As an academic, it’s always gratifying to know that my work is being read and cited by policymakers. Quotes would be nice, and it’s unfortunate that Sen. Paul’s staff was not more careful, but spreading the ideas is more important. Sen. Paul is hardly the first politician to appropriate the words of others without following proper citation conventions, and he will not be the last.
Okay. It finally happened. Our colleague Tamara Tabo finally wrote something that required a response from one of your faithful regular editors.
Tamara makes some excellent points about the incidence of rape not necessarily being higher in the military than in civilian institutions (at least as reported).
But the problem is not so much what she says, but why? What’s to be gained by taking to the pulpit and saying that the incidence of military rape is on par with civilian rape and that the concern of policymakers is misplaced?
The only answer is to suggest that military rape is not a problem because it’s in line with the rest of society. And that’s not a good argument.
But not as bad as the argument that drunk women are the real problem in rape cases…
Marine Barracks or College Dorm: Senate Bill Raises False Alarm Over Where Women Are Most Likely to Be RapedBy Tamara Tabo
On Tuesday, Republican Senators Ted Cruz and Rand Paul joined Democratic Senator Kirsten Gillibrand in her push to pass new legislation that would remove the chain of command from military sexual assault cases. Senator Gillibrand argues that women in the military are afraid to report rapes, and when they do report them, the crimes are not always prosecuted.
People of conscience want sexual assault victims to report. We want sexual offenders to be duly processed and punished. We want individuals wrongly accused to suffer as little harm as possible as they clear their names. We share these broad goals, though we may differ about specific means of achieving them.
I respect Senator Gillibrand for formulating a proposal. I respect Senators Cruz and Paul for crossing the aisle to support legislation they believe in. I am unpersuaded, however, that this bill would adequately and fairly address the problem.
Legislation like Gillibrand’s treats as unique a problem that is not. Relevant statistics suggest that young women may be at no greater risk of being sexually assaulted in the military than being sexually assaulted on a college or university campus. Why propagate a message of fear that sending our daughters (or ourselves) into the service amounts to handing them over to an unpatrolled, unrepentant rape culture, but shipping off young women to college is relatively safe? Why send the message that our women are more likely to be raped by a fellow Marine than by a frat brother from Sigma Chi?
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* Edith Windsor’s lawyer said she thought her client’s case was “simple,” but it proved to take a little longer than she thought to strike down the Defense of Marriage Act. [New York Law Journal]
* Conservative pols are up in arms about the SCOTUS decisions, promising to file constitutional amendments, but like Rand Paul said, “As a country, we can agree to disagree.” [Washington Post]
* Nate Silver breaks down gay marriage by the numbers. By August, 30% of Americans will live in states where same-sex marriage has been legalized. [FiveThirtyEight / New York Times]
* Wherein the ancient artifacts of a once storied and prestigious Biglaw firm are touted by a furniture liquidation company as “like new, for less!” Dewey know how embarrassing this is? [Am Law Daily]
* Sorry, Joel Tenenbaum, but the First Circuit affirmed your $675K debt to the RIAA. That’s what happens when you blame illegal downloads on burglars and foster kids. [Law & Disorder / Ars Technica]
* It looks like David Boies claimed two victories yesterday. The Court of Federal Claims gave Maurice Greenberg the green light to sue the U.S. over the terms of AIG’s bailout. [DealBook / New York Times]
I took Crim Law my first semester in law school. My professor, now the school’s dean, was an imposing fellow to 1L eyes. He looked approximately seven feet tall, with a deep, booming voice, a propensity for cold-calling, and a demanding, often impenetrable teaching style. I loved the class, even though I went into fight-or-flight mode in the minutes before he would stroll down the aisle of the auditorium.
We read the Apprendi line of cases, where the Supreme Court ruled that the Sixth Amendment right to a jury trial prevented judges from enhancing criminal sentences beyond statutory maximums based on facts other than those decided by a jury beyond a reasonable doubt. I thought I grasped the gist, with my nervous 1L brain. Then we got to Harris v. United States. In Harris, the majority held that Apprendi did not apply to facts that would increase a defendant’s mandatory minimum sentence. Judges could apply mandatory minimums on the basis of facts not proved to a jury, without violating the Sixth Amendment. These fact were sentencing factors, the majority held, not offense elements.
