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?
Sunday, November 16, 2014
Rover. Land Rover.
Sometimes academic studies and works can be entirely funded by an outside group. Transparency about these sorts of projects is desirable, and people may react to the resulting work skeptically. This is exactly what happened to one of the authors of the James Bond novels, William Boyd. He’s just released a 17,000-word story “The Vanishing Game,” for which Land Rover paid six figures. The company gave him major creative license in composing the story, telling him only that it “would be good” if a Land Rover appeared at some point. Apparently (although I just started reading the story), the Land Rover Defender only appears in the novella as the protagonist’s car as he sets off for Scotland. Boyd defends himself to the Times, pointing out “If I was approached to write a Batman movie I would assume it would have to feature Batman. There’s really no difference in this case.” But, apparently, there is a difference for readers and publishing houses, who have been giving Boyd a hard time. And a difference for writers too, the majority of whom will not agree to do commercial endorsements like this. As for me, I typically will take a good story wherever I can get one, but I like to know if it’s only a clever ad campaign.
Carlin's words, updated
George Carlin in the mid-'70s famously identified the seven words you can's say on television. In this review of the new legal show Benched,* NPR's Linda Holmes identifies the new prevailing rules as follows:
Basic Cable: SNOF (Shit, No Fuck), with an addendum for Breaking Bad to say "fuck" every 2-3 episodes, when it really mattered
Broadcast: NOSNOF (No Shit, No Fuck)
Pay Cable: ATFWYCSO (All The F Words You Can Spit Out)
This NPR piece from about a year ago offers a longer take on the subject. It shows that while we focus a lot on "shit" and "fuck," the word on Carlin's list that has universally come to be regarded as taboo is the one for women and/or their genitalia--no one thinks of using it, although the workarounds arguably are just as offensive. The piece also shows--still--how silly much of this is, at least for adult-centered programs.
By the way, I think I second Holmes's recommendation of the show, at least based on one episode. Although the premise is a bit offensive legally--woman lawyer has in-office meltdown (because, you know, women lawyers), still can get a job at the Public Defender's Office (because, you know, anyone can). But it has the potential to at least be funny.
Saturday, November 15, 2014
JOTWELL: Pfander on Bruhl on lower-court precedent
The latest Courts Law essay comes from Jim Pfander (Northwestern), reviewing Aaron-Andrew Bruhl's Following Lower-Court Precedent (U. Chi. L. Rev. 2014), which considers how and when SCOTUS cites to lower-court authority.
Does Circuit Precedent Deprive Officers of Qualified Immunity?
In Carroll v. Carman, one of this week’s summary reversals, the Supreme Court held that officers violated no clearly established federal law in conducting a “knock and talk” and so were protected by qualified immunity. Almost as an aside, the Court assumed arguendo that circuit law could constitute clearly established law. In other words, the Court reserved the possibility that officers could defy on-point circuit precedent and still retain qualified immunity. This issue is both important and fascinating.
In this post, I’ll assess relevant cases to shed light on how the doctrine reached its current shape and where it might be going. In my next post, I’ll discuss whether the apparent trend in qualified immunity doctrine makes sense.
Friday, November 14, 2014
22 Is the New 18
The media has lit up about a New Jersey court’s decision to order the divorced parents to pay $16,000 per year for the college education at Temple of their estranged daughter, Caitlyn Ricci. To family lawyers, this is not a surprising result. I have written about the equal protection and other issues inherent to treating married parents (who are never required to pay for their kids’ college education) differently from unmarried or divorced parents (who may be required to pay for their kids’ college education), but the minority of states with postsecondary educational support laws have pointed to findings that divorced and nonmarital parents are far less likely to pay for college. Lawmakers and courts in these states have seized the opportunity to level the field by requiring unmarried parents to be liable for college support. Perhaps in these states, the cost-of-raising-a-child estimates should be revised from low six figures to something a bit higher to avoid a shock to parents—more of whom are implicated as the numbers of divorces and out-of-wedlock births continue to climb.
Thursday, November 13, 2014
Religion's Private Law Turn II: No Sunday Arbitration
Yesterday I posted about what I've called religion's "private law turn," where questions at the intersection of law and religion increasingly hinge on applications of private law as opposed to public law. I also promised examples so here's my first--one that I take up more fully in a forthcoming piece, Arbitration's Counter Narrative: The Religious Arbitration Paradigm, 124 Yale L. J. (forthcoming 2015).
Section 5 of New York's Judiciary Law reads as follows: "A court shall not be opened, or transact any business on Sunday." Fair enough you say. But in the past year or so, two New York courts (here and here) have applied this law to rabbinical court arbitrations--arbitrations addressing commercial disputes--by employing the following logic: (1) A judicial proceeding cannot take place on Sunday; (2) “Arbitration is a judicial proceeding and arbitrators perform a judicial function"; and (3) therefore, “the arbitration proceedings and award herein are void upon the ground that at least one hearing was held on a Sunday." Based on this logic, both courts vacated arbitration awards where arbitration proceedings were conducted on Sunday. Indeed, there's precedent for these decisions in New York going back nearly 200 years.
