Wednesday Writs for May 15

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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102 Responses

  1. Avatar DensityDuck says:

    [L6] People have been wondering about what mandatory ADA compliance for websites means, and it looks like now we’ll have to eat it.Report

  2. Avatar Jaybird says:

    L8: I don’t even know what decrim mushrooms means.

    Legalized pot is turning out to be similar to gay marriage insofar as the worst possible consequences of the policy promised by the opponents have either failed to materialize or were part of the point of the policy in the first place.

    Decrim mushrooms means that the cops don’t care, but there won’t be medical testing of benefits.

    So, effectively, we get recreational (but not medicinal) mushrooms.Report

    • Avatar dragonfrog in reply to Jaybird says:

      Also no testing for contamination, no labelling standards so you know how much psilocybin per gram this particular strain has, and the people growing and selling them are still taking a tremendous risk.Report

    • Avatar PD Shaw in reply to Jaybird says:

      Since the Illinois legislature is trying to pass a marijuana legalization bill this Spring, it seems like every few days there are arguments and reports about the Colorado experience, peppered with occasional fact-checking of statements. It seems like Colorado is a mysterious hookah ring that is revealed only in the eye of the beholder.

      The campaign is promising to fix the pension deficit through pot tourism, so I’ve expected the final bill to establish shops in all of the welcome stations.Report

      • Avatar Jaybird in reply to PD Shaw says:

        Here is the problem that I see happening with Illinois:

        Colorado still has a black market. Colorado, as far as I can tell, is the wild, wild west as far as marijuana legislation is concerned. Like, Massachusetts legalized pot and it took *YEARS* for stores to be ready to meet the legal requirements. According to this , two years after legalizing pot, only 20 (!) stores were open that sold it in Massachusetts.

        I drive past 20 stores on Saturday when I’m out running errands. (Medicinal, but still.)

        If Illinois does what Illinois does, they’ll legalize pot and then, as part of the grand legalization bargain, it’ll be two years later and there will still only be a handful of stores that sell it.

        If you want a fix of that sweet, sweet tourism, you’re going to need to allow your merchants to sell it over the table. I am not confident that Illinois will.

        (Would love to be wrong, etc.)Report

        • Avatar pillsy in reply to Jaybird says:

          We can’t even get our bill passed because of some spat between our governor and the legislature over something that is, as far as I can tell, unrelated.Report

        • Avatar North in reply to Jaybird says:

          We’re one fishing god(ess?)damn republican state senator short of legalizing in Minnesota! So frustrating.Report

        • Avatar PD Shaw in reply to Jaybird says:

          I’ve seen, but not read, stories that state that there is no supply to serve Illinois if it was legalized. The main political issue though is that the state NAACP, predictably, is opposed because disparate impacts of legalization on minorities. All the deals are being discussed behind the scenes, and those that bubble out seem too odd to give much time and attention.Report

      • Avatar DensityDuck in reply to PD Shaw says:

        I think that the issue with legalized narcotics is not so much the users as it is the producers. There’s only one legal narcotic crop grown in the USA, tobacco, and RJ Reynolds isn’t going to get into something that’s still illegal at the Federal level, which means that there’s not a lot of experience operating legally on the production side.

        I mean, states could look to Kentucky for regulatory models, but the problem there is that they’re used to dealing with ConHugeCo who can spend the money to meet compliance and record-keeping regulations, and you can mandate that if you want but it’s going to shut down all the small growers working out of their basements, and the kind of capital needed to stand up a large-scale agricultural operation is going to need a bank behind it, and see above regarding Federal law.Report

  3. Avatar Road Scholar says:

    L3: Interesting case and we can debate the merits of the IP/Copyright issues, but… Terrorism?? How the hell does the state construe a copyright dispute to be an act of friggin’ terrorism??Report

    • Avatar Oscar Gordon in reply to Road Scholar says:

      Probably because they believe if they can sustain the terrorism claim, they can enjoy special rights or privileges.Report

    • At one point, the State of Georgia defined terrorism to include any felony action intended to coerce the policies of the state government, or of any of its political subdivisions. Felony copyright infringement intended to make the state relax its hold on publishing the statutes probably satisfies that condition. Online copies of that version of the statute are still available at well-known sites, with an annotation at the bottom of the page that “revisions may have occurred.”

      The definition has been narrowed and my non-lawyer reading is that copyright infringement no longer counts as terrorism. Still, throw all the shit you can at the wall and see what sticks is a long-standing legal practice.

      The first version I found in my own online search was the 2010 statutes, and included a variety of definitions and penalties regarding terrorism that have since been removed and replaced by an entirely new section. LexisNexis has the 2018 statutes, and their deal with the State of Georgia no doubt includes a schedule for getting the latest revisions up each year, and wiping out the old version.

      It’s at least arguable that the state has an interest in keeping a bunch of old out-dated copies of their statutes off the web.Report

      • Avatar Philip H in reply to Michael Cain says:

        It’s at least arguable that the state has an interest in keeping a bunch of old out-dated copies of their statutes off the web.

        Sure it is, and in an ideal world we’d all benefit from easily searchable on line versions of all this. That sort of stuff used to be what state librarians and archivists did, but hey, lets make sure someone makes money off the transaction now.

