The push to eliminate qualified immunity as a defense to violation of a person’s constitutional rights by a government actor is beginning to bear fruit, which is great. It’s not that there is no rationale supporting it, or that it hasn’t been grossy oversold as the “cure” to police misconduct, but the doctrine was imposed by judicial fiat by the Supreme Court in Harlow v. Fitzgerald in 1982 has allowed flagrant violations of constitutional right to go unremedied. A right without a remedy is no right at all.

The Supreme Court made matters worse in Pearson v. Callahan, where the Court held that a court need not decide whether conduct violated a constitutional right before granting QI on the basis that the right in issue was not “clearly established.” It then made matters worse again in  White v. Pauly, where the Court required a level of exactitude to establish that conduct violated “clearly established law” as to allow a court to seize upon the most minute and quasi-relevant detail to distinguish the case at bar and allow the defense. Continue reading →

Georgia Governor Brian Kemp, who was liked when he refused to play ball with Trump, is now back to being hated again for having signed a new voting bill that Biden called “UnAmerican” and “sick.”

Georgia Gov. Brian Kemp drew protests Thursday as he signed into law a sweeping Republican-sponsored overhaul of state elections that includes new restrictions on voting by mail and greater legislative control over how elections are run.

Democrats and voting rights groups say the law will disproportionately disenfranchise voters of color.

Continue reading →

It’s normal for the media to give a new president a “honeymoon,” a chance to get his house in order and establish a plan of what he hopes to accomplish and how he plans to do it. Granted, Trump never got a honeymoon, but then, he never had a plan and was given what he gave. Biden, however, is different again. He’s whirling and spinning, massive plans at massive costs justified by massive claims of massive problems.

And nobody in the media seems to seriously question any of it. Continue reading →

Years ago, I went to a panel discussion held by Above the Law and sat next to Elie Mystal’s wife. Christine. She was great. Funny, smart, delightful, and far more fun than Elie. Not that Elie isn’t fun. He is. Not only is he one of the funniest guys I know, but comes up with these zingers that just leave me rolling on the floor.

Back when Elie was at ATL, and ATL still had comments, some of the jerks would beat on him mercilessly. He told he was tough enough to take it, but it pissed me off and I said so. I thought enough of Elie that back when I was doing Cross for Fault Lines, he was one of my targets. I liked Elie before it was cool. Continue reading →

Who’s the best known baker in America? Duff Goldman? That Buddy guy from Jersey? Or is it Jack Phillips? You remember Phillips, the owner of Colorado’s Masterpiece Cake Shop, who took his case to the Supreme Court when he refused to bake a wedding cake for a gay couple? He won, but not really, as the Court punted on the big issue of whether he could be compelled to bake a cake when its purchasers, its purpose, conflicted with his beliefs.

This gave rise to two problems. The first is that the issue raised by the case went unanswered. The second is that it left Phillips with a target on his back. Continue reading →

Maybe the problem is that women don’t commit as many crimes as men, or are treated far more leniently than men in the system, but if a women is prosecuted for a crime, and lacks the ability to afford an attorney to represent her, Gideon has her covered as it does anyone in the criminal legal system. Fair? Not fair enough, as argued by Jessica Steinberg and Kathryn A. Sabbeth in their law review article, The Gender of Gideon.

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. Continue reading →

It hasn’t been easy being an Asian American over the past decade, knowing that you’re expected to be an obsequious supporter of social justice as a marginalized minority while simultaneously being treated like dirt for working hard, doing well and ending the target of discrimination by the very passionate folks who demand your obedience.

As anti-Asian violence increased, it was hard to address since the perpetrators were mostly the same marginalized people who you were required to adore as they beat you, but you weren’t allowed to mention that it was black and brown guys beating old Asian people* because oppressed people can do no wrong and beating is reparations anyway. Let’s face it, Asians made them look bad, so how could they not be forgiven for beating Asians? Continue reading →

The military has a problem.

Some troops have drawn equivalencies between the Jan. 6 riot at the U.S. Capitol and last year’s protests for racial justice during recent stand-downs to address extremism, worrying the military’s top enlisted leader.

In a Thursday briefing with reporters at the Pentagon, Ramón “CZ” Colón-López, the senior enlisted adviser to the chairman of the Joint Chiefs of Staff, said that some troops have asked, when the Jan. 6 riot is brought up, “How come you’re not looking at the situation that was going on in Seattle prior to that?”

Continue reading →

Is there more to the Butterfly Theory than meets the eye of the logically challenged and intellectually dishonest? Jessica Valenti argues that the mass murder in Altanta confirms her priors about white men murdering women of color because of religion, as that’s the only tune she’s capable of playing. If neither facts nor logic play any role, and one is never pressed to actually show their work to back up their hysteria, aren’t they allowed “their truth”?

But the sudden concern for animus against Asians, which has yet to reach the inner sanctum of elite colleges refusing to admit curve-busting Asians based on their qualifications rather than let them take seats away from applicants who wouldn’t otherwise make the cut. has not only given rise to a new reason to blame white supremacy, even if most anti-Asian violence is committed by people who aren’t very white at all, but has sanitized criticism of a foreign nation. China, still communist after all these years, as the people of Hong Kong found out, is now off limits. Continue reading →

Ed. Note: Below is part two of the debate, with Miami criminal defense lawyer David Oscar Markus‘ response to Atlanta’s Andrew Fleischman’s post, In the Criminal Justice System, Wealth Is A Huge Advantage.

The criminal justice system crushes people.  Men and women.  Black and white.  Rich and poor.  A federal criminal case impacts your liberty, your family, your finances, your mental health, and every other aspect of your life whether you are rich or poor.  Each broad category of defendants faces their own hurdles in the system.  There is no question that poor defendants face enormous challenges in trying to mount an effective defense again a government with unlimited resources, what Andrew rightly calls “a bit like [fighting] a grizzly bear.”  There’s an unfortunate perception out there, however, that the governmental grizzly bear isn’t as interested in gobbling up the rich.  But that perception is wrong.  This particular bear loves plump and shiny prey.

Let me briefly explain some of the disadvantages that rich, well-known defendants face in the system: Continue reading →