Judge Deborah A. Batts, SDNY, bench slapps Avenatti

Attorney Michael Avenatti is not simply facing disbarment in California. He is facing a 36 count felony indictment pending in the CDCA, A felony case pending in the SDNY alleging various counts arising out of his demand to Nike that it pay him $15M to forestall a press conference in 24-hours that will "take $10 BILLION off of your market cap," and he is facing a two count indictment alleging that he forged Stormy Daniels signature in a scheme to divert $300,000 of her book royalties to Avenatti (which he subsequently spent on, among other things, Ferrari payments).

Avenatti has a motion to continue the Nike extortion case pending, which case is currently set for trial. Avenatti also filed a motion to transfer the Stormy Daniels prosecution to the CDCA in the hopes that it can be consolidated with the pending 36 count felony case pending there thus gaining a de facto  continuance - because the California prosecution is set for trial in May, 2020.

Judge Deborah Batts denied the motion, and did so in a style.

I reprint footnote 5 from the order in its entirety:

Defendant’s legal representation history in this case is unusual. In his first appearance before this Court, he had a Federal Defender but sought to have an attorney based in Florida, who had not filed a notice of appearance, to represent him solely for the purpose of filing this instant Motion. That was denied. Defendant then chose to hire an attorney from California even though the charges relate to alleged crimes committed here. Thus, to move to transfer because his attorney is from California is strikingly similar to a defendant who kills both his parents and then throws himself on the mercy of the Court because he is an orphan. 

Related: Listen to Stormy Daniels rip Michael Avenatti for his 640 text messages assuring her that the publisher was failing to pay her when in fact he was spending  her money.

https://podcasts.apple.com/us/podcast/taking-the-world-by-stormy-season-1/id1479807020

And Now for Something Completely Different

The WeWork IPO / Dumpster Fire.  I honestly can’t look away.  This is worth a read in full:

Part 1:

https://www.profgalloway.com/wewtf

Part 2:

https://www.profgalloway.com/wewtf-part-deux

Where does it end?

In the continuing saga of people trying to out-woke each other by "exposing" the past "misdeeds" of others, a reporter who unearthed raceist comments . . .

Here's the simple version:
Man raises money for hospital (over $1 million).
Beer company agrees to match donations.
Reporter finds that Man made raceist comments as a teenager.
Beer company can't distance itself fast enough.
Citizens find past raceist comments by Reporter.
Reporter fired (resigned?).

(https://www.cnn.com/2019/09/27/us/carson-king-aaron-calvin-des-moines-register-trnd/index.html)

For all the flack that Christians (and other religiously-minded folk) take over being "prudes" or "judgy," it seems that nothing compares to the doctrinal purity required of the far liberal sects.  Anything you've said or thought or failed to deny or support, or that is inconsistent with the current wokeness-de-jure, regardless if it was correct at the time the act took place, is grounds for immediate dismissal and sufficient reason to destroy your life.  Unfortunately, as humans, there are NONE among us who, if our lives (especially high school/college) are examined closely enough, are without "sin."

Anyway, live by the wokeness sword, die by the wokeness sword.  Where will this end?


(don't worry, legal content coming soon . . . )

Senators Fence Over ABA Partisanship

A decent article from Debra Cassens Weiss, who still appears to be producing the majority of any real writing that happens at the sinking ABAJournal.com.

Consider the reasons given by the standing committee for its "unqualified" rating in this case.  Then ask yourself, what should their rating for Elena Kagan have been, applying these same criteria?  Of course the ABA is rabidly biased, and particularly so whenever the nominee has made prior statements suggesting philosophical disagreement with Roe v. Wade.  The ABA's claim to "nonpartisanship" has become one of the most obvious farces of the last three decades.

What is interesting is that the focus of the Senators' comments remains on the ABA's rabid bias, suggesting that they do not realize the alleged "bar association" can now only claim 12-13% of the nation's licensed attorneys as dues-paying members.  It isn't just that ABA's "nonpartisanship" is a total farce; its pompous and asinine pretense to speak for American lawyers at all is an even greater farce. More than its long-demonstrated bias and its dishonest pretensions of neutrality, ABA's nonrepresentation of the profession is the reason it should not have any special voice as a pretended representative of the nation's lawyers.

If the ABA tried to organize as a collective bargaining representative for lawyers, it could not possibly carry the vote.  It speaks only for the leftist pseudo-intellectuals who have hijacked the organization, and the ever-shrinking percentage of the nation's lawyers who still tolerate them sufficiently to pay (the now-reduced) dues.

http://www.abajournal.com/news/article/gop-senators-criticize-aba-ratings-during-hearing-for-nominee-rated-not-qualified

Ecce Novissima Hominis

As you know, Wednesday means another steaming pile of shit from Steven Chung.  I haven't written about his work in some time, but today's article is a perfect example of why Mr. Chung is the most despicable man.  He that is no longer to despise himself.  Let's have a look, shall we?

Apparently Mr. Chung is having a midlife crisis.

"Sometime this month, I will be 43 years old. Some people and some studies say that the next decade should be the prime years of my life. Conversely, others say that life starts to go downhill.

So who is correct?

First, holy shit, from his picture I would have guessed that he was already mid 5o's.  I don't think there's any question that he's been on the downhill side of life for some time.  Also, who are these people he's talking about?  

Some would say that speculating about when a person is in his "prime" is a fool's errand because such a thing is highly subjective and is, in the end, is nothing but an artificial construct.  But don't worry, Mr. Chung will explain why it's important.

 But even if it is just an educated guess, it is important to know one’s prime years because it can affect important life choices. It can influence their decision to change careers, relocate, start a family (or not), or in some cases, retire. This can also affect their risk tolerance — like climbing Mount Everest or starting a business. Many may change (or solidify) their views on social issues. 

What the fuck is he talking about?  Who the hell would frame important life decisions in this way?  It's not like someone thinks "I just entered the prime of my life, time to joint the NRA."    WHO WOULD HIRE THIS MAN AS AN ATTORNEY?  He has no critical reasoning skills.

Now onto the hard hitting statistical analysis regarding when a person can be said to be physically in his or her prime.

