At the Bulwark, Walter Olson offers an interesting post about the trio of cases argued before the Supreme Court this week, characterizing the issue as the “surprise plain meaning” approach to textualism.

The argument is this: If an employer would never fire Ginger for taking a romantic interest in men, but does fire George when it learns that he does so, it has treated him differently because of his sex. Similar arguments can reach the case of an employee’s gender identity.

You might call the phenomenon “surprise plain meaning”—a meaning of the text that the drafters did not intend or notice at the time. Every law student learns about this early on, as with the question of whether a “No Vehicles in the Park” rule covers bicycles, skateboards, or a statue of the general in his Jeep.

And, indeed, every law student learns, or at least used to learn, about the blunt weapon of words, meant to convey one meaning, one purpose, but resulting in unintended applications despite the non-lawyer’s retort, “but you know that’s not what they meant.” That’s why writing law is hard, and why recognizing how words often encompass things not intended, but unavoidable, when they’re later used to apply in way that are entirely within the word’s ambit while being completely beyond the law’s intended reach. It happens all the time. Continue reading →

It was malarkey, total nonsense, I was told in response to the complaint by some young men that they would no longer take the “risk” of approaching a young woman in real life. The men feared that they could step on a mine at any moment which would blow up by screams of “rape.” The women, together with their male allies who flit about their feet, responded with deeply simplistic snark that if they didn’t want to be called “rapist,” don’t be a rapist.

Was Jamie Griffiths a rapist?

“The complainant’s evidence was very clear, logical and without embellishment,” a magistrate told the young man. “We can think of no motivation for you to touch the victim other than sexual. Had she not taken evasive action the assault was likely to have been even more serious.”

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Last Saturday, my better half surprised me with a gift bag. It contained two day-glow orange T-shirts, and an envelope with two tix to the University of Tennessee vs. UGA game that evening. I immediately broke into a big smile. It was Game Day in Knoxville, ESPN was in town, and we would be live for the party.

If you’re not from East Tennessee, the importance of UT Football is hard to describe. UT football is football in East Tennessee. Ask someone locally if they’re watching “the game on Sunday” any week during football season and they’ll look at you with confusion. “Bless your heart, you mean Saturday, right?” will probably be the response you’ll get.

UT’s football program is historically badass. By kickoff Neyland Stadium becomes the sixth largest city in the entire state. The stadium the Vols call home is named after Brigadier General Robert Neyland, a man so epically badass he fought in World War I, came home and won a few football championships, fought in World War II, then came back home and said, “fuck it, let’s win a few more titles while I feel like it.” Continue reading →

NYU prof and vice provost, Ulrich Baer, has never been shy about crossing lanes into oncoming traffic, so it’s unsurprising that he wrote a book on a subject about which he knows nothing. What else would a passionate academic do, particularly when the climate is ripe for assertions that would have gotten him laughed off campus before intellectual rigor was replaced by sad tears.

Baer’s book, What Snowflakes Get Right: Free Speech, Truth and Equality on Campus, got him an interview at that bastion of academic freedom, Inside Higher Education, where he plays the most popular game among scholars these days, Guess my logical fallacy!

Q: What’s wrong with the way the free speech debate is understood on campus? Continue reading →

Most of the women with whom I’m friends have two common attributes. They’re smart. They’re tough. Not tough in the “beat up people in bars” sense, although I have little doubt they would if warranted, but tough in the sense that they’re nobody’s pushover. There is a space between overly assertive and perpetual victims. Somehow, this is the space they occupy.

So they don’t constantly apologize for things they haven’t done wrong. Yet, that seems to be a stereotype some women apply to themselves, and Ruth Whippman is angry about it.

Take apologizing, the patient zero of the assertiveness movement. Women do too much of it, according to countless op-ed essays, books, apps and shampoo ads. There’s even a Gmail plug-in that is supposed to help us quit this apparently self-destructive habit by policing our emails for signs of excessive contrition, underlining anything of an overly apologetic nature in angry red wiggles.

