And The Cancer Spreads: DoJ Orders UNM To Violate First Amendment

That students demonstrate no grasp of the First Amendment is nothing surprising. In a weird sense, it’s not their fault. They’ve been told that it means whatever they feel it should mean, with a plethora of wild expectations and demands that pop into their collective heads for no particular reason. They’ve been indoctrinated with such simplistic fortune cookie nonsense as “rights come with responsibilities,” and those responsibilities mean “hate speech” is not protected. They just make up whatever “responsibilities” suit their feelings.

Combined with their narcissistic entitlement to inform others, like lawyers or House Masters, of their personal vision of law, it’s amusing, exasperating and, invariably, idiotic. But they’re kids. You expect kids to be kids. You expect them to believe all manner of nonsense that comports with their sense of propriety. Isn’t that what childishness is all about?

What is not expected, or acceptable, is for the Department of Justice to hop aboard the crazy train driven by the Queen of the Gender War, the Department of Education’s Office of Civil Rights rogue bureaucrat, Catherine Lhamon. Her reach beyond her limited authority under Title IX to unlawfully seize jurisdiction over every sexual (at least, sexual as perceived by the “victim”) interaction between students has been thoroughly discussed, not that anyone in Congress has shown sufficient interest in reining in the out-of-control Avenging Angel of sad sexual survivors.

In a 37-page letter, the Department of Justice, by Shaheena Simons, [Acting] Chief of the Educational Opportunities Section, Civil Rights Division, and the New Mexico United States Attorney, Damon Martinez, has taken Lhamon’s micromanagement of student relations under wing, and with the prosecutorial fiat of DoJ, threatened the University of New Mexico to capitulate by violating the Constitution.  This isn’t a tangential suggestion, but a direct command: Violate the Constitution. Or else.  Whereas the DoE’s only clout is withholding federal educational funds, the DoJ’s power is far more nefarious. They wield the bludgeon of prosecution. Continue reading

Making The Nasty Sausage of Constitutional Rights

There is an implicit assumption that arguments before the United States Supreme Court involving constitutional rights are presented by the best and brightest, the fully prepared, the lawyers who have earned the right to stand before the nation’s highest court and present a branch of government with the strongest, most sound, arguments possible.  After all, the rights of every American are at stake, and what could be more important?

Sit down. I have something to tell you, and it’s going to make you sad.

The justices of the United States Supreme Court are at their best when united against a common foe. It’s much easier to put aside doctrinal differences and work together when an attorney at the lectern sounds like a clodhopping amateur trying out for the moot court team. On Wednesday, in a critically important Fourth Amendment case, not one but two advocates performed so terribly that the justices effectively gave up and had a conversation among themselves. The result was a deeply uncomfortable 70 minutes during which the clash between state power and individual autonomy took a back seat to jokes about night court and hillbilly judges.

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The Impactfulness of Generational Collaborationalism in Lawspace

Sometimes I think it’s me. I read what other people write, shake my head, and mutter to myself, “they didn’t say anything, and they murdered 1000 words doing so.” Nouns have become verbs. Adjectives wrap around every noun. Strings of jargon leading nowhere, saying nothing, are repeated paragraph by paragraph, changing their order without disrupting a damn thing. Am I just too old to get it?

Nah.

Last week, I received a PDF presentation about “Helena,” a new startup boasting a 20-year-old Yale student CEO and connections—so they claim—to some of the most powerful and influential people in the world, from Stanley McChrystal to, uh, Selena Gomez. I spent the better part of last week trying to figure out what the company does—and I’ll level with you, man, I’m still not sure.

As far as I can tell, after having read the PDF deck (embedded at the bottom of this post, purportedly circulated by a PR rep working for Helena) multiple times, the company is a group of people who are doing something. That something appears to be “change,” although it’s unclear what they’re changing or how. 

Sam Biddle’s post is hysterical. He’s met, level by level, with facial bullshit for the audacity of trying to find out what this promoted enterprise, named “Helena” for no discernible reason, does. It’s got money, backed by the baby-boss’ rich VC daddy, but no purpose. This may be the greatest business of all time. Continue reading

Campus Follies Round-Up

The curious world of academia has given us too much love lately to make each piece of pedagogy into its own post, but it would be a shame not to share. So, a quick stroll across campus.

