There are a few things about ICE, the United States Immigration and Customs Enforcement agency, that aren’t in doubt. First, it is in desperate need of reform and supervision, as there are agents engaged in outrageous conduct with no one preventing it, overseeing it, protecting undocumented immigrants (particularly children) in its custody from all manner of harm, from drugs to rape. It’s out of control, and there appears to be little interest in the Trump administration to deal with it.

But Abolish ICE, the trendy response to this abortion of an agency, doesn’t deal with the problems either. Without ICE, who watches the borders? Who prevents people from strolling in at will? It almost sounds like, dare I say it, open borders.

Or perhaps they mean abolish one enforcement agency and replace it with an entirely new one, where its agents are sweet and compassionate? At the New York Times, Sean McElwee tries to sell his unicorn. Continue reading →

One of the worst trends in online media is the “open borders” of letting anyone with a pitch to sell buy their way onto a soapbox, and by doing so attain the attributed legacy credibility of being there. If an op-ed appears in the New York Times, then it must mean that it’s Times-worthy. And what about Forbes,* which once used the tagline, “Capitalist Tool”?

Mark Cohen has a legal space business called Legal Mosaic to pitch that relies on the evisceration of such legal niceties as ethics and bar admission that get in the way. After being a civil AUSA and biglaw partner**, his career was spent trying to find ways to beat the system. He was a founder of Clearspire, which was a darling of the cutting edge of new normal. It was going to “disrupt” the law firm model until it went bankrupt. What exactly Cohen’s new business does is unclear. He’s a master of meaningless jargon which ultimately says nothing beyond “we’re cool and different.” What that difference may be is anybody’s guess.

Cohen has written an infomercial for his business, using the Forbes platform, to inform us how to “fix” the ABA. Like everyone else, he accepts that the ABA can’t survive on its current trajectory. Unlike lawyers, he offers the opposite solution and contends that if the ABA rejects everything guild-like and instead reinvents itself to reject every notion of ethical and competent practice, it will survive. Continue reading →

Ninety minutes. That’s half a football game, and the amount of time it took a jury to declare former Tennessee Volunteer football players A.J. Johnson and Michael Williams not guilty of rape. The verdict lifted a nearly four-year cloud of rape accusations off the duo.

Johnson and Williams’ story plays out like so many encounters on college campuses. The two star football players got blisteringly drunk at a college party and met up with two young women. The combination of hormones and liquid courage morphed into remorse the next day, with a Title IX coordinator letting the pair know it was okay to call their regret “rape.”

It came as no surprise when the Knox County District Attorney’s Office decided to indict Johnson and Williams on charges of aggravated rape. The University of Tennessee was already under scrutiny for how it handled sexual assault claims, and it would be unthinkable to let two star athletes walk away from rape accusations. Continue reading →

Gov. Andy Cuomo made it abundantly clear that any regulated financial and insurance industry that wanted to function in New York, which is code for Wall Street, would do well to flex its muscle by snubbing the National Rifle Association.

This is about as uncontroversial as an unprincipled dictate could be in New York City, where guns are neither loved nor appreciated by most voters. It’s not a gun haven, and most New Yorkers have a serious hate on guns.

But financial and insurance institutions care nothing about guns. They care about money, and they are regulated up the ying yang. And regulators can make their ability to function, to avoid administrative demands, monstrous delays in approvals, hearings, litigation, fines, a nightmare. In the scheme of making money, the NRA is just one player, and while not an insignificant player, not a big enough player to go to the mattresses over. And so Andy’s gambit played out as intended. Continue reading →

The day of the announcement, I sent a direct message to my friend Ken so that he would be aware, adding:

I have never felt so old, irrelevant and out of touch as I did when I read this.

He lol’d, knowing my thoughts on the subject. My first exposure to Jeong was through Ken’s twits, and for the most part, I didn’t find her views disagreeable as expressed in her posts. She was generally a supporter of free speech, due process, ideas with which I agreed. The only times I saw her twits was when Ken RT’d them, and I noted that she and Ken seemed to get along well. But I never shared his affinity for her.

