Saturday, February 13, 2016
Does Donald Trump Have Standing to Keep Ted Cruz off of the Ballot?
The other day Donald Trump claimed, on Twitter, that he has standing to challenge Ted Cruz's eligibility to be president. The substantive question revolves around whether Cruz is a "natural born citizen" because he was born in Canada.
Rick Hasen, who should always be trusted when it comes to matters of election law, suggests that Trump would have standing based on the notion of "competitive standing": in essence, Cruz's (improper) appearance on the ballot makes the election more competitive for Trump. Trump is therefore injured by having to run a campaign against an opponent who might not be eligible for the office.
I'm not convinced.
Good News for Long-Winded, Caveat-Spewing Canadian Legal Bloggers
A fun and interesting article about how to change people's minds, based on a study by Cornell researchers titled "Winning Arguments: Interaction Dynamics and Persuasion Strategies in Good-faith Online Discussions." A couple of findings: The researchers "find that longer replies tend to be more convincing, as do arguments that use calmer language," and "they find that hedging – using language like 'it could be the case' – is actually associated with more persuasive arguments. While hedging can signal a weaker point of view, the researchers say that it can also make an argument easier to accept by softening its tone."
Friday, February 12, 2016
A Comparative Critique of "The Ultimate Unifying Approach to Complying With All Laws and Regulations"
In the new Green Bag, Daniel Solove and Woodrow Hartzog have an article titled "The Ultimate Unifying Approach to Complying With All Laws and Regulations." It's described here. This is the SSRN abstract: "There are countless laws and regulations that must be complied with, and the task of figuring out what to do to satisfy all of them seems nearly impossible. In this article, Professors Daniel Solove and Woodrow Hartzog develop a unified approach to doing so. This approach (patent pending) was developed over the course of several decades of extensive analysis of every relevant law and regulation."
As with Orin Kerr's A Theory of Law, the fun lies largely in its brevity and in the slight surprise involved in clicking through to the article. (This also means that people who want to get the joke have to download it from SSRN, at least for now and until now. It already has over 1,500 downloads.) I honor that here by offering the standard "SPOILER" alert here and continuing after the jump, where I reveal the approach, take it seriously, and critique it at slightly greater length than the article itself.
The Borders of Black History
Black history is often regarded as primarily a matter of race or skin color, whereas Latino and Asian American history are about borders. But I tend to think that borders have played an important role in African American history too: the plethora of borders surrounding Colonial and Ante-Bellum America across which enslaved Americans could escape was a fear in the United States as much as in Jamaica and the other slave territories. Enslaved Americans fleeing across the North-South border marked by the Mason-Dixon line and always free and emancipated African Americans kidnapped and taken south across that border thanks to the Fugitive Slave Act.
That border (or something like it) and another persisted after emancipation and through segregation: the Great Migration north, across the former Mason-Dixon line, and another migration west, to what Ralph Ellison called “the promised land” of “Indian Territory,” some of which is Oklahoma. The response was a series of violent white-on-black “pogroms” that swept through the Mid-West—East St. Louis, Chicago, Omaha, and Greenwood (Tulsa), Oklahoma. I’m most familiar with the last of these, having had the amazing fortune to have met some of the survivors of the 1921 Tulsa Race Riot—at the time the youngest was 82 and the oldest 101. And what strikes me most about that case (I just presented a talk about it at my daughter’s school today) was the treatment of these thousands of internal migrants, burned out of their houses, 3,000 of whom fled the city, the other 2,000 of whom were forced to camp out the autumn and winter in Red Cross tents; and the misuse of a Grand Jury to indict African American community leaders, while the police and 500 armed and deputized white rioters got off scot free.
Thursday, February 11, 2016
Judicial supremacy and professional responsibility
The ethics complaint filed against Texas Attorney General Ken Paxton last summer will proceed to a State Bar investigation. (H/T: Josh Blackman) The complaint stems from a letter Paxton sent to county clerks in the wake of Obergefell, suggesting clerks and justices of the peace may have a religious exemption from issuing licenses or performing marriages to same-sex couples and that they may be able to assert those requests for exemption.
