Constitutional Daily

Founding Principles

The Tenure Paradox - Robot pimp

Slap on the Wrist for "Non-Consensual Sex" - Lampshade, Esq.

Intelligence: The Gathering - Graphic and Gratuitous

Grads are the New Illegals - Robot Pimp

Meet Entitlement Eric - Robot Pimp

Wherein I Solve World Peace - Lampshade, Esq.

A Necessary Delusion - Shadow Hand

Do you even need to shave overhead? - Lawyerlite

LSAT Jenga - Publius Picasso

Time, Place, and Manner

...Should have some links here or something.


Did Kickstarter Fund a Book Filled With Rape Tips?

E-mail Print PDF

Short Answer: No.

Now, none of the blogs or mainstream news outlets have bothered to offer a thoughtful analysis of the subject when reaching the opposite conclusion, but what the heck, let's be the first.

Ken "TofuTofu" Hoinsky wrote a pickup artist guide and then went to KickStarter to raise funds to get it published. He was seeking $2000 and managed to bring in $16,000 -- a lot more than your average first time published author earns -- largely by promoting the book through Reddit's pickup artist sub. Shortly before the Kickstarter window closed, a small time comedian, Casey Malone, found the project, read some of the samples of the book, decried it as a book dedicated to teaching the average frustrated chumps of the world that the way to finally score with women is to rape them:

This guy is no longer just being weird and creepy on the internet. Now he’s writing a book about how to sexually assault women, and he is using something I believe in (Kickstarter) to ask YOU for money to do it. I am offended as someone who believes in the platform, and more importantly I am offended as someone who believes women shouldn’t be treated this way, and that people who say otherwise CERTAINLY should not profit off saying they should.

This isn’t harmless. People come to these boards because they are scared of being humiliated, and they are saying to the world, “Tell me what to do, because I don’t know what to do.” And this guy has chosen to tell them, “You should be a rapist.”

One thing leads to another, and the campaign to have KickStarter revoke TofuTofu's funding goes viral. Here's a sampling from around the internet.

Slate: "sounds like a guide to sexual harassment."

Daily Beast: "That’s right, boys, consent isn’t going to help you get your hands up a woman’s skirt. “Force” is a much better bet. History has shown us that “aggressively escalated” physical contact is fast and foolproof, according to Hoinsky. It also constitutes sexual assault. But let’s not ruin the fun for all the nitwits out there who will have to learn this the hard way, when taking Hoinsky’s advice lands them in jail."

Forbes: "advice that’s less about charming and more about pushing physical boundaries with blithe disregard for physical consent."

Jezebel: "Hoinsky endorses straight-up sexual harassment and assault."

Feministing: "his advice is a play-by-play description of sexual assault."

The Frisky: "a new book that conflates advice on how to date rape women with tips on seduction." and "filled with rape tips."

You get the idea. A few bigger mainstream outlets, such as Yahoo and MSN picked up the story, but in the style of modern news, they just reported that "So and so is claiming..." Journalism is hard after all, news aggregation is easy. Why bother reading the material that's the subject of a controversy when you can just report that there's a controversy?

But what if someone actually did some work before hitting the Publish button? Let's find out. We're going to look at the laws of three states to see if the actions TofuTofu advises guys to take would qualify as either rape or sexual assault. We'll look at New York and California since they're big ol' highly populated states and NYC and LA are the pickup artist capitals, and also Connecticut, TofuTofu's home state. But first, let's see the advice that got the whole thing started:

Exhibit A:

To quote Rob Judge, “Personal space is for pussies.” I already told you that the most successful seducers are those who can’t keep their hands off of women. Well you’re not gonna be able to do that if you aren’t in close!

All the greatest seducers in history could not keep their hands off of women. They aggressively escalated physically with every woman they were flirting with. They began touching them immediately, kept great body language and eye contact, and were shameless in their physicality. Even when a girl rejects your advances, she KNOWS that you desire her. That’s hot. It arouses her physically and psychologically.

Exhibit B:

Pull out your cock and put her hand on it. Remember, she is letting you do this because you have established yourself as a LEADER. Don’t ask for permission, GRAB HER HAND, and put it right on your dick.”

Exhibit C:

Decide that you’re going to sit in a position where you can rub her leg and back. Physically pick her up and sit her on your lap. Don’t ask for permission. Be dominant. Force her to rebuff your advances.

