Friday, February 29, 2008
It's that time of the month to say thanks to our past guests and welcome our new ones.
First, I'm very grateful to Adam Winkler, Liz Glazer, Zak Kramer, Jay Michaelson, Scott Dodson, Rob Kar, and Brooks Holland for all their contributions over the last few weeks. A couple of our guests were more silent than expected: sadly, Erik Knutsen has suffered a flood in his home in Kingston and thus has promised to deliver in the near future; same with Jim Von der Heydt, who has been busy with a new baby and a new book. Accordingly, we've extended them a reprieve and along with Howard and Eric Johnson, they'll be sticking around longer.
On tap for this month, we have some new voices to Prawfs: Rick Hills from NYU and Amy Barrett from Notre Dame. Additionally we welcome back our friends Jason Solomon from Georgia, Tommy Crocker from USCarolina, Joe Slater from Toledo, James Grimmelmann from NYLS, Jessie Hill from Case Western, Doug Berman from Ohio State, and Adam Kolber from San Diego/Princeton.
Welcome one and all. Nunc est bibendum.
The New York Court of Appeals, Corrections Officers, and § 1983
Although it’s several months old, I just came across this fascinating (and rather disturbing) decision by the New York Court of Appeals from last November. In short, the Court of Appeals upheld section 24 of the N.Y. Correction Law, even though that statute precludes the New York state courts from entertaining any damages actions (including § 1983 claims alleging federal constitutional violations) by state prisoners against state correctional officers. In other words, the court sustained a state law that precluded state courts from entertaining, inter alia, federal question lawsuits raising constitutional claims.
To be fair, the statute, along similar lines to the federal Westfall Act, provides that any damages claim arising out of the official acts of a corrections officer can be brought in the New York Court of Claims as a claim against the state itself. But there’s a very serious constitutional question here: May states so thoroughly constrain (and perhaps even preclude) their own courts from entertaining such a federal question lawsuit?
I think the answer is a resounding “no,” but it requires a little bit of unpacking, which I attempt below the fold.
It is axiomatic that, as a general matter, the state courts are not just entitled, but obliged, to entertain federal question lawsuits by virtue of the Supremacy Clause. As a result, there are three general principles (as enunciated by Justice Stevens in 1990) that govern attempts by states to preclude enforcement of federal questions in state courts:
- A state court may not deny a federal right, when the parties and controversy are properly before it, in the absence of “valid excuse.”
- An excuse that is inconsistent with or violates federal law is not a valid excuse.
- When a state court refuses jurisdiction because of a neutral state rule regarding the administration of the courts, [the Court] must act with utmost caution before deciding that it is obligated to entertain the claim.
With regard to the
There is a certain logic to the majority’s argument:
First, section 24 of the New York Correction Law has the
effect of immunizing officer-defendants in the Court of Claims. Because the
statute substitutes the State of
Second, the State of
Third, and related to the first two points, I’m pretty sure
the Supreme Court has already rejected this argument—and unanimously at that—in Howlett ex rel. Howlett
v. Rose, in 1990. There, the Court concluded that “the
It is settled that a court of otherwise competent jurisdiction may not avoid its parallel obligation under the Full Faith and Credit Clause to entertain another State's cause of action by invocation of the term “jurisdiction.” A State cannot “escape this constitutional obligation to enforce the rights and duties validly created under the laws of other states by the simple device of removing jurisdiction from courts otherwise competent.” Similarly, a State may not evade the strictures of the Privileges and Immunities Clause by denying jurisdiction to a court otherwise competent. As our discussion of Testa, McKnett, and Mondou establishes, the same is true with respect to a state court’s obligations under the Supremacy Clause. The force of the Supremacy Clause is not so weak that it can be evaded by mere mention of the word “jurisdiction.” Indeed, if this argument had merit, the State of
Wisconsin could overrule our decision in Felder v. Casey, 487 U.S. 131 (1988), by simply amending its notice-of-claim statute to provide that no state court would have jurisdiction of an action in which the plaintiff failed to give the required notice. The Supremacy Clause requires more than that.
In other words, as Judge Jones wrote in his dissent in the New York Court of Appeals, “once a state opens its courts to hear section 1983 actions, it may not selectively exclude certain section 1983 actions by denominating state policies as jurisdictional.” Judge Jones's dissent also quotes an ABA guide to § 1983 litigation in state court for the proposition that: “The most flagrant example of a state court system selectively excluding § 1983 cases is the refusal of the New York courts to entertain § 1983 actions against state correctional officials.”
So it seems. And given the analysis above, I cannot see how such a hostile attitude to federal claims is possibly constitutional.
For Our Hanover, New Hampshire-Area Readers...
I'll be speaking later today at a neat-looking conference at Dartmouth College co-sponsored by the Ford Foundation, titled "The Gaze & the Veil: Surveillance and the Legacies of Orientalism." My topic, specifically, is "Hamdan v. Rumsfeld and the Marginalization of Individual Rights," a paper to which I've alluded before, and about which I hope to blog more shortly.
In the meantime, it's frickin' cold here! When I got on the plane this morning, I almost got off when the pilot said it was -12 at our destination (Lebanon Municipal Airport). Fortunately, by the time we landed, it had "warmed up" to -10.
At least there's EBA's!!!
Friday Music Blog: Recommendations
So goes another guest stint. Thanks to Dan et al. for having me.
As much as I like to recommend music, I really love to get recommendations. So I offer a trade: I'll make one more recommendation, and you all can make some recommendations in the comments.
My recommendation is Jesca Hoop. You can listen to her music here, here, and here. I saw Jesca ("Don't call her Jessica") Hoop open for Mark Kozelek at the Troubador in West Hollywood, California. At the time, I remember thinking that her music was odd in a lovely sort of way, similar to Bjork but with a softer, more personal sensibility. I finally got around to listening to her new full-length album, Kismet, and it's really wonderful. I really recommend it. Nic Harcourt, the music director at KCRW and who is , in my mind, perhaps the best source for new music, ranked Kismet number one on his list of the best albums of 2007. (Surf here for the whole list.) But my favorite fun fact about Jesca Hoop is that she met her music mentor, Tom Waits (awesome!), while working as a nanny for the Waits clan. Not a bad job for an up-and-coming muscian. Enjoy!
So what do you suggest?
Until Next Time...
It's time to sign off. I have thoroughly enjoyed the experience blogging here at PrawfsBlawg, and I look foward to returning soon. I sorta wish I had a chance to do some shameless self-promoting while I was here, but it's probably best that I didn't. I'll just leave this link here and be done with it.
Thanks again to Dan and the rest of the PrawfsBlawg folks for letting me blog here this month!
Punishing Family Status: Some Examples (Part I)
Yesterday, I posted the introduction to a working draft of a paper, Punishing Family Status, by Ethan, Jennifer Collins and myself. Today we provide the first half of an overview of places within the criminal justice system where defendants are burdened in some way on account of their family status. I should note that what's below is not intended to be comprehensive; for instance, we have very recently come across some statutes that make it a crime for persons to not support their parents--filial responsibility statutes. We don't discuss these statutes in the paper below, but we plan on discussing them more in our book version of the project. Of course, if you have any thoughts about other criminal laws that should fit into our analysis described below, please let us know via email. Please excuse any formatting errors that might arise in the reproduction here--and note that we have omitted our footnotes here.
I. AN OVERVIEW OF FAMILY STATUS AND CRIMINAL JUSTICE BURDENS
Certain crimes permit prosecution of a defendant for conduct that would not otherwise be unlawful in the absence of a defendant’s familial connection to the crime. Examples include certain vicarious and omissions liability statutes, incest, bigamy, adultery and nonpayment of child support. Thus, to illustrate, incest statutes proscribe sexual conduct even between mature, consenting individuals, and other statutes impose criminal liability for the nonpayment of child support, even though we do not ordinarily criminalize a failure to satisfy a debt. In all of these examples, the familial status alters the blameworthiness the criminal justice system assigns to the underlying conduct. We examine these kinds of crimes in turn. Although these examples are not necessarily exhaustive, we believe they are the most frequently found examples of the criminal justice system’s decision to criminalize certain conduct on the basis of family status.
A. Omissions Liability
In June 2002, a 21 year-old mother named Shavon Greene was charged with aggravated manslaughter after her boyfriend allegedly beat her 21 month-old daughter to death. The prosecutor did not allege that Greene was even present during the beating; instead, she was charged because she had disregarded warnings from a social services investigator not to leave the child alone with her boyfriend. Greene eventually pled guilty to culpable negligence in the child’s death.
exceptions to the general rule are well-known, though the prospect of criminal
law enforcement of an exceptional duty to rescue is much more unusual than tort
law enforcement. As the D.C. Circuit stated in Jones v. United States:
There are at least four situations in which the failure to act may constitute breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntary assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
It is the second category that is of special interest here, for the status of husband to wife and parent to child are paradigmatic, even if not exclusive, examples of status relationships in which one owes a duty to rescue sufficient to trigger criminal responsibility (rather than mere tort liability). Accordingly, parents are regularly held criminally liable for neglect for failing to protect a child who was being sexually abused by another individual, and held criminally liable for manslaughter for failing to protect a child from fatal physical abuse inflicted by another. These prosecutions exemplify the family ties burden phenomenon by which persons in certain family relationships are held accountable for harms to others even when those harms are inflicted by another independent actor.
Not surprisingly, such prosecutions have been hotly debated by the legal academy. Some of the debate has revolved around whether the passive parent should be entitled to argue that her status as a battered person herself should excuse her failure to act. Perhaps the most highly publicized case in this regard involved Lisa Steinberg, who was beaten to death by her father while her mother, Hedda Nussbaum, allegedly did nothing to prevent the abuse. After Nussbaum established that she too had suffered serious physical abuse at the hands of Joel Steinberg, the prosecutor’s office elected to drop charges initially filed against her.
What are the problems with failure to prevent abuse prosecutions? First, critics charge that such prosecutions disproportionately target women. Indeed, women are more likely to bear the brunt of such prosecutions than men simply by virtue of the fact they are more often the custodial parent. Further, women are typically held to a higher standard of care in childrearing relative to men. As Naomi Cahn and Marie Ashe have argued, “Cultural middle-class norms expect all women to be primarily responsible for their children. The criminal justice system supports this norm by criminalizing the abusive and neglectful behavior of parents, penalizing mothers particularly harshly.” But supporters of prosecutions of passive parents counter that even a parent’s status as a victim of domestic violence cannot categorically excuse her failure to act to prevent the abuse of her child. For example, Mary Becker has suggested that “mothers, even when abused themselves, should be held to a high standard of care for their children and should normally be held responsible for their own abuse or neglect of their children and for failing to protect their children from others’ abuse and neglect, provided that they knew or had reason to know of the harm to their children.” That’s because even though the mother may have been weakened physically or mentally by virtue of the abuse she has suffered, unless she is “literally a hostage,” she still has options to employ in an attempt to protect her child that are not available to the child itself; young children, after all, are utterly defenseless and completely dependent upon adults for their protection.
B. Vicarious Liability
In the civil justice system (rather than in criminal justice), courts will sometimes hold a defendant (like an employer) liable for compensatory damages to an injured party even if the employer is not personally at fault for his employee’s misconduct. It’s often thought that such vicarious liability can be justified because if an innocent enterprise is made to recompense the victim, the enterprise can more easily absorb the cost of the tort and pass on the cost to consumers, which has the effect of minimizing burdens on any single tort victim. This rationale for vicarious liability erodes, however, when the liability leads to a criminal penalty against an individual rather than a civil payment for compensatory damages. After all, in the context of fines, the victim is not being paid; rather the state is. And the defendant is not being forced to merely pay for harm; the defendant is being condemned through punishment for wrongdoing that someone else committed even if the defendant was unaware of and did not participate in the wrongdoing and even if the defendant instructed the wrongdoer that such misconduct was forbidden.
Despite this disjunction between rationale and scope, jurisdictions regularly impose vicarious criminal liability. We sometimes see vicarious criminal liability in the context of public welfare offenses to ensure public health and safety. We also see vicarious liability in the context of the crime of conspiracy; co-conspirators have been held liable for substantive crimes committed by another member of the conspiracy, through the Pinkerton doctrine, even if not present at the scene of that crime or aware of the crime’s commission. These efforts are controversial and have been subject to substantial criticism.
But in the family context, we have seen the envelope of vicarious liability pushed even further. In the Pinkerton scenario, for example, some precursors for liability are that the actor commit the criminal act of joining the conspiracy and that the additional crime at issue be committed in furtherance of the conspiracy and be reasonably foreseeable. But when it comes to family members, we are seeing efforts to impose liability in the complete absence of criminal conduct by the parents.. Although such efforts have a long history, there has been a new spate of such laws in recent years. In the last year, for example, a Cleveland suburb adopted an ordinance holding parents criminally liable if their children are charged with a crime; a third conviction under the statute could result in parents serving 180 days in jail. Although an Ohio court recently ruled the Cleveland ordinance unconstitutional, it remains true that the renewed enthusiasm for vicarious parental liability commands attention. One community in Alabama recently proposed that parents be held criminally liable when minors consume alcohol in their homes, even if the parent had no knowledge at all that the alcohol was being consumed.
According to one commentator, criminal parental liability statutes fall into four categories. “The first two categories, truancy and curfew laws, generally impose criminal liability on a parent who knowingly allows his or her child to commit acts (staying out past an established curfew; not attending school) which would not be criminal if committed by an adult.” The third category, “contributing statutes,” impose liability on parents, or potentially any adult, who affirmatively contributes to the delinquency of a minor for, by example, “sending a child to a brothel” or providing a weapon.
The fourth category is the most controversial and is exemplified by the Cleveland ordinance referenced above – statutes that in essence convict parents for crimes committed by their children, or even for “unsavory activities engaged in by children,” on a “failure to supervise” theory or the like. For example, Louisiana has a statute subjecting parents to up to six months’ imprisonment for permitting an unlicensed minor driver to drive a vehicle if the minor ends up involved in an accident that resulted in death or serious bodily injury to another person. The statute also makes it a crime for a parent, “through criminal negligence,” to permit “the minor to associate with a person known by the parent” to be a gang member, a convicted felon, or a drug dealer or user. A parent convicted under this particular provision faces up to thirty days in a jail and a $250 fine. The statute allows a parent to escape liability under these latter provisions if they sought assistance from various agencies in modifying the child’s behavior or if they referred “the child to appropriate treatment or corrective facilities.”
