Wednesday, April 01, 2015
What’s the Problem with Wireless?
Last September, the Consumer Law and Policy Blog published my legal review article, “Legal and Public Health Problems of the Wireless Age”. I am grateful to Professors Leib and Wasserman for subsequently cross-posting the piece on Prawfsblawg and inviting me to comment further. Wider dissemination of information about wireless health hazards is essential because
1) the public is unaware of the severity of the situation, largely because the media, controlled by wireless company advertising money (think: tobacco over half a century ago), is not providing facts and therefore crucial health-protecting information to Americans;
2) many of the devices in question are popular (some people, especially teenagers, are psychologically and/or physiologically addicted to them) and integrated into most facets of the economy, so institutional purchasers are likely to focus on this rather than read the fine print in the manuals and ask the purveyors what the underpinnings of the warranties of safety are;
3) the government is compromised by a revolving door between lobbyists and regulators (this structural defect in our democracy that affects other industries is particularly pronounced here because wireless companies are the largest source of revenue to the U.S. Treasury after oil and gas… and again, wireless technology is perceived as more essential than other toxins which had been integrated into the economy but which were subsequently removed from or are now highly restricted in the commons); and
4) while cell phone litigation has been underway for some time, most lawyers are unaware of some basic issues like what is being emitted from what device and what is known about health effects (including Microwave Sickness), what existing government reports and recommendations from agencies state, what is going on outside the United States, and most importantly for the legal profession, what is and what may not be pre-empted.
Tuesday, March 31, 2015
Armstrong: Is Utterly Disingenuous Statutory Interpretation Ever Worth It?
In a nutshell, a 5-4 conservative majority (the usual suspects, but for Breyer and Kennedy switching sides) held that Medicaid providers may not pursue suits for injunctive relief against state officers who allegedly violate the "equal access" provision of the Medicaid act because (1) the Supremacy Clause itself doesn't provide a freestanding cause of action; and (2) even if such a cause of action has traditionally been available in equity, Congress displaced such remedies when it enacted Medicaid in 1965 (or, at the very least, when it codified the equal access provision in 1989). [Full disclosure: I co-authored a brief on behalf of former HHS officials as amici curiae in support of the Petitioners.]
As a result, the only way to enforce the "equal access" mandate--one of the most significant substantive requirements of the Medicaid program--is for the Department of Health and Human Services to withhold Medicaid funding from violating states, something the Department neither has the ability nor the inclination to do. But whereas I had warned in an earlier post that a bad result in Armstrong could mean doom for Ex parte Young (which I elsewhere described as the sleeper Federal Courts case of the Court's October 2014 Term), the hyper-specific focus on the equal access provision in both Justice Scalia's majority opinion and Justice Breyer's concurrence almost certainly reduces the precedential effect of today's decision. The only downside (for anyone other than Medicaid recipients and providers, anyway), is that it does so at the expense of any shred of credibility--reigniting the debate over the virtues (and vices) of "this train only" analyses.
Is § 1983 superfluous?
I do not have a whole lot to say about Tuesday's decision in Armstrong v. Exceptional Child Center, although I look forward to reading Steve's (no doubt blistering) comments. But I do wonder about the question posed in the title, as well as whether I need to rethink how I teach Ex Parte Young.
The majority and dissent agreed that Ex Parte Young--formally, an action for "injunctive relief against state [and federal] officers who are violating, or planning to violate, federal law"--is a long-standing creation of courts of equity, rather than a product of the Supremacy Clause. They disagreed over whether the Medicaid Act impliedly limited the availability of such an equitable action--Justice Scalia's majority opinion said it did, Justice Sotomayor's dissent said no. In particular, Sotomayor distinguished this type of equitable action from both § 1983 "and laws" actions and implied statutory actions, insisting that Congress must affirmatively override the former, while the latter are available only if Congress creates and permits them.
How does this affect § 1983? That statute allows for "an action at law, suit in equity, or other proper proceeding for redress" against a "person" acting under color of state law who deprives the plaintiff of a right secured by the Constitution. I generally explain Ex Parte Young, at least in constitutional actions, as an interpretation of § 1983--the state executive officer is a person, enforcing or threatening to enforce an unconstitutional law deprives the plaintiff of a right secured, and the request for injunctive relief makes this a suit in equity.*
* For similar reasons, I have always believed that using Young to enforce federal employment statutes (ADA, ADEA, FLSA) against states (thus easing the effect of the 11th Amendment) was incoherent, since the applicable statutes being enforced only regulated the employer, not the individual state official who would be enjoined.
But the position unanimously reflected today is that an individual could enjoin an executive officer from enforcing an unconstitutional or preempted law without § 1983. So what is the point of the "suit in equity" language if the equitable action predates 1871 and would exist without that statutory language? **This question is placed in sharper relief in the dissent, which acknowledges that § 1983 allows for many different remedies, but then lumps them all together under that statute in distinction to the free-standing equitable action.
** Just to clarify: My superfluousness concern is only as to the "suit in equity" clause, not for actions in law (i.e., retroactive relief), which still requires § 1983.
