Liberty Law Blog

Sex Discrimination and Rape

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In my last post, I noted some of the procedural problems with university procedures concerning charges of rape on campus. In this post, I want to discuss the inequality as to standards for rape at universities. Consider this testimony about rape rules from a high official at Duke. If an individual is intoxicated, they are thought not to have the ability to consent to sex:

McLeod’s lawyer asked Wasiolek [the Duke official] what happened if both students were drunk. In that case, presumably, “they have raped each other and are subject to expulsion.” Not so, stated Wasiolek: “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.” How this policy can be reconciled with Title IX must remain a mystery.

I have often wondered about exactly this issue. Is there any defense of this policy? It seems hard to justify. As the quote above indicates, it seems blatantly inconsistent with equality between the sexes.

One of my colleagues attempted to defend this rule. He argued that if the man is the initiator – as they usually are in our culture – then this rule will be defensible because it is no defense to rape that the rapist was intoxicated. While this is an inventive argument, there are several problems with it. First, this argument merely shows that the initiator should be held responsible. The male may usually initiate, but he does not always do so. Thus, it does not justify categorically holding the man responsible and the women free of responsibility. Continue Reading →

The Solicitor General’s Foolish and Feeble Excuse

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The Solicitor General is the Executive Branch’s officer in charge of litigation before the Supreme Court. The incumbent, Donald Verrilli, recently gave a speech in which he reflected on the difficulty of his post.  “We’re at a time when a majority of the Supreme Court has a strong ideological perspective different from the president,” he said, adding that, “aside from the New Deal, this is probably the greatest amount of friction between the executive and judicial branches.”

The Supreme Court justices—all of them—believe they are applying the law in deciding cases, not indulging their political ideology. Even if Verrilli thinks otherwise and believes judges are essentially politicians in robes, it is foolish for the Solicitor General to impugn the self-conception of the justices he must persuade. .

And the claim that  there are more fundamental differences between the Obama administration and any other Court except in the New Deal era  is wrong. Begin at the beginning: the Jefferson administration so strongly opposed the review of its executive acts by the Supreme Court that it declined to participate in Marbury v. Madison, raising the prospect that it would not comply with an adverse decision. Continue Reading →

Abusing Men: The Other Side of the Rape Culture

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Recently, there has been a great deal of publicity about how there is a rape culture in American universities. Perhaps there is a significant increase in the number of rapes of women, but many people deny it. Certainly, the strong and peculiar ideology of the extreme feminists who lead the charge about this rape culture cause one to have serious doubts about the charges.

There is also, of course, another aspect of the universities efforts to combat this alleged rape culture: the denial of equality and due process to men who are charged with these rapes. Much of the discussion has focused on the preponderence of the evidence standard that the Obama Administration has been pushing on colleges. But there are other due process problems. Consider this list from KC Johnson’s Durham in Wonderland blog about Duke:

That “fair and just process” is one in which:

the accused student is consigned to an “advocate” who cannot speak in the hearing that will determine whether Duke brands him a rapist;

consent is vaguely defined, on grounds that “alcohol or other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and effectively given”;

a preponderance of evidence (50.01 percent) threshold is used;

the accused student cannot directly cross-examine his accuser;

the accused student only has a maximum of five days to examine the evidence that Duke has compiled against him, while he lacks the power to subpoena potentially exculpatory evidence from the accuser;

double jeopardy exists, in that the accuser can appeal a not-guilty finding;

Duke is allowed to use evidence from anonymous parties against the accused student.

Fair and just, according to Duke.

But there are other problems. Are the rules governing rape sensible and equal? I doubt it in many cases. In my next post, I will discuss one of the basic inqualities between men and women under the Duke standards.

The Social Decline of Lawyers?

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I previously posted about the rise of computation and its implications for legal practice, as machines replace some of the functions of lawyers. I recently wrote an essay that focused more on the displacement’s implication for the status of lawyers in politics and in society. As De Tocqueville saw almost two hundred years ago, lawyers were the aristocrats of America’s democratic society. The rule of law, not men, made them paradoxically the key men in the early Republic. But their position is now threatened by the rise of engineers and tech entrepreneurs.

This development may have good effects for society. As I observed:

In the twentieth century, lawyers continued to wield power, but the direction of their influence in economic affairs changed. Since the birth of the modern regulatory state and social democracy, lawyers have had incentives to increase and revise legislative mandates; they became the technocrats of regulation and redistribution. The more a nation intervenes in the free market, the more in compliance costs and transfer payments that lawyers can expect to receive. As a result, lawyers don’t tend to be strong proponents of economic liberty or even of a stable rule of law. Their interest frequently lies in legal complexity and the uncertainty it brings.

