There may be no better soapbox for this outrage than the Portland Mercury.

Portland has an appropriation problem.

This week in white nonsense, two white women—Kali Wilgus and Liz “LC” Connely—decided it would be cute to open a food truck after a fateful excursion to Mexico. There’s really nothing special about opening a Mexican restaurant—it’s probably something that happens everyday. But the owners of Kooks Burritos all but admitted in an interview with Willamette Week that they colonized this style of food when they decided to “pick the brains of every tortilla lady there in the worst broken Spanish ever.”

You may wonder what exactly is meant by the peculiar use of the word “colonized,” one of the new-fangled code words for cultural appropriation. Continue reading →

In the scheme of really crappy jobs in Washington, congressman is right up there, barely edging out barista. Why anyone would want the job is a mystery, and yet, people do and actually run for it. In a special election in Montana, Greg Gianforte wanted the really crappy job.

Given the opportunity to show the kind of person he really is, Gianforte showed two things: first, that he is as crappy a person as congressman is a job, and second, he lacks the impulse control and temperament for even the crappy job of congressman.

During that conversation, another man — who we now know is Ben Jacobs of The Guardian — walked into the room with a voice recorder, put it up to Gianforte’s face and began asking if he had a response to the newly released Congressional Budget Office report on the American Health Care Act. Gianforte told him he would get to him later. Jacobs persisted with his question. Gianforte told him to talk to his press guy, Shane Scanlon.

At this point, nothing out of the ordinary. Ben Jacobs was a reporter. He can be criticized for being pushy, but that’s part of the job description of reporter. They’re not there be polite, or to be cooperative, though it wouldn’t hurt. Some can be annoyingly tenacious. But when you’re a guy running for office, pushy reporters are merely one of the things you need to tolerate.  Continue reading →

We knew it was coming. March 1st was the date, and the American Bar Association made it very clear that as of that date, it would be mandatory.

In June 2016, in response to the efforts of the ABA’s “Diversity & Inclusion 360 Committee,” the ABA Board of Governors adopted a new ABA Rule for all ABA-sponsored Continuing Education (CLE) Programs. The ABA intends that this new rule be mandatory, not aspirational. It will “take effect March 1, 2017.”

This new rule does not remove barriers to equal opportunity nor does it promote intellectual diversity. Instead, this rule imposes a requirement that each CLE panel has “diversity” based on sexual orientation, gender identification, and so forth.

There are two competing interests at stake. On the one hand, there is the concern that the CLE presenters be sufficiently knowledgeable and competent to offer substance, as well as not bore the class to tears. On the other, there is the interest in having people other than the usual white men get a chance to present. It may be that non-white-men have different views that have not been adequately represented, or it may be that they just want the same opportunity to stand on stage and get some recognition. Continue reading →

The United States District Court for the District of Nebraska is the only court, or at least that’s what I have been told, that regularly publishes each judge’s individual sentencing statistics. We have been doing so since 2007.

These statistics are prepared by the Sentencing Commission at the request of each judge of our court. If for no other reason, I am proud of our judges for being utterly transparent on this subject. And that is true notwithstanding the fact that I am told by a person with intimate knowledge of such things that our practice is very annoying to a fair number of judges in other districts.

Keep in mind that our court is very busy when it comes to criminal cases. On a per-judge basis, we rank 8^th in the nation for criminal felony cases and 7^th in the nation for supervised release violations. (See here, click on “Judicial Caseload Profiles for Nebraska and All District Courts for the 12-Month Period Ending September 30, 2016.”) Continue reading →

The bombing in Manchester, England was horrific. There’s no scale by which to measure such tragedies, but by any measure, it’s up at the top.

By Tuesday, 22 people had died, and 59 others had been hospitalized, some with life-threatening injuries. The dead included 8-year-old Saffie Rose Roussos, who had come with her mother and older sister, and 18-year-old Georgina Bethany Callander, who had posted an image of her brand new driver’s license on Instagram.

There are things that appear known, though at the moment less than certain. And, as usual, there are unknowns even if the things known turn out to be known.

The Islamic State said one of its “soldiers” had carried out the bombing, which took the life of the man British police officials believe was behind it, Salman Abedi, a 22-year-old whose parents emigrated from Libya. It is still unclear whether Mr. Abedi acted alone or as part of a network. No one yet knows what motivated him to commit such a horrific deed. It is also unclear whether the Islamic State’s claim is legitimate. Only further investigation can answer these questions.

Continue reading →

Michael Flynn’s lawyer, Robert Kelner, responded to the Senate Intelligence Committee’s subpoena in the only rational and responsible way: he invoked Flynn’s rights under the Fifth Amendment.

