When the foundation upon which a call to action is built starts with this, it’s a problem:

Sexual assault is rampant on campuses, and colleges have failed to respond adequately. “Yes means yes” won’t make these problems disappear. But the new standard is worth trying.

The link in the quote from the New York Times editorial relates back to its story about the report of the White House Task Force to Protect Students from Sexual Assault.  That was the report that noted that it needs to be studied, as there is a huge hole in the empirical evidence, but in the absence of facts, they were just going to assume it to be true.  Repeat a baseless claim enough and it’s bound to show up in a New York Times editorial. Then again, most people believe anything that’s in the paper. It has to be true, right?

So sexual assault is rampant because, well, reasons. The gist of the editorial is that California’s Senate Bill 967 is a “new standard worth trying.”

The original draft specified that consent should be given “by words or clear, unambiguous actions” and noted that “nonverbal” signs could create misunderstanding. Since — obviously — many consensual sexual encounters are nonverbal, the bill could have dangerously expanded the definition of assault. The offending language was removed, however, and the bill now defines consent more simply as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” It need not be spoken.

In its current form, SB-967 is not radical. Its underlying message is that silence does not necessarily equal consent, and that it’s better to be certain that sex is desired than to commit assault.

Continue reading →

When Weev Auernheimer exploited a mistake in the configuration of AT&T’s access for iPads, the government prosecuted him for violating the Computer Fraud and Abuse Act.  When the government wanted to nail Silk Road’s Dread Pirate Roberts, the shoe was on the other foot.

Via Orin Kerr at WaPo Conspiracy:

In defending the prosecution, the U.S. Attorney’s Office recently filed a very interesting brief explaining how investigators found the computer server that was hosting the Silk Road (SR) server. Although the brief is about the Fourth Amendment, it has very interesting implications for the Computer Fraud and Abuse Act, the federal computer hacking statute.

The brief explains how the FBI found the SR server:

The Internet protocol (“IP”) address of the SR Server (the “Subject IP Address”) was “leaking” from the site due to an apparent misconfiguration of the user login interface by the site administrator i.e., Ulbricht. FBI agents noticed the leak upon reviewing the data sent back by the Silk Road website when they logged on or attempted to log on as users of the site. A close examination of the headers in this data revealed a certain IP address not associated with the Tor network (the Subject IP Address as the source of some of the data). FBI personnel entered the Subject IP Address directly into an ordinary (non-Tor) web browser, and it brought up a screen associated with the Silk Road login interface, confirming that the IP address belonged to the SR Server.

Continue reading →

On the twitters a few days ago, I asked why Eugene Volokh’s excellent post about responsible behavior following the J-Law hacking wasn’t the target of the usual ad hominem attacks by anti-revenge porn advocate Mary Anne Franks.  David Ziff responded that it was the tone, an answer that failed to account for the many other “civil” reactions that were viciously castigated as “blame the victim” misogyny. Still, it seemed to be a great excuse.

But the complaint of tone, of civility, is one that not only permeates discussion amongst the self-proclaimed intelligentsia, but is now manifested in the sort of manipulation of the concept of expression seen from Berkeley’s Chancellor Nicholas Dirks and the Cyber Civil Rights folks.  It’s being reflected in laws criminalizing bullying, revenge porn and, indeed, discussion on any matter of controversy.  It was, as lawprof Bernie Burks explained to justify ignoring the arguments of law students that they had been burned, the toxic tone.

There are a lot of people who feel more comfortable with discussion characterized by a gentleness, a civility, that they embrace this idea.  The debate is more pleasing to their sensibilities, even if each of us draws the line of propriety in a slightly different place.  To indulge our own sensibilities, we willingly go blind to the fact that what is happening is that we relinquish a piece of our own argument for the benefit of a more pleasant discussion.

