Catherine Lhamon: Come On Baby Light My FIRE

As advocacy groups go, The FIRE, Foundation for Individual Rights in Education, is a good one. Its work on freedom of speech on campus has accomplished a great deal, which is really quite amazing given the flip-flop of academia from free speech to outright censorship. But when it comes to Title IX, it’s given away half the battle.

An advocacy group called the Foundation for Individual Rights in Education has argued for years that the Education Department guidance violates students’ due process rights. By reducing the burden of proof for sexual assault cases, the guidance by definition reduced the amount of certainty needed to issue punishment, said legislative and policy director Joe Cohn. “It is uncontroversial that there are both people who get away with things that they have done and there are innocent people who are getting expelled,” Cohn said. In response to the department’s guidance, campuses are “actively reducing due process protections, which is increasing the margin of error.”

Campus sexual assault adjudications, discussed here ad nauseam, certainly raise monumental due process problems, together with the question of whether the standard of proof, preponderance of the evidence, as dictated by the “Dear Colleague” letter from the Department of Education’s Office of Civil Rights, is grossly inadequate. Continue reading

The Old Folks Home

When some hated miscreant is convicted for a heinous crime, his angry, contorted, young face snarling out at you from the image in your newspaper, on your screen, it’s so easy to scream that he must be locked up for decades, centuries, until the day he dies, because it’s all so scary and he can’t hurt someone if he’s behind bars. What about the children? What about you?

So the answer has been easy, and one that’s rewarded politicians consistently: increasing the length of imprisonment, punishment, isolation, because, well, who really gives a damn if this person who has demonstrated an unwillingness to live amongst others according to the rules of acceptable behavior ever breathes free air again? It’s a simple solution to a complex problem, but it’s good enough and makes complete sense. Most importantly, you just don’t care enough to risk a headache thinking any more about it. Problem solved.

But years pass, and young men become old men, even older than they would normally age, because prison life isn’t nearly as much fun as you would think.  Three years out, there’s a vague recollection of the harm done. Five years, barely a twinkle. Ten, twenty, fifty, they’re mostly forgotten. Continue reading

Free Speech Isn’t Free If There’s A Price

William Laurence Stanley left an unflattering review on Yelp about a mergers and acquisitions company, Generational Equity. For his efforts, he was convicted of a crime. He argues that his conviction violates his First Amendment rights.

Stanley, 54, says he was exercising his right to free speech and that everything he wrote about the company is true. He vowed to seek a trial and mount a First Amendment defense.

“This is America and you cannot shut up someone that is speaking the truth,” Stanley wrote The Dallas Morning News from prison via an email service.

Outrageous? Well, not so fast. Continue reading

Special Rights For Special Needs

As Jacob Sullum notes at Reason, the good news is that the en banc Eighth Circuit held that blanket drug testing for students at Linn State, or officially, State Technical College of Missouri, was unconstitutional.

Last week a federal appeals court ruled that requiring incoming students at a state college to surrender their urine for drug testing violates the Fourth Amendment’s ban on unreasonable searches. The decision is a welcome departure from a body of case law that usually defers to the government’s perception of “special needs” that supposedly justify analyzing people’s bodily fluids without a warrant or any evidence that they pose a threat to public safety.

The bad news is that the kids still have to pee in a cup if they want to be in certain programs at Linn State, characterized as “safety sensitive.”

Linn State’s primary argument was that a drug-free school was an inherently good cause. Continue reading

And The 2016 Jdog Award Goes To…

Last year, I queried whether there would be an 8th Annual Jdog award.

This marks the 7th year of the Best Criminal Law Blawg Post, and there was a very serious question of whether the crim law blawgosphere would have the legs to make it this far.  So many of the blawgs that existed when the contest began have since gone dormant that it seemed, at the time, that there would be little left from which to choose.

As it turns out, there is not only life remaining in the criminal law blawgosphere, but some damn fine writing out there, as reflected in the nominations (as well as some truly excellent criminal law blogs that, inexplicably, didn’t muster a nomination but are still doing great work).

The same was true this year, but a different issue arose. While the problem with criminal law blawgs fading into the sunset was disturbing, and for those of you who wondered why Fault Lines exists, you might want to noodle this a bit, this year was shy of nominations.   Continue reading

Evidence v. “Enlightenment”: The Unfairness Of It All

Good friends have informed me that I’m unfair. Mea culpa. They tell me I hold progressives to a higher standard of logic than the groundlings who have gone conservative. By “groundlings,” I don’t intend to be insulting, but rather lack a better descriptor. I mean working people, those for whom feeding the kids, hard work, banal concerns such as how they’re going to pay the rent, are foremost on their minds.

