Sunday, November 30, 2014
December is almost here, ending my guest blogging stint. Many thanks for reading and commenting this month. I’m looking forward to AALS in DC this year, my old stomping grounds. Hope to see many of you there. Otherwise, you can find me on Family Law Prof Blog. Happy Holidays, and until next time,
Guns and the V.I.P. Lounge
Thanks to the Prawfs for inviting me to blog once again. There's lots to talk about this month. For a soft opening, consider the recent New York Times article about the new country club-style shooting ranges, with membership fees in the thousands, rich mahagony, and many leather bound books. I've always thought of myself as moderate on the gun control-gun rights debate, so shooting ranges per se don't bother me. Done correctly, they probably make everyone safer.
These V.I.P. ranges, however, concern me because they increase the divide between the rich and the poor, and gun owners and non-gun owners (see also first class vs. coach on airplanes). This private property rights/capitalism-driven segregation is bad for democracy, and the gun debate in this country could use some good-faith dialog. It makes me appreciate my little YMCA in Grand Forks, North Dakota, where the men's locker room is a dingy, tight space where liberals, conservatives, and libertarians, and farmers, lawyers, and grocery store clerks all congregate, talk, and bicker about, inter alia, politics and religion.
As we roll into a new month, we roll into a new set of visiting Prawfs.
Thanks to our November visitors--Michael Helfand (Pepperdine), Adam Kolber (Brooklyn), Jake Linford (Florida State), Kirsten Nussbaumer (Stanford), and Margaret Ryznar (Indiana-Bloomington); they may be sticking around for some final posts this week. Thanks also to Timothy Zick (William & Mary) and Leigh Osofsky (Miami) for their individual solicited posts.
And welcome to our December visitors--Kelly Anders (The Organized Lawyer); Miriam Cherry (Saint Louis); Josh Douglas (Kentucky); Franita Tolson (Florida State); and Steven Morrison (North Dakota). And Richard Re (UCLA) continues his semester-long stay.
And remember that we are always looking for voices to join the Prawfs conversation. If you are interested in joining us for a month in the coming year, please email me ([email protected]) or Paul ([email protected]).
The Dangers of Sloppy Brain Imaging Studies
Here is xkcd on the dangers of sloppy brain imaging studies:
(Cross-posted to the Neuroethics & Law Blog)
Saturday, November 29, 2014
Shampoo for Damaged Hair and…Damaged Marriages
I have seen many unhappy family law cases, but never in a shampoo ad…until now. This Leo Burnett Hong Kong ad, which follows a couple on the brink of divorce, is also a message against divorce in China, where apparently 100,000 couples reconciled last year out of 3 million divorces.
Friday, November 28, 2014
JOTWELL: Steinman on Larson on factual precedent
The latest JOTWELL Courts Law essay comes from co-Section Editor Adam Steinman (now at Alabama), reviewing Allison Orr Larson Factual Precedents (U. Pa. L. Rev. 2013), which explores the extent to which factual conclusions in SCOTUS decisions should be binding on lower courts.
Cosby and Temple University
The University of Massachusetts and other colleges and universities have cut ties with Bill Cosby based on the rape allegations against him. However, his alma mater Temple University, for the moment, is standing by their man, notwithstanding alum Kerry McCormick's petition to dismiss him from the board. Of course, in a metaphysical sense, possibly the allegations are false; remember the person who never met David Letterman, yet got a restraining order against him based on the psychic waves he sent through the TV? But so many allegations, from so many people, who actually knew Mr. Cosby, have the distinct ring of truth; I can't think of an example where adult, competent people, not influenced by the police and not acting together, falsely made these sorts of charges. One of the reported victims was a Temple employee; particularly for a university under investigation for its handling of sex assault cases, there is more than enough here for Temple to act.
But what should Temple do? I think they should take Mr. Cosby's claims of innocence seriously.Rather than firing him outright, they should insist that he strighten the matter out using the tools available to a wealthy person wrongly accused. Mr. Cosby could, for example, waive the statute of limitations for criminal charges in the jurisdictions where these offenses allegedly took place. If, as he said through his lawyers, the claims are "unsubstantiated" and "fantastical," surely he could easily refute them in court, restoring his reputation. Alternatively, Temple could require him to sue the accusers for defamation, another method of showing that he engaged in no wrongdoing. There too, if there are reasons not to believe the many women who say that Bill Cosby assaulted them, surely he can persuade a jury of that. But what Temple should not do is assume that the alleged commission of serial rapes by one of their trustees is none of their business or no big deal.
Temple put him on their board because he is a celebrity, and wanted the benefit of his reputation, and the have it. Ultimately, Temple will fire Cosby because he is toxic (he fell from third to 2615th in the list of the 3,000 most trusted celebrities); purely on a dollars-and-cents basis, the damage to their brand will be too severe. But it would be a credit to Temple to act based quickly on principle, and a shame if through delay they gave the impression that they are soft on rape.
Prof. Robert E. Rodes, Jr., R.I.P.
My friend and colleague, Bob Rodes -- who taught at Notre Dame Law School for nearly 60 years and who published in seven different decades -- died on Tuesday morning. During his career, he wrote about the history of the Church of England, courtly love, workman's compensation, maritime insurance, liberation theology, symbolic logic, legal ethics, jurisprudence, and more. Even at the end, he was working on (yet) another book, a collection of his articles on church-state relations. Here is a very nice announcement and collection of reflections. And, for an insightful and warm introduction and overview to Bob's work, check out this piece, written by his colleague and friend, Tom Shaffer. In the announcement, our colleague Judge Kenneth Ripple puts it well:
His junior and senior colleagues relate remarkably similar stories about his deep and lasting impact on their lives. U.S. Seventh Circuit Judge and Professor Kenneth F. Ripple provided an apt metaphor in describing Bob’s impact on the Law School: “Every great institution has, as Scripture describes them, ‘living stones’ —individuals who, sometimes at great personal sacrifice, become the foundation of all the accomplishments that come afterward. At Notre Dame Law School, Professor Bob Rodes will always be a supporting part of the foundation of this very special law school. He loved his students; he loved his colleagues; and he loved what he called the ‘legal enterprise’ in which we all work together. He was the voice of the Spirit, always reminding us of our better selves.” . . .
Thursday, November 27, 2014
Black Friday, Blue Laws (and Happy Thanksgiving)
November is a great month: NaNoWriMo, National Adoption Month, and, of course, Thanksgiving. Cue the Christmas music, thanks to holiday creep.
Holiday creep is also responsible for the Black Friday shopping frenzy that now starts on Thanksgiving Day. But a tiny minority of states, such as Massachusetts, kept blue laws on their books: retailers must be closed on Thanksgiving and Christmas. These blue laws date back to the colonial era of the Puritans, and intended to encourage people to go to church instead of work. They now encourage families to stay together for Thanksgiving by keeping stores closed, but there is some thought that they just make people cross state borders to shop (or shop online?).
Whether you are shopping today, watching football, or eating all day, Happy Thanksgiving.
Wednesday, November 26, 2014
Collateral Consequences Resource Center Launches
I am pleased to announce that I and the other founding members of the Collateral Consequences Resource Center have launched a website. We hope the site will become a central resource for people with convictions, scholars, lawyers and policymakers who are interested in the effects of criminal convictions on civil rights, public benefits, family rights and opportunities for employment. If you come across a scholarly article, news story, case, or statutory or regulatory development related to collateral consequences that we should publicize, please send it to [email protected]ccresourcecenter.org.
When "protests" become "riots"
Tim's final post talks about Monday's protests turning violent and destructive (and the process being repeated on Tuesday) as a tipping point, in which public (and media) support and attention shifts away from the protesters. I do not know if we have hit that point. There is still much to sort out about what has been happening on the ground the past few nights. And it appears that many of the unlawful mistakes we saw in July (mass arrests of even peaceful protesters, arresting people for recording) are being repeated. And the number of sympathy protests across the country (many far more peaceful) may suggest a deeper level of support.