Now some have argued these decisions run afoul of the First Amendment. Maybe it does (although I'm skeptical this claim wins given how the Supreme Court has treated Sunday closing laws generally). But more than a constitutional problem, what this case misses is the way in which some forms of arbitration--specifically religious arbitration--are not equivalent to "judicial proceedings." It may be true that much arbitration is functionally equivalent to litigation--albeit faster and cheaper--in that both are mechanisms to resolve disputes between parties (Daniel Markovits has referred to this view as the "displacement thesis" and it has been adopted by and large by courts and scholars).
But not all arbitrations are simply about resolving a dispute. In particular, when religion and commerce meet under the rubric of religious arbitration, the parties have not selected the forum with the sole objective of identifying a more expedient and inexpensive version of litigation. Religious arbitration entails submitting a dispute to religious authorities for resolution in accordance with religious law. And a decision to select such a forum to resolve a dispute has much less to do with expedient dispute resolution and more to do with the shared commitments and values of the parties. In this way, religious arbitration is often part commerce and part religion; and to simply conflate such arbitrations under the rubric of judicial proceedings fails to consider the unique objectives at stake in the context of religious arbitration.
Indeed, in this way, these Sunday arbitration cases represent a classic mistake courts make when encountering religion's private law turn. Instead of unpacking the unique dynamics at stake when religion and commerce overlap, courts reflectively invoke familiar categories--a mistake in this case not of constitutional law, but of a arbitration law.
Wednesday, November 12, 2014
District court invalidates South Carolina SSM ban
And spend a lot of time talking about Fed Courts stuff. Of course, the discussion mostly demonstrates that, quite often, neither parties nor courts fully understand this stuff.
1) The suit named three defendants: A probate judge (authorized under state law to issue licenses); the attorney general; and the governor. The court held that the judge and the AG were proper defendants because both were responsible for enforcing the state ban--the judge by issuing (or refusing to issue) licenses and the AG by initiating state-court litigation and by defending the ban in court. But the court held that the governor was not a proper defendant, because other than a generalized power as the chief executive, she is not responsible for enforcing these laws. The court thus dismissed that claim under the Eleventh Amendment.
The Eleventh Amendment dismissal makes no sense (to the extent any of this makes sense). The state is not a named defendant, nor is the state the "real and substantial party in interest" in an action nominally against the individual officer that would require payment from the state treasury. This was a purely equitable action against a named officer; that she is not the correct officer does not convert it back into an action against the state.
Most courts facing the "wrong Ex Parte Young defendant" rely on standing as the basis for dismissal, on the theory that the plaintiff's injury is not "fairly traceable" to that defendant's conduct. I am still not a fan of that, as I think this is all about substantive merits. But it makes at least a bit more sense than saying that suing the wrong individual creates an action against a state.
VAPs and Fellowships: Open Thread, 2014-2015
On this thread, comments can be shared regarding news of appointments to VAPs or similar fellowships (for example, the Climenko and Bigelow). Here is last year's thread.
(If someone wants to aggregate this information, email me, slawsky *at* law *dot* uci *dot* edu, and I will set you up with an embedded spreadsheet.)
Originally published 11/12/14.
Supreme Court Signals
An interesting theme unites three apparently unrelated cases that I’ve previously blogged about: an obstruction of justice prosecution (Yates), a removal case that poses a riddle of statutory jurisdiction (Dart), and the Sixth Circuit’s recent decision upholding same-sex marriage laws (DeBoer). In short, all three cases implicate the Supreme Court’s ability to send non-precedential signals to lower courts.
Religion's Private Law Turn
With the continued discussion of Hobby Lobby (for the latest, check out Elizabeth Sepper's response to Paul's Hobby Lobby Momement), it is hard not to notice an increasing focus on the importance of commerce--and in turn commercial law--when it comes to conflicts between law and religion. Maybe one way to think about this is that for every Town of Greece v. Galloway, we have a Hosanna-Tabor v. EEOC, a Hobby Lobby v. Burwell, and now an EEOC v. Abercombie & Fitch. The religion clauses continue, of course, to play a fundamental and central role in debates over religious accommodation and the like; but clashes between the aspirations of religion and the demands of law seem to increasingly spill into the commercial sphere. And, as this trend continues, I see more and more of these clashes hinging on how various private law doctrines apply when religion and commerce collide.
As Paul has expressed, much of this seems to arise from a growing sense that the commercial sphere is not just about commerce. In our forthcoming article "The Challenge of Co-Religionist Commerce," 64 Duke L.J. (2015), Barak Richman and I try to outline some of this dynamic under the rubric we term "co-religionist commerce," which we characterize as "commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives" (and for a recent response to our article, check out Nate Oman's piece here). The core, if unstated, intuition of our article is that some of the most significant challenges on the horizon--as religion and commerce continue to intersect--flow not from interpretation of constitutional doctrine, but from application of private law rules to conduct that is simultaneously religious and commercial. This intuition applies in a wide range of contexts, from corporate law to contract law to arbitration law (to name some of my favorites).
In my next couple of posts, I'll try to provide some concrete examples of this dynamic--and some of the complex questions they raise--as I explore what I see as religion's growing turn to private law.