In the scheme of New York Times pundits, David Leonhardt is one of the lesser-known, but more even-keeled, columnists, showing a tendency toward realism while all around him lose their heads. That’s what made his op-ed on mainstream media’s bias toward centrists so painful.

Centrist bias, as I see it, confuses the idea of centrism (which is very much an ideology) with objectivity and fairness. It’s an understandable confusion, because American politics is dominated by the two major parties, one on the left and one on the right. And the overwhelming majority of journalists at so-called mainstream outlets — national magazines, newspapers, public radio, the non-Fox television networks — really are doing their best to treat both parties fairly.

Is there an “idea” of centrism? Is it “very much an ideology”? It’s possible, and they’ve conspired to keep it a big secret from me, which could explain why Leonhardt sees it and I do not. It’s not as if centrists have any duty to tell me what they believe in, and for all I know, they’re sitting around at night, chugging brewskies and laughing about how they’ve kept me in the dark. It could happen. Continue reading →

Is there a question whether transgender people exist? Most would answer “no, what a ridiculous question” as they obviously exist, even if they constitute an extremely minute percentage of the population. But to some, their existence is dependent on magic, because they rely on Harry Potter, and by inexplicable extension, its author, J.K. Rowling, for their being.

In the magical world of Harry Potter, the justice-minded and rebellious adolescent characters drink something called “Polyjuice Potion” to temporarily take on the general appearance of other people, even those of entirely different anatomies and gender expressions. As a teenager, I remember reading this and thinking, “Oh God, I wish it were that easy.” Continue reading →

In a very long PrawfsBlawg post, oddly with comments closed considering that he seems to invite them, Alabama lawprof Paul Horwitz raises a bevy of interesting questions about the “Abolish Prison” movement and how it’s being treated by the nice folks at the Harvard Law Review.

What raised his eyebrows was two things, that the issue took up a lot of real estate in not one, but two, HLRs published very close together, and that the only perspective offered was positive. In other words, it was all movement and activist stuff without any critical analysis that wasn’t promoting it as the solution to what ails us.

One might respond that there is no need to do so if those criticisms have been well aired elsewhere. I doubt that holds up as a scholarly justification: that might be true of one or two isolated articles, but when a journal devotes an entire issue and a major separate piece to what is largely a single perspective, that response becomes quite weak. The more it says from a single perspective, surely the more obvious it becomes that there are unanswered questions that ought to be addressed. Nor is it a good justification to say that the journal is uninterested in such perspectives because there is nothing to be said on the other side. At least on this issue, the Foreword itself notes several tensions in the movement, and both the Foreword and the Developments introduction note the difficulty in defining the movement at all. Obviously there are things to be said on the other side.

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The sixth Democratic debate drew just over 6 million viewers, the lowest number so far. This isn’t surprising, as the debates have been largely unremarkable and disinteresting, not very debate-like outside of insipid zingers, and so even the most passionate Democratic party adherent struggles to find a reason to squander a few hours of her life listening to childish squabbling in an effort to catch fire and emerge from the crowd as a winner.

But this debate offered an attack of some interest against the youngest, and gayest* of the candidates, Mayor Pete Buttigieg. By shifting from left to more rational, the 37-year-old third-class city mayor has gotten traction, causing the socialists no end of angst. And they went after him for fund-raising in a . . . wine cave.

To reach the wine cave that set off a firestorm in this week’s Democratic presidential debate, visitors must navigate a hillside shrouded in mossy oak trees and walk down a brick-and-limestone hallway lined with wine barrels. Inside the room, a strikingly long table made of wood and onyx sits below a raindrop chandelier with 1,500 Swarovski crystals.

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The 1619 Project was an ambitious effort to rewrite the history of the American Revolution. America’s birth, we’ve been taught, was from a revolution against the tyranny of King George III. It was a battle against oppression of the colonies, and a fight for which we could be proud. Granted, it’s a bit rosy and whitewashed, but we won the war and get to write its history.