Nevertheless, Tim's point about public sympathy reminded me of Walker v. City of Birmingham (which I wrote about last week) and what it indicates about the connection between public speech and public support. The events in Walker occurred during Easter Week 1963, four months before the March on Washington, when the violent response to peaceful were entering living rooms--arguably at or near the height of public support for the movement. But the case did not reach SCOTUS until 1967 (argued in March, decided in June). By that point, we had seen the same shift in public support and sympathy away from civil rights protesters and the movement, given the increasing militancy in the movement, as well as public concern about riots (on race, the war, etc.) throughout the country.
Brennan suspected that the changed social circumstances had influenced the majority in rejecting the protesters' First Amendment arguments. He closed his opinion with a sharp reminder that public fears about riots should not override the right to peaceful public protest. The first part remains applicable to current events:
We cannot permit fears of "riots" and "civil disobedience" generated by slogans like "Black Power" to divert our attention from what is here at stake -- not violence or the right of the State to control its streets and sidewalks, but the insulation from attack of ex parte orders and legislation upon which they are based even when patently impermissible prior restraints on the exercise of First Amendment rights.
Tim is correct that public sympathy wanes. The right of public protest should not wane with it.
Ferguson – What Now? (guest post)
This is the final post on Ferguson from Timothy Zick:
Monday night, peaceful vigils and other protected forms of protest were largely overshadowed by acts of violence and destruction. As headlines attest, the Ferguson “protests” have already been displaced in the news cycle by the Ferguson “riots.” The facts are still coming in, but by most accounts police were not the instigators. The commercial and other costs must be laid at the feet of the lawless, who engaged not in legitimate protest or demonstration but in petty and more serious criminal activities. While their frustration may be understandable, their actions were obviously neither wise nor constructive. The violence was not, as some have suggested, inevitable. Whatever their underlying causes or motivations, the riots were a choice.
There will be additional protests and demonstrations in Ferguson and elsewhere. Hopefully they will be vocal, but peaceful, events. The issues are worth demonstrating about. But as I wrote in my previous post, public sympathy will not be with the protesters forever. Last night may have been a tipping point. The media will focus on Ferguson for a bit longer, but the news cycle will inevitably find other conflicts and the press will move on. Many left behind will have expressed their outrage, or have been affected by the actions of those who did so. What will be the legacy of the Ferguson protests (past, present, and future)?
In the wake of last night’s events, hopelessness seems to be pervasive – particularly among many Ferguson residents, who have been witnesses to the conflict from the beginning. The protests and demonstrations have not been empty or meaningless events. They have pricked the public conscience, highlighted grievances, jump-started conversations about social and political issues, and demanded attention from public officials. It would be unfortunate if rioters tarnished or diminished some or all of these important accomplishments. What happens next depends on forces that lie beyond public streets and other public forums. Too often, protesters do not follow action in the streets with concrete social and political activity. Protests and demonstrations are not ends in themselves. They can be catalysts for change, but only if organizations and associations work to channel their outrage and energy. Expressions of outrage from civil rights leaders are fine. But Ferguson desperately needs an organization, preferably a local group, to take the lead. Other elements of the community can also work toward policy changes. Rioters can trade bricks for ballots, residents can work toward rebuilding or strengthening community ties, and officials can follow through on promises made in the heat of the moment – or be held accountable by higher authorities. What’s next for Ferguson is not at all certain. The protests and demonstrations have created an opportunity and suggested an agenda that includes criminal justice reform and protection for civil rights. For the sake of Ferguson itself, let’s hope that peaceful activists seize that opportunity.
Osofsky on tax nonenforcement (guest post)
So how should we judge nonenforcement given the difficulties of the existing lenses? I am not sure I have the final answer but I do believe that something important has been left out of the analysis thus far. When an agency does not enforce the law, it is substantially affecting rights and obligations. A long line of literature regarding administrative legitimacy has contemplated how an agency can have a substantial impact on rights and obligations under the law in a legitimate way. Three hallmarks of agency legitimacy are: accountability (under political accountability theories of the legitimacy of the administrative state), deliberation (under civic republican theories of the legitimacy of the administrative state), and nonarbitrariness (under nonarbitrariness theories of the legitimacy of the administrative state).
Tuesday, November 25, 2014
Heartbalm Torts Not for Kids
Depending on the state, there are several heartbalm torts that allow the brokenhearted to recover for their romantic troubles. Lovers--whether married or not--can sue in tort each other or a third party who caused a romance to go sour.
In a case of first impression in Mississippi, the minor children of a marriage invoked the tort of alienation of affection against their mother’s neck doctor, who engaged in an extra-marital affair with her that led to her divorce. Earlier this month, the Mississippi Supreme Court decided that children do not have a colorable interest in the alienation of one parent’s affections toward the other. But maybe they do, in light of the endless studies showing that two-parent households are better for children than one-parent households? Should there be a tort for ruining a child's happy household?
One Way Neuroscience Will Eventually Affect the Law
In two prior posts, I argued that the jury is still out as to whether neuroscience will radically alter our notions of criminal responsibility. I do, however, believe that technological advances in neuroscience will eventually have major effects on the law.
One promising area concerns the use of brain imaging to assess whether or not a person is genuinely in pain. A 2011 study from Sean Mackey's lab at Stanford used brain imaging to predict with about 80% accuracy whether subjects were in a state of pain or not. A 2013 study from Tor Wager and colleagues in the New England Journal of Medicine suggests that the technology has only become more accurate and versatile. More study is certainly necessary: I know of no studies yet on people who are deliberately trying to fool examiners; most studies focus on acute pain (from a hot piece of metal) and not chronic pain; and measuring amounts of pain is much harder than assessing whether a claim of pain is entirely malingered.
But there is good reason to believe that pain detection technology will continue to improve and eventually become at least a useful adjunct and perhaps someday a quite essential tool in court and administrative hearings. The technology will both help to filter out malingered claims (and perhaps highly exaggerated claims) and make it easier for people with genuine pain to provide more objective evidence. And unlike efforts to use brain imaging for lie detection, brain imaging for pain detection has more obvious medical uses, meaning that the technology might gain respect in the medical community in a manner that makes it more palatable for courtroom use.
If you're interested in learning more, I've written about the forensic use of brain imaging to assess physical pain here and to assess emotional pain here and here. Susannah Locke surveys some of the issues in this recent piece in Vox, and Amanda Pustilnik is exploring issues related to pain, law, and neuroscience here.
Narrowing Precedent and the Digital Fourth Amendment
My new paper, "Narrowing Precedent in the Supreme Court," is now posted online. (Thanks to LTB for publicizing it!) The basic idea is that the Supreme Court frequently narrows its precedents, including in "liberal" directions, and that doing so is often both legitimate and desirable. In this post, I'd like to make a prediction: in the near future, we are going to see a lot of narrowing in the area of digital surveillance and the Fourth Amendment.Here's the paper's abstract, broken into paragraphs:
“Narrowing” occurs when a court declines to apply a precedent even though, in the court’s own view, the precedent is best read to apply. In recent years, the Roberts Court has endured withering criticism for narrowing in areas such as affirmative action, abortion, the exclusionary rule, campaign finance, and standing. This practice— often called “stealth overruling”—is widely condemned as deceptive, as well as contrary to stare decisis.
On reflection, however, narrowing is not stealthy, tantamount to overruling, or even uncommon. Instead, narrowing is a distinctive feature of Supreme Court practice that has been accepted and employed by virtually every Justice. Besides promoting traditional stare decisis values like correctness, fidelity, and candor, legitimate narrowing represents the decisional-law analogue to the canon of constitutional avoidance.
As a rule, an en banc appellate court, including the Supreme Court, engages in legitimate narrowing when it adopts a reasonable reading of precedent without contradicting background legal principles. Under this rule, most if not all instances of narrowing during the Roberts Court are readily defensible—including frequently overlooked decisions by the Court’s more liberal members.
Moreover, prominent cases involving narrowing can be grouped into four categories: experimental narrowing, narrowing rules, narrowing to overrule, and aspirational narrowing. Far from being unusual or unwarranted, narrowing is a mainstay of Supreme Court practice— and a good thing, too.
