Emily Yoffe at Cato Dec. 5

Mark your calendar for the afternoon of December 5, when I’m delighted to be hosting and moderating acclaimed writer Emily Yoffe, author of the recent blockbuster Atlantic series (parts one, two, three, earlier coverage here and here) on the problems with campus sex-misconduct tribunals. Washington Post columnist Ruth Marcus will offer commentary. Be there or plan to watch online (register).

Yoffe, whose earlier adventures include a seven-year stint writing the popular Slate advice column “Dear Prudence,” was recently interviewed about her work by Robby Soave for Reason. And relatedly on campus conduct, KC Johnson and Stuart Taylor Jr. report in a new Weekly Standard piece that federally mandated Title IX training mangles forensic principles and steers campus administrators to findings of “guilty.”

Filed under: live in person, sexual assault, Title IX

Scrubbing consumer reviews: “Decline and fall of the dumb copyright trick”

One thing professionals “have tried to do to avoid negative online reviews is to find ways of claiming some kind of copyright in any review posted by a former client, then suing the negative reviewer for copyright infringement….Finally, the courts are catching up.” [Ron Coleman, Likelihood of Confusion; Pamela Chestek; Eric Goldman in 2013 on Goren dispute with Ripoff Report]

Filed under: copyright, social media

Transferring drug patents to Indian tribes, cont’d

More on the controversy that erupted in September: By ruling the patent invalid due to obviousness, a federal judge may have mooted Allergan’s innovative move to transfer its patent over a successful dry-eye drug, Restasis, to the St. Regis Mohawk tribe. “The Restasis patents are at the center of a novel legal strategy that involves using Native American sovereignty rights to avoid certain types of patent reviews, called inter partes reviews, or IPRs….But this ruling won’t be the last time sovereign immunity is used to defend patents.” [Joe Mullin, ArsTechnica] And for something contrarian, Joanna Shepherd at Truth on the Market offers context on the bypassing of inter partes reviews, saying IPR is a process itself unbalanced in favor of patent challengers.

Filed under: Indian tribes, patent litigation, pharmaceuticals

Gerrymandering discussion continues at Cato Unbound

Our discussion, kicked off with my opening essay earlier this month, continues with Michael McDonald and Raymond La Raja and now my response to them. (& welcome Election Law Blog/Rick Hasen readers). In other news, I played a bit part (as guest speaker) in this William & Mary project using GIS tools to redraw Virginia house districts, thanks to Profs. Rebecca Green and Robert Rose.

Filed under: redistricting reform, Virginia, WO writings

“Why the trial by ordeal was actually an effective test of guilt”

Regarding the old “Trial by…” methods: our ancestors were not fools and seemingly bizarre or destructive methods of trial would not have lasted through long periods unless they served some function or other. One possibility is that where accused wrongdoers rightly or wrongly believed in the efficacy of a truth-finding ordeal, they would signal their belief in their guilt (by confessing) or not and that was the real information yielded by the process, making it unnecessary to follow through with the menaced injury.

According to this article, for example, there is reason to believe the supposedly boiling water in the boiling-water ordeal had been allowed to cool substantially, turning it into more of a psychological than a physical challenge. [Peter Leeson, Aeon]

There is also a literature worth checking out on the similarities to the old trials by ordeal (or outright torture) of our own current plea bargain system.

Filed under: crime and punishment

“So many bad lefty takes on free speech lately”

“At root, people deeply want it to be the case” that a bad person “doesn’t have a right to speak in public, let alone on public university campuses, so they contrive really silly reasons why, in their imaginary world, actually he can’t.” [Jesse Singal, New York mag]

Filed under: colleges and universities, free speech

Employer actions to curb sexual harassment might violate National Labor Relations Act

“EEOC recently announced the availability of ‘respectful workplace’ training, which [prompted a] concern about whether overly prescriptive rules about workplace behavior (like “no negativity” mandates) might chill workers’ NLRA rights.” NLRB rulings in recent years have included protecting workers in some circumstances from being disciplined for cussing out their bosses, and the NLRB has announced the employer policies against negativity and gossip may also violate the law. At the same time, tolerating hostile and personal talk can expose an employer to liability under harassment law. The agencies are hoping to work out the contradictions among themselves. [Kate Tornone, HR Dive]

Filed under: EEOC, hostile environment, National Labor Relations Board

Police roundup

Police credibility under oath: “Judge Weinstein takes on testilying” [Scott Greenfield]
“To resolve lawsuit filed by the DOJ, Seattle police department adopts policy requiring officers to attempt de-escalation (when possible) and use reasonable force to resolve tense situations. (A federal compliance monitor reports that officers’ use of force has since declined significantly without increased crime or injuries to officers.) Police officers: The policy violates our Second Amendment right to self-defense. Ninth Circuit: Novel but no.” [John K. Ross, Short Circuit, summarizing Mahoney v. City of Seattle]
“The LAPD’s drone pilot threatens privacy despite policy assurances” [Matthew Feeney, Cato]
Not just Hollywood and high places: sexual assault is “among the most pernicious and likely under-reported varieties of on-duty police misconduct” [Jonathan Blanks]
“Hundreds Of Cases Dismissed Thanks To Baltimore PD Misconduct” [Tim Cushing]
Body cameras worth pursuing even though results from Washington, D.C. study don’t show big effect on shootings or complaints [Matthew Feeney, Scott Greenfield]

Filed under: Baltimore, police, Seattle, sexual assault

Annals of nastygrams: Roy Moore’s lawyer to Alabama press

Lawyers, grammarians and connoisseurs of nastygrams will be studying this one for a long time: attorney Trenton Garmon, representing Alabama Senate candidate (and longtime Overlawyered favorite) Roy Moore, has sent a demand letter to Alabama press outlets instructing them that they had better not run certain negative stories. [Elliot Hannon, Slate; Ed Kilgore, New York mag] More: Kevin Underhill, Lowering the Bar.

Filed under: Alabama, libel slander and defamation, nastygrams, Senate

November 15 roundup

“A Link Between Alcohol and Cancer? It’s Not Nearly as Scary as It Seems” [Aaron E. Carroll, New York Times; Ronald Bailey]
Court rejects “sovereign citizen” pitch on behalf of disgraced Subway pitchman Jared Fogle [Matt Reynolds, Courthouse News]
I’m quoted on U.S. Senate’s Roy Moore perplex [Matt Kwong, CBC] And my Twitter thread on the signed yearbook that figures in Monday’s allegations went viral;
Time to end it: “Low-Income Housing Tax Credit: Costly, Complex, and Corruption-Prone” [Chris Edwards and Vanessa Brown Calder, Cato]
“When Statutes Conflict, Agencies Shouldn’t Get to Pick Which One They Like More” [Ilya Shapiro, Cato on Cato certiorari amicus in Chevron deference case of Perez-Guzman v. Sessions]
“More Lawyers or More Justice?” Mark Pulliam reviews Barton and Bibas’s Rebooting Justice, earlier here and here]

Filed under: administrative law, alcohol, folk law, real estate, Senate