Whether Katie Hill should have resigned following disclosure of her throuple with husband and staffer was her choice. That the disclosure of images of her naked images gave a huge boost to the astounding ignorance surrounding the issues with revenge porn criminalization, however, is slightly surprising. After all, there was no question but that it was a matter of legitimate public interest as it involved a member of the House of Representatives.

Public disclosure of newsworthy matters, matters of legitimate public interest, were beyond the reach of the law. You know who said that? Mary Anne Franks and Danielle Citron. Mind you, they only admitted it after someone, who shall not be named, refused to let them lie their way around it, but better late and deceptive than never. And that was in a law review article, where they were slightly constrained to admit that law had some applicability, as opposed to their usual appeal to sad tears. As for us lawyers who challenge their inanity, we’re just assholes.

But that’s all ancient history now, as it’s on the radar and they’re making the most of their fifteen minutes, writing pop articles that miraculously ignore everything they’ve previously conceded about the law in order to assure that every reader is persuaded by their appeals to emotion. Continue reading →

I was never a fan of Dahlia Lithwick. Not because she’s a woman.* I couldn’t care less. But because she has proven herself intellectually dishonest, a genderless choice that’s become pervasive among the unduly passionate, more dedicated to serving their cause than trying to be minimally accurate in their writing.

But she made a decision to write about why she won’t be going back to her “beat” at the Supreme Court for all to see, and that raises a very different problem.

The enduring memory, a year later, is that my 15-year-old son texted—he was watching it in school—to ask if I was “perfectly safe” in the Senate chamber. He was afraid for the judge’s mental health and my physical health. I had to patiently explain that I was in no physical danger of any kind, that there were dozens of people in the room, and that I was at the very back, with the phalanx of reporters. My son’s visceral fears don’t really matter in one sense, beyond the fact that I was forced to explain to him that the man shouting about conspiracies and pledging revenge on his detractors would sit on the court for many decades; and in that one sense, none of us, as women, were ever going to be perfectly safe again.

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There’s much discussion about the tax consequences of Democratic candidate Liz Warren’s Medicare for All plan, as well there should be. But the “big ticket” items on the agenda will be subject to substantial scrutiny, from the public, media and Congress. Whether it’s the right answer to the health care situation will be the topic of a great many discussion.

So who’s talking about the “no cost” solutions? As became clear during the Obama administration, pen and phone in hand as Congress was paralyzed and persisted in its abject failure to do its job as legislature, we have a massive bureaucratic machine running America, and it largely happens below the radar until it does something radical that compels us to take notice.

Like when the Department of Education issued its “Dear Colleague” letters, creating the Title IX sex tribunals across America’s colleges and universities that have fundamentally reinvented the risks of expulsion of forfeiture for male students at the bare accusation of females. Or when the Department of Justice, together with the DoE, issued the transgender bathroom guidance, threatening prosecution for failure to adhere to law that didn’t exist, except in the fevered minds of a few bureaucrats. Continue reading →

When did crying at Senate confirmation hearings become a thing? First Kavanagh did it. Now VanDyke. They teared up. They couldn’t speak. They cried. In front of the Senate committee, their family and the American people. They cried.

Put aside your feelings about Kav and/or VanDyke; this isn’t about them. Not even a little bit. Let’s call the judicial nominee Smith who, after being confronted with deeply awful accusations (whether real or not) cries before the TV cameras in the committee chamber.

There is an odd sensibility that men showing emotion is a good thing and worthy of being de-stigmatized. Why shouldn’t men cry? The image of the stoic male is now toxic. People reveal their frailties, their humanity, whether mental illness or alcoholism, for example, and tell their darkest personal secrets, and people gush their thoughts and prayers. Continue reading →

Regardless of your economic prowess, and no one doubts that you know voodoo economics better than anyone, or your certainty that your personal vision of morality demands that those who work hard and save should pay for those in need, whether their student debt, subway fares, and certainly medical care no matter how radical, extreme or costly, in perpetuity, what about Donald?

Yeah I’m not sure you are gonna find as many people as you think to do what it takes to get into medical school and through residency for 120k a year. Not when statistically the people who get into medical school are the top students in the country and most could get into anything else they wanted to.

We go to medical school become we love to the profession and love taking care of patients. But it’s really hard and stressful work. Patients die when we make wrong decisions. It keeps you up at night. We are willing to pay pro athletes millions but you want to pay the person who holds your life in his or her hands 120k. Interesting.

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Barack Obama used to be black. Now he’s a boomer because he just doesn’t get it.

There is, of course, a generation gap between Millennials and their elders, Baby Boomers and, to a lesser extent, Gen X. After all, young people suffer from the same hubris as they always have, certain they know everything and similarly certain that anyone who doesn’t share their passionately unassailable views is wrong, if not downright evil. Welcome to the club, Barry. Continue reading →

There is nothing to stop you from calling your adversary on the telephone. There is nothing to stop your opposing counsel from not taking your call. There is nothing to stop you from alerting the court that you attempted to contact your adversary but he neither took the call nor returned the call. And whatever flows from this scenario is up to the court.

But what if your adversary has rules?

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Painful as it may be to say this, Alexandra Brodsky isn’t entirely wrong.

The men* mourn due process. Last week, Harvey Weinstein attended a “speakeasy for artists,” where, as he should have expected, a comedian pointed out that #MeToo’s top villain was in the audience. Two other performers directly confronted the Hollywood producer, who awaits a rape trial. Their comments were, a Weinstein rep decried, “an example of how the public is trying to squash due process.” Some of the critics later reported they were escorted out of the club without any kind of process of their own. One, Zoe Stuckless, recalled: “This guy was leading me out the stairs, just repeating ‘due process, due process’ to me.”

While there are some serious doubts any of this happened as Brodsky claims, not because they didn’t happen but because Brodsky lacks the cred to believe her in the absence of better proof, and she is, as one would expect, disingenuous in her spin, as the “due process” connection exists as Weinstein is universally reviled and treated as guilty despite not having been convicted of anything, the point remains. Hating him, even without conviction, isn’t a denial of due process. Continue reading →

When Mouhamed Thiam finally stood before the arraignment judge, charged with an A misdemeanor for possession of oxy and a B misdemeanor for open possession of weed, he had one goal. Get out of that courtroom and onto the street. In the trenches, this is usually the prime directive, the goal defendants want to achieve, and it’s the lawyer’s job to make it happen if possible.

But is it wrong? Maybe. Especially if you’re a scholar or think tank pundit or activist. But guess what? The defendant who just spent the last 24+ hours in lockup awaiting arraignment doesn’t give a shit about your theories, your scholarship, your saving the world. He wants to get out of the cuffs and into his own bed.

Thiam copped a plea to the oxy and got time served, which means he walked out the back door to freedom. Except the oxy charge was what lawyer call “imperfect,” because probable cause could not be made out by a cop’s observation, based on his “experience and training.” Weed can. A pill, however, is just a pill. What’s in the pill requires a lab report. There was no lab. Continue reading →

At Volokh Conspiracy, Josh Blackman proposes a radical solution.

Going forward these interrogations should be treated as hostile depositions. A court reporter and videographer should be present, as well as private retained counsel to push back on unfounded accusations.

The letter from the ABA’s standing committee on the federal judiciary found Ninth Circuit nominee Lawrence VanDyke “not qualified.”

Some interviewees raised concerns about whether Mr. VanDyke would be fair to persons who are gay, lesbian, or otherwise part of the LGBTQ community. Mr. VanDyke would not say affirmatively that he would be fair to any litigant before him, notably members of the LGBTQ community.

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