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

http://www.constitutionaldaily.com/index.php?option=com_content&view=article&id=1573:legal-reasoning-redux-5&catid=38:there-and-never-back-again&Itemid=65

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Constitutional Daily

Harvard Law Prof Shows How Schools Are Circling The Orwell/Kafka Drain

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A recent article by Harvard law professor Janet Halley on the Harvard Law Review's forum (aka: blog) contains a whopper of a story:

I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that.

Now we do have take such stories with a grain of salt. Halley doesn't say that she's independently verified his story and students are prone to misinterpreting everything. There's also been plenty of stories involving rape that are devoid of credibility, like the UVA story run in Rolling Stone or Lena Dunham's attack by the "campus Republican." But, if Halley's assertions are correct, this creates a dangerous new precedent. On college campuses you might be punished (and losing your job, your home, and not being able to attend classes is a pretty serious punishment) just for reminding someone of a rapist. This is truly bizzarro territory.

But wait! It gets worse! Last year down the coast at Occidental College, sociology professor Danielle Dirks who helped found the school's Sexual Assault Coalition (that's an anti- group, not a pro- group, btw), created a profile for likely rapists when trying to convince a female student to accuse another of rape. According to Professor Dirks, "[John Doe] fits the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was from a good family."

If you can be kicked off campus for reminding a student of a particular rapist (who isn't you), then it doesn't seem like much of a stretch to kick someone off campus for reminding them of rapists generally. After all if we believe that 1 in 4 college women will be raped, it's basically a guarantee that someone on campus will have been raped by someone who meets the profile. And what are we going to do, ask women to come forward and declare that they're being triggered? That runs the risk of re-traumatizing a victim.

Just look at the reactions to the sleepwalker statue at Wellesley. Students made complaints saying the statue of paunchy, pale, sleep walking man in ill-fitting white briefs was "a source of apprehension, fear, and triggering thoughts regarding sexual assault for some members of our campus community. Another student said "I know people who have had triggering responses to the statue. The statue was put in a public place without students’ consent.” No one there (at least no one who talked to the major press outlets) claimed that they themselves were actually triggered, or that the statue reminded them of a real rapist in their past. No, they wanted it removed just because it could potentially cause triggering thoughts in some hypothetical students' minds. That student wouldn't even need to have ever been a victim because even non-victims can have upsetting thoughts about sexual assault.

 

Now just imagine what would happen if we got this whole brain trust together. We're going to kick you off campus is seeing you causes someone to have some bad thoughts about sexual assault, and all that's required to trigger isn't even that you be smart, athletic, and come from a good family. Nope, the criteria would basically be what we're going to call the Miss Swan rule, "He look like a man."

Now that might sound like a bunch of conspiracy theory, slippery slope nonsense. But, universities have been letting Title IX administrators take over campus judicial proceedings (just imagine if someone from the OCR got to sit as a judge in a trial), and worse, many are switching to the Single-Investigator model, under which a lone inquisitor plays detective, prosecutor, judge and jury, free to keep the evidence and their reasoning to themselves. This is the model being pushed for by the White House's Campus Sexual Assault Task Force. Schools can be found in violation of Title IX if they are found to have a dangerous or hostile environment for women which interferes with their education, thus denying them equal access.

Crazy as it sounds, the rules are all basically in place to let universities spiral down the Orwell/Kafka drain. All it really requires is an absurd recommendation from the Department of Education about how to interpret the law. At least we can take comfort in known they'll never do exactly that.

Comcast Admits Its Fee Increase Is Basically Just Fraud

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If you've ever signed up for a cable package, then you know the standard procedure. You pick out the cheapest plan that has all the TV channels you want and will still allow you to play whatever your favorite video game is, and then you sign a contract locking you into that price for a year or more. Then, if you have Comcast, you put the fucking lotion in the basket.

It's no secret that Comcast has a horrible reputation for both its product and its customer service. This winter, it also drew criticism for surreptitiously increasing its prices in the form of increased modem rental fees and "broadcast fee." The "broadcast fee" is what you pay Comcast in order to get the broadcast networks that are provided free to anyone with an antenna. This fee actually does make a bit of sense. Even if the product is out there for free, the networks could still charge Comcast for the right to use it. We're going to give Comcast the benefit of the doubt on that one, not that they deserve it.

