Saturday, March 31, 2012
The Unusual Case of Marvin Gabrion
Just over a decade ago, on March 16, 2002, Marvin Charles Gabrion made history. So far as I have been able to tell, Gabrion became the first person ever sentenced to death by the United States for a crime committed in a State that absolutely forbids capital punishment. In 1997, Gabrion committed murder in the Manistee National Forest in Michigan, over which the U.S. and the State of Michigan share concurrent criminal jurisdiction. He was prosecuted, convicted, and sentenced to death by the federal government.
Resolution of Gabrion's direct appeal to the U.S. Court of Appeals for the Sixth Circuit was delayed by an important question of subject matter jurisdiction that was ultimately decided against him. It was not until August of last year that a panel of the Sixth Circuit decided his appeal, reversing the death sentence on two grounds. First, it held that the jury instructions at the sentencing phase were erroneous under the Apprendi line of cases because they failed to inform the jury that it must find that the aggravating factors outweighed the mitigating factors beyond a reasonable doubt. Second, the court held that the failure to instruct the jury that it could consider Michigan's lack of a death penalty to be a mitigating factor violated the Federal Death Penalty Act and the Eighth Amendment. However, both of these holdings were 2-1, and the court subsequently granted review en banc.
The supplemental briefs for both Gabrion and the U.S. have now been filed, and oral argument will likely be held this summer. Interestingly, Gabrion has not really pressed the second issue on which the Sixth Circuit panel would have granted relief. Instead, he casts it in somewhat different terms: he argues that the trial court erred by prohibiting his attorneys from arguing at the sentencing phase that the jury should consider as a mitigating fact any lingering doubt it had over whether the crime actually occurred on federal forest land. Both of the issues addressed in the supplemental briefs are not only interesting but are cert. worthy if either one is resolved in favor of Gabrion.
But my interest in this case relates primarily to my pet issue of the federal death penalty in non-death States. In January, I filed an amicus brief in the case setting forth the federalism arguments I have written about before on this blog. In essence, I advance a reading of the Cruel and Unusual Punishments Clause that measures the "unusualness" of federal punishments by whether they are consistent with the norms of the States. Since the Bill of Rights was demanded by the Anti-Federalists, who pushed hard for the preservation of state sovereignty and state autonomy in the face of the centralizing tendencies of the Constitution, it makes sense to read the Bill of Rights as having a strong federalism component. The Anti-Federalists were particularly concerned that the federal government would establish a parallel system of criminal justice that would both eliminate the need for state criminal justice systems and subject persons to criminal prosecution without the common-law protections guaranteed by state bills of rights. By tying the federal power to investigate, prosecute, convict, and punish to State norms, the Bill of Rights would eliminate any comparative advantage the federal government would otherwise have vis-a-vis state criminal justice systems. And because the constraints imposed by the Cruel and Unusual Punishments Clause stem from the common law, and because the Anti-Federalists understood the common law as varying by State, the Clause itself might impose constraints that vary by State. I spell out these thought in far greater detail in my latest work, Cruel and Unusual Federal Punishments, 98 Iowa L. Rev. ___ (forthcoming 2012).
This question came up on a listserv last week. Why has broccoli become an evil product, the rhetorical exemplar (for conservatives and libertarians) for a noxious law and of government run amuk? Obviously, broccoli for years has been the signature vegetable that parents force kids to eat because it's "good for them." So it carries that negative "I'm making you do it for your own good" vibe that opponents of ACA atttribute to the individual mandate itself. Perhaps we can bring it back to George H.W. Bush, who famously insisted that, as the President of the United States, he could not be forced to eat broccoli. So Republicans have had political issues with broccoli for years.
The industry can't be happy about this. I wonder if anyone has looked into whether this rhetoric has had an effect on the indurstry. And I wonder if thee were any other product or food that opponents could have used and whether it would have been as effective.
Further Comment: Indirect response to one of the comments: This is precisely why so many states enacted agricultural product disparagement ("food libel") laws. No one (least of all me) is suggesting they are constitutional or a good idea.
What do the ACA arguments say about cameras in SCOTUS?
Everyone was aflutter last week over the three days of arguments on the various issues with ACA, in which the Court modified its usual rules by releasing same-day audio and trnascripts. It created quite a lot of what Andy Koppelman calls "Kremlinology," with everyone trying to read tea leaves based on who asked what questions and how, how many words each justice directed at each side (empirical studies suggest that individual justices ask more questions of the side they ultimately rule against), and what conclusions people reached depending on whether they read the transcript or listened to the argument.
Dahlia Lithwick argues that the anti-camera arguments seem "awfully thin" after this week. The justices arguably spent much of the argument showboating, talking in news-ready snippets and soundbites, rolling out cable news tropes and clever phrases (broccoli, Cornhusker kickback, severabiity review as cruel-and-unusual punishment), and spending little time discussing actual law. In other words, doing all the things they say would come about if cameras were allowed.
Then RNC released an anti-Obama ad in which it used audio of Donald Verelli's argument opening (in which stumbled a bit and paused to take a drink) to show that ACA is invalid because the administration's own advocate had a hard time defending it. It turns out the ad doctored the audio, making his water pause last about 20 seconds. Tom Goldstein and Amy Howe suggest this will set back efforts at getting cameras into the Court, or getting greater Court transparency generally, illustrating the potential for recordings to be distorted and misused, not only as it was by the RNC, but also against the justices themselves.
Goldstein is probably descriptively correct that this may become Exhibit A in the anti-camera arguments going forward. But Lithwick is right that this all makes no sense. As I've argued repeatedly, the very problems the justices want to avoid by excluding cameras come about anyway. And perhaps those problems all were on display this week (still working my way through the transcript). No one has ever come up with an argument for why cameras make the supposed problems worse than audio and transcripts. And it is hard to imagine the RNC ad would be more or less effective (or more or less distorted) if it had video as well as audio to work with.
Friday, March 30, 2012
Church Autonomy vs. Religious Arbitration: Take 2
A couple of posts back, I highlighted (in the context of some recent litigating over the Church of Scientology's arbitration agreement) how decisions of religious tribunals could be subjected to two different standards of review. Mark Movsesian over at the CLR Forum blog (for those of you interested in law & religion, the CLR Forum is a must read) weighed in on the issue, noting that I promised a follow-up post. So here it is, with my additional thoughts after the break; but for those really interested, I address these issues in my forthcoming article "Litigating Religion."
If a decision is issued by a religious tribunal pursuant to an arbitration agreement between the parties, then the award can be enforced in court. However, a court can refuse to do so on various statutory grounds, including fraud or collusion. By contrast, if religious tribunal issues an award (in the absence of an arbitration agreement) and one of the parties tries to challenge the tribunal's decision as based on fraud or collusion (by, for example, pursuing the monies at stake in the dispute before the tribunal), it is likely that based on current Supreme Court doctrine, the court will abstain from considering the claims of fraud or collusion on church autonomy grounds.
I say this because of how courts currently think about the "religious question" doctrine; to piece together some of the case law, "civil courts cannot adjudicate disputes turning on church policy and administration or on religious doctrine and practice" because doing so would require a court to resolve an “underlying controversy over religious doctrine or practice.” And the Supreme Court has worried that resolving claims of fraud or collusion would inevitably require the court to become impermissibly entangled with religious questions (although, to be sure, it has not definitively foreclosed judicial resolution of claims of fraud or collusion). Put differently, courts are prohibited by the First Amendment from litigating religion.
In my article, I critique this blanket prohibition against courts litigating religion. But first I'd like to note an interesting consequence that flows from these different standards.
Consider, for example, a case where a church has terminated its pastor for cause, but accidentally sends the pastor one additional paycheck – the hazards of automatic bill pay – after the termination. If the pastor were to sue for breach of contract and the church were to counterclaim for the additional paycheck, the court would likely dismiss the entirety of the case – including the church’s counterclaim – even if the church’s internal tribunal had upheld the termination of the pastor. The rationale here is straightforward; courts will not adjudicate disputes turning on religious doctrine or practice. And so they must simply remain "hands off" when it comes to a religious dispute, prohibited from resolving either the pastor's claim or the church's counter-claim because both would require evaluating whether or not there was cause for the pastor's termination. And evaluating the existence of cause would require the court to resolve undeniably religious questions (for example, was the pastor satisfying the standard job requirements for being pastor?).
By contrast, if the parties had submitted their claims for binding arbitration to a religious tribunal, a court would enforce the resulting award on its terms. If the tribunal resolved both the claim and counterclaim pursuant to a binding arbitration agreement, then the court would enforce all aspects of the tribunals monetary award, even if that required extracting the post-termination paycheck from the pastor.
On one level, this works well. If you want the determination of a religious tribunal enforced on its terms pursuant to arbitration law, you have to satisfy the higher bar of demonstrating there was no fraud or collusion. But if you simply want to insulate the decision of a religious tribunal under the First Amendment, then all you get is a court's abstention; it will neither enforce the award nor rehear the case. It just stays out of the business of litigating religion.
But there are other reasons I still dislike the blanket ban on courts litigating religion. I may try to squeeze them into one more post, but if not you can check them out here.
"In the Whirlwind"
I received from the library today my hot-off-the-presses copy of my teacher Robert Burt's new book, In the Whirlwind. I'm really looking forward to it. Here's some blurb-age:
God deserves obedience simply because he’s God—or does he? Inspired by a passion for biblical as well as constitutional scholarship, in this bold exploration Yale Law Professor Robert A. Burt conceptualizes the political theory of the Hebrew and Christian Bibles. God’s authority as expressed in these accounts is not a given. It is no less inherently problematic and in need of justification than the legitimacy of secular government.
In recounting the rich narratives of key biblical figures—from Adam and Eve to Noah, Cain, Abraham, Moses, Job, and Jesus—In the Whirlwind paints a surprising picture of the ambivalent, mutually dependent relationship between God and his peoples. Taking the Hebrew and Christian Bibles as a unified whole, Burt traces God’s relationship with humanity as it evolves from complete harmony at the outset to continual struggle. In almost every case, God insists on unconditional obedience, while humanity withholds submission and holds God accountable for his promises.
Contemporary political theory aims for perfect justice. The Bible, Burt shows, does not make this assumption. Justice in the biblical account is an imperfect process grounded in human—and divine—limitation. Burt suggests that we consider the lessons of this tension as we try to negotiate the power struggles within secular governments, and also the conflicts roiling our public and private lives.
On teaching Criminal Law again . . . and getting stoked
It's probably not on par with finding one's long-lost "rad-ass hoodie" (warning: This Onion News Network clip has some bad words), but pushing my way back into the rotation for teaching first-year Criminal Law next year has me stoked. Although I don't write in the area, I have always found teaching the subject to students in their first year (at Notre Dame, their first semester) of law school incredibly rewarding and fun.
Anyway, here's a bleg for Prawfs readers and bloggers: I would welcome thoughts and suggestions for changing, or even re-working, the traditional first-year Criminal Law class, based on your experiences in recent years, involving new books, teaching cases, outside readings and materials, films and clips, subjects, etc. (An example: Because I have used Joshua Dressler's book, I've always spent a lot of time on necessity, on justification and excuse, etc., and current events certainly put these questions at center-stage. Another: I worry that I have not "done enough," in my class, to get students thinking about "criminology" and "criminal justice," as opposed to "criminal law." What do you all do?)
Bezanson on Freedom of the Press
For those interested in the Press Clause and/or Citizens United, I have a "review" on Jotwell today about Randy Bezanson's fine forthcoming piece, "Whither Freedom of the Press." I happen to agree with much of what Randy says there, but I enjoyed it in large measure for another reason: as an example of how to try to deal with a huge barrier to one's views -- in this case, not Citizens United, but Eugene Volokh's excellent recent piece on the Press Clause. My review can be found at https://jotwell.com/, which also contains a link to Randy's article on SSRN.
Healthcare and Kubler-Ross
I enjoyed Rick's post below, and Ian Bartrum's comment. Allow me to add a thought or two on what this week has felt like from the perspective of one listening to both the oral arguments and the commentary on them, especially of the Facebook variety.
I mentioned in a post yesterday the way that yesterday's crises tend to fade, if not utterly from memory, then in the urgency we attach to them. I taught Bowsher v. Synar this week, and was struck by this line in Justice White's dissent: "The Court, acting in the name of separation of powers, takes upon itself to strike down the Gramm-Rudman-Hollings Act, one of the most novel and far-reaching legislative responses to a national crisis since the New Deal." One could imagine a similar line appearing in a dissent a few months from now in the healthcare case. A line like that, and the way that it is now rendered relatively lifeless in the pages of a casebook after having once commanded headlines and similar talk about crises and disasters, seems to me to have a number of lessons to offer us.
It seems to me in reading this week's coverage that there is a kind of pseudo-Kubler-Rossian pattern that always follows arguments in the Supreme Court on hot-button structural issues. Take the pro-constitutionality side. Things begin with disbelief and dismissal: of course this law is constitutional and the arguments against it are frivolous. When those seemingly frivolous arguments become "on the wall" and gain traction, then the mood shifts to roughly what we had this week on the part of numerous commentators: If the Court strikes down the law, it is the End of the World. Government will cease to function, the Court will have shed all traces of judicial impartiality, cats and dogs will lie down together, this will be "Lochner II," and so on. If the Court does strike down the mandate, then we will, after another period of grief, shift quite quickly to a third stage: the Not a Big Deal stage. After the first wave of apocalyptic commentary, seemingly counter-intuitive articles will arrive right on time and as expected, arguing that whatever rules or limits the Court imposes won't generally apply, won't seriously threaten a host of established laws and social programs, can be gotten around through a variety of means, and so on. They will be helped in this analysis by the Court itself, which will subsequently blink when faced with other similar challenges.
Rick captured most of this, more or less, in his post, but there is a flip-side too. Consider the pro-unconstitutionality side. It follows a parallel pattern. Its first stage is the constituency-building stage. The mandate is (in the popular dialogue) incipient tyranny, the last stage of congressional arrogance, the fondest wish of Saul Alinksy, and so on, and (in the legal dialogue) clearly unconstitutional as a matter of current law and/or common sense. The second stage, which is more for elite and lawyerly consumption than public consumption, is the minimization stage. A ruling striking down the mandate is not that big a deal. This was an extraordinary law, and those who oppose it are hardly seeking to cast down the entire post-New Deal state. Modesty and restraint will be the order of the day (indeed, some of the law's most prominent opponents have been quite silent this week) for a reasonable period of time. And then stage three will begin, in which the ruling will, in fact, be employed by many of the people involved in this week's litigation to argue that much of the post-New Deal state should be dismantled as a matter of constitutional law, and anything they said in stage two will be quickly distinguished or forgotten.
This is a caricature, of course, but I have seen plenty of these stages in evidence so far, and expect to see the rest of them in due time. It leads me to a couple of conclusions. First, the week of oral argument in a controversial case is a good week to -- well, to discuss the oral argument. But it's a lousy time to discuss, or take seriously the discussions of, the potential consequences of a ruling. It will be hard to say how much of a disaster or triumph (depending on your point of view) the ultimate opinion is until we see what limiting principles the Court offers. It's way too early to talk about how disastrous a ruling in this case will be -- and not just because the pro-ACA commentators are overheated this week, but also because the anti-ACA commentators are not inclined at present to talk about just how far they will try to press any eventual ruling.
