When the issue came before the Supreme Court in Davis v. Monroe County Board of Education, the Court held that schools could be liable for peer to peer harassment under Title IX, but only if it was “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”

If this sounds vaguely, but not exactly, familiar, it’s because disingenuous advocates have misstated it. They changed the conjunctive to the disjunctive and then promoted the notion that any one of these criteria, watered down again by rhetorical gamesmanship, would suffice. As it involves harassment, it primarily implicated speech, as conduct was characterized by its criminal nature, assault or rape.

And what organization was out there to defend speech, to defend against the false characterization of law to reduce the burden to punish speech? It’s not the ACLU. Continue reading →

Orin Kerr famously wrote “brilliant people agree with me.”

One of the consequences of confirmation bias is that we are overly impressed by ideas that we happen to share. It’s a natural instinct, if not watched carefully. If you read something that reflects or resonates with your own views, you’ll agree with it. Upon agreeing with it, you’ll think it is highly persuasive. And if it’s highly persuasive, it’s probably brilliant.

That was in 2010, back when times were simpler and our world bucolic. Today the adjectives have expanded to “moral,” “decent” and “just.” All moral, decent and just people will certainly agree, because to disagree makes you immoral, indecent and unjust. This is a subtle but significant paradigm shift, where any disagreement no longer relates solely to your intelligence, but the goodness of your soul. Before you were stupid. Now you’re stupid and venal. Continue reading →

Whenever a new stat comes out, people with agendas try to figure out how to use it to their advantage. It usually reveals more about the person doing the interpreting than the stat to be interpreted. And so it is with America’s birthrate.

Last week, the National Center for Health Statistics reported that America’s birthrate reached a historic low in 2017, falling to 60.2 births per 1,000 women of childbearing age. For a population in the developed world to replace itself, the average woman needs to have around 2.1 children. In the United States, where fertility has been below replacement for about a decade, the average woman now has 1.77.

The stat shows that we’re not having enough children to maintain our population. In the late 1960s, there was a push for this outcome, called Zero Population Growth, premised on the belief that our birthrate was unsustainable and would result in starvation and devastation of resources. There was a time when people had oodles of kids, given high mortality rates and the need to milk the cows and plow the back 40. These are both now social anachronisms.  Continue reading →

California’s perpetual governor, Jerry Brown, draws the dreaded Chipotle analogy.

Gov. Jerry Brown, who in his last two terms has pushed, often unsuccessfully, to reshape the state’s expansive higher education system, on Wednesday suggested that California universities should be more like Chipotle.

Tastes great and filling? No, no. Continue reading →

Former Chicago cop William Whitley may be despicable scum, but that’s not why he copped a plea to having sex with a minor in the Northern District of Illinois rather than a state court.

Whitley pleaded guilty Tuesday in federal court to one count of sex trafficking of a minor.

Was it not bad enough that Whitley, with his uniform on a hanger and his gun under the pillow, paid for sex with a 14-year-old prostitute that it’s characterized as “sex trafficking”? This tidbit is tossed in somewhat gratuitously as a reminder that the phrase evokes an image of pimps and their sex slaves, not a john buying sex.

But even this characterization fails to explain how Whitley ended up in federal court, charged under 18 U.S.C. § 1591(a). How did they make “a federal case” of a routine offense? One word: rubber. Continue reading →

Michigan State has good reason to be particularly sensitive to threats of suit, allegations of Title iX violations, failing to believe the “victim.” Given its failure to protect a great many women from Larry Nasser, the last thing it needed was another incident. Which gave rise to a situation ripe for abuse.

According to the suit filed by Andrew Miltenberg on behalf of former Houston Texans wide receiver, and former MSU student, Keith Mumphery, the psuedonymous Jane Roe was the aggressor, infuriated by Mumphery’s refusal to have sex without a condom.

At this juncture, Plaintiff called a friend to discuss what had just happened and whether he had acted incorrectly in bringing up wearing a condom. Roe participated in this conversation, and at one point took Plaintiff’s cellphone from him and spoke with Plaintiff’s friend. Continue reading →

There is an eerily reminiscent aspect to the scheme perpetrated by the guys who ran Mugshots.com. Shades of David Blade, the revenge porn “takedown” lawyer. The scam was simple, but effective. Put something on the internet that someone didn’t want to be seen, and then charge them to remove it.

Who wants their mugshot online? Some argue that it enables them to know who the bad dudes are, who might move in next door to rape their children. Others might argue that selling mugshots is a new revenue stream for local government. Some just get off on seeing people suffer. Continue reading →

I stumbled across a thread on twitter the other day, apparently stemming from Neil Katyal’s representation of Epic Systems. The problem was Katyal was supposed to be on the good side, and here he was on the bad side, proven by Justice Gorsuch writing the majority opinion. Everyone knows Gorsuch is bad because he stole his seat from Merrick Garland. And Epic was the greedy capitalist employer, and downtrodden employees are the good team. Yeah, it was all that simple and obvious.

One of the twitterers took the progressive position, while the other was more conservative. The scope of the argument ranged from the acceptability of representing bad people because one had no choice versus never representing bad people under any circumstances, because morality. It wasn’t about duty or responsibility. Not about integrity or principle. The scope of the argument was over privilege.

You see, public defenders, junior associates and the ACLU could be forgiven their trespasses because they had no choice to refuse to represent horrible clients. But if you had the privilege of refusing representation, then the choice of representing a client tainted the lawyer with the awfulness of the client. Continue reading →

It was going to save us, alternative dispute resolution. Couched in glowing terms, replete with warm and fuzzy adjectives, reasonable people would resolve their disputes through mediation, where the sides would try in good faith to accommodate their differences, see each other’s perspective and, because people are truly good at heart, end in a hug. And if they didn’t, there was always arbitration.

The legal system was brutal, expensive and time-consuming. It took forever and, by the time anything was resolved, the damage was long since done. Arbitration was derived from the notion that a prompt, informal system would far better serve people’s needs than the formalized legal system. Sure, not for everything, but for some. And so the Federal Arbitration Act was enacted in 1925, reflecting the government’s favor of informal resolution.

The problem wasn’t the concept of arbitration, per se, but that it became captive of its users. If you’re an arbitrator working for an arbitration company, you would have a one-off user on one side and a corporate user on the other, who might have hundreds, perhaps thousands, of employees, and need your services over and over. Continue reading →

A favored outcome for those who disdain plea bargaining as a dirty backroom deal that freezes the judge and public out of decision making, and puts all the power in the hands of prosecutors, is that the return of trials would crash the system. Without plea deals, there is no way the system could handle the volume.

The crash is based on the assumption that the system couldn’t handle the volume, so it would either crash or the government would have to significantly cut the number of people it  prosecutes. Putting aside the intermediate problem of the people crushed in the middle between the time when plea bargains were eliminated and the system crashed, there are alternatives which never make it onto people’s radar. The crash assumption is based on the expectation that trials, as currently conceived, would be the one thing that would remain a constant. After all, doesn’t the Constitution mandate that they be conducted as currently done? Continue reading →