Brian Bensimon, a student reporter for the College Fix, asked if I had any thoughts on the white paper prepared by the American College of Trial Lawyers. Having neither heard nor read anything about it, it was good of him to ask, as there was now something that needed to be read.

The ACTL is a vanity group, but a legit one, whose primary purpose is to give its members awards. At least they’re earned. And to its credit, the preparation of a White Paper on a controversial topic reflects a real concern for law. So it was something worth the read.

Unlike what one would expect from an association like the American Bar Association, dedicated to social justice at the expense of law, the ACTL took a critical look at the manner in which campus adjudication of Title IX failed to demonstrate respect for basic due process in its zeal to vindicate the campus sexual “epidemic.” And it therein went off the rails.

In 2011, in response to increased concern over sexual assaults on university campuses, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter outlining the procedures private and public higher education institutions must follow in investigating and adjudicating sexual harassment complaints under Title IX.

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It’s one thing for the much-admired legal scholar, George Takei, to rely on the Constitution’s “null and void” clause.  After all, he’s the Dean of Twitter Law School. But when Norm Ornstein raises the question of what do about the illegitimate presidency, it can’t be sloughed off with a chuckle. He’s not only a very smart, very knowledgeable guy, but he’s scholar in residence at the American Enterprise Institute. He’s not chopped liver.

American politics is deep into the theater of the absurd—but unfortunately, it is a deadly absurdity, like being in a horror funhouse where the creatures leaping out at you have real knives and chainsaws. Americans now have to face at least the possibility, a tangible one, that the election itself was subverted by a hostile foreign power in league with the winning presidential campaign, with implications all the way down the ballot.

Why, exactly, we “have to” is not entirely clear. It may well be the case that Russia pulled off one of the most amazing coups ever by its disclosure of Democratic Party emails into the election. It may be far worse, doing so with the knowledge and acquiescence of the Trump campaign. And it may be that there was a quid pro quo involved, or at least with the expectation of a sympathetic administration in place.

Whether these things happened, or the extent to which they happened, should be known by the American people, and it will be up to FBI Director Jim Comey to do his job, investigate fully. But this won’t answer the next question, which is whether the absence of Russian involvement would have altered the outcome. Those who hate Trump will take this for granted, “of course it did; it’s obvious.” Beliefs aren’t exactly evidence. Continue reading →

The discussion was framed to grab the low-hanging fruit. What’s the big deal about a sincere transgender high school student wanting to use the bathroom that matched his identity? Who really cares about where he pees? And, indeed, the answer was that most of us didn’t, and couldn’t get too up in arms about it.

We have no ill-feelings toward transgender kids. We don’t want to make them sad and alienated anymore than any other kid. Gavin Grimm was a brilliant posterboy for a cause, and while his issue may have pushed the envelope a little, it wasn’t so far that people would be outraged. But then, that was, in part, due to smart positioning that framed the discussion. Since few people think beyond the simplistic characterization, the “transgender bathroom” guidance just didn’t seem like that big a deal.

But it was never just a bathroom rule. Even at the outset, it was bathrooms, locker rooms and dorms. Few talked much about the dorms. Few, but some.

And yet, it didn’t end there, which was obvious if one appreciates how an interest morphs into a perceived right, then a protected right. If there is a right protected by law, it doesn’t cease to be a right outside the bathroom, locker room or dorm room. The emanations were raised, though largely unappreciated. Continue reading →

There wasn’t any dispute that the use of the word “master” as a title for the person who headed a dorm at Yale was not related in any way to slavery, but that wasn’t the point. The word was the same as the word used in regard to slavery, even if it was derived from Oxford. It was the the sound-alike word, the variation on a theme, that in the ears of many deeply sensitive students dredged up the feelings of slavery.

And it was a good enough reason to eradicate the word from campus*. After all, the word was merely a product of tradition from a time when such connections were of no concern to the white majority, for whom no memories of slavery applied. It wasn’t critical to the campus mission. It produced visceral pain. And there was simply no good reason to retain it if it hurt people’s feelings. It was just an arbitrary word.

But for Lorne Grabher, his last name is not just an arbitrary word. It’s his name.

The Nova Scotia Registry of Motor Vehicles  was adamant.  The license plate reading “GRABHER” was deemed “misogynistic and promoting violence against women.”  It was a surprise to Lorne Grabher who simply wanted a license plate with his family’s name. Continue reading →

If it appears in a serious publication, it acquired the gloss of ascribed credibility. After all, a serious publication wouldn’t publish something that wasn’t true, right? And there can be no doubt that Scientific American is a serious publication. So when daddy-blogger Jeremy Adam Smith’s How the Science of “Blue Lies” May Explain Trump’s Support appeared in such a credible publication, maybe he was on to something.

Granted, the title used the word “may,” the weasel word to cover the lack of commitment to the thesis. But it also used the word science, and it’s a word that distinguishes the lunatic theories from truth. Even the New York Times emphasized that difference today, trying to wrap up its agenda in scientific truth, which the Philistines are systematically dismantling.

