If there is anyone Stanford lawprof Michelle Dauber hates more than Judge Aaron Persky, it’s former Stanford swimmer convicted sex offender Brock Turner. Turner is appealing his conviction, as is his right.

Brock Turner, the former Stanford University student and champion swimmer who was found guilty in March 2016 of sexually assaulting an unconscious woman on campus, is appealing his conviction.

A 172-page brief filed on Friday by Mr. Turner’s lawyer, Eric Multhaup, said Mr. Turner did not get a fair trial for several reasons, including the exclusion of testimony by character witnesses who spoke of his swimming career and his performance in school and attested to his honesty, the appeal said.

That’s a rather long brief, making the word “brief” seem somewhat incongruous. Whether it’s got merit or not has yet to be seen. The issues raised go to the conviction, whether Turner was denied due process and prevented from offering his defense. An appellate court will ultimately make a decision about it, as that’s the way appeals work. Continue reading →

When all you have is a hammer, and you’re Facebook, what could possibly go wrong?

This is software to save lives. Facebook’s new “proactive detection” artificial intelligence technology will scan all posts for patterns of suicidal thoughts, and when necessary send mental health resources to the user at risk or their friends, or contact local first-responders. By using AI to flag worrisome posts to human moderators instead of waiting for user reports, Facebook can decrease how long it takes to send help.

By “send help,” Facebook means call the cops. Facebook’s hammer is artificial intelligence. The cops’ hammer is deadly weapons. The option of sending “mental health resources” is easier said than done, as there aren’t any for the most part, and “local first-responders” tend not to be the local suicide hotline roadshow. They tend to be the cops.

But all of this raises the question: how will Facebook’s AI know you, and know you well enough, to detect “patterns of suicidal thoughts”? If your friends, your family, don’t see issues, is Facebook up to the task? Continue reading →

There is a strong policy argument against ICE, Immigration and Customs Enforcement, arresting people at a courthouse. It creates an extremely strong disincentive for defendants, witnesses, complainants, to show up. While it may not be a big deal to appear as required for jumping a turnstyle, if the consequence is getting held in ICE custody for a year before being deported to a country you left when you were three months old, the incentives for appearing are very different.

But this is a policy concern, even if it eludes a great many people. It is not the law. Contrary to popular belief, ICE gets to arrest people wherever they are, courthouses included. This seemed to elude lawyers in Brooklyn.

Nearly 100 defense attorneys staged an impromptu protest ouside a Brooklyn courthouse Tuesday after a lawyer’s client was arrested by federal authorities on an immigration charge.

When Rebecca Kavanagh walled [sic] into Judge Rosemarie Montalbano’s courtroom, she was warned to speak to her client immediately because U.S. Immigration and Customs Enforcement agents were present and prepared to detain him. Continue reading →

No decent person will shed a tear for a guy who is guilty of sexually molesting or raping a woman. When the man admits he did it, whether it happened yesterday or 20 years ago, we can take comfort in knowing the allegation is true, provided he didn’t fudge the confession because his publicist told him that was the smart way to cop a plea.

But the wave of feelz has a way of catching decent guys who should know better. At the Atlantic, Conor Friedersdorf caught the wave.

A scholarly article published in 2012 by Ian Ayres and Cait Unkovic defined the challenge: Many are reluctant to be the first person to accuse someone of sexual harassment, in part because the accused “routinely responds by trying to impeach the credibility of the accuser.” Yet first accusations often lead to more accusers coming forward. That’s a dynamic that tends to protect recidivist harassers.

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Harvard’s endowment is $37.1 billion. And it only returned a very disappointing 8.1% in 2017. Whether that’s because Harvard’s investment arm is “lazy,” “fat,” and “stupid,” as characterized by McKinsey, or the constraints of social justice-guided investment choices. But whatever. Their money. Their investments. But Faust’s whining about Harvard’s billions?

HMC’s trailing performance has worried University President Drew G. Faust, who last year warned the low returns would “constrain” budgets across the University for years to come. That rang true last year when the Graduate of Arts and Sciences, citing HMC’s low returns, cut the number of graduate students it accepts by 4.4 percent. Then, graduate students  and  professors learned they would receive smaller pay increases that were outpaced by the rate of inflation. Harvard also faces a number of financial challenges amid potential decreases in federal research funding.

Who cares? You should, because Drew Faust took her problems to Congress when she feared that Harvard’s endowment didn’t merely reflect its really mediocre investment skillz, but could be subject to (dare I say it) tax. Continue reading →

One of the components of the selling of “believe the women” has been the effort to turn excuses for the same failures that apply in every accusation into virtues when it comes to rape and sexual assault accusations. This is nothing new. Nor is there anything new about the use of false statistics to perpetuate the claim that false rape accusations rarely occur.

And the New York Times, for maybe the thousandth time, repeats the same nonsense it’s been relying on for years. But what could have possibly compelled them to turn to Shaila Dewan to write this “news analysis” listicle?

There are all sorts of reasons women who report sexual misconduct, from unwanted advances by their bosses to groping or forced sex acts, are not believed, and with a steady drumbeat of new reports making headlines, the country is hearing a lot of them.

But some of the most commonly raised causes for doubt, like a long delay in reporting or a foggy recall of events, are the very hallmarks that experts say they would expect to see after a sexual assault.

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The acquittal of Jose Ines Garcia Zarate for the murder of Kate Steinle will be one of those moments that either proves why Trump’s pandering to xenophobia was absolutely right, or the right side of the outrage machine should take a deep breath and be proud of their nation. If Ted Cruz, who should have learned something at Harvard Law School, gets his way, it will be the former. If you read this, maybe the latter will happen.

The defense in the case, adeptly and properly presented by public defender Matt Gonzalez, is explained exceptionally well by Sarah Rumpf at Redstate. Notably, the Steinle murder began with outrage, before she became a prop to the Trump campaign.

This seems to be a classic example of prosecutorial overreach. They pushed hard for a first degree murder verdict, which requires not only proving that the defendant killed the victim, but that he did it intentionally, and that it was premeditated (planned or thought out beforehand).

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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 →