One of the challenges to the model of departmentalism I have been advocating (what Richmond's Kevin Walsh calls "judicial departmentalism") is the many doctrines that reinforce judicial supremacy. State bar regulations appear to be one of them, if this complaint against Paxton goes anywhere. The explicit problem, according to the complaint, is that Paxton ignored Obergefell and the (supposed) supremacy of SCOTUS's interpretation of the Constitution; his legal advice thereby ran afoul of several rules of professional responsibility. In fact, Paxton expressly acknowledged that any clerk or JOP who did this would almost certainly be sued, held liable in light of SCOTUS (and 5th Circuit) precedent, and subject to an injunction that would bind them. He simply recognized the need for that additional step. But that is not good enough; because it is "emphatically the province and duty," etc., an attorney, even one for the State, cannot give advice contradicting such judicial declarations. If this is what the regulations mean, they leave no room for departmentalism or for independent constitutional judgment in non-judicial actors; they instantiate judicial supremacy as the sole understanding for all attorneys, public or private.
On one hand, that could be permissible and appropriate. If a state legislature wants to establish judicial supremacy as the guiding principle for its attorneys, (so that, for example, the obligation to not advise a client to disobey a legal obligation includes obligations established in judicial decisions to which the client is not a party), it can do so. On the other hand, the automatic acceptance or presumption of judicial supremacy into the rule, without more, seems difficult to square. And somewhat unfair to impose without further warning or clear statement.
As I have documented in my last two posts here and here, at some agencies, commercial FOIA requesters dominate the landscape, having found a wide range of uses for records they obtain under FOIA as part of their profit-making enterprises. In this post, and as I describe in my forthcoming article, I want to talk a bit about the implications of commercial requesting for FOIA’s original democracy-enhancing purpose. In general, I believe the volume and character of commercial requesting expands the role for private enterprise in capturing transparency resources and regulating government transparency and, correspondingly diminishes the role of transparency for the public good.
First, government is massively subsidizing corporate requesting. My data suggests that agencies are often recouping only between about one and five percent of the cost of processing commercial requests by charging fees to those commercial requesters. And the raw numbers are not small. For instance, FDA spent about 33 million dollars in a year on FOIA processing, and if three quarters of its requests are commercial, that would translate to approximately 26 million dollars on commercial requesters. By contrast, it recouped only $327,000 in fees from commercial requesters. As we saw, commercial requesters are making huge profits off of the government’s give away of essentially free or extremely low cost federal records, making this simply a form of corporate subsidy.
Wednesday, February 10, 2016
Ferguson consent decree falls apart, DOJ sues
The proposed consent decree between DOJ and the City of Ferguson has fallen apart, after the City Council on Tuesday night approved the deal, but demanded seven changes to the deal, mostly involving extended deadlines and limits on costs. DOJ wasted no team in filing a civil action today, alleging patterns and practices of various police abuses, in violation of § 14141 (via the First, Fourth, and Fourteenth Amendments) and Title VI. The complaint contains all the things we already knew from earlier DOJ reports.
I am somewhat surprised DOJ jumped to a lawsuit so quickly, rather than trying a bit of additional negotiation. My guess is DOJ was ticked that the Council would undermine seven months of negotiation in single night. Life imitating art imitating life?
Will we see criminal charges for what happened in Flint?
I guess we will find out eventually, since Todd Flood, the lead state investigator tasked with investigating Flint's water scandal, says his team is working intently to determine, among other things, if any crimes have occurred. This article says that investigators have not ruled involuntary manslaughter charges out of the question, although I would think proving causation would pose some challenges for prosecutors. (Flood compares the water crisis with the situation where, due to someone's gross negligence, a manhole is left uncovered and a victim falls through it and dies.) I'm all for imposing sanctions on the officials who caused this terrible crisis, but I worry that Flood may be setting expectations too high.
Where do Republicans go?
