An impromptu primer on how to deal with YouTube tosspots.

Listen to Kara Swisher’s interview with Susan Wojcicki (CEO of YouTube). There is a portion regarding rules/codes of conduct/community guidelines. I want to memorialize my thoughts here.

I’m not going to put words in Wojcicki’s mouth, but there’s an interaction where she tries to put contours around what it means to create community guidelines and rules. What she’s talking about, at least as I hear it, is due process. That word is tossed around a lot but it has meaning: namely, that we have a set of rules created before anything happens, process we use to enforce those rules, and we use that process for everybody.

Due process is important because it creates a sense of fair play and justice. This is more important when we’re talking about laws dealing with peoples’ lives and liberties, but it can be just as meaningful in cultivating a sense of community – a community that people buy into and of which they want to be a part.

Businesses that have poor communities often have poor user experiences, so your service better be exclusive or so exceptional that people eat the cost of having a bad experience with others. Tech companies should take note, in my opinion, that people are being offered more alternatives and developing higher expectations in this area, so I wouldn’t hang my hat on riding this out. Get community moderators, folks. /end self-promotion

In law – the “codifying” to which Wojcicki refers – due process can be boiled down to two core components:

  1. Notice – have you told people how they’re supposed to behave before you enforce that standard of behavior?
  2. Hearing – is there an opportunity to make their case to whomever is enforcing that standard of behavior?

When talk about how to enforce a law, we apply the code to a specific set of facts. Let’s make our use case Logan Paul, who I believe is, at best, an irresponsible and juvenile opportunist who needs to grow up and, at worst, an utterly insensitive knuckledragger with no understanding of common decency towards other people.

Nevertheless, he was a user of YouTube and presumably agreed to abide by their Terms of Service (TOS) which outlined an assortment of rules to which he is bound, including a three-strikes rule, which is exactly what it sounds like. Swisher asks (paraphrase): why don’t you just get rid of him? You make the rules, change the rules.

Agreed, but that doesn’t solve our Logan Paul problem, at least not right away. Paul was bound to a set of rules that, in my opinion, exposed a gap in behavioral expectations for the YouTube platform. It behooves YouTube to change the rules, capture this behavior and close the gap.

What it doesn’t mean is that it’s a good idea to retroactively apply this rule. Remember “notice”: you want to tell people before they act what the expectation is. Removing content that is abhorrent without a codified rationale undermines this principle. There are always going to be exceptions such as an imminent and credible threat to a person’s life, or something so grossly vulgar that the better risk calculation is to take it down and eat the cost of dealing with the aftermath. But, these are exceptions, and we don’t make rules based on exceptional behavior. We make rules based on things that are commonplace and easily understood such that most people find it possible to comply with them.

Additionally, we don’t create rules to target a specific person. It would be dubious to create a rule that seems neutral but, in application, only results in the removal of Logan Paul. Sure, it’s Youtube’s prerogative to remove whomever they want, but I’m coming from a place that assumes YouTube wants to (1) create a consistent user experience; (2) brand as a media platform that doesn’t pick favorites, and; (3) provide a cogent rationale to its stakeholders and users such that they don’t come off as frivolous or erratic.

I’m losing steam since I need to prepare for a meeting, but my roadmap would essentially boil down to the following:

  • Do a gap assessment on YouTube’s rules as of the date of the Logan Paul suicide forest controversy. He may have engaged in questionable behavior in the past but this is the clear marker of what crossed the line in such a way as to enter the cultural zeitgeist and create national controversy.
  • Once you’ve discovered the gap, ask yourself if a rule would have captured this. Sometimes the behavior is so extraordinary that you could make a rule but it wouldn’t, in practice, police anything because it was such a one off. Other times it’s behavior that defies codification. This doesn’t preclude policing it, but it does probably mean you need to preserve in your ToS a level of discretion for content moderators (which you should have) and training for those moderators to spot red flags, etc.
  • Amend the ToS as needed. Make Logan Paul and others click “agree” to participate on your not-a-media-service platform.
  • Penalize all users for non-compliance, including Logan Paul should he run afoul after the new ToS have been socialized.

I don’t have much to say about hearings here. This is something that is a lot more important in traditional legal situations. From what I hear, you can appeal after three strikes and so forth and this is, frankly, a marketplace. You have options to go elsewhere even if they’re shitty options, YouTube isn’t a basic human necessity to which you have some inherent claim.

I can spell “Wojcicki” off-hand now. Boom.

Crosspost: Game Theory

This post is largely a response I had to the Double X Gabfest’s latest podcast: “The “ vs. Aziz Ansari” Edition”. I’ve made some additions and corrected spelling/grammatical errors in order to make it read like a stand-alone post. Otherwise it’s effectively the same.

(p.s. I like puns and bad jokes sorry not sorry for the post’s title.)

