The opening sentence of the complaint in the United States District Court for the District of Massachusetts is cringeworthy.

Undeniably, private universities like Harvard have the authority (and under Title IX, the obligation) to protect their students from sexual assaults committed by other students.

Not only is it quite “deniable,” but this sentence is deeply misguided. First, there is the distinction between “protect” and “punish,” as if colleges (or is it just private colleges, or just Harvard?) can anticipate complaints of sexual assaults and prevent them from happening. There is no authority for this. There is absolutely no Title IX duty to do this. Yet, the complaint begins with the word “undeniably.” An ignominious start. Continue reading →

At a time when a person’s history magically disappears in a flash, like former acting Attorney General Sally Yates and Southern District of New York United States Attorney Preet Bharara, for whom being fired by Trump was all that was needed to morph them into social justice heroes despite their entire careers being dedicated to mass incarceration, the naming of former chief of Sex Crimes of the New York County District Attorney’s office as the winner of the Grand Master Award by the Mystery Writers of America was surprising, to say the least.

Mystery Writers of America announced the recipients of its 2019 Grand Master Award on Tuesday, but the announcement has been met with more outrage than celebration.

The Grand Master Award, presented at the annual Edgar Awards banquet in New York, is one of the most prestigious distinctions in the mystery genre, an honor held by the likes of Stephen King, Walter Mosley and Agatha Christie. Next year, the award will go to Martin Cruz Smith and Linda Fairstein. I’d heard of Smith, but not Fairstein. And really, I should have known her name. Not for her internationally bestselling Alexandra Cooper series, but because in her former life working for the Manhattan district attorney’s office, she oversaw the prosecution of the Central Park Five. She shouldn’t be the toast of a black-tie literary gala — she should be notorious.

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We had the occasional exchange on the twitters while he was a lecturer at Harvard Law School, including these when he was promoting court-packing the Supremes. Ian Samuel was about as much of a social justice poster boy as there could be, smugly self-righteous of his tribe and not reluctant to be disdainful, if not attack, the unwoke. We did not, for the most part, see eye to eye.

But when one of his gigs, First Mondays, a podcast about the Supreme Court, twitted about him, I was concerned.

Announcement: Until further notice, Ian Samuel will be on a leave of absence from First Mondays while he tends to personal and family issues. In the meantime, Leah Litman will step up to serve as co-host and co-manager with Dan Epps. The weekly episodes will keep rolling!

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Old jokes to some aren’t jokes at all these days. Its not just Lenny Bruce or George Carlin who are awful, but the same banal old jokes that, to those who either never heard them or just love being outraged, evoke outrage. Dirty old man? Ladies’ Lingerie? Outrageous!!!

You don’t find it funny? Fair enough. Nobody can make you find something amusing if you don’t want to, and you’re entitled to not find something funny any damn time you want. So don’t laugh. Or if it offends you, say it. Go ahead, say it.

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Attempting to raise any point about Michael Cohen, Trump’s “fixer,” is an invitation to the unduly passionate to outrage. After all, he’s pleaded guilty, but more importantly, he’s implicated the First Individual in his crimes and there is nothing more important than that. There can be no question raised, even if a nuanced understanding of what happened to Cohen remains unanswered.

This is where we are, making up excuses and fighting against any doubt that the hated Cohen deserves to be hated, because it moves us ever closer to the end of Darth Cheeto’s reign.

When all is said and done, the April raids by federal prosecutors targeting Michael Cohen’s office and other premises in Manhattan may be seen as a turning point for Donald Trump’s presidency. Continue reading →

In what may be a red-letter day at the New York Times, two knowledgeable voices are speaking to the peculiar actions of Paul Manafort, both of whom (I humbly note) were writers at Fault Lines. First, there’s Cristian Farias’ editorial, “What is Paul Manafort Thinking?” Then there’s Ken White’s “Why Did Manafort Cooperate With Trump Over Mueller?”

Both of these posts try to make sense of the nonsensical, that Manafort, at least theoretically, chose to cast his lot with Mueller by becoming a cooperator, whereupon he chose to lie rather than cooperate. To what end? And then there are the consequences of this misbegotten choice, that he will get whacked by the judge at sentence for his actions, will be amenable to state prosecution so that no presidential pardon will protect him from consequences, and most bizarrely, expose his attorney-client communications to disclosure by his attorney continuing to reveal to Trump’s lawyers what was happening behind the scenes of his cooperation.

Who does this? Why would anyone do this? Continue reading →

Of all the aspects of the proposed Title IX revisions to focus on, Cornell lawprof Mike Dorf oddly chose the burden of proof, probably the least significant aspect of the changes to trial lawyers. When Catherine Lhamon, head of the Department of Education’s Office of Civil Rights told colleges to use the “preponderance of evidence” standard or else, her purpose was to facilitate findings of guilt.

Dorf adopts the argument preferred by twitter lawyers in favor of the reduced burden.

Why was the ED specifying the burden of proof in college grievance procedures? Some schools had been requiring that complaints of sexual violence be proven by clear-and-convincing evidence or even proof beyond a reasonable doubt. The rationale for these heightened evidentiary standards was dubious. The beyond-a-reasonable-doubt standard applies in criminal cases where a defendant risks imprisonment. The clear-and-convincing standard applies in civil commitment hearings, where personal liberty is also at stake. It also applies in some other settings. However, in the vast majority of civil cases, the preponderance standard applies, even when the stakes are high, as when a plaintiff sues for defamation based on damage to her reputation.

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When Cass Sunstein and Richard Thaler published Nudge in 2008, no less a classical liberal hero than George Will raved about the book. He immediately identified what made it special:

Thaler and Sunstein correctly assume that people are busy, their lives are increasingly complicated and they have neither time nor inclination nor, often, the ability to think through even all important choices, from health care plans to retirement options. Therefore the framing of choices matters.^[1] 

This is where the “nudge” comes in: subtle pressure by government that steers people in the direction of a better life. (Think mandatory nutritional information, or automatic enrollment in pension plans.) The emphasis is on framing choices, not denying them. Outright bans on behavior are blunt solutions. They don’t respect people’s autonomy, and make it so that the powers that be overwrite the preferences of individuals with their own idea of what makes for good living. Continue reading →

The introduction to Harvard lawprof and public intellectual, Cass Sunstein’s new book, On Freedom, opens with a question and non-responsive response:

Does freedom of choice promote human well-being? Many people think so.

The problem is that this putative question isn’t a question at all, but an assumption framed as a question, which serves as the lead in to his thesis that people struggle with navigating the “right” choices, and thus his solution, that “choice architecture,” unavoidable no matter what, should serve to nudge people toward the choices that best promote human well-being while allowing them the freedom to ignore the nudges and do as they please. Continue reading →

I vaguely remember getting the letter and reading the opening paragraph. It was from a prisoner whose name sounded somewhat familiar, Martin Tankleff. I remembered it from the newspapers, a kid convicted of killing his parents. Years later, he would be exonerated for the murder, and I would think about how I tossed the letter in the garbage rather than reply.

Criminal defense lawyers get letters from random prisoners all the time. They’re often long letters. They occasionally come with papers or transcripts, sometimes hundreds of pages. They proclaim their innocence and beg for a lawyer to save them. Pro bono, of course.

It takes time to read these letters from unknown prisoners, and after reading the first few, you realize they are largely incomprehensible, replete with gushing words about justice and devoid of any substantive basis for action, other than the prisoner’s denial of guilt. You become inured to the protestations of innocence. They all say so. Few are. Almost none can prove it. Continue reading →