Atlantic Marine, Forum-Selection Clauses & Erie
I started off this month talking about Erie, so here’s another Erie post to bring things full circle. Back in the fall, I was glad to participate in the Hastings Law Journal’s symposium on last Term’s SCOTUS decision in Atlantic Marine Construction Co. v. United States District Court. Atlantic Marine was a unanimous decision—authored by Justice Alito—on how and when to enforce forum-selection clauses in federal court. It’s a set of issues that only a civil procedure professor could love, and if you teach civil procedure Atlantic Marine may already be on your syllabus.
The symposium issue is now out. You can find links to all of the articles here, including contributions by Andrew Bradt, Kevin Clermont, Scott Dodson, Robin Effron, Linda Mullenix, Steve Sachs, and Brad Shannon. My piece is Atlantic Marine Through the Lens of Erie, and here’s the abstract:
A Collection of Thoughts on Depression, Perverse Incentives, and Misunderstanding Mental Illness
Listening to this interview on NPR's Weekend Edition Saturday morning, I was not surprised to hear that Andreas Lubitz, the pilot who may have deliberately crashed a Germanwings plane into the Alps last week, also deliberately hid his depression from Lufthansa (Germanwings' parent company). Mental illness continues to be an embarrassment to people, despite the large numbers of those who suffer from some form of depression/anxiety or other condition.
I was more surprised to hear what the result would have been had Lubitz disclosed during his training that he was seeking treatment for depression. According to Matthias Gebauer of Der Spiegel, Germanwings would have "kick[ed] him out of education and pull[ed] away his pilot license." When Scott Simon [the radio host] pushed back noting that many people suffering from depression are able to be highly functioning members of society, Gebauer's response was that "pilots . . . that is a very special job [with] strict responsibility." While not speaking for the airline specifically, this seems like a weak response for an anachronistic policy. And, instead of deterring those with "mental illness" from becoming pilots, the policy, in this case (and I suspect in others), forced Lubitz underground with the treatment he clearly needed.
JOTWELL: Mullenix on Robreno and asbestos settlements
The new Courts Law Essay comes from Linda Mullenix (Texas), reviewing The Federal Asbestos Product Liability Multidistrict Litigation (MDL-875): Black Hole or New Paradigm? (Widener Law Review) by Judge Eduardo Robreno of the Eastern District of Pennsylvania. Judge Robreno discusses the resolution of the asbestos MDL (feared as a "litigation black hole"), over which he presided.
The US News automatic stabilizer
As I looked through Brian Huddleston's color-coded table of this year's US News data (h/t, TaxProf), I saw something interesting. In this time of gloom and doom, almost every school's overall score went up. Of the ranked schools, ten had the same overall score (not counting Yale -- you can't improve on 100) and nine went down in overall score. But everyone else's overall score went up. Wayne's World! Party Time! Excellent!
In this law school economy, how could that be? If you go through the rest of his chart, you'll see a lot of red (as in, falling numbers in student selectivity metrics, employment, and bar passage rates) mixed in with the yellows and greens. The health of the economy doesn't look as good as the trend in overall scores would indicate.
Monday, March 30, 2015
Separation of Powers and State-Building: The Leninist Case for an Independent Judiciary
My recent post about teaching U.S. constitutional law in China attracted some skepticism (offline and online) from commenters who doubted that my Chinese students could speak freely on constitutional topics. Surely, the skeptics asserted, those students’ speech is chilled by the prospect that the Chinese Communist Party’s monitors would report any statements hostile to the CCP or favorable to “western” ideas. As support for this inference that my students will be cowed by the CCP, these skeptics cite various Party documents calling for the ideological policing of teaching at Chinese universities.
I guess I never got the memo on ideological policing: No one has said anything to me about what I am not allowed to teach or say. Since half of my students are not Chinese citizens, I am pretty sure that they, at least, also do not care about CCP policies. Moreover, Chinese mainland universities typically rely on a “Party leading group” at the university itself to enforce Central Committee rules. We lack such a leading group at NYU-Shanghai: To whom, then, will the alleged student spies report the misdeeds of their classmates? The argument that PRC students’ speech will be chilled by Party spies also simply proves too much: It would suggest that PRC students cannot speak freely anywhere, even at American-soil universities, because the CCP can presumably send or recruit PRC students to act as spies abroad to monitor their Chinese classmates from Harvard to Berkeley.
But putting aside these reasons to be skeptical about students’ being chilled at NYU—Shanghai, there is one foolproof way to insure that classroom debate will be both robust and Party-compatible: Assign to the students the job of debating topics on which the CCP is itself divided. There are, of course, some issues on which the CCP’s official ideology does not brook dispute. The Party wants a strong state that can overcome any private opposition to Party policy. The CCP is also united around some general notion of Leninist “democratic centralism” under which everyone is supposed to get on board with any policy that the Party adopts after private internal debate.
