Upon first glance, it reeks of Buck v. Bell, the eugenics that was once deemed acceptable in America. After all, aren’t three generations of idiots enough? But is it the same?

A judge in White County, Tennessee has issued a standing order offering a 30-day reduction in jail time to male inmates who get vasectomies and female inmates who get a Nexplanon implant in their arms. The ACLU of Tennessee has issued the following statement in response.

“Offering a so-called ‘choice’ between jail time and coerced contraception or sterilization is unconstitutional. Such a choice violates the fundamental constitutional right to reproductive autonomy and bodily integrity by interfering with the intimate decision of whether and when to have a child, imposing an intrusive medical procedure on individuals who are not in a position to reject it. Judges play an important role in our community – overseeing individuals’ childbearing capacity should not be part of that role.”

There’s a lot of presumption packed into that statement. Is it a “so-called ‘choice'”? Is it “coerced contraception or sterilization”? Is it unconstitutional? Continue reading →

I consider myself fortunate for having never seen a search warrant for a woman’s vagina. It’s hard to conceive what would be alleged that would make any sense to a rational judge. Assuming there was a snitch with proven reliability providing information that a particular woman regularly concealed narcotics in her vagina, it would fail to show probable cause that at any specific moment, there were drugs in there.

At the same time, it would seek an intrusion into a person’s body for a purpose that was, at best, trivial. Let’s assume, for the sake of argument, that the information is accurate. This isn’t a dirty bomb about to kill thousands of people, and Jack Bauer has 24 hours to stop the killing. It’s drugs. If they remain where they are, they don’t harm anyone. Not even by the chaos theory employed by drug warriors to justify why drugs are literally violence.

If a person is dealing drugs, they eventually have to come out of a bodily orifice and be exchanged. Nail them, if you must. Society is saved and you get a medal. And not only did you pinch the dame for a more serious crime, but you didn’t have to take the deep dive.

Of course, if the woman doesn’t have drugs in her vagina, whether at all or at the moment you search, then cops didn’t get a free pass to intrude into a person’s body because a judge said so. Continue reading →

Sitting by the pool during summer office hours, Dr. Sj handed me the book she was reading and told me, “read the introduction. You’re going to like this.” The book was “The Gatekeepers” by Chris Whipple. She was right. I liked it. I only got as far as the intro before Dr. SJ took it back from me, but the seed was planted.

The book is about the role of White House Chief of Staff. It’s an odd position, in that there is no law establishing the post, it’s not subject to senate confirmation and there’s no requirement that it exist. Jimmy Carter had no chief of staff at the beginning of his presidency. But the intro is about 15 of the 17 living Chiefs meeting Rahm Emanuel* before Obama was sworn in to give him some advice.

It was a very curious crew, ranging from Dick Cheney to Jim Baker. Yet, they put politics aside, save for a few cutting jokes, and focused on the job. Regardless of where they stood politically, they understood that a failed presidency meant harm to Americans. They were bigger than that, even if they completely disagreed with the political course.

The point of the introduction was twofold: first that a president who lacked a good Chief of Staff was likely to fail. Second, and more importantly, the job of Chief of Staff was to be the guy who told the president when he was wrong. Continue reading →

The banks and brokerage houses nearly brought America down in the crash of 2008, and yet the United States Department of Justice couldn’t manage to find anyone to prosecute. Like almost anyone paying a little bit of attention to criminal law, finance or who breathed, Pulitzer Prize-winning ProPublica writer, Jesse Eisinger, was pissed. So he sought to find out how this grave injustice could have happened. And that may be the mistake, even if it’s unavoidable.

Eisinger’s new book, The Chickenshit Club, Why the Justice Department Failed to Prosecute Executives, from Simon & Schuster,* dives into the huge question with one thing certain: that the failure to prosecute anyone was a failure of justice. Eisinger doesn’t hide his politics, and that bankers and businessmen are presumed guilty permeates the book. It’s not that it’s an unfair assumption, given what happened, but that his search never seriously considers that maybe the DoJ was not merely a bunch of cowards, but could just be wrong about who’s a criminal.

If you’re interested in the feel, the smell, the sense of what inside baseball is like in federal criminal law, to some extent, and the Justice Department in general, Eisinger does a spectacular job of providing a rich and deep background. It might seem overly banal to the casual reader, but that’s only because it is in real life. Take away the gloss of the cameras and the feigned heroics pumped out by the media, and you see regular people doing their jobs. Eisinger paints a rich tapesty of the world inside Justice. For this alone, the book is one of the most insightful I’ve read. This is the real deal, no shade to clean up the nasty people for their close-up.

But I kept having to remind myself, this was not a book about whether there were crimes committed by bankers, accountants and businessmen, but about how Justice went from the over-reaching cowboys of Enron days to the lily-livered corporate apologists of Lanny Breuer’s “Breu Crew.” I kept waiting for Eisinger to question whether there might be some potential that assumptions, leaps of faith really, that a vague email didn’t conclusively prove guilt. Continue reading →

A young man, who shall remain nameless as he reached out to me in confidence, expressed dismay upon learning that a pseudonymous twitterer, whose bio claimed to be a criminal defense lawyer, spewed some social justice idiocy at him and, upon his challenging the belief, dismissed him. How could a criminal defense lawyer, one who followed him on the twitters, perhaps liked or retwitted him, be such a dope?

