Sunday, May 29, 2016
Documents unsealed in Trump University lawsuit
On Friday, Donald Trump spent more than ten minutes of a campaign rally to criticize (and highlight the ethnic origin of) the judge in a class action against Trump University, mainly because the judge had issued various rulings against the defendant, a clear (according to Trump) indication that the judge was biased and should recuse. That same day, the judge has ordered unsealed a number of documents presented to the court on a class-certification motion. The court emphasized the public interest in the case (which suggested the need for public access to the documents), noting Trump's status as the front-runner for the Republican presidential nomination and that Trump had "placed the integrity of these proceedings at issue" in that race.
I guess judges do have ways to protect themselves against political attacks.
Saturday, May 28, 2016
Thiel, settlement, and third-party funding
First, it derides the ACLU/NAACP analogy (also offered by Eugene Kontorovich) as "ridiculous." That is correct to the extent the ACLU or NAACP are not motivated by private vendettas. But the comparison works at the broader level of someone with an agenda (whether personal or ideological) helping someone else litigate their claims. And the fact that the agenda is personal rather than ideological should not matter. Public-interest organizations are no more consistent than individuals in their positions, as will no doubt be demonstrated when various political groups go silent about President Trump's executive actions.
Friday, May 27, 2016
Litigation financing and the First Amendment
I wanted to share two takes on the news that tech billionaire Peter Thiel has been funding Hulk Hogan's lawsuit against Gawker Media. Simona Grossi (Loyola-LA) argues there is nothing inherently wrong with Thiel financing someone else's litigation, which represents a different type of third-party litigation financing, although she suggests that due process may require transparency in such funding arrangements.* Slate's Mark Joseph Stern argues that the problem is not Thiel funding the litigation, but that the litigation is possible because of elected state judges and state privacy torts that may not sufficiently leave room for free speech.
[*] In discussing litigation financing, Grossi mentions public-interest organizations providing free/reduced-fee representation. But she does not mention the role of attorneys' fees for many of these organizations, which affects how that financing model operates. Of course, the court knows when attorneys' fees are potentially in play, so any transparency concerns are addressed.
Both argue that Thiel's funding activities are protected by the First Amendment, although for different reasons. Stern finds support from NAACP v. Button and constitutional protection for ideological litigation, while Grossi finds support in an analogy to campaign finance. The answer, I think, is a combination of these.
Opportunities for Feedback on Scholarship
Yesterday, I returned from the Eighth Annual Junior Scholars-in-Intellectual Property Workshop (JSIP) at Michigan State University College of Law where I received excellent feedback on a forthcoming paper. The workshop, organized and hosted by Adam Candeub and Sean Pager, pairs each junior scholar with two more senior scholars who carefully read and critique the papers. Because the workshop is small, all attendees read the papers and provide additional comments. This was the second time I attended JSIP (and, unfortunately, the last as a "junior" scholar). Like last time, I left the workshop feeling very lucky to have had the opportunity to get such substantial and helpful feedback on my work.
The Junior Federal Courts Workshop, which has a similar format as JSIP (although larger), is another conference I've participated in more than once, and have gotten really good comments on paper drafts. Since it can be difficult for new scholars to determine which workshops, conferences, roundtables, etc. are the "best" in terms of feedback, I thought I'd ask the PrawfsBlawg community to weigh in on that question and share thoughts and experiences.
Marriage may not be not for everybody, but property law is.
I recently got back from a fascinating conference hosted by the International Association of Family Law (ISFL) and I wanted to write about an interesting presentation given by Katrine Fredwall from the University of Oslo, Norway. In Norway, as well as most of Western Europe, couples are increasingly choosing long term cohabitation over marriage. In many of these countries, cohabitation rates are over 60%. In the United States, cohabitation rates are not nearly as high, but they are increasing here as well. Consequently, considering how countries like Norway choose to address the legal implications of cohabitation may provide insight into how the US should address our own growing rates of cohabitation.
