Category Archives: Uncategorized

The Meaning of “Sex”

The Supreme Court has granted cert in three cases, a two-to-one circuit court split, to decide the question of what “sex” means under Title VII of the Civil Rights Act of 1964. This is the worst nightmare of gay and transgender advocates, who have worked hard to accomplish through lawfare what they have failed, over and over, to accomplish through legislation. Given their perhaps overly simplistic view of the Court’s partisan players, political hacks when feared, this could spell the end for their efforts to change the meaning of one critical word: Sex.

The framing of the headline question in the New York Times editorial gives away its posture. If it’s a referendum on supporting gay and transgender workers, then it comes out one way. And if it comes out any other way, then it means the Court endorses discrimination against those workers, because surely it would rule to protect them if the Court wasn’t homophobic and transphobic. Continue reading

One Victim Too Many

The current reform regime for local prosecutors who have chosen to use their offices to supersede legislatures and decide which duly-enacted criminal laws are worthy of their efforts and which they shall veto has strong support from the progressive reformers. And with some reason, given the inability of divided and overly-partisan legislatures to address laws that few seriously question to be bad, grossly excessive failures.

If the states can’t do their job of fixing bad laws, isn’t it better that someone does? Sure, it may lack a certain adherence to principle, a violation of separation of powers when far too much power is put into the hands of executive branch officials exercising super-legislative authority.

It’s ironic, in a bad way, that these are the same officials who were accused of abusing their power when it was used harshly, but are now applauded for their even greater exercise of unchecked power when exercised in the way that favors reform. But reform is the outcome demanded by progressives, so principle is a distant second to outcome. In fairness, that was the case before as well, so it’s not as if this progressive view is less principled than its conservative predecessor. It’s just not any better. Continue reading

Why No One Will Hire You, Elie Edition

I, for one, appreciate that Elie Mystal went to the annual convention of the NALP, the National Association of Law Placement, as it’s good to know what’s happening among the functionaries whose role is to connect law students with law jobs, and far better that Elie should be the one to do so than, well, me.

For those who weren’t paying attention at the time, we lost a generation of law school grads back in 2007-10, when there was little demand for new lawyers and far too many for the jobs available. It was a nightmare for these budding lawyers, as they did everything right and yet ended up with massive law school debt and neither a future in law nor a way to get out from under the burden.

Things have since improved for new lawyers, at least as far as the job market is concerned, but there is a new problem, a terrible problem as Elie tells it, that NALP is now coming to grips with. Continue reading

See Something, Say Something, Get Arrested For It

Grand Rapids claims it has a problem.

Grand Rapids could soon have an ordinance that would make it a criminal misdemeanor to racially profile people of color for “participating in their lives.”

The “bias crime reporting prohibition” is one of a handful of adjustments that would be made to the city code as part of the proposed human rights ordinance.

A phrase like “participating in their lives” is one of those dubiously vague explanations that can be read entirely differently based on perspective. If it means “walking while black,” then it smacks of racism. If it means engaging in a life of crime, then it means something quite different. How does one know the difference? Continue reading

Free @bmaz (Update: He’s Back!)

If the name isn’t familiar from twitter, it should be from his writing as a founding contributor to Marcy Wheeler’s brilliant burden of bureaucracy, Empty Wheel. Bmaz is a criminal defense lawyer, a friend and a person I know in real life.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona.

Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Continue reading

Confrontation And The Veil

The Sixth Amendment to the Constitution sets out the Confrontation Clause, which ol’ Nino took very seriously. It also provides for a speedy and public trial, all of which gives rise to a problem when a witness for the prosecution wears a veil.

Eugene Volokh provides the background.

Tyreese Copper was convicted of murder and sentenced to life in prison. (This comes from Commonwealth v. Copper, which was decided in September 2018, but I just learned about it from a follow-up federal opinion filed early this month.) At trial, eyewitness Davina Sparks was called to testify; but she was a veil-wearing Muslim woman, and (to quote the government’s brief),

[C]ounsel objected to Ms. Sparks testifying while wearing her Muslim garb that covered her face. Ms. Sparks refused to remove the garb, citing her religion as the reason for her refusal. Out of deference to Ms. Sparks’s religious beliefs, the court decided to clear the courtroom for Ms. Sparks to testify without her face garb “so I can at least have her taking off her covering only in the presence of the people who are absolutely essential to being here,” i.e. the jury, court staff, defense counsel, and defendant. Trial counsel did not object to the court’s proposal. Ms. Sparks agreed to remove her face garb in a courtroom cleared of spectators.

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A Progressive’s Confession: Liberals Ain’t Us

In my Sisyphean quest to let neither conservatives nor progressives seize the word “liberal” and distort its meaning into their own, a new ally has emerged. Sadly, the ally is an unduly passionate dolt, but one takes one’s allies where one finds them.

Whatever happened to the grand unifying issues that used to drive the march of progess [sic]? What happened to the universal us, which emphasised [sic] what we had in common? Can’t we all just get along?

Eleanor Penny makes the notion of a “universal us,” of everyone “getting along,” sound kind of childish and silly in a Rodney King sort of way. Continue reading

A Nation Without Prisons?

It’s a provocative idea, that the consequence for the commission of a crime might be something other than prison. Not petty offenses by first-timers, who don’t get prison now, but the more serious crimes, the ones that do real harm to real people. Yet, this is what Ruth Wilson Gilmore proposes.

Prison abolition, as a movement, sounds provocative and absolute, but what it is as a practice requires subtler understanding. For Gilmore, who has been active in the movement for more than 30 years, it’s both a long-term goal and a practical policy program, calling for government investment in jobs, education, housing, health care — all the elements that are required for a productive and violence-free life. Abolition means not just the closing of prisons but the presence, instead, of vital systems of support that many communities lack. Instead of asking how, in a future without prisons, we will deal with so-called violent people, abolitionists ask how we resolve inequalities and get people the resources they need long before the hypothetical moment when, as Gilmore puts it, they “mess up.”

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Fearmongering A Dubious Bail Law

The great Murray Kempton wrote, “There they go again, framing the guilty.” His point was there could be wrong on both sides, and often is. New York has made a significant change to its bail statute, one that was needed not because the old law was inadequate but because prosecutors and judges failed to do their job with the level of honesty and bravery necessary to make any piece of the legal machinery work as intended.

But given the window of opportunity, when the Dems took over the New York State Senate, and held both houses of the lege, they would make reform happen. In a budget bill, of all places, without public discussion in the dead of night.

Despite the promise of a new era in the state Legislature, certain things didn’t change. Complex public policy, in this case criminal justice reforms, got forced through in a rushed budget process. And all New Yorkers may soon be less safe as a result.

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Seaton: Bicoastal Intellectuals Fail Free Speech

The Smart Guys’ Secret Social Network, a ragtag band of heterodox thinkers from all walks of life, recently convened in Los Angeles to discuss what the group saw as an ever rising tide of social media trolls and online attacks.

“It’s getting really tiresome,” moaned Guy Stuben, host of popular YouTube channel “The Stuben Retort.”

You can mute and block all day long, but eventually you need to address certain attacks, because they carry negative consequences if you just ignore them.

Everyone nodded in approval. Continue reading