Category Archives: Uncategorized

Criminalizing Awful

It was awful. Disgusting. Repugnant. But was it assault?

A Florida woman who was seen in a widely watched video intentionally coughing on a shopper at a Pier 1 home-goods store last summer, as fears about the pandemic raged, was sentenced on Thursday to 30 days in jail, court records show.

The woman, Debra Hunter, 53, had been charged with misdemeanor assault in June after she walked up and coughed on the shopper, Heather Sprague, who had been recording video of Ms. Hunter’s dispute with employees at the store, in Jacksonville.

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Seaton: Reflections on British Sporting Press

The following is an article from a British tabloid. I want you to soak in the headline. Bask in its glory. Then read the piece and come back here.

Mars Bars up arse champ branded a cheat for using the small multipack ones

  1. This was from May of last year and none of you had the decency to send it to me when we really could’ve used the laugh? I’m ashamed of y’all. Continue reading

Has Eugene Volokh Punted On Revenge Porn?

For years, UCLA Lawprof Eugene Volokh has provided interesting and thoughtful commentary on First Amendment law, establishing himself as one of the foremost scholars of Free Speech in the country. Perhaps more importantly, Eugene has become something of a free speech guru at his long-standing blawg, Volokh Conspiracy, and some people, lawyers and lay alike, tend to take Eugene’s word as First Amendment gospel. It’s not that they necessarily find his arguments persuasive, but that if Eugene says so, then it must be.

Mark Bennett isn’t necessarily buying.

I’ve been writing for eight years now about how revenge porn statutes are unconstitutional because the Supreme Court has defined “unprotected speech” as “speech within narrow categories of historically unprotected speech,” and nothing about revenge porn puts it into any heretofore recognized category of unprotected speech.1

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Kieran Bhattacharya and UVA’s Macroaggressions

He didn’t make it to the second year of medical school at the University of Virginia by being a slacker or none too bright. So when Kieran Bhattacharya decided to raise questions to a panel discussing the fashionable if unempirical notion of microaggressions, he chose to ask some questions. Pointed questions, but just questions.

Bhattacharya: Hello. Thank you for your presentation. I had a few questions just to clarify your definition of microaggressions. Is it a requirement, to be a victim of microaggression, that you are a member of a marginalized group?

Adams: Very good question. And no. And no—
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Consent And Lies

The question of what constitutes “consent” to sex has been in near constant flux for the past decade, employing various meaningless characterizations doomed to fail. For the most part, these battles have been waged on college campuses and civil courtrooms, with criminal law remaining modestly above the fray. A gang of woke academics tried to change the definition in the Model Penal Code to “affirmative consent,” but were beaten back by lawyers who grasped their definition was untenable and backwards.

NYS Assemblywoman Rebecca Seawright has proposed a bill to redefine consent. Penal Law §130.5 now provides that the prosecution must prove lack of consent as an element of the crime. Beyond force and incapacity to consent, the definition requires that the “victim” communicate lack of consent. Continue reading

Debate: Vaxsports, A Jumpstart To Real Life

Ed. Note: Another debate has broken out at SJ! Chris Seaton has called the question:

Resolved: in the interests of public health, safety, and reviving a struggling economy, the United States should require vaccine credentials for all citizens 18 years of age or older.

Chris will be taking the affirmative, and I will be taking the negative. Chris’s post follows, and I do my lame best here.

As you’re reading this, America is well over a year past “two weeks to slow the spread” of COVID-19. Many small businesses are gone. School children haven’t seen friends or teachers in person for over a year. We’re not to leave our homes without at least two face diapers over our nose and mouth. Our current way of life isn’t sustainable. Continue reading

Debate: Vaccine Passports Cross A Line

Ed. Note: Another debate has broken out at SJ! Chris Seaton has called the question:

Resolved: in the interests of public health, safety, and reviving a struggling economy, the United States should require vaccine credentials for all citizens 18 years of age or older.

Chris will be taking the affirmative, while I will take the negative. My post follows, and Chris’ post beating me to an old, smelly, radish pulp is here.

As of this writing, I’m one shot in, with the second coming soon. It took a lot of effort to schedule that first shot, but I wanted to be vaccinated. It’s not that I don’t appreciate the concerns other people raise about unknown consequences. They are reasonable doubts. I just don’t share them and have made my choice. I prefer to survive. Continue reading

Short Take: Naturalizing Kafka

The per curiam decision of the Eleventh Circuit Court of Appeals was a glorious ten pages in length. It went downhill after that, as the court twisted itself into a knot that would make Harvey Silverglate weep. The case involved a Cuban emigre naturalized as a United States citizen in 2016. As pretty much any judge will tell you, it’s one of the few functions they perform that leave them with a feeling of joy, the recognition of a new American citizen. But then, to get to the day when they wave the flag, they first have to answer some questions.

Izquierdo is a native of Cuba who became a lawful permanent resident of the United States and a naturalized citizen on 30 September 2016. As part of the naturalization process, Izquierdo completed an Immigration Form N-400, Application for Naturalization (“Application”). By signing the Application, Izquierdo certified under penalty of perjury that the information on the Application was true. In response to Part 11, Question 22 on the Application — “[h]ave you EVER committed, assisted in committing, or attempted to commit, a crime or offense for which you were NOT arrested?” — Izquierdo answered “No.” Izquierdo confirmed this answer two more times: during an August 2016 interview for naturalization, and on his Immigration Form N-455, Notice of Naturalization Oath Ceremony.

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Tuesday Talk*: Be A Trial Lawyer (Without Getting Off The Couch)

Fellow legal curmudgeon Mark Herrmann tells a story with a twist.

I heard about a trial recently that made me think about a (possible) generational difference in the law. The trial was in-person. The trial lawyers were in one city, and the trial was 1,000 miles away; the lawyers would have to fly to the trial site. If folks were aggressive about it, they all could have had one, and some two, shots of the vaccine before they left. So the senior trial lawyer asked his team: “Who’s willing to fly to the trial site?”

One associate — the senior-most of the bunch — said yes. Continue reading

Now-DoJ Karlan Makes It Official: Sex Means Whatever

When Vanita Gupta, then the acting head of the Civil Rights Division of the Department of Justice, created her memo of whole cloth because it was a policy that she wanted and liked, it was much the same as Title IX’s Dear Colleague Letter. It was dangerous, baseless and, ultimately, a bureaucratic stretch of power for which there was no basis in law. It earned Gupta a place in Biden’s White House.

The difference then was that Congress never said so. The Supreme Court never said so. Nobody but Gupta said so, and yet there was Gupta, on behalf of the DoJ, threatening a state to do as she commanded upon pain of losing federal funding, because she cared nothing about abusing power to accomplish what she wanted done. And for those devoid of principle, but in favor of the outcome, she was a hero. After all, as long as one favors an outcome, what different does it make how wrong the means to achieve it? Continue reading