The majority opinion in Expressions Hair Design v. Schneiderman reaffirmed the Supreme Court’s commitment to the First Amendment, holding that New York General Business Law § 518 was potentially unconstitutional as applied by precluding a business from letting its customers know that they had to pay a surcharge if they wanted to use a credit card because the card company took a chunk out of their fees.

That might make customers unhappy with Mr. Visa, and New York didn’t want any frowns. Better to maintain the delusion that plastic is wonderful and shut the business up.

Section 518 regulates speech. The Court of Appeals concluded that §518 posed no First Amendment problem because price controls regulate conduct, not speech. Section 518, however, is not like a typical price regulation, which simply regulates the amount a store can collect. The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Instead, it regulates how sellers may communicate their prices. In regulating the communication of prices rather than prices themselves, §518 regulates speech.

Good news, a good decision, even if, as Justice Sotomayor, joined by Justice Alito (?) notes in a concurrence, the Supremes yet again left a complete determination on the cutting room floor. Continue reading →

The mere mention of DNA may make people’s eyes glaze over, but it also brings a smile to their faces. After all, DNA is magic and solves everything. If you’re guilty, DNA will prove it. Innocent? That too. Potentially related to the possible perp, who can’t be identified but close enough to have the cops drop the hammer on you? Wait, what?

That’s familial DNA searching, and progressive New York loves it.

The DNA subcommittee of the state Commission on Forensic Science Monday unanimously approved the use of familial testing in New York and recommended the full body authorize the method at its April 12 meeting.

In its recommendations, the subcommittee stated police and prosecutors must prove all other investigative methods have been exhausted in a case before they can resort to familial testing — which takes a strand of DNA from a crime scene to determine if it matches anyone’s close male relatives who are in criminal databases.

Before you latch onto the “must prove all other investigative methods have been exhausted” language, this is the same sham used in wiretaps, also purportedly a “last resort” measure. It doesn’t work that way, Instead, it’s just a few boilerplate sentences to the effect of “it has been determined that alternative investigative techniques will not be effective in identifying the perpetrator.” Recite the mantra and you’ve jumped the hurdle. Continue reading →

The prevalence of advocacy journalism as an acceptable weapon in manipulating public perception, or as Trump would call it, “fake news,” created a vicious spiral of lies and counter lies. Who could have seen that coming? But it’s all for the sake of righteousness, making your lies good and their lies bad, based entirely on which side you’re on.

Naturally, this stalemate had to be broken. What to do?

Lawprof Danielle Citron, whose cyber civil rights initiative seems almost quaint these days, reveals the next level of the game, the manufacture of the Honest Broker.

The Blindspot: Must Read New Blog

It seems as if it was only a couple week ago that progressive lawprofs created a new blog to promote their deeply-held and totally fair views of why Trump was literally Hitler. But this new blog would be totally different. Continue reading →

To her credit, Linda Greenhouse does nothing to conceal her bias, her one-time effort to feign neutrality, occasionally failed, long since shed. While she stlll gets to mount the New York Times soapbox to take advantage of her attributed credibility while infusing her op-eds with her personal venom, at least she’s willing to let them know up top that she’s a team player.

The Senate Judiciary Committee’s confirmation hearing for Judge Neil M. Gorsuch was just plain embarrassing, and not only for the nominee. But let’s begin with him, skipping over his Republican enablers, who had nothing to do but lob softball questions and praise his answers. If Judge Gorsuch wasn’t the least forthcoming Supreme Court nominee ever to appear at a confirmation hearing, it’s hard to imagine one who could be less forthcoming while still breathing. More interesting and less predictable answers could have come from Siri on an iPhone.

It was, indeed, predictable, though not necessarily for the reasons Greenhouse says. Every modern Supreme Court nominee gets kisses blown from his party and loaded “gotcha” questions from the opposition. This hyperbole tries to paint this as wrong or unusual. Greenhouse knows better, having covered these hearings for years. But her readers don’t, and she relies on their ignorance, combined with her soapbox cred, to deceive and inflame them.

But at least she’s flagrant about it. If a reader chooses not to be made stupider, they won’t be misled. And if a reader desires to be fed lies to validate their hate, well, then her bias doesn’t matter. They don’t need reality to taint their worldview.  Continue reading →

Judge Richard Kopf does his listicle of observations of criminal defense lawyers based on his 25 years on the bench. Spoiler alert: he likes us, with some caveats. So if you heed his admonitions, will you achieve success, world hegemony maybe, or at least the probability of a comfortable middle-class existence as a successful and highly-competent criminal defense lawyer.

Yeah, well, maybe, but maybe not.