        At one point, the State of Georgia defined terrorism to include any felony action intended to coerce the policies of the state government, or of any of its political subdivisions. Felony copyright infringement intended to make the state relax its hold on publishing the statutes probably satisfies that condition.

        That we even have felony copyright infringement in play is a sad state of affairs, and doubly so that a felony meant to influence government action can thus be applied to what amounts to an open records dispute. frankly if thats the way they want to play it they should be prosecuting tax dodges as terrorism, since using felonious means to not pay taxes is coercive to government in as much as it denied the state lawfully collected revenue to provide services to citizens.Report

      • Avatar PD Shaw in reply to Michael Cain says:

        I’m not sure that’s what’s going on here. From the complaint in the link, it appears that the defendant described its own activities as a form of “terrorism,”(*) so the plaintiff’s lawyers are simply quoting the defendant’s own words as a means of discrediting it as an extreme, weird activist organization.

        (*) “Defendant’s founder and president, Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms. See Exhibit 2.”Report

    • Avatar PD Shaw in reply to Road Scholar says:

      I think we’ve debated the merits before. I’ll just point out that the copyright being protected is the annotations to the statutes, not the statutes themselves. And if the annotations don’t need to be paid for, there will be no annotations.Report

      • Avatar Michael Cain in reply to PD Shaw says:

        Colorado is apparently peculiar. Here, the annotations are prepared by the legislature’s legal staff and are part of the official publication of the statutes. The state used to copyright the annotations, but gave that up some years back as too much of a hassle. Our deal with LexisNexis requires them to use our annotations and not add anything.Report

        • Avatar PD Shaw in reply to Michael Cain says:

          Yeah, as I recall the states do this differently. I believe Illinois it is entirely private, with different versions published by LexisNexis and West. Georgia sounds like it might be in the middle, licensing the right to publish annotations to LexisNexis in exchange for a fee. If Georgia can’t do that, it might be forced to either Colorado or Illinois models.Report

  4. Avatar Aaron David says:

    L5 – Ninjas may rejoice, but Urologists have a sad.Report

  5. Avatar Saul Degraw says:

    L2: This is an exaggeration from what I’ve heard. Harvard being Harvard and fancy has “houses” for most sophomores, juniors, and seniors. These houses are glorified dorms. Each house as a faculty dean that lives there and is supposed to interact with students and their concerns. This includes all Title IX reporting. From what I’ve read, there was a long history of issues between the students and Sullivan at his house.

    If he was forced to resign from his professorship, that would be one thing. Losing the faculty dean of a glorified dorm is not a grave assault on civil liberties and the rights of criminal defendants. This is largely (but not completely with Lara Bazelon on Sullivan’s side) right-wing internet tough guys engaging in shit their pants and bad faith actions against kids these days.

    There was a good twitter thread I saw on this yesterday from a current Harvard student but it is now on protected status. Paul Campos at LGM defends the Harvard decision.

    https://www.lawyersgunsmoneyblog.com/2019/05/first-and-sixth-amendment-fetishismReport

    • Avatar Em Carpenter in reply to Saul Degraw says:

      Oh yeah, I am aware of the type of “deanship” he held. I wrote about the story in more detail a few months ago:

      https://ordinary-times.com/2019/03/21/let-not-the-sins-of-the-client-be-cast-upon-the-lawyer/Report

      • Avatar Saul Degraw in reply to Em Carpenter says:

        The nature of the deanship makes it hard for me to get really worked up. If they were demanding he be fired from his professorship, I would be on Sullivan’s side.

        Lawyers have the right to accept or turn down cases. There is something valuable about defending unpopular defendants but this is not a poor schmoe without any cash. Weinstein was a very powerful man with a lot of money who almost certainly used his power and money to rape a lot of women and then cover it up for decades. He deserves a defense.

        I am a strong First and Sixth Amendment proponent but there is a difference between freedom from official government punishment and freedom from consequences. A lot of people seem to not understand this despite being very smart. Or they get paid way too much money to be very dumb about it in the press.

        I’ve turned down clients. I turned them down because I don’t think they had a case or the value of the case did not match with the effort (and cash) needed to put into a case. We discussed Google idiot James Damore before. Would you take his wrongful termination charge? I would not even if I felt he had a leg to stand on (I don’t think he does). That is not the kind of stunt I would want my law license associated with.Report

        • Avatar Em Carpenter in reply to Saul Degraw says:

          In civil practice turning down clients because they have a bad or no chance at prevailing is prudent. In criminal law, well, that’s the vast majority of your clients.

          I’m not making a first amendment argument here. I in general think it is a dangerous precedent for our system when people impugn the integrity of criminal defense attorneys based on their choice of client. The amount of money the defendant has does not play into my opinion. Him being a rich scum bag doesn’t make representing him any worse than when I represented poor scum bags.

          It’s not that I feel bad for Sullivan or that I am worried about his livelihood. I just bristle mightily at criminal defense lawyers enduring consequences, social or otherwise, for doing their jobs, especially one as important as criminal defense.Report

          • Avatar Jaybird in reply to Em Carpenter says:

            Out of curiosity, are there any other lawyers defending HW?