There are two separate inquiries related to these legislative efforts: First, are they likely to be effective at reducing the incidence of crime by minors? Second, even if effective, is it just to hold parents liable for crimes committed by their children? Professor Dan Filler suggests that such statutes could be effective if the consequences for violation were sufficiently severe and certain, although of course we might not be willing to live with stakes of such high magnitude. For example, if parents whose children threw an alcohol-filled party for their friends faced a felony conviction and a lengthy jail term, most reasonable parents would quickly “lock up the booze and perhaps install a nanny-cam to monitor the house.” It is also important to note that these statutes are only likely to be effective if they are enforced more than just occasionally; even though these statutes are on the books in a number of states, criminal prosecutions remain relatively rare. Still, there have been some high-profile prosecutions, including the St. Clair prosecution discussed above.
But even if these statutes were made effective, would it be just to use them against parents? Support for these statutes is apparently motivated by the belief that “poor parenting” is a root cause of much of the juvenile crime in this country. As one family outreach worker exclaimed, “We have an adult problem, not a children problem . . . If we can get our adults together, the children will naturally fall in line.” One commentator has suggested that that “the rationale behind the parental liability laws – punishing the parents to reduce acts of juvenile delinquency by their children – must be based on a series of interconnected assumptions:” first, that the nature of the child’s behavior is directly – if not primarily – caused by the quality of the parenting in the household; second, that we can somehow create a “universal model of adequate parenting,” which all parents can and should adopt regardless of their circumstances; and third, that the threat of punishment will induce parents to adopt this government-sanctioned model of parenting.
Critics of these statutes, on the other hand, argue that the link between poor parenting and juvenile crime is far less certain than proponents suggest. Juveniles are no doubt also profoundly influenced by their peers, by their schools, by their communities, by the media, and perhaps by their genetic make-up. In addition, the threat of criminal liability might actually negatively impact parenting, rather than enhance it. One critic suggests that parental responsibility statutes will induce some parents to “over-parent, that is by either severely restricting their child’s freedom or by excessively punishing the child.” Other parents might respond by “under-parenting,” that is, by distancing themselves from their children “by filing ungovernability or similar petitions to transfer responsibility to the state.” In either case, the relationship between parent and child would become more adversarial and negative, rather than more productive and positive.
Incest remains one of the enduring sexual taboos. It is also yet another compli-cated example of a situation where criminal liability may attach to a person only on ac-count of some familial status. While prohibitions of incest are usually made in a blan-ket form, in theory they can be grouped into three different categories: first is regulation of sex between adults; second is regulation of sex between an adult and a minor, and third is regulation of sex between minors. Most jurisdictions are unlikely to make these distinc-tions in part because they don’t even inquire into whether the participants jointly consent to the sexual activity. This raises normative questions we address in Part III.
Forty-seven states criminalize some forms of consensual sexual relations be-tween family members, although there is some variation between the states in terms of what relationships are prohibited. All states with criminal incest statutes ban sexual re-lationships between parents and their children, regardless of the child’s age. And all of those states but one also ban sexual relationships between siblings; most ban relationships between aunts and uncles and their nephews and nieces. There is more divergence on the question of cousins; only eight states criminalize sexual contact between first cous-ins, but twenty-five states do not permit first cousins to marry. Some states also extend their prohibitions beyond blood relationships: “twenty-two states criminalize sex between stepparents and stepchildren” and some (but not all, interestingly) states treat adopted children the same as biological children for purposes of incest prohibitions.
What are the rationales behind these incest prohibitions? The most commonly cited rationale for prohibiting consensual relations is that incestuous relationships have the potential to create children with genetic problems if the parties decide to reproduce. Moreover, incestuous relationships have special potential to be abusive and nonconsen-sual, and this coercion may be difficult to detect. Additionally, some have viewed the incest taboo as a way to “prevent intrafamilial sexual jealousies and rivalries” or to facili-tate the purported “social advantages of forming ties outside the family.” But these ra-tionales cannot account for the breadth of the incest prohibition in many states; for exam-ple, consensual relationships between adult adopted siblings raise neither genetic difficulties nor the specter of coercion. It is therefore impossible to underestimate the influence of the “disgust factor.” In large part, these relationships are criminalized be-cause Americans view them with distaste or because they are, in some situations, relig-iously proscribed.
The topic of consensual adult incest has actually been the subject of some legal and political discourse of late because of its links to the same-sex marriage debate. Some have suggested – with an intention to alarm – that if we legalize same-sex marriage, the legalization of incest is sure to follow. But in contrast to the issues of gay rights and same-sex marriage, there is no committed mainstream advocacy movement of which we are aware that is currently arguing for the liberalization of incest laws.
Similarly, there is very little legal scholarship seeking to make an affirmative case for greater recognition of intra-familial romantic relationships; rather, discussions about incest usually involve simply pointing out that many of the arguments made in fa-vor of the laws are problematic. For example, commentators remark that the evidence related to the possibility of genetic harm is far less certain than once believed, and, in any event, many of the relationships currently prohibited do not trigger this concern at all.
There are a few recent exceptions in the academic literature to this general pat-tern. For example, Christine Metteer argues that the individual’s constitutionally pro-tected right to marry trumps the state’s interest in prohibiting incestuous marriages when the parties are related only by affinity rather than consanguinity. More provocative is a recent article by Ruthann Robson, who suggests that “the proffered explanations for in-cest prohibitions should be deeply problematic for any same-sex marriage advocate.” She argues that attempts to justify prohibitions against incest by appealing to religion or longstanding community mores should be soundly rejected, because “tribal customs should not govern our current cultural mores and constitutional notions any more than Leviticus should prevail.” She also argues that we should reject the genetics justifica-tion, because it “rests upon identity between marriage and procreation – the same logic that is used to resist same-sex marriage.” Whatever one makes of these normative arguments, incest laws fit the more general pattern of punishing family status in certain circumstances within the criminal justice system.
Leap Years and the Law
Thanks to Dan for having me as a guest on Prawfs. To commemorate my last day here (since I won't be able to celebrate its anniversary for another four years), I thought I'd contribute to the emerging and important "Law and . . . / . . . and the Law" movement by briefly surveying the extent to which courts and commentators have grappled with the problem of February 29. In this post I will offer the modest suggestion that by understanding the law's interaction with the leap year, we can gain a better understanding of the law more generally.
The Supreme Court has not interacted with the subject of leap years since seminally denying a seaman's motion for reargument of the question of whether failure to pay his wages was "without sufficient cause," thereby violating Section 3 of the Seamen's Act. (McCrea v. United States, 294 U.S. 382 (1935)) The seaman supported his motion by referring to the vessel's log, which stated that he was "last seen aboard the ship at 9:00 AM March 1st, 1928." This, in conjunction with the conceded fact that the vessel had arrived in the port of London on Sunday, February 26, 1928, and had sailed the following Friday, March 2, 1928, would have meant (since the year was a leap year) that McCrea was on board the vessel until after its cargo was discharged (which would have occurred one day prior to the vessel's departure from the port). Thus, McCrea argued, "the failure to pay his wages before his departure on March 1st was therefore without sufficient cause." (294 U.S. at 383) A Lexis search for "leap year" generates 219 other federal cases that mention the term, and a similar search of state cases turns up 268 of those that do the same. As might be expected, these cases involve courts' mentioning the fact that leap years intervened during statutes of limitations, sentences, and other sorts of day-counting exercises.
That the Court only mentioned the term "leap year" once in its history means not that its interaction with leap years was limited to one lone issue of admiralty law. The famous "Leap Year Trilogy" of interstate nuisance cases culminating in Illinois v. City of Milwaukee, 406 U.S. 91 (1972), and the subsequent enactment of the Clean Water Act preempted the federal common law of interstate nuisance.
As might be expected, there was a surge in leap year coverage in the law journals around 1999-2000, which responded to the public's demand for legal solutions to the then-current Y2K "Problem." Among the major issues that were expected to cause extreme malfunction (and massive liability on the part of big businesses) in the Year 2000 was the fact that it was a leap year while the year 1900 was not; the thought was that computer systems would fail to recognize February 29, 2000. Of course, the hysteria surrounding Y2K doomsday predictions amounted to nothing. Any hysteria surrounding the end of my guest-blogs should be similarly disregarded.
It's been fun here. Thanks for having me. Love, Liz
Can You Teach Constitutional Law Without Assigning the Constitution as Reading?
When I was taking Constitutional Law, my teacher, Prof. Charles Fried, assigned the U.S. Constitution as reading right at the beginning of the semester. But talking to friends, I found out that at least one Con Law professor at my school did not. I was aghast. (And it is even more shocking to me thinking back on it, as that professor had clerked for Justice Scalia, champion of textualism.)
So my question: Is this scandalous? Is it outrageous to teach Con Law and never require students to read the Constitution front to back?
And is it common practice?
It seems to me that sitting down and reading the whole Constitution is useful for learning at least three things:
1) how much of it has to do with slavery
2) how much of it is disused
3) how little of it we’ll be focusing on for the rest of the course
Thursday, February 28, 2008
Can Senators Keep Their Senate Seats When Elected President?
Seth Barrett Tillman -- one of the best constitutional law professors not to be a law professor -- argues in this recent paper that McCain, Clinton, and Obama may keep their Senate seats even assuming that one of them becomes President.
Incompatibility Clause, you cry? Don't worry, says Tillman: it doesn't apply.
Here's the abstract:
In a few months, We the People will go to the polls and elect the electors who will elect (or, at least, have an opportunity to elect) the next President of the United States. Short of an act of God or an act of war, it is more likely than not that the next President will be a sitting United States Senator. The expectation is that a Senator/President-elect resigns his or her legislative seat some time prior taking the presidential oath of office. It is widely believed in large and influential academic circles and among the educated public generally that the Constitution requires this result by expressly precluding joint simultaneous Legislative-Executive Branch office holding.
I respectfully dissent. I believe the conventional view is mistaken as a matter of the original public meaning of the Constitution. Although the idea of a sitting Senator holding the office of President is somewhat counter-intuitive, this is one example of the dangers of unexamined intuitions. True, the Constitution does preclude joint Legislative Branch-Executive Branch service. But for incompatibility purposes, the President is not part of the Executive Branch; rather, the (elected) President presides over it, as opposed to (appointed) Executive Branch officers - which are under it. Therefore, a sitting Senator can keep his or her seat while serving as President.
Law Professor Amicus Brief in Omar and Munaf
I'm extremely pleased (and, perhaps more importantly, relieved) to post a copy of the amicus brief filed today on behalf of a group of federal courts and constitutional law professors in the Iraqi detention cases currently before the Supreme Court -- Geren v. Omar and Munaf v. Geren. I had the privilege of co-authoring the brief along with Judith Resnik (Yale) and a team of lawyers from Davis Polk...
I've written a lot about these cases before, both on the blog and in print. In a nutshell, the brief argues that the Supreme Court's habeas jurisprudence, though not always completely consistent, has evolved in such a manner so as to produce a series of principles that support the exercise of jurisdiction in both of the current cases (although the brief takes no position on the merits).
We're Number 8! We're Number 8!
. . . on this list of "influential law blogs."
Skeel and Stuntz are blogging
Law-Firm Associates Should Unionize
Law-firm associates should unionize. I don’t know why they haven’t already, except that they are, on the whole, rather gutless.
Think about it. Associates at big law firms are perfectly suited to unionize. They are overworked and underpaid. And partners utterly depend on them. If associates actually used their latent collective bargaining power, it seems to me they could extract huge concessions from partners.
Now, I know nothing about labor law. Is there a legal barrier here? Or are associates just holding themselves back? There would certainly be some professional responsibility issues with an all-out strike, as client interests could be threatened. But I think associates could flex considerable collective-bargaining muscle without creating an ethics problem.
Let me note that when I say associates are underpaid, I do not mean that they are impoverished and we should feel sorry for them. But, compared to the amount that the partners bill clients for associate hours, the portion associates receive is trifling. Why should they surrender more than three-quarters of their billable rate to pay for the partners’ rainmaking services and office overhead?
I am struck by the irony that associates are trained and employed to play hardball in their litigation work and corporate deals, yet, when it comes to dealing with the partnership over pay, associates seem to take what they are given, unless they feel so slighted they move to another firm. That’s my observation, having been one.
One last point: I am sure many associates would claim they are uninterested in unionization since, as they see it, they will be a partner someday. But, of course, if everyone thinks that, most are wrong.
Duke Lacrosse III: Harassment
A commenter on my second post on the Duke lacrosse players' lawsuit (first post here) wonders why the players did not assert federal claims for racial (Title VI) or sexual (Title IX) harassment in education. One guess is that, to the extent they were harassed, it was because of their status as lacrosse players and because of their being implicated (by association) in alleged misconduct (that turned out to be false). Now, because the criticism and verbal attacks on the team were charged with issues of race and sex, an argument that they were attacked because of those characteristics perhaps becomes stronger. But the atmosphere on campus was not generally harassing to white males; only those white males who were on the lacrosse team and only because of the party and its aftermath. Moreover, such claims also would require showings by individual players, not the group as a whole--and the complaint presently is light on player-specific factual allegations.
But the players tried to do something similar. The complaint targets the university's failure to stop the verbal criticism and attacks, which the complaint alleges constituted harassment under the university's anti-harassment policy. That policy prohibits harassment "of any individual for any reason" and defines harassment as "verbal or physical conduct . . . that, because of its severity and/or persistence, interferes significantly with an individual's work or education, or adversely affects an individual's living conditions." The theory is that the players were harassed and the school did nothing to stop that harassment--and, in fact, through the actions and statements of university officials hinting at the players' guilt, helped add to that harassment. This forms the basis for several claims, including breach of contract and negligent supervision of faculty and employees.
1) The Foundation for Individual Rights in Education makes a living tracking and criticizing over-enforcement of overbroad university harassment policies in a way that infringes on free speech and the folks at the Volokh Conspiracy write about F.I.R.E. cases quite a bit (recent example here). The plaintiff's liability theory actually raises those same concerns--much of what they are calling "harassment" was socio-political speech of unquestioned protection and an effort by Duke to punish such speech (had it been directed against, for example, a speaker criticizing the predominantly African-American football team) under its own policy would have aroused F.I.R.E.'s ire. Here, in a sense, the school is being hoisted on its own petard--its failure to enforce an overbroad policy against harassment, because doing so would have raised free speech concerns, is the basis for the lawsuit against the school. Of course, we again have the paradox of the players seeking to hold the school legally liable for failing to stop a great deal of speech that could not have formed the basis for liability against the individual speakers.
2) The complaint does allege some specific instances of what sounds like true harassment against particular individual players: Professors going on rants about the lacrosse team with particular players sitting in the classroom (more about this later); some direct, face-to-face threats; and some physical assaults against particular players. Much of this is speech and conduct the university could restrict and punish. Again, that works for particular players. It becomes harder to form the basis for liability as to the team as a whole.
