Alito’s dissent from the Supreme Court’s recent benchslapping of Trump is a preview of the kind of subservient drivel we will see more often if a majority of SCOTUS persists in placing country above king. I predict Trump will eventually declare he is bound only by the decisions of Alito and Thomas…

Here’s a real form someone I know who makes more than minimum wage was recently asked by their employer to sign:

I understand that for calculation of overtime, my contractual hour rate with Employer is set at minimum wage, which is the wage that New Jersey Department of Labor sets, or the Federal minimum wage, whichever is higher. This means that if I clock hours in excess of 40 in a one week pay period, that my pay should be equal to/or greater than 40 hours at minimum wage and overtime at 1.5 times the minimum wage.

Am I missing something, or is this what us fancy lawyers call… illegal af?

Oral Argument for Hachette Book Group, Inc. v. Internet Archive – CourtListener.com

This oral argument before the 2nd Circuit about the legality of Internet Archive’s controlled digital lending program is a great listen, regardless of what side you support.

Find all the litigation filings here.

Edit: for my convenience as well as yours, I’ve embedded the audio below. Let me know if you have trouble playing it.

I’m in a weird headspace about the Supreme Court’s right wing wearing their partiality on their sleeves. I’m supposed to be mad about it, like lots of liberals. But I think it’s a kind of honesty and, in its hubris, exposes the vulnerabilities of the right’s more longterm jurisprudential projects.

(Takes a deep breath, hopes people read all the way through, or at least halfway through…)

Obviously, I’m talking about the most recent example, reported by Jodi Kantor at The New York Times:

Judicial experts said in interviews that the flag was a clear violation of ethics rules, which seek to avoid even the appearance of bias, and could sow doubt about Justice Alito’s impartiality in cases related to the election and the Capitol riot.

There have been several developments since I first started writing this post in mid-May when the upside flag story first broke. None of those developments changes my perspective. In fact, they all reinforce it. Anyway, to catch up and stay caught up on the Alito/flags stuff and all else SCOTUS, I recommend reading the work of John Fritze at CNN, Chris Geidner’s Law Dork, and the SCOTUS team at Slate.

I’m not as worked up about this one because it doesn’t involve direct or indirect financial incentives, or a spouse inserting themselves, however superfluously, into schemes resembling a coup. And it shouldn’t change the assumptions of anyone who has been paying attention to Alito for the past many years. Yes, it’s infuriating and concerning and beyond anything I would hope for our highest court. But it’s not a surprise.

Of course, I don’t believe he didn’t know about the flag hanging outside his house, or its meaning as a sign of solidarity with “stop the steal” whackos, and of course, blaming your spouse in the national press is… a choice, and of course “my neighbors were teasing me first” isn’t an appropriate reaction for a Supreme Court justice to the political speech of his neighbors, however performative and counterproductive that speech may be.

But the handwringing over this flag episode is based on the idea that anyone paying attention could take seriously the proposition that Alito lacks bias or could possibly be impartial in cases related to the election and the Capitol riot, or really any issue of importance to, eh, people of his political ilk. Impartial people, and people worried about at least appearing impartial, do not give the keynote speech at Federalist Society conventions.

(Nor do they inveigh wholeheartedly against a Constitution protective of the rights of all Americans, but that is beyond the scope of this post…)

Usually, this is where I would admit my own outsize portion of cynicism, and caution Dear Readers to consider this screed in that light, but this time I do the opposite: the fact is, the suggestion that Alito has any impartiality to preserve is, at this point, blatantly dishonest or an inadvertent admission of naïveté. As just one recent example, he openly treats the First Amendment as if it applies to conduct by private companies moderating their users' speech (it does not) and then has to be called out on it by Justice Kavanaugh.

Next, I’m going to say something (else?) people may not like, and that I may regret someday:

I actually appreciate Alito’s intellectual honesty, though query whether it’s deliberate or the result of too much rhetorical laziness to be more insidious about his intentions. Because there are more measured, insidious ways to drag the nation backward, under the guise of faith to the Constitution qua “history and tradition”, as close as posible to a time when people who looked like Alito, and me, for that matter, held all the power, and there was no immediate risk of having to share it.

History and tradition, indeed.