In her presentation, Fredwall explained that a few year earlier, she had been asked to suggest rules addressing how the property of long term, cohabiting couples should be divided at the end of the relationship (either because of death or breaking up). The idea that the property of cohabiting couples might be considered jointly owned is a relatively new idea. At the same time, joint ownership of marital property and the division of marital property at divorce is well established. In fact, the ability to have the courts recognize both spouses' right to a share of the marital property is sometimes cited as one of the biggest legal benefits of marriage. Consequently, it makes sense that as cohabitation replaces marriage, some of marriage's legal benefits may need to be transferred to cohabitation.
Thursday, May 26, 2016
As Howard writes below, all of us today are anxious to learn more about the developments in Dan's murder investigation. This may take a while but we are grateful that it finally looks like there is movement. For those heading to LSA NOLA next week, plans are underway for a MarkelFest gathering. Stay tuned. Meanwhile, on this day when we are anxious to know more, but when we also know that nothing will bring back Dan, I wanted to share here, on the blog he founded and with the community he knitted together, the words I said at Dan's memorial last month at Harvard.
Dan our beloved friend – ʻOlam u-meloʼo– a world in its entirety, full of life, radiating energy and warmth, building friendships, spreading love, creativity, and joy.
Dan and I knew each other here in law school but our friendship truly began as we began our teaching careers. All of us newbies, baby-professors – prawfs spelled R-A-W as Dan coined us – were in many ways raised by Dan. Dan was our peer but he was wiser and he realized early on what is important. He taught us to speak our minds, to write more and to write less, to think fast and slow, to experiment – to write differently, in different mediums and style – to write articles but also books and blogs – and to embrace broader audience. To theorize but to connect with practice. He helped us move beyond conventional anxieties of tenure and hierarchy and instead care about the ideas and the research and the teaching for their own sake, to care about building our institutions, contributing to our community, energizing our student, in the class and beyond, enriching our minds through engagement and conversation, even or especially if that meant taking risks and even if it meant that sometimes you get it wrong or imperfect.
And Dan was brilliant. A brilliant scholar, a gifted writer, a fearless thinker. He knew how to capture the essence of a difficult topic, to understand the underlying logic of current debates, and he pushed us all to fine-tune our thinking. He knew however that more important than any one piece of scholarship, however groundbreaking and well-received, are the exchanges and friendships among colleagues. He also understood that intellectual engagement cannot be done right without heart, without knowing the people and lives behinds the theory and concepts.
Arrest in Dan's death
As many of you know doubt have heard, Tallahassee Police have announced an arrest in Dan's death. Sigfredo Garcia was arrested yesterday evening. The probable cause affidavit for the murder charge has been sealed and the investigation remains ongoing. TPD declined to give further details at a press conference this morning.
We have written very little here about Dan's death (as opposed to about Dan himself) to avoid the speculation and general b.s. that has surrounded this tragedy. We are happy to write about genuine news and may occasionally check back in as the case progresses.
Comments on this post are closed.
Wednesday, May 25, 2016
Frank Easterbrook, the First Amendment, and the Chicago Cubs
My colleague calls this case the trifecta. Interestingly, news reports (BNA, NLJ, etc.) have focused on the court of appeals affirming the denial of the preliminary injunction and rejecting the argument that the flat ban on sales on the adjacent sidewalks violates the First Amendment. But the court spent a lot of time on possible First Amendment defects in a related ordinance requiring all peddlers to be individually licenses, except those selling newspapers. The court questioned both the exception for newspapers under Reed v. Gilbert and the licensing requirement as a whole, to the extent it disadvantages a small publication that relies on individual part-time sellers. The opinion offers the plaintiffs arguments to make in moving for a permanent injunction on remand.
And Easterbrook could not resist starting with this line: "The 2016 season is under way, and the Cubs are doing well on the field. Left Field hopes to do as well on appeal."
