Category Archives: Uncategorized

Tuesday Talk*: A Discouraging Word

I think often of a post that has sadly disappeared from the blawgosphere. Venkat Balasubramani observed a “cult of positivity” on the twitters:

A while back, Venkat Balasubramani noted the “Cult of Positivity” [I left the link in, though it’s now dead. Damn you, Venkat!] on twitter, where being nice to people you don’t know was repaid by their being nice in return.

Positivity certainly reigns supreme in the corner of the Twittersphere that I frequent, and my impression is that there are other pockets of it that are overwhelmingly positive as well. Twitter is all about highlighting positive things and people.  The virtual high five or pat on the back is currency on Twitter.  Indeed, research is passed around which shows that “negative remarks lead to fewer followers.”  In my (admittedly anecdotal experience), while there are a few people who call it like they see it, most legal birds are effusive in their praise and quick to withhold criticism.  And this extends to points of view taken, articles passed around, etc.  It’s almost as if it’s socially unacceptable to say that something sucks.

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Older, But Not Wiser

In some quarters, anything that emits the unpleasant odor of discrimination is immediately given an -ism name and small bands of activists will launch war parties to shame anyone besmirching their victims. Outside of a small group of suspect classifications, generally considered immutable characteristics which had traditionally, but should never, play a role in discrimination, have been identified and prohibited by law.

Title VII of the Civil Rights Act of 1964, for example, prohibits discrimination based on “race, color, religion, sex and national origin.” This was “sex” in the old sense, as opposed to gender or sexual orientation, although many will argue vehemently that those things are subsumed in the three letters. Left out of the law was discrimination based on age.

At the time, the problem was that older workers were more expensive than younger ones, so businesses would jettison the most expensive at their prime earning years to save a buck. Certain assumptions of the day were built in, such as people keeping a job, remaining with an employer, for most of their career. Continue reading →

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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