Wednesday, November 26, 2014
Collateral Consequences Resource Center Launches
I am pleased to announce that I and the other founding members of the Collateral Consequences Resource Center have launched a website. We hope the site will become a central resource for people with convictions, scholars, lawyers and policymakers who are interested in the effects of criminal convictions on civil rights, public benefits, family rights and opportunities for employment. If you come across a scholarly article, news story, case, or statutory or regulatory development related to collateral consequences that we should publicize, please send it to email@example.com.
When "protests" become "riots"
Tim's final post talks about Monday's protests turning violent and destructive (and the process being repeated on Tuesday) as a tipping point, in which public (and media) support and attention shifts away from the protesters. I do not know if we have hit that point. There is still much to sort out about what has been happening on the ground the past few nights. And it appears that many of the unlawful mistakes we saw in July (mass arrests of even peaceful protesters, arresting people for recording) are being repeated. And the number of sympathy protests across the country (many far more peaceful) may suggest a deeper level of support.
Nevertheless, Tim's point about public sympathy reminded me of Walker v. City of Birmingham (which I wrote about last week) and what it indicates about the connection between public speech and public support. The events in Walker occurred during Easter Week 1963, four months before the March on Washington, when the violent response to peaceful were entering living rooms--arguably at or near the height of public support for the movement. But the case did not reach SCOTUS until 1967 (argued in March, decided in June). By that point, we had seen the same shift in public support and sympathy away from civil rights protesters and the movement, given the increasing militancy in the movement, as well as public concern about riots (on race, the war, etc.) throughout the country.
Ferguson – What Now? (guest post)
This is the final post on Ferguson from Timothy Zick:
Monday night, peaceful vigils and other protected forms of protest were largely overshadowed by acts of violence and destruction. As headlines attest, the Ferguson “protests” have already been displaced in the news cycle by the Ferguson “riots.” The facts are still coming in, but by most accounts police were not the instigators. The commercial and other costs must be laid at the feet of the lawless, who engaged not in legitimate protest or demonstration but in petty and more serious criminal activities. While their frustration may be understandable, their actions were obviously neither wise nor constructive. The violence was not, as some have suggested, inevitable. Whatever their underlying causes or motivations, the riots were a choice.
There will be additional protests and demonstrations in Ferguson and elsewhere. Hopefully they will be vocal, but peaceful, events. The issues are worth demonstrating about. But as I wrote in my previous post, public sympathy will not be with the protesters forever. Last night may have been a tipping point. The media will focus on Ferguson for a bit longer, but the news cycle will inevitably find other conflicts and the press will move on. Many left behind will have expressed their outrage, or have been affected by the actions of those who did so. What will be the legacy of the Ferguson protests (past, present, and future)?
Osofsky on tax nonenforcement (guest post)
Tuesday, November 25, 2014
Heartbalm Torts Not for Kids
Depending on the state, there are several heartbalm torts that allow the brokenhearted to recover for their romantic troubles. Lovers--whether married or not--can sue in tort each other or a third party who caused a romance to go sour.
In a case of first impression in Mississippi, the minor children of a marriage invoked the tort of alienation of affection against their mother’s neck doctor, who engaged in an extra-marital affair with her that led to her divorce. Earlier this month, the Mississippi Supreme Court decided that children do not have a colorable interest in the alienation of one parent’s affections toward the other. But maybe they do, in light of the endless studies showing that two-parent households are better for children than one-parent households? Should there be a tort for ruining a child's happy household?
One Way Neuroscience Will Eventually Affect the Law
In two prior posts, I argued that the jury is still out as to whether neuroscience will radically alter our notions of criminal responsibility. I do, however, believe that technological advances in neuroscience will eventually have major effects on the law.
One promising area concerns the use of brain imaging to assess whether or not a person is genuinely in pain. A 2011 study from Sean Mackey's lab at Stanford used brain imaging to predict with about 80% accuracy whether subjects were in a state of pain or not. A 2013 study from Tor Wager and colleagues in the New England Journal of Medicine suggests that the technology has only become more accurate and versatile. More study is certainly necessary: I know of no studies yet on people who are deliberately trying to fool examiners; most studies focus on acute pain (from a hot piece of metal) and not chronic pain; and measuring amounts of pain is much harder than assessing whether a claim of pain is entirely malingered.
