For years, UCLA Lawprof Eugene Volokh has provided interesting and thoughtful commentary on First Amendment law, establishing himself as one of the foremost scholars of Free Speech in the country. Perhaps more importantly, Eugene has become something of a free speech guru at his long-standing blawg, Volokh Conspiracy, and some people, lawyers and lay alike, tend to take Eugene’s word as First Amendment gospel. It’s not that they necessarily find his arguments persuasive, but that if Eugene says so, then it must be.

Mark Bennett isn’t necessarily buying.

I’ve been writing for eight years now about how revenge porn statutes are unconstitutional because the Supreme Court has defined “unprotected speech” as “speech within narrow categories of historically unprotected speech,” and nothing about revenge porn puts it into any heretofore recognized category of unprotected speech.1

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He didn’t make it to the second year of medical school at the University of Virginia by being a slacker or none too bright. So when Kieran Bhattacharya decided to raise questions to a panel discussing the fashionable if unempirical notion of microaggressions, he chose to ask some questions. Pointed questions, but just questions.

Bhattacharya: Hello. Thank you for your presentation. I had a few questions just to clarify your definition of microaggressions. Is it a requirement, to be a victim of microaggression, that you are a member of a marginalized group?

Adams: Very good question. And no. And no—
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The question of what constitutes “consent” to sex has been in near constant flux for the past decade, employing various meaningless characterizations doomed to fail. For the most part, these battles have been waged on college campuses and civil courtrooms, with criminal law remaining modestly above the fray. A gang of woke academics tried to change the definition in the Model Penal Code to “affirmative consent,” but were beaten back by lawyers who grasped their definition was untenable and backwards.

NYS Assemblywoman Rebecca Seawright has proposed a bill to redefine consent. Penal Law §130.5 now provides that the prosecution must prove lack of consent as an element of the crime. Beyond force and incapacity to consent, the definition requires that the “victim” communicate lack of consent. Continue reading →

Ed. Note: Another debate has broken out at SJ! Chris Seaton has called the question:

Resolved: in the interests of public health, safety, and reviving a struggling economy, the United States should require vaccine credentials for all citizens 18 years of age or older.

Chris will be taking the affirmative, while I will take the negative. My post follows, and Chris’ post beating me to an old, smelly, radish pulp is here.

As of this writing, I’m one shot in, with the second coming soon. It took a lot of effort to schedule that first shot, but I wanted to be vaccinated. It’s not that I don’t appreciate the concerns other people raise about unknown consequences. They are reasonable doubts. I just don’t share them and have made my choice. I prefer to survive. Continue reading →

The per curiam decision of the Eleventh Circuit Court of Appeals was a glorious ten pages in length. It went downhill after that, as the court twisted itself into a knot that would make Harvey Silverglate weep. The case involved a Cuban emigre naturalized as a United States citizen in 2016. As pretty much any judge will tell you, it’s one of the few functions they perform that leave them with a feeling of joy, the recognition of a new American citizen. But then, to get to the day when they wave the flag, they first have to answer some questions.

Izquierdo is a native of Cuba who became a lawful permanent resident of the United States and a naturalized citizen on 30 September 2016. As part of the naturalization process, Izquierdo completed an Immigration Form N-400, Application for Naturalization (“Application”). By signing the Application, Izquierdo certified under penalty of perjury that the information on the Application was true. In response to Part 11, Question 22 on the Application — “[h]ave you EVER committed, assisted in committing, or attempted to commit, a crime or offense for which you were NOT arrested?” — Izquierdo answered “No.” Izquierdo confirmed this answer two more times: during an August 2016 interview for naturalization, and on his Immigration Form N-455, Notice of Naturalization Oath Ceremony.

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Fellow legal curmudgeon Mark Herrmann tells a story with a twist.

I heard about a trial recently that made me think about a (possible) generational difference in the law. The trial was in-person. The trial lawyers were in one city, and the trial was 1,000 miles away; the lawyers would have to fly to the trial site. If folks were aggressive about it, they all could have had one, and some two, shots of the vaccine before they left. So the senior trial lawyer asked his team: “Who’s willing to fly to the trial site?”

One associate — the senior-most of the bunch — said yes. Continue reading →

When Vanita Gupta, then the acting head of the Civil Rights Division of the Department of Justice, created her memo of whole cloth because it was a policy that she wanted and liked, it was much the same as Title IX’s Dear Colleague Letter. It was dangerous, baseless and, ultimately, a bureaucratic stretch of power for which there was no basis in law. It earned Gupta a place in Biden’s White House.

The difference then was that Congress never said so. The Supreme Court never said so. Nobody but Gupta said so, and yet there was Gupta, on behalf of the DoJ, threatening a state to do as she commanded upon pain of losing federal funding, because she cared nothing about abusing power to accomplish what she wanted done. And for those devoid of principle, but in favor of the outcome, she was a hero. After all, as long as one favors an outcome, what different does it make how wrong the means to achieve it? Continue reading →

Standardized testing, right? Sure, they serve the purpose of enabling comparisons across different students, schools, states, but they unfairly favor the privileged students who have good schools, take special prep courses and have tutors, so they’re unfair to students for whom these resources are unavailable. Let’s get rid of standardized testing!

But college admissions based on “soft” rather than numerical criteria won’t be more equitable or progressive. Privileged students are likely to gain the most. A new paper from Stanford’s Center for Education Policy Analysis shows that “essay content”—that is, the quality of admissions essays—“is more strongly associated with household income than is SAT score.” Continue reading →

Who doesn’t appreciate the need to maintain infrastructure? Well, that depends on how one defines infrastructure, which most of us understand to mean bridges and roads, electrical grids and pipes, all of which have been neglected because there wasn’t much to be gained by politicians doing the unsexy work of maintenance.

But to his credit, particularly after Infrastructure Week, perhaps the only thing to which Trump’s limited skillset could apply, failed to appear (like his beautiful health care plan), President Biden seized upon the opportunity and need and went big. Huge. $2.3 trillion dollars huge. which should give us some sweet new infrastructure. Continue reading →

At first blush, the phrase seemed useful to make the point, even if it wasn’t quite as prosaic as it seemed.

The U.S.-Mexico border is a “bleeding scar.” That is how Mexican author Carlos Fuentes described it in 1997. According to the Pew Research Center, 1.2 million immigrants, authorized and unauthorized, entered the United States that year. Back then, just like now, there was talk of an overwhelming crisis at the border.

The problem is that scars don’t bleed. Wounds bleed. Scars are what happens when wounds heal, and this wound hasn’t healed. If anything, it’s bleeding worse than ever. Continue reading →