3) Many of the harassment claims focus on Duke's failure to control its faculty, which, of course, raises questions of academic freedom. What does it mean for academic freedom if Duke potentially could be held liable for failing to silence faculty members who wanted to speak out on a matter of public concern on campus. This is not to defend what many of the faculty members said, some of which was extreme and wrongheaded and, ultimately, factually wrong. It is to suggest concern at the incentives created if a university can be held liable for failing to silence its faculty. Of course, this problem is present in all the cases F.I.R.E. tracks--a university that fails to stop a white supremacist professor from speaking may find itself at the wrong end of a similar suit brought by African-American students. But because it now is white male athletes bringing the claims for speech that allegedly harassed them, university administrators may begin to see the problems with such overbroad harassment standards.
Punishing Family Status: An Introduction
Earlier this week, I mentioned that Ethan, Jennifer Collins and I have completed a working draft of our paper, Punishing Family Status, and have shipped it off to a number of law reviews. Today I reprint below the introduction--sorry for the formatting bloopers. In subsequent posts, I'll share the following sections of the paper. We're grateful for any comments or questions sent via email to us. When we've done some more revising, we'll put a version up on SSRN. This paper will be part of our book project, tentatively entitled, Privilege or Punish: Criminal Justice and the Challenge of Family Ties. I'll be presenting this paper a couple times in the next month and we are excited to share our findings and conclusions more broadly. Here's the intro.
On December 21, 2007, Molly Midyette was convicted of knowing and reckless child abuse as a result of the death of her ten-week-old son. The prosecutors did not allege that Molly beat her son to death, but instead that she failed to protect her son from repeated beatings inflicted by her husband Alex. At the time of his death, the baby was suffering from 27 fractures and a brain injury. Midyette faces a mandatory sentence of 16 to 48 years in prison because of her failure to act.
Stories like Molly Midyette’s abound. In the absence of her family status, Molly’s omission, or failure to rescue her child, would trigger no criminal liability. But because of it, she faces a very significant sentence. In this article, we examine the various places in the American criminal justice system where the law imposes burdens on defendants on account of their familial status or familial connection to the crime. Where do these burdens exist? Why do we have them? What’s wrong, if anything, with them, andhow can they be reformed? These questions are at the heart of our project, a project that picks up the story from where we last left off just a year ago.
Specifically, in a study we published last year, we examined how in many instances the criminal justice system affirmatively privileges defendants who are members of a state-sanctioned family unit. Our study uncovered a range of what we called “family ties benefits”: for example, in some states family members who harbor their fugitive relatives are exempt from prosecution; many states exempt family members from testifying against each other even in the most serious felony cases, and individuals who kill or rape family members are often subject to less serious penalties than those who attack acquaintances or strangers. In that article, we argued that extending such privileges on the basis of family status can incur serious but often obscured costs in the criminal justice system, particularly in terms of ensuring gender equality, fairness across similarly situated offenders, accurate outcomes, and crime prevention in the criminal justice system. We suggested that more careful design of such policies could help avoid many of the costs associated with what we called “family ties benefits.”
But standing alone that picture is incomplete and with this companion article we now try to round out the picture. As mentioned above, some forms of criminal liability are triggered because of one’s familial status – and for reasons that seem to have nothing to do with compensating for the “family ties benefits” we have already identified. These crimes include vicarious liability imposed on parents because of crimes committed by their children, omissions liability for failing to prevent harm to family members, and criminal liability for nonpayment of child support. Defendants are also burdened on account of their family status when they face prosecutions for incest, adultery, and bigamy. In all six of these instances, in the absence of the particular familial status of the defendant, the action or omissions at issue would largely be ignored by the criminal justice system or, in some cases, treated more leniently.
This Article analyzes these “family ties burdens” and asks whether they are justifiable or could be justified if reformed somewhat. Although scholars have considered some of these burdens individually, our contribution here is viewing these burdens synthetically and explaining what sense can be made of them once taken as a whole. Thus, in Part I, we survey the various sites in the criminal justice system where defendants who are members of families face special burdens, either through the creation of liability or the enhancement of punishment, that would not be visited upon individuals who are not members of a family unit.
We begin Part II by explaining why we have generally taken a “defendant-centered” perspective in thinking about the sites of family ties burdens, since many “burdens” on defendants based on family status may conversely serve to advantage the family members of such defendants (and potential defendants). Focusing on family ties burdens from the defendant’s perspective helps raise awareness of why such burdens are normative red flags. As we explain, most centrally, they have tremendous potential to discriminate. Consider the example of omissions liability. When the state charges an individual because of his or her failure to protect another human being from harm, the state is signaling that the relationship at issue is one worthy of special protection from the state. But in the context of family ties burdens, large numbers of persons who might justifiably, in our view, see themselves as entitled to benefit from the “omissions” burden are excluded. A hypothetical Jill cannot rely upon the state to signal to her life partner Denise that Denise is obligated by law to prevent harm to Jill. When the state makes choices regarding families, and uses the criminal justice system to send normative signals about those choices, it risks marginalizing persons who consider themselves family members but are not recognized as such by the state. In this sense, targeting persons with unusual treatment on account of familial status is an under-inclusive (and, at times, over-inclusive) mechanism to distribute both the tangible and expressive benefits conferred by the criminal law.
The rest of Part II constructs a normative framework to explain under what circumstances burdening family status might be justified. We highlight that the vast majority of the burdens implicate the core functions of families – the care-giving function. We impose liability on parents for their omissions because we believe they have a special obligation, one worthy of enforcement through the criminal justice system, to care for their children by protecting them from harm. If we structure burdens to revolve around the care-giving function, rather than on an individual’s status as a member of a state-sanctioned family, we have the potential to be far more inclusive, and indeed more protective, than if we base burdens on family status alone.
But we also show that there is, we think, an underappreciated (albeit imperfectly executed) method to the criminal justice system’s allocation of family ties burdens. The criminal justice system tends to enforce family ties burdens against those who have voluntarily chosen their care-giving role. That is, the care-giving function of the family is relevant to criminal justice especially in those cases where an individual has voluntarily entered into a status relationship and enjoyed the privileges associated with that relationship, making it seem more just to be required to carry some burdens in return. Building upon this internal coherence, we suggest that a voluntary care-giving orientation to burden allocation in the criminal justice system is much more attractive than allocation on formal familial status alone.
Part III rethinks the family ties burdens we identify in Part I, in light of the normative framework in Part II. We hope to show how many of the criminal justice system’s family ties burdens can be preserved in some form, so long as they are reconstructed to avoid the substantial costs of using family status alone to distribute burdens. In some cases, this won’t be possible, and we explain why and what to do about it.
One important caveat. There are many wonderful studies of the way the criminal justice system causes devastating harm to families and communities, especially in light of our incarceration practices. There is no doubt that many of the criminal law’s policies and practices disadvantage families in many ways – and without attention to this sort of disparate impact against families, policy designers risk tearing our social fabric at the seams. We agree that this lens is a critically important one in evaluating criminal justice policies. Nevertheless, this lens tends to track indirect results of other policies. For example, although lengthy jail sentences for minor drug crimes result in the tragic situation of too many children growing up without access to a parent, surely the primary intent of drug sentencing laws is not to separate children and their parents.
Our focus here is different and has yet to be sufficiently addressed by the community of scholars interested in how the criminal law pressures families. Here, we examine those distinctively purposeful practices that consciously target members of families for special burdens on account of their familial status. Scholars have been successful in analyzing the effects of certain criminal justice policies and practices on the family. But most scholars have not recognized the panoply of laws expressly written to disadvantage family status in some areas. It seems important and necessary to pause and think through how and why our laws intentionally punish family status, and how the underlying goals of such a choice might better be served. This Article hopes to clear that ground.
In defining our focus this way, we do not intend to suggest that the particular liabilities addressed in this Article are necessarily guided by the intent of hurting or burdening family life as such. Indeed, it may be that many burdens on family status are “remedial” or intended to benefit family life even if they penalize particular defendants on account of their familial status. But it is worth remembering that many laws disadvantaged women, for example, in the name of “protecting” them. Our purpose here is to excavate the family burdens currently imposed by the criminal justice system and to assess their desirability both now and as they could be.
 Bill Scanlon, Mom Guilty in Baby’s Death, Rocky Mountain News (Dec. 22, 2007).
 Although we use the phrase the American criminal justice system, there are actually many criminal justice systems in the United States operating at the local, state, and federal level under a host of laws, ordinances, principles and policies. Not all the practices we describe exist around the country in every single system but they are by no means atypical either.
 See Dan Markel, Jennifer M. Collins & Ethan J. Leib, Criminal Justice and the Challenge of Family Ties, 2007 U. Ill. L. Rev. 1147.
id.; see also Jennifer M. Collins,
Lady Madonna, Children at Your Feet: The
Criminal Justice System’s Romanticization of the Parent-Child Relationship,
 See Markel, Collins & Leib, supra note 2, at 1190-1199.
 We acknowledge that in some instances victims may feel as if they too, as well as defendants, have been harmed by family ties burdens.
 See, e.g., Donald Braman, Doing Time on the Outside (2004).
Wednesday, February 27, 2008
Why Democrats Still Love The West Wing
Via Slate (click on "Life Imitates The West Wing" thumbnail), the writers of The West Wing apparently modeled Congressman Matt Santos (the young, upstart, minority, darkhorse candidate who emerges to win the Democratic nomination and the presidency) after Barack Obama.
Chicken. Fowl, indeed.
Miriam Cherry once asked here if it was really true that some Contracts professors dress up as chickens to teach Frigaliment Importing Co. v. B.N.S. Int’l Sales Corp, 190 F. Supp. 116 (1960). When I was at Brooklyn last year and taught the case I told the class about this tradition among some contracts professors but told them that I was too cool to dress as a chicken. But this year I thought: What am I? Chicken?
Here are the results. As luck would have it, the ABA was on-site at Hastings to see if we deserved to be accredited. I think I locked that up for us.
On the legal dangers of dressing up as a chicken (or any other animal), see this article in the Legal Times.
The Evolution of Criminal Law Theory
Rutgers Institute for Law & Philosophy
The Evolution of Criminal Law Theory
Friday-Saturday, May 30-31, 2008
The Rutgers University Inn and Conference Center, New Brunswick, NJ
Most theorists seem to agree that the criminal law has
changed dramatically in the past few decades. This conference is intended to consider how the criminal law changed;
whether the developments are positive or negative; why these changes have
occurred; to what extent should criminal law theorists reconsider their
theories of punishment to reflect these changes; how these changes are related
to procedural and evidentiary protections (or lack thereof); and whether these
changes alter or threaten the civil criminal distinction, the principle of
legality, and the defense of ignorance of law; as well as other questions along
Darryl Brown (Virginia), Michael Cahill (Brooklyn), Don Dripps (USD), Antony Duff (Stirling, Phil.), Stephen Garvey (Cornell), Doug Husak (Rutgers-New Brunswick, Phil.), Jae Lee (Fordham), and Ken Simons (BU) will be presenting papers, and commentaries will be by Larry Alexander (USD), Vera Bergelson (Rutgers-Newark), Russell Christopher (Tulsa), Kim Ferzan (Rutgers-Camden), Dan Markel (FSU), Alice Ristroph (Utah), Paul Robinson (Penn), and Alec Walen (Institute for Phil. & Public Policy, Univ. Md.). For further information and registration details, please visit the conference website here.
Confounding the Founding: Why Separated Powers?
For an article I'm working on (about which I hope to blog further soon), I came across the following quote, delivered by the current Attorney General in a 2004 speech. Referring to the Founding, then-Judge Mukasey suggested that the Federalists:
resisted pressure from people like Patrick Henry . . . to include the substance of what later became the Bill of Rights in the Constitution itself because they understood that if you give equal weight to a citizen’s rights against the government . . . and to the definition of government itself, it becomes correspondingly harder to command support for that government and correspondingly easier for people to simply go where their rights, and their interests, seem to take them.
Mukasey made a slightly weaker form of the same argument in a Wall Street Journal op-ed published a few months later, suggesting that "the hidden message in the structure of the Constitution . . . is that the government it establishes is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt."
Here's what's troubling me: Isn't this entirely backwards? I had always understood the consensus narrative of the Founding to be that (1) the Constitution's structural features, especially the separation of powers, were crafted largely (although perhaps not entirely) for the purpose of protecting individual rights; and (2) the reason why the Federalists were opposed to a Bill of Rights wasn't because they thought that individual rights were not entitled to "equal weight"; quite to the contrary, they feared that whatever rights remained un-enumerated might not be protected...
So I guess I have two questions:
- Was Mukasey re-writing history (or, put another way, am I just wrong)?
- If he was (and I'm not), how pervasive is this idea in contemporary understandings of the Founding?
I have my own ideas, but am curious for others' thoughts...
The recent blogosphere discussion of the Green Bag's forthcoming so-called Deadwood Report, which by and large has been favorable, is no substitute for reading the editors' introductory report itself. Strip away your preconceptions -- including the assumptions that "more" "information" is always "better," that anything must be better than US News, and so on -- and read the report. Consider its claims. Consider its proposed methodology. Make up your own minds about it.
My own view, to be perfectly blunt about it, is almost entirely unfavorable. The Green Bag editors had the kernel of a good idea. It could have been presented with a due sense of its limitations; with a reasonable humility of spirit; with an appropriate warning that "objective" measures are only as good as what they purport to measure, and that the choice of what to measure is not itself necessarily objective. It could have reminded us of the essential fact that not everything worth measuring is objectively measurable, and not everything objectively measurable is worth measuring. The editors could have acknowledged that what they dismissively call the "tricky" questions -- "whether [a law school's] teaching is effective, whether the scholarship is sound, whether the service is in the public interest, and the like" -- may in fact be the most important ones. Instead, their idea has been tarted up and sent strutting onto the public stage in an editorial voice that reads like an unfortunate combination of P.T. Barnum, Sammy Glick, Franz Joseph Gall, Nancy Mitford, and Eddie Haskell.
The editors and their defenders set out to disarm or co-opt their expected critics by acknowledging that there may be some "grumbling" about methodology, but saying that "we are trying to do some good here." They let themselves off too lightly. It is not just that the methodology is seriously flawed -- which it is. It is that there are a variety of serious mismatches between what the report says it is doing and what it is actually doing.
I certainly do not want to align myself with the forces of darkness. I certainly agree that it is a fine thing for law schools to supply more, and more accurate, information about their doings. I acknowledge that the Green Bag editors are doing something toward this end. But one should keep in mind that rankings of this sort are supposed to aid you in making meaningful qualitative judgments about the "quality" of law schools and their faculty -- not to substitute for independent judgments of this kind. I fear that this is exactly what items like the Deadwood Report, wrapped up as they are in a pseudo-scientific appeal to "objectivity," will do.
