[KC Johnson and Stuart Taylor] Fairness and campus tribunals

We express our thanks, again, to Eugene for his invitation to blog, and to readers and commenters for reading our posts.

As our book shows, the procedures that most colleges and universities use in sexual assault cases are so structurally unfair to accused students — with some exceptions at big-money sports programs and religious schools — as to call into question the schools’ commitment to pursuing the truth. What can be done about this?

Two points to start. First, there needs to be an acknowledgment that a problem exists. If our book serves no other purpose, it documents dozens of cases — most of which have received little or no attention in the media or higher-ed circles — in which colleges have used unfair procedures to wrongly punish accused students. We have no reason to believe that the cases we’ve uncovered are isolated occurrences. Even Brett Sokolow, one of the stoutest defenders of the new campus regime (from which he has profited richly), has conceded that “almost all” of..

[David Post] On Gorsuch, Garland and inconsistency

President Trump’s nominee for the Supreme Court, Judge Neil Gorsuch, in Washington. (Melina Mara/The Washington Post)

On the merits of Judge Neil Gorsuch’s nomination to the Supreme Court, let me just add my voice to the choir: It’s both a very good pick and a very smart pick. Very good because Gorsuch has the qualities we want in Supreme Court justices: He’s thoughtful, smart and judicious, with a deep appreciation for the constitutional role of the judiciary within a system of separated powers, and a track record of real distinction on the U.S. Court of Appeals for the 10th Circuit. He has the potential to be an outstanding justice. He’s a very difficult nominee to oppose on any grounds relating to his qualifications to sit on the Supreme Court.

And that makes it a smart pick. The Democrats, and a fair number of our fellow citizens, were gearing up for a big fight on this one. My guess is that much of the fight has now been knocked out of them, and the big fight will not materializ..

[Eugene Volokh] Nancy Pelosi and gun control groups claim that Neil Gorsuch sides with ‘felons over gun safety’

Supreme Court nominee Neil Gorsuch on Feb. 1. (Joshua Roberts/Reuters)

PolitiFact (Lauren Carroll) reports:

President Donald Trump’s Supreme Court nominee favors felons over gun safety, says House Minority Leader Nancy Pelosi, D-Calif. …

“If you care about that for your children, he’s not your guy,” Pelosi said during a Jan. 31 town hall on CNN. “(Former Democratic Rep.) Gabby Giffords’ group, the group for responsible solutions relating to gun safety, said that he comes down on the side of felons over gun safety.” …

office sent us a press release that Giffords’ gun control advocacy group, Americans for Responsible Solutions, put out along with the Law Center to Prevent Gun Violence.

“In his time on the 10th Circuit, (Gorsuch) made repeated efforts to weaken the federal law that’s prohibited felons from possessing guns for the past 50 years, a law that has saved thousands of lives and enjoys near-unanimous support among Americans and elected officials on both sides of t..

[KC Johnson] Campus due process comments and responses

The quality of the commenters is one of the most enjoyable aspects of posting here. So, a few responses (R) to comments (C) below:

C: “Another facet of campus sexual assault that is rarely discussed is the strong evidence that young women are far more likely to be sexually assaulted if they are not students than if they are (look at the National Crime Victimization Survey). Even if campus tribunals were fair and accurate, any ‘solution’ that focuses on college campuses alone will neglect the vast majority of sexual assault victims; in fact, by removing rapists from colleges and placing them among non-student populations, this system endangers those who already suffer more. This argument should resonate among those who focus on equity, since policies targeting campus sexual assault benefit disproportionately wealthy and white populations at the expense of poor and non-white populations. This is another reason to use police and the courts for investigation, adjudication, and punishment,..

[Paul Cassell] Do crime victims have an interest in avoiding unreasonable delay in criminal appeals?

The “Contemplation of Justice” statue in front of the Supreme Court building in Washington. (Andrew Harrer/Bloomberg)

My friends at Arizona Voice for Crime Victims, represented by some very capable pro bono attorneys at Gibson Dunn’s Dallas office, just filed an amicus brief with the Supreme Court presenting an important issue concerning crime victims’ rights. The amicus brief explains that decades-long delays in capital cases cause significant harms to the family members of murder victims. The brief urges the court to grant the cert petition previously filed by the state of Arizona in a long-delayed capital case to explore whether these interests of the victims’ families should be considered when deciding how jurisdictional deadlines apply in capital cases.

Here is a streamlined summary of the facts, taken from the amicus brief.

On June 8, 1987, Theodore Washington brutally murdered Sterleen Hills. Washington shot Mrs. Hills at close range with a 12 gauge shotgun. He also shot Ralp..

