As a judge comes to the twilight of his career, his robe frayed and a tiny droplet of spittle dripping from the corner of his lips, knowing full well that he will never, but never, make it to the big time, what’s left to do? One thought is to be as outrageous as possible, lobbing hand grenades into the mix and watching people’s heads as they explode.

Hi, Judge Posner.

Posner — the most highly cited legal scholar of the 20th century, according to the Journal of Legal Studies — repeated his complaint that politicians are more concerned with appointing “tokens” such as women or Hispanic justices, and with would-be justices’ politics than they are with merit.

Merit is a hard metric. If you agree with Posner, it’s merit. Then again, Posner has, in his dottage, taken to eschewing precedent and such banal efforts as reason, and just throwing his feelz against the wall to see what sticks. He justifies this by claiming it’s what all judges do, but the rest of them are all liars so they hide it behind fancy words. Continue reading →

In conjunction with the pending undoing of the Title IX “guidance” letters used to radicalize sexual culpability on campus, a question is being batted around with how far to go to return fairness and normalcy to campuses. This, it should be noted, is because those who are concerned about the impropriety forced down college’s throats are, at the same time, also concerned for the welfare of all students and the eradication of sex discrimination on campus.

The foremost question raised in this discussion is whether the unfairness of the current system can be “fixed” by elevating the preponderance of the evidence standard, as imposed by the Lhamon regime, to clear and convincing evidence. An argument made in favor of preponderance is that it’s the standard used in most, though not all, civil adjudications. Why won’t it suffice here?

But aren’t campus adjudications civil administrative procedures? Not quite. The distinction between civil and criminal is that the former is compensatory and injunctive, while the latter is punitive.  It’s true that campus trials can’t impose imprisonment (though this is also a failing, as a student who has raped, using the proper meaning of the word, may well belong in prison rather than left free to rape again), but that doesn’t mean it isn’t punitive. Indeed, it’s quite punitive.

The consequences of an adverse finding is expulsion, involving substantial harm to a person’s life, career, future, not to mention the forfeiture of however many years of life in college are lost, plus the tuition paid. A quarter million dollars, plus three plus years of opportunity costs, are a very heavy fine. Even worse, being branded with the scarlet “R,” on one’s transcript, in the media, and among one’s friends and around campus, is severe punishment as well. So civil? Hardly. Continue reading →

You want to comment, and some mean old guy keeps saying mean things to you? How horrifying. So, let’s try something entirely different. This is an open thread, so get out all the words you’ve stifled up to now for fear of some less than adoring tummy rub for your brilliance.

This is an open thread, with just a few rules. No violence. No spam or self-promotion. Links will be allowed, within reason. I will post whatever comment you leave. I will not reply. Talk amongst yourselves. Jump atop the SJ soapbox and tell others what you want. There may be great legal ideas, or there may be complete lunacy that could get you killed. That’s up to you commenters.

Have fun. If this works out, maybe this will be a regular feature. If not, then we gave it a try. If nobody wants to post a comment here, well, don’t say I didn’t give you the opportunity to speak your mind. This is your chance. Go for it. Continue reading →

See? Not even the police approve of Trump’s absurd and illegal call to rough up perps.

Prominent police chiefs and prosecutors first raised their voices months ago against the Trump administration’s attempt to revive failed policing strategies and its repeated suggestion that fair, constitutional law enforcement is somehow inconsistent with public safety.

Some of those officials spoke out again over the weekend, after President Trump gave a speech on Long Island urging police officers to rough up suspects arrested in their campaign against MS-13, a violent gang with roots in Los Angeles and Central America.

That’s great that “prominent” chiefs and prosecutors spoke out. They should. Trump’s speech was typically moronic and wrong. The brass running police departments immediately realized the damage to their public relations efforts his rhetoric would cause. And, to be less cynical about it, they want their officers to behave professionally, courteously and lawfully. There may be some differences about what exactly that means, but they don’t want cops to be bad.

And that’s what Trump, in his ignorant pandering, called for. It’s good for bad cops to be bad. They should be bad. Continue reading →

What’s a White Knight to do when he’s in search of a damsel in distress? Find one. Save her. Even if she says she’s no victim, she’s not in distress and she doesn’t need to be saved. Zoe Katz, a 22-year-old USC student, was just fine and didn’t need saving, Matt Boermeester’s neighbor, however, had to be a good ally and save her anyway.

In the statement, Katz said she and Boermeester have dated for more than a year. The Title IX investigation began, Steigerwalt said, after a neighbor witnessed Boermeester and Katz roughhousing. The neighbor told his roommate, who told a coach in USC’s athletic department that Boermeester was abusing Katz. The coach then reported the incident to the Title IX office.

One tells another, who tells someone who’s subject to mandatory reporting, and so it goes. At each stage, there’s a rationale that justifies why it must be done, to protect the delicate and vulnerable who are incapable of helping themselves. Poor women, so helpless. Except Katz wasn’t helpless.

Zoe Katz, 22, a senior, said in a two-page statement her attorney emailed to The Times that Boermeester “has been falsely accused of conduct involving me.” Katz confirmed that the statement was hers. Her attorney, Kerry L. Steigerwalt, said that USC alleged that Boermeester shoved Katz outside her home.

