One of the components of the selling of “believe the women” has been the effort to turn excuses for the same failures that apply in every accusation into virtues when it comes to rape and sexual assault accusations. This is nothing new. Nor is there anything new about the use of false statistics to perpetuate the claim that false rape accusations rarely occur.

And the New York Times, for maybe the thousandth time, repeats the same nonsense it’s been relying on for years. But what could have possibly compelled them to turn to Shaila Dewan to write this “news analysis” listicle?

There are all sorts of reasons women who report sexual misconduct, from unwanted advances by their bosses to groping or forced sex acts, are not believed, and with a steady drumbeat of new reports making headlines, the country is hearing a lot of them.

But some of the most commonly raised causes for doubt, like a long delay in reporting or a foggy recall of events, are the very hallmarks that experts say they would expect to see after a sexual assault.

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The acquittal of Jose Ines Garcia Zarate for the murder of Kate Steinle will be one of those moments that either proves why Trump’s pandering to xenophobia was absolutely right, or the right side of the outrage machine should take a deep breath and be proud of their nation. If Ted Cruz, who should have learned something at Harvard Law School, gets his way, it will be the former. If you read this, maybe the latter will happen.

The defense in the case, adeptly and properly presented by public defender Matt Gonzalez, is explained exceptionally well by Sarah Rumpf at Redstate. Notably, the Steinle murder began with outrage, before she became a prop to the Trump campaign.

This seems to be a classic example of prosecutorial overreach. They pushed hard for a first degree murder verdict, which requires not only proving that the defendant killed the victim, but that he did it intentionally, and that it was premeditated (planned or thought out beforehand).

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Could the headline possibly be true?

Boss Grab Your Breasts? That’s Not (Legally) Harassment

The op-ed was written by two lawprofs, Sandra Sperino and Suja Thomas, so one would certainly expect it to be accurate, but since the authors don’t write the headlines, it’s hard to say whether they endorse it. Then again, the headline writer didn’t pull it out of nowhere.

In fact, courts routinely dismiss cases brought by workers who claim their supervisors propositioned them, kissed them or grabbed their breasts. The judges declare that the conduct does not constitute harassment in a legal sense, and refuse to let the cases go to trial.

No cite for the proposition, of course, but it could be true, right? Except it’s not.* So what’s the deal? Continue reading →

Elizabeth Nolan Brown makes a point about how the market worked in the firing of Matt Lauer.

The obvious take here is that the chairman of NBC News, Andrew Lack, made a cold economic calculation: Mr. Lauer might have been a rainmaker for the network, but keeping him on was no longer worth it in the face of potential lawsuits, damage to the brand and lower ratings.

Or as the title of her op-ed explains, NBC didn’t fire Lauer. “We did.” The “moral suasion” of public outrage made Lack act. It’s not that NBC wasn’t well aware of Lauer’s actions before, but that it did nothing about it until it went viral. This is a good argument in favor of market forces, and one terrible argument against law.

But that doesn’t mean women won’t tap the extant outrage for the purpose of pushing change into the law, shaming lawmakers (who are certainly as exposed to shame for their own sexual improprieties as the dreaded homosexuals in the State Department were to communist blackmail in the 50s) into rewriting law to align with their outrage.  Continue reading →

Ed. Note: For the great many of you asking when the next edition of Judge Bennett’s “The Art of…” series will be here, hold yer horses. It’s coming, but Judge Bennett has judge stuff to do, plus he can’t spend all his free time on scholarly endeavors here when there are law reviews in desperate need of filling. This is what he’s been up to in the meantime.

Judge Mark W. Bennett and Berkeley lawprof Victoria Plaut have completed an article to be published 51 U.C. Davis L.Rev. (forthcoming 2018).

Looking Criminal and the Presumption of Dangerousness: Afrocentric Facial Features, Skin Tone, And Criminal Justice

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The difference between a law professor making a flagrantly absurd analogy and a non-lawprof is that the former has no excuse for being intellectually dishonest. But that’s of little comfort to Vassar’s Barry Lam.

Barry Lam received his B.A. in Philosophy and English at the University of California, Irvine (2001), and his PhD in Philosophy at Princeton University (January 2007). His current research focuses on the nature of epistemic rationality and justification.

Maybe his epistemic research seeks to prove there is no such thing as rationality and justification? If so, he’s a friggin’ brilliant scholar rather than a disgrace. Continue reading →

Edith Macias believed herself entitled to take Matthew Vitale’s red MAGA cap. Assuming Macias would never steal anything for the purpose of personal gain, it was theft nonetheless. In her mind, she was justified, not because of any claim of right to possession of property, but because of her indoctrination to an inane ideology.

Blame Edith for the theft? She’s merely a pawn, well-educated in the beliefs of social justice. Young, impressionable, weak minds succumb to the teachings that bolster their self-esteem and entitlement.

Macias has since been charged with misdemeanor theft.

“Man, fuck your laws,” Macias replied, also telling Vitale in the footage:  “Your fucking freedom of speech is genocide, homeboy! Is that what you are trying to represent?”

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When you Gertrude too hard,** you end up with a bi-polar op-ed like Bari Weiss’.

No longer.

Now, suddenly, Mitch McConnell is saying, “I believe the women.”

Now, suddenly, Chelsea Handler is saying to Juanita Broaddrick, “I believe you.”

This — despite, or perhaps because of, the predator in the Oval Office — is a cultural watershed.

So it’s a good thing? Continue reading →

The Supreme Court will hear oral argument in Carpenter v. United States, the latest opportunity to revisit the Third-Party Doctrine that served as a facile diversion when created, and has undermined any potential for digital privacy in the future. But it has certainly made life easier when it comes to collecting evidence.

How hard should it be for the police to get hold of reams of data showing every place you’ve been for months?

In 2013, Timothy Carpenter was convicted of being the ringleader behind a series of armed robberies of cellphone stores in and around Detroit, and was sentenced to almost 116 years in prison. His conviction was secured in part based on 127 days of location data that his cellphone service provider turned over to the police, showing that his phone had been in the vicinity of several of the robberies.

Carpenter “shared” his cellphone data with his service provider in the sense that a cellphone won’t work otherwise. Whether he knew it or not, and whether any purported lack of knowledge would be deemed objectively reasonable, as Katz’s “reasonable expectation of privacy” might suggest, doesn’t matter. If it’s digital, it’s in a third-party’s hands, somehow, somewhere. Which means it’s the government’s for the asking. Continue reading →

Locked and loaded. Why, oh why, won’t guys spend their time talking about how they carry with them a guided missile that can’t be controlled?

Men arrive at this moment of reckoning woefully unprepared. Most are shocked by the reality of women’s lived experience. Almost all are uninterested or unwilling to grapple with the problem at the heart of all this: the often ugly and dangerous nature of the male libido.

If this strikes you as inherently contradictory, that’s only because you’re steeped in unyielding reality. How can “most” men be shocked “by the reality of women’s lived experience,” yet “almost all are uninterested”? Perhaps “most” means most of the men who live in the same house as the peculiarly woke author, Stephen Marche. Perhaps “almost all” means the men who aren’t Harvey Weinstein, Louis CK or Al Franken, and hence fail to realize their libido is “often ugly and dangerous” because it’s . . . not. Continue reading →