It’s not like I didn’t warn you.

The discussion was framed to grab the low-hanging fruit. What’s the big deal about a sincere transgender high school student wanting to use the bathroom that matched his identity? Who really cares about where he pees? And, indeed, the answer was that most of us didn’t, and couldn’t get too up in arms about it.

The strategic choice of making bathrooms the hill to die on was a very smart one. Combined with the fact that most people with even an iota of humanity harbor no ill will toward a transgender teen. For crying out loud, live and let live. And indeed, Gavin Grimm was quite a remarkable person. What sort of horrible person wouldn’t want to accommodate such a fine human being. And they are, most assuredly, human beings. Just like you. Just like me. And deserving of the respect and kindness that any human being deserves. Continue reading →

There are three ways of looking at trials. For trial lawyers, familiar with the normal parameters of what goes on, the nuanced differences in how judges handle a trial are important. Some judges sit back and say almost nothing unless they have to. Others can’t keep their fingers off trial. There’s an old joke about the judge who can’t restrain himself from interrupting to ask questions of a witness: “Judge, if you’re going to try my case for me, would you at least do a better job of it?”

Oftentimes, these judges were trial lawyers, and either can’t stand being a bystander to trials, an incredibly boring proposition for someone who’s used to being in the center of the action, or are certain they can do a better job of it than the lawyers actually trying the case. For the latter judge, watching a lawyer fail to ask the question he would ask is too painful to suffer, so in he jumps. Whether he’s actually a better cross-examiner varies, but since he’s the judge, it’s not as if counsel can tell him, “With all due respect, judge, can you please shut up and let me try my case?” Continue reading →

Dogs hump. This will not come as a surprise to anyone familiar with dogs, or even most people who can spell dog. So it was a natural subject for a “scholarly” journal named “Gender, Place & Culture: A Journal of Feminist Geography.

This article addresses questions in human geography and the geographies of sexuality by drawing upon one year of embedded in situ observations of dogs and their human companions at three public dog parks in Portland, Oregon. The purpose of this research is to uncover emerging themes in human and canine interactive behavioral patterns in urban dog parks to better understand human a-/moral decision-making in public spaces and uncover bias and emergent assumptions around gender, race, and sexuality.

When you run out of rocks to look under for proof of rape culture, you apparently sit at the dog park and watch, making keen observations like this: Continue reading →

Effective cross examination is a skill that often takes lawyers years, and a few sad trials, to achieve. But the wholesale absence of the opportunity to confront one’s accuser, to challenge their allegations, is an abrogation of one of the most basic components of due process possible. And that’s why Judge Arthur Tarnow held that the University of Michigan’s use of the single investigator model, beloved by the Lhamonites of the administration past, was unconstitutional.

Last month, U.S. District Judge Arthur Tarnow ordered the institution to arrange the live hearing, writing in his ruling: “[The university] essentially asks the court to sit back and wait for the investigator to issue findings against plaintiff before intervening in this action. But at this very moment, the university may be denying plaintiff due process protections to which he is entitled. The court cannot, and will not, simply stand by as the fruit continues to rot on the tree. This case is ripe for adjudication.”

And the Sixth Circuit similarly rejected this deprivation of due process. Continue reading →

Over the years, I’ve mentored a great many new lawyers. To mentor, per se, is an obligation. I was mentored by others and I feel a duty to pay it forward. But whom I mentor is a gift. If you demonstrate a level of intelligence, integrity and zeal, you are worthy of the gift. If not, then find someone else. I may feel an obligation to mentor, but not necessarily you.

It’s a time suck. The demands can come at inconvenient times when I have better things to do, things I would prefer to do more than help you work through a problem. But hey, that’s what it means. If you’re a lousy mentee, then you don’t get the gift. If you don’t see it as a gift, don’t appreciate that I don’t owe you my time and energy, then find another mentor.

But the key is that as much as mentoring may be a duty, it is not a duty to any specific person. And if you, baby lawyer, know it all, then you don’t need my help and I surely don’t need to waste my time. If you’re my mentee, I will go to serious lengths to help you. If not, you’re on your own. Your mommy may owe you love. I do not. Continue reading →

Garrett Anderson may have been careless, a deadbeat, a Walmart shopper. But did he deserve to be convicted of vehicular homicide and get 15 years, five more than the actual killer?

