That the Daily Kos’ Laura Clawson couldn’t help but lay it on as thick as possible, just in case its slightly progressive readership was too high to realize the brutally obvious, doesn’t change the fact that it happened, and was caught on body cam.

Kelsey Pierce was riding her bike to work. Someone called the cops complaining that a woman on a bike wearing a black shirt was looking at driveways. Could she be casing houses for a burglary? It’s possible. That Oklahoma City police officer James Herlihy had a reasonable and articulable suspicion to inquire, based upon the call, doesn’t appear to be in dispute. Nor, whether you like it or not, was he wrong to demand identification or to run a warrant check.

But after being handed ID (at 1:15), Herlihy then cuffed her and put her in the cruiser. Pierce complained of her treatment, there being no basis for her seizure. Continue reading →

The New York Times asks whether the Harvey Weinstein revelations will finally, finally, make men stop sexually harassing women. Finally.

Has America at last reached a turning point on sexual harassment? Watching the events of the past three weeks, one can hope.

In the wake of Harvey Weinstein’s sudden and overdue expulsion from Hollywood for his serial predation, hundreds of long-silent women are calling out powerful, influential men at a remarkable clip and accusing them of sexual misconduct: Roy Price, the head of Amazon Studios; the film director James Toback; the literary critic Leon Wieseltier; the restaurateur and celebrity chef John Besh; and the political commentator Mark Halperin, to name just a few.

Are you Weinstein? Besh? Halperin? Probably not. You’re probably not rich, famous, powerful. Women probably aren’t drawn to you by your fame, or the things you can do to further their careers. You’re probably not even a bawdy 93-year-old. Continue reading →

Jordan Furlong is a smart guy, even though he occasionally dabbles in Millennial pandering at the Puddle. So is he just trolling now?

Let’s start with a reality check. It’s kind of silly to talk about “the millennial generation” as if it’s some monolithic hive mind. If you’re setting out to describe the attributes of a demographic wave several hundred million people wide, then you’re going to over-generalize to the point of absurdity. So the first thing I want to acknowledge is that there are myriad exceptions to the broad strokes painted below.

It’s “silly,” so he’s going to do it anyway. Thanks, Gertrude.

The fundamental problem is that baby boomer lawyers (and to a lesser extent, gen-x lawyers like myself) keep trying to interpret the behavior of millennials through the lens of their own cultural assumptions and practices.

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Long before the methods shifted from sad tears to protest signs and disruption, I called for professors to take back the classroom. They didn’t. They didn’t want to because they feared their students’ condemnation. They didn’t want to because they shared their students’ activist beliefs. They didn’t want to because they embraced the soft pedagogy of appeasement and acquiescence.

Now, they’ve completely lost control.

At Reed College in Oregon, where I work, a group of students began protesting the required first-year humanities course a year ago. Three times a week, students sat in the lecture space holding signs — many too obscene to be printed here — condemning the course and its faculty as white supremacists, as anti-black, as not open to dialogue and criticism, on the grounds that we continue to teach, among many other things, Aristotle and Plato.

The writer is no white supremacist.  Continue reading →

Did this fail to make the radar because no one died (or was actually injured), or because it wasn’t conduct worthy of making the radar?

It doesn’t appear that anybody died, so you probably haven’t seen this. But yesterday a man allegedly drove into a crowd of protestors… kind of like the Alt-Right has been suggesting people do for years. Kind of like one person actually did in the attack that killed Heather Heyer.

Connecting unrelated events because of one common attribute creates a sense of parity, that they are the same thing. But “a sense” isn’t the same as a fact. And the facts simply don’t bear out the initial contention, that a man drove into a crowd of protesters. A KTLA reporter described it as a “vehicle slamming into crowds of protesters,” with the on-screen caption saying “car plows into protesters.” Continue reading →

When explaining her position, lawprof and former ACLU president Nadine Strossen was straightforward about her belief that free speech would be the more effective means of persuading people to embrace “social justice.” That one of the fundamental tenets of “social justice” was silencing hate speech gave rise to no cognitive dissonance.

But it’s this inexplicable and inconsistent combination of beliefs that makes someone like Strossen, and Laura Kipnis, desired as speakers, panelists, spokespersons for free speech. After all, they are feminists, social justice warriors to the core, and their position, that calls for silencing “hate speech” are a necessary means to their agreed-upon ends, carries greater weight.

And so Nadine Strossen gave testimony on October 26, 2017, to the Senate Committee on Health, Education, Labor and Pensions on “Exploring Free Speech on College Campuses.” At Concurring Opinions, Ronald K.L. Collins provides Strossen’s statement.

