Howard Wasserman channels Alexis de Tocqueville at PrawfsBlawg in taking the ever-breathless Dahlia Lithwick to task.

Dahlia Lithwick wrote about the litigation of the Joe Arpaio pardon, with the district judge hearing from numerous amici about the constitutional validity and effect of the pardon. The article ends by quoting one amicus, Ian Bassin of Project Democracy: “Thankfully, in America it’s the courts who get the last say on what the Constitution allows.”

As I have been arguing again and again in defense of judicial departmentalism, this is not  true as a normative matter, at least not in the absolute sense in which it is presented here, as simply the way it works in America.

The new name for this is lawfare, challenging every decision with which one disagrees in court in the hope that a judge, some judge, any judge, will disagree and use his fiat to supersede the decisions of Congress or the Executive. While the basic notion of judicial review, established by no less dubious a character than John Marshall in Marbury v. Madison, is accepted despite its having been created by judicial fiat, Marshall pulled it off, despite President Jackson’s snippy retort, “John Marshall has made his decision; now let him enforce it.” Continue reading →

The news was big, huge, that the Department of Education under dreaded Betsy DeVos changed everything. The “Dear Colleague” letters of 2011 and 2014, together with the Q&A, that mandated a campus sex investigation and adjudication scheme designed to assure vindication of the accuser* were rescinded. Interim guidelines were issued pending invocation of notice and comment as required by the Administrative Procedures Act and a new Q&A was issued to explain the application of the changes.

So problem solved? Not quite. Certainly not yet. And potentially not at all.

Others will run through the changes, highlighting portions they believe to be most significant, whether accurately or falsely. There will be lies, born of the belief that the cause is so critical that anything that achieves the end is justified. Believers will believe. But the changes don’t change very much. They release colleges from the mandate of what they must address and how they must address it. They do not, however, require change for the most part.

For example, no longer will colleges be required to use the standard of proof mandated by the DoE:

The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.

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We need reporters. Without them, we’re blind as to what’s happening in the world writ large. Or not writ at all, which is the problem. But with dead-tree media dying (if not dead and now searching the nation in search of brains that taste like, well, I defer to Slate on this one) and online media replete with minimum-wage earners explaining a world they can’t begin to grasp, where will the next generation of journalists come from?

Google’s got you covered.

Many local newsrooms have been cut to the bone so often that there’s hardly any bone left. But starting early next year, some may get the chance to rebuild, at least by one.

On Monday, a new project was announced at the Google News Lab Summit that aims to place 1,000 journalists in local newsrooms in the next five years. Report For America takes ideas from several existing organizations, including the Peace Corps, Americorps, Teach for America and public media.

The problem, of course, isn’t that J-Schools aren’t churning out grads with the passion to crank out news stories, but that newsrooms eventually have to pay them because they get hungry. Every friggin’ day. Continue reading →

There are many websites providing deep insight into how lawyers can be wildly successful and gain extraordinary wealth by this one cool trick. The Puddle has made a business of it, as a new potential reader is born every minute. For the most part, old lawyers ignore this sort of tripe, in the hope and expectation that smart lawyers will know better than to turn to these insipid advice sites for their insipid advice, and because legal Malthusians figure you get what you deserve, provided no clients are harmed in the process.

But this one is too dumb to ignore.

At one time or another in your career, you will confront an angry client. Unfortunately, law school does not prepare us for dealing with clients. We are dependent on our own life skills and common sense to handle these situations. Presumably, as we gain experience in practice, we get better at it. However, you don’t have to be a senior lawyer with 30 years of practice to be able to calm an angry client quickly and effectively.

Do clients get angry? You bet. They don’t come to lawyers because we’re fun to hang out with, and the circumstances tend to evoke some unpleasant feelings on their part. Client management is a critical part of practicing law, but is calming them, “quickly and effectively,” a magic trick? Continue reading →

In an unsurprising knee-jerk reaction to the DeVos Department of Education’s anticipated undoing of Catherine Lhamon’s radical shift in Title IX campus sex adjudications, California has decided to bring it to kindergartners. At the university level, one of the unspoken problems with this scheme was that it disproportionately impacted black males who were accused by white females.

They tried it and regretted it the next day, but in the scheme of what constitutes a wrong when the definition of rape and sexual assault is open to the “survivors'” feelings about the encounter afterward, there is nothing to prevent this. That it turns out to hurt black men at the hands of white women is hardly a surprise, but when a choice has to be made between whose tears are the saddest, women win. So let’s make this happen for all students, California responds.

Lara Bazelon spells it out.

Gov. Jerry Brown of California is poised to sign a worrisome bill that will codify the Obama-era sexual assault guidelines. Those rules told colleges to toughen up on sexual assault allegations or risk losing federal dollars. Continue reading →

Journalists came to the realization a while back that they could accomplish far more by toying with your emotions than by reporting facts.

In fact, by trying to stem the tide of untruths, we were probably making everything worse. Repeating a falsehood, even as part of a meticulously researched article that debunks it, actually reinforces the falsehood; the human brain seems to experience fact-checking as a statement followed by a bunch of Charlie Brown teacher noises. We knew this even then: I can probably designate a Washington Post article about the lie-repetition phenomenon as my first “lol nothing matters” moment, six years before the phrase became a meme. My most memorable illustration of this concept was the time that someone emailed to ask about a rumor on Snopes.com, forwarding along the page. It said “FALSE” boldly at the top. The person had forgotten that part but remembered the claim.