Putting aside the issue of who was the jerk, as that’s not really an important element of this exchange, the question posed raises what was once tacitly accepted and understood to be the reality of social media. Just because you follow someone on the twitters, or friend them on Facebook, does not mean you know them.

Continue reading →

Someone lied and I passed it along to you. First and foremost, I apologize. I accepted a representation as true, and it was not. Second, I must atone for my sin by clearing it up. I wrote about the new exclusionary rule at Harvard, I wrote about a report that held itself out as reflecting the majority opinion of its group to eradicate all exclusive groups at the college and punish any student who would defy the ban.

A small minority argued that there should be no formal policy on the USGSOs, championing instead freedom of association. That is to say, they proposed that neither the current policy nor the proposed policy should be entertained. In some cases, they also urged that the USGSOs be permitted to remain single-gender if they wish. The Committee considered the importance of allowing our students to select their own social spaces and friends, but we also recognize principles such as inclusiveness and equality, which many members of the Harvard community consider of paramount importance to our mission.

While it doesn’t say so specifically, distinguishing the “small minority” from the otherwise clear view of the “committee” suggests that the vast majority supported the report. The Harvard Crimson investigated the claim in the report.

In its 22-page report, released July 12, the committee indicated that students and faculty had finally had their say—only a “small minority” of committee members heavily disputed the proposed social group ban, according to the document.

But the results of that May 12 vote—cast around 10:15 a.m. via paper ballot—tell a different story. Continue reading →

Cathy Young wrote a terrific op-ed for the New York Times. The subject was one familiar to any regular reader, that the Title IX campus adjudication system is deeply flawed. While the op-ed didn’t break any new ground, it was a solid, well-supported piece of writing. It wasn’t meant as, and didn’t go to, the deeper legal flaws in the system, but was limited to the undoing of the “Dear Colleague” letters. No bombs were thrown.

It was, frankly, impressive that the New York Times published Cathy’s op-ed, given the efforts it’s made to promote the sad “survivor” stories which may very well be sad, but have nothing to do with the propriety of the bureaucratic issuance of “Dear Colleague” letters to re-engineer the law to align with a radical agenda, or the lack of due process it produced. Granted, the Times is running about a thousand to one on the balance meter, but still, they published it.

And in appreciation, Cathy received comments like this:

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I’m no fan of the BDS movement and take no issue with Israel’s unwillingness to welcome people who hate it with open arms. But this isn’t Israel, and just because an idea is anathema doesn’t mean people don’t get to believe in it. That’s the beauty of America, you get to be as stupid as you wanna be.

But a bipartisan gaggle of senators, ours, not Israel Knesset, has decided that people who hold political ideas with which they don’t agree, are criminals.

[A] group of 43 senators — 29 Republicans and 14 Democrats — wants to implement a law that would make it a felony for Americans to support the international boycott against Israel, which was launched in protest of that country’s decades-old occupation of Palestine. The two primary sponsors of the bill are Democrat Ben Cardin of Maryland and Republican Rob Portman of Ohio. Perhaps the most shocking aspect is the punishment: Anyone guilty of violating the prohibitions will face a minimum civil penalty of $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.

It’s almost incomprehensible that anyone elected to the senate would entertain a law so flagrantly unconstitutional. And yet, not one, but 43 have done so. Not just Republicans. Not just Democrats. Finally, bipartisanship.

So who would be so intellectually clueless, so morally bankrupt, as to support the passage of a law that criminalized political speech? Continue reading →

Much as anyone who knew of Kamala Harris before her recent reinvention as a senate social justice icon might hate to say anything nice about her, suck it up and remember the blind squirrel. Harris has hooked up with Senator Rand Paul to push a new bill to use federal money to bribe states to change their evil bail ways and reduce pre-trial jailing due to poverty. They’ve written a joint op-ed to pitch the proposed law.

Bail is supposed to ensure that the accused appear at trial and don’t commit other offenses in the meantime.

They open with the story of Kalief Browder, which is somewhat ironic as New York, unlike other places, uses only the return to court criteria, and risk to the community isn’t a lawful factor for consideration. That’s not to say it doesn’t enter into the equation, but it shouldn’t.

The op-ed puts most of its effort into persuading people that this is both an unfair practice and an expensive one.* The former is based on the ramifications of detention, from its disparate impact on minorities and the poor, and the latter because we’re spending an enormous amount of money detaining people who can’t afford $1000 bail. The magnitude of expense in warehousing them, in combination with the impact on their lives, loss of jobs, homes, cars, while needlessly in the can, is outrageous. Continue reading →

Judge Kopf, in his letter to a young practicing attorney, was deliberately provocative and slightly snarky, both for the entertainment value as well as to grab attention. The sweet tummy rubs that the babies prefer tend not to serve any purpose beyond validating their saddest feelings. That wasn’t what the good judge was aiming for.

Still, there were flaming nutjobs* who were literally shaking at the outrage of it all.  This comes as no surprise, as baby lawyers are baby lawyers. That’s the reason why an old judge would write a letter to a young lawyer, because they will bristle and buck in reaction to being called immature. They big boys and girls! They know stuff and there is nothing that experience will teach them. Until they gain experience, but that, of course, takes time.

But there was one piece that evoked a surprising reaction.

Additionally, don’t complain about a work/life imbalance. Your clients are what matters. Your spouses and kids are secondary. If you don’t agree, get out of the practice of law.

I would not have thought it terribly hard to grasp what the judge was saying. I would have been very wrong. Continue reading →