At least SCOTX Justice Don Willett twitted, even if it was more about being cute and witty than substantive. He was out there, seeing, if not quite addressing, the insanity that spews through social media. But what of the Notorious RBG, who almost fell from the pantheon of social justice icons when she didn’t know who Colin Kaepernick was?

Glenn Reynolds distinguishes the view of ‘Merica of a co-equal branch of government consisting of nine people, one of whom wears a doily around her neck, from the others who have to occasionally tolerate the groundlings.

One of the best formulations of this division comes from photographer Chris Arnade, who has spent years documenting the lives of America’s forgotten classes. In his characterization, America is split between the “Front Row Kids” — who did well in school; moved to managerial, financial or political jobs; and see themselves as the natural rulers of their fellow citizens — and the “Back Row Kids,” who placed less emphasis on school; and who resent the pretensions and bossiness of the Front Row Kids.

Supreme Court justices, by definition, possess the characteristics of the elites, and it started with their being front row kids. You don’t end up at Harvard Law School by staring out the window praying the teacher won’t call on you. You’re the kid with the hand raised every time, who wants to sit in the front row to be closer to god than thee. Continue reading →

O’Reilly paid $32 million to settle a harassment claim? That’s an astounding amount of money. The New York Times based its assertion on sources, because sources are the best sources.

Details of the settlement and how the company handled the O’Reilly situation emerged from interviews with two people briefed on the agreement and several others familiar with the dispute; all of them spoke on the condition of anonymity to discuss sensitive private negotiations.

O’Reilly’s spokesman, Mark Fabiani, “denounced” the Times’ article.

“Once again, The New York Times has maliciously smeared Bill O’Reilly, this time even failing to print a sworn affidavit from his former lawyer, Lis Wiehl, repudiating all allegations against Bill O’Reilly,” wrote Fabiani. “The Times ignored that evidence, sworn under oath, and chose to rely on unsubstantiated allegations, anonymous sources and incomplete leaked or stolen documents.”

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There are some people who, for reasons that completely elude me, choose to involve handcuffs in their sexual encounters. Anna Chambers did not.

The young woman, who goes by the name “Anna Chambers” on social media but is withholding her legal name, says that on September 15, she and two male friends were driving near Brighton Beach. They were pulled over by the undercover detectives for being in a park after closing time, and their car was searched. The police found drugs in a bag next to Chambers; one friend was also found with pills on his person. The cops handcuffed only Chambers and drove her away in an unmarked van.

The teen alleges that the police drove to a nearby Chipotle parking lot and then, while she remained handcuffed, forced her to perform oral sex on them. One officer, she said, then raped her before leaving her on a street corner near the 60th Precinct. According to her attorney, she went to a hospital that night and was given a rape kit. Law enforcement sources told the New York Post that DNA found on Chambers matched the two officers, a fact confirmed by the teen’s attorney.

The two cops, Brooklyn South narcotics detectives Richard Hall and Edward Martins, don’t deny the sex with the 18-year-old. Their defense is that it was consensual. In the usual way a cuffed arrestee in the back of a Brooklyn South narco van consents to sex with two cops. Continue reading →

It began with the great feminist legal philosopher, Alyssa Milano, former child actress on “Who’s The Boss?” Following disclosures of the repulsive Harvey Weinstein’s sexual assault, even rapes, by a few brave women, and subsequent confirmation by an array of female actresses who had been silent for years, even decades, while enjoying the benefits of stardom, it morphed by Chaos Theory into some version of all men are Harveys.

But how to prove it? Milano came up with the hashtag campaign, #metoo.

Heeding a call from actress Alyssa Milano, people have been tweeting ‘#MeToo’ in order to raise awareness about how many women have allegedly experienced sexual harassment. ‘It’s not just one monster’, Guardian columnist Suzanne Moore wrote. ‘“Me too” reveals the ubiquity of sexual assault.’

As with all social-media trends, it’s hard to know what is true and what is exaggeration. #MeToo is particularly tricky to judge. Some have tweeted about actual experiences, ranging from being whistled at to being sexually assaulted. Others have simply said ‘me too’, leaving the rest to the imagination. Some have argued that they don’t need to say what happened to them, and insist that asking women to prove they were harassed is a kind of victim-blaming. One journalist tweeted: ‘Reminder that if a woman didn’t post #MeToo, it doesn’t mean she wasn’t sexually assaulted or harassed. Survivors don’t owe you their story.’

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Michael Goodwin was weaned on Abe Rosenthal’s New York Times, rising to City Hall Bureau Chief before becoming Executive Editor of the Daily News and, now, chief political columnist for the New York Post. He’s been around, so when he says this, it comes from experience:

It’s not exactly breaking news that most journalists lean left. I used to do that myself. I grew up at The New York Times, so I’m familiar with the species. For most of the media, bias grew out of the social revolution of the 1960s and ’70s. Fueled by the civil rights and anti-Vietnam War movements, the media jumped on the anti-authority bandwagon writ large. The deal was sealed with Watergate, when journalism was viewed as more trusted than government—and far more exciting and glamorous. Think Robert Redford in All the President’s Men. Ever since, young people became journalists because they wanted to be the next Woodward and Bernstein, find a Deep Throat, and bring down a president. Of course, most of them only wanted to bring down a Republican president. That’s because liberalism is baked into the journalism cake.

