President Donald J. Trump posed the question while speaking to Ohio factory workers.

President Trump on Monday accused Democrats who did not clap during his State of the Union address of being un-American and even treasonous. His remarks came in a rambling, discursive speech at a factory in Ohio, during which he celebrated his revival of the American economy as the stock market plummeted by more than 1,000 points.

This may not be the most objectively factual description of what was said, as he was referring to the refusal of Democrats to applaud his entry into the congressional chamber rather than clapping “during” his State of the Union speech. No doubt it hurt his feelings to be the only president to have people turn their back on him as he walked down the aisle. Continue reading →

Not long ago, lawprof Nancy Leong got an unpleasant lesson in courtesy and clout. When you’re invited to be a guest on someone else’s panel, you can accept or decline, but you can’t demand they recreate the panel to meet your demands. She was unceremoniously dropped, and thought they were wrong because, naturally, she couldn’t be.

It’s not that Nancy’s concern wasn’t real or sincere, that there be greater representation of women and minorities on her panel, as she was the only one, but that her effort to achieve her goal by an ultimatum backfired. Do it or else? She got “or elsed,” and then there were none.

This raises a key point that might not be obvious to many. People are asked to speak because they have something to say that other people want to hear. Nobody goes to a conference, a panel, a presentation, because of the demographics of the participants.  Continue reading →

Radley Balko, Washington Post criminal-justice reporter, is an outstanding example of a type of journalist that’s all but vanished at national papers: the “beat reporter,” someone who, despite lacking a top-level credential in the field he covers, researches it so deeply and thoroughly for so long that he becomes the expert.

Better, Balko compounds his knowledge with a rare degree of honesty. Where other “issue” journalists blur the line between reporting and advocacy, Balko consistently refuses to indulge in strawmen. To be sure, he has his perspective – a libertarian one – but he’s well known for the lengths to which he goes to get and accurately report the views of people on the other side of a crimlaw debate. If there’s one thing you can count on Balko to do, it’s report first, provide an analysis second.

It’s tough to overstate how much credibility this gets him in an era dominated by partisan screeching. It also translates into a lot of access: his first book, Rise of the Warrior Cop, wouldn’t have been nearly as insightful if he’d alienated police by condemning them from afar instead of seeking out their company and making the effort to understand their positions. Continue reading →

One of the pressing questions in search and seizure law is what excuses won’t suffice for a cop to justify a search on the road. The Seventh District Court of Appeals in Amarillo, on remand from the Court of Criminal Appeals, faced a tough one.

At the suppression hearing, the trooper was asked: “So you’re telling the Court that because you see a van, it’s clean and it’s got two people in it, that [sic] was indicators of potential criminal activity for you?” The trooper answered: “Yes, sir, they are. They – in and of themselves are nothing, but in the total – when you start adding them all together, they can be.” When two people in a clean car indicate criminal activity, then the words of John Lennon have come to fruition: “Strange days indeed – most peculiar, mama.”

So they affirmed the trial court’s suppression? Well yes, they did, but not because of this. The basis for the stop was that the tire of Jose Luis Cortez’s minivan touched the fog line. Twice. Or more to the Whren point, Cortez had “twice driven on an improved shoulder in violation of Texas Transportation Code, section 545.058(a).” Continue reading →

Glenn Greenwald calls it “special pleading,” the sudden recognition and concern for a wrong when it touches you or yours.

The objections voiced by Roiphe to this list are ones that have been expressed by many genuine supporters of the #MeToo movement: namely, the accusations it contains are unvetted and unverified; anyone can add accusations on the list while remaining completely anonymous; and because the list purportedly was intended never to be published (a claim Roiphe questions), those accused of misconduct may never know that they’ve been accused and, in all events, have no ability to challenge or dispute the accusations made against them, ones which could nonetheless severely harm their reputations or even destroy their careers. Roiphe’s objection to the list is, in essence, one of due process: It enables people to be punished with no evidence of guilt, no guarantor of reliability, nor any meaningful opportunity to contest the accusations.

But, as Greenwald notes, with some amazement, Katie Roiphe’s attempt at analogy to a make-believe list of Muslims reveals her special pleading. The list is real, called the “no fly list,” and she doesn’t even know it exists. How sincere could she be about due process?  Continue reading →

It’s hard to admit you’re wrong. So David Leonhardt doesn’t. The title given his op-ed is It’s Time to End the Scam of Flying Pets, is curious, given that it’s mostly an apologia for scammers.

One day, we may all owe a debt of gratitude to Dexter the peacock.

At Newark Airport last weekend, a woman tried to board a United Airlines flight with Dexter. She described him as her emotional-support animal. But given that peacocks are large birds and there is not much evidence of their therapeutic benefits, United said no, Dexter could not board.

Since when did the size of a bird define the comfort it brings to someone? Sure, a peacock seems ridiculous, because, well, that’s how it seems. But is it any less ridiculous than other animals? Continue reading →

The #MeToo movement is accomplishing what sexual harassment law to date has not.

Catharine MacKinnon is being far too modest. Much as the movement may be the culmination of social factors that caused, and gave us, the current administration, she’s dedicated her life to making those factors happen, creating the narrative that allowed that confluence of events, beliefs and feelings that would result in a time when extrajudicial unproven allegations by women would, without more, destroy men.

Her first goal was the campus. but her baby has now grown to take its place in the real world. She must be very proud.

Sexual harassment law — the first law to conceive sexual violation in inequality terms — created the preconditions for this moment. Yet denial by abusers and devaluing of accusers could still be reasonably counted on by perpetrators to shield their actions.

Continue reading →

At the New York Times, Jose Del Real did a story about the other side of Stanford lawprof Michele Dauber’s personal jihad, the Persky Recall movement. Kind of. Not really, actually, and that’s the reason for this post.

The headline makes a promise:

Activists Try to Recall Judge in Stanford Sex Attack Case. Some Say They’ve Gone Too Far.

Perhaps the problem is that nobody told Del Real that the attacks on Judge Aaron Persky have been going on since Day 2, as he writes as if there is something new happening here. It’s unclear whether, “nearly two years later,” the new issue is the recall or the opposition to the recall. I suspect the latter. Continue reading →

The woman who revealed Harvey Weinstein’s debauchery and abuse of power as star-maker saw an extraordinary fall from grace after being confronted by a transgender woman at a Barnes & Noble talk.

Sides aligned. Some call the transgender woman, Andi Dier, a heckler who attacked her. Some say she challenged McGowan, who lost it. Allegations were made that Dier was a paid provocateur, and that McGowan feared that Weinstein was trying to assassinate her. Continue reading →

One of the most common retorts to arguments against retribution in the legal system is that “we,” meaning criminal defense lawyers and often judges, “would feel differently if it was our child.” And, indeed, we would. Who wouldn’t understand why Randall Margraves went for Larry Nassar?

Had I been in his position, it’s hard to say that I would have shown his restraint. Touch my child? Like most fathers, or mothers, I would take a bullet for my kids. And I would give one as well. Continue reading →