Author Archives: SHG

The Last Constitution Day

It’s been a good run, Constitution, but today, Constitution Day, the New York Times says it’s over.

Exactly 230 years ago, on Sept. 17, 1787, a group of men in Philadelphia concluded a summer of sophisticated, impassioned debates about the fate of their fledgling nation. The document that emerged, our Constitution, is often thought of as part of an aristocratic counterrevolution that stands in contrast to the democratic revolution of 1776. But our Constitution has at least one radical feature: It isn’t designed for a society with economic inequality.

Someone thinks of the Constitution as an aristocratic counterrevolution? Often? Who knew, besides Vanderbilt lawprof Ganesh Sitaraman. I thought it was just a bunch of New England dry-goods merchants who hated watching their profits taxed to pay for the cost of their protection. But then, I’m no scholar.

But Sitaraman’s “radical feature” is kinda ass-backwards.  The colonies were up to their eyeballs in economic inequality, which makes the Constitution all the more remarkable as it somehow managed to not only accommodate it, but provide vast opportunity to overcome it. Equal protection, yo. Continue reading

Short Take: A Groovy Kind of Suburbia

I remember the 1964 Worlds Fair in Queens, mostly because of the black felt hat with a huge bright purple feather coming out of it. The theme was “Peace Through Understanding”, dedicated to “Man’s Achievement on a Shrinking Globe in an Expanding Universe,” but to a kid, it was a vision of the future, all the cool things that would be our world.

A few years later, there was sex, drugs and rock ‘n roll, but no flying cars. The word “groovy” found its way into our lexicon. It’s not used much anymore.

Efforts to predict the future, and to promote the notion that we should dedicate our efforts to creating the infrastructure, both physical and intellectual, to support it, have not panned out well. The problem seems to be that people are remarkably opposed to having change rammed down their throats, and change happens, but in its own way and at its own pace. Change happens, whether we like it or not.

MIT urban design prof Alan Berger writes of his vision of the suburbia Millennials will desire. Continue reading

A Victim of Climate Change

Is Professor Michael Schlesinger a really big deal in the area of atmospheric science? Inside Higher Education says so, not that it really matters.

A famed atmospheric scientist at the University of Illinois at Urbana-Champaign is on leave after refusing to heed administrators’ request that he give electronic lecture slides to a student with disabilities.

There is a gut reaction to this reference to a “student with disabilities,” since making reasonable accommodations is both the law and, well, a kind thing to do. Or, as most people will react, how can it hurt?

A dispute over electronic lecture slides and accommodations for a learning-disabled student may have ended the teaching career of Michael Schlesinger, a professor of atmospheric sciences at the University of Illinois at Urbana-Champaign.

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Honesty, Finally

As the fight for due process on campus rages on, fools, liars and shameless self-promoters* have been desperately trying to salvage a viable argument against the rescission of the Title IX “guidance.” They cry, what about the Clery Act? What about the Violence Against Women Reauthorization Act? Notably, none of the proponents actually offer any substance as to what these laws have to do with anything. There’s nothing there.

If you wonder why not a single one of the now-64 adverse federal decisions holding that the Title IX guidance fails to provide due process to students ever mentions these laws, it’s because these are red herrings, some peripheral language that touches on campus sexual discipline, but irrelevant to the issue. The presumed expectation is that screaming, “Oh yeah, what about the Clery Act?” is good enough to shift the burden away from facts and law. It’s a fool’s game.

Lawyers who litigate the cases won’t play it because they don’t want judges to laugh at them for being idiots. Judges don’t play it because they know the law. The only people who try so very hard to play it are fools desperately trying to deflect attention away from the deprivation of due process on campus. Yet, this appeared to be the best effort those seeking to perpetuate a system of star chambers could muster.

Where, I asked, is an honest argument in favor of the cause?  It was rumored that Ezra Klein at Vox had made one, but it took the kind efforts of Amy Alkon to dredge it up. Granted, the specific subject wasn’t the Title IX kangaroo courts, but rather a step down the road to perdition, “yes means yes.” And to his credit, Vox’s Ezra Klein told the truth. Continue reading

Ohio Judge John Adams Goes To War

When it was mostly an internecine conflict, a judge from the Northern District of Ohio asking the Brethren of the Sixth Circuit why they think he’s crazy, as Judge Kopf explained, it all stemmed from a United States District Court judge doing the unthinkable: taking a mag to task.

I am going to be plain-spoken and provide you with a greatly condensed and summarized version of the facts. Judge Adams treated his colleagues very, very badly. He was especially nasty to magistrate judges. He improperly threatened an MJ with a contempt sanction for failing to get a report and recommendation on a Social Security case to the judge within the time required by the judge’s standing order. He isolated himself, despite good-faith efforts by his colleagues to patch things up, he refused to participate meaningfully in court governance and he childishly sniped at his colleagues. In a word, he was a jerk.

While federal judges may seem omnipotent from the outside, there are some institutional norms they don’t cross. Ever seen a federal judge direct the Bureau of Prisons to do something? Request? Sure. Implore. Maybe. But direct? Only in the rarest of instances, when something truly awful happens. Why not, when the judges certainly have the authority to do so, and they don’t need some screw’s permission to tell them not to serve Nutraloaf three times a day?

