There have long been some laws that, in a different universe, raise problems that really can’t be reconciled with constitutional rights. Rent control, for one example. What authority does the government have to tell a landlord what rent he can charge a tenant? Anti-discrimination is another example. While the government can’t discriminate, what authority does the government have to tell individuals they can’t do so?

Of course, we acknowledge that these laws lead to a common good and so we indulge some legal legerdemain to rationalize why it’s okay for the government to tell private individuals and businesses how to function. We hitch the wagons to things like commerce and public access, and stretch connections to their breaking point and beyond to achieve goals we find desirable. This isn’t a discussion about whether laws prohibiting discrimination are bad, but what authority the government has to dictate the terms and conditions of citizenship and commerce. Continue reading →

Granted, any Supreme Court opinion that begins, “JUSTICE ALITO delivered the opinion of the Court,” is presumptively going to be bad. And the hot commentary that followed on the heels of the issuance of Brnovich v. DNC certainly saw it that way. At Vanity Fair, Cristian Farias wrote that it was “devastating,” and put the Voting Rights Act on “life support.” In the New York Times, prawf Rick Hasen wrote that it put “democracy at risk.”

But my old pal Elie Mystal, in his inimitable way, laid it on the line in The Nation. Continue reading →

Trans women are women is a fine mantra, but it comes with some baggage. When the issue was perceived as who gets to use what bathroom, some of the baggage was shrugged off. After all, women’s bathrooms have stalls, and stalls have doors, and who cares anyway? Fair enough. But it was never about women’s bathrooms, which unsurprisingly eluded some people. That doesn’t make it righter or wronger, but more unclear, as a woman learned at Wi Spa in Los Angeles.*

A woman confronted the staff at the Wi Spa in Los Angeles after a man walked into the women's section with his genitals hanging out in front of girls. He identified as a "woman." The employees said he had a right to do that. The employees say that it's the law.

Part 1 pic.twitter.com/m1VbU0WU6A

— Ian Miles Cheong (@stillgray) June 27, 2021

To be fair, it wasn’t the spa’s choice, as it merely complied with California’s anti-discrimination law that prohibited discrimination against transgender people. Continue reading →

Having been out to Southold, I’ve seen the old potato (sorry, Dan Quayle) truck with the American flag painted on its side.

It’s been there a long time. But its message today is ominous. Continue reading →

Perhaps there is a sound reason why athletes who test positive for marijuana are not allowed to compete in the Olympics. It’s not a performance enhancing drug. If anything, it would seem to be counterproductive to athletic competition. It could be argued that it relieves pain, but so do other drugs that aren’t banned. It’s likely just that pot has been illegal and so found its way on the list of banned substances. More along the lines of “Olympic athletes don’t use illegal drugs,” even if it really isn’t germane to their being athletes or winning.

Now that it’s legal to use, at least in some places, it might be time to revisit whether it should remain a banned substance. But until the rules change, marijuana remains a banned substance, and there is no Olympic-level competitor who does not know what the rules under which they compete are, and what violation of those rules means. So complain about how dumb the rule is all you want, and it is, but there is nothing unfair, and certainly nothing racist, about the rules being enforced. Continue reading →

For some, the only thing that matters is whether the “non-germane” causes to which the State Bar of Texas, or anywhere else for that matter, are “good.” Agree with the bar using its juice to push for a cause and, well, what could be wrong? So what if it has nothing to do with the purposes for which the bar association exists, the regulation of lawyers and the improvement of the quality of legal services. After all, aren’t lawyers supposed to stand for truth, justice and the American way?

In McDonald v. Longley, the Fifth Circuit said no. If you want to join your brethren (sistren?) at the bar in supporting a cause, by all means do so. Form a group. Charge dues if you want. Send letters, write laws, march in circles. Do whatever you want to do. But what you cannot, you should not, do is make that a cause of a state mandatory bar association, to which every lawyer must be a member and pay dues if they want to be licensed to practice law in that state, if it is not germane to the purpose for which the bar association’s authority to compel membership and payment exists. Continue reading →

There’s an old tale among bartenders.

According to those of the profession, the Devil picks a watering hole at random when the Lord of Lies desires a drink. He’s not picky.

He always appears at closing and is an especially insufferable patron. The upside of the encounter is the bartender who survives gets quite the tip: they’ll never have to work again.

If you, dear reader, should find yourself serving the Devil a highball, keep one crucial fact in mind: he’s got a fondness for artisanal pretzels. Continue reading →

Six years in San Quentin and a stabbing passed before Jamal Trulove was retried and acquitted. In his second trial, the prosecutor wasn’t allowed to lie. The jury found Trulove not guilty. But Linda Allen lied in his first trial, and that cost him six years in San Quentin and a stabbing. It’s not that he was acquitted that makes her a liar, although that certainly demonstrates the significance of her lies at the first trial. It’s that the Court of Appeals said so.

[T]he California Court of Appeal ruled that Allen committed “egregious” and “highly prejudicial” prosecutorial misconduct in the Trulove murder trial because Allen presented a closing argument that was a “yarn [] made out of whole cloth.”

Continue reading →

If you start from a place of guilt, that the once-beloved Bill Cosby was a serial rapist, as an indisputable fact, it makes the decision of the Pennsylvania Supreme Court hard to swallow. There are the usual cries of ludicrous conspiracy-type excuses, that it was money, the fix was in, the patriarchy. But the challenge is understanding two things. First, the case was extremely weak on the facts alone, which was why it wasn’t brought until after the paradigm shift of #MeToo substantially altered people’s belief system about sexual assault so that a prosecution that never would have survived twenty years ago was viable then.

The second was that even so, the prosecution still needed to play fast and loose with the law to get a conviction. Between the five propensity witnesses and the allowance of an unqualified “expert” Rape ‘Splainer. the trial was so front-loaded against the defendant, to the applause and appreciation of the choir that couldn’t care less about anything other than conviction because this was a sex crime, and men must always be convicted when accused of a sex crime, no matter what. Continue reading →

The big push a few years ago was the emergence of organized advocates for juror nullification. There were sincere and serious arguments that the ability of a jury to nullify a conviction was not merely permitted by law, but a foundation of the jury system. Yet judges instructed juries that they are to apply the law as given them by the court and not let emotion stay them from their duty.

Of course, one aspect of nullification its advocates never really appreciated is that if jurors believed themselves entitled to ignore law, the outcome might well be that they ignored doctrinal instructions like the presumption of innocence or the burden of proof and convict for reasons less savory than there was no reasonable doubt the defendant committed the crime. The assumption that nullifying jurors would always side with the defense might have been a bit naive. Continue reading →