The sadly marginalized students of Harvard Law School have come up with a new demand: Free Tuition!!!

It has been 134 days since we presented you with our demands at the Community Meeting on December 4, 2015. Although we appreciate your efforts in effectuating symbolic change with the removal of the Royall family crest, our concerns regarding substantive institutional change at Harvard Law School have gone unaddressed. One of these concerns is the financial burden imposed on students in order to attend law school here. . . .

Harvard Law School should be committed to creating an environment that is inclusive of students of color and students from low-income backgrounds who want to study here.  Enough is enough; fees must fall.

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Beware The Dictum: The 4th Circuit’s Discovery Of The Meaning Of Sex

Obiter Dictum

  • a judge’s incidental expression of opinion, not essential to the decision and not establishing precedent.

Lawyers are taught to distinguish the holding from the dictum, but we don’t do a particularly good job of it. Judges, who once limited their opinions to the essentials, now write at obscene length, because they too have discovered the joys of word processing, to express their every thought on an issue, their deepest views, despite there being neither need nor call for it.

As the standard example goes, the monumental decision in Brown v. Board of Education took twelve pages to express. The Fourth Circuit’s opinion in G.G. v. Gloucester School Board runs 69 pages. Its holding can be simply stated: The District Court failed to give proper deference to the Department of Education, Office of Civil Rights, interpretation of its regulations, so the case is remanded to the lower court for consideration under the proper standards.

In other words, the decision did little more than to tell the judge below to take a Mulligan under Auer v. Robbins: Continue reading

Level Two Lies: Because The FBI Can’t Trust Prosecutors

When the existence and capacity of Stingrays came to light, you might have thought all hell would break loose.  After all, it wasn’t just the public that was kept in the dark by this monumental breach of privacy. It was judges too.

The concealment of the use of Stingray is one thing. The deceptive claim that Stingray is little more than a trap and trace device is another.  But these emails go to a different place.  It’s not just the government concealing their cool, secret devices from the public.  Not even from criminal defense lawyers.  They are lying to the courts about using them.

In the past, and at the request of the U.S. Marshalls [sic], the investigative means utilized to locate the suspect have not been revealed so that we may continue to utilize this technology without the knowledge of the criminal element. In reports or depositions we simply refer to the assistance as “received information from a confidential source regarding the location of the suspect.” To date this has not been challenged, since it is not an integral part of the actual crime that occurred.

They lied. They lie. The U.S. Marshals asked them to lie, and they lie.  They use Stingray, but they put in their reports and probable cause applications they “received information from a confidential source,” and it is a bold-faced, total, complete, absolute lie.

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Insulting In Rhode Island

Trigger Warning: This post will make me a criminal in Rhode Island, if two things happen: First, two of you “pile on,” and second, if Attorney General Peter F. Kilmartin gets his way.

That’s because Kilmartin is an asshole, and my saying so is insulting.  Kilmartin, like others who believe that the internet must be cleansed of people who are hurtful, wants to make what I’ve just done (with the help of two of you) into a crime.

Social media posts, sexually explicit or otherwise, that cause someone’s online embarrassment or insult, would become crimes under a set of bills being advanced by Rhode Island Attorney General Peter F. Kilmartin.

The bill to prohibit so-called “revenge porn,” posting nude or sexually-explicit images of someone without their knowledge and consent, has become an annual goal for Kilmartin, who says Rhode Island is becoming an outlier in not having such laws on the books.

But another bill would target a wide range of social media activity that makes people “feel terrorized, frightened, intimidated, threatened, harassed, or molested.”

Ah, yes, the dreaded feelz we hear so much about. As painful as a bullet to the head. More so, some say.  And if a bullet to the head shouldn’t be a crime, what should? Continue reading

Know Precedent; Preserve Issues; Make Precedent

Our hinterlands correspondent, Kathleen Casey, sent over Volume 1, Issue 1, of the Center for Appellate Litigation’s newsletter on Issues to Develop At Trial.  This is the sort of information that serves to teach or remind trial lawyers of the things they must do at trial to win and, in the odd chance they don’t, preserve critical issues for appeal.