But there is good reason to believe that pain detection technology will continue to improve and eventually become at least a useful adjunct and perhaps someday a quite essential tool in court and administrative hearings. The technology will both help to filter out malingered claims (and perhaps highly exaggerated claims) and make it easier for people with genuine pain to provide more objective evidence. And unlike efforts to use brain imaging for lie detection, brain imaging for pain detection has more obvious medical uses, meaning that the technology might gain respect in the medical community in a manner that makes it more palatable for courtroom use.
If you're interested in learning more, I've written about the forensic use of brain imaging to assess physical pain here and to assess emotional pain here and here. Susannah Locke surveys some of the issues in this recent piece in Vox, and Amanda Pustilnik is exploring issues related to pain, law, and neuroscience here.
Narrowing Precedent and the Digital Fourth Amendment
My new paper, "Narrowing Precedent in the Supreme Court," is now posted online. (Thanks to LTB for publicizing it!) The basic idea is that the Supreme Court frequently narrows its precedents, including in "liberal" directions, and that doing so is often both legitimate and desirable. In this post, I'd like to make a prediction: in the near future, we are going to see a lot of narrowing in the area of digital surveillance and the Fourth Amendment.
Monday, November 24, 2014
Following the grand jury declining to indict Officer Wilson in the shooting death of Michael Brown, the Brown family released a statement specifically calling for a "campaign to ensure that every police officer working the streets in this country wears a body camera." Yes, give everyone a camera--but do not expect it to have as conclusive an effect as you think it will. Video likely would not have changed the grand jury's decision. Perhaps it would have made him less likely to shoot, but I think the deterrent argument is open to debate right now.
A couple things for crim law experts:
1) Is it the grand jury's role to weigh and select between conflicting evidence in deciding whether to indict? The DA made much of the conflict between the physical evidence and the testimony of witnesses, as well as the inconsistency between different witnesses and between statements by particular witnesses. But is that the issue for a grand jury determining probable cause? Or is that supposed to be left for an open trial on culpability? Is it typical for the prosecutor to point out those inconsistencies now? Or is that for defense counsel at trial? Here are two arguments on that, noting that the DA spoke of the grand jury's job as to "separate fact from fiction." Is that wrong?
Now, I know prosecutors often will not seek an indictment if they believe they have enough for probable cause but not to convict, in light of possible witness-credibility problems. But does witness credibility often suggest the absence of probable cause?
2) It seems to me the question is what evidence the grand jury heard showing that Brown posed a continued threat to Wilson. The rule seems to be that a police officer is entitled to keep shooting until the threat is over. It appears that Wilson fired ten shots at a distance (following two fired at close range). The question must be whether any of those initial shots incapacitated Brown.
3) How common is it for the target to testify before a grand jury? How common is it for defense counsel to allow a client to do so?
Three Ponies or Four?
Each state has child support guidelines that set a presumptively correct amount of child support when parents split. However, some states permit judicial discretion at the low- and high-income ends of the spectrum. I have previously written on the former, and next year I have a forthcoming Hofstra Law Review article on the latter. In it, I start to explore the extremely difficult question of what parents owe to their children when there is a lot of money on the table. One Kansas court has stated that three ponies are enough, even for the wealthiest of children. Others have argued that reasonable needs of the child are the limit, while yet others argue there is no limit. Some states use a percentage of income as a limit, which increases up to a certain income amount before decreasing. The child support guidelines, catalyzed by federal law, aimed to prevent these sorts of inconsistencies—but the question of fairness gets far grayer in high-income cases, leaving much room for debate.
The costs of public protest (guest post)
The following is another guest post from Timothy Zick (William & Mary).
Some of my First Amendment work has focused on highlighting the social, political, and constitutional benefits of public protests. Protests can also impose serious costs. Mass protests can be particularly invasive forms of contention. They disrupt routines, alter urban and other landscapes, and inconvenience entire communities. Some of these effects may actually make a protest more effective – unlike a pamphlet or this blog post, a mass protest cannot easily be ignored. Still, for those caught in its path, a public protest (or a prolonged series of them) can impose very real and significant costs.
