No, that’s not the law. No, you don’t get to use legal sounding words to create the appearance you have a clue what you’re talking about and make people stupider. No, it’s not okay even if you don’t mean to write legal gibberish because you’re not a lawyer. Yes, that means you, Ezra Klein.
You can go ahead and reset the “Days Since Vox Had A Lost Credibility Incident” calendar back to zero. Today’s lost credibility incident is brought to you by Vox editor-in-chief Ezra Klein.
In his response to criticism for his bad laws are good for the cause post, or what I now call the Big Hole, Klein, a non-lawyer but so very smart that he can perform brain surgery anyway, makes what can only be kindly described as a few “gaffes.” After Sean Davis and Popehat surgically explain the error of his ways, he inserts a “correction.”
Corrections: There were two sloppy copy mistakes in this piece. First, an initial version of the piece used “substantive due process” rather than, as intended, “procedural due process”. Also, in the section explaining why civil and college courts don’t use the tougher, “beyond a reasonable doubt” evidentiary standard used in criminal cases, I accidentally wrote that “preponderance of evidence is a higher standard” when I meant lower. That’s been corrected, and the rest of the section remains accurate on that point.
Yeah, copy editors often switch out “substantive” for “procedural” due process all the time. It can happen. But after this flagrant error that would be laughed at by any 1L was made, it was corrected. As it should be.
But does the rest of the section “remain” accurate on that point?
The Yes Means Yes law just doesn’t have much to do with procedural due process. Due process guarantees certain rights around most legal proceedings, like the right to a public trial and an impartial jury. But the Yes Means Yes law isn’t about legal proceedings. It’s about college hearings. And even there, it doesn’t have much new to say, one way or the other, on how those hearings should be conducted.
Why yes, “procedural due process” is the correct phrase. Why no, this doesn’t reflect even a basic grasp of either the meaning of the phrase or its implications.
But there’s a real issue here, and it goes far beyond Yes Means Yes, and into a harder question: what process should colleges uses for sexual harassment hearings? College hearings do not carry the full guarantee of due process that, say, criminal legal proceedings do.
While it’s true that academic hearings are not required to provide the “full guarantee” that criminal proceedings are supposed to, this is a non-sequitur. That the full panoply of procedural due process rights aren’t required to be afforded doesn’t mean that basic due process can be conveniently ignored. The problem is that things that are obvious to a lawyer, the right to be confronted with the allegations against you, to confront witnesses, to testify, to cross-examine, are bare minimums of procedural due process to assure minimal fairness.
Instead, Klein pounds home his proof:
This is why, for instance, students aren’t guaranteed legal representation in plagiarism hearings.
Well, there you go. Is it Miller Time yet? But Klein, despite his facial acknowledgement when digging the Big Hole that the sacrifice of innocent men can’t be helped, instead tries to be all things to all people:
There’s no contradiction between a fair and clear process, real protections for the accused, and an affirmative consent standard — and there’s no reason one shouldn’t support all of them simultaneously, as I do.
How long before they replace John Harvard’s bronze statue with Ezra’s? Except this facile pat on his own back, “as I do,” demonstrates a lack of understanding of the word “contradiction.” There is indeed good reason why one “shouldn’t,” or more accurately, can’t, support all of them simultaneously.
While my first inclination is to respond with the same degree of depth as Klein uses to assert his fabulosity, my lawyerly instincts forbid me to be so shallow, and so I will reply substantively even if Klein merely proclaims his grooviness. Affirmative consent is replete with ambiguity, whether as to the degree of incapacitation from drugs or alcohol, or the secret hidden reason behind “yes” because a woman claims the next day that she was afraid to say “no,” or even the midstream change of heart, to which it entitles a woman even in the absence of any expression to that effect.
Forget the silly “consent is sexy” piece and consider the ambiguity, which Klein readily concedes.
…I say that for a consent culture to be established, college boards will have to “convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations,” and that the stories of those convictions, which will often feel deeply unfair to accused and even sound unjust when described by the accused, will have to become broadly known to parents and college students. But I think Chait and I have very different definitions of ambiguous.
He seems, worryingly, to equate “ambiguous” with “innocent.”