And endless number of comments on the various websites that have written then have been along the lines of "If I meet a guy at a bar and he picks me up and sits me on his lap, I calling a bouncer" or "There's no way I'm sleeping with you if we're walking down the street and you put my hand on your dick." That's what happens when you take material out of context. Normally we roll our eyes at the "out of context" defense, because it typically isn't accompanied by the contextual explanation, but we're going to explain. These quotations come from a section of the book titled "Physical Escalation and Sex," which follows things like "flirting" and "getting her number." The advice is largely about what to do with a woman once you've got her into bed, or at least back to your place and on the couch. It's not telling you what to do with a complete stranger you just started talking to at a bar. You can decide for yourself if that is a distinction with or without a difference.

Moving on to the state laws, and starting with good ol' New York:

NY Rape 3rd:

A person is guilty of rape in the third degree when:

1. He or she engages in sexual intercourse with another person who is incapable of consent by reason of some factor other than being less than

seventeen years old;

2. Being twenty-one years old or more, he or she engages in sexual intercourse with another person less than seventeen years old; or

3. He or she engages in sexual intercourse with another person without such person`s consent where such lack of consent is by reason of some

factor other than incapacity to consent.

NY Criminal Sexual Assault 3rd:

A person is guilty of criminal sexual act in the third degree when:

1. He or she engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other

than being less than seventeen years old;

2. Being twenty-one years old or more, he or she engages in oral sexual conduct or anal sexual conduct with a person less than seventeen

years old; or

3. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person's consent where such lack of

consent is by reason of some factor other than incapacity to consent.

NY Forcible Touching:

A person is guilty of forcible touching when such person intentionally, and for no legitimate purpose, forcibly touches the sexual or other intimate parts of another person for the purpose of degrading or abusing such person; or for the purpose of gratifying the actor's sexual desire.

The rape and sexual assault rules apply to sexual intercourse and oral and anal sex, and the quoted material from TofuTofu doesn't go that far, so both of those are ruled out. As for forcible touching, it's not for the purpose of degrading or abusing the other person. You may argue that is the effect of the actions, but it's not the intent. But is it for the intent of the actor's sexual gratification? That could be argued either way, and it's not entirely clear what "gratification" means. It's also unclear what counts as a "legitimate purpose." If you move your partner in order to adjust or change positions, that would be forcible and for the purpose of gratifying the actor's sexual desire, but is "the angle wasn't quite working for me" a legitimate purpose? Who knows. The advice in TofuTofu's book might run afoul of this law, but only because it's so poorly written. We suspect though that you're unlikely to see a forcible touching prosecution brought for fooling around in bed with an otherwise consenting adult. Also, forcible touching is a Class A misdemeanor, considerably less serious than sexual assault and rape.

Next up, California, and we're going to trim some of the parts that aren't relevant here. California writes their statutes in a different style that makes them unwieldly to reproduce in full

CA Rape:

261. (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under any of the following circumstances:

(2) Where it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.

CA Sexual Battery:

243.4. (a) Any person who touches an intimate part of another person while that person is unlawfully restrained by the accused or an accomplice, and if the touching is against the will of the person touched and is for the purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual battery.

(e) (1) Any person who touches an intimate part of another person, if the touching is against the will of the person touched, and is for the specific purpose of sexual arousal, sexual gratification, or sexual abuse, is guilty of misdemeanor sexual battery [The first sexual battery subdivision comes with a penalty of at most one year, so they're both misdemeanors. No idea why they're described differently.]

Again, rape requires sexual intercourse, so that's ruled out. As for sexual battery, it's her intimate parts that need to be touched, not your own. But, let's presume that we do get to that level of touching. The statute doesn't specify just what it means for an act to be against someone's will, but as it's written it seems like if you make a move and are rebuffed, you've just committed a crime. Even if you immediately back off and respect the other person's boundaries, the law seems written broadly enough to make one false step a criminal offense. Sorry, TofuTofu, and sorry to every guy who has ever made a move towards second base and had his hand pushed away -- you're all criminals now.

Lastly here comes Connecticut, which doesn't have a crime specifically designated as rape, but instead just uses various levels of sexual assault, so we're going to pick the highest and lowest degrees:

CT Sexual Assault 1st:

Conn. Gen. Stat. § 53a-70. Sexual assault in the first degree

(a) A person is guilty of sexual assault in the first degree when such person

(1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably c auses such person to fear physical injury to such person or a third person

CT Sexual Assault 4th:

Conn. Gen. Stat. § 53a-73a. Sexual assault in the fourth degree

(a) A person is guilty of sexual assault in the fourth degree when:

(2) such person subjects another person to sexual contact without such other person's consent

Sexual Assault 1 won't apply, again we have the intercourse problem, and in addition there's the requirement of a use of force. Sexual Assault 4? On the face of the law it looks like a move that's rebuffed is enough for a criminal prosecution. However, the law as actually applied in Connecticut goes in the other direction, requiring that the victim communicate her unwillingness (where there is force, the lack of consent is presumed).


