I was backpacking through Europe, having just been handed a college diploma, facing a haircut and future of misery in law school.  Lawprof Steve Vladeck had yet to be born. Justice Harry Blackmun wrote an opinion that, even then, was edgy and controversial, Smith v. Maryland.

Technology allowed the government to wiretap our telephones, to listen in to our private conversations, and it was troubling. Back then, there was a very firm, very clear appreciation of privacy, and the idea that law enforcement could listen in bordered on shocking. Statutes were enacted to strictly limit the use of eavesdropping. Not only was a warrant required, but the ancillary requirements were strict, and the government was expressly required to strictly adhere to them. There was no fudging around the edges of a Title III warrant.

Another technology also came into play. Originally called a “trap and trace device,” it later became known as a pen register. Its capacity was limited to capturing the telephone number called or calling in.  Continue reading →

The cost of warehousing prisoners in California is high. By high, I mean incredibly expensive.

The cost of imprisoning each of California’s 130,000 inmates is expected to reach a record $75,560 in the next year. That’s enough to cover the annual cost of attending Harvard University and still have plenty left over for pizza and beer.

This is totally true, provided you drink domestic beer and aren’t too demanding about toppings on your pizza. It’s also the sort of comparison that shallow people conflate with actual alternatives rather than a shocking metric.

At $75,560, housing a prisoner in California now costs more than a year at Harvard https://t.co/g06HJsDZyC

— deray mckesson (@deray) June 5, 2017

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Liz Spayd was the sixth Public Editor at the New York Times since the inception of the position in 2003. It was birthed in the aftermath of the Jayson Blair plagiarism scandal as a palliative to readers who had lost faith in journalism’s ability to apply skepticism to its own. The first public editor, Daniel Okrent, proved unwilling to be the expected apologist.

From the beginning, though, the Times’ first public editor, Daniel Okrent, showed that the job could be much more substantive than that of email reader–in–chief. His January 2004 column “Is the New York Times a Liberal Newspaper?” remains a classic. It’s a flawed classic, in my view, because Okrent mistakenly viewed gay marriage opposition as a legitimate political position worthy of sympathy and positive coverage.

But a classic, nonetheless, because it sliced to the core of the sort of important, existential question that the Times ought to be publicly asking itself on a regular basis. He also challenged the paper to introspect more honestly about the incentives that shaped its disastrous coverage of Iraq’s supposed weapons of mass destruction. And he took a thoughtful look at the Times’ reliance on anonymous sources—as urgent a topic today as it was then.

This quotes been taken from Slate’s Will Oremus, because it reflects so much of the irony of what’s needed, and missing, in journalism. He’s all for someone calling bullshit on journalism, as long as it reflects his truth. Continue reading →

While Justice Sonia Sotomayor’s stilted yet pedantic opinion, writing for a unanimous court (without Justice Gorsuch), bogged down in the dreaded textualism of 21 U.S.C. § 853, Honeycutt v. United States provided a break from two notions that the government has long taken for granted.  The first is that they love them some forfeiture. The second is screw co-conspirators and individualized liability.

Maybe there is hope?

The case involved two brothers, one of whom owned a hardware store in Tennessee where the other worked. They sold a perfectly lawful product, an iodine-based water-purification product known as Polar Pure, which could be used to manufacture meth, in quantities far exceeding any legitimate use. After learning this, they continued to sell it anyway, so the DEA dropped the hammer on them. Continue reading →

It was included in my first post about Bret Weinstein, the video of outraged students being outrageous. And while the students in the video, filled with self-righteousness, believed themselves to be on the side of truth and social justice, fighting the evil racist who didn’t think whites should be banned from their college campus, it was met with less than universal adoration.

By the chaos theory that only makes sense to the truest of believers in social justice, the students in the video became the victims of their own words and deeds. And those who criticized them were bullies. In stepped the Youtube gods to save them.

Whoa – key video Evergreen students confronting @BretWeinstein taken down @YouTube for violating “bullying” policies https://t.co/WlNlRxj0yQ pic.twitter.com/IfVjZFT8q7

— Legal Insurrection (@LegInsurrection) June 4, 2017

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There is a huge gap between intelligence, even brilliance, and stupidity. Ten students admitted to Harvard got caught in it, and their admission was revoked.

