Author Archives: SHG

Sorority Girls* Make A Federal Case Of It

Many legal disputes seem so terribly important to the litigants, while remarkably petty to outsiders, but few are as ridiculously insignificant as this battle between two sisters of Alpha Sigma Alpha at Penn State. That didn’t stop them from going to federal court.

Molly Brownstein, a Pennsylvania State University senior, and her family describe her roommate Rachel Lader as a classic mean girl – a “monster” and an “expert bully, with a Ph.D. in intimidation.”

Lader denies this and paints Brownstein as a coddled whiner, quick to turn to her parents to solve problems she created with her own standoffish behavior.

Harsh. It must be horrifying, exhausting, to be a sister of this sorority. Sorry, it’s wrong of me to trivialize their pain. Continue reading

It’s Not About The Tie: Transgender v. Religious Freedom

As efforts to use litigation to compensate for congressional action/inaction continue, clashes persist that give rise to outcomes that create difficult, if not impossible, conflicts with current progressive trends. Judge Sean Cox’s decision in EEOC v. Harris Funeral Homes presents such a clash, and reaction to the opinion does the public no favors.

Religious freedom is a valid defense for a Michigan business owner who fired a trans woman after she asked to dress in accordance with her gender identity, a federal judge ruled Thursday.

U.S. District Judge Sean Cox said that the funeral home deserved an exemption from complying with the law because compliance “would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs.”

That language is lifted from the Religious Freedom Restoration Act, a federal law that protects individuals from government action that may “substantially burden” their religious tenets. Rost had raised it as a defense in the litigation.

That Rost was able to fall back on Religious Freedom Restoration Act was a quirk of the case, as the action was prosecuted by the EEOC on behalf of the employee. Had the employee sued on his own behalf, it would not have been available, as it only applies to the government’s imposition of a burden on a person’s free exercise of religious belief. Continue reading

Don’t Law Firms Even Care About Diversity?

Even a blind squirrel finds an occasional nut, and so this post at the Social Justice Law Blog raised a surprisingly interesting point.

Whenever I apply for a job at a major company, their job application website states that the company is an equal opportunity employer. And for those who want to learn more, they provide a link to their equal opportunity policy statement. Most of these policy statements sound the same and at times use very technical terms. This leads me to believe that these policy statements are there for legal reasons. I also find it amusing when they ask for your ethnic background for “statistical purposes.” I’m sure that’s the reason.

Alright, granted that stuff somebody named Shannon Achimalbe finds amusing isn’t interesting to anyone but her, but bear with me.

Over the years, there have been calls by thought leaders to increase diversity in the workforce. While businesses tried and succeeded on various levels to improve the numbers of minorities on their payroll, the legal sector has been slow and reluctant to do so. As noted by Renwei Chung, Above the Law’s diversity columnist, law firms are perceived to have the lowest commitment to diversity when it comes to hiring and retention.

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An Acquitted Black Man Is Guilty Because Gay Says So

This black guy was tried and acquitted in 1999. Throw a parade? The system worked? How often do we decry racism in the legal system, the chances that an innocent black man will be wrongfully convicted. But not this time. This time, the defendant was acquitted.

Sure, criminal defense lawyers will applaud the fact that a jury tested the allegations and concluded that they failed to prove guilt beyond a reasonable doubt. Sure, we will explain why the presumption of innocence remains intact, that this man, this black man, is innocent, as in everyone who is not convicted of a crime. Because this is how the system works. Because this is our legal system as its best.

And certainly the social justice warriors, while clueless as to the legal aspects of trials and acquittal, will stand behind this innocent black man and praise this outcome, right?  The mere “technicalities” of law, that they either embrace or ignore according to the outcomes their religion dictates, favor this innocent defendant, because systemic racism is a tenet of their belief system. But no. Not this time.

The High Priestess of Feelings, Roxane Gay, cannot muster the empathy. As for the intelligence, she doesn’t bother to try, inherently realizing it’s a lost cause. Continue reading

Who Argues For The Defense?

