I awoke this morning to a tweet from National Review columnist Heather Wilhelm that said, “Modern feminism: 1. Go on awful date with awkward/gross/aggressive famous person, but lack the agency to get up and leave. 2. Famous person texts, clearly clueless, gets scolded, apologizes. 3. Stay anonymous, but shame him in front of the whole world.”

This tweet reminded me of the “strong person,” theory of the First Amendment, where a properly functioning free speech doctrine generally requires that listeners deal with emotional upset, have the agency to turn away from or ignore speech they would rather not hear, and use counter-speech to undermine unreasonable positions.   So much of how we discuss sexual harassment and sexual assault touches upon notions of agency and harmful speech in ways that also implicate our thinking on First Amendment doctrine.  I planned on blogging about some of the similarities between notions of agency in the First Amendment and in the sexual assault context.  However, then I read the link attached to Wilhelm’s tweet.

The story – an exclusive on a website called “babe” – involved worse conduct than I expected based on the tweet.  Aziz Ansari was oblivious to a woman’s desires not to sleep with him, and kept pushing her to do so in fairly objectifying ways.  That said, her description of the story was much worse than the actual events.  The woman, who remained anonymous to protect her own identity, never actually had intercourse with Ansari, and appeared to consent to a range of activities that required her participation.  Nonetheless, she called the incident “sexual assault,’ despite the fact that she did not leave the apartment (until she decided to) or clearly say, “no.”  Sexual assault, to this woman, occurred because Ansari ignored her “clear non-verbal cues.”  He also kept attempting physical intimacy despite some less obvious verbal cues, like telling Ansari that she didn’t want to feel “forced,” because then should would hate him.

I think it is time, at this cultural moment, to define and analyze the proper legal definitions of terms like sexual assault and sexual harassment.

Continue reading “Aziz Ansari and the Legal Definitions of Sexual Assault and Harassment” →

President Trump has now sent “cease and desist” letters to former White House Chief Strategist Stephen Bannon, author Michael Wolff, and publisher Henry Holt & Co. over comments Bannon made in a forthcoming book, Fire and Fury: Inside the Trump White House.  According to the cease and desist letter, comments Bannon made to Wolff, excerpted in a New York magazine article, violated a non-disclosure agreement forbidding Trump’s staff from making disparaging remarks about the President, his family, and the Trump campaign.  Bannon made comments to Wolff that, among other things, labeled a meeting between Donald Trump, Jr. and the Russians, “treasonous,” and “unpatriotic,” and called Ivanka Trump, “dumb as a brick.”

President Trump and his attorney believe he is entitled to monetary damages and injunctive relief for Bannon’s disparaging and libelous comments.  Injunctive relief would block further release of Fire and Fury and prevent Bannon from making further disparaging comments.  The analysis of whether President Trump can stop publication of disparaging comments from Bannon involves two parts (1) does Trump have a meritorious claim, and, if so, (2) what are Trump’s remedies – i.e., can he block further release of the book.

Continue reading “The Fire and Fury over “Fire and Fury”:  President Trump’s Legal Claims.” →

This year brought some tremendous changes in the landscape of First Amendment doctrine and free speech values.  Below is a high/lowlight of this year’s free speech developments, updates on previous posts, and some projections for the future.

Continue reading “2017 Wrap-Up and Projections” →

The legal academy has long had an identity crisis, and there is decreasing faith among many Americans in the academy generally.  A more deliberate, more cooperative discussion about what makes a legal academic — and what separates an academic from an advocate, social commentator, activist, or politician — would go a long way to ameliorating some of the, often well-founded, credibility concerns.

The legal academy’s project sits at the intersection of the academic’s general search for truth, the practitioner and the judge’s desire for synthesis and illumination of legal doctrine, and the lawmaker’s goal of reform.  This uncomfortable intersection makes legal scholarship valuable, so long as legal academics distinguish themselves, both as legal experts and as academics.  A true distinction requires that legal academics both use the skills they uniquely possess and approach their scholarship and teaching with intellectual honestly.

