Jacob Gersen

Podcast: Mischele Lewis learned that her fiancé was a con man and a convicted pedophile. By lying about who he was, did he violate her consent, and commit assault? Lewis’s story raises a larger question: What is consent, and how do we give it? ... Alondra Nelson, a professor of sociology and the president of the Social Science Research Council, explores this shifting of sexual norms with The New Yorker’s Joshua Rothman. They spoke with the legal scholars Jeannie Suk Gersen and Jacob Gersen, and with the facilitator of cuddle parties, who compares her nonsexual events to “going to the gym for consent.”

The Department of Education has been inundated with approximately 100,000 public comments on its proposed new rules for how campuses handle cases of sexual assault. ... Fighting these issues through agency regulations — once the domain of wonky lawyers — is something of a newer frontier in political activism. Harvard Law School Professor Jacob Gersen says most regulations still get just a smattering of comments — certainly not a hashtag campaign on social media. But it’s increasingly a part of political strategy.

...There is no doubt that until recently, many women’s claims of sexual assault were reflexively and widely disregarded—or that many still are in some quarters...Action to redress that problem was—and is—fully warranted. But many of the remedies that have been pushed on campus in recent years are unjust to men, infantilize women, and ultimately undermine the legitimacy of the fight against sexual violence...As Jeannie Suk Gersen and her husband and Harvard Law School colleague, Jacob Gersen, wrote last year in a California Law Review article, “The Sex Bureaucracy,” the “conduct classified as illegal” on college campuses “has grown substantially, and indeed, it plausibly covers almost all sex students are having today.”...In a 2015 article for the Harvard Law Review, Janet Halley, a Harvard law professor, describes a case at an Oregon college in which a male student was investigated and told to stay away from a female student, resulting in the loss of his campus job and a move from his dorm.

Dear Betsy: Even students who’ve been accused of sexual assault deserve the chance to defend themselves. Betsy DeVos is President-elect Donald Trump’s pick for secretary of education...In an information vacuum, all sexual assault cases look the same. As Harvard Law School professors Jacob Gersen and Jeannie Suk Gersen declared in the Chronicle of Higher Education earlier this month, “In essence, the federal government has created a sex bureaucracy that has in turn conscripted officials at colleges as bureaucrats of desire, responsible for defining healthy, permissible sex and disciplining deviations from those supposed norms.”

...you’d expect the Obama Department of Education to be doing whatever it could to nurture, support, and protect colleges and universities. But instead, it seems to be acting almost as if it were controlled by . . . a cabal of its enemies. For example, in the area of Title IX enforcement Obama’s Department of Education has taken a statute that simply reads: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance,” and turned it into an Orwellian nightmare of what Harvard law professors Jacob Gersen and Jeannie Suk call bureaucratic sex creep.”

An op-ed by Jacob Gersen and Jeannie Suk Gersen. Often with the best of intentions, the federal government in the past six years has presided over the creation of a sex bureaucracy that says its aim is to reduce sexual violence but that is actually enforcing a contested vision of sexual morality and disciplining those who deviate from it. Many observers assume that today’s important campus sexual-assault debate is concerned with forcible or coerced sex, or with taking advantage of someone who is too drunk to be able to consent. But the definition of sexual assault has stretched enormously, in ways that would have been unimaginable just a few years ago. Indeed, the concept of sexual misconduct has grown to include most voluntary and willing sexual conduct.

...What is an adequate solution for the dark and persistent threat of sexual violence on campus? And what should colleges and universities expect from a very different administration, headed by a president who has himself been accused of sexual assault?...But the Obama approach has its critics. Harvard Law professors Jeannie Suk and Jacob Gersen say it resulted in a “sex bureaucracy,” placing more and more ordinary behavior under federal oversight. And feminist legal theorist Janet Halley, their colleague who has contested the OCR's process in the Harvard Law Review, describes the “Dear Colleague” letter as a case of “administrative overreach.” Halley, who has participated in sexual-violence cases at Harvard, has had concerns about their fairness from the beginning. She took pains to say that she cares deeply about sexual assault, but she worries about an overcorrection, prompted by OCR, that moves universities from ignoring the rights of accusers to trampling on those of the accused.