I break the Ansari encounter into three parts:

  1. Journalism
  2. Law
  3. Information Asymmetry


As an outside observer, i.e., someone who is not a journalist, this piece was unsettling. I found it poorly written, of questionable integrity, and this was in large part due to the fact that it read like a first person piece trying to be a third person expose. I’ve heard — and suspect to be true — that Ansari had very little time to respond. In a piece that is rife with competing views of an ambiguous romantic encounter, this seems especially problematic.

Likewise, the piece honed in on seemingly irrelevant details like the choice of wine as though it was supposed to parallel the troubling consent issues with the sex, and I felt this really diminished what was otherwise a good example of what it means when men and women have misaligned expectations, and the implications of turning all sexual encounters into legalistic vignettes. It felt petty. Grace’s piece could have been exceptionally powerful if it was written anecdotally because it certainly reads anecdotal, though I don’t begrudge her for not wanting to put her real name to it given the Internet culture of SWATing, etc.


My comfort zone is regulatory law, but here I’m attempting to put on both a defense attorney’s hat and prosecutor’s hat. None of this is intended to be sophisticated legal analysis but I can’t, as an attorney, forgo parsing this through a legal lens, especially considering how much we’ve tried to draw legal lines as a substitute for every day judgment and risk calculation (more on that later.)

This is pure conjecture on my part as a non-criminal law attorney, so I’m open to more sophisticated analyses by more practiced colleagues. Anyway, I break the “case” into two discrete parts at Ansari’s apartment:

  1. The time predating Grace’s venture into the bathroom, and;
  2. The part where Grace returns from the bathroom.

I do this because “Part 1” is the most ambiguous. As a prosecutor, I’m sure you could find a myriad of ways this would potentially rise to the threshold of assault, but you very likely wouldn’t charge. Most cases are he said/she said; this is not unique to rape. But we nevertheless have to consider when the only evidence available is effectively testimony, there are very few juries who would look at a reluctant young woman agreeing to go to a young man’s apartment as assault without some more indication that he was making her doe something, or that she explicitly withheld consent. I would personally consider it the sort of thing where a victim would have to go through a re-victimization process of reliving that experience with the higher risk that the accused was not of a truly culpable mind, and all for a jury that would likely acquit. And, for the record, by “culpable state of mind” I mean that this person literally zones in on the mens rea requirements for sexual assault, even considering that most jurisdictions file rape as a general intent crime (this is in the weeds so I won’t dive into it here.) As a defense attorney, for the same reasons as above, I think reasonable doubt would be easy to sow into juror’s minds.

Part 2 is after Grace leaves the bathroom. To my recollection — and I’m going by memory because I can’t access the article at the moment — Grace says something to the effect of “I just don’t want to force it.” Ansari effectively acknowledges this, evidenced by the fact that he invites her to “just chill.” What happens next is he proceeds to rub his penis on her butt and, among other things, continues to try and get her to provide oral sex, as well as reciprocate on his end.

Now, we can debate whether this is what actually happened. This is what testimony is for: put them on the stand and let the jury determine who is credible and likely to be telling the truth. But, were I a prosecutor, this, to me, would present a situation where Grace actually uses the word “force,” has physically removed herself from the situation, and is visually/audibly not wanting to proceed with sex acts. Ansari knows this because he stops his own sexual behavior and, of his own volition, puts a pause on the would-be sexual encounter. But, then, after understanding this, proceeds to sexually touch her and initiate other sexual contact.

This, in my view, is a turning point where a reasonable person like Ansari knew or should have known Grace did not want to have sex, and not wanting to do something is just a longer way of saying she does not consent. If anything, use of the word “force” and self-removal from his presence are clear indicators that this is not something she wants to proceed. Additionally, minimal time passed between Grace’s self-removal and Ansari’s “just chill” invitation. This merits distinguishing between that original withholding of consent and a reluctance by Grace that might have passed over a longer period of time. Such a passage of time could have warranted a third attempt to initiate consensual sex, which may or may not have been accepted, but we ultimately don’t know because it appears that Ansari continued almost immediately.

Information Asymmetry.

My husband and I casually discussed this as the “news” broke. We largely agreed on the above but had vastly different takes on what each party’s expectations were in all facets of this interaction.

From my end, I’m thinking about all the stories I’ve read about women who drew clear lines and died for it. I’m thinking of all the men who have been put on trial for murder and received lesser sentences because they were so mad that they “blacked out” and thus could not recall a conscious decision to kill a woman.* I’m thinking about how quickly this escalated in just about all instances, that the man was otherwise giving no clear indication he was mad or violent until the exact moment a woman denied him something to which he felt entitled — sex — at which point he freaked the fuck out and killed her. Or, if she’s lucky, merely battered her.