 According to numerous studies and internet articles, our bodies are at their peak performance between our early twenties and late thirties. Afterwards, muscle mass and metabolism starts to decline. Memory and cognition also begin to deteriorate. 

Even when he's making shit up, it's completely useless.  He gives a window of 20 years that most people can be said to be in their physical prime.  That's fucking great.  Why did he even bother saying anything?

As far as careers are concerned, that would depend on many things including unpredictable factors like the economy. In terms of job prospects, attorneys are generally the most employable between their fifth and tenth years of practice. During these years, they will have the most options and are more likely to be invited for interviews. This is because they are perceived to be coachable, their salary expectations are manageable, and they are most likely to be a “culture fit.” 

Who knows if this is true regarding when an attorney is most employable, since I don't believe for a second he actually consulted any sources regarding this statement.  Also, it never ceases to amaze me how Mr. Chung doesn't understand how the business of law actually works.  The fact that someone has the best opportunities to lateral between their 5th and 10th years of practice doesn't mean that he or she is in their prime.  In a lot of cases, the more successful an attorney becomes, the harder it is for him or her to move.

So generally, for the traditional law school graduates who are in their mid-twenties, they are likely to be in their primes physically and professionally in their early thirties. It won’t happen to everyone but if you are there and you have options, there’s not much more for me to say other than enjoy it and take advantage of all of the opportunities you get.

For the rest of us, how do we know when we are in our prime? There are two ways to tell. One way is when we believe we are in our prime based on our current experiences. This could be because our lives have improved physically, financially, and socially compared to the past and continue to get better. The other way is retroactively in our deathbeds when we reflect on the best days of our lives. 

Who the fuck is he talking about when he says "the rest of us?"  Also, if there is no way of knowing when you're in your prime, why bother writing an article about it?  

Keep in mind that your prime will come at your own time. In the meantime, you’ll have to cope, improve, and persevere. The statistics I mentioned above are just numbers based on averages. People who have good genetics or maintain a consistently healthy lifestyle can delay the physical and mental decline. Those who don’t take care of themselves are likely to have physical problems earlier. 

What fucking statistics is he talking about?  He only made a vague reference to "studies" and I'm 100% sure he made that up.

He's not done giving insightful advice regarding the business of law.

Careerwise, people who have substantial books of businesses or are good salespeople will always be welcome at a firm, regardless of their age. The rest will have to sell themselves, either through their educational pedigree, their past experience, or their proven expertise in a lucrative specialty.

Once again, no clue as to how this all works.  Typically, the lawyers with books of business are the ones who have an educational pedigree, great experience and/or proven expertise in a lucrative specialty  He loves to fucking pretend that he's slaving away making nothing while these lucky rainmaker lawyers had huge books of business fall into their laps purely on accident.  His attitude is insulting to those of us who bust our asses to bring the work in.  

Finally, Mr. Chung leaves us with a message of hope.

As I enter middle age, I am not sure whether I am in my prime. According to societal expectations, I should be married with 2.3 kids, own a house with a white picket fence, have paid off my student loans, and have saved up for retirement. Some I have accomplished, others I have not. But one thing’s for sure, my life isn’t going downhill anytime soon.

I think the last sentence is true, but because Mr. Chung has no more hill to go down.  If he ever had a prime, it was a very long time ago.  This entire article was incredibly pathetic.

Let's summarize:

1. Mr. Chung can't explain why determining whether you are in your prime is important.

2. Mr. Chung can't explain how to determine whether you're in your prime.

3. Mr. Chung doesn't understand what statistics are.

4. Mr. Chung is a sad, lonely and unemployable man.

Ladies and gentlemen, behold the Last Man.

  

Due Process and the Drone "Kill List"

As with "extraordinary rendition," nobody knows the process, or the procedural safeguards against errors (if any) when the government decides to put a U.S. citizen on the "kill list" to be assassinated by drone strikes.

In a case where a plaintiff sought to challenge and remove his listing, the court has held that the government is protected by the "state secrets privilege" from disclosing even so much as whether the plaintiff has in fact been listed for assassination.  As a practical matter, this makes it impossible for a citizen targeted by the government to do anything about it using the civil law.  Also, as the court points out, the rights the targeted person would have had if actually charged with a crime are of no avail where the government simply marks the person for death without a trial.

This results suggests that the executive branch has a free way around the laws and constitution, to kill anyone it wants, for any reason, and that it need only claim that the purpose was serving national security in order for the courts to bow out and grant a pass.  This seems quite dangerous to the notion of constitutional government, and also at odds with the reasoning of Marbury v. Madison.

https://www.msn.com/en-us/news/world/us-invokes-state-secrets-privilege-to-block-american-journalists-challenge-to-alleged-spot-on-drone-kill-list/ar-AAHMRMr

Commenteriat Commune, Where Journalism Still Exists

As I am sure many colleagues have noted in the past, seeking "media" status recognition for Internet reporting and discussions can be a hit and miss proposition.  This was shown perhaps most cogently by the Supreme Court screwing with SCOTUSBLOG over press credentials and admission to the gallery.

Notwithstanding the consistent snubs from such quarters as ABAJournal.com's "BLAWG 100" (now, ironically, passed from this plane of being in its own right), our volunteer contributors have sometimes been the first on the Internet to break particular news tidbits.  Further, in my opinion, the writing here is equal to or better than what is to be found today at many of the big-name media outlets.

For this reason, I wanted to share the outcome of my media fee-waiver request (in connection with my FOIA submission seeking documents on DOE's oversight of and correspondence with Florida Coastal School of Law):

You have asked for a waiver of all fees, including duplication fees, associated with processing your request based on your requester category as a(n) Educational/News Media use requester and the information requested will be disseminated to the public. That request is granted.

Colleagues, at least someone recognizes and appreciates what we do here.

Cosby Predictably Loses Fee Dispute

I was thinking about saving this one for the next "Never Have I Ever" column, because I have never handed a defense client a bill for $9 Million.  I actually share Bill Cosby's WTF moment over that, and I fully understand how he could be skeptical after the arbitration resulted in a write-down to a mere $7 Million.  But appeal an abitration award?  This is a monumental long shot, and is also why you don't commit to binding arbitration if you care about having any remedy for errors in the award.

