I stumbled across a thread on twitter the other day, apparently stemming from Neil Katyal’s representation of Epic Systems. The problem was Katyal was supposed to be on the good side, and here he was on the bad side, proven by Justice Gorsuch writing the majority opinion. Everyone knows Gorsuch is bad because he stole his seat from Merrick Garland. And Epic was the greedy capitalist employer, and downtrodden employees are the good team. Yeah, it was all that simple and obvious.

One of the twitterers took the progressive position, while the other was more conservative. The scope of the argument ranged from the acceptability of representing bad people because one had no choice versus never representing bad people under any circumstances, because morality. It wasn’t about duty or responsibility. Not about integrity or principle. The scope of the argument was over privilege.

You see, public defenders, junior associates and the ACLU could be forgiven their trespasses because they had no choice to refuse to represent horrible clients. But if you had the privilege of refusing representation, then the choice of representing a client tainted the lawyer with the awfulness of the client. Continue reading →

It was going to save us, alternative dispute resolution. Couched in glowing terms, replete with warm and fuzzy adjectives, reasonable people would resolve their disputes through mediation, where the sides would try in good faith to accommodate their differences, see each other’s perspective and, because people are truly good at heart, end in a hug. And if they didn’t, there was always arbitration.

The legal system was brutal, expensive and time-consuming. It took forever and, by the time anything was resolved, the damage was long since done. Arbitration was derived from the notion that a prompt, informal system would far better serve people’s needs than the formalized legal system. Sure, not for everything, but for some. And so the Federal Arbitration Act was enacted in 1925, reflecting the government’s favor of informal resolution.

The problem wasn’t the concept of arbitration, per se, but that it became captive of its users. If you’re an arbitrator working for an arbitration company, you would have a one-off user on one side and a corporate user on the other, who might have hundreds, perhaps thousands, of employees, and need your services over and over. Continue reading →

A favored outcome for those who disdain plea bargaining as a dirty backroom deal that freezes the judge and public out of decision making, and puts all the power in the hands of prosecutors, is that the return of trials would crash the system. Without plea deals, there is no way the system could handle the volume.

The crash is based on the assumption that the system couldn’t handle the volume, so it would either crash or the government would have to significantly cut the number of people it  prosecutes. Putting aside the intermediate problem of the people crushed in the middle between the time when plea bargains were eliminated and the system crashed, there are alternatives which never make it onto people’s radar. The crash assumption is based on the expectation that trials, as currently conceived, would be the one thing that would remain a constant. After all, doesn’t the Constitution mandate that they be conducted as currently done? Continue reading →

The American Bar Association knew what it wanted to accomplish when it passed model rule 8.4(g), but were the arguments against it exaggerated, hysterical, too extreme? The question is up for debate in Arizona, which is considering amending its rules to include the new model rule.

Eugene Volokh put in his two cents. So did Lambda Legal, which included an example* of the conduct they contend must be subject to discipline.

In 2017, Lambda Legal assisted a transgender woman with addressing discriminatory treatment she experienced when in a Georgia municipal court regarding a traffic ticket. The prosecuting attorney in the case repeatedly referred to her as “he” and “him” when addressing or speaking about her. Prior to the hearing, he took her aside in a small room with four other people who were not identified to her to discuss the case. He then asked her whether she’d “had the full surgery,” an inquiry about genital surgery. This experience was humiliating and dangerous for her. Continue reading →

There have been a great many arguments made about why Trump can and cannot be indicted, most of which reflect the writers’ wild dreams with whatever rationalizations are necessary to get there. Former Obama administration Acting Solicitor General, Neal Katyal, has taken a very different path in a New York Times op-ed, that it would be in Trump’s best interest for a president to be susceptible to indictment.

First, some constitutional scholars believe a sitting president cannot be indicted. And second, two Department of Justice opinions, dating back to the Nixon and Clinton administrations, side with this view.

