Author Archives: SHG

Cornell’s Compelling State Interest

As a freshman at Cornell’s School of Industrial and Labor Relations, I was required to take Labor History. My professor, Roger Keeran (who was also my advisor) was a bit of an anarcho-syndicalist and a huge fan of the Wobblies.  It cost him tenure.

I liked Prof. Keeran a lot, though I disagreed with him about pretty much everything. Except the music. The IWW had the best music of any labor movement. I still have a cassette tape of Wobbly songs he made for the class.  But his politics was off the charts, and served to turn many of my fellow frosh into passionate pro-union advocates.

When I was there, the only source of news was the Cornell Daily Sun. A few years after I graduated, the Cornell Review was founded, with some undergrad named Ann Coulter as its editor. Despite this, it offered an alternate voice, and still does. It’s introduction to Cornell’s new president, Elizabeth Garrett, made me think that Roger might want to reapply for his old job.

“We must heed the call to be radical and progressive.”

Continue reading

Mandatory Minimums Meet Des Moines

I like Des Moines as much as the next New Yorker. Maybe even more, given than I’ve had the pleasure of barbecue at Flying Mango. But knowing that its senator, Chuck Grassley, is doing everything possible to make sure that mandatory minimums aren’t altered by the Smarter Sentencing Act, rubs me the wrong way.  And as chair of the Senate Judiciary Committee, Grassley’s love of prosecutors and hatred of reform is a major stumbling block.

At op-ed in the Des Moines Register by two former federal prosecutors, J. Douglas McCullough and Eric Evenson, the former now serving as a North Carolina Court of Appeals judge, pitches Grassley’s position to his constituents.  It runs through the usual litany of how valuable mandatory minimums are to prosecutors as the means of coercing cooperation and pleas without being put to the crucible of trial to prove guilt.

There is no doubt that prosecutors adore mandatory minimums. It makes their job far easier, and since they believe that what they’re doing is right, that every person they prosecute it guilty, there can be no downside to “getting” the people they decide to get. As is the usual case, the government builds systems that don’t allow for the possibility that the government could be wrong.

That this is offered for the benefit of backing Grassley seems clear by this bone tossed his way: Continue reading

The DoE Office of Civil Rights Gone Rogue

While it’s clear to those who labor under the limitations of law that colleges and universities adoption of the “guidance” of the Department of Education’s Office of Civil Rights’ “dear colleague” letters is not a legal mandate, but rather cowardly acquiescence, a video, via FIRE’s Greg Lukianoff at Instapundit, of Sen. Lamar Alexander (R-TN) questioning Deputy Education Assistant Secretary Amy McIntosh drives the point home as clearly as possible.

Even McIntosh, despite her dodging and weaving, concedes that Catherine E. Lhamon, Assistant Secretary for Civil Rights and head of the DoE Office of Civil Rights has gone off the reservation.  She has no lawful authority to mandate colleges and universities adhere to her political whims, as reflected in her “guidance,” upon pain of losing federal funds.* Continue reading

The New Virtual Violence

After reading all seventeen thousand words of Ken White’s “few comments” on the United Nation’s Broadband Commission Report on “Cyber Violence Against Girls and Women,” I posed a question that could be alternatively viewed as socratic or snarky:

Help me out so that I can better understand the post. Can you define online harassment and violence. If they’re the evils to be cured, it would be very useful to know what conduct would give rise to a violation.

Ken replied that while the report failed to offer definitions, it was inconsequential until they “proposed specific laws against undefined violence,” the report being long on dubious rhetoric but otherwise largely noise, much of it sounding like weeping.

It’s a fair perspective, but the report indulges in a problem that has plagued us in the past, as words were disconnected from meaning, and found their way into common usage by mere rhetorical connections designed to convey some vague sense of wrongfulness.  Cyber violence?  The words paired together suggest something awful, yet mean essentially nothing. Continue reading

And Keep It To Yourself, Kids

The implicit threat of bad things happening if a child reveals to his parents that something happened is the stuff of sick pedophiles.  Or teachers and school administrators.  Via the Bangor Daily News:

South Portland’s superintendent and athletic director told CBS 13 yesterday afternoon that the entire South Portland High School Red Riots football team, rather than practice for tonight’s game against Sanford, were instead taken to a lecture hall, where they were questioned individually by the principal, athletic director and other administrators.

Athletic director Todd Livingston would not say the nature of the questioning, or what, if anything, they may have learned.

Word is that there was an incident of hazing, “where younger players on the team were asked by older ones to take substances.”  Certainly, that’s a matter of serious concern, and the school officials can hardly be faulted for taking it seriously and investigating whether, and what, happened.  Continue reading

The Difference Is Harm

Way back in the olden days, when words had definitions that weren’t altered by shedding tears of victimhood, there was a concept that pervaded criminal law: harm.  Many crimes included an element that the conduct prohibited caused harm to someone. It was a threshold requirement, and an escalation requirement. The more harm, the more serious the crime.

Harm was used because it was objectively ascertainable. If a person punched another person, but left no mark, the harm it caused was deemed too trivial to be worthy of legal recognition.  It wasn’t that punching people was a good thing to do, but not bad enough to invoke the moral culpability of criminal law unless it resulted in damage serious enough to cause some degree of objectively discernible harm.

Good times.

