Kavanaugh And The Other SCOTUS

Lacking the mad skillz of Yale law students to know with absolute certainty that the confirmation of Brett Kavanaugh for the Supreme Court means “people will die,” it seemed prudent to consider what Judge Kavanaugh had actually said or written in the past rather than to assume he would reverse Roe v. Wade on the first Monday in October.

This will come as a shock to some people, but the Court deals with issues other than abortion. One such issue is criminal law, and for those of us who practice criminal defense, it’s kind of important too.

I, for one, am not surprised that Trump didn’t nominate the progeny of Thurgood Marshall, or William O. Douglas, or even Earl Warren (although he may have, but time will tell) to the Court. Why would he? Then again, neither did President Obama, whose final nominee, Merrick Garland, was more likely to sit at Sam Alito’s lunch table than Sonia Sotomayor’s. Continue reading

Acting Reasonable

There are two basic ways to explain why you did something after the fact. The first is to lie about it, favored by three-year-olds and the Trump administration. The second is to provide a rational explanation for your decision. The first relies on believing the lie. The second relies on the reasoning holding up to scrutiny. Sometimes there are bits of both in the explanation. That’s the case for the take-down of Daniella Greenbaum’s column in Business Insider.

The baseline is that Greenbaum was a columnist on staff at BI and wrote a column about how Scarlet Johansson was hounded out of a role.

Johansson is set to play a transgender man in an upcoming film, “Rub and Tug,” a film based on the true story of transgender massage parlor owner Dante “Tex” Gill. The announcement quickly garnered a reaction. Continue reading

Short Take: The N-Word In Evidence

Fourth Circuit Judge Pamela Harris wrote the opinion on behalf of the unanimous panel.

Franklin Savage alleges that he was subjected to unlawful discrimination and retaliation while he was employed by the Pocomoke City Police Department and on detail to the Worcester County Criminal Enforcement Team (“CET”), a multijurisdictional drug interdiction task force led by the Worcester County Sheriff’s Office. He and two co-plaintiffs, all African Americans and former Pocomoke City police officers, filed a suit against multiple state and local agencies and their employees, alleging widespread race-based employment discrimination and retaliation.

A cop alleging a Title VII hostile work environment doesn’t happen every day, but this case raised a peculiar twist. Continue reading

Just The Facts

Politicians have always been accused of lying to win, but in our ancient history, we trusted the institution of the Fourth Estate to tell us the facts, without fear or favor. The core of this belief was that news reporting, journalism, was above partisanship and could be trusted.

Both sides of this equation have changed over the past generation. For the young, who have had the misfortune to come of political age for the last election, it may seem as if this is an entirely new phenomenon, but politics was vicious and false at the inception of this country and, with occasional calm, has remained so.

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Confessions of a Made Man

He was in the mob. No, not “our thing,” but the other mob.

In my previous life, I was a self-righteous social justice crusader. I would use my mid-sized Twitter and Facebook platforms to signal my wokeness on topics such as LGBT rights, rape culture, and racial injustice. Many of the opinions I held then are still opinions that I hold today. But I now realize that my social-media hyperactivity was, in reality, doing more harm than good.

This isn’t an entirely new phenomenon. For one thing, people regularly come to epiphanies about themselves, their actions, after the feces splatters all over them. For another, this isn’t the first made man to find himself the target of his own kind. Brett Weinstein, the Evergreen College  biology prof who dared to propose the slightest tweak to Inquisition suffered the same fate. Weinstein, too, became an evangelist of reason, but only after his escape. Continue reading

Silly Indictments and Russia’s Crimes

The announcement by Special Counsel Robert Mueller of the indictment of 12 Russian GRU officers for hacking brought the usual cheers and jeers. That this was an affront to the United States isn’t, or at least shouldn’t be, controversial at all, any more than the Russians planting a spy in our State Department or military. That they hacked us is certainly a terrible thing from our perspective, but it does little to inform us as to why this is a crime.

After raising this question, following disclosure of the indictment, there were numerous responses that reminded me that people really have no grasp of criminal law, and that included lawyers who replied with some exceptionally dumb reactions.

This “crime” involved Russian military officers physically located in Russia hacking servers in the United States. So outrageous that they would interfere in our elections, even if we’ve been doing that to others for decades. But we’re us, so the Exceptionalism Exception applies and we’re only accountable for what we do to the extent we choose to be. But that’s an aside to the legal question of whether the elements of a crime exist. Continue reading

Can Rule 8.4(g) Survive As A “Professional Speech” Code?

The ABA’s attempt to impose its social justice speech code on the legal profession by way of Model Rule 8.4(g) was ugly enough, with only one state, Vermont, having embraced it. Of course, it wasn’t an ethics rule at all, but an effort by a progressive political organization to dictate ideology to its members. As a result, its members fled.

The notion of restricting professional speech had been an accepted restriction on the First Amendment, that by voluntarily becoming a member of a regulated profession, one chose to accept certain restrictions on speech. For example, lawyers were ethically prohibited from deceiving their clients, even though the deception involved nothing more than speech. Then again, such deception could also be deemed unprotected under the crime/fraud exception as well. Continue reading

Third Circuit: TSA Falls Into The Crack

The headline suggests that the Third Circuit Court of Appeals affirmative immunized employees of the Transportation Safety Administration from suit, but it’s not really true. The TSA didn’t quite “win” immunity, and the court didn’t quite give it to them. And nobody is unaware that it leaves the worst-trained, least-educated, most ubiquitously offense government agency essentially untouchable.

This question, one of first impression among the Courts of Appeals, arises because Appellant Nadine Pellegrino has asserted intentional tort claims against TSA screeners. Although under the FTCA the United States generally enjoys sovereign immunity for intentional torts committed by federal employees, this rule is subject to an exception known as the “law enforcement proviso,” which waives immunity for a subset of intentional torts committed by employees who qualify as “investigative or law enforcement officers.” 28 U.S.C. § 2680(h). Pellegrino’s claims may proceed only if TSA screeners fall into this category

Spoiler alert: Nadine Pelligrino lost, but before going further, there is another crack here into which this case unfortunately falls. Continue reading

Short Take: Who Would Harm Rodolfo?

He was 92 years old. Ninety two.* What sort of violent animal would harm a man of such advanced age? ICE thugs? Nazis? Racist cops? Surely it had to be one of them, as the narrative demands. Yet it wasn’t.

An eyewitness later told The Washington Post that Rodriguez had accidentally bumped into a young girl while walking on the sidewalk. The child’s mother — a black woman — then pushed the elderly man to the ground and repeatedly bashed him in the face with a concrete brick while yelling, “Go back to your country,” the eyewitness said.

It wasn’t merely an “incident,” where one person yelled “violent words” at another for a perceived fault. She bashed him in the face with a brick. Continue reading

The Other End of the School To Prison Pipeline

Lawprof and member of the United States Civil Rights Commission Gail Heriot is no greater fan of the School to Prison pipeline than anyone else. And yet, her approach comes from a direction that few consider, and fewer still find acceptable.

During the Obama Administration, one of the Department of Education’s primary missions was to stop schools from suspending or otherwise disciplining African American students at higher rates than white or Asian American students:

… One of its primary strategies would be for its Office for Civil Rights (OCR) to pore over statistical evidence from every school district, looking for evidence of racial disparate impact in discipline. When a school district was found to be disciplining African-American students at a significantly higher rate than Asian or white students, the school district could expect to be subjected to an investigation. As one media report put it, rather than waiting for “cases [to] come in the door,” the Obama Administration “plans to use data to go find [civil rights] problems.”

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