The other conclusion is that the problem with the end-of-the-world talk this week is that it tends to assume the world will end with a bang, not a whimper. If the Court strikes down the ACA root and branch, of course the Republic will still stand, just as it did after Bowsher v. Synar, Bush v. Gore, the Pentagon Papers case, Heller, Boumedienne, and any number of other cases that were accompanied by apocalyptic rhetoric about what they would mean for the country. Within a decade of Bowsher, we had (briefly) dealt with the deficit. Neither Boumedienne nor Heller have led to an unusual number, for this country, of corpses piled up in the streets. Within a mere 20 or 30 years, an entirely different national consensus on health care might emerge. And I might add that the stronger and longer that consensus, the less likelihood that anything the Court says in the next few months will do anything to prevent some law from emerging and being upheld.
So the real question is not how disastrous or wonderful a ruling striking down the mandate will be. Hell, even the Lochner era did not result in the mass invalidation of laws relative to the overall volume of progressive legislation. The real question is one of governance, not survival. Just how well or poorly will the country be governed? How much room will be left for legislative experimentation to deal with various problems that are arguably national in scope? How adaptive and responsive will the American system of government be compared to other governance models? How much longer will it take to come up with sensible governance approaches than it otherwise might -- months, years, decades?
I don't mean this too harshly. In the Constitution's barriers to lawmaking and diffusion of power, I see a long-term wisdom. At any given short-term moment, however, the United States often seems to me--a simple country boy from Canada--a remarkably badly run country with a horribly outdated governance model. I don't see a ruling in this case changing that much one way or the other, all the "judicial activism" and "Lochner II" talk notwithstanding. Conversely, whatever the fondest hopes of a few opponents of the ACA may be, the chances of this country being run on "classical liberal" or libertarian principles are nil. Passionate believers in classical principles of individual liberty are, as Us Weekly likes to say, "just like us": they really enjoy receiving federal welfare benefits. The question is not how much a ruling in this case will hobble American government; it's how much more a ruling in this case will hobble an already fairly hobbled American government.
Thursday, March 29, 2012
Book Recommendation: Global Legal Pluralism
I just got into Washington, D.C. last night for the American Society of International Law annual meeting. Flights from the West Coast typically feel long, but I brought along Dean Paul Schiff Berman’s new book Global Legal Pluralism: A Jurisprudence of Law Beyond Borders (published by CUP), which I want to recommend. The book builds upon a lot of his great work, including his articles “Global Legal Pluralism” and “Towards a Jurisprudence of Hybridity.” For anybody interested in non-state law, legal pluralism and the challenges posed to law by the increasing trend towards globalization, this book is a must read.
Ruckelshaus on Watergate and the Saturday Night Massacre
Just shy of a decade into teaching constitutional law, I find that the biggest problem with the passage of time is not, despite my last post, keeping up with changes in the law. Nor is it concern over dul(l)y reciting the same jokes every year because they're in the script; I still find that line about the Salt Lake City Olympics hilarious. It's the way that events that were once utterly fresh and familiar to students have faded. It used to bring down the house when I read Michael McConnell's opening paragraph from his piece about Marbury v. Madison in the Constitutional Law Stories! No longer. And Justice Scalia's dissent in Morrison v. Olson remains a great read, but students are not quite as impressed by its apparent prescience in light of the Clinton impeachment.
I say all this by way of linking to this terrific piece. It's a version of a recent speech by William Ruckelshaus, describing at length his recollection of his role as acting FBI director, and then Deputy Attorney General, during the Watergate era, including his firing/resignation during the Saturday Night Massacre. I highly recommend it.
The mandate, conditioning the environment, and "The Myth of Judicial Activism"
As I read today's (to me) depressingly predictable op-ed by E.J. Dionne, in which -- in what seems to me a pretty obvious attempt to "condition the environment," and pre-fab some outrage, by invoking Bush v. Gore, Citizens United, etc. -- he anticipatorily accuses the Court's "conservatives" of "activism" for seeming to consider invalidating the insurance-mandate aspect of the Affordable Care Act, I was reminded of Kim Roosevelt's book, from a few years ago, The Myth of Judicial Activism. (Kim and I discussed his book, and the "activism" charge, here, at the PENNumbra site.)
I genuinely don't know what the Court will do with the mandate, and I'm not sure what I think the right answer is to the question, "Does the Constitution, correctly understood, authorize Congress to enact it?" (I do think the question is interesting and important and hard, and I am sure that Dahlia Lithwick is wrong in thinking that the question's answer is obvious and that only low politics and hackery could explain a Court ruling that the answer is "no.") I also think that not many people -- not E.J. Dionne and not most other critics of the Court's "conservatives" -- really oppose "judicial activism," and so I can only sigh at his concluding charge that "a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. " (Is Dionne a big fan of stricter standing doctrines? Did he lament Boudmediene, or Roper?)
I know there are some principled and consistent Thayerians out there -- some write for this blog -- but they do not seem thick on the ground. It seems to me that what most of us (for better or worse) want and praise is a Court that strikes down government actions we think are bad and upholds ones that we think are good; that what we lawyers probably should want and praise is a Court that invalidates laws that are actually (and pretty clearly) unconstitutional (good or bad) and reasonably applies the rest (good or bad); and that complaints about "activism" are more often political-rhetoric moves than the conclusions of arguments. If the Constitution gives Congress the power to impose the mandate, then of course the Justices should "defer to those elected to make [that] law"; but if it (pretty clearly) doesn't, then they should not. No?
What Aspects of Punishment Must Be Justified?
In my last post, I argued that we cannot accurately measure punishment severity if we only consider those aspects of punishment that are purposely imposed. At a minimum, we must also consider the punishment burdens we knowingly impose: if we know that punishment will largely deprive an offender of access to friends, family, sex, the Internet, and so on, then we need to take these knowing deprivations into account at sentencing to know how much punishment we are imposing.
More broadly, whenever we sentence, we are imposing substantial burdens, and we want these burdens to be morally justified. To be confident that a sentence is justified, we need to know how much harm the sentence is likely to cause. To make that determination, we need to consider harms that are not only purposeful or known but also those that are foreseeable.
What I call the justification-symmetry principle (p.14) provides a test of whether some punishment-related conduct requires justification. The principle says that if you or I must have a justification for causing or risking some harm, then so must any person who risks or causes the same kind of harm in the name of punishment. A complete justification of punishment will tell us why, by virtue of being just punishment, some ordinarily impermissible behavior is made permissible.
Just as an employer should have some justification for sending a reluctant employee on an overseas assignment that will separate him from loved ones, the state needs a justification for separating offenders from their family. Similarly, a landlord who voluntarily accepts dangerous tenants that raise the risk of sexual assault on other tenants should have some justification for doing so, just as the state should have a justification when it confines offenders in a manner that increases the risks that they will be sexually assaulted.
None of this means that the state cannot justify the varied harms of incarceration (the employer and the landlord may have good justifications, too). It just means that all of the purposeful, known, and foreseeable conditions of prison are relevant to the justification. So, if you are a retributivist who purports to justify sentences of incarceration, you must take all of these harms into account. Ditto for consequentialists with the same aims.
A challenge, though, for punishment theorists of all stripes is that foreseeable burdens vary from offender to offender and depend on the facility to which an offender is assigned. We cannot be confident that sentences will be just if sentencing judges don't know where offenders will serve time and refuse to hear evidence about offenders' unique sensitivities.
This post is adapted from the article, Unintentional Punishment, published in this month's issue of Legal Theory. The article has been made freely-available courtesy of Brooklyn Law School.
Harold Pollack (Professor of Social Service Administration – University of Chicago) – has what I think is a very, very thoughtful op-ed in the NY Times here. Well worth reading the whole thing, but in a nutshell, he makes the point that disability policy (more specifically, care for people with serious disabilities) has progressed in this country in part because it has remained relatively free of the rancor of the culture wars. He is critical of statements like Rick Santorum’s (“One of the things you don’t know about ObamaCare [is that it requires] free prenatal testing … Why? Because free prenatal testing ends up in more abortions, and therefore, less care that has to be done, because we will cull the ranks for the disabled in our society.”) and Sarah Palin’s (“My parents or my baby with Down Syndrome will have to stand in front of Obama’s ‘death panel’ so his bureaucrats can decide, based on a subjective judgment of their ‘level of productivity in society,’ whether they are worthy of health care.”). Pollack criticizes these statements not just for being untrue, but for “spreading a poisonous meme: that liberals disdain the disabled and look down upon parents who raise children with physical or intellectual limitations.”
I agree with Pollack that we have made progress in this country in terms of how we treat and legislate on behalf of individuals with disabilities (although we still have a long way to go), and that is at least partly because, in his words, these developments happened “outside the usual disfiguring frame of partisan politics.” That is one of the things I have enjoyed working in this particular area – to be sure, politics are not irrelevant and academics/policymakers/advocates have political agendas, but disability is the one minority group we could all join at any time, and it tends to cut across the political aisle. One byproduct of this is that political change can happen: both the Americans with Disabilities Act and the Americans with Disabilities Amendments Act passed with broad bipartisan consensus. But being somewhat removed from the political process also means that people just do not think about these issues all that much – part of the “backlash” against the ADA can be attributed to the fact that society just might not have been ready to extend broad civil rights protections to this group. The litigation behavior is also somewhat different from other groups: I have written here about how cause lawyers for the disability cause face different challenges than cause lawyers for conservative causes and the gay rights movement, both of whom tend to repeatedly face off against each otehr in litigation. Despite these unfortunate statements, I still think we are a ways off from disability becoming part of the culture wars. If that were to happen, the academic field might get more attention, but I agree with Professor Pollack that the policy arena would suffer.
Wednesday, March 28, 2012
What Should Con Law Professors Be Teaching This Year?
In a post on the mandate oral arguments, Orin Kerr writes: "Purely from the perspective of a legal nerd, what fun to live in such interesting times. Those of us who follow the Supreme Court and teach or write in areas of public law are always dependent on what the Court does. If the Court does boring and expected things, then following the Court can be a bit routine. But this Term the Court has been pretty darn exciting to watch. Whatever you think of the umpire, the game sure is entertaining."
From a legal nerd perspective I can appreciate what Orin is saying. From a teacher's perspective, though, the challenges are more difficult. Two major teaching areas for con law teachers and students are up for grabs in the next year: the Commerce Clause and affirmative action. As I've written here before, I made the healthcare litigation a central piece of my con law class this year, starting on the very first day when, instead of reading Marbury, we read a series of excerpts from the lower court healthcare decisions and briefs (prepared by Marty Lederman, to whom I'm very grateful). The benefits in terms of class discussion and a sense of the continuing relevance of the materials we're studying were great, if time-consuming; I find myself rushing in an unseemly fashion through separation of powers and due process to catch up.
But many con law students, especially first-years, also crave a certain amount of certainty and clarity, and especially a set of tests that they can apply more or less mechanically on exams. And many law professors feel most comfortable with a narrative arc in their classes, either overall or for particular areas. Just about everyone who attended law school prior to 1995 had a standard Commerce Clause narrative, for instance, under which history more or less stopped around the mid-40s. Between 1995 and 2006, they eventually came up with another one--the "federalist revival" narrative. After Raich, yet another one took its place. Similarly, what looked like a determinate test--with prongs and everything!--developed after Lopez and Morrison, and it has been taught and applied on exams for the last half-generation. The same kind of phenomenon developed with affirmative action after Grutter and Gratz. These things are all on the table right now. Granted that these classes are more exciting to teach right now, but how should we teach them?
The problem for students is twofold. First, as I said above, the current unsettled state makes it harder for students to come up with the clear workable tests they crave, and get (or seem to get) in other courses. Even that commonplace liferaft for con law students, the Chemerinsky treatise, is currently out of date (and, although an excellent book, sufficiently strong in its own orientation that it may further hamper students' efforts to learn from it in an atmosphere of flux). Second, it can encourage a great deal of cynicism. Now, a good deal of skepticism is perfectly appropriate in con law. But from my perspective, if it happens too soon the whole experience can curdle from the start and hamper genuine learning.
I have no particular answers to those questions, and welcome other commenters' views. I will say three things. First, my emphasis in con law is always not on what the rules are as such, but on how to engage in constitutional argument that won't get you laughed out of court, ie. how to use the basic modalities of constitutional argument described by Bobbitt and others; in back of this is a substantial amount of discussion about the role of courts, questions of judicially manageable tests a la Fallon, and so on. Given all the shifting currents, it may be that the best thing to do is simply to teach the students how to swim.
Second and relatedly, although con law has always been the first-year course least likely to lend itself to "practical" training, perhaps this state of flux should encourage rather than discourage us from doing more skills-based training. Perhaps con law courses should become less focused on constitutional law or constitutional theory, and more focused on constitutional litigation, complete with better use of materials such as pleadings, briefs, oral arguments, and lower court decisions. Some of those have made their way into my class this year, but I think I could do more. Again, I'm happy to hear from others about whether and how they have successfully integrated more skills training into their con law classes. Even if most students won't practice constitutional law, we could still use the course as a window into lawyering in general, and some of the lessons--about choosing your plaintiffs, framing your arguments (ie., I always make a big deal in the Commerce Clause about how you describe the "regulated activity"), and so on. Speaking for myself, I ought to do more with both facial vs. as-applied challenges and with the question of constitutional remedies.
Third, teaching con law in a time of flux also tells us something about teaching con law in a time of relative stability, and perhaps about the lifecycle of constitutional law teachers. I've been teaching since 2003, and for the first several years I taught the Lopez/Morrison "test" as if it were just that. The students appreciated it, and it made my job grading exams easier. But the more I teach this material, the less I emphasize the "testness" of it, because I think it strains credulity to think of it as a neat and clean test. The same is true in other areas: we give students six "factors" for political questions, and a "congruence and proportionality" test for section five of the Fourteenth Amendment, but if we overemphasize the testness of these cases and underemphasize the judgment calls involved and the ways in which they're really just proxies for statements about vague and shifting levels of skepticism on judicial review, the more we end up giving students more guidance than the caselaw can really justify. (Similarly, I have seen some scholars describing Comstock as giving us a five-part test for application of the Necessary & Proper power. That seems absurdly mechanical to me.) As for modern substantive due process, forget about it; as interesting as the material is, I'm increasingly convinced that its lack of intellectual coherence doesn't justify spending very much time on it at all. The longer I teach this material, the more I feel a tension between satisfying my students' desire for clarity, definition, and mechanical tests, and my own sense that it's pedagogically dishonest to promise more than the Court has or can deliver. At this point, I would rather not pretend to them that any of the areas of the syllabus that are most often taught and studied give them clearly applicable tests. If the Court announced clear tests in both the mandate case and next year's affirmative action case, I would still hesitate to give them a clear test or narrative. They're better off understanding the basic grounds of contestation, the standard competing visions that frame these debates in the Court, than pretending that there are stable and helpful tests in this field. I wonder whether other con law teachers have followed this same path from innocence to experience in their own teaching careers--and, conversely, whether those who have been teaching for a while but still teach Lopez/Morrison as involving three "prongs" or five "factors" think this is really justifiable. I think my approach definitely increases my students' uncertainty and tendency to despair--I know it has this year! But, I think, better honest despair than false certainty.
