Category Archives: Law: Everything Else

Working On It!

Posted on July 26, 2022 by Michael Froomkin

Absentee ballots are out, so it’s time for my guide to judicial elections. I’ve been fighting a (non-COVID!) cold, so I’m behind schedule. And I probably need to cut my screed on all the reasons you should vote line 99 to retain Judge Seraphin….most of which are about all the reasons you should NOT (please please please don’t) vote for his unfit challenger, political animal Renier Diaz de la Portilla.

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Playing to Canadian Stereotypes?

Posted on February 23, 2022 by Michael Froomkin

There’s been a lot in the news about the recent so-called ‘trucker’ protests in Canada. The whole thing didn’t sound very Canadian, so it was unsurprising to learn that relatively few actual truckers were involved and a majority of the bankroll for the folks blocking traffic came from U.S. sources.

And this gem from the NYT’s Canada Ends Its Freeze on Hundreds of Accounts Tied to Protests definitely caught my eye:

The authorities charged Ms. Lich on Thursday with counseling to commit mischief, a serious offense under Canadian criminal law. [emphasis added]

That sounds more like the Canada I know or imagine!

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Have Your Contract Forms Changed With the Times?

Posted on December 16, 2021 by Michael Froomkin

I was reading a long and complicated contract that I was thinking of signing (details are NDA’d, so don’t ask), and I came upon this piece of contemporary drafting:

Whenever the context of this Agreement permits, the masculine gender shall include the feminine and neuter genders, and reference to singular or plural shall be interchangeable with the other.

My first thought was this showed that the times are indeed changing.

My second thought was that if I was a contract drafter (in some evil alternate universe; I’m much better at litigation!) I’d want to put this into my standard forms.

And my third thought was that if I was reviewing a contract for something important and it didn’t have a clause like this, I’d ask when the form was last updated. Stale forms can be dangerous…

Posted in Law: Everything Else | 2 Comments

America Needs One More Jail

Posted on October 20, 2021 by Michael Froomkin

In general, I’m of the view that we have too many jails and prisons (and far too many private prisons!), and that this is an industry, or social practice if you prefer, where supply tends to create demand for reasons economic and social.

But I’ve learned that we are short of one jail we need. In today’s New York Times explainer on executive privilege (a non-constitutional doctrine invented by courts, but don’t get me started), author Charlie Savage has an aside in his explanation of the convoluted and uncertain way in which Congress enforces its finding of contempt by non-cooperating witnesses:

(In theory, lawmakers could also direct the House sergeant-at-arms to arrest recalcitrant witnesses and detain them until the end of its session, but that “inherent contempt” authority is viewed as obsolete; the Capitol has no prison cell and lawmakers have not tried to use this power since 1935.)

So here’s my very modest proposal: Congress should either build its own little jail, or it should contract with a nearby jurisdiction–or a private prison company–to guarantee to hold anyone arrested by the Sergeant at Arms. I doubt they would actually have to use it; rather, having this capacity on tap would provide a much greater in terrorem effect than the current system which requires first that the U.S. Attorney for the District of Columbia take up the case, and second that the court fights over it happen quickly–the latter being highly unlikely.

Surely a contingency contract with a per diem per prisoner if required would be a very minor budget item. Stick it in the reconciliation bill please.

Posted in Law: Everything Else, The Scandals | 1 Comment

Lest We Forget: AG William Barr’s Sad Record

Posted on January 18, 2021 by Michael Froomkin

Marcy Wheeler has the goods:

Among the things Bill Barr did in his second tour as Attorney General were to:

Make speeches arguing that progressive politics were a threat to the nation

Spend months prioritizing the criminalization of Antifa and Black Lives Matter, even as his own department showed that right wing terrorism was a far more serious problem and the Boogaloos were deliberately attempting to launch false flag operations pinned on Antifa

Repeatedly claim mail-in ballots were prone to fraud in defiance of the evidence, a key part of Trump’s later attempts to undermine the outcome of the election

Treat overt threats against a judge from the Proud Boys as a technicality unworthy of a sentencing enhancement

Continue a policy of disciplining, firing, or criminalizing Department personnel who investigated Trump and his associates

Even at a time Barr admitted he was unfamiliar with the evidence — and persistently throughout his tenure — undermine the premise and conduct of the Russian investigation, appointing at least three US Attorneys to undermine the investigation

Dedicate department personnel to chase conspiracy theories spun by Sidney Powell in a failed attempt to undermine a legitimate prosecution

Not only provide Rudy Giuliani direct access to the Department, but (by all appearances) undermine criminal charges against him for influence peddling involving now-sanctioned Russian agents

In short, over an extended period, Bill Barr laid the groundwork for the two-month effort to undermine the election that culminated in a coup attempt. The outcome of Barr’s actions — the disparate treatment by the department of Trump supporters, the empowerment of right wing terrorists, the continued influence of Powell and Rudy — was foreseeable. Nevertheless, Barr persisted with those policies that laid the groundwork for the January 6 insurrection.