Rape

This week, a Texas campaign ad and a Pennsylvania death penalty appeal each illustrate what happens when lawyers lose sight of for what — and whom — they claim to be working.
Wendy Davis, in the final throes of her Texas gubernatorial race against Attorney General Greg Abbott, launched a controversial campaign ad a few days ago. The ad accuses Abbott of “siding with a corporation over a rape victim,” spotlighting a 1998 Supreme Court of Texas case brought by a woman seeking damages from a vacuum manufacturer after a door-to-door salesman of the vacuums allegedly raped her in her home. A background check should have revealed that the man had a criminal history. Abbott was then a justice on the Texas court. He dissented from the majority’s decision in favor of the woman. Davis’s ad ignited heated debate, with even her supporters questioning the propriety of the ad. Abbott’s campaign called the ad “despicable.”

Meanwhile, on the other side of the country, the United States Supreme Court on Monday issued a highly unusual order in a Pennsylvania death penalty case. The Court asked the Pennsylvania Supreme Court Disciplinary Board to investigate and take appropriate actions against Marc Bookman, an attorney who filed a petition for review of Michael Eric Ballard’s death sentence. Ballard slaughtered four people in 2010: his former girlfriend, her father, her grandfather, and a neighbor who tried to help the family when he heard screams coming from the home. Ballard was sentenced to death in 2011. In November 2013, the Pennsylvania Supreme Court upheld the sentence. On June 23 of this year, SCOTUS denied Bookman’s petition to review Ballard’s case, but the Court then ordered Bookman to file additional responses about his relationship to Ballard. Apparently not satisfied by Bookman’s replies, the Court referred the case to the state disciplinary authority.

So, what’s the problem in either of these situations? Why the controversy? And what do they have in common?

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As a law professor, if a judge issues a ruling that you don’t entirely embrace, there’s a couple ways to deal with it. You could limit yourself to carefully explaining your well-thought-out objections to the judge’s reasoning. Or you could spice up your arguments by baselessly asserting that state judges who went to “non-elite” schools are just biased against smart people like you.

This guy opted for the latter.

Last week I got denounced for disrespecting state judges and I didn’t even say they weren’t competent. So to all the bar associations out there, if you want to flex your outrage, let me offer this law professor as the real target….

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* Have you heard that Staci invited Justice Ginsburg to her wedding? [TIME]

* The Fourth Circuit welcomes Virginia to the fold of marriage equality. [National Law Journal]

* What might be the biggest insider trading case ever hinges on Greenberg Traurig. [New York Post]

* Most exciting of all is that we may never need to hear the depressing “copyright-free” Happy Birthday song ever again. [boingboing]

* With all the fire-breathing over the humanitarian crisis at the Mexican border, Texas Judge Clay Jenkins stands out for being reasonable. “I don’t feel like we have to solve the border crisis for a terrified child to be shown some compassion.” Why don’t we hear about more people like Judge Jenkins? This article suggests there’s a deeper problem with the media. [Dallas Observer]

* I’ve been beating the drum that the Obamacare cases aren’t bound for SCOTUS because the D.C. Circuit will reverse Halbig en banc. The contrary view is that the Supreme Court may not let the lack of a real circuit split stand in its way. [Constitutional Accountability Center]

* Outrage over the government’s school lunch health standards have Republicans fighting back at the state level. Remember, we need fatass kids because… freedom! [National Journal]

* The Second Circuit approved antibiotics in animal feed for animals that aren’t even sick. Enjoy your superbugs! [Kitchenette / Jezebel]

* Judge allegedly fell asleep during a child rape case. It’s not like it’s an important case or anything. [Gawker]

* Gaming the rankings — not just for law schools any more. [The Kansas City Star]

* Karen Mantler can’t afford her lawyer. And she’s singing about it. After the jump…. [WNYC Spinning On Air]

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* The legal price of adultery has apparently gone down. That’s good news if you’re trying to keep your motorcycle. [Verdict]

* The title is “Apply to Law School Now!” No. Seriously, don’t. [Slate]

