Locker Room Talking

See a crack in the wall? Work it. Exploit it. Make it your own, and the New York Times is doing everything it can to turn the obvious crack created by Trump, and his insignificant sidekick, Billy Bush, to its own advantage. First, there was the effort to use Trump’s alleged “locker room talk” as proof that masculinity was toxic. Because the only good man is a woman.

Peggy Orenstein now teaches us how to raise boys to become her kind of man.

ONE afternoon, while reporting for a book on girls’ sexual experience, I sat in on a health class at a progressive Bay Area high school. Toward the end of the session, a blond boy wearing a school athletic jersey raised his hand. “You know that baseball metaphor for sex?” he asked. “Well, in baseball there’s a winner and a loser. So who is supposed to be the ‘loser’ in sex?”

A perfect opportunity for an adult to explain the limits of the rhetorical device of analogy, except that Orenstein instead uses it to conclusively prove in the New York Times that she doesn’t get it either. Or is she testing Times readers to see if they’re stupid enough not to notice? Continue reading

Lay Lady Lay

When it was announced that Bob Dylan won the 2016 Nobel Prize in Literature, it was, to say the least, a surprising choice. Not nearly as surprising as Barack Obama winning the 2009 Nobel Peace Prize, given that Dylan actually did something, but surprising nonetheless. After all, this was Dylan. He was a musician, a singer of last resort, a songwriter.

Controversial? Sure. Why not? There is often some controversy when someone unexpected, or outside the box, wins something big like this. Dylan was a poet of a generation (actually, a few), but he wasn’t strictly a writer or a poet. Those who were kinda felt miffed. After all, it’s not like they could win Grammys, so why should Dylan get to win their prize?

Rolling Stone, sticking to its sole area of competency, applauded the selection:

This is easily the most controversial award since they gave it to the guy who wrote Lord of the Flies, which was controversial only because it came next after the immensely popular 1982 prize for Gabriel García Márquez. Nobody can read the minds of the Nobel committee – it’s not that kind of award. You can’t argue that Dylan jumped the line in front of more deserving candidates, because there’s no internal logic to the process. Like most literary Nobels, except much more so, it comes out of the blue, giving Dylan fans a whole new glorious enigma to battle over. So settle in. This argument will take us years. If you’re looking to get silly, you better go back to from where you came.

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Linda Greenhouse: Love The Legislature of Nine

Now that she’s no longer shackled by the expectation of relative neutrality, Yale lecturer cum Supreme Court reporter Linda Greenhouse has seized the opportunity to blast both barrels at the current Republican candidate (and his sidekick) as well as the long-standing trope of their position toward the type of justices who should sit on the bench.

…Gov. Mike Pence of Indiana, the Republican nominee’s running mate, under the headline“Donald Trump Is Ready to Lead.” His essay contained this line about the Supreme Court: “Donald Trump will appoint men and women who will strictly construe the Constitution and not legislate from the bench.”

No points for originality, that’s for sure. Amusement value? Not immediately obvious. “Strict construction” and judges who won’t “legislate from the bench”: these are among the most trite and tired lines in the Republican playbook.

If lines are “trite and tired,” then they can simply be dismissed. After all, addressing them again would be exhausting. Continue reading

Ruth Bader Ginsburg’s Fall From Grace (and resurrection?)

Her title was “justice,” not “social justice,” yet they latched onto her as if she was one of them. An old-school Jewish intellectual feminist, the diminutive Justice Ginsburg was adopted by the young set.*

For Ruth Bader Ginsburg’s many liberal fans, the Supreme Court justice has long been an icon of progressive grit, a happy warrior battling racism, sexism, and homophobia—a reputation that in recent years earned her that famous sobriquet, the Notorious RBG.

Apparently, she liked the rapper name, and it ended up the title of her biography, written for sale to passionate social justice warriors obsessed with her. She was the embodiment of their yearning desires. RBG validated them, while others called them unpleasant names that denigrated their confusion between mindless irrational feelings and reason.

