Law is hard, but not that hard. After three years of study at an accredited law school, it’s not unreasonable to believe that one would have the ability to pass the bar exam. And yet, many don’t.

Graduates who fail face losing jobs already started, not getting jobs that were promised, debt, embarrassment and more debt. Simply taking the exam again costs more than $700, and add to that the cost of further bar review classes, living expenses in the meantime and income lost. All told, thousands more dollars may be piled onto law school debt that is increasingly well above $100,000.

Most of those who fail their first attempt eventually pass the bar on the second or third try. After each attempt, however, these graduates do not learn to be better lawyers, they simply learn how to beat the test. And the damage done from the initial failure can be great. In addition to the financial costs, they may find themselves timed out of promising professional opportunities that never reappear. Finally, there are the emotional and psychological costs that are possibly the most overwhelming consequence of even one failed attempt.

This is all true, a veritable laundry list of terribles that come from failing the bar exam. But notably, it’s all one-sided, the narrative of the failed. As Dean of UC Hastings School of Law, David Faigman is likely smart enough to have deliberately tried to fool readers by this narrative. But it’s in his best interest as a law school dean to try to game the discussion. Continue reading →

There is much to criticize about the justices of the Supreme Court of the United States. They don’t work too hard. Under the guise of “judicial modesty,” they leave glaring issues on the table for years, sometimes decades, rather than do their job and provide meaningful guidance to lower courts. And, despite what we all take for granted, their core purpose, as we understand it today, derives from judicial activism, when Chief Justice John Marshall pulled judicial review out of his butt in 1803.

And sometimes, monumental issues of law are determined by a single justice, who breaks a tie, shifting the paradigm of a nation’s constitutional rights from one side to another. In a more rational world, one might suspect that such a shift should be determined by unanimity, if not plurality. After all, if four go one way and four the other, how certain can a nation be that the decision is right? Is it too much to expect that nine people agree before we accept a fundamental change in the interpretation of the Constitution? Is it good enough that one justice, one swing vote, be sufficient to change everything?

Yet, that’s how it works. And that’s why voices you believe are knowledgeable and trustworthy lie to you.

When Merrick Garland was nominated to the Supreme Court by President Obama, it was a smart gambit, knowing full well that the Republican-held Senate had announced they wouldn’t give anyone nominated by Obama a shake. He was a moderate nominee who could have been offered by a president from either party. There was nothing wrong with Garland, and the Republicans in the Senate, with minor exception, took no issue with the judge put forward. Continue reading →

Back in 2009, the criminal law blawgosphere was atwitter with posts about the duty of criminal defense lawyers. Back then, the question was about whether it was acceptable for lawyers to neglect, no less throw under the bus, criminal defendants when it offended their personal sense of morality because they were GUILTY!!! Good times.

But those good old days, the simple, bucolic times when children confused their feelz with their duty, are now behind us, as Mark Bennett learned when he engaged with a young lawyer, referred to only as “David*,” who sought to school Bennett on the finer points of a criminal defense lawyer’s duty.

After taking a breath, I realize that we all do our jobs on a very slippery slope. I personally try to navigate that slope a little bit more than most, as I do everything in my power to avoid taking on clients I can’t empathize with (I represent guilty people, but not if they’ve done something I find indefensible).

Up to this point, it reeks of the old-school heresy that the duty of a criminal defense lawyer is tempered by his personal feelz, his empathy. Old news. Continue reading →

After enduring the years of harassment, retaliation and vilification, otherwise known as college at Columbia University, Paul Nungesser sought to turn the tables on the abusive use of Title IX. What about him? What about the guy who was the target of Emma Sulkowicz, the infamous Mattress Girl, who took to the campus after her claims of rape were rejected?

Andrew Miltenberg’s first attempt to hold Columbia University accountable for its neglect of a male student, its complicity in Sulkowicz’ antics, its failure to stop her from bringing her mattress onstage at graduation, got shot down by SDNY Judge Gregory Woods.

The first decision was sound, but disappointing:

Disappointment in the outcome doesn’t stem from the court’s vindication of Mattress Girl’s actions, or Columbia’s complicity in them. Judge Woods had no kind words for either, and his ruling as to liability under a variety of ancillary state court claims was rather thin.

But what gives rise to disappointment is the manifest disconnect between how the Department of Education’s Office of Civil Rights, and the colleges that have applied its “guidance,” has abused Title IX for its own political agenda, where Nungesser was denied the ability to do the same.

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In the police report, it’s typical to see a description of the person who allegedly committed the crime in pathetically vague terms:

Male, 6′, 18-30, wearing jeans, dark hoodie.

That covers a lot of folks, some nice, one (at least) maybe not so much. Oh wait, there’s one additional piece included in every description: race. On the one hand, it serves the purpose of limiting the field of people who stand to be thrown against the wall or have guns pointed at their heads. On the other, it can be costly at the University of Minnesota.

The University of Minnesota has agreed to pay $65,000 to a former employee who claimed she was fired for speaking “candidly and passionately” against the racial profiling of African-Americans on campus.

Alysia Lajune, 41, was hired in March 2012 as assistant director of orientation and the transfer experience, according to a federal lawsuit she filed last May. Continue reading →

In a recent case coming out of America’s health care fraud epicenter south Florida, 3 hucksters just admitted to scamming 22 federal inmates out of millions of dollars. And what were these inmates – and their families – expecting in return for their payments? Time shaved off their sentences for cooperating, through the scammers’ efforts on the outside, as reported by The Miami Herald:

A trio of confidence artists from Texas have pleaded guilty to pretending to use informants and law enforcement to help federal inmates in Miami-Dade County obtain credit for providing information on crimes so they could qualify for sentence reductions.