Now this is extreme, but it illustrates a world in which women are not only truly at risk given this dynamic but they are taught from an early age that they are (a) at risk, and; (b) at risk because they are women. Don’t put your drink down. Hold your keys like wolverine. Buy a whistle. Buy pepper spray. Go out in groups. For myself, there is a part of me that frequently thinks “Oh god is this how it happens” whenever I am running alone at night and there is an uncharacteristic ruffle. I know, rationally, that it is very unlikely there is a person in the bushes going to hurt me, but I also know that I’ve been conditioned to watch out for such things; that my brother, father, and husband are not, and; that this is because they are men and I am a woman, and the world is a disproportionately dangerous place for me to walk, at least in so far as how I was raised to expect it.

Ultimately, our perceptions are colored by conditioning, and while brain plasticity is a thing and we can retrain ourselves to view it differently, it is no surprise to me that many women feel like they need to be diplomatic and cautiously negotiate situations where they are alone with men. True or not, we teach them that this is their responsibility and little sympathy will be given if they don’t live their lives according to these presented risks. We are told this by people we trust: parents, teachers, etc and it is a common narrative in the media we consume.

Likewise, we tell men at a very early age that their identity is situated upon their sexual prowess, particularly with respect to their masculinity. We give them few emotional outlets save for anger and physicality. The result is that when men are rejected by women, or when they are denied sex they were told was theirs by dint of their hard work, it is frequently viewed as an indictment on them as men and as people. It’s taken personally in a way that I frankly find difficult to wrap my mind around but acknowledge as almost certainly true for a lot, if not most, men. The response is typically violent. Not all men, but enough men that, when thrust into situations where women are acutely aware of this propensity as well as their sole responsibility to minimize risk, it is no surprise to me that women can start out in benevolent social situations and suddenly find themselves having to get out of a potentially bad one without actually saying “No way, man.”


Now, for the rub: risk. All encounters in life involve managing risk. In sex, this falls disproportionately — I would argue solely — on women. This is unfair to both parties, but especially women. They are expected to navigate not just their own perceived risks outlined above, but keep a pulse on the risks for men, and often with wildly different expectations for the night out.

I would contend that all sexual encounters present risk and rather than take the legalistic view, take the mitigation view that men and women need to align expectations for sex and take equal responsibility on its mitigation. Something can be legal but remain uncomfortable, feel violative, or otherwise be unwanted. My own view is that hook-up culture renders this difficult. One-off encounters present a large swath of unknowables. I don’t cast moral judgment or begrudge people for wanting to have sex and leave, but I think it’s fair to say that this is riskier than having sex with a person you’ve had sex with before. This solely because one of the best indicators of future behavior is past behavior, and someone with whom you’ve had a comfortable experience with in the past is more likely to do the same in the future, and is more likely to understand the nuances of your comfort zone without having to be a mind reader. Additionally, my suspicion is we feel better able to communicate with these people, having become more practiced with it. This is not a silver bullet; it is an exercise in probabilities. I acknowledge we need to take into account the frequency with which assaults occur between people who already know each other. It does not preclude the fact that people can be assaulted or otherwise harmed within a relationship or quasi-relationship. It’s merely operating on a pattern of behavior or a larger pool of information that is unavailable in non-iterative encounters.

Where did my husband and I differ on this? Expectations. He was unaware of just how much women are bombarded with low information messages about a dangerous world specific to women. I was unaware of how much men are taught that if one mode of pursuit isn’t working, that they should simply try another one and another one — that if someone hasn’t said “no,” it just means that you haven’t found the proper avenue to pleasure, not that she’s trying to diplomatically remove herself from the situation. I was unaware that men are unaware of the way the world is painted for women. I assumed that, because men were party to making this description, of course they would consider that as part of a woman’s risk calculation.

I can completely believe that Ansari and Grace would come away with the same factual description of events but super distinctive perceptions of what occurred. What was awkward or fumbly for Aziz, an attempt to figure out how best to make his date feel pleasure (at least in Part 1), was a persistent attempt at touching Grace despite visible reluctance, and her practiced caution of removing herself from his immediate physical proximity.

I think? I’m glad this was published because it forced me to make the distinction between legality and risk. I do this every day at work but I’d never truly considered how it would impact contours of sexual experiences. It’s not as though I’ve never, ever had this conversation but it definitely wasn’t part of a national one.

I really wanted to outline that women are taught to minimize risk for everyone in a sexual interaction. This is deeply unfair and sub-optimal. The asymmetry of expectations means that both parties end up having unhappy encounters at best, and assaultive ones at worst. I’m sure there is a psychological and mental toll on women with respect to balancing all these interests as well as feeling as though most of the world and its experiences are closed off once the sun sets. But I don’t like the idea that the solution is simply acting as though meeting strangers or having one-off sexual encounters are some how without risk so long as everyone is on the same consent page.