            Have we heard of any consequences being thrown the way of those lawyers?Report

            • Avatar Saul Degraw in reply to Jaybird says:

              He has a plethora of lawyers on his team. None of them were also associated with Harvard as faculty/admin. The Atlantic

              https://www.theatlantic.com/ideas/archive/2019/05/ronald-sullivan-was-fired-harvard-does-it-matter/589471/

              “Even if you grant, as I do, that anyone accused of a crime is entitled to competent defense, there is ample reason to wonder whether Sullivan’s deanship fit easily with his defense of Weinstein in particular. Lawyers exempt themselves for conflicts much less than this one. Sullivan, as an officer of Harvard, would presumably have had to represent, defend, and execute the policies of a modern university—including policies that are inconsistent with due process for accused sex criminals. (Whether these policies are wise is another matter; until he recused himself, Sullivan had to follow them, and as a residential supervisor, was likely to be involved in their implementation.) Imagine if he were arguing a major case about land use, on the side of the city of Cambridge. Would he have to resign from the chairmanship of his homeowner’s association? Probably.”Report

              • Avatar Jaybird in reply to Saul Degraw says:

                So we’re in a place where the only one to receive a sanction for being a lawyer for Harvey Weinstein is the black guy?

                Am I getting that right? None of the other lawyers did?Report

              • Avatar greginak in reply to Jaybird says:

                Was Harvard supposed to fire lawyers that didn’t work for them????l How would that work?Report

              • Avatar Jaybird in reply to greginak says:

                I didn’t say “get fired by Harvard”.

                I asked if the only one who got a social backlash to defending Harvey Weinstein was the black guy.Report

              • Avatar greginak in reply to Jaybird says:

                The entire social backlash was driven by the students at Harvard. Nobody knows who the rest of his lawyers are like in just about every other high profile case. So excluding 100% of the reason the issue has come up, you gotta a real zinger of a point.

                FWIW the students are wrong and Harvard was wrong for firing the Dean from his Deanship.Report

              • Avatar CJColucci in reply to Jaybird says:

                Who would sanction the other lawyers, and for what? They are all private legal practitioners. None of them has any other institutional affiliation that might, even arguably, be compromised by their representing Weinstein. (I knew him in college, and none of what he has been accused of surprises me.) As private practitioners, they are subject to the sanction of private market forces, but criminal defense lawyers rarely suffer in the market for criminal defense services from vigorously defending exactly the sort of folks who would normally seek their services. They probably do suffer some sanction in the court of public opinion. When was the last time a prominent criminal defense lawyer, who represented really bad people and sometimes got them off, got elected to public office? To suggest that race played a part in this is just trolling.
                As far as the underlying controversy is concerned, I know no more about it than anyone else, but I suspect that two things are simultaneously true: (1) the Sullivans weren’t doing a good job; and (2) this might not have come to light without the Weinstein controversy. Ward Churchill is on line 2.Report

              • Avatar Jaybird in reply to CJColucci says:

                They probably do suffer some sanction in the court of public opinion.

                Can you name a single one without looking it up first?

                Have you read a single story of a single one of them getting so much as told off?

                As for whether he was a good dean, I have no idea. My assumption, up to this point, was that he was the first African-American faculty dean at Harvard and probably busted his ass to get to that position and was likely twice as good as the guy who was there before him.Report

              • Avatar CJColucci in reply to Jaybird says:

                “a single one” of what, or whom? How do I “look up” any or all of the criminal defense lawyers who get criticized for defending criminals, and why would anyone do that? (I know of a few from personal experience, but then so does everyone else.) How would one look up prominent criminal defense lawyers who never even dared to run for public office precisely because they were prominent criminal defense lawyers and, therefore, probably unelectable?
                If your question is what have the other Weinstein lawyers, specifically, suffered, well, they can’t get fired from jobs they don’t have. I doubt that they have suffered anything more than the generic unpleasantness prominent criminal defense lawyers generally face when they represent some high-profile bad guy, like F. Lee Bailey, or Alan Dershowitz, or Roy Black, or Ben Brafman. They aren’t complaining, so no reason to research which asshole at what cocktail party told them yet again what they have heard so many times before.Report

              • Avatar Jaybird in reply to CJColucci says:

                “a single one” of what, or whom?

                Harvey has more than one lawyer.

                Can you name any of the other lawyers? Have you heard any stories of them receiving any sanctions?

                If your question is what have the other Weinstein lawyers, specifically, suffered, well, they can’t get fired from jobs they don’t have.

                I wasn’t asking if they got fired.

                If they’ve not received a single whit of sanction (that they weren’t receiving a day before they took the job)…

                Are we allowed to notice that the black guy is the only one who received a whit of sanction yet?

                (And while I’m more than happy enough to entertain the argument that he was a crappy dean, how prominent did Harvey Weinstein show up in the complaint from the students? Should I bother googling it?)Report

              • Avatar CJColucci in reply to Jaybird says:

                The other Weinstein lawyers: Jose Baez — note that he’s Hispanic — and Pamela Mackey — note that she’s a woman.

                My original point, which you keep ducking, is that there isn’t any “sanction” available to hit them with. That’s the relevant difference between them and Sullivan. Sullivan had a side job from which he could be fired. Baez and Mackey, and Sullivan as well, almost certainly took the usual s**t from people who don’t like lawyers defending slimy clients, but only Sullivan had something else on the table. What else could anyone do to Baez and Mackey?

