Want to know how clueless I am? When twitter came onto the scene, I scoffed. Back in 2008, the blawgosphere was in full swing, vibrant and, for the most part, pretty darn thoughtful. Posts were a fraction of the length of a law review article, informal and, for the most part, sound. Sure, there were some bad actors in the blawgosphere, and some less-than-good actors, but at least there was good stuff to balance it out.

But I was wrong, and twitter became a thing. I refused to accept this for a while, and even now refuse to discuss my blawg posts on twitter, as twits are transitory and thus fail to contribute to the discussion here. It doesn’t stop anyone from commenting about a post on twitter, but I won’t engage with it. One law student chastised me for it, impugning my motives because she demanded I do things her way. Aren’t law students adorable?

Today, however, my posts are too long and require too much effort, and they aren’t read by enough people to make a difference. David French explains why. Continue reading →

The New York Times exposé on the T.M. Landry College Preparatory School raised all manner of issues, from the education its students were denied to the false transcripts, recommendations, sad tales of racial woe, that got them into colleges desperately seeking diversity. One commenter to the story, a public school teacher, even found a way to twist the tale to be about her gored ox, the underfunding of public education, such that people felt compelled to seek alternatives if they were to go on to succeed.

And indeed, the story lends itself to so many of the problems and fears that reflect the effort to achieve identitarian outcomes despite the failure of process.

T.M. Landry has become a viral Cinderella story, a small school run by Michael Landry, a teacher and former salesman, and his wife, Ms. Landry, a nurse, whose predominantly black, working-class students have escaped the rural South for the nation’s most elite colleges. A video of a 16-year-old student opening his Harvard acceptance letter last year has been viewed more than eight million times. Other Landry students went on to Yale, Brown, Princeton, Stanford, Columbia, Dartmouth, Cornell and Wesleyan.

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Despite his acquittal after trial by jury, Yale wasn’t done with him. At the time, Saifullah Khan really didn’t have a chance, knowing that there was a huge hook for Yale to hang on, that he was found not guilty because the burden of proof was beyond a reasonable doubt. Yale didn’t have to suffer any such burden. Yale didn’t have to endure the onerous requirements of due process. So what if he wasn’t guilty. That didn’t mean he was innocent.

The legalistic distinction between beyond a reasonable doubt and the standard at Yale, preponderance of the evidence, is the technical distinction, but hardly the only one. At a real trial, rules of evidence are used, examination and cross are required and the trial is overseen by a judge, who knows actual law and instructs the jury. It’s not that the lower standard is inconsequential, but only one of the many due process protections that distinguish a trial from a farce.

Yale never wanted Khan back. Yale students never wanted to Khan back. Yet Khan wanted to return to Yale. Maybe he was just a guy who refused to let adversity defeat him. Continue reading →

There can be little question but that her election as a serious reform prosecutor acknowledged her plans to not prosecute a list of offenses that constituted crimes. Suffolk County, Massachusetts, District Attorney Rachel Rollins was up front about it. She campaigned to be the first black female prosecutor and she provided the list of crimes she would refuse to prosecute.

After being elected, but before taking office, she learned that not everyone was going to love her for it.

A group called the National Police Association (NPA) has filed an ethics complaint against Rollins — before she has even taken office. As Carissa Byrne Hessick, director of the Prosecutors and Politics Project at the University of North Carolina School of Law explained on Twitter, the complaint is utter nonsense. It’s based not on any actual ethical violations, but on Rollins’ campaign promise to not prosecute 15 low-level nonviolent offenses, ranging from public trespassing to drug possession.

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Among the many things I collect is Georgian sterling silver, and one of my favorite silversmiths is a woman named Hester Bateman (1708-1794). It’s not that she was a female silversmith, but that she was an exceptional silversmith who happened to be a woman. While this may, to some, be more craft than art, it’s art to me. Your mileage may vary.

Freshly polished Hester Bateman wine funnel (1776).