What is most ironic is that the sum total of Bill Cosby's experience illustrates how black men still don't have "access to justice" in our nation's criminal courts, even when they are multi-millionaires (I am sure the ABA House of Delegates will get right on this).

On the bright side, one year down and only nine to go!

https://www.msn.com/en-us/tv/celebrity/bill-cosby-hit-with-dollar275m-legal-bill-after-losing-dispute/ar-AAHMODH?li=BBnbfcL

Tuesday Afternoon Discussion - Florida Coastal's Hidden Graduation Requirement: Predatory or Prudent?

A putative class action complaint was filed by Jane Doe against Florida Coastal School of Law  alleging that the school breached some unspecified contract with its students by forcing 3Ls to pass a bar prep class as a condition to graduating.  We touched on this in an earlier thread, but it hadn't yet evolved into a lawsuit. 

The allegation, as I understand it, is that FCSOL (rightfully) feared having its accreditation yanked by the ABA for continuously abysmal bar passage rates.  In order to make itself more respectable and appear to be less of a dumpster fire, the school began requiring all students to pass a bar prep course as a condition of being awarded a J.D.  The logic being that, in Florida, one must have a J.D. from an ABA-accredited school to sit for the bar exam. 

This makes sense in a vacuum, dummies can't fail the bar if they can't take the bar.  The problem, however, is that Florida Coastal was previously in hot water with the ABA for being out of compliance with ABA Accreditation Standard 501(b): "A law school shall only admit applicants who appear capable of satisfactorily completing its program of legal education and being admitted to the bar."  The appropriate remedial action should have been not to admit dummies in the first instance, not admit the dummies, take their money, but keep them from taking the bar exam.

Florida Coastal recently got off the ABA's shit list, but I wonder if this alleged extra requirement to graduate was fully understood by the ABA? 

Commenteriat, is FCSOL's alleged policy of withholding that sweet, sweet J.D. from kids likely to fail the bar exam prudent or predatory?

"Emily Doe" Not Done Milking her Fifteen Minutes of Fame

Clearly, it dawned on "Emily Doe" at some point that there was real money to be made here.  No longer need she feel any embarrassment about going to campus parties to get blackout drunk and hookup with college athletes.  She had a right to do that, so, if it results in an occasional sexual assault, she's heroic!  Even if she really didn't get to make the initial decisions about reporting the incident, because she was still unconscious.  But she had a right to be.  So -- heroic!

Remember F Troop, where Wilton Parmenter sneezed, and his calvary regiment thought he was ordering a charge, and the charge was successful, so he was awarded the Medal of Honor?  At least Parmenter was conscious, and sober enough to stay on a horse.  Even that was more heroic than Emily Doe.  All she did was get totally polluted and pass out in circumstances that ultimately proved to be fortuitous.  Brock Turner did the fingering, the foreign exchange students summoned law enforcement, and then the police and hospital staff did everything else.  Emily Doe was basically just there, and for most of the relevant developments, she didn't even know it.

Heroic?  I am not going to advise any young person (frankly, any person at all) to engage in this sort of conduct.  In fact, I would more often be pointing to the "Emily Does" of the world as horrible examples that young people should stay away from.

I don't think I will be buying this book.  More likely, I will wait for the movie, probably until it comes out on DVD, and then, not watch it.  It is staggeringly dreadful that our society has come to the point of lauding the likes of this young woman as somebody worthy of praise and respect.

https://www.msn.com/en-us/news/us/chanel-miller-the-full-60-minutes-report/ar-AAHGvki

Are Dicks Protected Speech? Film At 11.

Some of you may have heard that the Lone Star State recently enacted a law criminalizing the unsolicited sending of nude photographs (i.e. dickpics).  While I generally don't object to the law, Eastern Texas criminal defense lawyer Don Flanary wants the government to stay out of his crotch.

According to Flanary, the law is overbroad because it bans "electronic transmission of sexually explicit visual material" and, thus, infringes on free speech:

“Every movie that you’ve ever seen – it may have sexual connotations. It may even be nudity in an R-rated movie. That’s artistic. That’s protected under the First Amendment. So you can’t ban it. Just like they can’t ban your R-rated movies, they can’t ban your R-rated texts.”

and

“The statue doesn’t talk about obscenity. It’s overbroad so it doesn’t say it’s a crime to send obscene picture through a text. It says it’s a crime to send anything having to do with sex,” Flanary says. “This is basic first year law school stuff we’re talking about. These laws were worked out in the ‘70s. Forty years later, the Texas legislature is writing laws that got struck down in the ‘70s So why in 2019 we’re dealing with it again? The only explanation is that our lawmakers didn’t pay attention in law school or maybe didn’t go to law school.”

What say you, Commeneriat?   Is this a case of Congress shall make no law abridging the freedom of dicks, or is Flanary Anon's alter ego?

Weekend Listening Recommendation: NYT Podcast re Gloria Allred & Harvey

The NYT "Daily" podcast (which I normally avoid) has a juicy one about shameless enabler Gloria Allred called "Keeping Weinstein's Secrets." (link below--no paywall). Lots of good stuff about how her firm had arranged settlements for many Weinstein & Larry Nasser victims in the past, taking a nice 40% cut. 

But the best part was --after the Harvey news broke-- Allred planned a major press conference with a bunch of fresh, new Weinstein victims at her side, where she would proclaim that "Women Will Not Be Silenced!"
  One of Allred's former Weinstein victim-clients from 2004 heard about the press conference wanted to attend and Gloria told her to keep her mouth shut and not tell anyone that Allred had represented her. 

Sisterhood!

https://www.nytimes.com/2019/09/19/podcasts/the-daily/harvey-weinstein-gloria-allred.html

Never Have I Ever. . .

What we somewhat lack here at CC Blogspot is a good, regular, interactive feature like a weekly question or poll.

This week saw various news stories around the country in which lawyers and law enforcement officers alike got in trouble for communications they should not have been making, with people they should probably not have been engaged with.

