Some will recall the questions posed by a committee of our best and brightest senators to Facebook’s Zuck. It was high comedy, between the righteous indignation of angry speechifiers and the cluelessness about tech that could have been explained by their grandchildren, if they bothered to ask.

And yet this donkey show has given rise to nonpartisan consensus: regulate the internet!

Tech regulation may be the only thing on which a polarized Capitol Hill can agree. “We should be suing Google and Facebook and all that, and perhaps we will,” President Trump recently declared. Senator Elizabeth Warren, a Democratic presidential candidate, has made the breakup of tech companies a central plank of her campaign. Even Silicon Valley-friendly contenders like Pete Buttigieg have called for curbs on the industry’s power.

On one side of the equation is whether Trump or Warren will do a better job micromanaging the internet. The answer, obviously, is the person you prefer will do good, while the other person will be horrible. Which is which varies. But everyone believes they should be in control. Continue reading →

Among the most pressing issues making America horrible on Independence Day was that the women who played for the United States soccer team were paid a mere fraction of what the men were paid, even though they were far more successful in their World Cup challenge. It was so horrible that the New York Times felt compelled to call it out as an example of America’s awfulness, the sexism permeating our society.

Except there is an actual reason for it, as is obvious to anyone not seeking an example of sexism. Women’s soccer isn’t nearly as popular as men’s soccer, doesn’t earn anywhere near the same money and, consequently, can’t pay what it doesn’t make. The problem isn’t sexist pay scales, but lack of public interest. Like it or not, you can’t force people to be fans of women’s soccer. People watch and attend the sporting events they prefer. They’re just not that into it.

That same problem affects art, and its relationship to race, as well. There have long been complaints that female and minority artists have been closed out of exhibitions, and therefore can’t get their work seen by the public. If the public can’t see it, they can’t love it. If their work isn’t seen because curators favor work by white male artists, then they have a strong argument. So the Whitney put on a show. Continue reading →

It looked as if Tiffany Cabán pulled off her coup. The New York Times, bizarrely, endorsed her. Democratic presidential candidates endorsed her. She was that progressive district attorney candidate who would represent “transformative change,” her lack of experience, competency or much of anything beyond social justice platitudes and her identity as a “queer Latina” notwithstanding. Still, this is how democracy works, and if she got the votes, she wins.

The test, however, didn’t go nearly as well as hoped. Despite all the guns on her side, there were two overarching problems. The first was that a mere 11% of the potential Queens Democratic voters bothered to show up at the polls. Whether the problem was that 89% couldn’t be bothered, didn’t care or wanted nothing to do with any of the candidates is unclear. What is clear is that Cabán couldn’t get them out any more than her nearest competitor, Queens borough president Melinda Katz.

Still, a win is a win, even if the best Cabán could manage was about 39% of 11% of the eligible voters. But even as Cabán proclaimed herself the victor, Katz waited for the count of absentee and challenged ballots. And the tide turned. Continue reading →

Sahil Handa is a student at Harvard. At National Review, she tells conservatives they’ve got it wrong.

Much of the debate about campus culture would have you believe that the average college student is hellbent on tearing down the patriarchy. One wakes up in the morning, wallows in grievance, and proceeds to spend the day railing against the evils of privilege.

So, is the description accurate? In my experience, not particularly. I’d say it describes roughly 5 percent of the undergraduate population — a few hundred or so social-justice warriors who consider their mere survival on Harvard’s campus to be a form of triumphalist activism. These woke icons are overwhelmingly middle class, incredibly entitled, and extraordinarily outspoken.

Handa considers herself conservative, and her point is that the campus isn’t awash in SJWs. Whether the percentage is 5, or more, or less, isn’t particularly important. What’s important is that they are a tiny minority. The vast majority, she asserts, are pretty much like college students have always been. Continue reading →

Whether Nike made the right marketing decision by pulling its “Betsy Ross Flag” sneakers off the shelf is a question best answered by branding specialists.

To be honest, unless they were magic sneaks that somehow made me run faster and jump higher, I wouldn’t care if they had my pic on the heels. I still wouldn’t be a buyer. But Nike sells sneaks, and if they decide to bow to pop outrage, that’s their right. Continue reading →

On Tuesday, the government announced that the decennial census forms were being printed without the citizenship question, following the Supreme Court’s challenge to the veracity of the administration’s claimed rationale for its inclusion. It’s not that the Executive can’t make a bad and counterproductive political decision. It can, and often does. But as Chief Justice John Roberts wrote:

The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise. If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.

Using the gentle and moderate language of the judiciary, Roberts called the reason “contrived.” which is kinder than calling it an outright lie. Which it was, because neither Trump nor anyone serving him are very good at keeping their real motivations secret. Problem solved? Meet Wednesday. Continue reading →

The days of Prof. Kingsfield turning a mind of mush to think like a lawyer are long gone, as prawfs constantly reinvent both the teaching and testing of law students. At Prawfsblawg, Gerard Maggliocca raises the question of whether timed in-class testing makes sense, and concludes it does not.

I’ve long been bothered by the way law school exams are administered. Why should there ever be a closed-book exam? And why should you only get three hours for an exam? Law is complicated and almost always involves research. Neither of these traits are reflected in many law school exams. (And legal questions do not present themselves in a multiple choice format either.) This is why I’ve always used take-home essay exams for 2L and 3L classes and made all of my exams open-book.

In response, other prawfs, notably Orin Kerr, raised the cheating heart problem. Continue reading →

Former chairman of the Republican National Committee Ken Mehlman opened fire with both barrels: an amicus brief in the trio of cases coming before the Supreme Court, Zarda, Stephens and Bostock, and an op-ed in the New York Times.

Polls consistently show a high percentage of Americans think that firing people or denying them jobs or promotions because they are L.G.B.T.Q. is wrong and that it should be prohibited under our nation’s civil rights laws. A full 92 percent said so in an April poll by Quinnipiac University. That’s in part because basic protections against job discrimination are fundamental to core American values of fairness.

This isn’t a new idea, or a partisan one. Abraham Lincoln wished for all workers to have an equal chance to acquire property and to gain wealth. “When one starts poor, as most do in the race of life,” he said, “free society is such that he knows he can better his condition.”

Continue reading →

Why can’t we have it all?

Well, the laws of physics could be a problem, since we can’t be in two places at the same time. When you’re a criminal defense lawyer, and your client is standing in court in front of the judge, and there’s some other place you would rather be, whether at your beloved child’s soccer game or having a little “me time” because aren’t you entitled to take care of your mental health, Lara Bazelon explains why this can be a problem. Continue reading →

Did anybody have “busing” on their Democratic Debate Bingo Card? I sure didn’t, and yet Kamala Harris, latching onto a race issue that didn’t involve her imprisoning black people or defending cops who killed them, nailed the landing as far as her supporters are concerned.

Some have complained that Harris has diverted attention away from things that matter today to rehash the 70s, a time when Biden is exposed if viewed through the lens of today’s social justice. Back then, Biden worked with, was civil with, segregationists to get things accomplished in Congress. Today, the nicest he would be allowed to be is to milkshake them on the Senate floor, and still be subject for criticism for not punching a Nazi or a small gay conservative man. Continue reading →