A friend, who also happens to wear the hat of a local elected official, was troubled. He asked my thoughts, as he went through some old local laws to determine which had overstayed their welcome. One law, he explained, was clearly unconstitutional, but his colleagues strongly resisted dealing with it. It was an old law. It had been around a long time, and it had proven a useful law. It has never been tested in court.*

“But it’s unconstitutional,” he emphasized. A lot was taken for granted over the years,. Laws that served people well given social norms of the time, were so deeply embedded in our understanding of what was acceptable that subsequent changes in technology, norms and sensitivity toward the chilling of free speech had no impact.

The Texas Court of Criminal Appeals faced such a challenge to its harassment law, Penal Code § 42.07. Everybody knows harassment is wrong and a crime. How could it not be?  Continue reading →

Is it not a person’s right to gripe about the unfairness, the impropriety, of a traffic stop on Facebook? Of course it is. This is America, and right or wrong, we get to complain about whatever we want to complain about.

Shortly after he was pulled over by a Kentucky State Police trooper on Sept. 16 near his home in eastern Kentucky last year, David Gabbard said he wrote a Facebook post sharing his anger at what he felt was an illegal stop.

“Just love being pulled over for no reason lmao. #maybenexttime. #policeharasment (sic),” the post read.

In the scheme of complaints about cops, this was about as tepid as it gets. But it was apparently harsh enough to infuriate the cop who nabbed him. Continue reading →

Over the course of our history, we’ve sought to create fair processes to achieve fair outcomes. The problem, of course, is that no matter how fair the processes, it seems the outcomes are never quite what some demand. If women comprise 51% of the population, for example, they should comprise 51% of corporate CEOs and board members.

It makes perfect sense, provided you ignore a multitude of factors that could explain why that hasn’t happened and focus instead on the one explanation that you want it to be: sexism. To consider any other factors would likewise be sexist, since sexism has been pre-ordained as the cause of this disparate outcome. So the obvious and expedient solution is to socially engineer corporations to mandate the outcomes that they should have but for sexisim. After all, sexism is wrong, so this has to be right.

David Lorimer has raised the question in the legal context, having written an “as yet” unpublished paper calling for the elimination of juries in rape cases. The problem is that juries aren’t convicting as many “acquaintance rape” defendants as they should. Continue reading →

In Portland, a march and vigil was held for Patrick Kimmons, who was shot and killed by police after he allegedly shot two people and pointed a gun at the police.

The group, which included members of Kimmons’ family, gathered near a memorial supporters have set up near Southwest 4th Avenue and Harvey Milk Street, at the parking lot where the shooting occurred.

“We’re not here to riot. We’re here for justice,” said Charles Kimmons, a family member. “We need to fight this all the way to the end. These cops need to be locked up.”

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Almost immediately after the confirmation of Kavanaugh, the Federalist demonstrated its utter gracelessness by calling for a defamation suit against Christine Blasey Ford and the Washington Post. Not only would the suit be politically ridiculous, but it reflected the absolute worst of faith by the extreme right.

Former Astronaut Scott Kelly was possessed of a bigger spirit. He twitted:

One of the greatest leaders of modern times, Sir Winston Churchill said, “in victory, magnanimity.” I guess those days are over.

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The word going forward will be “legitimacy,” as the Least Dangerous Branch has only one real arrow in its quiver, that it possesses the trust of a nation. And as my former Fault Lines writer, Cristian Farias, contends, “Kavanaugh’s Confirmation Shreds the Pretense of an Apolitical Supreme Court.”

On the eve of Brett Kavanaugh’s confirmation to the Supreme Court, not long after Senator Susan Collins offered the apologia that clinched his elevation, Justice Elena Kagan was asked how she and her colleagues managed to find comity and stay above politics — even at a time when Washington was burning with partisan rage over the soon-to-be newest member of the institution she loves.