Harvard College rescinded admissions offers to at least ten prospective members of the Class of 2021 after the students traded sexually explicit memes and messages that sometimes targeted minority groups in a private Facebook group chat.

A handful of admitted students formed the messaging group—titled, at one point, “Harvard memes for horny bourgeois teens”—on Facebook in late December, according to two incoming freshmen.

In the group, students sent each other memes and other images mocking sexual assault, the Holocaust, and the deaths of children, according to screenshots of the chat obtained by The Crimson. Some of the messages joked that abusing children was sexually arousing, while others had punchlines directed at specific ethnic or racial groups. One called the hypothetical hanging of a Mexican child “piñata time.”

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When news broke of Worth County, Georgia Sheriff Jeff Hobby’s execution of a mass frisk of 900 high school students, I was asked whether there was any conceivable lawful justification for this mass search. While the law allows for a search of students in school upon reasonable and articulable suspicion, rather than probable cause as would be required any other time, it seemed inconceivable that there could be reasonable suspicion of 900 students.

And, of course, there was not.

When asked about the pat down of students, and the notion of probable cause, Hobby said that as long as a school administrator was present, the personal search of the children was legal.

Maybe Hobby got his legal advice from a twitter lawyer. Maybe he just heard voices in his head. Regardless, this isn’t the law. Not even a little bit. One might question whether Hobby, a sheriff rather than a lawyer, should be expected to know the law, to adhere to the law. After all, he was protecting students from drugs and, to many, that’s an important goal. So maybe he misunderstood the limits of his authority. Stercus accidit. Continue reading →

Everyone knows women start out made of “sugar and spice, and everything nice.” But some change over time and end up committing crimes. Not real crimes, according to Professor Mirko Bagaric, Director of the Centre for Evidence-Based Sentencing at Deakin University, Melbourne, at the Guardian, but girl crimes.

Women almost never scare us; commit random acts of serious violence; violate our sexual integrity; or form organised crime networks and yet their prisons numbers are now the highest in recorded history.

The homogeneity of the human species breaks down when it comes to criminal behaviour. Women, who constitute slightly more than 50% of population, commit only about 20% of all crime. They commit even a lower portion of all serious crime.

And, indeed, women commit fewer crimes than men. So much for gender being merely a social construct. And the crimes they commit tend to be different as well. Continue reading →

Frank Bruni tries desperately to salvage the Utopian dream of Evergreen State College following the videos revealing the flies trying to feed on the carcass of Bret Weinstein.

Racism pervades our country. Students who have roiled college campuses from coast to coast have that exactly right.

But we’re never going to make the progress that we need to if they hurl the word “racist” as reflexively and indiscriminately as some of them do, in a frenzy of righteousness aimed at gagging speakers and strangling debate.

That’s a mechanism for shaming, not a strategy for change. It mesmerizes all. It converts none.

The argument begins with a facile premise. It’s not facile because it’s necessarily false, but because it’s necessarily unilluminating. It’s unhelpful to call something “exactly right” before defining what it is. And Bruni’s post achieves circularity by condemning the use of hurling the word “racist…reflexively and indiscriminately” as a “mechanism for shaming.” Continue reading →

As an assistant prof at Princeton in African-American studies, it was probably a big deal that Keeanga-Yamahtta Taylor was asked to give the commencement address at Hampshire College. She used the opportunity to condemn President Trump.

That she did so isn’t exactly novel. Some may think it inappropriate for a graduation speech. Some may be offended at the disrespect shown the president. Fair enough, though she doesn’t need your permission or approval to speak her mind. Disagree with her all you want. That’s what the marketplace of ideas is all about.

But some couldn’t stand it, and so they did what vile people do.

I argued that Donald Trump, the most powerful politician in the world, is “a racist and sexist megalomaniac,” who poses a threat to their future. Shortly after the Fox story and video were published, my work email was inundated with vile and violent statements. I have been repeatedly called “nigger,” “bitch,” “cunt,” “dyke,” “she-male,” and “coon” — a clear reminder that racial violence is closely aligned with gender and sexual violence. I have been threatened with lynching and having the bullet from a .44 Magnum put in my head.

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