But the modem fees, oh boy. If you have Comcast, then sometimes in December or January you'll remember having a service technician come to your home and provide you with an upgraded modem. What, that didn't happen?

But the modem rental fees many people pay went from $8 to $10. Surely they got a next gen modem. What else could explain the fee increases? Surely Comcast can't just charge you more to rent the exact same equipment. What explanation could their possibly be? We asked. Here's a bit from an online support chat transcript (click for full size):

No, we do not understand.

 

If you'll recall, when you get your cable package you sign a contract, and that contract locks in the price for your service package. That service package is your set of television channels and your internet speed.

What Comcast has done is improved its TV programming offerings and increased its internet speeds (or so they say). That's an improvement to the service package, but the service package has a fixed price. Since Comcast can't change that, it just puts the $2 service package increase in its modem rental fee. If you had an $89 TV/internet package and an $8 modem, what you now have is a $91 TV/internet package and an $8 modem, but with Comcast lying to you about what the fees are for.

Now we may just be a bunch of simple drunk country lawyers, but we're pretty sure that what we've got here is a case of fraud. Or more specifically, false pretenses. If our bar review notes are correct. A defendant is guilty of false pretenses if he:

(1) knowingly

(2) makes a false represenation

(3) of a material fact

(4) that causes the victim to pass title

(5) to the defendant

(6) with the intent to defraud the victim

The fact that Comcast gave the script to their customer support shows they knew what they were doing. Calling it a modem fee increase seems to be a false representation. What you're being charged for looks to be material. The bill causes victims to pass title. To the defendant. And again, Comcast knows what it's doing, so there seems to be the intent to defraud.

While your local PD isn't likely to lock up the Comcast CEO, enough complaints to the FTC might do the trick. Here's the link to file an FTC complaint. Let them know that despite putting the lotion in the basket, Comcast still decided to hose you.

New York acquires machine guns to counter protests

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In response to the anti-police brutality protests that followed in the wake of Eric Garner's death, NYPD Commissioner Bill Bratton has decided to create a new Strategic Response Group. The SRG will consist of 350 officers, armed with assault rifles and machine guns. Yes. Machine guns. To control protesters. Here it is straight from the mouth of Bill "Blood-n-Guts" Bratton:

It will be equipped with all the extra heavy protective gear, with the long rifles and the machine guns that are unfortunately sometimes necessary in these ­instances. [New York Post]

Sometimes necessary! We here at Con Daily must have really slacked off in our high school US history classes, because we can't think of a single instance when police at a protest needed machine guns. Maybe Stormin' Bill Bratton has something like the Kent State anti-war protests in mind. Those national guardsmen only fired 67 rounds in 13 seconds. A single M2 Browning fifty cal machine gun can get off well more than 100 rounds in the same amount of time.

Bratton later clarified that he had misspoken when he said the new heavy weapons would be part of protest control. The weapons would go along with CRVs, critical response vehicles, and not the SRGs, which are for protest control. [Newsday] That's more reasonable, except for one tiny little gap in Bratton's reasoning...

When have machine guns ever been necessary in domestic counter-terrorism? If only there had been some more CRVs on the streets of New York, those planes wouldn't have hit the World Trade Center.

Fans of Battlestar Galactica will recall Commander Adama's response to President Roslin when she asks him to use the marines as a police force:

There's a reason you separate military and the police. One fights the enemies of the state, the other serves and protects the people. When the military becomes both, then the enemies of the state tend to become the people.

Nevermind that it would have been more clear to say "then the people tend to become the enemies of the state," most people still get the point. Huzzah context and all that. What we're seeing in New York and other cities is essentially the same thing being run in reverse. The police are increasingly taking on counter-terrorism effort -- that is, they are fighting the enemies of the state.

It's a very delicate situation, and while it is possible to strike the right balance, we don't have a ton of faith in a police commissioner who occassionally confuses his department's crowd control duties with its counter-terrorism efforts.

Why Is Law School Transparency Lying About Tuition?

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Brave professor Assistant Dean of Admissions Steven Freedman of Kansus University (60.1% Employment Score) has bravely posted this brave and bold message about the horrors of Law School Transparency's viscous and false tuition data:

Did you know that Kansas Law charges $21,173 for in-state, resident tuition? That Iowa Law charges $51,864 for non-resident tuition?