I certainly don't suggest that law schools keep their heads in the sand. But I encourage everyone to read the editors' introduction for themselves, and to read the subsequent "Deadwood Report" with its obvious and serious limitations in mind. Keep in mind that, given its flawed methodology and questionable underlying assumptions, it is not a serious measure of "the relative quality of law schools," as it purports to be.
Keep in mind that even the very word "deadwood" is inaccurate. What the report will actually measure -- as the editors fairly clearly admit in the subsequent story in Inside Higher Ed -- is the accuracy of online self-promotion efforts by law faculties. That's a narrow but great thing to measure, and we could have been grateful to the Green Bag editors for doing just that. But that's not what the editors claim to be offering in their report, and Lord knows it's not how the thing will be used. How unfortunate that a report that offers itself up as an attack on law school puffery and deceptive marketing tactics offers up so much more of what it purports to condemn.
Duke Lacrosse II: First Amendment Implications?
One interesting feature is the role that the First Amendment might play for the defendants. Much of the conduct described in the complaint, and much of the conduct that presumably forms the basis for the players' claims against Duke and Duke officials (and to law-enforcement officials to a lesser degree), centers on all sorts of public statements that stated or suggested that some or all the players had done something wrong. Consider several categories.
1) Statements by Duke and its officials, particularly President Richard Brodhead, that implied that the players had done something wrong (including possible sexual assault and use of racist epithets) and that they were not cooperating with the investigation by hiding behind a "blue wall of silence." These statements "malign[ed] the Duke lacrosse team as a gang of hooligans that included 'two or three really bad actors.'"
2) Statements by various faculty members, most notoriously the Group of 88's editorial advertisement in April 2006 and various statements by individual professors to the media and to the public. These statements expressly stated a belief in the players guilt and the need for the players to be punished, criminally and by the university. Many of these statements were charged with overtones of race, gender, class, and privilege, the implication being that a group of privileged white males had to be punished for racist and misogynist actions. Many statements used hyperbolic, charged language, including statements likening the team party to the murder of Emmett Till--a lynching of an African-American by privileged whites. Some statements called for judgments to be imposed beyond the walls of the courtroom. Some statements referred to the lacrosse players as "white supremacists." Faculty members also called for the university immediately to condemn the team and its players. There also were some instances of in-class speech, but I will leave those for another day.
3) Several protests against the team and its members. This included a candlelight vigil outside the house in which the party occurred and another Duke-owned house in which some players lived, where the crowd chanted, among other things, "shame" and "you can't run, you can't hide" (protesters also banged on windows and doors at the latter house). There was a "pot-banging" protest outside some player residences early on a Sunday morning, with protesters wielding signs and chanting--all reflecting a belief in the guilt of at least some of the players, the collective guilt of the team as a whole for some misconduct, and a real hostility to the players. There also was a boycott planned for an upcoming (but ultimately canceled) home game, with fans holding signs reading "Don't Be a Fan of Rapists." According to the complaint, these protests were explicitly encouraged by various faculty members.
4) "WANTED" posters went up around campus, featuring photos (taken from the school web site) of 43 of the 46 white team members.
These various expressive incidents seem to form the core of four counts and Duke and its officials: 1) Intentional Infliction of Emotional Distress; 2) Breach of Duty to Protect Students from Known Dangers and Harassment; 3) Negligent Supervision of Duke Professors and Employees; and 4) Intrusion upon Seclusion. The problem with some of these claims after the jump.
Much of what is described in the complaint sounds and looks like constitutionally protected speech. Although much of it certainly is "hostile" (to quote the Complaint), the speech described does not look like it crosses the line into unprotected categories of true threats or incitement to violence. There is no temporal imminence necessary for incitement. The one well-known case involving "WANTED" posters, which upheld a jury award against the speakers, occurred in the context of an anti-abortion group, more explicit hints at violence, and the unique history of violence over that issue--none of which is present here. All the rhetorical hyperbole and exaggeration, racially and ethnically charged though it might be, also is protected. So is all the hostility, as long as it does not become a direct, targeted threat.
Most of this is speech on a matter of public concern: an alleged crime and misconduct by a high-profile group in the campus community, an ongoing police investigation into that crime, all of it touching on issues of race, gender, class, and privilege; this sounds like social or political speech. Most of the protesters stayed in public spaces and there is nothing per se unprotected about protesting in front of a residence. True, many faculty members and students seized on the case as a chance to further a particular political agenda--but that is what the freedom of speech is about. Finally, some of what was said or implied turned out to be false, perhaps recklessly so. For example, there are allegations that Brodhead continued to criticize the players despite having information suggesting that no rape had occurred, no racial slurs had been uttered, and that the players were cooperating with the early stages of the investigation.
Notably, however, there is no defamation claim against the university. Two reasons for this. First, there are few, if any, direct assertions of verifiably false fact; second, in any event, none of these plaintiffs could satisfy the "of and concerning" requirement for defamation. To the extent there were knowingly false assertions of fact about the players' guilt or moral culpability, these were targeted at the team as a whole; a member of even a small group typically cannot sue over false statements about that group. Calling the team a "gang of hooligans" with two or three unnamed bad actors is not actionable defamation. Moreover, defamation is not the only tort that has built-in limitations in its application to protected speech. Torts such as I/I/E/D or privacy cannot be utilized against protected speech as an end-run around the First Amendment and the limits of the actual malice requirement of New York Times v. Sullivan. Brodhead, school officials, and Duke as an entity all enjoy First Amendment liberties to speak on these matters of public concern, free from civil liability if that expression does not fall into some narrow category of unprotected speech.
Also notably, the individual professors who spoke out against the team are not named as defendants; only Duke and university officials. The theory of civil liability is that Duke is liable for the harm caused by this expression because Brodhead, et al., failed to stop these faculty members and students from engaging in this expression. If I am right that much of the speech at issue is protected, that theory of vicarious liability cannot work. If civil liability could not be imposed on a speaker for protected expression, how can it be imposed on the speaker's employee for failing to stop the speaker from engaging in that speech? That seems constitutionally perverse.
None of this is to suggest that the case as a whole fails. Just that there is a lot of stuff in this complaint and it requires serious parsing by the parties and the court. One bit of parsing must take into account the limits on civil liability imposed by the First Amendment.
Tuesday, February 26, 2008
Deadwood Reports and the Choices They Make
I was out celebrating my second anniversary(!) with my wife over lunch, so I'm a little late by blogospheric standards to report this, but in case you haven't seen it, the venerable Green Bag will be issuing an annual Deadwood Report. (H/t: Robin Craig; more coverage by Brian Leiter, Orin Kerr, and Paul Secunda, who proposes bobblehead dolls made in honor of law school deans and various prawfs).
After the jump, I excerpt parts of the story in Inside Higher Ed that gives the gist of this forthcoming report. To my mind, the most vivid and important choice discussed in Ross Davies' piece on SSRN is the decision to not count (at all!) any scholarship published by faculty in a law journal edited by that law school's students or by a faculty colleague who serves as an editor. I think this is a salutary development for a few reasons, but I think it's easier to justify vis-a-vis the student journals than the faculty ones. So it's clear, if Harvard Law faculty publish in the Harvard Law Review, that will count against the school on the deadwood report. Same thing if Harvard Law faculty publish in the new Journal of Legal Analysis, edited by Shavell and Ramseyer. And of course, JLS is now off-limits, in this respect, to all the UChicago faculty.
My sense is that this decision to exclude home-seeded publications would be controversial at some faculties, especially those at the top few law schools, if and only if those faculty members were sensitive to the signals these rankings decisions emit. But because most faculty already at Harvard or Yale could care less about how the market perceives their decisions -- after all, they're already at Yale or Harvard -- it probably won't lead to a speech by Harold or Elena saying: hey everybody, don't publish in the home journal anymore. Ross Davies' minions won't like it.
The rest of the market outside the top 4 or 5 schools, however, is likely to internalize that message and so we'll see less "lock-up" of the top (and all the other) law reviews by folks with a home-school advantage. This seems to me to be a very good development with respect to the student edited law reviews. In theory, the faculty-edited law reviews that blindly assess incoming submissions should be excused from Ross' rule. But perhaps there is true skepticism about whether blind review can occur even in faculty journals. I haven't been in the business long enough to have a strong view about this--sometimes the faculty edited journals seem more driven by informal networks than what's published in the law reviews, but sometimes it's not like that at all. And of course, if blind review really does exist at a law review, say like Harvard's, then HLS faculty shouldn't be penalized for publishing there. (My soft recollection from my experience at Harvard Law Review is that all manuscripts submitted were read anonymously by a member of the Board of Editors, but that HLS faculty members still had a leg up in the process; that said, we did turn down submissions by HLS faculty and those decisions were more fraught than other ones. Perhaps things have changed.)
Anyway, my questions for you all are: first, is there anything more to be said against Ross' rule? Should there be exceptions for schools whose journals (whether faculty or student-edited) follow a blind review process for submissions? What other things do you think should be weighed in the Deadwood Reports that aren't already mentioned? Last, is Paul Secunda correct about the untapped market for prawf-bobblehead dolls :-)
Update: One of my favorite readers of this site wrote in to ask whether blind review of law articles is possible when so many people know what's going on with respect to conference papers and SSRN/bepress drafts. To the extent that's true, it cuts against any exceptions to the Green Bag Rule.
Starting this spring, it will begin work on the “Deadwood Report,” which it envisions being an annual assessment of “whether faculty members do the work that the law schools say they do.” The journal acknowledges that the ranking will provide “rough and admittedly partial” measures of law school faculty quality, but posits that by being transparent (it will disclose the sources of its data and how it derives its numbers and rankings from those data), and by bringing more information into public view, “it will help law school applicants make better decisions about where to study or work.... We are trying to do some good here.” (The editors have an ulterior motive, too: compelling law schools to make public better information about their operations — more on that later.)
What exactly will the Deadwood Report measure? Law schools, the editors write, “generally hold themselves out as institutions led by faculties whose members are committed to teaching, scholarship, and service.” They argue that the best teachers tend to be active scholars and vice versa, “and all the best lawyers of every stripe engage in service for the public good.... Evidence of the law schools’ commitment to this view is reflected in the practically universal requirement of high achievement in all three areas for tenure. And so we should be able to say with some confidence that a good law school will have a faculty consisting of hard-working teacher-scholar-humanitarians,” the Green Bag editorial says.
“The Deadwood Report will simply test the accuracy of that picture,” the journal’s editors write. “Our focus will be on the most dully objective of measures: whether the work is being done — whether each law school faculty member is teaching courses, publishing scholarly works, and performing pro bono service.” (The journal plans to start with teaching and research, turning only eventually to service, and notes that it does not plan — “at least not yet” — to answer what it calls the “trickier and more entertaining subjective questions: whether the teaching is effective, whether the scholarship is sound, whether the service is in the public interest.")
The Green Bag’s method for answering those questions sounds like it will be painstaking. Its staff (editor Ross E. Davies and research assistants) plan to:
- Download a law school’s faculty Web pages, course catalogs, and publications lists.
- Compile the data, with an emphasis on recent scholarship and recent teaching ("A school whose faculty is heavy with people who used to be active might do well in a citation or reputation study, but it will do poorly in the Deadwood Report").
- Analyze the data, using a still-to-be-finalized process of “sorting and weighting.” Basic principles: “We are interested in well-rounded, activie faculty members, and so we will give more weight to the moderately active teacher-writer than to the hyper-writer who neglects teaching or to the hyper-teacher who neglects writing.” Schools will also be rewarded for having well-rounded faculties, rather than a handful who are big-time scholars and a bunch of others who aren’t.
- Send each school’s dean his or her institution’s preliminary results for a chance to correct inaccuracies.
- Correct the errors and publish the results.
The journal’s editors offer some advice to law school deans, which offers additional evidence about their motives in joining the rankings game. Keep your Web sites up to date, since that is where all of the rankings’ information will come from. “This seems reasonable to us because your Web site is surely where most applicants and other inquisitive people go for information about your law school. If a school cannot be bothered to provide accurate information about the teaching, scholarship and service of its own faculty on its own Web site, it deserves to be haunted by any inaccuracies.”
“Puffery is double-edged,” the Green Bag warns. If a law school’s “faculty” page offers a long list of names, the journal’s editors will include and assess them all in the school’s “deadwood” numbers. “Inflated denominators will not be helpful to you,” the journal’s editorial says. “If you have employees who are employed to teach but not to write, or to write but not to teach,” or who once did one or both but no longer do, or who are on leave, “you might be well-served — and people visiting your Web site would certainly be better-informed — if you moved those folks off your list of “Faculty” and onto lists labeled, perhaps, “Instructors” and “Researchers” and “Emeriti” and “Administrators” and “On Leave.” (Visiting instructors will be treated differently.)
While they generally swear off assessments of quality, the editors make clear that they will make some judgments. “Teaching Property or Torts or Individual Tax to an auditorium filled with students is not the same as co-teaching a half-semester seminar on a highly specialized topic with three colleagues, a weekly guest speaker, and enrollment limited to 12. Do not expect us to give them the same weight.” And “we will be taking account of scholarly books and articles in scholarly journals. Not novels. Not editorials, even if they appear in The New York Times or The Wall Street Journal,” unless “we find on your Web site official regulations indicating that for tenure purposes your law school equates works of fiction, letters to the editor, and the like with conventional works of scholarship, and if further inquiry reveals that your school has actually awarded tenure on the basis of such publications...”
And, potentially controversially: “Works appearing in organs published by your school or your students, or on which a member of your faculty serves as an editor or in some similar capacity, do not count. The pressure to make publication decisions on grounds other than scholarly merit is too great, especially when relationships between students and teachers ... are in play.” ("In that same spirit,” the editors note, “we will not count anything published by the Green Bag, not because we do not publish scholarly works, but because we are wed to Caesar for this project.")
Duke Lacrosse I: New Player Lawsuit
Back in October, I wrote about the § 1983 lawsuit filed by the three Duke lacrosse players who were indicted in 2006 on charges of gang-raping an exotic dancer, then exonerated when it became clear the woman had fabricated the story and the district attorney (subsequently disbarred and convicted of criminal contempt) had repeatedly lied to the court and attempted to conceal exculpatory evidence. They sued the prosecutor and various law enforcement officers involved in the case. Last week, 30+ other members of the team (none of whom were indicted) filed their own civil action in federal court, against Duke University and several members of the university administration, most prominently president Richard Brodhead; Duke University Health Services, owner of Duke University Medical Center, where the complainant had been treated following the alleged attack, and two medical staffers who examined the woman and allegedly provided false information about the results of the exam; and a variety of Durham County law enforcement officials. There are 27 counts, involving constitutional and state tort claims. The three indicted players reached a settlement with the university last year before any lawsuit was filed.
