It can be hard to appreciate the homogenizing effects of various strong influences around us. Social justice, for example, aspires to mediocrity, as excellence is relative and allows some to succeed and, invariably, some fail. Better we should all be mediocre, or equitable as it’s benignly described, than hard work and talent be rewarded. If we’re all beautiful, then no one can be more beautiful. And the unbeautiful will be just as entitled to prominence as the gorgeous, even though we all know they’re butt ugly.

But our reliance on technology similarly pushes homogenization, as Carolyn Elefant describes in a very interesting post, dystopianly entitled “Alexa, Please Hire Me A Lawyer: How AI Will Change EVERYTHING We’ve Been Taught About Marketing Legal Services.” Before getting to the meat, it’s worth noting the word “please” in the request to an AI service. There’s nothing wrong with being polite by default, as most of us are, but there is a belief that when talking at (not “to,” but “at”) HAL, you ought to be nice. So as not to hurt HAL’s feelings.

Yes, I realize that asking an AI-assistant to find a lawyer sounds far-fetched — like something out of a bad sci-fi movie. But  Marketing in the Age of Alexa , a thoughtful, must-read  article by Niraj Dawar in this month’s issue of the Harvard Business Review will persuade you otherwise. Dewar describes how consumers will come to rely on AI-assistants not just to carry out instructions like purchasing laundry detergent or scheduling a dog-walker, but also to anticipate their needs.

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The Supreme Court punted in its Masterpiece Cakeshop decision, a 7-2 ruling that reversed the Colorado Civil Rights Commission on the narrowest of grounds, so fact-bound as to make it generally inapplicable to any other scenario. By doing so, the Court failed to answer the two questions posed: can a person be compelled to engage in speech against his will to avoid discrimination, and does discrimination on the basis of sexual orientation take precedence over discrimination on the basis of religion.

We’re no clearer on either issue today than we were before the ruling.

As many have noted, the path the court took toward ruling for the baker clearly reflected a compromise among justices with very different views. The court dealt with the profound issues of free expression and freedom of religion that the case seemed to present (whether it really presented them is a separate question) by avoiding them; as Prof. Michael Dorf of Cornell Law School wrote of the opinion, “At best, it is a masterpiece of ducking the hard questions.”

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The intransigent problem of racism, as proved by disparate impact, needs to be fixed. And we came upon just such a fix that couldn’t possibly fail because it overcame all the problems that surely gave rise to this insidious reality. There could be no favoritism. No legacy special treatment. No good ol’ boy’s club. No excuses.

There was an answer, and we went all-in to seize upon it: neutral objective tests that would eradicate all the outside influences that maintained a legacy of racism. This was the solution, except it didn’t work.

In the face of growing pressure to tackle New York City’s widespread school segregation, Mayor Bill de Blasio announced on Saturday a proposal that would change how students are admitted to eight of the city’s specialized high schools, a group of highly sought-after institutions where students gain entry based on a single test. Continue reading →

Lawyers call it “demeanor,” the appearance one gives in conveying a message. An aspect of an advocate’s persuasiveness, or distraction, is how one comes off while engaged in the effort. Sometimes it will be a serious look. Sometimes a pleasant look. Some looks work for one person but not another. Finding the right look for you, and for the circumstances, is critical to being the most persuasive advocate possible. And what better time to learn this than in law school during moot court?

But after the “resting bitch face” fiasco, moot court judges need to be circumspect in how they convey this message, lest the students take offense. Then again, if avoiding offense is more important than teaching students about the value of demeanor, has a judge done their best to help a student?

I put in hundreds of hours preparing for the competition, which involved a criminal case based on a restriction of an individual’s freedom of expression—serious stuff. It centred on photoshopping intimate images of people without their consent, the intent to incite civil unrest, and threats to national security and public order. Continue reading →

Prostitution is one of those crimes that hinge largely on your belief system. If you believe that all prostitutes are forced into it against their will, whether by drugs or pimps, then prostitutes are victims. If you believe it’s possible that it’s just a transaction between consenting adults, then it shouldn’t be a crime at all. If you’re just a prude determined to tell other people how to conduct their sex lives in accordance with your sniffling sensibilities, then it doesn’t matter.