So what's the verdict? ...That the people calling this a sexual assault guide are both reading and thinking impaired. Only a tiny portion of the text is even at issue, so it's hardly full of advice on how to rape someone as many critics have claimed. It also requires an insanely wide definition of sexual assault for the advice to be problematic.

"Don't ask for permission" might sound creepy and a little bit rapey, but intelligent people are capable of moving past their gut reactions. The alternative is "Ask for permission" and hey that sounds okay, maybe even ideal, but that's not really the end of it. This is about physical escalation, rounding the bases if you will, so the actual alternative is "Ask for permission before each and every move." That's getting a bit absurd. You got permission to touch her butt with your right hand, okay to presume the left hand is also good? No way! That's "don't ask for permission" territory there! And you'd better get your permission in triplicate before you squeeze. And just to be perfectly clear, the rule TofuTofu's critics are advocating for is "Ask for and receive permission before each and every move," with non-verbal cues off limits. A single miscommunication results in a criminal prosecution.

"Force her to rebuff your advances" is the other phrase really getting people riled up, because it has the word "force" in it. You used force? That's rape! Well, no. If it was "Force her to have sex with you" it would be rape. This is just saying not to sit in escalation limbo waiting for an invitation to move to the next base to arrive on a silver platter. Want to know if you can take third? Rather than waiting for her to tell you (and most people are very hesitant about vocalizing their desires), just go for it and if she's not in to it she'll let you know.

And what do you do if she says stop or pushes your hand away? TofuTofu has some specific advice on that: "stop escalating immediately."

Yeah, that sounds exactly like "a play-by-play description of sexual assault."

Chicago Law Prof Boldly Makes the Case for One Year Law School

E-mail Print PDF

In an op/ed on Bloomberg, Chicago Law professor Martha Nussbaum has made the bold assertion that law school needs to only be one year long:

When William Rainey Harper, president of the University of Chicago, proposed to add a law school to the new university in 1902, he entrusted the project to Ernst Freund, a political-science professor, former practicing lawyer and well-known expert on police power and the free-speech rights of dissidents.

Freund argued that law students shouldn’t simply learn practical strategies (as in the old days when law was taught by apprenticeship) and the technical rules known as “black letter law.” Rather, they should have an education that also included economics, sociology, political theory and philosophy.

When Harper asked whether this curriculum wasn’t better suited to a “research department of jurisprudence” rather than to the worldly practitioner, Freund said absolutely not. Practitioners will go out into a society where all is not well, and they had better be equipped to think broadly, critically and independently about it. Otherwise, they would simply be tools in the hands of powerful interests, Freund said.

His vision of legal education gradually won out. Once Chicago was an outlier; now it is just one example of the dominant idea of legal education. Today, in addition to basic law subjects and a variety of practice-oriented courses, law students learn to see society through the lens of the social sciences and the humanities, primarily in elective courses taken during the second and third years.

This appears on the surface to be making the case for a three year program, with second and third years filled up with a grab bag of humanities and social sciences classes. However, this argument leads to the logical conclusion that all that is needed is the first year. You see, most law students have already spent four years studying the humanities. They already possess that lens through which to view society and the law. Thus, we should conclude that Nussbaum is arguing that the 2L and 3L years be waived for students possessing an undergraduate degree in the humanities.

We must reach this conclusion because the alternative is that Nussbaum thinks this necessary humanities education can come only from law professors, most of whom lack the education and publication history necessary to be a humanities professor. This is of course absurd, and applying a little reductio, we conclude that Nussbaum thinks the undergraduate humanities education suffices.


Of course that's wishful thinking. Nussbaum is perfectly fine with wasting law students' time and money no matter how absurdly it is done:

A perusal of examples will begin to show what such courses can offer the future practitioner. A student at Chicago (similar to other law schools) might take a class with a leading criminologist, studying philosophical theories of punishment and the history of prisons -- and then visit the maximum-security prison at Joliet, Illinois, the only surviving North American exemplar of Jeremy Bentham’s famous “panopticon” (where everyone is watched all the time). A future lawyer would gain an invaluable set of tools, philosophical and historical, for thinking independently and critically about a broken system of imprisonment.