Continue reading “What Makes a (Legal) Academic” →

The increased democratization of the Internet and exposure to a wide array of political opinions appears to be creating less sophisticated, less thoughtful, less rational, angrier political engagement.  There are many reasons for this unfortunate and counterintuitive phenomenon, despite the general wisdom of crowds.  Of course, there is the increasing selection bias in what people read, and there is confirmation bias in what information people credit.  I think a major, insufficiently discussed factor is that people are not reading in a way that allows them to truly absorb others’ perspectives.  Many political discussions fail to impart growth, or even understanding, on its participants because we are not truly appreciating what the other party is expressing.

This semester, I taught a companion class to my Torts class, called Torts Lab, where we focused on critical reading, critical thinking, and critical writing skills.  Many smart students enter law school and other graduate programs without these skills developed.  In teaching Torts Lab, I learned a fair bit about meta-cognition, how we think about how we learn.  I want to share some lessons I learned from teaching Torts Lab.  Below is what I have discovered about where students go wrong in their reading, and how teaching better critical reading and thinking skills can lead to a better understanding of each other and the world around us.

Continue reading “Teaching Critical Reading, Deductive Reasoning, and Systemic Thinking — To Cure Our Broken Political Culture” →

As a jurist, Judge Kozinski has always been one of my favorites.  Ever since law school, where I learned that many judges on the right and the left promote their own ideologies over fair-minded legal analysis, Judge Kozinski provided an inspiring counter-example.   His opinions on privacy rights and free speech particularly delighted me.  Of course, one might argue he decided cases using an ideological lens of libertarianism, but he grounded his analysis in constitutional theory, at a higher level of abstraction and removed from partisan crassness.

I knew Judge Kozinski worked his clerks very hard, and I always felt a bit sorry for his clerks (especially when considering my own, idyllic Sixth Circuit clerkship where we worked hard, but also had time to explore a new city).  However, I believed that the long hours his clerks were required to work were a testament to the seriousness and dedication Judge Kozinski brought to his task.  Again, I found this approach inspiring.

A few years ago, I began hearing rumors that Judge Kozinski took liberties with his female clerks that seemed, at the time we would discuss them, mostly just shockingly creepy and highly inappropriate.  I did not know if these rumors were true, but the buzz circulating was that he touched female clerks on the shoulders inappropriately and had a penchant for attractive clerks.  I did not know the extent to which Judge Kozinski was exerting his authority to bully clerks and force them into uncomfortable, horrifying sexual situations.  His behavior, even knowing the rumors and waiting for them to come out in the aftermath of #metoo, is extreme and surprising.

Continue reading “Judge Kozinski Should Be Censured.  I Am Not Sure If He Should Step Down.” →

I will now recount, as accurately as possible, a conversation I had with an excellent Uber driver, Rick, on Masterpiece Cakeshop. (Uber drivers are often extremely excited to discuss First Amendment law.) This conversation exemplifies some proper and improper ways of framing the case, which involves whether a Christian baker has a First Amendment right to refuse to make cakes for same-sex weddings.

Rick: So here’s what I don’t get about the case.  I understand the potential First Amendment right of the baker, but where does the state get the right to force labor out of people?

Continue reading “Conversation with Uber Driver as Socratic Dialog on Masterpiece Cakeshop” →

The Supreme Court heard oral argument today in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  This case will decide whether Colorado’s public accommodations statute violates the First Amendment when it requires a Christian baker to create a custom-made cake for a same-sex wedding.  For background and legal analysis on the case, I have written a blog series, the last post of which is here.

In deciding this case, the Court must choose between three legal frameworks.  (1) If Jack Phillips’ cakes are considered pure speech, the Court will likely strike down Colorado’s antidiscrimination provision as applied to Masterpiece Cakeshop.  (2) If the Court considers selling the cakes simply conduct, Colorado can apply its statute to require Phillips to sell cakes to same-sex couples.  (3) A middle position, and one I believe is correct, is the view that the cakes are expressive conduct.  In that case, Colorado can likely apply its statute to Masterpiece Cakeshop unless Colorado is deemed to selectively apply its public accommodations statute in ways that penalize certain viewpoints.

