Just because someone tells a story doesn’t mean it’s true, so take with a big grain of salt both the story and the moral of the story, particularly given the fact that it appears on a site with a tendency to grossly color its posts to align with its agenda. But since Richard Cohen raised it, the tenuous connection between cause and effect arises.

I had dinner the other night with a classmate from law school who has spent the last 20 years as a New York jurist. We talked about the numerous trials she had conducted, and at one point, she told me that she could not believe how rude and abusive some male lawyers were to her. Like talking over her, interrupting her, and trying in many respects to run the courtroom and take it away from her.

Now, she is no wallflower, and I suggested (and here I give a big shout out to my partner Amy Epstein Gluck, the “Notorious AEG”) that this was sexist behavior on the part of the lawyers; that they would likely not do that to male judges.  Her response can be reduced to one word: “Duh.”

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For reasons that are obviously clearer to the editors of the New York Times than to me, Roxane Gay has taken on the role of Dear Abbey. Why one would choose someone who wallows in outrage and misery to give advice to the lovelorn is a mystery, but could explain the existential angst of so many of its readers, particularly those who survive Michelle Goldberg’s internal emotional turmoil.

So Dear Roxy it is, with no expectation of millennials marrying, having children, not divorcing or finding a guiding philosophy not grounded in nihilism.

Dear Roxane,

I am a 43-year-old, single, never-been-married, educated mother of one and would like advice on love. I’m navigating dating life and need to fully understand the difference between loving someone, being in love and having a soul mate. I love the idea of love and would very much like to spend the rest of my life with a man, but find myself having commitment issues because I am afraid of choosing wrong. I see couples that have been married 10, 15, 20 years who get divorced and seem to be completely fine with it. It’s scary to me because I would like my marriage to last a lifetime. Am I overthinking this totally or being too paranoid? Or do you really never know, because only time will tell?

Sincerely,
Where the hell is the love of my life?

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The best part of the New York Court of Appeals memorandum opinion in Haug v. SUNY Potsdam is that it’s thankfully short. A wag might contend that its brevity is due to the fact that the rationale was so thin, so shallow, that there were simply no more words to offer.

Then again, the Court of Appeals, New York’s highest court because somebody totally screwed up the names, is a court of limited jurisdiction to address only law, not facts. Thus, the facts can only be found in the Appellate Division, Third Department, opinion.

Petitioner was a freshman at respondent State University of New York at Potsdam (hereinafter SUNY) in September 2014. In the early morning hours of September 7, 2014, he ran into a female student (hereinafter the complainant) with whom he had been friends for several years, and the two had sex in her dormitory room. The complainant reported to campus police shortly afterward that, while she had not declined to engage in sex and gave no “gesture saying that [the sexual encounter] wasn’t welcome,” she had been sexually assaulted.

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The Senate Judiciary Committee’s hearing not only fell short of the level of public interest reflected in the Kavanaugh hearings, but couldn’t muster even one Democratic senator. It’s not just that there was no audience to play to, to give Spartacus speeches or put on an incompetent cross, but that this was a “recess” hearing and, well, they would rather be on the playground than at work. Still, the nominee faced some serious questions from senators of her own side.

“I can see your résumé. You’re a rock star, but I think to be a really good federal judge you’ve got to have some life experience,” Kennedy said. “Williams & Connolly is a great law firm, a lot of great lawyers there. Tell me why you’re more qualified to be on the Fourth Circuit than some of the Williams & Connolly [lawyers] that have been there for 20 years, 25, 30 years in the trenches.”

“Again senator, my experience in the federal courts of appeals and the Supreme Court are why I’m qualified. Not only the depth of that experience but the variety,” she replied. “The judges on the courts of appeals get a wide variety of cases, and I have that experience in criminal law, prisoner petitions, products liability, intellectual property, commercial disputes, constitutional issues.”

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The kerfluffle (and it is truly a kerfluffle, nothing more) about Senator Elizabeth Warren’s native American ancestry provides the backdrop to the overarching question of whether she’s entitled to facts or truth. Her truth.

A defender of the faith offered this in response to the ridicule sent Warren’s way.

Warren suffers from epistemic injustice where her assertions of heritage are given unjustly low weight based on stereotypes associated w/her identity. It’s her story, her family’s story, her truth. Why a need to deny her identity that has informed her entire life?

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Former Biscayne Park Police Chief Raimundo Atesiano wanted to keep the mostly white suburb of Biscayne Park under control during his tenure, and part of that meant closing every crime, no matter what. So his small police force of 12 did just that.

