Author Archives: SHG

Should Mindfulness Come With A Trigger Warning?

I admit it. I listen to the Trigger Warning podcasts made by “hick” Kansas lawyer Eric Mayer and “slick” New York lawyer Daniel Gershburg. Not just because I like them, but because they’re usually pretty funny. Sometimes, they intend to be.

But their latest podcast, coming off a lengthy, soul-searching hiatus about why I’m the only person other than their mothers who listens, presented a dichotomy in the profession that should scare the crap out of everyone, particularly those people who entrust us with their lives and fortunes.  Their subject?  Mindfulness.

The two law-talking guys approached the subject from entirely different perspectives, so much so that my sense is that they were talking about completely different things. And indeed, they were.

Daniel used his time to extol the virtue of mindfulness as an positive thing to do.  It was a generic view of the idea that engaging in activities like meditation and yoga is a sound and valuable way for lawyers to relieve the stress that builds up from their responsibilities.  Was this an issue? Continue reading

Black Lives Matter, But Not So Much At The Mall

Imagine organizing a protest, deep in the desert. Beautiful, natural surroundings, but not another person around for miles.  Does a protest with no one to hear it make a sound?  Well yeah, but it also doesn’t do much good. The point of organizing a protest, exercising one’s right of association, freedom of speech, to seek redress, is to get your point across to someone.

And that’s where the change in how Americans behave, and how our public infrastructure has changed comes into play.  We used to be a nation of small towns, with village squares, that would be the center of public life. Been to a village square lately?  If it even exists, it’s empty.

The reason there’s nobody there is because they’ve all gone to the mall.  Like the Mall of America in Bloomington, Minnesota, which is why a big protest was organized there before last Christmas.  And when the mall got wind of it, and Bloomington officials learned of it, things did not go well for the protestors. Continue reading

Feelzplainin’ and The Constitutional Right To Triggerdom

When Stephanie West Allen sent me a link to a Vice post, it seemed to be yet another in those inane efforts to throw as many silly words as possible against the screen to justify trigger warnings in the absence of anything remotely resembling thought.  This one, by Ali Jaffe, argues that trigger warnings are “about sensitivity, not censorship.”

She begins by explaining the real significance of the Columbia University kerfuffle over Ovid’s magnum opus, Metamorphoses.

After a class at Columbia University read the poem, one student spoke out about her painful experience with the material as a survivor of sexual assault. Four students on the school’s Multicultural Affairs Advisory Board penned an op-ed for Columbia’s student newspaper, urging faculty to teach provocative or potentially upsetting material with increased sensitivity.

“As a survivor of sexual assault, the student described being triggered while reading such detailed accounts of rape throughout the work. However, the student said her professor focused on the beauty of the language and the splendor of the imagery when lecturing on the text… She did not feel safe in the class.”

Continue reading

The Million Dollar Hoody

Deputy Jeffrey Guy was just doing his job.  Responding to a domestic violence call, he saw a guy.  A guy!  If that wasn’t suspicious enough, check this:

“As the gentleman walked by, he covered his head with the hood of his sweatshirt,” said Rodi.  “Trying to conceal his identity.”

It’s not that Captain Joe Rodi has miraculous mind reading skillz, knowing exactly why this guy, whom he calls a gentlemen but he was being insincere, covered his head with his hood.  Cops know why people do stuff. Cops know stuff. Mad, mad skillz.

So Guy did what any empathetic, self-respecting cop would do.

Deputy Jeffrey Guy beat Antonio “Tony” Martinez with a metal baton, sprayed him with pepper spray, then handcuffed him and held him at the Vista Sheriff’s Station for five hours without letting his father see him.

Continue reading

After The Hysteria Dies Down

There is no short word or phrase that captures the phenomenon, but it repeats itself over and over. Yes, that’s George Santayana banging his head against a wall, because we never seem to learn.  And from the front page of the New York Times, another example appears.

In December, Mr. Anderson met a girl through Hot or Not, a dating app, and after some online flirting, he drove to pick her up at her house in Michigan, just miles over the state line. They had sex in a playground in Niles City, the police report said.

That sexual encounter has landed Mr. Anderson in a Michigan jail, and he now faces a lifetime entanglement in the legal system. The girl, who by her own account told Mr. Anderson that she was 17 — a year over the age of consent in Michigan — was actually 14.

The boy was Zachary Anderson, age 19, and generally a pretty ordinary kid. And now he’ll be a registered sex offender for life. Why life? Because they couldn’t make it longer. Continue reading

#RedditRevolt

I refer to reddit often in the comments here, for people who are interested in criminal law issues but lack the background, education or knowledge necessary to have a firm grasp of issues of law. Plus, those who feel compelled to scream, “all cops are thugs” and similarly idiotic things. I tell them they would be happier at reddit, because I want them out of SJ.

But I do so because reddit offers a sounding board for everyone, not matter how smart or stupid, sane or batshit crazy.  What reddit offers is the freedom to find a place to express one’s views without the limitations of a curmudgeon like me or the finger-wagging prunes who want to tell everyone else how to behave.  It offers freedom.

Correction: It offered freedom. The interim CEO, Ellen Pao, has chosen to hitch her wagon, and with it, reddit’s, to political ideologues who are all about shutting down all sound that doesn’t please their ears, throwing out all staff that doesn’t appreciate the need to turn reddit into a marketing machine, and adding happy faces all around. Continue reading

The Dangerous Dilemma of Dignity

Has enough time passed since the joy of Obergefell v. Hodges has given way to fighting over who gets custody of the Barbra Streisand albums? Being all in favor of gay marriage under equal protection analysis, there was nothing negative to say about the outcome, and, indeed, the issue of gay marriage had, in my view, long since been decided when 36 states legalized it. It was here, regardless of what the Supremes had to say about it. Done deal. Get over it.

