Sunday, October 21, 2018
Infield Fly Rule as Mitzvah
On last week's edition of Tablet Magazine's Unorthodox podcast, a listener letter (read at the 1:07 mark) argues that baseball is the most Jewish sport, because it has "long tradition, weird and obscure rules that are subject to interpretation and doesn't change on a whim."
I like it, but it got me thinking: Which of the 613 Mitzvot is analogous to the Infield Fly Rule?
Friday, October 19, 2018
Attorney David Lurie criticizes the lawsuit by former DNC employees and Democratic donors against the Trump Campaign for its role in disseminating the Wikileaks documents. I largely agree with his substantive First Amendment points, at least absent some stronger connection between the campaign and the Russian hackers and/or Wikileaks.
My concern is this paragraph:
But absent a basis to assert that that Trump campaign reviewed or otherwise knew of what was actually contained in the emails, the plaintiffs’ allegation that the campaign launched a scheme with the Russians to plot out the dissemination of materials to “maximize their political impact” seems to be based on speculation, not facts. And the plaintiffs’ claim that the Trump campaign knew that their private information, or that of others, was going to be disseminated seems all the more speculative.
A later paragraph allows that "if the Mueller investigation ultimately does provide evidence that the Trump campaign actually “partnered” with the Russian government to publish the stolen DNC documents, a civil lawsuit could well be the very least of the president’s problems."
Both of these statements ignore the nature of civil pleading in federal court. At least before Twiqbal turned it into something different, pleading is supposed to be based on the plaintiff's allegations that may be speculative, because the plaintiff often/usually does not and cannot know at the outset what other people or organizations knew or did. That is what discovery is for--to uncover and obtain evidence to support those allegations. To require more before the plaintiffs have had an opportunity and authority to obtain information creates an impossible situation. Moreover, it should not only be for the Mueller investigation to provide evidence--civil litigation also exists to provide evidence of misconduct, in the course of proving that civil wrongdoing occurred. Lurie's argument is consistent with Twiqbal's approach to pleading; I do not think it wrestles with that problem.
Again, I believe the complaint is defective for other reasons--it alleges less collusion between the campaign and the Russians and more "advantage gained," which is not sufficient under the First Amendment. But the speculative nature of the allegations of what happened should not be a problem at the pleading stage. And this case illustrates the problem.
Thursday, October 18, 2018
Do Body Cameras Improve Police Conduct?
The police technology discussion tends to focus on privacy issues rather than equality issues—although there is a growing body of scholars to look to equality to critique the new technology. Privacy has dominated much of the body camera debate; but equality issues have also driven much of the movement towards demanding body cameras. The egalitarian argument is that body cameras restrain police use of force by providing an "angel on the shoulder" of the officer, whose deployment of force may well become public.
The problem with this argument, as with much of the body camera debate, is that there is very little data to go on. The "angel on the shoulder" argument depends heavily upon the results of the first, brief study in Rialto, California. More extensive studies in Mesa and Pheonix, Arizona, found that the "angel" effect dropped off after about six months or so. The police became more forceful, and complaints rose. The studies also found that the police were more likely to arrest, rather than release, individuals when they wore body cameras. And the effect on criminal prosecutions depended heavily on access to the cameras, and in particular, whether the prosecutor reviewed the footage, which did not occur in most cases.
One way to read the studies is that supervision really matters. So long as the patrol police think their conduct will be made public or reviewed by a supervisor, they will restrain themselves. When they discover that no-one is reviewing the footage, they return to policing as normal. The footage may have important benefits for defense counsel in humanizing their clients and providing important evidence during a criminal trial. That view is currently anecdotal and needs some further study.
Body cameras are promoted as if they will transform policing. They will not. The problems of police patrol are not driven by the willingness of police officers to restrain episodically, during encounters with civilians. The problems of police patrol concern the distribution of policing, and the style of policing that civilians encounter and endure. So long as the governing monolithic mode of policing is forcible presence on the street in which the dominant role is to establish an unquestioned but temporary physical presence in the community, policing will continue to do what it does least well. Policing could instead establish shared, local, consensual norms coalescing around establishing justice and addressing injustice, including pressing for more livable communities, with better facilities, that are accessible to all. Having a body camera record a flawed policing method will not make that method better. Nor will it encourage trust within those communities that must bear the brunt of forcible policing.
Historical baseball note
This may prove premature; if so, I apologize. The Red Sox and Dodgers, two of MLB's historic franchises, are each one game away from the World Series, so I had to look up whether they had ever met in the World Series in those long histories. The answer is in 1916, when Babe Ruth was the Red Sox star pitcher and the team from Brooklyn was known as the Robins. The broadcasters could have fun with this one.
Wednesday, October 17, 2018
SLAPP dismissal of Stormy Daniels' defamation suit
Judge Otero of the Central District of California dismissed Stormy Daniel's defamation action against President Trump under the Texas anti-SLAPP statute, holding that the President's tweets were rhetorical hyperbole and imposing attorney's fees under the statute.
Three quick thoughts.