There are lots of “western” constitutional institutions, from the Philadelphia Convention of 1787 to a SCOTUS conference, that are compatible with this general Leninist idea of a tightly knit leadership reaching consensus after a secret debate and then issuing marching orders to underlings. One of those ideas is separation of powers by guaranteeing that the monitors of the bureaucracy will enjoy some independence from political leadership. . My class, divided into teams of “western liberals” and “left Maoists,” is assigned the task of preparing arguments next week for and against the proposal that Chinese courts should enjoy some sort of Marbury and Article III-style independence from political leaders.
After the jump, I explain why the “western liberals” can plausibly argue that separation of powers would strengthen the Party leadership’s control over the Party cadres out in the provinces – an argument that will not land any student making it in hot water with Zhongnanhai.
Why state officials fall in line
If, as I have been arguing for the past two months, an injunction and opinion barring enforcement of a state's SSM ban has no formal effect on anyone other than the parties, the question becomes why state officials ever voluntarily change their behavior absent a binding court order and why they do not instead always force new litigation and a new, directly controlling court order.
One reason is attorney's fees, which can escalate pretty quickly. See, for example, Wisconsin, where the state agreed to pay more than $ 1 million in attorney's fees to the ACLU for successfully challenging that state's SSM ban. True, the fees would be nowhere near this high for an individual Alabama probate judge forcing a new couple to sue him to obtain a license. But even low-level fees may provide an incentive for officials to fall in line, even if not formerly obligated to do so.
An Anti-Agency Mood?
We’re near the end of March, the month of basketball madness, and it seems like a distinctively anti-agency mood has taken hold at the Supreme Court. This assertion is both more and less than it may appear. It is more because the mood I have in mind has arguably been building up for several years. And it is less because a mood can pass uneventfully, without prompting a major decision. Still, as March Madness wraps up, it seems a good time to take stock of recent events.
Sunday, March 29, 2015
Why isn't PRSM more popular?
Following the angsting thread this season and reading Dave's thread about professors breaching law review contracts has made me start thinking again about the law review submission process. Everyone, it seems, agrees that the process creates perverse incentives: professors submit to dozens of journals, so that student editors must make decisions on thousands of articles; student editors are forced to make quick decisions in competition with other journals, and so rely on proxies of dubious merit to decide what to read; students at higher-ranked journals rely on the work of students at lower-ranked journals to screen articles. What strikes me, though, is that the Peer Reviewed Scholarship Marketplace seemed to solve all of these problems when it was created in 2009. It incorporates peer-review from subject matter experts (and provides this feedback for authors to strengthen the piece, whether or not they accept a given offer). It takes away the time pressure of the compressed submission season. It protects the freedom of choice for both professors and for student journals; students still decide which pieces to make offers for (after seeing the peer review evaluations), and professors can feel free to decline offers--they are not obligated to take an offer from a journal they don't wish to publish with. When PRSM was created in 2009, I thought it would quickly become the predominant way that law journals select articles. Why hasn't it? Do more journals need to start using it so that authors will submit to it? It seems like they have a pretty good cross-section already, as there are 20 journals listed as members, about half of which are ranked in the top 50 law journals, and some in the top 30. Do more authors need to use it, so that journals will sign on? Or is there something I'm missing--some benefit of the current practice that PRSM fails to replicate?
The Significant Decline in Null Hypothesis Significance Testing?
- (Cross-posted at Co-Op.)
Prompted by Dan Kahan, I've been thinking a great deal about whether null hypothesis significance testing (NHST, marked by p values) is a misleading approach to many empirical problems. The basic argument against p-values (and in favor of robust descriptive statistics, including effect sizes and/or Bayesian data analysis) is fairly intuitive, and can be found here and here and here and here. In a working paper on situation sense, judging, and motivated cognition, Dan, I, and other co-authors explain a competing Bayesian approach:
In Bayesian hypothesis testing . . . the probability of obtaining the the effect observed in the experiment is calculated for two or more competing hypotheses. The relative magnitude of those probabilities is the equivalent of a Bayesian “likelihood ratio.” For example, one might say that it would be 5—or 500 or 0.2 or 0.002, etc.—times as likely that one would observe the results generated by the experiment if one hypothesis is true than if a rival one actually one is.
Under Bayes’ Theorem, the likelihood ratio is not the “probability” of a hypothesis being true but rather he factor by which one should update one’s prior assessment of the probability of the truth of a hypothesis or proposition. In an experimental stetting, it can be treated as an index of the weight with which the evidence supports one hypotheses in relation to the another.
Under Bayes’ Theorem, the strength of new evidence (the likelihood ratio) is, of course, analytically independent of one’s prior assessment of the probability of the hypothesis in question. Because neither the validity nor the weight of our study results depends on holding any particular prior about the [question of interest] we report only the indicated likelihood ratios and leave it to readers to adjust their own beliefs accordingly.
To be frank, I've been resisting Dan's
hectoring entreaties arguments to abandon NHST. One obvious reason is fear: I understand the virtues and vices of significance testing well. It has provided me a convenient heuristic to know when I've "finished" the experimental part of my research, and am ready to write the over-promising introduction and under-delivering normative sections of the paper. Moreover, p-values are widely used by courts (as Jason Bent is exploring). Or to put it differently, I'm well aware that the least positive thing one can say about a legal argument is that it is novel. Who wants to jump first into deep(er) waters?