A better solution is to have both men and women assume risk equally such that (in the long term) they must be more communicative and empathetic in order to reduce the probability of a shit encounter where one party feels violated and another is potentially a criminal. Unfortunately, this is the long view, and I’m not sure it will ever occur, particularly not unless adults stop teaching young women that they are wholly responsible for risk management, and foreclosing more constructive emotional outlets for young men, as well as no longer measuring their worth in terms of sexual prowess as opposed to all other qualities.

This, of course, dovetails into the criticism of feminism painting women entirely as victims. Those people can go fuck themselves. You can’t tell an entire gender for millennia that they are accountable for the bad faith and violent behavior of all society, most of of whom can mitigate or eliminate legal/social consequences for that behavior, and then get mad when they cautiously navigate treacherous waters.

As a final note, I want to reemphasize the following: I do not believe that having sex in a relationship or quasi-relationship is in any way more moral than those who hook up. I do not believe that people who have hook ups and are raped are blameworthy. I do not think that a relationship blesses all sex and fully believe that one can be sexually assaulted by a partner or spouse. I am only trying to make the argument that there is an information asymmetry that is mitigated in large part by iterative interactions, and I’m open to challenging this.

*For more, news pieces, several law review articles (and rebuttals), lectures, and case books have compared and contrasted the extreme emotional disturbance to battered women’s syndrome, as well as the gendered antecedents of each.

On Democrats and Sexual Harassment

What to do about sexual harassment? I don’t know, but here is my general attempt to reckon with the revelations that have occurred over the past few weeks — longer if you include the allegations against President Trump, and even longer if you tackle the issue of President Clinton, both of which I consider fair game.

The issue is more palpable with Democrats. It shouldn’t be, but ultimately they’re the party which has staked the claim of representing women’s interests broadly and, more acutely, sexual harassment against women.

I, personally, was never under any illusion that the transgression of sexual assault/harassment itself was partisan. I’m well aware, like many (women), that this is an issue that manifests itself across party lines. We can hash out the details about whether it is an issue of power, toxic masculinity, or something else in another post. At this juncture, and with the thoughts forming in my head, I feel as though that is splitting hairs when it comes to government. Men are disproportionately represented in powerful positions, and thus whether it’s power or socialization, we will probably continue seeing men as the perpetrators for the foreseeable future.

This is why I think it’s fair to assess the situation through a gendered lens, but I want to acknowledge beforehand that this issue could, in another universe, show itself through other dynamics. Onwards to Democrats.

The issue: what is the appropriate response by Democrats to Democrats credibly charged with sexual harassment/sexual assault/inappropriate behavior? I envision three scenarios at this juncture:

First option: they resign. I think this is unequivocally the right thing to do, ignoring all institutional motivations otherwise. “Right” here is defined as first and foremost the appropriate response to harming another person, and this is a social harm. Unlike courts of law, where we liberty and life can hang in the balance, being a Senator is both a privilege and a position of trust.

It is fair to say “This person is untrustworthy and has broke the bond he has with fellow Americans.” It is a penalty, but a just one, and as a fan of restorative justice, I think it would behoove them to try and make amends through means outside of public representation. Women are, after all, part of the public, and it’s difficult to square behavior in private lives with public proclamations to help women.

Alternatively, fight the war, not the battle. Roy Moore is accused of sexually assaulting teenage girls from his thirties onward, including his time as District Attorney – yet another position of trust, both as a public official and an officer of the court (i.e., an attorney.) Republicans at large have condemned him, and he’s lost support in the polls, but he nevertheless remains competitive. If this is a litmus test for Republicans and consequential behavior, it doesn’t look as though we will see public ramifications for abuse of authority and sexual assault, at least not with respect to Republicans.

So what happens if Democrats hold their fellow Democrats accountable? They resign. Maybe they are replaced by another Democrat, maybe not. Meanwhile, Republicans condemn in word but maintain their numbers. Democrats have a demonstrable recent history that they are interested in legal reform for sexual assault cases in both Congress and on campuses. So if we diminish their numbers, sure they remain the high ground and credibility, but they lose their ability to meaningfully change outcomes. Thus it’s arguable that the credibility coming with resignation is marginal, but the impact that comes with no resignation is significant.

The other (third) option is for the Senate to deal with this as an institution: refuse to seat Moore; Franken and Conyers resign. At the same time, create a template response for upcoming allegations, of which there will be many, and determine what the Senate response is to credible allegations prior to any others made. This has a non-partisan appearance (and, in my mind, satisfies more due process than the discretionary route of resignation/non-resignation we’re taking now.) McConnell doesn’t want Moore in the Senate anyway, and Democrats maintain credibility.

Credit where it’s due: the majority of the public figures clamoring for reform regarding allegations in Congress and elsewhere are women on both sides. My other, cheeky response was to simply defer to women in the Senate but, like I said, it’s cheeky.

