Category Archives: Uncategorized

Hiding Title IX Prejudice Behind Euphemisms: Victims v. Perps

Yesterday, KC Johnson twitted of the 128th loss in federal court by a college sued for its handling of campus sex policing in Doe v. Coastal Carolina University. That’s a lot of losses, not that there haven’t been some wins, but the trend has been clear: courts are acknowledging that these proceedings are not only deeply flawed procedurally, but that they reflect anti-male bias.

Therein lies the nasty detail behind an accused prevailing in a subsequent suit under Title IX against the college. That the adjudication was a sham, procedurally deficient, has become less of a stumbling block, as courts have recognized that the stakes are huge and the denial of minimal due process is flagrant. But that’s not enough to make it past a motion to dismiss.

A plaintiff claiming erroneous outcome must allege: (1) “particular facts sufficient to cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding” and (2) “a particularized . . . causal connection between the flawed outcome and gender bias.”

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The “Survivors” Last Stand

When the Department of Education issued its “Dear Colleague” letters during the Obama administration, there was no push for comments in support of the constitutional rights of the accused. That’s because nobody asked. In the hands of Russlynn Ali and Catherine Lhamon, the rules were whatever they decided they were.

Your comments didn’t matter. They were going to do whatever they wanted to do, and what they wanted to do was create a system that assured that any woman who complained would prevail and any man who was accused would lose. “Survivors” became the twisted characterization, so we would all feel their pain and suffering.

Now that the Department of Education has chosen to employ the Administrative Procedures Act, or what lawyers refer to as law, the window for comments before the regulations are final has given rise to a last-ditch effort. And the push is on before the window slams shut. Continue reading

The ABA Fights For Its Irrelevance

Scandal-plagued and bankrupt is no way to go through life, but it’s apparently not enough to compel a sober view of why the American Bar Association has become irrelevant to the legal profession. So naturally, the ABA doubled down on its Model Rule 8.4(g) bet in a remarkably tone-deaf post by its “ethics counsel,” Dennis Rendleman.

The Crusade against Model Rule 8.4(g)

That it would begin by calling it a “crusade” sets the tone. Apparently, the oppressed ABA has been victimized by crusaders. Lawyers and judges, the big machers of the bar, have been mislead, deceived, snookered, by these crusaders who have made it their zealous duty to undermine the ABA’s good works for social justice.  Continue reading

Unsettling Silence (Or Can The SEC Make You Gag?)

Whether you’re otherwise on board with the Cato Institute or the Institute for Justice, there’s one thing they do that should warm your cockles: they take the government to task when it overreaches. In a suit filed by IJ for its client, Cato, they reveal an astounding abuse by no more beloved an agency than the Securities and Exchange Commission.

Normally this is the point where we’d tell you who this person is and why the SEC went after him. But we cannot. As part of the agreement he reached to settle the matter, the plaintiff in the Cato suit had to accept a gag order that prevents him from discussing or criticizing the case. Even though the settlement does not require him to admit guilt, he is nevertheless forbidden from saying anything that would indicate that he thinks the “complaint is without factual basis.”

Because this gag order prevents him from talking about the case, it also prevents the Cato Institute from publishing his book. Cato and the Institute for Justice are thus not revealing the man’s identity because doing so would also reveal that he disagrees with, and is critical of, his settlement with the SEC. If he violates the gag order, SEC prosecutors could try to vacate the settlement and punish him more harshly.

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Sounds Bites

The name is “The Argument,” reminiscent of the old New York Times “Room for Debate,” which died a mysterious death when the Times decided there was no longer anything to debate. And if the name wasn’t enticing enough, the particular headline certainly caught my eye, “Why Do Powerful Women Make America Panic?” So I went to take a look.

There was nothing to look at. There were, apparently, three participants in the argument, Ross Douthat, David Leonhardt and Michelle Goldberg. The former two, the men, are occasionally interesting, and occasionally thoughtful. Goldberg, the not-a-man participant, is fascinating in the same way as if an intellectual train crashed with a truck carrying a load of manure. It’s not that she’s a woman. Many women offer interesting and illuminating ideas. It’s that she’s vacuous. The most interesting thing about Goldberg is that the Times gives her real estate despite her puddle-deep feelings.

