Overlawyered: Chronicling The High Cost Of Our Legal System

Archive for September, 2014

“Affirmative consent must be ongoing throughout a sexual activity…”

California regulates college sex, in a law just signed by Gov. Brown and applying to campuses that accept state money. Key passages:

It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. … Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

Earlier here. More: K.C. Johnson on the very bad coverage in the New York Times, and less bad coverage in The Nation. And it’s totally reassuring that a Slate writer who won fame insisting on the guilt of the Duke lacrosse guys is being cited as an authority on why there’s no need to worry about the new California law.

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Free speech roundup

  • Coverage of Cato Constitution Day panel on First Amendment with Nadine Strossen, P.J. O’Rourke, Eric Rassbach, Ilya Shapiro [Concurring Opinions] And First-Amendment-oriented articles in the latest Cato Supreme Court Review: Judge David Sentelle on freedom of speech as liberty for all and not just for the organized press, Allen Dickerson on McCutcheon v. FEC, Ilya Shapiro on SBA List v. Driehaus, and Trevor Burrus on protest buffer zones;
  • Eric Holder “the worst Attorney General on press freedom issues in a generation, possibly since Richard Nixon’s John Mitchell” [Trevor Timm]
  • “7 Things Cracked Got Wrong About Free Speech” [Greg Lukianoff of FIRE, who has a new short book out entitled “Freedom From Speech“]
  • As ACLU recognizes, Arizona law purportedly banning revenge porn would do more than that [Masnick, Popehat, Greenfield, Sullum/Reason]
  • Critical overview of “media reform” movement led by wildly misnamed pressure group Free Press [Barbara Joanna Lucas, Capital Research Center]
  • In lawsuits against Yelp arising from bad reviews, courts have not been impressed by theory that the service extorts reviewed businesses [Paul Alan Levy; a restaurateur upset at Yelp strikes back in a different way]
  • Proposal to make scientific misconduct a crime “would seem to raise serious First Amendment problems” [Howard Wasserman]

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As always, reducing liberty is the answer

A Connecticut state commission charged with coming up with policy recommendations after the Sandy Hook elementary school massacre is considering a draft proposal that would slap new regulations on homeschooling families. “Parents who home-school children with significant emotional, social or behavioral problems would have to file progress reports prepared by special education program teams” under the scheme. [Connecticut Post]

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Law schools roundup

  • “Is Legal Scholarship Politically Biased?” [Chilton-Posner study] [Caron, Josh Blackman, Will Baude]
  • “Suffolk offers to buy out its whole law faculty” [Bainbridge]
  • Another injury lawyer, Thomas Kline of Kline & Specter, gets a law school named after himself after $50 million donation to Drexel [Philadelphia Inquirer via Caron]
  • Bonus quote from Kline partner and senatorial scion Shanin Specter: “I don’t think there are any lawyers in Philadelphia bringing claims that they know are not meritorious.” (So that’s a relief.) Meanwhile, grateful Drexel law dean praises Kline’s law firm as the one you should consider calling if, “unfortunately, someone in your family faced catastrophic injuries.” [same; compare encomium of Michigan State dean to Geoffrey Fieger upon Fieger’s $4 million donation to MSU in 2002]
  • So many fellow academics upset with U. of Chicago’s Brian Leiter and his frequent talk of legal action hasn’t helped [Chronicle of Higher Ed, Jonathan Adler, Leigh Johnson, Above the Law]
  • A law school study group with its own nondisclosure agreement [Patrice, AtL, Lowering the Bar]
  • Assuming we don’t abolish them: “Three Ideas to Improve Law Reviews (as Institutions)” [Dave Hoffman, ConcurOp]
  • Last year I spoke on varied subjects at law schools including Michigan, Buffalo, Chicago, Vermont, Baltimore, Nebraska, and Duquesne. Why not invite me to speak to your roundtable, class or Federalist Society Chapter? Contact editor – at – overlawyered – dot – com.

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Forest Service: no photographing wilderness lands without permission

News reporters, nature lovers, scientists and Western lawmakers are in an uproar over the Forest Service’s plans to finalize a ban on taking photographs in federally designated wilderness areas without permission of the service. A spokeswoman “said the agency was implementing the Wilderness Act of 1964, which aims to protect wilderness areas from being exploited for commercial gain.. … ‘We have to follow the statutory requirements.'” [Oregonian, Coyote and followup, ABA Journal]

Update: Service backs down, at least to the extent of acknowledging that it needs to clarify the scope of the ban.

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