Then it came crashing down around them. Mark Joseph Stern led the mob in tearing the statue of the Notorious RBG off the pedestal built of sad tears. She was never really “notorious” at all, he cried, as they burned the witch. Continue reading

Never Forget That Face (Or That Penis)

The Intercept, which does some of the most consistently excellent and accurate long-form reporting on criminal law issues, does a blistering expose on facial recognition technology. Much as I’m not a fan of the trend of hooking the reader with an anecdote, Ava Kofman’s nails her point:

It was just after sundown when a man knocked on Steve Talley’s door in south Denver. The man claimed to have hit Talley’s silver Jeep Cherokee and asked him to assess the damage. So Talley, wearing boxers and a tank top, went outside to take a look.

Seconds later, he was knocked to the pavement outside his house. Flash bang grenades detonated, temporarily blinding and deafening him. Three men dressed in black jackets, goggles, and helmets repeatedly hit him with batons and the butts of their guns. He remembers one of the men telling him, “So you like to fuck with my brothers in blue!” while another stood on his face and cracked two of his teeth. “You’ve got the wrong guy,” he remembers shouting. “You guys are crazy.”

Of course, Talley was the wrong guy. Totally the wrong guy, not that it did him much good.  Talley is the same guy Noel Erinjeri told you about at Fault Lines last April, an unforgettable reminder than you can beat the rap but not the ride. Continue reading

Trump, Times And The Dance Of The Lawyer Letters

Lawyer letters, those nifty demands and threats written on official letterhead that strike fear in the hearts of some and laughter in others, have never been a favorite of mine. Not only are they generally leaden prose, but they serve no purpose beyond chest-thumping. You want to sue? So sue.

But when Donald Trump had his lawyer send the New York Times a lawyer letter to demand a retraction of their story about the women who claim Trump sexually assaulted them, it served two purposes. The first was to attempt to blunt the impact of the story, particularly since Trump denied during the second debate that he ever actually engaged in sexual assault.

Suing wasn’t the point, as it would never get anywhere in time to have an impact on the election.  A lawyer letter, which was obviously going to go viral, was the only mechanism available to get his contention out there. This was a political pitch, not a legal one.

And the Times, in return, had its assistant general counsel send a letter back.  Its first salvo was a smack across the ego. If Trump wanted to use his letter to defend his honor, the Times was going to make him pay for it: Continue reading

Judge Andre Birotte Jr. Enables Yom Kippur Attack

It’s not that the orthodox Jewish ritual of Kapparot is the sort of thing that others, less-than-orthodox Jews or non-Jews, would find endearing. It’s the sort of ritual that only an extremely orthodox believer would appreciate. But that’s the nature of religion, believing.

Those who do aren’t trying to force anyone else to participate, but the plaintiffs in United Poultry Concerns v. Chabad of Irvine saw the opportunity to try to game the defendants’ religion to beat them.  But for Central District of California Judge Andre Birotte Jr., this should never have been tolerated.  Josh Blackman provides the full background:

On Thursday, September 28, 2016, United Poultry Concerns (an animal rights group) sought a temporary retraining order in the Central District of California. The suit, brought against Chabad of Irvine and Rabbi Alter Tenenbaum, requested injunctive relief to prohibit the temple’s practice of Kaparot in the period before Yom Kippur begins on sundown on October 10, 2016.

What’s the problem? First, if the plaintiffs wanted to raise their claim, which has ultimately failed every time they tried to raise it elsewhere, they could have done so well before, when the defendants weren’t constrained by their religion from doing what was needed to respond. Continue reading

Names in the News, Volume 1

First: Fellow blogger (who also has some other job) Jonathan Turley has been named as Libertarian presidential candidate Gary Johnson’s top pick for the Supreme Court of the United States.

While I am not ditching my day job just yet, I am honored by Governor Johnson’s consideration. If nothing else, it got my students to stand up as I entered the class. I had assumed that the class was recognizing the achievement of my Chicago Cubs in clinching of a spot in the National League Championship, but this is even better.

Poor taste in sports teams aside, this may be my one shot (a long one, granted) of ever becoming a Supreme Court clerk and becoming filthy rich afterward by selling Turley’s secrets to the highest bidder. Seriously, isn’t it about time we had a blawgger on the Supreme Court? Go Gary Johnson!