[...] Well I hope you don’t know any of that, because all of that is grossly inaccurate. In fact, here at Kansas we posted our tuition rate of $19,985 in July 2014. Iowa Law has made available its $41,296 annual non-resident tuition available for a similar time period.

[...] I understand that if you dig deep into the webpage, you can see what LST was doing here. On the Iowa “costs” webpage which is tailored to the Class of 2013, when they say “Non-resident Tuition: $51,864”, they don’t actually mean that’s the tuition for U. of Iowa for the Class of 2013. If you carefully move your cursor to the very tiny and easy to miss “?”, you will see that that figure is an estimate based on the prior year’s tuition in relation to tuition growth during the five years prior to the current year (2008-2013 instead of the more timely 2009-2014). Took me a number of visits to the LST website before I figured out that “tuition” doesn’t necessarily mean tuition on the LST webpage, it often means a guess at what tuition might be. Which, again, is a bit strange considering the actual data is freely available. Isn’t this the same kind of sleight of hand that LST has accused law schools of doing?

A just question, Professor Ass Dean of Admissions. However, mere words cannot clearly articulate just how deceitful LST's tuition data is, so we're providing this screen cap of KU's costs page:

(Click for full size)

 

Oh... well. Hmmm. We've got a question. What exactly does Mr. Freedman mean by "I understand that if you dig deep into the webpage, you can see what LST was doing here"? Generally, that phrase "I understand that..." is used to mean, "I haven't actually checked for myself, but..." Why not just look for himself? If he had, he would understand that the very first thing you see is the school's published cost of attendance (it's older data, because LST updates based on ABA information, rather than continuously checking all 200+ school websites for updates). You have to dig deep (below the fold) just to find the information Stevensman is complaining about, which is in a table that is rather clearly labeled as being a hypothetical projection. And the disclaimers are right there.

So, in order to get the information Freedman is so upset about, you'd have to close your eyes, start digging, and then stop digging at the exact right spot. What a wonderful innovation. We're going to give the Steven Freedman Digging Technique a try and see what we come up with from his post:

Did you know that I hope you don't attend law school? Which is another way of saying law school is a product of a bungled ABA.

Wow! Did you know a law school assistant dean of admissions said that!? See our application of Freedman's digging technique below. It's just amazing what you can get when you dig for exactly what you want and ignore everything else around it.


Did you know that Kansas Law charges $21,173 for in-state, resident tuition? That Iowa Law charges $51,864 for non-resident tuition?

Well I hope you don’t know any of that, because all of that is grossly inaccurate. In fact, here at Kansas we posted our tuition rate of $19,985 in July 2014. Iowa Law has made available its $41,296 annual non-resident tuition available for a similar time period. As for the federal direct loan interest rates, the Department of Education posted the correct interest rates for student loans way back in May 2014 (between 5.41% and 7.21% depending on when the first disbursement occurred). So you would think a webpage that estimates how much it costs to attend law school for the Class of 2013 would use these published figures. Well, despite this data being freely available and very easy to find, Law School Transparency does not use this information when calculating their cost of attendance estimates. Instead of using accurate, available data, they rely on projected estimates for law school tuition and for federal loan interest rates, which is another way of saying they’re using guesstimated data instead of real, available data. As a consequence, their estimate assumes Iowa students are paying $51,864 when we know they are paying $41,296. Not surprisingly, this error causes LST to significantly over-estimate the cost of law school. This is not specific to the entry for Kansas or Iowa, they have used the same method for all 200+ law school entries on their website.

[...] Listen, I like Law School Transparency. I think they’ve been effective pushing law schools to be more accurate and transparent in their reporting, and that’s a good thing. And I suspect this is a product of a bungled, confusing webpage and a failure to make timely updates, rather than some devious plan to mislead the public. [...]

LST presumably knows these numbers are wrong, which raises the question as to what is LST’s duty to correct the record? As Ben Barros posted last week, followers of LST organized to update all 200+ ABA accredited law schools’ wikipedia entries with tuition and employment information based on LST’s faulty numbers. Will LST correct its own website? Will it encourage its followers to correct the Wikipedia entries?