Measuring Punishment Severity
H.L.A. Hart, perhaps the most influential punishment theorist of the twentieth century, famously claimed that a central feature of punishment is that it is “intentionally administered.” When people speak of acting intentionally, they sometimes mean acting with purpose (it is one's conscious goal for some result to occur) rather than just acting with foresight of the consequences of one's action. (Cf. Ken Simons' post earlier this month). Let's assume that, in order for conduct to be "intentional" in the sense required to be punishment, one must act on purpose.
Consider then two equally blameworthy offenders, Purp and Fore. They are alike in all pertinent respects and receive identical sentences in identical prisons. The only difference between them is that different aspects of their sentences are imposed intentionally. Purp is purposely limited in his liberty to move about, see family, have sex, express himself, possess personal property, vote, and so on. By contrast, Fore is purposely limited in moving about, but all of his other hardships are merely foreseen accoutrements of prison. Because these other hardships are not imposed purposely, they are technically not part of Fore’s “punishment” as scholars frequently understand the term. In other words, if we restrict "punishment" to only purposeful inflictions, we are led to the absurd conclusion that Purp and Fore receive punishments of different severity.
Of course, despite the different purposes surrounding their treatment, we tend to think that Purp and Fore are punished the same amount. The mental states of their punishers (be they judges, prison personnel, legislators, voters, or some combination of all of these) do not really affect the severity of their sentences. So long as the duration of their sentences and the conditions of their confinement are the same, we think that they receive the same amount of punishment. Thus, even if some scholars require "purpose" when deciding whether or not some conduct constitutes punishment, when assessing amounts of punishment, we consider not only purposeful hardships but also certain foreseen hardships as well.
I temporarily assumed that "intentional" refers only to purposeful conduct. One apparent solution to the Purp/Fore example is to understand the term "intentional" to include both purposeful and foreseen burdens on offenders. In that way, we could treat the burdens we foresee imposing as part of offenders' punishment, and Purp and Fore would indeed receive punishments of equal severity in line with our intuitions. While this may seem like a promising approach, it commits you to some surprising results. For example, it means that foreseen burdens (like the varying levels of sadness and anxiety prison induces) are part of a person's punishment and must be taken into account at sentencing, as explained here and here.
This blog post is adapted from the article, Unintentional Punishment, published in this month's issue of Legal Theory. The piece has been made freely-available courtesy of Brooklyn Law School.
Caveat: Non-law related post. I am probably the only law professor not blogging on the ACA arguments today.
Growing up in Los Angeles (not Orange County) and being an Angel fan was kind of a rough experience. For most of my adolescent life the Angels were awful and the Dodgers were in their glory days. The one exception was Spring Training. At the time, the Angels had their Spring Training in Palm Springs at a city park right down the street from the condominium by grandmother lived in. Every year I would get to go, and it was amazing. It was a different time – the players would just hang out in the park before and after games, engaging in conversations with fans and taking pictures. The one exception was Reggie Jackson, who blew everyone off. My mom once chewed him out for walking right by a group of us trying to get autographs. It was awesome.
Now every team is in Arizona or Florida, and most have fancy stadiums. The whole thing feels a bit more corporate. But I still love going. I am always jealous of colleagues in these cities this time of year; I say more Arizona and Florida conferences in March!
Tuesday, March 27, 2012
The Epistemic Status of Mike Daisey’s Monologues
I assume all the readers here have followed this story, listened to the This American Life episodes, and read some of the commentary. So I’m not going to give any backstory here, since you’re on your computers anyway if you need some. I had "monologues" in quotes in the title initially, not to derogate the artform (I agree with his reviewers that Daisey is a captivating storyteller) but to highlight the ambiguity about what exactly the term means—to theatergoers, radio listeners, and, it appears, to Daisey himself. And yes, I am still thinking about this in the context of the Stevens prosecution report, but it seems to me that there are lessons to be learned here about language use, communicative context, and meaning that are particularly important for lawyers; in short, as explained below, this is one of those "Don't be like that guy" episodes which students can remember and use as a heuristic as they hopefully internalize the values of our profession. A thousand words, below the fold:
I wrote an article a couple years ago called “What Is Truth?” which explores what I find to be a fascinating epistemic grey area in the First Amendment: the courts have interpreted the Free Exercise Clause to forbid judicial decisions on religious questions, but have given precious little guidance on distinguishing religious questions from fact questions—which, of course, courts not only can but must decide.
A large part of the problem is that people are often sloppy, uncertain, or deliberately ambiguous about what kind of assertion they are making. The best example is the famous D.C. Circuit Scientology case about whether the First Amendment protects claims that “auditing” cures cancer (among many, many other marketing claims about the benefits of the practice). Is that a “fact” claim or a “religious” claim? Well, in a way, it’s both, right? You assert it because you believe in it as part of your religious faith, but you believe it to be factually true. So can the FDA regulate the claim as part of its authority to regulate the marketing of medical devices? Or is it more like “God created Eve out of Adam’s rib” (or whatever)?
There isn’t any good a priori way to answer this question, because meaning is so context-dependent (I have an article on anonymous internet threats that gets into the weeds on that, while I’m plugging articles). And the district court opinion on remand in the Scientology case is the best example I’ve seen of a court trying to take seriously its duty to ask what the communicative function of various utterances actually was, in context. The collected works of L. Ron Hubbard may be the scriptures of Scientology, as the D.C. Circuit had said, but that does not mean that a claim like “No one who has been through auditing has ever gotten cancer,” when made to the general public as part of marketing campaign for a service offered for sale to the public specifically to improve health, is immune from regulation under the Free Exercise Clause. You have to look at the words, the relationship between speaker and hearer, and the surrounding context. If I’m trying to sell you a product by claiming it will cure cancer, I surely intend that you will interpret my claim literally. Maybe the context makes it clear that I’m joking? Well, if so, you’d better show me the context, if you’re claiming the speech was clearly not meant literally and would not be so interpreted by a reasonable listener. And that’s what the district court did, line by line, claim by claim.
So when I read Mike Daisey’s defense of lying to Ira Glass and misleading the thousands (millions?) of people who heard his story about his visit to the Foxconn factories in China, I thought about it, as maybe most lawyers did, though the lens of this sort of contextual evaluation of communication. People do this sort of thing all the time, after all: caught in a lie, or a threat, or even an unintended truth (think Etch-a-Sketch) they try to back off it—“Hey, come on, I didn’t mean that literally, and no one would think I did,” etc. This is what Daisey has repeatedly said: that he was “making art,” not “asserting facts,” that he’s a “storyteller within the context of the theater,” not a journalist, that he lied to Ira Glass because “the work was really good,” and his “larger truth” about manufacturing conditions was more important. You can read his comments at length in many places, including on his blog, here: https://mikedaisey.blogspot.com/
This whole episode should be illuminating to us, as teachers in professional schools, training students to enter a profession in which virtually every case has something of the Daisey-Glass-audience relationship to it. So Daisey says he’s a performer of artworks, not an asserter of facts. Well, maybe—but have the audiences at his performances been apprised of how he sees that distinction? He calls his shows “monologues,” a term that does not have a commonly-understood valence on the truth-fiction axis, and that to many people’s ears probably suggests facts. And his monologues, throughout his career, have been about his own experiences; the first one, you may recall, was about his time working after college at Amazon. And certainly there’s nothing in the monologues themselves that clues anyone in that the stories he’s telling are made up, in whole or in part: on the contrary, they are narrated as direct personal experiences. And Daisey has never claimed—nor could he seriously try—that the appeal of his shows would have been the same if people didn’t think his stories were true. Why did so many people come to see him talk about Foxconn? Because he said he’d actually been there, actually met and talked to people who’d suffered debilitating injuries, etc. Of course he *had* really been there, and there *are* people who’ve suffered injuries making things in China. But you’re not going to sell tickets to a show where a guy sits on a stage and says “I read a story in the New York Times about working conditions in Chinese factories.”
Remember that guy who wrote a “memoir,” A Million Little Pieces, chock-a-block with bad-boy-rebel-rehab-arrest stories, that was picked up by Oprah? And then he had to admit that he made most of it up? If that guy’s storytelling skills were what people valued, the book would have done just as well as fiction. But he must have known that it wouldn’t sell as fiction—why else sell it as a memoir? (He did subsequently write a novel, by the way, the fate of which proves the point.)
As lawyers we see this all the time. People try to get what they want from other people using linguistically vague utterances that they know their interlocutor will interpret one way, but which they’ll be able to read the other way if it ever comes to litigation. How many examples can you think of? Just in my little world, you have plea agreements (better be real clear on what constitutes breach); queen-for-a-day proffer agreements (better be real clear on sharing with other agencies and offices); hints of leniency by interrogating agents (which is a big deal under state law here in California); Brady (see the Stevens case, where at least one agent claimed not to realize that prior inconsistent statements were discoverable on the ground that they could be used to impeach a witness; one assumes, though, that any agent who’s ever interrogated a suspect has used their prior statements against them); or the crux of the Schuelke report, criminal contempt: as it turned out, although the report concluded that the lawyers had deliberately violated their Brady obligations, criminal contempt did not lie because Judge Sullivan had not specifically ordered the attorneys to comply with their Brady obligations. The transcript, indeed, shows the judge saying that he doesn’t need to issue such an order because they are professionals who know their ethical obligations, and the prosecutors had repeatedly told the court that they were aware of their obligations and were meeting them. And, of course, cross-examination, or a witness with a perfectly probative true story who feels the needs to sell it just a little bit more.
People who work in other areas will have many more examples, probably even more closely on point than these. Just by way of one non-criminal illustration I've been thinking about, as a follow-up to my article on the lines between truth claims and religious claims, I've been playing around with a piece collecting various bread-and-butter contexts in which courts are forced to evaluate claims that have at a least a facial religious valence for many people. Consider this one: in Casey, the Court said that states can have pre-abortion notification requirements if the information is (inter alia) "true." So a state goes and tries one where the doctor has to say:
That the abortion will terminate the life of a whole, separate, unique, living human being; that [the patient] has an existing relationship with that unborn human being.
The Eighth Circuit looks at this (en banc) and says, well, there's another section of the law that defines "human being" as "an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation." Ok, reasons the court, if that's the definition, then it's "true" and thus constitutional. The problem is that many (most?) (all?) people interpret "whole, separate, unique, living human being" in a considerably broader and less technical way. To the ordinary reasonable speaker of English, there's a pretty strong religious/moral/value-heavy valence to uttering that sentence to a pregnant woman seeking an abortion. You want to say, come on-- of *course* the point of the warning is to convey precisely that moral valence and discourage abortion; does anyone really believe that the North Dakota legislature thought it vitally important to remind women that fetuses are genetically human?
You can read the en banc opinion at 530 F.3d 724. It's not the one I would have written, but legislatures do have the rare Humpty Dumpty privilege of sui generis term definition; people making money by deliberately blurring the line between what they saw and did and what they read in the paper or imagine might have happened get no such privilege. One of our duties is to teach our students to spot the Mike Daiseys out there; in fact, one might say that part of that “thinking like a lawyer” we’re trying to impart to our students is getting them to see exactly what’s behind our vague intuition that there’s something sleazy going on here. Do *you* buy his claim that he really didn’t intend to mislead anyone, and that anyway he got the “larger truth” out? Do *you* buy his claim that the people who came to his shows to hear him describe experiences he’d never had, and that he explicitly said he had had, were all in on the subtle “art not truth” distinction?
(In case anyone cares, I was a year ahead of Daisey in college. Didn’t know him personally, but I saw him in a couple of plays. He was particularly good, if I’m recalling correctly, as Dionysus in Euripedes’ Bacchae.)
Entry Level Hiring: The 2012 Report
NB. Bumped to the front.
Time once again for the entry level hiring report. Woo hoo!
We will report the following information:
Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation
Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject
Fellowship: Institution and Type of Fellowship
Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)
Areas of Speciality (up to three)
The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across (using the little triangle-looking thing at the bottom of the spreadsheet) to see all of the information we will be aggregating.
Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at slawsky *at* law *dot* uci *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.
We will also gather the names of schools that are doing no entry-level hiring this year (that's the second tab on the spreadsheet), so if you know for sure that your school is not doing entry-level hiring, please post that in the comments or email me.
If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.
This report follows in the tradition of Larry Solum's excellent work over the course of many years.
At the end of the whole process, there will be pretty pictures, like this.
Upcoming Conference on Race and Criminal Justice at NYU
I'm passing on some information of an exciting conference I wish I could attend, hosted by my friends at the NYU Center on the Administration of Criminal Law.
You are cordially invited to "New Frontiers in Race and Criminal Justice," the Center's fourth annual major conference.It will be held on Tuesday, April 17, 2012, in Greenberg Lounge, Vanderbilt Hall, New York University School of Law, 40 Washington Square South, New York, NY. We are pleased to announce that our keynote speaker will be Michelle Alexander, author, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, and Associate Professor of Law, The Ohio State University, Moritz College of Law. 5.5 NY CLE credits will be offered in Areas of Professional Practice.
Please RSVP via this link or the Center website (www.prosecutioncenter.org). Please feel free to forward this invitation to friends and colleagues. (You may also RSVP by cutting and pasting https://its.law.nyu.edu/rsvp/annual/ into your browser.)
Panel subjects will include: What should prosecutors do to address racial bias and the disproportionate impact of criminal justice policies on communities of color? How can law enforcement and police officers mitigate implicit racial bias? What can and should be done about mass incarceration, sentencing, and collateral consequences of conviction? The scholars and practitioners who will participate are:
- Anthony S. Barkow, Partner, Jenner & Block LLP; Former Executive Director, Center on the Administration of Criminal Law
- Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law
- The Honorable James E. Boasberg, United States District Judge, District of Columbia
- Bennett Capers, Professor of Law, Maurice A. Deane School of Law at Hofstra University
- Lisa Daugaard, Deputy Director and supervisor, Racial Disparity Project, Defender Association of Seattle, Washington
- Angela J. Davis, Professor of Law, American University Washington College of Law
- James Forman, Jr., Clinical Professor of Law, Yale Law School
- Vanita Gupta ('01), Deputy Legal Director, American Civil Liberties Union
- Ketanji Brown Jackson, Vice Chair, United States Sentencing Commission
- Ronald Machen, United States Attorney, District of Columbia
- Glenn E. Martin, Vice President of Development and Public Affairs, The Fortune Society
- L. Song Richardson, Associate Professor of Law, American University Washington College of Law
- Kami Chavis Simmons, Associate Professor of Law, Wake Forest University School
- David A. Sklansky, Yosef Osheawich Professor of Law, U.C. Berkeley School of Law
- J. Scott Thompson, Chief of Police, Camden, New Jersey
- Tom R. Tyler, Professor of Psychology, Yale Law School
- Whitney Tymas, Director, Prosecution and Racial Justice, Vera Institute of Justice
The conference will begin at 11:00 a.m. and end at approximately 5:45 p.m. Lunch will be served and the event will be followed by a reception.
