It hurts to find myself in the position of having to defend FBI Director James Comey. We aren’t old friends, and, well, I’m not a big fan. But in order to find a scapegoat, a lot of folks are shedding their blue suits (or blue jeans, as the case may be) for pink hotpants. A week from now, we’ll be past the election, but the damage done people’s understanding of the law will stay with us. That’s a problem.

Jim Comey has no friends in Washington. Harry Reid sent him a letter regretting his backing Comey’s nomination.

It looks like Reid told him. But then, so did some ex-Justice lawyers, like Jamie Gorelick and Larry Thompson, neither of whom was a stranger to partisan politics when in office, and Richard Painter, a former White House lawyer. The former exclaim that Comey will be responsible for the death of democracy (nothing hyperbolic there) for not honoring a decades-old gentlemen’s agreement to do nothing within 60 days of an election to influence its outcome. The latter claims it’s a Hatch Act violation because, well, he never actually says. Continue reading →

Not that this is a new phenomenon, or this hasn’t been beaten to death, but every time it happens, it’s still shocking.

There are so many reasons why this is wrong, why this should never happen, why, when this does happen, it should be addressed. But no one gives a damn, and no one ever has. Gots to get the bad dudes, and the litany of excuses for incompetence gets pulled out and splayed.

But none of this was necessary on any level. No need for the raid. No need for the damage. No excuse for the mistake. None of it. Continue reading →

In a weird sense, given that the marketeering apparatus of the internet feeds the belief that lawyers are all whores walking Google Boulevard in hot pants begging for the opportunity to always be closing, you can’t blame Suzanne Hooper. Sure, I didn’t do it. I don’t offer free consultations, even though the marketeers say I do. Not directed personally at me, of course, but spreading stupidity wherever they go, because it’s all they have to offer.

So when Suzanne Hooper called “Jane,” she assumed she was entitled.

The subject of the review (call her “Jane”) doesn’t advertise free consultations. Suzanne called her wanting free legal advice. Jane didn’t give the free advice. Suzanne did not like that. Suzanne punished Jane.

Jane didn’t give Suzanne an answer (or at least didn’t give Suzanne the answer she wanted to hear); Topek and Topek spent 45 minutes on the phone with Suzanne, who never intended to hire them, and gave her the answer she wanted to hear.

Jane, a pseudonym because Mark Bennett won’t give the name up, now has a review on the Googles. Continue reading →

Within hours, Orin Kerr twitted the obvious:

Interesting to see Comey transformed from a pro-Clinton hack to an anti-Clinton hack with just one letter.

— Orin Kerr (@OrinKerr) October 29, 2016

And then the machine of a presidential campaign turned on the Director of the Federal Bureau of Investigation for doing the unspeakable, throwing a sabot into the gears of an apparent downhill slide to victory.

The spin is all about the feelings of the few eligible voters who are either not committed regardless of the news or somehow missed the past 1000 days because they were working hard and feeding their families. To the firmly partisan, the only question is for or against, will Jim Comey’s letter ruin Hillary Clinton’s moment of glory. Nothing else matters. Continue reading →

Judge Jack Weinstein raised a very interesting, and difficult, problem when he rejected the valuation of future income in a tort case of a 4-year-old boy who suffered mental disability from the ingestion of lead paint.

Attorneys representing G.M.M. said $3.4 million was the right number, arguing that the boy would have had a bright career ahead of him; both of his parents had graduated from college and his mother received a master’s degree, according to the court documents. But the landlord’s defense put the figure at less than half that – $1.5 million. Attorney Roger Archibald noted that because the boy was Hispanic, G.M.M. was unlikely to attain the advanced education that would garner such a large income.

“The [proportion] of Hispanics attaining master’s degrees was in the neighborhood of 7.37 percent,” Archibald told the court.

See the problem? Projecting future earnings is based on a statistical analysis, and statistical analysis is based on past experience. But past experience is based upon societal discrimination. So, does the amount get reduced by the facts, or by the fact that the facts are the product of discrimination? And what of the possibility that the boy wouldn’t have a future that would either overcome past discrimination, or that society would sufficiently address discrimination such that the boy’s future wouldn’t be constrained by the past? Continue reading →

A while back, I read a post about how young lawyers can promote themselves by getting gigs at Continuing Legal Education presentations to show off for older lawyers, the ones with business to refer out. The irony, of course, was that it neglected to explain what a lawyer who had no clue could teach a lawyer who did, but since the baby lawyers who read drivel can’t think that hard, nobody noticed.

