Since the notion of lockdown was floated, people have been sending me links to the myriad measures taken to prevent the spread of coronavirus, from blockading interstate highways to prevent travelers from one state to enter another and bring their diseased bodies with them, to arresting people in parks for existing with their children. Under any other circumstances, these might be outrageous violations of constitutional rights.

Indeed, they may well be under these circumstances as well, but Inter arma enim silent lēgēs. It’s not that this is a war, or that we’re fighting an “invisible enemy,” but that we were in extremis and are constrained to take extreme action to prevent massive harm. We let go of things that would otherwise demand action because survival matters more at the moment. It’s not a principled view of rights, but then, dead people have no rights. Continue reading →

Up to now, the denials have come from Biden surrogates, even as the Tara Reade allegations have finally, after about a month of being largely ignored or sloughed off, moved from marginalized to mainstream. Today, Joe Biden will be arraigned in the Court of Public Opinion, where TV Judge Joe Scarborough will take his plea on Morning Joe.

How do you please, Mr. Biden? Guilty or not guilty?

Not guilty, your honor.

Fine. Let’s schedule discovery, motions and aim for a trial date in November.

Continue reading →

The Palmer, Alaska school board voted to ban* a number of books, classic books, wonderful books, and as everyone knows, book banning is bad.

A list of books deemed too controversial to be taught in electives including poetry, journalism, creative writing and American literature was presented at a Matanuska-Susitna Borough School District board meeting on April 22. The list cited “sexually explicit material” and “‘anti-white’ messaging” in “I Know Why the Caged Bird Sings,” Maya Angelou’s seminal memoir, and raised concerns about language and sexual references in “The Great Gatsby,” the landmark 1925 novel by F. Scott Fitzgerald.

The other books on the list — “Invisible Man” by Ralph Ellison, “Catch-22” by Joseph Heller and “The Things They Carried” by Tim O’Brien — were judged to be inappropriate because they contained mentions of rape, incest, racial slurs, profanity and misogyny.

Continue reading →

District of South Dakota Chief Judge Roberto Lange has, finally, taken one hole out of play.

In a sharp rebuke to the practice, Chief Judge Roberto Lange of the U.S. Federal Court for the District of South Dakota said that the process of involuntary catheterization is a violation of the Constitution’s Fourth Amendment, which protects citizens from unreasonable police searches and seizures. Lange declined to dismiss the case brought by six individuals who sued the cities of Pierre, Wagner and Sisseton, as well as various law enforcement officers who oversaw forced catheterizations.

Apparently, it’s a crime under South Dakota law to ingest drugs, and cops used forced catheterization to obtain evidence. This isn’t a novel problem, and an outrageous physical intrusion that’s been going on for quite some time, often with judicial approval of an act tantamount to rape. Continue reading →

Given Joe Biden’s dotage, his choice for vice president is kind of a big deal. There is not an insignificant possibility that whomever he chooses will end up in the oval after a lovely funeral. And it’s a somewhat different concern than Mike Pence, as it would be impossible to install someone more vulgar, amoral and ignorant than Trump, so the bar was far lower.

But then, Joe Biden did something telling and tellingly foolish. He announced that his VP would be a woman. Obviously, this was done to pander to the woke of his party, since he could fulfill his promise by selecting Candace Owens. That’s about as far as identity takes you. Continue reading →

While the New York Times looked the other way. Cathy Young addressed the Tara Reade accusation of sexual assault against Joe Biden, arguing that based upon what was known at the time, it was implausible.

And yet even with minimal scrutiny, Reade’s account has major credibility problems.

In response, Ben Burgis agreed that the “believe the woman” mantra was an absurd mantra, but that the accusations were plausible.

The moral calculation underlying the “guilty beyond a reasonable doubt” standard for criminal trials is “Blackstone’s Ratio.” It’s better for ten guilty people to go free than for one innocent person to be imprisoned or executed. This isn’t even the standard for civil trials, and it not only shouldn’t but can’t be the standard used by private citizens trying to muddle through the epistemic morass and decide what we think of Kavanaugh or Biden.

Continue reading →

Ed. Note: This is a guest post by Madison, Wisconsin, criminal defense lawyer Christopher Van Wagner.

A news item today, Monday, described a significant spike in the non-COVID death rate since the pandemic’s onset. It seems, historically speaking, that pandemics tend to coincide with spikes in deaths from “other” causes. The reporting experts note various causes, including delays in some needed medical care leading to premature deaths, not to mention heart attacks, strokes and cancer deaths. Those death certificates do not say “COVID-19,” but in reality they should, for practical purposes if not for political or economic ones. Continue reading →

The best framing Larry Tribe could pull off was to call the case “kooky,” And he’s not wrong, but naturally not for the reasons he believes. As is well known and overwhelmingly clear, New York hates guns. Well, lawfully possessed guns, anyway, and illegally possessed guns come with heart-wrenching stories, unlike those of people who jump through the hoops at One Police Plaza to comply with the law.

Despite the Supreme Court’s rulings in Heller and McDonald, there is no “right” to possess a gun in New York, and the Second Circuit has been totally fine with that. For more than a decade, the Second Circuit has made clear it’s not going to apply the law, daring the Supreme Court to do something about it. And the justices hid under their bench and let it slide. Continue reading →

Some days, it seems as if the “news” amounts to little more than random dumb ideas that see the light only because there’s nothing actually new or serious to consider. Today is one of those days. So a few random thoughts.

Jill Karofsky won a ten-year term on the Wisconsin Supreme Court as a progressive, defeating the Trump-backed judge, despite the Supreme Court’s refusal to allow the Democratic governor’s last minute attempt to unilaterally change the law to accommodate mail voting by expanding the time period. Judge Karofsky argues that the principle is more important than winning. Continue reading →

Without adult supervision, the New York City Council has done as much as it can think of to serve the needs and causes of the oppressed, the marginalized, the downtrodden, micromanaging everything from hairdos to pronouns. And with the pandemic upon it, it’s found a new shark to jump.

Mom-and-pop shops as well as medium-sized businesses find themselves hanging by a thin hair in this crisis — yet City Council Speaker Corey Johnson wants to add to their burdens with a bundle of new mandates.

One bill would force essential businesses to retain every employee unless they have a “just cause” to fire someone. A second part of the package would require employers of 100 or more to pay low-wage shift workers a premium of $40 to $75 per shift during the pandemic.

Continue reading →