At Fault Lines, Noel Erinjeri writes about a problem that has long plagued the criminal defense bar, to the extent such a beast exists.  Who argues for us?

As it turns out, Supreme Court advocacy for criminal defendants is subject to a lot of the same constraints that affect criminal defense at less rarified levels. The Minnesota Law Review recently published an article by Andrew Crespo, a professor at Harvard Law, which analyzes the development of criminal jurisprudence in the Supreme Court and why the field is tilted against the defense; along with some suggestions on how to fix it.

It hasn’t always been tilted, of course. During the Warren Court, the heyday of defendants’ constitutional rights, the Supreme Court was inclined toward the defense, some would argue too inclined. But then came Chief Justice Burger, and then Rehnquist, and it’s been downhill since.

So aside from the fact that the defense has no friends on the bench, nor any justice since Marshall who has actual experience on the defense side of criminal law, what’s Crespo’s view of the problem? Continue reading

Gawker Gone, A Eulogy

Nick Denton sent a memo to the writers to pack up their belongings, as Gawker is gone. It was sold at bankruptcy auction to Univision for $135 million because a local judge, Pamela Campbell, vacated the stay of execution of judgment pending appeal after finding that Denton lied about the value of his stock in Gawker.

Denton’s 30% share failed to suffice to secure the $140 million judgment awarded by a local jury for damages to Terry Bollea, the alter ego of Hulk Hogan.  The judge had previously refused to reduce the verdict as excessive.  At this point, there was little left to do.  Even though it was learned after trial that Bollea’s litigation was being financed by Paypal billionaire Peter Thiel, that fact, without more, didn’t alter the calculus.

There are three things that have made it impossible for most people to view what happened here with a rational, detached perspective. The first is hatred, whether toward Gawker and Denton, for what they did to Bollea which most people find distasteful at best, disgusting and inexcusable at worst, or outing Thiel as gay, which gave rise to his secretly funding this and other suits against Gawker as revenge.

It’s in vogue to give vent to emotion, so there’s no shame in letting feelings get in the way of reason. If anything, the rational voice is the outlier, under attack by the angry mob. And Gawker and Denton have done everything possible to generate the angry mob. If it’s right for emotions to prevail, then perhaps Denton earned the mob’s ire. And if not Denton, then certainly former editor A.J. Daulerio, for whom saying outrageously stupid stuff is a way of life. Continue reading

Does Ambivalence Make It Murder?

The trend is clear. Prosecutors are charging people who “deal” drugs with murder when the end user dies from an overdose. It may be the drug dealer on the street corner, or the user who shared drugs with another. In the scheme of drug law, it’s all the same.  Whether you give someone drugs for money or just share, it’s distribution as far as the law is concerned. And if they end up dead, you did it.

Doug Berman notes an AP article about this trend toward prosecuting overdoses as murders.

“We need to send that message that you can’t sell things that are the functional equivalent of poison,” says New Hampshire Attorney General Joseph Foster, whose state has witnessed an explosion in drug-related deaths in recent years….

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Tribe Finds His Shovel: Dig, Larry, Dig

After essentially universal condemnation for his politically-motivated ethical violation, Harvard Law School constitutional law professor, Laurence Tribe, has decided to violate the First Rule of Holes in his effort to pretend he didn’t.  His initial effort, on the twitters, was this “childish” attempt to double down:

I’ve concluded my Trump notes probl’y aren’t priv’gd. I cd release em if I decided yes, but I’ve decided no.

And in response to the tsunami of twits in response to Tribe’s very public effort to smear Trump, he offered this bit of absurdity:

You must think just seeking legal advice makes someone look guilty of wrongdoing. What about the rule of law? Crazy!