The refrain among Democrats, liberals, and progressives on the eve of a presidential election is always "If [insert Republican candidate] wins, I'm moving to Canada." (Dahlia Lithwick offers guidance).
Where do Republicans and conservatives threaten to go if Bernie Sanders wins?
Kim Davis update
Judge Bunning of the Eastern District of Kentucky yesterday denied as moot the ACLU's motion to enforce the injunction against Kim Davis. The plaintiffs had requested that the court order the deputy clerks to issue the non-Kim-Davis-altered licenses, reissue the adulterated licenses, and order the deputies to ignore Davis's orders to issue any other type of license. But the court found that: 1) licenses are issuing to anyone who wants them; 2) Davis is not interfering; and 3) "there is every reason to believe" the altered licenses would be recognized as valid.
I suppose this is all the right outcome, although the court's ready assumption that these altered licenses are valid may be a touch presumptuous. We have no idea what an opportunistic litigant (say, in a future divorce or custody case) and rogue state-court judge might do with a marriage based on one of these licenses. Still, the Liberty Counsel's insistence that the ACLU wanted Kim Davis's "scalp" is just silly.
Race and the Law Prof Blog on Alternative Constitution Day
While I'm plugging stuff... the Race and the Law Prof Blog is hosting a blog-symposium on Alternative Constitution day, that is, on the idea that along with (or even instead of) celebrating September 17, we ought to be celebrating the refounding represented by the Reconstruction Amendments, and their renewal of the Constitutional promise of equality for all. There's still an opportunity to submit posts, and there are a number of existing posts. Here's mine (which is unsurprisingly about the rule of law and its relationship to racialized police as well as private violence), but I like the others better---particular can't-miss posts (among many) include Saru Matambanadzo's post on personhood, Craig Jackson's on social rights, and Nancy Leong's thoughtful critique of free speech absolutism. But go read them all.
Tuesday, February 09, 2016
Baby Blue and Copyright Overreaching, OR: Don't Make Me Embarrassed to be an HLS Alum, People, Like For Serious.
For those of you who don't know, there's a fight brewing about the Bluebook. Not about the fact that it's awful (though it is), but about overreaching copyright claims the Harvard Law Review appears to be making in connection with it---claims that are, frankly, making me embarrassed to be an HLS alumnus. (Though not ashamed, because I was never on law review. Thank goodness.)
In this post, I want to tell you about an open-source effort to free the Bluebook, and about what you can do to help inflict enough social pressure on the HLR to make it actually possible.
Three-Judge Courts and Precedent: An Election Law Procedural Quirk
Must three-judge federal district courts follow the law of the circuit in which they sit?
Three-judge district courts are an anomaly, used mostly in certain election law disputes such as statewide redistricting claims and some campaign finance litigation. In these cases, the initial single judge refers a qualifying case to the chief judge of the circuit, who will constitute a three-judge district court. (The Supreme Court clarified, this term, that the single judge may not consider the merits, but must refer all qualifying cases to the chief judge for the creation of a three-judge district court.) The chief judge assigns a circuit judge and two district judges to serve as the three-judge court. The court sits like a normal trial court, making findings of fact and conclusions of law. Decisions of this court are appealable directly to the U.S. Supreme Court, skipping the court of appeals stage. Congress created this procedure for cases that will uniquely benefit from faster resolution and multiple minds at the outset, as the decisions are often seen as less biased and more legitimate. (For more on this process, see my article The Procedure of Election Law in Federal Courts.)
Sometimes, these courts face questions that the circuit court in which they sit have already decided. A circuit court ruling on a particular point of law would be binding on a single district judge. Are these appellate decisions also binding precedent on a three-judge district court? Although most three-judge district courts have said that they must follow circuit precedent, they are wrong. I explain why after the jump.
