Author Archives: SHG

Win At SCOTUS, Lose Anyway

As that well-known legal wag Orin Kerr put it, why bother?

Reminder: Every defendant who wins at SCOTUS when the court takes a broad interpretation of the 4th Amendment right will quietly lose on remand a year later under the good faith exception to the exclusionary rule.

He points to the opinion of the Virginia Supreme Court, to which the Supreme Court remanded Collins v. Virginia.

This case returns to us on remand from the United States Supreme Court. It involves an
unsuccessful motion to suppress filed in the trial court by Ryan Austin Collins. Convicted of
receipt of stolen property, Collins appealed to the Court of Appeals, claiming that the trial court should have excluded evidence obtained by police during a warrantless search of a motorcycle parked on a private residential driveway. Continue reading

An Unwanted Relic

From the description of former University of Alaska archaeology professor David Yesner, there is nothing good to say about him.

That investigation, first obtained by KTVA, found that Yesner created a hostile environment for the students and violated numerous university policies against sexual misconduct, including assault. The nine complainants’ reports ranged from inappropriate comments and touching, to taking pictures of students’ breasts at work sites, to — in one case — rubbing his genitals against a student in a public shower. The reports were deemed credible.

Yesner was forced to retire in 2017, banned from campus and denied emeritus status. Despite having taught for years, he was determined to be such a threat that the school felt compelled to notify its students to be on the lookout. Continue reading

Reconciling Title IX: Visual Bodily Privacy

In the juvenile 1981 sex-comedy, Porky’s, there’s a scene where teenaged boys are looking at the girls’ showers through a hole. At the time, it was considered hysterically funny. Today, it would be outrageous, an inexcusable violation of the privacy of the young women. But Judge Jorge Alonso of the Northern District of Illinois says otherwise.

So far, the right not to be seen unclothed by the opposite sex is not on the Supreme
Court’s list. By bodily integrity, the Supreme Court was talking about physical bodily integrity,
not visual bodily privacy. Rochin v. California, 342 U.S. 165, 172 (1952).

This will no doubt come as a shock to some, that there is no substantive due process right to not be viewed naked by “the opposite sex.” There are many who argue, without basis beyond the depth of their passion, that there should be some free-floating right to privacy from all, including the teenagers who might pull a Porky’s. But here, one step further away, the government can compel a woman to shower knowing that the boys are looking. Well, not exactly the fact pattern Judge Alonso was talking about. Continue reading

Transparency For All?

A simple word takes on magical meaning to some. The word “discrimination” is such a word, and when invoked, it’s bad. Isn’t discrimination bad? Except we discriminate all the time, such as when we decide whom to invite to dinner or whom to marry. Should we be compelled to marry the first person who comes along so as not to discriminate?

Transparency is another magical word, but unlike discrimination, it’s a good word. Transparency is invoked for goodness, and everyone knows it’s a wondrous thing. Don’t we all want to see the Mueller Report because transparency? So what if most of America will lack the competency to understand its significance. It’s our right to have the good thing we call transparency, is it not?

New York Times editorial board member Binyamin Appelbaum has taken transparency a step farther, arguing that not only should Trump’s tax returns be public, but so should everyone’s. Yours. Mine. His. Everyone’s. Continue reading

Moral Clarity For “Some People”

In a twit that’s either perceived as bold and brave, by those who choose to do so, or shallow and defensive, by those who have chosen to view words independent of their emotion, Representative Ilhan Omar fired back at Trump’s 9/11 video interposing a sound bite from a speech with images of the fall of the Twin Towers.

I did not run for Congress to be silent. I did not run for Congress to sit on the sidelines. I ran because I believed it was time to restore moral clarity and courage to Congress. To fight and to defend our democracy.

A cursory pass might make those words seem inspirational to the unduly passionate, but as Mark Bennett notes, any call for “moral clarity” should scare the crap out of you. Those are the words of theocracy. Continue reading

Tales From The Goat Rodeo

There’s an old joke*:

Somebody stole my wife’s credit card.
Did you report it to the police?
No, he spends less than she did.

The New York Times is doing what might generously be called a symposium on internet privacy. Their tech maven, Farhad Manjoo, says it’s time to panic over internet privacy. He’s about a decade late on that, not that it matters. Sarah Jeong points to extant A.I. uses being sold to us for our own good, when they’re really ways for corporations to monitor their risk and revenue. Comedy writer Samantha Irby has a healthier view. Continue reading

The Vote From Cellblock B

The disenfranchisement of “felons”* after they’ve paid their debt to society has, finally, come to be recognized as a pointless and unjustifiable deprivation of a fundamental right. States are starting to recognize that the restoration of voting rights after the completion of a sentence is the correct policy and in furtherance of the Constitution, even if the same principle has yet to filter through to other constitutional rights, such as the Second Amendment and Sex Offender Registries.

But even if inconsistent and hypocritical, at least re-enfranchisement is the right thing to do. Is it enough, though? Jamelle Bouie argues it is not, and takes it the next step.

But the growing tide against felon disenfranchisement raises a related question: Why disenfranchise felons at all? Why not let prisoners vote — and give the franchise to the roughly 1.5 million people sitting in federal and state prisons? Why must supposedly universal adult suffrage exclude people convicted of crimes?

Continue reading

Return of the Pink Internet

About a decade ago, lawprof Danielle Citron pushed for the notion of Cyber Civil Rights. Her argument was as simple as it was circular. When a woman expressed her opinion on the internet, she was too often met with a critical response from men.

Sometimes the response was threatening, most notably in words of sexualized violence. Sometimes it was just critical, but in tones that hurt women’s feelings or made them feel uncomfortable. The upshot was that this response caused women to self-censor, to silence themselves, rather than be “bullied” or “threatened” by disapproval.

This, Citron contended, violated the free speech of women, as they could not express themselves online without discomfort. The remedy was that women should be entitled to express their opinions, and men should respond with praise or nothing. The fix to provide women with their civil rights was to deny civil rights to men. Continue reading

Reparations With A Glass of White Whine

Texas Representative Sheila Jackson Lee introduced a bill in the House of Representatives to create a commission to study how to address the issue of reparations, which has garnered the attention of some Democratic candidates for president.

Rep. Karen Bass (D-Calif.), the head of the Congressional Black Caucus (CBC), suggested that action on a reparations measure sponsored by Rep. Sheila Jackson Lee (D-Texas) is all but certain, with Democrats now in control of the lower chamber and the idea gaining prominence on the national stage.

2020 hopefuls including Sens. Cory Booker (D-N.J.) and Elizabeth Warren (D-Mass.) are backing the legislation. Rep. Tulsi Gabbard (D-Hawaii), another presidential candidate, is a co-sponsor.

And on Wednesday, former Rep. Beto O’Rourke (D-Texas) endorsed the idea, a pivot from his earlier statement of opposition to reparations payments.

Continue reading

The Rebellion’s Press Release

As a tactical matter, one would think that a serious rebellion would use surprise. After all, if you know in advance of a rebellion, the powers that be would be positioned to thwart it, put it down. But not this rebellion. Instead, it issued a press release.

Media Advisory

For Immediate Release
April 11, 2019

Extinction Rebellion:

Rebel Actions in 30+ Cities

April 15 – 22

There’s something about a media advisory for “immediate release” that doesn’t strike me as particularly rebel-ish. So what are they rebelling against? Continue reading