In fairness, there’s a sound reason for this. The leading voices of progressivism enjoy the privilege of greater education, the comfort of knowing where their next meal is coming from, the joy of having the opportunity of basking in Abe Maslow’s self-actualization. They can afford to complain about paper cuts because they don’t have to worry about losing their legs.

The groundlings, on the other hand, are by no means stupid, as one would realize if one would only listen to them. But progressives too often don’t, even if they claim they do, because they say things that progressives reject, and use words that progressives refuse to allow. By choosing to believe they’re stupid (or racist, sexist, deplorable, pick ’em), they can dismiss them from their world, castigate them and listen only to the dulcet tone of their choir. Continue reading

2017 Regulating Fantasy, Returning Reality

After notice and comment, as required by the Administrative Procedures Act, the Department of Health and Human Services issued a regulation.

The Health and Human Services (HHS) regulation “forbids discriminating on the basis of ‘gender identity’ and ‘termination of pregnancy’” under Obamacare, as US District Court Judge Reed O’Connor wrote in his opinion halting enforcement of those provisions in the rule.

The regs were to go into effect today. Judge O’Connor issued a nationwide injunction, the last of 2016. A few states, led by Texas, together with religious affiliated groups, headed to a reliable court and got what they came for.

Explaining the lawsuit, O’Connor wrote, “Plaintiffs claim the Rule’s interpretation of sex discrimination pressures doctors to deliver healthcare in a manner that violates their religious freedom and thwarts their independent medical judgment and will require burdensome changes to their health insurance plans on January 1, 2017.”

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Is There A Logic Of Empathy? A Thought To End 2016

When Sonia Sotomayor noted empathy as a trait in favor of her appointment to the United States Supreme Court, it evoked some concern. Her statement broke from the view espoused by Ruth Bader Ginsburg at her confirmation hearing.

In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O’Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” said Judge Sotomayor, who is now considered to be near the top of President Obama’s list of potential Supreme Court nominees.

Is empathy, “the capacity to experience the feelings of others, and particularly others’ suffering,” a good thing? It would seem to be obvious, but at Room for Debate, Yale’s Paul Bloom argued that it could produce tragic results. Continue reading

A Twit Of Treason

As treason may be committed against the United States the authority of the United States ought to be enabled to punish it: but as new tangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other, the Convention has with great judgment opposed a barrier to this peculiar danger by inserting a Constitutional definition of the crime.

–James Madison, Federalist 43, as reported in the New York Times, January 25, 1861

Whether the policy decision or its execution suit your pleasure, President Obama took action against Russia and, in response, Vladimir Putin did not. Naturally, PEOTUS felt compelled to twit.

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Those Who Can, Do

Maybe the most meta-pedagogical post ever. At PrawfsBlawg, Toledo law prof Agnieszka McPeak teaches the other prawfs how to use twitter.

I’ve put together some tips for tweeting, which may be useful for those who are new to Twitter or who don’t tweet much. And for more experienced users, I’ve included info on some of the 2016 changes to Twitter.

Twitter’s most distinctive trait is its 140-character limit for all tweets. This format cuts down on text and allows for a quick view of a lot of content.

But it’s not all fun and games. So Twitter, how does it work? Continue reading

Free Speech, ACLU Conditions Apply

ACLU lawyer Josh Block was having none of it. Eugene Volokh pondered the question of whether University of Oregon law professor Nancy Shurtz wearing blackface to a party was racist. This is mentioned not because of Eugene’s analysis or outcome, but because he deigned to ask the question.

For this, Block attacked him because Eugene wasn’t black. Since blackface wasn’t something that, from Block’s perspective, a white person would find offensive, Eugene could not “persuasively”* parse the question, arrive at an answer. It wasn’t that he doubted Eugene’s bona fides as a First Amendment scholar, “There are 1A principles at stake but can’t just use examples of speech you don’t personally find offensive.”

The reaction came from Josh Blackman, who has emerged as one of the boldest academics in law these days,

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Starting A War On The Way Out The Door

When Bill Clinton’s staff left their desks for the final time, they’re reputed to have taken the “W”s off the keyboard. Childish, but funny. But childish.

The agency put the cost at $13,000 to $14,000, including $4,850 to replace computer keyboards, many with damaged or missing W keys.

Other “pranks” might sound more like what would be expected in this peaceful transition of power.

Six White House employees told investigators that they had seen graffiti derogatory to Mr. Bush on the wall of a stall in a men’s room. Other White House employees saw a sticker in a filing cabinet that said, ”Jail to the thief,” implying that Mr. Bush had stolen the 2000 election.

Continue reading