I Desecrated a Bluebook, in Public
So when the end of the year rolled around we put together our “Law Revue.” A few of us did a take on Les Miserables designed to poke fun at what I will call the culture of Bluebook idolatry. You can imagine how it went: Valjean is in prison for improperly italicizing an ellipse; Javert is the nazi editor who relentlessly hounds Valjean for his sloppy bluebooking; to escape Javert’s tyranny, Valjean disavows the U.S. legal academy, moves to Canada, and becomes an interdisciplinary legal studies professor. At this point in the play, just as Hugo’s Valjean tears up his yellow parole ticket, our farcical Valjean tears up a Bluebook.
We had about ten students in the play, and when I suggested at our first (and only) rehearsal that Valjean would destroy a Bluebook, you should have seen their faces. I honestly do not think that proposing to destroy a bona fide religious text would have elicited a stronger reaction. They were aghast; dumbfounded; in terror, awe, and shock. Tear up a Bluebook? HOW COULD YOU?
The ultimate performance went well. We had some terrific singers and what I thought were some decent lines (Fantine, lamenting how her RA had promised to Bluebook all her footnotes but abandoned her on the eve of submission, sings “I dreamed a dream in time gone by / when hope was high and ideas worth writing / I dreamed my piece would place so high / I dreamed my offers would be exciting”). Alas, the audience did not laugh quite like I expected. But when Valjean tears up the Bluebook? Riotous applause. To the students in the audience, it was the skit’s psychological climax.
What is it about this book? Silly me, I thought it was nothing more than an editing guide. But in the contemporary academy it somehow morphs into a powerful and multi-faceted symbol: of success, or oppression, or ennui. We suggest to our students that law review is the pinnacle of law school prestige, and then they find it to be largely administrative work. Is it me, or are edits at even the top law reviews growing increasingly tedious, unreasonable, and utterly detached from the article’s real substance and importance? I am reminded of Thomas Merton’s account of the ladder we spend our lives climbing, but upon reaching the top realize that we’ve leaned it against the wrong wall. Seems to me that we, as legal educators, should help our students pitch their ladders more meaningfully.
And how did our skit end? Valjean adopts Fantine’s orphaned manuscript, finishes the footnotes and, having come to terms with the legal academy (singing "Who Am I?"), places it in the top 25.
Anatomy of an Anti-Corruption Revolution
What does a meaningful anti-corruption revolution look like? I’ve already asserted this month that what’s going on in Brazil is best understood as a success story for anti-corruption reforms and the rule of law, if not for democracy itself. I suppose I should defend that claim.
The story begins about ten years ago, when optimism in Brazil, economically and politically, was at an all-time high. But a series of events would precipitate major change. It began in 2005 with a now-seemingly-miniscule (though at the time, substantial) vote-buying scandal called Mensalao. Brazil then began a long-slow decline into the present recession. In the context of these political and economic turns for the worse, Brazil was chosen to be one of only three countries to host the world’s two most expensive athletic events back-to-back: the FIFA World Cup and Olympic Games (the others being Russia, who is doing so now, and the U.S., back in the 1990s). The last straw was the government’s decision to increase fares on subsidized public transportation. That’s when the widely publicized protests began, which concerned the misuse of public funds.
In this context, Brazil enacted four major statutes. In 2011, it adopted major procurement reforms, and an equivalent of the U.S. Freedom of Information Act. Then in 2013 came the two biggies: the so-called Clean Companies Act, which imposed corporate liability for official bribery, and a RICO-style organized crime bill that created a new obstruction of justice charge. Long story short: these laws, working together, have allowed enforcement authorities to expose and prosecute systemic corruption. In other words, in response to public protests about government corruption, a democratically elected body enacted a series of reforms that are now being used to root out corruption and hold both public and private officials accountable. This, I submit, is precisely how an anti-corruption revolution is supposed to work.
