The nomination of Brett Kavanaugh to the Supreme Court doesn’t spell the death of Roe v. Wade (or, to be more pedantic, Planned Parenthood v. Casey) on the First Monday in October, no matter how many times headlines scream it does. Contrary to Linda Greenhouse’s efforts to provoke outrage by turning the Court into a cesspool of blind partisanship, it is an institution that perceives its legitimacy as being based on its preservation of legal stability. Maybe too much, even.

But few of the deeply passionate are aware that the highly political and exceptionally poorly reasoned Roe decision was a criminal case. At the time, performing an abortion was a crime, and there were then, as now, a variety of laws surrounding abortion that were criminal as well. After all, if it was a crime, you could leave open tons of loopholes that would allow people to circumvent the main crime by engaging in conduct that reflected the same moral culpability but skirted the elements.

Then came Roe, and everything changed. Except as my old college classmate at Cornell, Lynn Paltrow, explains, not only didn’t every thing change, but an awful lot remained exactly the same even if the Supreme Court’s ruling vitiated the consequences. Continue reading →

Aparna Nancherla is a comedian. I know this because it says so, which is helpful because, had it not said so, I wouldn’t have known until I reached this part of her op-ed.

Before I stopped reading replies to my tweet, four garden-variety Horsedudes of the Bropocalypse had galloped on through with responses of this variety:

Apology: “What he did wasn’t even that bad.”

Victim-Blaming: “Why didn’t they just leave the room?” (Subtext: maybe these women should leave the planet.)

Hate: “If those women were actually funny, they wouldn’t be trying to get attention this way.”

Self-Loathing (via Fellow Women): “If you can’t stand the culture, get out of the yogurt!”

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California has been on quite a tear lately, legislating a wealth of laws for the purpose of signaling that it’s doing something about the #MeToo nest of vipers in its most woke and progressive communities. Let’s face it, there’s some cause for embarrassment to learn that the strongest supporters of social justice all prayed at Harvey Weinstein’s shower. So they’ve been busy, leading the legislative way, which its advocates gave the hashtag #takethelead bills.

SB1300, in the words of the ironically-named advocacy group, Equal Rights Advocates, “fighting for women’s equality,” was a nail-biter.

SB 1300 closes loopholes in California’s current sexual harassment laws, proposing several important reforms:

• Provides guidance to California courts on the “severe or pervasive” legal standard for sexual harassment claims, to ensure the standard is consistently and fairly applied to better protect victims. This clarification addresses the “one free grope” standard that was confirmed by the 9th Circuit federal court in 2000.

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A twit by a young lawyer, who shall remain nameless as the point of this post isn’t to shame him and he seems to otherwise be a good guy, caught my eye. It was obviously twitted for its humor:

A thing that really happened today:

Attorney: “And how do you know that?”

Witness: “I don’t know, hearsay around the neighborhood.”

Me: “Objection, hearsay.”

Judge: “Overruled. I’ll allow it.”

His point in twitting this wasn’t lost on me. He was telling a funny story about some absurd thing happening in court. Law, so dumb, right? Being a curmudgeon, I replied: Continue reading →

There are arguments in favor of qualified immunity, and they’re not easily dismissed. Then again, there are arguments as to why it’s an inexcusable travesty, an exception created by the Supreme Court out of whole cloth. Adding to the mess, there is the problem of Pearson v. Callahan, in which the Court changed the analysis from serial to either/or, thus allowing courts to apply qualified immunity to egregious conduct without having to decide, and thus hold, that the conduct was unconstitutional.

So what? So the “clearly established right” prong of QI can never be met if courts skirt the part about whether the conduct involved violated a constitutional right. New Fifth Circuit Judge Don Willett agreed with the majority that, under the current state of the law, the court was constrained to grant the defendants QI in Zadeh v. Robinson.

Plaintiff Joseph Zadeh appeals the dismissal of his Section 1983 claim against several members of the Texas Medical Board who he claims violated his constitutional rights through a warrantless search of his office and medical records. Dr. Zadeh, an internal medicine doctor, owns and operates a medical practice in Euless, Texas. One of his patients, Jane Doe, is also a plaintiff-appellant in this case.

