There are few jobs worse than being a member of Congress. One is being a New York City councilman.  At least a congressman gets to vote on laws that have an actual impact, even if they’re just one of 435 votes and have to spend every other waking second begging for donations. But a NYC councilman screams into the void, because the city council has essentially no power to do anything. Cool job if you can get it.

But one would suspect that someone elected to the NYC council, even from Queens, would have a small clue as to how government works. Apparently, that would give them too much credit. In an “exclusive,” the Daily News reports:

A Queens City Councilman is asking the Justice Department to investigate New York’s bail system, after the feds claimed it’s unconstitutional to keep poor defendants in jail because they can’t pay afford to pay bail.

The DOJ filed a friend of the court brief in a Georgia case last week arguing that it was unlawful discrimination against the poor to keep a man arrested for walking while intoxicated locked up because he couldn’t pay the fixed $160 bail for the offense.

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At a minute before midnight, Northern District of Texas Judge Reed O’Connor issued a decision in U.S. v. Texas shutting down implementation of the combined Department of Justice and Department of Education “Guidance” letter directing school districts to accommodate gender identity under Title IX upon pain of losing federal funds. With the school year about to begin, Judge O’Connor issued a nationwide injunction against the government enforcing its rules.

The rationale behind Judge O’Connor was nothing shocking or outrageous, despite advocates’ efforts to spin it so. These were the same arguments raised here, that these are regulations issued in circumvention of the Administrative Procedure Act, without notice and comment, and that the executive agencies grossly overstepped their authority by redefining Title IX (as well as Title VII) to convert the prohibition on “sex discrimination” into a prohibition against discrimination on gender identity.*

Almost all of the reaction to Judge O’Connor’s ruling focused on the propriety of opening bathrooms to transgender students, reminiscent of how the commentary about the Gawker demise focused on how awful Gawker was. These are policy issues, questions of what law people would prefer, rather than what the law is. Regardless of how one feels about transgender discrimination, the question of whether it’s prohibited by Titles VII and IX is entirely different.

As has been argued here, and held by Judge O’Connor, the executive agencies have pulled an agenda out of their butts, shoehorned it into existing law by dissembling, and sold it to a progressive public that wants the outcome without regard to the fact that there is no law behind it.  Continue reading →

In an editorial, the Washington Post has come out in favor of Rep. Jackie Speier’s federal revenge porn law. Like everyone else, they decry the harm that revenge porn, in its worst sense, can cause:

Too often, people put explicit images of former partners online to hurt and harass them, sometimes along with information that can lead to stalking and threats. Because not every state has a law barring the practice, many perpetrators go unpunished. A bill in the House of Representatives could help deter the behavior.

This isn’t particularly controversial, although its advocates prefer to tar anyone who mentions the fact that these laws not only capture the “perpetrators” they want so badly to get, but many others they don’t. Shh. Don’t mention that part or they will call you revenge porn apologists. That’s what advocates do if you don’t tell them how special they are.

In its effort to address and deflect the myriad criticisms raised by these attempts to create a law that sacrifices innocent people and free speech so that no “perpetrator goes unpunished,” WaPo does the classic strawman shtick. Continue reading →

There is no medical science more squishy than psychiatry/psychologytherapy. This isn’t to say that psych impairment isn’t real, or that psychiatrists and psychologiststherapists aren’t effective in treating it, whether by drugs or therapy, but that it sucks at drawing clear lines. Yet, judges have tried to create lines where none exist forever when it comes to who gets to live and die based upon what’s happening in people’s minds.

Texas was six days off from killing a guy, Jeff Wood, who never killed anyone. His conviction was based on the theory of prosecution of felony murder. It’s an old doctrine, even though most people know nothing about it. What was new was that Wood was the first person to be sentenced to death for it. His execution was stayed by the Texas Court of Criminal Appeals to consider whether the death jury was “improperly” influenced by psychiatrist James Grigson.

Nicknamed “Dr. Death” for his willingness to testify against capital murder defendants, Grigson was a witness in hundreds of death penalty cases. His pleasant manner, down-to-earth vocabulary and air of certainty helped persuade juries that the defendant — just about every defendant — would kill again if given the chance. That Grigson often had not met with the defendant did not deter him from forming an opinion about him and defending it to the hilt.

Grigson was a killer witness, and, even though he died at 72, Texas courts are still dealing with the fallout. What made him so effective, which is why prosecutors used him, is that he knew how to play a jury and there wasn’t a defendant against whom he testified who didn’t need killin’.  Prosecutors would use his combination of skills to do everything possible to assure the defendant would be sentenced to death. Continue reading →

Many legal disputes seem so terribly important to the litigants, while remarkably petty to outsiders, but few are as ridiculously insignificant as this battle between two sisters of Alpha Sigma Alpha at Penn State. That didn’t stop them from going to federal court.

Molly Brownstein, a Pennsylvania State University senior, and her family describe her roommate Rachel Lader as a classic mean girl – a “monster” and an “expert bully, with a Ph.D. in intimidation.”

Lader denies this and paints Brownstein as a coddled whiner, quick to turn to her parents to solve problems she created with her own standoffish behavior.