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At oral argument, Stanford lawprof Pamela Karlan stood on behalf of the two gay men who sought the protections of Title VII against sex discrimination. One was Zarda. The other Bostock. Going into this argument, the question was whether the word “sex” (which all concede was never intended to mean “sexual orientation” at the time enacted, and all similarly concede has been subject to continuous efforts to expand the law to include sexual orientation, but has been refused by Congress) should be expanded to mean sexual orientation. That was a dubious policy stretch.

What’s Karlan to do?

But if you’re a real textualist, all of that is beside the point. As Pamela Karlan, the lawyer for the two gay men at the center of the first half of Tuesday’s session, put it in her straightforward first few minutes at the podium, Title VII as it exists today resolves the case: Continue reading →

If a killer used email to lure his victim to her death, would the email provider be responsible? If a pedophile used an app to convince an underage girl to meet him at some seedy motel, would the app be at fault? If a restaurant served dinner to a mass murderer right before his killing spree, would the restaurant be at fault? The cook, perhaps? The server?

There is a theory that would say yes, if there was some after-the-fact detail, some hook, some explanation, that in retrospect could arguably suggest they could have known, should have known, what was about to happen if only they had seen the signs. As Mary Anne Franks has expanded her reach beyond revenge porn to guns, so too has she expanded her chaos theory view of collective liability.

We have reached a point in America at which mass shootings happen so often that the country sometimes only has a few days — sometimes only a few hours — to catch its breath in between. When the shooter is white and male, as mass shooters so often are, the narrative of the “lone wolf” quickly becomes dominant. Anti-gun control ideologues, from the National Rifle Association to Republican lawmakers, assure us that the shooter was a monstrous singularity, just one bad guy who happened to have a gun. Continue reading →

Not to unduly puff my cred, but I’ve been a strong proponent of due process. But there are limits.

For example, you have denied the President the right to cross-examine witnesses, to call witnesses, to receive transcripts of testimony, to have access to evidence, to have counsel present, and many other basic rights guaranteed to all Americans. You have conducted your proceedings in secret. You have violated civil liberties and the separation of powers by threatening Executive Branch officials, claiming that you will seek to punish those who exercise fundamental constitutional rights and prerogatives.

This was written by Pat A. Cipollone, counsel to President Trump. It’s nuts. It’s utter nonsense. It’s the abuse of the arguments that I and others make when the circumstances require due process but it’s denied, and it undermines legitimate claims to due process deprivations by seizing upon the words of due process without any remotely reasonable connection to its rationale. Continue reading →

Whenever the subject of anonymity arises, poor Publius gets dragged out as proof of its efficacy and tradition. It’s a strong point, but for the one distinguishing detail of Publius as author of the Federalist Papers: that the writings were not dependent on the credibility of the writer, but on the writer’s arguments.

If Publius’ arguments required one to rely on personal experience or the credibility of the writer, then anonymity would have rendered Publius’ words meaningless, for anonymity may protect the writer’s identity, but simultaneously means that anything dependent on the writer’s identity is inherently incredible. Welcome to Harvard.

Harvard’s Title IX Office debuted an anonymous online reporting form on Monday designed to help students report sexual misconduct with greater comfort and logistical ease.

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When a lawyer does the dirty, there are places to go. If it’s a crime, go to the prosecutor. If there’s a dispute over money or competence, there’s a civil suit. If there’s an ethical failing, go to the entity that governs lawyer discipline. The first could put the lawyer in prison. The second could cost the lawyer big money. But the third? The worst it can do is pull the lawyer’s ticket and deny the individual the right to practice law.

But what about a judge? One would expect Elizabeth Warren, who came out of Harvard Law School, to have some appreciation of how the system works and why it works that way. But these are passionate times, and she wants to run for president so very badly, so she’s come up with a plan.

When Kavanaugh rose to the Supreme Court, sexual assault and perjury complaints against him were dismissed. Continue reading →