                Of course you’re allowed to “notice” anything that, for whatever reason, strikes you as worth noticing. And, for whatever reason, you “notice” that he’s black. But if you put it out there as some sort of insight, you ought to have some basis — other than the desire to troll — for thinking it mattered.Report

              • Avatar Jaybird in reply to CJColucci says:

                My original point, which you keep ducking, is that there isn’t any “sanction” available to hit them with.

                Of *COURSE* there is!

                It doesn’t have to come from the government or a corporation. The left used to know this.

                But if you put it out there as some sort of insight, you ought to have some basis — other than the desire to troll — for thinking it mattered.

                It has to do with whether people are yelling at the other two lawyers. It has to do with whether they’re feeling any kind of heat (any kind of heat at all) for doing what Sullivan lost a job for doing.

                Or if they merely get sneered at at the high class cocktail parties that they still get invited to in the first place.Report

              • Avatar CJColucci in reply to Jaybird says:

                Of *COURSE* there is!

                Well, there’s an argument for you. Maybe you’ll tell us what the sanction is. Criminal defense lawyers constantly face criticism for representing sleazebags, whether they are white, black, Hispanic, or — especially interesting in this case — female. No reason to think it isn’t happening here. They don’t face “market” sanctions for zealously representing sleazebags because their customer base is sleazebags. They don’t have to worry about bar association sanctions; quite the opposite, bar associations will defend them for doing their jobs. Their firms won’t lose enough talented young lawyers to matter. And they don’t, unlike Sullivan, have side-gigs where they have to answer to a constituency that might object to their representing sleazebags.
                So basically, nobody is in a position to do anything to Baez and Mackey beyond what countless noisy folk do every day to criminal defense lawyers for defending criminals. Do you think the usual isn’t happening to Baez and Mackey? Or that it would be newsworthy if it were? Do you think somebody with some ability to do more than the usual is holding back because they are Hispanic or female rather than black? Do you really think — and do you have some basis for thinking — that Sullivan would have skated if he had been white?Report

              • Avatar Jaybird in reply to CJColucci says:

                Do you think the usual isn’t happening to Baez and Mackey?

                I imagine that their lives today are pretty similar to before they took the Weinstein job. Unlike Sullivan.
                Or that it would be newsworthy if it were?

                “Lawyer representing Weinstein kicked out of restaurant by owner whose (relative) was (assaulted in similar fashion)”? Hell, yeah, that’d be newsworthy!

                Are you saying you wouldn’t click on that?

                Do you think somebody with some ability to do more than the usual is holding back because they are Hispanic or female rather than black?

                Dunno. But if a couple of white-presenting people don’t get harassed and a black guy (and his black wife) get harassed for something that these white-presenting people are also doing…

                Are you saying that that’s something that can be just waved away?

                Hey, just say that he was an Affirmative Action hire for Dean and see how many Republicans you can get on board.

                Do you really think — and do you have some basis for thinking — that Sullivan would have skated if he had been white?

                Skated? Dunno. Successfully deflected? Um… probably? Given all of United States history?Report

              • Avatar CJColucci in reply to Jaybird says:

                There’s only so much anyone can do with “dunno,” other than suggest that if you really “dunno” there isn’t much to say, or much reason to say it.Report

              • Avatar Jaybird in reply to CJColucci says:

                Oooh, nice gambit.

                “Is this thing that you have no way of knowing whether it’s happening happening?”

                “I don’t know.”

                “Ha! Gotcha!”

                In any case, we’re discussing racism and what is in the secret hearts of men.

                I had words after my answer of “dunno”. I’d like to think that those other words were meaty enough to provide stuff to work with.Report

              • Avatar CJColucci in reply to Jaybird says:

                I had words after my answer of “dunno”. I’d like to think that those other words were meaty enough to provide stuff to work with.

                You might like to think so. I think I’ll leave the matter to the readers.Report

              • Avatar Jaybird in reply to CJColucci says:

                How did you phrase your question again?

                “Do you think somebody with some ability to do more than the usual is holding back because they are (not X) rather than (X)?”

                Because I imagine that if the discussion of racism (and all of the other -isms) has just been settled, this is the question that will finally put it away for good.Report

              • Avatar DensityDuck in reply to CJColucci says:

                “Maybe you’ll tell us what the sanction is.”

                Jaybird isn’t asking how they should be punished.

                He’s asking you whether you think it’s weird that they aren’t being punished.

                Apparently, you don’t.Report

              • Avatar CJColucci in reply to DensityDuck says:

                No. My point is that Sullivan was vulnerable in ways the others aren’t. There isn’t anything meaningful — outside the usual guff criminal lawyers face — that anyone inclined to punish the others could do. (The scenario that some random restaurant owner might recognize Baez or Mackey, or Sullivan for that matter, and refuse to serve them is too fanciful to consider and, most importantly, there is no reason to think that Baez or Mackey would face such treatment and Sullivan wouldn’t.)
                What’s “weird” is asserting, on the basis of exactly nothing, that Baez and Mackey are getting away with something that Sullivan isn’t because they are not black, rather than that Sullivan is vulnerable in a way the others aren’t.
                I haven’t expressed an opinion about whether any of them ought to be punished, beyond enduring what all criminal defense lawyers endure all the time, and I don’t plan to.Report

              • Avatar DensityDuck in reply to CJColucci says:

                “My point is that Sullivan was vulnerable in ways the others aren’t.”