It is of course important for lawyers of all stripes to understand the basic theories of criminal punishment -- deterrence, retribution, rehabilitation, isolating dangerous individuals. That's maybe a week out of 1L criminal law. But the field trip to Joilet to see a piece of prison design that is used no where in the nation, and possibly no where in the world? That's truly absurd. What's next from Nussbaum? Is she going to tell us how for just $50,000 a year, students at Chicago have the opportunity to engage in critically mind expanding conferences discussing the intersection of progressive gender politics with legal systems in force in exactly zero nations?

Eric Posner Gives Zero Fucks

E-mail Print PDF

The government says quite reasonably that if we had a public debate about these techniques then the techniques would be rendered either ineffective or less effective. That's what makes it so hard. So in the end the public, in my view really, has choice but to give a lot of trust to the secret court and the members of congress who are paying attention and the executive branch. [NPR]

That’s Chicago Law professor Eric Posner discussing the recently leaked intelligence gathering techniques used by the NSA on NPR’s All Things Considered. Too bad Posner didn’t consider all the things, more like he just considered one of the things. If the government says they need it, then they need it, and if they need to not tell us what it is, then that’s okay too.

Posner makes the same argument in a bit more depth in a debate hosted by the New York Times. Just in case it seemed like a slip up or an out of context quotation, nope. In his words, "I don't see a problem here." Your average AP US History student can at least identify the problem.

There is of course a balance to be struck between the government’s need to keep certain operations secret in order to make them effective and the public’s right to a democratic government. Details of troop deployments, the precise algorithms used to flag airline passengers, what information certain captured terrorists have disclosed – all those things make sense to keep secret. But the fact that troops are being deployed at all? That airline passengers are being flagged for extra scrutiny? That we’re capturing and interrogating terrorists? Those are all the types of things necessary for the citizenry to know, and letting them know does not compromise the government’s mission one iota.

The government can keep secret the exact leads its gotten from gathering telephony metadata, but the fact that it’s collecting the phone records of every single person is the type of thing that needs to be disclosed to the public and subject to open debate.

And just to show how wrong Posner is on this, disclosing surveillance techniques typically increases their efficacy, not decreases it. Announcing DUI checkpoints decreases the number of drunk people on the road. It allows some people to get drunk and just take a detour around the checkpoint, but on the whole the mere knowledge that checkpoints are out there causes plenty of people to either stay home or just not drink as much. Same goes for cameras to catch people speeding or running red lights, bag checks at baseball games to prevent people from bringing in their own booze, and those “Protect by Brinks Home Security” window stickers to discourage burglaries.

Someone who is really determined will still find away around these techniques. They’ll take detours, put their flask in cargo pants pockets, or just break into another house. But people who are less committed? They’ll slow their car down, shell out the extra money for stadium beer, and stick to slinging crystal instead of moving up to B&E.

So what about announcing these techniques to terrorists? Surely those people are more committed to their job than the average National’s fan who just doesn’t want to pay for the most expensive stadium beer in the country. If we announce our techniques, won’t they just find a way around them?

Not if the technique is monitoring every phone call and e-mail conversation. Getting around a DUI checkpoint is easy. Communicating with your international terror network without using an electronic medium doesn’t have such an easy workaround. Bin Laden’s courier could only run so far. Letting terrorists know about the NSA’s data collection is more likely to prevent acts of terrorism than keeping it secret.

Except for one little hitch. The NSA’s data collection will be less effective not because would-be terrorists will find a work around, but because the American citizenry might fight back against it.

“If we told you, terrorists could easily avoid our surveillance” is a fair argument.

“If we told you, you wouldn’t let us do it any more” is not. And we don’t just need to trust the government on this. The Constitution is based on the premise that our government can’t be trusted. That’s why we have a democracy, why we have frequent elections, why the power of the federal government is limited, and why we have a Bill of Rights just to double down on our view that even a limited federal government still can’t be trusted.

Well, at least Posner doesn’t teach criminal procedure, or constitutional law, or privacy law, or the law of being a decent human being. He just teaches contracts.

…Which would be okay, except that earlier in his NPR segment, when talking about data collection by private companies such as Google and Facebook, he admits to not reading the terms and conditions. Not for the same lazy reason the rest of us have for skipping over them, but because he’s incapable of reading and understanding them:

You can’t read those things because they’re too long and complicated, and I teach contract law.