Thinking back over the decades, it occurs to me that recognizing these types of communications and these types of people can be an important survival skill for lawyers.  With this in mind, I put to colleagues this question: how often have you been present in a meeting or teleconference, immediately after which, your first piece of advice to your client was (or approximated), "It's always a guy like that who's wearing the wire"?

Snowflakes Decry Completely Mainstream Comments by Ben Carson

Apparently HUD has become such an echo chamber of leftist, special snowflakes that they are shocked (SHOCKED) by comments and observations that ordinary citizens would recognize as completely unremarkable, mainstream views.

Nothing Carson is alleged to have said here remotely approaches a "slur," except possibly for the hypersensitive "microaggressions" crowd.  If the agency is as packed with these rainbow-riders as the article suggests, it is no wonder HUD is so dysfunctional and out of touch.  These special, little, crying wonders should take a tour of public housing around the country, to see first hand what they are REALLY in charge of and what they are doing "for" the people they "serve."

 https://www.washingtonpost.com/business/2019/09/19/hud-secretary-ben-carson-makes-dismissive-comments-about-transgender-people-angering-agency-staff/

Passing the Buck

Well, Ed Buck is in trouble, and his federal arraignment and bail review hearing was passed to 11 October, after he waived speedy arraignment.

Meanwhile, the media raises the question why it took so long for officials to act, as local homeless men commonly referred to Buck as "Dr. Kevorkian."  I am sure that whatever it was, it had nothing to do with him being an LGBTQ "activist" or a major democratic donor, in California.  Probably the people who investigate the deaths of marginalized homeless gay black men were just busy with other things.

https://www.msn.com/en-us/news/crime/homeless-men-called-democratic-donor-ed-buck-dr-kevorkian-why-his-did-arrest-take-so-long/ar-AAHBfDj?li=BBnbfcL#page=2

Well... that escalated quickly

Area Man has modest proposal to completely pack courts with democrats (because of stolen Supreme Court seat... ect).

Believes “hostile” courts stand in the way of democracy and progress.  Sees no possible way it could backfire.  Would only require democrats to win (and then continue to hold) all three branches of government in perpetuity.

https://www.nytimes.com/2019/09/17/opinion/kavanaugh-trump-packing-court.html

Mid-Afternoon Vent: Why are State Bar Websites So Useless?

 I have been trying to find this criminal defense attorney (no not for me) who lives either in Oregon or New York and both websites make it very difficult to research their members. Nice work protecting the public!

By the time you finally locate the "member search" section (Oregon helpfully informs you the member list is likely incomplete)-- Michael Avenatti could be halfway to Argentina with your retainer.
 
In contrast, the CA State Bar is practically begging you to file a complaint.  "Locate a Lawyer" is front and center on the homepage, with a variety of complaint forms in eight different languages one easy click away.

His Name is "Buck" . . .

There was good news and bad news for LGBTQ "activist" and major Democratic donor Ed Buck.  The good news was that his "activism" has finally helped convince mainstream society that gay black lives matter.  The bad news was that, as a consequence, Buck found himself in police custody, due to the gay black men who have been found dead in his house as a result of drug overdoses.

Buck is accused of enticing homeless gay black men to his home with money and drugs, then doping them up and sexually exploiting them.  It appears to be especially problematic that some of them have not survived.  Police searching the premises reportedly uncovered a large cache of photographs, showing men thought to be prior victims in "compromising positions."  The media coverage also suggests that the local LGBTQ community has turned against Buck, due to his alleged history of predation. 

At least Buck can take solace in having elevated the rights and standing of local gays to the point that they can potentially help put him away for a long stretch in prison.  Well done, Buck, well done!

https://www.msn.com/en-us/news/crime/democratic-donor-ed-buck-charged-with-operating-drug-house-after-2-men-found-dead-in-home/ar-AAHrQ3M 

The Changing Masthead at ABA Journal

I hadn't looked at this in detail for awhile, but after the recent publicity on Molly McDonough's impending departure, I thought it would be good to see what is happening structurally.

Note that "Web Producer" is now gone, as is "Executive Assistant to the Editor and Publisher."  Also, it looks like almost all of the marketing and advertising functions have been outsourced.

http://www.abajournal.com/authors

Yin and Yang at Florida Coastal Law School

First the impressive news: the release of Florida passage statistics disclosed Florida Coastal achieved a 71% first-time bar passage rate for the July bar exam (its highest in four years).

On the other side of the coin, a student complains (by way of a lawsuit) that the pass rate was basically achieved by Florida Coastal imposing new requirements designed to cause attrition of those students who would have trouble passing the bar exam.  Unfair and a breach of contract, as the plaintiff student sees it, because the school had allegedly recruited and enrolled students on the premise that they would not be subject to any such requirements as a condition of obtaining their degrees. 

This actually brings up a valid point.  Yes, the school has to bring its pass rate up in order to prevent its own loss of accreditation and extinction.  On the other hand, when it uses a mechanism such as imposing a mandatory bar prep class that students must pass to receive a degree, isn't that an adverse, material and unilateral change for all those students who were recruited on a premise of pursuing careers in the "J.D. preferred" sector?  It does seem that such an amendment, without consent or consideration, changes the basis of the original bargain in a fundamental way.

https://www.jaxdailyrecord.com/article/student-files-suit-against-florida-coastal-school-of-law

A State Commission on Judicial Conduct Runs Amok

In this case out of New York State, some hapless layperson serving as a "town justice" in Altona Town Court, in Clinton County, posted a comment in favor of capital punishment on his personal Facebook page.  It consisted of a photo of a noose, and the statement, "If we want to make America great again, we have to make evil people fear punishment again."

It took several months for some person of sufficiently "woke" character to determine that the image and statement were susceptible, in their view, to interpretation as a racist statement in favor of lynchings.  That unknown person notified the NY State Commission on Judicial Conduct, which then sent the town judge a letter saying to take the post down, followed by a formal disciplinary complaint.  The complaint also asserted the position that the post (which was included as an attachment to the complaint) undermined "the integrity of the judiciary and public confidence in the courts," because "the noose is an incendiary image with repugnant racial connotations."