Center on the Administration of Criminal Law https://www.prosecutioncenter.org
Angela Johnson's Death Sentence Vacated
Late last week, Angela Johnson's death sentence was vacated by the U.S. District Court for the Northern District of Iowa. In case you don't know who Angela Johnson is, she is a member of two distinctively small groups: women who have been given federal death sentences in the modern era and defendants sentenced to the federal death penalty for crimes committed in non-death States. Of the nine people in the modern era who have been sentenced to death in federal court for crimes committed in non-death States, five have now had their death sentences reversed or vacated: Valerie Friend, Johnson, George Lecco, Gary Sampson, and Ronell Wilson. This does not include Marvin Gabrion, who had his sentence reversed by the Sixth Circuit last year but whose appeal is currently pending in the Sixth Circuit en banc.
Monday, March 26, 2012
Trayvon Martin and the Initial Aggressor Issue
In my initial post on the tragic Trayvon Martin case, I intentionally avoided discussion of the "initial aggressor" issue because I wanted to focus on the no-duty-to-retreat rule set up by Florida's self-defense statute and the fact that it had little to do with the immunity from prosecution and arrest that the statute also establishes. But the aggressor issue is unavoidable.
In general, the "initial aggressor" is divested of the right to use physical force in self-defense, much less deadly physical force, unless he withdraws from the encounter and indicates to the victim his withdrawal, and then the victim pursues. Thus, even in a "no duty to retreat" jurisdiction, such as Florida, the initial aggressor does indeed have a duty to retreat before resorting to deadly force. This should sound familiar to anyone who grew up with a sibling -- who can deny the innate sense of justice invoked by the words: "But s/he started it."
The trouble lies in the "it" that the other person supposedly started. What does one have to do to be considered the initial aggressor?I have always found this to be one of the most maddeningly indeterminate questions of criminal law. In the case of U.S. v. Peterson, which I use in my Criminal Law class, the victim trespassed on the defendant's land and stole the windshield wipers from the defendant's vehicle, a misdemeanor. The defendant went into his house, retrieved a gun, returned, and told the victim not to move. The victim approached the defendant menacingly with a wrench and the defendant shot and killed him. The court held that the question of who was the initial aggressor was a question for the jury, rejecting the defendant's argument that the victim's trespass and misdemeanor theft made him the aggressor as a matter of law. (Confusingly, the court also held that the defendant had a duty to retreat, even if his dwelling extended to the curtilage of his house, because he was the initial aggressor as a matter of law!) Peterson tells us that committing an unlawful act does not necessarily make one an aggressor.
But then what does make someone the aggressor? A broad reading of some of the cases indicates that if the defendant was somehow "at fault," then he is the initial aggressor. But, if that were true, Peterson was wrongly decided because certainly the victim, by committing a theft, was the first person in the confrontation to act wrongfully. A much more narrow conception of "initial aggressor" encompasses an intent requirement -- one is the initial aggressor only if one's acts are, in the words of Peterson, "reasonably calculated to produce an affray foreboding injurious or fatal consequences" (emphasis added).
So let's apply this to the Trayvon Martin case. Florida Stat. sec. 776.041(2) is decidedly ambiguous on what an aggressor is: it provides that the right of self-defense is "not available to a person who [i]nitially provokes the use of force against himself . . . ." The critical word there is "provokes." "Provokes" might imply that some intent to precipitate violence is necessary. On the other hand, "provokes" can be read more broadly as simply triggering a violent response without intent that it occur, as when, in the classic voluntary manslaughter example, a wife "provokes" a fatal attack by her husband when he catches her in the arms of her lover, even if she did not expect to be discovered. The problem with this broad a reading is that one could be said to be the initial aggressor even by engaging in behavior that is entirely innocent, such as by asking a passerby for a handout, or even constitutionally protected, such as by telling the passerby that he practices a false religion and will burn in hell for it.
According to Zimmerman's statement to the police, released today, he had lost sight of Martin when Martin approached Zimmerman and then attacked him. Obviously, under this version of events, Martin is the initial aggressor. However, Martin's girlfriend has also said that she was on the phone with Martin when he heard him say, "What are you following me for?" and someone (presumably Zimmerman) answered, "What are you doing around here?" Martin told her that the man we now know was Zimmerman was following him and that he was going to walk quickly to get away. The Martin family lawyer has said that this information "blows Zimmerman's absurd self-defense claim out of the water."
Well, not quite. That would be true if following someone to ask questions rendered Zimmerman the "initial aggressor" as a matter of law. In that case, even if Martin had been the first to launch a physical attack, Zimmerman would have had to withdraw in order to regain the right to self-defense. But does following someone, even with the intent only to ask questions, render Zimmerman the "initial aggressor?" I would think not. This seems more like the panhandler hypothetical, except that Zimmerman had to approach and follow Martin in order to engage him in conversation. But, to me, the word "provokes" encompasses something more than asking another person questions, even one has to follow him down the street to do so.
This is not to say that Zimmerman could not be initial aggressor. If he followed Martin down the street with the intent to precipitate a violent encounter, or if he initiated physical contact, he would likely be the initial aggressor as a matter of law. And even if a jury believed that Zimmerman had no such intent, and that Martin initiated physical contact, it might be the case that Martin himself was justified in using physical force because he reasonably believed that Zimmerman was about to do him harm. In such a case, odd as it may seem, both may have had a valid self-defense claim, and there might not have been an "initial aggressor." But to say that the phone conversation between Martin and his girlfriend "blows Zimmerman's . . . self-defense claim out of the water" is, at the least, an overstatement.
A Fiduciary Theory of Judging
David Ponet, Michael Serota, and I have uploaded "A Fiduciary Theory of Judging" to SSRN here. It is forthcoming in the California Law Review in 2013. Here is the abstract:
For centuries, legal theorists and political philosophers have unsuccessfully sought a unified theory of judging able to account for the diverse, and oftentimes conflicting, responsibilities judges possess. How do we reconcile the call of judicial independence — a function of a judge’s obligation to uphold the rule of law — with that of judicial responsiveness — the obligation that, as a branch of government in a democratic polity, judges must ensure that the law not derogate too far from the will of the people? This paper reveals how the law governing fiduciary relationships sheds new light on this age-old quandary, and therefore, on the very nature of the judicial office itself. In so doing, the paper first explores the routinely overlooked, yet deeply embedded historical provenance of our judges-as-fiduciaries framework in American political thought and in the framing of the U.S. Constitution. It then explains why a fiduciary theory of judging offers important insight into what it means to be a judge in a democracy, while providing practical guidance in resolving a range of controversial and hotly contested legal issues surrounding judicial performance, such as judicial ethics at the Supreme Court, campaign contributions in state judicial elections, and the role of public opinion in constitutional interpretation.
This paper is an outgrowth of my prior work on the fiduciary foundations of public law here and here. This version of "A Fiduciary Theory of Judging" would not have been possible without the careful reading and analysis by our own Paul Horwitz. And much of this rendering of public authority in fiduciary terms is inspired by the path-breaking work of Evan Criddle and Evan Fox-Decent. Here are links to some of their most provocative work in this vein.
JOTWELL: Coleman on Marcus on interpreting the Federal Rules
The latest piece in the CourtsLaw section of JOTWELL comes from Brooke Coleman, reviewing David Marcus' When Rules are Rules: The Federal Rules of Civil Procedure in Legal Interpretation, which proposes a theory of statutory interpretation appropriate for the Federal Rules, taking into account the unique nature of their creation and evolution.
Reviving "Pretext" Analysis in Enumerated Powers: Why Verrilli is Right to Up the Ante on Severability in the Healthcare Litigation
The most appropriate limit on Congress' enumerated powers was stated 193 years ago by Chief Justice John Marshall in McCulloch v. Maryland, 17 U.S. 419, 424 (1819) -- and thereupon ignored for the next two centuries:
As my added emphasis indicates, the critical limit on Congress' "necessary and proper" implied powers is a motive-based limit: If Congress regulates some intrastate and non-commercial activity (or inactivity) on the theory that the regulation is necessary and proper for regulating the interstate economy in (for instance) insurance, then Congress had better really believe in the proffered causal link.
"[S]hould Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal...to say that such an act was not the law of the land."
The United States' reply brief on severability argues that the individual mandate is not severable from the "guaranteed issue" and "community rating" provisions of the ACA, a move that inspires criticism from Abbe Gluck and Michael Graetz in the New York Times. But, after the jump, I will explain why I believe that Verrilli made precisely the right call on severability. The reason is that, (a) despite its neglect, "pretext analysis" is the only viable way to define Congress' implied (as opposed to enumerated) powers and (b) arguing that the mandate really is not severable from the undoubtedly commercial and interstate provisions of ACA is the only way for the Government to put its money where its mouth is -- to show that Congress' motive in enacting the individual mandate was really to shore up the financing of insurance. Borrowing from Caleb Nelson's great article on the history of motive analysis in constitutional law, I will also say a word about why "pretext analysis" has been neglected and why such neglect ought to stop.
1. Why is pretext analysis the only viable way to control Congress' implied powers under the Necessary & Proper clause? The reason is simply that there are, and always have been, a lot of implied powers. Congress can create banks, punish the robbery of the U.S. mails, hire clerical assistants for tax collectors, and so forth, all as ways to accomplish its enumerated ends. Developing a lot of "bright-line" rules to limit particular exercises of these implied powers is like playing jurisprudential whack-a-mole, forcing the Court (or the Solicitor General) to make up all sorts of implied limits on Congress to anticipate wacky "can-Congress-make-people-buy-broccoli" hypos. The answer, of course, is "it depends." But this is not an answer that sits well with a Court formally committed to placing some limit on Congress.
A better answer is, "if Congress imposed the 'broccoli mandate' because it genuinely believed that some interstate commercial problem existed -- that is, a problem that the states separately were incompetent to solve -- then, yes, Congress could force citizens to buy broccoli. Otherwise, no, Congress could not force people to buy broccoli." For this answer to be effective, of course, the Court has to be prepared to take pretext analysis seriously: if some substantial effect on interstate commerce is proffered to justify a law, but every rational person knows that that Congress did not give a rip about that effect, then the law has to be struck down. Since Katzenbach v. McClung (1964), when the codification of Martin Luther King's "dream" was reduced to the goal of maximizing the shipment of Hormel canned beef across state lines, pretext analysis has been honored in the breach. It is time to beef up pretext analysis by having the Government stand or fall by the genuineness of Congress' motive in linking the mandate to the regulation of the interstate market for .
2. Why is Verrilli's rejecting severability necessary and proper for reviving the pretext argument? Gluck and Graetz are mystified about Verrilli's decision to argue against severability of the mandate from guaranteed issue and community rating. "It’s not clear why the Obama administration has chosen this course," they note in their op-ed: "Perhaps it made a strategic choice to raise the stakes of striking down the mandate by asking the court to also invalidate the law’s more popular provisions." Nope, there is a reason much closer to the constitutional merits: If the mandate is really defended as necessary and proper for the regulation of interstate insurance markets, then the mandate should not be severed so easily from the regulation of those markets.
Both severability and "pretext analysis," after all, are about Congress' intent. If Congress really did not think that one measure was necessary for the other to do its good work, then why should the Court believe that one measure is "necessary and proper" for the other? Absent that link, of course, the regulation of local and non-commercial inaction cannot stand as regulation of interstate commerce.
3. Is there any hope of reviving pretext analysis? I think so, but it helps to understand why such analysis languished so long under a cloud. Caleb Nelson's superb account of now-bygone theories of judicial review precluding such analysis suggests that it is high time for a revival of pretext analysis in the jurisprudence of enumerated powers. After all, the Court nowadays looks at legislative motive all the time -- not only in statutory interpretation writ small, but under the Equal Protection clause and the First Amendment. As for all of those old precedents stating that Congress' motive or purpose is irrelevant, if one looks carefully one will see that, from Veazie Bank v. Fenno to Darby, they all concern express powers of Congress -- statutes that fell literally within some enumerated power by (for instance) blocking the movement of goods across state lines. None of these precedents deal with implied powers to regulate "substantial effects" on commerce from intrastate and local activities -- that is, the power of Congress with the most bite under the commerce clause. It is that "substantial effects" power that needs to be cabined. Why not go back to the prescription of Chief Justice John Marshall to do so?
But such a return requires some sacrifice: Verrilli was right to sacrifice severability of mandate from market to show that Congress' heart was in the right place.
Sunday, March 25, 2012
FSU Law Review announces its Exclusive Submission Window for Volume 40
Adam Kramarow, the senior articles editor at the FSU Law Review, has asked me to pass this along. (Feel free to cc me on your submissions.)
The Florida State University Law Review is now conducting exclusive spring article reviews. Any article submitted to this exclusive review between now and April 2, 2012 will be evaluated and responded to by April 9, 2012. By submitting the article during this window you agree to accept an offer for publication should one be extended. Any articles accepted through this review will be published in Volume 40, which is slated for publication in 2013.
If you have an article which you would like to submit, please e-mail an attached copy of the article and your CV and cover letter to [email protected] with the subject line "Exclusive Spring Article Review." (The character after the k in Adam's email address is a zero, not an "o".) This opportunity also applies to articles you may have submitted to FSU LR earlier this season but you need to resend the piece under the appropriate subject line. If you have submitted an article for review through ExpressO, you will have to resubmit it through this process to be considered under the exclusive review process. We look forward to reading your articles.
An ACA Amicus Brief Worth Reading: The SEIU on the Medicaid Coercion Question
As Eric Lichtblau's front-page story in today's New York Times suggests, the Supreme Court has been a bit oversaturated with amicus briefs in the ACA litigation, to the tune of 136 briefs (on top of the extensive briefing by the parties themselves) on the four issues the Justices will consider this week. Given that staggering number, and the very real likelihood that exceedingly few of those amicus briefs will therefore be given careful consideration, I thought I'd write to flag one particular brief that, to my mind, truly stands out: The brief of the SEIU on the Medicaid coercion question--the part of the cert. grant that, to me at least, makes the least sense. Below the fold, I offer some reflections on the parties' briefing, and why the SEIU brief, in my view, makes such an important and noteworthy contribution.
I. The Issue and the Parties' Framing
At SCOTUSblog, Lyle Denniston has a typically comprehensive discussion of the Medicaid question in "Part IV" of his ACA argument preview. Suffice it to say, the issue is whether the expansion of Medicaid eligibility in the ACA, which the parties agree would be severable from the rest of the bill if the minimum essential coverage provision were invalidated, itself violates the Tenth Amendment by "coercing" the states--along the lines Chief Justice Rehnquist hinted at in his majority opinion in South Dakota v. Dole. Arguing that "this coercion challenge is in a class of its own," the states' principal contention is that the ACA did not really present states with a choice when it came to accepting the expansion in Medicaid eligiblity. Yes, states could simply opt out of Medicaid, but the reality of current economic and budgetary constraints belies the feasibility of such an option.