In the paper, one type of narrowing I discuss pertains to defeasible holdings--that is, holdings that can be read as containing implicit exceptions or limitations. This kind of narrowing is likely to be relevant in future digital Fourth Amendment cases. The reason is that pre-digital holdings are often written broadly, but without digital technologies in mind. Some might cite this circumstance as a reason to conclude that the best reading of the old cases is that they just don't apply to then-unforeseen digital technologies. For people who hold that view, pre-digital cases can simply be distinguished, without resorting to narrowing. In the recent Supreme Court case Riley v. California, the Court seemed to take that view, in that it declined to "extend" a pre-digital case to new digital technologies.
However, many sophisticated lawyers have taken a broader view of pre-digital cases. Before Riley, for instance, many judges, commentators, and scholars believed that precedents like United States v. Robinson empowered police to search any object on the person of an arrestee. Period. For the many people holding that view--some of whom may have been on the Supreme Court--Riley narrowed Robinson by reasonably reading its expressly "categorical" holding as implicitly limited to pre-digital technologies. For instance, in rejecting the argument "that a search of all data stored on a cell phone is 'materially indistinguishable' from searches ... of physical items," the Court didn't parse Robinson or any other precedent. Instead, the Court said: "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon." Because smart phones were "nearly inconceivable just a few decades ago," when Robinson and related cases "were decided," the Court was unconstrained by precedent.
Shortly after Riley, I suggested that the Supreme Court had effectively signaled to lower courts that other pre-digital precedents were susceptible to similar treatment. To be sure, "vertical" narrowing--that is, a lower court's narrowing of a higher court's precedent--is generally more objectionable than the Supreme Court's "horizontal" narrowing of its own precedent. That's partly because the Supreme Court can overrule its own cases, whereas lower courts can't just reject the contents of the US Reports. Yet Riley points toward a special context in which vertical narrowing makes sense. In cases involving new technologies and the Fourth Amendment, trial courts and courts of appeals seem to have special license to draw on Riley's treatment of digital technologies in reading Supreme Court precedents narrowly.
This kind of pro-defendant narrowing is already happening and is bound to accelerate. The most visible recent examples have involved the third-party doctrine. Cases like Smith v. Maryland have long been widely understood to mean that consumers have no reasonable expectation of privacy in their telephone records. Period. But Smith of course predates the modern digital world and so is susceptible to narrowing on that ground. In my view, narrowing provides the best way of understanding recent arguments, like Judge Leon's in Klayman v. Obama, that find Smith inapplicable in light of new technologies. As Judge Leon put it, modern cell phones and the new surveillance technologies that track them "are unlike anything that could have been conceived" when Smith was decided. Therefore, Smith's ostensibly broad holding is defeasible. We can expect even more decisions in this vein in the years ahead, including from the Supreme Court.
On reflection, there's nothing odd about all this. It's how precedent often changes: visibly, without overruling, and with ample legitimacy.
The above is cross-posted from Re's Judicata.
Monday, November 24, 2014
Following the grand jury declining to indict Officer Wilson in the shooting death of Michael Brown, the Brown family released a statement specifically calling for a "campaign to ensure that every police officer working the streets in this country wears a body camera." Yes, give everyone a camera--but do not expect it to have as conclusive an effect as you think it will. Video likely would not have changed the grand jury's decision. Perhaps it would have made him less likely to shoot, but I think the deterrent argument is open to debate right now.
A couple things for crim law experts:
1) Is it the grand jury's role to weigh and select between conflicting evidence in deciding whether to indict? The DA made much of the conflict between the physical evidence and the testimony of witnesses, as well as the inconsistency between different witnesses and between statements by particular witnesses. But is that the issue for a grand jury determining probable cause? Or is that supposed to be left for an open trial on culpability? Is it typical for the prosecutor to point out those inconsistencies now? Or is that for defense counsel at trial? Here are two arguments on that, noting that the DA spoke of the grand jury's job as to "separate fact from fiction." Is that wrong?
Now, I know prosecutors often will not seek an indictment if they believe they have enough for probable cause but not to convict, in light of possible witness-credibility problems. But does witness credibility often suggest the absence of probable cause?
2) It seems to me the question is what evidence the grand jury heard showing that Brown posed a continued threat to Wilson. The rule seems to be that a police officer is entitled to keep shooting until the threat is over. It appears that Wilson fired ten shots at a distance (following two fired at close range). The question must be whether any of those initial shots incapacitated Brown.
3) How common is it for the target to testify before a grand jury? How common is it for defense counsel to allow a client to do so?
Three Ponies or Four?
Each state has child support guidelines that set a presumptively correct amount of child support when parents split. However, some states permit judicial discretion at the low- and high-income ends of the spectrum. I have previously written on the former, and next year I have a forthcoming Hofstra Law Review article on the latter. In it, I start to explore the extremely difficult question of what parents owe to their children when there is a lot of money on the table. One Kansas court has stated that three ponies are enough, even for the wealthiest of children. Others have argued that reasonable needs of the child are the limit, while yet others argue there is no limit. Some states use a percentage of income as a limit, which increases up to a certain income amount before decreasing. The child support guidelines, catalyzed by federal law, aimed to prevent these sorts of inconsistencies—but the question of fairness gets far grayer in high-income cases, leaving much room for debate.
The costs of public protest (guest post)
The following is another guest post from Timothy Zick (William & Mary).
Some of my First Amendment work has focused on highlighting the social, political, and constitutional benefits of public protests. Protests can also impose serious costs. Mass protests can be particularly invasive forms of contention. They disrupt routines, alter urban and other landscapes, and inconvenience entire communities. Some of these effects may actually make a protest more effective – unlike a pamphlet or this blog post, a mass protest cannot easily be ignored. Still, for those caught in its path, a public protest (or a prolonged series of them) can impose very real and significant costs.
Some of the costs of the Ferguson protests (past and anticipated), have received some media attention. Merchants are concerned that the prolonged state of unrest will harm their enterprises. Ferguson schools have been closed in anticipation of the grand jury’s decision. And there are the costs of policing the protests themselves, which can add up to millions (including the cost of any civil rights lawsuits and settlements, as New York City and other jurisdictions have learned). The psychological costs can also be significant. Living in an environment of daily conflict and protest policing can take its toll on communities. For example, many people seemed to lose patience with the Occupy protests – not just because of the tangible costs they imposed, but also owing to the emotional and psychological strain associated with long-term “occupation.”
Recognizing these costs does not diminish rights of free speech and peaceable assembly. Indeed, it places First Amendment rights in appropriate perspective. In general, we cherish and protect these rights despite their significant financial and other costs. We collectively accept these burdens as the price of expressive freedoms. We subsidize them, even when the distribution of costs sometimes seems unfair. (We also have the right to complain about this unfairness.) However, as protest organizers should know, there are limits to public tolerance. There is a point at which public support begins to wane and the effectiveness of public contention begins to diminish. Sooner or later, protesters will need to channel their outdoor energies to indoor political and other arenas. As Michael Brown’s father suggested in a video appeal to protesters, the time will come when protest will need to be translated into policy changes. To some degree, the mark of a successful protest movement is its ability to effect meaningful change. Protests have inherent worth. But the subsidies and sacrifices are all the more “worth it” insofar as they facilitate or produce something tangible, meaningful, and lasting.
Final Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"
Final Repost: The deadline is next Monday, December 1.
The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015.The conference seeks to address the following topics:
- Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
- The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
- Legal obligations and accommodations of religious health care organizations
- Protection (or not) of health professional conscience
- Health care decision-making for minors with religious parents
- Religious objection v. discriminatory behavior
- Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
- “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
- Abortion policy, including clinic protests and protections, and its relationship to religion
- Embryonic stem cell policy and its relationship to religion
- End-of-life care, including assisted suicide, and its relationship to religion
- Complicity as both a legal and religious concept
- Comparative analysis, e.g., between professions, health care practices, countries, etc.
Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.
For a full conference description, including the call for abstracts and registration information, please visit our website.
It's That Time of Year
We're headed towards the end of semester--a time of year where I often find the first year students hitting the "rookie wall." On the plus side, it's around this time of year students will often put their creativity to work to spice up the classroom. Of course, my all-time favorite was this flash mob from the last day of my first year teaching Contracts. But this year provided some good fun as well.
