Editing is a wondrous thing. When writing, it’s almost impossible to see your own typos, your mismatched verb tenses, your truly horrible choice of words and your sentences that die a brutal and painful death. Someone else will immediately see the problems and, poof, they’re fixed. It’s a miracle.

But those are technical problems. Book publishers have an entirely different problem these days, and it’s not just with Huck Finn.

Before a book is published and released to the public, it’s passed through the hands (and eyes) of many people: an author’s friends and family, an agent and, of course, an editor.

These days, though, a book may get an additional check from an unusual source: a sensitivity reader, a person who, for a nominal fee, will scan the book for racist, sexist or otherwise offensive content. These readers give feedback based on self-ascribed areas of expertise such as “dealing with terminal illness,” “racial dynamics in Muslim communities within families” or “transgender issues.”

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Most lawyers won’t be able to say they know what it was like to appear before former SDNY Judge Shira Scheindlin for sentence. Consequently, her Washington Post op-ed may come off somewhat disingenuous.

Every first-year law student learns that sentencing has four goals: retribution, incapacitation, deterrence and rehabilitation. Yet thanks mostly to the Sentencing Reform Act of 1984 and the Anti-Drug Abuse Act of 1986, I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge. And I was not alone. Over the years, many of my colleagues on the federal bench felt the same frustrations.

There are some quibbles with this paragraph. Some would argue that there are two separate deterrence goals, general and individual. Some would argue that to blame the Sentencing Reform Act of 1984, but not the Supreme Court’s decision in Mistretta v. United States, misdirects blame for the mandatory guidelines, which was just as responsible, if not more so, as mandatory minimums for unduly harsh sentences. But these are quibbles.

What may strike people as hardest to swallow is that a federal judge complains about being powerless to exercise judgment, forced to play bean counter rather than judge. If not a federal judge, then who? Continue reading →

There aren’t a great many benefits to blogging. Fielding moronic comments that demand an order of magnitude more effort to deconstruct than to make isn’t nearly as much fun as people think. But when I wrote about the efforts to get reservations at Le CouCou, a wonderful thing happened. They reached out to me and gave me the reservations we wanted.

Last night was our dinner at Le CouCou. We approached it with some minor trepidation, as experience is that the higher the expectations, the more easily we will be disappointed. But truth be told, our expectations were sky high. And…

Le CouCou was fabulous.

As we entered, the memory of the old Bouley struck both Dr. SJ and me. There was no scent of apples, but there was still something of a clean break from the street into a world of French dining set by candles. This was proven at the table, where a tall white taper was burning. Not a puny votive. Not an electric faux candle. But a real taper. Continue reading →

A friend asked the question: Should I? When a new administration takes over in Washington, there is a seismic shift in top-level staff. The new administration has to appoint something on the order of 4,000 people, but then there are emanations and penumbras from there, as second and lower level bureaucrats put their own people in place.

That’s a lot of jobs, and a lot of bodies are needed to fill those jobs.

In the ordinary scheme of things, this isn’t nearly as big a deal as it might seem. Political parties have their people, the staffers from prior administrations, the new people who come aboard, all clamoring for a post. And decisions are delegated to people who are trusted for their dedication to the party and trusted to be knowledgeable enough to do the job.

So when the friend asked the question, it should have been an easy one to answer. Should they accept a position in the Trump administration? The question is very involved and deeply problematic. Continue reading →

More than 35 years ago, upon graduating from college, I did what many kids of my generation did. I bought a backpack and a Eurail Pass and set out to see the world, without a gun on my shoulder. I flew into Paris’ De Gaulle Airport and promptly made my way to a cafe, where I sat on the street to learn what Ithaca failed to teach me.

Among the things I observed were shoppers with mesh bags for their delicious foodstuffs. Back home, baggers in supermarkets put groceries in paper bags. When shoppers got home, the paper bags, often torn to shreds at that point, were thrown away. In Paris, the mesh bags came with shoppers, left with shoppers and were then used again. This seemed so . . . unAmerican.

In the years that followed, I wondered why this was never adopted here.* Why did people not bring their own bags rather than use disposable paper bags, which required the murder of trees and space on Staten Island? At least the brown papers bags could be made of recycled paper and would swiftly biodegrade. Continue reading →

Breaking:

The American Society of Pedantic Progressive Pediatricians has announced that all physicians should engage in a ten minute discussion with patients, outside of the hearing of parents and legal guardians, between the ages of 12 and 15 about the virtue of trying homosexual sex before determining their gender identity. If the patient, or their parent or legal guardian refuses to allow or attend the discussion, the physician should refuse to provide medical care to the patient.

Insane? Ridiculous? Outrageous? Obviously, but the hyperbole is used to make a point. Physicians hold a place of special knowledge and trust. Physicians provide a skill that people require. Physicians have an opportunity to exert an influence above and beyond the limits of their position as medical providers because of these things, so why not use that position, that influence, that trust, for causes?

That’s the problem that gave rise to the law partially struck down by the 11th Circuit, en banc.

