Few people know this, but Dan Hull is a sensitive guy.  Deeply sensitive. He cries when he watches Bambi. Every time.  Sure, he may come off as a devil-may-care aficionado of Ernest Hemingway, with images of him running from the bulls in Pamplona, but he is more likely to try to talk to the bulls, to explain his feelings, to empathize with the fact that they’re about to be slaughtered.

Dan is sensitive.  And he knows it.

Listen. I’m a man. I’m sensitive.

Men. There are 3.6 billion of us on Earth. And both studies and anecdotal evidence confirm that, every day, thousands of men are being publicly “harassed” on Twitter. This news item, a post by the Women, Action and Media (WAM!) appeared on my Zite feed this morning: “Harassment of Women on Twitter? We’re ON IT“. But who will stand up for men when Public Online Real Life Unpleasantness (a/k/a Twitter PORLU) happens?

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Shawn Peterson was the cook at Leslie’s Family Tree restaurant in beautiful downtown Santaquin, Utah.  It’s unclear whether he was a good cook or not, though there is no indication he had any Michelin stars.  Still, it looks like a nice restaurant, and Peterson’s cooking must have been good enough to keep the joint from going under.

So they fired him.  Not for his cooking, but for his Facebook page.

“We’re just blown away by this,” said Leslie Broadhead, owner of Leslie’s Family Tree, a family-owned cafe with a Facebook page that normally focuses on daily specials and weekend entertainment.

But this week, the cafe’s Facebook rating began to plummet as negative reviews poured in. In the comments under food photos, people were posting the image of a man in uniform lying on bloody pavement with a bullet through his forehead, accompanied by the text: “This is what a good cop looks like.”

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Much as it pains me, a serious issue was raised at Jezebel, albeit in its inherently nasty and ignorant way:

Yes, this involves the Jameis Winston debacle, but that’s not the point of this post. The question is whether his attorney, David Cornwell, was wrong to publicy out the accuser. Continue reading →

First, stop the hating on AOL.  Some of us appreciate its retro feel, not to mention the fact that for many years, it was the only game in town.  Sure, today it’s frowned upon, a dinosaur, but for those of us who were early adopter, having an original AOL email address (the ones without numbers after the name) was pretty darned cool once.

Frank DiTomasso, however, might have preferred CompuServe.  His choice of AOL didn’t work out all that well.  Nailed for sending child porn via his AOL account, he learned that AOL monitors email attachments for illicit materials. From United States v. DiTomasso:

DiTomasso has an AOL email account — [email protected]. When AOL users send or receive emails that contain attachments, AOL runs two background monitoring systems designed to scan for illicit material, including, but not limited to, child pornography. The programs work by assigning “hash numbers” to image and video files. In essence, hash numbers are unique number-strings that can be used to archive packets of data —“fingerprint[s]” for electronic media.

AOL employs two different hashing programs. The first—the Image Detection and Filtering Process (“IDFP”)—sweeps for one-to-one matches with known child pornography. If an attached file is a one-to-one match, the email is quarantined —i.e., diverted from the recipient’s inbox—and an automatic report is generated and sent to the National Center for Missing and Exploited Children (“NCMEC report”).

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In a perverse sort of way, I have always hoped that the students at Harvard Law School were just a little smarter, a little more astute, a little deeper, than others.  It’s not that I thought there was something magical about Harvard, or some sort of negative reaction to Legally Blond, but that I hope that I respect intelligence, and hope that there will be a cadre of smarter lawyers out there than the ones who think they get solid legal advice from the Puddle.

Alas, my hopes were dashed upon reading the response of three Harvard law students to the protest of 28 of their professors to Harvard’s sexual assault policy.  In a Boston Globe essay, Anna Byers, Anna Joseph and Maggie Dunbar went public to express their disagreement, and disappointment, in their professors.

As students of Harvard Law School, we write to voice our support for survivors of sexual assault, for promoting equal access to the benefits of education, and for administrators who treated federal civil rights law as a floor rather than a ceiling.