As my students know well, I'm an obessive Giants fan (yes, I'm moping over tonight's loss). Last week, on the heel's of Eli Manning throwing five interceptions against the San Francisco 49ers, a student decided to push the envelope: he put up a sign on my classroom whiteboard that had a picture of the 49ers with the caption "Eli Manning's New Receivers." Well I responded as any good Giants fan would: I kept the student on call for about an hour, making him work through a wide range of hypotheticals involving complex contract damages calculations. Realizing his mistake, he found a creative way to ask for forgiveness (so creative that I told him I won't put him on call for the rest of the semester). The photographic evidence is above. And the video evidence is below. Enjoy!
Sunday, November 23, 2014
Judicial Elections and Historical Irony
Last week I was privileged to participate in a conference in New Mexico on the judiciary. The debates and assigned readings focused especially on judicial elections (a new issue-area for me). There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).
“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states. This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).
With many judicial elections now under the shock of increasing party polarization, interest-group mobilization, and campaign spending, it seems likely that these calls to end judicial elections for the sake of judicial independence will only intensify. Yet one of the historical ironies I learned from the conference readings is that “judicial independence” was also the primary value that was put forward as the rationale for creating elected judges in the first place.
In the mid-nineteenth-century campaigns for an elected judiciary, however, the sort of judicial dependence that was especially targeted by reformers was judges’ dependence on state legislatures and associated party machines that had become corrupt or spendthrift (especially in economic development projects). It was hoped that a switch to elected judges would empower judges to reign in discredited legislatures, policing them for their fidelity to the state constitutions (“the people’s law”) while keeping judges accountable to the people through elections (and later, recalls).
The longer history of elected judges in the United States offers many other enlightening contrasts with today’s premises. (The stance of the professional bar towards the desirability of elected judges flipped over time. The dominant presumption about whether appointed or elected judges are the ones more likely to lean conservative or liberal also flipped over time…) For now, however, I only want to ask one question of this rich history—whether it makes plausible the possibility that, in some states, contemporary reform movements to eliminate elected judges will have unintended adverse consequences for democratic responsiveness and the separation (or balance) of powers between the judiciary and other branches of government.
My question is prompted--not by a preference for elective over appointive judiciaries--but by the historical scholarship that shows that the nineteenth-century push for elected judges was often packaged with—and used as a justification for—very substantial expansions of judicial power and very substantial curtailments of legislative power. Making state judges electorally accountable was supposed to make it safe to greatly expand the role of judicial review of legislation, and to give judges much more independence from the other branches in the terms and conditions of their appointments.
This new form of judicial accountability to the electorate even justified a judicial role in which judges were tasked to police procedural constraints on the legislatures, including rules that had previously been considered essentially internal to the legislature (perhaps—I wonder—starting to unravel some of the Anglo-American tradition of legislative autonomy and privileges that had taken centuries to develop). Meanwhile, this change in the role of judges may also have coincided with the decline of juries.
If much of the nineteenth-century judicial empowerment and legislative disempowerment was enacted on the premise of it being bundled with judicial elections, then I ask—if some states now revert to appointed judiciaries without also considering the larger package—do they risk an institutional imbalance or loss of democratic accountability in the legislature and executive? (Perhaps this question is already asked and answered somewhere in current policy debates or scholarship?)
It would be nice to think these structural matters of constitutional development tend towards equilibrium in some organic fashion. At the least, we can expect that state legislatures and executives will long retain the cruder sorts of tools for reining in abuses of appointed judges. Depending on the particular state, these might include decisions about judicial budgets, impeachment or removal of a judge upon legislative address, jurisdiction-stripping, court packing, or informal control of judges through the influence of political parties and the professional bar. Nonetheless, I find it just as easy to imagine that judicial empowerment at the expense of legislatures might be ‘sticky’, if never a one-way ratchet. Here I am influenced by the social science accounts that suggest that, around the world today, judicial power has been much expanding at the expense of legislatures. I am also thinking about the possibility that there may be institutional biases in some states against structural adjustments (like ’single subject rules’).
In theory, the public should have the capacity to ensure that one branch of government never gets too big or unaccountable. In the many states that are characterized by constitutions relatively easy to amend, constitutional change is, after all, supposed to occur more through formal amendment processes than through judicial interpretation. Even so, query whether such large structural questions lend themselves to retrospective scrutiny and popular oversight. (This is a real, not rhetorical, question for someone who has a lot more knowledge about the states and judicial reform movements than I now have.)
John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006)
John Ferejohn, “Judicializing politics, politicizing law,” Law and Contemporary Problems 65 (3): 41–68 (2002).
Jack P. Greene, The Quest for Power: The Lower House of Assembly in the Southern Royal Colonies (Norton, 1972)
Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard Univ. Press 2012)
G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (Stanford Univ. Press 2012)
An Underwood (But Not Frank or Claire)
Everyone who knows me in real life knows that I can’t stop talking about my “new” 1930’s Underwood typewriter. It’s being shipped to me in time for the holidays, and it’s the first typewriter I ever bought. Lots of writers working today still use a manual typewriter (e.g., the bestselling author alive, Danielle Steel, uses an Olympia), so it got me curious. And, it’s obviously got no connection to the internet—which I view as a plus. Sure, it won’t be efficient for very long writing projects, and it’s impossible for law review edits, but occasional use oddly appeals to me. I’m probably not the only one here with a thing for typewriters?
Saturday, November 22, 2014
Just watch the video
This article explains. I have nothing to add--skip to 22:38, when the respondent's argument begins. Somehow, law professors are to blame for this.
Friday, November 21, 2014
DOJ weighs in
Seeming to share my sense of where the burden should lie, Eric Holder released video urging law enforcement and protesters to collaborate on plans to keep the peace should protests occur in Ferguson. He reminded protesters that historically successful movements have relied on nonviolence, while calling on police to seek ways to keep order while respecting constitutional rights. In addition, DOJ officials spoke with Missouri Governor Jay Nixon about the decision to declare a preemptive state of emergency, calling that an escalation of the situation that "sent the wrong message." DOJ also released a resource guide for policies and training on community policing and handling public protest (although it seems a bit late in the day for that).
This is a good reminder of the unique role that DOJ and the Attorney General can, and sometimes do, play in these sorts of localized conflicts, remaining above the simplified law-enforcement fray.
Teaching Copyright Law - Blurred Lines
"Blurred Lines," the summer hit of 2013, is the subject of a copyright dispute. The estate of Marvin Gaye claims that the composers of the hit song (Pharrel Williams, Robin Thicke, and T.I.) appropriated the song from the Gaye hit, "Got to Give it Up." Williams et all filed a declaratory judgment action, and moved to dismiss the Gaye family's counterclaims alleging copyright infringement. Last month, Judge John A. Kronstadt denied a motion to dismiss. The order interests me for two reasons. Here I focus on the first.
I used the "Blurred Lines" case last year as the basis for a memo assignment on substantial similarity in my copyright class. For those of you who don't think often about copyright law, proving infringement requires evidence of copying, which is usually inferred from 1) access to the original work and 2) substantial similarity between the original and the alleged copy. In this case, Alan Thicke said in multiple interviews that he and Pharell meant to write an homage to the Gaye song, so I let the students assume access. I tasked the students with summarizing the state of the law in the Ninth Circuit on protectable elements of musical composition, i.e., which elements in a song can be copied without triggering liability, and which elements cannot. I then asked them to opine on a likely outcome in the case. At the time, the report from a musicologist hired by the Gaye family had leaked via Hollywood reporter. There was no competing report from the Williams camp available at the time, so I invited a musicologist from across campus, Brian Gaber, to walk the students through differences in the two works of music as if he were advising Williams and his co-writers about the similiarity of the musical elements.
The students were nervous about digging into the similarities and differences in the musical composition (what the song would look like if you wrote it up in standard notation) and the sound recording (what the song sounds like). Some students expressed concern that classmates who knew something about music would perform better on the assignment than those who knew little or nothing. But I invited them to think of the assignment as an opportunity to learn about substantial similiarity in a musical context, and to develop the ability to teach themselves about a complex issue in the course of preparing for a case. This is a challenge that will face lawyers providing legal advice in any substantial similarity case. Handling substantial similiarity requires familiarizing oneself with the norms of an industry, and how common elements or scènes à faire (unprotectable stock elements) manifest in a given genre.
