the study and practice of law drives people out of their minds, that the law has been overrun by high-hat aristocrats and cutthroat social climbers, that equity has been purged from the system and they don’t know what to do about it, that the whole goddamn thing is pervasively fucked up but they don’t see any alternatives to trying to make a go of it.
It all relates to a recent flap about Columbia Law School doing something or other about exams due to the trauma caused to their students by the Ferguson and Eric Garner episodes. Judge Kopf had his standard breezy and dismissive take on it all here, for example. In this case probably appropriate, but then who am I to second guess Columbia Law School?
It doesn’t help matters to punt.
I am reminded of a quote from Scalia that I’ll look up later*, to the effect that there are limits to the resources a society can devote to criminal justice and so, you know, finality. I’ve pondered that quite a bit. Seventy-five years ago, I think, such a statement coming from a Supreme Court Justice would have been seen as not just wrong but monstrous. And the simple reason is this: it’s an inversion of the truth. Economic considerations do not constrain the law; the law constrains economic considerations. If we don’t realize that as a society we are become barbaric, as they say.
But when lawyers and judges and even Supreme Court Justices don’t realize it we are doomed.
I have to disagree with Andrew a little: it’s not difficult to figure out what to do about our fucked up profession. It’s just difficult to actually do it.
That wasn’t hard, so I just looked it up more or less now. From Bousley v. United States, 523 US 614 (1998):
It would be marvellously inspiring to be able to boast that we have a criminal-justice system in which a claim of “actual innocence” will always be heard, no matter how late it is brought forward, and no matter how much the failure to bring it forward at the proper time is the defendant’s own fault. But of course we do not have such a system, and no society unwilling to devote unlimited resources to repetitive criminal litigation ever could. The “actual innocence” exception this Court has invoked to overcome inexcusable procedural default in cases decided by a jury “seeks to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case.” Schlup, 513 U.S., at 324. Since the balance struck there simply does not obtain in the guilty-plea context, today’s decision is not a logical extension of Schlup, and it is a grave mistake. For these reasons, I respectfully dissent.
By way of a little explanation, there is a fairly recent doctrine in federal habeas corpus law that a claim of “actual innocence” will clear a bunch of hurdles that would otherwise bar relief, most recently the rather onerous hurdle of a one year “statute of limitations” (See McQuiggin v. Perkins). But actual innocence has not been ruled to be a “stand alone” ground for relief; at this point, it just clears some debris so that a constitutional violation will be considered and summarily denied – just kidding, they will grant one in a thousand or so.
But on the other hand, it has never been held that actual innocence is not a stand alone ground, either. Because embarrassing. Legal doctrine speaking, we are in actual innocence limbo in federal habeas corpus law.
Scalia’s point is that we’re no more likely to get it right later than we were the first time. And that’s probably true much of the time. But it’s also completely beside the point, because no one’s going to do anything unless we pretty much know that we got it wrong the first time, so the whole subject under discussion is those times, not the other times Scalia is talking about. Agnosticism about what is true or isn’t true is fine where we in fact (dare I say truly?) don’t know; but where we do know it’s dishonest. Or obstinate. Or stupid. I mean, take your pick but none of the alternatives are good.