If you want the longer version of this story, see our ebook.
Tuesday, May 24, 2016
Trusts, religious paraphenalia, and freedom of the church
I am a week late to this decision from Judge McConnell of the District of Connecticut, resolving a dispute between two congregations over ownership of a pair of historic rimonim (the deocorative bells that adorn a dressed Torah). The opinion spends 40+ pages lovingly tracing the long story of Touro Synagogue and the Jews of Newport, R.I., including the 1790 letter exchange with George Washington and with several divergences into the Iberian Inquisition and differences between Sephardic and Ashkenazi practices. The opinion is a wonderful read as a judicial summary of a piece of American-Jewish history. The central legal issue was the relationship between the current Newport congregation and a congregation in New York that formed in the early 1800s, when most of the Newport Jewish community left for New York.
My question, for those who know such things (looking at you, Rick and Chris Lund) is whether the court successfully avoided any freedom-of-the-church problems. Because the structure of Jewish congregations is not religiously compelled, the questions (what corporations were formed, trust relationships, trustee conduct, existence of a bailment) could be resolved on purely secular grounds. I caught one point in which the court drew an inference (that the rimonim were received at the same time as some torahs, because the items travel together) that is based on some religious idea. But mostly the court seemed able to focus on general legal principles, without touching on any point of obvious Jewish law.
Are there First Amendment problems in this decision? Is this case so different from deciding which of two competing groups is the "real church" arguing over property, the type of cases courts are not permitted to hear?
Monday, May 23, 2016
Should the IOC Require Host-Nation Anti-Corruption Reforms?
There’s a joke in Olympic law circles: the host-nation organizing committee has 100 lawyers, and 99 of them do IP. The International Olympic Committee cares a lot about protecting its own and its sponsors’ intellectual property; no surprise there. But you may be surprised to hear that the IOC has turned its attention in the last decade or two to a number of issues that generally concern ethics or justice. In the various legal documents involved in the Olympic Games, you’ll see nods (of varying degrees) to doping, environmental concerns, and even human rights. This is not to say that the IOC places a premium on these issues; far from it. But their importance is at least acknowledged.
Not so with host-nation corruption. It can be said that corruption in international sport has three dimensions. The first is competitive corruption (doping, match-fixing, and the like). The second is corruption within the international governance organization (FIFA, IOC). These two have received enormous attention in the last decade or two, including from the IOC. But there is a third dimension of corruption that the international governance organizations have, to date, largely overlooked: official corruption within the host nation. For more on this, see our ebook.
What if a commitment to adopting meaningful anti-corruption reforms was a criterion for awarding the Games? What if a country could not win the bid without entering into enforceable agreements to reasonably deter its own official corruption? This is not to say that we should only award the Olympic Games to countries that already tend to enforce anti-corruption laws; if we did that, the movement toward awarding bids to developing countries would instantly stall and we’d be hosting the Games in European and North American countries almost every time. But what if a country were required to do what Brazil is now doing, and take appropriate steps to address its own official corruption? This may be an idea whose time has come.
Last week I posted about the odd theory of second degree assault being played out in the Baltimore trial of Edward Nero, one of the six officers charged in the rough ride killing of Freddie Gray. Today, not surprisingly, given the lack of evidence presented by the prosecution, Nero was acquitted by a judge. His fellow officer, forced to testify by the prosecution, stated that Nero was not involved in Gray's arrest. Now, police are famous for testifying falsely when it behooves them, with no consequences in civilian trials. But it's hard to imagine that Miller (the testifying officer) would inculpate himself at the expense of his colleague. Regardless, the judge had no choice but to acquit Nero, at least on that charge.