Notwithstanding that this construction of the post came, in its entirety, from the voices in the head of the bureaucrat who drafted the complaint, the town judge was intimidated into agreeing that his post was misconduct, resigning his office, and stipulating that he would never again seek judicial office in the future.

So, basically,even though the post was, facially and in context, a completely legitimate comment in favor of capital punishment, a bureaucrat in a state agency attached entirely unintended connotations to the post, and then used that to bully a lay judge out of public service, forever.  This is the sort of horrific destination one comes to by a senseless insistence on construing every public statement as offensively as possible.  I see no possible advantage to the public in this.  Rather, it actually undermines the integrity of the State Commission on Judicial Conduct that a fanatic extremist has been allowed to use the agency to perpetrate an injustice.   

https://www.timesunion.com/news/article/Clinton-County-town-justice-resigns-after-posting-14445910.php

Tuesday Morning Discussion

Would you rather be an associate for Michael Avenatti or Gloria Allred?

Personally, I'd rather fake my own death than work for either of them. I realize this is a cop-out.

The Kavanaugh Thing is Back

It seemed to me that the effort to lynch Justice Kavanaugh during the confirmation proceedings actually cost the Democrats bigtime in the midterm races.  Nevertheless, several of the current Democratic hopefuls in the presidential race are hanging their hats on the "impeach Kavanaugh" issue.  Maybe this is simply a sign of our times, illustrating how, once some people in the media give the order, the politically correct, whatever their station, have no choice but to charge for the guns.

https://www.msn.com/en-us/news/politics/trump-defends-brett-kavanaugh-democrats-call-for-impeachment-amid-new-sexual-misconduct-claims/ar-AAHkxf5

A Murdered "Transgender Woman," and Numbers

This murder victim, found in a burning vehicle, was described as "brutally" killed.  "Activists" have chalked this up as the 18th "transgender" person murdered in the United States this year.

For those who have not been following the numbers, the tally of "transgender" murder victims in 2018 was 26 and in 2017, the number was 29.  So, looking at the portion of the year that has passed, we are about on track with 2018, and still down from the figures in 2017.

As in most of the cases, police do not know whether the most recent victim's gender status was a motivational factor in the killing.  Often, risk factors such as involvement in drug or sex trafficking, or other criminal enterprises, are tied to the circumstances in which transgender decedents were murdered.

An LGBTQ activist commenting in the story (ironically named George Wallace) claims that "transgender women of color are killed at a greater rate than that of their peers."  This likely depends on who one considers to be "their peers."  Statistical analyses I have performed in prior years shows it not to be true that "transgender women of color" are killed at a greater rate than biologically female women of color.  In fact, the numbers I examined reflected that they are killed at a lesser rate, possibly because, as physiological males, they generally have greater physical strength with which to defend themselves.  It is possible (and I have not statistically analyzed the contention) that "transgender women of color" are killed "at a greater rate" than those who are not "of color."  However, it is extremely well documented that biological "women of color" (with the exception of Asian and Pacific Islanders) are killed at a higher rate than biological "white" women.  Accordingly, this also does not support the premise that the "transgender" identity element of the "transgender women of color" is a significant factor in their relative rate of mortality from homicide.

In short, to the extent that LGBTQ "activists" are attempting to use the small number of annual murders of "transgender women of color" to suggest that "transgender women of color" need special protections against homicide, the case has gone objectively unsupported.

https://www.nbcnews.com/feature/nbc-out/black-transgender-woman-23-found-dead-burned-car-florida-n1053006

Buried Baby Case Mostly a Defense Verdict

The sensational case of the cheerleader charged with killing and burying her newborn baby has ended with a conviction on only one charge, that of "gross abuse of a corpse."  Key defense evidence included medical opinions that the child was stillborn, supporting the defense theory that the defendant, who had admittedly concealed her pregnancy and the birth, had no role in any intentional murder.  Basically, the jury found the prosecution had only managed to prove improper disposal of remains.

https://www.msn.com/en-us/news/crime/jury-finds-brooke-skylar-richardson-not-guilty-on-murder-charge/ar-AAHcBIU#page=2

Vicious, Westchester Coon Confirmed Rabid

A raccoon that attacked at least three people in Westchester County, NY, has been confirmed to have been infected with rabies, and the victims are undergoing treatment.  The animal is suspected to have been squatting in a nearby, vacant house, and was reportedly beaten to death with an iron tamping rod while engaged in combat with its final victim.  Residents voiced concerns that the animal may have passed the infection to other animals in the vicinity, leading to a continuing, potential danger of additional attacks. 

https://abc7ny.com/pets-animals/raccoon-that-attacked-3-people-in-ny-confirmed-to-have-rabies/5531743/

Mystery Afoot at Florida Coastal Law School

As a preliminary Trigger Warning, the media report to which I have linked below is from Glawker, but the silver lining is that it was authored by our own Sister Staci, who used to visit occasionally at our old Disqus site.

Obviously, the school is teetering a bit, with a report of a cryptic comment from the administration suggesting that it could rise or fall within seven days.  This triggers a memory of the fate that befell Charlotte School of Law ("CSL"), which had been given a period of time to agree to certain Department of Education ("DOE") conditions, one of which involved posting of a substantial surety for the refund of students' tuition if the school shuttered.  Despite public posturing that CSL intended to meet DOE's conditions, it eventually became obvious that Infilaw, the controlling entity, had never intended to allow any such a thing.

Is this simply deja vu?  None of the media reports contain any information on the mystery of the loan funds, which Florida Coastal claims to have not received.  Notably, there is also no announcement on the DOE's Federal Student Aid website concerning the alleged non-disbursement of the funds.  There was such an announcement when loan funds were withheld from CSL, and this casts some question on Florida Coastal's claim that the agency has not released the funds.  Concurrently (as Sister Staci points out) there has been a sudden, and probably not purely coincidental, change in Florida Coastal's administration.

