Wednesday, July 31, 2013
One-Week Tally on Open Petition to Save Federal Defenders
One week ago today, I posted on this site the following petition. It has now been signed by 233 people from across the country, including 182 law professors. Each person signed individually, not on behalf of any law school or other entity. The names of supporters appear below the fold. Please email me (email@example.com) if you’d like to join the petition. Thanks!
“Petition: Save Federal Defender Services
“Sequestration imperils the constitutional right of criminal defendants to adequate legal representation. About 90% of federal criminal defendants require court-appointed counsel. In FY 2013, sequestration resulted in a $52 million cut to Federal Defender Services, bringing massive layoffs and furloughs. It is estimated that in FY 2014, if nothing is done, FDS will be forced to terminate as many as one-third to one-half of employees.
“Funding for prosecutors is apparently headed in the opposite direction. The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court. This radical imbalance threatens the fundamental right to counsel.
“Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services.”Adam Gershowitz
Corey Rayburn Yung
H. Candace Gorman
J. Herbie DiFonzo
K. Babe Howell
Karen Pita Loor
Mary Sue Backus
Rees Conrad Douglas
S. James Rosenfeld
Shari Lynn Allison
Fixing the Sneak and Peek Statute
Last post I argued that the current statutory rules governing “sneak and peek” searches are fatally flawed: they permit police to opt for a covert search, instead of one with notice, whenever they want.
The solution is to insert a “necessity” requirement into section 3103a.
As argued earlier, the statute currently prompts police to justify a request for a covert search by asking this question: “Assuming you conduct a search now but choose not to arrest anyone or seize the relevant evidence, will giving notice of the search likely lead to the destruction of evidence, escape of suspects, or otherwise seriously jeopardize the ongoing investigation?” As you can see, the answer to that question is almost always “yes.”
Instead of asking why a covert search is needed, the current statute asks what bad consequences will occur if the searchers give notice of the search. Those might sound like the same standards, but they are not. The police always have the ability to readily manufacture bad consequences from a search with notice—if you search but don’t seize the drugs, then giving notice of the search will result in the suspects destroying the drugs! And we know from Kentucky v. King (2011), that there is no bar to police “manufacturing” their own exigent circumstances, unless they independently violate the Fourth Amendment in so doing.
The statute should instead require police to explain why a covert search is necessary (as that concept is used in Title III wiretapping)—why police cannot reasonably discover the evidence they are seeking through conventional search techniques. When police seek authority to make their search covert, the right question to ask is: “Why is it so important to do a covert search now, while the investigation is still ongoing, rather than a public search later, once you are ready to seize the evidence and arrest the suspects?”
Adding a “necessity” requirement to section 3103a would prompt courts to ask that question, and force police to answer it. This would go a long way toward ensuring that the dangerous tool of covert searching is only used, as James Comey has stated, “when it really, really matters.”
Tuesday, July 30, 2013
Books to Enjoy in Fall 2013
I've been reading through Publisher's Weekly Fall 2013 announcements partly because, excitingly, they selected Talent Wants to Be Free for the business list, describing it as "a compelling argument for a new set of attitudes toward human capital that will sharpen our competitive edge and fuel the creative sparks in any environment."
There are several books that sound very interesting, particularly for prawfs. Alan Greenspan has a book out in October, The Map and the Territory: Risk, Human Nature, and the Future of Forecasting, promising a master class in economic decision making. The book takes on diverse issues including the welfare state, global warming, and of course, competition with China. If you are one of many of us fascinated with China there are several more books offering new perspectives. The one that seems most insightful is by Stephen Roach, Unbalanced: The Codependency of America and China.
For all of us who teach law and are thinking seriously about the future of legal education, a new book by Liz Brown, Life After Law: Finding Work You Love with the J.D. You Have, promises to show "lawyers how to reframe their legal experience and education to their competitive advantage to find work they truly love, with specific and realistic advice on alternative careers for lawyers." I've always thought we often have too much of a narrow view of what career paths of lawyers look like - many former students and former law school friends describe themselves as having abandoned the law and changed careers when in fact their paths have been much aided by their law degree.
If you liked Lean In, a new book continues the conversation, Liz O'Donnell, Mogul, Mom & Maid: The Balancing Act of the Modern Woman.
Finally for fun reading, I ordered Scott Adam's "most personal book ever" - a memoir by the Dilbert creator, How to Fail at Almost Everything and Still Win Big: Kind of the Story of My Life.
The Soda Portion Cap, Redux: Why are New York City's Agencies More Constrained Than Federal Agencies?
The appellate division has upheld Justice Tingling's earlier decision that Bloomberg's Department of Health lacks delegated authority to limit the portion size for sugary beverages. As I noted with respect Justice Tingling's decision, there is a paradox buried in the appellate division's opinion: Both opinions paradoxically reason that the Department of Health exceeded its authority because the agency did not regulate enough. The problem, according to the appellate division, is that the agency did not promulgate "an all-encompassing regulation" that single-mindedly pursued the goal of reducing obesity. Instead, the agency's rule contained exemptions (for dairy- and fruit-based drinks and for certain retailrs like bodegas) that indicated forbidden balancing of the rule's health benefits against economic and social costs. By "balanc[ing] health concerns, an individual consumer's choice of diet, and business financial interests in providing the targeted sugary drinks," the agency trespassed into the legislative domain, because such balancing "involves 'difficult social problems,' which must be resolved by 'making choices among competing ends'" -- a task for a legislature rather than an agency.
At first and maybe even second glance, this is an odd ruling. In effect, this view of delegated administrative authority requires agencies to ignore common sense by pursuing their regulatory mission with single-minded ferocity. One is tempted to ask whether administrative law makes common sense illegal. The answer is, of course, that it depends on what sort of administrative law courts want to create. The U.S. Supreme Court in Entergy Corp. v. Riverkeeper took precisely the opposite view from the appellate division, holding that an ambiguous federal statute gave the EPA authority rely on cost-benefit analysis in setting the national performance standards for utility cooling systems. As I noted in an earlier post, there was precious little textual basis in the Clean Water Act for this ruling: Justice Scalia was hard-pedaling Chevron deference, giving a federal agency maximum deference arguably in the teeth of contradictory statutory text.
Why should a local agency get less deference from state courts than Entergy gives to federal agencies? As I explain after the jump, I would think that local agencies should get more deference. I find, however, that Paul Diller, my former student and current expert in local government law, disagrees with my own assessment. In a characteristically insightful and erudite article on local agencies, Paul argues that local agencies should derive their authority from their Wilsonian (Woodrow, that is) expertise and freedom from industry capture, not their democratic bona fides. Paul faults NYC's soda portion cap for lacking the sort of scientific rigor that might legitimate it. Is Paul right? After the jump, I'll offer some thoughts.
Despite liking the article a lot, I remain unpersuaded. Local agencies lack the scale economies of national ones: They will never match the expertise of the feds. Deriving legitimacy for local agencies from "Wilsonian" considerations of impartial expertise, therefore, strikes me as matching the institution to the wrong legitimating value. It is like valuing Central Park horse-and-carriage rides for their speed. That does not mean that local agencies should not get deference. It means only that, if they do get deference, then the source of such authority must come from something besides a really thorough set of clinical trials or data-driven studies or other hallmark of expertise a la Frank Goodnow.
I tend to think that the comparative advantage of local governments is speed, not science. Local executives can act quickly to launch a quick policy experiment in a limited geographic area. The science justifying these experiments should follow rather than precede the local policy: By allowing a thousand municipal flowers to go their separate ways on sugary drinks, congestion fees, incentive zoning, and the like, courts provide academics and policy wonks with the data necessary to assess how well such experiments fare through comparative studies -- fostering comparative data that would otherwise be denied to us by judicial niggardliness with agency authority. Yes, there is a danger that some local experiments will misfire: Bloomberg's experiment with a flawed effort to control obesity might not work. But the alternative might be that we remain locked in a status quo in which no one does anything, because the executive actors are bogged down by a judicially created quagmire of process and non-delegation canons, while the legislative actors are stuck in the gridlock of partisan acrimony and fear of risk-taking. A nation locked into such dreary regulatory uniformity by judicial demands for detailed legislative delegations of power cannot generate the data necessary to determine whether further legislation is a good idea. The likely result is a vicious circle of court-induced Catch-22: Courts suppress local experiments citing lack of high-quality data, but those local experiments are precisely the data needed for scientific expertise to determine the effects of those local policies.
The beauty of local executive experiments is that local governments are constrained by multiple safeguards if the experiments go awry. There are multiple legislatures to pull the plug, one of which (City Council) can act with unicameral alacrity should the public rebel against the agency's idea of good policy. Tiebout's locational economies also place a limit on how aggressively most mayors will press businesses with novel regulation. Consumers and businesses can and do flee to New Jersey and Long Island if NYC's regulations become too annoying or expensive, tempering the regulatory zeal of a business-oriented mayor like Michael Bloomberg.
But take a look at Paul's article and judge for yourself whether you think that New York's courts were right to lower the boom on Bloomberg's experiment with soft drinks.
New Podcast on First Amendment InstitutionsI'm very grateful to the folks at the Liberty Fund for recording a podcast with me on my recent book First Amendment Institutions. (Ten percent off at Amazon! Makes a Bennington Battle Day gift!) The talk was very interesting (for me, at least) and it was a pleasure to get a very different perspective--a sympathetic but still critical one--on the book. It is available here. Download it for your next jog or car trip. Enjoy!
Monday, July 29, 2013
Those Damned ImmigrantsI am happy to announce publication of my colleague Ediberto Roman's new book from NYU Press, Those Damned Immigrant: America's Hysteria Over Undocumented Immigration (with an introduction from Michael Olivas).
Ten (No, Make that Nineteen) Tips for New Law Professors
I recently received an email from a professor who said he'd found this list of tips helpful. I've added a couple of his tips that were not on the original list.
1. Begin a little more strictly than you mean to go on. If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.
2. If you put a policy in the syllabus, stick to it even if you think you might have been wrong. I learned this the hard way. The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam. After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it. I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that. Thankfully, he backed me up, but I never again made a major policy shift midstream. She wasn't the only disgruntled student that day, either.
3. Put everything you can think of in the syllabus, even things that should go without saying. For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is. You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong. More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism. Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand. Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.
4. "Don't be moody."This is a piece of advice I received early on from a relatively new law teacher, and it has always stuck in my head. The person who gave me the advice was male, and he evidently had gotten burned by violating it. What the advice boils down to, I think, is that students desparately need you to be predictable. It is comforting to them when they know roughly what to expect each day.
5. Students decide very, very quickly whether you're on their side or not. If they decide you are, they will forgive a multitude of mistakes. If they decide you're not, nothing you do will be right. I've been teaching for 19 years, and I only had one class that hated me. They decided early on that I was mean, and everything I did provided confirmation. They even hated how I started the class and what I wore. (I'd given birth the month before the class started, and my wardrobe was limited). Frankly, I grew to dislike most of them, too. However, in telling this story, I'm violating the next tip in my list.
6. Be careful about generalizing how "the class" feels. A communications researcher would probably insist that, in fact, there is no such thing as a "class." (See Ien Ang). Instead, a "class" is a collection of individuals with disparate needs and interests and judgments about the classroom experience. That said, it is easy to assume that outspoken students represent the feelings of the entire group. It so happens that what I think of as "the class that hated me" (discussed above) included two especially delightful students, who took one of the most fun Media Law classes I ever taught. I still keep in touch with them even though they graduated more than a decade ago.
7. Watch out for group dynamics. Let's say you have a student who is engaging in disruptive behavior. You may be tempted to call the student out for his or her behavior in front of the whole class, but this is usually a bad idea. Even if other students started out being annoyed at the disruptive student, they may turn on you if you come down too harshly on the student or make him lose face. What should you do instead? I use what I call "class regulation by raised eyebrow." For example, if a student is late, I may visibly lose my train of thought and stare at him with a completely blank expression on my face for a few seconds--just long enough to be socially awkward. That does the trick 99 percent of the time. If you try informal means of "discipline" and they don't work, however, the next step is to call the student into your office. The student won't lose face, and you won't run the risk of having the entire class turn against you for being "mean."
8. Try not to project insecurity. In other words, fake it until you make it. Although you may be tempted to reveal to the class that you are brand new or are learning the material for the first time, you certainly don't have to and some would argue you shouldn't. Remember that the students are lucky to have a teacher who is energetic and curious and enthusiastic and can reach them at their level. Also remember that as little as you think you know, you still can read a case far better than even your brightest student. So project confidence, but . . . [see next rule.]
9. When you make mistakes, fix them. When I first taught Torts, I slept with the Prosser & Keeton hornbook by my bedside. I would wake up in the middle of the night thinking "what if they ask me X?" I would then flip through Prosser & Keeton, read it, perhaps even take notes, and then go back to sleep. I realize now that every first-time teacher makes mistakes; it is just a question of how you handle them. Sometimes you will just have to say, "I don't know. Let me research that and get back to you tomorrow." [But make sure you have the answer when you promised it.] One classic dodge is to say: "Hold that question. We'll get to that later in the class (or tomorrow or next week)." [Make sure you research the answer and come back to it when you said you would.] If you realize you didn't explain something well or your explanation was misleading, one way to handle it is to say at the start of next class: "I'd like to begin by clarifying X that we were discussing yesterday." [Then give your 5-10 minute summary/totally correct explanation.] Occasionally, you will realize that you said something completely wrong and you will just have to apologize and fix it. As consolation, remember that you are modelling for them how to handle mistakes, and it may be one of the most valuable lessons you can teach future lawyers. Law is a complicated business, and we all make mistakes from time to time no matter how hard we try or how smart we are.
10. Trade-offs are inevitable. More depth or more coverage? Encourage participation and intellectual curiosity, or hew to an organizational scheme? Stick to your syllabus, or spend more time on the things the class seems interested in or doesn't understand readily? There are lots of other trade-offs of this sort that you'll have to make and then re-make when you realize you've tilted the balance too far toward one value at the expense of another.
11. Make ideas "sticky." Try to come up with ways to make the material you teach memorable. Silly is sticky. Graphics (pictures, drawings on the board) are sticky. Funny is sticky. Music is sticky. My Trusts and Estates professor even danced on the table to reinforce a principle, and I remember it (the dancing) twenty years later. The principle had something to do with whether separate property acquired after the marriage becomes community property or not. Okay, so the idea wasn't that sticky, but my point still holds.