So where do I land? This is hard. I have no belief that Republicans care about this issue; they were more than willing to condemn President Trump in words after the Access Hollywood video, then rally behind him in practice. Democrats don’t get a gold star but they (a) have moved the needle on this conversation far more, and; (b) have more women represented overall. I genuinely believe they can achieve a better outcome.

However, it definitely feels like a historical moment – the kind of time someone 100 years from now would look back and – appropriately – judge harshly. I want badly to win this war, but I feel it’s more important to take a stand on how men in power treat women. Republicans are justifying a Moore election on the basis that an (R) beats a (D) on significant votes. I won’t do the same for Franken and Conyers. They should resign, and ideally younger, more representative (i.e., minority) candidates assume the mantle of reform and take their place.

An Open Letter from a Young Attorney to Other Attorneys Regarding our Role in Preserving Free Society.

To: Intimidated Young or New Attorneys/Reticent Seasoned Attorneys
From: A Young Attorney
Re: Literally Everything Since January 20, 2017
Monday, February 20, 2017

An Open Letter from a Young Attorney to Other Attorneys Regarding our Role in Preserving Free Society

Dear Colleagues and Friends,

My intention with this letter is to reaffirm a commitment to the rule of law. Current events in the United States – particularly the recent Executive Order prohibiting entry of individuals from seven Muslim-majority countries – have forced me to recommit to the reason why I became an attorney.

Also, I recently paid annual bar dues.

In applications and job interviews, one is almost always asked why he or she wants to be an attorney. The goal is to avoid cliché answers such as “I want to help people.” Frankly, I cannot avoid that reality. I became a attorney to help people. At first this was in an idealistic sense where I would rush into some kind of appellate practice and preserve the beautiful and poetic liberties students read about in textbooks.

When I began practicing, I gained a better appreciation for the seemingly small ways in which an attorney can ameliorate someone’s problems or fears. Fair or unfair, there are some things only an attorney can do – at least legally – and providing closure and resolution had an impact I had not considered when I first imagined myself as an epic legal superhero with a mean right hook.

Like many, I found this past election disheartening. Over the past month, I have become more than alarmed at the assault on the rule of law and fundamentals of constitutional due process. I think this much is a non-partisan concern. Americans have a moral duty to uphold these predicates of our representative democracy. Whatever reasonable disagreements we might have about good public policy, all of us must stand firm for robust procedural protections. There can be no freedom where there is no law.

As a lawyer, there is an even higher imperative. I repeat: all Americans have a moral duty to stand up for foundational principles such as liberty and justice for all. However, only attorneys can practice law. Therefore, some of these duties can only be performed by attorneys.

I am not a top law school graduate. I did not have an illustrious career at a Big Law firm. I bounced around practicing here and there, largely doing pro bono work and relying upon cases given to me by mentors (for whom I am extremely grateful. I learned a lot during this time of my life as stressful as it was.)

I understand completely the feeling that one does not know enough to help people and might even imperil them or worsen their situation. I empathize with the condition where a person can barely meet his or her own needs, let alone donate time to others. I know what it is like to feel as though any work one does attempt will blow up in some professional ethics minefield. Law school does not prepare us for these things. More often than not, it makes us cautious or wary of reaching out.

The purpose of stating these facts is to make it clear that there is nothing particularly good or smart about me that is not true about any other attorney (or American or person for that matter.) Your country needs you. The rest of the world needs you. Thousands of attorneys rushed to the defense of helpless strangers stranded in airports with the threat of deportation. That is your calling as much as it is mine.

Please shed any hesitation you have about your abilities or limitations. For those of you who plainly cannot afford to don this hat, that is not a mark against you. We all need to tend to ourselves in order to be a place of strength for others. For those of you who are like me and regularly suffer from Imposter Syndrome, this letter is for you.

I recently took up an asylum case. This is a new area of law for me. I am relying heavily on the support of the legal aid society through which I found my client. I am scared and worried that I will forever ruin this person’s life and that they will have to return to a country that has no regard for their safety and well-being – a country that only pays lip-service to the law and all its protections and remedies; preys on vulnerable populations, and; serves the nefarious machinations of an insulated wealthy caste.

Nevertheless, it is the right thing to do. More importantly, it is only something I, as a lawyer, can do. Sure, this person can represent themselves, but for all my shortcomings, I know I can do this better. I am trained at a bare minimum to advocate for others. My main takeaway from previous practice is that there is not a problem I cannot solve even if I do not know the best answer right away.

You have this skill too. To be a lawyer is not to have an encyclopedic knowledge of codes and treatises. It is not to be a superhero or a saint. It is to be a regular person and assume a mantle of responsibility for other regular people as clients. It is to look injustice in the eye – to stand between tyranny and its would-be victims – roll up your sleeves, and dare those forces to try.

I wrote the above first and foremost for simple consideration – that the next time any one of us feels discouraged or helpless and wants to reach out, you remember reading this and reflect on the possible role you can play as both a patriot and a trained advocate.