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While stories of sexual abuse in the hallowed halls of Congress, bought off by tax dollars with sealed with a non-disclosure agreement, caught a little bit of interest, it was dwarfed by the Stormy Daniels story, with a president buying the silence of a porn star over his affair that, remarkably, didn’t seem particularly disturbing to most people. The problem was the non-disclosure agreement, the contractual clause that kept the deed secret.

California, home of Harvey Weinstein and Asia Argento, had enough of it.

The California Legislature passed two bills last week aimed at helping sexual harassment victims and the bills are now awaiting Gov. Jerry Brown’s signature to become law. One bill, AB 3080, would ban confidential agreements regarding harassment and mandatory arbitration agreements in employment contracts, which are often used to prevent sexual harassment and assault victims from seeking justice.

The other, SB 820, would prohibit nondisclosure agreements that prevent the “disclosure of factual information” in sexual harassment, assault and discrimination settlements. The bill would still allow settlement agreements in sexual misconduct cases and allow the victim’s name to remain private, but the name of the perpetrator cannot be concealed.

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It was last March, and a legal scholar of no small note, Erwin Chemerinsky,the uber-progressive  dean of the wildly-woke UC Berkeley Law School, took to the op-ed page of the Sacramento Bee to call for reform.

California should join other states that are abandoning the traditional bail system for those awaiting trial and replace it with an assessment of a person’s danger to society or flight risk. Senate Bill 10, now pending in the legislature, would be a huge step forward for the state and make an enormous difference in people’s lives. It also is essential in light of a recent decision of the California Court of Appeal declaring California’s bail system to be unconstitutional.

The system used in California was based on a bail schedule, a set amount of bail for an offense, such that the amount bore no connection to the person. If you were charged with larceny, you paid the bail for larceny, whether you were a guy with 28 prior larcenies or Pope Francis. It was a ridiculous, and unconstitutional, system. To add insult to injury, the nice folks who benefited most from this system were bail bondsmen, vultures despised by everyone until you needed to get bailed out. Continue reading →

As seems to be the new policy at the New York Times, the headline doesn’t quite match the story. Somebody leaked a draft copy of the proposed new Title IX regulations to Erica Green, so the headline reads “New U.S. Sexual Misconduct Rules Bolster Rights of Accused and Protect Colleges.” Except they’re not yet rules. Indeed, they’re not yet proposed rules. They won’t be until they’re published in the Federal Register.

But hey, details, right? At least the Times’ erroneous headlines isn’t nearly as wrong as Mother Jones.

The New York Times Just Revealed Betsy DeVos’ Plan to Let Colleges off the Hook for Sexual Assault

Both the Times and Mother Jones concede that the rules remain a draft, and won’t become regulations until after they’ve undergone the required notice and comment. Continue reading →

Suddenly, people were talking about the Louis CK problem yesterday. Why would anyone talk about this erstwhile woke comedian, a beloved ally to the cause, until his bizarre sexual peccadilloes were revealed? Apparently, he showed up at a comedy club and did a 15 minute set. The audience gave him a standing ovation.

So what’s the problem? If people don’t want to see Louis CK, they don’t have to. No one can make them go see him. If he simply appears, they can walk out. No one can make them watch. If people don’t want to watch Louis CK, he won’t get a stage, he won’t get an audience, he won’t get applause. He got all three. Clearly, people wanted to see him. So what’s the problem?

The scolds before whom Louis CK committed no offense went nuts. How dare this toxic male return from exile without their permission? But even worse, how dare this audience sit there, watch him, applaud? Did they not realize that he was horrible? Did they not realize that he had not been punished sufficiently to sate the scolds? What about justice? Continue reading →

Edward Addison Cook III (Ed), 88, died Monday, Aug. 13, 2018. Ed was the best lawyer and the best person I have ever known. I loved Ed.

In 1884, Ed’s grandfather came out to Lexington, Nebraska,[i] from Illinois after reading law. He submitted to an examining panel before the District Court of Dawson County and was, that same day, admitted to practice. Later, Ed’s father took over. The Cook law firm celebrated 100 years of continuous practice in 1984, and I was privileged to attend the celebration as Ed’s law partner. Ed practiced law for five decades, and I was honored to have spent 13 of those years with him. Judge Jim Doyle later became our partner as well.[ii] Continue reading →