Yesterday, the 11th Circuit handed down a substantially revised opinion in Wollschlaeger v. Governor, the Florida “Docs vs. Glocks” case.

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When Chris Seaton told me that a radio producer was interested in his doing a show, I shared his excitement. Aside from being a criminal defense lawyer and contributor at Fault Lines, he’s got a wicked sense of humor.

If those words, “sense of humor,” are unfamiliar to you, it’s something people used to have that made people laugh and think. It was rarely politically correct or deeply sensitive to things that might hurt people’s feelings. It’s no longer allowed in some circles.

Chris’ producer, Aaron Campbell, also had a sense of humor, which brought the tolerance police down on him at Knoxville’s “community radio” station, WOZO, 103.9 FM. The station was born of pirate radio ironically called KFAR, Knoxville’s First Amendment Radio. The FCC shut it down, burned its content and banned its pirates. So, like good pirates, they reestablished themselves under dark of night and cool ‘nyms like DJ Angel.

That same DJ Angel, whose real name is Angel Ibarra, was the guy who, with muscle in tow, punched Campbell and uttered one of the seven words you can’t say on TV during a live broadcast. Campbell brought a comedian on his show who told a joke that offended Ibarra’s very tolerant and progressive sensibilities. So, Campbell got beaten for it. This makes perfect sense if you understand how tolerance works these days. Continue reading →

On the one hand, the New York Times is calling for an independent prosecutor to investigate the connection between Trump and the Russians. This is the outgrowth of two interconnected issues, the first being the perceived unholy alliance between Trump and Putin.

In this case, the need couldn’t be more obvious. For starters, did Mr. Trump order Mr. Flynn, directly or indirectly, to discuss sanctions with the Russian ambassador? If not, why did he not fire Mr. Flynn weeks earlier, when he apparently first learned of his lies? Were Mr. Trump’s aides colluding with Russian agents during the campaign? Perhaps most important are Mr. Trump’s tax returns, which could tell us whether he is beholden to, and thus compromised by, the Russians? House Republicans, assuming their standard supine stance toward Mr. Trump, voted on Tuesday against requesting the returns from the Internal Revenue Service; a special prosecutor would not feel so politically constrained.

There are some good questions in there, particularly as relates to Flynn’s retention after the administration knew of his discussions with the Russian ambassador, yet kept him on until it became public. Only then was he thrown overboard, suggesting his crime wasn’t what he did, but being publicly exposed to the embarrassment of the administration.

Other questions were raised during the campaign and rejected by voters as being a problem. The Times can’t let go, so it concludes that “the need couldn’t be more obvious,” a rhetorical sign that it needs to overcome with hyperbole what it can’t substantiate. But does Flynn’s lying about his contact, what may well be a violation of 18 U.S.C. § 1001, fall outside the capacity of the government to investigate? That’s the second prong. Continue reading →

It was one of those nutty things that, upon reading it, gave me whiplash. At Reason, Liz Mair, who describes herself as “a libertarian Republican political consultant,” and notably not a lawyer, can’t resist (who could?) going after Elizabeth Warren’s precious baby, the Consumer Financial Protection Bureau.

The Consumer Financial Protection Bureau (CFPB) has been in the spotlight lately, with courts and congressional Republicans zeroing in on the agency’s unconstitutional structure that leaves its head—currently Richard Cordray a likely future Democratic candidate for Ohio governor—in possession of vast powers, accountable to no one. Sen. Ben Sasse has dubbed Cordray “King Richard,” and President Donald Trump has been threatening to fire him.

Don’t let the name of the bureau fool you. Cordray doesn’t necessarily love consumers as much as its name suggests.

Now the CFPB may be headed back into big doo-doo, thanks to a rule it is pursuing that would allow it to share communication between an entity it regulates and that entity’s lawyer with a slew of other government regulators—potentially even with foreign governments. Continue reading →

Chicago lawprof Eric Posner doesn’t appear to think any more highly of President Trump’s mad governance skillz than anyone else with even a slight knowledge of law or basic civics. Indeed, he even went so far as to argue that “would-be dictator” Trump won’t make it through his first term because of this, though how that might happen is something of a mystery.

But in the New York Times, Posner suggests a startling proposition, following the opinions on Trump’s Executive Order travel ban.

By resting on due process, the court was able to block the travel ban without addressing a more explosive argument. The court noted that “the states have offered evidence of numerous statements by the president about his intent to implement a ‘Muslim ban,’ ” but declined to resolve this claim “in light of the sensitive interests involved.”

The “sensitive interests” did not hold back a Federal District Court in Virginia. In an opinion issued on Monday, the court ruled that the president acted with animus against Muslims when he issued the travel ban. The court laid out the damning evidence: the campaign statement calling for a Muslim ban, which is still on the web; Rudolph Giuliani’s acknowledgment that the travel ban was really a Muslim ban; the failure of the lawyers who wrote the ban to consult national-security officials; and Mr. Trump’s statements in interviews.

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