Tuesday, October 16, 2018
We Can't Tech Our Way Out of Policing
My colleague Sean Kennedy and I have been running a monthly discussion forum on Policing Los Angeles, that has provided an opportunity for the police, community activists, academics, and criminal justice professionals to come together to discuss policing policy in Los Angeles, one of the global centers of the good, the bad, and the innovative in policing. We've been discussing police technology a lot.
As an extension of the discussions we've been promoting around policing, I had the pleasure to participate in the Los Angeles Sheriff's Civilian Oversight Commission's conference on Community Policing in Los Angeles: A Vision for the Future. The panel discussed: "When should the use of technology by law enforcement meet a stop sign?"
High tech policing focuses on what the police are worst at: solving crimes. We've known for a long, long time that the police are good at solving really obvious crimes that occur right in front of them—traffic offenses, jaywalking, and so on—and less good at solving crimes where they have to investigate and rely on witnesses. It turns out that if police do what they are good at—handing out tickets to traffic violators—that affects us directly. We don't want the police to police *us*: we want them to police the crimes that other people do, or to deal with *serious* crimes (itself a problematic definition).
We also know that the police are only okay at deterring crime, COMPSTAT, hot-spots policing, pulling levers policing, shotspotter, CCTV, and drones notwithstanding. A much better way of preventing crime is to provide jobs, education, and other opportunities. Crime is a feature of a state failure, whether the state is a centralized economy or a neo-liberal market. The police, unfortunately, have to bear the brunt of that failure.
Finally, some of the essential services provided by the police are non-criminal. We want the police to enforce public nuisances that are often regulated by administrative rules. Or we want the police to settle a minor dispute. And we want the police to respond quickly to emergency situations to help us out when we are in trouble.
The tech "revolution" in policing does nothing to transform these basic features of policing. Technology may make crime detection or prevention a little more effective. At the same time, it may deepen inequality within and between communities, undermining social networks, and creating feedback loops that increase scrutiny for some people, and engenders "legal estrangement." But technology does nothing to transform the underlying features of policing: that it is about relations between human beings: state officials on the one hand, and the public on the other.
The major resource in policing is people not technology. To solve a crime, the police need to be able to engage with witnesses. To maintain order, and respond to emergencies, the police need human personnel, not sonic detection devices, body worn cameras, and the like. There is a role for all of these in the discussion of policing, but by emphasizing the role of technology as a crime-fighting device, we afford a disproportionate amount of money, energy, and rhetorical space to one of the least impactful areas of policing.
Technology can help in first responder roles. It may help in the core police function of public order. If the technology and policing discussion wants to be relevant to the life of the communities over which it is deployed, however, the technology revolution should aid what the police are good at, not exaggerate the importance of their other roles.
Saturday, October 13, 2018
Catch-up rule in baseball
I missed this paper by two game theorists (one at NYU) and some news stories about it. It proposes the following change to baseball's rules: A team that is leading gets only two outs in its turn at bat. The goal is to shorten games and to make games more competitive by giving trailing teams an opportunity to come back. It then applied the rule to all MLB games from 1967-2017, finding that it shortened the average game by about five outs (about 24 minutes) and the average score difference by more than one run. I am not sure what to think about this, although WSJ sports columnist Jason Gay is a fan (subscription required).
Friday, October 12, 2018
Flipping the burden on voluntary cessation
This decision from the Fifth Circuit seems wrong, at least in its analysis. The court found moot a challenge to the New Orleans Public Defender's wait list for non-capital cases, because the state legislature allocated the PD's office sufficient funds and the office eliminated the wait list. The court stated:
we are justified in treating a voluntary governmental cessation of possibly wrongful conduct with some solicitude." Absent evidence to the contrary, we are to presume public-spiritedness, says the Supreme Court. Government officials "in their sovereign capacity and in the exercise of their official duties are accorded a presumption of good faith because they are public servants, not self-interested private parties." So, "[w]ithout evidence to the contrary, we assume that formally announced changes to official governmental policy are not mere litigation posturing.
But this seems to flip the burden of persuasion on voluntary cessation, presuming the government will not resume unlawful conduct (because the government is public-spirited) absent evidence from the plaintiff to the contrary. But this seems inconsistent with SCOTUS' insistence that "the defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur."
It does not seem possible to reconcile this case with Nike, at least in terms of the stated standard. The unprincipled explanation is that the Fifth Circuit was suspicious of the entire case and so was looking for a way to dump it. The plaintiffs and the defendant (the PD Office) agreed that the wait list was constitutionally invalid and the PD enacted the policy only because the lack of legislative funding tied its hands. The court hints that the entire action is "a coordinated public-relations effort to force funding" rather than a genuine attempt to enforce constitutional rights.
Suspicion aside, this agreed-upon conclusion meant it was unlikely that the PD would reenact the challenged policy on its own. Which may be true and may justify finding the case moot. But the burden remains on the PD to show that, not on the plaintiffs to rebut the assumption.