In an attempt to get to the bottom of this story, this reporter has submitted a request via the DOE's FOIA site, this date, seeking any correspondence or documents that would explain the non-disbursement of funds or reflect any conditions DOE has set on release of funds to Florida Coastal School of Law.  FOIA processes are notoriously slow, so chances are, the passage of seven days will bring us the rest of this story before I receive any response from the agency.

Here is what Sister Staci was able to tell us:

https://abovethelaw.com/2019/09/florida-coastal-dean-resign-missing-student-loans/

Out of nostalgia, and simply because this seems to be possibly heading down a familiar path, I reprise for my colleagues here the 2017 Peeps Diorama, "Harlot School of Law," which was so infamously banned at ABA Journal for its shocking "sexual references":

https://soundcloud.com/user-712998617/the-harlot-school-of-law

Injunction Kicked to the Curb, A Mere "Paper Tigar"

Unsurprisingly, Judge Tigar availed himself of the discretion the 9th Circuit had seemed to leave him, to once again extend his "nationwide injunction" interfering with administration policy on asylum claims.  In certain media venues of limited relevance (nameless here), the decision was trumpeted, but, it was short-lived.  The 9th Circuit reacted with speed (as grudgingly acknowledged in the same, nameless venues), and then, so did the Supreme Court (as yet, largely unreported, and certainly not newsworthy at ABA Journal).

This is an important development, and not simply for this case.  During the present administration and the preceding administration, "nationwide" injunctions by U.S. District Courts have highlighted the need for judicial adults (in the guise of the higher courts) to step in and put an end to competing, usually politicized, efforts of various partisan U.S. District Judges trying to rule the world from their individual federal courtrooms.  This action by the Court is necessary from the perspective of restoring orderly, judicial supervision of lower courts quite frankly running amok.  The phenomenon needed to be taken in hand, and now, it has been.

https://www.msn.com/en-us/news/us/supreme-court-allows-trump-asylum-restrictions-to-take-effect/ar-AAH9vk4?li=BBnb7Kz#page=2

France - Making California Look Sane by Comparison

In my morning review of news sites I found this gem on Fox News: https://www.foxnews.com/world/france-business-trip-death-employee-sex-workplace-accident

From what I gather, France has some law approximating what we Americans would describe as a workers compensation death benefit.  In and of itself, that doesn't offend me, but the following fact pattern is just insane.

Parisian man is sent on a business trip about 90 miles south of Paris.  He has overnight lodging at L'Hotel A.  After the workday and on his personal time, the man meets a mademoiselle and they retreat to her place of accommodation at L'Hotel B and proceed to get busy.  Man has a total eclipse attack of the heart mid-coitus and drops dead.  Man's family seeks the workers comp death benefit from man's employer.

Even in California, the family, much like the decedent, would be screwed.  Getting some strange, even in one's one hotel, let alone a stranger's hotel, is not in the course and scope of the man's employment (I'm guessing).  It's what we would (appropriately) call a frolic. 

Well, the French don't see it the same way.  The court ruled in favor of the family because, I kid you not, boning "is a matter of everyday life, like taking a shower or a meal."

When approached for comment, the family said only: "thankfully, we got our fucking compensation."  (Okay, maybe I made that one up).

Abel Cedeno Heads Off for a Fourteen-Year Stretch

Horrific injustice ruled in court today, as Bronx teen Abel Cedeno was sentenced to fourteen years in the slammer for killing one class mate with a switchblade, and injuring another.  This, even though Cedeno, who has since "come out" as "bi," claimed to have been forced to use his knife when assaulted by "slurs" and a barrage of deadly, airborne pen caps, pencils and paper balls.

Apparently, that wasn't enough for the court.  I guess a poor, homophobicly-bullied kid can't get a break, even at the Urban Assembly School for Wildlife Conservation.  WTF is the world coming to?

https://www.msn.com/en-us/news/crime/bronx-teen-sentenced-to-14-years-for-killing-classmate/ar-AAH5Qrp#page=2

CNN Hits New Low with Completely Speculative "News Story"

This crafty couple fooled their guards during a custodial transfer, and have not been located after a six hour head-start.  The police don't have any idea where they are, but don't think they could have made it all the way from Arizona to Mexico.  To reiterate, the police have no idea where the fugitives are, but, since they have not been found, it is possible they are being assisted on the sly by a vast and hitherto unknown network of "white supremacists."  Or space aliens, or maybe Mormons, deplorables, or Republicans.


https://www.msn.com/en-us/news/crime/fugitive-couple-facing-murder-charges-may-be-getting-help-from-white-supremacists-authorities-say/ar-AAH4zp1


I mean, who else COULD it be???

https://www.youtube.com/watch?v=fLpmswBKVN4

AOC Wants Every Republican to Vote Against Impeachment

Interesting, as an opposition vote from every Republican, in concert with the non-Republicans that don't support impeachment, means it likely won't get far.  Also, it will be hard to tar the Republicans for voting against it when they won't be the only ones.  You can piss and moan about "corruption" in D.C., but as far as I have ever been able to tell, the vast majority there are for it.

The more interesting point is how increasingly crazed and fanatical all of AOC's press pictures are looking.  It makes me wonder if some of her "moderate" colleagues are slipping chemicals into her drinks.

https://www.msn.com/en-us/news/politics/aoc-wants-republicans-on-the-record-against-impeaching-trump/ar-AAH686E?li=BBnbfcL#page=2

Lisa Bloom Exposed (Courtesy of IP-Law-Ass)

Just when you thought there wasn't anything about Harvey Weinstein that hasn't been exposed, a new book is coming to market to do just that.

Included in the book is an interesting memo from Lisa Bloom to Harvey Weinstein...

https://mobile.twitter.com/yashar/status/1171414194446581761

These people truly are the worst.

Tuesday Morning Discussion - A Different Kind of Hypothetical

I know this group is used to intelligent, issue-packed, legal hypotheticals, but humor me on this overcast (in the DC area) Tuesday morning.

If you had to fight an animal that is the same size as you (both in height and weight) to the death, what animal would you pick? Note you can choose any animal - it can be blown up or shrunk to your size.

I would pick a giraffe, since its skinny neck gives me a shot at winning.

Pistol-Packin' Mama, Lay That Pistol Down!