Some of the costs of the Ferguson protests (past and anticipated), have received some media attention. Merchants are concerned that the prolonged state of unrest will harm their enterprises. Ferguson schools have been closed in anticipation of the grand jury’s decision. And there are the costs of policing the protests themselves, which can add up to millions (including the cost of any civil rights lawsuits and settlements, as New York City and other jurisdictions have learned). The psychological costs can also be significant. Living in an environment of daily conflict and protest policing can take its toll on communities. For example, many people seemed to lose patience with the Occupy protests – not just because of the tangible costs they imposed, but also owing to the emotional and psychological strain associated with long-term “occupation.”
Recognizing these costs does not diminish rights of free speech and peaceable assembly. Indeed, it places First Amendment rights in appropriate perspective. In general, we cherish and protect these rights despite their significant financial and other costs. We collectively accept these burdens as the price of expressive freedoms. We subsidize them, even when the distribution of costs sometimes seems unfair. (We also have the right to complain about this unfairness.) However, as protest organizers should know, there are limits to public tolerance. There is a point at which public support begins to wane and the effectiveness of public contention begins to diminish. Sooner or later, protesters will need to channel their outdoor energies to indoor political and other arenas. As Michael Brown’s father suggested in a video appeal to protesters, the time will come when protest will need to be translated into policy changes. To some degree, the mark of a successful protest movement is its ability to effect meaningful change. Protests have inherent worth. But the subsidies and sacrifices are all the more “worth it” insofar as they facilitate or produce something tangible, meaningful, and lasting.
Final Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"
Final Repost: The deadline is next Monday, December 1.
The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015.
It's That Time of Year
We're headed towards the end of semester--a time of year where I often find the first year students hitting the "rookie wall." On the plus side, it's around this time of year students will often put their creativity to work to spice up the classroom. Of course, my all-time favorite was this flash mob from the last day of my first year teaching Contracts. But this year provided some good fun as well.
As my students know well, I'm an obessive Giants fan (yes, I'm moping over tonight's loss). Last week, on the heel's of Eli Manning throwing five interceptions against the San Francisco 49ers, a student decided to push the envelope: he put up a sign on my classroom whiteboard that had a picture of the 49ers with the caption "Eli Manning's New Receivers." Well I responded as any good Giants fan would: I kept the student on call for about an hour, making him work through a wide range of hypotheticals involving complex contract damages calculations. Realizing his mistake, he found a creative way to ask for forgiveness (so creative that I told him I won't put him on call for the rest of the semester). The photographic evidence is above. And the video evidence is below. Enjoy!
Sunday, November 23, 2014
Judicial Elections and Historical Irony
Last week I was privileged to participate in a conference in New Mexico on the judiciary. The debates and assigned readings focused especially on judicial elections (a new issue-area for me). There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).
“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states. This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).
An Underwood (But Not Frank or Claire)
Everyone who knows me in real life knows that I can’t stop talking about my “new” 1930’s Underwood typewriter. It’s being shipped to me in time for the holidays, and it’s the first typewriter I ever bought. Lots of writers working today still use a manual typewriter (e.g., the bestselling author alive, Danielle Steel, uses an Olympia), so it got me curious. And, it’s obviously got no connection to the internet—which I view as a plus. Sure, it won’t be efficient for very long writing projects, and it’s impossible for law review edits, but occasional use oddly appeals to me. I’m probably not the only one here with a thing for typewriters?
Saturday, November 22, 2014
Just watch the video
This article explains. I have nothing to add--skip to 22:38, when the respondent's argument begins. Somehow, law professors are to blame for this.
Friday, November 21, 2014
DOJ weighs in
Seeming to share my sense of where the burden should lie, Eric Holder released video urging law enforcement and protesters to collaborate on plans to keep the peace should protests occur in Ferguson. He reminded protesters that historically successful movements have relied on nonviolence, while calling on police to seek ways to keep order while respecting constitutional rights. In addition, DOJ officials spoke with Missouri Governor Jay Nixon about the decision to declare a preemptive state of emergency, calling that an escalation of the situation that "sent the wrong message." DOJ also released a resource guide for policies and training on community policing and handling public protest (although it seems a bit late in the day for that).
