It was maybe ten years ago, sitting in a Greek restaurant on the west side of town, eating lunch with Radley Balko, when we talked about how one keeps one’s sanity when one’s job is trying to survive a system that’s stacked against you.

“I make jokes about it.”

“Gallows humor,” Radley replied.

“Exactly. What else can you do? Crying about it won’t change it. You just keep fighting, and so I make jokes.”

You can’t do that anymore. You can’t make jokes about taboo subjects that aren’t funny, which may well be why too many young lawyers are filled with anger, are depressed, and struggle to cope with the life they chose. Continue reading →

Bernie Sanders is out, which doesn’t come as a surprise given that his campaign was doomed to fail except for Bernie’s refusal to accept the notion that he will never be more than a footnote in a socialist history book. Yet, in the minds of his followers, this miraculously gives him greater power than he ever had as a candidate, and they are now flexing their might to make the presumptive Dem candidate, Joe Biden, bend to their will. Will Biden be Bernie’s Bitch?

Bernie Sanders has ended his campaign for the Democratic presidential nomination, which is a tragedy, because he was right about virtually everything. He was right from the very beginning, when he advocated a total overhaul of the American health care system in the 1970s. He remains right now, as a pandemic stresses the meager resources of millions of citizens to their breaking point, and possibly to their death. He was right when he seemed to be the only alarmist in a political climate of complacency. He is right now that he’s the only politician  unsurprised to see drug companies profiteering from a lethal plague with Congress’s help. In politics, as in life, being right isn’t necessarily rewarded. But at least there’s some dignity in it.

If he was so right, why didn’t he beat Biden? Berniebros will argue that the campaign was rigged, that olds just didn’t get it, that Bernie was, well, Bernie. Continue reading →

The irony is overwhelming, starting with the fact that Joe Biden, despite his many other flaws, has played a lead role in perpetrating discrimination on the basis of sex that’s both obvious and express to everyone except Article III judges. As vice president, he traversed the nation to inform men that “it’s on us” to stop raping, to stop our buddies from raping, women, because men are perps and women are victims.

It was one thing to argue that rape ended at the non-consensual sniffing of hair from behind, but in this digital world, how does one ignore an accusation about Biden’s digits? Continue reading →

Can Rhode Island state troopers really, lawfully, constitutionally, pull over drivers for no better reason than their car has New York license plates? Whatever happened to due process? What about the Privileges and Immunities Clause, you cry? There are two answers to these and similar questions, the first being the one you want and the second being the real one.

Most jurisdictions give significant latitude to emergency orders by the executive to manage an emergency. Not a thing someone calls an emergency, like a vanity wall, but a legit emergency. Immediate survival ranks high on reasons to turn a blind eye toward civil rights.

If you’re wondering if New York City Mayor Bill de Blasio really means “draft” when he calls for drafting medical personnel from around the U.S. to care for COVID-10[?] patients in his hard-hit city, the answer is an unequivocal “yes.” He really does want to drag doctors and nurses from their jobs elsewhere to assigned positions in New York City.

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It seems like it was only a week ago that Dr. Deborah Birx told us to expect 100,000 to 240,000 deaths from COVID-19. Yet here we are, with a total (as of this moment) of 10,493 deaths, hardly inconsequential, but hardly in the hundreds of thousands. Whether it was the product of exaggerated fears, a good response by government or the effectiveness of social distancing is a discussion best left to reddit, but two things happened to reflect a paradigm shift.

First, the Dow rose 7.73% yesterday, reflecting the market’s belief that the worst is in the past and we’re now looking forward. Second, the New York Times is now offering a ‘splainer about how we’ll know when it’s over. Playing the “experts say” game, the Times provides “four benchmarks.” Continue reading →

Having addressed many times the unfortunate difference between the aspirational goals of arbitration and the way in which it’s played out — which, by the way, should serve as an apocryphal tale of all the glorious ideas that are doomed to fail because of our denial that people are, and will always be, people — there is a certain sense of schadenfreude about FairShake’s burning the system down.

Teel Lidow couldn’t quite believe the numbers. Over the past few years, the nation’s largest telecom companies, like Comcast and AT&T, have had a combined 330 million customers. Yet annually an average of just 30 people took the companies to arbitration, the forum where millions of Americans are forced to hash out legal disputes with corporations.

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I vaguely remember when “Making A Murderer” appeared out of nowhere, and people would ask me what I thought. My answer was “not much.” While the arguments raised to suggest how Steven Avery was railroaded might be novel to outsiders, they were fairly banal as far as I was concerned. These were the usual arguments made at trial, and they almost invariably got crushed when the jury returned a guilty verdict.

But to the unwashed, they were novel and shocking. So why did they capture public interest and attention, why were they so much more persuasive in a show than they were in real life? The first reason is obvious: shows present only one side of the argument, and they present them in a way that creates the appearance that there could be no reasonable doubt as to their truth. Continue reading →

At oral argument in Doe v. University of Sciences before the Third Circuit, an issue that gets only tangential consideration was front and center: Can the schools using the “single investigator” model for Title IX sexual determinations suffice as a fundamentally fair method? KC Johnson provides the background to the case.

In the Sciences case, two students—sorority sisters—filed Title IX claims alleging that the accused student had sexually assaulted them (in different incidents, both of which occurred many months before the reports). The first accuser appears to have persuaded the second accuser to file. Although the University of the Sciences promises fairness in its investigations, it employs a single-investigator model; the same person handled both allegations. After interviewing the parties, she returned a guilty finding; Doe appealed but was expelled halfway through his senior year.

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I’m informed that one of Trump’s most endearing qualities is that he says out loud what no one else would be foolish enough to admit. One such admission involves voting.

If election day was a national holiday, no Republican would ever be elected again? Because too many people would vote? Continue reading →

As law school closings smacked prawfs and law students in the head, schools scrambled to figure out a way to make school work essentially overnight. Zoom ended up as the most likely, and hence most used, app of the moment. At the moment, it was unclear how long this would last, how serious it would be and what alternatives were available. As some prawf friends questioned how they were going to pull this off, there was only one answer and it was obvious: the best you can.

In an emergency, you make do. Prawfs weren’t prepared for online teaching (or distance learning, as some prefer as it sounds less unseemly), but they’re trying. Josh Blackman has been chronicling his experience, which is somewhat unfair as he’s young, a digital native and finds this more “intuitive” than some of his, ahem, more senior colleagues. But on the whole, he says it’s going well. Continue reading →