- “She Asked for Help for Postpartum Depression. The Nurse Called the Cops.” [Darby Saxbe, Slate] Under one Montana prosecutor’s announced policy, pregnant mother “proven to be using alcohol … might be monitored by law enforcement or sent to jail.” [Andrew Turck, Big Horn County News]
- “The Florida Supreme Court has agreed to decide whether a judge may be Facebook friends with lawyers who appear before the judge.” [Raymond McKoski, Orlando Sentinel]
- Nation’s highest military court unanimously tosses sexual assault conviction of Coast Guard enlisted man, finding juror selection stacked by higher-ups; of seven jurors, four were trained sexual assault victim advocates [Rowan Scarborough, Washington Times; decision]
- Report on legal landscape of cottage food industry [Jennifer McDonald, Institute for Justice] Deregulation efforts of Trump administration have yet to reach food sector [Baylen Linnekin]
- So large and so diverse is the 400-member lower house of the New Hampshire legislature that it appears to contain a sovereign citizen believer [Jack Smith IV, Mic]
- “Stash House Stings: When the Government Can Invent Crimes and Criminals” [Trevor Burrus and Reilly Stephens]
Posts Tagged ‘sexual assault’
Claire Berlinski on #MeToo
Veteran journalist Claire Berlinski has a contrarian warning regarding the #MeToo momentum on sexual harassment and assault: “Revolutions against real injustice have a tendency, however, to descend into paroxysms of vengeance that descend upon guilty and innocent alike. We’re getting too close.” [The American Interest] Related, Emily Yoffe on the workplace and the Title IX example [Politico]
Watch today: Emily Yoffe and Ruth Marcus on Title IX
At 4 pm Eastern today, watch online at Cato live as acclaimed writer Emily Yoffe discusses her recent blockbuster Atlantic series on the problems with campus sex-misconduct tribunals (parts one, two, three, earlier coverage here and here). Washington Post columnist Ruth Marcus will offer commentary. Although I had been scheduled to moderate, an emergency has come up and I am unable to be there; instead Cato’s John Samples will be taking my place.
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.”
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]
Weinstein’s investigations — and settlements
Harvey Weinstein, assisted by the law firm of celebrated attorney David Boies, “hired private investigators, including ex-Mossad agents, to track actresses and journalists.” At least one agent used false names and identities to insinuate herself into accusers’ and journalists’ circles. “Techniques like the ones used by the agencies on Weinstein’s behalf are almost always kept secret, and, because such relationships are often run through law firms, the investigations are theoretically protected by attorney-client privilege, which could prevent them from being disclosed in court.” [Ronan Farrow, The New Yorker]
Would it help to abolish confidentiality in settlements, as some urge? “California State Sen. Connie Leyva… said she plans to introduce a bill next year to prohibit nondisclosure agreements in financial settlements that arise from sexual harassment, assault and discrimination cases. The rule would apply to public and private employers, she said.” [Danielle Paquette, Washington Post “WonkBlog”] “Getting rid of NDAs reduces accusers’ bargaining power so they end up with lower money settlements or perhaps no settlements,” notes HLS Prof. Jeannie Suk Gersen on Twitter and at more length in The New Yorker. Might that impair their chance of getting a private lawyer interested in their case in the first place? “[We would be choosing] to impair the ability of private parties to resolve a dispute in favor of the public interest.” [Scott Greenfield]
Free speech roundup
- Florida “health coach” charges for nutrition advice, isn’t a licensed dietitian. Does she have a First Amendment defense? [Scott Shackford]
- Results of Russian social-media manipulation episode could include foot in door for regulation of Internet speech [John Samples, Cato]
- Some in Australia having trouble distinguishing “impersonation” of government from anti-government satire [Timothy Geigner, TechDirt]
- Before deep-pocket publications can report on sexual misconduct by persons in high places, gauntlet of legal review needs to be run with special attention to on-the-record sources [Mike Masnick, TechDirt]
- Ohio lawmaker introduces anti-SLAPP bill that pioneers novel protections for anonymous speakers [John Samples, Cato]
- “Nadine Strossen’s Next Book — ‘Hate: Why We Should Resist it With Free Speech, Not Censorship'” [Ronald K.L. Collins] “Sanford Ungar Heads New Free Speech Project at Georgetown University” [same]
DeVos, Title IX, and sex on campus, cont’d
Part II of Emily Yoffe’s investigation for The Atlantic is if anything more explosive than the first: the campus assault survivor movement promotes concepts of the effect of trauma on memory (contradictory, fragmentary, belatedly-retrieved and even suggestion-induced memories ought not be discounted as forensically probative) that replicate key elements of the repressed childhood memory/dissociation scandal of a generation past (“believe the victims”). And Part III and last: What role does race play?
Debra Saunders quotes me in her new column on Secretary of Education Betsy DeVos’s new decision to reconsider the Dear Colleague and Blueprint policies of the Obama years: [Las Vegas Review-Journal/syndicated]:
Their decision [four Harvard law professors’] to release this memo, said Walter Olson, a senior fellow at the Libertarian-leaning Cato Institute, sends the message that if you want to defend the policy, “you’re not going to have to argue with Libertarians and conservatives” only, you are going to have to argue with left-leaning legal scholars who also care about fairness and due process….
“So much momentum has built up for federally driven changes in campus discipline and rules, so much momentum for unreasonableness,” Olson said, but the unfairness was so striking that it brought together feminists, Libertarians and Trump supporters.
Still, he added, “It took a great deal of courage for [Education Secretary Betsy DeVos] to do this. It would have been easy for her to find some way to dodge it, or postpone it.”
