Author Archives: SHG

No @Reason, Attorney-Client Privilege Is Not Subject To The Third-Party Doctrine

It was one of those nutty things that, upon reading it, gave me whiplash. At Reason, Liz Mair, who describes herself as “a libertarian Republican political consultant,” and notably not a lawyer, can’t resist (who could?) going after Elizabeth Warren’s precious baby, the Consumer Financial Protection Bureau.

The Consumer Financial Protection Bureau (CFPB) has been in the spotlight lately, with courts and congressional Republicans zeroing in on the agency’s unconstitutional structure that leaves its head—currently Richard Cordray a likely future Democratic candidate for Ohio governor—in possession of vast powers, accountable to no one. Sen. Ben Sasse has dubbed Cordray “King Richard,” and President Donald Trump has been threatening to fire him.

Don’t let the name of the bureau fool you. Cordray doesn’t necessarily love consumers as much as its name suggests.

Now the CFPB may be headed back into big doo-doo, thanks to a rule it is pursuing that would allow it to share communication between an entity it regulates and that entity’s lawyer with a slew of other government regulators—potentially even with foreign governments. Continue reading

Posner And The “Trump Exception” To Principle

Chicago lawprof Eric Posner doesn’t appear to think any more highly of President Trump’s mad governance skillz than anyone else with even a slight knowledge of law or basic civics. Indeed, he even went so far as to argue that “would-be dictator” Trump won’t make it through his first term because of this, though how that might happen is something of a mystery.

But in the New York Times, Posner suggests a startling proposition, following the opinions on Trump’s Executive Order travel ban.

By resting on due process, the court was able to block the travel ban without addressing a more explosive argument. The court noted that “the states have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban,’ ” but declined to resolve this claim “in light of the sensitive interests involved.”

The “sensitive interests” did not hold back a Federal District Court in Virginia. In an opinion issued on Monday, the court ruled that the president acted with animus against Muslims when he issued the travel ban. The court laid out the damning evidence: the campaign statement calling for a Muslim ban, which is still on the web; Rudolph Giuliani’s acknowledgment that the travel ban was really a Muslim ban; the failure of the lawyers who wrote the ban to consult national-security officials; and Mr. Trump’s statements in interviews.

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Space Aliens At The Border

As Nick Selby might remind me, it is certainly possible that a customs agent will search a smartphone or laptop and find plans for a terrorist bomb that will wreak devastating havoc. And it’s true. It’s possible. So goes the rationale for customs agents demanding passwords of people when they seek to enter the United States of America.

But what’s the authority for doing so?

Orin raises a good, but only quasi-relevant, point. Section 507(a)(2) of Title 19 of the United States Code obviously doesn’t expressly authorize customs agents to demand passwords. On the other hand, it’s remarkably unclear what that subsection is supposed to mean. Writing law is hard, and this wasn’t Congress’ finest hour. Continue reading

When The Rent Comes Due in de Blasio’s New York

To his credit, New York City Mayor Bill de Blasio did what he said he would do. Unfortunately, it was a misguided idea to begin with, the sort of shallow idea that would be adored by the superficial who failed to grasp that it was ointment on a wound while the underlying infection was festering. The wound will heal. The patient will die. And all the deeply empathetic will wonder how this could possibly happen.

Defending yourself in court might work in old movies or on reality TV, when the stakes are small and the judge is named Judy.

Apparently, no one on the New York Times editorial board spends enough time on twitter, where everyone knows everything there is to know about law. And should an actual lawyer chime in to, you know, suggest that the fringes on the flag really don’t change things, they’re gonna get slammed. Damn lying lawyers. On the other hand, lawyers that feed the trending social justice feelz are loved and get lots of followers for their gushing. That they’re wrong concerns no one. Validation has never been as deeply appreciated as it is on social media. Continue reading

Returning Existing Law To Existing Law

The Department of Justice pulled out, which Chris Geidner at Buzzfeed succinctly entitles “The Justice Department Is Taking A Step Back From Efforts To Protect Transgender People Under Existing Law.” It is, clearly, taking a step back.

The department withdrew a request on Friday that a federal court limit an injunction that has halted enforcement of existing civil rights laws to provide protections for transgender people. An independent federal agency, however, continued to press ahead in its pro-transgender legal position in another case.

Yet, there are two aspects of this lede that are, well, misleading, if not false. First, what the DoJ is halting isn’t enforcement of “existing civil rights laws,” but rather the extension of laws stretched far beyond their enacted purposes to achieve a policy goal by bureaucrats in the prior administration to socially engineer transgender interests into the mainstream. In other words, they’ve manufactured a claim that Title VII and Title IX, prohibiting sex discrimination, mean prohibiting transgender discrimination.

Is that “existing law”? That’s their argument, that words that meant one thing when enacted mean something very different decades later when purpose and definition are adulterated to reach results that Congress has expressly rejected.  Continue reading

Thug Theory: Will It Work?

Word is that the writer, Katherine Kersten, is one of those less-than-credible conservatives who can’t be trusted to provide accurate information. Knowing nothing more about the source than this creates a problem, as it taints what comes. So take this with a grain of sand. The acceptance of “racial equity” in school discipline isn’t the solution to the school to prison pipeline, but contributes to its perpetuation.

