I'm not sure that anyone else writing on this bothered to read the actual decision, so I decided I would.

http://www.masslaw.com/signup/opinion.cfm?page=ma/opin/sup/1008707.htm

The case was decided by a unanimous opinion of the Massachusetts Supreme Judicial Court (the same people who brought you the gay marriage case, so this isn't exactly Neanderthal City). It was in an odd procedural stance, which was that after the mistrial, the defendant claimed his right to not be subject to double jeopardy was violated, which the trial court denied. He appealed to a single justice of the SJC, who sent the case to the full bench.

As a result, the "facts" cited in the Broadsheet article were taken as verities for the decision, so for purposes of their decision, they ignored that the defendant had testified that the complainant had in fact invited him to her room. Which might well be why the jury could not reach a unanimous verdict.

The decision itself is pretty unremarkable as legal opinions go. Basically, there is an old precedent in Massachusetts that fraud does not substitute for force, as has been required in the Massachusetts rape statute for 200 years, and the General Court (i.e., the legislature) has amended the rape statute three times since that case came down without changing the definition, even though other state legislatures (including the Michigan legislature, whose own decision on fraud/force had been followed in the earlier Massachusetts case) had changed their laws. As a result, the court wasn't saying a damn thing about public policy, it was simply interpreting the statute as written and inviting the legislature to do with it whatever it wants.

One thing that I would like to add is that whatever one thinks of the defendant's behavior (assuming the facts as the complainant alleged)--and they would be pretty despicable--there is an important principle of criminal law that you don't change the law against any criminal defendant without notice. I'm not saying this guy "knew" what the state of the law was in Massachusetts, but just as ignorance of the law is no excuse, ignorance of the law doesn't give the state the right to change it, making criminal behavior that was legal at the time it occurred. The principle protects us all, particularly when we have George W. Bush, Dick Cheney and Alberto Gonzales in office.

The article has not been peer-reviewed. It will apparently be submitted for peer review. Some peer-reviewed papers are published. Some are sent back for significant modification. Some are trashed. I don't know what will happen to this one, and neither do any of you. Frankly, giving a paper like this a whole lot of publicity before it is submitted for peer review strikes me as dirty pool, as though the authors were less confident that they would pass peer review and wanted to game the system to get themselves publicity and perhaps force the journal to take the article.

What sticks out to me in the article in the NYT is that two-thirds of the games were refereed by all-white crews, and only 3% by all-black crews. Thus, a game was 23 times more likely to be refereed by an all-white crew. Despite what someone said way up there, the expected differential between an occurrence of something that occurs 23 times more often than another condition is not zero.

Taking their statistics from box scores, the authors of the study missed a key fact: many fouls occur in the last minutes of a game and are purposeful (not "intentional", as that is a loaded term in the NBA). The player who fouls in the hope of a competitive advantage by getting the ball back (think "hack-a-Shaq") is not hoping to hide contact, but to be called for it as quickly as possible, to save time on the clock. On average, four of the five players on the court seeking to do this will be black. At a guess, I would think the ones who actually commit those fouls may be even more disproportionately black. Box scores or any statistical regression will not tell you that. And those fouls have nothing whatsoever to do with prejudice.

It's always interesting to see the arguments people make about the Constitution without ever reading it. For instance, there were those who strongly opposed the Independent Counsel law on the grounds that the Constitution only allowed the President to appoint civil officers, only there was this language in the Constitution: "but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments." Perhaps they all thought that was "quaint."

Then we had the idiots who claimed that the first Islamic member of Congress had to take his oath on "the Bible of the United States" despite this language in the Constitution: "but no religious test shall ever be required as a qualification to any office or public trust under the United States."

And of course we have Bush and his clucking cabal of sycophants all claiming that the President has some kind of sole power in connection with everything that the military does, notwithstanding the language granting to Congress the exclusive power "To make rules for the government and regulation of the land and naval forces."

Want some fun? Think about the CIA's accounts, which are hidden in the federal budget, and these words: "No money shall be drawn from the treasury, but in consequence of appropriations made by law; and a regular statement and account of receipts and expenditures of all public money shall be published from time to time."

Guy who claimed that the Constitution permits exceptions in its text? Where?