Public Interest Advocacy

Parents Arrested for Unsupervised Children: The Rest of the Story

Boy on ScooterI am always outraged by the stories of parents arrested for allowing their children to play in ways that earlier generations considered routine. But a recent court decision reminded me that the story is not always as clear as it first appears. Tammy Cooper made headlines when she sued over her arrest for leaving her children unsupervised. She said, “I took my lawn chair and put it on the sidewalk where I always sit and watch them outside when they’re playing." Nevertheless, a neighbor reported that the children were unsupervised and a police officer charged Ms. Cooper with child endangerment.

A recent court opinion, however, sets out a different scenario.

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Bad Science Makes Bad Policy on Campus Rapes

Campus PredatorThe federal requirements for responding to campus rape has garnered much criticism for lack of due process, presumption of guilt, and discrimination against men.  Recent reports indicate that it also is based on bad science.

The marquee study of campus assaults is the 2002 study by David Lisak and Paul Miller.  Dr. Lisak has built a career on his subsequent claims that 90 percent of college rapes are committed by serial rapists who cannot be educated about consent. He says flatly, “These are predators.”

That study and Dr. Lisak’s claims have driven the government’s policy about campus rape. President Obama’s memo announcing his new initiative to combat campus rape cited Dr. Lisak’s study numerous times. Senators are pushing federal legislation based largely on Dr. Lisak’s claims. Activists and journalists demand action to stop campus predators. New studies and investigations of Dr. Lisak’s study, however, indicate that many of those predators do not exist.

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3d Circuit Wyndham Decision Will Be Counterproductive

The 3d Circuit Court of Appeals in Federal Trade Commission v. Wyndham Worldwide Corporation, in a decision filed August 24, 2015, ruled that the Federal Trade Commission (the "FTC") by virtue of Section 5 of the FTC Act, has jurisdiction over the data security practices of corporations that collect and use the personal data of their cases.

Consumer advocates have celebrated the case as a win for consumers. I fear it will have the opposite effect.

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Trigger Warnings are Anti-Science

Trigger WarningsAs a former social worker and foster parent for sexually abused children, I have been bemused by the current craze for "trigger warnings" in higher education.  Supposedly designed to protect trauma victims, the practice, augmented by "safe spaces," has morphed into an all-encompassing security blanket.  Some university professors have criticized it as "at once infantilizing and anti-intellectual," while activists forecast a dire effect on free speech rights. Others defend the practice as simply good manners.

Political arguments aside, the belief in the need for trigger warnings has no basis in social science or psychology.  In fact, like many practices rooted in ideology, it is deeply anti-science.

The purpose of trigger warnings, according to defenders such as Amanda Marcotte, is to "attempts to reduce the chances of causing unnecessary pain to people with mental health issues."  Jeet Heer at the New Republic finds its roots in the vision of post-traumatic stress disorder (PTSD) as memory of the trauma "lying just below the surface of consciousness, ready to be triggered."

This view of painful memories, however, simply does not take into account how PTSD and stress work, and is based more in well-meant superstition than scientific evidence.  The fact is that continually shielding victims from reminders of their trauma simply makes them weaker.

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Prosecuting Sheldon: Expanding Affirmative Consent

Sheldon: Baffling, right? We were necking like a couple of hooligans under the school bleachers. I stopped so I could ask the question. Next thing I know, good-bye, kissy face. Hello, yelly face. -- "The Big Bang Theory"

The prestigious American Law Institute (ALI) is considering an unprecedented expansion of its influential Model Penal Code relating to sexual offenses. The current draft would apply to everyone the bizarre "yes means yes" affirmative consent standard that the federal government has required colleges to adopt. The main author of the ALI draft, Professor Stephen Schulhofer, also has been tasked with recommending similar changes to the Uniform Code of Military Justice.  The draft substitutes the ideology of the moment for the due process protections that we have enjoyed for 800 years, and the brunt of it will fall on children and socially awkward adults.

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The 2016 PAC Problem: To go Super or Hybrid?

In the summer of 2011, the little known D.C. District Court case, Carey v. FEC, ushered in the era of the Hybrid Political Action Committee. The upcoming 2016 election marks the first presidential election in which these Hybrid PACs will be able to participate on a full scale.

Hybrid PACs, much as the name suggests, are a crossover between the traditional PAC and the now infamous Super PACs. The landmark Supreme Court case of Citizens United paved the way for the Super PAC entity, which, unlike the traditional PAC, has no spending or contribution limits for its political activity. The caveat, of course, is that the Super PAC cannot coordinate with any candidate for federal office and may only make “independent expenditures.” Traditional PACs, by contrast, can donate directly to candidates, but are subject to federal election contribution and expenditure limits.

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Tomorrowland and the Causes of Poverty

TomorrowlandDisney’s Tomorrowland is a great piece of family entertainment that I would encourage for families with elementary school children. It's visually exciting and promotes imagination and optimism as solutions for the world's problems.

The plot stumbles a little, however, when it tries to explain the root causes of the problems it finds in our world. While Tomorrowland seems to endorse technology as a panacea, reality requires a more nuanced approach. In fact, some of the world's problems are the result of technology. Solutions to those problems may require more work in the area of ideology and governance than in the infusion of more technology.

[Spoiler Alert: The text which follows contains some discussion of the movie's plot.]

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Mind the Signs

Local governments will want to re-examine their sign ordinances and codes over this coming summer. Why? Because by the end of June the United States Supreme Court will be issuing an opinion in Reed v. Town of Gilbert, a case that challenges a town’s regulation of signs. 

Gilbert’s Sign Code

The Town of Gilbert enacted a sign code. It required a permit to place signs within town limits except for exempted political, ideological, or temporary directional signs that fit within size, number, duration, and location requirements. The requirements changed depending on the signs’ category of exemption. For instance, exempt directional signs pertaining to a qualifying event could be no greater than six feet in height and six square feet in area, while exempt political signs could be as large as 16 square feet on property zoned for residential use and up to 32 square feet on property zoned for nonresidential use, undeveloped Town property, or rights-of-way.

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Thinking About Sending a FOIA Request? Get Ready for Delay, Frustration and Perhaps, a Fight

Our firm represents a public interest organization that over one year ago sent a Freedom of Information Act (FOIA) request to a federal agency. After numerous letters stating that the agency needs additional time to respond, not a single document has been produced and our client is still waiting for any kind of substantive response.

FOIA has been the law of the land for decades having first been passed by Congress in 1966. The current law requires that, upon receipt of a FOIA request, the federal agency has 20 business days to decide whether or not to respond. If the agency delays or decides to withhold records, the requesting party can bring an action in federal court to compel disclosure. In such actions, the presumption is in favor of disclosure and the agency bears the burden of proving that withholding documents is warranted.

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Social Media Copyright Hoaxes, Warnings and Policies

In recent times, many Facebook users have posted a message to their accounts purporting to reclaim ownership in the copyright in their Facebook content. Variations of this message have floated around for years, but the latest looks something like this:

“In response to the new Facebook guidelines, I hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, professional photos and videos, etc. (as a result of the Berner Convention). For commercial use of the above my written consent is needed at all times!”

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