“Lock Her Up”

 How Should We Evaluate the Decision Not to Indict Hillary Clinton? This blog post is a companion piece to my weekly podcast with Thomas Smith, Opening Arguments.  If you haven’t listened to Episode 13, I highly recommend it; I go into more detail there than I can in this post.  If you want to skip to the punchline, the answer to the question, “Did Hillary Clinton receive preferential treatment from the FBI for not being indicted due to her use of a private email server?” is a relatively straightforward “No.” Here’s why. Background On July 5, 2016, FBI Director James B. Comey released a statement to the public summarizing the findings of the FBI’s year-long investigation into Hillary Clinton’s use of a personal e-mail system while serving as Secretary of State.  The key finding, for purposes of this discussion, is this: Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information. Id.  In short, the FBI found that Clinton had no intent to violate the law but was “extremely careless.” As a result, Director Comey recommended that no criminal prosecution be undertaken with respect to Clinton’s use of email.  Here’s the justification he gave: Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. … In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a […]

September 26, 2016 Blog

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Some Questions on Standing

As a lawyer who handles public interest cases and has worked pro bono for charitable and educational institutions, one of the questions I see arising from time to time is the question of standing.  Particularly when a friend or client is mad about a new law they’ve seen on the news, I’ll remind them that in order to challenge a law in federal court, one must have legal standing to bring the suit. Standing begins with an examination of the Constitution.  Article III, section 2 of the Constitution sets out the power of the judiciary: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects. There’s a lot of (slightly confusing) verbiage in there, but due to the highlighted words, this has become known as the “case or controversy” requirement.  This language dates back to the founding of our country and the concept of separation of powers.  The Founding Fathers didn’t want the federal judiciary (and especially the Supreme Court) to be able to issue free-floating “advisory” opinions as to whether particular laws were valid or not; they only wanted the courts to be able to redress specific wrongs brought by individual people who had an actual “case” or “controversy.”  See, e.g., Valley Forge Christian College v. Americans United, 454 U.S. 464, 471-2 (1982). So what does […]

August 23, 2016 Blog

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Rethinking Conventional Wisdom, Part 2: More on Mandatory Arbitration Clauses

The ongoing theme of this series is that legal and business advice needs to be tailored to each individual client, and you should be wary of so-called “truisms” that “everyone knows” apply to pro-business laws.  In Part 1 of this series, we looked at one such truism: the notion that mandatory arbitration clauses favor the employer, examining arguments such as juror bias, cost, and efficiency. That post left you with a cliffhanger, though:  the “major disadvantage” of the arbitration process.  And now it’s time to lift that veil:  an arbitrator’s award is (essentially) final.  Unlike a jury’s verdict – to which the losing party always has at least one appeal as of right — the arbitration decision cannot be appealed except on very narrow grounds.  Specifically, U.S. arbitrations[1] are generally governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., which provides that an appropriate court “must” confirm any valid arbitration award in its entirety unless the opposing party can demonstrate that: (1)   the award was procured by corruption, fraud, or undue means; (2)   there was evident partiality or corruption in the arbitrators; (3)   the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4)   where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. 9 U.S.C. § 10(a).[2] This finality is often thought of as a double-edged sword to the employer; on the one hand, the employer knows that an arbitration award is essentially final and that the company will not be burdened with years of potential appeals.  On the other hand, if […]

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Understanding the Settlement

Okay, here are the facts:  The Christian dating site “” initially allowed only heterosexuals to use its services; that is, prospective customers could log in as a “man seeking a woman” or a “woman seeking a man,” but not “man seeking a man” or “woman seeking a woman.”  So, a few years ago, two gay men filed a class action lawsuit in state court in California against the parent company of, alleging that the website violated California’s state civil rights act, Cal. Civ. Code § 51, known as the “Unruh Act.”  The Unruh Act – like many state equal protection statutes – actually goes beyond the protections available to plaintiffs under federal laws such as the Civil Rights Act of 1964.  In particular, the Unruh Act protects individuals on the basis of sexual orientation, a protection not available under federal law. The plaintiffs’ claims are very similar to the arguments raised by the plaintiffs in last year’s landmark Supreme Court decision on gay marriage, Obergefell v. Hodges: that a woman who logs on to is provided with dating services and connected with men to date, but a man who logs on to is not provided with the exact same services.  Specifically, he cannot be matched with a man, have his contact information provided, and so forth – which seems, on face, to violate equal protection in exactly the same way as a state official who will issue a marriage license to marry a man to a woman but not to another man. In light of this rather clear legal argument, Christian Mingle agreed to a voluntary settlement whereby they would open up their website to same-sex patrons.  Now, if this had been an ordinary lawsuit, that would have been the end of discussion; private parties can (generally) settle lawsuits when […]

