Teaching Con Law

Mark Joseph Stern writes about a very serious issue, providing some valuable insight into a matter of some concern for lawyers now and of the future. What will they be taught about the Supreme Court, both as an institution and as to the decisions it’s issues since Justice Anthony Kennedy resigned.

Even law professors who maintained confidence that the Supreme Court would rise above politics are reconsidering their view after this term. “I have generally, up until now, resisted the cynicism of the ‘new legal realists’ that the Supreme Court isn’t a court, it’s just a policy council,” said Steve Sanders, a professor at Maurer School of Law. “I want my students to believe that legal argumentation, precedent, facts, and doctrine matter.” In the aftermath of this term, though, “it’s becoming increasingly difficult to deny that major constitutional decisions are almost purely about politics.”

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Tomorrow, the first Monday in October, begins the new term of the Supreme Court of the United States. Yes, it hasn’t yet been canceled, though not for lack of trying. The problem is that it’s a co-equal branch of a tripartite government. The other problem is that its decision in Dobbs reversing Roe v. Wade crossed a line that finally touched an issue the normies understood and touched their world.

It came on top of a variety of other decisions, last term and in years past, that were hated by a politically-focused slice of the polity, but this time, in Dobbs, it crossed a line that touched the lives of a majority of Americans, that was contrary to what the majority of Americans accepted and, indeed, wanted as a right. You may disagree, vehemently, but the numbers don’t lie. In the minds of many, this sealed the fate of the Supreme Court as an institution that was built to be immune from politics but had now been captured by politics. Continue reading

Volokh Meets The Tropes

A decade ago, I could imagine Ken White writing a post at Popehat about taint snorting. Maybe Techdirt’s Tim Cushing, if not Mike Masnick, extolling the virtues of anti-SLAPP legislation. But that was before a litany of sacred cows arose, seizing people’s consciousness and turning the most basic reality into a minefield of women whose narratives trump accuracy.

Eugene Volokh wrote a law review article and a post at VC naming a person who sought to prosecute her claims pseudonymously. But as it turned out, she was a vexatious litigant and the court pulled the plug on her.

Several months ago, I wrote about a frequent litigant, in connection with a federal case of hers in in which (1) she was first allowed to proceed pseudonymously but then (2) was depseudonymized by the judge after evidence related to her past cases had emerged. I used her name in connection with that case, as the judge had, and also drew connections (based on public records) between that case and other cases that she had been litigating pseudonymously.

Agree or not, the use of pseudonymous litigation has been one of Eugene’s scholarly issues, and he’s focused on it regularly of late. This was a matter of significant interest in the course of his argument, and he used it to argue his case. The “frequent litigant” was not happy about it.

Several weeks ago, the litigant filed Doe v. Volokh, No. 22STRO05198 (L.A. Superior Ct.), a petition for a “harassment restraining order” in California court.

The allegations made by this “frequent litigant” against Eugene raise facile tropes that have become pervasive, overarching and unchallengeable to many who believe they are the arbiters of polite society.

On July 11, 2022 I received two harassing phone calls from different people, calling me cunt, bitch, slut, lying on men etc and indicating they would rape and kill me.

I was terrifying and fearful for my life. Later I figured that Eugene Volokh (Volokh) has published my personal information online and the death threats came from his readers/haters.

He states that I was convicted of several crimes but he leaves out the fact that I am currently seeking post-conviction relief due to wrongful conviction.

I previously received several court orders to protect my real name as a rape victim.

Further, he alleges that I had made similar rape accusations against other people which again portrays me in a false light.

On July 12, 2022 I made contact with Volokh and asked him to respect the court orders and my privacy and take remedial action. He refused to do so even after I informed him of the death threats I received.

According to Eugene, the only “personal information” posted about her was her name. Here, you have a person who seeks to compel Eugene to remove her identify because she declared herself a “rape victim,” whose convictions are unmentionable because she’s seeking post-conviction relief, who obtained court orders to “protect her real name as a rape victim” and who claims to have received telephone calls from Eugene’s “readers/haters” to rape and kill her. And Eugene callously refused to “respect court orders” despite her receiving death threats.

Eugene doesn’t quite say it, but then he’s more polite than I am. It’s ridiculous to believe that any reader of Volokh Conspiracy would call and threaten her and this stinks of an outright fabrication. If it happened, far more than her claim would be needed to prove it. As for the rest of her claims, she throws a series of victim tropes against the wall to see if one sticks, all facile to claim and which have become a suit of armor against anyone who would even consider questioning whether she was “terrifying and fearful” for her life.

Ultimately, she alleges that what Eugene has done by using her name after it was “depseudonymized” by the court in a matter of significant scholarly interest was harassment. Eugene was harassing her.

Eugene responded with an anti-SLAPP motion, and with Ken’s “sage counsel,” the court ruled in his favor.

A decade ago, this sort of conduct would have given rise to a hundred blawg posts, everyone condemning the vexatious litigant’s effort to silence Eugene and cleanse the internet of her name so no one knew what shenanigans she was pulling. As for the tropes raised, rape victim, name calling, rape threats, death threats, terrifying, etc., these claims would have been ripped to shreds as baseless lies thrown into the wild. But that was then. Now is not then.

My take on this is:

1.) You had a legal right to use her name.


2.) Shouldn’t have used her name as a matter of politeness.

