Changes have been proposed to Virginia’s Human Rights Law’s definition of sexual harassment that give rise to an interesting, and growing, constitutional conundrum. From HB 1418:

“Unlawful discrimination on the basis of sex” includes harassment on the basis of sex. Conduct amounts to harassment on the basis of sex when (i) submission to unwelcomed sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature is made either explicitly or implicitly a term or condition of a person’s employment; (ii) submission to or rejection of such conduct by a person is used as the basis for employment decisions affecting such person; or (iii) such conduct has the purpose or effect of unreasonably interfering with a person’s work performance or creating an intimidating, hostile, or offensive working environment.

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The image that came to mind is Capt. Obvious, mostly because the military title for Attorney General, and how he’s called “general” as if he’s about to lead a brigade of lawyers into battle, always made me chuckle. But prawfs Dan Epps and William Ortman have proposed that if the government gets one, why not the defense?

The United States needs a Defender General—a public official charged with representing the collective interests of criminal defendants before the Supreme Court of the United States. The Supreme Court is effectively our nation’s chief regulator of criminal justice.

But in the battle to influence the Court’s rulemaking, government interests have substantial structural advantages. As compared to counsel for defendants, government lawyers—and particularly those from the U.S. Solicitor General’s office—tend to be more experienced advocates who have more credibility with the Court. Continue reading →

For a few minutes, people paid some attention to the murder of a Barnard freshman, Tessa Majors, in a New York City park. Well, less about her murder than the black teen arrested for it, and whether his confession was good enough as he only had a relative present and not a lawyer.

There was a faint whiff of the Central Park Five about the scenario, and that was reminiscent of a television dramatic presentation that we confused with a documentary, which is much more interesting than some pretty white girl getting murdered. Then . . . SQUIRREL.

Jennifer Finney Boylan is, inter alia, a professor at Barnard, and for a brief and shining moment, I thought she remembered Tessa Majors. As my twitter feed obsessed over international issues and activists outraged that bail reform was under attack by their best-yesterday friends, I wondered if anybody remembered Tess Majors. And there it was, an op-ed in the Times that wasn’t about the awfulness of Trump, but Tessa Majors. It was written by Barnard prof Boylan, and it said so in the headline, Continue reading →

It’s been five years since the massacre at the French comic publication. At Tablet, Jacob Seigel looks back and ponders whether that was the turning point, when speech and thought gave way to feelings and sophistry.

The tragedy produced a memorable slogan—je suis Charlie Hebdo—and brought world leaders together to march and pose for photographs, but even five years later its full import may not be understood. The Hebdo attack was a pivotal historical moment, not because of the event itself—practically a jihadi cliche in which a symbolic offense provoked an absurd overreaction directed at defenseless targets.

What was unique and consequential was the response from the cultural and ethical minders of the Western elite. In America, the aftermath of the Hebdo killings galvanized a set of opposing ideas about the nature of violence and victimhood, and the value of free expression. In the years since, Hebdo’s defenders who took up the cause of free speech have clearly been losing ground.

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What happened to John Albers, a 17-year-old high school student whose suicidal cry for help ended in his being shot by a cop for no discernible reason, was a tragic story. But for two weeks after the killing, the cop was known as “Officer John Doe.” It wasn’t until her attorney uncovered it for the ensuing civil suit that they confirmed who shot and killed John Albers.

The difficulties Albers faced to get basic information into how her son, John, died are not unique in a state where police records are largely kept under wraps, even when a case is closed. It took a month for Johnson County District Attorney Steve Howe to decide to clear the officer, Clayton Jenison, of wrongdoing.

Before then, Overland Park Police Chief Frank Donchez had refused to release the officer’s name. Albers said she was never afforded any police reports or witness statements.

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About 20 years ago, one of my undergrad profs, James Maas, was taken to task in the New York Times for being . . . funny. It was the one time I felt compelled to write a letter to the editor at the Times, which made it into print.

Granted, it was more Las Vegas than Ithaca, but education is not what one remembers for a test but what one remembers for life.

The substance remains educational. The delivery method, humor, makes you watch and pay attention. It may not work for everyone, but what does? On the other hand, humor doesn’t work for everyone either, and that’s never been more true than when every effort at humor is scrutinized for offense. That was accounting senior lecturer Catherine West Lowry’s downfall. Continue reading →

Nobody ever mistook Harvey Weinstein for Fabio. If a woman had sex with him, it was for a reason other than his exceptionally good looks. Whatever could that be?

Laura Kipnis writes about what the Weinstein trial, which commences with jury selection today, means for culture, for feminism. And what it doesn’t.

Over 80 women have made public accusations against the former Hollywood mogul. In the post-#MeToo court of public opinion there are many for whom a charge sheet this extensive demands an automatic guilty verdict. In the courts of New York state, however, where due process prevails and there are only two official accusers, the outcome is less certain.

She’s right, even if she severely overstates the prevalence of due process and understates the number of “official” accusers. Continue reading →

When you sit down for a meal at a restaurant, itself a privileged act, of course, unless one accepts the premise that it’s not colonialism to use one’s undeserved earnings to enjoy a decent meal, would you like to know that it’s worth the price? Then you’re going to have an issue with the nextgen food critics.

2018 was a year of tectonic shifts in restaurant writing. Both the critic and the criteria came under scrutiny. The #MeToo scandals sparked a national reexamination of the field’s food-first values. Media outlets across the country debated how to cover restaurants owned by Mario Batali, John Besh, Paul Qui, and other alleged abusers.

Eater: “Maybe Don’t Review Restaurants Run by Bad People?”

Philadelphia Inquirer: “It’s Not My Job to Pass Judgment on a Chef’s Character.” Continue reading →

With unsurprising regularity, a young lawyer twits that he tried a case that he thought he should have won. But he lost. He’s upset. He’s angry. He twits for catharsis. He twits for succor. He asks, “Was it me, did I blow it? I thought I did a great job, but I lost.”

In response, there is usually an outpouring of support from his tribe, other young lawyers of similar stature, assuring the bereft lawyer that he did a great job, that it wasn’t him, that it’s the system, the jury, the law that sucks. But not him.

In the latest one that crossed my path, one older and more experienced lawyer twitted that no criminal defense lawyer (actually, he said “public defender,” but it’s not an important distinction) loses a case and doesn’t doubt that he could have done better. This is a truism, and it should be. Every good lawyer who gets a guilty verdict ponders what he could have done better. Heck, most good lawyers ask the same question even when they get an acquittal, realizing that the verdict could have easily gone the other way. Juries are fickle. Continue reading →

It seemed most likely to be a horrific murder or rape to be the impetus to demand reversal of New York’s new bail reform laws, which went into effect January 1. Not that anyone with any real grasp of criminal law didn’t know it was going to happen. Of course it was. Something would happen. Something always happens.

Some guy cut loose for a crime on the list of crimes for which bail couldn’t be imposed would go out and commit a horrific crime and all hell would break loose. The backlash would be as insipid as the frontlash, as advocates for change used sad anecdotes to support their cause, and so too would advocates against it do the same, but with a story of how horribly wrong it was to free the guy who did this horrible thing.

The new bail reform law was crafted to produce this result. Instead of reaching individual determinations on a better basis than the failed way in which it had gone on forever, and which could have been ended in a snap had judges chosen to do their job rather than rubber stamp baby prosecutors’ often needless requests for bail, it created yet another one-size-fits-all solution: precluding the use of bail for most crime. Continue reading →