Terrified that I had misunderstood something crucial, I visited my crim prof’s office before the class when we would discuss Harris. I recited the cases up to that point, if for no other reason than to show that I had, in fact, been reading and that my ultimate confusion was not because I was totally mentally challenged. (Even if just a little.) I summarized my understanding of the Court’s holding in Harris, why it just didn’t square, how I knew that I must be missing something, because I just didn’t see how Harris properly followed. After way too long, I finally sputtered, “Sir, I’m . . . I’m just . . . confused.”
My prof leaned back in his chair, paused dramatically, sighed, then replied, “Ms. Tabo, of course you are confused. The Supreme Court is confused.”
As of this week, the Court is no longer so confused….
* Congratulations on your law degree! Here’s a list of the other professions you can go into, because “being a lawyer” might not be in your future. [Associate's Mind]
* Deleting unhelpful text messages is a poor litigation strategy [IT-Lex]
* Aaron Zelinsky wants your help coming up with legal aptonyms for an upcoming article. Do you not know what an aptonym is? It’s okay, just read his post and he’ll explain it for you. [Concurring Opinions]
* Rand Paul spoke for 13 hours. It only took two sentences to make him stop. Eric Holder has a great ROI. [Balloon-Juice]
* Cleveland Judge Pinkey Carr has issued another sentence making a convict wear a sign in public. [Columbus Dispatch]
* This grammar rant figuratively blew my mind. [3 Geeks and a Law Blog]
* Darren Heitner writes about the new business of concussions in the NFL. Safety equipment manufacturers are working overtime to shield themselves from future litigation because, you know, there’s not much that can be done when you’re still intent on running the human head into another hard, moving object at full speed. [Forbes]
* Welcome to Salem 2.0. This time it’s Salem, Missouri that tried to protect us from witchcraft by blocking Internet access to information about Wicca. A federal judge struck this down. Then hopped on a broom and skyrocketed away. [KDSK]
* A Florida woman pulled a gun on Walmart employees who wouldn’t honor her $1 coupon. It’s Florida, so she had to stand her ground on that sh*t. [Lowering the Bar]
* A 12-year-old boy got stoned and led police on a car chase. Live fast and die young, my friend. [Legal Juice]
* More on Lindsay Lohan: After her lawyer, Mark Heller, got blasted as incompetent by the media (including us) and the judge in the case, Lindsay says she’s sticking with him. Because she’s shown a canny understanding of legal practice so far. [TMZ]
* #Filiblizzard! That’s the Twitter hashtag that Senator Rand Paul coined to describe the confluence of a major D.C. snowstorm and Paul’s unabashed filibustering of the nominee to head the CIA. At the same time, there is another filibuster of Caitlin Halligan’s nomination to the D.C. Circuit. Remember when Harry Reid and Mitch McConnell hammered out a deal that would end the excessive filibusters? No. You don’t. Because that was just your Absinthe-fueled hallucination. [PrawfsBlawg]
* Former Justice Sandra Day O’Connor was on the Daily Show. She didn’t seem to understand that Shelby County was about Section 5. [Election Law Blog]
Full video after the jump….
* Rand Paul “doesn’t really understand” gay marriage. Let me help him out: it’s something that’s none of the government’s business. HTFH. [Huffington Post]
* And neither does Aaron Schock. [BuzzFeed]
* I can see how Budweiser buying Modelo raises antitrust concerns. But since it’s a potential monopoly over “crappy beer,” I don’t really care. [Dealbook]
* Sorry, but I don’t see Manti Te’o suing his
gay lover mean persecutor, Ronaiah Tuiasosopo. [The Volokh Conspiracy]
* If Hitler got royalties. [The Schwartz Report]
* The man suspected of shooting Arizona attorney Mark P. Hummels has been found dead. And after earlier optimism, Hummels is now not expected to survive. [ABA Journal]