Thanksgiving For None of Our Doing, 2017

In advance of the holiday, my Pace lawprof pal John Q. Barrett sent out his wonderful Jackson Letter* which included this bit of wisdom.

Dr. Hurwitz closed his November 1953 note to Justice Jackson, written on Thanksgiving Day, with a modest, I think admirable, nod to the role of fortune, and perhaps the role of higher power, in every life:

On this day anyone should be thankful for all the good he has, which are none of his doing.

“None” might be a bit of an overstatement, but it’s delusional to believe that fortune doesn’t play a significant role in the good we enjoy. And as Dr. Hurwitz notes, that’s why we are thankful. If the wonderful things in our lives were merely the product of our efforts, there would be no reason to be thankful. We earned them. But they aren’t, even if our efforts enabled us to take advantage of kismet. Continue reading

Reimagining Joe Barton

Joe Barton wasn’t a household name outside of Ennis, Texas, until an image of him engaged in a sex act with himself appeared on the internet. As a conservative congressman, this wasn’t exactly the image he wanted his constituents to see. Not that there was anything wrong with it.

Earlier Wednesday, Barton acknowledged “sexual relationships with other mature adult women” that he said took place while he was “separated from my second wife, before the divorce.”

“Each was consensual,” he said in a statement. “Those relationships have ended. I am sorry I did not use better judgment during those days. I am sorry that I let my constituents down.”

Who is this “mature adult woman”? Her name is withheld, this is the first curiosity. Concealing the identities of rape victims has long been an accepted part of the regime, as they did nothing to make themselves newsworthy beyond being the victim and should therefore not suffer the taint of a sordid story. But here? The woman was no victim. Continue reading

Short Take: The Price Of Thanksgiving Dinner

Will they be serving turkey tomorrow on Riker’s Island? Or at Brooklyn House of Detention? Or the Tombs? Or thousands of jails across the country? It’s Thanksgiving. It’s a day when families should sit down together, eat a traditional meal, whatever your tradition may be, and reflect on the good things we’ve enjoyed over the past year.

It’s hard to do in jail. For some, that’s their own fault, having perpetrated bad things on other people. For others, they hurt no one, except themselves, but there are laws dictating our every move and they’ve broken them. And then there are the others, the innocent, the not-too-guilty, the people who sit on the Rock because some kid prosecutor mumbled the words “$1000 bail, your Honor, because reasons.” And there is a judge who has neither the time, information nor interest to do more than order “whatever.”

These people will sit in their chairs in a jail mess hall on Thanksgiving. They’re not a threat to society. They’re not evil. They won’t abscond or rush out to rape your daughter. They just can’t make bail, which was never needed and isn’t justifiable, but imposed nonetheless. Continue reading

The Lowest Common Denominatrix (Update)

Until yesterday, the name Emily Lindin meant nothing to me. It never found its way onto my radar. I never read anything she’d written. It was just a name. And yet, a banal twit from Lindin caught the eye of many, myself included, yesterday.

She followed up with the usual litany of insipid excuses, from “believe the victim” to all “women are oppressed.”  Continue reading

Short Take: The “T” Word

What would the FCC say about it?

“Hey guys, I am just going to have you leave. You said a couple words that break FCC violations,” the manager says, according to the video, which appears to be lightly edited for time. “And so for today I am going to have you stop your show. Specifically tranny. That is a hate slur it is not allowed on radio. I need you to leave.”

Hate slur? Is tranny a prohibited word? Why no, that’s not one of the seven words you can’t say on air.

“Did you really have to call the police?” the students ask. Continue reading

Twist And Shout: Making Consent More Meaningless

When an academic comes up with an idea so utterly inane and ridiculous, no one knows about it unless Real Peer Review reveals the folly. But these aren’t ordinary times, and so Indiana lawprof Jennifer Drobac gets to offer her modest proposal at Vox instead.

Every year thousands of adults sexually exploit teenagers — though rarely do these predators receive the notoriety that Roy Moore has achieved. Given the prevalence of the problem, it’s important to recognize how and why teenagers are particularly vulnerable to adult sexual predation, by drawing on our current understanding of psychology.

At Vox, there’s no need for cites, like where she gets this “thousands of adults sexually exploit teenagers.” And in a better world, peer review would rip her to shreds word for word. Adults? You mean 18-year-olds? Exploit? You mean have some sort of vague sexual relations? Predators? What?  Continue reading

Pride of Ownership

In some respects, doing business successfully is simple. When revenues exceed expenses, you get profit. Make a profit and you’ve got a viable business. Make a sufficient profit to make the effort worthwhile and you stay in business. But that’s not where it ends in a city where every business is regulated within an inch of its life.

There are issues. Do people want to buy what you’re selling? Even if they do today, will they tomorrow? Will the cost of your product increase, whether because its manufacturing costs have increased because of higher minimum wage or more costly benefits, or because government saw you were doing too well and wanted its slice of your pie? And then there are the ancillary rules, like whether the place you shop has two steps, preventing wheelchairs from entering unimpeded. The list goes on.

And finally, there is the rent, which is always too damn high. But the guy who owns the building is in business too, and what he sells is the space you occupy. He’s inundated with regulations and the expenses associated with keeping the building clean and standing. He’s taxed. And taxed. And sometimes nobody wants to buy what he’s selling either. Continue reading

Blow Hard (Update)

Among the many things shared by Harvey Weinstein and Al Franken, Kevin Spacey and Roy Moore, is that none of them have been convicted of a crime. Weinstein might, but he hasn’t yet. Another thing shared is that they have seen their jobs, careers, ambitions and positions lost or put at risk of being lost.

But since these are all bold-faced names, and their actions are parsed by media so that everyone knows they’re guilty regardless of evidence or argument, we don’t lose sleep over this minor detail that they’ve not been convicted of anything. Charles Blow reminds us that the shit is about to flow downhill.

It is impossible to say too often or loudly how important a moment this is, when many women feel brave and empowered enough to speak up about being sexually assaulted or harassed by powerful men.

It feels like a watershed, like something is fundamentally shifting.

Continue reading