Thus was born the tyranny of the anecdote, the now de rigueur start of a putative news story with a sad story about some terrible wrong that will bring tears to your eyes, outrage to your heart, fury to your shaking fists, and leave you no choice but to realize that something must be done.

Over time, some journalists resisted this urge to manipulate their readers, believing that journalistic integrity demanded that they actually do what Fox News claimed to do, “we report, you decide.” “Advocacy journalism” became an accepted approach to reporting, where people paid to report shaped their information to lead you to what they believed to be the inexorably “correct” conclusion. Facts were for kids. Continue reading →

It was entirely coincidental that the example of a deaf person was used as an alternative example to police use of force against an autistic child. The story broke shortly thereafter of Sgt. Christopher Barnes shooting, and killing, Magdiel Sanchez for the crime of being deaf.

Oklahoma City police officers who opened fire on a man in front of his home as he approached them holding a metal pipe didn’t hear witnesses yelling that he was deaf, a department official said Wednesday.

Magdiel Sanchez, 35, wasn’t obeying the officers’ commands before one shot him with a gun and the other with a Taser on Tuesday night, police Capt. Bo Mathews said at a news conference. He said witnesses were yelling “he can’t hear you” before the officers fired, but they didn’t hear them.

Sanchez wasn’t disobeying commands. One can’t disobey what one doesn’t know. One can’t know when one can’t hear. You can’t blame a deaf man for being deaf, but they killed him for it anyway. Continue reading →

Professor Amy Coney Barrett, a most certainly qualified nominee[i] to the United States Court of Appeals for the Seventh Circuit and a law professor at Notre Dame, recently had her confirmation hearing.  The hearing resulted in quite a controversy.

The Professor, who clerked for Justice Scalia, was grilled by the ranking member of the Judiciary Committee (Senator Feinstein) and other Democrats about whether the nominee’s deeply held religious beliefs (Catholicism) might interfere with her job as a judge. It is fair to say that this inquiry (but perhaps not the tenor of it[ii]) was brought about by Barrett herself. See, for example, Amy Coney Barrett & John H. Garvey, Catholic Judges in Capital Cases, 81 Marq. L. Rev. 303 (1998).

Here is the conclusion of the article cited above taken from the current Notre Dame Law School website:

Catholic judges must answer some complex moral and legal questions in deciding whether to sit in death penalty cases. Sometimes (as with direct appeals of death sentences) the right answers are not obvious. But in a system that effectively leaves the decision up to the judge, these are questions that responsible Catholics must consider seriously. Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard. Perhaps their good example will have some effect. (Italics by Kopf.)

Continue reading →

Not being an emoluments scholar, nor having anything to add beyond the unseemliness of a president enriching himself one hotel room at a time, I’ve got no horse in the race being run in the Southern District of New York. But also being a huge fan of history and its artifacts, Josh Blackman’s post about the war between amici over “what did Hamilton sign” is turning from a fascinating battle royale into a rout.

The issue was joined in the blawgosphere (and, of course, in court filings) as reflected in Brianne Gorod’s post at the We Hate Trump Take Care blog.

Earlier this month, I wrote a piece for this blog on the debate about whether the Foreign Emoluments Clause, which applies to all persons “holding any Office of Profit or Trust” under the United States, applies to the President.  As I explained in that piece, there’s a “big problem” with one of the major pieces of documentary evidence relied on by those who argue that it doesn’t apply.  My colleague Brian Frazelle and I have now done a little more digging, and the problem with that evidence has gotten even bigger.

It’s often hard to quote from an academic blog, as they tend to be ridiculously prolix, making the quotes a few million words longer than necessary. The TL;dr is that there are two “historical” documents putatively listing who’s an officer for purposes of the emoluments clause and who isn’t. One is called the “Complete Report” and the other the “Condensed Report.” Gorods’ claim is that they “found” the condensed report in the National Archives, that it includes the president on the list of offices and that’s signed by Hamilton. Moreover, they claim that amicus Seth Barrett Tillman, represented by Josh, concealed this from the court, claiming that it wasn’t signed by Hamilton. Continue reading →

On the bright side, it’s remarkable that there aren’t more tragic interactions between kids with autism spectrum disorder and police. Not that there aren’t enough, and they don’t turn tragic, but with the CDC estimating the incidence rate at 1 in 68 (down up from 1 in 110), there are bound to be more interactions. More importantly, as the prevalence of autism increases, and the children who suffer from it grow bigger and older, they present more of an apparent threat to cops.

Imagine if instead of being fair-haired and rail-thin, Connor had been powerfully built and black or Hispanic. A tense police officer, approaching a young man he thought was a threat to himself or others, might have been tempted to reach for his Taser or service weapon instead of his handcuffs.

Connor Leibel wasn’t doing anything to give rise to Buckeye, Arizona, police officer David Grossman’s concern for his safety. He was a young kid, standing there, being autistic. But Grossman had special training that kicked in.

As a graduate of Arizona’s Drug Evaluation and Classification program, Officer Grossman is certified as a “drug recognition expert.” But no one had trained him to recognize one of the classic signs of autism: the repetitive movements that autistic people rely on to manage their anxiety in stressful situations, known as self-stimulation or “stimming.” That’s what Connor was doing with the string when Officer Grossman noticed him while he was on patrol.

Continue reading →