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Rethinking Conventional Wisdom, Part 1

 Mandatory Arbitration Clauses Are Always A Good Thing For Businesses, Right? One of the things we do here at the Law Offices of P. Andrew Torrez is tailor our legal advice to the specific circumstances of each individual client.  We represent plaintiffs and defendants, big firms and small start-ups, and good business advice for one is not necessarily good for another.  Put simply:  be wary of anyone who suggests one-size-fits-all legal advice. One such example is the conventional wisdom that employers should have mandatory arbitration clauses in their employment contracts.There are typically three arguments that lawyers deploy in favor of this conclusion.  First, employee arbitration clauses are often thought to favor the employer by taking potentially sensitive cases away from a jury (because “everyone knows” that juries are “more sympathetic to employees”).  As one commentator put it, arbitration can reduce the likelihood of an “irrational award” because arbitrators “tend to be more conservative than juries.” Second, arbitration clauses can favor the employer where the employee is required to share in some (or all) of the costs of the arbitration by discouraging plaintiffs who would otherwise have been able to secure plaintiffs’ counsel on a contingent fee basis.  This is the straightforward big-guy-versus-little-guy dynamic that is, unfortunately, common in our legal system.  I would also note that courts continue to grapple with this issue, and many courts have determined that if an arbitration clause would unduly burden a plaintiff from exercising his or her legal rights, that arbitration clause is invalid and the plaintiff is free to litigate in court instead.  See, e.g., Ball v. SFX Broadcasting, Inc., 165 F. Supp. 2d 320, 238-40 (N.D.N.Y. 2001) (discussing cases). Third, arbitration is often said to be more efficient, speedy, and cost-effective than litigation, largely because arbitration proceedings have less formal discovery rules, reducing the cost […]

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Originalism and Justice Scalia, Part 2

 Religious Liberty and the Establishment and Free Exercise Clauses of the First Amendment In my last post on this subject, I made the argument that Justice Scalia’s judicial philosophy of “originalism” was actually a method that allowed him, almost without exception, to reach the politically conservative outcome in any particular case, regardless of the precedent (or lack thereof) for that outcome.  This case is strengthened when we look at how Scalia voted in the First Amendment religion cases that came before the Supreme Court. Of course, Scalia himself strove to define himself in the public as an intellectual, nobly applying legal principles regardless of the outcome that said principles might reach.  And he snowed an awful lot of people; here’s how Emma Green, writing for the Atlantic, put it: [Scalia’s] Roman Catholic faith often seemed to lurk in the background of his opinions, especially in cases involving abortion and homosexuality. But above all, he was committed to a literal, originalist interpretation of the Constitution, along with strict attention to the texts of federal and state laws. His views didn’t always align with those of the Church, and he didn’t always side with people making religious-freedom claims. …  Scalia’s legacy on religious and social issues is complicated—in defiance of his reputation as the Court’s most stalwart conservative Catholic. This is a perfect example of exactly what I’m trying to debunk in these blog posts.  Let me be clear:  there is nothing ‘complicated’ about how Antonin Scalia ruled in religion cases.  He simply ruled in favor of whatever position the Christian Right would take.  Every.  Single.  Time. So why are Ms. Green and so many others confused about Scalia’s jurisprudence on religious issues?  I think it’s because we lump together two very different kinds of cases under what we call “religious liberty” or “religion cases.”  The First Amendment to […]

April 24, 2016 Blog

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There Ain’t No Such Thing As A Free Lunch, Part 2