In the Obama years, America’s public education system embarked on a vast social experiment that threatened to turn schools into educational free-fire zones. The campaign—carried out in the name of “racial equity”—sought to reduce dramatically the suspension rate of black students, who get referred for discipline at much higher rates than other students. From the top down, the U.S. Department of Education drove the effort; from the bottom up, local educational bureaucrats have supported and implemented it.

“Racial equity” has become the all-purpose justification for dubious educational policies. Equity proponents view “disparate impact”—when the same policies yield different outcomes among demographic groups—as conclusive proof of discrimination. On the education front, “equity” does not seek equal treatment for all students. Instead, it demands statistical equivalence in discipline referrals and suspensions for students of every racial group, regardless of those students’ actual conduct.

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Trump’s Totally New And Evil War Against Immigrants

The word spread like wildfire on the twitters that Immigration and Customs Enforcement agents were knocking on doors and demanding to see people’s papers yesterday, as they were engaged in our new president’s newest operation to corral immigrants.

People asked how this could be legal. People bemoaned the outrage of Trump’s thugs demanding papers. The twitters was in yet another hysterical frenzy over this horrifying person’s terrifying actions. It was madness.The New York operation was planned one week ago and was part of a national action that was planned several weeks ago, Immigration and Customs Enforcement said.

“New York was late to the game,” said an agency official who spoke on the condition of anonymity because details about who had been detained were still being learned. The official said the arrests had not been impromptu and had been planned around individuals’ routines, adding that a fuller account would be available on Monday.

In New York, a total of 40 people were detained. Across 11 states, a total of 600 people were detained. There’s a good chance that there are more than 40 people in New York who are excludable under immigration law. More than 600 in those 11 states.  Continue reading

Will Jeff Sessions Really Matter?

Despite all the hand-wringing, Jefferson Beauregard Sessions III was sworn in as Attorney General, as everyone who didn’t have their head completely up their butt knew he would. It’s consistent with Trump’s campaign appeal to fear of crime and terrorism, which, presumably, he market tested to ascertain whether it would play well in the hinterlands. Apparently, it did, unless he was elected despite people in Missouri muttering to themselves, “the man’s a moron, but he’s still better than Hillary.”

But if anything appears to motivate Trump to act, it’s to create the appearance of fulfilling his campaign promises, misguided as many of them were. And that, unsurprisingly, is serving him well, in that it distinguishes him from generations of presidents who said one thing on the campaign trail and another the day after they were sworn in. His policies may be grossly uninformed, his actions may be unserious, but he’s keeping his promises, no matter what havoc they may wreak.

Of the many people who might have been chosen to be the AG, Sessions might seem curious given his history and subsequent rhetoric in the Senate. He’s been an outlier in most respects, the voice of “tough on crime” long after others realized that it didn’t work, it was absurdly simplistic and, most importantly, the sales pitch had run its course. Or maybe it was ripe for reboot? Continue reading

The Elastic Power Of Attornies*

While academics are trying to resuscitate the future of law zombie, Richard Susskind, despite his having suffered the brutal demise of having been right about nothing since his singular glory of predicting email would someday be accepted by lawyers, practitioners are still struggling with the notion that ethics and competency can survive.

Briefly, the sad facts. The lawyer who is the subject of the ethics decision is a solo practitioner serving the Polish community in Chicago. Client walks into the lawyer’s office, and asks the lawyer to draft a power of attorney and quitclaim deed. The client explained that his friend was in the hospital and wanted to give the client his house and property. The lawyer – without speaking to the client’s friend or investigating the friend’s competency – drafted the documents and charged $200.

“Briefly” may be an overstatement. There’s more. Continue reading

Schumer’s Cool Senator Trick

As the Democratic Minority Leader of the Senate, New York’s senior senator, Chuck Schumer, has a job to do. His job is to fool you and make you hate the other team more than his team. To be clear, the Majority Leader, Mitch McConnell, has the same, but opposite, job. McConnell really sucks at his job. Is Schumer any better?

Charles Schumer: Judge Gorsuch, We Won’t Be Fooled Again

Was he fooled before? Well, there were Earl Warren and Bill Brennan, Eisenhower’s biggest mistakes, but Chuck wasn’t a senator then so it’s not like he was fooled. But is this what he’s complaining about? Nah.

When Judge Roberts became Justice Roberts, we learned that we had been duped by an activist judge. The Roberts court systematically and almost immediately shifted to the right, violating longstanding precedent with its rulings in Citizens United and in Shelby v. Holder, which gutted the Voting Rights Act….Rather than calling balls and strikes, Chief Justice Roberts was a 10th player, shifting the power structure toward the privileged and away from the average American. Continue reading

But It *Could* Happen

As 135,000 people heard with their own two (or fewer) ears, the government was unable to provide evidence to support its claim that failure to lift the TRO on the travel ban executive order would result in harm. As Josh Blackman notes, as did I as well, the government tried to circumvent the gap.

The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree.

And all the world rejoiced? But this isn’t about the ban, but the test imposed by the court on government action. While the world may obsess about this one Executive Order, tell anecdotes of sad immigrants harmed to evoke your deepest empathy, it tends not to occur to people that many people suffer harm as a result of government actions, many far worse than here, many with far less reason. That’s why they tell you sad stories, so you melt into an emotional puddle and focus on the shiny harm in front of you rather than put it into a thoughtful context.

But what Josh raises is that the test to which the government was put here, the lack of evidence of a real harm, isn’t the test usually applied. Continue reading