He was a student at the University of Maryland, “was” being the operative word. Whether this John Doe did anything blameworthy to begin with is a matter of values.

On the evening of December 14, 2014, Plaintiff John Doe, Jane Roe, and several of Doe’s friends, identified as “K.P” and “A.S.,” left a College Park, Maryland bar for K.P. and A.S.’s on-campus apartment. Once at the apartment, Roe grew tired and fell asleep in K.P.’s bedroom. K.P. initially joined Roe in his bed, but later complained that he could not get physically comfortable. K.P. left the bedroom and suggested to Doe, who was resting on K.P.’s couch, that Doe instead sleep in the bed with Roe, and K.P. would sleep on the couch.

To be clear, there is nothing here to suggest that Jane Roe was incapacitated. She had been drinking, but intoxication is not incapacitation. Nor is being sleepy. Continue reading →

Magdiel Sanchez was killed because he was deaf.

Sanchez wasn’t disobeying commands. One can’t disobey what one doesn’t know. One can’t know when one can’t hear. You can’t blame a deaf man for being deaf, but they killed him for it anyway.

The killer was Oklahoma City Sgt. Christopher Barnes. He won’t be charged.

Oklahoma County District Attorney David Prater said his investigation determined the Sept. 19 shooting death of 35-year-old Magdiel Sanchez outside his south Oklahoma City home was justified.

Continue reading →

It’s an interesting notion that relies on one god-awful assumption.

“Our key premise is that consumers aren’t stupid,” [Stanford Graduate School of Business professor Jonathan Berk] says. “Put yourself in the situation: If you know there are charlatans in a certain field, but you don’t know who they are, you’re not going to pay as much, right? Whatever the odds of getting an incompetent provider are, prices will be forced down to a level at which you’re willing to take that chance.”

That’s a heck of a key premise, particularly when the contention is that people should be willing to bet their lives on it. The argument is that licensing serves the interests of protecting the providers of licensed services more than the consumer. Continue reading →

Among the vast array of things that evoke knee-jerk antagonism these days, few seem to be more curiously volatile than issues relating to undocumented immigrants. I say “curious” because few cared a whit about them until Trump became president, ignoring the hundreds of thousands of deportations under Obama because, well, who cared?

So when it was announced that there might be a question on the 2020 decennial census, as required by Article I, Section 2 of the Constitution, cries of outrage rang out. It’s not that the question of immigrant status hasn’t appeared on the census in the past in various forms. It has, and without controversy. But this time is different, as the tenor of the issue has changed substantially.

Much as the Trump administration, by Commerce Secretary Wilbur Ross, has tried to provide benign reasons for asking about citizenship, people aren’t buying. How could they, after Trump ran on vilifying “illegals”? The contention that this won’t impact people’s willingness to respond to the census questionnaire seems ludicrous.

Whether rightly or wrongly, there is massive concern, if not outright fear, that the nice folks from ICE will take away grandma and lock the children up in kiddie prison. That the census must, by law, be kept confidential is of little comfort. There is no trust in this government, with good reason. Continue reading →

Here’s the confusing part: Is it possible, even remotely possible, that a Stanford Law School professor is wholly unfamiliar with the concept of an appeal? The reason that question is raised is that Stanford has Michele Landis Dauber on its faculty. It allows her to be in a classroom with law students. It pays her. And yet, there is something fundamentally askew with her grasp of basic law.

This first arose when Brock Turner appealed his conviction. Dauber went on a tear about the outrage of Turner challenging his conviction, as if appealing was an affront to humanity rather than what every criminal defendant is entitled by law to do. That she simultaneously endorsed the not-gonna-be-a-hit-song F*ck Brock Turner gave rise to the belief that perhaps Dauber’s problem wasn’t manifest ignorance, but insanity.

And yet, she went and did it again. Continue reading →

As Cristian Farias ably notes, the errant paragraph of Justice Scalia’s Heller opinion holds the door open to, well, wild interpretation. And as Cristian further ably notes, the errant paragraph means that there is no need to repeal the Second Amendment, no matter how many youngsters take to the street or how much David Hogg, et al., are enjoying their 15 minutes of fame.

In a passage that has become a thorn in the side of gun-rights enthusiasts, Scalia warned that people shouldn’t read too much into the fundamental right that he had just helped announce. Among other caveats and restrictions, Scalia wrote, “long-standing prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms” were still fair game.

There are two rather huge holes in this paragraph, the first being that Scalia offers no principled basis for it, in contrast with the rest of the decision holding the Second Amendment to be a fundamental individual right. It’s assumed to be a compromise, to soften the blow of the holding by not undoing the entire regulatory scheme for firearms. Continue reading →

Any law named after a dead child is presumptively a bad law.

–The Ted Frank Rule

There is a movement afoot to enact “Marsy’s Law.”

Kelly Vierling, a Stillwater native, says she never had any doubts or concerns about the criminal justice system before tragedy struck her family. “You always just assume the system works until you are thrown into it,” she says. Continue reading →

There are few things that makes us feel more justified in being authoritarian than an empirical study, all wrapped up statistical-ish words. We don’t know quite what he means, and hang on the technical jargon so the weasel words connecting the parts that don’t move well together can be easily overlooked. This is no more true than when there is an evil villain to blame for the death of human being, and Paul Cassell doesn’t disappoint.

As the Chicago Tribune reported this morning, University of Utah Economics Professor Richard Fowles and I have just completed an important article on the 2016 Chicago homicide spike. Through multiple regression analysis and other tools, we conclude that an ACLU consent decree trigged [sic] a sharp reduction in stop and frisks by the Chicago Police Department, which in turn caused homicides to spike. Sadly, what Chicago police officers dubbed the “ACLU effect” was real—and more homicides and shootings were the consequence.

It’s like a perfect storm, homicide spike, “multiple regression analysis and other tools,” and of all the people who could possibly be responsible, it’s the ACLU! The ACLU? Who doesn’t hate them? It’s even got a cool name, the “ACLU effect.” How could this not be right? Continue reading →

For the past ten years, the ABA Journal has run a “peeps in law” contest in anticipation of Easter. It’s cute. It involves a diorama made of icky candy, making it absolutely perfect for any third grade classroom. But one submission has been deemed too provocative, too controversial, year after year to be allowed: the Peeps of B. McLeod. And so his 2018 Peeps appears here instead.

No, I can’t tell which one is Stormy Daniels either. Continue reading →

The big question for college admissions officers is whether an applicant has the chops to graduate. At least, that used to be the big question before it was supplanted by whether their admission demographics matched Skittles. And like so many worthy causes, it had unintended consequences. In this instance, the consequence was failure.

First, some good news: In recent decades, students from modest backgrounds have flooded onto college campuses. At many high schools where going to college was once exotic, it’s now normal. When I visit these high schools, I see college pennants all over the hallways, intended to send a message: College is for you, too.

How wonderfully inspirational, even if the positives of higher education too often fail to meet the promise of “averages.” If they paid tuition, there was a cost involved. Even if they didn’t, there was opportunity cost. And then there was the cost of realizing that you can’t make the grade, even if they gave you better grades than you earned because, well, reasons.  Continue reading →