On another day, it would be controversial for a fairly lengthy list of reasons. This isn’t to say the point is without merit. It is. But like most points, it’s not that simple and, as has become the way of the New York Times, the argument is made dishonestly.

The white supremacist who murdered nine black churchgoers in Charleston, S.C., five years ago dispensed with the fiction that the Confederate battle flag was an innocuous symbol of “Southern pride.” A murderer’s manifesto describing the killings as the start of a race war — combined with photos of the killer brandishing a pistol and a rebel flag — made it impossible to ignore the connection between Confederate ideology and a blood-drenched tradition of racial terrorism that dates back to the mid-19th century in the American South.

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There are thousands, maybe millions, of exceptional examples of the criminal legal system gone wrong. So it’s rather astounding that Michael Flynn has become the poster boy for “injustice.” But that’s just where the stupid starts, as every blithering idiot on one team goes bonkers on the other tribe’s blithering idiots. In an odd sense, that might be an entirely acceptable state of affairs, let the two teams of crazies rumble and let nature take its course.

But when the legal system, the Least Dangerous Branch, becomes the whipping boy of the warring tribes, another issue arises. This extreme outlier of a case gives rise to more extreme and outlier views, and these views distort the legal system, which isn’t robust enough these days to weather the crazy. This became clear to me when the latest in this series of exceptional events happened: Judge Emmet Sullivan retained counsel to respond to the District of Columbia Circuit Court’s order directing him to respond to the petition for a writ of mandamus by Flynn’s lawyer, Sidney Powell. Continue reading →

The word has become one of the cultural touchstones. Discrimination. Bad. Evil. Wrong. Everybody says so. Most don’t get it, and this is by no means a mistake of one side of the other, although the vilification of the word comes from the simplistic left and has since been embraced by the simplistic right as it serves their purpose at the moment.

We all discriminate. We have to. We should. We must. And it’s a wonderful thing, because that’s how we differentiate between the things we believe to be right and good from the things we don’t. We discriminate with the food we eat, the people we date and marry, the cars we drive and the jobs we seek and take. We pick the ones we prefer. We leave the others behind. We discriminate. Continue reading →

Overlawyered was here when I started. I’ve never known a blawgosphere without it, without Wally Olson posting something every day. He was one of those rare few non-lawyers who had a feel for law better than most of the guild, an understanding and appreciation of how it worked and what it meant. He often took lawyers to task for being, well, lawyers, reminding us that it wasn’t about us, about our making bank on the misery of others provided we could sneak it past a judge.

Now he says he’s “adjourned.”

I’ve been considering ceasing publication of Overlawyered over the past couple of years, and the time has finally arrived. I plan to publish its final post on May 31, ten days from now. Continue reading →

It’s nothing new. As Mark Lilla reminds us, Delphi became a wealthy city on the backs of the Oracles. Or to be a bit more precise, on the backs of those who sought the predictions of the Oracles, for it as their money that was left behind. Desiring to know what will happen is nothing new, and who wouldn’t want to know?

But it is a truth humans have never been able to accept. People facing immediate danger want to hear an authoritative voice they can draw assurance from; they want to be told what will occur, how they should prepare, and that all will be well. We are not well designed, it seems, to live in uncertainty. Rousseau exaggerated only slightly when he said that when things are truly important, we prefer to be wrong than to believe nothing at all.

Many careers have been made by “predicting” the future. A noted “legal futurist,” Richard Susskind, predicted that email would overcome snail mail for lawyers, and he was hailed as a visionary. His big prediction after that was The End of Lawyers, based on the futurist’s belief that the internet would democratize law and make everyone as capable of knowing law as the members of the soon-to-be-defunct guild. Continue reading →

Much has been made of the allegations against the presumptive Democratic nominee, but even an accuser has to earn a living. That, too, came under scrutiny following Tara Reade’s fingering Joe Biden as her rapist.

Then known as Alexandra McCabe, Ms. Reade testified as a government witness in Monterey County courts for nearly a decade, describing herself as an expert in the dynamics of domestic violence who had counseled hundreds of victims.

Meet an expert in “the dynamics of domestic violence.” Continue reading →

He was a popular law professor at the University of Minnesota until his world fell apart.

“It was a horror movie,” said Parisi.

Many of his law school students, especially the women, assumed he was guilty. Enrollment in his classes dropped by 60 percent with some classes cancelled

And in the eyes of the internet, he might as well have been convicted.

“Even after those charges were dropped, people Google my name and only see a professor accused of so many crimes,” Parisi explained.

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In the universe of dumb qualified immunity decisions, which sadly is a huge, HUGE, universe, Jessop v. Fresno stands out.

Following the search, the City Officers gave Appellants an inventory sheet stating that they seized approximately $50,000 from Appellants’ properties. Appellants alleged, however, that the officers actually seized $151,380 in cash and another $125,000 in rare coins. Appellants alleged that the City Officers stole the difference between the amount listed on the inventory sheet and the amount actually seized from the properties.

The panel held that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. For that reason, the City Officers were entitled to qualified immunity.

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Is there no outlier, no pop cause, that can’t be seized upon to pursue a cause? On the one hand, the circumstances surrounding the Flynn case led to cries of cronyism and special treatment. On the other, they exposed the means by which law enforcement can use manipulation to get an indictable offense out of pretty much anyone, the perjury trap if you will. But Flynn as plea bargaining victim poster boy?

Michael Flynn, who was President Trump’s national security adviser for 24 days and who has been entangled in the criminal-justice system for 40 months, pleaded guilty of lying to FBI agents and now recants that plea. We shall return to Flynn below, but first consider Habeeb Audu, who is resisting extradition from Britain to the United States, where he is charged with various financial crimes. Continue reading →

Whether Tara Reade’s accusation is “credible,” as has become the newly popular yet largely meaningless word, or not doesn’t particularly interest me. Had it been raised at the time, had she complained to police, had it blossomed into a criminal prosecution where it would be subject to the normal rigors of the legal system and her accused, Joe Biden, been given the opportunity to defend, we might have something. Now, 27 years later without any possibility of it being subject to legal scrutiny, it’s just noise.

You may disagree with me. You may offer the litany of excuses about why Reade might be disinclined to complain to the police, about how traumatized women fail to complain, tell conflicted and false stories, shouldn’t be “silenced” by being expected to do what is required of every other putative crime victim. Of course, if she had but the police refused to act upon her complaint, that would be a different discussion. But that didn’t happen. Continue reading →