There’s a certain collegiality within the federal bureaucracy, unwritten but very much there. The various parts need each other to make the magic happen. Like any machine, if one gear refuses to mesh with another, it doesn’t work. No one involved in a bureaucracy doesn’t appreciate this. Except maybe Judge Adams. Continue reading

Short Take: Harvard’s Chelsea Morning

Harvard has been quietly beefing up its cred with the most passionate young minds of America, from eliminating the LSAT requirement at its law school to its upcoming announcement that all finals can be answered by emojis. It filled its disability quota of the intellectually challenged when it brought Shaun King aboard, and found triple duty when it named Chelsea Manning a “visiting fellow.”*

A sequence of events happened in rapid order.

Mike Morrell, former acting director of the CIA, resigned as a senior fellow of Harvard’s Belfer Center for Science and International Affairs.

Mike Pompeo, current director of the CIA, canceled his appearance to speak at a Harvard forum.

Dean Douglas W. Elmendorf of Harvard’s Kennedy School thereupon withdrew Manning’s visiting fellowship.

In reaction, Manning twitted: Continue reading

But If Not Title IX, Then What?

Bret Stephens, the Times’ evil conservative columnist stolen from the more evil Wall Street Journal, engages in a thought experiment.

It’s in our moral and constitutional DNA that we take extraordinary pains to safeguard the rights of the accused, even when it means letting the guilty go free. But we also believe in justice, and the fact is that sexual assault is a brutal reality of modern campus life, abetted in too many instances by a culture of binge drinking. How best to change this without compounding one injustice with another, or intruding too far into private life, or violating fundamental rights is a matter of debate. That it has to change isn’t, or shouldn’t be.

Long on sentiment, short on detail, this Gertruding is the preface to Bret Stephens posting a letter he received from a “friend” about her rape on campus.

After the column’s publication, a young friend wrote me a personal note to share her experience of being raped in college. Her letter is so detailed, devastating, honest and thoughtful that I thought the best thing to do was give her the full stage of an Op-Ed column in The Times.

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David Feige To SCOTUS: Clean Up Your Mess

My pal, David Feige, has a spectacular op-ed in the New York Times calling on the Supreme Court to correct one of the most egregious errors to find its way into their decisions and popular mythology.

This month the Supreme Court will have a rare opportunity to correct a flawed doctrine that for the past two decades has relied on junk social science to justify punishing more than 800,000 Americans. Two cases that the court could review concern people on the sex offender registry and the kinds of government control that can constitutionally be imposed upon them.

In Snyder v. Doe, the court could consider whether Michigan’s broad scheme of regulating sex offenders constitutes “punishment.” The other case, Karsjens v. Piper, examines the constitutionality of Minnesota’s policy of detaining sex offenders forever — not for what they’ve done, but for what they might do.

The consequences have been draconian, with the overwhelming support of the public because, in part, of a shockingly false myth:

And when these restrictions have been challenged in court, judge after judge has justified them based on a Supreme Court doctrine that allows such restrictions, thanks to the “frightening and high” recidivism rate ascribed to sex offenders — a rate the court has pegged “as high as 80 percent.” The problem is this: The 80 percent recidivism rate is an entirely invented number.

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Undignified, Demeaning, Disbarred, Revisited

Almost ten years ago, I called out a marketeer* who showed up in the comments at SJ to smooth over the gap between elitist lawyers who disdained the then-current fad of online legal marketing and the new lawyers who saw the internet as a way to shamelessly promote their wares.

It took time to hone their legal chops, gain the skills that would attract clients and establish their bona fides as good lawyers. It took no time at all to hire a marketeer who would create a persona to distinguish a young lawyer from the pack. There was one inherent problem, that there was no legitimate basis to claim any distinction, so they would basically bullshit their way around such arcane ethical prohibitions as not lying, conceal relevant facts like their admission a month before, and lay claim to being the most trustworthy, empathetic and experienced lawyer ever. I was highly intolerant of the scheme. I still am. Lying is lying, and this was all about fudging the edges of deception.

So when the marketeer appeared here to try to weasel his way between reality and bullshit, I was harsh in my condemnation. Of all places to come to rationalize why it was totally reasonable for lawyers to wear hot pants, SJ was a particularly poor choice.

Go sell your sleaze elsewhere.  Do you really feel compelled to push the envelope here so that I’m forced to call you an unmitigated whore and utter disgrace.  Go find some gutter to wallow and stay away from here.

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The Unpleasant Burden Of Deconstructing Gibberish

It’s hard to blame Scott Schneider for being an insipid shill. It’s his bread and butter, and he’s watching his livelihood swirl down the toilet before his eyes. Sure, lawyers with integrity can sneer at his game, but he’s doing the best he can with essentially nothing to work with. After all, the sad tears of the unduly emotional don’t play out well when put into words. He’s trying.

But that doesn’t mean the Chronicle of Higher Education isn’t blameworthy. Nobody forced it to publish such vague and disingenuous tripe. After pointing this out, Chronicle reporter Eric Kelderman challenged me to show how Schneider’s op-ed was gibberish, because my lawyer time is owed him to either make my case or be wrong. It’s not as if there aren’t dozens, if not more, exceptional pieces from the likes of Emily Yoffe (whose trilogy at The Atlantic is a must-read) that provide details that Kelderman seems to know absolutely nothing about.

I pointed Kelderman to my posts, as well as those of Yoffe, Christina Hoff Sommers, KC Johnson. I left out Jeannie Suk Gersen, et al., though I should have included those as well. Not that it mattered. He had no interest in them, and while he didn’t say so, I suspect he was fully aware of what they wrote. He couldn’t have read Ross Douthat yet, as his column didn’t come out until today. but I suspect that wouldn’t have mattered either. Continue reading