Continue reading →

Academics see themselves as the artists, the thinkers, the inventors, the cutting edge of intellectualism. It’s an affectation, as if getting a job at a college as a teacher suddenly makes whatever crap pops into your head sufficiently sacrosanct as to be beyond reproach. Some profs aren’t quite as brilliant as they believe they are. Some are kinda dumb. But hey, they have the title, the attributed cred that comes with it, and the security of knowing that mommy always told them they were special.

But what if the people who fund your college or university disagree? Freddie deBoer, whose arms grasp tightly around the breast of progressive ideology, sees the problem.

Only 36% of Republicans, according to the Pew Research Center, believe colleges and universities have a positive effect on the way things are going in the country, versus 58% who say they have a negative effect. Among Democrats, those figures are 72% and 19%, respectively. That finding represents a crisis.

For it to be a crisis does not depend on you having any conservative sympathies. For this to be a crisis requires only that you recognize that the GOP is one of two major political parties in American life, and that Republicans’ lack of faith in higher education will have practical consequences.

The significance of this poll depends on the color of lenses in your specs. To progressives, it confirms their certainty that Republicans are stupid, anti-intellectual, haters of knowledge. To non-progressives, it suggests that academia has been seized by radical ideology and lost its way, putting far more effort into indoctrinating young minds to its dogma than teaching academic subjects. Indeed, should anyone spend four years in college majoring in gender and deviant sexuality? Should “white privilege” be a compulsory course? Continue reading →

That Trump’s lawyers were tasked with answering the question of whether a president can pardon himself for crimes isn’t particularly surprising. When asked to consider strategies in the face of attack, like an investigation by Robert Mueller’s investigation in collusion between the campaign and Russia, good lawyers will consider all possibilities, including some way outside the box. Hey, you never know.

What’s surprising, and either a bad thing or good thing according to where you stand on the political spectrum, is that this was leaked. But out it came, and, in turn, out came the scholars to get their names in the paper. After all, the question was posed, can a president pardon himself, and this went deep into law nerd territory. Perfect for an academic to show her stuff.

At Vox, the question was posed to 15 “experts.” The word “experts” is put in quotes not because the academics to whom the question was posed do not possess the requisite expertise, but because calling them experts begs the question. This was evident in the responses.

Susan Low Bloch, law professor, Georgetown University

I believe the president can pardon anyone, including him or herself. But the pardon cannot stop an investigation and, in a well-functioning democracy, should provoke an impeachment. The Constitution specifically provides that the pardon power does not prevent — or undo — an impeachment. I’m not sure if these Republicans would impeach, but I think that is the only check on the president.

Continue reading →

Dr. SJ sent me a link with a note that I should sign up for this. If she said so, then I must obey (for the unwary, her pet name is SWMBO. Mine is “you moron,” not that you needed to know that). Moments later, this arrived in my mailbox.

Look what you did, you little jerk…

If I had a nickel for every time I received this or a variation on the theme, But I digress.

I assure you, we don’t take what just happened lightly.

You just gave us your email and joined our newsletter.

That’s a VERY big deal to us.

Continue reading →

It might seem as if she’s back out of nowhere. Her attempt at porn did more to promote abstinence than any effort by Tipper Gore. Her resort to BDSM as a catharsis for her outrage could be the new 50 shades of pale. And it’s coincidental that it comes moments after Columbia University paid off Paul Nungesser, the victim of her mattress-toting shenanigans. But Emma Sulkowicz is back.

Tovia Smith at NPR held up Mattress Girl as a “survivor,” rationalizing that it’s her self-identification. After all, it’s not as if Nungesser was cleared of any wrongdoing and Sulkowicz’s only survival is from having been caught in her lies.

Reporter Tovia Smith quotes as a “survivor” the Columbia University graduate Emma Sulkowicz, who lost her rape case against fellow student Paul Nungesser in a campus adjudication based on the extremely low “more likely than not” evidence standard.

Sulkowicz and her activist friends harassed Nungesser, a foreign student, for years through her “Carry that Weight” art project, in which she pledged to lug a mattress around campus until Columbia punished Nungesser, whom it had explicitly exonerated of any wrongdoing.

Continue reading →

There’s a silly war going on in northern New Jersey, places with funny names like Mahwah and less-funny names like Upper Saddle River, over whether a piece of PVC pipe attached to a telephone pole is a sign, and as a sign, subject to local building codes. But the war sounds far less silly when you realize the claims are silly only because they’re an obvious subterfuge for the “real” problem.

• “Get those scum out of here.”
• “They are clearly trying to annex land like they’ve been doing in Occupied Palestine. Look up the satanic verses of the Talmud and tell me what you see.”
• “Our town is such a great place and if these things move in they will ruin it. They think they can do whatever the hell they want and we’ll be known as a dirty town if they move in. Please keep them out…”
• “I don’t want these rude, nasty, dirty people who think they can do what they want in our nice town.”
• “I don’t want my town to be gross and infested with these nasty people.”
• “I do not want these things coming into my town and ruining it.”

These are the comment from a petition to rid Mahwah of the “eruv.” The what?  Continue reading →