But the 1619 Project told a different story, that our revolution’s primary purpose was to perpetuate slavery and we are a nation born of racism. We should be guilty. We should feel disgust toward our nation and recognize that its existence is a disgrace. The purpose of the 1619 Project is to rewrite the history taught to our children so that they believe America to stand not as a shining beacon of democracy, but as a disgrace, an affront to equality.

Except historians took issue, not with the concerns of racism and slavery, but with the facts. Continue reading →

In an intramural tiff, Harvard prawfs Larry Tribe and Noah Feldman have taken to the twitters.

How is it mistaken, @tribelaw? Since you wrote a great book about it, you surely agree and know that the core of impeachment is and has always been presenting the articles of impeachment in the Senate (or House of Lords in England) and prosecuting the charges.

— Noah Feldman (@NoahRFeldman) December 20, 2019

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This isn’t a condemnation of anyone by race or gender, but a condemnation of how the narrative of identity politics is used to manipulate the emotions of the unduly passionate to achieve outrage when they’re supposed to, and yawns when they’re not. Because this, in another world, would rightfully evoke outrage.

“F—ing Hispanics! Go back to your country!” the [person] seethed as she attacked the 54-year-old victim on a Manhattan-bound No. 2 train at about 4:15 a.m. Tuesday, cops said. “You come here to take our jobs!” she railed.

The person was female. The person was black. The person was, it’s alleged, drunk and very, very angry. Continue reading →

I was maybe five years out of law school when I first became a small claims court arbitrator in Manhattan. It was one of my pro bono activities, once or twice a month, usually Thursday evenings, going over to 111 Centre Street, using the judges’ elevator in the back, and hanging out with my buds, the small claims court officers and Joe Gebbia, the chief clerk, with whom I would usually get dinner later in Chinatown. Joe was always kind enough to let me pay. It was his superpower.

The jurisdiction of small claims court at the time was $3,000. so that was the most an arbitrator could award. We had no authority to do anything beyond issuing a monetary award, and the legal basis upon which we ruled was, by statute, “substantial justice.” Beyond that, we were largely left to our own devices. Continue reading →

It started with New York County District Attorney sending Governor Andy Cuomo a letter in order to cover his butt. That’s where it was first called a “loophole.”

“Under current law, a voluntarily intoxicated individual is not considered ‘mentally incapacitated,’” the letter reads. “Therefore, prosecutors cannot bring sex crime charges in cases where the victim became voluntarily intoxicated and was unable to consent, even if a reasonable person would have understood that victim was incapacitated.”

This is kind of tricky to follow, as it conflates two separate things: first, if it’s involuntary, such as a person forcing another person to become drugged or intoxicated, then the intoxicated person is not responsible for her condition. The second is that being drunk is not the same as being incapacitated. One can be incapacitated by being drunk, or being drugged, but the key to the law is being incapacitated. Drunk, alone, doesn’t do it.

But Cy called it a “loophole,” which by definition means it’s a law working the way it was intended and someone doesn’t like the outcome. So Andy is going to fix it. Continue reading →

There were two apparent possibilities as the House Democrats decided to pursue Articles of Impeachment. Either they would muster sufficient evidence to convince enough of the American public to support impeachment that Republican senators would feel confident enough that they could find Trump guilty and vote to remove him and be re-elected, or the evidence would sufficiently damage Trump to impair his re-election.

It appears that neither has come to pass, if polls are any indication. Whether the evidence just didn’t do the trick, or people are so stuck in their positions, or they just don’t care anymore as they’re exhausted by the three years of ceaseless outrage, the numbers haven’t really moved.

It’s not that voting for Articles of Impeachment isn’t the right thing to do for no better reason than Trump’s conduct warrants impeachment and it’s an act of principle, even if in vain. But the calculus has now shifted: what happens after the articles are voted? Senate Majority Leader Mitch McConnell has announced that it’s dead in the Senate, and has rejected Minority Leader Chuck Schumer’s attempt to have John Bolton and Mick Mulvaney called as witnesses. Continue reading →