Harsh. It must be horrifying, exhausting, to be a sister of this sorority. Sorry, it’s wrong of me to trivialize their pain. Continue reading →

As efforts to use litigation to compensate for congressional action/inaction continue, clashes persist that give rise to outcomes that create difficult, if not impossible, conflicts with current progressive trends. Judge Sean Cox’s decision in EEOC v. Harris Funeral Homes presents such a clash, and reaction to the opinion does the public no favors.

Religious freedom is a valid defense for a Michigan business owner who fired a trans woman after she asked to dress in accordance with her gender identity, a federal judge ruled Thursday.

U.S. District Judge Sean Cox said that the funeral home deserved an exemption from complying with the law because compliance “would impose a substantial burden on its ability to conduct business in accordance with its sincerely-held religious beliefs.”

That language is lifted from the Religious Freedom Restoration Act, a federal law that protects individuals from government action that may “substantially burden” their religious tenets. Rost had raised it as a defense in the litigation.

That Rost was able to fall back on Religious Freedom Restoration Act was a quirk of the case, as the action was prosecuted by the EEOC on behalf of the employee. Had the employee sued on his own behalf, it would not have been available, as it only applies to the government’s imposition of a burden on a person’s free exercise of religious belief. Continue reading →

Even a blind squirrel finds an occasional nut, and so this post at the Social Justice Law Blog raised a surprisingly interesting point.

Whenever I apply for a job at a major company, their job application website states that the company is an equal opportunity employer. And for those who want to learn more, they provide a link to their equal opportunity policy statement. Most of these policy statements sound the same and at times use very technical terms. This leads me to believe that these policy statements are there for legal reasons. I also find it amusing when they ask for your ethnic background for “statistical purposes.” I’m sure that’s the reason.

Alright, granted that stuff somebody named Shannon Achimalbe finds amusing isn’t interesting to anyone but her, but bear with me.

Over the years, there have been calls by thought leaders to increase diversity in the workforce. While businesses tried and succeeded on various levels to improve the numbers of minorities on their payroll, the legal sector has been slow and reluctant to do so. As noted by Renwei Chung, Above the Law’s diversity columnist, law firms are perceived to have the lowest commitment to diversity when it comes to hiring and retention.

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This black guy was tried and acquitted in 1999. Throw a parade? The system worked? How often do we decry racism in the legal system, the chances that an innocent black man will be wrongfully convicted. But not this time. This time, the defendant was acquitted.

Sure, criminal defense lawyers will applaud the fact that a jury tested the allegations and concluded that they failed to prove guilt beyond a reasonable doubt. Sure, we will explain why the presumption of innocence remains intact, that this man, this black man, is innocent, as in everyone who is not convicted of a crime. Because this is how the system works. Because this is our legal system as its best.

And certainly the social justice warriors, while clueless as to the legal aspects of trials and acquittal, will stand behind this innocent black man and praise this outcome, right?  The mere “technicalities” of law, that they either embrace or ignore according to the outcomes their religion dictates, favor this innocent defendant, because systemic racism is a tenet of their belief system. But no. Not this time.

The High Priestess of Feelings, Roxane Gay, cannot muster the empathy. As for the intelligence, she doesn’t bother to try, inherently realizing it’s a lost cause. Continue reading →

At Fault Lines, Noel Erinjeri writes about a problem that has long plagued the criminal defense bar, to the extent such a beast exists.  Who argues for us?

As it turns out, Supreme Court advocacy for criminal defendants is subject to a lot of the same constraints that affect criminal defense at less rarified levels. The Minnesota Law Review recently published an article by Andrew Crespo, a professor at Harvard Law, which analyzes the development of criminal jurisprudence in the Supreme Court and why the field is tilted against the defense; along with some suggestions on how to fix it.

It hasn’t always been tilted, of course. During the Warren Court, the heyday of defendants’ constitutional rights, the Supreme Court was inclined toward the defense, some would argue too inclined. But then came Chief Justice Burger, and then Rehnquist, and it’s been downhill since.

So aside from the fact that the defense has no friends on the bench, nor any justice since Marshall who has actual experience on the defense side of criminal law, what’s Crespo’s view of the problem? Continue reading →

Nick Denton sent a memo to the writers to pack up their belongings, as Gawker is gone. It was sold at bankruptcy auction to Univision for $135 million because a local judge, Pamela Campbell, vacated the stay of execution of judgment pending appeal after finding that Denton lied about the value of his stock in Gawker.

Denton’s 30% share failed to suffice to secure the $140 million judgment awarded by a local jury for damages to Terry Bollea, the alter ego of Hulk Hogan.  The judge had previously refused to reduce the verdict as excessive.  At this point, there was little left to do.  Even though it was learned after trial that Bollea’s litigation was being financed by Paypal billionaire Peter Thiel, that fact, without more, didn’t alter the calculus.

There are three things that have made it impossible for most people to view what happened here with a rational, detached perspective. The first is hatred, whether toward Gawker and Denton, for what they did to Bollea which most people find distasteful at best, disgusting and inexcusable at worst, or outing Thiel as gay, which gave rise to his secretly funding this and other suits against Gawker as revenge.

It’s in vogue to give vent to emotion, so there’s no shame in letting feelings get in the way of reason. If anything, the rational voice is the outlier, under attack by the angry mob. And Gawker and Denton have done everything possible to generate the angry mob. If it’s right for emotions to prevail, then perhaps Denton earned the mob’s ire. And if not Denton, then certainly former editor A.J. Daulerio, for whom saying outrageously stupid stuff is a way of life. Continue reading →