🔗 Some legal malpractice cases are bogus, and many are defensible. But some are, well, not, which is apparently how State Bar Court Judge Yvette D. Roland in California viewed the misconduct proceedings against John Eastman, the now-disbarred architect of the 2020 fake electors nonsense. (PDF)

Chris Geidner at Law Dork has the best explanation of why the 5th Circuit’s jurisprudence has become so, to use a legal term of art, whacky:

At the end of the day, there are essentially three groups of active judges on the Fifth Circuit: There are “mad vibes” judges, legally conservative judges, and legally moderate (or more left) judges.

Geidner is so insightful and prolific that, and I mean this as a high compliment, it irritates me a little.

Dear Lawyers Still Manually Numbering Paragraphs:

Stop it.

Here’s a tutorial:

1. Place your cursor where you intend to begin the numbered section of your pleading.
2. Click the numbered list button in your word processor.
3. Repent, and feel your soul become lighter.

Yours, scoldingly,

Joe

⚖️ From a report at Law Dork by its proprietor, Chris Geidner:

Starr issued an “administrative stay” on Thursday that will last for 30 days while he considers the airline’s request for a stay of the order pending its appeal to the U.S. Court of Appeals for the Fifth Circuit.

Judge Starr is having a good think about whether he’s willing to endure the near-certain reversal, and the more-likely-than-not searing bench slap that will accompany it…

Some notable passages from today’s 3rd Circuit opinion in Fields v. City of Philadelphia, holding that there is a First Amendment right to record police officers in public, written by Circuit Judge Thomas L. Ambro:

the District Court focused on whether Plaintiffs had an expressive intent, such as a desire to disseminate the recordings, or to use them to criticize the police, at the moment when they recorded or attempted to record police activity. [...] This reasoning ignores that the value of the recordings may not be immediately obvious, and only after review of them does their worth become apparent. The First Amendment protects actual photos, videos, and recordings, see Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 790 (2011), and for this protection to have meaning the Amendment must also protect the act of creating that material.

and

To record what there is the right for the eye to see or the ear to hear corroborates or lays aside subjective impressions for objective facts. Hence to record is to see and hear more accurately. Recordings also facilitate discussion because of the ease in which they can be widely distributed via different forms of media. Accordingly, recording police activity in public falls squarely within the First Amendment right of access to information. As no doubt the press has this right, so does the public.

but

We do not say that all recording is protected or desirable. The right to record police is not absolute. “[I]t is subject to reasonable time, place, and manner restrictions.” Kelly, 622 F.3d at 262; see Whiteland Woods, L.P. v. Twp. of W. Whiteland, 193 F.3d 177, 183 (3d Cir. 1999). But in public places these restrictions are restrained.

and

Having decided the existence of this First Amendment right, we now turn to whether the officers are entitled to qualified immunity. We conclude they are.

That last bit is primarily, though not solely, because the 3rd Circuit had not decided such a case as this yet when the incidents in question occurred. Now that the existence of the right to record police in public is “clearly established,” the next time a similar case shows up in court, qualified immunity may be off the table. Hopefully that potential liability will discourage Philadelphia officers from retaliating in the future.

Related Links

• The U.S. District Court for the Eastern District of Pennsylvania's 2016 opinion (overturned by this one)
• ACLU page
• Cato Institute page
• Electronic Frontier Foundation page
• DOJ brief in support of plaintiffs (PDF)

I’ve included a link to the PDF, and embedded the opinion, below.

https://assets.documentcloud.org/documents/3890443/Document.pdf

[scribd id=353175253 key=key-wgEldZXf3JOlCRTha0pe mode=scroll]

Court Junkie podcast episode on Eric Frein trial

I was a law clerk when the murder of Corporal Bryon Dickson and near-murder of Trooper Alex Douglass sparked a weeks-long manhunt that resulted in the capture, trial and conviction of Eric Matthew Frein. I won’t talk about anything I did with regard to the case (which was very little anyway), but I was living in the county seat of Milford, PA at the time and I can tell you the tragedy visibly saddened and infuriated several communities.

This link is to a fascinating episode of the Court Junkie Podcast which details the events in sensitive but vivid detail.

A disturbing sex trend called ‘stealthing’ is on the rise

‘Stealthing’ is the non-consensual removal a condom during sex. Alexandra Brodsky’s article in the Columbia Journal of Gender and Law [PDF] is powerful, nuanced and well-presented.