12. Use the board more than you think you need to. It helps keep the class structured, and it helps the visual learners in the class. Conversely, use Power Point less than you think you need to. Power Point is good for pictures and videos, and it can be used to examine closely the text of a rule or to convey highly detailed and technical material through lecture. Do NOT put giant blocks of text on Power Point and then simply read to the class from the slides. EVER.
13. It's not about you; it's about the students. Try to keep their needs foremost, instead of your own desire for ego gratification or anything else.
14. Keep a degree of formal distance between you and your students. You can treat them like future colleagues, but you cannot be friends with students until they have left your class. Your role requires you to sit in judgment of your students when you grade them, and that role can be compromised if you don't maintain formal distance.
15. Never use the same exam twice!! Violate this rule at your extreme peril.
16. Ask colleagues for advice, but remember you don't have to take all the advice you receive.
17. You will teach a class best the third time you teach it.
18. If you are teaching a large class and don't feel that voice projection is one of your gifts, consider wearing a microphone. This tip was shared by my anonymous source. I've never had this problem, but I've heard plenty of complaints from students about being unable to hear some of my colleagues. It is impossible to be an effective teacher if the students cannot hear you.
19. Consider wearing a suit. Even if you don't plan to wear it forever, it may help as a crutch for faking it until you make it and can help you maintain some formal distance from the students. This tip also came from my anonymous source, but I fully concur. I don't wear a suit every single day now, but I believe in signalling I take the endeavor seriously by dressing professionally.
LAST CALL to Join Petition to Save Federal Defender Services
I am still accepting support by email (firstname.lastname@example.org) for the petition I posted last week here:
On Wednesday 7/31, my last day as a guest-blogger on this site, I’ll post the signatories to date. (I may post an update later if more signatures come in.) I’m asking for titles and institutional affiliations to be able to report an accurate headcount of law professors (others are also encouraged to sign). To avoid any suggestion of institutional endorsement, I will disclose just names.
Because of the Senate hearing last week, the issue has received more attention in the press. For those interested, a partial list of stories appears below the fold. One point not mentioned in the petition: cutting federal defender programs will likely cost more in long-run reimbursements to the private attorneys who will have to pick up the slack.http://www.wbur.org/2013/07/29/sequester-public-defenders
Top Ten Tips for the Bar
No, not that kind of bar!
As the calendar turns to the last week of July, many of our former students are about to sit for the bar exam. For any of the students lurking out there, here are my top ten tips for success.
1. Stop studying. Seriously. It's the day before the bar exam. Cramming won't do you much good at this point. Sure, it's a good idea to brush up on the Rule Against Perpetuities or the specific deadlines for filing a document if your state tests you on these items, but there's no need to spend these final hours stressing out with long study sessions.
2. Eat a good meal tonight. And tomorrow morning. This might seem obvious, but don't forget to take care of yourself.
3. Sleep well tonight. This is another variation of #1. Don't stay up late trying to study too much. You've (hopefully) put in the necessary hard work over the past few months, not to mention the past three years. Now is the time to let your body and mind rest up for the big day(s).
4. But don't fall asleep during the exam itself! I know a guy who actually fell asleep while taking the exam. He called it "bar-colespy." He passed, but don't take the risk!
5. Watch this. Or something else amusing. For that matter, watch a ballgame or go to the movies to clear your mind.
6. Thank your wife. Or husband. Or boyfriend, girlfriend, Mom, Dad, brother, sister, best friend, pet iguana, creepy neighbor, or whoever else has helped you through these past few months. Let's face it: you haven't been the most fun person to be around. Thank those who have supported you during this time.
7. If you have absolutely no clue about a particular area of the law that is at issue, make up a rule, and then apply it faithfully. For me, it was something about materialman's liens. I had no idea what that even meant. But I soldiered on: "In Texas, the three-part test for materialman's liens is _____." I sure sounded like I knew what I was talking about! I later learned that I was woefully incorrect in the rule I had made up. But I bet I earned some points for a strong application of the rule I did use.
8. Answer all of the questions. This may sound obvious, but the graders (in all states, as far as I know) do not take off points for wrong answers -- so put an answer for everything! If you are running out of time on the multiple choice problems, answer C for the remaining questions during your last minute. (I like C because, well, C is for cookie, and that's good enough for me! But you could use any letter. The point is to have an answer so you receive credit when you happen to hit one correctly.) If you are running out of time on an essay, at least put the rule or the conclusion. Don't leave anything blank. You never know if you'll earn extra points.
9. Smile. This may be hard to do during the rigors of the bar exam -- and others might think you are crazy. But research suggests that even a fake smile will improve your mood and lower your stress.
10. Relax. Most of you will pass. And even if you don't, at least you'll have something in common with Hillary Clinton! And then you can have some fun with how you tell people. Because whatever happens, I suspect I'll see many of you at the bar on Wednesday night!
Saturday, July 27, 2013
A New Hypo for the "Is Religion Special" Debaters
More than a hypo, actually. In a well-known academic freedom case, Axson-Flynn v. Johnson, an acting student at the University of Utah refused on religious grounds to say the word "fuck" or take the Lord's name in vain during an acting exercise and was criticized by her instructors. She ultimately brought suit. The Tenth Circuit held that Axson-Flynn had raised potential free speech and free exercise claims. After remand to the district court, the case was settled, with the parties announcing "the planned implementation of a policy that will allow students an opportunity to request exemptions from specific curricular exercises they feel go against their 'sincerely held religious beliefs.'"
Now the Chronicle of Higher Education has run a story (subscription may be required) about a music student at Northwestern who refused to sing a verse by Walt Whitman, on the grounds that Whitman made several racist statements toward the end of his life:
As a result, Timothy L. McNair, a 25-year-old aspiring opera singer, failed the course. His stand, taken at the end of the spring quarter, has put at risk his ability to finish his master's degree at Northwestern's Bienen School of Music.
The university has backed the professor who failed Mr. McNair and says that it expects students to complete the work assigned to them.
Here we have a nice new example for those who have argued that religion is not special--that there is no compelling reason to treat strongly held non-religious beliefs, when it comes to granting or refusing to grant exemptions, differently from strongly held religious beliefs. Enjoy.
Mainlining History on Amazon Prime
Question: What do Ronald Reagan, Noam Chomsky, Jesse Jackson, B.F. Skinner, Norman Mailer, Saul Alinsky, Groucho Marx, Milton Friedman, Timothy Leary, Huey Newton, Christopher Hitchens, Allard Lowenstein, Allen Ginsburg, Margaret Thatcher, Joan Baez, Ann Coulter and Muhummad Ali have in common?
Answer:They were all guests on episodes of Firing Line with William F. Buckley Jr. which are now available for free with a subscription to Amazon Prime. (Students can get Amazon Prime for free for six months; transcripts for many episodes are available free here). The show was on the air from 1966-99, and had hundreds of interesting guests. Buckley, obviously, was conservative, but his interview style, while mildly combative, seems to me very unlike some modern commentators who do not let their guests speak or wilfully misunderstand their arguments. To watch Truman Capote's discussion of capital punishment or Jack Kerouac's drunken appearance on a panel about "the hippies" is to take a trip on a time machine.
If you insist on a legal connection, then I recommend episodes featuring G. Robert Blakey on the Warren Report, Alan Dershowitz on the Deep Throat prosecution, John T. Noonan on abortion, and Charles Rangel, William F. Buckley and Ira Glasser debating drug prohibition.
The Place Among the Pines
Jon Ericson was a scientist and pioneer in fields such as prenatal and early childhood health. His research found links between neurotoxins and behavioral disorders, environmental lead and ADHD, and other metals and ravages of modernity. We worked on a childhood lead study in south-central Los Angeles, a scaled-back version of his epidemiological projects in Mexico. He taught us research methods and encouraged us to learn geographic information systems. I remember him most for the stories he told and his warnings about the safety of mundane objects, including the pillow as toxic sink and daily dose of flame retardants. He was a kind man who was ahead of his time. I was sad to see him go. This summer, we lost another champion of environmental health, Senator Frank Lautenberg of New Jersey. Their shared concerns can steady us through the dizzying drudgery of toxic chemical reform.
The summer repeatedly brought attention to the need to update our chemical laws. National Pollinator Week began with 50,000 dead bees at a Target parking lot, victims of a whimsical-sounding insecticide called "Safari." The European Union banned yet another pesticide that posed an "acute risk to honeybees" in corn and sunflower fields. Farmworkers endured their own risks of acute pesticide poisoning, as FIFRA's Worker Protection Standard failed to safeguard even those who followed its restricted entry intervals and controls. "Pesticide drift," which was not well documented when the standard was updated, made the news again. Chemical plants ruptured and released toxins beyond their permit allotments. One in Geismar, Louisiana sent nearly sixteen tons of VOCs into the air, followed by the usual dance between state and citizen monitors. We debated the hazards of hundreds of millions of tons of coal ash, years after a risk assessment found that living within a mile of an unlined coal ash pond presents a one-in-fifty elevated lifetime cancer risk. The amount of crude oil released from the Deepwater Horizon blowout remained up for grabs, as was the relative toxicity of Corexit 9527 and 9500, dispersants that hid the spill from full view. And the Toxic Substances Control Act (TSCA), the heart of our chemical program, dead letter, "high risk of waste, fraud, abuse, and mismanagement," and grandfather of tens of thousands, soldiered on. Our psychological immune system has grown to handle these reports - we may not work a field, live near a plant, or subsist from a certain body of water. But in the nearly forty years since TSCA was enacted, much has changed that puts the lie to this sense of safety. Our ability to detect chemicals and track their movement in various media has improved, even as the etiology of certain diseases and why they might cluster prove stubborn. We recognize the sensitivity of vulnerable subpopulations, including children, to toxic exposure. And the Centers for Disease Control (CDC) and others are aware of new sites of contamination, toxic sinks that rival the dumps and fenced-off fields of old. It turns out that we are those sites.
The significance of these trends, and the role of Professor Ericson, Senator Lautenberg, and others in promoting them, is clear by the end of Toms River (2013), a masterful account of a residential cancer cluster that is unique because it has, by the terms of modern epidemiology, a known cause. The story begins in 1949, when dye makers, who learned to coax vivid colors from the carcinogenic constituents of coal tar, built a plant on a triangular, 1,350-acre parcel in the dense pine forests of New Jersey. Before they arrived, they perfected clandestine dumping along the Rhine, poisoned shallow wells in Basel, and fled rumors of bladder cancer among workers at facilities across Europe. In other words, they were ready to unleash hell.
But this is only one of the narratives that build and merge as decades of DIY pushpin mapping, incidence studies, and multi-million-dollar investigations of cancer clusters draw to a close in the central New Jersey town. You could say that the story also begins in 1527 (advent of the medical case history and case series reports), 1700 (Diseases of Workers and early industrial hygiene), 1775 (a cancer case is medically linked to pollution, or "soot"), 1837 (modern epidemiology emerges from a cholera epidemic), the 1840s (the dye industry takes hold), 1863 (The Malignant Neoplasms ushers in microscopic pathology), 1877 (first use of infectious disease epidemiology tools to confirm a cancer cluster), 1913 (a shift from observational to experimental cancer research touches off the search for carcinogens and yields a haiku: "Cancer was produced! Proudly I walk a few steps."), and 1950 (case-control, with its focus on lifestyle factors and attempt to remove chance as a confounding factor, becomes the gold standard of epidemiology). The science weaves its way through accounts of disease and the inexorable movement of toxic plumes toward the Parkway well field, where the town took much of its water.
The early environmental management antics of Toms River Chemical (later Ciba) and Union Carbide are on display, as are the regulatory blinders - slipshod county health surveys, a gap-filled cancer registry, slow testing that hid some results (e.g., radioactivity) and obscured others (e.g., which of 50,000 chemicals do we try to find?). In Toms River, a layer of purple sludge "doesn't exist" when it lacks one of the chemicals on a Superfund target list. A facility inspection is a nightmare endured as much as an enforcement activity: "The inspectors would climb down into the landfill pit and examine the drums up close...The stench was awful, and the drums, lined up in rows and lashed together by ropes, sat on a thick bed of jet-black sludge trucked over from the wastewater treatment plant." Agencies allow carcinogens to reach a public well field, so that they can run the contaminated water through a treatment system already in place. An old chicken farm, "a foul-smelling, snow-covered wasteland, with thousands of drums lying in open, muddy trenches near some abandoned trucks," sends a plume across miles and decades and bathes the book in existential terror.
Cancer clusters, whether real or random, are rarely noticed and even less likely to be studied. This was true in Toms River, even as the tragic stars aligned: identifiable sources of contamination, years of exposure to toxins that even included a tracer chemical (SAN trimer), and seven times the expected brain and nervous system cancers among young children. The providential turns and slow grinding of years that led to the completion of studies there are carefully documented in Toms River. But the key to the story lies in moments where threads of science, organizing, and bureacracy meet.
In one of those moments, we find Senator Lautenberg, sitting in a folding chair. The scene is a public presentation of the results of a case-control study. This was not a comprehensive look at the health of children in Toms River, by any stretch of the imagination. For one, science kept "arriving too late" to provide answers. Samples of Parkway well field water contained 261 "tentatively identified compounds," or TICs. They were not well understood by regulators. The National Toxicity Program began a bioassay for the toxicity of one of the compounds to assist in the Toms River investigation. The program was "not in the business of testing chemical mixtures." Its study drowned in complexity - one strain of rat was better for brain tumor testing but could not test for the appropriate leukemia, and Union Carbide gave the program only so much of the compound to test. Another study searched for biomarkers of disease in the blood of several dozen residents, but the science of molecular epidemiology was in its infancy and samples were taken years after the water contamination in Toms River peaked. This left the standard case-control, which over more than a hundred years grew to rely on interviews, expensive models of water distribution and air diffusion, and statistical tests. The state epidemiologist could not investigate all cancer types or all dates that were relevant to the town: the data, and the need to adhere to 95% confidence intervals, would not allow it. Still, the odds ratios that he calculated were high, particularly for prenatal exposure to Parkway well water. But the confidence interval fell below 1 for each odds ratio, except for one: leukemia risk among girls prenatally exposed. Senator Lautenberg was there when the results were presented in 2001. He heard the disappointment among mothers and fathers, and victims, whose stories were not embodied in the data and its analysis. He witnessed the vulnerability of children to toxic exposure, and the near-impossibility of linking even one of more than 150 different cancers to a cause after-the-fact. He knew about the promising use of biomarkers that, in Toms River, was still out of its depth. And he learned that one of the likely causes of childhood cancer in this part of his state was a chemical for which the government lacked basic toxicity data.
