Old jokes to some aren’t jokes at all these days. Its not just Lenny Bruce or George Carlin who are awful, but the same banal old jokes that, to those who either never heard them or just love being outraged, evoke outrage. Dirty old man? Ladies’ Lingerie? Outrageous!!!

You don’t find it funny? Fair enough. Nobody can make you find something amusing if you don’t want to, and you’re entitled to not find something funny any damn time you want. So don’t laugh. Or if it offends you, say it. Go ahead, say it.

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Attempting to raise any point about Michael Cohen, Trump’s “fixer,” is an invitation to the unduly passionate to outrage. After all, he’s pleaded guilty, but more importantly, he’s implicated the First Individual in his crimes and there is nothing more important than that. There can be no question raised, even if a nuanced understanding of what happened to Cohen remains unanswered.

This is where we are, making up excuses and fighting against any doubt that the hated Cohen deserves to be hated, because it moves us ever closer to the end of Darth Cheeto’s reign.

When all is said and done, the April raids by federal prosecutors targeting Michael Cohen’s office and other premises in Manhattan may be seen as a turning point for Donald Trump’s presidency. Continue reading →

In what may be a red-letter day at the New York Times, two knowledgeable voices are speaking to the peculiar actions of Paul Manafort, both of whom (I humbly note) were writers at Fault Lines. First, there’s Cristian Farias’ editorial, “What is Paul Manafort Thinking?” Then there’s Ken White’s “Why Did Manafort Cooperate With Trump Over Mueller?”

Both of these posts try to make sense of the nonsensical, that Manafort, at least theoretically, chose to cast his lot with Mueller by becoming a cooperator, whereupon he chose to lie rather than cooperate. To what end? And then there are the consequences of this misbegotten choice, that he will get whacked by the judge at sentence for his actions, will be amenable to state prosecution so that no presidential pardon will protect him from consequences, and most bizarrely, expose his attorney-client communications to disclosure by his attorney continuing to reveal to Trump’s lawyers what was happening behind the scenes of his cooperation.

Who does this? Why would anyone do this? Continue reading →

Of all the aspects of the proposed Title IX revisions to focus on, Cornell lawprof Mike Dorf oddly chose the burden of proof, probably the least significant aspect of the changes to trial lawyers. When Catherine Lhamon, head of the Department of Education’s Office of Civil Rights told colleges to use the “preponderance of evidence” standard or else, her purpose was to facilitate findings of guilt.

Dorf adopts the argument preferred by twitter lawyers in favor of the reduced burden.

Why was the ED specifying the burden of proof in college grievance procedures? Some schools had been requiring that complaints of sexual violence be proven by clear-and-convincing evidence or even proof beyond a reasonable doubt. The rationale for these heightened evidentiary standards was dubious. The beyond-a-reasonable-doubt standard applies in criminal cases where a defendant risks imprisonment. The clear-and-convincing standard applies in civil commitment hearings, where personal liberty is also at stake. It also applies in some other settings. However, in the vast majority of civil cases, the preponderance standard applies, even when the stakes are high, as when a plaintiff sues for defamation based on damage to her reputation.

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When Cass Sunstein and Richard Thaler published Nudge in 2008, no less a classical liberal hero than George Will raved about the book. He immediately identified what made it special:

Thaler and Sunstein correctly assume that people are busy, their lives are increasingly complicated and they have neither time nor inclination nor, often, the ability to think through even all important choices, from health care plans to retirement options. Therefore the framing of choices matters.^[1] 

This is where the “nudge” comes in: subtle pressure by government that steers people in the direction of a better life. (Think mandatory nutritional information, or automatic enrollment in pension plans.) The emphasis is on framing choices, not denying them. Outright bans on behavior are blunt solutions. They don’t respect people’s autonomy, and make it so that the powers that be overwrite the preferences of individuals with their own idea of what makes for good living. Continue reading →

The introduction to Harvard lawprof and public intellectual, Cass Sunstein’s new book, On Freedom, opens with a question and non-responsive response:

Does freedom of choice promote human well-being? Many people think so.

The problem is that this putative question isn’t a question at all, but an assumption framed as a question, which serves as the lead in to his thesis that people struggle with navigating the “right” choices, and thus his solution, that “choice architecture,” unavoidable no matter what, should serve to nudge people toward the choices that best promote human well-being while allowing them the freedom to ignore the nudges and do as they please. Continue reading →

I vaguely remember getting the letter and reading the opening paragraph. It was from a prisoner whose name sounded somewhat familiar, Martin Tankleff. I remembered it from the newspapers, a kid convicted of killing his parents. Years later, he would be exonerated for the murder, and I would think about how I tossed the letter in the garbage rather than reply.

Criminal defense lawyers get letters from random prisoners all the time. They’re often long letters. They occasionally come with papers or transcripts, sometimes hundreds of pages. They proclaim their innocence and beg for a lawyer to save them. Pro bono, of course.

It takes time to read these letters from unknown prisoners, and after reading the first few, you realize they are largely incomprehensible, replete with gushing words about justice and devoid of any substantive basis for action, other than the prisoner’s denial of guilt. You become inured to the protestations of innocence. They all say so. Few are. Almost none can prove it. Continue reading →

I remember taking the final in college. It was traumatizing, not because of the subject matter (which might well have been traumatizing had I been inclined to be traumatized), but because I forgot that I was registered in the class and never went to a lecture or read the books. It wasn’t until I received notification of when the final was to be held that I realized my error. It was too late to drop the course, so I had no other option than to show up for the final and do my best to pull it off.

I should have gone to Sheffield University.

Professors already give “trigger warnings” when using images from video games, war photographs and depictions about the crucifixion of Jesus Christ or when organising discussions about underage sex, homelessness and religion. Continue reading →

There’s a weird thing that goes through the heads of some defendants, where they start to believe their own malarkey. Like they’re innocent, when they’re guilty as sin, caught on video doing the dirty. It makes for some very weird discussions about the handling of their case. But regardless of outcome, the last thing you want to hear about is how innocent they were, and how they deserved the outcome as opposed to some damn fine lawyering that saved their very guilty butt.

Meek Mill has parlayed his profile as rapper into innocent spokesperson for the downtrodden in the system. While on probation in Philly, he came to New York City and pulled a wheelie on a dirt bike, which was put up on Instagram, because that’s what cool people do. He got pinched for reckless endangerment. His lawyer, Joe Tacopina, got him an adjournment in contemplation of dismissal, which means that if he stays clean for six months, the case is dismissed. He was also sentenced to 30 hours of community service.

An ACD is a good disposition, and the subsequent dismissal of charges, essentially a second chance built into the law, let’s a person walk away from their offense. But it’s not innocence. It is specifically not a “disposition in favor of the accused,” so as to distinguish an ACD from innocence. It’s just a Mulligan, and Joe Tac did a good job getting an ACD for Mill. Mind you, Joe doesn’t come cheap. Continue reading →

Some might have been put off by the fact that this steaming pile of crap appeared in no less a newspaper that was supposed to keep a critical eye on the doings of junk forensic science than the New York Times. After all, had the failings not been made abundantly clear?

Once seen as crime scene detritus, bullets and ejected shell casings — which have unique sets of scratches, grooves and dents — are recognized these days as vital pieces of evidence. More officers are now taking the time to collect shell casings from petty crimes and nonviolent shootings, like when joy riders use stop signs for target practice, because they may eventually help solve more dangerous acts of violence.

As the feds dearly love to do, they gave their database a cool name, National Integrated Ballistic Information Network, and fed a story of their glory to a willing “journalist,” who duly reported it. Continue reading →