Now expert reports are available on both sides, at least if you access to PACER. I commend the case to you as a fun one, if you want to help your students dig deeply into substantial similarity in copyright law as it manifests in musical composition
“Clearly Established” Circuit Law in Good-Faith Suppression Cases
This week, I’ve been posting on the evolving connection between circuit precedent and “clearly established law” in both qualified-immunity and AEDPA cases. To round out the discussion, this post discusses related issues posed by a third doctrine: the good-faith exception to the exclusionary rule. Appropriately enough, the circuit courts themselves have recently had interesting things to say about circuit precedent in this area. The upshot is a remarkable convergence between qualified immunity and a rapidly growing exception to the exclusionary rule.
By way of background, the “good-faith exception” to modern exclusionary doctrine is predicated on the need to deter wrongful police conduct. If police engage in bad conduct, the argument goes, then the police should generally be punished by suppressing any discovered evidence. But sometimes the police engage in blameless conduct that nonetheless violates the Fourth Amendment. The “good-faith” exception then dictates that suppression is unwarranted. In Davis v. United States (2011), the Supreme Court held that the good-faith exception applies when police follow “binding appellate precedent” issued by circuit courts. This issue arose in Davis because circuit precedent had said that a particular kind of search was constitutional and the police acted accordingly--only to have the Supreme Court later hold the opposite. Davis effectively said that the police hadn't done anything wrong and so shouldn't suffer deterrence in the form of suppression.
But what exactly qualifies as “binding appellate precedent” for good-faith purposes? Davis itself held that an appellate precedent triggers the good-faith exception when it "specifically authorizes a particular police practice" that turns out to be unconstitutional. In fleshing out that standard, circuit courts have framed their inquiry in terms familiar to qualified-immunity jurisprudence.
Take United States v. Sparks, a thoughtful 2013 decision in the First Circuit. In his opinion for the court, Judge Stahl discussed how the good-faith exception should apply in a post-United States v. Jones GPS-tracking case. Here’s a key passage:
Before Davis was decided[,] a number of state and federal courts (including the Eleventh Circuit, as affirmed in Davis itself) had already adopted a Davis-type reliance-on-precedent exception to the exclusionary rule. They unanimously held—and we agree—that the exception is available only where the police rely on precedent that is “clear and well-settled.” [cites]. Indeed, the circuits that recognized the exception pre-Davis stressed that their “precedent on a given point must be unequivocal” for suppression to be withheld. [cites].
Sparks then concluded that this “clear and well-settled” standard—which sounds quite similar to the “clearly established law” standard that controls in qualified-immunity cases—was consistent with the reasons that the Supreme Court had created the good-faith exception to the exclusionary rule. As Sparks put it:
[T]his emphasis on the clear application of the precedent to the case at hand is consistent with Davis’s focus on deterrence; where judicial precedent does not clearly authorize a particular practice, suppression has deterrent value because it creates an “incentive to err on the side of constitutional behavior.”
In other words, officers are supposed to conform to the governing law of their circuit or the Supreme Court. But when those sources of precedential guidance provide no clear answer, there’s something important to be gained by encouraging officers to “err on the side of constitutional behavior.”
The logic here could easily be exported to qualified-immunity cases, and perhaps even to habeas. That is, officers might be more likely to err on the side of constitutional behavior when they know that they are risking civil liability or a habeas release order. Therefore, civil liability and/or habeas relief should be on the table unless the government has acted in accord with clearly established law. When officers stray beyond what their home circuits have clearly established as lawful conduct, they should be encouraged to think twice.
Yet that line of reasoning is not the governing principle in qualified-immunity and AEDPA cases. Instead, qualified immunity protects officers from civil liability unless they’ve violated “clearly established law.” Last week, the Supreme Court reserved whether and when circuit law meets that standard. Meanwhile, AEDPA Section 2254(d)(1) conditions relief on a violation of clearly established Supreme Court precedent. This week, the Court reinforced that principle, too.
So the prevailing view of the good-faith exception is in a sense the flip of the prevailing rule for qualified immunity and habeas. Whereas compliance with clear law is necessary to protect government interests in the suppression cases, defiance of clear law is necessary to overcome government interests in the qualified immunity and habeas cases. Put another way, violations of unclear and unsettled law will still trigger the deterrent of suppression, but won't trigger the deterrent of civil liability or habeas relief.
One way to compare these legal regimes is to ask: "What happens when police violate binding home circuit precedent?" Under the prevailing view, such officers:
- Haven’t violated “clearly established law” for purposes of AEDPA.
- Might have violated “clearly established law” for purposes of qualified immunity.
- Have violated “clear and well-settled law” for purposes of the good-faith exception.
Whether this spectrum makes sense depends on what each doctrine is and should be doing. Needless to say, each of these points is open to criticism. What’s more, all three points are, to varying degrees, disputed and in flux, as evident from recent Supreme Court activity in all three areas.
There’s also something to be said for considering these doctrinal areas (and perhaps others as well) in tandem. Here are a few examples of potential interactions between them. First, a strong deterrent arising from any one of these three mechanisms might reduce the need for the other two. Second, the various mechanisms might be better suited for different types of governmental conduct. So perhaps each doctrine should be narrowed and adapted to play to its own distinctive strengths. Finally, courts might see an advantage in borrowing insights and standards across these doctrines, thereby rendering them uniform over time.
It’s especially interesting to focus on qualified immunity and the good-faith exception, since both doctrines are associated with deterrence and frequently arise in connection with police action. Last year, a fine student note (“Toward A General Good Faith Exception”) argued that the standards in these two areas should basically be rendered interchangeable, so that more or less the same police conduct would both forfeit qualified immunity and authorize suppression. This approach, which effectively proposes that the good-faith exception expand to match qualified immunity, trades on the benefits of doctrinal uniformity. The general good-faith approach also has intuitive appeal: if police conduct is bad enough to trigger one type of deterrence, then it seems bad enough to trigger another. And if not, then not.
But even if we view this issue purely in terms of policy and cost/benefit analysis (which we shouldn’t), there are many plausible reasons for distinguishing qualified immunity and the good-faith exception. For example, the social costs of each type of remedy are very different in kind and perhaps also in magnitude. And, of course, it’s possible to think that the two standards should be made uniform not by expanding the good-faith exception, but rather by shrinking the scope of qualified immunity. In Davis, for instance, Justices Breyer and Sotomayor expressed concern that the good-faith doctrine might be headed toward a qualified-immunity-style standard. Besides worrying about leaving police without adequate deterrence, these Justices also suggested that the future elucidation of Fourth Amendment law might be stunted as a result. Similar concerns arise in the qualified-immunity context.
Notably, the general good-faith approach recently took a major step forward in the en banc Third Circuit case United States v. Katzin, decided just last month. (Orin Kerr discussed it here.) The question, much as in Sparks, was whether suppression was warranted where the police had attached a GPS tracking device before United States v. Jones. Without Third Circuit precedent on point, Katzin held that two Supreme Court cases from the early 1980s provided all the “binding appellate precedent” necessary to trigger the good-faith exception. In doing so, Katzin held that binding appellate precedent can yield good-faith reliance even if the precedent doesn’t “specifically authorize” the police conduct. It’s enough, Katzin held, for the police to have acted “well within the rationale” of binding case law.
Self-consciously going even further, Katzin alternatively held that Davis was but one application of a broader good-faith principle. The Third Circuit accordingly deployed “the Supreme Court’s more general good faith test,” finding that the officers had “a good faith belief in the lawfulness of their conduct.” This inquiry looks a lot like the current inquiry for qualified immunity. Most relevant for the present purpose, Katzin considered, among other things, out-of-circuit precedent at the time of the officers' conduct, finding it either supportive of the police or distinguishable. In a five-judge dissent, Judge Greenaway responded: “[L]aw enforcement made a deliberate decision implicating constitutional principles on the basis of a 3-1 circuit split, absent any specific authorization for their conduct. What if the split had been 2-2 or 1-3?”