[Eugene Volokh] Liberal UC Berkeley law professor Dan Farber on Neil Gorsuch

Supreme Court nominee Neil Gorsuch. (Drew Angerer/Getty Images)

From Politico’s mini-symposium on the Gorsuch nomination, an item by Professor Dan Farber, a noted liberal constitutional law and environmental law scholar (and one who, unlike me, has no longstanding friendship with Gorsuch):

Based on what we know so far, trying to stall Neil Gorsuch’s nomination seems wrong on principle. I say that as someone who fervently supported Merrick Garland and found the GOP blockade of his nomination appalling. It’s understandable that many Democrats think it would be only fair to return the same treatment. But I think it would be wrong.

I had never heard of Gorsuch until I read and blogged about one of his opinions that came down in July 2015. The case involved a challenge to a Colorado law mandating that utilities get at least 20 percent of their electricity from renewable energy sources. The specific issue was too esoteric to get into here, but the law was sufficiently unclear that a judge..

[Ilya Somin] Originalism, living constitutionalism, and outrageous outcomes

Harvard Law School Professor Cass Sunstein, one of the nation’s leading constitutional theorists, recently wrote a column arguing that consistent application of originalism might lead to a variety of “intolerable” results:

1. States can ban the purchase and sale of contraceptives.

2. The federal government can discriminate on the basis of race — for example, by banning African Americans from serving in the armed forces, or by mandating racial segregation in the D.C. schools.

3. The federal government can discriminate against women — for example, by banning them from serving in high-level positions in the U.S. government.

4. States are permitted to bring back segregation, and they can certainly discriminate on the basis of sex.

5. Neither federal nor state governments have to respect the idea of one person, one vote; some people could be given far more political power than others.

6. States can establish Christianity as their official religion.

7. Important provisions of n..

[Eugene Volokh] The anti-free-speech movement at UC Berkeley

Protesters watch a fire on Sproul Plaza during a rally against a scheduled speaking appearance by Breitbart News editor Milo Yiannopoulos on the University of California at Berkeley campus on Wednesday. (Ben Margot/Associated Press)

From the Los Angeles Times (Matt Hamilton, Teresa Watanabe & Peter H. King):

A speech by conservative firebrand and British writer Milo Yiannopoulos was canceled at UC Berkeley on Wednesday amid a violent protest that sparked at least one fire….

Witnesses said some windows were broken at the Martin Luther King Jr. Student Union, where Yiannopoulos was scheduled to speak at an event hosted by the Berkeley College Republicans.

The same thing happened last month at UC Davis….

In the weeks before Yiannopoulos’ planned Berkeley appearance, administrators received hundreds of letters from faculty, students and others demanding they bar him from speaking.

One letter from a dozen faculty members argued that his talk could be canceled on the grounds that his a..

[Eugene Volokh] Ninth Circuit battle: May Arizona deny driver’s licenses to beneficiaries of Obama’s Deferred Action for Childhood Arrivals program?

Thursday, a U.S. 9th Circuit of Appeals panel in Arizona Dream Act Coalition v. Brewer refused to reconsider its earlier decision striking down Arizona’s refusal to issue driver’s licenses to beneficiaries of President Barack Obama’s Deferred Action for Childhood Arrivals program:

DACA recipients are noncitizens who were brought to this country as children. Under the DACA program, they are permitted to remain in the United States for some period of time as long as they meet certain conditions. Authorized by federal executive order, the DACA program is administered by the Department of Homeland Security and is consistent with the Supreme Court’s ruling that the federal government “has broad, undoubted power over the subject of immigration and the status of aliens” under the Constitution.

In response to the creation of the DACA program, instituted a policy that rejected the Employment Authorization Documents … issued to DACA recipients under the DACA prog..

[Eugene Volokh] Judge Neil Gorsuch on libel law, the media and the Aryan Brotherhood

Judge Neil Gorsuch (European Pressphoto Agency/Shawn Thew)

I’ve been excerpting some of Judge Neil Gorsuch’s most interesting opinions so that readers can see for themselves Gorsuch’s writing style — and, perhaps, something of his jurisprudential approach. Here is much of the opinion from an interesting libel case of his, Bustos v. A & E Television Networks (10th Cir. 2011). I’ve excluded most of the citations, but you can see them (together with an interesting discussion of the “libel-proof plaintiff” theory) in the original case — for now, note that the opinion relies heavily on applying existing Colorado law (the relevant law for purposes of this case) and on law from other jurisdictions when Colorado law is absent:

Can you win damages in a defamation suit for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise? The answer is no. While the statement may cause you..