And I, too, can be powerful, nuanced, and well-presented when necessary. But this won’t be one of those times, so I want to make a language warning here for family and friends sensitive to vulgarities…

Men who ‘stealth’ are pieces of shit. Victims are left trying to equate it with rape when the perpetrators should be required to show why it is not. Here’s a choice quote from the USA Today article linked above:

The study also pointed to online forums where men often brag about removing a condom during sex or offer advice on how to get away with it. Some of the men in the forum have even suggested it's their right to, "spread one's seed".

Such men should be sterilized. It is the State’s right to protect women from these cowards whose masculinity is tenuous and insecure that they are too scared to attempt a real relationship in which consent for unprotected sex is freely given at some point.

Prosecuted by her legal counterpart: ‘It destroyed my life in so many ways’

This DA should resign, now:

At least six defense attorneys and investigators say they faced threats of criminal charges by the Orleans parish district attorney for doing their jobs, the Guardian has found. Since DA Leon Cannizzaro took office in 2009, the attorneys have been accused of kidnapping, impersonation and witness tampering in the course of defending their clients. Each case has failed to stand up to scrutiny: all charges that have been brought were eventually dropped or overturned.

Disgusting.

Anderson Cooper did a great segment on 60 Minutes about how an underfunded, understaffed and overworked New Orleans Public Defender’s Office has started refusing felony cases. Chief PD Derwyn Bunton says he and his 52 attorneys cannot possibly represent the 20,000 clients they get annually in a way that comports with the ethical standards to which all attorneys are held, and to which criminal defendants are Constitutionally entitled.

It’s a divisive choice, but I think it’s the right one. Public Defenders Offices are notoriously underfunded all over the country, seen as low-hanging fruit when a politician or bureaucrat needs to cut budgets. But they should be among the last budgets cut. Many criminal defendants are guilty, and many are not. Because of that, all are entitled to the same Constitutionally mandated set of rights, chief among them being the right to representation.

No, public defenders don’t need and shouldn’t get astronomical budgets. But they should not have to divide 20,000 cases between 52 lawyers, either. That’s 384 cases per lawyer per year. Would you want to share your public defender with 383 other people? Would you feel confident that you will get your Constitutional rights to competent representation and a fair trial?

Didn’t think so.

A month after dismissing federal prosecutors, Justice Department does not have any U.S. attorneys in place

Attorney General Jeff Sessions is a lot of things. But so far, none of those things include “good at being Attorney General.”

Would you hire a builder who, when he finds out you want a new house at some point down the road, just knocks down the one you have now, without thinking about where you’ll live until the new one is ready?

If you would, then Jeff Sessions is your man. Because he knocked down the Justice Department before even making the vague outline of a plan to put a new one in place.

Oh, and just in case you forgot, he’s a racist son of a bitch, too.

In Travis County custody case, jury will search for real Alex Jones

Jonathan Tilove reports this story for American-Statesman:

Beginning Monday, a jury will be selected at the Travis County Courthouse that in the next two weeks will be asked to sort out whether there is a difference between the public and private Alex Jones, and whether, when it comes to his fitness as a parent, it matters.

Kelly Jones' attorney, Bobby Newman, is engaged in some quality tactical litigation:

[Judge] Naranjo, meanwhile, said she had never seen or heard Jones on Infowars until Wednesday’s hearing, when Kelly Jones’ legal team started previewing Infowars videos it would like to play for the jury.

The first was a clip from a July 2015 broadcast in which Jones had his son, then 12, on to play the latest of some 15 or 20 videos he had made with the help of members of the Infowars team who, Jones said, had “taken him under their wing” during summer days spent at the South Austin studio between stints at tennis and Christian camps.

“He is undoubtedly cut out for this, and I intend for him to eclipse what I’ve done. He’s a way greater person than I was at 12,” said Jones, turning to his son. “I love you so much, and I didn’t mean to get you up here, sweetheart, and tell people how much I love you, but you’re so handsome, and you’re a good little knight who’s going to grow up, I know, to be a great fighter against the enemy.”

“So far this looks like good stuff,” [Alex Jones' Attorney Randall] Wilhite said. Naranjo OK’d it for viewing by the jury.