                Okay, good, so we’ve established that when the black guy in a group of people is the only one sanctioned for the group’s questionable behavior, “it’s not because he’s black” is a reasonable response?Report

              • Avatar CJColucci in reply to DensityDuck says:

                No, we haven’t “established” it, we have simply put the question and called for actual argument and evidence for why one view is more likely correct than the other. I think that process has been run into the ground on this particular thread, and readers can judge for themselves what the evidence is and how the arguments hang together.
                Nothing strange about that. As a lawyer who handles discrimination cases, this is how I spend most of my working days, figuring out whether “it’s not because he’s black” is a reasonable response. That takes actual thought and work, gathering and sifting of evidence, and assessing it in the light of what we know about human nature. You can’t just make s**t up.Report

              • Avatar George Turner in reply to Jaybird says:

                The other two members of Weinstein’s legal team previously defended Rose McGowan on her drug charges. She figured they’d get bought off by Weinstein, and had a few words to say when she found out that her own lawyers were going to represent him. The lawyers say there wasn’t any conflict of interest.

                Vanity Fair storyReport

          • Avatar George Turner in reply to Em Carpenter says:

            “Oh come on! Everbody knows that them there defense lawyers are in bed with the bad guys, and Harvard proved it, otherwise they wouldn’t have shut down this guy and his lawyer wife, who is probably in on it too.

            Just watch any police show and you’ll see. The cops arrest the bad guy and then the scumbag’s slick talking lawyer busts him out on some technicality like “My client couldn’t have beat that girl to death cause he aint’ got no arms and legs,” when right before the commercial break we all seen him run her over with his scooter in the produce aisle.

            If we’re gonna stop young girls from gettin’ raped in every other episode, we gotta start lockin’ up them defense lawyers that keep getting ’em off. That’s where the problem is.

            I may have gone to the Clear Creek Baptist Bible College, but them Harvard kids can see it just as much as I can.”

            ****

            There’s an Atlantic article on Harvard’s decision

            Defense attorneys are less than pleased that Harvard has apparently fed the beast of primitive suspicions and legal ignorance.Report

      • Avatar bookdragon in reply to Em Carpenter says:

        It seems like the students and tutors at the house he’s leaving (not getting fired from; just not getting reappointed when his term ends in June) have a different take:

        https://www.thecrimson.com/article/2019/5/10/winthrop-climate/

        “Shortly after Sullivan announced his decision to represent Weinstein, he and his wife and co-faculty dean Stephanie R. Robinson assembled House staff for the Jan. 27 meeting. During the meeting, he openly berated then-Winthrop tutor Katie B. Kohn, accusing her of organizing students against him and Robinson, and read from a prepared statement defending his representation of Weinstein, according to Kohn and Winthrop tutor Priya Shanmugam, who both attended the meeting.

        Kohn wrote in an emailed statement that some tutors took Proctor’s reference to issues from three years prior to be a “clear threat.”

        She said she understood Proctor to be referring to Winthrop’s history of management problems and alleged retaliation against tutors that Sullivan and Robinson deemed insufficiently supportive of them.

        The problems included a revolving door of House Administrators, threats to push out resident tutors Sullivan and Robinson perceived as disloyal, and repeated meetings with College administrators about concerns with the faculty deans’ leadership. At one point in 2016, more than half of the Winthrop resident tutor staff made a pact to leave the House in protest, though they ultimately stayed….”

        I almost have to wonder if news/opinion pieces making this about HW might be Sulliven’s attempt to make it about something other than student complaints about his own other failings.Report

        • Avatar George Turner in reply to bookdragon says:

          The wouldn’t need “resident tutors” if the students hadn’t cheated their way in with fake SAT scores.

          Just sayin’.Report

        • Avatar Jaybird in reply to bookdragon says:

          If this is true, and it could well be, there is no shortage of people who, for whatever reason, are running with the “well, him taking on the wrong client is, in itself, sufficient reason for students to be placed in that position over them” argument.

          I’m sure we’ll get into this in Pillsy’s essay but I can easily understand why students, especially female students, would say “you know what? I don’t want the guy who makes these arguments professionally being the guy who is in charge of mediating between two parties where one sexually harassed/assaulted the other”.

          Hey, much like in Vonnegut’s Mother Night, you don’t want the guy who pretends to be that to be in that particular position of trust.

          This isn’t saying that he shouldn’t be teaching defense law and defense theory! Of course he should. Hell, the fact that he’s willing to take Harvey Freaking Weinstein on as a client is downright *INSPIRATIONAL*.

          But sanctioning someone for doing that is bad even if it makes perfect sense and you wouldn’t want that either (*I* wouldn’t want that either). They should have run full speed ahead with “this has nothing to do with Weinstein, it would have happened without Weinstein” rather than pointing out “well, it *IS* a position of trust…”

          Because, hey, there might be someone who was a public defender there someday. Will those arguments have any less merit if it was a meth dealer who did what Weinstein did that they defended? Would the argument used to get rid of Sullivan have any less merit when used against someone who defended (insert horrible criminal type here)?

          “Hey, I was a public defender” was an amazing argument before this Sullivan incident.