In its briefing, the federal government's response strikes me as fairly tame, focusing on the extent to which the federal government, and not the states, will bear virtually all of the new economic burden imposed by the expansion in Medicaid eligibility. As the brief explains,
From 2014 through 2016, the federal government will pay 100% of the costs of providing medical assistance associated with the extension of eligibility. That amount will gradually decrease, to 95% in 2017, 94% in 2018, and 93% in 2019. In 2020 and thereafter, the federal government will pay 90% of these costs. That level of support significantly exceeds the typical federal contribution rates, which range from 50% to 83% of a State’s Medicaid expenditures and which have generally averaged 57%.
These statistics are telling not just because they belie the states' claim that the expansion in Medicaid eligibility will impose a particularly onerous (and coercive) burden on them (later on, the government's brief suggests that the expansion in Medicaid eligiblity may actually save states money in the long term), but because they also help identify the real stopping-point of the states' argument, i.e., that Medicaid itself is unconstitutionally coercive. True, the states don't ever actually suggest as much (per the "class of its own" line quoted above), but it's hard to see how a limited expansion in Medicaid eligibility (for which the federal government is almost entirely financially responsible) could violate the Tenth Amendment when Medicaid itself doesn't.
The states' answer, such as it is, is that they have become so dependent upon Medicaid funding that they're in no position meaningfully to evaluate the merits of any expansion in Medicaid eligibility--that Medicaid itself may not be coercive, but any mandatory change to its scope is. Although the states stop short of framing Medicaid as a "vested right," the crux of their argument is that Medicaid has created a form of functional dependency on federal funding, which is why expansions like that created by the ACA don't really give states a "choice."
II. The SEIU Brief and the Unconvincing Distinction Between the ACA and Medicaid Itself
Enter, the SEIU amicus brief, which can fairly be described as rejecting the feasibility of the distinction the states try to articulate, i.e., that there is a "constitutionally relevant and judicially manageable distinction between the pre-existing federal spending program [the states] desire to continue and the expanded program they challenge." In far more detail than the federal government's brief (which, to be fair, had other fish to fry), the SEIU brief focuses on the necessary implication of the states' argument--that Medicaid has in effect become a "vested right," and that, while the original program may itself be permissible, the expansion is necessarily coercive.
Thus, the SEIU brief proceeds to make three points: First, there is no precedent supporting the idea that states "gain a 'vested' or otherwise constitutionally protected interest in the continuation of a federal-state cooperative spending program after Congress determines that continued federal subsidization of such a program is no longer its preferred course." Indeed, the Supplemental Security Income (SSI) program stands as decisive proof to the contrary, since Congress in 1972 converted it from a cooperative federal-state spending program to a solely federal spending program.
Second, precedent aside,
Petitioners essentially argue that States face tremendous political pressures from their own residents to provide similar benefits to those in pre-expansion Medicaid, but would face difficulties in doing so absent federal funds because increasing local taxes would be politically intolerable. Judging these assertions in any meaningful way, if they were deemed legally relevant, would enmesh the judiciary in evaluating the relative strengths of various local political pressures and the relative merits of possible political tradeoffs.
For a host of reasons, the brief explains, courts are ill-equipped to enter into such a "realm of quintessentially political decision-making regarding the relative importance and inter-relationship of different aspects of a federal spending program that Congress has linked together as necessary to promote the general welfare."
Third, and most tellingly, accepting the states' argument "not only would treat the States in a manner highly inconsistent with the constitutional plan — i.e., treat them as dependent entities in need of forced federal assistance, secured by judicial intervention — but it also would mean that Congress’ authority to define the scope of the programs it is willing to fund is limited by either the States’ present desires or the spending decisions of prior Congresses." But as the brief argues, clearly, Congress could terminate the Medicaid program in its entirety, and then create a brand-new program that is virtually identical to the current Medicaid program as expanded by the ACA. If both of those steps are constitutionally permissible, where is the flaw, here?
Whatever else one might say about the minimum essential coverage provision, or the ACA litigation more generally, I've never been particularly convinced that the Medicaid challenge is a serious one--and the SEIU brief, to my mind, goes a long way toward explaining why. At the end of the day, I have to think that the only chance the states have at succeeding on this claim is to convince the Court that it can meaningfully be distinghished from a challenge to Medicaid, writ large. There may be folks out there who don't think this distinction matters because Medicaid itself, in their view, raises similar constitutional concerns. However plausible this argument is descriptively, I think it's a non-starter before this--or any other--Supreme Court. Ultimately, then, if the SEIU brief does nothing else, it rather conclusively proves why the distinction on which the states have seized ultimately fails to persuade. But that may be the only point that matters...
Friday, March 23, 2012
Religious Freedom and (and in) Institutions
Here is a short chapter, called "Religious Freedom and (and in) Institutions," which I contributed to a just-published volume, Challenges to Religious Liberty in the Twenty-First Century" (Cambridge 2012), edited by my colleague Gerard Bradley:
This paper is a contribution to a volume of essays dealing with a range of contemporary challenges – challenges posed by new questions, and by new forces -- to religious liberty. It considers the role that religious communities, groups, and associations play – and the role that they should they play – in our thinking and conversations about religious freedom and church-state relations. And, its primary claim is that the values and goods that the First Amendment’s Religion Clauses embody and protect are well served by a civil-society landscape that is thick with churches (and mediating institutions and associations of all kinds) and by legal rules that reflect their importance. These institutions contribute in distinctive ways to the reality of religious freedom under law.
Much more interesting is the fact that Kent Greenawalt and Steven Smith also contributed chapters. Check it out!
Krugman's Liberal Paranoia about Conservative Paranoia
Paul Krugman's op-ed this morning is a nice illustration of what I will call the "political principle of uncharity." The interpretative principle of charity is the presumption that, put technically, "the right assignment of meanings to the expression of a subject's language is that assignment of meanings which maximizes the truth of the subject's utterances." The "political principle of uncharity" calls for exactly the reverse: In order to mobilize one's followers with fear of some alien Schmittian Feind, one should strive to ascribe the most irrational and silliest meaning to one's opponents' words, one that highlights the speaker's irrationality and paranoia, even when the sentence is amenable to a more charitable interpretation.
Krugman's op-ed this morning is a textbook example of uncharity. According to Krugman, Romney is stoking an utterly irrational conspiracy theory, because he has "bought fully into the claim that gas prices are high thanks to an Obama administration plot," a claim that Krugman describes as the "paranoia" that "liberals in general, and Obama administration officials in particular, are trying to make driving unaffordable as part of a nefarious plot against the American way of life." What leads to such "paranoia"? Spoiler alert: "part of the answer must lie in the way right-wing media create an alternate reality."
There is, of course, a different and more charitable interpretation of Romney's remarks: He might be construed as stating that at least some members of the Obama Administration welcome gas price increases over the long run as ways to discourage driving that otherwise does not internalize the costs that drivers impose on others when they drive. These beliefs are not paranoid conspiracy theories. They are accurate characterizations not only of "Left" ideas but also the views of many conservatives -- myself, for instance or Reihan Salaam -- who support carbon taxes or congestion fees. We supporters of congestion pricing really do want people to drive less, because the current volume of driving is the result of inefficient pricing (mainly of infrastructure: Roads and curbside parking ought to be tolled).
One can blame Mitt Romney for attacking this "conspiracy" rather than joining it. (I do). But Krugman's accusing Romney of stoking paranoid conspiracy theories is deliberate uncharity, designed to stoke the fears of NY Times readers (who are probably already inclined to believe the worst of conservative Republicans) while reducing mutual political understanding. (I call Krugman's distortions "deliberate" on the charitable ground that a Nobel laureate is too smart not to see the plausibility of a charitable reinterpretation of Romney's remarks).
Vermeule on Henry Friendly and Judging
Also worth reading is Adrian Vermeule's review, in the New Republic Online, of the new biography of Judge Henry Friendly. The Friendly bio has gotten excellent reviews so far, but Vermeule is more critical--not so much of the biography, but of Henry himself.
Vermeule argues that although Friendly has been highly lauded by other lawyers and judges, "it is actually a bit difficult to say what Friendly stood for, or what ideas of general and lasting significance he contributed to law and legal theory." Vermeule describes Henry as a classic Legal Process judge, whose "contribution was not to enrich the theory of the law but to provide a living model of lawyerly craft and good judgment." He contrasts him with other judges, like Hand and Cardozo, "who offer fertile theoretical ideas that can be distilled into formulas, theorems, and pithy aphorisms," and suggests that the latter category of judge is likely to enjoy a longer and more influential reputation. It is, in essence, a discussion of the role of good versus great judges, and what it means to be either. He concludes that "it is just the unalterable nature of things that craft and tacit knowledge are harder for future generations to understand and appreciate than theoretically grounded knowledge. The former can be transmitted only with difficulty, by practice and example, but the latter can be dehydrated and compressed into easily digestible packets."
Whether you agree with him or not, it's nice to see someone reviewing the Friendly book in these interesting terms. (I should say that I've read about two-thirds of the bio so far and find it quite strong, although I'm not sure it completely merits the exclamation mark awarded to it by Judge Posner in his foreword.)There is one passage I was confused about, however. Vermeule writes:
How exactly does one export Friendly’s traits of craft, integrity, and moderation to help other judges in other cases, judges not necessarily blessed with Friendly’s exceptional judicial character? A model of judging that cannot be standardized and widely reproduced is not much good to a large and increasingly bureaucratized federal judiciary, whereas the snappy ideas supplied by the Hands and Cardozos of this world are useful even to lesser lights.
Vermeule's point about styles of judging needing to be appropriate to a standardized and expanded judiciary is a fair one. But I fail to see how the "snappy ideas of the Hands and Cardozos of this world" are necessarily more capable of standardization and reproduction than craft skills. Read Vermeule's description of the "Cardozo Theorem." It is interesting and generative of ideas, but is it really any more capable of standardization than the kind of judgment displayed by Friendly? In any event, the review is well worth reading, as is the book.
Props to the National Jurist
Those magazines for law students that clog up the entrances to every law school are rarely worth reading; a couple of so-so articles and then an endless list of advertisements for LL.M. programs and overseas studies opportunities. That said, I have found the National Jurist an increasingly must-read magazine recently. It's done quite a decent job of covering "law school crisis" issues. I hope professors and students alike will make an increased effort to pick it up and even encourage its editors to keep up the real reporting. There are three pieces in the latest issue (free, but registration required) that are worth looking at:
1) William Henderson's latest column. All of them are must-reads, and I found this one particularly interesting, although I didn't agree with all of it. Henderson argues that law schools continue to suffer a century-long hangover stemming from their awkward position within the university, and that law professors should get over their academic inferiority complex and focus on the ways in which both schools and professors can add value, which involves forging a closer connection to the world of legal practice. (I should add that I don't disagree with this general point.)
2) On the next page, there's an interesting article about changes in the curriculum and other aspects of Stanford Law School.The changes are described as intended "to better utilize the second and third year of law school to prepare students for the role they should play in society." Among those changes are more "team-oriented, problem-solving courses" involving both law professors and professors from other disciplines. I was also impressed by the description of two new online programs, one of which helps students engage in course selection in a way that will better correspond to their career plans, and the other of which "helps match them with alumni working in that area." The school is also, according to the article, moving toward a mandatory clinic requirement. I should add that there is a seeming tension between the Henderson piece and the Stanford piece, since some of what Stanford is doing, although practically oriented, is aimed not at basic practicing lawyers but at lawyers who "have a valuable role to play in helping to solve the world's problems," an approach "that calls for more than knowing how to analyze case law." But I think the tension is not real. Stanford appears to be aiming to make its program more practical for the kind of students it gets and the kinds of jobs they may be able to do. Not every school needs to have precisely the same ambitions, and each school ought to tailor its programs in light of its own position and students. I especially applaud Stanford for its course selection and alumni matching programs; would that the ABA required something like this of every school instead of counting books in the library.
3) The cover piece, on how well or poorly law schools are doing in terms of transparency issues, is also well worth reading. I should disclose with regret that Alabama ranks poorly on this issue, according to the criteria employed, although, as far as I can tell in having investigated the issue, not for reasons of bad faith. That said, I hope and think we will do better. Regardless of how my own institution fares, it's still a valuable article.
Thursday, March 22, 2012
Trayvon Martin and Florida's "Stand Your Ground" Law
In the wake of the tragic killing of Trayvon Martin in Florida, there seems to be a lot of misinformation about Florida's so-called "Stand Your Ground" law which critics are pointing to as evidence that such laws allows killing with impunity.
Some say that the "Stand Your Ground" law makes it exceptionally hard to win a conviction. First, some have pointed out that, in Florida, the prosecution has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, assuming the defendant has adduced sufficient evidence to present a jury question. But this is true in virtually every State: last I checked, only Ohio and South Carolina require a defendant to shoulder the burden of persuasion on self-defense. Some have pointed out that when a defendant claims self-defense in a homicide prosecution, the State has lost its best witness and the jury therefore hears only one side of the story. But this is true in any homicide case. Moreover, the prosecution often has a really good witness in a homicide case: the defendant himself, if the police have arrested and interrogated him, and whose statement often will have material discrepancies with his trial testimony, assuming he testifies (and if a defendant claims self-defense and doesn't testify, the jury will hold it against him, no matter how much we tell them not to).
So what are we left with that distinguishes Florida's law? Well, obviously there is the "stand your ground" provision which eliminates the common-law duty to retreat. But the law in America has always been ambivalent about the duty to retreat, with about half the States at any given time recognizing the duty to retreat and about half abrogating it. This is not a new development. Moreover, even where there is no duty to retreat, it is still a requirement that the defendant reasonably believed that deadly force was necessary to prevent the imminent use of deadly physical force. And even in a retreat jurisdiction, the prosecution generally must prove beyond a reasonable doubt that the defendant knew he could retreat with complete safety. So, in practice, there is not a whole lot of daylight between retreat and no-retreat jurisdictions. That is why Anthony Sebok wrote in 2005 that it is "unlikely . . . that this change will change outcomes in particular cases."
So what is truly distinctive about Florida's "Stand Your Ground" law? It is this: while self-defense conventionally is just that -- a defense, to be raised at trial -- self-defense under the Florida law acts as an immunity from prosecution or even arrest. Section 776.032 of the Florida Statutes provides that a person who uses deadly force in self-defense "is immune from criminal prosecution." This odd provision means that a person who uses deadly force in self-defense cannot be tried, even though the highly fact-intensive question of whether the person acted in self-defense is usually hashed out at trial. The law thus creates a paradox: the State must make a highly complex factual determination before being permitted to avail itself of the forum necessary to make such a determination.
Not only that, Section 776.032 provides immunity from arrest unless the police have "probable cause that the force that was used was unlawful." Again, the law creates a Catch-22: police cannot arrest the suspect unless they have probable cause, not just to believe there was a killing, but also that the killing was not in self-defense; and where, as is often the case, the defendant is the only living witness to the alleged crime, the police likely will not be able to form probable cause without interrogating the suspect.
