In the name of fighting patriarchy, the law is taking some seriously wrong turns on the subject of sex while under the influence of alcohol, writes Nancy Rommelmann. “From now on, you will not be the ultimate arbiter of your own bad or good choices, at least not without fear of prosecution….We are talking ipso facto being considered incapable of giving consent due to having consumed alcohol.” [Tablet]
Lisa Bloom, whose Twitter bio describes her as “Trial lawyer fighting for victims of discrimination, harassment and abuse,” and who is also the daughter of well-known sexual-abuse attorney Gloria Allred,
was working behind the scenes with [Harvey] Weinstein — at a rate of $895 an hour — to quash the journalists’ investigation and thwart his accusers. In a confidential memo to Mr. Weinstein that Ms. Bloom wrote in December 2016, which is reproduced in “She Said,” she offered to help him damage the reputation of one of his accusers, Rose McGowan, and portrayed her background as a victims’s rights advocate as an asset.
“I feel equipped to help you against the Roses of the world, because I have represented so many of them,” Ms. Bloom wrote, before laying out a multistep playbook for how to intimidate accusers or paint them as liars. One of Ms. Bloom’s suggested tactics for undermining Ms. McGowan: “We can place an article re her becoming increasingly unglued, so that when someone Googles her this is what pops up and she’s discredited.”
Many colleges have adopted a principle known as “affirmative consent,” which makes it easier to infer misconduct (and thus impose expulsion or other discipline) when a record is lacking in verbal or physical evidence one way or the other as to whether a student’s sexual encounter with another student was consensual. It might seem unthinkable to apply such a standard in criminal law, where the consequences are not expulsion but imprisonment and the burdens of sex offender registration.
And yet that’s the gist of a resolution urged on the American Bar Association by its Commission on Domestic and Sexual Violence. Read my account at Cato, and then for additional insight check out the letter from Bay Area employment lawyer Mark Schickman, who chairs that sponsoring commission, especially the portions characterizing “The Principle Behind the Opposition.” Emily Yoffe’s investigation into the oddly influential “freeze” theory is here.
It was a close-fought thing, but Monday afternoon the assembled ABA House of Delegates voted to table the resolution 256-165, killing it for this conference at least.
- “Battle over stolen diamond-studded golden eagle takes flight as insurer fights order to pay up” [Jason Proctor, CBC]
- Fentanyl test strips save lives. Feds oppose their distribution [Jeffrey Singer, Cato]
- D.C. Circuit judicial nominee Neomi Rao (full disclosure: an old friend) “comes under fire for undergraduate writings on sexual assault — though her views from 25 years ago are consistent with today’s statutes and rulings.” [K.C. Johnson, City Journal]
- One reason the costs of rent control policies get understated: it’s hard to control and account for declines in the quality of apartment services [Richard McKenzie and Dwight Lee, Cato Regulation magazine]
- Federalist Society National Lawyers Convention video panel on antitrust law transparency with Deb Garza, Hon. Frank Easterbrook (“Always remember that sunlight is full of ultraviolet radiation”), Eric Grannon (incentive problems of “amnesty plus” program; “moral turpitude” provisions, more on which), moderated by Hon. John Nalbandian;
- Big reason military and health care procurement is so pricey: “scads of less specific programs out there [are] insanely cheaper and more functional, but those programs cannot justify the costs of becoming compliant” [from Tyler Cowen comments]
Although formal proposals are not due until next month, word has begun to filter out about the U.S. Department of Education’s plans to revisit and revamp the Obama administration’s Title IX guidelines on discipline for campus sexual misconduct. Emily Yoffe at The Atlantic, whose work in this area we’ve covered before, has more:
A year ago, Department of Education Secretary Betsy DeVos declared that the rules and procedures put in place by the Obama administration on this volatile subject had created a “failed system” that brought justice neither to accuser or accused. She promised to change that….
As I wrote in a three-part Atlantic series last September, the use of Title IX to protect female students, however well-intentioned, has resulted in the over-policing of sex between young adults. It has also sometimes resulted in adjudications that assume guilt, rely on junk science, gut fundamental fairness, engage in racial animus, and disregard the effects of ending men’s educations and crushing futures. The Times’s story was based on a leak, so we still need to see all the rules in their final form. Because these proposed rules will go through an administrative process known as “notice and comment” – meaning the public can weigh in — revisions are likely….
Among items on the reform agenda are the definition of harassment (moving toward the Supreme Court’s definition as opposed to the broader definition used now); the scope of the university’s duty to address wrongdoing (filed complaints only, or any appearance of misconduct whether or not there is a complainant?); whether colleges are obliged to punish misconduct occurring far away or during the summer, as opposed to on campus; sharing evidence with the accused; and allowing colleges to adopt higher standards of proof. Also under scrutiny are the training manuals and materials used for Title IX investigators; many colleges have yielded to pressure to adopt so-called trauma-informed response to accusations, which invokes dubious scientific assertions to stack the process toward overlooking flaws in accusers’ stories and assuming the worst of the accused.