But Bobby Newman, the attorney for Kelly Jones guiding the court through the Infowars clips, was laying the groundwork for the argument that there is no separation between Alex Jones, father, and Alex Jones, Infowarrior.

It’s a solid argument, and Alex Jones is in a bit of a bind here, forced to choose between maintaining the authenticity of a lunatic his inexplicably massive fanbase worships and sacrificing that authenticity in an attempt to hang onto custody of his young children.

Unenforceable ban on atheists holding public office still on the books in 8 states

This is an old story but after reading an article about a study [PDF] suggesting there are many atheists who don’t want to admit they’re atheists, I remembered reading about how a country which prides itself as a world leader in personal freedom still has laws banning atheists from public service.

My memory was correct, and that country is the United States. Oyez, which publishes Supreme Court resources including audio of oral arguments, has a great page on the 1960 case which declared such laws unconstitutional (as if anyone should have needed the Supreme Court to tell them that…).

In Torcaso v. Watkins, the Court held unanimously that, quoting Oyez:

such a requirement places the state of Maryland firmly on the side of those people who believe in God and are willing to state their belief. With this requirement, Maryland effectively aids religions that profess a belief in God at the expense of any other form of belief or disbelief. The First Amendment expressly prohibits a state from taking this position. Although the candidate has the option of not pursuing public office rather than declaring a belief in God, the test is an unconstitutional encroachment on the freedom of religion.

So these laws aren’t enforceable, but the fact that they’re still on the books is an affront to the Constitution and should embarrass any lawmaker who claims to respect that Constitution.

Mentally incompetent Utah man dies in hospital after jail episode left him paralyzed

Is this the kind of country where we let mental illness go untreated to the point where someone in jail for fighting with a couple of cops is effectively allowed to commit suicide, while on suicide watch?

Jail video shows a naked Hall with disheveled long hair and beard running headfirst into a wall three times before climbing up on the sink and falling headfirst to the floor. At the time, Hall had been waiting five months for a bed and treatment at the Utah State Hospital. Utah designates 100 beds at the hospital for inmate mental health treatment, but once the beds are occupied, additional defendants await openings from jail cells.

And this:

The Utah LegislatureThe Utah Legislature recently set aside $3 million in an effort to resolve a federal lawsuit filed by the Salt Lake City-based Disability Law Center, which alleges mentally ill defendants are not provided a speedy trial and suffer in jail without treatment because the state does not provide enough hospital beds and specialists to treat them.

Why couldn’t they set aside $3 million before they were sued, to solve the problem before anyone died?

Senate Republicans Vote To Gut Internet Privacy

Hamza Shaban, writing for BuzzFeed:

The Senate voted Thursday to make it easier for internet service providers to share sensitive information about their customers, a first step in overturning landmark privacy rules that consumer advocates and Democratic lawmakers view as crucial protections in the digital age. The vote was passed along party lines, 50-48, with all but two Republicans voting in favor of the repeal and every Democrat voting against it. Two Republican Senators did not vote.

Disgusting. This is what buying policy looks like, folks. Kate Tummarello of the Electronic Frontier Foundation also did a write-up, and included a particularly scary piece of information:

Republicans in the Senate just voted 50-48 (with two absent votes) to approve a Congressional Review Action resolution from Sen. Jeff Flake which—if it makes it through the House—would not only roll back the FCC’s rules but also prevent the FCC from writing similar rules in the future.

(emphasis added)

This may not seem like a big deal, but it very much is, especially in an age where ISPs and the data brokers to whom they sell your information are frequently hacked.

More shameful behavior from Senate Republicans whose retirement can’t possibly come soon enough.

Prenda Law “copyright trolls” Steele and Hansmeier arrested

Justice.

FCC abides by GOP request, deletes everything from meeting agenda

Wheeler's attempt to impose new set-top box rules that help consumers avoid paying cable box rental fees may also be doomed. Consumer advocacy group Public Knowledge sent a letter to Trump today urging him to side with consumers instead of "cable and Hollywood lobbyists" on the issue.

Jesus.

NJ law would require pet stores sell only rescue animals

John C. Ensslin reports for The Record:

New pet stores in New Jersey would be allowed to sell only cats and dogs obtained from shelters, pounds and animal rescue organization under a bill the state Senate passed Thursday.