You see, Sarah Jeong has never been one of my favorite writers. And I swear I tried to like what she wrote. I even read her e-book, “The Internet of Garbage.” But I didn’t, and I said as much back in 2015. Continue reading →

A person, a student, says the word. Maybe it’s a word that is universally recognized as horrible and unacceptable. Maybe it’s a word that was acceptable yesterday, but has been determined to be unacceptable during the overnight parsing of the list of words that must never be uttered. Maybe it’s a word that, well, only the most finely tuned ear can discern as being improper, based upon its Latin root as bastardized by middle English and expressed in Beowulf.

“This must be stopped,” someone within earshot decides on behalf of some other marginalized community of which he’s no member. After all, he gets virtue points for being an excellent ally, and can proudly proclaim to those whose validation he desperately seeks that he was not “complicit.” What must he do? What can he do?!?

Although no ruling was issued, the University of Michigan’s “Bias Response Team” (BRT) isn’t an implicit threat to student free speech rights, said U.S. District Court Judge Linda V. Parker. The program relies on student reports of “biased” speech on campus and contacts the alleged speaker to offer guidance on speaking in a school-approved way. Students who are contacted are not required to respond.

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The word “complicit” has become one of the ubiquitous vagaries hurled at people to shame them for not dedicating themselves to whatever trendy cause is at stake. Sure, you’re not a white supremacist, but if you’re not punching a Nazi, then you’re “complicit.”

The other day, Elie Mystal twitted that any lawyer who would take a job with the DoJ is “complicit.” In an op-ed complaining that Kozinski hasn’t suffered enough, and his victims who stood mute for decades have yet to be validated, lawprof Leah Litman blames the “complicit.”

Sexual harassment often persists because third parties are silently complicit in it. #MeToo requires some retrospection from people who are not harassers themselves.

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Franklyn Williams had a lot to say, and under the circumstances, it’s not entirely surprising. After all, he was about to be sentenced.

Franklyn Williams, 32, is accused of three armed robberies in Richmond Heights and Euclid.

During his sentencing hearing, Williams would not stop talking, despite more than a dozen warnings from Judge John Russo over the course of about 30 minutes. Williams even interrupted his own attorneys.

Not to nitpick, but sentence isn’t imposed on people merely accused, but people convicted.* That said, even the accused is entitled to speak on his own behalf at sentence. Indeed, it may well be the most important speech he utters. Then again, that cuts both ways. Continue reading →

One of the “givens” in Josh Blackman’s effort to prevent various federal judges from issuing a temporary restraining order against the publication of the CAD code for 3D guns is that code is speech. Georgetown lawprof Marty Lederman rejects the notion, calling it a “red herring.”

The “freedom of speech” red herring

Defense Distributed challenged the State Department’s Internet-posting ban as an alleged abridgment of its freedom of speech.  Its theory is based on the idea (as it argues in a brief) that its computer code “is expressive in that it can be read and edited by humans, who can also understand and adjust its output.”

It may be right about that fact:  Some small number of human beings can in some sense “read” and “edit” this code, just as there are some who can “read” most computer programs; the code might even have certain properties associated with a language.

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Among the bizarrely anti-liberal positions being held by the progressive left, its contortion and rejection of the First Amendment’s protection of free speech is one of the most dangerous and inexplicable. The problem is that its promise of content neutrality by the government means it doesn’t work only in their favor, and as the aphorism goes, if it’s not for them, it’s against them.

David Cole, who’s described only as a lawyer who has argued five First Amendment cases before the Supreme Court, and whose affiliation is otherwise unmentioned at the top of his New York Times op-ed, tries to gently explain why this is wrong.

Have conservatives hijacked the First Amendment?

Critics are increasingly making this claim, maintaining that under Chief Justice John G. Roberts Jr., the First Amendment, once an important safeguard for progressive speech, has become a boon to corporations, conservatives and the powerful.

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