A lot of people sent me a link to Judith Shulevitz’s New York Times op-ed, Regulating Sex. As any regular SJ reader knows, there is nothing in there that hasn’t been discussed here, sometimes long ago, at far greater depth. But Shulevitz is against the affirmative consent trend, which she calls a “doctrine,” so it’s all good, right?

What Shulevitz accomplishes is a very well written, easily digestible, version of the problem that serves to alert the general public, those unaware of law, the issues of gender and sexual politics, the litany of excuses that have framed the debate and the seriousness of its implications, to the existence of this deeply problematic trend.  She notes that one of its primary ALI proponents, NYU lawprof Stephen J. Schulhofer, calls the case for affirmative consent “compelling.” She neglects to note this is a meaningless word in the discussion. Still, it’s in there.

The other day, Mark Bennett and I were discussing the problem with the ACLU’s Lee Rowland taking the public lead on the issue of criminalizing revenge porn.  In the beginning, Lee was a good choice of spokesperson, as males were dismissed as misogynists while Lee’s bona fides as a feminist were well established.  When some association or law school decided to throw a debate, the proponents were willing to take the stage with Lee. Not so with someone like Bennett or me, as we were misogynists.  Continue reading →

It’s almost one month since the birth of Fault Lines.  After a few days, then another week, I tried to whet yer appetite by providing links here to the stuff being done there by writers Ken Womble, Tamara Tabo, Greg Prickett and Cristian Farias, plus the guest post by Ron Kuby and Allan Brenner.

So here’s my bleg: What do you think? Have you read FL? If not, why not? If so, what can we do better, what are we doing well and what are we doing poorly?  What do we suck at?  Is Fault Lines doing whatever you want it to do for you, or is it falling short? To make it the best it can be, I need to know what you really think.  Be brutal. Just don’t hurt my feelings. Too much.

According to SEPTA, which runs the Philadelphia subway, children under four ride free with a fare paying adult. But that doesn’t mean there aren’t questions, challenges, heinous criminals trying to sneak in the occasional four year, one month child and rob SEPTA blind.  From Shaun King at the Daily Kos:

Originally posted on Facebook earlier Friday morning by Irize Refined Earth, this video shows a young father, carrying his infant daughter, being arrested by Philadelphia police. Witnesses state that it was all because he didn’t pay a far for his daughter, but policy there states kids under 4 are free.

See how people just can’t see the problem with those munchkins bent on destroying society by feigning four or under status?  You pay for their larcenous ways. Well, maybe not you, but someone does.  And so the brave protectors of subway fares leapt into action.

Continue reading →

On the twitters the other day, a discussion broke out (to the extent discussions break out on the twitters) over whether non-lawyer staff in law firms should be referred to as “non-lawyers” or something else.  Bob Ambrogi valiantly defended the honor and feelings of those diminished by the language, while others, lawyers, kicked sand in his face.

The source of the problem was a post by former Orrick chairman, Ralph Baxter.

It is time to stop using the term “non-lawyer” to refer to everyone who works in legal service who has not passed the bar exam. This may seem like a minor issue to some, but it is not. In fact, it reflects an outlook that impedes the ability of our profession to make the changes we need to make.

Why? Baxter never actually explains, but rather launches into a feelz anecdote, followed by more vague feelz rhetoric. And this is the guy who ran a law firm. Continue reading →

Deangelo Dixon robbed a bank.  No, his name will not loom as large as Jesse James, nor will he be glorified in a romantic crime movie with only modest nudity. If anything, his name will be forever linked with Polish meat, for which he has Judge Frank Easterbrook of the Seventh Circuit to thank. Apparently, Judge Posner passed on the opportunity to do personal, off-record research to write the opinion.  Good all.

In United States v. Dixon, the court considered the distinction between bank robbery by use of a dangerous weapon and bank robbery by intimidation.

A more promising argument is that the conviction should have been under §2113(a) (bank robbery by intimidation) rather than §2113(d) (violation of §2113(a) by using a dangerous weapon or device). In one robbery Dixon waved at tellers a bag containing a stiff object and threatened them, saying “Five seconds or I’m gonna shoot”. In the other Dixon brandished an object with a long barrel and directed a teller to “give him the money or he would shoot” The object in both robberies was not a gun but a butane lighter with a long barrel.

Continue reading →

While King v. Burwell falls outside my wheelhouse (which means whatever I may say about it should be taken with a grain of incredulity), the New York Times editorial on this great victory for the law compels me to write.