The FOIA, Inc. Industry
In my last post, I explored the mismatch between the intended core users of FOIA—the media—and the makeup of the requester population at some agencies as primarily commercial enterprises. In fact, as my forthcoming article details, commercial requesters have found a multitude of uses for government information. Businesses use FOIA to get information about their competitors, lawyers use FOIA both to get information useful to their current clients but also to obtain information useful to recruiting clients (for example, potential drug and medical device claims), and businesses use FOIA to get information they then use for their various consulting, advising, and publishing ventures.
Companies that provide due diligence services are another group of frequent commercial requesters. For example, at EPA, almost all of the most frequent commercial requesters are companies that evaluate environmental risks for business clients prior to real estate transactions. Likewise, at SEC, many of the most frequent requesters are due diligence firms that provide reports prior to initial public offerings, mergers and acquisitions, and other business deals, for which they seek any information that might suggest a regulatory risk or investigation of the target company.
And finally, there is a group of frequent commercial requesters that most interested and in some ways surprised me, and that was the proliferation of a category of businesses I classify as information-resellers. These are businesses that request large volumes of records from the federal government and resell them, at a considerable profit, to private parties.
Monday, February 08, 2016
Metaphysical Fourth Amendment question: how long could a tiny ATF agent sit atop a telephone pole?
Today the Sixth Circuit handed down a notable opinion squarely addressing the question, reserved in United States v. Jones, 132 S.Ct. 945 (2012), of how many ATF agents can fit on the head of a telephone pole whether longer-term surveillance by law enforcement infringes on a reasonable expectation of privacy—thus triggering Fourth Amendment protection.
The majority held that the ten-week recording of several residences at a rural Tennessee farm, from a camera mounted on a public utility pole, did not infringe on the resident’s reasonable expectation of privacy. District Judge Thomas Rose, sitting by designation, disagreed in a partial dissent.
The Best Time To Submit Is Precisely 10:40 on Feb. 23
The Yale Law Journal just released some interesting statistics about the submission season for the past 3 years. Some highlights:
- In the aggregate, the heaviest week of submissions is Feb. 15-21. The second heaviest is Feb. 22-28
- The number of submissions in early- to mid-March is still significant
- A majority of offers are made in "March or later"
- Submitting too early can hurt your chances, at least if you are not giving them an exclusive window of a couple of weeks and another journal makes an offer first
So if you don't plan to submit for a few weeks, cease your angsting, at least for now. (If you really feel the need to angst, head over to the Angsting Thread About Angsting Threads).
Also relish in the fact that, with 16-20 pieces per Volume, you have about a 0.08%-0.10% chance of landing a spot! That's better than the Powerball!
And now back to writing about election law. I'll see you soon.
[Update: Precisely one minute before I submitted this post, Richard posted a much more thorough and thoughtful analysis of the Yale Law Journal's data. So go to his post if you want some real substance on these issues.]
Yale Law Journal Posts Submission Data
Today, the Yale Law Journal posted an interesting report entitled “Journal Releases Guidelines and Data on When To Submit Articles and Essays.” The basic empirical showing is that "the spring submissions cycle is increasingly front-loaded, with a growing percentage of pieces submitted in the first half of February."
If you give an academic a cookie, or data, he’s likely to ask for more. Perhaps the most important sentence in the YLJ report is the most cryptic: “[O]f the dozen or so publication offers that the Journal makes in the spring cycle, historically a majority have been made in March or later.” Does “historically” mean to encompass only the last few years? And, do the March offers tend to result from mid- to late-February submissions? That information would shed light on whether the timing of a submission affects acceptance.
That said, the report does raise the possibility that early submissions may be disadvantaged. The report raises this point by noting that one “downside” of early submission is slower review. According to the report, “The front-loaded cycle places a significant strain on the Articles & Essays Committee.” This statement seems to assume that a “front-loaded cycle” is one in which most submissions are in February. While submission levels seem quite high in early February, they get even higher in mid to late February. So, to avoid the asserted rush, it would seem necessary to submit in March – by which point, other journals may have filled valuable spots.
Saturday, February 06, 2016
Flint and Minoritarian Fiscal Illusion: Will Republicans and Libertarians Stand Up and Cheer for Governmental Liability?
