Andrew Fleischman sent me some screen caps of the Department of Education’s commentary addressing the comments to the proposed Title IX regs. This was the stuff buried in the 2033 pages of squiggly lines where the DoE tried to address the great many issues and objections, or perhaps to create the appearance of having taken them into account knowing that most were submitted to stymie change.

The questions Andrew raised about the regs weren’t hard to answer, per se, as they related to rather common evidentiary practices in law, regularly raised and addressed. But it was the content of the discussion of the comments, the explanatory notes if you will, that presented an issue. It’s unclear how many fingers were involved in the creation of this prolix document, or who reviewed it for substance and what they knew. Continue reading →

When most of the blawgosphere was sued by Joseph Rakofsky, one prong of his reply was an accusation of “internet mobbing.” There is, of course, no such cause of action or defense, but Norm Pattis invented it for Rakofsky. The idea was that each of the blawgers who wrote about Rakofsky, who shredded him for what he did, did not do so as a dozen independent free agents who saw the same conduct and were individually outraged by it, but as a mob, piling on to be part of the mob. It may have been true for some, but crafting a name didn’t make it a wrong.

In a magnificent post (which is my way of telling everyone that you really need to read the entire post because it’s that good) at Arc Digital, Kat Rosenfield faces the flash mob of the moment. Continue reading →

On the one hand, the argument has the benefit of an actual reason: online courses are far less costly to colleges than in-person courses, and if they cost less, the cost of a college degree will be less, making it more accessible to those of modest means.

Covid-19 is about to ravage that business model. Mass unemployment is looming large and is likely to put college out of reach for many. With America now the epicenter of the pandemic and bungling its response, many students are looking to defer enrollment.

Deferring enrollment, taking leaves of absence, transferring, are questions asked by many students and parents, though cost is only one piece of the puzzle. The much larger piece is whether the education they will get is third-rate. Continue reading →

There’s a lot of video taken by people who find themselves, or observe from a close distance, things they believe could turn out to be a problem. Few go viral. Most ultimately fall flat. Some don’t show what the person taking the video believes they show, an outrageous situation that could prove disastrous. But some catch fire.

https://twitter.com/melodyMcooper/status/1264965252866641920

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On another day, it would be controversial for a fairly lengthy list of reasons. This isn’t to say the point is without merit. It is. But like most points, it’s not that simple and, as has become the way of the New York Times, the argument is made dishonestly.

The white supremacist who murdered nine black churchgoers in Charleston, S.C., five years ago dispensed with the fiction that the Confederate battle flag was an innocuous symbol of “Southern pride.” A murderer’s manifesto describing the killings as the start of a race war — combined with photos of the killer brandishing a pistol and a rebel flag — made it impossible to ignore the connection between Confederate ideology and a blood-drenched tradition of racial terrorism that dates back to the mid-19th century in the American South.

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There are thousands, maybe millions, of exceptional examples of the criminal legal system gone wrong. So it’s rather astounding that Michael Flynn has become the poster boy for “injustice.” But that’s just where the stupid starts, as every blithering idiot on one team goes bonkers on the other tribe’s blithering idiots. In an odd sense, that might be an entirely acceptable state of affairs, let the two teams of crazies rumble and let nature take its course.

But when the legal system, the Least Dangerous Branch, becomes the whipping boy of the warring tribes, another issue arises. This extreme outlier of a case gives rise to more extreme and outlier views, and these views distort the legal system, which isn’t robust enough these days to weather the crazy. This became clear to me when the latest in this series of exceptional events happened: Judge Emmet Sullivan retained counsel to respond to the District of Columbia Circuit Court’s order directing him to respond to the petition for a writ of mandamus by Flynn’s lawyer, Sidney Powell. Continue reading →

The word has become one of the cultural touchstones. Discrimination. Bad. Evil. Wrong. Everybody says so. Most don’t get it, and this is by no means a mistake of one side of the other, although the vilification of the word comes from the simplistic left and has since been embraced by the simplistic right as it serves their purpose at the moment.

We all discriminate. We have to. We should. We must. And it’s a wonderful thing, because that’s how we differentiate between the things we believe to be right and good from the things we don’t. We discriminate with the food we eat, the people we date and marry, the cars we drive and the jobs we seek and take. We pick the ones we prefer. We leave the others behind. We discriminate. Continue reading →

Overlawyered was here when I started. I’ve never known a blawgosphere without it, without Wally Olson posting something every day. He was one of those rare few non-lawyers who had a feel for law better than most of the guild, an understanding and appreciation of how it worked and what it meant. He often took lawyers to task for being, well, lawyers, reminding us that it wasn’t about us, about our making bank on the misery of others provided we could sneak it past a judge.

Now he says he’s “adjourned.”

I’ve been considering ceasing publication of Overlawyered over the past couple of years, and the time has finally arrived. I plan to publish its final post on May 31, ten days from now. Continue reading →

It’s nothing new. As Mark Lilla reminds us, Delphi became a wealthy city on the backs of the Oracles. Or to be a bit more precise, on the backs of those who sought the predictions of the Oracles, for it as their money that was left behind. Desiring to know what will happen is nothing new, and who wouldn’t want to know?

But it is a truth humans have never been able to accept. People facing immediate danger want to hear an authoritative voice they can draw assurance from; they want to be told what will occur, how they should prepare, and that all will be well. We are not well designed, it seems, to live in uncertainty. Rousseau exaggerated only slightly when he said that when things are truly important, we prefer to be wrong than to believe nothing at all.

Many careers have been made by “predicting” the future. A noted “legal futurist,” Richard Susskind, predicted that email would overcome snail mail for lawyers, and he was hailed as a visionary. His big prediction after that was The End of Lawyers, based on the futurist’s belief that the internet would democratize law and make everyone as capable of knowing law as the members of the soon-to-be-defunct guild. Continue reading →

Bars weren’t exactly open for business yet in Mud Lick, but tonight the Grassy Knoll Pub was lit as though business was usual. Inside, the proprietor, Jesse Custer, busied himself cleaning in anticipation of a guest’s arrival.

Custer had been on the wrong side of the law long enough to where he hadn’t planned on opening the Knoll tonight. A phone call from Sheriff Roy Templeton changed that. Someone from out of town called him asking a favor. Apparently this someone had enough clout to make Sheriff Roy and the county Health Department look the other way.

Jesse finished wiping down the baseboard of the bar when Cassidy, the Knoll’s doorman, called out, “Custer, our guest is here, and ye’ll never fuckin’ believe who it is.” Continue reading →