Would it be better if the judge had convicted Nero, not based on evidence, but because the criminal justice system is horribly rigged in favor of police and the privileged? In my opinion, a conviction with no evidence does more to harm accountability for police and especially for political DAs than an acquittal. But I can certainly see how this might be viewed as one more instance of a white police officer's liberty taking precedence over the life of a young African American man. That said, the longer view is that all defendants should get the same opportunity to defend themselves against charges brought by overly zealous prosecutors that the police do. This is also the thrust of a couple of articles I have written. Holding police accountable when they make unfair illegal arrests is a prosecutor's duty in all cases, but so is prosecuting only cases where evidence is reliable and where a suspect is criminally culpable, both legally and normatively (see Josh Bowers' fantastic article Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute).
On the other hand, the press release put out immediately by the Baltimore FOP undermines any intelligent or nuanced discussion of Nero's criminality by suggesting that he and all the officers charged in Gray's killing are innocents wrongly persecuted by an overly zealous prosecutor and unfair criminal justice system. Nero may not be criminally liable, but that certainly doesn't mean he did "nothing wrong." Moreover, this tone deaf attitude in the face of personal and cultural grief on the part of over-policed under-served communities, is exactly the kind of attitude that permits police to make illegal arrests every day with no consequence.
The show takes place during Thanksgiving weekend, in an episode that has a lot of House-election stuff in the air.
Selina begins making phone calls to whip votes for the coming House election. But the show approaches that election in a way that is, at least on the surface, sloppy--the correct understanding may be in the background, but the details to come out in the way characters discuss the mater.
Details (and spoilers) after the jump.
Saturday, May 21, 2016
New Columbia: The 51st State?
As a child growing up in Los Angeles, it was easy for me to understand what city and state I lived in. For my kids, who are being raised in Washington, D.C., it's not so simple. The question of D.C. statehood is not new, but is on the front burner once again. Mayor Muriel Bowser, who plans to place the D.C. statehood question on the November ballot, recently unveiled a draft constitution for the 51st state. The Statehood Commission is holding multiple townhall meetings in May and June, and soliciting comments about the proposal online. A Constitutional Convention is scheduled for June 17-18.
The population of the new state would be 645,000, making it the third smallest state in the nation (edging out Wyoming and Vermont). The boundaries of the new state would be drawn to maintain certain areas as federal land, including the White House, U.S. Capitol, National Mall, Navy Yard, Union Station, and Kennedy Center. The draft constitution creates a 13-member legislature (called the House of Delegates), provides that the mayor would become the governor of the new state, empowers the governor (not the President) to appoint judges, and allows residents to elect voting members of Congress for the first time. It is this last point, of course, that makes the proposal so controversial. An overwhelming percentage of D.C. residents are Democrats, which means two additional seats in the Senate could tip the balance of power in Congress. Not surprisingly, the question of D.C. statehood has become a presidential campaign issue. While Hillary Clinton recently vowed to be a "champion" for D.C. statehood and Bernie Sanders has expressed strong support for the cause, Donald Trump has been non-committal.
Assuming for the sake of argument that D.C. becomes a state, what should it be called? The draft constitution refers to it as "New Columbia," but Bowser says she's open to discussion about the name. Some oppose New Columbia because they're reluctant to honor Christopher Columbus, and others simply prefer a different name. Current suggestions include naming the new state after a river--the Potomac or Anacostia--or after an historic figure like Frederick Douglass or Sojourner Truth. Any other suggestions?
Friday, May 20, 2016
Money and departmentalism
Pending legislation in Oklahaom would prohibit doctors from performing abortions (it would be a felony and would result in loss of medical license). This Slate story and this letter from the Center for Reproductive Rights describes the controversy in what I would argue are the appropriate departmentalist terms. It is about time and money: The time and taxpayer money the state is going to waste defending a law that will pretty obviously lose in the courts because the courts are bound to follow SCOTUS and other binding precedent (under which this law is, as the CRR says, blatantly unconstitutional). And, we can add to the bill the plaintiffs' attorneys' fees, which are going to be quite high, if the marriage litigation and other recent examples are an indicator. And they situate this amid all of Oklahoma's economic problems and the money it is not spending on education, social services, and the health and welfare of women and children. Nowhere does the author or the CRR suggest that anyone in the state legislature or the governor is acting contrary to the Constitution or to their oaths by voting on or signing this bill. Instead, it's that this is making it impossible for you to govern the state well.