The Trayvon Martin case demonstrates the flaws in Florida's "Stand Your Ground" law. But let's not lose focus over what exactly those defects are, and they are not in the decision to abrogate the common-law duty to retreat, over which reasonable people can disagree and have for decades. No, the defect in the law is in the odd provisions that grant immunity from prosecution and even arrest, preventing the machinery of criminal justice from resolving whether the self-defense claim is a valid one.
Trayvon Martin and the "Hispanic" Race
The Trayvon Martin case has justifiably generated an enormous volume of commentary. One of the most interesting aspects of this commentary is the difficulty people have had in grappling with how to categorize George Zimmerman, the shooter. At first, he was described merely as "white." This allowed the case fit nicely into the paradigm of Black-White race relations. A black teenager is shot and killed by a gun-toting, white vigilante, and the white police chief leading a police force with a troubled racial past declines to recommend charges against the shooter.
Then it came out that Zimmerman's mother is Latina (she's Peruvian). His photo (at least to me) reveals a man who looks mestizo. And yet commentators are reluctant to give up the white label. In an article this morning, the New York Times describes him as a "white Hispanic." James Fallows says the case "involves the shooting of a young black man by a young white man, and the failure of the white-run Southern police department to take any action against the killer." Others emphasize Zimmerman's white half and suggest that it's the half that matters more. These efforts show how confusing the Latino category is to traditional American racial tropes, particularly when we are talking about a case like this one that pushes all of our pre-civil rights buttons.
For my part, I think the fact that Zimmerman is a Latino (or half Latino or half white or mostly white looking, etc.) is not essential to the racial analysis of this case. First off, the idea that his being a Latino somehow undermines the possibility that he was motivated by racial bias is silly. Anti-black racism is alive and well within the Latino community, in both the classic American sense of that term as animus directed against African-Americans and a more nuanced skin-color bias among Latinos themselves. Of course, this story would be more complicated than the traditional white-black dichotomy, and so media commentary has largely stuck with the more familiar categories. Second, in my mind the more pressing (because more systemic) scandal in the case is the law enforcement reaction, which plainly treated the killing of a young black man as something to take less than seriously. There are so many holes in the police department investigation, it is hard to know where to begin. But easily the most damning is the police department's failure to discover (or, if they knew about it, follow up on) Martin's phone call with his girlfriend while he was being followed. And the racial dimensions of this police malpractice do not really turn upon Zimmerman's race or his possible racial motives for his actions. Police failure to investigate thoroughly the killing of young black men is a racial scandal even if the perpetrator of the crime is black, as he most often is.
I get that Zimmerman's supposed "whiteness" is part of what sells this story as a cause celebre for a great many people. And I'm not trying to insert myself into a debate about how people ought to be describing Zimmerman. As a Latino, what I find interesting about the case is what it reveals about the resilience of the black-white racial paradigm in our culture. Several decades into the explosion of the Latino population, and we are still trying to figure out what to do with Latinos and, for the most part, still struggling to shoe-horn Latino racial identity into those two boxes.
Bill Maher in today's Times agrees with me: It is time to stop being offended (or feigning being offended) by everything, time to stop demanding apologies, and time to stop apologizing for everything. There is no right not to be offended, so stop pretending there is such a right.
Wired, and ThreatenedI have a short op-ed on how technology provides both power and peril for journalists over at JURIST. Here's the lede:
Journalists have never been more empowered, or more threatened. Information technology offers journalists potent tools to gather, report and disseminate information — from satellite phones to pocket video cameras to social networks. Technological advances have democratized reporting... Technology creates risks along with capabilities however... [and] The arms race of information technology is not one-sided.
Facebook, Employers, and the Keys to Your House
This AP news article states that it is increasingly common for employers to ask job seekers for their Facebook passwords. Employers then hunt around in your private information to spot what they perceive as red flags: "'It's akin to requiring someone's house keys,' said Orin Kerr, a George Washington University law professor and former federal prosecutor who calls it 'an egregious privacy violation.'"
When I saw this piece, entitled "What Should You Do if Your Employer Asks for Your Facebook Password?" (via Frank Pasquale via FB), I expected it to say, "Tell your employer that you are not permitted to give out the password because it would violate the terms of service with Facebook." But the article doesn't say that. Does that mean Facebook allows you to give out your password? Or are employers simply indifferent to Facebook policies? I imagine it's the latter.
Suppose employers are ignoring or would ignore such policies. Could Facebook make it a violation of the terms of service to ask for someone else's Facebook password in hiring and employment contexts? Then, people who are not hired or are fired could report that to Facebook and at least cause trouble for the companies (and possibly HR staff) that may have their own Facebook accounts. Even if employers are prohibited from asking for your password, they could presumably still ask you to login yourself and let them have a look around. But at least having you present when the company takes a tour of your home (to follow Orin's analogy) would make things a little more difficult or awkward for employers. And presumably, terms of service could be crafted to prohibit that as well.
Wednesday, March 21, 2012
Things You Oughta Know If You Teach Federal Courts
At Dan's request, I thought I'd put together the following thoughts for those prawfs who are either new to, or contemplating jumping into, Federal Courts. At the outset, let me just say something that I think most teachers of Federal Courts believe: It is at once the hardest and most interesting class I teach, and I constantly encounter greater challenges--both substantively and pedagogically--in this course than in any of my other classes. That could just be me, though, so please take what follows below the fold with however many grains of salt such an opening warrants.
I. What Is Federal Courts?
No two people will answer this question the same way, and yet it will necessarily drive virtually every aspect of how you structure the course, which materials you use, what kind of pedagogical approach you pursue, etc. To my mind, there are three classical views of the course:
- as an advanced civil procedure course, with special focus on some of the nastier and more intricate questions of subject-matter jurisdiction, removal jurisdiction and procedure, "complete preemption," appellate jurisdiction and procedure, class actions, the jurisdiction and procedure of the U.S. Supreme Court, etc.
- as an advanced constitutional law course, with special focus on justiciability doctrine (different schools cover this to varying degrees in the intro con law course(s)), the constitutional scope of federal jurisdiction, the constitutional limits on federal jurisdiction, Congress's power over federal jurisdiction, the constitutional relationship between federal and state courts, the constitutional rules governing non-Article III courts, etc.
- as a federal remedies course, with special focus on federal common law, implied causes of action, Bivens remedies, § 1983, sovereign and official immunity, abstention doctrines, and habeas.
I very much doubt that any Federal Courts class sticks entirely to one of these three conceptions. But a lot of how you structure the course and which materials you use will depend on how heavily you want to borrow from each of these models. To similar effect, different Federal Courts casebooks work to differing degrees based on your own comfort level with (and attraction toward) each of these models.
My own view, as will become apparent, is to teach Federal Courts as primarily models (2) and (3)--that very little of the class is merely about how particular statutes are actually applied. Instead, I've always seen Federal Courts as a far deeper inquiry into the unique role and constraints on the federal courts within the federal system, and so I've gravitated in that direction. Put another way, if most public law classes in law school (including constitutional law) are Calculus, in which students merely apply the structural rules (e.g., the Fundamental Theorem of Calculus), Federal Courts is Analysis, in which we prove why those rules are. Here, that means the course is devoted to explaining both why the Federal Courts are such an integral part of the federal system (including why federal courts can play roles that state courts cannot), and how the Federal Courts preserve their ability to continue to play that role going forward. But again, that might just be me...
II. Three Credits or Four?
Although a handful of schools (e.g., Harvard) offer a five-credit Federal Courts class (a boy can dream...), the far more realistic issue most of us will confront is whether the course should cover three or four credits. I'm horribly biased here, but I think that, virtually no matter how you answer Question I, above, it's difficult to squeeze all this material into three credits. That said, if you don't have a choice, I think a three-credit Federal Courts class will necessarily either (1) stick to only one of the models described above; or (2) borrow far less heavily from each, and be more of a survey course.
III. To Hart & Wechsler or Not To Hart & Wechsler?
There are a lot of Federal Courts casebooks out there, and many of them are quite good by almost any standard. But I think the question of casebook choice is still best framed as Hart & Wechsler vs. the field, especially if you gravitate toward a combination of models (2) and (3) from above. As I tell my students every year,
Hart & Wechsler . . . is a wonderful book for everything except teaching. It is maddeningly rhetorical, hyper-dense, and includes far too much significant material in the notes after cases . . . and footnotes . . . . That being said, it is a simply invaluable reference and the gold standard when it comes to federal courts casebooks — the entire field of federal courts owes much of its origins to the first edition, published in 1953. By the end of the semester, you may come to hate the book, but I truly believe that it is the best way to fully appreciate the (often endless) complexities of the questions that we will be studying.
And year after year, I pay for that choice in my student evaluations, most of which express deep frustration at a casebook that provides plenty of questions, but no answers (of course, it does provide answers, but that's the point). Having tried teaching the course once from another book, though, it's been my experience that there's an upside to Hart & Wechsler, too--that students develop a deeper appreciation for the nuance that infects most serious Federal Courts issues, and that they realize how much the "law" of Federal Courts is defined by negative inference from the subtleties of what the Supreme Court has not done and/or never said.
That said, there are compelling reasons not to adopt Hart & Wechsler. Its density makes it hard to cover as much material in the same amount of time; it's much harder for us as professors in the classroom, because we have to spend far more time helping the students divine the "rules," such as they are, from the Federal Courts canon; and it makes for unhappy (or at least overworked) students, who, no matter how hard you try to convince them otherwise, will remain convinced that you're a sadist for choosing that book, as opposed to its competitors. My own experience has been that, all that said, the pros outweigh the cons, but it's a decision every Federal Courts prawf has to make for themselves. And if you go with the field, it's a fantastic and deep bench; then, I think the real key is finding the book that hews most closely to your intuitive sense of both scope and order of coverage.
IV. To Habeas Or Not To Habeas?
Regardless of which book you use, there are a ton of difficult coverage questions in Federal Courts, because you just can't cover everything. But the one coverage question that looms above all others is whether or not to cover habeas. These days, if you choose to teach jurisdiction-stripping, you almost have to spend some time on habeas, thanks to Boumediene (if not St. Cyr, Rasul, and Hamdan). But covering post-conviction habeas as a remedy is a unit unto itself, and there's just no way to do it quickly (unlike, say Bivens or Supreme Court review of state courts). I've tried lots of different tacks, but have never been able to squeeze post-conviction habeas into fewer than four classes. Even then, that's one session on the Suspension Clause and its historical understanding; one session on Brown v. Allen and Fay v. Noia; one session on procedural default and retroactivity; and one session on AEDPA. It's almost professional misconduct to try to cover procedural default and retroactivity in one 110-minute session, to say nothing of covering AEDPA in that time. But then the question is whether to not cover habeas at all, since the alternative is to let it swallow up one-third of the syllabus.
My own answer, going forward, is to not cover post-conviction habeas in Federal Courts; it's just not useful to teach it at the level of superficiality that I inevitably have to in condensing it to four sessions. But I'm long-winded. There may be ways to do so, or to cover it adequately in six or seven sessions. Either way, I think this coverage decision has to come early on, because a lot of "smaller" coverage decisions will follow.
V. External Resources for New and Aspiring Federal Courts Prawfs
Finally, in addition to a link to my materials from the last time I taught the course, I'd be remiss in not noting that there is an amazingly helpful, thoughtful, and friendly cohort of Federal Courts professors, especially those on the more junior-ish side. About five years ago, Amanda Frost and I started the "Junior Federal Courts Faculty Workshop" as an opportunity for up-and-coming Federal Courts prawfs to get to present work with senior commentators, and also to come see what our colleagues are up to. We're both extremely gratified (and excited) to see that the Workshop has taken on a life of its own, and Tara Leigh Grove at William & Mary has already begun putting together the fifth annual gathering, scheduled for October 25-27, 2012, in Williamsburg.
The AALS Section on Federal Courts is also a good group to get involved with. As evidenced by the fact that I'm the Chair-Elect, we're not a very hierarchical bunch, and we usually put on pretty Federal Courts-nerd-satisfying programming @ AALS--including a panel discussion at AALS 2013 on "Non-Article III Courts: Problems of Principle and Practice." The inestimable Don Doernberg at Pace Law School maintains a listserve for Federal Courts issues, which, in what must be a rare complaint for such lists, could stand in my view to be more active.
There are also some great blogs to follow if you're so inclined, especially the "Civil Procedure & Federal Courts Blog," run by Robin Effron (Brooklyn), Cynthia Fountaine (Southern Illinois), Patricia Moore (St. Thomas), and Adam Steinman (Seton Hall).
I actually think we could stand to have more such resources in the Federal Courts world, but it's certainly the case that new and aspiring Federal Courts prawfs have plenty of places to look for help, guidance, and support, when jumping into the "organic chemistry" of law school.
But I'm curious if folks disagree with any of the above, or would add other observations. The (e-)floor is yours!
"When you subscribe to Netflix . . . you cannot bring a class action lawsuit"
I've been loving the series of DIRECTV "when you get cable" commercials (such as how if you sign up for cable you'll either "wake up in a roadside ditch" or you'll be unable to "stop taking in stray animals"). Having recently added a third child to my family, I'd have to say may favorite is the commercial explaining how if you sign up for cable, then you will have a grandson with a dog collar:
My colleague Derek Muller has also recently alerted me to a similar fact: if you sign up for Netflix, then you waive your right to a class action lawsuit (Sony did something similar for its Play Station Network a few months back).
This new provision in Netflix's terms of service contains both an arbitration provision and a class action waiver - an increasingly popular new tool in the wake of the Supreme Court's decision in AT&T Mobility v. Concepcion. In a previous post (and in a recently posted piece on SSRN), I raised the possibility that class action waivers may still be held to be unconscionable where a company fails to provide its customers with the type of pro-consumer provisions - provisions that provide alternative mechanisms for plaintiffs to bring low-value claims - that AT&T had incorporated into its own agreement.
I don't have a Netflix login so I can't tell if Netflix has incorporated similar provisions into its new arbitration agreement. But I'm guessing it hasn't (feel free to correct me in the comments) and is therefore another example of the type of new arbitration agreements we're likely to see in the wake of Concepcion. And, as a result, courts are going to have to figure out how to interpret Concepcion quickly - unless, of course, everybody just decides to get cable.
NYLS Class Action Dismissed
. . . NYLS's statements [regarding employment rates and salaries] are neither "half-truths" nor misleading. As acknowledged in the complaint, NYLS complied with ABA standards.[fn11]
11. In their Opposition Memorandum, plaintiffs try to reframe their pleadings and argue that the complaint in fact alleges that NYLS did not comply with the ABA regulations. However, the complaint is replete with allegations of compliance and utterly devoid of any allegations of non-compliance. . . . Indeed, plaintiffs' dissatisfaction with the ABA regulations themselves appears to be the admitted impetus for this lawsuit.
