Has enough time passed since the joy of Obergefell v. Hodges has given way to fighting over who gets custody of the Barbra Streisand albums? Being all in favor of gay marriage under equal protection analysis, there was nothing negative to say about the outcome, and, indeed, the issue of gay marriage had, in my view, long since been decided when 36 states legalized it. It was here, regardless of what the Supremes had to say about it. Done deal. Get over it.

But now that marriage is available regardless of sexual preference, it’s time to consider a nasty little piece of the rationale that is most assuredly going to come back and bite us in the butt.  Dignity.  Justice Kennedy has been trying to stick “dignity” in wherever he can find a spot, and he did so again in Obergefell, to much applause.

But, you ask, isn’t dignity a good thing?  Who doesn’t like dignity?  Jonathan Turley treads gingerly over the problems with a right to dignity.

Dignity is a rather elusive and malleable concept compared with more concrete qualities such as race and sex. Which relationships are sufficiently dignified to warrant protection? What about couples who do not wish to marry but cohabitate? What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, “the highest ideals of love, fidelity, devotion, sacrifice, and family”? The justice does not specify. Continue reading →

Certainly, when former McKinney, Texas Cpl. Eric Casebolt pulled his gun on kids for swimming in strange waters, together with a host of other really bad career choices, it was a subject of serious interest and concern. As it turns out, Nicole Nguyen, an assistant professor of social foundations of education at the University of Illinois-Chicago, thought so too, and wrote about it for Education Week.

Nguyen’s concern began with a bit of a rocky start:

Aghast but unsurprised, I wondered what role universities, and colleges of education more specifically, play in dismantling these state-sanctioned systems of violence that expose non-dominant youths to narrowed life chances, brutality, and premature death.

Non-dominant youths? Narrowed life chances?  Ah, premature death. Got it. Now we’re cooking.  So she’s an assistant prof. They have to gussy up their writing if they’re going to impress the tenure committee. Heh, non-dominant youths. Like lefties? Good one, Nicole. Continue reading →

At Volokh Conspiracy, Orin Kerr takes a shot at answering a question raised by lawprof Michael Dorf.  Ever notice how a Supreme Court justice who takes the bench with an antipathy toward the death penalty never seems to develop a taste for executions over time?  And yet, sometimes justices who start with the view that the death penalty is part of the process end up deciding that they can’t take it any more, that the death penalty is wrong and unconstitutional?  What’s up with that?

Why would so many Justices change their minds, only after serving on the Court for decades, about this one issue?

I have a theory on that.  It’s pure speculation, to be clear. But while we’re speculating, here’s my guess: It’s the cumulative effect of the workload.

In the interest of brevity, this is the crux of Orin’s speculation:

A little too superficial? Fair enough. Here’s the longer version: Continue reading →

Former criminal defense lawyer turned federal judge turned Harvard lawprof Nancy Gertner has been held out as a paragon of rational feminist thought for having the temerity to take a stand against the neo-feminist ideological shift in the definition and adjudication of college sexual assault.  As previously noted, her feminist cred makes her opposition more significant than others who can be dismissed as misogynists or rape apologists. You can’t ignore Nancy Gertner.

But as with others who are held out as the voices of the loyal opposition against a trending evil, “friends” in a cause if you will, Judge Gertner’s opposition comes with compromises.  This is reflected in Conor Friedensdorf’s post about an interview of Judge Gertner by Caitlin Flanagan, which covers many significant issues.  One of them is reflected here:

Caitlin Flanagan: What about the issue of second thoughts, regretted sex? Having gone to college a long time ago, date rape looked very different … I went to college in the South and they were all male deans. If you went to him and said you were raped, you would almost certainly be blamed for it … The idea would be, “You probably wanted to do it and now you’re sorry you did it and so you’re calling it a rape.” So it’s a horrible old stigma around rape victims as old as time. And yet we have to be openly talking about everything. There may be cases where [regret] plays a part. As a feminist, how do you talk about something as loaded as second thoughts? Continue reading →

It seems like everybody’s an author today. Everybody but you. And me. Yet, I keep stumbling across baby lawyers writing books about subject they can barely spell, no less write intelligently about. Often published by no less prestigious an entity than the ABA.

And then there are the more mature lawyers, cranking out books that are adored by all three of their fans. And the guy at the vanity publishers who is more than happy to take their money to print up a few hundred copies of a book destined to sit in the dust bin at Amazon.

Why do this?  To crunch some numbers, consider that a person who puts in serious effort to writing a book will expend 1000 hours writing, thinking, rewriting, thinking some more, to create something that will be illuminating. Well, at least not embarrassing. Continue reading →

The question posed by the title to Leon Neyfakh’s Slate post seems rather outlandish.  Is Bail Unconstitutional?  Of course not. It’s ridiculous, as bail is obviously constitutional.  Except when it isn’t.