This oral argument post will detail the ways each Justice framed the case.  I have ordered the Justices from the Justice who seems most inclined to side with Colorado to the Justice who seems most inclined to side with Masterpiece Cakeshop.  The Justices spent most of the argument battling with the unfortunate consequences that would arise no matter what the ruling in this case.  Any ruling, as became apparent from oral argument, will be problematic, either for free speech liberties or for civil rights.

The four oral advocates in this case are: KRISTEN K. WAGGONER, for Petitioners Masterpiece Cakeshop and Jack Phillips; GEN. NOEL J. FRANCISCO, Solicitor General, Department of Justice, as amicus curiae, supporting Petitioners; FREDERICK R. YARGER, Solicitor General, Denver, Colorado; on behalf of the State of Colorado, Respondent; and DAVID D. COLE, of the American Civil Liberties Union.; on behalf of the private Respondents Charlie Craig and David Mullins, who wished to purchase a cake for their wedding from Masterpiece Cakeshop.

Continue reading “Oral Argument in Masterpiece Cakeshop, Justice by Justice” →

If you love Jeopardy!, and you love Torts, this is the game for you.  Host at least two teams, and use the following rules — as played with my Torts class on our last class of the semester (substitute your own fun facts about the team members for the “Name that Student” category).

• The host does not show the questions in advance.  The last team that answers a question correctly selects the next category and point value.
• When a team member selects a category, anyone from any of the teams can buzz in as soon as he or she wants by simply saying the word “buzz,” without conferring with the team.  At that point, the host stops reading the question.  Only the person who buzzed in can answer the question, with no help from team members.  If that team gets it wrong, the host will continue reading the question until another team buzzes in.  A team can choose not to attempt to answer a question.
• The first team to answer a question correctly gets the points for that question.
• A team gets the allotted amount of points if it answers a question correctly, but the allotted points are deducted if the team answers incorrectly.
• For Final Tortspardy!, each team confers and decides how much to wager, before seeing the question.  Each team can wager up to the total amount of points that team has.  The team can then confer when answering the question.
• Players do not have to answer in the form of a question.

Questions below. Categories are duty, breach, causation, miscellaneous, and name that student. 

Continue reading “THIS IS TORTSPARDY!” →

In Gill v. Whitford, the Supreme Court will decide whether and when partisan gerrymanders violate the First and Fourteenth Amendments.  Plaintiffs claim that Wisconsin’s electoral map, drawn to afford Republicans a significant partisan advantage in the legislature, deliberately dilutes the votes of certain voters and penalizes them for their viewpoints/political beliefs.  Gill‘s threshold question of whether the longstanding but corrosive practice of partisan gerrymandering is unconstitutional is a difficult one.  However, the question of how courts should determine whether an unconstitutional partisan gerrymander has occurred is even thornier.

Some scholars propose using a test called the “efficiency gap,” which measures how many votes are “wasted” by each party.  Wasted votes are defined as votes above the number needed to win in a winning district and all votes in a losing district.  The fewer the votes a party wastes, the more likely it has engaged in partisan gerrymandering.  Those who object to the use of the efficiency gap argue that it does not measure the fair translation of votes to representatives in single-member districts.

One reason the Justices have been reluctant to declare partisan gerrymandering unconstitutional is because of the Court’s wise skepticism about incorporating math and statistics into its jurisprudence.  Law is a methodology that relies mostly on analogy, logical reasoning, and critical interpretation of text.  Lawyers and judges are not trained as experts in math, or in any social science.  The assessment and application of complex, mathematically-based concepts is not within their institutional expertise.  However, law and math share many similarities, even if the law has normative elements and math aims to be purely descriptive.  Mathematical principles, like legal rules, are explanatory abstractions that provide guidance, uniformity, and consistency to whatever fits within its parameters.  Statistics, like law, tries to fairly account for a large number cases with a small amount of data, and ultimately is open to subjectivity and interpretation.  In addition to these similarities, courts already incorporate math and statistics in a wide-ranging number of contexts, from the evaluation of scientific evidence of causation in toxic torts cases to the examination of the false positive rate of drug-sniffing dogs.  Cataloging some of the instances where courts incorporate math helps illuminate how the Court should proceed in Gill v. Whitford.

Continue reading “When and How Should Courts Use Math?” →