This is a good reminder of the unique role that DOJ and the Attorney General can, and sometimes do, play in these sorts of localized conflicts, remaining above the simplified law-enforcement fray.
Teaching Copyright Law - Blurred Lines
"Blurred Lines," the summer hit of 2013, is the subject of a copyright dispute. The estate of Marvin Gaye claims that the composers of the hit song (Pharrel Williams, Robin Thicke, and T.I.) appropriated the song from the Gaye hit, "Got to Give it Up." Williams et all filed a declaratory judgment action, and moved to dismiss the Gaye family's counterclaims alleging copyright infringement. Last month, Judge John A. Kronstadt denied a motion to dismiss. The order interests me for two reasons. Here I focus on the first.
I used the "Blurred Lines" case last year as the basis for a memo assignment on substantial similarity in my copyright class. For those of you who don't think often about copyright law, proving infringement requires evidence of copying, which is usually inferred from 1) access to the original work and 2) substantial similarity between the original and the alleged copy. In this case, Alan Thicke said in multiple interviews that he and Pharell meant to write an homage to the Gaye song, so I let the students assume access. I tasked the students with summarizing the state of the law in the Ninth Circuit on protectable elements of musical composition, i.e., which elements in a song can be copied without triggering liability, and which elements cannot. I then asked them to opine on a likely outcome in the case. At the time, the report from a musicologist hired by the Gaye family had leaked via Hollywood reporter. There was no competing report from the Williams camp available at the time, so I invited a musicologist from across campus, Brian Gaber, to walk the students through differences in the two works of music as if he were advising Williams and his co-writers about the similiarity of the musical elements.
The students were nervous about digging into the similarities and differences in the musical composition (what the song would look like if you wrote it up in standard notation) and the sound recording (what the song sounds like). Some students expressed concern that classmates who knew something about music would perform better on the assignment than those who knew little or nothing. But I invited them to think of the assignment as an opportunity to learn about substantial similiarity in a musical context, and to develop the ability to teach themselves about a complex issue in the course of preparing for a case. This is a challenge that will face lawyers providing legal advice in any substantial similarity case. Handling substantial similiarity requires familiarizing oneself with the norms of an industry, and how common elements or scènes à faire (unprotectable stock elements) manifest in a given genre.
Now expert reports are available on both sides, at least if you access to PACER. I commend the case to you as a fun one, if you want to help your students dig deeply into substantial similarity in copyright law as it manifests in musical composition
“Clearly Established” Circuit Law in Good-Faith Suppression Cases
This week, I’ve been posting on the evolving connection between circuit precedent and “clearly established law” in both qualified-immunity and AEDPA cases. To round out the discussion, this post discusses related issues posed by a third doctrine: the good-faith exception to the exclusionary rule. Appropriately enough, the circuit courts themselves have recently had interesting things to say about circuit precedent in this area. The upshot is a remarkable convergence between qualified immunity and a rapidly growing exception to the exclusionary rule.
Thursday, November 20, 2014
My prayers and best wishes go out to the victims of the shooting at FSU for a speedy and complete recovery.
Tragically such shootings have become common enough that universities and schools must prepare and plan for them. A couple of years ago I attended an "active shooter" training lecture whose purpose was to prepare faculty and staff at my law school to respond to a situation involving an active shooter. According to that lecture, the active shooter is "considered the greatest terrorist threat on campuses." The shooter's "desire is to kill and seriously injury without concern for [the shooter's] safety or threat of capture." Although the shooter may have intended victims, he will accept "targets of opportunity" and will keep moving "until stopped by law enforcement, suicide, or other intervention." Here is a summary of the advice for faculty and staff in dealing with an active shooter situation: "Secure the immediate area. . . . Lock the door. Block the door . . . . If the shooter enters your room and leaves, lock the door behind them. If safe, allow others to seek refuge with you. . . . Stay quiet and out of sight. Put something between you and the shooter." The most chilling bit of advice, however, was the following: "We can no longer predict the origin of the next threat." No. No, we can't.
Zick on public protest and Ferguson
Many thanks to Howard for inviting me to weigh in on the events in Ferguson, Missouri. I’ll probably add just a few posts to his excellent commentary, depending on how things develop.
