The arguments made by the Obama Departments of Educations and Justice, that it was already existing law that sex discrimination under Titles VII and IX covered gender orientation, relied almost entirely on the Supreme Court’s decision in Price Waterhouse v. Hopkins.

But the Obama administration, relying on Supreme Court decisions and other precedents going back several years, has interpreted the statute to include protections for gender identity, and issued guidance to schools to provide accommodations for trans students.

But was there such precedent, or was it merely a claim, relying on a decision that, if viewed through squinted eyes, could kinda, sorta be twisted into precedent?

The decision was, in fact, a relatively straightforward sex discrimination case that happened to involve a trans man, whom the Court discussed as a woman, and concluded that she (not he, not xi, not hir, but she) was discriminated against as a woman because she wasn’t appropriately feminine. The holding was that discrimination against women based on gender stereotypes violated Title VII.

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The American Bar Association Journal announced that the White House will no longer seek their blessing, a decades-old fixture in selecting federal judges.

The White House has notified the ABA that President Donald Trump’s administration doesn’t intend to ask for a review of possible judicial nominees to the lower federal courts before their names are announced.

This made ABA President Linda Klein sad, as the huge achievements on her watch, and the watch of her predecessor, were about to be marginalized.* This will come as a shock to non-lawyers, but the ABA has no authority over lawyers and is just a group of lawyers with a pompous name living off its legacy of self-importance. There was a time it was respected, and gave its imprimatur of respectability to judicial nominations. Continue reading →

When New York City’s Progressive in Chief, Mayor Bill de Blasio, flipped, it was, shall we say, surprising. Suddenly, he was on the side of closing the massive prison complex on Rikers Island after having spent years fighting activists demanding its closure. What gives?

Councilman Rory Lancman twitted the inside poop.

Let me explain the politics here: anti-Rikers folks & MMV outmaneuvered BdB; he panicked that Sunday’s Lippman report would leave him last guy defending #Rikers. Not good place for a progressive. Rest is spin. Disrespect of J. Lippman is unforgivable.

That would be former New York Chief Judge Jonathan Lippman, and MMV would be New York City Council President Melissa Mark-Viverito, and they were about to cut BdB (which, appareantly, is de Blasio’s rapper name) off at the knees, leaving him the only progressive not supporting the closure of Rikers because he couldn’t bear to be shunned by the forces of law and order. Again. Continue reading →

How did a criminal defense lawyer end up being a supporter of Judge Neil Gorsuch? He didn’t. Or he isn’t, though it might certainly appear that way to the uninitiated, conflate support with the defense against disingenuous and, well, complete bullshit arguments and accusations against him by those who haven’t got any actual beef with Judge Gorsuch other than the fact that he was nominated by Trump and everybody on the team says he’s awful.

That criminal defense lawyer is me, and if I was the guy nominating someone to sit on the Supreme Court, Judge Neil Gorsuch wouldn’t be on my long list, no less be my pick. But that’s not the point. Fighting the insanely insipid attacks on Gorsuch isn’t a matter of being a huge Gorsuch supporter. It’s a matter of intellectual honesty. And that otherwise smart people, friends, people I might otherwise find credible, are all too happy to indulge in lies and misinformation against their enemy forces my hand.

Both publicly and privately, people I admire and respect have assured me that Gorsuch is a fine human being and a conscientious judge. The most public example of this was the appearance by former acting solicitor general Neal Katyal, a former Obama official now leading the fight against the Trump travel ban, to assure the committee that he is “a first-rate intellect and a fair and decent man.” Also in evidence was a phalanx of former clerks willing to tell anyone who would listen of their judge’s wisdom and kindness. I stipulate—as I did from the outset—that Gorsuch is just a terrific guy.

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The majority opinion in Expressions Hair Design v. Schneiderman reaffirmed the Supreme Court’s commitment to the First Amendment, holding that New York General Business Law § 518 was potentially unconstitutional as applied by precluding a business from letting its customers know that they had to pay a surcharge if they wanted to use a credit card because the card company took a chunk out of their fees.

That might make customers unhappy with Mr. Visa, and New York didn’t want any frowns. Better to maintain the delusion that plastic is wonderful and shut the business up.

Section 518 regulates speech. The Court of Appeals concluded that §518 posed no First Amendment problem because price controls regulate conduct, not speech. Section 518, however, is not like a typical price regulation, which simply regulates the amount a store can collect. The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Instead, it regulates how sellers may communicate their prices. In regulating the communication of prices rather than prices themselves, §518 regulates speech.

Good news, a good decision, even if, as Justice Sotomayor, joined by Justice Alito (?) notes in a concurrence, the Supremes yet again left a complete determination on the cutting room floor. Continue reading →

The mere mention of DNA may make people’s eyes glaze over, but it also brings a smile to their faces. After all, DNA is magic and solves everything. If you’re guilty, DNA will prove it. Innocent? That too. Potentially related to the possible perp, who can’t be identified but close enough to have the cops drop the hammer on you? Wait, what?

