It isn’t always easy for a federal judge to address a claim of a constitutional right, particularly when the crux of the issue revolves around the disclosure by a detective and child protective case manager that a person’s spouse has a missing part of their anatomy  about which spouses usually tend to be acutely aware. So Judge Damon Leichty in the Northern District of Indiana took the easy way out, holding that the plaintiff failed to show that there was a clearly established right to privacy of “gender preference”* and gender identity.

The case arose from an arrest following the plaintiff, the non-biological and non-adoptive, father of a 17-year-old for throwing him out of the house and refusing to feed and support the child. The child’s mother was arrested as well, same reasons, giving rise to an unusual issue. Continue reading →

Four years ago, Josh Blackman was invited to speak at CUNY law school by its Federalist Society chapter on the topic of free speech on campus. It did not go well. The National Lawyers Guild chapter decided that whatever Josh had to say, it should not be heard. Its express reasoning was “fuck the law,” their words.

It seemed that Free Speech had become a “dog whistle” of the far right, which therefore justified disrupting any attempt to discuss or debate it. Was this a low point for law schools, a reaction to the extremes arising from fear and loathing of Trump, where thought, argument, debate and tolerance of a constitutional right in the hands of an “adversary” could no longer be tolerated? Continue reading →

After the jury went into deliberations, Judge Jed Rakoff informed the attorneys for both sides that he was granting the defendants’ Rule 50 motion, finding that no reasonable jury could conclude that the plaintiff proved malice. But this was Sarah Palin suing the New York Times and its inadequately woke now-ousted editorial page editor, James Bennett, so naturally it was going to be a big deal in the news. Judge Rakoff didn’t anticipate that.

Because this was a serious and case-dispositive motion, the Court did not rule precipitously. Rather, the Court reserved judgment, first so that it could hear the lawyers’ closing arguments and then, even after the jury had begun its deliberations late on Friday afternoon, so that the Court could receive further written and oral submissions from counsel. Ultimately, however, by the early afternoon of Monday, February 14, 2022, the Court had reached the firm conclusion that it would have to grant the motion for judgment as a matter of law and so informed the parties.

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It happened with Ilya Shapiro, when his use of the word “lesser,” used in its ordinary comparative sense of greater or lesser, was plucked out of context as if a stand-alone characterization of black female judges. It’s not that his twit was a good twit otherwise. It was not. But it also did not say what many pretended it said, which should be obvious to anyone who read all the words.

Social media is, in one sense, the great homogenizer. Smart people and stupid less smart people, sane people and crazy less sane people, all get to read what someone says and react, respond, interpret and reimagine the words in their own image. Some read the words with the same degree of thought and understanding as the writer intended. Others aren’t capable of doing so. Continue reading →

My German son, David Meyer-Lindenberg, told me that one of his best friends, Misha, needed body armor. Misha is Ukrainian, and like so many others, he has taken up arms to defend his nation against Russia. To do so, they need to be able to fight, which means everything from ammunition to helmets, food to medical supplies.

So far, the battle has gone better than expected, which creates a bizarre mix of idealistic expectations and naivete. Young women proclaim they have a “crush” on Zelensky, as if that’s what matters to him at the moment. Protesters have taken to the street in Washington against the war, as if that might change Putin’s mind. The Empire State Building is lit at night in the gold and blue of Ukraine to show support, which is nice but puts no bullets in empty chambers. Continue reading →

Sitting in the barbershop, there was a woman on the television of unknown qualification during one of those daytime panel shows of women of little qualification giving advice to parents about how to discuss the Russian invasion of Ukraine with their children. The woman giving advice looked barely old enough to have children herself, but presumably had a degree or wrote a book, so was “expert” enough to fill the air time between commercials.

Her advice was to be simple and supportive. Tell your children they are safe, so they shouldn’t be afraid. My barber, Carol, watched with me, and afterward said, “What the hell is wrong with her?” I demurred, mostly because Carol was holding scissors at my head. Continue reading →

During the campaign, Joe Biden spoke words that he believed would help get him elected by announcing that if was to get the opportunity to nominate a Supreme Court justice, he would choose a black woman. How much that helped him will never be clear, but that it  would taint his nominee in the eyes of his adversaries was obvious. After all, is there any smaller cohort in the scheme of potential Supreme Court nominees than black women, a tiny fraction of a tiny fraction of a small fraction of the universe of potential nominees?

But the unspoken reality happened to make that announcement a little less troubling in the real world than it is in the world of identity politics, where announcing the qualifications for the next justice would be skin color and genitalia, not because it was pandering to the racists (would it have been any different if a president announced he would nominate a white man, an Asian transgender person, an Indigenous nonbinary person or, like me, a Jewish delisexual?), but because it so happened that the pool of potential nominees included some exceptionally good choices. Continue reading →

Every once in a while, someone lacking a firm grasp on the concept of impartiality says the quiet part out loud. When it comes to Title IX hearings, that person is often Brett Sokolow, president of the Association of Title IX Administrators (ATIXA) and head of a college “risk management” consulting company. Sokolow is a lawyer, though you would be hard pressed to figure that out from his grasp of the basic principles of law.

This Tip of the Week allows us to focus on two challenges – process delays and the resultant staleness of witness recollection.

To no one’s surprise except Brett, providing an accused with due process is more work than conducting an inquisition, and he may be correct that few campus investigators are  sufficiently competent or inclined to do so. But the more curious grievance is that delays in reaching conclusions is creating a secondary problem, that witnesses can’t keep their stories straight. Continue reading →

I recently told the following joke to my wife, which went completely over her head:

“A boy is sitting on the side of the road, shaking a bottle of turpentine and watching the bubbles in the liquid. A priest walks by, and asks the boy what he’s doing.

“Father,” says the boy, “this is turpentine, the most powerful liquid in the world.”

“Why dear boy, you’re mistaken!” the Priest says. “The most powerful liquid in the world is holy water. You can rub it on a pregnant lady’s belly and she’ll have a healthy child!” Continue reading →

The common expression is that someone “committed a crime.” Ever read that someone “omitted a crime”? That’s what three police officers in the sideshow of the most notorious police killing of the decade, George Floyd, now stand convicted of, the crime of omission.

A federal jury determined that the officers — Tou Thao, 36; J. Alexander Kueng, 28; and Thomas Lane, 38 — had willfully violated Mr. Floyd’s constitutional rights by not providing medical care when he lost a pulse and that two of them were also guilty of not intervening to stop a fellow officer, Derek Chauvin, from planting his knee on Mr. Floyd’s neck.

Mr. Kueng and Mr. Lane both helped Mr. Chauvin restrain Mr. Floyd while he was handcuffed facedown on the pavement. Mr. Thao stood nearby, keeping bystanders away.

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