This is a terribly unsound practice, but a hard one to convey.  People are willing to give up a lot to avoid unpleasantness, and they are particularly happy to do so when they ask that someone else give up their ground for pleasantness.  Fredrik deBoer, a doctoral student in rhetoric, provided a very clear explanation in a post called “ah civility.” Continue reading →

In a delightfully titled post that gets the joke backwards,* Pigs get fed, hogs get slaughered [sic],  Judge Richard Kopf poses the question that arose in the Third Circuit opinion in United States v. Erwin.

If you are a drug dealer with a Criminal History Category of I, and you cooperate, sign an appeal waiver, and then breach the appeal waiver because you are unhappy with the sentence of 188 months (151 to 188 months was the range after the cooperation departure motion) rather than somewhere at or below the statutory maximum of 240 months (without the statutory max., the range was 262 to 327 months) , what’s the worst that can happen?  According to the Third Circuit, a defendant who breaches the plea agreement in such a situation will find his 188 month sentence vacated, and the case remanded for resentencing without the motion for departure!

For those who don’t appreciate the ramifications, allow me to explain. Christopher Erwin ran a large-scale oxycodone distribution ring in New Jersey, which the prosecution tagged the “Erwin Organization” because it always sounds most nefarious when you give it a cool name.  Even though Erwin was the top dog, he decided that his best move was to flip out on his underlings, and the government was only too happy to oblige.

So Erwin became a rat, copped out and took down his own people.  He executed a plea agreement that included a waiver of appeal.  The government dressed him up in fancy ribbons and smeared him with lipstick, and he served his purpose. Then came Erwin’s day to be sentenced.  Continue reading →

Law students are “among the most dissatisfied, demoralized, and depressed of graduate student populations.”  So what’s stopping them from getting their Ph.D. in art history?*  After all the Mona Lisa never says “denied,” and Starry Night doesn’t depend on its lawyer to save it from the death penalty.  From the WSJ Law Blog:

Law schools have their own version of Scared Straight in the form of cautionary tales. Those are the stories that professors share with students about attorneys who suffered embarrassment or worse for a mistake they made. A good example is the story about the attorney who failed to notice an autocorrect error in his appellate brief that changed the phrase “sua sponte” to “sea sponge.”

But professors who sprinkle their classroom lecture with cautionary tales about attorneys’ goofs should themselves take heed, says Abigail Patthoff, a legal research and writing scholar at Chapman University in California.

There is a reason to instill fear in law students.  It’s to make them aware of the fact that their mistakes destroy other people’s lives.  Patthoff has an article coming out in the Utah Law Review called “This is Your Brain on Law School: The Impact of Fear-Based Narratives on Law Students,” arguing that law professors should stop scaring law students by stories of disaster in order to reduce their stress. Continue reading →

Nicholas Dirks, Chancellor of UC Berkeley, sent out an important email about free speech.  It’s not important for what it contributed to the dialogue about it, but rather for what it seeks to take away.  It’s couched in kind, maybe even beautiful words, and it promotes a value that many hold dear.  And it’s very dangerous.

At Popehat, Ken parses Dirks’ email line by line.  Some commenters there have questioned whether Ken has taken an uncharitable view of Dirks’ meaning.  As the words speak for themselves, anyone who sees a more benign meaning to a particular word or sentence is free to read it differently. Continue reading →

I like art, but I don’t necessarily understand it.  This probably explains why no one has ever asked me to be an art critic.  I have opinions, but they interest no one but me, so I tend to keep them to myself.  I’m not a Millennial.

When news broke that artist XVALA planned to do an exhibit at a Florida gallery using the stolen nude images of young celebrity women, it raised a disturbing problem:

A gallery in Florida announced their plans to drum up controversy and cash in on a high-profile sex crime for an exhibit by Los Angeles artist XVALA that will feature nudes of Kate Upton and Jennifer Lawrence that leaked over the weekend.

The plan is to print out the leaked, unaltered nudes of Upton and Lawrence on a life-sized canvas. Whether that’s legal, we’re not sure, but that’s the plan as E! Online is reporting it. The nudes will be part of a larger exhibit called “No Delete” that will open on October 30.