The two former Biscayne Park police officers testified before a federal grand jury about how the department’s ex-chief pressured them to arrest people of color and others for crimes they did not commit in the leafy bedroom community north of Miami.

Dayoub, 38, and Fernandez, 62, testified that Atesiano’s goal was to achieve a 100 percent burglary clearance rate, even if it meant pinning unsolved break-ins on people who were innocent victims, according to newly filed court records.

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Michael Stern opens with an appeal to authority, which isn’t surprising as there’s a fairly good chance his otherwise tepid observations would never get real estate at USA Today.

I used to prosecute sexual assault cases. Here’s what I learned and how it could help us.

And according to Stern’s website, he was indeed a prosecutor.

30 Years of experience as a litigator:  25 years as a Federal Prosecutor for the U.S. Department of Justice, 3 years as an Assistant District Attorney.

For the unwary, federal prosecutors don’t prosecute sex crimes. It’s a state crime, so his experience comes from his first three years rather than the last 27. Yet, his point would have been just as obvious, and just as benign, had he been the guy selling hot dogs outside the courthouse, so what might otherwise have been considered a bit of rhetorical hyperbole doesn’t present any real problem. Continue reading →

At WaPo, Elizabeth Bruenig writes about an ongoing debate in certain circles, whether the problem facing the body politic is our inability to talk to each other, to find sufficient common ground to disagree without being disagreeable.

“You cannot be civil with a political party that wants to destroy what you stand for, what you care about,” Clinton declared in a recent CNN interview. When and if Democrats assume power in Congress, she said, “that’s when civility can start again.” Members of the American left agreed; those on the American right did not. Meanwhile, a study published last week by the think tank More in Common found that 80 percent of Americans believe that “political correctness is a problem.” Conservatives hailed the study as supplying empirical backing to common sense; liberals dismissed it as methodologically flawed and politically motivated.

While Bruenig’s focus is whether there is an American history of political civility, beyond the brief halcyon days following World War II. she suggests we’ve got a long history of being politically uncivil. But there is a collateral question raised in the context of this civility debate. Are civility and political correctness the same? Continue reading →

A young, male public defender got hold of me the other day to ask if he was crazy. It wasn’t a personal question, but raised the views of his colleagues who both fancied themselves fierce defenders of the accused while simultaneously being absolute in their support of #BelieveTheWoman.

I began by pointing out the obvious, that it would seem impossible for someone dedicated to social justice ideology to do the nasty work of defending people accused of terrible crimes, whether a man accused of raping a woman, or beating his spouse, or a white man accused of a “hate crime” against a black man, or worse still, woman.

Can they cross the accuser hard enough to make them cry, to destroy their credibility, to traumatize them if it serves their client’s interest? If they can’t, or won’t, then they aren’t the defender they claim to be. Continue reading →

Activists are decrying the imposition of cash bail as a means of imprisoning people for poverty. They contend that cash bail is merely the way the wealthy buy their freedom while the poor languish in jail, turning bail into another rich person’s privilege. And the unwary are buying this simplistic argument, telling the stories of sad, poor innocent people held for lack of the ability to pay.

This narrative isn’t false, but it isn’t sufficient either. And there is no doubt that being held for the inability to bail out is one of the foremost wedges coercing the innocent to plead guilty. There is much, much, about bail that’s wrong and demands correction. But it is not the simple binary of rich and poor, and to argue otherwise is to argue  falsely, to call for an untenable system and to invite a bludgeon in response.

Many people think that “innocent until proven guilty” implies that everyone should be let loose on their own recognizance before trial. A moment’s thought reveals that this is idiotic. The white supremacist Dylann Roof killed nine people on June 17, 2015 at the Emanuel African Methodist Episcopal Church. His image was captured on security cameras and he was arrested the next day. Roof’s trial, however, didn’t start until more than a year later, December 7, 2016, and he wasn’t convicted of anything until December 15, 2016. Should Roof have been released before trial because he was “innocent until proven guilty”? Of course not.

I stand second to none in demanding high standards before the state can deprive a person of their liberty but high standards do not demand binary divisions. Tradeoffs are everywhere and when the evidence against the accused is strong and the danger to the public is high, it’s not unreasonable to deprive the legally innocent of some liberty prior to trial. The tradeoffs are ugly, as they always are when trading off two sacred values, but the tradeoffs cannot be avoided.

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