Lautenberg makes only two appearances in Toms River: at the presentation, and earlier to convince the state to use water filters at newly-contaminated wells. But his experience of Toms River seems to have become the DNA for several TSCA reform bills that he introduced in the years that followed. He sponsored the Kid Safe Chemicals Act in 2005, followed by several versions of the Safe Chemicals Act. Reading these bills, one cannot help but sense the influence of Toms River over their content. Much of the writing about the Safe Chemicals Act concerned how it would fix TSCA's major shortcomings: its burden of proof, safety standard (from "unreasonable risk" and its cost-benefit implications to "reasonable certainty of no harm"), standard of judicial review, and lack of testing for nearly all "existing" chemicals. But its text rails against more than TSCA. It also targets the broader forces that neutralize health claims in places like Toms River. Phil Brown and others dub this the "dominant epidemiological paradigm," which focuses on lifestyle factors and their statistical control, downplays the lived experience of disease, and ignores the structural and institutional factors that contribute to its onset. The groups that oppose it employ biomonitoring and personal exposure assessment, methods similar to those that the CDC uses to report on 212 chemical pollutants in our blood. The Safe Chemicals Act took steps to embrace this movement. It recognized aggregate and cumulative exposure, vulnerability, prenatal and early childhood health, and bioaccumulation, and encouraged the collection of biomonitoring data through a Children's Environmental Health Research Program. It went further. It called for EPA to identify and address twenty Toms Rivers, areas with disproportionate exposure to toxins. And it recognized our inability to link disease to toxins in widespread use, and introduced incentives to build the domestic green chemistry industry.
Which brings us back to this summer. "Safe chemicals" has given way to an effort to construct "chemical safety." A new bill, co-sponsored by Lautenberg, was referred to committee in May. "Unreasonable risk" and "substantial evidence" have returned, along with strong preemption of state programs and immunity from tort claims. But the bill is most breathtaking in its near-complete erasure of the lessons of Toms River, the prescience of Ericson's childhood health research, and Lautenberg's prior focus on the limits of modern epidemiology. The Chemical Safety Improvement Act of 2013 invites an eerie exercise. Read it. Compare it to the Safe Chemicals Act. Find the omissions: vulnerable subpopulations, aggregate and cumulative exposure, bioaccumulation, biomonitoring, and hot spots are gone or fail to play a meaningful role. What you find are concepts that, in other corners of government and recent requests for information, are considered best available science.
Friday, July 26, 2013
Cited in the Supreme Court: Stephanos Bibas
This is the sixth in a series on scholars cited this term in the U.S. Supreme Court.
Stephanos Bibas teaches criminal law and procedure at Penn.
Congratulations on being cited in the Supreme Court. What was the work and how was it used?
The article was Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 Yale L.J. 1097, 1123-32 (2001), the first big article I wrote, which was my job-talk paper while I was still on the entry-level teaching market. Justice Alito's dissent in Alleyne v. United States (U.S. 2013) cited it and two other scholarly articles to show that the historical evidence contradicted Apprendi v. New Jersey's supposedly originalist reading of the Sixth Amendment.
In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?
I always try to tackle questions of practical importance in an accessible form, so that courts and practitioners as well as scholars can use them. But I'm realistic. Not many judges or practitioners care much about scholarly articles, or even are aware of many of them, so I'm always pleasantly surprised when one of them finds and relies on my work.
Do you do anything in particular to share your work with practitioners?
Not particularly. After Oxford published my first book The Machinery of Criminal Justice, I guest-blogged about sections of it at The Volokh Conspiracy and Sentencing Law and Policy, and I've spun off ideas from it for First Things' website and National Review. I probably should do more of that, because blogs and aggregators are good ways to broaden an audience.What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?
I think the Chief Justice had a point. Now, many academics aren't trying to influence judges or lawyers directly but rather offering academic critiques. But I do think we've lost something in becoming so abstruse and theoretical that many of our articles no longer seem relevant to the practice of law. One of my scholarly ambitions is to bridge the chasm between theory and practice, to offer theoretical and policy critiques while remaining abreast of and relevant to what's happening on the ground. I also buy Orin Kerr's point that professors often don't have enough of a feel for the sweet spot between airy-fairy dreaming and just brass-tacks doctrine. It's helpful to offer a vision of the law that is coherent and theoretically grounded, yet restrained and practical enough that judges could plausibly implement it in the real world.
Are you happy with the way your work was used?
Yes, except that my work on the Apprendi line of cases never garners more than four votes on the Court! Justice Kennedy cited a piece by Doug Berman and me in his dissent in Cunningham v. California (U.S. 2007), and Justice Breyer repeatedly relied on my Yale piece in his dissent in Blakely v. Washington (U.S. 2004). In response, Justice Scalia's majority opinion in Blakely blasted me as "a law professor and former prosecutor," citing my AALS bio. I was not yet tenured then and quite happy to have the Justice attack me ad hominem so long as he spelled my name right (which he did).
What advice do you have for scholars who want their work to be influential in the courts?
Try to write pithy, quotable lines. Tackle timely topics that matter. Maybe send your work to litigants in pending cases raising your issue, or consider writing or assisting on an amicus brief to highlight how your argument might illuminate the Court's consideration of an issue. And don't dress up your insights in The Emperor's New Clothes of the latest abstruse interdisciplinary terminology--people see through that as just plain bad writing.
Did your family or colleagues do anything for you when the opinion case out?
No. A couple of circuit judges and practitioners I know congratulated me, but I no longer have to worry about tenure so it's not something I needed to trumpet. Besides, it's not as if the Court ultimately heeded me.What else you would you like to add?
Thanks for interviewing me! It's good to have this prompting to reflect on what we do and why.
My pleasure! Thanks for your insights.
More fan speech
Here. A fan attended a Brewers game at Miller Park wearing a shirt of Ryan Braun's uniform, with "Fraud" in place of the name. An usher made her turn the shirt inside-out, which she did. Although when she went to the media, the Brewers immediately apologized, invited her to another game, and threw the usher under the bus. And that was the right move--that shirt was unquestionably protected expression that should be encouraged at a forum such as a ballpark--what better place to speak out about cheating in baseball. Two other things.First, Miller Park is 71% owned by the government (the Southeast Wisconsin Professional Baseball Park District), so it is a prime candidate for my arguments that through joint participation, the team becomes, at least for ballpark purposes, a state actor subject to the First Amendment and its limitations.
Second, note the vacuousness of the Brewers' statement, which toes the common line on ballpark speech
We welcome the opportunity for fans to express their opinions. The only circumstances that would warrant us intervening is if someone were to display a message or item that would be considered offensive to other fans.
But every message potentially could be considered offensive to other fans. A friend of Ryan Braun or a member of his family easily would be offended by that shirt. Of course, that is not what the Brewers mean--that mean what they--as the governing authority--would consider offensive to other fans. But we don't allow the governing authority (when subject to the First Amendment) to decide what speech is OK and what is offensive.
The Sky Is Falling (Less Quickly). Yay!Good news from Erica Goode at the NYT. Third year in a row of declines in prison population across the country. Let's hope the conventional wisdom becomes a Bayesian updater.
Michelle Meyer en fuego (updated twice!)
I have deep affection for TNR (though I find the new regime prone to putting out more fluffy stuff in the magazine). What's more, I also like a lot of what I've read of Richard Thompson Ford's work before. But this non-correction correction is pretty embarrassing. Richard Thompson Ford's piece on the Zimmerman verdict was marred by some critical errors and inferences on the facts, which were brought to the editors' attention (and possibly his?), and I would think all the parties involved would want a real correction and not, as Michelle puts it ably, a correction that works a "double-down" on misleading information in a charged matter.
Oy, it just gets worse (again Jonathan H. Adler is on the case): "The article has been revised again. Now the statement reads: “Zimmerman was an edgy basket case with a gun who had called the police 46 times in 15 months.” This is still inaccurate, as the calls were made over several years, not 15 months. Moreover, the additional corrections are not noted in the editor’s note at the bottom."
Update 2: TNR editors have largely come to their senses. They have now further corrected the false facts entirely and acknowledged the stream of errors in the latest version, but they still leave in Ford's pejorative claims that Zimmerman was an "edgy basketcase," when the whole basis for that claim in the original sentence has been undermined. Maybe I'm wrong but a neighborhood watch guy who calls 46 times over 8 years is not, on those facts alone, enough to make him an "edgy basketcase." You'd have to be relying on other evidence, presumably from something else besides the night Trayvon Martin was unfortunately killed, to reach that inference.
Rage against the Infield Fly Rule
The Infield Fly Rule is back in the news and ticking off baseball fans, but this time because the umpires didn't call it. On Wednesday, the Minnesota Twins had runners on first and second with none out. The batter hit a low looping pop-up to the side of the pitcher's mound; the pitcher let the ball drop to the ground, then threw to first to start a double play on the batter and the runner on first (who had to be tagged out). Video here (H/T: One of my team of RAs looking at baseball games and reports looking for Infield Fly situations).
This certainly looks like a play warranting an infield fly call--it was a fair fly ball that could have been caught with ordinary effort in the appropriate game situation. And it did, in fact, lead to a double play (although not the double play the rule is designed to prevent), providing the defense the overwhelming advantage that the rule is intended to avoid. The crew chief explained the non-call as follows:
"For an infield fly, we look for if the ball has arc and if the fielder can catch it with ordinary effort and if the fielder gets comfortably underneath," said crew chief Ted Barrett, who was working third base. "That one definitely had enough arc, but the fielder has to get comfortably underneath the ball to catch it. That's the criteria that wasn't met."
Ironically, that explanation arguably makes the call worse. It looks as if the pitcher was standing still and waiting for the ball; he wasn't settled directly under it only because he already had decided to let it fall to the ground and wanted to be in good position to surround it and pick it up. The better explanation would have been that the ball did not have enough arc (the rule does not apply to line drives, so the umpires would have to decide whether this was more like a pop-up or line drive). If he truly wasn't settled under the ball, it's only because the ball wasn't hit high enough.As always, the play tells us some things. First, note the shorthand the umpires have developed for when a ball can be caught with ordinary effort. Neither the rule nor commentary says anything about arc or the fielder being settled under the ball, but the umpires have adopted those visual indicators as indications that a ball is catchable with ordinary effort.
Second, this play is an example of why the IFR is necessary. Without it, double plays on intentionally not caught pop-ups are possible (watch the runner on first and see how hung up he is and how he has to retreat close to the base) and that infielders will intentionally not catch the ball to try for the double play. True, this did not produce the double play the rule is designed to prevent; had the batter been running hard to first, he probably would have beaten the throw (he starts running hard only when he sees the ball drop). But look at the :06 mark of the video--both base runners are about two steps off the base; the pitcher easily could have turned around and start a third-to-second (1-5-4, if you're scoring at home) double play on the base runners. The point is that many double plays would be possible if fielders could seek out multiple outs by intentionally not catching an easily catchable ball.
Thursday, July 25, 2013
AALS Section on Federal Courts: Annual Award for Best Untenured Article
The AALS Section on Federal Courts is pleased to announce the second annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2014 AALS Annual Meeting in New York.
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2013 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2013), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School (email@example.com), Chair-Elect of the AALS Section on Federal Courts. Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2013. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Judith Resnik (Yale), and me, with the result announced at the Federal Courts section program at the 2014 AALS Annual Meeting.
The Voting Rights Act -- North Carolina Voter Suppression Edition
North Carolina is about to become less democratic.
The Republican-led legislature is poised to pass -- and the Republican Governor plans to sign -- the most restrictive voting regulations in the country. The proposed bill makes all sorts of changes to North Carolina's elections that will, ultimately, make it harder to vote. There's a new voter ID provision, which will be the toughest in the nation. The law takes away the ability of 16- and 17-year olds to pre-register to vote. It reduces the number of early voting days and prohibits counties from extending polling hours on Election Day due to extraordinary circumstances such as long lines. The bill, if passed, will have a tangible effect on who will be able to vote in North Carolina.
Although couched in terms of warding off voter fraud (even though there is little evidence of actual fraud that this law would eliminate), the proposed law goes against everything to which we should aspire in a democracy. States should have an obligation to make voting easier, not harder. It is not enough to make voting equal for everyone -- although this bill does not even meet that more modest test, as it will have a disparate impact on minorities and young people (read: those who are more likely to vote for Democrats). Instead, as I argue in a forthcoming symposium article in the Oklahoma Law Review (on SSRN soon!), the government should be required to make voting as easy as possible, subject only to reasonable economic, administrative, or other logistical constraints. Our democracy starts with the right to vote. Nothing happens – no one is elected, meaning that no laws are passed – until there is a valid election that includes all eligible citizens. This law would effectively take that right away from otherwise-eligible North Carolina citizens because it puts unnecessary obstacles between them and the polling booth.
The law is a sad outgrowth of the Supreme Court's decision last month to invalidate a portion of the Voting Rights Act. Previously, forty North Carolina counties were covered under Section 5 of the Voting Rights Act, which required those jurisdictions to seek preclearance from the federal government before enacting any voting changes. North Carolina would not have been able to pass this statewide law without approval from the Department of Justice or a federal court, and it would have had the burden of showing why the law was not discriminatory. Now there are no constraints to what is obviously a partisan-laden attempt to alter the election process at the expense of minorities and other disfavored groups.
Recent election law jurisprudence also suggests that the courts will be unlikely or unwilling to provide meaningful judicial relief. As I recounted earlier, one tacit message from recent Supreme Court case law is that states should have wider leeway to run their elections. Therefore, only narrow, piecemeal as-applied challenges to the law are likely to succeed, which will require detailed evidence of the actual burdens a voter has suffered. This might even require a voter to suffer that burden for at least one election cycle, infringing their right to vote in the process. The U.S. Supreme Court has implied that it will robustly trust the states to regulate the election process. North Carolina's actions demonstrate that this trust is misguided.
The irony here is that North Carolina's Constitution, like those of almost every other state but unlike the U.S. Constitution, explicitly grants the right to vote to its citizens. See N.C. Const. art. VI. Therefore, as I argue in a forthcoming article in the Vanderbilt Law Review, there should more protection for voting under state law, not less. North Carolina's proposed new law has it backward.