Although dismissing the suit, the opinion concludes with a rather heartfelt plea for law schools and the legal profession to better serve the needs of past, present, and future students. Here's an excerpt:
If lawsuits such as this have done nothing else, they have served to focus the attention of all constitutents on this current problem facing the legal profession -- from the law schools and their regulators, to the compilers of data that rate the schools to assist law school consumers, to the law firms that formerly primed the pump for a steady supply-line of associate positions to be filled by each graduating class, to the judiciary who offers clerkships to the best and brightest, to the local bar associations whose members are responsible for the continuing health and viability of the profession, and, finally, to prospective law students themselves. All must take a long, hard look at the current situation with the utmost seriousness of purpose. To the extent law schools are turning out too many graduates for the positions available, market forces will begin to correct themselves, hopefully in short order. But that does not itself excuse our collective responsibility to those who have been unfortunate enough to have been caught in the midst of the maelstrom. To them we owe our best efforts to get them situated.
The court also asks for "a renewed sense of responsibility to prospective applicants and students, starting at the law school level" with respect to employment data. But the complaint is nevertheless dismissed.
Is There a Need for Civil Censure?
When Dharun Ravi was convicted last week of committing bias crimes against his Rutgers roommate, Tyler Clementi, some commentators described it as a "watershed" moment, a rejection of the notion that the defendant was merely a "jerky kid." Others saw prosecutorial overreaching in a situation they viewed as a roommate conflict that ended tragically. Maybe both sides have a point. To me, the case suggests a space for another system of social sanction, one I'll call civil censure.
We rely heavily on our criminal punishment system to send normative messages. Maybe too much. In a heterogenous society in which citizens do not share a common religion or moral code, we sometimes are forced to resort to criminal punishment when other forms of suasion might be more finely calibrated.
Proponents of hate crimes penalties say that society must condemn all acts of bias against gays and lesbians, including non-violent wrongs. Critics counter that we should not feed a bloated and biased criminal punishment system. At Slate, Emily Bazelon writes that the Rutgers case demonstrates how "laws sometimes enforce social norms even if they haven't fully taken hold." But theorists have recognized that criminal sanctions (particularly harsh ones) are imperfect instruments to change "sticky norms."Certainly, some acts, such as Matthew Shepard's murder, are paradigmatic hate crimes, and should be punished as such. And many have no sympathy for Dharun Ravi, who turned down plea offers. Bazelon concludes that Ravi's conduct fits the New Jersey statutes under which he was convicted (although in both the Slate piece and a NYT op-ed she writes that the likely punishment is too harsh).
Clementi's father told the New York Times that he hoped the case would send a message to middle- and high school youth. Do we need to use the criminal punishment system to do that?
A civil censure system would operate as an alternative to criminal prosecution. Like censure for members of Congress, or of a profession, it would involve an official statement of wrongdoing; specifically, the violation of the rights and dignity of another citizen. However, civil censure would not entail all of the collateral consequences of criminal conviction, such as deportation or the loss of voting rights, and would not further contribute to our overgrown prison system. (This might sound like Kahan's advocacy of shaming sanctions in the 1990s, but it differs in that civil censure would be an alternative system, rather than an alternative sanction, and that in my conception it does not rely on public degradation).
Of course, there are many risks in suggesting the creation of another state system empowered to make solemn pronouncements of wrongdoing. The proposal raises innumerable procedural and substantive questions. But high-profile bullying incidents suggest the need for another way--a means of formally expressing societal condemnation without turning yet again to the tired remedy of criminal conviction and jail time.
The same week that Dharun Ravi was convicted, hundreds of thousands signed an online petition urging authorities to take action against the Florida man who shot unarmed African-American teen Trayvon Martin. For good reason, many Americans view our criminal punishment system as illegitimate. That may be the best reason not to use it to teach lessons.
David Ponet and I have uploaded our Journal of Political Philosophy article on how political representation can be rendered in fiduciary terms at SSRN here. Our earlier paper on fiduciary law's lessons for democratic theory is here; this current one focuses a bit more on the underlying political philosophy debates about representation theory and the lessons for the representation of children, in particular. An abstract follows:
Recent work on “fiduciary representation” has opened up a useful avenue for understanding how state leaders should navigate their representative roles in democratic political systems and for specifying the ethical duties that come with political office. Political theorists throughout the ages have generally thought of the democratic representative as either a “delegate” of the constituent-principal on the one hand, or as a “trustee” for the constituent on the other. Simply put (and put in an overly simplistic dichotomy), the “delegate” works under very strict control with instructions from constituents that need to be executed; the “trustee” has a wide berth of discretion to act within her authority to decide political matters on behalf of her constituents. Yet, as we will show, both idealized forms of democratic representation are subspecies of the fiduciary form. Although some political theorists have noticed the fiduciary status of rulers in democracies (and especially so when trying to make sense of how to represent children in democracies), few have the legal training to elaborate and specify what might be entailed as a consequence of a political representative’s fiduciary status. Fiduciary law provides some hints about how representatives should perform their role responsibilities and understand their relationships with those they govern.
Section I introduces and refines the concept of fiduciary representation. Section II explores what we call a fiduciary requirement of “deliberative engagement.” Although the standard fiduciary duties in the private law arena do not obviously impose this dialogic imperative, we show its latency in fiduciary law—and why it is essential as a principle of democratic political morality in relationships of political representation. Section III then applies the lessons of fiduciary representation to the domain of the political representation of children.
More India, please?
One thing that has long puzzled me is the contrast between the proliferation of Chinese-US programs (which I will mean in a very broad way to include centers, exchanges, professorships, etc.) in U.S. law schools and the relative absence of similar India-US focused projects. Having now spent a few months living in India, the contrast puzzles me even more. The US and Indian legal communities share a common language, a common legal heritage, and a common commitment to democracy and human rights. As a multiethnic, religiously plural democracy, India confronts many of the same fundamental legal questions we do. And yet there are very few institutional connections between the respective legal communites generally, and among legal academics more specifically. Maybe "puzzled" is not the right word, because I have a few ideas about why things have developed in this way. The most obvious explanation is no doubt money, both in the form of alumni donations specifically earmarked for the support of such programs and money flowing from either China or India to the U.S. My sense is that there is far more money out there eager to foster U.S.-China ties than U.S.-India initiatives, but I wonder if that would continue to be the case if institutions made some effort to actually go out and generate interest. On the Indian side, there is perhaps a lingering suspicion (resentment?) of the United States among intellectuals. Ramachandra Guha talks about this sentiment in his incredible history of independent India, which I plan to review in a separate post. Finally, a lot of the sort of work American legal academics do is not really done in Indian law schools but in other departments. I suspect this is true in China as well, though. Whatever the reasons, building greater institutional connections with the Indian legal community strikes me as a worthwhile project for U.S. law schools.
Coleman and the Perils of New Federalism
The Supreme Court announced its decision today in Coleman v. Court of Appeals of Maryland . For reasons I will explain below, I disagree with the plurality decision and think it is one of a growing trend of harmful and indefensible “new federalism” decisions. Spoiler alert: I think Justice Scalia makes a fine point about this jurisprudence in his concurring opinion. And apology/disclaimer: this will probably be the longest blog post I have ever drafted. Hopefully the good folks at Prawfs won’t revoke my visiting privileges (but if they do, you can still visit our faculty blog , where colleagues more interesting than me routinely weigh in on legal developments).
First, the facts: Plaintiff had sued his state employer for damages, alleging that it violated the “self-care” part of the Family Medical Leave Act (FMLA), which entitles an employee to take up to 12 weeks unpaid leave per year for the employee’s own serious health condition. In Nevada v. Hibbs, the Court had upheld the constitutionality of suits for damages against states for FMLA’s “family care” provisions, which guarantee unpaid leave for the care of a newborn child, adoption or foster care placement of a child, or care of a spouse, son, daughter, or parent with a serious medical condition. But in Coleman, the Court held that Congress had exceeded its constitutional authority with the “self-care” provision. Accordingly, the state is entitled to Eleventh Amendment immunity and the plaintiff’s suit for damages is dismissed on sovereign immunity grounds.
In Coleman, the Court held that unlike the family care provision, the self-care provision failed the apparently now sacrosanct City of Boerne congruence and proportionality standard. Under this standard, the Court will assess the evil or wrong Congress attempted to remedy and the means Congress adopted to address that evil. Legislation enacted under Section 5 of the Fourteenth Amendment must be targeted at conduct transgressing the Fourteenth Amendment’s substantive provisions and the Court must find that there is congruence and proportionality between the injury to be prevented or remedied and the means adopted to achieve that end.
Justice Kennedy, writing for the plurality, and Justice Ginsburg, writing in dissent, disagree on how the self-care provision fares under the Boerne test. Simply stated, the plurality held that Congress did not amass sufficient evidence of unconstitutional discrimination by states in self-care leave policies. When FMLA was passed, the plurality reasoned, the vast majority of states provided paid sick leave and short term disability protection, and there was “scant evidence in the legislative history of a purported stereotype harbored by employers that women take self-care leave more than men.” The dissent viewed the FMLA more broadly as an attempt by Congress to protect against gender-based discrimination in the workplace, and linked the self-care provision to pervasive state discrimination against pregnant women. Congress extended self-care protection to men and women as a means to ward off unconstitutional discrimination it believed would attend to a pregnancy-only leave requirement.
Both applied the same standard (Boerne), but came to very different views of the legislative record and the appropriateness of the remedy. I am no fan of congruence and proportionality – I have explained here why I think that even in Tennessee v. Lane (a case in which I agreed with the outcome) the Court’s insistence that it was being consistent with earlier precedent was just wrong. Boerne’s emphasis on combing the Congressional record and gauging how prophylactic the remedy really is just opens the door for the Justices to decide which rights – and under what context – are worthy of protection. It turns out Justice Scalia and I agree on this: he opens his concurrence by stating: “The plurality’s opinion seems to me a faithful application of our ‘congruence and proportionality’ jurisprudence. So does the opinion of the dissent. That is because the varying outcomes we have arrived at under the congruence and proportionality test make no sense.”
But to Justice Scalia, this means that (except for race discrimination, which he views as different for stare decisis reasons), he would limit Congress’s Section 5 power to conduct that itself violates the Fourteenth Amendment. I find this flat out wrong. As a textual matter, Section 5 gives Congress the power to enforce the Fourteenth Amendment by appropriate legislation. If all Congress can do is outlaw that which is already unconstitutional, what is the point? And, as a co-equal branch of government, it is just misguided, and seems like a power grab, for the Court to treat Congress like an administrative agency. These are neither novel nor unique points regarding the problems with judicial supremacy, but Coleman puts in sharp focus just how much the Court is “dissing Congress." Congress needs more deference to be able to do its constitutional job, whether that means allowing Congress latitude when the Court applies the Boerne standard, or, preferably, abandoning congruence and proportionality altogether. Coleman indicates we will be litigating not just right by right (as in the Americans with Disabilities Act context), but statutory subsection by statutory subsection, whether Congress amassed enough evidence to satisfy its jurisprudential superiors. At least to me, sovereign immunity should not and does not compel this result.
Tuesday, March 20, 2012
Elected Judges and Statutory Interpretation
This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model – and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrasting view: that elected judges and appointed judges should actually interpret statutes differently. We explain and defend that view and explore some of its implications and limits. We identify categories of cases in which the argument for interpretive divergence is at its strongest. We also show how the analysis might illuminate several specific doctrinal problems related to judicial federalism and judicial review of agency action.
From a Prawfs comment thread to the pages of the University of Chicago Law Review.....
Questions about "For-Pay Laws"
Did you know that vital parts of the US law are secret, and you're only allowed to read them if you pay a standards body thousands of dollars for the right to find out what the law of the land is?
Public.Resource.Org spent $7,414.26 buying privately-produced technical public safety standards that have been incorporated into U.S. federal law. These public safety standards govern and protect a wide range of activity, from how bicycle helmets are constructed to how to test for lead in water to the safety characteristics of hearing aids and protective footwear. We have started copying those 73 standards despite the fact they are festooned with copyright warnings, shrinkwrap agreements, and other dire warnings. The reason we are making those copies is because citizens have the right to read and speak the laws that we are required to obey and which are critical to the public safety.
Some questions: Do the organizations that set these technical standards usually know when they create them that they are likely to be incorporated by reference into law? In cases where they do not, can we really expect them to lose their copyrights simply because the government has incorporated those standards into law? Perhaps there is a solution that would both ensure that the information is freely available to the public without commandeering a private entity's copyright.
On a different but related issue, I seem to recall that a significant chunk of a Seinfeld script appeared in a court opinion, and I believe that in many or most U.S. jurisdictions, court opinions are in the public domain. If so, are courts limited in the amount of copyrighted material they can put in opinions which subsequently become part of the public domain? Are these "fair use" limits? Has anyone had any success suing a judge or a court for publishing an opinion with too much copyrighted material?
Monday, March 19, 2012
The Scheulke Report on the Stevens Prosecution, and Some Thoughts the Adversarial Process, and Prosecutorial Restraint
On Thursday, the full report of Henry Schuelke, the attorney appointed by Judge Emmett Sullivan to investigate possible criminal contempt committed by DOJ prosecutors in the Ted Stevens prosecution, was released and posted on the docket. You can see the whole thing here (https://www.courthousenews.com/2012/03/16/stevens.pdf). It’s an incredible document that should make it onto Professional Responsibility and Advanced Crim Pro courses as soon as possible. I have begun my Crim Pro classes the last two years with Jeffrey Toobin’s haunting New Yorker profile of Nick Marsh, a junior member of the prosecution team who hung himself after the misconduct was exposed. I want the students to remember it as they go out and start taking on the responsibilities of practice. For me, the report underscores two simple reforms that many law-enforcement agencies and prosecutors’ offices have adopted, but not, unfortunately, the ones involved here. They are (1) recording of all witness interviews; (2) full-file discovery. Below the fold there is much more about the case, the report, and steps we can take to avoid this sort of thing in the future.
For those who don’t know the story, the government convicted Ted Stevens in October, 2008 on charges of failing to report gifts from Bill Allen, an Alaska developer, specifically free or under-billed renovation work on Stevens’ house in Girdwood, Alaska. After the conviction, one of the FBI agents on the case disclosed that the prosecutors had withheld Brady information from the defense. The defense had a note from Stevens to Allen, saying “You owe me a bill.” That’d be a pretty good defense, obviously. The defense turned the note over to the government before trial. At trial, Allen was the main government witness, and he testified that the note was just “cover your ass.” He testified that he had a conversation with Bob Persons, a Stevens friend, who told him not to send a bill, that Stevens just wrote the note to cover his ass, but had no intention of actually paying for the work.
This testimony “turned the tables” on the defense, which had highlighted the note in opening statements; all of a sudden it became Exhibit #1 for the government. Problem was, after receiving the note from the defense, the government—two prosecutors and two FBI agents—had interviewed Allen about the note, and specifically asked him whether he had ever spoken to anyone about sending in a bill. Allen said he had had no such conversations as far as he could recall. Thus, the government had in hand a pre-trial statement from its primary witness that was directly contradictory to the most damaging statement in his testimony at trial. And they didn’t turn it over.
(There were some others, notably the fact that Allen had been employing a 15-year-old prostitute, and had allegedly suborned perjury by persuading her to testify in a sex-trafficking case that he had never had sex with her (Report at 10)—but for the moment I’ll focus just on the interview about the note.)
