The movement by hashtag, #BlackLivesMatter, was born following the acquittal of George Zimmerman for the killing of Trayvon Martin. But the momentum shifted markedly after the death of Michael Brown in Ferguson by Police Officer Darren Wilson.

Since then, a series of killings by police of young black men, from Eric Garner to Tamir Rice, Walter Scott, Jonathan Ferrell, Samuel DuBose, Freddie Gray, Laquan McDonald and others, have accomplished something that decades of allegations, before there was video to eliminate the inherent doubt, failed to do.  Cops kill blacks without justification and in grossly disproportionate numbers. One can quibble over details, but there’s no argument to be made that the body in the street isn’t dead.

Video gave rise to traction that never before existed.  It’s not that it didn’t happen before, but that no one believed it.  Video changed that. The excuses didn’t work when we could see for ourselves that they were lies.

For those of us who were constrained to argue to judges that the impossible was real, that sometimes cops just killed for no good reason, this changed things. Not everything, as the dead were still dead, but at least it was undeniable that the usual excuse (“why would a cop do such a terrible thing if he didn’t have to?”) was no longer good enough. Continue reading →

When Eastern District of New York Magistrate Judge James Orenstein issued his opinion, that the government couldn’t use the All Writs Act to compel Apple to create the backdoor it so desperately wanted, cheers could be heard across the internet. After all, with the same issue pending on the left coast, certainly Mag. Orenstein’s decision, fortuitously issued while the case was pending before Mag. Sheri Pym, would surely weigh heavily on the outcome.

As amici flooded in to the courthouse in support of Apple, most offering nothing more than “me too” or “Apple is so right,” under the current regime that weight of authority refers to actual heft, the government realized it had been out-maneuvered by the issuance of Mag. Orenstein’s opinion, which, unlike the “me too” briefs, offered serious and persuasive analysis.  The government hates to be out-maneuvered, so after crying in their beers after work on the day Orenstein’s decision was issued, they got back to work.

The government has now. one week to the day, moved the district court judge assigned the case to reject Mag. Orenstein’s decision.  And its 51-page memorandum of law is a masterpiece of understatement.

This is a routine application asking the Court to order a third party to assist in the execution of a search warrant. The Department of Justice has made the same application, for the same assistance, from the same company, dozens of times before. Federal courts around the nation have granted these applications. The company has complied every time. Until now.

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Can a cop be funny?  Apparently so. It doesn’t hurt that he’s a cop in Buffalo, given that the best way of surviving Buffalo is to have a really good sense of humor.  And yet, that wasn’t shared by Police Commissioner Daniel Derenda.

Move aside, “Saturday Night Live” cast members. Buffalo Police Officer Richard N. Hy’s comedic star is rising.

His outrageous and sometimes crude “Angry Cops” social media videos – aimed at humanizing police by showing that they, too, have a sense of humor – have been viewed more than 6.5 million times and he has more than 22,700 followers.

Unfortunately for him, his humor has cost him his job, at least temporarily, as he has been suspended without pay for a month and brought up on disciplinary charges.

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Marketing guru Seth Godin has an amazing ability to reduce troublesome notions into bite-sized chunks, easily digestible for those with an attention span of 8 seconds or less.  That, of course, is what good marketing is about, but more importantly, it provides a better quality fortune cookie answer to deeper questions.

He’s done it again about saying the word few of us want to say.

• If you’re not proud of it, don’t serve it.
• If you can’t do a good job, don’t take it on.
• If it’s going to distract you from the work that truly matters, pass.
• If you don’t know why they want you to do this, ask.
• If you need to hide it from your mom, reconsider.
• If it benefits you but not the people you care about, decline.
• If you’re going along with the crowd, that’s not enough.
• If it creates a habit that costs you in the long run, don’t start.
• If it doesn’t move you forward, hesitate then walk away.

The small inconsistencies notwithstanding, as well as the inexplicable inclusion of “hesitate” in the final bite, there is an important point in there for lawyers, particularly given the proclivity of some to test the water by putting in the minimum possible effort and waiting to see whether it’s good enough. Continue reading →

It may sound crazy today, but there was once a time when Sheriff Andy would put Otis, the town drunk, into a cell to sleep it off. Then send him on his way. Drinking alcohol may not have been a source of great pride, but it was something regular folks did. And sometimes, they drove after a few beers.  And sometimes, they were stopped by a cop.

It was hardly unusual, back then, when a drunk driver was stopped that a police officer would take the driver home to sleep it off. That was before MADD and SADD made drunk driving so BADD that it was tantamount to murder. This isn’t to suggest that drunk driving is no big deal, or should have been treated so lightly, but that it didn’t carry the stigma of venality that it does today.