I have a particular interest in this lawsuit, and the Duke lacrosse mess as a whole. I have organized and am moderating a panel at this summer's SEALS Annual Meeting in Palm Beach called "The Phases and Faces of the Duke Lacrosse Controversy," which will examine the wide range of legal issues arising from this controversy. PermaPrawf Paul Horwitz will be one of the panelists, particularly to address the free speech and media issues that have come up.
Anyway, some initial thoughts after the jump. I will write more on the complaint later this week.
1) The complaint is 237 pages and 747 paragraphs. So much for a short and plain statement of the claim showing that the pleader is entitled to relief. Actually, this is a good example of litigation as press release that Beth Thornburg describes in writing about another hot sports lawsuit--West Virginia University against former football coach Rich Rodriguez. A pleading becomes as much about telling a story to the public and trying to win the community over as about giving notice to the court and to the defendants about the nature of the claims and the surrounding circumstances. This complaint recounts the full story of the Duke lacrosse mess in exacting detail, highlighting all the wrongdoing by various defendants--without necessarily linking that conduct to any legal right or duty to a particular plaintiff.
2) Former DA Mike Nifong is not a named defendant, despite being at the heart of all of this. Nifong filed for bankruptcy recently, imposing an automatic stay on any litigation naming him as a defendant. These plaintiffs thus did not include him as a defendant. But they argue that his misconduct is attributable to the City of Durham, which is a named defendant. This, by the way, could have a major effect on the action filed by the three indicted players, since their case is all about Nifong and his actions as the person who took (apparently unprecedented) control over the entire investigation.
3) There is an interesting version of cause-and-effect presented in the Complaint. The plaintiffs allege that Nifong (and implicitly the other defendants, especially the university) did not cause the media frenzy that surrounded the case. Rather, they all reacted to it and that media frenzy somewhat explains the subsequent Nifong's behavior--he needed to push the case to look good for the press and to satisfy the public aroused by the story, particularly facing an election to keep his job. Implicit in the complaint is a similar argument that the Duke administration also reacted against the players when pressure from the media and from faculty and student activists reached a fever pitch.
4) Plaintiffs assert constitutional claims against Duke and its administrators and employees. But I do not see how these defendants are state actors. The basic notion is that the hospital staff and university officials cooperated with government in its investigation by: providing information to law enforcement, some of which was either false or unlawfully released; withholding or speaking out to discredit exculpatory information; or making or failing to correct false statements about the case by law enforcement and others. The complaint refers to the university "acting in concert" with law enforcement and to an "agreement and meeting of the minds" as to this course of conduct--seemingly looking to establish state action via a public/private conspiracy. But based on the allegations, I do not see the necessary meeting of the minds that this test requires. Certainly the university helped law enforcement and certainly the university played a role in creating and fostering the resulting circus. But I do not see the allegations alleging anything approaching an explicit agreement to engage in obviously and blatantly unlawful conduct. Cooperation with law enforcement typically is not enough.
5) It will be potentially difficult, but also necessary, for the parties and the court to sort out precisely which plaintiffs suffered what harm from what conduct. The complaint speaks about the plaintiffs as a group suffering a deprivation of rights. But the only harm suffered in common was the cancellation of the lacrosse season (which forms the basis of one breach of contract claim against the university) and everyone being tagged with the infamy, criticism, and potential harassment that came with being part of "the lacrosse team." But I think some more direct and concrete individualized harm is going to be necessary for individual players to recover. For example, which individual players were called in and questioned by police? Which individual players were subject to improper searches or improper questioning? Which players had confidential information disclosed to law enforcement in violation of federal law? Which individual players were subject to direct threats or harassment or physical assaults or taunts at the hands of professors, classmates, and the public? Unlike the three indicted players who ultimately were forced to leave the university, the individualized harm here is not as obvious and it certainly is not clear from the complaint. Perhaps it is not necessary to break that down at the pleading stage (hey--notice pleading lives!). But it will be as the case moves forward.
When the N.Y. Times Becomes the Paper of Gloom-and-Doom (or at least of Season One of "24")
Buried among the Oscar coverage (by the way, I totally had Atonement for best picture in my Oscar pool -- oops!), was this story from yesterday's New York Times that, for some reason, totally rubbed me the wrong way:
The headline was innocuous enough: "In Painful Past, Hushed Worry About Obama." Who knew that the article would be about the assassinations of JFK, RFK, and MLK (the latter two, in particular), and the (apparently inevitable) comparison to Obama's candidacy and the shadow of assassination?
The article struck me as incredibly ominous, and unnecessarily so -- the discussion of passing through Daley Square, in particular... Is the Paper of Record trying to scare the crap out of all of us? Is there any reason why this is a story now? (The article itself suggests not...).
Update: Over at Discourse.net, my friend and former colleague Michael Froomkin has more details on the story, including a better (to me, anyway) explanation for why the Times would run such a story in the first place. The odd thing, as Michael's post implicitly suggests, is that the apparent real impetus for the story (the odd security issues in Dallas) is totally left out of the story... still creepy. Now, perhaps, even creepier.
Teaching Two Sections, Part II: On Keeping the Classes in the Same Place and Other Issues...
A while back, I wrote the first of what I hoped would be a series of posts about the particular challenges (and opportunities) presented by teaching two sections of the same class during the same semester. As I noted then, I ended up taking the "easy" way out -- using the same syllabus and course materials for both sections...
Now that we're halfway through the semester (as of later this morning, anyway), I wanted to pause to reflect on a couple of the challenges that strike me as unique to this particular set-up -- to teaching two sections of the same class at the same time. For more, see below the fold...
- The Problem of Keeping the Two Classes on the Same Page
So, by far the most challenging part of teaching the same syllabus to two classes at the same time is keeping the two classes on roughly the same page. It is simply inevitable that the discussions in the two classes will not be exactly identical, that the students' questions will vary, and that you will get through more (or less) in one section than in the other. Further exacerbating this divergence in my case is the difference in size between the two sections -- one section is a "full" (100 student) class; the other is a "half" (50 student) class. Most of the time, I find that the half section goes a little faster, but sometimes we actually go slower, because we have more room for debate and class discussion (and I'm a bit more forgiving of tangents...). Either way, I find sometimes that I have to rush a bit in one class, or slow down a bit in the other, to make sure that we're staying on roughly the same pace, and going through roughly the same materials...
- Whether Students Should Be Allowed To Attend the Other Class
Another unusual question I've now received a couple of times is, when students have to miss class, whether they can make it up by attending the other class (which meets on different days and at different times). My inclination is to say "sure," since, per the above point, I'm trying to keep them on what is basically the same page. But I wonder if there is a potential down-side here, too... my plan, for now, is to give the two sections the same exam (but grade them separately), but it strikes me that the answer to this question turns on that -- if it were a different exam, students might be dis-served by going to the other class on the theory that they're learning the same material...
- The Benefit of a Unified Prep
Without question, the single biggest upside of teaching two sections of the same class (and of using the same syllabus and course materials) is that I basically do one prep that covers both classes. With one or two minor exceptions, I use the same Powerpoints, do the same background reading, and so on, for both classes. So what would've been two different preps turn into one big prep. It's definitely not the same as doing a single course prep -- there's more time involved, and even "in between" the different meetings of the same class, I spend some time thinking about how the material played in the first section, and what I should do differently in the second section. But it's a lot less work than two different classes, to be certain...
- The Second Class's Necessary Advantage
That leads me to the last point -- it is inevitable that things will go "better" in the section that meets second. Concepts that were hard to explain the first time around become easier after you've had to clarify things; questions that seem tricky until you have a class discussion about them become easier to pose; jokes that fell flat in the first section can be excised; things you realized you should've said once the first section's class is over can easily be told to the second section. The question is whether this is an unfair advantage, or just the way things are... To me, so long as I grade the classes differently, there's no objective unfairness to the students. Still, I can't shake the feeling that the second section has it slightly better... is that a "bad" thing? Is that a result I should strive against?
- One Last Thought on Scheduling
As I noted back when I wrote Part I of this series, the schedule I ended up with was having the first section Monday and Wednesday afternoons, and the second section Tuesday and Thursday mornings. The more time goes on, the more I think I would've preferred to have the two classes on the same day -- perhaps one in the morning and one in the afternoon. Although I think it's true for two classes generally, particularly here, I feel like the classes end up swallowing the day on which they take place... and so especially when there isn't a big need for extra prep time for the second class, my own experience is that it makes more sense to devote two full days, as opposed to four half days, to it...
Later on, I'll try to have two more posts -- one on exam writing and grading, and one on general reflections.. For now, I'd welcome your own thoughts!
Monday, February 25, 2008
Online Journal Supplements -- Fizz or Fizzle?
The advent of online journal supplements has led to some uncertainty in their value. For those who are unfamiliar with them, they are "extensions" of the print law reviews that enable publication of shorter essay or op-ed style pieces with more immediacy. The supplements take several forms. Some allow only commentary on the print articles (e.g., Harvard Law Review Forum), some allow stand-alone pieces (e.g., Virginia Law Review In Brief), some allow only online symposia (e.g., Michigan Law Review First Impressions), and some allow a variety of genres (e.g., Yale Law Journal Pocket Part).
I have written both a stand-alone piece and a response-and-reply series in supplements. In the former, I wrote an essay on the big pleading case of last term, Bell Atlantic v. Twombly, for Virginia Law Review In Brief. In the latter, I wrote an essay on a jurisdictional case from last term, Bowles v. Russell, in Northwestern University Law Review Colloquy. Three others responded to my Colloquy piece: Professor Perry Dane, Professor Beth Burch, and Mr. King Poor, Esq. The final installment, my reply to their responses, was just posted today. I thought that format was both satisfying and effective.
In both cases, I thought the medium provided a wonderful opportunity to reach academics, practitioners, and judges, and thereby to enhance the relevance of the academy to those actually in the trenches. But that could party be because of the particular topics I picked.
What are the thoughts of others out there? Are these online supplements valuable? If so, which formats are most effective? What are their future, and what should they do to make the most of it?
An Abstract of Punishing Family Status
I'm very happy to announce that Ethan Leib, Jennifer Collins and I have just shipped off a draft of our paper, Punishing Family Status, to a bunch of law reviews.
This paper tries to break ground by providing analysis of two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of “family ties burdens” or penalties that impose punishment upon individuals on account of their familial status. The six we train our attention on here are vicarious and omissions liability, incest, bigamy, adultery, and failure to pay child support. Part II develops a framework for the normative assessment of these family ties burdens.
By looking at these sites synthetically, we uncover what might be thought of as the secret ambition of these family ties burdens: namely, the promotion of voluntary care-giving relationships. We explain the nature of this rationale and its implications for proper policy design—particularly whether its intrusion into the criminal justice system can withstand critical scrutiny. Finally, in Part III, we apply our proposed framework to see under which conditions these burdens should be rejected, retained, or redrafted in terms that are neutral to family status and instead capable of promoting voluntary care-giving.
We’re very excited about this paper, which is part of a larger book project -- tentatively entitled: Privilege or Punish? Criminal Justice and the Challenge of Family Ties -- that has received offers of publication from three top university presses: OUP, Yale, and CUP. Over the course of the next few weeks, we will be sharing highlights and excerpts of the paper. We welcome your substantive feedback via email or in comments here at least until summer 2008, as we will be revising this and our earlier effort together while integrating them into a unified book length treatment on how and why the criminal justice system discriminates against defendants (positively and negatively) on the basis of family ties or status. Stay tuned. And if you're interested in the whole draft of Punishing Family Status right away, please feel free to email me. We still have a bunch of comments we're responding to so we haven't yet put it up on SSRN, but we will in the next month or so.
Geraldine Ferraro's op-ed about superdelegacy in the New York Times today is misguided in many ways. David Ponet and I have a rival op-ed in the Legal Times today on the subject; you can download the pretty PDF version from this link: Download ponet_leib_22508.pdf. Rob Rogers blogged about some of our differences here. We have quite different views about what superdelegates must do as a matter of political morality. Although we agree with Ferraro that "super-duper" delegates without any real political responsibilities to actual geographically-circumscribed constituents may endorse whomever they think is best for the party, we tend to think that that decision cannot be made without some effort to tether their endorsements to the views of Democratic party members at the time of the convention. Moreover, we think that pre-committing as a superdelegate is actually a problem -- and should not be applauded. We also have a strong disagreement about what sitting office-holders must do; we don't think they are as free as Clinton and Ferraro maintain to disregard their constituents. Indeed, we argue that office-holding superdelegates have a responsibility to the Republicans and independents in their districts as well. But we veer from the Obama camp in arguing that superdelegates (whether of the office-holding or super-duper variety) cannot be thought of as simple agents for the rank-and-file; their job is to do more than follow the election returns, a strategy that has several problems that we expose in our column.
No suprise that the New York Times ran a Clinton-friendly interpretation of the role of superdelegates -- and on a day when they are attempting to be alarmist (on the front page) about Obama getting assasinated. Doesn't the paper of record have any shame?
Jonesin' for a Law and Morality Fix?
For a symposium on the state of play between law and morality, check out the new issue (h/t: Quiqley at Texas) of the HARVARD JOURNAL OF LAW & PUBLIC POLICY, VOLUME 31, NUMBER 1, WINTER 2008.
Table of contents below. Interesting articles from a range of perspectives here.
LAW AND MORALITY
A FOUNDER'S RETROSPECTIVE: THE JOURNAL AT 30 YEARS
LAW AND MORALITY: THE TWENTY-SIXTH ANNUAL NATIONAL FEDERALIST SOCIETY
STUDENT SYMPOSIUM ON LAW AND PUBLIC POLICY—2007
ON THE FOUNDATIONS AND NATURE OF MORALITY
Robert P. Burns
I. MORAL CHOICES AND THE EIGHTH AMENDMENT
MORAL CHOICES, MORAL TRUTH, AND THE EIGHTH AMENDMENT
Ronald J. Allen
METHODOLOGY, PROPORTIONALITY, EQUALITY: WHICH MORAL QUESTION DOES THE
EIGHTH AMENDMENT POSE?
MORALITY IN EIGHTH AMENDMENT JURISPRUDENCE
Michael S. Moore
II. GOVERNMENT PROMOTION OF MORAL ISSUES
GOVERNMENT PROMOTION OF MORAL ISSUES: GAMBLING, SMOKING, AND ADVERTISING
Lino A. Graglia
WHAT IS THE GOVERNMENT'S ROLE IN PROMOTING MORALS? . . . SERIOUSLY?
