Author Archives: SHG

Short Take: Disproportionately Yours

Squirreled away in the deepest bowels of New York siberia, the Metropolitan Detention Center-Brooklyn is a place you want to avoid on its best days. These are not its best days.

Locked away in dark and freezing cells with little heat for days, left to languish alone in the dead of winter — this is how the federal government of the United States thinks that it can treat the people in its care.

No, this isn’t some C.I.A. black site overseas. It is a federal detention center in Brooklyn, where inmates were being held in abominable conditions in America’s largest city.

The facility is run by the Bureau of Prisons, and while it denies that the facility is completely lacking heat and hot water, it’s at least substantially short of normal conditions. This distinction doesn’t save the conditions from being called “abominable,” as there is (or at least should be) no question but that they are required to provide these utter basics to inmates. Continue reading →

Will Presumption of Innocence Be The Next To Fall?

Why Pennsylvania Attorney General Josh Shapiro decided it was his place to get into the mix is unclear. Maybe it was just too easy to hop on the Woke Train and get a free ride. Maybe he didn’t want to be left out of the “coalition” of states’ attorney generals who couldn’t manage to clean up the mismanagement (like the thousands of rape kits that go untested for years) of the handling of sex offenses in their states’ criminal courts, and found it easier to grab at low-hanging fruit.

Attorney General Josh Shapiro, together with the Attorneys General of New Jersey and California, yesterday led a multistate coalition of 19 Attorneys General in submitting a formal, legal comment letter to Secretary Betsy DeVos and the U.S. Department of Education calling on federal officials to withdraw a proposed rule that would undermine the anti-discrimination protections of Title IX of the Education Amendments Act of 1972, and weaken protections against sexual harassment and violence for students.  The proposed rule would impose new requirements on schools and students that would be a significant departure from the fundamental purpose of Title IX and the Education Department’s longstanding Title IX guidance, and leave campuses less safe.

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But For Video: Front Porch Edition

David McLaughlin doesn’t have one of those mean, nasty-looking faces that would make you fear him, hate him. He’s kind of a baby-faced cop with the Vallejo police department. Hardly the sort one would naturally associate with engaging in excessive force. But then, there’s video.

The guy taking the video was standing on his own front porch. Regardless of the fact that he wasn’t doing anything to interfere with McLaughlin’s arresting the guy on the motorcycle, who was immediately ignored in favor of the guy on his own front porch and, on another day, might well have taken off, the offense was capturing McLaughlin on video. Continue reading →

Short Take: Mary Anne Franks Hates The Constitution

If the name strikes a bell, it’s because I’ve mentioned her from time to time.* Mary Anne Franks is a now-tenured law professor at the University of Miami Law School. She’s not a lawyer, having never been admitted to any bar, and accordingly has never practiced law, but that hasn’t impaired her ability to get tenure and teach criminal law. Go figure.

Franks lists her areas of “expertise” as

  • Criminal Law and Procedure
  • Cyber Law
  • First Amendment

How cool is that, all subjects that interest me as well! So when Andrew Fleischman twitted that Franks published a book, how could I be less than thrilled? Continue reading →

Josue Hernandez Learns The Price of Prolix

As a young attorney in Denver with 17 clients whose homes were destroyed by fire, it’s nearly impossible not to find some way to evoke enough sympathy from the court to make it past a motion to dismiss. Josue Hernandez found a way, suing 113 defendants for 23 causes of action, beginning with five sounding in RICO.*

Rule 8 requires that Plaintiffs’ complaint provide “a short and plain statement of the claim showing that the pleader is entitled to relief,” with allegations that are “simple, concise, and direct.” Fed. R. Civ. P. 8(a)(2), (d)(1). I find that Plaintiffs’ 260 page, 1,363 paragraph Third Amended Complaint fails to meet this standard.

In the first place, the sheer length of Plaintiffs’ complaint (260 pages and 1,363 numbered paragraphs) suggests that Plaintiffs have failed to comply with Rule 8.

One might wonder whether such a long complaint was necessary due to the number of parties, the complexity of the issues, the demands of Iqbal. Senior District Judge John Kane explains that wasn’t the problem. For all its length, it failed miserably to do its job. And had it ended there, perhaps Hernandez might have walked away with only a loss to his name. But he wasn’t done with this case. Continue reading →

Title IX Comments Closed: So?

According to Inside Higher Education, there are more than 96,000 comments on the proposed Title IX rules, which would make it 96,000 more than were made when Russlyn Ali and Catherine Lhamon created a system of campus sex policing out of whole cloth. Most of the comments are noise, of little value or use. Contrary to the assumptions and efforts of advocacy organizations, it wasn’t a public referendum and the side with the most “Fuck You” comments doesn’t win.

In the final days, the “big guns” came out, introducing their prolix thoughts on the systemic changes. There is a forest. There are a great many trees. Few of the comments take a look at the big picture, although it’s in there, even if inadvertantly. For example, from the American Council on Education:

Most importantly, we ask that the final rule reflect this fundamental premise: Colleges and universities are educational institutions, not arms of or alternatives to the criminal justice system. They should not be expected to mimic civil court systems with trial-like forums that enable one person to seek a quasi-judicial judgment against another individual. Attempts to graft formal legal procedures onto internal college and university disciplinary systems conflict with a longstanding body of case law that distinguishes college disciplinary processes
from judicial systems.

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Short Take: The New Rules of Debate

The topic of the debate was controversial, as well it should be. After all, if there was no controversy, what’s to debate?

Layton High School senior Michael Moreno and his debate partner, whom The Daily Wire will not name, were participating in a round with a topic relating to immigration. The specific topic of the round was “Resolved: The United States Federal Government should substantially reduce restrictions on legal immigration.” Moreno and his partner were arguing in the negative, meaning they were arguing against the other team’s plan to reduce restrictions on legal immigration.

Immigration is one of those fascinatingly trendy issues, flying under the radar for decades despite doing serious harm to many, until Trump issued his Muslim Ban, whereupon it burst onto the consciousness of his detractors and there was suddenly extreme, if deluded, interest. Continue reading →

Constitutional Orphans and Constitutional Adoptions

If it’s remotely possible, consider putting aside your fears of what might be and instead consider what is. The right to an abortion is one of the most feared losses on the left, it being of deep concern that a conservative block on the Supreme Court might reverse Roe v. Wade or, more likely, approve limits on abortions that will put those rights on the slippery slope of obliteration.

In the meantime, Virginia Representative Kathy Tang offered a bill to expand the right to an abortion through the moment of birth, with conditions that included a physician’s certification that birth would “likely” threaten the mental or physical health of the mother. The bill failed, but not before it evoked outrage and took a toll on Governor Ralph Northam, whose words confusingly suggested that the right might be availabe after birth as well. It’s not what he meant, even if it’s kind of what he said.

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