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 →

Professor Steven G. Galabresi has an impressive resume. From the Northwestern School of Law website, consider the following:

Professor Steven G. Calabresi is the Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law.  He is also a Visiting Professor of Law at Yale Law School, Fall 2013-2016; a Visiting Professor of Political Theory at Brown University for 2016-2017; and the Chairman since 1986 of the Federalist Society’s Board of Directors. Professor Calabresi worked in the West Wing of President Ronald Reagan’s White House; was a Special Assistant for Attorney General Edwin Meese III; and he clerked for Justice Antonin Scalia on the Supreme Court and for Judges Robert H. Bork and Ralph K. Winter on the federal courts of appeals.

(Italics by Kopf.)

As SHG has written, Professor Calabresi[i] published a piece on the Social Science Research Network. It is entitled, Proposed Judgeship Bill, and it consists of a memorandum written November 7, 2017, and rather pompously addressed to the entire Senate and House of Representatives. (I refer to this article as “The Memo.”[ii]) 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

Continue reading →

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?”

Continue reading →

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 →

I’ve never been comfortable with Toronto psychology professor Jordan Peterson. Much as I agree with his position that people can’t make up their own gender pronouns and demand others use them, under force of law, there’s something unseemly about him. Too self-promotional. Too one-note. Too . . . obvious.

Had Peterson not been an academic, no one would invite him to speak or debate. His shtick was worthy of a blog post or two, but that was as deep as it went. Still, grad student teaching assistant Lindsay Shepard saw purpose in showing a debate involving Peterson to her class. Oh no.

A teaching assistant named Lindsay Shepherd was reprimanded by her supervising professor, as well as a “manager of Gendered Violence Prevention and Support” and one other professor. Her crime? Screening for two sections of her communications class a recorded TV segment in which Jordan Peterson, among others, debates a recent law concerning the use of gender pronouns. Continue reading →