Category Archives: Uncategorized

Franks’ Collectivist Approach To Liability

If a killer used email to lure his victim to her death, would the email provider be responsible? If a pedophile used an app to convince an underage girl to meet him at some seedy motel, would the app be at fault? If a restaurant served dinner to a mass murderer right before his killing spree, would the restaurant be at fault? The cook, perhaps? The server?

There is a theory that would say yes, if there was some after-the-fact detail, some hook, some explanation, that in retrospect could arguably suggest they could have known, should have known, what was about to happen if only they had seen the signs. As Mary Anne Franks has expanded her reach beyond revenge porn to guns, so too has she expanded her chaos theory view of collective liability.

We have reached a point in America at which mass shootings happen so often that the country sometimes only has a few days — sometimes only a few hours — to catch its breath in between. When the shooter is white and male, as mass shooters so often are, the narrative of the “lone wolf” quickly becomes dominant. Anti-gun control ideologues, from the National Rifle Association to Republican lawmakers, assure us that the shooter was a monstrous singularity, just one bad guy who happened to have a gun. Continue reading

Not All Process Is Due, Presidential Edition

Not to unduly puff my cred, but I’ve been a strong proponent of due process. But there are limits.

For example, you have denied the President the right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights guaranteed to all Americans. You have conducted your proceedings in secret. You have violated civil liberties and the separation of powers by threatening Executive Branch officials, claiming that you will seek to punish those who exercise fundamental constitutional rights and prerogatives.

This was written by Pat A. Cipollone, counsel to President Trump. It’s nuts. It’s utter nonsense. It’s the abuse of the arguments that I and others make when the circumstances require due process but it’s denied, and it undermines legitimate claims to due process deprivations by seizing upon the words of due process without any remotely reasonable connection to its rationale. Continue reading

Publius Comes To Harvard

Whenever the subject of anonymity arises, poor Publius gets dragged out as proof of its efficacy and tradition. It’s a strong point, but for the one distinguishing detail of Publius as author of the Federalist Papers: that the writings were not dependent on the credibility of the writer, but on the writer’s arguments.

If Publius’ arguments required one to rely on personal experience or the credibility of the writer, then anonymity would have rendered Publius’ words meaningless, for anonymity may protect the writer’s identity, but simultaneously means that anything dependent on the writer’s identity is inherently incredible. Welcome to Harvard.

Harvard’s Title IX Office debuted an anonymous online reporting form on Monday designed to help students report sexual misconduct with greater comfort and logistical ease.

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Warren’s “Get Kav” Plan

When a lawyer does the dirty, there are places to go. If it’s a crime, go to the prosecutor. If there’s a dispute over money or competence, there’s a civil suit. If there’s an ethical failing, go to the entity that governs lawyer discipline. The first could put the lawyer in prison. The second could cost the lawyer big money. But the third? The worst it can do is pull the lawyer’s ticket and deny the individual the right to practice law.

But what about a judge? One would expect Elizabeth Warren, who came out of Harvard Law School, to have some appreciation of how the system works and why it works that way. But these are passionate times, and she wants to run for president so very badly, so she’s come up with a plan.

When Kavanaugh rose to the Supreme Court, sexual assault and perjury complaints against him were dismissed. Continue reading

Cert Denied, Attack The Messenger

Mark Bennett, the Texas Tornado, let me know that the Supreme Court denied certiorari in Scott Ogle suit against Texas. It was unfortunate, but unsurprising. Exceptionally few cases get to the big show, regardless of wrongfulness on the law or the “injustice” of the outcome. This makes little sense to non-lawyers, as they see SCOTUS as the court of last resort, the last chance to correct a grave wrong. Perhaps it should be, but it’s not.

The same day, the same order list, included another case for which cert was denied, Herrick v Grindr. Herrick was the victim of an ex-boyfriend who weaponized the dating app Grindr to make Herrick’s life a misery. But Herrick wasn’t suing the guy wielding the bludgeon, but the bludgeon, for the harm done him. Eric Goldman explains. Continue reading

The Ironic Ridiculousness Of Other People’s Peer Groups

Who else but their peers would serve as their peer group? This is true of the rich and poor alike, even though their peer groups are very different. But that’s what pushes people forward, to try harder, to do more. It’s not necessarily a good thing, and can easily spin out of control. But that’s as true for the street kid attracted by the gold fenders in some dealer’s mouth as the wealthy matron attracted by some diamond tiara on her opera pal’s carefully colored and coiffed hair.

When people from one peer group explain the absurdity of the things that matter to other peer groups, the characterizations turn goofy, and while occasionally amusing, usually insulting. It’s reminiscent in some way of Horace Miner’s “Body Ritual of the Nacirema,” but for the deliberate denigration of motives.

The idea of meritocracy has long been used by the rich for self-justification. Now it is becoming fuel for their self-pity.

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Who Murdered Joshua Brown? (Update)

His testimony was given a mere ten days before his death on behalf of the state and against the defendant. The defendant was former Dallas police officer Amber Guyger. It wasn’t critical testimony, but more color commentary, the sort of additional testimony that provides flavor and context to the crime and the victim. Some media are calling his testimony “key,” as he was an “ear witness” to the killing, but while his testimony was certainly helpful to the prosecution, it’s unlikely the conviction hinged on his testimony.

Yet, two days after the verdict, there he was. Dead.

Officers were called Friday night to the Atera apartments in the 4600 block of Cedar Springs Road, where witnesses reported hearing gunshots and seeing a silver four-door sedan speed out of the parking lot.

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Condescendingly Quitting

As happens these days, I wrote a post this morning that, upon completion, I decided not to publish. The reason is that it will resonate with those who already get it, and will enrage those who don’t. It was about law students. It was about mentoring law students. It was about narcissistic children who believe their opinions, particularly of the quality of “lol no,” are entitled to either validity or, at worst, lengthy discussion using words of explanation that leave them with feelings of support and empowerment rather than feeling called out as morons.

The problem is that they are too often morons. The problem is that some of them are ignorant and fragile children who not only feel entitled to spew whatever nonsense is in their head, but demand that it be taken seriously and treated as valid. Except for the fact that they’re morons.

It’s no longer a situation I’m willing to suffer, and so I unceremoniously end any engagement and leave them to whatever they need to do to salvage their lost dignity. I don’t like to think of myself as a quitter, but I quit. Continue reading

Wrong Message On Right To Be A Juror

The joke about Batson is that the decision was grounded in a person’s “right” to be a juror, as if nine out of ten people who receive a jury notice leap for joy at the prospect. From the peculiar perspective of certain activists, this is a goal, to bring maginalized people into the venire who have been denied access, stricken from juries and precluded from their “right” as a citizen to sit in judgment.

Many people would pay to avoid this “right.” Many don’t care. It’s not that jurors don’t take their job seriously once they’re in the box. Indeed, they take it very seriously, and do their level best to be good and fair jurors. But they would rather be somewhere else. Anywhere else.

Deandre Somerville was selected to sit as a juror. He was the only black person on the jury, which shouldn’t matter but does. It matters to the lawyers who picked him, or more likely, didn’t strike him from the panel. It matters to the litigants, as he may bring a difference perspective to the panel, for it he didn’t, there would be no real point to the concept underlying Batson at all. It should have mattered to Somerville. Continue reading