More accounts of discipline at particular campuses: Jesse Singal, New York magazine (USC, Matt Boermeester case, putative victim denies abuse); Nicholas Wolfinger, Quillette (University of Utah).
Yes, feds need to rethink campus sexual misconduct policies
A series of tweets I did about Thursday’s major announcement on Title IX policy from Secretary of Education Betsy DeVos:
With @BetsyDeVosED today unveiling plans to revamp Obama rules on sexual assault and college discipline, here's a long tweetstorm… /1
— Walter Olson (@walterolson) September 8, 2017
…which I'll base on highlights from @EmilyYoffe's terrific article in @TheAtlantic, just out, on this subject https://t.co/kfIgIFFlzx /2
— Walter Olson (@walterolson) September 8, 2017
I went on to explain that it all starts with the Department of Education’s OCR (Office for Civil Rights) 2011 Dear Colleague letter, and the further guidance that followed, which I wrote up here.
Most famously it ordered colleges to adopt "preponderance of evidence" not "clear and convincing" in guilt-finding. But much more too… /5
— Walter Olson (@walterolson) September 8, 2017
Obama admin came to push “single investigator” model, whereby school names one person "to act as detective, prosecutor, judge, and jury." /7
— Walter Olson (@walterolson) September 8, 2017
Setting a tone, "many subsequent federal documents described complainants as victims or survivors, and the accused as perpetrators." /9
— Walter Olson (@walterolson) September 8, 2017
OCR put 100s of colleges on investigation list, and its field agents were seen as bent on scoring penalties, not neutral fact-finders /10
— Walter Olson (@walterolson) September 8, 2017
"Increasingly the momentum of their own bureaucracies" as well as feds, activists, fear of criticism push schools into extreme positions /12
— Walter Olson (@walterolson) September 8, 2017
Tipsy? Lacking in voiced consent? Conduct banned in some college codes “plausibly covers almost all sex students are having today.” /13
— Walter Olson (@walterolson) September 8, 2017
That’s a quote by Yoffe from a California Law Review article by Jacob Gersen and Jeannie Suk Gersen previously noted in this space here and here.
Interim measures may include steps to ensure that accuser never has to encounter accused, thus banishing from ordinary dorm life, clubs /15
— Walter Olson (@walterolson) September 8, 2017
Perhaps the most amazing single paragraph in Yoffe's piece, worth reading and mulling before you join any movement to #StopBetsy /17 pic.twitter.com/UeSNkFahcK
— Walter Olson (@walterolson) September 8, 2017
No wonder groups of lawprofs at Harvard and Penn have written open letters to say OCR "has undermined due process and justice." /18
— Walter Olson (@walterolson) September 8, 2017
The courageous Harvard Law professors who called for a rethink of the Obama-era policy — Janet Halley, Elizabeth Bartholet, Jeannie Suk Gersen and Nancy Gertner — were profiled in a recent issue of The Crimson and in earlier coverage in this space here and here.
Paradoxically, among activists and increasingly admins, view is "women who deny they were assaulted should not necessarily be believed." /20
— Walter Olson (@walterolson) September 8, 2017
At Yale, "more than 30 percent of all undergrad-assault allegations" were third-party reports where putative victim refused to cooperate /22
— Walter Olson (@walterolson) September 8, 2017
Though colleges have begun losing lawsuits to male students, their own Title IX bureaucracies press them to dig in to defend new methods /24
— Walter Olson (@walterolson) September 8, 2017
"They should also model for their students how an open society functions, & how nec'y it is to protect the civil liberties of everyone" /26
— Walter Olson (@walterolson) September 8, 2017
Whole @EmilyYoffe piece here, which (in case it wasn't obvious!) I recommend highly: https://t.co/kfIgIFFlzx /27, end #INeedTitleIX #INeedIX
— Walter Olson (@walterolson) September 8, 2017
More coverage of DeVos’s speech and initiative, in which she pledged to use appropriate notice-and-comment methods rather than Dear Colleague guidance to introduce changes (“The era of ‘rule by letter’ is over”): Christina Hoff Sommers/Chronicle of Higher Education, Benjamin Wermund/Politico, Jeannie Suk Gersen/New Yorker, KC Johnson and Stuart Taylor, Jr./WSJ and cases going against universities, Johnson/City Journal, Bret Stephens/NYT (“no campus administrator was going to risk his federal funds for the sake of holding dear the innocence of students accused of rape”), Foundation for Individual Rights in Education, Hans Bader/CEI, Scott Greenfield and more (no basis in law to begin with), Robby Soave/Reason and more.
February 8 roundup
- Freedom of association is at risk from California’s effort to crack open donor names of advocacy nonprofits [Ilya Shapiro on Cato Ninth Circuit amicus]
- “Center for Class Action Fairness wins big in Southwest Airlines coupons case, triples relief for class members” [CEI, earlier here, here]
- Campus kangaroo courts: KC Johnson and Stuart Taylor Jr. have spent a week guestblogging at Volokh on their new book (first, second, third, fourth, fifth, earlier links; plus Christina Hoff Sommers and WSJ video interviews with Stuart Taylor, Jr.]
- Despite his I’m-no-libertarian talk, two 2015 cases show Judge Neil Gorsuch alert to rights of Drug War defendants [Jacob Sullum]
- Drug pricing, estate/inheritance double tax whammy, shaken baby case, mini-OIRA in my new Maryland policy roundup [Free State Notes]
- And the legal fees flowed like water: dispute with Georgia over water rights has clocked $72 million in legal bills for Florida [Orlando Sentinel]