At this year's CELS, I didn't see a single paper without p-values. So even if NHST is in decline, the barbarians are far from the capital. But, given what's happening in cognate disciplines, it might be time for law professors to get comfortable with a new way of evaluating empirical work.
Friday, March 27, 2015
Breaching a Law Review Contract?
I'm one of Temple Law Review's advisors. Given my views on student-run journals, this is a bit ironic. But the experience so far has taught me how much student editors care about getting it right, and how invested they can be in their journal's success. Or to put it differently, though in theory a goofy academic could generate a hundred more useful ways to spend students hours than law review, it's not at all obvious that any of those alternatives would generate equivalent passion and commitment from students.
The advising process has also recently given me a new perspective on an old problem. Very often, in the insane & dispiriting process that we call the submissions cycle, you hear of professors getting a great (read: higher prestige journal) offer just after they've accepted at a less great (read: lower prestige journal) placement. Counterfactual reasoning sets in -- "if only I'd pushed back against those meddling kids!" - and everyone who hears the story feels a punch in the gut, excepting those who refuse to play the game. Inevitably the question is entertained: what, exactly, is stopping the professor from backing out of the deal with mediocre law review A to accept the offer of awesome law review B? After all, the process is crooked, everyone is just reading expedites, and reliance arguments are weak. Law reviews aren't going to sue for breach of contract -- even if one exists, which might be doubtful. If they did , this is the clearest case of efficient breach possible.
But then norms of professional courtesy typically set in. And, though I've been teaching for over a decade, and heard literally dozens of stories like this, I'd never actually heard of anyone backing out of a law review acceptance until this cycle. Temple just had someone back out. Because that person is junior - and no doubt listening to a more senior mentor's advice - I'm not going to provide more details. I will say that the acceptance/rejection cycle was very dispiriting to the students involved, and it rightly might make them quite cynical. And it did make me wonder whether publication decommitments are more widespread than I'd thought, and whether journals could (or should) do anything to stop them.
Have I just been naive? Is law review conscious decoupling common? Is that behavior, in fact, righteous?
Thursday, March 26, 2015
One of the urban legends of childhood is that individuals get a fresh start when they turn 18. Of course, like many urban legends, it's not entirely false. Policies linked to this fresh start include a separate juvenile court that offers enhanced confidentiality, including sealing records. The unsuccessful litigation by a blogger and the St. Louis Post-Dispatch to force the disclosure of Michael Brown's juvenile records (if there were any) in the wake of his shooting by Ferguson Police Officer Darren Wilson demonstrated that, even in a world where criminal records are increasingly available to anyone, we still strive to protect individuals from the disclosure of their youthful mistakes.
Of course, it was never true in the past that individuals got a clean slate at 18, and is decidedly not true today. Because we all carry pocket-sized cameras and video-recorders around, adolescence will more publicly haunt the young people of today than any other prior group. But it's not just recorded behavior that lives on. Thanks to facebook and other social media, young people say cringe-inducing things that either seemed like a good or funny thing to say at the time, or that don't reflect their beliefs as they mature and learn more about the world.
To minimize the downside of recorded adolescence, California passed a law (SB 568) in late 2013 that came to be called the online "Eraser Button." The law requires operators of websites, online services, or apps to permit a minor to remove, or to request and obtain removal of, content or information posted online. In short, it allows those under 18 to scrub the internet of embarrassing videos and pictures of themselves, or unsavory posts.
It's true that most websites already have a delete button. At the same time, it can be quite difficult to delete content from the internet. Photos spread virally, and the wayback machine has already saved, according to its website, 456 billion web pages. But I'm less interested in the technical efficacy of the eraser button (though it can't be ignored when considering such policies). Instead, I'm interested in whether the ability to erase adolescence in a world devoted to record-keeping is good or even necessary.
Narrowing During Oral Argument in Caulkett
On Tuesday, the Supreme Court heard argument in Bank of America, N.A. v. Caulkett, which substantially concerned the viability of the 1992 precedent Dewsnup v. Timm. The resulting conversation ranged far and wide on the subject of precedent, including reflections about when to overrule and about what I’ve called personal precedent. In this post, I’ll focus on the justices' extensive ruminations on the subject of "narrowing," or interpreting a precedent not to apply in a situation where that precedent is best read to apply. (Many of my points stem from my recent article on the subject.)
The surprise in the Bergdahl charges
Yesterday, the Army formally charged Sergeant Bowe Bergdahl for leaving his outpost in Afghanistan (here is a link to the press conference, h/t CAAFLog). Shortly after he left, he was captured by the Taliban and spent five years in captivity before President Obama swapped him for some prisoners we were holding at GTMO.
The decision to charge Sergeant Bergdahl isn't particularly surprising, and there are reasonable arguments both for going forward and for exercising restraint.
The first charge, desertion with the intent to avoid hazardous duty, is pretty straightforward and there shouldn't be any real issues with that one. (The offense was complete the moment he quit the unit with that intent, so the fact that he was in Taliban custody and it was impossible for him to return does not matter.)