That’s familial DNA searching, and progressive New York loves it.

The DNA subcommittee of the state Commission on Forensic Science Monday unanimously approved the use of familial testing in New York and recommended the full body authorize the method at its April 12 meeting.

In its recommendations, the subcommittee stated police and prosecutors must prove all other investigative methods have been exhausted in a case before they can resort to familial testing — which takes a strand of DNA from a crime scene to determine if it matches anyone’s close male relatives who are in criminal databases.

Before you latch onto the “must prove all other investigative methods have been exhausted” language, this is the same sham used in wiretaps, also purportedly a “last resort” measure. It doesn’t work that way, Instead, it’s just a few boilerplate sentences to the effect of “it has been determined that alternative investigative techniques will not be effective in identifying the perpetrator.” Recite the mantra and you’ve jumped the hurdle. Continue reading →

The prevalence of advocacy journalism as an acceptable weapon in manipulating public perception, or as Trump would call it, “fake news,” created a vicious spiral of lies and counter lies. Who could have seen that coming? But it’s all for the sake of righteousness, making your lies good and their lies bad, based entirely on which side you’re on.

Naturally, this stalemate had to be broken. What to do?

Lawprof Danielle Citron, whose cyber civil rights initiative seems almost quaint these days, reveals the next level of the game, the manufacture of the Honest Broker.

The Blindspot: Must Read New Blog

It seems as if it was only a couple week ago that progressive lawprofs created a new blog to promote their deeply-held and totally fair views of why Trump was literally Hitler. But this new blog would be totally different. Continue reading →

To her credit, Linda Greenhouse does nothing to conceal her bias, her one-time effort to feign neutrality, occasionally failed, long since shed. While she stlll gets to mount the New York Times soapbox to take advantage of her attributed credibility while infusing her op-eds with her personal venom, at least she’s willing to let them know up top that she’s a team player.

The Senate Judiciary Committee’s confirmation hearing for Judge Neil M. Gorsuch was just plain embarrassing, and not only for the nominee. But let’s begin with him, skipping over his Republican enablers, who had nothing to do but lob softball questions and praise his answers. If Judge Gorsuch wasn’t the least forthcoming Supreme Court nominee ever to appear at a confirmation hearing, it’s hard to imagine one who could be less forthcoming while still breathing. More interesting and less predictable answers could have come from Siri on an iPhone.

It was, indeed, predictable, though not necessarily for the reasons Greenhouse says. Every modern Supreme Court nominee gets kisses blown from his party and loaded “gotcha” questions from the opposition. This hyperbole tries to paint this as wrong or unusual. Greenhouse knows better, having covered these hearings for years. But her readers don’t, and she relies on their ignorance, combined with her soapbox cred, to deceive and inflame them.

But at least she’s flagrant about it. If a reader chooses not to be made stupider, they won’t be misled. And if a reader desires to be fed lies to validate their hate, well, then her bias doesn’t matter. They don’t need reality to taint their worldview.  Continue reading →

Judge Richard Kopf does his listicle of observations of criminal defense lawyers based on his 25 years on the bench. Spoiler alert: he likes us, with some caveats. So if you heed his admonitions, will you achieve success, world hegemony maybe, or at least the probability of a comfortable middle-class existence as a successful and highly-competent criminal defense lawyer.

Yeah, well, maybe, but maybe not.

In a guest post that will bring a cringe to your face, Carolyn Elefant posts a marketeer’s brutally insipid crap which, per the blind squirrel theory, includes this paragraph.

The numbers don’t lie in terms of what’s going on in the legal profession. In December of 2006 the U.S. legal services sector employed 1,161,400 people[i]. By December of 2016 that number was down to 1,126,100[ii]. So in ten years the profession lost 35,300 jobs. Guess what else the profession did during that time? It added 198,594 attorneys[iii]. Laws get changed all the time but those two pesky rules, known as supply and demand, haven’t changed. A big reduction in jobs, combined with a big increase in the labor supply, results in a lot of attorneys singing a sad song. Oh……by the way, the legal profession lost roughly another 1,000 jobs in the first two months of 2017.

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As I write this on a Sunday morning, I am in the middle of a complex criminal jury trial that will likely last four weeks. Of course, I cannot write about the substance of the case or the lawyers. But watching the criminal defense lawyers in that case started me thinking about my observations of other criminal defense lawyers over the last 25 years.

It occurred to me that the readers might be interested in my top ten observations about criminal defense lawyers from the perspective of a federal trial judge. So, in no particular order of importance, here are my observations: Continue reading →