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 →

Let us stipulate that lawyers, judges, law professors and legal pundits are not real people and many are not good either. By “good” and “real,” I mean the salt of the earth types that comprise the vast majority of the American public.

With the foregoing agreed, I next address a question Scott put to me recently:

What impact does the partisan handling of Judge Neil Gorsuch have on the federal judiciary?

The answer is as plain as the very large nose on my very old face. That is, the partisan handling of Judge Neil Gorsuch has made good and real people stupid and that, as a consequence, has irreparably harmed the federal judiciary. There are two aspects to this post.

The Confirmation Hearings

The confirmation hearings were a complete embarrassment.  With two non-lawyers running the show (Senator Grassley and Senator Feinstein), political theatre was the order of the day. Continue reading →

This began, if I understand correctly, with a bit of a rant on the twitters, when Cato’s Jonathan Blanks got a little miffed (miffed, as in irate) about conservative reactions to the demands that Dana Schutz’s painting of Emmett Till be destroyed. It was a jarring rant, but it made me think about what was meant by cultural appropriation. Thinking is always a good thing.

Apparently, Conor Friedersdorf was similarly intrigued, and he and Jonathan engaged in an email discussion, which ended up as a post at the Atlantic. Both Conor and Jonathan are smart, articulate and sincere guys, and both are likely far more attuned to issues that an old guy might not fully appreciate.

There is no way to provide you with the flavor of the discussion here. Please read it. But I will excerpt a piece of it to add some additional thoughts. From Jonathan’s part of the discussion:

But my white, right-of-center social media feeds are regularly choked with blithe dismissals of cultural appropriation, as if there is never cause for a reasonable person to be upset when aspects of a culture––or perceived aspects of a culture––are adopted, co-opted, bastardized, or lampooned by white Americans, collectively or individually.

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In my vivid imagination, the folks who write editorials at the New York Times wake up in the middle of the night, sweaty and afraid that someone will point out the hypocrisy in their teary-eyed editorials that defy reason and facts, screaming aloud “cognitive dissonance.” Then again, it’s not as if their readers know or care about the games they play. After all, much as they fancy themselves smart, snugly wrapped in the college degrees, they won’t put in the effort to think any harder than anyone else.

When New York’s pseudo-progressive governor, Andy Cuomo, met with the former radical sentenced to 75 years in prison for the 1981 Brinks heist, Judith Clark, she “touched his heart.” Aww. Who knew Andy even had a heart. The Times folks hugged and cried. Sad stories can do that to empathetic people.

Andy commuted Clark’s sentence, which is a perfectly wonderful thing to do. So why carp? First, because it was a sham commutation.

Her only hope of getting out during her lifetime was a grant of clemency from the governor, a power Mr. Cuomo had almost never exercised in nearly six years in office.

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There are few things that Vice President Mike Pence holds dear that I share, but then, so what? He’s allowed to have different values than I do. Or you do. Or anybody does. And that’s particularly true when it comes to how he conducts his personal affairs, no matter how weird they are to you. Why? Because you are no more entitled to dictate his beliefs than he is yours.

I know, how is that even possible? After all, your values are right and his are not only wrong, but bizarre and outrageous. Is he a perv or just sexist?

No one will be surprised to learn that Vice President Pence is not a loose, casual, fun-lovin’ guy. But many people were surprised to read this little tidbit in Ashley Parker’s recent Post profile of Pence’s wife, Karen:

“In 2002, Mike Pence told the Hill that he never eats alone with a woman other than his wife and that he won’t attend events featuring alcohol without her by his side, either.”

It’s easy to make jokes about, and it’s also easy to argue that this is nobody’s business but the Pences’. But there’s a deeply troubling worldview at work here, one that has profound implications for policy — and we’re already seeing it play out at both the state and federal levels.

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For a brief and shining moment, it seemed as if the New York Times had let go of its war against toxic masculinity. Maybe the editors believed they had finally wimpified their readership. Maybe somebody whispered in their ear that it wasn’t working. Maybe they figured out that their vision of toxic masculinity, guys being what guys wanted to be, wasn’t actually toxic.

Maybe they couldn’t squeeze it in between their 27 op-eds about why Trump was literally Hitler. After all, their slogan is “all the news that fits, we print.” But it’s back, raising the age-old question of whether Millennial men want stay-at-home wives.

But the millennial category lumps together everybody from age 17 to 34, a group varied by race, ethnicity, religion, income, education and life experience. Don’t think for a second they are united. As a set of reports released Friday by the Council on Contemporary Families reveals, fewer of the youngest millennials, those aged 18 to 25, support egalitarian family arrangements than did the same age group 20 years earlier.

The word “Millennial” refers to a generation, not race, ethnicity, etc. That’s why the group is varied by other factors than year of birth. And most people grasp that traits shared are not absolutes. This isn’t a high-level concept. Consider this foreshadowing, the question being whether it suggests where this is heading or whether its writer, Stephanie Coontz, is kinda clueless. Continue reading →

When Hillary Clinton was attacked for having defended a person accused of rape, lawyers of all political persuasions stepped forward to call foul. Indeed, this has been an ongoing theme, particularly for the criminal defense bar. We represent the accused. We don’t do so because crime is fun or we support our client’s alleged rape or murder, but because defending individuals zealously is what our system, our Constitution, demands if it’s to function.

It’s not that this is a controversial issue, but one too easily abused because of the ease with which the public’s heartstrings can be plucked by the sad story of the victim and the harsh characterizations of the lawyer defending the evildoer. Who would defend that bad dude? We would, of course. That’s what we do, and we make no apologies for it.  And certainly no progressive person would damn us for defending the Constitution and the accused, right? Right?!?

Enter Slate’s Dahlia Lithwick. Continue reading →