The conflict in Ferguson has presented a free speech moment – or series of moments. In addition to the much-discussed protests (more on that below), there have been several other First Amendment issues and concerns: advocacy of civil disobedience by some protesters, arrests for unlawful assembly, allegations that prior restraints have been used, arrests and abuse of the press, occupation of public places, use of “free speech zones,” and concerns about the propriety of Ferguson police officers wearing bracelets that express support for Officer Wilson. In short, there has been no shortage of First Amendment controversies following Michael Brown’s death.
Hoping to help Kickstart a notable new death penalty documentary
I have not posted here in a long time, but I am eager now to promote widely an important film project from some folks in London focused on modern US death penalty stories. I am partial to the project because one of my former students, Allen Bohnert, OSU Moritz College of Law grad ('06), is one key subject being documented in his role as current lead counsel in the long-running Section 1983 litigation over Ohio's lethal injection protocols.
This notable project is still in production, and the filmmakers are currently fundraising for financial support to help allow them to finish filming. The Kickstarter campaign is available here; lots of interesting items are available (such as signed copies of Bryan Stevenson's book, Just Mercy, one-off pieces of art and the film itself) for any donation over $25. I have been told that they will not be able to effectively finish this film without additional help for further funding.
The film itself is titled The Penalty, and it is to be a 90-minute feature documentary examining the current state of America's capital punishment system. While some other documentaries have focused on death row stories through the lens of condemned prisoners, this film looks more closely at people involved not on the row: lawyers, family members, politicians, campaigners, law enforcement, and others. A snippet from some filming so far is available at www.thepenaltyfilm.com
Rules of engagement, ctd.
In looking at the rules of engagement offered by leaders of potential Ferguson protests (calling themselves the "Don't Shoot Coalition") as a whole, the central question becomes one of defaults. The default, they argue, must be that this is a peaceful assembly and expressive event that police should allow to go forward without interference unless there is genuine indication of significant threats to public safety. And even then, the default should be that those threats are from individual lawbreakers, who should be dealt with, and not the demonstration itself or the great mass of lawful speakers and speech.
Of the 19 proposed rules, consider: # 16 (allow "every latitude" for free assembly and expression); # 15 (tolerate minor lawbreaking); # 14 (tolerate an expansion of the scope, size, or duration of the protest); # 13 (figure out alternate routes for foot and street traffic); ## 7-8 (not military gear or equipment--this is one the police flatly rejected); # 18 (no attempts to preemptively or pretextually stop protesters from organizing and beginning). This is not to mention more common-sense rules, such as be professional and don't use excessive force (# 17--we really need to state that rule?)
We can disagree over particulars. But the tenor seems right to me: Start from the presumption that this is lawful and deal with it when it isn't, rather than the other way around.
The Law's Position on Free Will
Will advances in neuroscience radically transform criminal law? Stephen Morse believes they won't. To the extent neuroscience merely gives us a fuller picture of brain mechanisms, he argues, it ought not affect the law because the law does not require us to be the ultimate physical cause of our behavior. Provided we have no excusing condition like insanity, the law deems us responsible for our actions because, Morse writes, “the law’s official position” is “that conscious, intentional, rational, and uncompelled agents may properly be held responsible.”
Morse defends a compatibilist view of free will. He believes that even if all of our actions are caused by our brains which in turn were caused by states of the universe before we were born, we can still be morally responsible for our actions. And some of Morse's writing imply the view that the law itself takes a compatibilist stance toward free will.
While the law is generally consistent with compatibilism, I argue that the law is also consistent with another view about free will that we can call soul-based libertarianism. On this view, we can be morally responsible for our actions provided that they emanate from non-physical souls. In other words, the law may treat our choices as somehow special, occurring outside the boundaries of the natural world. Indeed, the law was crafted over centuries with contributions from thousands of people. For a long portion of that history, lawmakers likely held some version of a libertarian view about free will.
Wednesday, November 19, 2014
Rules of engagement
One of the commentators on my earlier post asked what I would suggest as an alternative to calling out the National Guard. This is a start: Negotiations between law enforcement and protest leaders about "rules of engagement" in any upcoming protests following the grand jury decision. As Tim Zick described in his book, such negotiations have become a significant aspect of public protest, especially large, planned gatherings targeting specific times, places, and events. And while one would think that the First Amendment should be the only necessary rule of engagement, past events in Ferguson (and elsewhere) suggest that a clear body of rules, agreed upon and understood by all involved, might be a way to ease tensions from the start.
