While some would argue that this proposed law impairs the right to contract, it’s not really true. Contracts on the internet are characterized by “adhesion,” meaning that you don’t get an option to negotiate terms, as you would in a person to person contract negotiation. You can take it or leave it, and if you “need” what they’re selling*, then you take it. More to the point, no one reads them, anyway, and no one knows what they’re giving away.

Both houses of Congress have now passed bills prohibiting contracts that preclude individuals from, or penalize them for, making negative reviews. Both the Senate’s and House’s versions offer protection:

(b) Invalidity Of Contracts That Impede Consumer Reviews.—

(1) IN GENERAL.—Except as provided in paragraphs (2) and (3), a provision of a form contract is void from the inception of such contract if such provision—

(A) prohibits or restricts the ability of an individual who is a party to the form contract to engage in a covered communication;

(B) imposes a penalty or fee against an individual who is a party to the form contract for engaging in a covered communication; or

Continue reading →

She led the townswomen carrying pitchforks and torches to burn down Judge Aaron Persky’s bench for not having destroyed Brock Turner’s life. But after Stanford shrew, Michelle Dauber, was called to account for the inconsistency of hating whom she wanted to hate despite not hating whom she didn’t, Dauber found herself in a conundrum.  How to have it both ways?

When ex-Stanford University swimmer Brock Turner became a registered sex offender for life last Tuesday, he joined a nationwide list of registered sex criminals that has grown dramatically in recent years to more than 800,000.

Even some who have denounced Turner’s six-month jail sentence as too lenient for sexually assaulting an unconscious woman question whether he should spend his life with the stigma and onerous restrictions of a registered sex offender.

Denounced as too lenient? Well, that’s rather harmless. After all, I thought it was too lenient. Ken White thought it was too lenient.  Michelle Dauber? She wanted him executed, then castrated, then executed again, this time with the judge, and his little dog too.   Continue reading →

Some years ago, when lawprof Danielle Citron was throwing her Cyber Civil Rights Symposium, then-adjunct prof Marco Randazza called it a “circle-jerk,” much to the distaste of the tenure track academics. They didn’t appreciate his coarse language, but worse, they didn’t appreciate his calling out their lying to each other. Inside the circle of like-minded believers, nobody points out that a fellow traveler is full of shit.

When New York Law School professor Ari Waldman threw a conference named after Tyler Clementi, no one was invited who wasn’t inside the circle. Indeed, some of the speakers have been subject to criticism here. There were no discouraging words to be heard, but tons of applause for the lies they told themselves.

One of the most curious aspects of the conference was that its purpose was to eradicate cyber-harassment. I asked Ari at the time to define cyber-harassment. After all, if you’re going to throw a conference about eradicating something, it would seem necessary to know what exactly you were arguing should be eradicated.  Ari’s response was typical academic deflection: Continue reading →

The video went viral, as it should. Hillary Clinton nearly collapsed.

A few hours later, her campaign announced that she had been diagnosed with pneumonia a few days earlier. It raised questions of whether this was true and why it was concealed. After all, pneumonia happens. It’s not a loathsome disease that reflects poorly on a person’s hygiene or posterity.

Concealment, on the other hand, is a different issue, especially for someone who polls show has serious trust issues.  The rationale for keeping health issues under wraps is obvious. Hillary Clinton’s health has been challenged, that she suffers from some debilitating health issues that would make her an inappropriate candidate for president, has for some time and is being dishonest about it.

Assuming it is pneumonia, and despite the best efforts at diagnosis over the internet, there is no basis to assume this is false, it’s not a big deal. Presidents get colds, the occasional flu, and sometimes puke on foreign dignitaries. Stercus accidit. Even people in high office get sick.  Continue reading →

Can math be racist? Efforts to change the means by which defendants are sentenced, to end the voodoo of gut sentencing, to empiricism have been around since the Sentencing Reform Act of 1984, which birthed the dreaded United States Sentencing Guidelines. And deeper efforts, championed by Senior Nebraska Judge Richard Kopf, are still in the works, even after the Supreme Court backed off its misbegotten Mistretta mandate in its punchline opinion in Booker.

The attraction is obvious, particularly in a world that has come to adore binary thinking, the belief that data doesn’t lie. It may not make us happy because it reveals truths we would prefer to hide behind flowery words, but it is truth nonetheless.  Whose truth, however, has remained an issue, as the empirical research of J.C. Oleson shows significant correlation between poverty and recidivism.