There has been a longstanding debate in legal academia about whether government is really afflicted by "fiscal illusion" -- that is, the illusion that governmental officials care mostly or only about costs affecting the fisc and, therefore, will impose inefficiently large private costs on individuals if these private costs are not reflected in budgetary outlays. The theory was initially championed by advocates for a robust doctrine of regulatory takings, and it was rooted in a simple political economy of majoritarian politics (set forth, for instance, by Blume's, Rubinfeld's, and Shapiro's 1984 article): If most voters benefit from a regulation that imposes costs on a small number of landowners, then politicians responsive to the majority will ignore the costs to gain the benefits.
Since Daryl Levinson's classic 2000 article, Making Governments Pay, however, scholars have been going short on fiscal illusion. As Daryl notes, damages against private organizations might deter their officers, because officers care about maximizing stuff like share price, and shareholders can sell in a liquid market. But why should anyone believe that a majority of voters can overcome collective action problems to force politicians and bureaucrats to protect the public treasury or maximize majority-benefiting regulations? Why will not these public agents betray voters by paying off influential landowners, public employee unions, or contractors at public expense? Efforts to confirm empirically the existence of a fiscal illusion have not been especially encouraging. (See, e.g., Y.C. Chang's sophisticated empirical study of Taiwanese officials' decisions regarding compensation and property assessment and Bethany Berger's a more recent argument that politicians' incentives to increase the yield of ad valorem property taxes will protect against fiscal illusion).
Fiscal illusion, however, need not be based on a majoritarian theory of politics in which a mob gangs up on the lone landowner -- a theory that is perhaps unrealistic outside of a smallish suburb homogeneously populated by Bill Fischel's "home-voting" homeowners -- but rather in minoritarian politics.
Consider, as an example, the City of Flint's crisis with lead-contaminated water as Exhibit A of presumptive fiscal illusion. Darnell Earley, the emergency manager appointed by Governor Snyder to run Flint, had a bureaucratic mandate to save money and no electoral incentive to protect non-fiscal goals like voters' health. By switching Flint's water supply from the expensive Detroit water system to the cheaper and more corrosive Flint River, Earley maximized the first goal and ignored the second, with the result that Flint's residents now have elevated lead levels in their blood.
An easy case for presumptive fiscal illusion, right? If you have been a champion of liability for regulatory takings on "fiscal illusion" grounds, then should you not support Mike Pitt's lawsuit for damages against the city and state under a theory of municipal and/or state liability? And yet I have not heard many of my fellow Republicans and libertarians calling for a weakening of Eleventh Amendment and state sovereign immunity defenses or for a broadening of Monell "custom-and-practice" liability. Perhaps I just have not been paying attention (in which case, readers, alert me to the conservatives cheering on lawsuits for damages against Flint). Or perhaps conservative jurists have generated mutually incompatible doctrines on takings liability and sovereign immunity for decades, leaving conservatives ambiguous about expansively construing governmental liability for torts as opposed to takings. It seems to me, however, that, whatever the case for fiscal illusion in the context of zoning, the case for such fiscal illusion here looks pretty strong. Why are not damages the needed antidote?
Friday, February 05, 2016
The Rule of Law in the Real World.
This round of prawfsblawgging comes at an exciting and terrifying time for me: my first book, The Rule of Law in the Real World, comes out in a few days, courtesy of Cambridge University Press. It's an attempt to reconcile the philosophical, legal, and empirical literature on the ideal of "the rule of law," and show its symbiotic relationship with genuine legal equality. I think the official release date is February 11, although at least one person has already gotten her hands on a copy (before me!). Pre-orders are open (Cambridge, Amazon). I've also put up a website at rulelaw.net, mainly as a home for some cool interactive data visualizations---but I also hope to make it a live, ongoing thing, collecting other rule of law scholarship, data, and knowledge in general.