It may be true and is likely true that none of the abuse she received came as a result of publishing this information. But it also seems as though she may have experienced real fear and discomfort as a result of the publication, to the extent that it has disrupted her life. That may be due to her own illogical or incorrect thinking, but (giving her the benefit of the doubt that she is telling the truth) I don’t see any benefit to causing a person unnecessary distress.

This commenter wasn’t so much being critical of Eugene for having named the litigant as putting the concern for her “unnecessary distress,” even if false, first. As a matter of “politeness,” her feelings come first. Another commenter was not so thoughtful.

So this woman contacts you and asks you to stop writing about her, and to remove your prior writings about her. You respond that you have a legal right to to write about her. She files suit against you, you prevail, and then you write about the whole affair, thus adding to your public writings on the woman who initially sought to have you not write about her.

You’re such a classy person.

There was a time when the question of this person’s being named by Eugene wouldn’t have mattered, as Masnick’s Streisand Effect would have put her name everywhere, How dare a vexatious litigant try to conceal her identity by going after a law prof, a blogger, Eugene Volokh. Today, not even Eugene will mention her name in his post, although he asserts his right to do so. And still some of his readers chastise Eugene for being insufficiently concerned about her feelings.

Well, I think that you can address the problem and even refer to this exact case without naming the specific person.

If you are concerned that she is a vexatious litigant, I think it would be reasonable to inform someone that is going up against her in litigation so that she can be declared a vexatious litigant.

Eugene explains why this wouldn’t be viable, but that really isn’t the point. Claim victimhood and distress and that’s good enough to demand that her feelings prevail.

Seaton: Brady With The Ball

[Note: I originally started writing this after the Bucs lost to the Green Bay Packers last Sunday. With tongue planted firmly in cheek and head fully up my ass, I neglected to even consider the potential damage Hurricane Ian could do to the area.

I hope everyone reading this from Tampa is safe and sound during this tumultuous weather event. Please forgive your humble humorist as he gives a quarterback on his retirement tour one good kicking today—CLS] Continue reading

Wrong, But Misleading the Mag Wasn’t the Reason

The conduct of the feds in shutting down a private vault, a business that provided safe deposit boxes to individuals, was one thing. What they subsequently did with the boxes, and the contents, is quite another.

But the business also had legit customers with legit boxes containing legit private property with no connection to any offense. And the court issuing the warrant properly limited the authority to search and seize only to those boxes for which probable cause existed. What the court neglected to do was accommodate the legit boxes protection and privacy from the only entity with the capacity to violate their owners’ rights, the government. Continue reading

Is Sex A “Social Construct” To A Muslim Prisoner?

There would inevitably be clashes of newly imagined “rights” which took for granted that the newer, woker ones weren’t zero-sum games even though there was no possibility it could be anything else. But the idea that a clash in a Wisconsin prison would pit gender identity against religion probably wasn’t high on anyone’s list of “what could possibly go wrong.” Yet, it did.

The decision stems from a 2017 lawsuit brought by Wisconsin state inmate Rufus West against the administration of the Green Bay Correctional Institution, where he was incarcerated at the time. In July 2016, the prison required West, a Muslim man also known as Muslim Mansa Lutalo Iyapo, to submit to a routine strip-search following a visit from an outside friend. West did not object to the search, but he did object to who was helping conduct it: a transgender prison guard named Isaac Buhle.

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When Cops Aren’t Psychologically Stable

There’s a slogan, ACAB, which came out of the reality, largely revealed by pervasiveness of video over the past decade, that there are a lot, far too many, police officers who engage in acts of such cruelty and depravity toward other human beings that it’s difficult, if not impossible to square their actions with what any decent human being would do under the circumstances.

This isn’t all cops. This isn’t all conduct by cops which the unduly passionate condemn because the outcome fails to meet their fantasy world views. But it happens with more than sufficient frequency to give rise to a very serious question of whether guns and shields are being given to people who are psychologically unfit to exercise the authority they’re given. All the training in the world, any accreditation required, means little if the guy holding the gun breaks under stress. Continue reading

Halkides: Flawed Investigation of USS Bonhomme Richard Fire

Ed. Note: Chris Halkides has been kind enough to try to make us lawyers smarter by dumbing down science enough that we have a small chance of understanding how it’s being used to wrongfully convict and, in some cases, execute defendants. Chris graduated from the University of Wisconsin-Madison with a Ph.D. in biochemistry, and teaches biochemistry, organic chemistry, and forensic chemistry at the University of North Carolina, Wilmington.

In July, 2020 a fire reduced the USS Bonhomme Richard to scrap, costing the Navy over a billion dollars. The navy’s investigation showed that there were failures at many levels of command. Yet, against the advice of one of its own judges, the Navy is trying Seaman Ryan Mays. Continue reading

If Insurers Ran Police Departments

Most of the time, people consider involving insurance companies in police action when it comes to cops covering their own losses in § 1983 cases. This arose as an unfortunate collateral error by those seeking to eliminate qualified immunity, who harped on cops “getting away with it” because of QI, which was extrapolated to losses being paid by the municipalities or insurance. That’s the cost of exaggerating and dissembling, but I digest.

There is another time when insurance comes into play, as reflected in a Washington Post  “Investigation” that begins with the requisite anecdote. Continue reading