2015 State of the Union Drinking Game

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For the 2015 State of the Union Drinking Game, we're going to go in a slightly different direction. Traditionally, you have a list of word and when the POTUS says one of them, you drink. Well, in our first ever SOTU drinking game we had "Sputnik" on the list. He said it twice. And it's been downhill ever since. You either go for the obvious ("Syria," "Immigrant," "Taxes," and "Unarmed) and drink constantly, or go for oddball phrases and drink almost never.

So what we're going to do this year is drink every time the president lies.

In 2014, he lied at least twice.

He said we cut our pollution more than any other country on earth, when if you go by proportion cut (as you have to do in national comparisons), we were beat by 6 European countries.

He also said "You know, today, women make up about half our workforce, but they still make 77 cents for every dollar a man earns. That is wrong, and in 2014, it's an embarrassment. Women deserve equal pay for equal work." Yes, women earn less, but it's not because they're paid less for equal work. On its own, the 77 cent stat is misleading, but put next to an equal pay for equal work claim, it rises to the status of a lie.

Maybe we're not gearing up for the more drinking-packed drinking night, but it's Tuesday, we're getting old, and at least we get the fun of shouting "You lie!" at the screen before doing a shot. Now moving on to the good stuff, here's what we're going to be keeping our eyes on tonight:

Pay gap, obviously. Also, Wisconsin repealed a law that gave women equal treatment at work. Eh, not really. Equal treatment was overdetermined, meaning there was already another law in place to that effect. The law that was repealed didn't really do that.

Lowest number of illegals attempting to cross since 1970. We have record low apprehensions, but do not necessarily know about the number trying to get across. In 1970, there were fewer agents and physical barriers. We don't have a very good idea how many people were trying to get across in 1970, so any claims to that regard is a lie.

Obama's executive orders on immigration are the same "kind" of action taken by previous presidents. While past presidents have used executive orders to deal with immigration issues, they have not done so to the degree Obama has, and in this case we think the difference is so great that it becomes a difference in kind. All presidents have hosted parties in the White House also, but if you throw a kegger with gambling and strippers, it's not the same kind of thing past presidents have done.

Hasn't changed his position on use of executive authority. Basically full flip flop here.

Keystone would ship oil primarily to other countries. We'd actually be the primary buyers.

Keystone would only produce about 2,000 jobs during construction. It'd actually have on average about 10,000 at a time, though mostly short term. In terms of annual jobs (adding up short term gigs to make full years) it's about 4,000.

Created more jobs than all other advanced countries combined. Nope. More than the G7, but not all advanced countries.

US is the only developed country without paid maternity leave. False. We're the only one without government mandated paid maternity leave benefits. Many companies offer paid leave of their own accord. Those of you working in BigLaw may recall there was a bit of a maternity leave arm's race not long ago.

We're one of the largest Muslim countries. Nope. CIA World Factbook says there are only about 1.8 million Muslims in the US, placing us at 58th world wide. Even using the very high end estimate of 8 million, we'd still be 32nd.

Most young people did not have health insurance. It was actually about 25%.

1 in 4 college women raped. An oft debunked fact that's based on a very flawed and outdated study, and absurd on its face.

And of course, look for some claim about ending the wars in Iraq and Afghanistan. We still have troops deployed; about 3,000 in Iraq and 10,000 in Afghanistan. And sure, we still have troops in Germany! But, there's peace in Germany. We'll believe Obama's ended the wars when peace gets there or we get out. Until then, any comment about the war on terror is likely to be insufficient to really explain what our military is involved in. And that's getting to the core principle with which we'll judge presidential lies: the burden is on the President. Technical truth isn't enough. He's not a witness being crossed examined who's allowed to answer with as few words as required. He's picking what to talk about, and that comes with a higher standard.

The Secret Positivity of Hate Speech

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Freedom of expression is essential to a productive and creative learning environment. This means students must be prepared to listen to opinions that differ from their own. Speech that challenges commonly held assumptions can be beneficial. Hate speech benefits no one because it seeks only to tear down, not to build up. The University needs to directly address hate speech for the good of productive discourse.

Bold words from the University of Chicago's student newspaper editorial board. And by "bold" we mean "retarded."

Of course, The Chicago Maroon editors would probably classify that last sentence as hate speech, because it seeks only to tear down, not to build up. But this is a core flaw in the anti-hate speech movement. Nevermind the question of what qualifies as hate speech, and who will be the arbiter, and the extreme likelihood that anti-hate speech policies would be used by the politically powerful to suppress their opponents (look at how much criticism of George W. Bush could be considered hate speech). Nevermind all that, because the premise against hate speech is wrong.