* Professor David Bernstein says of Gawker: “So you can see how the headline is false on multiple levels but it certainly provides clickbait for Gawker.” The initial story Bernstein wrote kicking this off was: “YOU are a rapist; yes, YOU!” But, yeah all caps and exclamation points is in NO WAY click-baiting (oh, and it was also hyperbole on many levels). [The Volokh Conspiracy / Washington Post]

* Barry Scheck was brought on as an expert to review the conviction that formed the subject of Capturing the Friedmans (affiliate link). Let’s just say he’s brought a different angle to it than the D.A.’s internal review. [WiseLaw NY]

* Federal judge nixes the infamous “no-fly list” for denying due process. Looks like a certain judge is going to have a hard time leaving PDX next time. [The Oregonian]

* If you’ve long feared injury from flying foodstuffs at baseball games, worry no more. [ABA Journal]

* Gifts for the Homeless is hosting a Battle of the Law Firm Bands in Washington, D.C. tomorrow. Be there or be square. [Crowdrise]

* The importance of firm toilets. [Legal Cheek]

* JFK University is holding “Saturday Law School” at a shopping mall. They’ll be down by the “Macy’s and California Pizza Kitchen.” [Pleasanton Weekly]

* Professor David Bernstein from GMU Law explains how sex works. Basically, unless you’re dealing with prostitutes, the proper way to deal with women is to just stick it in and see what happens. [Gawker]

* “Noticing that different people look differently = innate human observation a little girl can do. Ascribing vastly different levels of trustworthiness based on skin color = police work.” [ATL Redline]

* Michelle MacDonald, the GOP nominee for Minnesota Supreme Court, has a pending DWI and an old contempt arrest, which she blows off with the line, “You can play foosball in the court when a judge isn’t there.” Picking real winners there, Minnesota. [Politics in Minnesota]

* Cocaine gave this lawyer 9 lives. [Missouri Lawyers Weekly (sub. req.]

* Mike Rowe decides not to take a lawyer’s advice. [IJ Review]

* The Supreme Court was pretty good to the environment yesterday. Something must have been wrong. [Grist]

Sanctimonious attorneys bemoan the decline of civility in the legal practice. The “shark” mentality has eroded the quiet dignity of the second oldest profession (someone had to represent the first prostitute at her arraignment). It’s all a bit overblown — a callback to a halcyon time that never quite was.

Still, there’s something to be said for the fact that Clarence Darrow was never quoted telling William Jennings Bryant “[Bleep] With Me And You Will Have A Huge [Bleep]hole.” I mean, unless I missed that part of the transcript.

And now comes another attorney accused of threatening to violate someone in a most uncomfortable way. Except this time it wasn’t in a one-on-one conversation, but for all the world to see on Facebook….

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Ed. note: Above the Law will not be publishing on Monday, May 26, in observance of the Memorial Day holiday.

* Who cleans up after Godzilla rolls into town? I figure it’s Damage Control. [The Legal Geeks]

* So we all know University of Texas Law admits politically-connected students with bad grades and scores. But did you know they let in someone with a 128 on the LSAT? ONE. TWENTY. EIGHT. [Watchdog.org]

* Do we even need the Supreme Court? Well, that’s one way to get RBG to retire. [Huffington Post]

* Seriously, the Boston Public School system is eliminating its history department. [Lawyers, Guns & Money]

* Yesterday I talked about a devastating takedown of the latest National Review article contending that sexual assault is no big deal. Perhaps I crowned a champion too soon, because this is an even better whipping of that article. [Concurring Opinions]

* Wait, ID laws ultimately suppress voter turnout? What a surprise! [Election Law Blog]

* The last word in the death penalty debate after the jump… [The Onion]

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* “Mr. Owl, how many permits do you need to complete a simple LNG export transaction?” “Well, let’s see… A-one. A-two-hoo. A-three. Three.” [Breaking Energy]

