Apr 23, 2021Liked by Resident Contrarian

This is an excellent piece. At bottom, I think these issues boil down to burdens and what it takes to overcome them.

When evaluating current events, I tend to start with a basic proposition that the burden is on the accuser to prove his accusation rather than on the accused to disprove it. (In some sense, this proposition mirrors basic assumptions in court proceedings, both civil and criminal. I'm a lawyer, so I come by this ground rule naturally.) This allocation of burden seems self-evidently just, and the opposite seems self-evidently unjust.

The next issue becomes this: once the burdens are established, what level of proof does it take for the accused to rebut the allegations against him? For each person evaluating a story, it might be a different standard. And that standard might be different in evaluating one story to the next. One might reasonably adopt burdens ranging from prima facie, to preponderance-of-the-evidence, to (in extreme cases) beyond-a-reasonable-doubt. In assessing whether the accused has met his rebuttal burden, we might look at (among other things): each side's history and veracity; whether one side's account is corroborated by independent evidence; the biases of each side; each side's incentives, financial, moral, social, and otherwise; whether each party's account is consistently told; etc.

The problem is that many people now view those accused of certain behavior as bearing an impossible rebuttal burden. By that I don't mean that the burden is towering but theoretically scalable. I mean that the burden is literally impossible to meet. The accusation alone is conclusive proof of its accuracy. And any attempt by the accused or his defenders to rebut only supplies additional evidence in support of the accusation.

This is sad, it is cruel, and it is toxic. I hope the tide turns, but it may be naive to think it will.

As an aside, I couldn't resist pointing out this obviously absurd argument in the excerpt from the Rubenfeld critic: "On the one side, there are the 20% of college women who can expect to be victimized by rapists and would-be rapists; on the other side is a bunch of adult men (and a few women) worrying themselves to death that a few college-aged men might have to find a new college to attend…" So, you're telling me that "a few college-aged men" are actual or would-be rapists of 20% of the female college population? Good grief.

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Rubenfeld's home is also Chua's home though, right? We obviously don't know what happened, and I don't want to speculate, but we don't know this is about Kavanaugh and not an issue of something that happened to a student or students in their home.

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