The decline of lawyers may therefore prove a boon to the rule of law and to market norms. Computational innovators benefit from capitalism’s process of creative destruction; their new applications transform industry after industry. Their success lies with a stable rule of law and relatively light regulation. True, once successful, innovators become incumbents and may seek to use government to hamstring new entrants. But the dynamism of technological acceleration will make it difficult even for big government to hold back waves of new “disruptions.”

Continue Reading →

Higher Education’s Rocky Road to Well-Being

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I recently wrote about the inaugural Gallup-Purdue Index Report, Great Jobs, Great Lives, which found that “high impact” college practices have a substantial payoff in terms of the “workplace engagement” and well-being of graduates. Many commentators seized on the fact that the study didn’t find substantial differences in outcomes for elite and non-elite college graduates. There are reasons, I think, not to overemphasize this conclusion, as the practices that are connected with the beneficial outcomes are those that were pioneered by, and still characterize the educational experience in, private liberal arts colleges. In that essay, I focused on workplace engagement and promised to revisit the issue of the connection between higher education and well-being. Continue Reading →

The Police and the UCSB Shooter: Police Misbehavior

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In an earlier post, I wondered about the claim of the police that they had not viewed the Youtube videos posted by the UCSB shooter. The reports had not made clear whether the UCSB shooter’s parents had failed to notify the police of the videos or the police had simply incompetently failed to look at them. Well now we know and the story may be worse than I suspected.

It turns out that the police had been told about the videos – and somehow did not look at them. That represents malpractice in my book. But it gets worse. Initially, the police announced that they had not been told about the videos and a few days later changed their story, acknowledging that they had, but had failed to look at them. And the police have refused to explain why they initially reported a false story.

In my view, the most likely explanation for this failure is that the police wanted to avoid responsibility. They initially deny their responsibility when the public’s focus is on them and then correct the explanation a couple of days later.

Sadly, the police are no different than other government officials and agencies. They often behave incompetently and then attempt to avoid responsibility. When private businesses behave negligently, they get sued. But not so with the police. Sadly, government officials often escape responsibility. We don’t know whether a competent police force would have prevented the loss of lives at UCSB. But we do seem to know that the police behaved improperly both in their primary behavior and then in an attempt to avoid responsibility.

The Technological Threat to Fusionism

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In most democratic nations around the world, coalitions of the mainstream right include both classical liberals and conservatives. Depending on the voting rules of the nation, that coalition takes place informally within a single party, as in the United States, or formally across parties, as in the proportional parliamentary systems of Western Europe. These two fundamentally different political sensibilities are drawn together by a common enemy—the social engineering of the left.  Both classical liberals and conservatives value personal responsibility, which is often undermined by the grand plans of big government.  Social engineering also requires a scope of collective authority that trenches on the liberty valued by classical liberals and unravels the social traditions valued by conservatives. The  happy result is fusionism—the united front of both classical liberals and conservatives against socialists and social democrats.

Technological acceleration could threaten fusionism. First, it may speed up the rate of social change, making traditions hard to maintain through civil society. Conservatives may be tempted to think that the state can provide a bulwark against social transformation. Fast technological change has created tensions between conservatives and classical liberals before (witness Tories versus Manchester liberals in nineteenth century England), but the rate of change today seems to me faster than ever and the possibilities for division between classical liberals and conservatives correspondingly  greater.

More importantly, technology is beginning to permit personal re-engineering, pitting values of autonomy against values of a more tradition-bound (and frequently religiously based) view of what it means to be human. Continue Reading →


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cosmosThe television program Cosmos: A Spacetime Odyssey is worth watching for reasons known and acknowledged by host Neil deGrasse Tyson, and for some he may not be aware of. Tyson exudes an affable authority as he guides viewers through this expensively produced and visually impressive successor to the 1980s blockbuster science documentary Cosmos: A Personal Voyage, hosted by Carl Sagan. While the series presented by Fox and National Geographic is not yet finished (11 of 13 episodes have been aired), its essential features are discernable. Continue Reading →

What’s the Administrative State’s Date of Birth?

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I’m thrilled to be guest blogging this month, and looking forward to discussing the administrative state, political parties, and other topics. For my first post I want to bring up an interesting question that emerged in a review by Ted McAllister (and in the comments) from last week, regarding the origins of the modern regulatory/administrative state. Scholars often trace the birth of the administrative state to the 1880s, especially in two critical episodes: the passage of the Pendleton Act in 1883 which created the modern civil service, and (more importantly) the passage of the Interstate Commerce Act in 1887, which created the Interstate Commerce Commission. This history of the administrative state makes the late nineteenth century the critical turning point in American history.

This is a plausible, but ultimately I think a mistaken history. The regulatory initiatives of the late 19th Century were much more consistent with an earlier view of American constitutionalism that they appear at first glance. They were not necessarily harbingers of the modern administrative state. Tracing the birth of the administrative state to the 1880s is somewhat misleading.    Continue Reading →