Wednesday, July 24, 2013
Petition: Save Federal Defender Services
[At the suggestion of a commenter on my last post, I offer this petition:]
Sequestration imperils the constitutional right of criminal defendants to adequate legal representation. About 90% of federal criminal defendants require court-appointed counsel. In FY 2013, sequestration resulted in a $52 million cut to Federal Defender Services, bringing massive layoffs and furloughs. It is estimated that in FY 2014, if nothing is done, FDS will be forced to terminate as many as one-third to one-half of employees.
Funding for prosecutors is apparently headed in the opposite direction. The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court. This radical imbalance threatens the fundamental right to counsel.
Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services.
Update: Thanks to all for the strong support so far. Please send me an email (firstname.lastname@example.org) with your name, institutional affiliation (if applicable), and city of residence. I will subsequently post a document with this petition and the names of signatories.
Associate Professor, University of Alabama School of Law
Things you ought to know if you're about to teach criminal law
I realized a few weeks ago that people may have forgotten about our pedagogical series, Things you ought to know if you teach X. Of course, I'm only now reminding you, and I hope it will be helpful for the group of rising professors among our readership, or for those undertaking new preps.
Oddly, we didn't have a criminal law version of this post, so I informally took a stab at drafting one for Facebook, and here's what I've got. I've appended some of the comments from fellow prawfs (without attribution) in the event that a few extra perspectives are helpful.
Dear Crim prof friends:
A friend who's a rising crim prof wants to know what she should know as she enters the legal academy and begins teaching crim/crim pro. Here's an opinionated stab at what I wrote her, but let me know what else you'd add in terms of conferences, resources, opinions about casebooks, etc.
So, for crim law's basic class, I'd highly recommend using the Dressler casebook. If you want to make casebook costs very cheap for your students I'd use the 5th edition. In the chapters I teach, there's basically no difference b/w the 5th and 6th edition, and that would make the cost go down substantially. That said, at the very least there will be a secondary market for the used 6th edition this fall so if that's enough, you could do that. With apologies to friends who have their own casebooks, I'll just say that I've never had a complaint about the Dressler casebook in teaching this casebook over ten times. Also, there's a very good teacher's manual, Dressler has a good hornbook, and there are lots of folks who can give you their notes/outlines,etc. Also, Joshua and Steve are very good about servicing the casebook meaning that they respond to emails quickly.
For crim pro, I teach only bail to jail and I used Marc Miller and Ron Wright's excellent book, Criminal Procedures, most of my career. Last year I experimented with the Allen/Stuntz casebook and I found it unsatisfying for reasons that it is a) too Supreme Court focused, b) too federal focused and c) here, i'll get in trouble, but I found it too Stuntzian in the embrace of perversity and fantasy in the interpretation of criminal procedure. (Yes, Bill was a prince of a guy, teacher and colleague; still, the work has largely been over-valued imho--sorry, friends). That said, it is probably easier to teach/test material from that casebook than the Miller and Wright one. Both have very good teacher's manuals and support from the casebook authors. Your choice on this matter should probably turn on whether you're interested in crim pro II as an extension of con law stuff, or whether you're interested in, you know, criminal procedure in all its legal and policy diversity. There are important and interesting reviews of these casebooks back in the day by Bob Weisberg and Stephanos Bibas.
Regarding intellectual networks: if you're interested in crim law theory, I co-run a colloquium up in nyc (usually at nyu) that meets once a month or so during the academic year and I can put you on that list. If you're interested in presenting crim-related papers, there's a shadow conference at Law and Society that Carissa Hessick and I run. There also used to be a junior crimprof workshop that met once a month. I'm not sure if that's still up and running.
There's a crimprof listserv: I think the way to get on it is by emailing Steve Sowle at Chi-Kent.
There's a crimprof blog you might want to bookmark:
And Doug Berman's sentencing law blog is indispensable too:
For reading generally, you might want to make sure you get the Ohio State Journal of Criminal Law, which is excellent, and consider perusing some other "specialty" peer-edited journals, such as the New Criminal law review, Punishment and Society, and Criminal Law and Philosophy.
From the FB thread: some people chimed in to say they agreed on Dressler, and liked Dressler's crim pro book with Thomas; others liked Paul Robinson's crim law casebook b/c of its emphasis on statutory interpretation; some liked Chemerinsky and Levinson for criminal procedure (my recollection is that this would be a heavily doctrinal scotus kind of book); and some liked Kadish/Schulhofer et al or Kaplan Weisberg for crim. I had heard complaints before about Kadish/Schulhofer as too dense but the revised editions seem quite good. The best advice is to order them all and see what fits your teaching priorities. The next tidbit: be leery of over-assigning. I only assign 20 pages or so per 80 minutes class. Better to do what you can well rather than over-reach and be scattered. Keep in mind that criminal law is a class that students have lots of priors about and so you want to make sure you can exploit that level of interest by having rich discussions rather than racing through the material. Of course, YMMV.
Please feel free to use the comments for signed and substantive contributions, especially with respect to criminal procedure (cops and robbers), which I've not taught and which might have other networks and nodes of which I'm scarcely aware.
Garnett on "The Freedom of the Church"
I've posted on SSRN a paper that I did for a wonderful conference, last Fall, at the University of San Diego's Institute for Law and Religion. on "The Freedom of Church." (Paul Horwitz's excellent paper, from the same conference, called "Freedom of the Church Without Romance," is available here.) I've been thinking, for several years now (starting, probably, with this article), about the (very old) idea of the "freedom of the church" -- its content, its justifications, its contemporary relevance, etc. Others have, too (and better), and this latest paper is an effort to respond, at least in part, to some of the important questions and challenges that have been raised, especially by Rich Schragger and Micah Schwartzman. Anyway, the paper is called "'The Freedom of the Church': (Towards) an Exposition, Translation, and Defense." Here is the abstract:
This Article was presented at a conference, and is part of a symposium, on the topic of "Freedom of the Church in the Modern Era." In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.
The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
Cross-Examinations Made for TV (Bulger trial edition)
The stuff of greatly amusing cross-examinations:
“When did you become attracted to your daughter?” he asked.
“She was my stepdaughter, please,” Mr. Flemmi responded.
“You said when you agreed to kill your stepdaughter, you said you did it reluctantly,” Mr. Brennan said.
“I agreed because I was coerced into it,” Mr. Flemmi answered. After a long pause, he added, “And Mr. Brennan, I didn’t kill her.”
Mr. Flemmi did recall that he had taken her shopping just before her murder.
“You thought the last moments of her life would be best spent shopping with you?” Mr. Brennan asked.
Mr. Brennan suggested it was particularly deceptive of Mr. Flemmi to have killed Ms. Davis and then pretend to her family that he was trying to help find her.
Mr. Flemmi said matter of factly that that deception was simply part of his attempt to cover up the crime.
“When you commit a murder, you don’t tell people about it, you try to cover it up,” Mr. Flemmi informed Mr. Brennan. “You should know that. You’re an attorney.”
Three short pieces (by lawprawfs) on Windsor in Commonweal
Commonweal magazine has posted short pieces by Michael Perry, Marc DeGirolami, and me commenting on various aspects of the Windsor and Perry decisions. The contribution of Michael Perry ("Right Decision, Wrong Reason") contends that the Court should not have relied on assertions regarding the "animus" behind or the bad motives driving DOMA and should instead have invalidated the challenged provision on the ground that it violates a general right to "moral freedom." The piece by me ("Worth Worrying About?") considers the implications for religious freedom of the line of reasoning in Justice Kennedy's Windsor opinion. And, in "Why Standing Matters," Marc DeGirolami explains (and defends) the Court's justiciability doctrines.
The fundamental flaw in the "Sneak and Peek" statute
So far I have argued that delayed notice searching raises Fourth Amendment issues. Now I want to look at the statute, and argue that it is a badly flawed approach to regulating covert searches.
Covert searching is an invasive search technique, and it should be reserved for cases when (as James Comey said) it “really, really matters.” The problem is that the statute allows police to get delayed notice authority whenever they want—not only when it is particularly important or necessary.
The practice of “sneak and peek” searching was first codified as part of the USA Patriot Act, in 18 U.S.C. § 3103a, which permits a delay in notice if a court “finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result,” as that term is defined in section 2705 of Title 18.
Section 2705, in turn, lists the following “adverse results”:
(A) endangering the life or physical safety of an individual;
(B) flight from prosecution;
(C) destruction of or tampering with evidence;
(D) intimidation of potential witnesses; or
(E) otherwise seriously jeopardizing an investigation . . . .
Sounds pretty reasonable. Sections (A)-(D) look at lot like “exigent circumstances,” which are a fairly well-established set of justifications in Fourth Amendment law to (1) conduct a search without a warrant, or (2) execute a search without knocking and announcing beforehand. I argued earlier that the “rule requiring notice” (aka the “knock and announce rule”) helps show why “sneak and peek” searching raises Fourth Amendment issues. Section 3103a, then, seems mostly (except for subsection (E)) to follow the exceptions to that “notice” rule.
The problem is that the “exigent circumstances” doctrine places no limitation on covert searching, but allows police to get delayed notice almost anytime they so choose. The “exigent circumstances” doctrine is simply the wrong tool for the job—it is a lock to which police always have the key.
When confronted with a request for a covert search, courts should be asking: “Why is it so important to do a covert search now, while the investigation is still ongoing, rather than a public search later, once you are ready to seize the evidence and arrest the suspects?” Sections 3103a and 2705 do not direct courts to that question.
Instead, the question implied by sections 3103a and 2705 is: “Assuming you conduct a search now but choose not to arrest anyone or seize the relevant evidence, will giving notice of the search likely lead to the destruction of evidence, escape of suspects, or otherwise seriously jeopardize the ongoing investigation?” Viewed this way, it is readily apparent that the answer will almost always be “yes.”
Consider an ordinary drug investigation. Police have probable cause that I have drugs in my house. They plan on arresting me next week, searching the house and seizing the drugs. They want to wait for a week and conduct some additional investigation and surveillance, hoping to identify my supplier. There is no pressing need to conduct a covert search of my house now, rather than waiting until next week.
Can police get a delayed notice search warrant under § 3103a? Probably so. If they enter my house today to look for drugs—but choose not to arrest me or seize any evidence—there is no doubt that giving me notice of the search will cause me to destroy evidence and, perhaps, try to leave the jurisdiction. The statute does not require police to show why it is important to conduct a covert search today, rather than waiting and doing an ordinary search next week.
We see this in cases. For example, in United States v. Christopher, 2009 WL 903764 (D. Virgin Islands March 31, 2009), a DEA Agent in St. Croix received a tip that a wooden shack, located on the property of Amobi Christopher, was being used to grow marijuana. On June 27, 2008, the agent obtained a delayed notice search warrant to permit a covert search of the shed, at night, and to delay notice for thirty days. In his affidavit, he explained that he sought delayed notice “to continue the investigation and to identify suspects.” He explained, “providing immediate notification of the execution of the warrant will cause the target subjects to destroy evidence and conceal themselves from law enforcement.”
Notice what is said and what is not said. There is no explanation for why a covert search of the shed was important or critical—because the statute does not require any such explanation. Instead, all that is needed is a statement that if the search is conducted (now), the suspects will likely destroy evidence or escape. Since that is true—as it is true in almost any case in which police elect not to seize all the evidence and arrest the suspects—a delayed notice search warrant is authorized by the statute.
The problem, then, is that the thing requested (a covert search) always, as a matter of logic, provides the necessary ingredients that satisfy the standard.
Next post: a solution to this problem.
Kerry Abrams: Cited in the Supreme Court
This is the fifth in a series on scholars cited this term in the U.S. Supreme Court.
Kerry Abrams, a graduate of Stanford Law School, writes about immigration, citizenship, constitutional law and family law.
Congratulations on being cited in the Supreme Court. What was the work and how was it used?
Justice Sotomayor cited my article, Plenary Power Preemption, 99 Va. L Rev. 601 (2013), in dissent in Mutual Pharmaceutical Co. v. Bartlett. The majority applied “impossibility preemption” to hold that federal law preempted a state design defect law that would have required a stricter warning label. Justice Sotomayor, joined by Justice Ginsburg, dissented, and cited my article for the proposition that impossibility preemption is rare, thereby characterizing the Court’s analysis as an unwarranted broadening of precedent.In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?
I do see the Court as a potential audience, although not the primary one. I write for lawyers, other law professors, litigants, legislators, voters, historians, political scientists, and cultural critics. I also think of students as an important audience, not only because they make publishing decisions but because their ideas about law are shaped by the articles they read and edit. I didn’t really think of the Supreme Court as the audience for the article Justice Sotomayor cited. That article was a response to the Arizona v. United States case the Court decided last year. I argued that even though the Court purported to be applying conflict preemption in striking down portions of Arizona’s immigration enforcement law, it was really applying a more robust form of foreign policy preemption that I dubbed “plenary power preemption.” I chose that name because I think that the preemption analysis the Court used draws on the plenary power doctrine, the doctrine that gives the executive and legislative branches of the federal government nearly unfettered discretion over immigration law. I was really trying to bring an immigration law perspective to a wider audience of lawyers and legal scholars who might want to better understand the interaction between traditional preemption doctrine and the unusual deference courts give to the political branches in the immigration context.
Do you do anything in particular to share your work with practitioners?
I try to post my articles on SSRN in a timely fashion, because I find that some practitioners use SSRN as a search engine when looking for novel arguments not yet available in case law. I frequently hear from litigants and practitioners with questions about my work, and it’s almost always because they read it on SSRN. I’m also guest-blogging this month on Concurring Opinions, focusing on the effects the Supreme Court’s recent Windsor decision could have on same-sex couples seeking immigration benefits. I’m hoping that short blog entries will create a different sort of conversation with a broader range of people than law review articles generally do.
What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?
I think that sentiment reflects a very narrow view of what legal scholarship is. It’s true that most courts would rather cite to case law than to an amicus brief or a law review article, but that doesn’t mean that legal scholarship doesn’t help to shape legal discourse. I think of scholarship as engagement with law as a whole, rather than a focus on an individual case. Consequently, it’s less likely to be useful in deciding a nuts-and-bolts case than it is for thinking about cases that test the margins of doctrine. I also think of teaching as a form of scholarship. I use my classroom as a sounding board for new ideas: my students’ reaction to what I say shapes my thinking, and my take on the law shapes their thinking as well. I’ve had many former students contact me wanting to talk through issues they are encountering in practice, and it’s always gratifying to see my vision for the law slowly making its way into the world.
