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.


Constitutional Daily

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.

Georgetown law prof asks: But what about the wimmin?

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Obama recently rolled out the My Brother's Keeper initiative aimed at helping minority boys and young men. The goal is basically to get them education, employed, and out of trouble -- and if they're in trouble, to get them back on the right track. So naturally, Georgetown Law pof Paul Butler is asking, "But what about the wimmin?" Here's a bit from an article he wrote for CNN:

There's a myth that girls of color are doing better than boys. But that's not supported by the facts. Indeed the White House website attempts to justify MBK's exclusion of females by stating that "boys of color are too often born into poverty and live with a single parent."

But don't African-American girls live in the same single-parent households as African-American boys? Don't Latina girls attend the same failing schools as Latino boys? Isn't a teenage girl on a reservation in California as afraid of being a victim of rape as a teenage boy in Chicago is afraid of being a victim of gun violence?

It would actually be quite surprising if the odds of a girl being raped on an Indian reservation was the same as a boy being shot in Chicago, and we're sure the stats are out there somewhere, but we're not going to look into that particular one because frankly, it'd take too much time, not to mention problems with rapes being under-reported --  gunshots on the other hand tend to draw police attention.

But what we will look at are the more easily comparable stats. Is is a myth that girls of color are doing better than boys of color?

Black women are twice as likely to get a 4 year college degree than black men. [Dep't Ed] The numbers are similarly skewed for Hispanic and Native Americans and at all levels of education except when it comes to blacks getting master's degrees (black women get 71%) and Hispanics getting PhDs (Latinas only get 55%). Nowhere on the spectrum are girls of color not doing better than boys.

According to the National Criminal Justice Reference Service, black males are about 30% more likely to be the victim of a violent crime than black females. [NCJRS]

Black men are 50% more likely to have been arrested than black women. They're six times as likely to have been charged in federal court. [BJS]

The black unemployment rate for men is 30% higher than for women, though Hispanic men are doing slightly better than Hispanic women overall. For youth the numbers are much worse. Black men aged 16-19 have a 42.8% unemployment rate, while it's 27.5% for women. At age 20-24 it's 25.5% for black men, 18.5% for black women. Hispanic youth were at a virtual tie at these ages. [BLS]

But don't African-American girls live in the same single-parent households as African-American boys?

It would appear not. That won't stop a Georgetown law profess though, and why should it? You see, law school teach you to think like a lawyer, and what does that mean? Cheat To Win. Your loyalty is to your client, to your cause, not to some higher notions of truth or justice. All that matters is winning the argument.

PS: There's this little thing called the White House Council on Women and Girls, but no corresponding op-ed from Paul Butler demanding that men and boys be included. And they shouldn't be. Including boys in programs designed to help girls is like giving them a mastectomy to cure prostate cancer. Doesn't mean there shouldn't also be prostate cancer treatments, but we shouldn't have the Paul Butlers of the world complaining that the woman in the next exam room isn't all getting a finger up her rectum.

Obamacare Secretly Changing Your Party Affiliation

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If you get insurance through Covered California (an Obamacare health care exchangemaroo), be prepared to have your party registration automatically switched over to Democrat for you. At least, that's what an ABC news story alleges:

A local couple called 10News concerned after they received an envelope from the state's Obamacare website, Covered California. Inside was a letter discussing voter registration and a registration card pre-marked with an "x" in the box next to Democratic Party.

The ABC story goes on to explain that the couple didn't want to be identified, and that the couple attempted to contact the California Secretary of State office, which investigates voting fraud, but "could not get a hold of anyone."


So yeah, we're gonna go ahead and file this item under the heading That Happened.

Come on, ABC. First rule of journalism is you have to name your sources. Well, maybe not the first rule, but it's in like the top 10 rules. A source needs a really good reason to not go on the record. And when they have a good reason, you disclose it to the reader so they know.

Second rule of journalism is that if you've just got one piece of evidence, and that evidence is really shaky, you go looking for more evidence. That's actually maybe the first rule. We don't really know, we're not journalists. But, we do know that anyone could just get an unmarked form, mark it, and then call ABC and claim it was pre-marked. There's no way for ABC to know the difference. Now, it's a judgment call whether or not to run the allegation, but if you do run it you certainly don't say, "Inside was a [...] registration card pre-marked with an 'x' in the box next to Democratic Party." What you do say is "The couples alleges that the card was pre-marked with an 'x'..."

The third rule of journalism is that if there are 4 million other voter registration mailings being sent out by Covered California, you go find someone else with a pre-marked card.

The fourth rule of journalism is if someone says they called the Secretary of State and no one there is answering the phones, you get damned suspicious of the story. But hey, it's the start of Spring, so maybe?