Relatives of at least 22 inmates paid out $4.4 million to the threesome: Alvin James Warrick, 40, and Colitha Patrice Bush, 36, both of Beaumont, who operated a company called Private Services, and Ronald Bennett Shepherd, 32, of Houston, the firm’s treasurer.

Each of the three defendants pleaded guilty last month to a fraud conspiracy charge that carries up to 20 years in prison, though Shepherd is expected to receive a shorter sentence because he only had a supporting role.

None of their inmate clients ever provided any useful information or received shorter prison terms during the course of their scheme, which ran from 2009 to 2016.

As if the federal cooperation game wasn’t icky enough already (e.g., rat on your closest and toughest confederates, and get some time off your sentence at the government’s pleasure), these inmates’ families were bilked out of millions in exchange for nada, zilch. At an average of about $200K per inmate, that’s a nice chunk of change that could’ve gone to pay for familial expenses on the outside, a defense lawyer’s assistance with cooperating, or for plenty of the BOP’s most exquisite cuisine.

It may even be worse than zilch, because these inmates may have been placed in danger if all the back and forth between them, their families, and the con artists may have created an aura of cooperation on the inside. There’s always something about words that rhyme with “snitches”…

Yes, the article and even the court’s docket will list the inmates as the victims, but in reality the people who lost some hard-earned cash were the families who were willing, and most importantly, able to fork over the cash. In all likelihood, these inmates were already destitute by the time they reached their cell at FCI Miami.

After restitution has been ordered, and the government moved to garnish whatever’s left après le déluge, these low-to-middle-flying convicts (FCI Miami is a low-security prison) are left with a pittance, at best. If anything, they would have sought to make the government whole with whatever they had left so as to hopefully seek a break during sentencing. So the con artists knew where there was no money left, and thus went to where all the money was: the families.

As part of the scheme, Warrick and Bush provided fake invoices and fraudulent documents showing agreements benefiting inmates between various U.S. attorney’s offices, including two in New York, and Private Services.

“In fact, the agreements were fake, the prosecutors’ signatures were forged, and no substantial assistance was provided on behalf of these inmates,” according to the U.S. attorney’s office in Miami.

Instead, the three defendants received regular payments from the relatives of federal inmates for their personal use, including spending the money on luxury cars, vacations and gambling activities.

When you really think about it, it’s not that hard of a sell, at first at least. These are inmates who’ve likely never been to prison before and they, along with their families, are scared shitless as they go through the system. Guess if they waive some shiny documents “proving” results with prosecutors’ names on them, and are good enough salesmen, they can seal the scam.

But there are gaps in how this all went down. Perhaps the inmates and their families exhausted their retainers with the defense lawyers, yet they still had the dough to give to these conniving mutts. Did they not contact their defense lawyers? A ten-second phone call to a competent practitioner would have put these victims on notice that this was a scam.

Jailhouse lawyers don’t really help much despite good intentions, but even a sharp-eyed one might have raised a red flag. Were these con artists that good to keep this going for so long, with so many inmates, while collecting millions?

There’s a whole non-lawyer, and not necessarily criminal, industry that “helps” those on the inside. Take, for example, the BOP’s residential drug abuse program, or RDAP. Those who enroll are eligible for benefits that include time off their sentences, time in a half-way house. Yet, there’s a slew of “prison consultants” on the outside who seek to get paid in exchange for assisting the inmates with getting in the program. As with anything in life, these consultants vary in competence and experience, but if the inmate lands the wrong one, it will likely bring more harm.

A side effect to these cases involving the scam is that perhaps some of the inmates felt like they sold a part of their soul as they worked toward building more cases for the government, with the (distant?) hope of catching a break. They never got a sentencing discount for their effort, but at least no more lives were harmed because of it.

It’s a pretty big catch for a law firm, to represent Facebook, and what firm in today’s market wouldn’t be thrilled to nail the whale? But it comes with some curious strings attached.

Facebook is requiring that women and ethnic minorities account for at least 33 percent of law firm teams working on its matters.

Numbers alone, however, are not enough, under a policy that went in effect on Saturday. Law firms must also show that they “actively identify and create clear and measurable leadership opportunities for women and minorities” when they represent the company in litigation and other legal matters.

As with most social justice demands, it’s rather vague what is meant by “create clear and measurable leadership opportunities.” But then, while lawyers tend to use comprehensible language, we’re becoming increasingly alone and isolated. Either way, the one-third requirement is pretty clear. Continue reading →

They got their digs in: It’s mostly the Republicans’ fault for their treatment of Merrick Garland, even though the Dems’ hands are a little dirty as well. But still.

Now, however, partly as a result of its own actions, but more important as a result of increasing polarization in Washington and the nation as a whole, the court is devolving into a nakedly partisan tool.

But this nomination, despite the false vilification of Judge Neil Gorsuch, isn’t the hill to die on.

That leaves it to Democrats to consider whether the filibuster is worth saving. Whether legitimately outraged at Mr. McConnell’s treatment of the Garland nomination or opposed to Judge Gorsuch on the merits, if they lose the filibuster now — as they will — then it is not available to use against another Trump nominee, who may be objectionable not only to Democrats but to a few Republicans, as well.

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The best reaction to the Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College was revealing.

Holy fucking shit… we won! #Hively

— Omar GP (@omargp) April 4, 2017

For all the cries about how the law already established that gender identity was included within the ambit of sex discrimination under Titles VII and IX, the hard fact was that no court has ever held it. This couldn’t have been made more clear than by the reaction to the Hively decision which held, for the first time ever, that sex discrimination included sexual orientation.

For the uninitiated, it means that discrimination against a person for being gay is sex discrimination, prohibited by the Civil Rights Act of 1964. It’s a fairly big step uphill from gender identity discrimination. and until now, no circuit court in the nation had reached such a holding. Now it has. Continue reading →