The New California Statute on Sexual Assault in College

The new California statute regarding sexual assault on college campuses, which is known as the Yes Means Yes law, has received considerable attention.  I thought that I would take a look at the statute and evaluate the statutory language to determine what the law actually says.  I should note that I don’t teach criminal law or torts, and therefore do not have any expertise about these matters.  This is a post simply by a law professor analyzing the statute.

The most important provision of the statute imposes an affirmative consent standard.  Section 1(a)(1) provides that

“Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity.  It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.

The most obvious question here is what affirmative consent means.  Conscious and voluntary seem relatively straightforward (although there are issues), but what does affirmative mean?  Does it mean verbal consent?  Does it mean express consent?

The statute does not define the term and dictionary definitions are not entirely clear.  In my view, one can read the language either way.  Some definitions of affirmative seem to imply expressing or asserting it.  Other definitions might be understood as merely requiring an action on the part of the person.  (See, e.g. an affirmative duty to stop crimes in their buildings.)  While I would probably read it in the latter way, the statute is not clear.

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Myths, Lies, and the National Health Service

nhs-bevan_1405968iThe philosopher Mary Midgley tells us that myth is not just an obstacle to thought, or even merely an adjunct to thought, but an essential part of human ratiocination itself. Whether this is actually so or not in the philosophical sense, namely that human thought is completely impossible without the making and use of myth, I do not know; but what is certainly the case is that mythology is a powerful force in human affairs, not least in politics. And myth can do harm as well as good.

In Britain, the most powerful political mythology (perhaps for lack of any other) attaches to the National Health Service (NHS). This way of organising our health care was born with original virtue in 1948, since its conception, in more senses than one, it has become more and more immaculate. If the service had a slogan, it would be Noli me tangere. No British politician would dare admit that its institution was anything other than an unmixed blessing; no British politician, at any rate none who aspired to office, would dare do anything other than tinker with it at most. Against the mythology, Mrs Thatcher herself was as helpless as a day-old kitten.

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The Fourteenth Amendment, Original Meaning Originalism and How to Approach the Historical Record: A Response to David Upham

My thanks to the Library of Law and Liberty for inviting me to respond to David Upham’s review of my new book, The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (Cambridge U. Press 2014). Thanks also to Prof. Upham for taking the time to review the book and his gracious acknowledgement that it constitutes a step forward in our understanding of the Privileges or Immunities Clause. Unfortunately, in some of his more critical comments, it appears that Upham has misunderstood the theory of the book and (worse) missed much of the evidence presented in the book.

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Corporate Conscripts


The syllogism used to run as follows.

The state should provide good things. X is a good thing. Therefore, the state should provide X. This is fraught with problems, to be sure—but it is also clear, debatable and honest. Now, on November’s ballots, comes the purportedly market-oriented version, which, debauching the name of Adam Smith, reframes it as follows: The state should guarantee good things. X is a good thing. Therefore, the public sector should compel the private sector to provide X. This is opaque, indirect and pernicious.

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Rules, Standards, and the Era of Computation

The increasing power of computation is the most important force of our age. In Law’s Algorithm, written with Steve Wasick, I apply information theory to demonstrate that greater computational capacity can change the optimal form of law.  Because such increased capacity allows law to be more easily discovered it encourages the use of bottom-up forms of legal ordering, like the common law and standards. These forms of law have advantages in permitting law to evolve as it is applied to new facts and situations. But in comparison to fixed rules they also have disadvantages, because their application is more uncertain.  As legal search and prediction improves through the computation, however, the degree of this disadvantage declines.

Consider a law that requires citizens to drive at a particular speed—a classic rule.

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The Court’s Alleged Power to Ignore the Original Meaning

In the past, I have been critical of the claim that positivism and the rule of recognition requires originalism.  Instead, my view has been that the rule of recognition allows both originalism and nonoriginalism. But I hope that my criticism of the case for originalist positivism has not obscured one very significant accomplishment of this argument.  I believe that scholars such as Will Baude and Steve Sachs have made a strong argument that the Supreme Court does not claim the power to ignore the Constitution’s original meaning, unless the Supreme Court asserts that it is following precedent. (Where the original meaning…

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Engaging and Knowing: The Cart and the Horse

The thoughtful and meticulous analysis by our friend Joseph Knippenberg got me thinking about civic engagement. Well, that’s not quite true. I was already thinking about it while trying get a book done on the technocratic threat to higher education (which is greater than the politically correct threat to higher education, although the two are not unrelated).

There is an expert-driven trend in higher education–facilitated by foundations, the American Political Science Association, professors of political science and professors of education–to transform the teaching of political science through civic engagement. The literature on this is full of jargon and otherwise depressingly low in its cognitive pay grade. The consensus seems to be the need for a third way of studying politics. One approach, allegedly rigorously scientific, is the nonpartisan detachment of the behaviorist. Another is the textual approach of political philosophers, who talk about what Plato said Socrates said while hanging out in the marketplace but never actually take students to such a public forum. The third way is for students to learn through actually participating in political life.

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Prescription for a Banana Republic

dept of ed

This past Friday, Boston College’s excellent Shep Melnick (interviewed on this site not long ago) gratuitously ruined my weekend by alerting me to the latest “Dear Colleague Letter” (“DCL”) from the Education Department’s Office for Civil Rights (“OCR”). The DCL “shares” OCR’s views on “resource compatibility” at the nation’s schools, district by district. Horrendous in its own right, the letter also prompts broader thoughts on “government by guidance”: it’s a prescription for a banana republic.

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Beware the Political Hawk

Ancient Rome : Politic Assembly

With the Islamic State’s invitation to sympathizers everywhere to join in murdering Americans, U.S. public opinion favors destroying this nefarious force. Accordingly, politicians of both parties—especially those up for election—are competing to see who can issue the most bellicose statements.

But popular sentiment notwithstanding, there is no reason to believe that our ruling class has learned anything new, that it is shedding the ways that have opened hunting season on Americans, or that it is setting about destroying America’s enemies.

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Descriptivism, Prescriptivism, Great Aunts, and Grand Aunts

For many people who spend their time writing, the issue of descriptivism versus prescriptivism is  a fascinating one.  Are there rules of grammar and usage that people should follow?  Sure.  But are those rules defined by an elite group of language speakers and writers?  Or should they simply be based on regularities of language usage by all speakers and writers?  A fascinating question, with all types of issues.

For what it is worth, my view is basically that at any one time (within a group of language users), there are rules that define proper usage.  But those rules change over time.  At a certain point, the old conventions will give way to new ones, and those new ones will become the proper usages.  So one day, perhaps pretty soon, the distinction between imply and infer is likely to evaporate and it will be proper to use them interchangeably.

Even if one is a descriptivist and agrees with that prediction, I think that one should be sad about the demise of the distinction.  When the distinction is no longer recognized, it will be harder to convey precise information about whether the speaker is implying or the hearer is inferring.  Perhaps in the new world new words will allow a speaker to convey the distinction, but there is no certainty and it seems like a lot of trouble to reinvent the wheel.

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