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What Ezra Klein Gets Wrong About How Laws Work

Vox editor-in-chief Ezra Klein is a legal expert who doesn’t know what “substantive due process” or “preponderance of evidence” means.

You can go ahead and reset the “Days Since Vox Had A Lost Credibility Incident” calendar back to zero. Today’s lost credibility incident is brought to you by Vox editor-in-chief Ezra Klein.

Earlier this week, Klein wrote up a piece about how California’s new “Yes Means Yes” law is really terrible but don’t worry about it because sometimes you just have to make a human sacrifice to the volcano gods in order to keep everyone happy. “‘Yes Means Yes’ is a terrible law,” Klein wrote, “and that’s why I support it.”

As you read that sentence again, which you absolutely will because it’s so dumb upon first glance that you will assume you must have misread it, keep in mind that the motto of Ezra Klein’s new publishing house is, “The smartest thinkers, the toughest questions.”

However, since Klein’s first article in his “Yes Means Yes” series didn’t pack in enough dumb, he felt compelled to take another stab at the topic today. Klein’s title for that piece — “What people get wrong about the Yes Means Yes law” — is pretty funny, because what the article actually highlights is all the things Ezra Klein gets wrong about how laws work. He got stuff wrong that your average Judge Judy viewer wouldn’t get wrong.

What Ezra Klein gets wrong about preponderance of evidence vs. reasonable doubt

Everything. He got everything wrong. Here’s what Ezra Klein wrote (screenshot included for when Klein eventually gets around to stealth-editing his grade school ramblings):

The preponderance of evidence standard is a higher standard than is used in criminal trials.

Googling Things Is Really Hard

No. No. Dude. No. Stop it. The preponderance of evidence standard is absolutely not in a million years a higher standard than what is used in criminal trials. It’s the exact opposite. Proving something beyond a reasonable doubt, which is the standard in criminal trials, is a much higher standard than proving that something is more likely than not to be true. You don’t even have to have a legal background to understand that. All you need to understand is what words mean.

And even if you don’t understand what words mean, the Internet has this really awesome tool called Google that can go and tell you what words mean if you’re willing to take five seconds to double-check. Here’s what the very first Google result tells us when we search for “preponderance of evidence vs. beyond reasonable doubt”:

In the United States legal system, there are two standards of proof that must be met before the judge decides who wins a case. Civil courts use a lower standard of “preponderance of evidence,” while criminal courts use a higher standard of “beyond a reasonable doubt.”

Klein then rationalizes that this system should work really well for charges of sexual assault since it’s the same one colleges use to adjudicate charges of…plagiarism:

Plagiarism And Rape Are Super Similar You Guys

On what planet do charges of plagiarism, which is not a crime, and charges of rape, which is an extremely serious crime that could result in a lengthy prison term, demand equivalent treatments and processes? On what planet is spray-painting a wall equivalent to forcible sexual assault? We have juries rather than ad hoc co-ed councils to adjudicate guilt of serious violent crimes for a reason.

But that’s not all. Ezra Klein also completely mangled the concepts of due process and substantive due process.

What Ezra Klein gets wrong about due process and substantive due process

If you guessed “everything,” you win. Here’s what Klein originally wrote:

The Yes Means Yes law just doesn’t have much to do with substantive due process. Due process guarantees certain rights around most legal proceedings, like the right to a public trial and an impartial jury. But the Yes Means Yes law isn’t about legal proceedings. It doesn’t change criminal proceedings at all.

Dude. NO. As career attorney Dan McLaughlin noted on Twitter, “‘Substantive due process’ is a different thing from Due Process. Not just a hat for the nouns.”

Substantive due process and procedural due process are two completely different things. One reason we know they’re different is that they use different words (for people who consider themselves to be the smartest thinkers, different words are usually a key indicator of different meanings).

Due process basically says that the government can’t take your stuff without following certain procedures like fair trials. Substantive due process says there are things the government can’t take away from you no matter what. Due process asks whether the government followed all required procedures before taking away someone’s rights (like the right to stay out of prison). Substantive due process asks whether any purpose is sufficient, regardless of what procedures have been employed, to deprive someone of those rights. Now, even seasoned attorneys will tell you that precisely defining “substantive due process” is difficult (and many legal scholars argue that this is because it’s a doctrine without a basis in the Constitution), but the overall point is that “due process” and “substantive due process” are obviously different things with different meanings and significantly different implications.

It’s okay that Ezra Klein didn’t know the difference before he published his know-it-all piece on how laws work. It’s okay to not know things. What’s not okay is 1) pretending you know everything about everything, 2) refusing to double-check the things you think you know to make sure they’re not, oh, I don’t know, completely false, and then 3) telling the world that this completely false thing is actually true.

Look, I get that this is Vox, and that expecting basic fact-checking from a TMZ-style celebrity photo click farm is about as reasonable as expecting a full day’s worth of nutrition from a Pop Tart and a pack of Skittles, but come on. This isn’t that hard. It’s not like somebody asked Ezra Klein to tell us how old the Constitution is.

UPDATE: Klein has stated on Twitter and in a footnote to the article at issue that the “higher standard” line was “just a typo,” and that the “substantive due process” snafu was a “copy mistake” and he totally knew what he was talking about you guys:

Here’s the full text of the correction on Klein’s piece as of 4:55 p.m. EST (who knows how many more times it will be updated):

Corrections: There were two sloppy copy mistakes in this piece. First, an initial version of the piece used “substantive due process” rather than, as intended, “procedural due process”. Also, in the section explaining why civil and college courts don’t use the tougher, “beyond a reasonable doubt” evidentiary standard used in criminal cases, I accidentally wrote that “preponderance of evidence is a higher standard” when I meant lower. That’s been corrected, and the rest of the section remains accurate on that point.

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