But now that marriage is available regardless of sexual preference, it’s time to consider a nasty little piece of the rationale that is most assuredly going to come back and bite us in the butt.  Dignity.  Justice Kennedy has been trying to stick “dignity” in wherever he can find a spot, and he did so again in Obergefell, to much applause.

But, you ask, isn’t dignity a good thing?  Who doesn’t like dignity?  Jonathan Turley treads gingerly over the problems with a right to dignity.

Dignity is a rather elusive and malleable concept compared with more concrete qualities such as race and sex. Which relationships are sufficiently dignified to warrant protection? What about couples who do not wish to marry but cohabitate? What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, “the highest ideals of love, fidelity, devotion, sacrifice, and family”? The justice does not specify. Continue reading

Reduced To Jargon

Certainly, when former McKinney, Texas Cpl. Eric Casebolt pulled his gun on kids for swimming in strange waters, together with a host of other really bad career choices, it was a subject of serious interest and concern. As it turns out, Nicole Nguyen, an assistant professor of social foundations of education at the University of Illinois-Chicago, thought so too, and wrote about it for Education Week.

Nguyen’s concern began with a bit of a rocky start:

Aghast but unsurprised, I wondered what role universities, and colleges of education more specifically, play in dismantling these state-sanctioned systems of violence that expose non-dominant youths to narrowed life chances, brutality, and premature death.

Non-dominant youths? Narrowed life chances?  Ah, premature death. Got it. Now we’re cooking.  So she’s an assistant prof. They have to gussy up their writing if they’re going to impress the tenure committee. Heh, non-dominant youths. Like lefties? Good one, Nicole. Continue reading

Blinded By The Light: Old Justices and Executions

At Volokh Conspiracy, Orin Kerr takes a shot at answering a question raised by lawprof Michael Dorf.  Ever notice how a Supreme Court justice who takes the bench with an antipathy toward the death penalty never seems to develop a taste for executions over time?  And yet, sometimes justices who start with the view that the death penalty is part of the process end up deciding that they can’t take it any more, that the death penalty is wrong and unconstitutional?  What’s up with that?

Why would so many Justices change their minds, only after serving on the Court for decades, about this one issue?

I have a theory on that.  It’s pure speculation, to be clear. But while we’re speculating, here’s my guess: It’s the cumulative effect of the workload.

In the interest of brevity, this is the crux of Orin’s speculation:

A little too superficial? Fair enough. Here’s the longer version: Continue reading

The Discomfort of Responsibility

Former criminal defense lawyer turned federal judge turned Harvard lawprof Nancy Gertner has been held out as a paragon of rational feminist thought for having the temerity to take a stand against the neo-feminist ideological shift in the definition and adjudication of college sexual assault.  As previously noted, her feminist cred makes her opposition more significant than others who can be dismissed as misogynists or rape apologists. You can’t ignore Nancy Gertner.

But as with others who are held out as the voices of the loyal opposition against a trending evil, “friends” in a cause if you will, Judge Gertner’s opposition comes with compromises.  This is reflected in Conor Friedensdorf’s post about an interview of Judge Gertner by Caitlin Flanagan, which covers many significant issues.  One of them is reflected here:

Caitlin Flanagan: What about the issue of second thoughts, regretted sex? Having gone to college a long time ago, date rape looked very different … I went to college in the South and they were all male deans. If you went to him and said you were raped, you would almost certainly be blamed for it … The idea would be, “You probably wanted to do it and now you’re sorry you did it and so you’re calling it a rape.” So it’s a horrible old stigma around rape victims as old as time. And yet we have to be openly talking about everything. There may be cases where [regret] plays a part. As a feminist, how do you talk about something as loaded as second thoughts? Continue reading

Big Books, Big Money

It seems like everybody’s an author today. Everybody but you. And me. Yet, I keep stumbling across baby lawyers writing books about subject they can barely spell, no less write intelligently about. Often published by no less prestigious an entity than the ABA.

And then there are the more mature lawyers, cranking out books that are adored by all three of their fans. And the guy at the vanity publishers who is more than happy to take their money to print up a few hundred copies of a book destined to sit in the dust bin at Amazon.

Why do this?  To crunch some numbers, consider that a person who puts in serious effort to writing a book will expend 1000 hours writing, thinking, rewriting, thinking some more, to create something that will be illuminating. Well, at least not embarrassing. Continue reading

When Bail Is Unconstitutional

The question posed by the title to Leon Neyfakh’s Slate post seems rather outlandish.  Is Bail Unconstitutional?  Of course not. It’s ridiculous, as bail is obviously constitutional.  Except when it isn’t.

Neyfakh’s error is, at worst, a minor one that happens constantly on the internets. Non-lawyers fail to recognize that law and procedure vary greatly from jurisdiction to jurisdiction, and they focus on one and extrapolate it to others. The others may be vastly different, but lacking knowledge of this, they assume that if bad stuff happens in one place, it happens everywhere. It’s a flawed assumption.

But what Neyfakh is talking about is the arbitrary fixing of bail by police in Dothan, Alabama.

Anthony Cooper was going to jail because he couldn’t afford to buy his way out. After being picked up for public intoxication at a bus station in Dothan, Alabama, at about 1 a.m. on June 13, Cooper was told that unless he paid $300 in bail money, he would have to spend six days behind bars while awaiting a court hearing. If Cooper, who is illiterate and suffers from mental illness, had had the money on hand, he could have gone free on the spot. But the 56-year-old’s only source of income comes from his Social Security benefits, and he didn’t have $300. And so Cooper, like many down-on-their-luck Dothan residents before him, was locked up.

Continue reading