Two phenomena have made understanding of the law, and discussion about the law, very difficult over the past decade. The first involves words which are untethered from discrete definitions such that they encompass vague senses of what they mean, maintaining their negative connotations while becoming sufficiently meaningless to encompass whatever a person chooses to impute into the word. “Rape” is the foremost example of this phenomenon.

The second is the manufacture of words and phrases that never before existed, have no cognizable definition, but create the impression of a meaningful word or concept when it provides no parameters, no hard limits, to what it means. Examples of this range from “systemic racism” on the left to “critical race theory” on the right, and “woke” on both sides. Continue reading →

It was a bold move, writing for the “dark web” publication, Quillette, when you’re a professor at a school like Princeton at a time when your campus is in upheaval following George Floyd’s murder and the ensuing protests, open letters and “anti-racist” demands. But tenured classics prof Joshua Katz did it anyway.

In Princeton, New Jersey, on July 4th, 2020, just two hours after my family and I sat around the festive table and read the Declaration aloud in celebration, a group of signatories now in the hundreds published a “Faculty Letter” to the president and other senior administrators at Princeton University. Continue reading →

In the wake of the baby formula shortage, former founding editor of Gawker, Elizabeth Spiers, after arguing against her feelings and needs being secondary to her baby’s, indulges in fantasy.

This is misogyny, no matter where it comes from. No one demands that fathers damage their bodies to demonstrate decent parenting.

If we could imagine a world where men had to breastfeed their babies — learning how to do it, enduring the frustration of the baby not latching on and the pain of chapped and inflamed breasts and figuring out how to continue to do it despite long hours at work, little support, nowhere to pump and not enough sleep — the formula shortage there would not be so dire. In that alternative reality, it’s hard to imagine that the industry in the United States would be dominated by just a few companies. Instead, I expect that we’d see a multitude of formula start-ups blossoming in Silicon Valley. Formula would not be stigmatized because it’s a choice men would want to have available to them.

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Florida’s governor is on a roll when it comes to enacting laws to micromanage people’s behavior, his latest being in response to concerns about protesters going to the homes of Supreme Court justices for their anticipated ruling in Dobbs. Not in Florida, Ron DeSantis says.

The law, signed by Gov. Ron DeSantis yesterday, provides:

(1) As used in this section, the term “dwelling” means a building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families. Continue reading →

The New York Times and the Washington Post agree with Congresswoman Liz Cheney, that the GOP has embraced white supremacy with its propagation of Replacement Theory.

The House GOP leadership has enabled white nationalism, white supremacy, and anti-semitism. History has taught us that what begins with words ends in far worse. @GOP leaders must renounce and reject these views and those who hold them.

Much of this is blamed on Fox pundit, Tucker Carlson, who has been one of the leading and consistent promoters of this theory. Continue reading →

Fair warning to all you former Above the Law readers who spent your days yelling “first” and making fun of Elie’s grammar and spelling. He’s my friend. We’ve been friends for a long time. I like Elie, and I was angry that you were so mean to him. Plus, Elie is one of the funniest guys I know, with not only an exceptionally sharp wit, but the ability to take a joke with the best of them. And as I review his first book, Allow Me to Retort, A black guy’s guide to the Constitution, which includes a very lovely inscription to me because I’m his white friend, I do so with the understanding and approval of what Elie’s trying to accomplish here. Continue reading →

Rape is one of the most serious crimes a person can commit. It carries substantial consequences and taints a person for the rest of their life. This is how it should be based upon our shared conception of rape. This is why the effort to transition the crime of rape from clear line to vague morass of affirmative consent has failed at the American Law Institute in efforts to “reinvent” rape up to now. But academics have not yet given up.

A major effort to update the model criminal code on rape may actually undermine new understandings of consent advanced by the #MeToo movement. Continue reading →

There is nothing, absolutely nothing, legally wrong with Aaron Sibarium’s Washington Free Beacon expose on the reactions of certain Yale law students against their follow students and in conflict with what one would expect from a law student, in general, and a student at as elite a law school at Yale, in particular. After all, what law student would publicly say something like this?

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One would suspect that most academics teaching crim law had some hands-on experience actually doing crim law. Sure, there will always be the self-proclaimed “experts” who couldn’t find a courthouse without Waze, but most did a stint in a public defender’s or district attorney’s office and at least once in their sheltered lives had to make the call, plea or trial.

Or maybe not, because if that was the case, they wouldn’t need William and Mary law prof Jeffrey Bellin to explain something so obvious that it shouldn’t need to be mentioned. Apparently it does. Continue reading →

First it was the former head of the NAACP Legal Defense Fund, Sherrilyn Ifill. Then it was New  York Times columnist Jamelle Bouie. What are the chances that two important voices would both raise the same argument in reaction to the contention in Justice Sam Alito’s draft Dobbs opinion at the same time out of the blue?

Boom.

The Supreme Court’s 2013 decision in Shelby County v. Holder removed critical protections of Section 4 of the Voting Rights Act and struck down the preclearance formula of Section 5 of the act, which compelled jurisdictions with a history of voting discrimination to submit proposed electoral changes to a federal authority for approval before enactment. That provision had made the Voting Rights Act the crown jewel of civil rights legislation because it created a regime to head off discriminatory practices before they became law. After striking down the use of the preclearance formula, the Court in Shelby perhaps sought to minimize the damage by reinforcing that Black voters would remain free to challenge discriminatory voting laws after they were enacted by bringing claims under Section 2, which allows Black voters to bring claims to challenge election laws and practices that dilute or deny minority voting strength.

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