After Katzin, it’s only a matter of time before the Supreme Court decides to rule on whether Davis sets the outer limits of the good-faith exception. Indeed, we might get some more insight into these issues as soon as this term, in Heien v. North Carolina.
The above is from Re's Judicata.
Thursday, November 20, 2014
My prayers and best wishes go out to the victims of the shooting at FSU for a speedy and complete recovery.
Tragically such shootings have become common enough that universities and schools must prepare and plan for them. A couple of years ago I attended an "active shooter" training lecture whose purpose was to prepare faculty and staff at my law school to respond to a situation involving an active shooter. According to that lecture, the active shooter is "considered the greatest terrorist threat on campuses." The shooter's "desire is to kill and seriously injury without concern for [the shooter's] safety or threat of capture." Although the shooter may have intended victims, he will accept "targets of opportunity" and will keep moving "until stopped by law enforcement, suicide, or other intervention." Here is a summary of the advice for faculty and staff in dealing with an active shooter situation: "Secure the immediate area. . . . Lock the door. Block the door . . . . If the shooter enters your room and leaves, lock the door behind them. If safe, allow others to seek refuge with you. . . . Stay quiet and out of sight. Put something between you and the shooter." The most chilling bit of advice, however, was the following: "We can no longer predict the origin of the next threat." No. No, we can't.
Zick on public protest and Ferguson
Many thanks to Howard for inviting me to weigh in on the events in Ferguson, Missouri. I’ll probably add just a few posts to his excellent commentary, depending on how things develop.
The conflict in Ferguson has presented a free speech moment – or series of moments. In addition to the much-discussed protests (more on that below), there have been several other First Amendment issues and concerns: advocacy of civil disobedience by some protesters, arrests for unlawful assembly, allegations that prior restraints have been used, arrests and abuse of the press, occupation of public places, use of “free speech zones,” and concerns about the propriety of Ferguson police officers wearing bracelets that express support for Officer Wilson. In short, there has been no shortage of First Amendment controversies following Michael Brown’s death.Of course, the protests themselves have occupied center stage. The media are attracted to conflict, and the conflict is important. Once again, we have seen the delicate balancing of tolerance and respect for public assembly and speech with the need for order and public safety playing out in real time. And once again, the results have been disappointing - or worse. As I argue in my book, Speech Out of Doors, a variety of legal and non-legal forces have combined to challenge traditional protests and other public modes of contention and dissent. Howard has thoughtfully posted on some of the problems associated with the militarization of public places and escalated force protest policing (e.g., here and here). Chapter 7 of my book examines militarization at various public events, including national party conventions, presidential inaugurals, and world summits. Militarization has been on the rise, in part owing to post-9/11 federal dollars flowing to local police departments. As Ferguson shows, local police forces across the nation are now equipped with the tools of militarization. Some have used surveillance, shows of force, and other military tactics in policing local events.
Of course, the possession of military-style equipment does not guarantee the use of escalated force. Police forces can and do act with appropriate restraint. Some of Howard’s commenters have asked about evidence for the link between militarization and protester responses. Social scientists have carefully studied protest policing, and they have argued in favor of a “negotiated management” style in part owing to the costs of escalated force policing. Of course, there is historical evidence that escalated force leads to violent confrontations – the 1968 Democratic National Convention in Chicago, the WTO debacle in Seattle in 1999, and recent national party conventions in Boston, New York, and elsewhere. Sure, some protesters at these events were looking for violence. And sure, sometimes police need to respond with force. But as Howard’s posts suggest, one of the problems with militarization is the attitude it sends about public protests and public places. As a mindset, militarization can exacerbate and even invite conflict. This was one reason many police departments abandoned escalated force policing. It’s come back, in the form of militarization. I’m skeptical that we can keep arming police to the hilt while expecting them to exercise restraint in the face of angry and emotional crowds. When officers divide streets into military-style grids and gird for battle, even peaceful protesters and reporters are at risk. To be clear, there is no excuse for lawless behavior by protesters. Nor is criticism of militarization meant to suggest “anything goes” protest policing. Balance, proportionality, and forbearance are required. But too frequently of late, these things have been in short supply at public events.
To their credit, Ferguson officials have tried everything from personnel changes to personal apologies in an effort to calm the public and preserve rights to peacefully protest and assemble. Nevertheless, today there is a sense of foreboding in the press and on the blogs (including this one) about what will happen next. Last night’s arrests of protesters outside a barricaded police station may be a harbinger of things to come, in Ferguson and elsewhere.
Hoping to help Kickstart a notable new death penalty documentary
I have not posted here in a long time, but I am eager now to promote widely an important film project from some folks in London focused on modern US death penalty stories. I am partial to the project because one of my former students, Allen Bohnert, OSU Moritz College of Law grad ('06), is one key subject being documented in his role as current lead counsel in the long-running Section 1983 litigation over Ohio's lethal injection protocols.
This notable project is still in production, and the filmmakers are currently fundraising for financial support to help allow them to finish filming. The Kickstarter campaign is available here; lots of interesting items are available (such as signed copies of Bryan Stevenson's book, Just Mercy, one-off pieces of art and the film itself) for any donation over $25. I have been told that they will not be able to effectively finish this film without additional help for further funding.
The film itself is titled The Penalty, and it is to be a 90-minute feature documentary examining the current state of America's capital punishment system. While some other documentaries have focused on death row stories through the lens of condemned prisoners, this film looks more closely at people involved not on the row: lawyers, family members, politicians, campaigners, law enforcement, and others. A snippet from some filming so far is available at www.thepenaltyfilm.com
I understand that the filmmakers have been particularly focused on following (1) my former student, Assistant Federal Public Defender for the Southern District of Ohio Allen Bohnert through the problematic execution of Dennis McGuire and its fallout, and (2) Louisiana death row exoneree Damon Thibodeaux as he puts his life back together after wrongful conviction and exoneration. I believe they are also filming lots of other characters from the capital punishment universe, including many experts in the field such as Debby Denno, Jeanne Woodford, David Dow, Kathryn Kase, Peter Neufeld, Richard Dieter and Clive Stafford-Smith.
Finally, I have been told that if you have any ideas on stories that the filmmakers should look at, or have ideas of people they should talk to (e.g., grant-giving foundations, media outlets, campaign groups, or others), the filmmakers are looking to spread their network far and wide. You can pass on ideas by emailing [email protected] or [email protected].
Cross-posted at Sentencing Law and Policy.
Rules of engagement, ctd.
In looking at the rules of engagement offered by leaders of potential Ferguson protests (calling themselves the "Don't Shoot Coalition") as a whole, the central question becomes one of defaults. The default, they argue, must be that this is a peaceful assembly and expressive event that police should allow to go forward without interference unless there is genuine indication of significant threats to public safety. And even then, the default should be that those threats are from individual lawbreakers, who should be dealt with, and not the demonstration itself or the great mass of lawful speakers and speech.
Of the 19 proposed rules, consider: # 16 (allow "every latitude" for free assembly and expression); # 15 (tolerate minor lawbreaking); # 14 (tolerate an expansion of the scope, size, or duration of the protest); # 13 (figure out alternate routes for foot and street traffic); ## 7-8 (not military gear or equipment--this is one the police flatly rejected); # 18 (no attempts to preemptively or pretextually stop protesters from organizing and beginning). This is not to mention more common-sense rules, such as be professional and don't use excessive force (# 17--we really need to state that rule?)
We can disagree over particulars. But the tenor seems right to me: Start from the presumption that this is lawful and deal with it when it isn't, rather than the other way around.
The Law's Position on Free Will
Will advances in neuroscience radically transform criminal law? Stephen Morse believes they won't. To the extent neuroscience merely gives us a fuller picture of brain mechanisms, he argues, it ought not affect the law because the law does not require us to be the ultimate physical cause of our behavior. Provided we have no excusing condition like insanity, the law deems us responsible for our actions because, Morse writes, “the law’s official position” is “that conscious, intentional, rational, and uncompelled agents may properly be held responsible.”
Morse defends a compatibilist view of free will. He believes that even if all of our actions are caused by our brains which in turn were caused by states of the universe before we were born, we can still be morally responsible for our actions. And some of Morse's writing imply the view that the law itself takes a compatibilist stance toward free will.