Are you happy with the way your work was used?
Yes, I thought Justice Sotomayor had the better of the argument in Bartlett and was glad to be cited by her, even if in dissent. But, to tell the truth, the citation was a complete surprise to me. I had co-authored an amicus brief (arguing for a fundamental right to marry) in the Perry marriage equality case, and have written extensively on immigration, citizenship, and family law issues, so it wouldn’t have surprised me to be cited in a case related to my work. I wasn’t expecting to be cited in an FDA preemption case.
What advice do you have for scholars who want their work to be influential in the courts?
Read cases with an eye for what seems to be confusing or frustrating the judges. Law professors often spend so much time writing to each other and rehashing old debates that they miss the nagging problems that keep coming up in litigation or legislation.
Did your family or colleagues do anything for you when the opinion case out?
My husband and colleague, Brandon Garrett, was excited about it – maybe even more than I was! The law school tweeted about it and put it on the school’s Facebook page, and that generated some comments from former students I hadn’t heard from in a long time.
Tuesday, July 23, 2013
Could FACs induce retirement of government officials? A "Corruption" Work-around?
Btw, a couple weeks ago on FB (where all my random mental burps occur), I proposed a possible variation of our crowdfunded FAC model in the gov't context. Specifically, I wondered aloud: could a cabal of Soros and Gates and Bloomberg create a FAC (Fan Action Committee) to throw money at Justice Ginsburg (or her favorite charity) to retire from SCOTUS (so POTUS could appoint someone new presumably) without violating any laws?
We just saw Sec. J. Napolitano step down from DHS to head the UC system. So if Soros et al. couldn't offer RBG 20 million to retire, could he give her 20 million to join as a board member of Open Society to have tea with him once a year? There you at least have a peppercorn of consideration for the contract. Is that enough to circumvent the corruption statutes or relevant ethics rules? Would you give the same deal to get Michelle Bachman to leave Congress? The interesting wrinkle here is that unlike general corruption statutes governing improper quid pro quo of "official action" for $, this FAC-y scenario just requires $ in exchange for no "official action", ie, retirement. A couple friends thought scenarios of this sort would still be illegal, but I'm not sure I'm persuaded yet; if it's illegal at the federal level under extant law, could it be used at the state level? If you disagree with me, please cite chapter and verse on why! And file this in the "devilish and probably misguided idea" drawer.
Crisis in Federal Criminal Defense
Every indigent criminal defendant has a constitutional right to adequate legal representation. Sequestration has put that right in genuine peril. Federal defender offices are the most efficient, effective way to provide adequate counsel. They are being gutted.
In congressional testimony today, one federal defender warns that if action is not taken the program will be “devastated,” “irreparably harmed,” and “eviscerated.” In short, he concludes, the program is “on the brink of destruction.” Statement of Michael S. Nachmanoff Before the Judiciary Committee.This is not just self-interested hyperbole. A compelling story yesterday in the Huffington Post offered this grim assessment: “The public defender system hasn't just been stripped bare by sequestration, its bones have been chiseled away as well.” A few days ago, a New York Times editorial concluded that sequestration is “imperiling the delivery of effective legal representation to poor people accused of federal crimes.” .
Obama's and Holder's Objections to Profiling: Just Empty BS
If the President and Attorney General actually opposed racial profiling and discrimination in the criminal justice system, they could end much of it at the stroke of a pen. How about an executive order that all components of the U.S. government cease to follow Whren v. United States, 517 U.S. 806 (1996), holding that the Fourth Amendment does not prohibit searches or seizures based on race, or United States v. Brignoni-Ponce, 422 U.S. 873 (1975), holding that apparent Mexican ancestry can be used in the probable cause and reasonable suspicion calculus in immigration cases? See Kevin R. Johnson, How Racial Profiling Became the Law of the Land, 98 Geo L.J. 1005 (2010). The President and Attorney General could direct that race not be used in stops or investigations, that any officer using race be terminated, that no tainted evidence should be proffered by any component of the U.S. government, and that where such evidence is essential to a prosecution, deportation action, or other proceeding, it must be dismissed.
But they haven't. And they won't. Because this Administration finds racial profiling useful for immigration enforcement.
Nate Silver and the Hidden Genius of Capitalist Crowdfunding
After a long and difficult year personally, it gives me some quiet joy to announce that I've just uploaded a "shitty" first draft of Catalyzing Fans to SSRN. Actually, it's somewhat polished as a draft, but it's pre-submission, blissfully short (13,000 words) and, um, really interesting. Bonus: it has nothing to do with retributive justice. So, my co-authors, Mike McCann and Howard Wasserman, and I hope you'll read a draft and send along comments. Here's an overview:
Should Nate Silver have stayed at the New York Times, or instead go to ESPN? Where should Cass Sunstein teach? What team should Lebron James play on? In this paper, we have a proposal for how to think about the trilateral relationships among "talent" (Silver, Sunstein, James), teams (the NYT, the Miami Heat, Harvard), and fans. For some reason, the answers to where that talent should work are often only indirectly connected to the desires of third-party fans. We think this could be different.Specifically, we propose the development of Fan Action Committees (FACs).
Analogous to, but distinct from, Political Action Committees (PACs), these FACs would coordinate, aggregate, and monetize the intensity of fan preferences and would thus serve to either enrich "talent" directly, or, in a wrinkle we prefer, make contributions to charities favored by talent. If we're right about how fans could introduce crowdfunding as a way to re-configure that triangular relationship, well, it's a potential game-changer, if you'll pardon the pun. Once our paper lays out the architecture of the direct compensation and charitable models, we anticipate how to overcome obstacles to the development of FACs that may exist under current rules or laws. We also address a variety of policy concerns and objections ranging from considerations of competitive balance to distributive justice. Advancing and illuminating the possibility of FACs across pro team sports and commercial entertainment, journalists and academics, we show how crowdfunding options produce the potential for more efficient valuations of talent by registering not only the number of fans but also the intensity of their preferences. This insight, which stresses the upside of price discrimination, has relevance to a wide range of human endeavor. In short, the introduction of FACs can basically change the dynamic of any area where bilateral contracts have third party externalities that are not currently calibrated or adequately valued.
Btw, Howard, Mike and I began kicking this idea around last summer after I floated on FB something like the notion of fan interference, wondering why fans couldn't affect the Knicks' incentives to hire or retain Jeremy Lin in the midst of Linsanity. To transition this into a proper paper, however, I encountered the slight problem that I could not care less about sports or sports law, and knew zero about the area. So I enlisted my pals Mike and Howard -- two of the leading sports law guys in the country -- to write a paper with me about the law, policy and economics about fandom. The paper's come a long way from a facebook thread (which itself is a sort of crowd wisdom opportunity), and some of its most interesting moves and extensions come from conversations with prior readers at FSU and more recently the 10,000 Feet Legal Theory Workshop--so thanks to those folks! (The latter, btw, is a workshop that spontaneously emerged among the group of profs who went hiking with me in the afternoons while in the Rockies two weeks ago for the LEC's annual law and econ boot camp.) Anyway, we'll be sending it out soon, and, now that it's been gently road-tested, I'm sure any of us would be excited about the prospect of talking about it at your law school this coming year.
Monday, July 22, 2013
Heads I Win, Tails You Lose
In an unpublished decision earlier this month, the Fourth Circuit upheld the indefinite detention of a “sexually dangerous person” under the federal Adam Walsh Act. The respondent had argued that he was not actually dangerous, citing his admittedly low scores on actuarial risk instruments. The instruments are the most reliable indicators of risk. A high score is generally damning, but this decision suggests a one-way ratchet.
Citing a prior case, the court explained that every person is different, so experts also consider “age of the particular offender, his participation in treatment, his compliance with such treatment, his history of reoffending after treatment, and his commitment to controlling his deviant behavior.” Most instruments already include age and treatment is widely regarded as ineffective, so subjective consideration of such factors almost certainly weakens predictive power.
The unpublished decision gives too few facts for a detailed analysis, but the facts it does cite are not persuasive. No specific recent act of sexual violence is mentioned. Rather, the court gestures at the respondent’s attitudes and “conduct reflecting ongoing preoccupation with pedophilia.” I know the opinion is unpublished and the topic distasteful, but a man’s liberty should not be so lightly taken.
Eve Primus: Cited in the Supreme Court
Eve Brensike Primus is a Professor at the University of Michigan, where she attended law school. She clerked for Judge Reinhardt on the Ninth Circuit, and was a public defender in Maryland.
Congratulations on being cited in the Supreme Court. What was the work and how was it used?
The article is Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims, 92 Cornell L. Rev. 679 (2007). It was cited by the Supreme Court in Martinez v. Ryan for the proposition that many states have abbreviated deadlines for expanding a trial record before the first appeal as of right, which means that many defendants are unable to supplement their trial records in order to raise ineffective assistance of trial counsel claims on direct appeal. The Court relied on the article to explain why states often require defendants to wait until state collateral review proceedings to raise ineffective assistance of trial counsel claims. Of course, in the Martinez case, the Supreme Court held that states’ decisions to relegate IAC claims to collateral review had important implications for the scope of procedural default doctrine in later federal habeas proceedings.
In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?
When I write law reform articles, I try to appeal to many different audiences including state and federal courts, legislators, executive officials, and academics.
Do you do anything in particular to share your work with practitioners?
Sometimes, I publish shorter versions of my law reform ideas in journals that are distributed and read by more practitioners than the standard law review article. As a former public defender, I often reach out to my contacts in the public defender world and share my thoughts with them as well.
What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?
I think it is a real overstatement to say that it is useless to the legal system. Many scholars’ ideas on a subject evolve and develop as a result of the vibrant discussion that they have with other scholars in their publications. That back and forth has a way of crystallizing ideas and isolating the strengths and weaknesses of different positions in much the same way that opposing briefs do. Judges and law clerks read a lot of scholarship when thinking about how to resolve open legal questions. They might not cite everything that they read but I think that the ideas expressed in legal scholarship are important to their thought processes.
Are you happy with the way your work was used?
I am very happy that the Supreme Court was willing to recognize that states often make it impossible for defendants to raise challenges to their trial attorneys’ performance on direct appeal. All too often, the courts are not in touch with the realities of the criminal justice system on the ground so I am pleased that here the Court was willing to look at how things actually work. That said, I don’t agree with the Court’s conclusion that, as a result, it is desirable for many states to relegate these claims to collateral review. In my article, I argue for reforms that would make it easier to raise trial attorney ineffectiveness claims on direct appeal.
What advice do you have for scholars who want their work to be influential in the courts?
If you want to be influential, you have to address important legal subjects that courts are grappling with, write clearly and concisely, effectively communicate that you fully understand the legal landscape of where the doctrine currently is, and then provide a balanced, nuanced, and well-supported argument for why your proposed step forward is the right move to make.
Did your family or colleagues do anything for you when the opinion case out?
I got a bunch of congratulatory emails. One of my colleagues who had told me that I was crazy when I wrote the article came sheepishly into my office and said, “I stand corrected. Good for you.”
Saturday, July 20, 2013
Mea Culpa -- to a Point
Last night, after I scraped my ego off the floor and tried to block out the ad hominem comments, I went back and reviewed the testimony of neighbor and eyewitness John Good, initial police reports on George Zimmerman's demeanor and responses to questioning at the scene, Rachel Jeantel's testimony, etc.
I admit to being caught up in the emotion of the post-verdict moment, to wanting the facts to be other than they were, to being distracted by the sloppiness and ethically-questionable handling of the case by Angela Corey's office and -- perhaps most importantly -- by my years of defending young men of color who are regularly screwed by a system of justice that is deeply flawed.
I understand why the jury acquitted, I respect their decision, and *contrary to my earlier post* I would have been troubled -- based on the evidence presented -- if George Zimmerman had been convicted of the charges brought against him.
In other words, I was wrong.
Yet, the vicious tone of some of the comments, both here and elsewhere, saddens me. No, I am not "deranged." No, I am not lacking in "rational thought." I am sorry you were "appalled," "shocked," "horrified" or "disturbed" by my perspective. I am not sorry, however, to have shared what I repeatedly described as my "visceral" response to the verdict. I doubt I am the only law professor or public defender to have these reactions, and I don't regret initiating the discussion. In fact, from a pedagogical point of view, the thread and this postscript would provide a valuable teaching moment for law students to reflect upon.
Procedure of marriage equality, ctd.
If the wrangling over Prop 8 teaches us anything, it is that more students need to take Federal Courts and Remedies. In addition to the action filed by Prop 8 supporters in the California Supreme Court seeking clarification of the continued legal status of Prop 8, in light of another provision of state law requiring that state officials enforce state laws until there is a "definitive" decision invalidating the to-be-enforced law. Meanwhile, yesterday, the clerk-registrar of San Diego County filed his own petition seeking clarification, also arguing that, as an independently elected official, he is not bound by AG Kamala Harris' interpretation. (H/T: A commenter to my earlier Prop 8 post). The clerk asked the state court to stop the issuance of licenses to same-sex couples until a final determination (although the Supreme Court denied a similar request from Prop 8 supporters last week, so don't expect this one to have any more success). And the state's argument is that the Supreme Court should stay out of this altogether to avoid conflict with the federal court.
Has the state gone to the district court seeking to enjoin the state-court action under the "protect or effectuate its judgments" exception of the Anti-Injunction Act? And if not, why not? The state-court action, in part, functionally asks the court to interpret the scope and effect of the federal injunction (does it protect all couples? Does it apply to all officials in all counties)?, which seems like the district court's job. County officials (who have been working closely with Prop 8 supporters and similar organizations) have been very careful not to simply refuse to issue licenses, thus risking either a contempt citation in Hollingsworth or a new § 1983 action in which Hollingsworth might have either stare decisis or even (although less likely) preclusive effect. Clearly, they want to keep interpretation of the injuntion out of federal court, especially in light of the sense among many (including me) that the injunction is overbroad.
Of course, state-wide application depends on state officials (who were named as defendants) controlling unnamed county officials; faced with a motion under § 2283, might the district court have to certify that question back to the state supreme court? Or worse, abstain on a matter of ambiguous or complex state law?