Some of the proposals might make little difference or even encourage dubious “single-investigator” formats, but overall, Yoffe concludes, their thrust would be to “move the policy in a more just direction.”
More: and don’t miss the new analysis by KC Johnson and Stuart Taylor, Jr. in the Weekly Standard.
- “They Shared Drugs. Someone Died. Does That Make Them Killers?” [Rosa Goldensohn, New York Times in May, earlier on overdose prosecutions here, etc.]
- Also from May, missed this good Jill Lepore piece on rise of victims’ rights revolution, powered by both feminist and conservative impulses [The New Yorker; my comment on victim impact statements]
- UK: sexual assault cases collapse after prosecution shown to have held back material helpful to defense [Sky News]
- “The ongoing problem of conveniently malfunctioning police cameras” [Radley Balko]
- Bail reform activists shift focus toward problems with/tradeoffs of risk assessment algorithms, suggesting that previous “whole problem is private actors making a buck” theme might have been oversimplified [Scott Shackford, earlier here, here, here, etc.] Calif. Gov. Jerry Brown signs comprehensive bail reform bill [Jazmine Ulloa, L.A. Times]
- Second Circuit: New York’s gravity-knife law isn’t unconstitutionally vague [opinion courtesy Institute for Justice, earlier]
Scotland’s most senior judge, Lord Carloway, “told the BBC his ‘ultimate objective’ was for alleged [rape] victims to be able to give filmed statements within 24 hours. The judge also said their cross-examination should take place well before the trial and away from court.” The idea would presumably be a non-starter in the United States owing to our constitution’s Confrontation Clause. [Lucy Adams, BBC]
- Ruth Bader Ginsburg: “There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” Jeffrey Rosen: “Are some of those criticisms of the college codes valid?” Ginsburg: “Do I think they are? Yes.” [Atlantic] Related: Stuart Taylor Jr. & KC Johnson, Real Clear Politics; Linda LeFauve & Stuart Taylor Jr. on the long-deflated yet still influential Lisak campus rape study;
- “Forcing Students to Apply to College Is a Bad Idea” [George Leef, Martin Center, earlier]
- “Congress Should Deregulate Private Universities, Not Regulate Them More” [John McGinnis, Liberty and Law on bill to restrain colleges from applying discipline for membership in a fraternity or sorority]
- “What’s more, any program proposed by a Maryland university must be reviewed by the monitor to ensure it will not harm the historically black schools.” [Danielle Douglas-Gabriel, Washington Post]
- 88-year-old NYU psychology professor denounced to bias cops for curricular choices on gender politics, not using students’ preferred pronouns [Dean Balsamini/New York Post, Alex Domb, Washington Square News on case of Prof. Edgar Coons] Ideological state of the law schools not good [Mark Pulliam/Misrule of Law, and thanks for mention]
- “No one should be entitled, though, to a particular mix of holiday celebrations.” [Eugene Volokh on Loyola (Chicago) controversy]
If you missed the December Cato event with acclaimed writer Emily Yoffe on the problems with campus sex-misconduct tribunals, you can watch here as well as checking out KC Johnson’s live-tweeted summary. Yoffe was joined by commenter Ruth Marcus of the Washington Post and moderator John Samples of Cato, who kindly stepped into my place when I was unable to attend. Earlier here and here.
- California becomes fourth state to ban asking job applicants about salary history. Bad law. [Gerald Skoning, WSJ] Together with required disclosure of “pay range,” ban on salary history inquiries could hurt studios, talent biz [Philip Bonoli, Forbes]
- Claim: age-targeted Facebook employment ads unlawful under age discrimination law, even if hiring firms are listing jobs and soliciting applicants through many other channels as well [Julia Angwin, Noam Scheiber, and Ariana Tobin, New York Times] More: Charles Sullivan, Workplace Prof (“It’s not at all clear that the practice is illegal under current federal law.”)
- “‘Opt Out’ Provisions May Provide Path Forward for Class-Action Waivers in Employment Contracts” [Andrew Trask, Class Action Countereasures]
- Payments to workers’ comp attorney: “Former NBA Player Pleads Guilty to Charity Fraud Scheme” [Phil Yacuboski, WCI360] Report: jihadist group in Colorado in 1990s funded acts of terror through workers’ comp fraud [Liz Carey, WCI360]
- Will #MeToo scandal result in a leftward lurch in employment law? Some certainly hope so [Terri Gerstein, On Labor]
- Weirdly influential “pay workers enough to buy back the product” fallacy, associated with Henry Ford, doesn’t work for aircraft carriers or matches or most other products [David Henderson, earlier here, etc.]