Sometimes, taking a break from college to visit a parent can be like a shot in the arm.  All the more so, in fact, if the visit is a surprise, and you burst in unannounced on nervous kinfolk who are packing.  So it was for this intellectually challenged young lady, who is unaccountably smiling in her hospital photo, and posted all about her clever exploits on social media.

One would hope she learns an important life lesson from this, given that, by dumb luck alone, the shot tore through her arm, several inches from any vital organs.  Her mom should take a moment to puzzle on this as well, perhaps even to consider the value of pausing to identify one's target before going all trigger-happy in a moment of panic.  Neither one of them seems particularly gifted, and I am inclined to wonder how many Darwin Awards have already been taken by other members of this family.

https://nypost.com/2019/09/08/mom-accidentally-shoots-daughter-after-she-surprises-her-at-home/

This Too Shall Pass

This unfortunate former judge lost her courtroom gig after she was caught too far from the commode one day in court, and had to take a dump in her courtroom trash can.  I noticed this story because the former judge in question bears an uncanny likeness to Rawles, and had some of the same problems.  Indeed, based on the description of the treatment doled out to her by courthouse workers (who swarmed the scene of the trash can dump with caution tape, and in HazMat suits), I would guess she had a similar, winning personality as well.  Soon after the trash can incident, she was sacked, and had since been pursuing a lawsuit for disability discrimination.  After all, a toilet behind the bench should be a "reasonable accommodation," right?  Sadly, her many ailments and morbid obesity caught up with her, and she died, at age 63, before her case could be concluded.  So she won't ever know how it comes out in the end.

https://nypost.com/2019/09/09/judge-suspended-for-pooping-in-trash-can-dies-at-63/

Monday Morning Discussion - Stand-Up Comedians

Now that Netflix and Instagram are offering up stand-up comedy videos, we never have to leave the couch in search of laughter. In that vein, who would you like to see offer a Netflix special, i.e., who is your favorite comedian? Which comedians are you not so crazy about?

Because I can never pick just one, my favorite is actually 3 people: Chris Rock, Ellen DeGeneres, and Dave Chappelle. Their jokes are almost uniformly intelligent and funny.

I'm not crazy about Samantha Bee (yawn), Louis CK (snoooooze), and Nick Guerra (too hit or miss).

The inspiration for this post comes from my recent viewing of Dave Chappelle's Sticks and Stones on Netflix. I think Fr0zt has been coaching Chappelle. Has anyone else seen it?

Mugabe Dead

May seek re election.

https://www.nytimes.com/2019/09/06/obituaries/robert-mugabe-dead.html

Wreck of the ABA Journal Going Adrift, As Editor and Publisher Abandons Ship

A giant hat tip to our colleague, Yankee, for pointing out the Bob Ambrogi piece on Editor and Publisher Molly McDonough's resignation from ABA Journal.  Combined with what has been a steady decline in quality and reader interaction, Ms. McDonough's resignation and comments are the functional equivalent of a ship's captain opening all the sea valves, then jumping over the rail while shouting urgent warnings about torpedoes and an iceberg.

As Ambrogi's piece recognizes (and as I have mentioned in prior posts), Molly McDonough was instrumental in getting ABAJournal.com under sail as a reputable website.  When she served as Assistant Managing Editor and personally moderated site comments, things went very well indeed.  It was a golden age for the website, because (with the exception of banning Ellen Barshevsky) most of Molly's decisions reflected sound and mature judgment, she would explain them, and she tried to be consistent so the vague site rules were at least applied even-handedly.

Unfortunately (as I have also mentioned before), when Molly moved up to Managing Editor, then ultimately, Editor and Publisher, ABA provided no resources to secure any competent replacement.  Busy with her new duties, Ms. McDonough had little choice but to leave the steering and the sail to subordinates such as Sarah Mui and Lee Rawles.

Unlike their predecessor, Mui and Rawles tended to be arbitrary and abrasive, and didn't explain their decisions, which also tended to reflect a certain absence of professionalism, objectivity, maturity and judgment.  Many readers simply could not stand their unprincipled, biased and obnoxious mismanagement of the comment boards and other interactive site features.  This mismanagement extended to banning those commenters who criticized their unprincipled, biased and arbitrary conduct, and I doubt anyone will ever know how many members or how many thousands of dollars in dues and advertising revenue Mui and Rawles managed to cost ABA.

What we do know is that interactive features such as the Blawg 100 soon began to shrivel on the vine.  By December of 2016, it was clear that reader participation had substantually evaporated, and the Blawg 100 was in serious trouble.

In April 2018, the same thing had happened to the Journal's Peeps Contest (founded initially by Molly McDonough when she was running the website directly).  Mui and Rawles had knocked reader participation down to the point that the contest was failing, and the Journal killed it.

By July of 2018, the Blawg 100 was likewise in such serious trouble that the Journal expanded it to the "Web 100" to try to draw additional reader participation.  However, this failed to overcome the ill effects of the incompetents left managing the website, and the "Web 100" quietly faded away after December 2018.

Meanwhile, on the ABA Journal's comment boards, the biased and unprincipled failure to fairly or consistently moderate comments had reduced the quality of discourse to that of an open sewer.  Rawles was leaving up obscenities, personal attacks, and (as of January 2019) even death threats, as long as they were posted by leftist commenters.  Many readers complained, and I personally sent ABA President Bob Carlson a polite communication noting that his stumping on "civility" was somewhat at odds with the standards being followed in his own shop.  By late April of this year, the ABA Board of Editors recognized that the comment boards had reached a state such that they simply needed to be shut down.

Soon after, in May 2019, the "Cartoon Caption Contest" quietly and without fanfare ceased to be.  In short, nearly every single interactive reader feature of the Journal had been destroyed (I note here the possible exception of "Question of the Week," although responses all have to be submitted offsite, via social media mechanisms such as Facebook or Twitter).

In the Treasurer's Report at the 2019 Annual Meeting, the ABA Treasurer disclosed that advertising revenues had failed to come in as forecast.  This is most likely reflective of a substantial decline in readership and web traffic.  Even though the Journal publicly claims to be read each month by "half the nation's lawyers," advertisers typically use web traffic analytics services to determine what is really true, and the decline in advertising revenues speaks volumes.

