Not long ago, one of the lawyers involved in the transgender litigation twitted that he could not be civil to his opposing counsel. The reason was clear: his adversary denied his existence. The lawyer was transgender and the issue was about the rights of transgender people, and the opposing counsel argued against the position taken by the transgender lawyer. This was was white supremacy. This was transphobia. This was evil, and he could not, would not, be civil to someone who was evil.

Ari Cohen, formerly of FIRE, twitted a thread of advice to baby lawyers about civility.

Baby lawyers: if your mentor is a jackass to opposing counsel (or OC’s staff) for no good reason, find a new mentor yesterday.

I’ve had many strenuous disagreements with OC, and have snarked about a claim or two. But I’ve never found it hard to treat OC like a human being. Continue reading →

In concurring in the denial of cert., Justice Clarence Thomas, joined by Sam Alito, seized upon the opportunity to present his views on the conflict between religious liberty, a right expressly protected under the First Amendment, and the “right to same-sex marriage,” which he describes as “read into the Fourteenth Amendment” in Obergefell v. Hodges.

Several Members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs.

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As a general matter, the crime of “obstruction of justice” is one of those vague charges too often used as an excuse to arrest someone for doing nothing more than annoying a cop, whether by not following an unlawful command or just being there when a cop decides to flex his inadequacies. But then, that doesn’t mean obstruction doesn’t happen.

It might not come on the radar of people who aren’t part of the anti-police activist community and/or don’t live in Portlandia, but the protests persist out west. Part of the “mostly peaceful” protests includes doing whatever they can to impede the police in the performance of their duty, from swarming on a cop car to body-checking officers, things that once brought down the understandable wrath of police but now barely register. Continue reading →

The slogan that immediately comes to mind is “the enemy of my enemy is my friend,” but as Cathy Young explains, it ain’t necessarily so. After President Trump signed an Executive Order prohibiting “race and sexual stereotyping” for federal employees and contractors, opponents praised the effort, even if not otherwise fans of Trump.

But if one agrees that these trainings are bad and often toxic, even if some of them aren’t quite as terrible as reported — at best, studies seem to show that they are ineffective — does that mean Trump’s order to stamp them out in the federal workforce is a victory?

There are several good reasons the answer is no.

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There is nothing new or novel about the fact that a fired cop will grieve his termination and the case will go to arbitration. There is nothing new or novel about the fact that the arbitrator (or three-member panel, as it’s usually constituted), based on the precedent of how the police department dealt with other cops before, will determine whether to sustain or reverse the termination.

What is new and novel is that the New York Times managed to pen an entire editorial calling for the end of this process without ever noting the real reason why this happens.

These cases also demoralize mayors and police chiefs who have worked hard to remove problem officers, only to face orders from unelected arbitrators to give those abusive officers their badges and guns back. It doesn’t matter how much a police department overhauls its use of force policy, or how strictly a police chief enforces those new rules if unelected arbitrators reverse the punishments of officers who violate the rules.

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It was going to save us. Even Jake assured me it would when he invented the Sentence-o-Matic 1000. There was a problem, and everybody “knew” it: judges were awful and racist. They were awful and racist when they set bail. They were awful and racist when they imposed sentence. They were awful and racist in between, too, but it was easier to focus on bail and sentence because both involved numbers, and we could compare numbers because they were numbers. And numbers don’t lie.

Was there ever a task in the courtroom more ripe for automation?

As a representative of the ignorant masses, I find comfort in the notion that everyone would be given sentences using the same criteria, and never again subjected to the whimsy of some of the judges.

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How do you prefer your word salad? Apparently, it’s a matter of your social class, according Nick Clairmont, who is kind enough to explain “wokese” to those of us who are merely fluent in English.

As a language, wokeness is self-consciously engineered to be easier to exploit and use to bully your way to the top if you are a member of a “marginalized group” (to use woke parlance). That is, in a community where everyone speaks wokese, the intention is that a trans woman of color will have her ideas advanced and her enemies thwarted, and will generally be advantaged by the milieu she finds herself within, because that is how the rules are structured.

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The argument was that the protests were “mostly peaceful,” with a claim that 93% of the Black Lives Matter protests were not about violence and looting. It was an important argument, as it sought to calm concerns that protests were not only doing inexplicable damage to innocent lives by burning down buildings and destroying livelihoods that people, regardless of race or ethnicity, spend their lives building, but violently attacking individuals who got in their way.

Peaceful protests garnered support. Violent protests, looting, lost it. But violent protests caught people’s attention. Violence imposed a cost on the “normies,” whether by destroying their businesses or costing them peaceful sleep in their suburban homes. Peaceful protests might be annoying to the extent they close down roads and denied them to other citizens who had the right to use them, but violence made headlines. Continue reading →

It’s been one of those mornings when my posts rang hollow, even to me. I’ve already trashed three because they ranged from pedantic to polemic to petty. Nothing worth your time to read.*

There has been a nagging concern about what’s left after Trump, as our institutions are condemned and hated by both right and left. Like it or not, Trump will eventually go away, maybe sooner rather than later, and we will be faced with the question of whether to return to normality, a nation with deep problems but, on the whole, pretty damn good, or a burned out shell of a society at war with itself and each other. Continue reading →

The allegory of the Emperor’s New Clothes has such ubiquitous application these days as to be rendered trite. Yet, its message still matters. When used in favor of the loudest screamers on social media, it gets applause, but that’s not really the message. It’s safe and easy to agree with all your pals. It’s hard, almost impossible, to say out loud what the passionate masses don’t want to hear.

Judge Amy Coney Barrett did that in Doe v. Purdue. KC Johnson* did that in the Wall Street Journal. Continue reading →