Shocker? Not So Much

Here's the latest breathlessness from the Herald on the Gates fiasco. This is a situation that generates more questions than answers, but let's add a few more to the mix.

Is the witness trying to exonerate herself because she didn't mention the race of the people on the Ware Street porch? Does this mean race had absolutely nothing to do with it? Does the witness call the police if she sees a 58 year-old white guy in glasses and a little polo shirt trying to force his door open?

And did she really and truly have to retain an attorney? Was that the only way she could let the whole world know that she has “olive-colored skin and is of Portuguese descent”?

Let's just all have one last good collective cringe and move on. Okay?

UPDATE: A typically excellent and thoughtful post from Dan Kennedy here.

Gates

Wow. That's just about all I can say after reading these stories about the arrest of Henry Louis Gates at his home a few days ago. Some thoughts:

1. To say that Gates has the better of the two arguments here would be a laughable understatement. He showed the arresting officer his license and Harvard ID card, and the good Officer Crowley continued to question him? And then Officer Crowley arrests Gates because he's yelling at him? That's a joke. And a bad one, at that. Just turn around. Get back in your cruiser. And drive away.

2. Cambridge had better lawyer up. It was bad enough that its officers seem to have accosted a high-profile public intellectual in his home. But then they arrested him? And charged him? I hope the city has insurance (with high coverage limits) for this sort of thing.

3. The person with the hardest job in Eastern Massachusetts today is Gerard Leone. He's going to alienate someone before the day is over. Even if he just sits in his office and refuses to comment.

4. If the arraignment does go forward on August 26, 2009, it might be the slightest tad bit chaotic, no?

5. Cambridge should call John Linehan and ask for the number of his PR people. Because this is officially a fiasco.

6. Police officers have incredibly difficult jobs. But this is America and we're allowed to criticize them when they seem to do stupid things. Those traditionally sympathetic to law enforcement might keep that in mind.

UPDATE (12:30 p.m.): Charges dropped. There's your answer to No. 3.

It Happened Here, Too

If you listened to NPR this morning, you probably heard Nina Totenberg's typically excellent report on the Supreme Court's decision in Ricci v. DeStefano, No. 07-1428. Totenberg interviewed Richard Primus, a professor at the University of Michigan,* about the decision. Professor Primus talked about the limits of the holding in this case. The argument, which kind of strays into Kübler-Ross territory, is that this isn't that big of a deal.

But that's just wrong. A quite similar case arose from a promotional decision made by the Boston Police Department. In that case, Cotter v. City of Boston, First Cir. No. 02-1404,** the white plaintiffs lost. Whether the Cotter case remains good law -- I think it does, just barely -- would make for an interesting article topic.

*Go Blue.
**Full disclosure: I worked on this case when I was a pup, helping out with representation of an intervening party, the Massachusetts Association of Minority Law Enforcement Officers.

Decisionism Is Just Like Mark Sanford*

Remember how Martha Coakley argued in the U.S. Supreme Court? The thinking at the time was that she did not do so well. Today, unsurprisingly, she lost. It's interesting, though, that the justice who asked her a question that nearly catastrophically tripped her up, Justice Kennedy, wrote an impassioned dissent supporting her position. So you just never know.

*In that it disappears for days and days without explanation. Thankfully, the similarities just about end right there.

Oh, Please

It borders on preposterous that on the morning after a respected and reliable Supreme Court observer publishes this post and this one, the supposed paper of record puts this on its front page. That darn liberal media strikes again!

Note To Self

Never, ever, ever do anything that attracts Nate Silver's attention. The thing of it is that mere mortals would read Prof. Mankiw's argument and say to themselves, "Hmm. Not such a good argument. But OMG he's way smart so I'll just take a flyer on this." Nate Silver is no mere mortal. He looks at the argument. He unpacks it. And then he blows it up into ten zillion pieces. Is he afraid of offending someone's grandmother? No. He is afraid of nothing. He is a magician with numbers. And he can write. Stay out of the man's way.

I suppose this is my first unofficial Sotomayor post. And I get this vague sense that one or two readers want to know what I think of Judge Sotomayor's nomination. Short useless answer: good pick. I like the fact that she's been an actual practicing lawyer. I like the fact that she's got Ramesh Ponnuru in such a snit that he feels the need to remind us that he graduated summa from Princeton, too. Finally: we have something in common! We've both said arguably true things we probably regret in front of large groups of Boalt Hall students!

An Actually Big Development

Thanks to 23 Neighborhoods for highlighting Judge Tauro's decision in Real Estate Bar Ass'n for Massachusetts, Inc. v. National Real Estate Information Services, D. Mass. No. 07-10224-JLT. This is a significant case. It emanates from the United States District Court for the District of Massachusetts, which gets shafted by this blog because its opinions aren't distributed electronically (understandable, but disappointing). It's also more than a month old, so it's not news per se.

Judge Tauro holds that requiring retention of Massachusetts attorneys to close real estate transactions here is unconstitutional. The practice is unconstitutional because it discriminates against interstate commerce and thus runs afoul of the Dormant Commerce Clause.* The Court's analysis of the issue starts at Page 15. It's not simple at all, but it probably didn't help REBA that one of its officers defended the lawyer requirement and was quoted in the Globe as stating "We don’t need outsiders coming into Massachusetts and telling us how to do things." That's usually not going to win you very many dormant commerce clause cases. It also didn't help REBA that it adopted an almost identical argument to one that the First Circuit rejected in an earlier case about a Rhode Island debt collection law.

With the pesky Constitution involved, there isn't a whole lot REBA can do about this except appeal. That seems likely; running real estate closings is a massive source of income for a large segment of the Massachusetts bar. The First Circuit will probably decide whether that continues to be the case.

*A legal doctrine that is neither dormant nor a clause, but hey.