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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The Wage Gap Meets The Reality Gap

Is there really a wage gap?  Of course. And not exactly.

How many times have you heard that “women are paid 77 cents on the dollar for doing the same work as men”? Barack Obama said it during his last campaign. Women’s groups say it every April 9, which is Equal Pay Day. In preparation for Labor Day, a group protesting outside Macy’s this week repeated it, too, holding up signs and sending out press releases saying “women make $.77 to every dollar men make on the job.” I’ve heard the line enough times that I feel the need to set the record straight: It’s not true.

Like most statistics thrown about to rile up the troops, who are looking for proof that what they feel is what is real, the platitudinous wage gap is a simplistic fiction. But that doesn’t mean there isn’t a real wage gap, where a man and a woman are hired to perform the same job for the same number of hours per week, but are paid a different wage to do so.

Is this wrong? From a fairness perspective, obviously. From an employer’s perspective, not at all. After all, someone doesn’t run a business for the purpose of paying wages higher than necessary. Every dollar they pay out in employee wages is one less they earn in profit. It’s not hard to understand.  Employers are leveraging the ability to get women to work for less than men to enhance their bottom line. Continue reading

Culture Shock

An offhand comment at Hacker News caught me by surprise. It was in response to a link to the post about Bankruptcy Judge Shelly Chapman’s visit to the Bronx Criminal Courthouse,

As far as I can tell, the point of view of that ‘deconstruction’ is “Yeah, criminal court is totally fucked up, but we’re used to it, what you think you’re better than us because it’s still shocking to you? fuck you elitist!”

I’m sure lawyers and judges look up and down at each other with elitism, and they can take that up among themselves or whatever. But this “too cynical to be outraged at a really fucked up system” stuff helps nobody, and is just it’s own kind of pretentiousness, directed at the rest of us.

Putting aside the usual narcissism that the post was “directed” at or anywhere near the writer of the comment, that he interpreted the post through his lens is understandable. What else could he do?  It would be unreasonable to expect a hacker-type to grasp the higher-order concept that, within lawyers practicing criminal law, the epiphany of Judge Chapman (and him) had long been known and recognized. Contrary to being cynical these failings have been the subject of daily, hourly, efforts to compel change. Not that anyone gave a damn. Continue reading

“Grow Up” Will Be On The Test

It’s not yet a major, but it will become a thing at East Carolina University. Adulting.

The idea is to teach kids coping skills, including how to deal with the trauma of getting a “C” grade.

The school felt compelled to do this after a soaring number of students started overburdening the campus’s existing mental health services—so much that ECU had to hire two new counselors.

Keep an eye out for the use of certain words that keep popping up in the oddest places. Everything is terrifying, horrifying, exhausting. These were once words reserved for things that were, indeed, terrifying. They are now commonly used to describe things that happen on Tuesday.* Lenore Skenazy, the world’s worst mom, explains: Continue reading

The Stop That Got Away

A Facebook story has drawn tears, anger and interest, pushing all the right buttons and jerking all the right tears. The story belongs to a guy named Ken Walton, who was described in twits (since deleted) linking to his FB post as an executive at Electronic Arts.  And, as Walton describes it, was lucky to survive a stop in Arizona.

Tonight, I was arrested at gunpoint by an Arizona highway patrol officer who threatened to shoot me in the back (twice) in front of my 7-year-old daughter. For a moment, I was certain he was going to kill me for no reason. I’m alive, and I need to share the story. PLEASE SHARE IT, because I have an important reason for staying up past 1AM to write it down.

Certainly a tempting intro. The backstory is that he was driving a rental car, whose plates had been stolen. The cop called in the car and “misunderstood” the report to mean that he was driving a stolen car, so he made the stop.

Suddenly, the officer rapped on the rear passenger side window with his pistol. My daughter, who was sitting inches from the barrel of his gun, jumped with fear as the officer yelled at me to roll down the front passenger window, his service weapon pointed directly at me. I knew something was terribly awry and I tried to remain calm, keeping my hands visible as I slowly fumbled for the window controls in an unfamiliar car. Continue reading

The Dilettante Judge

The Honorable Shelly Chapman is a federal judge, but of the bankruptcy type. Unlike district court judges, bankruptcy judges don’t hear criminal cases. They are usually bankruptcy lawyers who go on to sit on the bench hearing the same types of cases they knew as practitioners. It’s a specialty thing.

And yet, they were lawyers once. And judges now. So how is this possible?

I love going to court.

There is drama. There is pathos. It is the place I go, as a bankruptcy judge for the Southern District of New York, to uphold the laws and Constitution of the United States, and to administer justice “without respect to persons.”

No doubt there’s drama and pathos in bankruptcy court. Wherever people’s rights are in issue, drama and pathos follows. But with all due respect to Judge Chapman’s sensibilities, she’s experienced the breadth of legal drama and pathos of a cloistered nun. Welcome to the Bronx. Continue reading

The Olympics Of Race, Gender and Loathing

At first blush, this headline would seem inconceivable.


It’s a horrible headline no matter how you twist it, but this wasn’t meant as some race-baiting white supremacist slant. Exactly the opposite.  Simone Manuel accomplished a magnificent feat, taking the gold medal in the women’s 100 meter freestyle. Yet, the headline writer, given whatever limits of space imposed, made the choice of including the most important, most salient piece of information. It was not her name.

Manuel, who on Friday qualified for Saturday’s 50-meter freestyle final, said she looked forward to the day when she is known simply as a champion.

She didn’t win because of her race. She won because she spent countless hours in a pool. She won because of her skill, work ethic and dedication to her sport. And yet, in this moment in social justice history, she’s been reduced to her skin color. Continue reading