Granted, this might not be in the curriculum until the second year of law school, but when you’re going to play pundit and try to use law to rationalize your position, you’re still held accountable (and yes, it will be on the test). It’s not that he “seems” to equate “ambiguous” with “innocent,” you oaf, but with not guilty. Write this down: The Rule of Lenity. Ambiguity is construed in favor of the accused, because under our system of laws, we do not hold someone culpable for wrongdoing unless they have clear notice of what constitutes wrongful conduct.
And this is where it all changes from law, which Klein unmercifully abuses, to politics, which is a different animal altogether. He buys into the “consent tax,” a cute phrase coined by Amanda Taub to express the terrible burden of having to interact with other human beings, who can be such a drag, such a burden, so exhausting. Why should women have to carry this burden? Why can’t the burden of human interaction be all about making their lives easier?
Had Klein limited his argument to the consent tax, he might well have been subject to the same public castigation because it’s absurd, but he wouldn’t have been ripped a new one for his failure to demonstrate a working grasp of the language or concepts he uses in his defense. Instead, he committed the heinous offense of Abuse of Legal Concepts In The First Degree.
Verdict: Guilty. Sentence: Public ridicule. Sentence is hereby imposed. How’s that for due process. Ezra?
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Hey, at least Ezra had fair notice. Or as we like to say in California, “Have a dictionary.” (Okay, really it’s only me who says that, but you get the point.)
In the olden days, when we didn’t know the meaning of a word, we looked it up. Today, they make it up. Making it up is easier and more fun, plus you can then use cool words and no one can question what you mean because they would be WRONG!!!
‘I don’t know what you mean by “glory”,’ Alice said.
Humpty Dumpty smiled contemptuously. ‘Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!”‘
‘But “glory” doesn’t mean “a nice knock-down argument”,’ Alice objected.
‘WHEN I USE A WORD,’ Humpty Dumpty said, in rather a scornful tone, ‘IT MEANS JUST WHAT I CHOOSE IT TO MEAN — NEITHER MORE NOR LESS.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.’
Alice was too much puzzled to say anything; so after a minute Humpty Dumpty began again. ‘They’ve a temper, some of them — particularly verbs: they’re the proudest — adjectives you can do anything with, but not verbs — however, I can manage the whole lot of them! Impenetrability! That’s what I say!’
‘Would you tell me please,’ said Alice, ‘what that means?’
‘Now you talk like a reasonable child,’ said Humpty Dumpty, looking very much pleased. ‘I meant by “impenetrability” that we’ve had enough of that subject, and it would be just as well if you’d mention what you mean to do next, as I suppose you don’t mean to stop here all the rest of your life.’
‘That’s a great deal to make one word mean,’ Alice said in a thoughtful tone.
‘When I make a word do a lot of work like that,’ said Humpty Dumpty, ‘I always pay it extra.’
‘Oh!’ said Alice. She was too much puzzled to make any other remark.
‘Ah, you should see ’em come round me of a Saturday night,’ Humpty Dumpty went on, wagging his head gravely from side to side, ‘for to get their wages, you know.’
(Alice didn’t venture to ask what he paid them with; and so you see I can’t tell you.)
‘You seem very clever at explaining words, Sir,’ said Alice. ‘Would you kindly tell me the meaning of the poem called “Jabberwocky”?’
‘Let’s hear it,’ said Humpty Dumpty. ‘I can explain all the poems that ever were invented — and a good many that haven’t been invented just yet.’
This sounded very hopeful, so Alice repeated the first verse:
”Twas brillig, and the slithy toves
Did gyre and gimble in the wabe:
All mimsy were the borogoves,
And the mome raths outgrabe.’
‘That’s enough to begin with,’ Humpty Dumpty interrupted: ‘there are plenty of hard words there. “Brillig” means four o’clock in the afternoon — the time when you begin broiling things for dinner.’
‘That’ll do very well,’ said Alice: ‘and “slithy”?’
‘Well, “slithy” means “lithe and slimy”. “Lithe” is the same as “active”. You see it’s like a portmanteau — there are two meanings packed up into one word.’
‘I see it now,’ Alice remarked thoughtfully: ‘and what are “toves”?’
‘Well, “toves” are something like badgers — they’re something like lizards — and they’re something like corkscrews.’
‘They must be very curious-looking creatures.’
‘They are that,’ said Humpty Dumpty; ‘also they make their nests under sun-dials — also they live on cheese.’
‘And what’s to “gyre” and to “gimble”?’
‘To “gyre” is to go round and round like a gyroscope. To “gimble” is to make holes like a gimlet.’