Thursday, October 11, 2018
Federal Judicial Center Job Posting
From Timothy Lau at the Federal Judicial Center:
For those who are on the law faculty market with both a J.D. and a Ph.D., you may be interested to know that the Research Division of the Federal Judicial Center is currently seeking a Research Associate. The Federal Judicial Center is the research and education agency of the United States federal courts, and, unlike chamber law clerks, the research associates provide research for the federal courts on a systemic level. The research work is similar to that of law professors, and, while the position does not require any teaching, there may be opportunities to participate in education of federal as well as foreign judges. In addition, the research of the Federal Judicial Center can have real impact. Projects are often developed around specific requests of the policy-makers within the federal courts, including its Advisory Committees on Federal Rules, and are sometimes based on Congressional statutory mandate. The pay is competitive with starting law faculty salaries. The precise job listing can be found at:
It should be noted that, notwithstanding the language of the job announcement, any Ph.D. will be considered. Interested persons can contact me with questions at tlau at fjc dot gov.
Might progressives adopt judicial departmentalism?
Slate is running a debate between Daniel Hemel (Chicago) and Christopher Jon Sprigman (NYU) about whether progressives should abandon judicial supremacy and a belief in the Court and what it should replace that with. Hemel is more in favor of retaining faith in a (modified) Court, while Sprigman is more pessimistic.
Sprigman points to a clause in the Canadian Constitution that allows a national or provincial legislature to override a Supreme Court decision, by allowing a law to operate "notwithstanding" a court decision to the contrary. He proposes a law that allows Congress to override a Supreme Court decision (made in its appellate jurisdiction), then strip the federal courts of jurisdiction to hear cases resisting the overrides.
But I wonder if judicial departmentalism, which allows the other branches to ignore precedent and act on their own constitutional interpretations, gets us to the same place. Under a judicial departmentalist regime, Congress could reenact and the executive could continue to enforce a law that the Court had declared constitutionally invalid against anyone other than the party to the original case (who is protected by a judgment). Under judicial departmentalism, there is no need for an "override" of SCOTUS's decision, because the only binding effect of SCOTUS' decision on the other branches is its judgment prohibiting enforcement against the plaintiffs in that case. The problem remains that the courts must apply SCOTUS precedent in the challenge to the new law or subsequent enforcement efforts, so the result of new litigation over the same constitutional issue will be the same. But Sprigman's jurisdiction-stripping proposal may address that concern. Or the executive's repeated reassertion of the law's validity may cause the Court to yield to the other branches in the exchange, as happened during the New Deal (although for slightly different reasons, the idea remains the same).
I would also note Hemel's post arguing that "the court’s worst moments have been moments of weakness, not overexertions of strength." This echoes the argument by Suzanna Sherry (and subsequent micro-symposium) that the Court's greatest failures are when it is inactivist, standing by and declaring laws constitutionally valid.
On not talking the Talk
I'm fascinated by police encounters with the public. As the Court in Terry v. Ohio taught us, these encounters come in all shapes and sizes. Quite often, these encounters result in low-level discipline even if they do not result in an arrest: what the *Terry* Court called "harassment." Some turn deadly. As a result, for many members of the public, the encounter, even if just a stare from a police officer in a high-crime neighborhood, gives rise to the fear and deference that comes with trying to avoid or placate the powerful.
I recently reviewed Josephine Ross's article, What the #Metoo Campaign Teaches About Stop and Frisk, ___ Idaho L. Rev. ___ (2018), discussing why Eric Garner did not run. Eric Garner, Ross points out, stood his ground, and said "Every time you see me, you want to mess with me. I'm tired of it. It stops today…Please just leave me alone." Ross revels that Garner had been the victim of the sort of physically intrusive touching envisaged by the Terry Court as a serious aspect of the stop-and-frisk. Garner, as Ross notes, had previously suffered "a 'cavity search [in which the officer was] . . . digging his fingers in my rectum in the middle of the street." Garner experienced this as a loss of self respect: "the injuries I received was to my manhood"
Garner's reaction to the officer was that of a victim of what felt to him like a sexual assault. Garner likely knew "the Talk": he knew he was in a vulnerable position and was supposed to show deference to the police. Instead he decided to assert his duty to respect himself and his right to be treated with respect: to act, and to be acted towards, as a fellow human being, someone with cares and interests in maintaining his dignity.
In too many aspects of our society, race work is internalized, by the dominant and the subordinated, as servitude work. People like Eric Garner are expected to perform a sort self-abnegation undermining self-respect to mollify some police officer so as to convince the officer to respond calmly and civilly. This places many of us in a difficult position: enacting servitude has moral and political consequences both individually and collectively
If we are to avoid authoritarian government—on the local or on the national level—we must have equal standing; quite literally, perhaps. The civic republican idea of this non-dominative or anti-subordinating version of equal standing is "the ability to look each other in the eye." The sort of response anticipated by the Talk, and demanded by one policing notion of "respect" quite literally precludes this sort of eye-to-eye interaction, treating these self-respecting looks as disobedient stares and a form of resistance. Too much of the history of people of color in this country is one of not making eye contact, of crossing streets and embodying deference as a form of second-class citizenship. Policing, through its demands for compliance and deference on pain of being treated as resistant, is not a neutral activity, responding to crime, but a political activity, creating citizenship status through the ways the police choose if, and when, and whom, and how to encounter people on the street.