We know about white lies, the inconsequential lies of kindness that do no harm and avoid needlessly hurt feelings. We know about black lies, the evil lies told to conceal malevolent and selfish deeds that are good for the teller but harmful to others. But blue lies? Continue reading →

When I saw the post by Bob Ambrogi, I was, frankly, stunned. Twelve million dollars? How could that be?

The legal research service Casetext is announcing today that it has closed on a $12 million Series B funding round. Excluding e-discovery companies, it is one of the largest investments in a legal technology startup ever.

That’s a lot of money even for stupid money, and yes, Bobby didn’t make a typo in the name. It was Casetext. Yes, that Casetext.  The legaltech start-up’s model was to offer legal research with court opinions annotated by crowd-sourced analysis and commentary. In other words, any moron could go on Casetext, “explain” what a statute or decision meant, and any other moron would then read it and believe he now understood law. It was absurd. Dangerously absurd.

In the beginning, I let the founders, Jake and Pablo, scrape SJ content mostly because I am all in favor of anyone bent on breaking the duopoly of Lexis and Westlaw.  But that only want so far. Continue reading →

For people who aren’t malignantly married to either end of the fringes doing all the shrieking lately, we aren’t willing to do anything, say anything, believe anything, because it furthers our self-righteous agenda. Does that make us horrible people?

A student asked me the other day whether I approved of exaggerating for a good cause. The topic had apparently been discussed at an environmental forum, and the question was, essentially, “Does saving the climate justify lying?” Wouldn’t it be a good idea to use an impressive, if not necessarily factually correct, message to counteract the mind-numbing cacophony of the Trump administration, which drowns out more reasoned speech?

In an excess of kindness, my guess is that this conversation is used as a rhetorical device to lead into Masha Gessen’s point, because I don’t believe for a moment that this happened the other day. Unless the other day was ten years ago, as we’re so deep into post-factual rationalization that no student would need to inquire whether lying for their team was acceptable. It’s required, as anything else makes you the enemy. No deeply passionate believer wants to be the enemy. Continue reading →

The notion of “cultural appropriation” eludes me. If someone does something with the intent to offend a culture, then that is a standalone issue. Whether it’s a real issue or just one of oversensitivity is another matter, as people turn over rocks these days to seek reasons to be offended by other people’s conduct. And that, too, is a separate issue.

But if I make guacamole, have I culturally appropriated something? Is it bad? Or do I just like guacamole? And why shouldn’t I like guac, unless it’s made with peas? Guac is delicious, and there is no reason why I shouldn’t be able to eat something that’s delicious. Or is there?

At Pitzer College, Latinas were outraged that white girls* wore hoop earrings, which quickly spiraled out of control.

Pitzer College maintains a free wall where students are invited to paint whatever they would like. A recent critique of white women who wear hoop earrings has attracted far more attention than most writing on the wall — and the debate has escalated well beyond jewelry. Continue reading →

When Jacoby & Meyers began, it was supposed to be the People’s law firm, solid lawyering at prices regular folks could afford. Some wags might argue that this was merely a marketing stance, as they wanted money as much as any other law firm. When they didn’t get it, they pivoted to a personal injury firm.

There was a structural argument with the concept of low prices that doomed it to failure: if you don’t make enough money, then there’s no point in running a business. If your intention is to run a charity, that’s a different story. J&M was no charity. Their lawyers want to get paid, and paid enough to enjoy the comfortable lifestyle their mommies promised would be theirs if they just hunkered down, went to law school and became professionals. There is nothing wrong with that, even if the nice folks who want cheap lawyers fail to grasp that their cheap comes at the lawyers’ expense.

Same goes with the advocates of Access 2 Justice, all of whom get paychecks from somebody else while telling lawyers to work for pennies for the good of the poor and downtrodden. People need inexpensive legal assistance. Lawyers need to feed their kids. Do the math. Continue reading →

It’s not unprincipled to simultaneously believe in rugged individualism for those who can and a safety net for those who can’t. We can quibble over where to draw the line, and the conflicting ideologies may make purists cringe. But for anyone who believes that no person should lack for health care in America, it’s hard to shrug off poverty with the cartoon character of the welfare queen.

There are poor people in America who didn’t do anything wrong to be there. Some suffered misfortunes outside their control. We have a severe dearth of decent-paying jobs, despite the lie of low unemployment. Technology has produced massive structural un- and under-employment, even if you’re enjoying hipster heaven coding for cash. There are hard-working poor who need health care and can’t afford it. There are people with serious illness who need it.

And there is a vast middle-class whose real earnings have declined seriously since 2007, with no hope of improvement, who don’t exist in the Washington spin cycle. While the ACA served the poor, the struggling middle class was burned on both ends. Premiums remained high, and went higher, while deductibles and co-pays ($7,150 for 2017) made their policies worthless unless they suffered severe illness. This was catastrophic insurance, which is fine when you suffer a catastrophe, but is a worthless sinkhole otherwise.

An unattributed comment about the Republican health care bill was that Trump understood neither the politics nor policy of what he was doing. This is what comes of electing the guy who makes empty promises of greatness without the details that Americans had historically demanded of people before they voted for them. Claiming he had a great plan that gave everybody everything is easy. Having a great plan is very hard. Continue reading →