He begins by assuming the problem, which is always a cool trick when you have no empirical basis of a problem in need of a solution, but have a solution you really, really, feel needs airing. Ross Douhat’s column opens:

IN the debate over sexual violence on college campuses, two things are reasonably clear. First, campus rape is a grave, persistent problem, shadowing rowdy state schools and cozy liberal-arts campuses alike.

Second, nobody — neither anti-rape activists, nor their critics, nor the administrators caught in between — seems to have a clear and compelling idea of what to do about it.

Whether, and how severe, a problem campus rape is remains a question in need of an answer.  Even the White House’s task force report, which similarly announces the problem, simultaneously concedes they don’t actually have evidence of a problem and require study,  Maybe Douhat only skimmed the report. He’s a busy guy, I’m sure. Continue reading →

Members of the Harris County Criminal Lawyers Association is handing out big yellow cards to the people entering courtroom 14.

They read in part “the judge or court staff may try to get you to plead guilty or ‘no contest’ without a lawyer.”

A fascinating concept, particularly given that whole constitutional right to counsel thing.

The Harris County Criminal Lawyers Association (HCCLA) was the group passing them out in the halls. They told Eyewitness News they’ve heard too many complaints against Judge Michael Fields in the past few weeks.

“At this point, we’re concerned. It’s gone on for too long. We feel like it’s appropriate to step in,” said group president Carmen Roe. “They have the right to an attorney. They have the right to remain silent, they have the right to a jury trial. We believe those rights are not being given to these clients.”

The group accused Judge Fields and court staff with pressuring for guilty and no-contest pleas. They argued that strips defendants of their constitutional rights.

Continue reading →

The Riley/Wurie decision represents what I describe as a clean break from search and seizure law as it has grown since Weeks was decided 100 years ago.  At Slate, Judge Richard Posner poo-poos the decision:

The New York Times quotes a law professor as saying that “This is a bold opinion. … It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.” No, the opinion is not bold, it’s not the first computer-search case, we are not in a new digital age, and the court is not applying new rules. There have been a number of similar cases in the lower courts, many anticipating the court’s decision.

Apparently, nobody told Posner he’s not on the Supreme Court, so his opinions may not carry quite the same weight. But that’s not quite the core of his complaint. Rather, it’s the insane state of Fourth Amendment law.

The abiding puzzle of “search and seizure” is the insistence of the courts, including the Supreme Court, that the Constitution requires search warrants in all but emergency circumstances, in order to protect what we now call “privacy.” That is ahistorical. The Fourth Amendment protects people against unreasonable searches and seizures, but it does not require search warrants; on the contrary, it limits them, by requiring that they be based on probable cause, on oath or affirmation by the seeker of the warrant, and on a particularized description of the premises to be searched and the items (usually contraband) to be seized.

Continue reading →

This Slate post by Christin Scarlett Milloy is either the most insanely absurd post ever, or the best troll ever.  You decide.

Further, your affiant sayeth naught.

H/T Michael Weiss

The concept behind the National Labor Relations Board’s protection of concerted activity was premised on the days of sweatshops, robber barons and Pinkertons firing into the crowds of the powerless, downtrodden employees who wanted only the ability to join together so they could amass sufficient clout to negotiate with management.  As a wobbly once asked, is that so terrible?

But then, no one could foresee when Taft met Hartley that our society would mature to the point of a victimocracy, where the law would become the bludgeon of choice for all favored rights and entitlements.  At Overlawyered, Walter Olson points out the clash:

* “During a meeting about commissions, minimum wage, and employee breaks [at a Yuma, Ariz. car dealership], an employee lost his temper, angrily calling his supervisors words such as [obscenities omitted]. He also stood up, shoved his chair aside, and told them they would regret it if they fired him. Unsurprisingly, that tirade resulted in the employee’s termination. Astoundingly, in Plaza Auto Center (5/28/14), the NLRB concluded that the termination was an unlawful violation of the employee’s rights to engage in the protected concerted activity.” [Jon Hyman, Ohio Employer’s Law Blog; Brennan Bolt, Labor Relations Today] Continue reading →

Every once in a while, someone gets what they believe to be a brilliant idea, and by adding two plus two, ends up with 37.  If you squint your eyes, sing “lalala” really loud and argue the point by stringing as many unrelated words together as possible, it begins to make sense.  Except it doesn’t. It’s wrong. Dead wrong.

