Whoever is in charge of the the New York Times Opinion twitter account chose to pick this pull quote to send out to the twitterverse.

The American Bar Association should signal that anyone who defends the border patrol’s mistreatment of children will not be considered a member in good standing of the legal profession.

Some lawyers, being insufferably myopic, naturally parsed this for the immaterial aspects, that the ABA doesn’t get to decide who is a “member in good standing of the legal profession” and would never do that anyway. Obviously, the ABA is irrelevant to that call, it did put its two cents in on the wrong side of the salient issue. And given Model Rule 8.4(g), it’s not much of a stretch. Continue reading →

It’s understandable why Bari Weiss began her column with a swipe at renowned prude and former Attorney General John Ashcroft. First, he deserves whatever ridicule he gets. Second, it’s a reminder that such ridiculous and disgraceful conduct isn’t only the province of one team. But third, even Ashcroft wasn’t censorious enough to destroy history to create his “safe space.”

Still, the analogy fell flat. Ashcroft was vindicating his personal, sexually-twisted fantasies, even if he adopted the idiot’s rallying cry that he was doing it for the children. The San Francisco school board is doing it for social justice. The Taliban destroying the Buddhas of Bamyan would have been more apropos.

Victor Arnautoff, the Russian immigrant who made the paintings in question, was perhaps the most important muralist in the Bay Area during the Depression. Thanks to President Franklin Roosevelt’s Works Progress Administration, he had the opportunity to make some enduring public artworks. Among them is “City Life” in Coit Tower, in which the artist painted himself standing in front of a newspaper rack conspicuously missing the mainstream San Francisco Chronicle and packed with publications like The Daily Worker. Continue reading →

He’s a tricky one, that fast-talking Sam Alito. Adding two plus two and almost making it seem as if .22% BAC was the right answer.

The importance of the needs served by BAC testing is hard to overstate. The bottom line is that BAC tests are needed for enforcing laws that save lives. The specifics, in short, are these: Highway safety is critical; it is served by laws that criminalize driving with a certain BAC level; and enforcing these legal BAC limits requires efficient testing to obtain BAC evidence, which naturally dissipates. So BAC tests are crucial links in a chain on which vital interests hang.

See what he did there? Told you he was tricky. Saving lives is, undeniably, important, but obtaining a blood alcohol concentration level isn’t about saving lives. It’s about collecting evidence for prosecution. A drunk driver is a danger to others while driving, while on the road. Once seized and arrested for drunk driving, the potential harm is abated. After that, the question is what to do about with the drunk driver. Continue reading →

Lawyers, right?

D. APPROVAL OF ALTERNATIVE BUSINESS STRUCTURES/MULTI-DISCIPLINARY PRACTICE SUBCOMMITTEE REPORTS AND RECOMMENDATIONS FOR PUBLIC COMMENT CIRCULATION

1. 1. Recommendation: Confirm that the scope of the Task Force’s charter includes entities which may or may not have lawyer ownership or operational management and/or control.
   2. Recommendation: Entities can be composed of lawyers, non-lawyers or a combination of the two, however, regulation would be required and may differ depending on the structure of the entity.
   3. Recommendation: Non-lawyers will be authorized to provide legal advice and services as an exemption to UPL with appropriate regulation.

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Parsing the Supreme Court’s opinion in Kisor v. Wilkie is more a game for academics than trench lawyers, and they’ve been kind enough to get right on it. The question was whether Auer, Chevron or Seminole Rock, all of which go to the same basic point of mandatory deference by courts to administrative agencies, would be reversed or survive.

The short answer is that they survived, but in name only. Chris Walker explains at Notice and Comment.

So here’s the new Kisor five-step doctrine for deference to agency regulatory interpretations:

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A random lawprof twitted about how the video of AUSA Sarah Fabian, arguing before the Ninth Circuit, proves how critical it is that oral arguments be shown to the public. And the public was, indeed, outraged by the snippet of the argument that went viral.

Ironically, the caption below the video states, “Soap and beds are not essential for detained migrant children says Trump lawyer.” Except Fabian isn’t a “Trump lawyer” at all, but a career assistant who worked for the Department of Justice since 2011, and the case isn’t about Trump, but the 1985 Flores Agreement. Continue reading →

I’m going to admit it from the outset: I admire Tiffany Cabán because she’s got guts. She’s running for District Attorney of Queens, and it takes courage to do so in general, and exceptional courage to do so given Cabán’s circumstances.

She’s got minimal legal experience, having been admitted to practice in 2013 and working as a line public defender since then. She’s never supervised anyone, never run a shop, never had to deal with the politics of running a big city district attorney’s office. She’s never prosecuted anyone for anything. And still, she’s running. Cabán has moxie coming out her ears, and that deserves some serious kudos. There aren’t many people who would expose themselves to the rigors of a campaign given her exceptional dearth of qualifications. Continue reading →

Quite a few people sent me the story of Seth Harp in the Intercept.

I SHOULD HAVE kept my mouth shut about the guacamole; that made things worse for me. Otherwise, what I’m about to describe could happen to any American who travels internationally. It happened 33,295 times last year.

My work as a journalist has taken me to many foreign countries, including frequent trips to Mexico. On May 13, I was returning to the U.S. from Mexico City when, passing through immigration at the Austin airport, I was pulled out of line for “secondary screening,” a quasi-custodial law enforcement process that takes place in the Homeland Security zone of the airport.

What happened to Harp was, his misguided snarky responses aside, quite outrageous, with a Customs and Border Patrol agent named Moncivias pulling him aside for “secondary screening.” It went downhill from there. Continue reading →

The set-up was there for anyone who cared to see it.

Paul J. Manafort, President Trump’s former campaign chairman who is serving a federal prison sentence, had been expected to be transferred to the notorious Rikers Island jail complex this month to await trial on a separate state case.

Been “expected”? Says who?

Paul J. Manafort, President Trump’s former campaign chairman who is serving a federal prison sentence, is expected to be transferred within the next few weeks to the Rikers Island jail complex in New York City, where he will most likely be held in isolation while facing state fraud charges, people with knowledge of the matter said.

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When Second Circuit Judge Denny Chin was profiled by the New York Times, one phrase stood out to me: “Rule and roll.” I got it then. I still get it now. A decision has to be made. It’s not just because that’s a judge’s job, but because the wheels of “justice” must keep turning or the system cranks to a halt, to no one’s benefit. And yet, there is a callousness to the phrase, that a person’s life, his family’s life, can be devastated and the judge just rules and rolls.

Right? Wrong? Either way, it’s done and they move on to destroy more lives. Work, work, work.

A pair of Kevins raised a different mechanism to be applied to sentences.

We have both worked with people who have taken extraordinary steps to rehabilitate themselves in prison. One of us is a former federal judge who resigned, in large part, because he could no longer stand to impose the excessive and unjust prison terms Congress mandates in so many cases. The other is a former prisoner and the leader of a national organization that works with thousands of families directly impacted by harsh federal and state sentencing laws.

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