Ken Starr thought otherwise, but the question isn’t resolved because of the position taken by any of these well-meaning folks. It’s neither left to OLC nor Starr, nor constitutional law profs, nor pundits, whether qualified to opine or not, to decide. That decision rests with the Supreme Court, and they have never ruled on the specific question. Everything else has been an exercise in Dudeism. Continue reading →

How did “make your bed” become a philosophical tenet? Why do young men need a guru to tell them this? Jordan Peterson has become a father figure to what I snarkily call the “lost boys,” espousing generally fine ideas of personal responsibility and maturity. Make your bed, clean your room, are among them.

You need to be told this?*

For the most part, Peterson’s advice is banal. Not wrong, necessarily, but banal. And as a result, he’s gained a significant and loyal following. On the one hand, it’s good that someone is telling young men to grow up, put away their childish toys and do big boy things like make their bed. I have no particularly issue with Jordan Peterson’s advice here. And as the insipid will respond if you question anything about Peterson’s fans, why undermine someone giving young men positive advice? Continue reading →

One of the shrillest and least rational of voices for feminism emits from Jessica Valenti’s fingertips. Yet, even Valenti has the occasional point.

On Thursday, Gina Haspel, President Trump’s choice to lead the Central Intelligence Agency, was confirmed by the Senate, making her the first woman in that position. That same day, Fox News announced that Suzanne Scott would be the company’s first female chief executive.

There is a distinct lack of feminist celebration over these women ascending in these jobs — an absence that Republicans have criticized as hypocrisy. Shouldn’t we feminists be pleased by these shattered glass ceilings?

Stop it. You have to wait for Valenti’s answer before you can start screaming at the screen that she’s full of it. Continue reading →

Steven Brill made his bones publishing a rag called “The American Lawyer.” It was nicknamed the American Liar within the bar, kind of the National Enquirer for lawyers. It was like the original, pre-SJW, version of Above The Law when David Lat was still in charge and it was viciously witty, except the American Lawyer wasn’t witty.

Brill, a baby boomer, explains in Time magazine why it’s all boomers’ fault (though not his) and why government should chew the Millennials food and gently, lovingly put it in their mouths so they don’t starve. After all, if government does not tie their shoes, wipe their cute little tushies, they will fail. Who is this “they”? The 90% of America who has been frozen out of success by the evil 10%, who has built a “moat” around their success to keep the riff raff out.

The protected overmatched, overran and paralyzed the government. The unprotected were left even further behind. And in many cases, the work was done by a generation of smart, hungry strivers who benefited from one of the most American values of all: meritocracy.

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Was it anger seething for the past 30 years, or was it some desire to have a story to tell so that they wouldn’t be left out of the tears of #MeToo victimhood? After all, no woman wants to gut the narrative that they’re a victim of toxic masculinity while their contemporaries are getting “likes” galore on Instragram. And it’s hard to hold on to one’s pain for 30 years, particularly when it wasn’t considered painful in the least at the time.

But when you have a luminary to accuse, the temptation is hard to pass up, as journalist and Wayne State professor Jack Lessenberry learned.

Lessenberry is a longtime Detroit journalist who served as the head of journalism faculty at WSU, senior political analyst for Michigan Public Radio, ombudsman for the Toledo Blade and host of public affairs program for Toledo’s WGTE-TV, according to the Crain’s article.

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When I first saw the video, I assumed the guy was a tourist, as it seemed unfathomable that any New Yorker could say something so utterly idiotic and outrageous. Not only was I wrong about that, but it got worse. He was a New Yorker. He was Jewish. He was a lawyer.

Naturally, this led to the first shrew calling for his lawyer-head. But hardly the last.

A recording of the exchange promptly went viral earlier this week, and the Intercept’s Shaun King soon identified Schlossberg as the xenophobe in the video. Then, on Thursday, two government officials took action: Democratic Rep. Adriano Espaillat of New York and Democratic Bronx borough president Ruben Diaz Jr. filed a formal complaint against Schlossberg with the discipline committee of the New York State Unified Court System. Their grievance asks the committee “to affirm that such misconduct and behavior will not, and must never be tolerated.” Although the letter does not request a specific action against Schlossberg, Diaz told the Washington Post that he wants the attorney to be disciplined, suspended, or disbarred.

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