G. Marcus Cole
HOW TO REVERSE GOVERNMENT IMPOSITION OF IMMORALITY: A STRATEGY FOR
ERODING ROE V. WADE
Steven G. Calabresi
III. THE MORALITY OF FIRST AMENDMENT
THE MORALITY OF FIRST AMENDMENT JURISPRUDENCE
WHY PHYLLIS SCHLAFLY IS RIGHT (BUT WRONG) ABOUT PORNOGRAPHY
THE FEDERALIST APPROACH TO THE FIRST AMENDMENT
John O. McGinnis
IV. MARRIAGE, PUBLIC POLICY, AND THE CONSTITUTION
GAY SEX AND MARRIAGE, THE RECIPROCAL DISADVANTAGE PROBLEM, AND THE CRISIS IN LIBERAL CONSTITUTIONAL THEORY
Louis Michael Seidman
MORAL DUTY AND THE RULE OF LAW
William H. Pryor Jr.
Robert P. George
DRED SCOTT REVISITED
Harry V. Jaffa
MODESTY AND MORALISM: JUSTICE, PRUDENCE, AND ABORTION—A REPLY TO SKEEL & STUNTZ
John M. Breen
Monte Neil Stewart
"PLAY IN THE JOINTS": THE STRUGGLE TO DEFINE PERMISSIVE ACCOMMODATION
UNDER THE FIRST AMENDMENT
ENEMY COMBATANTS AND A CHALLENGE TO THE SEPARATION OF WAR POWERS IN
Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007)
SAYING WHAT THE LAW SHOULD BE: JUDICIAL USURPATION IN
Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007)
JUSTICES IN THE JURY BOX: VIDEO EVIDENCE AND SUMMARY JUDGMENT IN
Scott v. Harris, 127 S. Ct. 1769 (2007)
Talkin' Sports Over Some Law-Firm Beers
In a post last week, I explained how, as a law-firm associate, I was assailed every year in my annual review for the “complicated color system” of tape flags that I used in a document review during my first year as an associate.
You know what’s particularly unfair about being singled out for that? Lawyers are always making things more complicated than necessary. It’s part of the culture.
For instance, one large L.A. law firm I know uses important-sounding covert-government-style abbreviations for everything, especially the firm committees. The policy committee, and this is completely true, is “POLCOM.” The litigation steering committee is "LITCOM." And the committee for food and beverage, no joke, is called “EDPOT,” for “edibles and potables.”
Hearing a person I know from this law firm talk about firm governance is like listening to a Tom Clancy book-on-tape. That is, to borrow some book-jacket language, it is “a chillingly authentic heart-pounding supercharged thrill-ride!” When this lawyer talks, it is as if YOU ARE THERE, right in the room where the decisions are being made …
And then SECPOLCOM entered the room, pointing to the CRT, indicating the EDPOT scenarios. “I recommend positioning our Amstel Lights to the left of the Heinekens.”
You may have noticed that Amstel Lights and Heinekens are a universal constant at law firms. From New York to Los Angeles, and every law firm in between, when it’s time to serve beer, it’s Heinekens and Amstel Lights. You know I am right. Oh, firms like to pretend they are different from one another, but they all answer the beer question the same way.
Why is it always Heinekens and Amstel Lights? I’ll tell you why — it’s because they are the safe beers. They taste like domestics, but they are just foreign enough to say, “We’re sophisticated.”
The truth hurts, I know. But lawyers are the most risk averse of professionals. No law firm would dare serve Miller Lite. Casual Fridays caused enough of an uproar. But serving a Budweiser, that'll never happen.
The law itself is a risk-averse profession. When times are good, or when times are bad, people need lawyers. It’s a safe bet, career wise.
That’s why lawyers like to talk about sports. An interest in sports is a safe bet. It shows you are culturally connected to the mainstream. But since George F. Will wrote a book about baseball, it’s not inconsistent with being a discerning high-brow.
Lawyers love to burst out with observations such as, “They’re playing Warner too close to the net to make the option effective against that passing defense, especially when you factor in the infield-fly rule.”
This caused me considerable stress during my law-firm days. I love sports, but I was prone, for example, to forgo watching SportsCenter and keeping track of player statistics when my own hours-per-night sleep stat was hitting 2.5, 2.6 — or thereabouts.
Now sure, sleep’s not that much fun when you spend the whole time having nightmares in which you are frantically trying to figure out what to do with a document that has a blue tape flag in the upper right corner. But at least some sleep is necessary, otherwise you’re liable to burst into a meeting saying, “I like pudding!”
And if you do that, you’d sure as heck better like pudding alright. Because that’s what you’ll be talking about with the REVCOM every year for the next several years. Don’t ask how I know.…
At it again? Fitzpatrick on Post-Grutter Michigan
We've had some good discussions here and here in the past when we've linked to the work of my law school classmate Brian Fitzpatrick (Law, Vandy), so I thought I'd see if we can repeat our success now that Fitzie's stirring the pot again with his newest piece: Can Michigan Universities Use Proxies for Race after the Ban on Racial Preferences?
Here's the abstract:
In 2003, the Supreme Court of the United States held that public universities - and the University of Michigan in particular - had a compelling reason to use race as one of many factors in their admissions processes: to reap the educational benefits of a racially diverse student body. In 2006, in response to the Supreme Court's decision, the people of Michigan approved a ballot proposal - called the Michigan Civil Rights Initiative (MCRI) - that prohibits public universities in the state from discriminating or granting preferential treatment on the basis of race. Shortly after the MCRI was approved, a number of Michigan universities suggested that they were considering whether to use proxies for race in their admissions process in order to enroll racially diverse student bodies while circumventing the MCRI. These proxies include preferences for applicants who reside in heavily African American Detroit, applicants who are bilingual, and applicants who have lived on an Indian reservation.
This Essay considers whether it is legal for the universities to use proxies for race like these in their admissions processes. Although it seems clear that racial gerrymandering in university admissions will not run afoul of the U.S. Constitution - the universities can still invoke the compelling interest of the educational benefits of diversity - it is less clear whether the MCRI will permit the universities to use proxies for race. Like most antidiscrimination laws, the text of the MCRI does not say whether it prohibits only explicit racial classifications or whether it also prohibits racial gerrymandering. Nonetheless, this Essay argues that the MCRI should be interpreted like most of these other laws to prohibit both forms of racial discrimination. Although there are a few indications in the public debate over the MCRI that the voters of Michigan did not intend the proposal to prohibit racial gerrymandering, most of the debate assumed that the MCRI would be interpreted in the same way that Proposition 209 in California has been interpreted, and both commentators and courts have interpreted Proposition 209 to prohibit whatever the Equal Protection Clause would merely subject tostrict scrutiny. If the MCRI is interpreted in the same way, then it is likely that the universities will not be permitted to use proxies for race in their admissions process.
Update: Recent YLS grad Michael Helfand has just uploaded this paper on equal protection and the the diversity rationale, which examines some themes raised in Fitzpatrick's paper.
Sunday, February 24, 2008
It had to be done eventually: Prawfs is on Facebook
Sunday Book Blog -- Reality Books
Okay, so perhaps this genre hasn't caught on fully yet. But I'm in the middle of a captivating book that could lead this category (it doesn't really seem to fall into "Memoirs"). It's called The Year of Living Biblically: One Man's Humble Quest to Follow the Bible as Literally as Possible, by A.J. Jacobs. If the title weren't self-explanatory enough, I'll tell you that this is the true story of a secular NYC Jew who decides that reading the Encylopedia from cover to cover and writing a book about that isn't enough; so, he decides to spend a year trying to live as ancient believers did. (For those who are wondering, yes, his wife is often displeased.) He writes with good humor and a touch of sentimentality, and the book is, overall, quite entertaining. See here for an excerpt. I recommend it.
Saturday, February 23, 2008
In case you don't have superdelegate fatigue yet, you can check out a column I wrote with David Ponet at the Legal Times on the subject. We explain why both Obama and Clinton have it wrong.
Friday, February 22, 2008
Call for Nominations – Most Screwed Victims in Caselaw History
Why? Because, to borrow a phrase from my own Contracts teacher, Prof. Gerald Frug, “It’s delicious.”
Who is your favorite tragic figure from the casebooks? I invite your nominations in the comments to this post. After receiving your input, I’ll compile a list of candidates, and then we will elect the Greatest All-Time Victim in Caselaw History. (Come back to this post to see the results - I’ll append a link to follow-on reports.)
To qualify, your luckless loser must have been left substantially without the remedy sought in court. In other words, the qualifying event is not the original injury that occasioned the lawsuit, but, rather, the magnitude of tragedy occasioned by that person’s being let down by our system of laws.
And one other note. The point here is not to find someone whose misfortune resulted from a misapplication of the law or bad judging. Quite to the contrary, the ideal victim would, I think, be found in a case where the law was correctly applied, albeit with tragic results.
I’ll kick it off with my one nomination of my own:
From Civil Procedure the married couple of E.L. and Annie Mottley, from the case of Louisville & Nashville Railroad Co. v. Mottley. Seriously injured in a train collision in 1871, the Mottleys released their claims against the railroad in exchange for two lifetime railroad passes. When the federal government banned such passes in 1906, the railroad reneged on its deal, and the Mottleys sued in federal court. Their case wound up in the U.S. Supreme Court, which dismissed the case for lack of federal-question jurisdiction. See 211 U.S. 149 (1908). So the Mottleys re-filed in Kentucky state court and won back their passes, only to wind up in the U.S. Supreme Court AGAIN. See 219 U.S. 467 (1911). This time, the high court ruled on the federal question (i.e., the one that wasn’t important enough to confer federal-question jurisdiction a few years prior) and decided the Mottleys couldn’t have their railroad passes after all.
I hope they got a good deal on attorneys fees.
Jump to related future posts:
Most Screwed Victims in Case Law History - Time to Vote - April 16, 2008
The Peevyhouses: The Most Screwed Victims in Case-Law History - May 9, 2008
Thursday, February 21, 2008
Legal Education and Regulatory Theory
Various discussions on prawfs have focused on reforming legal education, introducing new courses and methods to the curriculum, and rethinking what future lawyers need for successful (and diverse) legal careers. Jason Solomon (Georgia) has posted his forthcoming Law and Governance in the 21st Century Regulatory State (Texas Law Review, Vol. 86, 2008). In this review essay, Solomon looks at two new books, a casebook and an edited collection, that together invoke the juncture of legal education and theory about the regulation and governance. The first, Law and New Governance in the EU and the US, edited by Gráinne de Búrca and Joanne Scott, is "a collection of works by some of the leading scholars in the "new governance" field." (Shameless plug: check out my chapter on OSHA and the EEOC). The second, The Regulatory and Administrative State: Materials, Cases, Comments, by Lisa Heinzerling and Mark Tushnet, is "one of the first casebooks for a class on the regulatory state, as well as the first book from Oxford University Press's new Twenty-First Century Legal Education series." (Shameless plug: Tushnet and Heinzerling focus on the regulation of risk to explore law and governance, and they use excerpts of my ALR article, Interlocking Regulatory and Industrial Relations, to demonstrate some of these experiments in the field of safety and health).
Solomon argues that legal scholarship and pedagogy on the regulatory state are at parallel junctures, and by linking the two books and other developments in the legal academy, he demonstrates a concerted scholarly effort to rethink the role of the state and a curricular effort to place the study of these efforts at the core of legal education.
I recommend the essay to anyone new to new governance theory as well as to those who have been writing in the field. Solomon also has some interesting critique. In his words:
I think both books are tremendously important and largely succeed on their own terms. But I argue that they share a common flaw: a lack of attention to the "adversarial legalism" that pervades American policymaking and implementation, and the role of lawyers. This inadequacy threatens both the power of new governance as an overarching regulatory theory and the pedagogical potential of promising curricular reforms. I suggest future directions for new governance scholarship, and for courses on lawyering in the regulatory state.
Incentives to Precautions in Proximate Cause and some meta-questions
In a couple hours, I'm going to be wrapping up some proximate cause materials in my criminal law class. Here's one thing I've been thinking about, and I would be curious to hear reactions to it.
Imagine the Kibbe case. (K gets V snockered drunk, robs him, puts him in car, drives, and leaves V with pants at his ankles, without eyeglasses, on the side of an desolate night road in the cold. V dies when struck in the middle of the lane by a driver who didn't see V.)
Now, imagine, as Dressler asks us, that instead of dying by a truck, a plane crashes in the road and kills V instead. There you have foreseeable result (death of V) by unforeseeable manner (plane crash).
Should this manner of death by plane serve to break the chain of attributing proximate cause to Kibbe b/c the unforeseeable manner is something Kibbe can't take precautions against? Recall the truck driving into V is something that can be more readily avoidable, in part because the truck impact is more foreseeable. Should the law give an incentive to K to take care where K might otherwise not take care? Should we use a negligence rule or strict liability rule?
It would seem to make sense to use a negligence rule, but consider: s/l should induce optimal care and optimal activity levels, whereas a negligence rule will only induce optimal care. So if we think the activity of placing people in danger by some foreseeable means should be eliminated, perhaps the s/l rule makes sense in terms of who's going to be the proximate cause.
The main problem here is that I don't think any one person is thinking about proximate cause issues when committing their dangerous activities, so all this "magical thinking" is worth bupkis. On this view, it's hard to see why crim law theorists sometimes puzzle over doctrinal conundra like this apart from their inherent interest. Is there a way to make sense of this to students? Should courts be moved by these considerations in advocacy?
Alternatives to Habeas and the Myth of Swain v. Pressley
I've been staying rather mum on the Guantanamo cases and the Iraqi detention cases, partly because I've been busy and partly because I've been involved in both... that being said, I wanted to flag one issue that I explore in a new paper an early draft of which I just posted to SSRN--the idea of "adequate" and "effective" alternative remedies to habeas corpus. The paper, which I wrote in conjunction with a November 2007 symposium at the Roger Williams University School of Law, basically argues that Swain v. Pressley, the 1977 decision commonly cited for the proposition that Congress can fashion alternative remedies to habeas corpus, is actually incredibly unhelpful in providing criteria for identifying limits on Congress's power to so provide (and that a careful analysis of Pressley and its precursor, United States v. Hayman, helps to show why).
The abstract is below the fold; of course, I'd welcome any and all comments...
The Supreme Court's decision in Swain v. Pressley, 430 U.S. 372 (1977), is routinely cited for the proposition that "the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person's detention does not constitute a suspension of the writ of habeas corpus." Thus, in the habeas petitions filed by Guantanamo detainees currently before the Supreme Court, one of the central questions is whether the substitute remedy provided by the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 is "neither inadequate nor ineffective to test the legality of . . . detention."
Surprisingly, though, for as central a role as Pressley may yet come to play in the current cases, exceedingly little has been written about the decision, and there are no sustained academic treatments of Justice Stevens's cryptic holding. This symposium essay attempts to remedy that defect, analyzing Pressley in light of the precedent upon which it relied (the Court's 1952 decision in United States v. Hayman, upholding 28 U.S.C. 2255), before moving to how Pressley came to be understood after it was decided. As the essay argues, critical to the Court's decision in Pressley (as in Hayman) was statutory language providing that, should the alternative remedy prove to be inadequate or ineffective, habeas corpus would remain available. Thus, courts interpreting the statutes upheld in Hayman and Pressley never had to choose between concluding that the remedy _was_ adequate and effective and striking down the statute as violating the Constitution's Suspension Clause.