          Now? Hey, the Nazis were just following orders too. We’re not saying you shouldn’t *TEACH*… we’re just saying you shouldn’t be a faculty dean.Report

          • Avatar bookdragon in reply to Jaybird says:

            Well, for one, I’d distinguish between a lawyer who is actually a defense attorney vs a lawyer whose primary job is a faculty position but who decided to represent a super rich skeezoid.

            One of them is doing their job, which is a necessary part of our justice system. The other stepping up to defend the guy because… $$$? limelight/self-promotion? You hope it’s one of those, b/c if it’s sympathy with HW, well, then the students aren’t just privileged brats protesting over nothing, are they?

            I do understand the arguments on both sides. A lawyer shouldn’t be tarred just because of their client they represent. One of my personal heroes is still the Jewish ACLU lawyer who decided that defending the 1st Amendment was important even if the clients were Nazis. Otoh, if a guy is applying for a position where you’re going to be in charge of a bunch of college students and he’s made high profile ‘b-tches be lying’ defenses, I can understand why he might not be considered a good fit for the job. 😉

            (If he’s also given people in the house he mentors the impression that he’s a controlling asshat, I think the case to not renew his term there is pretty strong. But it may be that there’s something about Harvard culture that made the students think that protesting his involvement with HW was more likely to get action than protesting the way he treated them).Report

            • Avatar Jaybird in reply to bookdragon says:

              Well, for one, I’d distinguish between a lawyer who is actually a defense attorney vs a lawyer whose primary job is a faculty position but who decided to represent a super rich skeezoid.

              You might.

              Do you see how a student who had something awful happen to her at a party might see someone who was a public defender who successfully got someone awful to a “not guilty” verdict (or pled down to something not awful) would feel differently?Report

              • Avatar bookdragon in reply to Jaybird says:

                Yes. Absolutely.

                But one of the reasons I wouldn’t even consider going into law is that I am nowhere close enough to Lawful Good to defend someone like that if I thought he was guilty. Not because I’d righteously refuse, but because I’d be too tempted to take the case just so that I could defend him *only well enough* to prevent an appeal when he was found guilty.

                When I was in jr high one of my best friends was drugged and gang raped at party for a swim team she was on. I am not at all a nice person when it comes to the sort of people who’d do that. The only virtue I can claim is that I’m aware of how biased and vindictive I can be there.Report

              • Avatar Jaybird in reply to bookdragon says:

                That sucks that that happened.

                And, yes, I feel the same way. We’d probably get into “Is The Punisher Chaotic Good or Lawful Evil” territory after that point.

                But then we’re in “imagine what good could be done if we abandoned The Process” territory.

                Harvard abandoning the process will set one heck of a precedent.

                I suppose it wouldn’t take *THAT* much for me to wander back to #BTFSTTG territory…Report

              • Avatar bookdragon in reply to Jaybird says:

                Thanks. Right now with Alabama, Georgia, Missouri and Ohio all competing to see who can change the state name to Gilead fastest, I’m certainly starting to wander in the direction of #BTFSTTG territory.

                I’m not sure Harvard is abandoning the process though. For one thing, Harvard has their own way of doing things that has a very in-crowd clubhouse sort of vibe. I suspect that whatever internal dynamics are in play, they don’t have a lot to do with what the various op eds are going on about.Report

    • Avatar Jaybird in reply to Saul Degraw says:

      From what I’ve read, there was a long history of issues between the students and Sullivan at his house.

      “THERE’S A BLACK GUY HERE! Oh, wait. It’s the dean.”Report

    • Avatar pillsy in reply to Saul Degraw says:

      I had a long comment on L2 that has metastasized into a draft article.

      It blew up like that because this is one of the rare instances of a campus kerfuffle that seems to involve something even kind of important, and also because it’s an even rarer case where I think both sides of the kerfuffle have a very strong case.Report

      • Avatar Jaybird in reply to pillsy says:

        I can’t wait to read it.Report

        • Avatar pillsy in reply to Jaybird says:

          In the meantime, if you haven’t read Sullivan’s interview with Isaac Chotiner, it’s probably the most worthwhile thing that’s come out of this mess.

          Perhaps unsurprisingly given his reputation, his defense of himself is probably the best defense I’ve seen him offer.Report

          • Avatar pillsy in reply to pillsy says:

            My article is 2000 words long and now I have no idea what to do with it. At this point the stuff I was trying to focus on (the reasonably important question you and @CJCollucci were arguing about) keeps getting pushed to the side by my belief that this is really more a story of an existing mess and university administrators being unable to address any problem except by making it worse.Report

            • Avatar pillsy in reply to pillsy says:

              This thread, from a Harvard student who opposes Sullivan, puts it in a very different context, at least by my lights.

              https://twitter.com/verysmallriver/status/1127374371386003456Report

              • Avatar Jaybird in reply to pillsy says:

                That makes a lot of sense. Hey, if she’s in the ballpark of accurate, I can totally understand why students would want to get rid of him.

                They shouldn’t even *ACKNOWLEDGE* Weinstein, though. Maybe even to the point where saying “this has nothing to do with Weinstein” is paying too much attention to him.