So the exciting is obvious, buy why terrifying? Well, I think that all of us academics are subject to quite a bit of imposter syndrome, and none more than those of us doing interdisciplinary work. No matter how good you are, even if you're Richard Posner Himself, you can't produce high-quality scholarly work in every discipline at once. So anyone who publishes an extremely interdisciplinary book---and this book is that, in spades, delving into political philosophy, classics, game theory, empirical analysis, and other areas---surely must live in terror of opening up the journals or getting a Google Scholar alert to see his or her book get shredded by someone who actually is good at one of the disciplines the book has invaded. And while there are treatments for this condition---serious cross-training, showing your work to people who know more than you before rather than after publishing it--- there is no certain cure.
Yet some research topics really can only be handled by using methods from every field at once. The rule of law is definitely one of those: it has such a long historical provenance, has been the object of so many conflicting interpretations from lawyers, philosophers, historians, economists, political scientists, and others (Waldron once called it an "essentially contested concept"), and has such growing policy relevance in a world where hundreds of millions of dollars are spent promoting it (or the promoters' conception of what it might be) in places like Afghanistan, that the only way to really get any traction and make any progress is to try to bring something together from those disparate domains. This is, I think, why Brian Tamanaha's wonderful rule of law work has become so influential: he really made the first big attempt to listen to all the diverse conversations on the subject.
So hopefully the terror of the review pages will prove unfounded, and it'll turn out that I'm really not faking competence in all those things. The next half a year or so will tell. In the meantime, I'll be blogging about The Rule of Law in the Real World throughout the month, along with whatever other crazy topics happen to cross my mind. Onward!
More intentional fouls
Following on my earlier post, NBA Commissioner Adam Silver now says he will have the league's Competition Committee explore ways to restrict the practice, explicitly recognizing it as an aesthetic concern. But any rule has to consider all responses and downstream consequences. For example, the first corrective was that off-the-ball fouls in the last two minutes of the game result in the fouled team shooting one free throw and keeping the ball; coaches have responded by having players jump on the bad shooter's back on a free throw attempt, which is considered a loose ball and not subject to that rule. Proposals have included limiting the number of times a team can do it, given the shooting team the option of getting the ball out of bounds (my preference), or giving the fouled team an extra free throw, to be taken by any player (a version of something suggested by a commenter to my earlier post).
Something to watch this off-season, especially to the extent the making of sports rules can tell us something about the making of laws.
Power or Participation? Consensus in Political Deliberation
How should we structure our democratic institutions? Do we worry about political power, and so seek to maximize the ways in which political authorities are accountable to the public? Here we might emphasize reciprocity as a core feature of political institutions. Or to maximize the public’s participation in the political process. On the one hand, accountability checks the unbridled power of the political elite. On the other hand, public opinion is likely to be ill-formed or easily manipulated, more the result of passion than reason or knowledge, as Madison worried in Federalist 10? If we are worried about an ill-informed public, then we might promote a form of participation that allows political representatives to discount public opinion, even while maximizing public participation in selecting those representatives or even canvassing opinion.
The debate about political process has become especially important in the policing context. The Final Report of the President’s Task Force on 21st Century Policing enthusiastically endorsed procedural justice as the best way for the police to build trust and legitimacy within their communities. Procedural justice has been endorsed on the other side of the Atlantic as a means of promoting consensus based policing. Drawing on research from organizations whose members share a common purpose, procedural justice argues that we ought to adopt procedures that encourage participation, and treat the participants respectfully, beneficently, and neutrally.
Thursday, February 04, 2016
Maybe they should stop eating cheese, too.
My Facebook feed is blowing up with snarky comments in response to the CDC's just released report and recommendations on Fetal Alcohol Syndrome. As I understand it, researchers have yet to identify any "safe" level of alcohol consumption during any stage of pregnancy, in part because it would be unethical to test the proposition through blind studies etc. The CDC voices its concern that women reportedly continue drinking alcohol (meaning, they have had at least one drink within the past 30 days, if I am reading CDC's website correctly), when they attempt to become pregnant. Plus, many women who are not even trying to conceive have unplanned pregnancies, and they report drinking too. So, the CDC tells us in quite an alarmed tone: "3 million US women" risk "exposing their developing baby to alcohol." To eliminate the risks associated with such exposure, the CDC recommends no alcohol consumption for those who are or even "might be" pregnant. In other words, unless a sexually active woman of childbearing age is using birth control, she should stop drinking.