[*] I want to explore more about the deterrent value of attorney's fees. While that was not the original purpose of § 1988, fees increasingly play that role, especially in non-monetary cases such as this one.
And that is the larger point I am searching for. Political-branch officials do not act "unconstitutionally" when they act contrary to judicial precedent, only when they fail to follow a judgment rendered against them. And if they want to keep forcing new litigation beyond that judgment, even as against precedent, that is consistent with their constitutional vision. But if the cost of this move becomes so great, and starts to distract or draw from other priorities, the hope is that the public will rise up at the ballot box when this becomes wasteful enough. That, in turn, provides a political check on similar behavior.
But to return to the question of legal and judicial ethics in this realm. Some of the legislators are likely attorneys and have attorneys working for them; Fallin likely has attorneys working for her. Are they violating their ethical obligations by voting for this law or advising that they can vote for it?
Update: Gov. Fallin veoted the bill, arguing that the absence of a definition of "necessary to preserve the life of the mother" (the one situation in which an abortion would not be illegal) rendered the law vague, likely to fail in a constitutional challenge, and thus not an appropriate vehicle for challenging Roe.
Lord Acton tries the Samba; or, the Paradox of Brazil's Decentralized Government
We proud Americans might sometimes think we wrote the book on checks and balances and federalism (or rather, think that we continue to write the book). But it turns out that the world's fifth-largest country beats the third-largest at its own game; Brazil out-federalizes the Federalists, big time. After centuries of colonization, dictatorships, and violent oscillations between radical centralization its opposite, Brazil wrote a new constitution in 1988. That constitutional scheme -- the one we now see playing out in Brazil's world-class political turmoil -- distributes power both within the federal government and between the federal, state, and municipal levels in fairly dramatic fashion. They saw what concentrated power does, and they wanted nothing of it.
From an anti-corruption standpoint (that is, my standpoint) this raises a fascinating paradox. Acton famously reminded us that the concentration of power tends toward corruption. If we want to deter corruption, we distribute power. Basic. But no system is immune from corruption, and when violations occur, they of course must be prosecuted. That prosecution must be of sufficient certainty, severity, and celerity (as they say). But can that holy trinity be realized in a radically decentralized government? That is, might the diffusion of power undermine general deterrence? If so, we've got ourselves a paradox: the very system of government that tends to prevent corruption will also struggle to punish it. Decentralization may effectively deter corruption preemptively, but ineffectively post hoc.
And we see this very struggle now playing out in Brazil. The acting president (replacing Dilma Rousseff, who has been temporarily removed pending her Senate impeachment trial) has suspended the negotiation of what Brazil calls leniency agreements (roughly equivalent of our deferred prosecution and non-prosecution agreements) with the construction companies implicated in the Petrobras scandal. He wants to include more federal bodies in their negotiation. Brazil's main anti-corruption agency had exclusively authority, but the acting president wants to bring in the auditing court (which first detected the accounting improprieties that lead to Dilma's impeachment) and, most importantly, the federal prosecutors (who in Brazil are independent of the executive branch, a kind of fourth branch of government). In other words, he wants three independent federal bodies to coordinate settlements. And this requires an act of Congress, which is now in turmoil due to the very same corruption investigation. In the mean time, the negotiation of these agreements -- put another way, the prosecutions themselves -- are suspended, for who knows how long. So basically, the diffusion of power in Brazil's government has created a prosecution stalemate. The definition of celerity, this ain't.
So does the image in your mind of Lord Acton doing the Samba seem just a bit awkward? Well, that's exactly my point.