Archive for the ‘The Big Picture’ Category

No Heroes, Just Circumstances in Wikileaks Struggles

I still maintain that when governments use official secrecy to evade accountability to their citizens, we need the services of leakers. But governmental coverups are one thing and (as I said eight years ago) legitimate governmental secrets another, and (as I now add) private secrets yet another. Yet at Wikileaks, they all nowadays seem to be processed in the same way.

“I Think Every Other Lawyer In Here Knows”

In most instances, both those raised in the Committee and those discussed among the commentariat, Trump’s former lawyer Michael Cohen seems to have avoided unambiguously unethical behavior.

Running with the Hare and Hunting with the Hounds

Were all our behavior and thoughts held up to a scrutiny similar to that being focused on Governor Northam, most of us would probably turn out to have spent some time with hares and some time with hounds in one hunt or another, at one time or another. Few of us are so internally consistent that our former behavior matched our ideals at the time, and even fewer whose former behavior perfectly matches our present ideals. What matters more is how injurious the inconsistency is, and also how current, because most of us grow wiser and kinder as experience and exposure to the world shape our views.

Shedding the Bubble

There has been much concern raised by a recent instance in which a curbside beggar was a stalking horse for a mugger who stabbed and killed a would-be donor. In the wake of that incident, more than one person I’ve chatted with has cited it as a reason never to make donations out the car window. To which my response is: It’s already established that you’re a risk-taker; you’re behind the wheel. Well, your odds of perishing in a traffic accident are 1 in 17,625.   Your odds of dying by assault with a sharp object are a paltry 1 in 138,834.

The Exemplary Ms. Margolin

There will always be some kind of sacrifice involved in any effort to wield our profession for the common good. If, like Bessie Margolin, one is persistent and lucky, that sacrifice may well pay off.

Every One of Them White

Most of us genuinely reject bigotry. The imagination’s fixation on worlds without nonwhites is mostly fueled by the pursuit of comfort, not by hatred. Our residential and educational practices betray unconscious and unacknowledged comfort zones. The Costco “holiday village” in which every merry-maker is white demonstrates exactly what makes many of us comfortable. We white people need to break ourselves of those mental comfort zones, though, because we are powerful, and our dreams greatly affect what happens in real life.

The New Campus Harassment Hearing Regulations: A First Look

No one is in favor of sexual violence, but due process matters too, and right now it tends to be dangerously inadequate. Pre-hearing discovery of evidence is often forbidden. Often the accused cannot confront or cross-examine the accuser. Academic tribunals are generally comprised of teachers and/or students without legal credentials, in a setting where proper application of legal rules is critical.  Because lawyers are generally barred from advocating on behalf of either an accuser or an accused, there may be no properly trained voice in the room when legal questions arise. The Obama administration’s directive on how federally-funded educational institutions generally should handle allegations of sexual harassment or assault exacerbated these problems by prescribing an inadequate standard of proof and mandating pre-hearing treatment of the accused that basically presupposed his guilt. It also specifically approved of denying the accused the right to cross-examine an accuser because it “may be traumatic or intimidating,” never mind that it may also deprive the dishonestly accused of the only path to showing the tribunal that the accuser is lying. While I am not a fan of Betsy DeVos, the current Secretary of Education, I did applaud her decision a year ago to rescind that guidance. At the time, DeVos stated that the Department would in due course issue new regulations. The New York Times has now seen those regulations in draft form, and its early report on them is mostly encouraging.

Harassers as Comeback Kids?

Unless we are prepared to deny all abusers a second act – and I doubt that we as a society are prepared to do anything so categorical – we are going to have to think about what second acts may look like. These are some of my thoughts.

Living With What Lies Between Us

The assurance we should each have by now that we are not going to convert each other should also be key to our coexistence. If only because of our shared past, I do not want to lose our connection to each other, and I sense that you do not want to lose it either, no matter how angry we make each other.

Recalled for the Right Reasons

Are we really at a point where a judge operating within the proper bounds of his discretion is to be removed for doing so? I would argue that it is precisely the fact that the judge was operating within his discretion that made this particular recall appropriate. It is often within the margins of discretion that the most important decisions of a judge fall. And there exist few mechanisms to correct such decisions when they are wrong.