This is not the first time this issue has surfaced, but it is the first time abstention has been recommended not just for those who are pregnant, but also for those who are of childbearing age and engaging in unprotected sex.
Discussing the Vanishing Civil Trial
Thanks to Howard for letting me linger here a few extra days. I wanted to close with a plug for a terrific new article in Judicature by U.S. District Judge D. Brock Hornby, entitled Imagined Conversations: The Decline in Federal Civil Trials. The steady drop in the federal civil trial rate since the 1960s is well-known, but Judge Hornby offers a concise and fresh take on the topic by envisioning a no-holds-barred conversation between old law school classmates who now occupy a variety of senior legal positions, from judges to trial counsel to corporate general counsel.
The article is a great read: short, entertaining, and fast-moving. It will be required reading for my civil procedure students. Most importantly, it keenly and respectfully identifies the many interrelated factors have contributed to the drop in civil trials over the past several decades. It should provoke useful discussions between unabashed proponents of civil trials (like myself) and those who are more agnostic.
Relatedly, I was thrilled to see that the same issue of Judicature features a compelling plea from John Rabiej to open federal PACER records for academic research without the need for district-by-district waivers.
Both pieces are well worth your time. To shamelessly borrow a phrase from Larry Solum, download them while they’re hot!
JOTWELL: Coleman on McCuskey on "submerged" decisions
The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Elizabeth McCuskey's Submerged Precedent (forthcoming Nev. L. Rev.), which examines the substantial body of reasoned district court decisions that are often not publicly available.
Who is making the 700,000 FOIA requests the government receives every year?
The Freedom of Information Act has been making a bit of news recently, as Congress considers proposed reforms, and the House has even passed a bill that would effectuate the most significant changes to the statute in nearly a decade. Many of the proposals are excellent, and, if enacted, would certainly strengthen the public’s right to access government records.
But a more structural problem plagues FOIA, one that I explore in depth in my forthcoming article: it was designed to perform one function and, to a large extent, it is used to serve others. What purpose was it designed to serve? Mostly journalists’ interest in reporting the news to the public. In fact, it may even be fair to say that the news media essentially drafted the law. In 1953, Harold Cross wrote a book called “The People’s Right to Know” in his capacity as an advisor to the American Society of Newspaper Editors, the most prominent journalism association at the time. After documenting the patchwork of existing access laws, most of which fell woefully short of journalists’ needs, Cross called on Congress to legislate a right to access public records. Because the book garnered interest in Congress, Cross himself subsequently become the legal adviser to the special subcommittee in the House of Representatives tasked with drafting the law, and journalists mostly staffed the committee. That is, journalists were crafting the very contours of the law, not just its vision.
The Investigative Grand Jury in Police Use of Deadly Force Cases
One notable but perhaps overlooked statement from Cuyahoga County Prosecutor Tim McGinty, regarding his use of the grand jury in the Tamir Rice case, is his claim that he used the grand jury in that case (and in other police use of deadly force cases) “sitting as an investigative panel.”
This statement goes part of the way toward responding to some of the criticism levied at McGinty. Critics complain (among other things) that in most grand juries, the grand jury process is relatively short, and the prosecutor presents only as much evidence as is needed to get an indictment, actively pushes for an indictment to be returned, and presents the jury with a bill and urges them to indict—none of which happened in the Tamir Rice case. In fact, McGinty did not even present a draft indictment to the jury for their vote.
In most cases, grand juries are used for their charging function, not primarily for their investigative function. In the more unusual case that a grand jury is used in its investigative role, the claims above do not necessarily hold true—the investigative jury process is often lengthy, with many witnesses, and the prosecutor is sometimes seeking information rather than aggressively pursuing charges. At the end of some investigative grand juries, the prosecutor does even not ask for a vote on a draft indictment.