The fifth rule of journalism is you call the Secretary of State yourself and tell us what they had to say.

The sixth rule of journalism is that when you talk to Covered California and learn that the mailings come not from them but directly from the Secretary of State, you think hm... I SHOULD CALL THE SECRETARY OF STATE.

The seventh rule of journalism is Preston Phillips, you should stop doing journalism, because...

The eighth rule of journalism is That Happened.

Things White People Like: The Death Penalty?

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Yesterday, writer Jamelle Bouie wrote about a Pew survey and why he thinks so many more white people support the death penalty. Spoiler: It's racism. Now before jumping in, let's go ahead and make one thing perfectly clear, there are racial disparities when it comes not just to the death penalty, but to criminal punishment in general. And also, those disparities are bad.

That said, Bouie is completely wrong when it comes to why white people like the death penalty so much. Or, to be more exact, his argument is without meaningful support. He could in fact be right, but he certainly hasn't made his case.

He first lays out the Pew data:

Overall, 55 percent of Americans support capital punishment, and 37 percent are opposed. Among whites, however, support for the death penalty jumps to 63 percent, compared to 40 percent for Hispanics and 36 percent for blacks.

So far so good, but Bouie is concerned with the why, not just the what. To begin his explanation for why white people like the death penalty, he first reminds us of its racist historical use:

Before we get into why whites are so supportive of the death penalty, it’s important to remember this: There’s no separating capital punishment from its role, in part, as a tool of racial control.

There's a bit of internal inconsistency in this statement's logic. It's that "in part" bit. That phrase implies there's another part, and if there is that other part, then a sufficiently sophisticated mind actually can separate one part from the other part. That's kinda what it means for there to be parts. And what is that other part? Capital punishment's use as a tool of crime control. And you know why it's so easy to mentally separate these two parts? Because capital punishment predates racially diverse civilization. Ancient Greece didn't exactly have a lot of black people in it, but you could be sentenced to death for the crime of giving funeral rights to a traitor, or corrupting the youth with your weirdo philosophy.

So, there is in fact some separating capital punishment from its role as a tool of racial control. And duh, the Pew data bears it out. 36% of blacks support it. If you were to ask about things with more direct ties to racism, such as segregation or lynching, we suspect the number of black supporters would be considerably lower. We think it's safe to say that the black supporters of the death penalty probably do a bit of separating.


Bouie concludes his article with this:

It sounds glib, but if you needed a one-word answer to why whites are so supportive of the death penalty, “racism” isn’t a bad choice.

And for no particular reason, these seems to us a good place to introduce some other statistics, and we decided on the racial breakdown of people who've been executed since 1976. No surprise, blacks are grossly over-represented, making up 34% of those executed, about twice their percentage in the population.

That disparity is alarming for sure, but it should also set off a red flag as it relates to Bouie's argument. What about the other people? 56% of those executed were white. So, in Bouie's interpretation of America, white people aren't only using the death penalty for racial control, but are so hell bent on keeping the blacks in line that they'll kill 5 white people just to kill 3 black people. We're either really bad at being racist, or still working through some fodder left over from the Clone War.

We think Bouie's argument has some holes in it now, but it's not quite sunk. Maybe white people don't realize how many other whites are executed. Or maybe they're just happy with the disparity because it both kills the criminals who need killing, and also keep the blacks in line. If only there was a way to corroborate Bouie's theory.

And thankfully there is! Great thing about America is that it's racist to just about everyone, and it's got a lot of different races to be racist against. So let's look at Asians. They were abused in the construction of the continental railroad, their home countries have been exploited by colonial trade, and there was that slight incident where we imprisoned every single Japanese person in the country. Asians make up about 5% of the American population, but are an even tinier number of those executed.

Of course, most of the death penalty states are in the South, which has a smaller Asian population. In Alabama, they're only 1.2% of the population, but also only 0.5% of current death row inmates. In Texas, Asians are 4.2% of the population and 1.3% of death row inmates. And looking at California where Asians are 13.9% of the population, and where you'd expect a history of racism against Asians to have its strongest lingering effect, they're only 3.4% of death row inmates.


What can we conclude from all this? That if white people favor capital punishment because they're racist, then they suck at racism. And that Bouie sucks at talking about race and the death penalty, because he also quotes another interesting figure from the Pew study: 64% of white protestants support the death penalty. Now we haven't read our Bibles in a while, but we're pretty sure there's some stuff in there about justice, and morals, and eyeballs and some other such things, and that maybe the reason why white protestants are so much in favor of the death penalty isn't because of racism, but because they have a different take on criminal justice generally.

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