While the law is generally consistent with compatibilism, I argue that the law is also consistent with another view about free will that we can call soul-based libertarianism. On this view, we can be morally responsible for our actions provided that they emanate from non-physical souls. In other words, the law may treat our choices as somehow special, occurring outside the boundaries of the natural world. Indeed, the law was crafted over centuries with contributions from thousands of people. For a long portion of that history, lawmakers likely held some version of a libertarian view about free will.
The Supreme Court of Michigan may have reflected a libertarian worldview in the nineteenth-century case of Maher v. People. The court sought to determine which provocative circumstances, like adultery, should mitigate what would otherwise be murder to a less severe conviction for manslaughter. The court said that the circumstances need only have the natural tendency to create a heated emotional state because it need not be “such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects follow from physical causes; for then the individual could hardly be held morally accountable.” In other words, if a person’s behavior is caused in the way that one physical entity causes another physical effect, then he cannot be held morally or legally accountable at all. While the statement in Maher could perhaps be given a compatibilist interpretation, at least taken literally, it seems to deny responsibility for mechanistic actions that follow with certainty from physical effects.
One case hardly generalizes to the entire corpus of law. Still, the criminal law was largely devised by people who held libertarian views like those in Maher. When, if ever, did the law change its position? Some empirical evidence, though it is controversial, suggests that most people naturally hold libertarian views, even today. Here is the key point: Questions about free will go back centuries. But whatever your view about free will, the law may have its own view. To the extent we're unlikely to resolve questions about free will to everyone's satisfaction, the law's default position takes on increasing importance. While I hardly think the law takes a clear stance on the issue, to the extent that purposive analysis is appropriate, the law may well be vested with soul-based libertarian inclinations.
Lastly, to a much greater degree than compatibilism, soul-based libertarianism actually is threatened as neuroscience becomes more powerful and comprehensive. The better neuroscience becomes, and, as Greene and Cohen suggest, the easier it is for us to visualize neuroscientific mechanisms, the less we will be inclined to rely on souls to understand human behavior. Consider a judge who believes that all people act because of first-moving decisions they make in their souls. Such a judge may start to question whether someone really has “intent” to kill when the judge subsequently comes to understand intentions in mechanistic terms. Thus, if the law has soul-based libertarian roots, it is indeed vulnerable to advances in neuroscience (and other sciences) that continually remind us that we are mechanistic cogs in the universe.
(This post is adapted from the recently published article, Will There Be a Neurolaw Revolution?.)
Wednesday, November 19, 2014
Rules of engagement
One of the commentators on my earlier post asked what I would suggest as an alternative to calling out the National Guard. This is a start: Negotiations between law enforcement and protest leaders about "rules of engagement" in any upcoming protests following the grand jury decision. As Tim Zick described in his book, such negotiations have become a significant aspect of public protest, especially large, planned gatherings targeting specific times, places, and events. And while one would think that the First Amendment should be the only necessary rule of engagement, past events in Ferguson (and elsewhere) suggest that a clear body of rules, agreed upon and understood by all involved, might be a way to ease tensions from the start.
Unfortunately, one sticking point seems to be whether police will forego riot gear, armored vehicles, and tear gas in the first instance--in other words, police not working from a presumption that the gathering is a riot and protesters are combatants.
Say (French) Cheese
To comparative and EU copyright scholars, how is this possible—that the Eiffel Tower is copyrighted at night when lit up? I am having trouble buying the artwork argument, but I understand French copyright to be strict. I guess keep that in mind if you are headed to check out the Tower’s new glass floor for the holidays…
The Right of Law Professors to Petition for Redress of Grievances
Law professors spend a lot of time thinking about how the law should be, and writing it up for publication. My sense is that we spend less time actually trying to change the law to conform to our views of sound policy or justice. For scholars writing about matters governed by the Federal Rules, there is a mechanism to get your arguments seriously considered by experts. As I was poking around on the U.S. Courts website, I found that Professor Carrie Leonetti had asked the Advisory Committee on the Federal Rules of Criminal Procedure to adopt her proposal, published in the Southern California Law Review, to create a summary judgment mechanism for defendants in federal criminal cases when it was clear that an element of the offense was missing. Inspired, I wrote to the committee asking them to consider enacting into rule a proposal I raised in an article to generate pre-plea sentencing reports to avoid the common problem of people pleading guilty without knowing the sentencing range to which they will be subject. (I admitted in the paper as I do here that the idea originated with Judge Buckely of the D.C. Circuit). Now, both proposals were shot down--although the US Courts website, mistakenly, I believe, reports that proposals which have been ruled upon are still "pending consideration." But my proposal got a very serious hearing from the eminent reporters to the Committee, Sara Sun Beale and Nancy J. King. Here's the page describing how to submit a suggestion.
Tuesday, November 18, 2014
An AEDPA Sum Rev on Circuit Precedent and "Clearly Established" Law
Already, "clearly established" law is a clearly established theme of this term's summary reversals. I've been posting on recent qualified immunity cases, including the summary reversal in Carroll v. Carman. Yesterday's summary reversal, Glebe v. Frost, is an AEDPA case that touches on similar issues--with the significant difference that AEDPA expressly focuses on clearly established Supreme Court precedent. (Many thanks to Ronald Mann for pointing out this aspect of Glebe.)
Here's the most relevant passage from Glebe, which I've broken up into two paragraphs:
Attempting to bridge the gap between Herring [a Supreme Court precedent] and this case, the Ninth Circuit cited two Circuit precedents—United States v. Miguel, 338 F.3d 995 (C.A.9 2003), and Conde v. Henry, 198 F.3d 734 (C.A.9 2000)—for the proposition that “preventing a defendant from arguing a legitimate defense theory constitutes structural error.” 757 F.3d, at 916. As we have repeatedly emphasized, however, circuit precedent does not constitute “clearly established Federal law, as determined by the Supreme Court.” §2254(d)(1); see, e.g., Lopez v. Smith, 574 U.S. ––––, –––– (2014) (per curiam ) (slip op., at 6).
The Ninth Circuit acknowledged this rule, but tried to get past it by claiming that circuit precedent could “ ‘help ... determine what law is “clearly established.” ’ ” 757 F.3d, at 916, n. 1. But neither Miguel nor Conde arose under AEDPA, so neither purports to reflect the law clearly established by this Court's holdings. The Ninth Circuit thus had no justification for relying on those decisions. See Parker v. Matthews, 567 U.S. ––––, –––– (2012) (per curiam ) (slip op., at 13).
The Ninth Circuit's idea here was that circuit precedent might clarify just what is and isn't "clearly established law." In making this point, the Ninth Circuit had relied on Duhaime v. Ducharme, one of its own decisions from 2000. Here is the key language from Duhaime:
[T]he writ will issue only when the state court decision is “contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). This does not mean that Ninth Circuit caselaw is never relevant to a habeas case after AEDPA. Our cases may be persuasive authority for purposes of determining whether a particular state court decision is an “unreasonable application” of Supreme Court law, and also may help us determine what law is “clearly established.”
It is remarkable that, in the Ninth Circuit, this statement has apparently been citable law on AEDPA since 2000--at least until yesterday's summary reversal in Glebe.
Duhaime calls to mind Michael Dorf's recent suggestion on qualified immunity:
I can see a legitimate argument for saying that there might be cases where Supreme Court precedent falls just short of clearly establishing that what the particular officer did violated rights, but that a federal appeals court case is enough to push the case over the edge. The idea (which I'm only advancing very tentatively) is that the federal appeals court plays a special role in this sort of case: It makes it harder for the officer to say "it never occurred to me that the Supreme Court case applied to facts like these."
Though only "very tentatively" suggested, this line of thinking could provide some basis for Duhaime's conclusion--or something like it--and might be useful in other areas where clearly established circuit precedent is at issue.
In the Glebe passage quoted earlier, the Supreme Court responded to the Ninth Circuit by noting that the relevant circuit cases didn't deal with AEDPA and so didn't "purport to reflect" clearly established Supreme Court precedent. Instead, the circuit precedents were just circuit precedents, which is what AEDPA says doesn't qualify.