Update: Kaimi Wenger (who was quoted in the linked article) expands on those comments. Kaimi discusses something I wanted to get into--whether the petition really is a request for procedural clarification or an act of conservative political theatre. He points out that the county clerk worked with a conservative religious organization and that the filing contains "broad social policy and political-usurpation language that seems extraneous to the procedural issues.' Actually, that complaint can be applied to the newspaper story itself, which intersperses discussions of the filing with heated rhetoric about the substance of marriage equality from both sides of the debate.
Friday, July 19, 2013
Bad Day for Reporter's Privilege in Leaks Invesitgations: 4th Circuit in US v. Sterling
As is by now well know, the Obama administration has initiated six Espionage Act prosecutions against government officials accused of leaking national security information, more than all previous administrations combined. One case was against Jeffrey Sterling, a former member of the CIA's Iran Task Force. The government suspected Sterling of being the source of an account in James Risen’s book “State of War” of a botched CIA attempt to sabotage Iranian nuclear research. The government subpoenaed Risen, contending his testimony was essential to prove the case against Sterling. The district judge quashed the government’s subpoena insofar as it required Risen to identify his source, U.S. v. Sterling, 818 F.Supp.2d 945 (E.D.Va. 2011), but the government appealed to the Fourth Circuit, claiming that without Risen’s testimony it would be impossible to continue the prosecution. The Fourth Circuit today reversed the district court’s holding that a First Amendment reporter’s privilege prevented Risen from being compelled to reveal his source. The majority opinion on this issue analyzed both Supreme Court precedent (Branzburg v. Hayes) and Fourth Circuit precedent and concluded:
There is no First Amendment testimonial privilege, absolute or
qualified, that protects a reporter from being compelled to testify by the
prosecution or the defense in criminal proceedings about criminal conduct that
the reporter personally witnessed or participated in, absent a showing of bad
faith, harassment, or other such non-legitimate motive, even though the
reporter promised confidentiality to his source.
Read the whole case here.
The court's conclusion was shaped by the fact that Risen's testimony was sought in a criminal case in which he had "direct information" about the "commission of a serious crime." The opinion stated: "Indeed, he can provide the only first-hand account of the commission of a most serious crime indicted by the grand jury--the illegal disclosure of classified, national security information by one who was entrusted by our government to protect national security, but who is charged with having endangered it instead." The majority emphasized that the public interest in "enforcing subpoenas issued to reporters in criminal proceedings" is compellling, given the public interest in "effective criminal investigation and prosecution," and the majority explicitly contrasted the lower public interest in enforcement of subpoenas to compel the testimony of reporters in civil cases.
The court also ruled out the existence of a federal common law privilege that would shield Rosen from having to testify. The court felt bound by precedent not to recognize the privilege, but stated it would not even if it were at liberty to do. Even if a privilege were available, "the common law would not extend so far as to protect illegal communications that took place between Risen and his source or sources in violation of the Espionage Act."
Finally, the court (dotting its i's and crossing its t's) showed that even if a qualified privilege were recognized, the privilege would be overcome in this case based on the strong need for Risen's information. Moreover, it suggested that Risen might have already waived the privilege by revealing the name of his source to a third-party.
I hope you'll read this opinion, which is an important word, but perhaps not the last, on whether the First Amendment allows reporters to protect confidential sources whose identities might be relevant to leaks investigations. As the number of leaks investigations continues to grow, and the government uses more creative tactics to deter leaks and uncover leakers, the effect of the Fourth Circuit's holding on the ability of journalists to uncover government wrongdoing may grow. The opinion also seems to suggest at points, though subtly, that Risen's own behavior was criminal, which again raises the issue whether the government might choose to prosecute reporters who knowingly receive illegally leaked classifed information.
This post is intended to be a brief summary of this important case, about which I hope to write more later. There's much more to this 118-page opinion, including additonal legal issues not addressed here.
The Slow-Moving Aftermath
Sparks from a golf cart. Faulty wires. A sleeping engineer. Illegal additions to a building. Vibrating machines. The past few months gave us a daunting parade of errors and human failings. West. Lac-Megantic. Dhaka. The accidents keep coming, but our ability to explain them has improved. We can even choose sides. Do we focus on structure or process? Do we view the burnt-out building as a victim of routine nonconformity or tight coupling? Was its owner accident-prone, or did it lack a commitment to resilience? Some of the giants in the field strive to reconcile these views, stretching out the moments that led to an accident over dozens or hundreds of pages. Quantity is joined with novelty. Culture is expressed within, or outside of structure. Environmental strain triggers internal pathology. The theorist moves from the site of destruction to link facility to organization to social order. Important questions flow from this evolution: Was the accident foreseeable? Can we learn from it, or avoid its return? We've grown skilled at sequencing the complex and often gradual causes of accidents.
Sometimes these events reach a threshold, and our meager theories hit a wall. What happens may be too large, unexpected, public, or costly to be considered an accident. The events are too dramatic. There is too much loss. Normal experience does not account for such entropy. Rips appear in the social fabric. We find ourselves coping not with an accident, but a disaster. The boundary between the two can be blurry. Once we pass it, there are qualitative differences, and new limits to our understanding. One such limit is revealed in a major work by Richard Samuels on The Great Eastern Japan Disaster, or 3.11 (2013). The book is an exhaustive account of how an earthquake, tsunami, and nuclear meltdown impacted a nation's discourse. By virtue of their scale, shock, and social resonance, disasters such as 3.11 are far more open-ended than accidents. This is true in terms of their systemic causes, which blue-ribbon commissions and investigative boards reconstruct. But it is also true in terms of the range of narratives that people wield in their wake. 3.11 suggests that while disasters test our ability to piece together fragments of broken systems to explain what happened, we may be even less able to tell how they contribute to institutional change. It invites us to view recent disasters in places such as West, Texas, the Rana Plaza complex in Bangladesh, and a small town outside of Quebec in a new light.
If ever we would expect a disaster to lead to dramatic change, it would be a "civilization disaster," a "failure of modernity" such as 3.11. The book pursues this notion. It tracks the narratives that arose after a tsunami claimed 20,000 lives, erased 70,000 homes, and led to meltdowns that bathed an area in the radiation of untold Hiroshimas. Policy entrepreneurs emerged and pursued change through a variety of narratives and tropes. The narratives touched upon security, energy policy, and governance. Each used the disaster to frame problems, interpret causes, and render moral judgment. As prescriptive narratives, they tilted in three directions. Some called for "vigorous, forward-leaning" response. These included fundamental, qualitative change to institutions such as the electric power industry and Japan's self-defense forces. Others demanded that existing institutions be undone. Still others asked that the nation "stay the course" and make only quantitative adjustments to existing institutions. The latter framed 3.11 in terms of soteigai, or "the unimaginable": events that could not be mitigated through planning. Those with an interest in the status quo, such as TEPCO, which operated the Fukushima Daiichi complex, asked, "To what extent can we burden ratepayers to prepare for disasters that occur only every several hundred years and that considerably exceed in scale what the nation has foreseen?" The narrative battles raged. Yet for all the talk of new alliance dynamics, nonmilitary disaster forces, the elimination of prefectures, and an end to the "nuclear village," the "stay the course" narrative prevailed in each policy arena. 3.11 ends with admittedly provisional findings two years on, but they are sobering nonetheless: The Great Eastern Japan Disaster was not a "game-changer," it "did not cause structural change to the Japanese body politic," and piecemeal reforms that were adopted had already been underway. Change was "incremental," not institutional.
Here is the lesson for the social theorist and the disaster law scholar: we need to broaden our view of the relationship between disasters and institutional change. We can be too enamored with the critical juncture. We look for institutions to arise or change after we experience an exogenous shock. These moments lead to increased pressures for change, unite previously ineffectual groups, divide elites, ease constraints, and allow actors to import new institutional fragments. The focus on critical junctures stems from our traditional view of institutions: as relatively persistent and self-reproducing. The "enduring institution" informs a number of concepts in social theory, from isomorphism to lock-in to increasing returns. When we see change this way, as brief periods of disorder and action that disrupt much longer periods of stability, we focus too much attention on the critical juncture. The lack of dramatic institutional change after disasters such as 3.11 surprises us. But there is another way to view the post-disaster period, one that may prove useful across settings and cultures. While disasters are certainly able to disrupt stable institutions, they also occur in the context of gradual institutional change. Mahoney and Thelen's work, which informs the story of 3.11, is at the vanguard of this theoretical shift. Ambiguity abounds in their approach. They focus on struggles over meaning, application, and compliance that lead to gradual change through the displacement, layering, drift, and conversion of institutions. The result is a powerful set of causal propositions that link political context, characteristics of institutions, and different change agents to outcomes. 3.11 hints at how this framework can explain the slow-moving aftermath of disasters.
Far from abandoning critical junctures, our sense of the links between disaster and gradual change can strengthen our ability to explain them. Capoccia and Kelemen summarize the research on critical junctures, and show that we're a long way from understanding them. We need to better specify their units of analysis and why more often than not they lead to "near-misses" rather than change. But even with the conceptual work that has already been done, we can begin to stretch out the narratives that arise, overlap, and vanish after a disaster, as we once learned to scrutinize the "incubation periods" that set them in motion. We can ask which agents of change use a given narrative. We can study the institutions that are at stake and their sources of ambiguity, from their implicit assumptions to their layering and use in new settings. We can determine the sources of gradual change that were already underway - the neglect of old rules, the shifts in how institutions are interpreted and applied. The aim is to develop a more sophisticated understanding of how disasters dislodge, redirect, or adjust the pace of gradual change.
This theory-building will take time. The summer's tragic events invite us to get started. Some of them had relatively simple causes. For example, the explosion at Adair Grain's fertilizer storage and distribution facility that wiped out the center of West, Texas took place in April. Within weeks, we heard of three possible causes, even as the Chemical Safety Board and Bureau of Alcohol, Tobacco, and Firearms jostled for control over the site. The same can be said for the garment factory collapse that claimed over 1,100 lives in Dhaka, Bangladesh, or the runaway tanker cars that exploded in Lac-Megantic "like a yellow mushroom cloud," destroyed the center of town, sent a "wave" of crude oil into a river, lake, and storm sewers, and burned for more than a day. The legacy of each disaster remains far more indeterminate, and the narratives, and their targeted institutions, are piling up. They are remarkably diverse. Here is a sample of the narratives that explain the events in West, Texas: (1) a failure of oversight due to lack of resources (e.g., the last OSHA inspection took place in 1985; OSHA can inspect each facility once every 129 years); (2) a "chain reaction" of exemptions and less stringent standards (e.g., an OSHA process safety management retail exemption leads to streamlined attention under EPA's risk management plan program); (3) a lack of information sharing among state agencies (e.g., fire or explosion threats were viewed as beyond TCEQ's focus on "emissions" and not shared with other regulators); (4) a wave of criminal activity at certain kinds of chemical plants that threatens national security (e.g., regular theft of ammonia from the facility to cook methamphetamine; interference with tank valves causes leaks and spills; sparse security); (5) a range of voluntary safety codes and best practices that do not filter down to small, remote facilities (e.g., NFPA 400 "requirements," including those aimed at reducing the risk that a fire will cause an explosion, are voluntary if not adopted by state or local governments); (6) a worldwide effort to ban the use of pure ammonium nitrate in fertilizer that is ignored by companies in several U.S. states (e.g., the Department of Defense encourages foreign governments to police their fertilizer products after calcium ammonium nitrate from Pakistan's Fatima Group is found in improvised explosive devices in Iraq); and (7) a regular attempt post-9/11 to require companies to investigate inherently safer design under federal law that failed.
A similar array of narratives builds in Canada and Bangladesh. Outside of Quebec, a sleeping engineer either improperly applied the brakes or released them when he shut down a locomotive for the evening. But the 72 tanker cars, which carried oil from the Bakken formation in North Dakota, are now the locus of debates over unconventional fuels, fracking, the comparative safety of pipeline and rail transport, Canada's inability to handle dramatic shifts in energy sources and its lack of a comprehensive energy policy, the pace of the shale boom and its strain on infrastructure, urban oil shipments and the opaque use of computer models to route them, and the rise of single-commodity rather than mixed freight and its attendant risks. The narratives that build in and around Dhaka are even more diverse, considering the scale of the tragedy, the country's ancient legal code, the near-uniformity of fire and safety shorfalls at its 4,000 garment factories, the regularity of factory fire deaths in the country, dueling multinational responses and accords, and the social movements that press for workplace safety and women's rights. Teasing apart the influence of these narratives on institutional change will require innovations in longitudinal and comparative case methods. But the slow-moving aftermath of disaster demands, and promises to reward, our sustained attention.
Anxiety on the Tenure Track: What YOU Can Do
Drexel Law Professor Lisa McElroy has an important piece on Slate.com (here) dealing with her struggles with anxiety while on the tenure track. Anxiety while untenured is common, indeed almost unavoidable, but Lisa's essay is about the hidden toll her severe anxiety disorder imposed on her during the already stressful tenure process. She tells her story to help others in her situation have the courage to get the help they need and to start the process of breaking down the stigma attached to mental illness. Another benefit, she notes, is allowing herself to finally be known by those around her, to be who she truly is. Her essay reminds us all that our friends and acquaintances and, yes, colleagues--even those who are tremendously accomplished by all objective measures--are often carrying heavy burdens that we know nothing about. We should do what we can to alleviate their suffering and not let fear prevent us from getting help to alleviate our own.
Kentucky Legal Education Opportunity (KLEO)
I am honored to have just completed teaching the first week of the KLEO Summer Institute here at the University of Kentucky College of Law. Because this program is so innovative, I thought I would share a little bit about it with the Prawfs community.
The Kentucky Legal Education Opportunity (KLEO) Summer Institute is a program the three Kentucky law schools have run since 2003. It helps to prepare students from low-income, minority, and disadvantaged backgrounds for the rigors of law school they are about to encounter. Specifically, five incoming students from each of the three Kentucky law schools (UK, University of Louisville, and Northern Kentucky-Chase) participate in a two-week residential program that introduces them to law school. They take mini-courses on Legal Research and Writing, Criminal Procedure, and Civil Procedure. They have a final exam at the end of the substantive classes and receive feedback on their exams from the professors. The students also shadow a lawyer for a day, have lunch with the Kentucky Supreme Court and other judges, and listen to various panels on issues such as diversity, alternative career paths, substance abuse, and academic success, among others. As a reward, they receive a $5,000 scholarship for their first year of law school.