So, too, do Molly McDonough's statements as reported by Bob Ambrogi.  Recognizing that there is undoubtedly a great deal Molly is not telling us, what she is telling us is quite enough to get a sense of how bad things have become.  The Blawg index is going to be taken down, and ABA Journal.com is going to be forcibly migrated to a platform that is still substantially defective, and Molly McDonough doesn't believe it will be a workable platform for editorial publishing.  In short (and although she avoids criticizing her useless subordinates out of kindness), she sees that what her talentless underlings have not already destroyed, ABA is about to finish off.  In essence, Rawles and Mui have fired the ship to the waterline, and now ABA is sending in a final spread of torpedoes to clear the wreck from the sea lanes.

I suspect a final shoe to fall as Debra Cassens Weiss has to make her decision on whether to stay aboard this wreck while it goes awash.  Ms. Weiss actually holds a J.D., and is (in my opinion) far more qualified as a journalist than those to whom charge of the website was given when Molly moved up the ladder.  Also (as I have mentioned in prior posts) better than 80% of all visible work on the website is generated by Ms. Weiss personally, so she has basically been, for some time, running the pumps for the idiots asleep on the bridge.  Notably, she has been with the Journal since 1986, and so, seems almost certain to be covered by and vested in the old defined benefit pension plan.  Moreover, as a writer with actual demonstrated competence in covering legal news, it seems likely she could land any number of better jobs.  I would not venture one nickel on her staying many more days at ABA Journal.  When the captain goes over the rail, nobody very smart is going to continue waiting for the official call to "abandon ship."

Stick a fork in it.  ABAJournal.com is done.

https://www.lawsitesblog.com/2019/09/amid-budget-cuts-and-tech-changes-aba-journal-head-resigns.html

ABA Journal Recognizes Lawyer's "Miss U.S.A." Achievement

In their continuing struggle to determine what is "newsworthy," the ABA Journal editors actually stuck this fluff piece into their soon-to-be-less-than-monthly magazine.  Forget law school and passing the bar and getting a job as a litigator and running her own business.  Obviously, the most important information about this North Carolina colleague is that she can still credibly strut her stuff in a swimsuit, even at the ripe old age of 28.  Sexist much?  Ageist much?

I can only imagine the absolute shit storm of PC condemnation that will follow from the ABA Journal's dogmatic readership, decrying how the bone-headed editors could be so incredibly tone deaf as to laud taking the "crown" in this veritable festival of female sexual objectification as some kind of accomplishment to be recognized in the ABA Journal.  WTF???

This is arguably the Journal's most egregious PC faux pas since the (rapidly de-published) fashion piece that noted Secretary of State Hillary Clinton's "rumpled and haggard" appearance.

They're losing it.  They're losing it.  They can't even keep their own, rigid politically correct bullshit properly sorted anymore.  Stand by for the inevitable stream of condemnation in "letters to the editor" from ABA virtue-signallers.  They are practically mandatory.

http://www.abajournal.com/magazine/article/this-north-carolina-litigator-reigns-as-miss-usa

On Death

On August 30 the long con brought down the Commenteriat Commune.  It also apparently brought down Whittier Law Skool, which closed it’s doors this week.

It brought not one, but two, Eulogies from ATL’s very own. Shannon (https://abovethelaw.com/2019/08/farewell-whittier-law-school/) and Old Ladysaurus (https://abovethelaw.com/2019/09/should-lawyers-have-their-own-version-of-dont-ask-dont-tell-for-law-school-pedigree/).

I’m hard pressed to decide which would be worse to eulogize me if I am found in the Volga River, of an apparent self inflicted gunshot wound to the back of the head...

Battle of the Crop Tops: Ariana Grande v. Forever 21

Ariana Grande is suing Forever 21 in the U.S. District Court for the Central District of California for using images of a lookalike model in a recent advertising campaign. Her suit against the teeny-bopper clothing chain includes, in part, a common law right of publicity misappropriation action. There are also claims that Forever 21 used Grande's social media posts in their advertising.

Very quick perusal of publicly available materials on California's common law right of publicity suggests that the key element in this case may well be "identity," that is, whether Forever 21's use of the lookalike model appropriates Grande's identity. Grande's "identity" could be evoked by more than just her name or likeness under California law. In fact, it seems possible that a commercial featuring a robot with a high pony-tail, long hair, lots of pink accessories, camo crop pants, and a penchant for licking donuts could fit the bill. See, e.g., White v. Samsung, 971 F.2d 1395 (9th Cir. 1992), cert. denied, 113 S.Ct. 2443 (1993).

Ariana Grande allegedly specializes in singing, but I am unfamiliar with her work.

Forever 21 specializes in cheap clothing options for young women that are almost cute, but add a twist of ugly that ruins the entire garment.

Should Forever 21 settle? Can they afford it given their rumored financial woes? Does anyone think the so-called lookalike model actually looks like Grande? (I myself don't see it.)

https://www.nytimes.com/2019/09/03/arts/music/ariana-grande-forever-21.html

"Counter-Protesters" Swarm Straight Pride Parade

Putting aside the issue of what there is to be "proud" of in one's sexual preferences, it is surprising that anyone could take offense at a "Straight Pride Parade."  If we assume that sexual preference is  an appropriate basis for "pride" (and the LGBTQ crowd have asserted this for years), what grounds can there possibly be to object to straight people putting on their own "Pride Parade"?  Must one be a member of a marginalized, disfavored minority group to have or assert "pride"?   Has the mindless drone of political correctness now ground on to the point that it is supposed to be unacceptable to not subscribe to some kind of LGBTQ preference?  This attitude on the part of the LGBTQ extremists is insane and unreasonable to the point that it carries with it the seed of destruction of their own "movement."  I can't see the common citizenry (the vast majority of whom are not LGBTQ) putting up with much more of this imbecilic folderol.

https://www.msn.com/en-us/news/us/straight-pride-parade-in-boston-draws-counterprotesters/ar-AAGCmhU