However, the decision to charge him under Article 99 of the UCMJ is surprising. Basically, this is the cowardice statute. You violate it if you are "before the enemy" and you run away; shamefully surrender your position; cast away your arms or ammunition; act cowardly; willfully fail to "do his utmost to encounter, engage, capture, or destroy any enemy troops" (as in, fight); or fail to come to the aid of your comrades when they are in contact with the enemy, among other things. This is a serious offense. Technically, the punishment could be death (although that probably would not survive constitutional scrutiny).
The fear of the shame that is associated with these acts is more powerful than the fear of death. This fear is what gets soldiers out of foxholes and into the fight. Service members would rather leave a safe position and face certain death than experience this shame.
Better Call Saul does law
As I have written, I waited anxiously for Better Call Saul, the Breaking Bad prequel that focuses on criminal lawyer Saul Goodman in his early days as Jimmy McGill. And the show has not disappointed.
Medical shows regularly feature actors spouting off medical and scientific lingo and I always wonder whether what they were saying made any sense. This week's episode of BCS, "RICO," gives law that treatment--cases, rules, and statutes are bandied about and lawyers are asked to look things up on Westlaw and to Shepardize.
Jimmy discovers that an assisted-living facility is surreptitiously charging its residents (including his client) for various supplies (such as $ 14 for a box of tissues). He and his brother start putting together a case involving claims for elder abuse, fraud, unfair trade practices, and RICO (hence the title).
I went back through the episode to hear all the law talk and try to figure out how much of the law made any actual sense.
Wednesday, March 25, 2015
Fair-weather color-blindness in the Alabama Redistricting Case?
Have the Republicans on SCOTUS gone all squishy on color-blindness? In Alabama Black Legislative Caucus v. Alabama, the Republicans, minus Kennedy, dissented from Breyer’s five-vote majority opinion holding that the Alabama legislature must have a better reason for a rigid racial quota than obedience to a federal law that does not, in fact, require such quotas. The Alabama legislature had followed a self-conscious and explicit policy of insuring that majority-minority “safe” districts never dropped below 70% black population, claiming that the Voting Rights Act made them do it. One would think that Republican justices’ famous adherence to the color-blind constitution would make them suspicious of such a quota and eager to construe narrowly a federal statute proffered to justify such a practice of super-safe Black districts . Remember the Chief's crisp catchphrase? “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race”? Yet Roberts joined Scalia’s dissent along with Alito and Thomas in proclaiming that the Alabama legislature was allowed to use a rigid racial quota, because the plaintiffs had not sufficiently pled how race had shaped specific gerrymandered districts. Thomas wrote separately to explain that, much to his dismay, the Voting Rights Act’s anti-retrogression provision required “max-black” districts.
A cynical Realist might be forgiven for suspecting that the Republican justices pulled their color-blind punches to benefit Republican state legislators. Republican state legislatures in the South have benefited enormously from packing Black voters into a few super-safe districts that notoriously hurt Black voters and racially polarize elections by reducing the number of seats that they can influence and splitting apart black-white coalitions. The Alabama legislature’s simple 70% solution was a nakedly partisan effort to hide behind the VRA for electoral gains. Had Thomas cared to do so, he could have adopted a savings construction of the VRA to curb such efforts, because neither the notoriously vague “predominant motive” test nor the equally vague VRA section 5 unequivocally sanctioned such behavior. Likewise, Scalia could have adopted a charitable reading of the plaintiffs’ pleadings that would have kept the the plaintiffs in play – a reading that would especially acceptable given that the underlying doctrine is so incoherent. What else but partisan loyalty, then, could cause them to pull their color-blind punches?
Of course, one could easily imagine Thomas’ and Scalia’s asking a similar question of Justice Ginsburg, who dissented in Miller v. Johnson back in 1995 with the complaint strikingly similar to Justice Thomas’ now -- that the “Court's disposition renders redistricting perilous work for state legislatures.” Scalia and Thomas might reasonably wonder whether Ginsburg has now more of a stomach for imposing such perils now that the state legislatures are Republican. Why, they might reasonably ask, does the Court stretch to enforce the murky “predominant motive” test only now, when the beneficiaries are Republicans?
The problem is not that one side or another has not stuck with constitutional principles. The problem, instead, is that neither side will rationally stick with a principle that it suspects its rivals will ditch when the ideological value sign of the case changes. This is a problem of signaling credible commitment -- the heart and soul of all constitutions -- not a problem of moral failure. After the jump, some thoughts on how to make commitments to doctrine stick.
The Sweet Briar Legal Challenge
The alumnae group Saving Sweet Briar has hired the law firm of Troutman Sanders LLP to represent the group in its attempt to oust the current board and prevent the school's closure. The law firm sent a letter to the board's counsel outlining its legal position. Its first argument makes a breach-of-fiduciary-duty claim, asserting that "[a]s directors of a non-stock corporation, your clients [that is, the board members] are required to promote the College’s best interests, and your clients have good faith duties of care, loyalty, and obedience toward the College."