There can be some of each of these, and other, views about prostitution. Like most things in life, it’s not so simple that it neatly fits into one pigeonhole. As advocates like Maggie McNeil have made clear, there are women who choose prostitution as their occupation without shame or excuse. This is what they choose to do, and they don’t give a damn about your Victorian mores. You don’t have to like it, but you have no authority to tell them what they can do with their bodies.

There’s a reason why prostitution is called the oldest profession. The demand exists and always has, and despite your sniffling, it’s not going away. But is the answer to force prostitutes, and their customers, to risk the choice between contracting a loathsome, if not deadly, disease or enhance their time in jail? That’s what Allegheny County is trying to do, as if they’ve finally figured out a way to end the blight. Continue reading →

He was swiftly fired after the video of his running down Timmy Patmon went viral. Don’t cry for Taylor Saulters. He was a probie and could be fired at will.

A rookie police officer in Georgia was swiftly fired over the weekend after body camera video showed him striking a man with his patrol car during a pursuit.

An internal investigation by the Athens-Clarke County Police Department determined that the officer, Taylor Saulters, used excessive force when he struck the man, Timmy Patmon, with his vehicle on Friday. Chief Scott Freeman fired Officer Saulters on Saturday after initially placing him on administrative leave, said Eppi Rodriguez, a police spokesman.

If all this seemed to happen at extraordinary speed, it’s just because such decisions are usually made extraordinarily slowly. When there’s a video of a cop doing something incredibly wrong, like shooting a guy in the back after a traffic stop, it’s not because it actually requires weeks or months of “investigation.” They know, just like anyone else, whether it was right or wrong in ten minutes. The rest of the time is spent dealing with the ancillary questions, from what to do about the union to how to sell to the media that this wasn’t just some vicious killer in blue harbored by your brave little police department. Continue reading →

Things were different back then. There was no Victoria’s Secret catalog for young boys to sneak up to their room. If they were lucky enough to get their hands on an old Playboy, they were too afraid of mom finding it and dad whipping off his belt, proclaiming “this is going to hurt me more than it hurts you.” It was a lie. And every year, we watched the Miss America Pageant.

Winning the pageant was a big deal, and many winners went on to careers in entertainment and news media. It was a stepping stone to stardom. But we watched it because the women were supposed to be beautiful. It always struck me as a kid that they looked plastic, with hair that didn’t move and faces that would melt in the sun. I stopped watching it as it didn’t interest me, but then, the times they were a changin’. Sex, drugs and rock ‘n’ roll. Plastic Barbies weren’t my thing. Continue reading →

By a vote of 56-0, the New York Senate passed passed a bill making cyberbulling a misdemeanor punishable by fine or up to one year in jail. Not a single senator voted against this bill, which has the huge virtue of being tough on crime and demonstrates their concern for children. Nobody wants to be on the side of cyberbullies, right?

Except there’s one question that didn’t occur to a single senator. What’s cyberbullying?

This isn’t exactly a new problem following the Court of Appeals holding in People v. Marquan M. that Albany County’s cyberbullying law was unconstitutional. The issue isn’t whether bullying isn’t a problem or doesn’t do harm, but defining what it is and doing so in a way that doesn’t violate the First Amendment. As Eric Turkewitz explains, that’s hard to do. Continue reading →

Voters will go to the polls in Santa Clara County today and vote on whether or not to recall Judge Aaron Persky. While most here aren’t from California and won’t get the chance to have their say, this vote reflects a cancer of lies that’s metastasized to make a bad system untenable.

This has nothing to do with the sentence Judge Persky imposed on Brock Turner, whether you think it was right, wrong or otherwise. I thought it too lenient, and said so, but so what? It was one sentence. That a judge doesn’t impose the sentence that I would have doesn’t make him a bad judge. Judges aren’t perfect, which is why we have appeals courts, but more to the point, a bad ruling doesn’t make a bad judge. And if one had to have a bad ruling, being too lenient is hardly the worst thing that could happen. Continue reading →

And the answer is . . . no one knows.

The president believes he is above the law. That’s the takeaway from the confidential 20-page memo sent by President Trump’s lawyers to the special counsel, Robert Mueller, published over the weekend by The Times. And it’s the same sentiment that Rudy Giuliani expressed on Sunday when he suggested that Mr. Trump has the power to pardon himself.

The long and dubiously artful letter by John Dowd and Jay Sekulow on behalf of their client isn’t likely to persuade Special Counsel Robert Mueller of much of anything. It will play to its tribe and be ridiculed by the other tribe.  Continue reading →