With this provocative headline, I went for it. And . . . it was a podcast. It ran 36 minutes and 51 seconds. If I was to listen to it, that would mean I dedicated 36 plus of my life to it. This I was unwilling to do. Continue reading

Fact and Juries, A “Suspect Precedent”

Denying certiorari is the Supreme Court’s favorite past time. Sure, they get tons of petitions for a grant. Sure, everybody who loses wants that last bite of the apple to try to win, to get that wrong righted. No, the Supremes can’t take every case. But, well, they could take more than they do. A lot more.

But one thing that has become more common is opinions on denials of cert. In Hester v. United States (beginning at page 41 of the Order List), there is not only a dissent by Justice Gorsuch, joined by Justice Sotomayor, but a concurrence with the denial by Justice Alito. It’s oddly like a whole decision without any decision at all. One wonders that if the conflict so moved these three justices to write, why did the other six refuse to hear the case?

In the dissent, Justice Gorsuch surprised many who were firm in their ignorant certainty based upon the war of misinformation following his nomination and confirmation by expressing views that, for the second time, brought the empathetic Latina on board. The first time was viewed as an outlier, since woke pundits were certain Gorsuch was otherwise horrible. But a second “partnership”? Continue reading

Real Men Don’t Shrink

For a while, the New York Times was on a kick about “toxic masculinity.” It was half an attack on Trump, as if he were the standard bearer for males, and half an attack on men who hadn’t dedicated their lives to being feminist allies. But the toxic masculinity began to fade behind Trump’s many other foibles and failings, and there’s only so much real estate to be had on the Times’ editorial page. So with a few exceptions, the “how to be a good man by being a woman” op-eds faded.

The American Psychological Association, undeterred by the fact that depression and anxiety are at an all-time high in their care, has chosen to be the caboose in the “real men are toxic” train by issuing its “first ever” guidelines for the treatment of men and boys. Why?

But something is amiss for men as well. Men commit 90 percent of homicides in the United States and represent 77 percent of homicide victims. They’re the demographic group most at risk of being victimized by violent crime. They are 3.5 times more likely than women to die by suicide, and their life expectancy is 4.9 years shorter than women’s. Boys are far more likely to be diagnosed with attention-deficit hyperactivity disorder than girls, and they face harsher punishments in school—especially boys of color.

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Tuesday Talk*: Elie’s Urge

When my good buddy, Elie Mystal, proposed jury nullification as the remedy for the failure to convict cops of murdering black guys, his intention was to make a point by a radical example.

Maybe it’s time for black people to use the same tool white people have been using to defy a system they do not consent to: jury nullification. White juries regularly refuse to convict or indict cops for murder. White juries refuse to convict vigilantes who murder black children. White juries refuse to convict other white people for property crimes. White juries act like the law is just a guideline and their personal morality (or lack thereof) should be controlling.

Maybe it’s time minorities got in the game?

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No One Expects The IRB (Update x2)

When four scholars set out to show that “grievance studies” scholarship was gibberish, it was an astounding success.

The further one strays from reality, the denser the word salad. It’s not that they’re on to something profound, but they’re on to nothing and need bigger, more meaningless, jargon to make it feel as if it’s not complete gibberish.

How far did they stray from reality?

…a 3000 word excerpt of Adolf Hitler’s Mein Kampf, rewritten in the language of Intersectionality theory and published in the Gender Studies journal Affilia.

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The Moral Hole

Morals clauses aren’t exactly new when it comes to contracts. They’ve been the norm in entertainment and top executive contracts for a long time, just in case the person you bankrolled and relied upon gets caught in flagrante delecto. But not so much in the pedestrian contracts of ordinary writers. As Judith Shulevitz notes, they are now.

Authors are people, often flawed. Sometimes they behave badly. How, for instance, should publishers deal with the #MeToo era, when accusations of sexual impropriety can lead to books being pulled from shelves and syllabuses, as happened last year with the novelists Junot Díaz and Sherman Alexie?

“Often” may be an understatement, not so much that it’s exclusive to writers, but that “to err is human,” and most authors are, arguably, human (Christopher Hitchens excepted, obviously).