Why didn’t they turn it over? Here are the reasons given by the prosecutors themselves, as summarized by Schuelke:
- unawareness of the existence of the Brady/Giglio information;
- denial that some information was exculpatory;
- Agent Kepner’s failure to write an FBI 302 of Mr. Allen’s interview on April 15, 2008;
- failure to review their notes of that interview;
- failure to scrutinize important source documents;
- a rushed and unsupervised Brady/Giglio review;
- delegation of the Brady/Giglio review to FBI agents and to other
prosecutors unfamiliar with the case;
- the compressed trial schedule: 52 days between arraignment (July 31) and the start of jury selection (Sept. 22);
- reliance on the judgment of others;
- failure to supervise;
- micro management of the trial by DOJ’s “front office”; and
- inexperience and lack of Brady/Giglio training
This is a perfect illustration of how very simple, structural reforms in criminal investigation can prevent grave miscarriages of justice—and further the core truth-disclosing mission of the courts.
First, there is no excuse, in my mind, for the FBI’s refusal to record witness interviews. The FBI is one of the last holdout agencies in this regard, and I have never gotten a satisfactory answer as to why. Here’s one that an agent once told me (I assume he had heard this at some point in a training lecture): “When an FBI agent raises his hand and swears that something happened, that should be good enough for any juror to believe that it happened.” Yeah. As Jake said to Brett, “Isn’t it pretty to think so?”
The failure to record interviews is just sloppy investigating. In this case, there wasn’t even a 302 (an FBI field report) written. That meant the interview had no paper existence in the file; it existed only in the memories of the attorneys and agents, and in the notes apparently taken later by one of the prosecutors. Because it did not exist in a labeled document or disc in the file, it would have been much less likely to be discovered during a file review for Brady/Giglio/Jencks material.
And it’s worse: the government decided to get tightfisted with discovery and not do full-file discovery (as many US Attorney’s offices and DA’s offices do). So that meant that the government now had an obligation to go through all its evidence and identify everything that might reasonably be of value to the defense—whether negating the charge or impeaching a witness. And then two more problems arose: a supervisor who had not been close to the investigation decided to poach it for herself before trial; and much of the Brady review was farmed out to attorneys who had not been involved in the investigation—and to the agents themselves, one of who told Schuelke that she didn’t even know what she was supposed to be looking for:
“Agent Kepner testified that she would not have recognized the significance of Mr. Allen’s prior inconsistent statement under Brady had she remembered it. She testified that she did not “specifically” know that Giglio information included prior inconsistent statements by a witness and that “when I was reviewing the materials for Brady, I wasn’t looking for that.” [Further], during her review for Brady information in Stevens, she did not look for inconsistencies between a witness’s grand jury testimony and a witness’s statements reported in 302s.”
(Report at 426.)
The supervisor—the principal deputy chief of the public integrity section—who had inserted herself as lead prosecutor, told Schuelke that she had essentially no role, and apparently little interest, in doing the Brady review. Her testimony in this regard is kind of shocking: recall that this is a *very* senior DOJ attorney involved in one of the highest-profile cases in decades:
Q: Did you play any role in managing decisions about what was to be produced to the defense?
Q Did you play any role in reviewing -- I should say supervising or setting policies for the review of evidence for possible Brady or Giglio material?
A No. There -- there had already been, I know, a big Brady review, and that had already been in motion. And because the Stevens case was the first one we thought out the box, and then there were other – there were trials where Bill Allen, he was our main concern. Bill Allen had been used as a witness. I really took it as a foregone conclusion that a lot of that had been done, a lot of the work had been done and these guys knew the case like the back of their hand.
Q Yeah, but the record indicates that Brady disclosures were made as late as the 25th of August and the 9th of September of 2008 by means of these so-called Brady letters.
Q Did you play a supervisory role in the composition of those letters, first?
A Composition, no.
Q Did you play a role in supervising efforts to identify the information that ought to be disclosed in those letters?
Q Did you have any idea who was doing what in that regard?
A Yes. I mean, my understanding is that Ed Sullivan was working doing the yeoman's work of getting a lot of the stuff initially, the Brady review accomplished initially. We had attorneys in the section that were reviewing grand jury transcripts outside of the team just because it was too much for the team to do. Everybody was stretched pretty thin –
Q Did you ever ask whether they were reviewing -- that is, the trial team were reviewing their own handwritten notes of witness interviews for possible Brady?
A No, and to be quite honest, until all of this happened, that's something I would have never asked another trial attorney or a junior trial attorney, nothing. I mean, unless something would trigger that I was aware that there was some kind of meeting or interview that took place where something may have happened that someone may recollect something that someone else didn't recollect. So, no, that would never even cross my mind.
(Report at 75).
Some of the FBI agents gave similar explanations to Schuelke:
Q: [The prosecutor’s notes say:] ‘The agent also just told me he doesn't remember asking Bambi if Bill asked her to lie, and he doesn't think he would have asked that question, because the point of the inquiry was whether she believed she made a false statement’ and she didn't want to talk about Allen. Do you believe that you may have said that to him on or about September 8?
A: I don't believe I would have said to Mr. Goeke that I didn't remember asking Bambi if Bill asked her to lie. I don't recall making that statement. . . . My point of going down there, and maybe that's the confusion here, my point of going down there was to ask her -- to find out who put her up to it, so to speak. Who asked her to do it, who asked her to sign the affidavit. Whether that was Bill Allen or somebody else, I don't know. True, I specifically did not ask in my -- it does not appear that I asked in the interview her specifically did Bill Allen ask you to lie. That's true. I don't think I came -- that I specifically asked her that.
Q As opposed to asking her did somebody ask you, and she said yeah, Allen?
(Report at 305.)
So again, we have an interview that would be absolutely crucial to the defense (the main government witness asked the prostitute to lie under oath), and the agent didn’t record it, so we have no definitive record of what he asked her and what she said. The government didn’t turn over anything about the interview because, the prosecutors told Schuelke, whoever was doing the Brady review didn’t realize it might be exculpatory. Of course, if there had been a recording and transcript of the interview, it would have been easy. She either said “Bill asked me to lie,” or she didn’t.
I want to end here; I’ll do another post on this, because I want to make a clever and topical tie in with Mike Daisey and This American Life, but the moral ought to be clear—and we ought to be sending our students out into the cops and robbers world with this lesson: (1) all law-enforcement interviews with witnesses should be recorded; (2) all prosecution offices should adopt full-file disclosure policies.
(Seriously: if you want to get an order of protection for something that needs to be kept secret, go to the judge and get it. But otherwise, turn over the file. All of it. If you can’t win your case with full-file discovery, then you’re in the wrong line of work. That is, if the government couldn’t convict Stevens with Allen being impeached with the April interview and with the Bambi affidavit, then they should either have dug up some better evidence or dropped the case. By way of a much-less-high-profile illustration, the case before mine in the 9th Circuit two weeks ago involved a similar scenario: two very, very guilty bank robbers (caught in the getaway car after flinging the heist money out the window and crashing) whose convictions are likely to be reversed because of errors by both the prosecution and the judge that seemed totally unnecessary—limiting cross, and most problematically, acquiescing in the court’s totally erroneous instruction that “the government’s investigation is not on trial here.” (That latter error may well be structural, so there’d be no harmless-error claim.) My thought, watching, was that it was so completely unnecessary—let the defense cross the cooperator and bring out the benefit he’s getting; correct the judge yourself if you have to—say to the jury, “Yes, our investigation is on trial here: we did a thorough investigation and caught the right guys.” Why fight tooth and claw for an advantage you’re not entitled to, that you don’t need to win, and that will just give the appellate court an issue to reverse on?)
(Believe me, I’m all about chest-thumping and macho displays and all that. But it’s a much better ego boost to win in a full-file discovery case. And you’re better off on appeal; and there’s no Scheulke investigation; there’s no bar discipline; there’s no OPR investigation. And the public regains a little of its trust in the integrity of the justice system. I don’t see a downside.)
Warning the audience
A group called Created Equal will be on FIU's campus tomorrow, apparently as part of a two-week tour of Florida colleges and high schools. Created Equal is one of several anti-choice organization that makes its point with the display of graphic images of terminated fetuses and fetus parts. Last weekend, an email was sent out by the university's VP for Student Affairs, announcing the coming event, recognizing the "distasteful" nature of the signs which have created "controversy" in the past, reiterating the university's commitment to free expression and the exchange of ideas, and encourgaing members of the university community to "take this opportunity to examine and express their views."
Objections to groups such as this often come from women who have had to deal with the choice to terminate a pregnancy, who feel re-traumatized and triggered by the in-your-face and disturbing images (Created Equal's response is that women feel traumatized not by the pictures but by their earlier actions). I believe that concern motivated the email--the administration wanted to warn those who may feel traumatized that the group (and its photos) will be there this week so those women can avoid that part of campus. And it incidentally allowed the administration to preempt the inevitable objections to allowing the group to set up shop by shouting its belief in and commitment to the freedom of speech.
That said, is there something troubling about the university sending out this email? The administration does not ordinarily warn the campus community about every public protest or expressive event happening on campus. It certainly does not warn the community with the apparent goal of notifying listeners how to avoid unwanted speech--and thereby trying to limit the speaker's audience. And the administration certainly does not routinely call on the community to come out and engage in (what it probably expects to be) counter-speech. So it looks like content or viewpoint discrimination at work here: government is taking steps to affect the expressive environment (potential audience size, likelihood of counter-speech, etc.) under which this group--and only this group--will operate.
On the other hand, the email appears to be government speech; the government can take sides in a public debate and be as discriminatory as it wants to be. But can or should government speech take the form of public pronouncement to the effect of "we have no choice but to allow these people to use this public forum, but we think you should avoid this area or turn out in droves to debate them"? Is warning the audience about the (in the government's view) objectionable content of a speaker in the public forum--and, as noted above, changing the expressive environment--legitimate government speech? Is speech that alters the conditions under which a group operates in the debate different than government taking a stance on the substance of some debate?
Sunday, March 18, 2012
The bundle of issues surrounding the Supreme Court's recent arbitration decision AT&T Mobility v. Concepcion has graced the "pages" of Prawfs before (most notably, some great blogging by David Horton here and Aaron Bruhl here and here). One of the key questions post Concecpion was how would state courts react to the decision? State courts had aggresively pushed back at the Federal Arbitration Act (FAA), often resisting the FAA's preemptive impact on state law (check out Aaron Bruhl's great paper on this topic here). I recently wrote a short paper (yes, posted on SSRN for those interested) for a great symposium at Penn State addressing "US Arbitration Law in the Wak of AT&T Mobility" suggesting some reasons why Concepcion might have more limited impact than others have suggested.
Given all this discussion, I wanted to highlight a recent en banc decision by the Supreme Court of Missouri, Brewer v. Missouri Title Loans (thanks to David Horton for bringing the case to my attention). The decision, issued on March 6, stands as a strong example of how state courts might limit Concepcion. The Missouri Supreme Court emphasize the factual context of Concepcion, arguing that the Supreme Court's reluctance to finding AT&T's arbitration agreement unconscionable was based on the pro-consumer provisions in the agreement. Thus, the existence of the class-action waiver in Concepcion could not serve as a basis for unconscionability without also examining the other mechanisms provided in the arbitration agreement for individual plaintiffs to pursue low-value claims. In addition, the Court deployed Justice Thomas's concurrence - notwithstanding the fact that he signed the majority opinion - to narrowly construe the majority's holding.
For those thinking through issues of preemption and precedent as applied to the FAA, Brewer is a great case to puzzle about.
UPDATE: As Adam Zimmerman notes in the comments, Myriam Gilles is hosting what looks like a great half-day conference on AT&T Mobility v. Concepcion on April 26, 2012, at the Cardozo School of Law (Myriam has also written a great article along with Gary Friedman on the topic, titled After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion) . For more details, click here.
Friday, March 16, 2012
Where is the Outrage?
A week from today will be the two-year anniversary of the Patient Protection and Affordable Care Act. To say that the Act has been attacked, both at the policy level and as a matter of constitutional law, would be an understatement. The U.S. Supreme Court has scheduled six hours of oral argument on whether the Act is constitutional. At its very essence, the constitutional argument is about federalism: does the Constitution give the federal government the power to require individuals to purchase a product or does that power belong solely to the States?
But this post isn't about that. It is about a different federalism issue that has received far less attention, sparking the question that is the title of this post: the federal death penalty in non-death States. Again, the issue can be examined at the level of both constitutional law and policy. Can the federal government inflict the penalty of death for a crime committed in a State that does not authorize that penalty for the same crime (or at all)? And, even if it can, should it?
Consider the following federal death cases. First, the en banc Sixth Circuit will hear oral argument this summer on the death sentence imposed upon Marvin Gabrion for a 1997 murder committed on national forest grounds in Michigan, over which Michigan and the U.S. have concurrent criminal jurisdiction. Michigan has not executed anyone since 1830, seven years before it became a State; it abolished the death penalty for all crimes except treason in 1846; and it constitutionalized a complete ban on capital punishment in 1964.
Second, Michael Jacques is scheduled to be tried this year for the kidnapping and murder of his niece. The incident took place entirely within Vermont, a non-death State, but because he allegedly used the internet to commit the crime, it was a federal kidnapping.
Third, Jason Pleau is the subject of a tug of war between Rhode Island governor Lincoln Chafee and the federal government. The feds want Gov. Chafee to turn Mr. Pleau over to them to stand trial under the Hobbs Act for killing a man during a robbery of the proceeds from a gas station. Gov. Chafee has refused, citing the State's longstanding opposition to capital punishment. The en banc First Circuit will soon hear argument over whether Gov. Chafee must accede to the federal government's wishes.
I will be posting more about these cases in the coming days and weeks but for now I am less concerned with the merits of each case than with why they have not garnered the appropriate amount of outrage from those who purport to care about states' rights. The Pleau case did provoke an editorial from the New York Times, although it was decidedly lukewarm on the states' rights issue, suggesting that this was just another opportunity for the Times to attack the death penalty. But why haven't those who so vociferously oppose the PPACA said so much as a peep about the prospect of a
Federalist Society Event at Chase Law School on Eighth Amendment, 3/22/12
Lawyers, law profs, and others in the Cincinnati-Northern Kentucky area are invited to a Federalist Society event at Northern Kentucky University's Salmon P. Chase College of Law on Thursday, Mar. 22, 2012. The topic is "The Supreme Court, the Eighth Amendment, and the Death Penalty: In Search of a Unifying Principle." John F. Stinneford, Assistant Professor at the University of Florida Levin College of Law, and I will be discussing our respective takes on the Supreme Court's jurisprudence on the Eighth Amendment in both capital and non-capital cases.
The event will be held in room 404 from noon to 1 p.m. Please e-mail me at [email protected] to let me know if you plan on attending.
Enjoy the Madness
I hope everyone is enjoying the four most glorious days of college basketball of the year. I thought yesterday was actually a little disappointing - no real exciting upsets.
To help celebrate March Madness, I thought I would remind everyone of Matt Bodie's NCAA masterpiece here. I thought this was the best post I have ever read on any law-related blog. I will leave it to someone sharper than me to write a post on the similarities between filling out the NCAA tournament brackets and the US News ballot peer ballot. Seems like low hanging fruit...