Neyfakh’s error is, at worst, a minor one that happens constantly on the internets. Non-lawyers fail to recognize that law and procedure vary greatly from jurisdiction to jurisdiction, and they focus on one and extrapolate it to others. The others may be vastly different, but lacking knowledge of this, they assume that if bad stuff happens in one place, it happens everywhere. It’s a flawed assumption.

But what Neyfakh is talking about is the arbitrary fixing of bail by police in Dothan, Alabama.

Anthony Cooper was going to jail because he couldn’t afford to buy his way out. After being picked up for public intoxication at a bus station in Dothan, Alabama, at about 1 a.m. on June 13, Cooper was told that unless he paid $300 in bail money, he would have to spend six days behind bars while awaiting a court hearing. If Cooper, who is illiterate and suffers from mental illness, had had the money on hand, he could have gone free on the spot. But the 56-year-old’s only source of income comes from his Social Security benefits, and he didn’t have $300. And so Cooper, like many down-on-their-luck Dothan residents before him, was locked up.

Continue reading →

In a new video segment, the New York Times surveys its overly sensitive readers as to why they can’t talk about an issue that could desperately use some discussion.

Do you feel uncomfortable? Apprehensive? “You know, offend anyone.” Well, that’s pretty weird, since these are all people who don’t see themselves as “racist,” and yet can’t bring themselves to discuss an issue of significance because it make them feel awkward.  But then, that’s the point. These nice, sensitive white folks are deeply concerned about their feelings. Continue reading →

The last man running after his escape from Clinton Correctional Institution in beautiful Dannemora, New York, caught two bullets from State Trooper, Sgt. Jay Cook, as he was about to lose him in the forest.  Governor Andy Cuomo hailed him as a hero for his bravery in shooting an unarmed man while doing the job for which he’s paid.

Nobody thought too hard about shooting David Sweat, as he was a convicted cop killer and prison escapee, not the sort of guy you want to arrive unannounced for dinner. These are the sorts of twisted scenarios where minds shut down and nobody thinks too hard about the uninteresting question of whether this was a legally justified shooting.  Except Cristian Farias, who did exactly that.

To the layperson or the evening news watcher, the use of deadly force on a convicted murderer on the lam in rural New York for nearly three weeks may seem entirely reasonable. And judging from the praise Cook received, the act is even commendable. But police officers must be legally justified to effect a “seizure” on a person — and yes, an official shooting is a seizure under the Fourth Amendment. But nowhere in the account of this shooting is there any indication that Sweat, whose identity was then unknown, gave Cook any reason to stop him, let alone shoot him.

There are a few significant issues wrapped up in that quote, some of which were raised, others ignored, in an interesting discussion at Judge Richard Kopf’s blog, Hercules and the Umpire, so let’s pause to note them. Continue reading →

Try as he might, Nevada State Trooper Greg Monroe could not come up with a sufficient reason to search Straughn Gorman’s RV.  It seems almost impossible to believe, but it’s true.  And yet, his tenacity was a thing to marvel, as his own personal lack of imagination manifested in his sloughing the chance to search off on Elko County Sheriff’s Deputy Doug Fisher, who did the dirty and hit the jackpot.

At Techdirt, Tim Cushing explains the decision in United States v. $167,070 in United States Currency:

It begins with the flimsiest of “reasonable suspicion” and heads downhill after that. Straughn Gorman was driving across Nevada in his RV when he was pulled over for a “left-lane violation” — driving too slow in the passing lane. (This itself isn’t actually a moving violation, but the Supreme Court’s Heien decision has ensured that law enforcement needn’t be slowed by actual knowledge of the laws they’re supposed to be enforcing.)

So that it’s clear, RVs are search magnets. They’re often chock full of fun stuff to seize, whether illegal or something shiny for the kids on their birthdays. Either way, it’s always sound practice to stop an RV and see what bounty it holds. Continue reading →

Among the many quick and easy answers people come up with when faced with an information gap is the knee-jerk, FOIL it!  Because there’s a law that says information wants to be free, and if there’s a law, then it must work. Problem solved!

Gawker sought to obtain information after the infamous pool party fiasco in McKinney, Texas about Sgt. Eric Casebolt, and filed a request for information.

Days after McKinney, Texas, police officer Eric Casebolt was filmed pointing his service weapon at a group of unarmed black teenagers at a pool party this month, Gawker submitted a Public Information Act request to the city of McKinney asking to see Casebolt’s records and any emails about his conduct sent or received by McKinney Police Department employees. 

While it is sound journalistic practice to obtain background information on Casebolt in order to ascertain whether he has a history of using excessive force or engaging in racist conduct, this is Gawker we’re talking about. Salacious stuff, sure. Sound journalistic practice, well, that’s not a phrase often used mentioned in the same sentence as Gawker. Continue reading →