                I tried several times and couldn’t come up with a better point than this one (made by you): “university administrators being unable to address any problem except by making it worse.”Report

              • Avatar DensityDuck in reply to Jaybird says:

                I mean, it seems like the kind of situation where the administrators have a quiet word with Sullivan in a closed-door meeting, and a week or so later he spontaneously decides to step down from his position as dean to explore opportunities elsewhere.Report

  6. Avatar Saul Degraw says:

    Alabama just passed a near total abortion ban and there is a good chance that Roe is going to be overturned. Breyer implied as much in his dissent in a recent Sovreign immunity case:

    https://slate.com/news-and-politics/2019/05/stephen-breyer-hyatt-dissent-roe-v-wade-kavanaugh-supreme-court.htmlReport

    • Avatar Philip H in reply to Saul Degraw says:

      I don’t know that I’d give it a good chance. That law is well behind others in the case pipeline, and its likely to get staid by federal district court awaiting SCOTUS action.

      And lets remember that even if it gets bundled with the others, it still has to make Cert. Given Chief Justice Roberts polite admonishments recently about people trying to force SCOTUS to be more political then it already is, I am not sold that this case or any other will maker Cert. Roberts wants to protect the veneer of an impartial legacy for the court, and so he’s going to loathe to reopen Roe V. Wade.Report

      • Avatar Saul Degraw in reply to Philip H says:

        I find this really naive to be honest. Same with the too clever by half idea that the Republicans want to keep Roe around to give Evangelicals a reason to vote for them forever. Roberts has made anti-abortion decisions before. The thing that was saving Roe until now was:

        1. The Kennedy-Souter-O’Connor trifecta. If Reagan managed to appoint Bork, Roe would be overturned by now; and

        2. A lot luck.

        That is hit. The Supreme Court of 2019 is much further to the right than the Supreme Court of Casey because of McConnel’s backstab against Merrick Garland. One of Trump’s great successes (and McConnel’s) is the machine-gun speed at which they have been filling judicial vacancies with young and very hard right judicial nominees. These are often people under-45. They will be on the bench for decades to comes and can stymie progressive legislation for decades to come.

        Why are so many people on the Democratic side in denial about this? It shouldn’t take a reversal of Roe to wake people up.Report

        • Avatar Aaron David in reply to Saul Degraw says:

          Could it be that it is a law that is based on rather flimsy support to start with, and it never gained the following that was needed to truly become settled? Abortion was never debated in any way through the normal channels (legislature) to create law, and thus has a lot of detractors. If it takes liberal justices to keep it afloat then maybe it needs a much more solid grounding.

          I am a firm believer in abortion rights, but I do think Roe was the poison pill of US politics.Report

          • Abortion was never debated in any way through the normal channels (legislature) to create law…

            Maybe not at the federal level. When Roe was decided, though, there were many states with laws limiting abortion, and in some places criminalizing it. I haven’t done the research, but suspect that it had been debated in every one of the state legislatures.Report

            • Avatar Aaron David in reply to Michael Cain says:

              Mmm…never on a national level, for a national law.

              Hence, SCOTUS.Report

              • Avatar Philip H in reply to Aaron David says:

                Well that’s because if there were a national law passed it would likely be struck down as an over reach outside the bounds of Congresses enumerated powers. you know, federalism and all.Report

              • Avatar Michael Cain in reply to Philip H says:

                Roe was decided at the end of a stretch where Congress had greatly expanded the federal government’s reach: Medicare, Medicaid, the Voting Rights Act, Clean Air and Water Acts, Endangered Species Act, etc. It wouldn’t have been out of line.

                OTOH, based on the first map in this article, it’s likely that the farthest a national law enabling abortion would have gone is “in the case of rape, incest, or if the mother is in danger.” SCOTUS might have been more reluctant to find a restrictive federal law unconstitutional than a state’s total ban law.Report

              • Avatar Aaron David in reply to Philip H says:

                Exactly.Report

        • Avatar Stillwater in reply to Saul Degraw says:

          Why are so many people on the Democratic side in denial about this? It shouldn’t take a reversal of Roe to wake people up.

          Dems aren’t in denial, they’re just not up to the challenge presented by the GOP. IOW, they’re getting their ass handed to them.Report

          • Avatar greginak in reply to Stillwater says:

            There’s not much they can do at this moment. We’ll see what the various Prez candidates do. I’m hoping they will make this a big issue throughout the election.Report

          • Avatar LeeEsq in reply to Stillwater says:

            I think its a combination of what you are saying and what Saul is saying。Older Democrats seem to want to treat Trump as a temporary aberration rather than the culmination that started with Goldwater. Nearly every Democratic politician also seems reluctant to really go against Republicans in the same way they go against the Democratic Party. This means that even if Democrats recognize the threat we are fighting with two hands tied behind our backReport

            • Avatar Philip H in reply to LeeEsq says:

              At 48 I don’t consider myself a young democrat anymore, and I see this as the culmination of the Southern Strategy and other GOP antics over 60 ish years.

              The reluctance to fight however, is rooted in campaign finance, and the democrats having followed the money into the wilderness. Its why I keep hammering over and over that the Democratic Party is not a liberal or socialist or lefty political party – on a good day its centerist when Americans don’t want to choose at the center. But more to my point Democrats aren’t even trying to muck things up the way Republicans have (even when in the minority) because they will more easily loose their campaign donations, though if the tariffs don’t come off soon some of that business support for the President may wither as well.Report

            • Avatar pillsy in reply to LeeEsq says:

              The structure of the Democratic coalition makes it harder to do this, as over half the party is self-described moderates or even conservatives. While the center of gravity in the Democratic Party has tilted to the Left on quite a few issues for a variety of reasons, there’s still a bunch of people in the Party who don’t want to fight and believe in consensus and bipartisanship.