Unfortunately, one sticking point seems to be whether police will forego riot gear, armored vehicles, and tear gas in the first instance--in other words, police not working from a presumption that the gathering is a riot and protesters are combatants.
Say (French) Cheese
To comparative and EU copyright scholars, how is this possible—that the Eiffel Tower is copyrighted at night when lit up? I am having trouble buying the artwork argument, but I understand French copyright to be strict. I guess keep that in mind if you are headed to check out the Tower’s new glass floor for the holidays…
The Right of Law Professors to Petition for Redress of Grievances
Law professors spend a lot of time thinking about how the law should be, and writing it up for publication. My sense is that we spend less time actually trying to change the law to conform to our views of sound policy or justice. For scholars writing about matters governed by the Federal Rules, there is a mechanism to get your arguments seriously considered by experts. As I was poking around on the U.S. Courts website, I found that Professor Carrie Leonetti had asked the Advisory Committee on the Federal Rules of Criminal Procedure to adopt her proposal, published in the Southern California Law Review, to create a summary judgment mechanism for defendants in federal criminal cases when it was clear that an element of the offense was missing. Inspired, I wrote to the committee asking them to consider enacting into rule a proposal I raised in an article to generate pre-plea sentencing reports to avoid the common problem of people pleading guilty without knowing the sentencing range to which they will be subject. (I admitted in the paper as I do here that the idea originated with Judge Buckely of the D.C. Circuit). Now, both proposals were shot down--although the US Courts website, mistakenly, I believe, reports that proposals which have been ruled upon are still "pending consideration." But my proposal got a very serious hearing from the eminent reporters to the Committee, Sara Sun Beale and Nancy J. King. Here's the page describing how to submit a suggestion.
Tuesday, November 18, 2014
An AEDPA Sum Rev on Circuit Precedent and "Clearly Established" Law
Already, "clearly established" law is a clearly established theme of this term's summary reversals. I've been posting on recent qualified immunity cases, including the summary reversal in Carroll v. Carman. Yesterday's summary reversal, Glebe v. Frost, is an AEDPA case that touches on similar issues--with the significant difference that AEDPA expressly focuses on clearly established Supreme Court precedent. (Many thanks to Ronald Mann for pointing out this aspect of Glebe.)
You can't have it both ways
Fox News (yeah, I know) reports that the FBI is warning law enforcement officials nationwide that the failure of the grand jury to indict Off. Darren Wilson is "likely" to lead to violence. In particular, they are saying that police and property may be targeted and that there may be cyberattacks by people "exploiting" the event as a way to engage in unlawful activity. Of course, the FBI also "stressed the 'importance of remaining aware of the protections afforded to the all U.S. persons exercising their First Amendment rights of freedom of speech and freedom of assembly.'”
Sorry, but you cannot have it both ways. If you put law enforcement (and the national guard) on High Alert for attempts to undermine society, it is impossible for them to simultaneously remain aware of the First Amendment, for fear of guessing wrong. And since it is impossible to tell the exploiters from the exercisers, the only solution is to get everyone off the streets.
This does not end well.
Prior restraint: How far have we really come?
In a comment to my earlier post on the preemptive state of emergency in Ferguson, Steven Morrison asks whether an advance state of emergency and deployment of troops amounts imposes such an extraordinary chill on speech as to amount to a de facto prior restraint. I think the answer is no. But the point made me think.
In a current work-in-progress, I discuss Walker v. City of Birmingham, in which the Court held that the Collateral Bar Doctrine applied even to the First Amendment and even as to a blatantly unconstitutional injunction. Anticipating civil rights marches during Easter week 1963, officials in Birmingham got a state judge to issue an injunction that repeated, word-for-word, the text of the city's unquestionably unconstitutional permitting ordinance* and prohibited movement leaders from leading or encouraging marches without a permit. When the marches went ahead anyway, the leaders were jailed for contempt of court for violating the injunction. A 5-4 Court upheld the convictions, insisting that the long-held obligation with an injunction is to challenge the injunction directly or obey it (in this case by getting a permit).