‘And “the wabe” is the grass-plot round a sun-dial, I suppose?’ said Alice, surprised at her own ingenuity.
‘Of course it is. It’s called “wabe” you know, because it goes a long way before it, and a long way behind it —’
‘And a long way beyond it on each side,’ Alice added.
‘Exactly so. Well then, “mimsy” is “flimsy and miserable” (there’s another portmanteau for you). And a “borogove” is a thin shabby-looking bird with its feathers sticking out all round — something like a live mop.’
‘And then “mome raths”?’ said Alice. ‘I’m afraid I’m giving you a great deal of trouble.’
‘Well, a “rath” is a sort of green pig: but “mome” I’m not certain about. I think it’s short for “from home” — meaning that they’d lost their way, you know.’
‘And what does “outgrabe” mean?’
‘Well, “outgribing” is something between bellowing and whistling, with a kind of sneeze in the middle: however, you’ll hear it done, maybe — down in the wood yonder — and, when you’ve once heard it, you’ll be quite content. Who’s been repeating all that hard stuff to you?’
‘I read it in a book,’ said Alice. ‘But I had some poetry repeated to me much easier than that, by — Tweedledee, I think.’ . . .
I confess to taunting Klein a little bit yesterday on Twitter by urging him to sit for the bar. He surely stepped in it this time.
You’ve given a lovely explication of Klein’s ignorance. For Klein, like the rest of [redacted] crew, “unknown unknowns” are a recurring bane and a source of constant embarrassment. Rummy’s “Observations on Knowns and Unknowns” is as reliable as Murphy’s Law and Darwin.
Stupid knows no political party. Let’s leave that out of it.
There is something about the zeitgeist that is so well embodied in a thirty year old know-it-all “wonk” blithely eschewing the “golden thread” of Anglo-American justice with a hand wave and a smirk.
Multiply that by millions and that’s the internet.
When I first read your prose containing this snippet, “because under our system of laws,” my wee brain interpreted it as, “because under our system of [f]laws,” and it made so much more sense . . . Tru story, bra . . .
Bra? Bra? You did that on purpose. I feel so used.
Yes! means no bra, bro . . .
Is the Rule of Lenity constitutionally required as a matter of procedural due process? See Bailey v. Lampert 153 P. 3d 95 98 (Ore. 2007) (“Assuming that the rule ever truly existed, ORS 161.025(2) requires that we construe penal statutes “according to the fair import of [their] terms,” rather than construing them “strictly.” In other words, the legislature has eliminated the availability of any “rule of lenity” by statute.”)
In addition, it’s a rule of statutory construction so it doesn’t make sense to talk about in the context of ambiguous situations rather than ambiguous statutes. A fact finder certainly isn’t required to resolve any ambiguity in favor of the defendant by the rule of lenity – the question is whether the applicable burden of proof has been met.
First, an Oregon opinion? That’s pretty embarrassing. Second, we’re addressing the CA statute (and the rules applying affirmative consent), which are statutory construction. It’s not the job of conduct to be unambiguous, but the job of the statute/rule to apply to conduct unambiguously. And yes, the foundation for the rule of lenity is procedural due process. This was a remarkably rookie comment. I hope you’re not a lawyer yet.
Not a criminal lawyer, so the world is safe.
On the “consent tax” issue, usually with such things you want the cost to be borne by the “least cost avoider.” I wonder who that is in this case?
How long before we see a social media app for yes means yes? I can see it now, both parties launch the app and then bump phones to signify approval to bump. Then the app will text notify a nearby (via GPS location) friend (witness) who can either block or approve the bump. Why am I not writing this code right now and coming up with a marketing campaign.
I hear there already is an app.
There is. The people behind the California law hate it because–I kid you not–they consider it ripe for abuse.
Portion of a MS Found in a Klein Bottle immersed in the Sea of Holes. Initially praised as new orientation for criminal law, but quickly proved to be non-orientable:
Rigid concepts of law need annealing
To balm and assuage and bring healing.
Ad hoc and Ad loc,
Quid pro quo ’til you croak.
The law must cure victims’ hurt feeling!
>While my first inclination is to respond with the same degree of depth as Klein uses to assert his fabulosity, my lawyerly instincts forbid me to be so shallow, and so I will reply substantively even if Klein merely proclaims his grooviness.