McGinty’s claim that he used the grand jury in its investigative function thus begins to explain why the grand jury in the Tamir Rice case operated differently from how most grand juries ordinarily operate.
But—does it make sense to use an investigative grand jury in a police use of deadly force case, such as the Tamir Rice shooting? I don’t think so. Prosecutors turn to the investigative grand jury when they want to make use of the unique powers of the grand jury to conduct a particular type of investigation that might otherwise be very difficult to conduct. The grand jury can subpoena witnesses and make them testify under oath (unless they invoke the Fifth). It can subpoena documents. The investigative grand jury allows a prosecutor in a complex case, such as some types of white collar crime, or conspiracy, or official corruption—to nail down many witnesses, get their testimony, find out what happened in smoke-filled rooms.
These tools are not particularly needed in most police use of deadly force cases. Take the Tamir Rice case. The video evidence and the dispatcher communications were all available, and all witnesses who were going to talk did talk with the police. Using an investigative grand jury did not allow McGinty to unearth evidence or statements he did not already have.
Thus perhaps a better way to frame the question about McGinty’s use of the grand jury in this case is not “why is this grand jury process different from ordinary grand juries?” but rather, “why would a prosecutor use a grand jury in its investigative function, in a case where the investigative powers of the grand jury are not needed?”
I’ll turn to consider that question in a later post.
Wednesday, February 03, 2016
University compliance: employee privacy and academic freedom
In the days before I switched over to academia, I worked briefly for Verizon as an Assistant General Counsel for Compliance. Upon turning on my computer every day, a sign flashed on my screen reminding me that "my" computer wasn't my computer at all, but was in fact my employer's computer. Thus, like my fellow colleagues, I was fully aware that my emails could be searched, as could any of my Internet searches. None of this bothered me terribly, as I knew it was standard practice among corporate employers. I kept a separate email account for contacts with friends and family and went about my merry way.
All that changed as soon as I moved over to a law school. If the "norm" within a publicly held corporation was that the company retained an obligation to search its employees' emails and monitor their Internet usage, the norm within the university setting seemed (that's the operative word) wildly different. The oft-cited concept of academic freedom altered the relationship between employer and employee, as did the notion of shared governance. Accordingly, different expectations prevailed, punctuated by Harvard's email-investigation scandal a few years back.
These privacy-friendly norms and expectations may change, however, as educational institutions increasingly take greater efforts to secure their systems and respond to compliance obligations imposed upon them by outside regulators. Cal/Berkeley's reported adoption of an email monitoring system to deter hackers is currently in the news (although the school assures its students and professors that it is not reviewing their emails), and one cannot help but think that academia's monitoring of its employee-email systems will become more common over time (if it isn't happening already). The foregoing developments invoke questions not only about the proper contours of student and faculty privacy, but also about internal compliance efforts within academic institutions.
Compliance, broadly defined, is a process of educating employees on internal and external rules, monitoring employees to make sure they follow those rules, disciplining (and/or terminating) those employees when they violate rules, and self-reporting firm-related violations to the proper authorities. Universities, as well all know, are subject to quite a few rules; thus, the need for internal academic compliance officers (and apparently, trade journals related to the topic). No matter how fuzzy and warm we try to portray compliance, the function pits the employee against his employer and erodes privacy. Observers more or less accept this state of affairs within the for-profit corporation, although even here, there are certainly those who worry about the ways in which "compliance" unduly harms employees. The "academic compliance" context, however, is one that cries out for further attention, particularly from those of us who think and write so much about corporate investigations and monitoring.
Thanks to the Prawfsblawg folks for inviting me back to the blawg. I see it's a crim heavy cast of characters this month. I too have just finished a draft of an article about policing and democracy, some of which I'll share on the blawg. Perhaps I'll start with some of the democracy stuff, since it's primary season. More on that later ...