An op-ed by Steve Ansolabahere and Jacob E. Gersen. In late July, President Obama signed a bill requiring some form of labeling of foods containing genetically engineered materials. The measure preempts state laws, like Vermont’s, that require different labels than those mandated by the federal measure. The law requires companies to disclose any genetically engineered materials, but does not require them to disclose that fact on the label or product itself. Rather, if companies choose, they can simply put a bar code or QR code that consumers could scan with a smartphone to retrieve the relevant information. Smaller companies would be allowed to include only a phone number that consumers could call to learn whether their food is genetically engineered. The call-me-later approach to food labeling is more than a bit unusual.

Op-ed by Jacob Gersen: ... [T]he federal government estimates that each year the average four-person household wastes more than two million calories, the equivalent of $1,500. Why exactly are we paying millions of dollars to throw away food? One answer—maybe the answer—is law. A mix of federal, state and local laws make it almost impossible to get food that would otherwise be wasted to those who could use it.

A federal lawsuit brought by states against the Obama administration marks the first major court test of its new policy that transgender students should be allowed to use the bathroom of their choice. On one level, the case is about whether civil rights laws that Congress enacted decades ago envisioned such protections of transgender rights. But underlying the complaint are also fundamental questions about the discretionary power of federal agencies, checks and balances and the difference between clarifying laws and rules and writing new ones...In a recent op-ed, Harvard law professor Jacob E. Gersen described it as an example of stealth regulation. “[T]his letter was one of those nonbinding documents. Yet it contains obligations that exist nowhere else in federal law,” the professor wrote.

A new "sex bureaucracy" is attempting a full takeover of young people's sex lives through moral strictures that trample free speech and the due process of law. In only the most recent symptom of this disease, a court recently ruled that George Mason University wrongfully expelled a student in 2014 -- for engaging in consensual sex with his girlfriend. ...A forthcoming paper to appear in the August issue of the California Law Review outlines "The Sex Bureaucracy," which Harvard Law School professors Jacob Gersen and Jeannie Suk argue is thoroughly regulating "the space of sex" in America. The "bureaucracy dedicated to that regulation of sex ... operates largely apart from criminal enforcement, but its actions are inseparable from criminal overtones and implications."

Fornication. Sodomy. Adultery. Not so long ago, the U.S. criminalized pretty much all sex outside of marriage. As these laws have been struck down by courts or allowed to settle into obsolescence, it would seem that sexual liberty has been vindicated as an important American value. But while the courts have been busy ushering the government out of our bedrooms, it's been creeping right back in under new pretenses. Gone is the language of morals, tradition, and orderr—the state now intervenes in our sex lives bearing the mantles of safety, exploitation, and sex discrimination. "We are living in a new sex bureaucracy," warn Harvard Law School professors Jacob Gersen and Jeannie Suk in an upcoming paper for the California Law Review. Contra court decisions such as Lawrence v. Texas—which decriminalized sodomy in Georgia and affirmed a constitutional right to sexual privacy—"the space of sex" is still "thoroughly regulated" in America, they write. And "the bureaucracy dedicated to that regulation of sex is growing. It operates largely apart from criminal enforcement, but its actions are inseparable from criminal overtones and implications."

An op-ed by Jacob Gersen. In the past several years politicians have lined up to condemn an epidemic of sexual assault on college campuses. But there is a genuine question of whether the Education Department has exceeded its legal authority in the way it has used Title IX to dictate colleges’ response to the serious problem of sexual assault...There’s a point to making the government jump through these hoops: By demanding transparency and facilitating public participation and judicial review, we can be more confident that the bureaucracy is up to good rather than ill.

“If we are so rich, why don’t we eat better food?” Asked by Harvard Business School Professor Gunnar Trumbull, this was one of many thought-provoking questions and intriguing concepts raised at a gathering that spotlighted the range of cross-disciplinary and collaborative food-related research being conducted across Harvard’s Schools...Jacob Gersen, Harvard Law School (HLS) professor and director of the Harvard Food Law Lab, discussed several questions around food labeling. Are labels misleading? Are they confusing or fraudulent? Do labels affect consumer behavior? And what should the law do in this area? Gersen is collaborating with government Professor Stephen Ansolabehere to use the national survey tool that Ansolabehere manages to better understand how consumers perceive food labels.