Man, I was really hoping that you were going to follow this by, well, replying substantively. But while you’ve gone to law school and Ezra Klein has not, after reading his post I think I know what he’s saying, whereas after reading yours I’m still in the dark.
Klein seems (to me) to be saying: 1) college sexual harassment proceedings are ultimately about whether or not to sever a voluntary business arrangement, and so legally (and ethically!) needn’t be held to the same standards as criminal trials, but can follow the same standards as college plagiarism proceedings, for instance; and 2) if this change seems to weight things against college guys, maybe it’s a welcome corrective for generations of culture that weighted things against college girls.
As best I can figure, you’re saying either: 1) Ezra Klein misused a legal term of art; let’s all point and laugh; or 2) college sexual harassment proceedings are still legally bound to follow some rules that you don’t mention specifically, for reasons you don’t describe; or 3) as a lawyer, you know more about ethics and fairness than non-lawyers do, and whatever the legal picture may be, anything called a “proceeding” is *ethically* bound to permit “the right to be confronted with the allegations against you, to confront witnesses, to testify, to cross-examine” or else it just isn’t fair.
If I’m reading you right, you don’t really address Klein’s main points directly. Like, why do you think college sexual harassment proceedings should be held to different standards than college plagiarism proceedings? I could imagine a case being made that they should; or, conversely, that colleges shouldn’t toss people out on their ears for barely-proven plagiarism allegations either; but you don’t seem to make either case here.
Similarly, why do you think the “consent tax” notion is absurd? You say so in several different ways, but without addressing the notion directly. (You brush it off as “the terrible burden of having to interact with other human beings” but without even nodding toward its central contention, that one identifiable class of people is systematically subjected to a *considerably greater* interaction burden than another, or considering the implications of *that* for, say, fairness and ethics).
There are a great many people on the interwebz. Some are capable of reading and understanding. Some are not. I can only explain it to you. I can’t understand it for you. Sorry.
On the bright side, it appears that a great many people do not share your confusion, which speaks well for our educational system.
So you seriously thought you were going to goad SHG into playing your game? Rube.
I’m busy. If I had more time, I might have played with him a bit. Just for fun.
He’s had some great posts in the past, which made clever and logical points in clear and convincing ways. And this post spends so *much* time talking about being a lawyer, I had this romantic notion that he might respond to a pundit like Klein who makes an actual argument by, well, responding to the main points of the argument, instead of, you know, the pointing and laughing thing.
I’m sure it’s fun and makes everybody feel very good about themselves. But it isn’t very illuminating, let alone convincing, for anyone whose mind isn’t already made up. Personally, I’m on the fence about the “only affirmative consent” thing– I see people on both sides pointing to awfulness and I’m not sure who has the right of it. Obviously I was looking in the wrong place for help there.
If you read this post as pointing and laughing, and thus without substance, I can’t help that. I don’t rewrite posts for each and every person who lacks the capacity to understand the points made. As for using my failure to cater to you as evidence of anything, that too is your choice. It’s of no significance to me or anyone else. The post says what it says. You take away what you take away. If this is the “wrong place for help” for you, then I will just have to live with those harsh words.
David, I’m going to assume you’re a man. Do you really believe that, in the dating arena, women bear the vast majority of the burden, let alone enough of a burden to require legal remedy? I would be shocked if that conclusion matchex your personal experiences.
“why do you think college sexual harassment proceedings should be held to different standards than college plagiarism proceedings?”
Because colleges are qualified to determine if plagiarism has taken place but are not qualified to handle a criminal proceeding. Did the college you attended have a crime lab?
“if this change seems to weight things against college guys, maybe it’s a welcome corrective for generations of culture that weighted things against college girls”
A wise man once said “darkness can not drive out darkness, only light can do that.”
Klein sneers, “This is why, for instance, students aren’t guaranteed legal representation in plagiarism hearings.” Isn’t this a valid question that he is begging? To my ignorant lay mind, the biggest difference between sexual misconduct hearings and plagiarism hearings is that the former is now mandated by the federal government, while the latter is a matter between the student and his professor or school.
If we let congress get away with mandating that schools set up kangaroo courts for students accused of rape, why shouldn’t they try to require that web hosting sites set up kangaroo courts for bloggers accused of harassing candidates? Or that homeowners associations set up neighborly tribunals for people accused of putting up unfriendly signs?
More than that, being expelled from college as a rapist follows someone forever. It’s not like plagiarism. Not at all.
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