* In dissent, Justice Brennan derided this process of converting an ordinance to an injunction as "inscrutable legerdemain."
So my answer to the question in the title of the post is that we actually are moving backward where public assembly and expression are concerned. As corrupt as the events and officials in 1963 Birmingham were, they at least went through the pretense of judicial process. Here, with the stroke of a single executive's pen, the possibility of protest--even without any genuine threat of unlawful behavior--has been declared an emergency and a threat to civil society, justifying deploying military force and turning Ferguson into a battle zone.
Can we really say this is more respectful of First Amendment ideals than what happened fifty years ago?
Common Law Creatures Roaming in Civil Law Countries
When I was visiting at Oxford recently, one thing that struck me was the dramatic interest in the trust in Europe and how many European scholars were studying and writing on trusts. This interest was catalyzed by the EU Succession Regulation, which goes into effect in August of 2015, making it easier for Europeans to plan across borders their property transfers at death. Under the EU regulation, there must be mutual recognition of legal decisions on succession throughout the EU. Additionally, European citizens may now choose between their nationality and residence as the applicable law to their succession. European member states will also need to develop laws that harmonize their laws with those of other member states.
All of this squarely implicates the trust. The problem, of course, is that trusts—used so frequently in England and the U.S.—are not fully recognized in civil law systems such as France. In fact, many civil law systems have trouble recognizing this kind of split in property ownership and have concerns that trusts lead to tax fraud and money laundering.
My forthcoming article, co-written with a French notaire, looks at this problem. We note that the French civil code lacked any form of a trust until 2007, which saw the introduction of a trust-like instrument called the fiducie. Since 2007, France has expanded its code relating to the fiducie and eliminated many restrictions on its operation. However, even with this expansion, the fiducie still may be lacking under the European Regulation on Succession. We conclude that the notaire (a highly specialized lawyer) can help develop and create the fiducie that harmonizes with common law trusts in order to avoid litigation.
Who knew we’d spot a common law creature—or close to it—in a civil law country?
Moral Panics and Body Cameras
That is the title of my new essay in Wash. U. L. Rev. Commentaries (and forthcoming in Wash. U. L. Rev.). The abstract is after the jump.
Obviously, I have been thinking about Ferguson quite a bit of late.
Lowe on American Legal History Since 1998
I quite enjoyed Jessica Lowe's article, Radicalism's Legacy: American Legal History Since 1998. An economical 12 pages, it surveys developments in American legal history scholarship in the past decade and a half or so, framing it around the continuing influence of Robert Gordon's famous piece Critical Legal Histories.
In Lowe's telling, much of the key work done since 1998 can be grouped into a few categories: "The first four dominated the field: legal pluralism, civil rights and rights consciousness, state-building, and citizenship. In addition, other scholars experimented with the construction of racial identity, often using the more ethnographical or narrative approach favored by critical race theory. Finally, senior scholars continued to produce more sweeping studies, often examining American law over the course of ambitious spaces or time frames."
Of particular interest to me is Lowe's discussion of the "totalized contingency," in Christopher Tomlins' terms, that emerged from later efforts to carry on Gordon's work. Quoting Tomlins, she writes:
The proliferation of contingency and indeterminacy had spawned a field full of studies emphasizing merely, as Christopher Tomlins termed it, "plurality." Not just legal pluralism, but something deeper, darker. Tomlins cautioned, "ultimately, totalized contingency is a deeply tragic form of subversion, for it does not discriminate in the paralysis it [metes] out. In undermining the authority of all narratives, it spares none, even those that may be most precious to the powerless, those whom we once desired to liberate."
Lowe herself draws a more ambivalent conclusion from this state of affairs, finding positive as well as negative possibilities in it. It seems like mostly good news to me. Unyoking the critical historical project from any particular political valence or mission, other than "contingency and indeterminacy," creates the possibility of all kinds of interesting critical and reconstructive work from a variety of political perspectives. Those may include conservative, religious, and illiberal ones, as well as the more conventional academic-left perspectives. This is how I read Steve Smith's valuable historical and theoretical writing on law and religion, which I have called an excellent example of "Conservative Critical Legal Studies." On the whole, this seems like an obviously positive development.