As I said before, however, I don't know that the Board's fiduciary duty in fact runs to the institution--I think the duty runs more broadly to the institution's mission. In good times, those duties would be congruent; in less good times, however, the two may conflict. What if, as some have posited, Sweet Briar could be saved by going co-ed? Or by lowering academic credentials? I'm not sure how well the school's mission is defined; it was explicitly founded to educate women, and perhaps less explicitly, founded to educate women from a relatively elite social class. (Perhaps not so much less explicitly--social class seems to come up often in discussions of the college's past and present, and a recent New York Times article points out that "both Mr. Jones [the interim president] and Paul Rice, the board chairman, said Sweet Briar’s rich-girl days were long gone").
Ceci N’est Pas Un Taxi: Definitional Defiance as Innovation in the Platform Economy
This weekend I attending the second annual Innovation Beyond IP Law conference at Yale Law School. Last year I presented at the inaugural conference an article about human capital law, The New Cognitive Property, which has just been published in the Texas Law Review this week (and stay tuned for comments on the paper to be published in Texas Law Rev See Also by Brett Frischman & Mark McKenna). The conference was very helpful in shaping that paper and I look forward to the same kind of rigor with a new article I am writing about the Law of the Platform.
Over 10,000 new platform companies have sprouted and mushroomed in less than a decade and they continue to pop up daily. The platform economy, while not easy to define or quantify, was valued in 2013 at $26 billion with predictions of an exponential growth to $110 billion in the next few years. A recent Price Waterhouse report predicts that globally, revenues from the platform sectors could hit $335 billion by 2025.
So what’s your business? You don’t need to open a restaurant to host cooking events; you don’t need to become a taxi driver to offer paid rides; you don’t need to open a hotel to be a lodging host; you don’t need to start a moving company to get paid for helping someone relocate. Platform businesses are challenging conventional industries in every realm, including hotels (Airbnb, Couchsurfing, Homeaway, VRBO), office space (Liquid Space, ShareDesk), parking spaces (ParkingPanda, Park Circa), transportation (Lyft, Sidecar, Uber), restaurants (Eatwith, Feastly, Blue Apron, Munchery), used clothing (ThredUp), household tools (Open Shed), outdoor gear (Gearcommons), capital (Zopa; Prosper, Kickstarter, Bitcoin), broadcasting (Aereo, FilmOn.com), co-developing (Quirkly, Etsy), legal services (Upcounsel), medical services (Healthtap), academic tutoring (Uguru), everyday errands such as grocery shopping and laundry (TaskRabbit, Instacart, Airtasker, Washio), and specialized errands, such as flower delivery (BloomThat), dog-walking (DogVacay) and package delivery (Shyp).
If not Holmes, then Kennedy?
Ron Collins discusses a new book by First Amendment scholar Burt Neuborne, Madison's Music: On Reading the First Amendment. NYU Law hosted a program on the book last week, featuring Justice Sotomayor. In the book, Neuborne refers to Justice Kennedy as "the most important First Amendment Judge that has ever sat on the Supreme Court."
When his book The Great Dissent was published in 2013, Thomas Healy had an exchange with Mike Dorf in which he wondered who might have led the charge on free speech had Holmes not changed his mind in Abrams; Healy ran through a number of names but found all lacking. In my new article, I argue that Justice Brennan (who Healy did not mention in his blog post) would have been the justice to take that lead, discussing the various areas in which Brennan set out (or tried to set out) a uniquely speech-protective First Amendment vision and often succeeded in pulling majorities with him.
Tuesday, March 24, 2015
SCOTUS Decision on Agency Determinations and Issue Preclusion
Today the Supreme Court decided B&B Hardware, Inc. v. Hargis Industries, Inc., a case about the preclusive effect of determinations made by the Trademark Trial and Appeal Board (TTAB) when reviewing trademark registrations. Writing for a seven-Justice majority, Justice Alito concludes that “a court should give preclusive effect to TTAB decisions if the ordinary elements of issue preclusion are met.”
Going forward, parties in trademark litigation will likely continue to litigate whether “the ordinary elements of issue preclusion” are, in fact, met with respect to any given TTAB decision. As Justice Ginsburg emphasizes in her brief concurrence, the Court recognizes that “for a great many registration decisions issue preclusion obviously will not apply.” Ginsburg explains that “contested registrations are often decided upon a comparison of the marks in the abstract and apart from their marketplace usage,” and that, if so, “there will be no preclusion of the likelihood of confusion issue in a later infringement suit.”
What may be of broader interest is the Court’s discussion of “whether an agency decision can ever ground issue preclusion.” The answer: yes, it can.
I wrote a review essay about Force Majeure (now available for streaming at Netflix) for Tikkun. The film was an excuse for me to meditate on performances of masculinity, bourgeois feminism, monogamy, and marriage. Something to provoke just about anyone.
"The Theocracy Brief"?