* Defamation laws in Europe are way out of whack. For example when gorgeous model Anara Atanes took to Twitter to rip the manager of France’s World Cup team for leaving her boyfriend at home, he sued her. And he might win. [IT-Lex]

* Tips for getting over feeling like an imposter. Surprised drinking isn’t on there. [Corporette]

* “The Parties Do Not Need a Judge; They Need a Rather Stern Kindergarten Teacher” [Lowering the Bar]

* An interesting question: with judges of all political philosophies striking down gay marriage bans across the country, won’t there be some judge who bucks the trend? [Constitutional Accountability Center]

* A.J. Delgado, like many conservative activists, became a lawyer before realizing that making warrantless and patently offensive statements on TV is a viable career. And you don’t need to bill hourly. Her new article on how rape is a figment of feminists’ imagination is appalling. This article kicks the hell out of it. [Slate]

* The parade of businesses suing over online reviews continues. [Oregonian]

I used to watch a lot of televised golf. The Masters, the U.S. Open, the twee British one, that other last one. All the big tournaments, I watched. And I watched because Tiger Woods laid waste to an entire generation of golfers. Previously, golf had been an impenetrable bore to me. I was aware of who the best golfers were and I was also aware that every time I tuned in, they probably weren’t going to win. Golf was random like that, too difficult a sport for one man to dominate. Nicklaus had been the previous generational talent, but even his dominance meant that he won well less than half the tournaments he entered. Something inside of me hated this.

I don’t watch golf as much anymore because it’s reverted back to its random, boring self. Who wins this week will be a total crapshoot. Crapshoot, by the way, was an ancient sport that pit one white guy versus another white guy and each white guy had to defecate into a small white hole hundreds of yards away from his anus. Crapshoot. It was like golf and it was totally impossible to play and/or watch. Anyway.

I mention all of this because crime in the sports world has often resembled Tiger-less golf in its randomness. There has never been any way to predict who would rape whom and who would murder whom else. Total crapshoot. This week has brought us a bit of a referendum on this topic with one athlete dominating his field while another preaches randomness.

In one corner, Aaron Hernandez, who am become death, destroyer of worlds. In the other, Darren Sharper…

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UPDATE (5/17/2014, 6:00 p.m.): This piece proceeds on the premise that “Lisbeth” (the woman on whose behalf the fundraiser and Protecting Lisbeth Facebook page were created) and author of the Thought Catalog essay and Protecting Lisbeth blog are the same person. Though the parties involved currently remain anonymous or pseudonymous, this premise appears to be false. I regret any error or confusion.

In an essay for Thought Catalog called “I Had an Affair with My Hero, A Philosopher Who’s Famous For Being ‘Moral,’” an anonymous graduate student describes her soured romance with a prominent professor from another university and how she learned that he initially hid his history of pursuing other young women. Shortly thereafter, her friend started a campaign to crowd-fund expenses for legal action. They created the pseudonym “Lisbeth” for the essay’s author. Under the heading “Help us sue the school protecting a known rapist,” the fundraiser’s description now reads, “I’m Emma Sloan, Yale 2010. My dear friend is suing the professor who tried to rape her and the university for knowingly protecting him. Thanks to donations from our generous supporters, she can afford the $7000 retainer for a forensic psychiatrist.”

The Chronicle of Higher Education reported on the case. Many within the academic community have joined the fray, whether to champion Lisbeth’s cause, attach it to broader gender equality concerns, express doubts, or simply gossip.

Title IX obligates schools that receive federal funds to address sexual violence or harassment on their campuses. To pursue a grievance or official complaint, the person need not herself be the victim of the alleged discrimination. Someone who claims to be the actual victim of a Title IX violation has the additional right to pursue her claim in private litigation against the university. If she can show that the school was deliberately indifferent despite actual knowledge of the misconduct, she can win injunctive relief or money damages for her injuries. Yale’s Title IX coordinator, Stephanie Spangler, is investigating Lisbeth’s claims.

So, where exactly did this professor’s alleged conduct pass from merely smarmy to worthy of legal sanction?

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