This is the sort of statement that really needs context, as the left-leaning of the Nixon era wasn’t the same left as today. There were similarities, of course, in that Nixon was viewed as inherently evil and must be taken down. The lives of young men in Viet Nam depended on it, so the platitudes were born. Continue reading →

There was always that one kid in class who raised his hand to answer every question the professor asked. Everybody hated that kid. And despite the appearance that he was about to have a humiliating bowel experience, the teacher rarely called on him, knowing that he would monopolize the class if given the opportunity. The prof’s eyes scanned the classroom: anybody? Anybody but him?

A Penn grad student opened the floodgates of fury when she twitted about her version of a teaching methodology called “progressive stacking.”

The twit has since been deleted, the account locked. Stephanie McKellop taught a sliver of history at Penn, and was the caricature of the woke teacher. Continue reading →

My old pal, Kevin O’Keefe, built a business around the blawgosphere during its heyday called LexBlog. He worked hard at it, and pushed lawyers to see the virtues of blawging, a word reflecting the intersection of law and blogging which enjoyed some serious interest for a brief and wonderful time. That time is largely past, and I remain one of the few lawyers who have yet to realize that I should hang up my blog and move on.

But Kevin’s still at it. There are, somewhere out there floating in the mist, thousands of law blogs. You won’t know they exist, as they’re mostly marketing tools, quickly abandoned when lawyers come to the realization that they don’t bring them fabulous fame and wealth. Writing takes effort and desire. Most people just don’t have the chops or interest in doing it. Some suck at it. Some aren’t nearly as fascinating as they think they are.

And then there are the alternatives, twitter, facebook, snapchat, which requires no intelligence and takes no effort. Twitter was initially touted as “microblogging,” which was ridiculous but reflected our willingness to forego thought in favor of ease. Ease won by a landslide.

So what’s to be done when your business is based on a moribund concept like blogging?  Continue reading →

Police body cams were going to fix everything. I began the “but for video” posts as it became clear that people, particularly judges and prosecutors, were now seeing what defense lawyers had been telling them was happening forever. Cops beat people. Cops killed people. Sometimes it was an excessive use of force. Sometimes, it was for no reason at all.

They always denied it happened, rejected what we told them. “Why would Officer Jones beat your client?” Hell if I knew, but he did. With video, we now know it happened. Not in every case. Not every cop. But some, and sometimes. It happens. It can no longer be denied. The question of “why?” was now better posed to the cop doing the beating or shooting rather than a demand of the defense to explain such a ridiculous and unprovable accusation.

Some thought the videos would cure the disease. They were certain that it would be the fix to this problem, because how crazy could a cop be to tune up a perp for kicks knowing it was being caught on video? Others, myself included, never believed it would be the penicillin panacea. It would help, perhaps alleviate some of the symptoms, but the disease would still fester. The First Rules of Policing would remain intact. Qualified immunity, union rules and the blue wall would protect them

As it turns out, it appears that body cams have done less than expected. Continue reading →

The Green Bag is an inside baseball thing for legal writers. It’s fun. It’s funny, and it’s pretty cool to be honored for exemplary legal writing. Even if it’s just a twit.

Exemplary Legal Writing

2016 Honorees

Our new panel of luminaries and sages has selected the following works as exemplars of good legal writing from 2016. All of them (except for the books) will appear in the 2017 Almanac & Reader. Congratulations to all. Continue reading →

During a keynote speech at Cato’s Criminal Justice at a Crossroads conference, former federal judge for the Middle District of Tennessee, Kevin Sharp, spoke of why he resigned his life-tenured post: he just couldn’t continue to impose outrageous sentences on defendants because the law stole his authority and forced him to do so.

Everyone in the room understood. Everyone in the room felt inspired by what Kevin Sharp had to say, and the personal hit he took by walking away. But for one person in the room, it wasn’t  quite good enough. There are things that can be done by a sitting judge that can’t be done by anyone else. By resigning, no one was saved. If Judge Sharp didn’t impose the Draconian sentence, someone else would. But Judge Sharp can raise hell about it. Kevin Sharp cannot.

Judge Jack Weinstein sits in the Eastern District of New York. He’s never going to be appointed to the Second Circuit or the Supreme Court. He’s got nowhere to go. He’s got nothing to lose. And he’s not going to waste his bench.

A federal judge in Brooklyn has told the city to prepare for a court hearing regarding the prevalence of lying by New York City police officers and whether the New York Police Department has done too little to discipline officers who testify falsely. Continue reading →