It is amazing to see these students, many who are the first in their families to go to college, embrace law school in the summer even before it starts. They are dedicated and engaged, and they represent the best of what we hope to accomplish in providing a legal education. Most are going to law school because they want to give back to their communities, which are often disadvantaged but also have brought them to this moment in their lives. And they are so grateful for the "leg up" they receive during this two week program.
Do other states or schools have something similar? I'd love to hear about others' experiences.
Thursday, July 18, 2013
One year ago at an Aurora, Colorado movie theater, James Holmes went on a shooting spree, killing 12 and wounding 70. His lawyers say he was “in the throes of a psychotic episode,” but details remain unknown. http://www.huffingtonpost.com/2013/07/18/james-holmes_n_3617441.html.
My Spring 2013 article at 48 Wake Forest L. Rev. 1 begins with the Aurora shooting. It is titled, “Do the Mentally Ill Have a Right to Bear Arms?,” but a more accurate title might be, “Would restricting gun possession by the mentally ill prevent more murders or more suicides?” The perhaps surprising answer is almost certainly suicides. www.papers.ssrn.com/sol3/papers.cfm?abstract_id=2146767.
Sneak and Peek, founding-era history
The case for subjecting sneak and peek searches to Fourth Amendment scrutiny does not rest only on claims about Fourth Amendment first principles. Today: history and doctrine.
In assessing modern surveillance technologies, the history of search and seizure at the time of the founding often provides little help—there were no wires worth tapping, let alone digital packets to seize.
But covert searching is another story—there’s no technological reason that a Massachusetts magistrate couldn’t have issued a delayed notice search warrant in 1791. And the Supreme Court has told us (not always consistently) that “[i]n determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve.” Virginia v. Moore, 553 U.S. 164, 168 (2008).
So I looked. There was no such thing as a delayed notice search warrant circa 1791. No court mentions the concept of a search warrant authorizing covert entry. None of the key historical work, like that of Thomas Davies or William Cuddihy, makes mention of any such thing.
Does that mean the Fourth Amendment prohibits delayed notice search warrants—that they are categorically "unreasonable"? I don’t think so. When confronted by a silent historical record, a good first question is whether the practice in question “could have been raised by the founders—was thinkable in their conceptual world.”
In one sense, the founders could have thought up the idea of a covert search. But there’s no evidence that they ever contemplated—either pro or con—the idea of a warrant authorizing covert entry and delayed notice. Why not?
There were no joint task forces in 1791. There weren’t even any police departments. There were no professional police conducting forward-looking, complex criminal investigations. Also, most searching was looking for the thing itself—the untaxed molasses, the libelous pamphlet, the dead body—not for secondary evidence from which one might inferentially build a case. There was no forensic evidence collection.
In short, there were no delayed notice search warrants in 1791 because nobody had thought to ask for one.
This does, at the very least, put the lie to Senator Orrin Hatch’s fuzzy claim (defending section 3103a) that delayed notice search warrants have been upheld as constitutional “from the beginning of this country; some will say from the beginning of this country.” I appreciate the waffling “some will say.” I have not found anybody saying that except for Senator Hatch.
Can we draw anything relevant here from the founding-era history? Yes: the basic principle that absent some special justification, persons conducting a search had to notify the occupants of the search and demand entry. Today we always call this the “knock and announce” rule, and that makes it sound like a rule that probably has nothing to do with delayed notice search warrants. And indeed so courts have assumed—no court analyzing delayed notice search warrants has ever even so much as cited Wilson v. Arkansas, the 1996 Supreme Court case which many describe as holding that the “knock and announce” rule is part of the Fourth Amendment.
Wilson, a unanimous decision written by Justice Thomas, grounds its holding in history—thoroughly documenting the many founding-era (and earlier) decisions holding that searchers much announce their presence and demand entry before breaking down the door. None of these early decisions refer to this common law doctrine as the “knock and announce” rule. They call it various things, almost always centering on the concept of “notice.” One Connecticut case (from 1822) calls it the “rule requiring notice.”
In a sense, a sneak and peek search is just an extreme version of a no-knock search, with the "notice" being delayed for weeks or months rather than minutes.
The “rule requiring notice”—now that sounds like a rule that might be relevant to delayed notice search warrants. The “rule requiring notice” does have its exceptions, though, so even if you are convinced that delayed notice search warrants are subject to this Fourth Amendment rule, that does not mean the practice is categorically forbidden by the Fourth Amendment.
 Jefferson Powell, Rules for Originalists, 73 Va. L. Rev. 659, 671 (1987).
 147 Cong. Rec. S10990-02, S11023 (Oct. 25, 2001).
Is there a Case Against Angela Corey?
So much has been written about the Zimmerman verdict that I was reluctant to join the fray, but I've decided to do just that, having found few extended discussions of the prosecutor's mishandling of the case, the bizarre nature of her press conference, and whether any ethics violations could potentially be brought against her with the Florida Bar.
First, as others have written, the prosecution -- led by controversial veteran Angela Corey -- did a lousy job. But, given the many years of trial experience of the lawyers for the state, the types of errors they made have struck me as more than just the result of mere sloppiness or oversights. Isn't one of the most basic lessons of first year trial advocacy to prepare your witnesses? How could it be that the state in a high-profile murder prosecution allows a critical "ear witness" to the incident, Rachel Jeantel, to testify with so little obvious preparation? How could it be that the state could allow their medical examiner, Dr. Shiping Bao, to testify in such an confusing, halting, and ill-prepared manner (particularly under cross-examination) -- not to mention the contrast between his shaky performance and that of the defense's smooth and confident forensic pathologist, Dr. Vincent Di Maio?
Much has been said about the charges Corey's office brought against George Zimmerman, but indulge me by considering them again. Why on earth would the DA bring second degree murder charges after a six week investigation in which the police concluded that the suspect had legitimate grounds for a justifiable homicide defense? Even if Corey had disagreed with their estimation, she should have known that the investigating officers would fight tooth and nail on the stand to support their initial analysis of the evidence -- particularly given that she and her colleagues were "special" prosecutors appointed from another county and, therefore, had no history or relationship with these cops? Also, why not just charge manslaughter from the outset, thereby shifting the prosecution's focus from the nearly impossible-to-prove (given the evidence), "hate in his heart," to the more palatable, "reckless actions that led unfortunately to a death"? In fact, why not give the state the cover provided by first presenting the case to a grand jury, rather than proceeding by means of criminal information and a bare bones probable cause affidavit?
Yes, I used the term "performance" when describing the witness testimony, as every litigator knows that trials are more akin to theater than to an actual search for the truth. Your witnesses must know their lines, maintain the right affect, and have the preferred style of delivery. Not only do you prepare them for direct examination by rehearsing the questions you intend to ask and the answers you expect them to offer, but you bring in another lawyer to conduct a moot cross-examination, so that they are ready and confident before facing the other side. I find it difficult to believe that this actually happened in the state's case. And, if it did not, what was the reason? Lack of time, motivation, concern? If so, could any of these serve as the basis for an ethical violation against Corey and her associates?
Related to this point is the failure of the prosecution team to anticipate and thereby counter the age-old defense strategy of putting the victim on trial. It should have been no surprise that Zimmerman's lawyers would urge the jury to put themselves in their client's shoes and view the scenario from his perspective (Scary black male wearing hoodie! Threatening presence in the neighborhood! And he was high on weed!). Why did the prosecution make this even easier for the defense by readily admitting into evidence Zimmerman's statements as well as the VIDEO of him at the station house when he walks the detective through his seemingly reasonable version of events? Why not keep that out and try to force the defense to put Zimmerman on the stand to get these exculpatory facts into evidence? Similarly, what of Zimmerman's completely self-serving claim that Trayvon Martin told him, "You're going to die tonight"? Does this have any ring of truth to it? And if not, why not make the defendant take the stand to assert it himself, when the state could then cross-examine him?
I was perplexed by all of this, gravely disappointed though not surprised by the acquittal, and then I watched Angela Corey's surreal press conference following the verdict First of all, what of her smile? Why is she smiling when the defendant was found not guilty? She claims that she has "brought out the truth on behalf of Trayvon Martin." If she believed in the prosecution, in the commission of second degree murder by George Zimmerman, how was the truth brought out? She is proud to be part of the "historical aspect of the case." What makes it historical from her perspective -- the degree of press attention? She says that the jury has carefully "gone over all the facts and circumstances," has worked "very hard," and rendered a just verdict. And then she admits to reporters that she has not yet spoken with Trayvon Martin's parents or family but immediately made herself available to the media. It just doesn't add up.
Where does this leave the Martin family? It seems unlikely that there will be a federal prosecution of Zimmerman on different criminal charges, and as for civil rights charges, proving racial animus via the Hate Crimes Prevention Act would be extremely difficult. A wrongful death civil suit against Zimmerman is another possibility, though despite the lower standard of proof and likelihood that Zimmerman would have to testify, if he wins his hearing under the Stand Your Ground law, he'd be immune from civil action.
All of which brings me to Angela Corey and her future as a state prosecutor. Rule 4-3.8 of the Rules of Professional Responsibility regulating the Florida Bar calls for prosecutors to adhere to the following:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) not seek to obtain from an unrepresented accused a waiver of important pre-trial rights such as a right to a preliminary hearing;
(c) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
From what I've read, it does not appear that (b) or (c) apply, but could subsection (a) be provable against Corey? If not, is there any redress under any of the other Rules? Is there any equivalent of ineffective assistance of counsel by the prosecution?
I acknowledge that this may seem to be a strange inquiry coming from a criminal defense lawyer, but I'm not convinced that if the prosecution had been handled differently, the verdict would have been the same. Trials are crap shoots, as there are so many unknowns, but they are crap shoots in which the skill of the gambler does matter. The state of Florida was clearly out-lawyered in this case, which is always possible in a jury trial. What troubles me is that it almost seemed too easy for the defense, as though the other side had decided to throw the game . . . and that's not a fair or just result for anyone.
Your thoughts? Please share in the comments.
Wednesday, July 17, 2013
Intellectual Humor for a Wednesday
Apparantly inspired by a Reddit thread, the interwebs have been alive with intellectual (or geeky or nerdy) jokes. Check out the video after the jump and the Mirror Online (with explanations). The Mirror even includes a sort-of law joke:
Q: What do you call two crows on a branch?
A: Attempted murder
Let them wear towels
Last night, ESPN premiered Let Them Wear Towels, the third in its Nine for IX documentary series (nine films, all by female directors, marking the 40th anniversary of Title IX). Directed by Annie Sundberg and Ricki Stern, the film examines the experiences of the first generation of female sportswriters and their efforts to get equal access to lockerrooms and to post-game interviews with players. This one has a lot of law to it. For one thing, many of the early women sportswriters got those jobs because many of the major news outlets (including The New York Times, Washington Post, and Newsday) had been sued for employment discrimination and were looking to hire female sportswriters. The film also discusses Melissa Ludtke's successful 1978 lawsuit challenging Major League Baseball's exclusion of women from clubhouses as applied to Yankee Stadium,* which somewhat started the slow move toward league-wide equal-access policies in all four major sports.
* The district court found that MLB and the Yankees acted under color of law, because New York City owned the old Yankee Stadium. This decision is a big part of my arguments about the First Amendment rights of fans at publicly financed ballparks.
The film closes with the story of Lisa Olson, who in 1990 was sexually harassed by several players in the New England Patriots lockerroom, then suffered public harassment and vilification that pushed her to move out of the country for six years. The film's presentation of the Olson case illustrates something about the evolution of social movements. [ED: One TV critic argued that they should have built the film around Olson]. The early cohort of women reporters, who are the main subjects of the film, talk about turning a blind eye and deaf ear to offensive behavior. For them and their period of the mid-'70s to mid-'80s, the goal was simply access and getting inside the lockerroom so they could do their jobs; lewd comments and actions were the cost of that access. Olson's story is the second wave of the movement--having been granted access (a given by 1990), the demand was for a certain minimum level of behavior and treatment when they were there.
The one other thing I would have liked to have seen was some update on the views of the men who strongly opposed women's access back in the day--do they still hold to what they said 30 years ago or are they embarassed by it? Several of them are dead (former baseball commissioner Bowie Kuhn, former Patriots owner Robert Kraft Victor Kiam, whose public comments exacerbated the Olson situation). ESPN does have a short companion film in which male journalists and athletes of that era talk about the past and come across as largely supportive.
Tuesday, July 16, 2013
A Not Quite Post-Script on Zimmerman, etc.
Interesting exchange I though I'd share. I just rec'd an email from a stranger (to me):
You write here - - that "I fear that if the races had been turned around, we might have a different verdict."
Why, given the evidence presented, the law, the jury instructions, etc., do you have this fear? Is there a scintilla of evidence that the jury, in its deliberations, was influenced by considerations of race in any way?
Thanks for writing (respectfully!).
My sense is that there likely were some subtle racial dynamics as to what prompted GZ's suspicions. I doubt that if TM had been white, GZ would have bothered to call. If GZ had been black and shot a TM who were white, I could see the possibility of conviction going up, even if the same evidence were there. I regret that's the world in which I harbor that concern.
Still, in this case, I think it would be a serious injustice to alter the verdict just because of the risk that injustice elsewhere could erupt. My point, modestly, was that one can't fix other injustices by doing an injustice in this case.
My correspondent wrote back:
Thanks for your quick -- and equally respectful -- response.
1) Re: GZ being suspicious if TM had been white: This is a bedrock assumption -- I don't think there's much evidence on the issue one way or the other -- which I don't share, but let's assume it anyway.
2) The jury seemed to be meticulous (14 hours of deliberation, etc.). According to the juror interviewed on CNN, at first, 3 jurors wanted to convict GZ "of something." But, based on the evidence presented and the "options we were given," acquittal was the only decision, in the end. I very much doubt that this jury would have acted any differently had TM been white/GZ been black. Also bear in mind that white guilt, as well as white racism, can play a role. But this is just my opinion.
At this point, it seems, we are in the realm of speculation and sociology, so I don't have much more to add than my first response. But I thought it was an interesting exchange, and I'm sure some of our readers would have more vigorous responses and reactions.
Update: I have since learned (h/t to Adler on FB and Bernstein below) that I may have been leaping to judgments re: my speculation about Zimmerman's reticence to call in suspicious non-blacks. He has a history of calling in a range of people, including fellow Hispanics, and he's also made calls, from what I understand, designed to ensure the wellbeing of young black children. I'm grateful for the information--obviously, I can't verify it myself, but if it's true, the information seems relevant about what kinds of speculations are warranted in race-switching scenarios.