At the Crime and Consequences blog, which is a project of the Criminal Justice Legal Foundation, there is a post by Kent Scheidegger called "The Theocracy Brief," which takes issue with the amicus brief filed by the National Catholic Reporter in Glossip v. Gross (the SCOTUS case involving Oklahoma's lethal-injection procedures). Here's the primary part of the post:
Some briefs are just downright weird. In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus briefpurporting to explain the teachings of the Catholic Church on the subject. I have no opinion on whether what they say is correct. I know nothing about it. I do have an opinion on whether what they say has any relevance. It does not.
Last time I checked, the United States of America was not a theocracy. Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.
If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment? Of course not. So why would the teachings of the Catholic Church have any greater relevance? Because five of the current Justices of the Supreme Court happen to be Catholic? I am quite sure all five have the integrity not to let such an argument influence them.
* I don't know if they do, and truth of the "if" is not necessary to the point being made.
As it happens, the amicus brief has an entire section dedicated to explaining why the teachings of the Catholic Church with respect to capital punishment are, or at least could be, relevant to the particular question presented in this case. It seems to me that Mr. Scheidegger's "theocracy" charge is misplaced.
Obviously, the Church's teachings as such are not binding or authoritative on the Court when it answers legal questions and, generally speaking, whether or not the Church approves of this or that has nothing to do with questions about what the Constitution says (or doesn't) about this or that. But, in this particular context, the Court's own precedents and doctrines seem to make relevant "the evolving standards of decency that mark the progress of a maturing society" and so there seems to be nothing particularly strange -- and certainly nothing "theocratic" -- about an amicus brief that says, in effect, "given that you have told us you are interested in what people think about the matter, here's what a whole lot of us think about the matter, and here's why. Just FYI."
Monday, March 23, 2015
A few posts ago, I discussed one of the teaching models that the Army uses: crawl, walk, run. Within that model, at each level, the Army uses another model: talk-show-do-test. The basic idea is that you talk to the students about the skill (these can be manual skills or thinking skills); you then show them how to do what it is that you want them to do; you then have them do it; and then you test them on it.
This year, I am teaching a "foundational" course (criminal law) for the first time. As I thought through how I wanted to evaluate my students using the talk-show-do-test model, I was struck by the disconnect between the skills that we tend to focus on in foundational classes and the skills that we actually test.
A Texas bill that is both stupid and unconstitutional
There are stupid laws, there are unconstitutional laws, and then there is this bill introduced in the Texas House by Rep. Jason Villalba. The bill would define "interruption,disruption, impediment, or interference" with police (already a crime) to include a person "filming, recording, photographing, or documenting the officer within 25 feet of the officer," 100 feet if the person is carrying a handgun. The bill includes an exception for mainstream news media (defined in the bill). Breitbart Texas has a story, including reactions from various advocacy groups and Rep. Villalba's efforts to defend his creation on Twitter by insisting that it protects police without prohibiting recording or efforts to hold police accountable.
Assuming that recording public events is protected First Amendment activity (the Fifth Circuit has yet to decide the issue), this law would be in an immense amount of trouble. Where to begin?
Upcoming Conference on Gang Injunctions, Enhancements, and Databases
The Center for Juvenile Law and Policy at Loyola Law School, Los Angeles, where I teach, is holding a 2-day conference about gangs on April 24-25 that may be of interest to Prawfs readers. The conference plans sessions on California's Street Terrorism Enforcement and Prevention Act (STEP Act), which is a sentencing enhancement law, the use of gang experts at trial, anti-gang injunctions, gang prevention and outreach, and gang databases. The conference registration page is here
The topic of gang databases is one I cover in my forthcoming article Databasing Delinquency. The article describes the vast extent of modern data collection about juveniles by the criminal justice system (gang databases, sex offender registration for juveniles, DNA databases, schools as informants, and more) and the debilitating short and long-term harms it inflicts on youth. Data collection by itself is not the main problem (though there are harms caused by its mere collection). It’s the retention and sharing of the information that raise concerns. Much of the information collected by law enforcement (which goes far beyond charges and convictions) is retained indefinitely and shared beyond law enforcement, finds its way to the internet and the databases of private commercial background check vendors, and comes back to haunt individuals as they make the important transition to adulthood and seek employment, higher education, and housing.
I argue that, consistent with developmental science, a separate juvenile justice system, Supreme Court jurisprudence, and the purpose and meaning of childhood, there should be limits on the amount of information that the criminal justice system can gather, store and share about juveniles. This would add appropriate restraints so that public safety gains from databasing do not come at the expense of juvenile privacy, juveniles’ life chances, or childhood itself. I’m not arguing for an automatic clean slate at 18 or any other age, but even Santa Claus, who keeps one of the most important lists of who has been naughty and nice, only looks back 12 months.
Two Interesting SCOTUS Cert Grants Today
Today’s order list from the Supreme Court includes grants of certiorari in two cases.
DIRECTV v. Imburgia (No. 14-462) will ask the Court once more to address arbitration agreements and the Federal Arbitration Act. The question presented is:
Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.
Montgomery v. Louisiana (14-280) involves the retroactivity of the Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment forbids sentencing schemes that mandate life-without-possibility-of-parole sentences for juvenile homicide offenders. The question presented in the cert. petition is:
Whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?
But the Court also asked the parties to address whether it even has jurisdiction:
Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller?