A plea to my friends: be political.

I’m done with the posts on my Facebook feed apologizing for being political. I tire of the lamentations about how many political posts there are.

Over the past few weeks – almost three! – we’ve heard so much about the importance of checks and balances. Yes! This is completely true! And let’s not forget to pepper this blog post with some important Founding Father quotes, who bequeathed this concept (enshrined in our form of government) to us. Let’s begin with James Madison in Federalist No. 51:

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.

But I want to note the important point in the following paragraph:

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

That word: auxiliary. “Auxiliary”  means “additional; supplementary; reserve.” It does not mean “primary, foundational, first, chief, principal.”

Our inheritance is therefore not simply that of checks and balances. it is the intellectual tradition of being an active representative in good government.

Institutions are merely conglomerates of people. Checks and balances are not self-executing. Checks and balances are designed to work alongside a galvanized and informed citizenry. There’s no basis for believing that checks and balances will magic themselves into responsiveness. The only way checks and balances work as an auxiliary is if the primary bulwark against tyranny does its job first, and that bulwark is us: the American people.

Likewise, it requires people to act. Acting can be anything: reading, writing, listening, speaking up, going to a rally, running for office, whatever. I’m writing this as a plea, not an argument. Being apolitical is to remain indifferent to the health and status democracy. To stand aloof to the problems facing government – and there will always be problems – is to either say that you don’t care, or that it doesn’t concern you. If you read this and think “That’s not me; I care,” then the next time a political thought enters your mind, fear of alienating your Facebook feed should not be part of your decision tree.

Our country’s philosophical tenets were fundamentally active. They require movement and participation. They require education, and not just schooling, but the commitment of a literate population to understand and think about the issues surrounding them.

I’m sure I’m a bother on my Facebook page, but I frankly don’t care at this juncture. My goal is not to go out there and change everyone’s mind. My goal is to remain engaged and to surround myself with other engaged people. I want people who associate with me to take this role of citizen seriously and understand the gravity of maintaining the integrity of our republican form of government.

I gave up a long time ago on this kind of language because it sounded to romantic, lofty and idealistic. I’ve since begun embracing it again. Too often I hear people speak in platitudes about American political identity. I really want to emphasize that we should strive to breath meaning back into this foundational concepts. Freedom and liberty are not self-defining any more than our checks and balances are self-executing. It’s going to require this generation of Americans to add contours to those principles. We’ll do this by maintaining our own library of thoughts and democratic experiments, but that’s only possible if can get past this notion that to be political is to be uncouth. Being political is a feature, not a bug, of living in a democracy.

Can the refugee ban help us mitigate the access to justice problem?


Obviously the above picture is not mine. Kamala Khan is Ms. Marvel and belongs to, you guessed it, Marvel. I thought it looked cool and was appropriately in tone and representation.

Spend enough time in law school or at the bar (the boring bar) and you’ll hear about the “access to justice” problem. The access to justice problem, at its most simplest, is that te legal profession cannot sufficiently meet the needs of those who require legal services, and that this disproportionately impacts the poor and indigent. More and more, it is also affecting the working class or lower middle class, who both cannot afford even more middling legal services but also make too much money to qualify for legal aid services.

The salient point is that supply cannot meet demand. There are a lot of reasons for this and we can dive down that rabbit hole another day but, suffice to say, it’s a problem.

Solving problems, in my experience, and I would say in most folks’ experiences, happens incrementally. You make something 3/5/10% better and the eventual outcome is a larger accrued benefit over time.

Likewise, working for a metrics-centric company that values scalable, “machine learning” solutions has changed the way I approach a problem. I’m a lot less interested in the romantic sweeping proposal and a lot more interested in finding gaps that are overlooked when we focus on the main problem. Often, smaller increases in the process can better the quality of life for those part of it and bolster our ability to isolate what the “real” problem is. Instead of getting lost in a sea of possible problems and, consequently, possible solution, we focus on the immediate hurdles we can overcome and then dramatically increase our ability to solve the problem at large by process of isolation and/or elimination.

This isn’t how I’ve seen the legal community solve its problems. For one, it’s averse to change overall. It’s traditional and, by its nature, quite married to precedent, and not just in case law. Moreover, which I’ll touch on later, every solution to a problem must must be at peace with the overarching ethical rules to which lawyers are beholden. Another hurdle to this is that such guidelines are set by state bars, meaning what is ethical in one state might not be in another. Creative solutions to non-substantive problems are thus not only tacitly discouraged by culture but also, as a trade-off to for ethical lawyering, genuine rules.

The Refugee Ban as a Pilot for Better Legal Services

This past weekend, President Trump signed an executive order (“EO”) that “suspended entry of all refugees to the United States for 120 days, barred Syrian refugees indefinitely, and blocked entry into the United States for 90 days for citizens of seven predominantly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.”