Does it seek to tear down? Yes. But, it also seeks to build up. When we call the Maroon's editorial staff a bunch of limp dicked retarded fascist douche nozzles, it's not just to tear them down, but to simultaneously build up the concept of free speech and individual liberty. It is rare for any speech critical of another or a group to not serve some purpose of building up some other individual or group. That doesn't mean the speech is good, but it does mean that the Maroon's distinction between hate speech and constructive speech is fundamentally flawed.

What the Maroon would have banned isn't speech that seeks to tear down rather than build it. It would ban that which stings those they want to help, which builds up that which they would tear down.

 

The anti-hate speech crusade at Chicago comes largely from an incident in which a student (Derek Caquelin) claimed his Facebook account was hacked and then used to post a hateful message. That message called out another student who is a leader in the fight against micro(!)aggressions. It said, in part, "you are next. None of your profiles are safe. This is the beginning of our rape season."

Turns out, the alleged hacking victim posted the message himself. And this is why we must be extra-cautious when it comes to giving away any of our rights. Ben Franklin famously said, "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." That trade, while ill-advised, is at least rational in its own way. But what Caquelin and his ilk want us to do is trade essential liberty to purchase exactly as much safety as we already had. It's giving away freedom to stop an evil that exists only in the imagination.

 

We'll end this post with a little snippet from the Declaration of Independence: "A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people." Is there any doubt that such a description of a man could be describe as derived from hatred? Though no television station would bleep the term because it lacks vulgarity, there are few things Americans abhor more than a tyrant. Such language would not be allowed, if Caquelin or the The Chicago Maroon editors had their way, but who could say this language, for all its tearing down, does not, in the end, seek to build up?

Drexel Prof Laments Freedom of Speech

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How many political science professors does it take to change a light bulb?

If the light bulb is symbolic of fundamental liberties then thankfully it takes a lot more than one.

In the wake of the Charlie Hebdo shootings, Drexel University professor George Ciccariello-Maher took to Twitter to condemn not the murderers, but the concept of free speech.

 

That's right, the "problem" isn't murderous fanatics, it's free speech, and the only people who advocate for free speech are racists and Islamophobes. Free speech advocates like Louis Brandeis, defending freedom of speech in Whitney v. California, "It is the function of speech to free men from bondage of irrational fears." Or Winston Churchill who described the American tradition, saying "The United States is a land of free speech. Nowhere is speech freer--not even here where we sedulously cultivate it even in its most repulsive form. And FDR who placed free speech at the top of all fundamental freedoms, "We look forward to a world founded upon four essential human freedoms. The first is freedom of speech an expression--everywhere in the world." (The other freedoms were religion, basic economic security, and freedom from fear.) And then there's the great Islamophobe George Washington who said, "If men are to precluded from offering their sentiments on a matter which may involve the most serious and alarming consequences that can invite the consideration of mankind, reason is of no use to us; the freedom of speech may be taken away and dumb and silent we may be led, like sheep to the slaughter."

It's of course ironic that an opponent of free speech would work in a field where freedom of speech is a cherished value. The numerous incidents of universities suppressing speech notwithstanding, the vast majority of professors are grateful to have the protection of academic freedom. Folks like Ciccariello-Maher, though, don't want the rest of us to have the freedoms he enjoys.

It'a also ironic that an opponent of free speech would be a professor of political theory, a field which is premised on the ability to critique the prevailing political regime. Without free speech, poli sci tests would be a whole lot easier. One question, is the Sovereign right? Correct answer: Yes. Also acceptable: Always.

But what's most ironic is that to George Cigarillo-Maher, Islam is actually a threat to freedom of speech. In his world, the sensibilities of Islam trump the right to free expression. He sees Islam as a religion which requires a fascist enforcement regime. So yeah, scratch a free speecher and you will find an anti-fascist. Thankfully, all our light bulbs are out of GC-M's reach.

Should we care if people know where rights come from?

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Over on Prawfsblawg yesterday, Roll Tide Law prof Frederick Vars noted that a recent survey found only 29% of Americans could name one of the five rights guaranteed by the First Amendment. He then asked the obvious question:

[B]ut should we care?