Its core claim — that an ambiguous four-word phrase buried deep in the 900-page law eliminates health insurance for millions of lower-income Americans — was preposterous. The entire point of the law, as embodied in the title of its first chapter, is “Quality, affordable health care for all Americans.”

That explains why the USA PATRIOT Act must be good law. After all, look at the name.  The “point of the law” has nothing to do with the substance of the law. Good intentions don’t control; words do. Glorious purpose covers a great many faults, not the least of which is the government’s facility at coming up with grand names and missions followed by crappy, poorly conceived, horribly written laws that wreak havoc. Continue reading →

After the grand jury fiasco orchestrated by Staten Island District Attorney Daniel Donovan that returned “no true bill” for the murder of Eric Garner, there were cries for the return of a special prosecutor to handle cop killings. The rationale was straightforward, that local prosecutors were too close to police, relied upon police, and therefore couldn’t be trusted to prosecute cops.

That explanation makes sense, though it wasn’t necessarily the case. There were, are, prosecutors willing to do their job, even if it meant indicting cops.  But then, others have failed, miserably, deliberately, disgracefully, to put all their empty rhetoric about crime and punishment to the test when it’s one of their beloved police officers on the wrong end of a killing.  And it’s happened too often.

So Governor Andy Cuomo felt the need to do something.  From the AP:

With lawmakers unable to agree on an approach as the legislative session ended, Gov. Andrew Cuomo announced Tuesday he’d use executive power to appoint Attorney General Eric Schneiderman for a year as special prosecutor for police killings.

Continue reading →

Jonathan Banks, having taken the helm when Cato Institute took over the National Police Misconduct Reporting Project from Packratt, was kind enough to capture and storify the twits of Michael A. Wood Jr., a former Baltimore police officer who left the force in 2014.  They are, to say the least, explosive.

Here is what Wood had to say:

So here we go. I’m going to start Tweeting the things I’ve seen & participated in, in policing that is corrupt, intentional or not.

A detective slapping a completely innocent female in the face for bumping into him, coming out of a corner chicken store.

Punting a handcuffed, face down, suspect in the face, after a foot chase. My handcuffs, not my boot or suspect Continue reading →

At Reason,* Elizabeth Nolan Brown tries to out-funny John Oliver, whose tune has changed from ridiculing those who are too fragile to withstand the “hurtful” comments on twitter to championing the end of revenge porn.

Dear Good People of the U.S. who want to stop The Bad Things from Happening: Great! I, too, want to stop The Bad Things from happening. Most people do. But we have got to talk about this impulse to accomplish good things by simply making all the bad things into federal crimes. It’s an easy-to-stumble-upon—aka lazy—solution that ultimately fails us all, even when the actions in question are undoubtedly unsavory.

Brown raises a good point on the issue of overcriminalization, our impulse to use the bludgeon of criminal law to eliminate Bad Things from happening, and she borrows John Oliver’s funny opening line to make her point. Good stuff. But not adequate, and that’s a problem.

One of the issues that lawyers, Mark Bennett in particular, have tried hard to convey is that the constitutional rights involved, the unintended consequences, the chilling effects, go far beyond what can be easily seen on the surface. It can be hard to appreciate problems that aren’t obvious to the shallow observer, but laws aren’t parsed for their obvious purpose, but the unintended harm they will cause down the road. Continue reading →

There are two basic choices if you feel the need to do something when you’re blinded by the headlights of the car coming in the opposite direction.  There’s the Woody Allen/Christopher Walken option, not advisable.  Or you can flash your lights, a long time courtesy to alert the other driver that his high beams may be on.

Deven Guilford picked the second option, which didn’t sit well with the driver of the oncoming car, Eaton County, Michigan Sheriff’s Department Sgt. Jonathan Frost. Via Radley Balko:

Frost has said he was not using his high beams, but was driving a new police car that apparently had unusually bright headlights. He even told Guilford that he had previously pulled over other drivers for flashing their brights at him — all of whom had mistakenly thought he was using his high beams — and let them off with warnings. This would seem to indicate that Frost was driving with headlights that other drivers found distracting and potentially dangerous. Yet instead of looking into the matter, he continued to pull people over, essentially for the crime of being distracted by his lights.

So Sgt. Frost was basically being a douche about driving around with lights that weren’t on high beam, but were sufficiently bright to cause driver after driver to think otherwise. Continue reading →