Lawyers quickly camped out at airports. I was not among them. Regretfully, I am licensed in NY and currently unsure of my ability to practice law – even at a federal level – under these circumstances. I’m attempting to clarify it, but nevertheless my participation was limited to Facebook posts and a local rally.

I do have friends who participated. Many have signed up for an Airport Triage. This and similar initiatives seek to compile a list of attorneys who are willing to represent anyone detained or otherwise affected by the EO. It also lists the times they are able to do so, how they can be contacted, and additional information such as whether you can file a habeas corpus petition and what areas of law you typically practice.

Essentially, it’s an intake form. A small, rather thankless but necessary description of who your potential client is, what they need, and how you two can communicate and get together.

It got me wondering about what sort of phone applications one could create. As I mentioned above, this is a very small thing — the sort of thing we really don’t think about when it comes to access to justice. But one hurdle of access to justice is that the people who need lawyers often won’t ask or don’t know where to go. Another is that there are a lot of attorneys who simply cannot afford to do pro bono.

But what about those people who want to do pro bono work and mean to do pro bono work but it gets lost in the sea of other obligations? What if we could lower the barrier to entry for requesting legal aid while providing the sort of information that comes as a push notification and a very short list of facts that, like the refugee ban, galvanizes an attorney

This issue is sexy to us this weekend, but even after the stay and as this is litigated, people will be affected by policies the Trump administration settles on. They are unlikely to change in intent even if they change in process. Programs that keep this and other issues in the minds of attorneys, as well as continue aligning those needs with attorney skills, are worth exploring.

Obviously “I need help with my Earned Income Tax Credit and my husband/wife is a crazy bitch” is not as enticing as protecting the due process rights of a suffering class of people. But the basic thrust is that (1) there are people out there who need lawyers and have engaging/sympathetic/whatever cases, and; (2) there are also a lot of lawyers who do, in fact, want to donate their skills but, like all of us, put it on the backburner until something provides an obvious motivator.

Basically, legal aid societies typically function as the broker for volunteer services. My proposal here, not having considered ethics yet, is to remove the middle man by creating a functional intake app that allows lawyers to screen possible volunteer cases. It’s also a format that is easily accessible to potential clients and is, perhaps, not as daunting as walking into a law firm.

I’m still hashing this out in my head, and I don’t want this post to be too long, so here is a quick list of other off-shoots to this:

  • I’m focusing on a sort of brokerage because apps that focus on being a substantive resource tread too closely to providing legal advice. Providing legal advice can create client relationships one doesn’t want, and depending on who makes the app and populates its information, could run afoul of lawful-practice-of-law, well, laws.
  • Another potential is to use it as a means for attorneys to seek clients who want to operate outside the bounds of a traditional firm. These are probably clients who occupy that working poor/lower middle class range. I’m not sure what the ethical implications are since there are rules about billable hours, but it could function as a means to broker a billable hour they can afford. I’m sure that such a thing would have to be blessed by a state’s ethics bar before this could be done. We don’t want non-lawyers to overshoot how much they should pay only to have a more savvy lawyer take advantage, for example.
  • The unspoken hurdle, particularly in my last point, is cost. Not just cost in development, but cost of offering services. A major pain point in the legal community is that (1) it’s expensive to become an attorney, such that; (2) it’s often cost-prohibitive to work for less than the kind of billable hour that precludes representing kinda-poor people.
  • In general, I’m interested in seeing what other organic solutions to client/attorney hurdles come out of this event. If there’s a silver lining, it might be that necessity begets inventions or otherwise jerry rigged systems that reveal small solutions to larger problems.
  • Of course, my bias is that of a lawyer. We can also consider that refugees and immigrants, as two distinct classes, have some overlapping needs that must be met. Such an app could be used to find people – attorneys or otherwise – who speak their language or are some other kind of advocate.

As someone who is not a developer, that is a major gap in my thinking, but I’m certainly very interested in what other lessons we can learn here – hopefully something more positive, long-term and scalable – to improve access to justice and client experiences. I say this as someone who is, as another disclaimer, no longer has to work with clients so that is yet another blind spot of mine.

Anatomy of a lie.

President Trump claims millions of people committed voter fraud. We’ve been told he plans to launch an investigation into this alleged fraud. Here’s what we know: this is false. There is no proof. No one has corroborated this investigation.

(Maybe I should say few people have corroborated; a golfer friend of President Trump’s is the origin of the claim.)

Under normal circumstances, this is a lie. Journalists understandably have to take a more cautionary approach. There’s risk in publishing something so strongly worded. For starters, it’s so concrete a statement and rooted as a factual allegation that it would trigger libel concerns. No worries in this specific situation because a defense to libel is truth and the bar for a public figure is malice, but it’s still part of a publication’s calculus.