JOTWELL: Yung on Oldfather, et al., on research methodologyThe latest essay on JOTWELL's CourtsLaw is from Corey Yung, reviewing Chad Oldfather, Joseph Bockhorst, and Brian Dimmer, Triangulating Judicial Responsiveness: Automated Content Analysis, Judicial Opinions, and the Methodology of Legal Scholarship. Yung focuses in particular on the aiuthors' unique computer-based research methodology.
Much Worse than Making Sausages
When I first moved to North Carolina nine years ago, I remember being shocked when I learned that juvenile court jurisdiction ended at age 16 for all purposes and with no exceptions. This means that if your 16-year-old son or daughter were to intentionally push another kid in the hallway of a public school with a zero tolerance policy, the school resource officer (SRO) could bring assault charges against them in adult criminal court. I know because I have represented young people facing this very scenario.
It also means that the collateral consequences of a criminal charge and conviction are potentially borne by every 16 and 17 year old alleged to have violated a criminal offense -- misdemeanor or felony -- regardless of their criminal history, the nature of the injury or harm (if any), personal circumstances, etc. As you know, a criminal record makes it harder to get a job, to get accepted into college, to receive financial aid, to be licenced in such professions as nursing, and to become a naturalized citizen of the United States. 16 and 17 year olds held in adult prisons are more likely to be raped, assaulted, and to commit suicide than are adult offenders.
North Carolina is the only state in the country to have such harsh jurisdictional age caps. One other state ends juvenile court jurisdiction at age 16 -- New York -- which, unlike North Carolina, has mechanisms for "reverse waiver" or removal of a case from criminal court to juvenile court under specified circumstances. About ten states cap jurisdiction at 17, and the remainder -- the vast majority -- end it at 18. The numbers of teenagers impacted are significant -- over 65K 16 and 17 year olds are processed in the criminal courts of North Carolina each year, about 26K of whom are only 16. Stats show that only four percent of this cohort are convicted annually of felonies against people, with the remainder being property crimes or misdemeanors.I thought about all of this the other day when reading that Illinois raised the cap on its juvenile court jurisdiction from 17 to 18, thereby joining the majority. The governor and the bipartisan contingent that supported the bill recognized its value -- that by giving original jurisdiction over all minors to the juvenile court, those who are amenable to its rehabilitative offerings will not be saddled with the burdens of criminal convictions and imprisonment with adults. Lawmakers also acknowledged that the change would bring significant cost savings in the long run, no small factor given the broken state of the economy and the overflowing numbers of those incarcerated.
The bill's passage is the second step in a reform process in Illinois that began in 2010 when 17-year-olds charged with misdemeanors were moved from adult to juvenile courts. Earlier this year, the Illinois Juvenile Justice Commission released a 2-year study of the impact of the misdemeanor change that found a decrease in the recidivism rate, and it recommended that Illinois join the other states that place 17-year-olds charged with felonies in juvenile court. Of course, this does not mean that those minors charged with serious offenses cannot be transferred to adult criminal court -- only that all criminal cases against minors must originate in the juvenile forum. Connecticut has successfully raised the juvenile court age cap from 16 to 18 in recent years as well, also reducing recidivism rates.
Five years ago, I wrote an article on the history of the movement to raise the age of juvenile court jurisdiction in North Carolina. I researched the legislative history, looked at reams of old newspaper accounts, studies on adolescent development, commission reports and committee minutes from the various periods during the past century when attempts to raise the age had failed. The pattern was clear -- with the powerful opposition of the sheriffs' lobby and the backing of state prosecutors, few bills had ever made it out of committee. The arguments that the cost was too much, that the juvenile court system was already overloaded, and that the result would be a mere "slap on the wrist" to young offenders consistently prevailed in the General Assembly.
Yet, I was naively optimistic that progress would soon be made in my state. I joined other advocates in writing op-eds, appearing before state legislative commissions, serving on task-forces, and protesting at rallies. With each step forward, however, we've had at least two steps back. During the past year, I was heartened that even when our General Assembly is in the grips of conservatives bent on tearing down the little that's left of the social safety net, there are still Republicans willing to sponsor yet another bill to raise the age -- incrementally, of course, but even just moving 16 year old first-offenders charged with misdemeanors into the juvenile system would be a victory. Now the bill has "run out of steam," and those in the know have shared that it doesn't look like anything will happen with it during this legislative session. In other words, the pattern continues, and this time I'm a (small) part of the narrative of failure.
So, what have I learned? Making sausages is, apparently, nothing like making laws. In sausage making, there is generally only one person -- the wurstmeister -- who's in charge of the business and makes all the decisions. Sausages are made according to a recipe that specifies the exact amount of pork, while the inedible parts are discarded. Everyone at the factory is committed to producing a good product, and they strive for uniformity. The bottom line? If I were a sausage maker, I'd be insulted by the comparison. As an advocate trying to bring about change, it only saddens me.
Your thoughts? Experiences with legislative reform (or with making sausages)? Please share in the comments.
Monday, July 15, 2013
Commenting on the merits
Andy Koppelman argues at Salon that by joining the Chief's majority in Hollingsworth, Justice Scalia functionally cast the deciding vote to allow same-sex marriage throughout California. Koppelman games out the internal workings of the Court to figure out why the Court did not comment on the (arguably erroneous) overbreadth of the district court's injunction. He writes the following:
Koppelman then wonders why Scalia did not insist on such language. He concludes that Scalia and Roberts both recognized it might have split the five-justice majority, since Ginsburg, Breyer, and Kagan might have gone off with a separate opinion, perhaps one reaching the merits and recognizing a broad right of marriage equality that might even have garnered five votes. It's an interesting theory on how the justices negotiate opinion drafting.
Roberts’ opinion could easily have included some language casually noting in passing that the district court’s decision properly applies only to the two couples who brought the suit, and that the more general question was not within the district court’s jurisdiction. (Even if there was no standing to appeal, Roberts was not obligated to describe without comment an overbroad injunction.) He could then direct further proceedings in the 9th Circuit consistent with this opinion. That would have forced the lower courts to refashion the injunction to have nearly no effect.
The problem, I think, is with Koppelman's underlying premise. Roberts could not have compelled the lower courts to refashion the injunction, while also finding no standing to appeal. The propriety and scope of the injunction was never properly before either SCOTUS or the Ninth Circuit because there was no party to properly present that issue to either court. So the Court could not make any comment that would be anything more than dicta or would in any way have compelled the district court to rethink the scope of the injunction. I would add the Scalia would be particularly attuned to this point, as he wrote the opinion in Steel Co. rejecting the doctrine of "hypothetical jurisdiction" and the notion that a court can have anything meaningful to say on the merits in the absence of standing.
So one additional reason Scalia did not insist on the language Koppelman suggests may be that, believing (whether genuinely or strategically) that standing was lacking, Scalia also recognized that the Court lacked any power to meaningfully comment on or alter the injunction.
Zimmerman v. Clark
As a mental health law person, I'm amazed that the state in Zimmerman had to disprove self-defense beyond a reasonable doubt and that this seems to be the rule in nearly every state. I didn't realize every crime had a hidden element: roughly, that the defendant was not in fear. In contrast, many crimes have an express intent element: the defendant must have intended the result or at least to act. Some defendants cannot form the requisite intent due to mental health conditions. In several states, however, the best evidence of such conditions cannot be used to negate intent. Clark v. Arizona, 548 U.S. 735 (2006). Instead, it can only be used to show insanity, which is usually tougher to show and where the burden rests squarely on the defendant. I don't know how I feel about self-defense, but Clark seems plainly wrong.
Shelby County and Facial vs. As-applied Challenges: The Court's Move to Enhance the Authority of States to Run Elections
A few years back I wrote an article titled "The Significance of the Shift Toward As-Applied Challenges in Election Law." The article identified a trend in recent Supreme Court jurisprudence to reject facial challenges to election regulations but leave the door open to as-applied lawsuits. In particular, in both Washington State Grange, a challenge to a candidate's ballot designation of preferred political party on a ballot, and Crawford v. Marion County, a challenge to Indiana's voter ID law, the Court sustained the laws on their face in part because, the Court stated, only as-applied challenges in the context of a specific election or as related to a specific plaintiff were appropriate. The Justices wanted piecemeal litigation so they could understand fully how the laws operated. Lower courts generally followed suit in their election law cases.
I think I need to revise the article and change its title to "The Supreme Court's Inconsistency Regarding Facial and As-Applied Challenges in Election Law." Or perhaps "The Supreme Court's Use of Facial and As-Applied Challenges in Election Law to Give States More Power to Run Elections." That second title is not that catchy, but it conveys accurately what appears to be going on.
In two recent election-related cases, Citizens United and Shelby County, the Court rejected the as-applied approach and struck down the laws on their face. Citizens United at least provided a lengthy discussion as to why the majority believed that it needed to invalidate the law in its entirety. In Shelby County, however, Chief Justice Roberts barely even mentions the facial versus as-applied distinction when striking down Section 4 of the Voting Rights Act (which also effectively gutted Section 5). Instead, he focuses on the government's argument regarding how the coverage formula is dynamic based on the ability to bail-in and bail-out covered jurisdictions. Will Baude finds this omission to be more "about craft than substance," but why fail to mention this significant jurisprudential turn when it was a major component of several of the Court's recent election law cases?
Justice Ginsburg, for her part, does a better job of highlighting this issue in Part IV.A of her dissent. She explains that "[a]lthough circumstances in Alabama have changed, serious concerns remain," and she provides a few examples to show why "at least in Alabama, the 'current burdens' imposed by § 5's preclearance requirement are 'justified by current needs.'" But she still fails to engage in the significant question of whether a facial or as-applied challenge is a better vehicle, normatively, with which to test the constitutionality of laws regulating the political process.
Instead, the Justices seem to be engaging in strategic use of the facial versus as-applied distinction to suit their analytical goals. For the "conservative" Justices, this may be to place greater authority with the states to regulate elections, taking Congress out of the election business as much as possible. (The reverse is true of the "liberal" Justices, as they use the facial or as-applied distinction as needed to provide Congress with greater leeway in crafting election laws.)
Recall the four recent election-related cases that presented the facial vs. as-applied distinction:
-In Washington State Grange, the Court upheld the ability of states to create a ballot structure that suited them, allowing only as-applied challenges if there was actual evidence of voter confusion.
-In Crawford, the Court allowed states to impose voter identification requirements, but once again left the door open to as-applied lawsuits if there was sufficient evidence of disenfranchisement.
-In Citizens United, by contrast, the Court rejected the more incremental approach and invalided the federal ban on corporate independent expenditures.
-In Shelby County, the Court struck down Section 5 of the (federal) Voting Rights Act on its face without even discussing whether an as-applied challenge was more appropriate.
Thus, in the two cases in which the Court advanced the as-applied approach, it wanted to give states wider leeway to regulate their elections, allowing only piecemeal litigation if there was actual evidence of unconstitutionality in the context of how the states operated the laws. In the cases challenging federal election laws, however, the Court was much more amenable to the facial challenge to curtail Congressional authority.
Add to this the other election law case this Term -- Arizona v. Inter Tribal Council -- in which the Court, although ruling for the federal government on preemption, strengthened the power states have to determine voter eligibility issues, and we see a trend of enhancing state authority in running elections. The Court seems to be shifting the balance of power from Congress to the states to regulate the political process.
I will leave for another day a longer discussion on whether this is a good or bad thing, either jurisprudentially or normatively, although there are significant reasons to be concerned. But it is important to recognize what the Court is doing: by manipulating whether it will sanction facial challenges, it is effectively altering federal-state dynamics in who runs our elections. The analysis (or lack thereof) in this year's election law cases places that power squarely with the states.
Surveillance, chilling, and the First and Fourth amendments
In an earlier post I quoted Justice Sotomayor’s statement (concurring in United States v. Jones) that “[a]wareness that the Government may be watching chills associational and expressive freedoms.” I have been talking about the Fourth Amendment, not the First, and in the comments Jim von der Heydt asks what I “make of Justice Sotomayor’s clear reliance on FIRST Amendment rights, not privacy rights,” in that sentence.
Will Baude took a shot at an answer a month ago, in his post “How Could Surveillance Violate the First Amendment?”, in which he focused on that same sentence. Assuming Justice Sotomayor is talking about the First Amendment, he wondered where within First Amendment doctrine this claim might come from.
Will provides some interesting thoughts, but I think both Jim and Will are barking up the wrong tree. Contrary to both of them, I do not think Justice Sotomayor is making a First Amendment claim—I think she is making a Fourth Amendment claim. Of course, “associational and expressive freedoms” are protected by the First Amendment, but they can be (and are) protected by other amendments as well—such as the Fourth.
In Jones, Justice Sotomayor is discussing the Fourth Amendment “reasonable expectation of privacy” test. (See her opinion, paragraph 2.) She argues (in agreement with the Alito+Ginsburg+Breyer+Kagan concurrence) that longer-term GPS monitoring infringes on societal expectations of privacy. (Paragraph 3.) This is because: (1) GPS monitoring generates a very detailed record of movement (para. 4); (2) it is cheap and the data lasts forever (para. 4); (3) it is done covertly (para. 4); (4) unrestrained power to assemble this data is susceptible to abuse (para. 5); and (5) when people know the government is watching them, their freedoms are chilled (para. 5).
She then says: “I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements.”
In other words, the chill to associational and expressive freedoms, in this judicial opinion, is not flagging the First Amendment—it is one of the factors that suggests to Justice Sotomayor that people may have a reasonable expectation of privacy in whether their movements are tracked (at least long-term) by GPS.
She adds that these reasons give her pause to trust the executive to use this tool without judicial oversight, “especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent ‘a too permeating police surveillance,’ United States v. Di Re, 332 U. S. 581, 595 (1948).” (Para. 6.)
This is a Fourth Amendment claim, not a First Amendment one. Justice Sotomayor is claiming that the Fourth Amendment seeks to prevent a too permeating police surveillance—and one obvious reason to do so is because of the danger to associational and expressive freedoms. The Fourth Amendment does not (only) protect privacy for its own sake, but for a variety of reasons, including maintaining liberty of thought and association. No need to track down a First Amendment citation for Justice Sotomayor's statement. It stands as a good Fourth Amendment claim.