To be clear, the criterion wouldn’t be that black defendants would be sentenced longer because they were black, for example, but that poor people whose parents had criminal histories and didn’t graduate high school would be sentenced longer because, empirically, they would be more likely to be recidivists. Entirely different?

By raising the question of poverty as a proxy, which fails in my opinion for a variety of reasons ranging from “correlation not proving causation,” to its inadequacy as a proxy (say, a 74% reoffend correlation rate, statistically significant for empirical purposes, means 26% of defendants will be sentenced to a longer sentence than parsimony would allow, which is just plain wrong), to its placing the full weight of recidivism on the defendant.  “What,” you ask? Continue reading →

Some, particularly newer readers, may wonder why no post today about 9/11. This will explain.

There was resounding applause when the Supreme Court held that mandatory life without parole was unconstitutional for juveniles. Certainly, everyone understood that what makes kids kids was that their brains were still developing. While they could physically do harm, sometimes terrible harm, they lacked the intellectual capacity to appreciate the harm in a mature way. Everyone gets that, right?

But the New York Times says Michigan prosecutors don’t, and they’re “defying” the Supreme Court’s rule. How are Michigan’s prosecutors ignoring the Supreme Court?

Across the state, they are flouting the justices’ clear message in two recent decisions. The first ruling, in 2012, banned mandatory life-without-parole sentences for juveniles in homicide cases. While the court did not prohibit life-without-parole sentences for juveniles completely, it has said that punishment should be used only in the rarest cases — when the defendant “exhibits such irretrievable depravity that rehabilitation is impossible.”

In January, the justices clarified that this rule applies not just going forward but to every inmate already serving such a sentence, or about 2,500 people nationwide.

Continue reading →

A defendant was sentenced for his crime and, upon its completion, returned home, only to find protesters, armed with rifles, calling for his death. He was just 21 years old.

Good thing or bad? The hypocrisy with which we approach law and crime can be rationalized away by the passionate, but it’s all a huge, steaming pile of crap. The description could apply to any number of people, but here it applies to only one.  And the people carrying rifles, calling for his death, aren’t a bunch of “deplorables,” as so many have come to embrace under a tit for tat justification because their hate is better than the other people’s hate.

This happened to Brock Turner.

Brock Turner was released from the Santa Clara County jail in California on Friday after serving just three months of his six-month sentence for felony sexual assault, as predicted. As he walked out the doors of the jail, 21-year-old Turner was met with angry chants, protest signs, and at least one disgusted law enforcement official. “We don’t know who picked him up or where he’s going, but we’re done with him,” Santa Clara County’s sheriff, Laurie Smith, told reporters. “He should be in prison right now, but he’s not in our custody.”

Continue reading →

One thing must be admitted off the top: we don’t know why Tyler Clementi committed suicide. Even if you actually knew Clementi, which you don’t, you don’t know what was going on in his head. If you did, you would have stopped him, but you didn’t. And if you didn’t know him, and you didn’t, you have no idea what made him commit suicide.

You may believe it was the humiliation caused by Dharun Ravi’s outing him as gay in their Rutgers dorm, but that’s just a belief that can neither be proven nor disproven. You don’t know. I don’t know. Nobody knows. If you can’t admit this, then there’s nothing more to discuss.

But Dharun Ravi was convicted of a laundry list of crimes, none of which involved Clementi’s death. But they were all a proxy for Clementi’s decision to commit suicide, because of how Ravi’s actions made Clementi feel.

Wails were heard across Middlesex County.  Curiously, the judge did not impose the presumptive ten year sentence of imprisonment because he did not believe Ravi was biased against gays: Continue reading →

When news broke that Wells Fargo fired 5300 employees and agreed to a penalty of $185 million, it was shocking.   There were three reasons for this shock:

1. The scope of the fraud was massive
2. The penalty was, to a bank with a market valuation of $250 billion, the highest of any bank in America, trivial
3. Of the 5300 employees fired, not one was an upper echelon corporate executive.

Turned out that trench level people were being relentlessly pushed to produce new accounts, new credit cards, anything new that produced new fees, and so they did. Just without the knowledge of the putative account holders, even though they were being charged (or penalized, as the case may be) for these accounts.

Former employees tell CNNMoney that they felt incredible demands from managers to meet sales quotas. The same managers turned a blind eye when ethical and even legal lines were crossed. Continue reading →