As the essay concludes, the myth of Swain v. Pressley, then, is that it provides useful criteria for assessing statutory substitutes for habeas corpus that do not include similar safety valves. Quite to the contrary, as a series of cases under the REAL ID Act of 2005 help illuminate, Pressley ultimately distorts courts' analysis of the adequacy of the substitute remedy, and will therefore likely be of little practical utility to the Supreme Court in the current cases.
Wednesday, February 20, 2008
Congress: Reverse Ledbetter!
My friend Neena (who also clerked for the Hawk) works at the National Women's Law Center. She just circulated the following important letter, which I thought I'd share with the Prawfs community.
The National Women’s Law Center is circulating the attached sign-on letter for lawyers and law students in support of the Fair Pay Restoration Act. To sign the letter, please go to https://action.nwlc.org/legallet
The Fair Pay Restoration Act will reverse the recent Supreme Court decision in Ledbetter v. Goodyear Tire and Rubber Co., which severely limits workers’ ability to vindicate their rights and distorts Congress’ intent to eliminate sex and other forms of discrimination in the workplace. For more background information, please check out the summary below. Our goal is to gather support from 1,000 lawyers and law students, before the bill is brought up on the Senate floor. Please help us reach our goal, by signing the letter today and circulating it to your colleagues.
I thought the result of the Ledbetter decision, even if it could be justified on the law (and I'm not saying it can be), was a bad policy. Happily, there's some agitation to get Congress to fix it. Some more on Ledbetter after the jump, as well as a copy of the letter being circulated to Congress.
On behalf of a broad group of lawyers and law students, we urge you to support S. 1843, the Fair Pay Restoration Act. S. 1843 would reverse the Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Co. and help to ensure that individuals subjected to unlawful compensation discrimination are able to effectively assert their rights under the federal anti-discrimination laws. The bill would reinstate prior law to make clear that compensation discrimination claims accrue whenever a discriminatory compensation decision or practice is adopted, when a person becomes subject to the decision or practice, or when a person is affected by the decision or practice, including whenever he or she receives a discriminatory paycheck.
The Supreme Court’s Ledbetter decision upends decades of precedent to limit severely workers’ ability to vindicate their rights. Under the Ledbetter rule, victims of compensation discrimination have no recourse against – and employers largely are immunized from liability for – discrimination unless a charge is filed within 180 days of the employer’s initial discriminatory compensation decision, even when the discrimination continues into the present. Contrary to Title VII’s intent to encourage voluntary compliance by employers, the Ledbetter decision thus creates incentives for employers to conceal their discriminatory conduct until the statutory period has passed. As Justice Ginsburg noted in her dissent, after that time the Ledbetter rule renders employers’ discriminatory compensation decisions “grandfathered, a fait accompli beyond the province of Title VII ever to repair.
More than four decades after Congress outlawed wage discrimination based on sex, women continue to be paid, on average, only 77 cents for every dollar paid to men. This persistent wage gap can be addressed only if women are armed with the tools necessary to challenge sex discrimination against them. And it is critical that Congress reaffirm that civil rights laws have effective remedies, and that all those subject to compensation discrimination are entitled to challenge continuing discrimination against them.
S. 1843 would reinstate the “paycheck accrual rule,” under which each discriminatory paycheck is treated as an act of discrimination that triggers the 180 day statute of limitations under Title VII. The paycheck accrual rule is the only rule that both furthers the purpose of the anti-discrimination laws and is consistent with their language. First, the paycheck accrual rule promotes voluntary compliance. Because each discriminatory paycheck, rather than simply the original decision to discriminate, triggers a new claim filing period, employers have a strong incentive to eliminate any discriminatory compensation practices. In addition, the rule eliminates the incentive created by the Ledbetter decision for employers to conceal discrimination for 180 days and then be insulated from any challenge.
The paycheck accrual rule also responds to workplace realities. Compensation discrimination is different from other types of employment discrimination because of the general secrecy surrounding payroll information in the workplace. Few employees have concrete information about the decisions underlying their own compensation, let alone the compensation of their coworkers. And unlike other forms of discrimination, paychecks are not announced, or treated by employees, as adverse employment actions. As a result, an employee may experience compensation discrimination for a long time before he or she is aware of it.
The paycheck accrual rule sets the right balance between premature and stale claims. The rule allows employees to take the time to evaluate and confirm their suspicions of discrimination before filing a charge, thus avoiding the incentive created by the Ledbetter decision to file claims prematurely. At the same time, employees will continue to have every incentive to file claims of discrimination as promptly as possible, among other things to ensure that they can recover the full amount of backpay that is owed to them.
The Fair Pay Restoration Act simply restores prior law, which had been applied by nine of the ten courts of appeals that have considered the issue, on the basis of Supreme Court precedent before the Ledbetter decision.  Accordingly, most courts and the Equal Employment Opportunity Commission, as well as most employers, are already familiar with the rule. Both employers and employees benefit from the certainty created by the rule, which ensures that both plaintiffs and defendants will be able readily to determine the timeliness of claims.
We urge you
to enact S. 1843, the Fair Pay Restoration Act, without delay. Please
feel free to contact Jocelyn Samuels, Vice President for Education and
Employment at the National Women’s Law Center, with any questions.
Law Center, with any questions.
 Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S.Ct. 2162, 2178 (2007) (Ginsburg, J., dissenting).
Leffman v. Sprint Corp., 481 F.3d 428, 433 (6th Cir. 2007); Forsyth v.
Federation Employment & Guidance Servs., 409 F.3d 565, 573 (2d Cir. 2005);
Shea v. Rice, 409 F.3d 448, 452-53 (D.C. Cir. 2005); Hildebrandt v.
IllinoisDep’t of Human Resources, 347 F.3d 1014, 1027-28 (7th Cir. 2003); Goodwin v. General Motors Corp., 275 F.3d 1005, 1009-10 (10th Cir. 2002); Cardenas v. Massey, 269 F.3d 251 (3d Cir. 2001); Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167-68 (8th Cir. 1995); Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 345-49 (4th Cir. 1994); Gibbs v. Pierce County Law Enforcement Support Agency, 785 F.2d 1396, 1399 (9th Cir. 1986). These courts applied the paycheck accrual rule on the basis of the Supreme Court’s decision in Bazemore v. Friday, which held that “[e]ach week’s paycheck that delivers less to a black than a similarly situated white is a wrong actionable under Title VII.” 478 U.S. 385, 395-96 (1986) (Brennan, J., concurring).
Background Information: Because pay information is
often confidential, it may take a long time for an employee to realize that she
is experiencing compensation discrimination. And if employers are insulated from
liability after 180 days, they have little incentive to correct pay
discrimination that occurs. The Fair Pay Restoration Act would restore
long-standing law and promote voluntary compliance with anti-discrimination laws
by employers. Other Resources:
Fair Pay Campaign Website (www.nwlc.org/fairpay)
In Ledbetter v. Goodyear Tire and Rubber Co., the Supreme Court held that employees cannot challenge ongoing compensation discrimination if the employer's original discriminatory decision occurred more than 180 days before, even when the employee continues to receive paychecks that have been discriminatorily reduced. Prior to this decision, the law, as interpreted by the Equal Employment Opportunity Commission and nine of ten courts of appeals that have considered the issue, treated each discriminatory paycheck as a separate discriminatory act that started a new 180-day clock.
Because pay information is often confidential, it may take a long time for an employee to realize that she is experiencing compensation discrimination. And if employers are insulated from liability after 180 days, they have little incentive to correct pay discrimination that occurs. The Fair Pay Restoration Act would restore long-standing law and promote voluntary compliance with anti-discrimination laws by employers.
Fair Pay Campaign Website (www.nwlc.org/fairpay)
It's True: Sex Does Rock Our World
Israel decriminalized homosexuality in 1988 and has recently passed several laws recognizing gay rights. Israeli court rulings in recent years have granted inheritance rights to gay couples and recognized same-sex marriages performed abroad. Last week, the Israeli government implemented a new plan allowing same-sex couples to adopt. And then...Two earthquakes rocked the grounds of the HolyLand.
Shlomo Benizri, of the ultra-Orthodox Jewish Shas Party, said the tremors had been caused by lawmaking that gave "legitimacy to sodomy". Benizri made his comments while addressing the Knesset about the country's readiness for earthquakes. The comments were in fact put in economic cost-benefit analysis terms: "A cost-effective way of averting earthquake damage," said Benizri, "would be to stop passing legislation on how to encourage homosexual activity in the State of Israel, which anyways causes earthquakes." The MK also used the United States as an example to show how Israel is far beyond outrageous in comparison to other loose countries.
I, for one, subscribe to one of my friend's reactions, "Well, it sure makes the earth move for me!".
Is the Pledge merely Ceremonial Deism?
Last week in my law & religion seminar, we went over the Newdow case -- the infamous 9th circuit case holding that the words "under God" in the Pledge of Allegiance violate the Establishment Clause. The Supreme Court mostly didn't reach the constitutional issue, ruling that Newdow didn't have standing, but Justice O'Connor did present a lengthy concurring opinion concluding that the phrase was part of our country's acceptable "ceremonial deism," like having "In God We Trust" on our coins -- a phrase coined by Justice Brennan in 1984.
O'Connor went out of her way to say that the point of ceremonial deism is not that it is de minimis, but that it has certain features: history/ubiquity, absence of worship/prayer, absence of reference to a particular religion, and minimal religious content. So, even though "under God" surely flunks the Lemon test, O'Connor's own Endorsement test, and some understandings of the Neutrality principle, its status as "ceremonial deism" makes it OK.
Brennan's original formulation, though, is a bit more limited: for him, statements of ceremonial deism are those which "have lost through rote repetition any significant religious content."
Brennan specifically included the Pledge's "under God" as an example of ceremonial deism. But here's my question: given the false allegations about Barack Obama's religion, and his willingness/unwillingness to say the pledge of allegiance, I wonder if "under God" is really devoid of religious content after all? More after the jump.
Ceremonial deism is essentially meant to be a meaningless gesture that's been longstanding and of minimal religious content. Now, "content" isn't the same as "import." A statement may be very low in content but very high in import. But is it really accurate to measure content by number of words and theological propositions? Scholars of religion regularly observe that mere gestures, such as movements of the hand, can have enormous religious content, even without any words at all. "Content" is determined by context and symbol, not just verbiage.
I've been interested for a long time in how changes in culture can lead to changes in constitutional terms. For example, I argued, pre-Lawrence, that changes in cultural understandings of "family" had caused sodomy to become included within the family's 'zone of privacy.' Now, I wonder if the same process may be afoot. Insofar as the Pledge itself is connected to both religion and nationalism, I wonder if "under God" in the Pledge in fact has significant religious content, as evidenced by the anti-Obama smear, its blending of God and Country, and its disturbing resilience in some circles.
Even the outrage that greeted Newdow itself to me indicates that "under God" is meaningful. Those words are important to people because they say something, and the something they say is indeed significantly religious.
If not saying something means so much, then doesn't saying it mean equally as much?
Weekday in Seattle
I thought the host and all the other guests raised important questions and points.
For those of you in the Seattle area or with access to radio on the computer, I'll be talking about shaming and the law on NPR's Seattle based Weekday show later this morning around noon Eastern. Prof. Martha Nussbaum will be on too, as well as Steve Calandrillo, a prawf at U.Wash. It'll be nice to re-connect with them both. I'll try to post a link to an audio file later on.
Here are some of the links spurring conversation:
- 'Bill Proposes Scarlet Letter for DUI's,' The Seattle Times
- 'Bill Dies, No Doubt from Embarrassment,' Yakima–Herald
- 'Hiding from Humanity: Disgust, Shame, and the Law,' Princeton
- Sign of the times
- 'Bad cop in Thailand? Say Hello to Kitty,' USA Today
- Regulation By Shaming
- Task force recommends repealing 'shaming' law for DUI offenders
- Ingenious Punishments
Tuesday, February 19, 2008
Some thoughts on "Whose Eyes"
Yesterday, at the end of Howard's post on shameless plugs -- really, though, the genre is a null set here on Prawfs! -- Howard mentioned the paper by my friends Dan Kahan, Dave Hoffman, and Don Braman, entitled: Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris.
As many of you know, the paper has received a good bit of attention in the blogosphere. See here, here, here, here, and here. It is written with characteristic panache and presents a rich vein of interesting ideas.
I had the chance to read it a few weeks ago and had some thoughts about it that I'll share based on the version I saw on SSRN; I've already shared these and some other reactions to the authors.
FWIW, most of my comments are on the last section of the article, as I'm confident I have little useful to say about anything preceding that. I won't do too much foregrounding on the points I raise; I assume readers of this post will have read the paper.
A) I remain somewhat skeptical of the utility of the grid/group characteristics that undergird the Cultural Cognition Project's work for some of the reasons I raised last year in my piece in the Texas LR.
B) It's a bit interesting that Justice Stevens, who was a Republican appointed white guy from the mid-west, ends up being the "Bernie" character in the group, no? To my mind, it weakly and anecdotally suggests the problems of reading too much into cultural cognition generalizations. And why does Clarence Thomas, a poor black kid from rural Georgia, become like "Ron"? In other words, what explains why one's susceptibility to cultural cognition "patterns" evolves?
C) Some of my concern is predicated on the fact that I'm not sure how much to read into the descriptive differences discussed in table 1. Looking at the question, "agree with the court," what do we see? The black-white difference registers a 0.83, but region and gender are less than a 1/4 of that. Everything else falls in between with most of them less than a 1/2 point different out of a total of 6. I take it the authors see that variation as significant, but why? How much does that tell us?
To me, I think it shows there's a greater likelihood of uniting people under reason than dividing them under cultural cognition patterns. Cf. Obamania.
D) p.44 around the role of juries, n.89.
There's a long discussion of the loveliness of juries here vis-a-vis liberal democracy. To my knowledge, the use of (update: *civil*) juries is scant elsewhere in liberal democracies, so any account that valorizes jury use in the civil system as significant for liberal democracy runs the risk of denying the liberal democracyness of all the other liberal democracies around the world that don't use it. In other words, to the extent the normative account of the paper strives toward liberal democracy's goals, consider whether the civil jury institution is necessary to it. If it's not, what's going on in the other liberal democratic regimes that conduces to the "law's democratic legitimacy in the moral sense"?