In my capacity as a human rights activist, I am convinced, based upon the historic and current record, that these cardinal First Amendment principles are essential for furthering any political or social cause, including human rights. This conclusion is reaffirmed by examining how “hate speech” laws recently have been enforced in other comparable countries; they have disproportionately suppressed dissenting views and disempowered speakers.

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The First Circuit Court of Appeals decision in United States v. Barry Spencer didn’t accomplish what appellant sought, the holding that an intentional failure to reveal Brady evidence was “material,” an oddity of hubris that provides an incentive to conceal Brady material in the hope that, in the off chance the concealment is discovered, it will still have to overcome a three-prong test before resulting in a reversal. And even if it does, the worst that can happen is a Mulligan, compelling the prosecution to do what the law “required” it to do in the first place.

Unless your name was John Wortmann, in which case there was one thing that turns Barry Spencer’s loss into yours as well.

In response to that assertion by Spencer, the Assistant United States Attorney (“AUSA”) in charge of Spencer’s prosecution, John Wortmann, revealed that, in fact, he had telephoned Rimkus on April 3, 2014, to inform her about the error in the first certificate with respect to the date of incident. Wortmann explained that Rimkus had no knowledge of the actual date of incident and that Rimkus had simply relied on the BPD to supply that information. Specifically, Wortmann stated that “[t]he lab doesn’t know where the drugs — what date the drugs [were] purchased. They can’t possibly know that. And the clerical error was committed when the drugs were submitted [by the BPD] to the lab.” As a result, Wortmann stated that he had simply contacted Rimkus to correct a “clerical error” on the drug certificate “because the drug lab would have no basis for knowing one way or the other.” Wortmann suggested that he had also sent a follow-up e-mail to the BPD after the phone call with Rimkus.

Wortmann, Wortmann, Wortmann. And plenty more Wortmann where that came from. Continue reading →

Why aren’t there more women arguing at the Supreme Court? Yes, genitalia counting has reached SCOTUS, with an analysis by Adam Feldman.

On a per-attorney basis, women were more successful than men in the following categories: all attorneys on the merits, non-governmental attorneys on the merits, and amicus win rates.

If it were that simple, and if correlation proved causation, it would certainly seem that a female attorney at oral argument would improve a party’s chances of winning.* And yet, women lawyers comprise a disproportionately low 17.79%.

These data reflect the disparity in female attorneys’ opportunities before the Supreme Court. They also show that most rational explanation for this disparity, that men outperform women, does not hold. Another explanation may have to do with lack of interest, although statistics on women joining the bar discredit this claim as well. Additional fine-grained analyses could help inform our understanding of the male to female oral argument disparity. The message, however, is clear: namely that no reasonable statistical explanation can account for the difference in participation between male and female attorneys before the United States Supreme Court.

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There was a time, not too long ago, that most people who were involved in blogging knew the name Robert Scoble. The Scobleizer was an early tech guru, blogging ninja, and his name popped up the other day when LexBlog’s Kevin O’Keefe looked to a name brand about how to make the donuts.

The inspiration for donuts comes from blogging – as it was and still is – a conversation. Robert Scoble (@scobleizer) and Shel Israel (@shelisrael) authored the book, Naked Conversations: How Blogs Are Changing the Way Businesses Talk with Customers, eleven years ago.

And before you could say “turnkey blog,” Scoble was another sexual harasser on the internet. This, apparently, was already known, though not by me at the time as neither Scoble nor the allegations against Silicon Valley folks are on my front burner.

Perhaps true to his blogging philosophy, Scoble chose to write about it. Continue reading →

If you have not read A Gentleman in Moscow by Amor Towles, you must do so. It is writing at its very best. I suppose that is why it was on the New York Times bestseller list for over 40 weeks.

If Jefferson’s celestial watchmaker would, playing against type, deign to bestow upon me the ability to write only 10 percent as well as Towles, I would pledge my troth to Roxane Gay.[i] If the omnipotent maker preferred, I would prostrate myself before the insipid youngsters who attacked Scott for being a misogynist or a sexist,[ii] and therefore unworthy of a legal writing award. But I digress.

A Gentleman in Moscow centers on the witty and observant Count Alexander Ilyich Rostov who was already ensconced in luxury in Suite 317 of the Hotel Metropol when he was sentenced to house arrest at the very same hotel by earnest Russian revolutionaries. (Think of a certain strain of Appellate Twitters!) This banishment took place after a 1922 trial, where Rostov was condemned for writing an insufficiently proletarian poem. (Think of our host!) It is from this hotel in Moscow that the story unfolds.

No more, now, about the book, except to recount one of the Count’s trenchant observations. The reader is informed that “pomp is a tenacious force. And a wily one too.” And it is about judicial pomp that I write. Continue reading →