[Cross-posted at the Civil Procedure & Federal Courts Blog]
The First Amendment and the Redskins trademark, Part I: Government speech
The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is the first several guest posts on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog
The ACLU recently filed an amicus brief in the Washington Redskins trademark case, arguing that the Patent and Trademark Office’s (PTO) cancellation of Redskins registrations constitutes viewpoint discrimination contrary to the First Amendment, and urging the federal court to strike down those portions of Section 2(a) of the Lanham Act that prohibit the registration of “immoral,” “scandalous,” or “disparage[ing]” marks. We are deeply concerned with the ACLU’s position. Its proposal to thrust First Amendment law into an area of commercial regulation in unprecedented ways would wreak havoc with trademark law’s careful balance of concerns for property rights, economic exchange, and consumer protection. We believe that the ACLU’s fundamental misunderstanding of trademark law has caused it to misapply First Amendment doctrine.
In this first post, we wish to focus on the ACLU’s invocation of two First Amendment doctrines: viewpoint discrimination and unconstitutional conditions (we leave for a separate post whether the commercial speech doctrine might be appropriate). The ACLU’s position erroneously elides the various forms of government regulation and their contexts, treating trademark law like criminal law, municipal ordinances dealing with protests, laws creating public fora, and public subsidies. But the strongest First Amendment doctrines designed to ensure robust public debate simply don’t map on to trademark regulation without creating a major upheaval in trademark law. First Amendment doctrine requires strict scrutiny whenever there is a direct, content-based regulation of private speech. The federal trademark registry, however, does not operate like a direct regulation of private speech, nor does it create a forum for the expression of private speech.
The emergence of political hate
An interesting take on hyper-partisanship and deeper political commitments from Keith Humphreys at RBC. But is he right about this being a new phenomenon? I am not so sure.
People hated Lincoln so much they tried to leave the country. Some of the rhetoric directed against, say, Jefferson or Andrew Jackson or FDR was as hateful and hate-filled as anything directed at Clinton, GWB, or Obama, or that will be directed at Hillary. And as for the niche press, the image of the impartial press dates, at the earliest, to the mid-19th century. If we go back to the Founding, there was a Federalist press and an Anti-Federalist press and the lines between them were clear and the rhetoric emerging from them was hostile much in the way Keith describes--that is why John Adams wanted the Alien and Sedition Acts.
Biased Police Dogs
One surprising revelation of the Justice Department's report on Ferguson's police department was that:
"[C]anine officers use dogs out of proportion to the threat posed by the people they encounter, leaving serious puncture wounds to nonviolent offenders, some of them children. Furthermore, in every canine bite incident for which racial information is available, the subject was African American."
The obvious takeaway from this startling information is the one drawn by the Justice Department, that "race may play an impermissible role in officers’ decisions to deploy canines." But a short and interesting article in the New Yorker suggests another, equally upsetting, reason that these dogs may have attacked only African American suspects: they are affected by "the hidden racial prejudices of the police officers who deploy them." It is hard to draw this conclusion from the Ferguson case alone but the article's author cites several other examples of how a trainer's biases can impact their canine charges.
The author also questions the received wisdom that dogs are particularly useful aids to law enforcement more generally. This is not an area I have looked into but am now curious about the police's use of dogs, when it is appropriate, and whether the resources spent on their training and care is the best way to spend limited police budgets.
Sunday, March 22, 2015
NYU's Fight Against Isolationism in Shanghai: The Analogy to Iran
Recently, I engaged in a (I hope) good-natured fight with Steve Diamond over whether NYU’s presence in Shanghai is beneficial or harmful to the cause of Chinese civil liberties. You can read the points and counterpoints in the comments on my blog post. There is, however, one question that I did not ask Steve and the rest of the critics of “NYU-Shanghai,” NYU’s partnership with East China Normal University to provide a NYU-style education to Chinese students in China. Does it worry them just a little bit that their most vociferous allies in China are the Left Maoist enemies of “western values”?
Although Steve and others claim to speak on behalf of workers, feminists, farmers, and others abused by the Chinese Communist Party, they have yet (to my knowledge) been able to cite a single Chinese victim of the CCP who wants NYU to leave China. My own conversations with Beida academics who are also civil rights advocates in China suggest, indeed, that the people in China standing up for liberty are happy that NYU is in China. By contrast, Chinese nationalists denounce the presence of western academics in China, treating even on-line college courses from western sources as a dangerous virus. Like Steve, they seem to want us to leave. I would think that this neo-Maoist endorsement of the idea that westerners should get out of the business of educating Chinese would make people like Steve a bit uneasy. If NYU’s program here in Shanghai makes no contribution to liberty, as Steve asserted, then why do the enemies of liberty dislike it so much? They want to throw us out, Steve want us to leave: Should he not feel just a bit uncomfortable at having such strange bedfellows?
That last question can also be directed against my fellow Republicans who want to scuttle the Obama Administration's negotiations with Iran. When the result you hope to obtain is fervently desired by the people you claim to oppose, then does not this coincidence of aims suggest reason to doubt the goal?