Another hurdle is the integrity of reporting. There’s always the usual concern over due diligence and corroboration, but there’s the additional risk of political reporting where truth exists on a spectrum. By this I mean not every statement exists on a binary scale where we can measure its validity and determine in an absolute sense if something is exactly true or exactly false.

There’s virtually no argument over the falsity of this Trump’s claim. Rather, the hand-wringing that has occurred is the severity of language publications should use. The New York Times decided to use the word “lie.” NPR used “falsehood.” NPR justifies its use by way of the dictionary, which requires intent and, they argue, they cannot know what goes on in the president’s mind:

“A false statement made with intent to deceive,” Kelly says. “Intent being the key word there. Without the ability to peer into Donald Trump’s head, I can’t tell you what his intent was. I can tell you what he said and how that squares, or doesn’t, with facts.”

I disagree. Now, they’re journalists, and I’m a lawyer, so our problem-solving mechanisms are likely quite different. Plausible deniability is something with which us law-folk are quite familiar. Many people like to believe the law is read so literally that you can be vindicated under the most technical reading of the law.

Not so. People do not act literally; we do not bind ourselves to linear readings of behavior. We speak casually and we contort. Sometimes we act deliberately, but nonetheless rashly. The law captures this and, when determining liability or culpability, will frequently impute knowledge and intent. Thus the standard for “intent” is would a reasonably prudent person or should a reasonably prudent person have known X, where “X” is an act that would happen.

I think that should be the standard here. No, I’m not arguing for legal culpability or anything of that sort. I do want to argue that this is a useful framework, especially when writing about someone who is potentially very well-practiced in deception (“truthful hyperbole.”)

If President Trump did not already know that his claim was false, he should have known. This information is readily available. As president, he has ample resources at his disposal to uncover the truth. The bare minimum of due diligence on his part would have revealed that voter fraud is sparse, let alone rising to the threshold of millions of people.

Moreover, this standard can ramp up. A reasonable person – human buzzkill, the kind of person who always looks both ways, runs against traffic, and uses his blinkers – could have accomplished the above. President Trump is President of the United States. Our bar for the presidency is high regardless of our thoughts on the outcome of the election. No one would claim that idiocy is the standard by design, all joking aside. In a car accident, I would be held to the standard of a reasonably prudent person because I’m an average driving adult. A professional driver, in contrast, would be held to the standard of a reasonably prudent professional driver, complete with his or her entire sophisticated and practiced driving skill set. President Trump should be held to the standard of a reasonably prudent President.

Likewise, when it comes to public claims made to the American people and have shocking implications about the state and integrity of American democracy, the President is not held to the standard of the average twitter user. He should be held to the standard of the Commander and Chief of the United States – doubly so when he requires his press secretary, official representative of the White House, to evangelize these claims.

Finally, this is a pattern. Trump’s claims predate his inauguration. People, including presidents, make mistakes, speak quickly, and sometimes casually. Even if we were to be forgiving about the above standard and argue this was a passing comment, that is contravened by the fact that he has repeated this argument. There is no ambiguity in his intent to spread what is frankly disinformation.

I understand the hesitancy. A peril of political reporting is that politicians make spurious statements all the time. One also doesn’t want the potency of “lie” to be entirely loss. Tossing strong language around is a way to completely undermine the power of those words, and thus we want it reserved for the most egregious acts.

By way of contrast, President Trump’s claim that Mexico will pay for the wall is specious at best. The proposed 20% tariff will foreseeably land on the American consumer. However, it’s not false. Mexico will pay that tariff. We can argue that Mexico’s decision to pass that along to the consumer is independent and out of the hands of the administration, and that they’ve fulfilled their obligation by attempting to hold Mexico to account. It’s dubious and arguable, but it’s precisely because it occupies such a gray area that we need to provide some benefit of the doubt to politicians operating in an imperfect world with fallible human institutions.

That’s not the case here. The repetitious nature of President Trump’s claims, coupled with his utter lack of due diligence and failure to corroborate or otherwise provide some prima facie (face value) case for his claim has every indication that he knows he’s wrong. Even if he’s completely bubbled, he absolutely should know and it’s fair for publications to impute that intent on him for the aforementioned reasons – namely that he had ample opportunity and resource to uncover the veracity of his claim and either didn’t or chose to act contrary to it.

I’m frankly not sure of any other situation where “lie” might appropriately be used. Publications presumably think that the word is acceptable in some circumstances or else we wouldn’t be having this debate at all. The mind reader standard completely precludes this ever happening, though. Short of walking out on stage and prefacing his statement with “Okay, I’m going to lie now,” we’ll never know the inner motivations of President Trump or any other human beings. We do not possess the capacity to meet NPR’s hurdle.

To conclude, the Prudent President standard illustrates the level of disregard for proof that is palpable and within the realm of actual human faculties, and therefore this is one of those rare occasions where a judicious use of “lie” is wholly appropriate.