Mr. Flynn had been ordered by the Senate Intelligence Committee to hand over emails and other records related to any dealings with Russians as part of that panel’s investigation into Russian meddling in the 2016 election. His decision to invoke his Fifth Amendment right puts him at risk of being held in contempt of Congress, which can also result in a criminal charge.

In a letter to the heads of the Intelligence Committee, Mr. Flynn’s lawyers said that the accusations against him, as well as the appointment of a special counsel to oversee the Justice Department investigation into Russian election interference, gave him “reasonable cause to apprehend danger” should he comply with the subpoena.

The outrage was palpable, as people wanted desperately for Flynn to spill his guts and implicate Trump in something nefarious. How dare he “hide” behind the Fifth! Continue reading →

One of the long-standing, and most admirable, characteristics of New York City’s Legal Aid Society was that its lawyers were a tough crew. They handled tough cases. They fought hard. They dealt with nasty cases and nasty people, and they were tough enough to do so. As a training ground for criminal defense lawyers, there were few places one could do better.

But has the toughness given way to political correctness? So it appears from their newly revised Equal Employment Policy.

As an equal opportunity employer, The Legal Aid Society prohibits discriminatory employment actions against and treatment of its employees and applicants for employment based on actual or perceived race or color, religion or creed, alienage or citizenship status, sex (including pregnancy), national origin, age, sexual orientation, gender identity (one’s internal deeply-held sense of one’s gender which may be the same or different from one’s sex assigned at birth; one’s gender identity may be male, female, neither or both, e.g., non-binary), gender expression (the representation of gender as expressed through, for example, one’s name, choice of pronouns, clothing, haircut, behavior, voice, or body characteristics; gender expression may not be distinctively male or female and may not conform to traditional gender-based stereotypes assigned to specific gender identities), disability, marital status, familial status, domestic partnership status, genetic information or predisposing genetic characteristics, military status, domestic violence victim status, arrest or pre-employment conviction record, or any other characteristic protected by law.

Continue reading →

The word “stunning” in the twit caught my eye. What had I missed that should have stunned me?

Rod Rosenstein’s failure to recuse himself from the Russiagate probe is, frankly, stunning. https://t.co/JUo4Bn52jq

— Daniel Hemel (@DanielJHemel) May 21, 2017

Daniel Hemel is a University of Chicago lawprof, so it’s not as if he should be dismissed as just another lunatic on the twitters. Yet, what could be so horrible about Rod Rosenstein not recusing himself from the Bob Mueller special counsel investigation? Continue reading →

The best part of Alan Dershowitz’s Fox News op-ed is the title, Dershowitz: Mueller’s special counsel appointment begs the question — are our civil liberties now at risk? No doubt it was written by some wag at Fox, but its misuse of the logical fallacy, beg the question,* makes it deliciously delightful when it comes to brother Dersh.

But his rant has a point, even if proposed in the barely-concealed desire to be retained for the defense.

This investigation will be conducted in secret behind closed doors; witnesses will be denied the right to have counsel present during grand jury questioning; they will have no right to offer exculpatory testimony or evidence to the grand jury; inculpatory hearsay evidence will be presented and considered by the grand jury; there will be no presumption of innocence; no requirement of proof beyond a reasonable doubt, only proof sufficient to establish the minimal standard of probable cause. The prosecutor alone will tell the jury what the law is and why they should indict; and the grand jury will do his bidding. As lawyers quip: they will indict a ham sandwich if the prosecutor tells them to. This sounds more like Star Chamber injustice than American justice.

Should Dersh be forgiven his theft without citation of former New York Chief Judge Sol Wachtler’s “indict a ham sandwich” quip? He can’t blame that on some Fox News wag, but I digress. Continue reading →

When you read about a miscarriage of justice, more accurately framed as the system gone horribly wrong for reasons that defy any rational explanation, do you feel empathy toward the maligned victim or believe that mistakes will invariably happen in an imperfect system, and somebody has to end up being the poor schmuck who takes one for the team?

Chicago police arrested [John Adam] Jones and two friends outside his parents’ home in May 2015, saying their clothes matched the description given by the victims of an armed robbery.

Although no gun or stolen items were recovered from his home and the victims had not identified his face, Jones says officers got approval from a prosecutor’s office to charge him with a felony by not disclosing their lack of evidence.

The charges were eventually dismissed by directed verdict when Jones couldn’t be identified as the perpetrator of the crime. Justice was done? Well, the disaster could have been worse, given that he didn’t spend ten years in prison before anyone figured out he was innocent. Or never figured out he was innocent. But Jones filed suit because his arrest at 18 years of age had some consequences that could strike home with a lot of people, including police officers who, like other folks, occasionally have sex and produce offspring. Continue reading →