These were otherwise ordinary people who just had one (or ten) too many. Sober, they were law abiding, productive members of society, with families and mortgages, jobs and lawns to mow. They were us. Just too drunk to drive.

Those days are long gone, and perhaps rightly so, although the vilification of drunk drivers emphasizes only the harm they could potentially cause, while ignoring the fact that pretty much anybody could turn from good neighbor to public enemy in an evening without any intention of harming anyone. Continue reading →

UCLA law prof Stephen Bainbridge revealed an internal email sent by the school’s chancellor to all faculty.  The email alerted faculty that they were, under new policy, “responsible employees” to report sexual harassment and sexual violence.  Or to be less officious, profs were now the campus snitches.  Bainbridge was not pleased with his new duty.

The new policy strikes me as problematic in several ways. First, I resent being drafted into the Title IX cops, especially given the very legitimate critiques of university policies in this area. Suppose I think that UCLA’s definition of sexual harassment is too broad (as many are) or I think UCLA’s policy for handling complaints in this area lacks due process (as many do). Requiring me to become an informer despite those concerns strikes me as a serious abuse of academic and personal freedom.

Are academics adorable or what?  Fighting losing battles as they’re conscripted into an ideology army that has already consumed higher education. Is the war really lost? Can the Title IX genie be put back in the bottle.  Well, perhaps, but then there’s this*. Continue reading →

One of the more problematic mechanisms of argumentation is the laundry list, the lengthy list proffered in support of a position by its advocate in an effort to demonstrate two related points: first, that the target of the argument is nothing new, and second, that there is a wealth of support for the line of reasoning, if not the particular application, of the argument.

What makes this method a problem is that the advocate, tendering the laundry list, has had ample opportunity to put it together, while the person arguing against it is often left with little to no time to parse the list, separate the individual items on the list, research the specifics of the list and test whether it’s in fact correct and that the rationale for each item on the list is, as claimed, relevant to the argument then being made.

It’s also a problem that a list has surface appeal, so the absence of being able to individually address each item on the list leaves the decision-maker with the superficial sense that the list has some merit.

Beware the laundry list. Its use as a rhetorical device invariably conceals its failure of support. If there was direct logical support for the proposition for which it’s being offered, the advocate wouldn’t need to throw everything against the wall, but would focus on the specific argument that conclusively demonstrates the propriety of the position.  Continue reading →

Harvard Law School has decided to rid itself of its crest, because it’s “based on the coat of arms of Isaac Royall, Jr., a New England slaveowner whose will endowed Harvard’s first law chair.”  The forces of tradition have made the reasoned decision not to fight. It’s a friggin’ crest. It’s just not worth the effort to oppose it, and so (subject to approval by the ignominious “corporation”) the eradication of the slaveowning Royalls from HLS has prevailed.

The controversy has become the most serious conversation about race and wheat since a black man creamed it. This morning, it looks like the forces of change got their way.

Not even Elie Mystal misses the empty symbolism here, but if it makes the children happy, good on them.

But while Princeton ponders the value of ridding its campus of the harsh sound of the 28th president’s name, Stanford is busy trying to figure out the new rules of social justice naming. Continue reading →

Mario’s boy, Andy Cuomo, has taken to the airwaves to rally the support of the public to his initiative to increase the minimum wage to $15 an hour.  The argument in support is pretty straightforward: people need to eat.  And human experience suggests that Andy may be right about that.

And never one to pass on the opportunity to promote a populist cause that sails over the heads of its beneficiaries, the New York Times chimes in with its support. This is neither new nor surprising, as it previously offered an editorial in favor of a federal $15 minimum wage. This time, it’s the New York state of mind:

The lowest-wage workers in New York could soon get a much-needed raise — if the stingy Republicans who control the State Senate don’t block it.

What? You didn’t think they would pass up the chance to call Republicans stingy? Continue reading →

In the scheme of people denied right to effective assistance of counsel, they tend to fall through cracks. We give enormous attention to the poor, who are denied competent counsel at trial, only to spend millions to fight their pending execution after it’s too late. Sure, death is different. But life ain’t so great either when you’re a kid in court by yourself.

Toddlers. Three to four-year-olds who are subject to deportation proceedings. But it’s happening.

Although a network of pro bono organizations and a Justice Department program try to help children find attorneys — some paid for by the government — many children are forced to fend for themselves. According to Justice Department figures, 42 percent of the more than 20,000 unaccompanied children involved in deportation proceedings completed between July 2014 and late December had no attorney. It is unclear how often children 5 or under are forced to defend themselves, but attorneys and advocates for immigrants said it does happen.

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