Well asked, professor. His reasoning is that another survey found that 99% of Americans think the right is very important, and if you want to argue First Amendment protection in court, saying "Free Speech" will get you there, you don't need to name the amendment.

Comments were closed on his post, so no one got to offer an alternative answer to the "should we care" question, but we think perhaps the answer is yes.

There are a lot of rights out there, they don't exist in a vacuum, and unlike folks, not all rights are created equal. There are God-given natural inalienable rights, and their close relative the Constitutional rights (ie: the God-given natural inalienable rights deemed important enough to be mentioned in the Bill of Rights). Then there are statutory rights, which you have only by virtue of the government saying so, things like social security benefits or early voting. These things can be taken away without violating your core natural rights. And then there's other rights existing out in the aether, like the right not to be offended, or to walk from your dorm to class without hearing something you deem to be hate speech. When you start throwing the word "right" around (round round) willy nilly, weird and stupid things happen.

For instance, in a HuffPo op-ed, Celia Buckman writes regarding the Hobby Lobby decision:

What someone should or should not do for their health is between them and their physician, not their boss. This also specifically targets female workers' rights to their bodies, as Hobby Lobby exclusively refuses to pay for female contraceptives.

For a brief period between the implementation of the ACA and the ruling in Hobby Lobby, women did have a right to have their employer provide specific types of contraceptives. But that's a statutory right. The outrage coming from the Hobby Lobby decision though acts as if it infringed on one of the more important God-given natural inalienable rights, specifically the right to control your own body. But women still have the right to control their body, what they've lost is the right to make someone else fund their control.

If you're familiar with the Motte and Bailey style of argument, this is it at work. The insurance coverage right is a weak right, it's the Bailey, and it's very hard to defend. When attacked, women retreat into the bodily autonomy argument, that's the Motte, the fortified keep in the center of the Bailey that's virtually impregnable (har!). Without understanding how rights can differ, women like Celia Buckman (and like a hundred million others) will think that the Bailey is just as defensible as the Motte. Fortunately for Ms. Buckman, she's just a rising high school sophomore. We can forgive the lack of nuance in her case.

But then there's people like Nan Aron, President of the Alliance for Justice, "a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society" with an annual budget of four million dollars. She writes for HuffPo regarding the McCullen decision (the abortion clinic buffer zone one people stopped talking about once Hobby Lobby came down):

The Chief Justice gives away the game when he writes that the anti-abortion activists bringing the case "are not protestors," and expresses sympathy with their complaint that they haven't been as successful in persuading women to change their minds as they would be if the buffer zone didn't prevent them from sidling up to within an arm's length and whispering their gentle words of persuasion. Ah, you see, anti-abortion activists aren't actual protestors, like you might see outside a political event or on the public sidewalk in front of, let's say, a bank. Those kinds of people can be forced into far-distant "buffer zones" that have chain-link fence around them. But when it comes to abortion and women trying to enter a medical clinic to exercise their constitutional rights, well, that's another story. [Emphasis added]

Alright folks, get out your Constitutions and find for me the right to an abortion.

"It's in the penumbra!" ...Go fuck yourself.

Calling it a constitutional right doesn't make a lot of sense, with or without the penumbra. When we say "constitutional right" we mean the enumerated ones, not the penumbra. The penumbra has a whole other name, and it's God-given natural inalienable rights. The only difference between natural rights and constitutional rights is that the constitutional ones have been written down. An unwritten constitutional right is a meaningless term. It'd be like referring to the IMDB top 100 movies not listed on the IMDB top 100 movies list (and not just the films bumped off over time).

So why does McCullen refer to constitutional rights in her op-ed? Probably because it makes for good rhetoric, and because she hasn't stopped to consider what it means for something to be a constitutional right versus a natural right.

Going back to professor Vars's question, should we care? We think so. The origin of rights matters when it comes to how we treat them, and we're moving towards a society where people think the hierarchy of rights comes down to nothing more than how passionate they are about the issue. If you're going to make more use out of your free contraception than your religious freedom, then you know which right trumps the others. Next you'll be saying your right to not be offended trumps another's right to free speech, not based on any concrete theory of rights, but just on how you feel about their relative importance.

Don't Have Sex In New Zealand

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We shouldn't say don't have sex in New Zealand. Instead, if you're going to have sex in New Zealand, do it now. Do not wait.

