Can Rhode Island state troopers really, lawfully, constitutionally, pull over drivers for no better reason than their car has New York license plates? Whatever happened to due process? What about the Privileges and Immunities Clause, you cry? There are two answers to these and similar questions, the first being the one you want and the second being the real one.

Most jurisdictions give significant latitude to emergency orders by the executive to manage an emergency. Not a thing someone calls an emergency, like a vanity wall, but a legit emergency. Immediate survival ranks high on reasons to turn a blind eye toward civil rights.

If you’re wondering if New York City Mayor Bill de Blasio really means “draft” when he calls for drafting medical personnel from around the U.S. to care for COVID-10[?] patients in his hard-hit city, the answer is an unequivocal “yes.” He really does want to drag doctors and nurses from their jobs elsewhere to assigned positions in New York City.

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It seems like it was only a week ago that Dr. Deborah Birx told us to expect 100,000 to 240,000 deaths from COVID-19. Yet here we are, with a total (as of this moment) of 10,493 deaths, hardly inconsequential, but hardly in the hundreds of thousands. Whether it was the product of exaggerated fears, a good response by government or the effectiveness of social distancing is a discussion best left to reddit, but two things happened to reflect a paradigm shift.

First, the Dow rose 7.73% yesterday, reflecting the market’s belief that the worst is in the past and we’re now looking forward. Second, the New York Times is now offering a ‘splainer about how we’ll know when it’s over. Playing the “experts say” game, the Times provides “four benchmarks.” Continue reading →

Having addressed many times the unfortunate difference between the aspirational goals of arbitration and the way in which it’s played out — which, by the way, should serve as an apocryphal tale of all the glorious ideas that are doomed to fail because of our denial that people are, and will always be, people — there is a certain sense of schadenfreude about FairShake’s burning the system down.

Teel Lidow couldn’t quite believe the numbers. Over the past few years, the nation’s largest telecom companies, like Comcast and AT&T, have had a combined 330 million customers. Yet annually an average of just 30 people took the companies to arbitration, the forum where millions of Americans are forced to hash out legal disputes with corporations.

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I vaguely remember when “Making A Murderer” appeared out of nowhere, and people would ask me what I thought. My answer was “not much.” While the arguments raised to suggest how Steven Avery was railroaded might be novel to outsiders, they were fairly banal as far as I was concerned. These were the usual arguments made at trial, and they almost invariably got crushed when the jury returned a guilty verdict.

But to the unwashed, they were novel and shocking. So why did they capture public interest and attention, why were they so much more persuasive in a show than they were in real life? The first reason is obvious: shows present only one side of the argument, and they present them in a way that creates the appearance that there could be no reasonable doubt as to their truth. Continue reading →

At oral argument in Doe v. University of Sciences before the Third Circuit, an issue that gets only tangential consideration was front and center: Can the schools using the “single investigator” model for Title IX sexual determinations suffice as a fundamentally fair method? KC Johnson provides the background to the case.

In the Sciences case, two students—sorority sisters—filed Title IX claims alleging that the accused student had sexually assaulted them (in different incidents, both of which occurred many months before the reports). The first accuser appears to have persuaded the second accuser to file. Although the University of the Sciences promises fairness in its investigations, it employs a single-investigator model; the same person handled both allegations. After interviewing the parties, she returned a guilty finding; Doe appealed but was expelled halfway through his senior year.

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I’m informed that one of Trump’s most endearing qualities is that he says out loud what no one else would be foolish enough to admit. One such admission involves voting.

If election day was a national holiday, no Republican would ever be elected again? Because too many people would vote? Continue reading →

As law school closings smacked prawfs and law students in the head, schools scrambled to figure out a way to make school work essentially overnight. Zoom ended up as the most likely, and hence most used, app of the moment. At the moment, it was unclear how long this would last, how serious it would be and what alternatives were available. As some prawf friends questioned how they were going to pull this off, there was only one answer and it was obvious: the best you can.

In an emergency, you make do. Prawfs weren’t prepared for online teaching (or distance learning, as some prefer as it sounds less unseemly), but they’re trying. Josh Blackman has been chronicling his experience, which is somewhat unfair as he’s young, a digital native and finds this more “intuitive” than some of his, ahem, more senior colleagues. But on the whole, he says it’s going well. Continue reading →

When Donald Trump was elected president, I urged people not to spend their every waking moment shrieking the sky is falling. There was no doubt in my mind that a time would come when he would do something so wrong, so dangerously stupid, so narcissistically bizarre, that it would be time to drop the hammer. But if it was a constant shrieking, we would be inured to it in days.

Stalin’s admonition came to mind, a single death is a tragedy but a million deaths is a statistic. All Trump had to do was spew lies and nonsense constantly and they would become background noise.

Since he began holding daily coronavirus press briefings, which would likely have been conducted by Drs. Fauci or Brix, or perhaps some other spokesperson from the Centers for Disease Control under any other president but are led by the president because how else is he supposed to run for re-election during a pandemic, he has persisted in doing what he’s done regularly from the start: Spewed idiocy. Called names (“nasty” being a perpetual favorite, whether as noun or adjective). Contradicted himself with neither the slightest recognition nor shame. Lied. What else is new? Continue reading →

Prefatory Note: Sticky sent me something interesting this week. I leave it here for the SJ readership to analyze. Sticky also asked me to pass along a message: if you’re using Zoom to work from home, make sure you’re not sharing any sensitive information on that platform.—CLS

TRANSCRIPT OF IN RE ROGER STRAIT, CAMPUS MISCONDUCT HEARING, EVERGREEN STATE

[Five faces appear in the Zoom meeting. One screen is distorted.]

DEAN WORMER: All right, it appears as all parties are here for this campus misconduct proceeding pursuant to Title IX. This hearing is In re Roger Strait, regarding sexual misconduct allegations filed by a party who for the purposes of this proceeding will be addressed as “Jane Doe.” We appreciate all parties participating in this proceeding. For the visually impaired, the parties are using jazz hands to signal their support. Continue reading →

It’s unfortunate and ironic that Michelle Goldberg can’t get out of the trap of inherently believing her fellow travelers, but the opening anecdote about a quote from Vanity Fair’s Gabe Sherman doesn’t really challenge the public narrative enough to present a problem.

According to Sherman, when New York’s governor, Andrew Cuomo, said that the state would need 30,000 ventilators at the apex of the coronavirus outbreak, Kushner decided that Cuomo was being alarmist. “I have all this data about I.C.U. capacity,” Kushner reportedly said. “I’m doing my own projections, and I’ve gotten a lot smarter about this. New York doesn’t need all the ventilators.” (Dr. Anthony Fauci, the country’s top expert on infectious diseases, has said he trusts Cuomo’s estimate.)

In what great nation does a kid of no particular competence get to be in charge of life or death? Continue reading →