              Do I think this is annoying? Yes.

              Is it any less true? No.

              People complain, with no small justification, that if Joe Biden really believes that Trump is that sort of aberration, he’s deluded, but he’s leading the polls by a wide margin, and this conciliatory rhetoric is hardly a surprise from him.Report

              • Avatar Philip H in reply to pillsy says:

                Its hardly a surprise, but it won’t win the election. Americans are in real economic, social, and in a few cases existential pain. Hillary Clinton had a muddled message on that at best, because a lot of that pain emanated from neoliberal economic policies she embraces. Ditto Biden. Add in a healthy dose of not helping people adjust to the rapid pace of modern change (Star Trek communicators went from science fiction to science fact in my life time), and the Democrats need to do a much better job of carving off issues and identities that aren’t Republican lite.Report

        • Avatar Philip H in reply to Saul Degraw says:

          Why are so many people on the Democratic side in denial about this? It shouldn’t take a reversal of Roe to wake people up.

          I’ll agree that Dems are in denial about a lot of things – its how we got our first Black president but lost the House, Senate and many governorships, and then lost the WH.

          The Supreme Court of 2019 is much further to the right than the Supreme Court of Casey because of McConnel’s backstab against Merrick Garland. One of Trump’s great successes (and McConnel’s) is the machine-gun speed at which they have been filling judicial vacancies with young and very hard right judicial nominees. These are often people under-45. They will be on the bench for decades to comes and can stymie progressive legislation for decades to come.

          this is also true on the initial merits, but a lot of those district judges will never advance past where they are, and will ultimately be stymied by Congress regardless of who sits in the majority. It will be a great upheaval to get through but I am not sold that the GOP’s rush to fill judgeships to finish their long held judicial capture goal (activist judges much?) will actually play out the way they think it will.Report

        • Avatar Chip Daniels in reply to Saul Degraw says:

          Yeah, I think we have to get our heads around the fact that people like Kevin “Hang ’em high” Williamson are not bizarre outliers in the Republican Party, but mainstream.

          Or I should say, they are the ones holding the whip handle and giving the orders.
          Trump himself is irrelevant to the social conservatives- they treat him like a useful idiot for their agenda.

          Yes, the Republicans really, really, do want to start hanging women and doctors for abortion.Report

      • Avatar Michael Cain in reply to Philip H says:

        I am not sold that this case or any other will maker Cert.

        Only takes four to get cert, so if Alito, Gorsuch, Kavanaugh, and Thomas decide they want it heard, Roberts can’t stop them. I’m not convinced Roberts will vote to overturn, but he’s been at least woefully naive these past several years — at the least thinking that states wouldn’t turn down all that ACA Medicaid money, or immediately go back to discriminating against racial minorities on voting rights.Report

        • Avatar North in reply to Michael Cain says:

          Yeah I struggle to believe that hyper cautious Roberts would vote to overturn RvW (especially any time near an election) and knowing that I would think that one of the remaining four righties would refuse cert so that the RvW case doesn’t come up and get the status quo affirmed again.Report

          • Avatar DensityDuck in reply to North says:

            it’s amazing how people talk like Roberts is this conservative hero after he voted to save Obamacare twice.Report

            • Obamacare is terrific for large corporate interests, which I have long said is Roberts’s real look-out. It’s good for giant health insurance companies. It’s good for large drug companies. It’s good for large hospital chains. It’s good for large corporations in general because it opens up a way for them to eventually get out of the group health insurance business entirely.Report

              • Avatar CJColucci in reply to Michael Cain says:

                Seconded. Roberts, unlike so many other conservative lawyers, with academic or government or wingnut welfare backgrounds, had a serious and lucrative private legal practice fighting for the actual pocketbook interests of paying clients. He continues to serve his former paymasters, in a more sophisticated and effective way than many of his nominal allies, rather than pursue ideological fantasies. Sadly, that’s what’s good about him.Report

  7. Avatar CJColucci says:

    [L1] More than once, I have seen an irate arrestee yell at the cops: “You didn’t read me my rights!” Once, I heard the cop answer: “I didn’t ask you anything, asshole.”Report

  8. Avatar PD Shaw says:

    L7: This reminds me of a story I’ve heard a former research clerk tell on numerous occasions. Its his favorite case he ever worked on . . .

    One night near closing time in a small town, a police car was parked outside of a local bar. A man exits the bar, swaying as he walks past the cop car, proceeds down the street and enters a house. The cop returns his attention to the bar when he hears a loud noise from the garage of the house. Suddenly the garage door opens, and a snowmobile shoots out, sparks flying as he turned back down the street past the stunned police officer. It was July.Report

  9. Avatar pillsy says:

    [L3 Redux] I know a lot of you are pretty bearish on Vox, but I think this Yglesias piece on the Sullivan controversy is quite good at sort of summarizing and parsing out everything.

    For those of you who want to be spoiled, this is the key, final paragraph.

    Thus, perhaps most of all, it’s a perfect example of the extent to which the modern-day nationalized media climate tends to subsume all particular events under the mighty steamroller of big-picture political narratives.

    Report

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