In a guest post that will bring a cringe to your face, Carolyn Elefant posts a marketeer’s brutally insipid crap which, per the blind squirrel theory, includes this paragraph.

The numbers don’t lie in terms of what’s going on in the legal profession. In December of 2006 the U.S. legal services sector employed 1,161,400 people[i]. By December of 2016 that number was down to 1,126,100[ii]. So in ten years the profession lost 35,300 jobs. Guess what else the profession did during that time? It added 198,594 attorneys[iii]. Laws get changed all the time but those two pesky rules, known as supply and demand, haven’t changed. A big reduction in jobs, combined with a big increase in the labor supply, results in a lot of attorneys singing a sad song. Oh……by the way, the legal profession lost roughly another 1,000 jobs in the first two months of 2017.

Continue reading →

As I write this on a Sunday morning, I am in the middle of a complex criminal jury trial that will likely last four weeks. Of course, I cannot write about the substance of the case or the lawyers. But watching the criminal defense lawyers in that case started me thinking about my observations of other criminal defense lawyers over the last 25 years.

It occurred to me that the readers might be interested in my top ten observations about criminal defense lawyers from the perspective of a federal trial judge. So, in no particular order of importance, here are my observations: Continue reading →

Brian Bensimon, a student reporter for the College Fix, asked if I had any thoughts on the white paper prepared by the American College of Trial Lawyers. Having neither heard nor read anything about it, it was good of him to ask, as there was now something that needed to be read.

The ACTL is a vanity group, but a legit one, whose primary purpose is to give its members awards. At least they’re earned. And to its credit, the preparation of a White Paper on a controversial topic reflects a real concern for law. So it was something worth the read.

Unlike what one would expect from an association like the American Bar Association, dedicated to social justice at the expense of law, the ACTL took a critical look at the manner in which campus adjudication of Title IX failed to demonstrate respect for basic due process in its zeal to vindicate the campus sexual “epidemic.” And it therein went off the rails.

In 2011, in response to increased concern over sexual assaults on university campuses, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a Dear Colleague Letter outlining the procedures private and public higher education institutions must follow in investigating and adjudicating sexual harassment complaints under Title IX.

Continue reading →

It’s one thing for the much-admired legal scholar, George Takei, to rely on the Constitution’s “null and void” clause.  After all, he’s the Dean of Twitter Law School. But when Norm Ornstein raises the question of what do about the illegitimate presidency, it can’t be sloughed off with a chuckle. He’s not only a very smart, very knowledgeable guy, but he’s scholar in residence at the American Enterprise Institute. He’s not chopped liver.

American politics is deep into the theater of the absurd—but unfortunately, it is a deadly absurdity, like being in a horror funhouse where the creatures leaping out at you have real knives and chainsaws. Americans now have to face at least the possibility, a tangible one, that the election itself was subverted by a hostile foreign power in league with the winning presidential campaign, with implications all the way down the ballot.

Why, exactly, we “have to” is not entirely clear. It may well be the case that Russia pulled off one of the most amazing coups ever by its disclosure of Democratic Party emails into the election. It may be far worse, doing so with the knowledge and acquiescence of the Trump campaign. And it may be that there was a quid pro quo involved, or at least with the expectation of a sympathetic administration in place.

Whether these things happened, or the extent to which they happened, should be known by the American people, and it will be up to FBI Director Jim Comey to do his job, investigate fully. But this won’t answer the next question, which is whether the absence of Russian involvement would have altered the outcome. Those who hate Trump will take this for granted, “of course it did; it’s obvious.” Beliefs aren’t exactly evidence. Continue reading →

The discussion was framed to grab the low-hanging fruit. What’s the big deal about a sincere transgender high school student wanting to use the bathroom that matched his identity? Who really cares about where he pees? And, indeed, the answer was that most of us didn’t, and couldn’t get too up in arms about it.

We have no ill-feelings toward transgender kids. We don’t want to make them sad and alienated anymore than any other kid. Gavin Grimm was a brilliant posterboy for a cause, and while his issue may have pushed the envelope a little, it wasn’t so far that people would be outraged. But then, that was, in part, due to smart positioning that framed the discussion. Since few people think beyond the simplistic characterization, the “transgender bathroom” guidance just didn’t seem like that big a deal.

But it was never just a bathroom rule. Even at the outset, it was bathrooms, locker rooms and dorms. Few talked much about the dorms. Few, but some.

And yet, it didn’t end there, which was obvious if one appreciates how an interest morphs into a perceived right, then a protected right. If there is a right protected by law, it doesn’t cease to be a right outside the bathroom, locker room or dorm room. The emanations were raised, though largely unappreciated. Continue reading →