Is it legal?  There appears to be no doubt that the images were hacked, and this type of hacking, breaking into a person’s iCloud account, is a crime, as it should be. At first blush, the images would seem to be very much stolen property, even though digital “property” isn’t a good fit with historic concepts of property. But when XVALA claims to use stolen property to create art, does it then become art rather than stolen property, and therefore enjoy First Amendment protection? Continue reading →

Connecticut lawyer and UConn adjunct lawprof Dan Klau, at his blog Appealingly Brief!, provides a remarkably clear and cogent explanation of the theory behind the rights v. utilitarian view of the Fourth Amendment.  The question arose from a discussion that he and Connecticut public defender Gideon had about an awful decision, State v. Kelly, where a stop was upheld on the basis of guilt by association.

Gid blew a gasket when the Kelly decision came down, but some questioned why it was such a big deal.  Essentially, the counter-argument to Gid’s doctrinal position was that it worked, the cops got the bad guy and, well, it just didn’t seem particularly unreasonable.  Reasonable, as a stand-alone concept, has gained traction as an antidote to the warrant clause, where the black letter law that a warrantless search and seizure are unconstitutional per se, absent an exception.  There is no shortage of exceptions, but the alternative approach, a shrug and “well, it seems reasonable to me,” isn’t one of them.

Non-lawyers and quite a few lawyers who don’t practice criminal defense seem untroubled by this.  Actually, they seem fairly amenable to the idea that police conduct that doesn’t strike them as particularly unreasonable, usually because it turns out to be effective in getting the bad guy, should be permissible.  Fourth Amendment?  Meh. Save it for the innocent dudes and the really bad police conduct. Otherwise, let’s not make a big deal of it.

It’s been a struggle to explain what the issue is with this, and a struggle for those to whom the touchstone of reasonableness overcomes all “technicalities” to understand.  That’s where Dan Klau’s excellent explanation comes in. Continue reading →

Doug Berman at Sentencing Law and Policy picks up on an article entitled Reducing Guilty Pleas Through Exoneree Compensations.  The abstract provides:

 A great concern with plea-bargains is that they may induce innocent individuals to plead guilty to crimes they have not committed. In this article, we identify schemes that reduce the number of innocent-pleas without affecting guilty individuals’ plea-bargain incentives. Large compensations for exonerees reduce expected costs associated with wrongful determinations of guilt in trial and thereby reduce the number of innocent-pleas. Any distortions in guilty individuals’ incentives to take plea bargains caused by these compensations can be off-set by a small increase in the discounts offered for pleading guilty. Although there are many statutory reform proposals for increasing exoneration compensations, no one has yet noted this desirable separating effect of exoneree compensations. We argue that such reforms are likely to achieve this result without causing deterrence losses.

At first blush, this appeared to be a good thing, a worthy idea that would serve to benefit the wrongfully convicted.  After all, as much as people may think criminals deserve life plus cancer, few believe that the innocent, coerced into accepting plea bargains for fear of conviction or sentence despite their innocence, should be convicted. They are the system’s mistakes, and shouldn’t those who suffer from such errors be compensated? Continue reading →

Forced into the fold again,* an op-ed appears in the New York Times by feminist icon, Gloria Steinem and gender studies professor Michael Kimmel in support of California’s Senate Bill 967, dubbed the affirmative consent bill.  It’s proposed as the cure to the epidemic of rape, a rhetorical disease spread only by word of advocates’ mouth.

The op-ed opens with an analogy:

SUPPOSE someone you know slightly arrives at your home, baggage and all, and just barges in and stays overnight. When you protest, the response is, “Well, you didn’t say no.”

The op-ed then goes straight into another analogy:

Or imagine that a man breaks into your home while you sleep off a night of drunken revelry, and robs you blind. Did your drinking imply consent?

Powerful stuff, right?  Analogies are a rhetorical device, which can be used to reduce a complicated, perhaps obtuse, concept into a more easily understandable, more easily digestible, example that drives home a point in a different, usually more familiar, context. Continue reading →