But since the wall of required CLEs had broken free of competent content, the ABA saw the opportunity to push its agenda into the mix.

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.

Continue reading →

I took a stab at trying to find the right image to go along with Chris Seaton’s post at Fault Lines, The Legal Antidote to Virtual Sexual Assault, and ran headlong into Rule 34. I was fascinated and repulsed at the same time. Two thoughts ran through my head:

• Is this where someone finds sex when he never leaves his parents’ basement?
• Is this where someone finds sex when no real person will have him?

But then I remembered, I was viewing through the lens of someone whose younger years were spent in the real world. There was no virtual world then, and therefore no virtual option. Maybe I just didn’t get it? Maybe the fond memories of youth that pre-dated the AIDS epidemic, the rise of neo-feminist efforts to recreate sexual rules that defied reality, skewed my appreciation of anime porn that allowed people to enjoy a virtual facsimile of sex without all the headaches and risks that accompany the real deal?

The Medium post upon which Chris relied for his Friday Funny (what we internally call his last post of the week, a send-off with humor after a week of posts filled with misery and trauma) has now been deleted, though the internet never forgets. Continue reading →

You mad, Judge?  Angry too, but this borders on basic everyday crazy. Harris County District Court Judge Mary Lou Keel got a hate on the Harris County Public Defender’s Office.

It was by accident in 2012 that the Texas Department of Public Safety stumbled upon a troubling discovery affecting the validity of nearly 5,000 drug cases across Texas: One of its analysts at a Houston crime lab had intentionally falsified lab results.

“Troubling” is an understatement. Given that falsified lab results occurred in 5,000 cases (read, the lives of 5,000 human beings), it was probably a bit more than troubling to the folks in prison, not to mention their kids. This is the sort of thing that anyone with at least a tenuous grasp of reality would recognize as demanding quick and firm remediation. But given that number, nearly 5,000, it was a huge logistical problem.

Soon, after further review of the analyst’s full body of work since 2006, DPS cautioned district attorneys across the state that nearly 4,900 cases — all of those that the analyst, Jonathan Salvador, had tested — could be in jeopardy due to his fabrications. Four hundred of them were in Harris County, leading the district attorney’s office to ask the Harris County Public Defender’s Office to help represent potentially hundreds of defendants in new trials, according to a 2014 memo obtained by the Houston Press.

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A gaggle of criminal defense lawyers, sitting around having beers, gets into a vigorous argument over which Supreme Court justice sucks the most. They nearly come to blows over whether it’s Sam Alito or Clarence Thomas, as if the winner of this argument gets thrown off the island. That’s how much criminal defense lawyers despise Clarence Thomas as a judge.

But this is bullshit.  An Alaskan lawyer, Moira Smith, alleges now that Justice Clarence Thomas cupped her butt in 1999.  She went public with this story on Facebook on October 7th.

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Who you gonna believe, Alexandra Brodsky, the Skadden fellow (?!?) at the National Women’s Law Center, or the Alliance Defending Freedom? After all, when it comes to women’s rights, is there not an official voice that tells all women what they must want, who they must be?  And anybody who feels otherwise is a traitor to their gender.

Except that not all women want Brodsky to make their decisions for them, so the official voice of women needs to straighten their traitorous butts out.

Last month, a Minnesota federal court received a complaint about rampant gender discrimination in one of the state’s school districts. The lawsuit claimed that girls were subject to harassment, barred from participating in athletics, and forced to transfer schools rather than tolerate a hostile environment.

It seems like the sort of case that feminist warriors, like my colleagues at the National Women’s Law Center, might bring. But the plaintiffs’ lawyers come from the Alliance Defending Freedom, a conservative nonprofit organization that is elsewhere suing the federal government to stop it from protecting transgender students’ rights. The discrimination noted in the lawsuit stemmed from the presence of a transgender girl in the girls’ locker room.

Continue reading →