More importantly, but not critical to KHB's views, jury practice has little to do with democracy in the precise sense. They may be a popular voice but they have nothing to do with democracy in the sense of majoritarian law-making, and the rules that govern jury outcomes are also not about majoritarianism. E.g., they require unanimity to acquit in the federal context, which suggests just how ridiculously stacked they are in favor of the gov't anyway...the gov't can keep retrying on hung juries.
To my mind, the real place for making the laws accountable to democracy is not the jury but the ballot box for legislative and executive voting; thus, I don't understand why, on bottom of 46, "those who disagree lack any resources for understanding the law as theirs." Anyway, people who seem to disagree with the "correct" view of "social reality" (as determined by the lawyers) will likely get struck through voir dire anyway... For the politically marginalized, democracy qua voting is likelier to be more successful than jury service is in making the law "theirs."
E) p. 47: The claim that the decision in Scott will send a message of disapproval to a "dissenting group of citizens" is a bit overstated. Most people in the study's "dissenting group" (which recall has only at most one point of difference on a scale of 6) probably don't even know about the decision in Scott and have taken no umbrage. Perhaps that's not true in Kelo, where there seems to be a lot more popular reaction, but I didn't get a strong enough sense of evidence to show that anyone in your dissenting group was trying to be a norm entrepreneur at the state level to apply a different rule than enunciated as a floor in Scott v. Harris.
Here's a weak point of evidence for this notion: I earlier did a google news search of Scott v. Harris for the last month. Nothing comes up in the last month. Plug in Kelo, and you still get lots of hits. This suggests, albeit weakly, that one's making a whole tzimmes out of one carrot and the claim that Scott created a "needlessly partisan" view of the world is one that exists without sufficient evidence in the paper to indicate any popular outrage or even mild consternation.
P. 50: again my earlier point: The authors write the Court could have avoided "stigmatizing an identifiable subcommunity's view of social reality." Where can I find these people? Who is their spokesperson? Maybe one can discuss them if they are out there. But given that I didn't see the differences as so substantial, I'm not sure there's a dissenting group of citizens mobilizing on this issue.
F) P. 57: This part of the paper again raises some different questions I brought up in my Tex LR piece. Quickly, I'm not sure why we should be so conflict-averse over these "cultural clashes" when they are channeled properly through liberal democratic institutions. Many people view this to-and-fro over values as indicative of a healthy marketplace of ideas; admittedly, fact-finding should be less aligned with cultural partisanship, but the stats generated here regarding the patterns of reactions to the Scott video don't strike me as indicative of any impending rebellion or mass demonstrations.
G) P. 60-61: Last, I can't quite tell whether the authors are embracing a Straussian esoterism doctrine of judging by encouraging judges to decide on grounds other than those sincerely held by the judge (ie, the lower courts got the facts flatly wrong). If so, this is likely subject to some of the objections raised by Micah Schwartzman in his forthcoming Va. L Rev piece on Judicial Sincerity.
Again, a very thoughtful, vividly written, and provocative piece. Harvard Law Review will be lucky to get it!
The Sex-Ed License, Redux
Last week I blogged about the uneasy case for a sex-ed licensing scheme that would, with other conditions, serve as a safe harbor from statutory rape prosecutions for sex between and with minors over a certain age (e.g, 15). The proposal, and the couple of posts that led to that one, have met with some interesting reactions. See especially this post from Simple Justice.
Over at Mirror of Justice, Prof. Rob Vischer responds:
I'm not sure how to articulate all of my grounds of discomfort with this proposal, but here's one: the driver's license has become a rite of passage for American teenagers. Even if you do not need to drive for purposes of your daily existence, your entitlement to drive is sought-after goal, a sign of maturity and enhanced independence. As Cass Sunstein has pointed out, one of the government's central roles is norm management. In this regard, state action designed to prevent harm from risky behavior that we know is going to occur can easily begin to shape the norms that influence future behavior. I don't have a problem with state regulation contributing to the centrality of driving to the adolescent experience, but what if we're talking about the centrality of sexual autonomy to the adolescent experience? A city's free condom program has become a government message (literally) telling us all to "get some," and I'm wary as to the message of a "sex-ed license" for minors.
As I mentioned in some comments to the original post, Rob is right that there are definitely norm-management issues involved, but consider whether the same concerns exist regarding gambling, alcohol, and tobacco. Why do norms against abusing these exist even though their use is permitted by law? Maybe, one could respond that these three things are restricted to adults, so it's easier to manage the messages we send to minors about these things. But to my mind, that still begs the question regarding how we're able to create norms against abuse while still allowing the law to permit them for adults.
For what it's worth, I am much less troubled by the message that this license says: "go get some action," than the injustice and inefficiency of punishing purely consensual relations between mature and informed individuals. But I should note that I'd be fine if the sex-ed license focused on the consequences of sex so it served a bit like a "scared straight" movie. Maybe a condition for the license would also require everyone to watch Knocked Up and Juno too...
Abortion and Popular Culture: Fast Times v. Knocked Up
Sherry Colb has a FindLaw essay and blog post on the movie 4 Months, 3 Weeks, and 2 Days, which depicts the efforts of a student to obtain an illegal abortion in Ceausescu's Romania in the late 1980s. In the post, Colb wonders why abortion is not depicted as a serious option in recent American movies such as Waitress, Knocked Up, and Best-Picture nominee Juno (and I confess to not having seen any of these). Colb suggests these films "demonstrate the success of a pro-life movement operating within a pro-choice regime."
I want to agree with Sherry and expand on something I wrote in the comments. The success of the pro-life movement has been in controlling the rhetoric of popular culture on the subject of abortion. It now is inconceivable that a mainstream movie or television show (especially a comedy or "dramedy") would depict a character choosing to have an abortion. The anticipated and expected enraged backlash from the pro-life movement, Republicans, and the right-wing media (mainstream and alternative) would scare any major (and most minor) studio or network away from the subject and the overall project.
Compare this with two examples from the not-so-distant (which is to say, within my lifetime) pop-culture past in which very different characters are shown choosing to terminate a pregnancy in very different circumstances: Fast Times at Ridgemont High, where a high school sophomore becomes pregnant after a one-time mistake with a jerk, and the television show Maude, where a middle-aged woman with grown children decides she cannot go back to that earlier stage of her life. I cannot imagine either situation being shown today.
Even if the pro-life movement has not succeeded (yet) in overturning Roe (something Jack Balkin has argued the Republican powers-that-be do not really want anyway), it has succeeded in taking abortion out of the popular culture. This is not to suggest that real women are making real-world choices based on what they see in either a movie with Judge Reinhold or one with Seth Rogen. But a society's popular culture reflects the societal narrative, which in turn affects the conversations, if not the actual actions, occurring in that society. To the extent abortion is less a part of the societal conversation, even though it remains a legal option, that is a victory for the pro-life movement--although perhaps not yet a tangible one or the one they really wanted.
I don't know about you, but I'm a big fan of the Sonic commercials. They usually feature two guys in a car at a Sonic talking about some new Sonic food. The guys are, well, imagine a cross between Urkel and Will Ferrell. My favorite is the Tot Rejection spot. The parodies on YouTube are also funny.
I must say that the quality of the advertising vastly exceeds (what I imagine to be) the quality of the products. The latest special here in Arkansas is the Country Steak-n-Egg Toaster Sandwich. Fried egg, country-fried steak, and gravy, all on Texas toast. At 700 calories, 36 grams of fat, and 325 mgs of cholesterol, it certainly isn't good for you. I've never sampled the ware, so I could be totally off-base here, but it doesn't sound very appetizing, either.
Was Jon Stewart Better Without Writers?
Since the New Year, Jon Stewart had been doing The Daily Show without his WGA-striking writers. Now that the writers are back, I have to admit, sadly, I think that his show has gone slightly downhill.
The fact is, without his union labor-pool, Stewart was a smart-aleck version of a smart-aleck. He was loose, preter-irreverent, and hilarious. More to the point, his material was better. With the writers back on the job, Stewart's material feels somewhat canned, stale, and strained - at least by comparison. Actually, I believe the writing is quite good by any objective measure. But, it is, quite clearly in my opinion, less funny.
If anything, the strike seemed to prove, that at least for some live-to-tape talk shows such as Stewart, Colbert, and Leno, that WGA talent is utterly unessential.
Strikes are supposed to convince employers, and, by extension, customers, of the necessity of union labor. Unfortunately, this strike may have done the opposite. The Hollywood writers’ strike has provided a rare opportunity for the masses to judge for themselves the value that striking workers offer. In 1987, with the NFL players strike, America had that opportunity as well, and football fans decided overwhelmingly that the replacement fare was far inferior. I wonder if the audience's judgment will be different with regard to the just-ended WGA strike. It will be interesting to see what happens in the ratings when enough time has gone by for a good comparison.
This all raises a broader question. The WGA is clearly good for its members, but is the WGA is good for television viewers?
A few weeks ago, I blogged about my contention that meritocracy should serve as a guiding value premise for the law of the entertainment industry. By working to ensure stable employment for members, the WGA arguably works against an infusion of novel creativity into television. Does the WGA have an overall negative effect on TV? What does the strike tell us, if anything, about how the WGA affects comedy-talk-show writing? One conclusion we could draw is: When WGA writers are gone, freshness rushes into fill the void. And by extension, if shows were suddenly staffed with newcomer non-WGA writers, the comedy could get much funnier. In other words, if the hosts, working by themselves, did better than the writers, couldn't new non-WGA writers do even better? As a former resident of L.A., I can personally attest to the legion of extremely talented non-union comedy writers who would love to work on the likes of Stewart's show.
On the other hand, maybe the correct lesson to draw is that no one, no matter who they are, can write as well for Stewart as he writes for himself ( ... and possibly the same for other talk hosts, though I did not watch them as closely during the strike to judge whether this is plausible).
A completely different conclusion might be that when Stewart was without writers, his material wasn’t as good, but his delivery was a lot better. And maybe whatever good material he generated would have dried up soon if he continued to work without help.
Alternatively, maybe you disagree with my main premise, and you think that Stewart and other hosts sound better now that their writers are back.
Let me note that I offer my comments here with some regret. Of all the Hollywood professions, writers are my personal favorite. They are the absolute best to share a few drinks with, even if they can’t get you into the coolest parties. There is no doubt that their genius is the most undervalued in the industry. And with regard to this strike, their arguments for staking out claims on new media were well-placed. But as a legal academic, I think the questions I raise here are important questions to ask.
Monday, February 18, 2008
Shameless Plug Division
Regardless of when they are accepted, articles seem to come out in bunches, as this week attests.
Today, my essay, Jurisdiction, Merits, and Procedure: Thoughts on Dodson's Trichotomy, was published on Northwestern University Law Review Colloquy. This is a response to an article from my co-guest prawf, Scott Dodson, that appears in the latest issue of Northwestern University Law Review. This piece is either the third (in terms of timing of publication) or fourth (in terms of timing of writing) in a series of articles in which I argue for the use of clear and consistent lines between the distinct concepts of subject matter jurisdiction and the merits of federal claims of right. Earlier entries are here, here, and here. Scott's article gave me a chance to consider how pure judicial procedure fits into the mix.
Also this week, my essay Video evidence and summary judgment: The procedure of Scott v. Harris, comes out in Judicature. This is a short comment on the Court's decision last term in Scott v. Harris, the high-speed-chase/video evidence/summary judgment case. My focus here is on what I label the "myths" (more accurately, I think, "fallacies") of video evidence--namely that the video "speaks for itself" as a conclusive, objective, certain, truthful, and accurate depiction of events that requires no interpretation--to which the Court fell victim in granting summary judgment based on its own viewing (and understanding) of the video. This case was the subject of some discussion previously.
I cite briefly, but do not really engage with, the empirical study of Scott by Kahan, Hoffman, and Braman, that was discussed here, here, here, here, and here. I will consider that study (to which I largely am sympathetic) in a larger piece on the effect of video on civil rights enforcement that I am beginning to write. I likely will post some thoughts on that paper, and how it relates to my subject, in the next week or so.
A Few Good Men?
Last week, I passed along the A Few Good Men parody of the Roger Clemens hearing. Today, I received an e-mail from Scott Sullivan, an assistant professor in the Emerging Scholars' Program at the University of Texas School of Law and an attorney for several GTMO detainees, with the following story:
During my most recent trip to visit with my clients I asked my military escort if I could get a copy of Santiago's transfer order before we left the base. He shuffled nervously through his papers and replied "Sir, I'm afraid we don't have any documentation of your request for Mr. Santiago's transfer order."
I laughed out loud. Scott thought it was sad that so few soldiers stationed there had seen the movie. Perhaps. I would add kudos to Scott for capturing the basic necessity of finding humor in even the darkest situations. But I must confess that, although I (like pretty much every person who went to law school since 1992) have seen the movie more times than my wife cares to acknowledge, I never would have thought to ask that question in that situation.
Excluding "Whites" From Review Sessions
Richard Delgado's "Ask Mom" series on Blackprof is regularly fascinating and provocative, if I may sum up my reactions to it in a neutral and non-specific way. Today's post is no exception. "Mom" answers a question from a "reader" who writes to ask whether it is permissible for her to hold support sessions for students with grade-point averages of B or lower. The "reader" began holding these sessions because she noticed that many of her lower-scoring students were black or Latino. Some white students have complained that the sessions should be opened to all students no matter their grade-point average, and have suggested that the policy is covertly aimed at students of color alone. "Mom" advises his "correspondent" to stick to her guns.
The fun in reading Delgado's Ask Mom series is in thinking about which aspects of his answers you agree with, which you disagree with, and so on, so I won't impose my own conclusions on you; decide for yourselves. Two observations, though. First, there is of course nothing wrong with aiming review sessions at students, of whatever color, who are having more trouble in class than their colleagues. I agree fully with "Mom" that the "teacher" has "no obligation to offer additional sessions for A-minus students wishing to earn an A-plus." But "Ask Mom" gives his own post the title "Should I exclude whites from my review sessions?" So is the point that this "teacher" really wants to exclude whites from her reviews? That her use of grades as a limit really is an imperfect but deliberate proxy for race?
The other observation is that the entire spectrum of Delgado's vision can apparently be summed up as follows: "white," "black," and "Latino." That's it. Missing from these categories are, among other things, "Asian," "American Indian," "Persian," "Arab," and so on. Not to mention the very reason I've put quotes around all these words: also missing are "biracial," "complex mix," and "none of the above." (Not to mention, as always, "disabled," although I acknowledge that's a different kind of category.) At Southwestern Law School in Los Angeles, the last law school I taught at full-time, Delgado's categories wouldn't have come within miles of describing the profound and exciting racial, ethnic, and socio-economic diversity of the student body. It's an extraordinary place, and I would hate to think anyone would attempt to describe it with only three words. He ought to pay it a visit sometime.