If I haven’t mentioned it in a while, K.C. Johnson has done the heavy lifting of chronicling the intersection of crim law and academic insanity, starting with the Duke Lacrosse fiasco and continuing with the ongoing Title IX fiasco. Tracking cases isn’t always fun, but KC has been a critical resource, without which much of what’s gone wrong would blend into the abyss. And the least I can do is thank him for his efforts, which have enabled me to not only stay relatively abreast of developments, but see this bit of amazing wildness from the Johnson & Wales University case.

As Judge Mary McElroy noted in her ruling, this matter was unusual in that the student’s lawyer, James Erhard, made “his case for an unfair proceeding virtually entirely on facts put forth or acknowledged by JWU itself.” That material included affidavits justifying their guilty votes filed by the three members of the JWU disciplinary panel: Assistant Director of Clubs Elizabeth Zmarlicki, Assistant Director of Residential Communities Caitlin Codding; and Culinary Associate Instructor Tim Brown, whose job, he says, “enables him to shape the pastry chefs of tomorrow.” Each member of the panel appears to be an at-will employee, as opposed to students or tenured faculty who might have been less susceptible to feeling pressured by the school. Zmarlicki and Codding had never previously served on a Title IX tribunal.

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In the scheme of New York Times pundits, David Leonhardt is one of the lesser-known, but more even-keeled, columnists, showing a tendency toward realism while all around him lose their heads. That’s what made his op-ed on mainstream media’s bias toward centrists so painful.

Centrist bias, as I see it, confuses the idea of centrism (which is very much an ideology) with objectivity and fairness. It’s an understandable confusion, because American politics is dominated by the two major parties, one on the left and one on the right. And the overwhelming majority of journalists at so-called mainstream outlets — national magazines, newspapers, public radio, the non-Fox television networks — really are doing their best to treat both parties fairly.

Is there an “idea” of centrism? Is it “very much an ideology”? It’s possible, and they’ve conspired to keep it a big secret from me, which could explain why Leonhardt sees it and I do not. It’s not as if centrists have any duty to tell me what they believe in, and for all I know, they’re sitting around at night, chugging brewskies and laughing about how they’ve kept me in the dark. It could happen. Continue reading →

Is there a question whether transgender people exist? Most would answer “no, what a ridiculous question” as they obviously exist, even if they constitute an extremely minute percentage of the population. But to some, their existence is dependent on magic, because they rely on Harry Potter, and by inexplicable extension, its author, J.K. Rowling, for their being.

In the magical world of Harry Potter, the justice-minded and rebellious adolescent characters drink something called “Polyjuice Potion” to temporarily take on the general appearance of other people, even those of entirely different anatomies and gender expressions. As a teenager, I remember reading this and thinking, “Oh God, I wish it were that easy.” Continue reading →

In a very long PrawfsBlawg post, oddly with comments closed considering that he seems to invite them, Alabama lawprof Paul Horwitz raises a bevy of interesting questions about the “Abolish Prison” movement and how it’s being treated by the nice folks at the Harvard Law Review.

What raised his eyebrows was two things, that the issue took up a lot of real estate in not one, but two, HLRs published very close together, and that the only perspective offered was positive. In other words, it was all movement and activist stuff without any critical analysis that wasn’t promoting it as the solution to what ails us.

One might respond that there is no need to do so if those criticisms have been well aired elsewhere. I doubt that holds up as a scholarly justification: that might be true of one or two isolated articles, but when a journal devotes an entire issue and a major separate piece to what is largely a single perspective, that response becomes quite weak. The more it says from a single perspective, surely the more obvious it becomes that there are unanswered questions that ought to be addressed. Nor is it a good justification to say that the journal is uninterested in such perspectives because there is nothing to be said on the other side. At least on this issue, the Foreword itself notes several tensions in the movement, and both the Foreword and the Developments introduction note the difficulty in defining the movement at all. Obviously there are things to be said on the other side.

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The sixth Democratic debate drew just over 6 million viewers, the lowest number so far. This isn’t surprising, as the debates have been largely unremarkable and disinteresting, not very debate-like outside of insipid zingers, and so even the most passionate Democratic party adherent struggles to find a reason to squander a few hours of her life listening to childish squabbling in an effort to catch fire and emerge from the crowd as a winner.

But this debate offered an attack of some interest against the youngest, and gayest* of the candidates, Mayor Pete Buttigieg. By shifting from left to more rational, the 37-year-old third-class city mayor has gotten traction, causing the socialists no end of angst. And they went after him for fund-raising in a . . . wine cave.

To reach the wine cave that set off a firestorm in this week’s Democratic presidential debate, visitors must navigate a hillside shrouded in mossy oak trees and walk down a brick-and-limestone hallway lined with wine barrels. Inside the room, a strikingly long table made of wood and onyx sits below a raindrop chandelier with 1,500 Swarovski crystals.

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The 1619 Project was an ambitious effort to rewrite the history of the American Revolution. America’s birth, we’ve been taught, was from a revolution against the tyranny of King George III. It was a battle against oppression of the colonies, and a fight for which we could be proud. Granted, it’s a bit rosy and whitewashed, but we won the war and get to write its history.

But the 1619 Project told a different story, that our revolution’s primary purpose was to perpetuate slavery and we are a nation born of racism. We should be guilty. We should feel disgust toward our nation and recognize that its existence is a disgrace. The purpose of the 1619 Project is to rewrite the history taught to our children so that they believe America to stand not as a shining beacon of democracy, but as a disgrace, an affront to equality.

Except historians took issue, not with the concerns of racism and slavery, but with the facts. Continue reading →

Here again are some unsolicited opinions, offered by a likely unqualified random person on the internet whom no sane person should take seriously. Unless you agree with me.

Here’s a fun thing to try this year. Instead of cookies and milk, have your kids leave a flight of beer and a pizza for Santa. You know what the jolly old elf really wants, and it’s not sugar and dairy.

One book I’d like to read next year is “We Fucked Up: An Extensive Apology Of Everything Bad We’ve Done” by Kamala Harris and Kirsten Gilibrand. Of course it’ll never get written, but a man can dream, can’t he?

Bumper stickers and decals are getting out of hand. You’re allowed two bumper stickers and one window decal. Points are deducted if a bumper sticker is from a failed politician’s campaign. Continue reading →

In an intramural tiff, Harvard prawfs Larry Tribe and Noah Feldman have taken to the twitters.

How is it mistaken, @tribelaw? Since you wrote a great book about it, you surely agree and know that the core of impeachment is and has always been presenting the articles of impeachment in the Senate (or House of Lords in England) and prosecuting the charges.

— Noah Feldman (@NoahRFeldman) December 20, 2019

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This isn’t a condemnation of anyone by race or gender, but a condemnation of how the narrative of identity politics is used to manipulate the emotions of the unduly passionate to achieve outrage when they’re supposed to, and yawns when they’re not. Because this, in another world, would rightfully evoke outrage.

“F—ing Hispanics! Go back to your country!” the [person] seethed as she attacked the 54-year-old victim on a Manhattan-bound No. 2 train at about 4:15 a.m. Tuesday, cops said. “You come here to take our jobs!” she railed.

The person was female. The person was black. The person was, it’s alleged, drunk and very, very angry. Continue reading →

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Article I, Section 3, Clauses 6 and 7 of the Constitution

I have a special interest, albeit purely academic,[i] in the trial of the impeachment of President Trump.[ii] Most particularly, I will be fascinated to see whether the Senators argue about the burden of proof. And, if they do, I will be fascinated in the outcome. In this post, I make a prediction.[iii] So, if you are interested, read on. Continue reading →