At Sui Generis, Niki Black noted a New York County Supreme Court decision by Justice Steven M. Statsinger that harkened back to those good old days of word having meaning.  In People v. Selinger, the defendant was charged with stalking and harassment, having taken to the internet to place her sister’s picture and telephone number online, together with hashtags that she was looking for sex. Continue reading

The “Legal” In Continuing Legal Education

It was bad enough that states began allowing Continuing Legal Education credit for courses in lawyer marketing.  You feel the need to market yourself?  That’s nice. So take whatever course you want, but that doesn’t mean is bears upon any purpose for which CLE credits are required.

The idea of continuing legal education was born of the notion that too many lawyers would allow their knowledge and skills to languish after passing the bar, leaving them substantively lacking while imbued with the monopolistic right to hold themselves out as qualified to represent others in the law.  CLE was made mandatory, since lawyers couldn’t be trusted to keep abreast of developments in the law on their own.  Schools and associations, not to mention a cottage industry of private fee-based providers, were authorized to provide CLE.  All to make lawyers more competent.  Really?

It was intended for the benefit of clients. And was then co-opted by lawyers for their own benefit. The argument was made that by better marketing, access to lawyers would improve, and clients would benefit by being able to find the “right” lawyer for their needs.  Continue reading

Safe Spaces For Bad Scholarship

When something appears on the pages of SJ, it’s subject to the harshest of peer reviews. You guys. Lawyers who have made their bones in the trenches, and can call out the content as total bullshit, completely wrong, unbearably stupid, if that’s the case. And you have.

But for law profs, their mechanism of choice is law review articles, and their “peer review” is getting some law students who happen to run their law school’s law review to accept their article and run it. Because, well, law students know stuff. Sure, they pass it through some academic pals of a feather, but that’s about as far as it necessarily goes.

A new means of trying to get popular recognition of law review articles that gain no traction on their own appears to be emerging, and it’s a troubling one.  Legal start-up Casetext is offering anyone and everyone a blank page to promote themselves, and it’s a dangerous mutt.  This is where Utah lawprof Shima Baradaran chose to post her USC Law Review article “Drugs and Violence.”

In a comment to Baradaran’s Casetext post, Tara Mikkilinneni, described as the Casetext “head of community” adds: Continue reading

When Liquor Touches Lips

When a putative advocacy group put out a flyer to freshmen that said, “if she has touched alcohol, do not touch her,” it was a terrible message.  In a system replete with vague and meaningless language, this fed the monster, validating the very problem that needs fixing.  And indeed, the College Fix twitted a poster from Southeast Missouri State University to the same effect:

No Alcohol Continue reading

Housekeeping: Thanks, But.

As my pal Ken says, “my people have no tradition of proofreading.” I write posts quickly. They’re not legal briefs, but blawg posts. I don’t proofread them. They have typos, and my editor, David, sends me corrections when he awakes from his drunken stupor. Until then, the typos remain.

I could spend my time proofreading, but I choose not to. I prefer instead to just write so that I can get the ideas out without fussing over the details. It’s not that I don’t care about typos, or that I wouldn’t prefer to correct them, but it’s the allocation of scarce resources: my time.

I appreciate it when people point them out to me so I can correct them, but when people leave comments about typos, it just burdens the comments with extraneous stuff. So, here’s the new deal: if you want to alert me to a typo, do so by any means you want, email, twit or comment.  Please know that I appreciate your doing so.

But if by comment, I will no longer post the comment, which I’ve done in the past as an acknowledgement to the correction. While I appreciate it, the comment will be trashed after the typo is corrected and I will no longer acknowledge or thank you for the heads up. I do this so my comments section will be limited to substantive ideas and not filled with typo comments.

Thanks. Carry on.

Cowardly Silence (Update)

At Wesleyan University, a fellow named Brian Stascavage wrote an op-ed entitled “Why Black Lives Matter Isn’t What You Think” for the Wesleyan Argus. The content of the op-ed is irrelevant, and won’t be mentioned at all. The reaction to it, on the other hand, is what prompts this post.

The school supported Stascavage’s right to express an opinion, no matter how unpopular it was with those who disagree with him.  The editors of the student newspaper caved in to popular pressure.  They were physically confronted by the reaction, with half their newspapers stolen and destroyed to prevent eyes from seeing Stascavage’s words. The staff of the Ankh, apparently an alternative newspaper for people of color, shows up at the Argus to make demands.  The editors of the Argus acceded to the demands, doing what had never been done before in reparation, a front page editorial disavowing Stascavage’s op-ed.

The destruction of papers was an awful response. The demand for speech contrary to Stascavage’s was entirely fair. It was up to the editors of the Argus to decide whether to agree to their demands, and they did. It was hardly a proud moment of journalistic integrity, but that’s a reflection on the editors, not speech. One guy expressed his views. Other people expressed theirs. Destroyed papers is not acceptable. More speech is. Continue reading

A Highly Scientific Study Proves Women’s Feelings Prevail

Words. Definitions. Feelings. Lies. Agendas. Sound and fury signifying nothing.

A new survey released Monday purports to prove that 1 in 5 women (or more) will be sexually assaulted while in college.

The survey, conducted by the Association for American Universities, included responses from 150,000 students at 27 colleges and universities, including many Ivy League schools.

Whether fault should be levied on the AAU for the study, for its methodology, or whether no study, no matter how sincere in its effort, could achieve a valid conclusion is unclear.

There are plenty of reasons to believe that the study was framed in such a way as to steer clear of some criticism, such as its broad definition of rape and sexual assault, intended to be sufficiently inclusive that no advocacy group could claim it left anything, anyone out.  Then again, definitions accepted, no demanded, on college campuses defy any cognizable definition anymore. Continue reading