What about the rule of law, Larry? Glad you brought that up, as did Jacob Gershman at the WSJ Lawblog, who sent Tribe an email asking for an explanation for his highly public revelations. Tribe took his time responding, such that he offered nothing in response in a sufficiently timely manner to get it into Jacob’s initial post, but finally emailed his “defense.” Continue reading

Formality, Its Reasons And Excuses

There isn’t always something fascinating to be found at law professor blogs, which makes an issue raised by Shima Baradaran Baughman at PrawfsBlawg all the more significant. In a nutshell, the question raised was whether she should be disturbed by the fact that she sought to be addressed by her students as Professor Baughman, but her students, without her approval, took the liberty of calling her “Shima.”

I introduce myself every year in class as “Professor Baughman” pronounce it and sign all of my emails “Prof. B”, but still somehow, I am referred to as “Shima” by a large number of students. I understand that I went from one hard to pronounce last name (Baradaran) to another (Baughman) when I got married, but I don’t think that’s the problem here. I’ve spoken to several colleagues and they have experienced frustration with this nonconsensual first-name calling as well.

I wonder what percentage of law professors encourage or allow students to call them by their first name and whether this is a good move. I tend to think that it is not a good development.

Her primary argument is that law, unlike many other areas of endeavor, retains much of its formality, and students should appreciate this professional norm by addressing their professors with the formality they would use in addressing a judge.* Continue reading

Disbar Laurence Tribe (Update)

In the constellation of stars hovering over Harvard Law School, Laurence Tribe’s burns bright.  A constitutional law professor of great renown, he’s also gained some traction by having argued 35 cases before the United States Supreme Court.  So make fun of academics all you want, Tribe is no slouch.

Which made this twit all the more inexplicable and bizarre:


My initial reaction was one of shock that someone of Tribe’s stature would ask a question that any first year could answer with his eyes closed. I responded, “It just doesn’t seem possible that a Harvard law professor would ask this.” Upon further deliberation, however, my reaction was inadequate. Continue reading

Don’t Bank On It

There are a number of perfectly lawful businesses that sit at the edge of political acceptability. The most obvious is the marijuana biz, in states where it’s lawful. But try to use that cool credit card with the magic chip and you might get a shock. You see, the feds, who hate cash because only criminals use cash (and they can’t track your every purchase), won’t let banks maintain accounts for weed sellers and have a program, a quiet program, to prevent credit card companies from processing payments.

But marijuana is a Schedule I drug, so why should they? Fair enough. What about knives?

A major knives manufacturer from central California says his company was denied access to an internet payment processing service because they sell weapons online, raising questions about whether an anti-fraud program called Operation Choke Point is continuing to block legal businesses in the firearms and weapons industries from accessing basic banking services.

“It was pretty simple and straightforward,” Aaron Hogue, co-owner of Hogue Inc., said of the situation he faced with Wells Fargo bank. “They called my controller, and said, ‘Sorry, but we’re not going to be able to process any credit card transactions for the sale of weapons online.’”

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Apple Takes A Bite Out of Orwell

Imagine if you sent an email from your Android phone to your buddy, who happened to use an Apple iPhone that his kid threw away when the newer, shiner iPhone came out.  You’re both lawyers, working on a case, and your email said, “the defendant was found in possession of a gun.”  Except the email your buddy received said, “the defendant was found in possession of a toy.”

Ridiculous? Maybe not as much as you think, as Apple has decided that it doesn’t like guns. And in furtherance of some policy dreamed up by someone at Apple, they’ve decided that their machines won’t use guns. Not the word gun, for the moment, but the cartoon image of a gun. You know, emojis. Apple has replaced the gun emoji with a squirt gun.

This month, Apple previewed some changes to its next generation of iPhones and iPads with the promise that “all the things you love to do are more expressive, more dynamic and more fun than ever.” That especially includes emojis, those little icons that, according to one study, 92 percent of the online population now make part of their everyday communication.

One change in particular, though, is not delighting everyone. Apple’s new suite of operating systems appears to replace its pistol emoji, which was an image of a six-shooter, with a squirt gun.

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