But what Bateman was not is a gorilla. Rather than protest her way to glory, she created beautiful objects, and hundreds of years later, she remains recognized for her work. The Gorilla Girls are taking a different path. Continue reading →

My old buddy and fellow curmudgeon, Mark Herrmann, has a knack for predicting the future of Biglaw, which comes as no surprise since his position as in-house counsel at Aon allows him to see the “industry” view from the front line. Last year, he predicted that the sexual harassment trend would hit law firms, and he was right. But this year?

2019 will be the year of the woman in the law.  I predicted last year that we’d see more allegations of sex harassment in law firms.  I think that’s come to pass.  Partners at law firms have now been fired after having been accused of impropriety.  Law students have convinced major firms to change their policies about arbitrating employment disputes.

That was a beginning.  In 2019, we’ll see a middle:  Clients will increasingly insist that women participate on trial teams, get origination credit for work, and otherwise progress in law firms.  Firms will be embarrassed by pay equity studies that reveal how women are undercompensated.  The pressures from within and without will make the legal profession bend, and women will see real progress in 2019.

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I told them. They didn’t listen to me. They were right and I was, well, unacceptable. They went from effective, hardcore, flea-bitten realists to fighters for the resistance, because everything was literally Hitler, every burp and fart, and more importantly, every twit had to be noted, excoriated, ridiculed and ripped to shreds. It felt so good to be outraged, and there was always something new to be outraged about.

Remember when NBC was under fire for broadcasting a comedian’s light mockery of Pearl Harbor survivors? And when a costume that the recording artist Macklemore performed in struck some as anti-Semitic? And when Jennifer Lawrence made a rape joke? And Ira Glass’s dig at Shakespeare? And a Washington Post contributor’s remark on marriage and gender violence? And Raven-Symoné’s comment about her racial identity?

Yeah, me neither.

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Are minority scholarships your cause? They’re a good cause, even if there are other good causes as well, and certainly an appropriate cause for the New York State Association of Black and Puerto Rican Legislators. You can tell from the name that it’s old school, when Puerto Ricans were the only Latinos around. That hasn’t been the case in decades now, yet the name persists. But surely these would be people for whom this cause was important.

A nonprofit run by state lawmakers to raise scholarship money for needy minority students spends most of the cash on its lavish annual soiree — including $6,000 on limos — and gave out no grants the last two years, The Post has learned.

The New York State Association of Black and Puerto Rican Legislators organizes a “Caucus Weekend” — a series of workshops, concerts and parties — in Albany every February for minority members of the Assembly and the Senate.

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I wasn’t a big fan of Louis CK back when he was adored for his sensitivity toward fat women. I’m no more a fan of his today. If someone gave me free tickets to a Louis CK show, I would thank them for their generosity but decline. He’s not my flavor of comedy, but for an entirely different reason than Matthew Dessem.

Comedian Louis C.K., who admitted to repeatedly exposing himself and masturbating in front of unwilling women in Nov. of 2017, said at the time he was going to “step back and take a long time to listen.” Less than a year later, he returned to the stage at the Comedy Cellar to perform an unannounced set. Although the way he came back didn’t inspire much confidence that he’d learned anything during his time in the wilderness, it was still possible, if you leaned way back and squinted, to speculate that his decision to return without any fanfare was a mistake.

When a video appeared of a December 16th set, however, there was no longer a question in the minds of the Overseers of Shame. Continue reading →

Almost a year ago, I questioned what the women were marching for. It was known from the outset that the concept began with a group of white women, but was immediately subject to criticism for its lack of color, and so it was reinvented with other women. Now, the story behind the story has come out.

On Nov. 12, 2016, a group of seven women held a meeting in New York. They had never worked together before—in fact, most of them had never met—but they were brought together by what felt like the shared vision of an emerging mission.

There were effectively two different cohorts that day. The first one included Breanne Butler, Karen Waltuch, Vanessa Wruble and Mari Lynn Foulger—a fashion designer turned entrepreneur with a sideline in activist politics, who had assumed the nom de guerre Bob Bland. These four were new acquaintances who had connected in the days since Donald Trump’s election, through political networking on social media.

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