Second: The winner of the 2016 Nobel Prize in Literature is Bob Dylan, once appreciated only by the terminally cool. Continue reading

Assault By Twitter In The First Degree

Not the cries of Jessica Valenti of death threats to her children, after she’s done with her personal authentic engagement for the morning because she has, you know, fans who need her to know what they’re supposed to hate. And not because Newsweek reporter Kurt Eichenwald has done anything to deserve appreciation for his flagrant intellectual dishonesty. Rather, can the mechanics of an internet medium serve as means of committing assault?

Maybe. It depends.

Having been deluged by the cries of those who want to elevate hateful words into the equivalent of a good beating, the type that breaks an eye socket or two, rational people are inclined to shrug off claims that social media has the potential to be used as means of assault. What happened to Eichenwald raises a very different problem:

The question arises in the recent discussion by journalist Kurt Eichenwald of the Twitter threats he has received from Trump supporters. After Newsweek published his story investigating the complicated relationships the Trump Organization holds with foreign governments and business interests, Eichenwald received numerous responses on Twitter, many of them not only critical but threatening. One stood out, leading Eichenwald to write a new article. The tweet (since deleted) referred to Eichenwald’s epilepsy and included an embedded video. When Eichenwald played the video, he writes, he instantly identified it—complete with flashing lights and images—as an epileptogenic, or seizure-triggering, video. He dropped his iPad as soon as he recognized the video’s characteristics.

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The Anti-Toxic Masculinity President

While it’s impossible for any relatively sentient person not to realize that one candidate lacks even the most basic knowledge of civics necessary to run a government, it’s similarly hard to ignore that his opponent openly proclaims herself to be a supporter of women, children and minorities. She said so in the debate, and there’s no reason to doubt her on this. Expressio unius est exclusio alterius.

That would be fine, if that’s what you support in your enlightened self-interest. Maybe some guy in Kentucky who is unable to feed his family takes issue with this, but then, maybe the sad feelings of women who are exhausted by enduring men saying hello to them on the street matter more to you. You’re allowed to decide what values matter most to you.

But there is a flip side to this that is being promoted in the backpages of section one of the New York Times that should also be factored into the calculus. It’s not merely a matter of helping some groups more than others, perhaps because they need it more under a certain value system or perhaps because they feel that historical deprivation of rights compels a change. Continue reading

The Legal System’s Naivete Gap

When Matthew Chan learned that there was a lawsuit against him, or some fictional ghost with a similar name, by dentist Mitul Patel, for the purpose of obtaining a phony judgment to be used to get Yelp to take down an unfavorable review, it was kinda shocking.  At the time, the question was raised whether there was an epidemic of such things happening.

As it turns out, there is, as Public Citizen’s Paul Alan Levy found out.

There are about 25 court cases throughout the country that have a suspicious profile:

  • All involve allegedly self-represented plaintiffs, yet they have similar snippets of legalese that suggest a common organization behind them. (A few others, having a slightly different profile, involve actual lawyers.)
  • All the ostensible defendants ostensibly agreed to injunctions being issued against them, which often leads to a very quick court order (in some cases, less than a week).
  • Of these 25-odd cases, 15 give the addresses of the defendants — but a private investigator (Giles Miller of Lynx Insights & Investigations) couldn’t find a single one of the ostensible defendants at the ostensible address.

The “why” this is happening is fairly obvious.  Continue reading

Principled Is Only Great If You’re Alive

Buffalo high school students get to hear what ex-state trooper, now lawyer, John Elmore has to say about encounters with police. He’s written a book about it, and stories about his lectures have appeared with some regularity in the Buffalo News.  The latest article was October 1st, but inexplicably no longer appears online.

The TL;dr version falls under the mantra, “comply or die,” including such advice as “never run,” “show your hands” and “never touch a cop.”  It’s all familiar and fundamental.

The boys are all too familiar with the images and the aftermath of the deadly police encounters, whether it’s Michael Brown in Ferguson, Mo., or Eric Garner in Staten Island or Philando Castile near St. Paul, Minn.

“It’s wrong to say all cops are bad,” Elmore told them. “Most cops are good people.”*

But Elmore understands its hard to be respectful to police if they’re not respectful in return. Nonetheless, he beseeched the boys not to take up that fight in the street or they could end up arrested or hurt – even dead. Continue reading