Regardless, Lowe's article is interesting, clean and clear, and a good source for key writing in the field of American legal history in the past 16 years. I recommend it enthusiastically.
The Misreading of Greene and Cohen
One of the most cited papers in neurolaw circles is For the Law, Neuroscience Changes Nothing and Everything by Joshua Greene and Jonathan Cohen. Many neurolaw scholars seem taken by its claims that we lack free will and that the legal concept of responsibility will eventually change to a more consequentialist system that does not depend on moral responsibility. What such scholars frequently fail to recognize is that the paper's claims about free will, while crisply and engagingly expressed, cover no new ground. They discuss positions long recognized and discussed by philosophers.
The paper's more significant contribution consists of a prediction. Greene and Cohen predict that as neuroscience continues to improve, we will more easily visualize the chain of causal connections between the physical world, our brains, and our decisions. It will be harder to hold on to intuitions of moral responsibility, they argue, as we start to understand ourselves as mere cogs in a universe that set our choices in motion long before we were born. As moral intuitions change, doubts about responsibility will grow, and those who craft the law will change it so that it no longer depends on increasingly dubious claims about responsibility.
Once the paper's predictive ambitions are clear and they should be to anyone who read the abstract, the central problem with the paper becomes easier to recognize: they offer very little evidence to support their prediction. I happen to be sympathetically disposed to the consequentialist world they envision. But will it come to pass for the reasons they give? The paper offers little reason to sway you. It depends on a variety of issues touched on by psychology, anthropology, religion, and more that receive little or no attention in the piece.
In Part I of my recently published paper, Will There Be a Neurolaw Revolution?, I describe some of the holes that need to be filled to support Greene and Cohen's prediction. Josh Greene tells me by email that their original paper was meant as a kind of informed speculation and that his ongoing research will flesh out the prediction. As I said, I'm sympathetic to his view and will be very interested to see how the research pans out. But in the meantime, the jury is out as to their prediction and should remain so for some time.
Monday, November 17, 2014
Inevitable conflict and the state of the First Amendment
This story reports on some planned protests in and around Ferguson when, as expected, a state grand jury declines to indict Off. Darren Wilson in the shooting death of Michael Brown. And this story reports that the governor has declared a state of emergency and called in the National Guard in anticipate of protests when, as expect, the grand jury declines to indict.
But those moves together make violent conflict inevitable. Ferguson was defined, in part, by the way in which militarized police behaved like soldiers in a war zone and reacted to potentially peaceful assembly accordingly. How can it possibly go better if the solution is to bring in actual soldiers? Moreover, note the governor's logic--the possibility of people taking to the streets to protest against a perceived injustice, absent any indication that things will turn violent constitutes a state of emergency warranting immediate activation and placement of the state's military force.
The First Amendment at least purports to recognize public streets and sidewalks as places that "time immeorial" have been reserved for expression. But the governor seems to believe that the possibility of streets being used for that "time immemorial" purpose is, by its nature, a threat to public order.
Update: Here is another take on it. And to answer a commenter's question: There has to be a way to be prepared and to take precautions that does not involve treating the possibility of protest as an emergency that threatens civil society. This type of response is virtually guaranteed to produce violence: "We're in a state of emergency, you're on the street, we're going to move you off the street by force." And now we have either 1) protesters resisting, triggering violence or 2) protesters peacably leaving, but not being able to exercise their constitutional rights to peaceably assemble and speak. Surely there must be some middle ground.
Should Circuit Precedent Deprive Officers of Qualified Immunity?
I recently posted on Carroll v. Carman, which assumed arguendo that circuit precedent could constitute clearly established law. My earlier post discussed some of the case law raising this important and fascinating issue.
In this post, I’ll discuss whether it makes sense for circuit law to deprive officers of qualified immunity.
I Can't Stop Thinking About Steven Salaita This Hiring Season
The Salaita case raises a number of issues of academic freedom and culture, but it also has significant implications for the pragmatic aspects of hiring. The rubber stamp at the board of trustees level has always been thought to be a formality, but now, clearly, it is not. And this will be true even if Professor Salaita wins his suit, because a school that wants to have a board review surely is capable of writing an offer letter to require one, even if he prevails on a claim that it was not clear enough here.
So what are the likely moves?