One answer is the increasingly widespread “morality clause.” Over the past few years, Simon & Schuster, HarperCollins and Penguin Random House have added such clauses to their standard book contracts. I’ve heard that Hachette Book Group is debating putting one in its trade book contracts, though the publisher wouldn’t confirm it. These clauses release a company from the obligation to publish a book if, in the words of Penguin Random House, “past or future conduct of the author inconsistent with the author’s reputation at the time this agreement is executed comes to light and results in sustained, widespread public condemnation of the author that materially diminishes the sales potential of the work.”

As should be obvious, this doesn’t come about because authors have changed. Rather, times have changed, as has the “public condemnation” of anybody who catches the mob’s attention. When that happens, a writer goes from acceptance, if not adoration, to pariah in a flash. More importantly, the publisher’s investment goes down the toilet.

This past year, regular contributors to Condé Nast magazines started spotting a new paragraph in their yearly contracts. It’s a doozy. If, in the company’s “sole judgment,” the clause states, the writer “becomes the subject of public disrepute, contempt, complaints or scandals,” Condé Nast can terminate the agreement. In other words, a writer need not have done anything wrong; she need only become scandalous. In the age of the Twitter mob, that could mean simply writing or saying something that offends some group of strident tweeters.

Did the writer do it? What did they do? What if they didn’t actually do anything, or whatever they did (and whenever they did it) was entirely acceptable and ordinary at the time, but now, in the light of outrage, the writers becomes the “subject of public disrepute”? At least the Condé Nast version has the integrity to leave in the company’s “sole judgment,” making it plain that there is no connection between the writer, the mob and the termination.

But how, you might ask, could anyone be antagonistic to morality? Are we not moral? Isn’t being moral a good thing? Much as “morality” makes for great discussions among philosophers and academics, it’s one of those wonderful words that means everything and nothing. Most of us have a “moral compass,” but it’s our own and, even when similar to others, usually differs in the particulars. There is no Board of Morality, establishing the morality norms to which every individual is compelled to adhere. Even when we agree on the big picture, the details rarely coincide.

Agents hate morality clauses because terms like “public condemnation” are vague and open to abuse, especially if a publisher is looking for an excuse to back out of its contractual obligations.

But that’s exactly why morals clauses are included in contracts, to give publishers a back door, an escape hatch, when a popular writer becomes an overnight outcast. For writers, the problem is that they make a living writing, and if they write something controversial, thoughtful but not in conformity with what the mob wants to read, they stop making money. Even writers have to eat.

Jeannie Suk Gersen, a Harvard Law School professor who writes regularly for The New Yorker, a Condé Nast magazine, read the small print, too, and thought: “No way. I’m not signing that.” Ms. Gersen, an expert in the laws regulating sexuality, often takes stands that may offend the magazine’s liberal readers, as when she defended Education Secretary Betsy DeVos’s rollback of Obama-era rules on campus sexual-assault accusations. When I called Ms. Gersen in November, she said, “No person who is engaged in creative expressive activity should be signing one of these.”

But Gerson gets a paycheck that says “Harvard” on it, so if she rejects a contract with a morals clause, she won’t miss a meal. What about writers who rely on their writing to eat?

It’s not that a company should have to keep on staff a murderer or rapist, she added. But when the trigger for termination could be a Twitter storm or a letter-writing campaign, she said, “I think it would have a very significant chilling effect.”

That first sentence includes some serious Gertruding. If someone on staff was a “murderer or rapist,” wouldn’t they be prosecuted, convicted, sentenced, and hence unavailable for writing for life plus cancer? Because if they aren’t convicted, how does one assert that the staff member is a “murderer or rapist”? These are crimes, and the way we know a crime occurred and someone committed it is through a system that results in a conviction.

So if an author’s meal ticket is subject to being pulled based on a twitstorm, and if a twitstorm can arise for good reason or no reason, subject to the whims of the unduly passionate, would a writer be inclined to express any opinion that might inflame the mob?

Regardless of how certain you are as to what is, or isn’t, moral, is the new morality expressing no thought that might bring you into “public disrepute” for being literally awful? Or is your flavor of morality defined by whatever your followers on twitter tell you it is?