Perspective is immediately revealed in their use of the word “survivors,” as if death was the alternative to agreement.  But the more significant fallacy appears in the phrase, “a floor rather than a ceiling.”  While a catchy phrase, it’s inapposite to the concept of a well-balanced law, which should be neither floor nor ceiling, but well-balanced. Continue reading →

Whenever the next new, great, cool, this-will-fix-everything idea pops on the scene, some mean old guy (occasionally me) will give it the stink-eye, look at it skeptically, and ponder what could go wrong. Someone else will then get very angry with the mean old guy (occasionally me) for always shooting down the next new, great, cool, this-will-fix-everything ideas, informing us (me) that we’re morons and demanding, if this idea sucks, then we should give them the “right” answer.

Happens all the time.

This is why:

When video visitation was first introduced in county jails, Grits supported it. It was pitched as a supplement to face to face visitation, a way someone could communicate with a loved one (or client) from a distance when for whatever reason they couldn’t come visit them in person. Proponents insisted face to face visitation would still be possible.

Now, that do-gooder pretense has been abandoned. Increasingly, county jails shifting to video visitation are eliminating face to face visits entirely – as is happening in Bastrop County this month and Travis County did last year – so a private vendor can charge families for the privilege of communicating with jail inmates. With 20/20 hindsight, it’s clear I wasn’t cynical enough, failing to foresee that counties and companies would seek to monetize families’ visits with incarcerated loved ones the same way that they gouged them on phone calls before the FCC reined them in.

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First, there was bullying. Then, cyberbullying. Next up was revenge porn. Now, it’s street harassment. The common thread between these wrongs that have generated calls for criminalization is that the harm to be ended isn’t objectively observable, quantifiable, provable, but ephemeral and personal.  They seek redress for hurt feelings.

Before anyone blows a gasket, this isn’t to say that hurt feelings aren’t real, or that they can’t also produce objective cognizable harms, such as public ridicule or loss of employment opportunity.  And some people whose feelings are deeply hurt harm themselves, to the point of committing suicide. This is a tragedy, as is any needless taking of life.

But the sticking point isn’t so much about whether hurt feelings are sufficiently serious as to warrant a criminal law, but rather how a law, an expression of elements of an offense in words, can be drawn in such a way as to clarify what is prohibited so that it is limited to the offensive conduct without giving rise to ambiguity.  It’s the ambiguity that opens the door to unconstitutional impacts, whether facial or as applied. Continue reading →

A good politician is one who gets bought and stays bought.

— Old Mike from the train

Judges will be elected today. And we will elect them, though we will not select them. Some will be smart. Some will look judgeish, though that’s the closest they come to being qualified. Most will be too young, too inexperienced, too partisan to be worthy of the position.  Some will prove bolder and better than expected.  Some will stay bought.

Judge Kopf posted this video about electing judges the other day:

It’s funny, and largely true. But then, the introduction of attack ads provides us with some greater insight into who they are and what they “stand” for. Continue reading →

When I was a kid, one of the more useful bits of advice my father gave me was that, whatever I would end up doing with my life, I should strive to be the best at it.  The best. That was the goal.  If I was going to be a waiter in a diner, I should be the best waiter in a diner ever.

Somewhere along the way, maybe a generation and a half ago, this advice morphed into “just do your best,” rather than be the best.  The change was subtle, but reflected the difference between efficiency and effectiveness.

As I kid, I never took this as too much pressure. It was what we should aspire to be, with the understanding that we may never quite reach the goal, but we would damn well keep trying.  To do less was to have no purpose. Goals were a good thing, the reason we kept pushing.  I never doubted that it was what I should aspire to, and it drove me forward.  I hit brick walls like everyone else, but it pushed me to find a way around them, under them, over them, to reach the other side.  To do any less was to give up.  I would not give up. Continue reading →

There are a handful of federal judges, bold and caring enough, who have come out from behind their bench to discuss what doesn’t work, what can be very wrong, about the legal system.  Senior Judge Jed Rakoff of the Southern District of New York is one of them, and offers a thoughtful discussion of how plea bargaining rose to prominence, subverted the system and might be fixed, in the New York Review of Books.

Judge Rakoff starts, and quickly dispenses, with the obvious but necessary statement.

The criminal justice system in the United States today bears little relationship to what the Founding Fathers contemplated, what the movies and television portray, or what the average American believes.

After a history of how, and why, we arrived at our current state of affairs, the slide down the slippery slope that began post-civil war and picked up an unstoppable head of steam from the 1960s to 1980s, he arrives where we have been since the Supreme Court ignored every federal judge who ruled on the Sentencing Guidelines and affirmed their mandatory use in Mistretta. Continue reading →