The bill still has to go to the Assembly and will face industry opposition there, but it’s a great step forward. Find more information about the bill here. You can read an embedded PDF of the Senate version below this post.

Enough with the conspiracy theories about Justice Scalia’s death

I read this earlier today:

"As a former homicide commander, I am stunned that no autopsy was ordered for Justice Scalia," William O. Ritchie wrote in a Facebook post on Sunday, according to reports. After seeking to cast doubt on the conclusion of the deputy U.S. marshals who responded to a call from the ranch, he added, "My gut tells me there is something fishy going on in Texas."

My gut tells me there is some fishing for attention going on in the head of the former D.C. police officer who said that.

Why?

Let’s consider this:

1. Why?
2. Why??
3. Why???

Was it a Liberal conspiracy to get President Obama one more lasting decision about the future of United States legal policy?

Was it a “Conservative” conspiracy to give Congressional Republicans and presidential candidates something “meaningful” to “stand up” to Obama about?

Was it Ancient Aliens?

There was no autopsy, they say! There was a pillow above his head, they say! The President was told long before anyone else, they say (as if the President doesn’t get most of the news before everyone else…)!

Conspiracy theorists demand: “What is your proof Scalia wasn’t murdered?”

These stupid theories remind me of one of the frequent arguments levied against atheists: “What is your proof that there is no god??”

Who proved god exists in the first place?

Pillows

Many articles note the ranch owner who found Scalia said there was a pillow above his head, and many conspiracy theorists point to this as suspicious. I sleep with a pillow over my head every night, and another one underneath it, using the two to drown out the sounds of an increasingly conspiratorial world so I can maintain my slumber all night long.

No conspiracy. Just a light sleeper.

Politics aside

I disagreed with much of Justice Scalia’s Supreme Court jurisprudence but his presence on the Court was invaluable to the development of United States law and the debates from which it springs.

He articulated his positions in such a way that I (almost always) respected them, even when I found it hard to believe someone so intelligent was seriously asserting them. He was rarely conclusory, giving reasons for his views, and whether you agreed with those reasons or not, that’s more than most politicians (and lawyers) usually do.

His death is a loss, but there are few more certain paths to some sort of immortality than thirty years on the Supreme Court of the United States.

Photo: Then-nominee Antonin Scalia, right, with President Ronald Reagan in 1986, via Wikipedia

Retiring founder wants $1M for his SCOTUS audio archive

Oyez is a robust archive of audio recordings and other information spanning much of the history of the Supreme Court of the United States. Its founder Chicago-Kent College of Law Professor Jerry Goldman is looking for a buyer as he nears retirement. Jess Bravin reports at the Wall Street Journal:

The sticking point, however, isn’t the annual budget; Harvard Law School, for one, has offered to pick up the operating cost. But Mr. Goldman also wants to be paid for the sweat he’s put into his baby–or at least the intellectual property it represents—something he estimates is worth well over $1 million.

Here comes an entitled opinion right here: A decision to somehow “close down” Oyez if no one is willing to put up six or seven figures for it would be morally bankrupt and stain Professor Goldman’s otherwise admirable legacy.

U.S. DOT paving way for self-driving cars

Chris Ziegler reports at The Verge:

DOT and NHTSA will develop the new tools necessary for this new era of vehicle safety and mobility, and will seek new authorities when they are necessary to ensure that fully autonomous vehicles, including those designed without a human driver in mind, are deployable in large numbers when demonstrated to provide an equivalent or higher level of safety than is now available.

This is far more progressive than I expected the federal government to be on the autonomous transportation vehicle front, primarily for safety reasons. It’s good news.

Aside: DOT or Klingons?

The featured image above is a photo of the U.S. DOT headquarters building in Washington, D.C. I first looked at the DOT logo as a potential image for this post, but it looked too much like the Klingon symbol:

[gallery type=“square” size=“medium” link=“none” columns=“2” ids=“2289,2290”]

Huh. Weird.

More than 13,000 untested rape kits in Florida

This bit sent shivers down my spine:

After Detroit processed a backlog of 11,000 rape kits, police identified more than 100 serial rape suspects.

Why shivers? Because it instantly prompts me to wonder how many women were raped who wouldn’t have been raped if these kits were more efficiently processed.