Jesus NSA Christ! You teach contract law at a top five law school and you are incapable of understanding the most ubiquitous contract in the world. The hell qualifies you to teach contract law then? That you understand promissory estoppels? Big fucking deal. Many of your students are going to go on to not only read but to write contracts that are far longer, more complicated, and involve not only complex legal issues but also issues unique to the client’s industry, so what makes you qualified to train them?

Worse than the fact that Posner can’t read an extremely common contract, and that he thinks a benevolent (fingers crossed) dictatorship is a perfectly fine form of government, is that he seems to have just given up. Law is complex? Fuck it, won’t read it. Government wants to encroach on my rights? Fuck it, let them.

Students Posner teaches will likely go on to be leaders in firms, professors, judges, and probably some politicians and high ranking government officers. Perhaps, just perhaps, Posner should get out of the way and let these people get their education from someone who still gives a damn.


PS: If you happen to be Eric Posner, here's some videos for you to watch while you're busy counting down the minutes until retirement:

California Man Cross over Crosswalk

E-mail Print PDF

We here at Con Daily love a good story about a citizen activist stepping in to correct a problem of government bureaucratic incompetence, especially when that do-gooder is punished for his good-doing. Not that we like government incompetence or punishing the good guys -- it just makes for a good story.

Meet Anthony Cardenas, a Vallejo, CA man who was fed up with a dangerous intersection at Sonoma Blvd and Illinois St:

I tried helping my community out. I got tired of seeing people get run over here all the time.

People run over! All. The. Time!

So Cardenas got out a bucket of paint and put his own crosswalk on the intersection. Then the city scraped the crosswalk off, and Cardenas was arrested and charged with vandalism. [CBS]

Why did the city respond that way? Perhaps taking a look at the intersection might help:


There already is a crosswalk there! Sure you have to cross Illinois St. to get to it, and then cross back over if that's not the side you want to be on, but there hardly seems any pressing need to add another crosswalk there.

And as for those people who get run over all the time? The city had no record of a pedestrian being struck at that intersection.

Would it make sense to add another crosswalk? Maybe, but traffic planning is a pretty complicated subject. There may well be a good reason why the crosswalk is only on one side -- there doesn't appear to be any difference in the street layout on either side, but we're not experts on this. We do know however that crosswalks don't protect people. The paint doesn't make it suddenly safe to cross the street there. The crosswalk is an indication to the pedestrian of where it is safe to cross, so painting a new crosswalk potentially adds danger, telling people to cross at a location where it isn't safe to do so.

As much as we love a story of the little guy fighting the big stupid government we just don't have that story.

Page 12 of 341

Philadelphia Lawyer, Unfiltered

The finest blend of analysis, advice, and fury on the internet. Sour mash, oak barrel aged, published at cask strength.


Most Recent Article:

In Defense of Risk (Happy Fourth of July)

All Articles from The Philadelphia Lawyer

Author Profile

The Robot Pimp

An in depth look at the emerging intersection of law, behavioral economics, and robots.

Most Recent Article:

The Tenure Paradox

All Articles from The Robot Pimp

Author Profile

Practice Makes Putrid

Legal practice would be all rainbows and buttercups, if it weren't for the clients, and opposing counsel, and co-counsel, and judges, and the law.

Most Recent Article:

Eat Mor Fiv Freedums

All Articles from The Namby Pamby

Author Profile

Gin and Glannon's

As Shadow Hand suffers through law school, the rest of us get a little Schadenfreude.

Most Recent Article:

I Just Work Here

All Articles From Shadow Hand

Author Profile

Irresistible Impulse

Dr. Rob Dobrenski's daring expedition into the psychology of lawyers and the law. (Not a substitute for a life well lived.)

Most Recent Article:

You're Not a Failure, You're a Narcissist

All Articles from Dr. Rob

Author Profile

Graphic and Gratuitous

Sometimes cartoons are the highest form of communication. Those times are known as "most of the time."

Most Recent Cartoons:

Intelligence: The Gathering

All Cartoons

There And Never Back Again

Defunct Big Law attorney BL1Y shares his misadventures as a writer who accidentally went to law school.


Most Recent Article:


All Articles from BL1Y

Author Profile

Lampshade, Esquire

We're dealing with some technical difficulties here. Hold up a minute.

All Articles From Lampshade, Esq.

Staff Infections

News, humor, and other non-billables from our underpaid, uncredited, unsexy staff.


News Articles

Smaller News Bits

Large Numbers of Law

Mixed Bag of Lawesome


Scofflaw Multistate Bar Review