Much as preservation is the weasel way of avoiding addressing a conviction where a defendant was not afforded the full protection of law, it is nonetheless the law and thus incumbent on trial lawyers to know the law, make the right objections and arguments, and preserve issues for appeal.  And for those so inclined, you can’t make precedent if you don’t know precedent.

If you didn’t receive their newsletter, you should, and they need to include a place on their website for people to sign up to receive it. And it’s kinda nice that in their first newsletter, they cite one of my cases.

Scorched Earth Defense Burns Government (This Time)

Academics call it “asymmetrical,” which is a needlessly officious way of describing the fact that the government has essentially unlimited resources while you have, well, whatever you have.  And even under the best of circumstances, having a lawyer dedicated to zealously fighting for your cause, money matters, as was made clear in the suit against Oregon State Police Capt. Rob Edwards.

[Plaintiff Justin] Wilkens sued Edwards in 2014. The jury in January awarded Wilkens more than $180,000 in damages and supported his claim that Edwards had used excessive force by kicking him in the upper chest during a traffic stop. The jury also found that Edwards acted with negligence when his unmarked police car rear-ended Wilkens’ motorcycle seconds before the kick. Wilkens fell off the motorcycle after it was rear-ended by Edwards.

Nice guy, Edwards. First hit Wilkens’ motorcycle, then kick him in the chest for, you know, kicks. But that was just the start of Wilkens’ problems. Rather than let discretion be the better part of valor, the Oregon Department of Justice chose to go scorched earth on behalf of their place kicker.  Fortunately for Wilkens, his lawyer, Lauren Regan, wasn’t inclined to back away from the fight. Continue reading

Can Andrew Miltenberg Bring An End To The DoE’s Rape Reign (Update x2)

Aside from hearings and some tough questions, Congress has done nothing to end the reign of terror by the Department of Education’s Office of Civil Rights in its unlawful extension of authority from ending gender discrimination in education to seizing control over sexual relations, and the flagrantly discriminatory manner of adjudicating sex on campus.  So much demagoguery. So little action. So much harm left unresolved.

While there have been successes in individual litigation reviewing the failings of colleges to provide basic due process in its handling of campus sex, there has not been a direct attack on OCR for its pseudo-imposition of its own rules on colleges.  While OCR denies its “Dear Colleague” letter, threatening loss of funding if schools don’t abandon any pretense of fairness, are unlawful rules, but merely “guidance,” schools claim that they have no choice but to condemn the accused to predetermined guilt and punishment because “rules.” Then again, it’s not like any college in America has challenged OCR’s authority to demand that they hang male students out to dry.

The fundamental impropriety of OCR’s “social engineering” has escaped congressional action, but may no longer be able to escape legal scrutiny.  In a press release, it was announced that Andrew Miltenberg, who has been at the forefront of litigating on behalf of students accused of rape and sexual assault, has named the DoE OCR as a defendant.

Grant Neal, a prominent student athlete at Colorado State University Pueblo (CSU Pueblo), has filed a first-of-its-kind lawsuit against the Obama Administration’s Department of Education Office of Civil Rights (OCR) and CSU Pueblo for violation of Title IX in a wrongful sexual assault investigation. Neal is being represented by Andrew T. Miltenberg, one of the nation’s preeminent attorneys specializing in campus assault due process.

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Full of Grit

It’s been expressed in various ways. Moxie. Fortitude. Tenaciousness. Each word touching on a facet of a larger trait that, to those who would rather spend their lives seeking success and happiness than misery and the empathetic tones of victimhood, is something to aspire to: Grit.

For more than a year, social justice activists have been attacking one of education’s latest buzzwords:  grit. They’ve been arguing that it’s wrong, and possibly racist, to blame low-income black and Hispanic students for not having enough of it. And they contend that education reformers should focus on fixing systems that keep families trapped in poverty, instead of trying to “fix” students. (For examples, see here and here).

As buzzwords go, grit is a good one. But more importantly, what makes grit a worthwhile idea, beyond the adoration of buzzwords, is that anybody can have it. Black, white or green. Male, female or fluid. It doesn’t matter. You’re as gritty as you wanna be.

But is this wrong, “possibly racist.” because it shifts responsibility for an individual’s success off of society and onto the person?  Maybe, given the perspective that the value of grit is relative to the offsetting inhibiting factor of racism.  But that doesn’t quite get to the heart of the matter. Continue reading