Short Take: Why Does Gov. Jerry Brown Hate “Law and Kierkegaard*”?

California’s perpetual governor, Jerry Brown, draws the dreaded Chipotle analogy.

Gov. Jerry Brown, who in his last two terms has pushed, often unsuccessfully, to reshape the state’s expansive higher education system, on Wednesday suggested that California universities should be more like Chipotle.

Tastes great and filling? No, no. Continue reading

Short Take: The Flaccid Commerce Clause

Former Chicago cop William Whitley may be despicable scum, but that’s not why he copped a plea to having sex with a minor in the Northern District of Illinois rather than a state court.

Whitley pleaded guilty Tuesday in federal court to one count of sex trafficking of a minor.

Was it not bad enough that Whitley, with his uniform on a hanger and his gun under the pillow, paid for sex with a 14-year-old prostitute that it’s characterized as “sex trafficking”? This tidbit is tossed in somewhat gratuitously as a reminder that the phrase evokes an image of pimps and their sex slaves, not a john buying sex.

But even this characterization fails to explain how Whitley ended up in federal court, charged under 18 U.S.C. § 1591(a). How did they make “a federal case” of a routine offense? One word: rubber. Continue reading

Keith Mumphrey’s Dropped Pass

Michigan State has good reason to be particularly sensitive to threats of suit, allegations of Title iX violations, failing to believe the “victim.” Given its failure to protect a great many women from Larry Nasser, the last thing it needed was another incident. Which gave rise to a situation ripe for abuse.

According to the suit filed by Andrew Miltenberg on behalf of former Houston Texans wide receiver, and former MSU student, Keith Mumphrey, the psuedonymous Jane Roe was the aggressor, infuriated by Mumphrey’s refusal to have sex without a condom.

At this juncture, Plaintiff called a friend to discuss what had just happened and whether he had acted incorrectly in bringing up wearing a condom. Roe participated in this conversation, and at one point took Plaintiff’s cellphone from him and spoke with Plaintiff’s friend. Continue reading

Short Take: Neither Mugshots Nor Schadenfruede Is A Crime

There is an eerily reminiscent aspect to the scheme perpetrated by the guys who ran Shades of David Blade, the revenge porn “takedown” lawyer. The scam was simple, but effective. Put something on the internet that someone didn’t want to be seen, and then charge them to remove it.

Who wants their mugshot online? Some argue that it enables them to know who the bad dudes are, who might move in next door to rape their children. Others might argue that selling mugshots is a new revenue stream for local government. Some just get off on seeing people suffer. Continue reading

The Spice of An Experienced Lawyer

I stumbled across a thread on twitter the other day, apparently stemming from Neil Katyal’s representation of Epic Systems. The problem was Katyal was supposed to be on the good side, and here he was on the bad side, proven by Justice Gorsuch writing the majority opinion. Everyone knows Gorsuch is bad because he stole his seat from Merrick Garland. And Epic was the greedy capitalist employer, and downtrodden employees are the good team. Yeah, it was all that simple and obvious.

One of the twitterers took the progressive position, while the other was more conservative. The scope of the argument ranged from the acceptability of representing bad people because one had no choice versus never representing bad people under any circumstances, because morality. It wasn’t about duty or responsibility. Not about integrity or principle. The scope of the argument was over privilege.

You see, public defenders, junior associates and the ACLU could be forgiven their trespasses because they had no choice to refuse to represent horrible clients. But if you had the privilege of refusing representation, then the choice of representing a client tainted the lawyer with the awfulness of the client. Continue reading

The Epic Failure Of Arbitration

It was going to save us, alternative dispute resolution. Couched in glowing terms, replete with warm and fuzzy adjectives, reasonable people would resolve their disputes through mediation, where the sides would try in good faith to accommodate their differences, see each other’s perspective and, because people are truly good at heart, end in a hug. And if they didn’t, there was always arbitration.

The legal system was brutal, expensive and time-consuming. It took forever and, by the time anything was resolved, the damage was long since done. Arbitration was derived from the notion that a prompt, informal system would far better serve people’s needs than the formalized legal system. Sure, not for everything, but for some. And so the Federal Arbitration Act was enacted in 1925, reflecting the government’s favor of informal resolution.

The problem wasn’t the concept of arbitration, per se, but that it became captive of its users. If you’re an arbitrator working for an arbitration company, you would have a one-off user on one side and a corporate user on the other, who might have hundreds, perhaps thousands, of employees, and need your services over and over. Continue reading

Short Take: The Alternative To Crashing The System

A favored outcome for those who disdain plea bargaining as a dirty backroom deal that freezes the judge and public out of decision making, and puts all the power in the hands of prosecutors, is that the return of trials would crash the system. Without plea deals, there is no way the system could handle the volume.

The crash is based on the assumption that the system couldn’t handle the volume, so it would either crash or the government would have to significantly cut the number of people it  prosecutes. Putting aside the intermediate problem of the people crushed in the middle between the time when plea bargains were eliminated and the system crashed, there are alternatives which never make it onto people’s radar. The crash assumption is based on the expectation that trials, as currently conceived, would be the one thing that would remain a constant. After all, doesn’t the Constitution mandate that they be conducted as currently done? Continue reading

What Will Lawyers In Arizona Have To Say About It? (Update)

The American Bar Association knew what it wanted to accomplish when it passed model rule 8.4(g), but were the arguments against it exaggerated, hysterical, too extreme? The question is up for debate in Arizona, which is considering amending its rules to include the new model rule.

Eugene Volokh put in his two cents. So did Lambda Legal, which included an example* of the conduct they contend must be subject to discipline.

In 2017, Lambda Legal assisted a transgender woman with addressing discriminatory treatment she experienced when in a Georgia municipal court regarding a traffic ticket. The prosecuting attorney in the case repeatedly referred to her as “he” and “him” when addressing or speaking about her. Prior to the hearing, he took her aside in a small room with four other people who were not identified to her to discuss the case. He then asked her whether she’d “had the full surgery,” an inquiry about genital surgery. This experience was humiliating and dangerous for her. Continue reading

Katyal’s Not-Too-Practical Indictment

There have been a great many arguments made about why Trump can and cannot be indicted, most of which reflect the writers’ wild dreams with whatever rationalizations are necessary to get there. Former Obama administration Acting Solicitor General, Neal Katyal, has taken a very different path in a New York Times op-ed, that it would be in Trump’s best interest for a president to be susceptible to indictment.

First, some constitutional scholars believe a sitting president cannot be indicted. And second, two Department of Justice opinions, dating back to the Nixon and Clinton administrations, side with this view.

Ken Starr thought otherwise, but the question isn’t resolved because of the position taken by any of these well-meaning folks. It’s neither left to OLC nor Starr, nor constitutional law profs, nor pundits, whether qualified to opine or not, to decide. That decision rests with the Supreme Court, and they have never ruled on the specific question. Everything else has been an exercise in Dudeism. Continue reading

Where Did All The Dads Go?

How did “make your bed” become a philosophical tenet? Why do young men need a guru to tell them this? Jordan Peterson has become a father figure to what I snarkily call the “lost boys,” espousing generally fine ideas of personal responsibility and maturity. Make your bed, clean your room, are among them.

You need to be told this?*

For the most part, Peterson’s advice is banal. Not wrong, necessarily, but banal. And as a result, he’s gained a significant and loyal following. On the one hand, it’s good that someone is telling young men to grow up, put away their childish toys and do big boy things like make their bed. I have no particularly issue with Jordan Peterson’s advice here. And as the insipid will respond if you question anything about Peterson’s fans, why undermine someone giving young men positive advice? Continue reading