The NZ Labor Party has introduced a bill that would radically change the way rape prosecutions are handled, using the time dishonored burden of proof known as Guilty Until Proven Innocent. The innovation's sponsor, Andrew Little, says not to worry because the state (down under the call it the "Crown") still bears a significant burden of proof:

The Crown has to prove more than just sex; the issue of consent has to be raised by the Crown, they have to prove the identity of the offender. They would have to bear that burden of proof before a switch to the defence to prove consent. [NZ Herald]

See, no need to worry. The Crown still bears the burden of proving that sex happens (she says so) and the identity of the offender (she says him). Your ball, Mr. Defendant.

And why shift the burden? Well because rape cases are really hard to prosecute. Do you know how hard it is to prove lack of consent? Just about as hard as it is to prove consent. And since consent is so hard to prove either way, the NZ standard would basically be Guilty If Accused.

Guilty If Accused?! Surely we're exaggerating. After all, plenty of people do get convicted of rape. In fact, in New Zealand 46% of defendants brought to trial for rape are convicted. If the Crown is able to so often prove a lack of consent then surely the defendant will have a fair shake.

 

Oh, except that the defendant isn't allowed to question the accuser.

The accuser will only be questioned by the judge, a judge working under a Ministry of Justice with an official policy of increasing rape conviction rates.

Planned Parenthood Needs to Chillax About Hobby Lobby

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As soon as the Supreme Court reached its decision in Hobby Lobby vs. The Crushing Ennui That Accompanies Spending Time At Hobby Lobby, Planned Parenthood released this image on their Facebook page:

 

Your boss can decide if you have access to birth control coverage! Now as far as we know, Planned Parenthood has some sort of expertise when it comes to birth control, so if they say this is the case, it must actually be the case, right?

Of course not. It's a knee-jerk reaction to a hot-button issue, which basically tells you right away that it's completely wrong and without any basis in fact or reasoning. In fact, Planned Parenthood doesn't seem to have gotten as far as the first paragraph of the majority opinion.

We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488,42 U. S. C. §2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.

And then a little further into the opinion:

For all these reasons, we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.

Emphasis added. But only kinda added. The bold was added, but the court keeps saying "closely held" over and over again, making it very clear that the opinion applies only to closely held corporations.

Might it be a precedent that will allow the decision to later apply to all corporations, slippery slope style? Probably not. It makes some sense (to some people, we can think of at least 5) that a closely held corporation could have a sincerely held religious belief. It makes absolutely no sense to say that a widely held corporation can have the same sort of belief. If the decision will apply anywhere else, it's most likely going to extend to sole-proprietorships, and maybe some partnerships.

So, can "your boss" decide if you can have birth control coverage?

Probably not. If you work for Hobby Lobby they can make some decisions, but most employers will still have to provide it.

 

But wait, there's still more wrong with the Planned Parenthood message!

Even Hobby Lobby can't decide if you can have access to birth control coverage. What Hobby Lobby can decide is if Hobby Lobby is going to provide it. That's not the end of the access question because there's thing you may have heard about in the news called THE OBAMACARE. Or you know, the health care exchange marketplace communism Obamacare. If you work for a Hobby Lobby and want birth control to be covered, you can just buy a different plan on an exchange.

But buying it on the exchange could be cost-prohibitive. The exchanges work by giving people discounts, but you don't qualify for a discount if you're already getting coverage from work. Hobby Lobby isn't exactly paying upper-middle class wages. By not getting it from their employer, aren't employees effectively cost-prohibited from obtaining birth control?

Excellent question! Let's see what the government has to say about it:

Whether you qualify for lower costs based on your income will depend on the coverage the employer offers. You won't be able to get lower costs if your job-based coverage is considered affordable and meets minimum value.

Meets the minimum value. We suspect it'll be about two more minutes before some interpretive guidance comes down saying that plans without birth control aren't minimally acceptable and that if you have such a plan you will quality for lower costs. Just a guess, but we think it's a pretty damn good one.

 

But wait, there's still more!

Not my boss's business.

Your reproductive health decisions are you own business, not your boss's. And that's exactly the position Hobby Lobby has taken. You want birth control? Not their business. By demanding that employers provide it, they're making it quite literally their boss's business.

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