Via Radley Balko, the Massachusetts ACLU’s effort to get information under the Freedom of Information Act about SWAT teams was rebuffed under a novel, if bizarre, rationale:

As part of the American Civil Liberties Union’s recent report on police militarization, the Massachusetts chapter of the organization sent open records requests to SWAT teams across that state. It received an interesting response.

As it turns out, a number of SWAT teams in the Bay State are operated by what are called law enforcement councils, or LECs. These LECs are funded by several police agencies in a given geographic area and overseen by an executive board, which is usually made up of police chiefs from member police departments. Continue reading →

If you slept through yesterday, then there’s big news. The United States Supreme Court issued its opinion in Riley v. Caifornia and United States v. Wurie.  Within minutes, there was more commentary on the Riley (as it will be called, despite the fact that Wurie would have made the case name far more enjoyable and available for lulz), as Chief Justice John Roberts’ majority opinion, with a concurrence by Sam Alito, is one of those line-by-line stunners.

As descriptions and commentary already abound as to the opinion itself, with Orin Kerr and Josh Blackman doing yeoman’s work, together with about a million others, lawyers, lawprofs, non-lawyers, flounder fishermen, chiming in, there is no point in repeating what others have already said.

But there remains a critical point to be made about the Riley opinion, reflecting the concern raised in anticipation of the Court’s decision.

At the top level, the two sides take categorical approaches to what they ask the Supreme Court to hold.  One might suspect that the Court will split the difference, rejecting the government’s search ‘em all position, but crafting some sort of exception.  There will no doubt be a great deal of discussion about this going forward. Continue reading →

When Oregon District Court Judge Anna Brown held that the right to international flight was a protected liberty interest, it was a pretty big deal.  It dispelled with the best argument the government had for one of its worst-kept secrets, the no-fly list: International flight is a mere convenience.

After all, you could always swim the ocean, or take a slow boat to China. There may be a right to travel, but not on an airplane.  At least not if your name included a Mohammed.  And that might be enough to make the list.  While there were putative criteria requiring reasonable suspicion together with reasonable inferences, there was no one checking to make sure any name placed on the list met that criteria.

Maybe an agent put a name in the computer and hit the wrong button. Maybe the person was Muslim and prayed at a mosque (“associated with known terrorists”) or was a United States Marine (“trained in the use of military-grade weapons”).  Or maybe you pissed off some low-level federal bureaucrat who decided to show you who was boss. Whatever. Since you had no right to fly, placement on the list was no deprivation.

Judge Brown called bullshit. Continue reading →

Summertime, and the blogging is easy. Especially when someone with a point of view like Carolyn Elefant, promoting the interest of new solos, hands over the keys to My Shingle to guest bloggers, whether to put content on the page or give new people the chance to offer new ideas.  But that doesn’t mean that such a well-established soapbox should be used to promote ideas that are just plain bad.

When Carolyn put out the call for guest bloggers, Jackson, Wyoming criminal defense lawyer Alex Freeburg answered with this post:

I am a criminal defense attorney and I don’t charge a trial fee. Most attorneys in my area do. The standard procedure is that the client pays a flat fee, and if the case goes beyond the pretrial conference, then the client pays a second flat fee for the privilege of having their attorney try the case.

Well, yeah.  Most criminal defense lawyers everywhere do this.  But Freeburg’s point is that he doesn’t, and you shouldn’t either. Continue reading →

When the Oscar-nominated film, “Capturing the Friedmans,” was released in 2003, it provided as much hope as a convicted child molester could ask for.  The witch hunt days of the 1980s were past, and perhaps people were ready to recognize that police-manipulated child testimony and a coerced plea at a time of hysteria could put an innocent father and son in prison.

By this time, the son, Jesse, was out  of prison. His father, Arnold, had taken his own life in 1995 while still inside.  Yet, Jesse remained branded as a level 3 sex offender and the Friedman family tainted with horrific crimes.  While the documentary may have raised consciousness as to their potential innocence, vindication had yet to be achieved. A habeas on appeal before the Second Circuit failed to obtain reversal, but it did push the Nassau County prosecutor to review the conviction:

“While the law may require us to deny relief in this case,” the panel of judges wrote, “it does not compel us to do so without voicing some concern regarding the process by which the petitioner’s conviction was obtained.” Continue reading →