In part 1 of this series, we discussed using pre-packaged online legal services as a potential cost saving measure. In part 2, we’ll be discussing another potential avenue to save money on your legal bills – using the free form contracts you might find online. As in part 1, there is nothing inherently wrong with this. Let’s walk through a potential scenario, however, and examine some potential areas of concern. Scenario: Downloading a Form Residential Lease You’ve got a finished basement that you rarely use, and are planning to rent it out to supplement your income.  Obviously you’re not going to draft a lease from scratch.  So what do you do?  You type “form Maryland lease” into Google, download a document, and fill in the blanks.  What’s the worst that could happen? Again, I want to be honest here:  most of the time, you’ll probably be perfectly fine customizing a random lease you find online, because most of the time tenants pay their rent without dispute.  But here are some potential pitfalls: A form may not indicate all of your legal responsibilities. For example, one online form lease has a blank line for the landlord’s security deposit.  The paragraph reads: SECURITY DEPOSIT: Tenant(s) agrees to deposit with Landlord/Agent the sum of $_________, receipt of which is hereby acknowledged, to be returned to said tenant(s) at the end of his occupancy, provided the tenant(s) is not default under any provision of this agreement, and subject to any deductions necessary to replace or repair missing or damaged furniture or equipment or to repair damage to property caused by tenant(s), his family, guests, or pets, or by any negligence of the tenant(s), excepting ordinary wear and tear, or adjustment of pro rata share of utilities of any outstanding bills which may be required. Tenant(s) liability for damages, however, […]

February 23, 2016 Blog

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“Originalism” and Justice Scalia, Part 1: The Eighth Amendment

An Intellectually Bankrupt, Judicially Activist, Outcome-Driven Philosophy Although much of my public writing is aimed at more practical legal matters – like whether or not to use form legal services – from time to time, I’ll also weigh in on public matters that have a legal dimension.  Right now, the big issue is the death of Supreme Court Justice Antonin Scalia. There’s a story that seems to have developed after the wake of Justice Scalia’s death. “Scalia adhered to originalism, which is an academically honest way of interpreting the Constitution despite the fact that it sometimes produces undesirable results.”  I think this story is a version of the aphorism you’ve all heard, “if you’re not a liberal by age 20, you have no heart; if you’re not a conservative by age 40, you have no head.”  It pits intellectual honesty and rigor on one side and compassion on the other. It’s also completely false. Justice Scalia’s “orginialism” deifies the intent of people who never intended for their intent to be treated in such a fashion.  It was also, in my view, completely political.  In an overwhelming majority of cases, I think Scalia very clearly reasoned backwards from the hard-right conservative result that he wanted to reach in order to find a justification for getting there.  Moreover, Justice Scalia’s originalism was also judicial activism in the sense that his most influential decisions overturned even long-standing judicial precedent in favor of hypothetical arguments grounded in the 17th and 18th centuries.  Justice Scalia’s originalism was, in short, everything he accused otherjustices of practicing:  a nakedly partisan method to use the Supreme Court as a political vehicle to advance politically conservative causes. That’s a big charge, I know, and it can’t be fully explained in a single blog post.  So let’s start with a relatively straightforward case:  the Eighth Amendment to the Constitution.  It says, in full: […]

February 19, 2016 Blog

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There Ain’t No Such Thing As A Free Lunch, Part 1

One of the most rewarding things we do here at the Law Offices of P. Andrew Torrez is work with start-ups and other small businesses to develop a strategy that allows those businesses to grow while anticipating and protecting them against future litigation risks. We recognize that cash is tight and, quite frankly, hiring a lawyer can be expensive. We often see small businesses trying to cut corners on expenses by using pre-packaged legal services. These websites purport to walk you through filling out your own legal forms. Let me start with the uncomfortable (for many of my colleagues) truth: there’s nothing inherently wrong with using a non-attorney form service. But – as the title of this article reminds us – there ain’t no such thing as a free lunch. Let’s take a look at a hypothetical and see if cutting corners now would pay off for your small business or prove more costly in the long run. Scenario: A Startup Needs to Organize Here’s another uncomfortable truth: it’s not that difficult to file organizing documents for an LLC in most states. In Maryland, for example, you can probably learn how to do it yourself in an hour or two. If you live close to the State Department of Assessments and Taxation in downtown Baltimore, and you don’t mind spending another hour or so filling out forms and waiting in line, you can probably handle things yourself. You won’t have access to a lawyer to discuss whether an LLC is the best corporate form for your small business (it probably is, though), or to remind you about annual compliance filings, or otherwise help you through the process. For a cash-strapped startup, though, those might be reasonable tradeoffs. Others may decide that it makes sense to pay a professional a few […]

February 17, 2016 Blog

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