Kavanaugh and the ugly politics of his nomination remained nameless, but Kagan all but conceded that with him on the Court, and Justice Anthony Kennedy gone, things won’t ever be the same. “Part of the Court’s strength and part of the Court’s legitimacy depends on people not seeing the Court in the way people see the rest of the governing structures of this country now,” Kagan said at a Princeton University event celebrating, of all things, the contributions of women to that institution. “In other words, people thinking of the Court as not politically divided in the same way, as not an extension of politics but instead somehow above the fray.”

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Philadelphia District Attorney Larry Krasner is an experiment playing out before our eyes. Whether the experiment will work, or work out as well as hoped, has yet to be seen, but it’s become clear that Krasner, a former criminal defense lawyer, is the real deal. He’s kept his word, made hard calls and, for better or worse, held true to his word. He’s a reform prosecutor.

This didn’t sit well with Court of Common Pleas Judge Anne Marie Coyle, who had a fairly pedestrian probation violation case before her where the defendant was rearrested. She expected the prosecutor to prosecute, to seek the defendant’s probation to be violated in advance of his conviction for the new offense.

The case involves defendant Demetrius Mayfield, 26, who has a long rap sheet and who was charged in 2016 with gun and drug offenses. In May, he pleaded guilty under a negotiated deal to a felony charge of possession of a firearm prohibited by a felon. Coyle sentenced him to 11½ to 23 months in jail, followed by probation. With credit for time served, Mayfield was immediately released from jail. He was prohibited during probation from being in a home or vehicle with drugs or guns. Continue reading →

It was one hell of a ride, from a bankrupt law firm and fending off disciplinary complaints to being a media darling. All it took was a sordid client available to take down a sordid president, and the boldness to play show pony to the hilt. It’s not that serious people took Michael Avenatti seriously, but that the desperate and disaffected would seize upon any hero they could find. For reasons they neglected to consider, lawyers tended not to be as easily swayed by his bluster as MSNBC pundits.

But Avenatti is now being blamed, to some extent, for undermining the significance of Christine Blasey Ford’s “credible” accusations against Brett Kavanaugh. Has he lost his luster? Did he overplay his hand. Is this the end of the Avenatti show?

The spotlight-stealing lawyer, who also represented Stormy Daniels, is responsible for drawing the media’s attention to Julie Swetnick, an alleged victim of Kavanaugh who told an inconsistent and unpersuasive story. Swetnick’s wild accusation provided cover for fence-sitting senators to overlook the more plausible allegation leveled by psychology professor Christine Blasey Ford, and to declare that Kavanaugh was being subjected to false smears. Continue reading →

Maine Senator Susan Collins explained her reason for voting to confirm Justice Brett Kavanaugh in a 45 minute speech. Some will find her reasons sufficient, perhaps even persuasive. Some will not. But then, there are some for whom reasons have nothing to do with it. This matters.

One can discuss and debate with people who are working in the same world of facts and logic as others. One cannot engage in any productive discussion with a person whose grasp of the world is constrained by their irrational beliefs, as they can’t see any world except the one stuck in their delusion. Or as Alexis Grenell describes it, her “stupid uterus.”

After a confirmation process where women all but slit their wrists, letting their stories of sexual trauma run like rivers of blood through the Capitol, the Senate still voted to confirm Judge Brett M. Kavanaugh to the Supreme Court.

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With Kavanaugh set to be confirmed, despite the certainty that he, like the president who nominated him, will bring death and destruction upon us, wild stories began to emerge. This comes on top of the efforts of pundits like Linda Greenhouse deriding the legitimacy of the Supreme Court as a bunch of partisan hacks in reaction to rulings that fail to meet her progressive desires, and in anticipation of the impact of Justice Neil Gorsuch and soon-to-be justice Brett Kavanaugh.

The most curious attack, which has swiftly entered myth stage, is that these justices are illegitimate because they reflect “minority rule.” The primary contention is that Trump, having failed to “win” the popular vote, a fundamental contortion of our electoral system, is an illegitimate president, and that Kavanaugh, expected to be confirmed by senators representing a minority based upon their state’s population or vote totals, will thus be doubly illegitimate.

Why does it matter? Because the theory is that they reflect a radical conservative view that strays from the “mainstream of American political life.” This myth has already found its way into a New York Times op-ed. Continue reading →