Anderson of Kennesaw called a locksmith after locking his keys in his car at a Cobb Walmart on May 25, 2014, according to investigators. Anderson told the locksmith, Tansu Kanlica, to follow him to an ATM so he could get the $175 he owed. But then Anderson appeared to try to get away without paying, according to prosecutors, and passed his bank and several ATMs.

During Anderson’s trial, Kanlica testified that Anderson “brake checked” him, and that he swerved left to avoid hitting him, then over-corrected to the right. That’s when Kanlica jumped a curb and struck three teenagers, killing two.

Neither driver stopped. Kanlica had no excuse. Anderson’s excuse was that he didn’t know it happened. After all, he didn’t kill anyone. Continue reading →

It wasn’t long ago that lawyers understood the limits of their defense of their client in the court of public opinion. There were always roles to play, trying to limit the bleeding, defuse false allegations of fact that were metastasizing into the myth of the case. Defend your client’s honor, if not innocence, by affirmatively asserting that he would prevail at trial.

But as Joel Cohen explains, this has changed.

It used to be, before the 24/7 news cycle , that lawyers were more careful, and prided themselves on that. Judges trusted them more, and lawyers tended to trust each other. But now, a lawyer, for example, Michael Avenatti, might literally withdraw from a court proceeding as Avenatti did rather than give up his soapbox, in order to allow himself the ability to try his case in the press.

Continue reading →

There are a few things about ICE, the United States Immigration and Customs Enforcement agency, that aren’t in doubt. First, it is in desperate need of reform and supervision, as there are agents engaged in outrageous conduct with no one preventing it, overseeing it, protecting undocumented immigrants (particularly children) in its custody from all manner of harm, from drugs to rape. It’s out of control, and there appears to be little interest in the Trump administration to deal with it.

But Abolish ICE, the trendy response to this abortion of an agency, doesn’t deal with the problems either. Without ICE, who watches the borders? Who prevents people from strolling in at will? It almost sounds like, dare I say it, open borders.

Or perhaps they mean abolish one enforcement agency and replace it with an entirely new one, where its agents are sweet and compassionate? At the New York Times, Sean McElwee tries to sell his unicorn. Continue reading →

One of the worst trends in online media is the “open borders” of letting anyone with a pitch to sell buy their way onto a soapbox, and by doing so attain the attributed legacy credibility of being there. If an op-ed appears in the New York Times, then it must mean that it’s Times-worthy. And what about Forbes,* which once used the tagline, “Capitalist Tool”?

Mark Cohen has a legal space business called Legal Mosaic to pitch that relies on the evisceration of such legal niceties as ethics and bar admission that get in the way. After being a civil AUSA and biglaw partner**, his career was spent trying to find ways to beat the system. He was a founder of Clearspire, which was a darling of the cutting edge of new normal. It was going to “disrupt” the law firm model until it went bankrupt. What exactly Cohen’s new business does is unclear. He’s a master of meaningless jargon which ultimately says nothing beyond “we’re cool and different.” What that difference may be is anybody’s guess.

Cohen has written an infomercial for his business, using the Forbes platform, to inform us how to “fix” the ABA. Like everyone else, he accepts that the ABA can’t survive on its current trajectory. Unlike lawyers, he offers the opposite solution and contends that if the ABA rejects everything guild-like and instead reinvents itself to reject every notion of ethical and competent practice, it will survive. Continue reading →

Ninety minutes. That’s half a football game, and the amount of time it took a jury to declare former Tennessee Volunteer football players A.J. Johnson and Michael Williams not guilty of rape. The verdict lifted a nearly four-year cloud of rape accusations off the duo.

Johnson and Williams’ story plays out like so many encounters on college campuses. The two star football players got blisteringly drunk at a college party and met up with two young women. The combination of hormones and liquid courage morphed into remorse the next day, with a Title IX coordinator letting the pair know it was okay to call their regret “rape.”

It came as no surprise when the Knox County District Attorney’s Office decided to indict Johnson and Williams on charges of aggravated rape. The University of Tennessee was already under scrutiny for how it handled sexual assault claims, and it would be unthinkable to let two star athletes walk away from rape accusations. Continue reading →