The cite at the end of Glebe is to this passage from Parker v. Matthews, a unanimous summary reversal from 2012:
[C]ircuit precedent does not constitute“clearly established Federal law, as determined by the Supreme Court,” 28 U. S. C. §2254(d)(1). It therefore cannot form the basis for habeas relief under AEDPA. Nor can the Sixth Circuit’s reliance on its own precedents be defended in this case on the ground that they merely reflect what has been “clearly established” by our cases. ... To make matters worse, the Sixth Circuit decided Gall II under pre-AEDPA law[,] so that case did not even purport to reflect clearly established law as set out in this Court’s holdings.
In both Glebe and Parker, the Court came close to disqualifying all non-AEDPA circuit precedent from consideration under AEDPA's §2254(d)(1). That rule would have a certain appeal for the Justices, since it would make it easier for them to police the circuits: if the Court keeps a close watch on AEDPA cases, then it can rest assured that it's exhaustively monitoring all precedent capable of triggering a habeas release order under §2254(d)(1). And, to the extent that the Court disqualifies circuit precedent, policing the circuits would also get much easier in each case. The Court would be able to focus exclusively on lower-court citations to the US Reports. Circuit-court discussions of circuit case law would be discouraged, and in any event could just be ignored.
But what if a non-AEDPA circuit decision does expressly "purport" to say what is and isn't clearly established Supreme Court precedent? Could that kind of statement be viewed as circuit authority on what qualifies as clearly established Supreme Court precedent? Perhaps we'll see that permutation arise in the years ahead.
The above is cross-posted from Re's Judicata.
You can't have it both ways
Fox News (yeah, I know) reports that the FBI is warning law enforcement officials nationwide that the failure of the grand jury to indict Off. Darren Wilson is "likely" to lead to violence. In particular, they are saying that police and property may be targeted and that there may be cyberattacks by people "exploiting" the event as a way to engage in unlawful activity. Of course, the FBI also "stressed the 'importance of remaining aware of the protections afforded to the all U.S. persons exercising their First Amendment rights of freedom of speech and freedom of assembly.'”
Sorry, but you cannot have it both ways. If you put law enforcement (and the national guard) on High Alert for attempts to undermine society, it is impossible for them to simultaneously remain aware of the First Amendment, for fear of guessing wrong. And since it is impossible to tell the exploiters from the exercisers, the only solution is to get everyone off the streets.
This does not end well.
Prior restraint: How far have we really come?
In a comment to my earlier post on the preemptive state of emergency in Ferguson, Steven Morrison asks whether an advance state of emergency and deployment of troops amounts imposes such an extraordinary chill on speech as to amount to a de facto prior restraint. I think the answer is no. But the point made me think.
In a current work-in-progress, I discuss Walker v. City of Birmingham, in which the Court held that the Collateral Bar Doctrine applied even to the First Amendment and even as to a blatantly unconstitutional injunction. Anticipating civil rights marches during Easter week 1963, officials in Birmingham got a state judge to issue an injunction that repeated, word-for-word, the text of the city's unquestionably unconstitutional permitting ordinance* and prohibited movement leaders from leading or encouraging marches without a permit. When the marches went ahead anyway, the leaders were jailed for contempt of court for violating the injunction. A 5-4 Court upheld the convictions, insisting that the long-held obligation with an injunction is to challenge the injunction directly or obey it (in this case by getting a permit).
* In dissent, Justice Brennan derided this process of converting an ordinance to an injunction as "inscrutable legerdemain."
So my answer to the question in the title of the post is that we actually are moving backward where public assembly and expression are concerned. As corrupt as the events and officials in 1963 Birmingham were, they at least went through the pretense of judicial process. Here, with the stroke of a single executive's pen, the possibility of protest--even without any genuine threat of unlawful behavior--has been declared an emergency and a threat to civil society, justifying deploying military force and turning Ferguson into a battle zone.
Can we really say this is more respectful of First Amendment ideals than what happened fifty years ago?
Common Law Creatures Roaming in Civil Law Countries
When I was visiting at Oxford recently, one thing that struck me was the dramatic interest in the trust in Europe and how many European scholars were studying and writing on trusts. This interest was catalyzed by the EU Succession Regulation, which goes into effect in August of 2015, making it easier for Europeans to plan across borders their property transfers at death. Under the EU regulation, there must be mutual recognition of legal decisions on succession throughout the EU. Additionally, European citizens may now choose between their nationality and residence as the applicable law to their succession. European member states will also need to develop laws that harmonize their laws with those of other member states.
All of this squarely implicates the trust. The problem, of course, is that trusts—used so frequently in England and the U.S.—are not fully recognized in civil law systems such as France. In fact, many civil law systems have trouble recognizing this kind of split in property ownership and have concerns that trusts lead to tax fraud and money laundering.
My forthcoming article, co-written with a French notaire, looks at this problem. We note that the French civil code lacked any form of a trust until 2007, which saw the introduction of a trust-like instrument called the fiducie. Since 2007, France has expanded its code relating to the fiducie and eliminated many restrictions on its operation. However, even with this expansion, the fiducie still may be lacking under the European Regulation on Succession. We conclude that the notaire (a highly specialized lawyer) can help develop and create the fiducie that harmonizes with common law trusts in order to avoid litigation.
Who knew we’d spot a common law creature—or close to it—in a civil law country?
Moral Panics and Body Cameras
That is the title of my new essay in Wash. U. L. Rev. Commentaries (and forthcoming in Wash. U. L. Rev.). The abstract is after the jump.
Obviously, I have been thinking about Ferguson quite a bit of late.This Commentary uses the lens of "moral panics" to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence and the difficult questions of implementing any body camera program. In overstating the case, the rhetoric of body cameras becomes indistinguishable from rhetoric surrounding responses to past moral panics.
Lowe on American Legal History Since 1998
I quite enjoyed Jessica Lowe's article, Radicalism's Legacy: American Legal History Since 1998. An economical 12 pages, it surveys developments in American legal history scholarship in the past decade and a half or so, framing it around the continuing influence of Robert Gordon's famous piece Critical Legal Histories.
In Lowe's telling, much of the key work done since 1998 can be grouped into a few categories: "The first four dominated the field: legal pluralism, civil rights and rights consciousness, state-building, and citizenship. In addition, other scholars experimented with the construction of racial identity, often using the more ethnographical or narrative approach favored by critical race theory. Finally, senior scholars continued to produce more sweeping studies, often examining American law over the course of ambitious spaces or time frames."
Of particular interest to me is Lowe's discussion of the "totalized contingency," in Christopher Tomlins' terms, that emerged from later efforts to carry on Gordon's work. Quoting Tomlins, she writes:
The proliferation of contingency and indeterminacy had spawned a field full of studies emphasizing merely, as Christopher Tomlins termed it, "plurality." Not just legal pluralism, but something deeper, darker. Tomlins cautioned, "ultimately, totalized contingency is a deeply tragic form of subversion, for it does not discriminate in the paralysis it [metes] out. In undermining the authority of all narratives, it spares none, even those that may be most precious to the powerless, those whom we once desired to liberate."
Lowe herself draws a more ambivalent conclusion from this state of affairs, finding positive as well as negative possibilities in it. It seems like mostly good news to me. Unyoking the critical historical project from any particular political valence or mission, other than "contingency and indeterminacy," creates the possibility of all kinds of interesting critical and reconstructive work from a variety of political perspectives. Those may include conservative, religious, and illiberal ones, as well as the more conventional academic-left perspectives. This is how I read Steve Smith's valuable historical and theoretical writing on law and religion, which I have called an excellent example of "Conservative Critical Legal Studies." On the whole, this seems like an obviously positive development.
Regardless, Lowe's article is interesting, clean and clear, and a good source for key writing in the field of American legal history in the past 16 years. I recommend it enthusiastically.
The Misreading of Greene and Cohen
One of the most cited papers in neurolaw circles is For the Law, Neuroscience Changes Nothing and Everything by Joshua Greene and Jonathan Cohen. Many neurolaw scholars seem taken by its claims that we lack free will and that the legal concept of responsibility will eventually change to a more consequentialist system that does not depend on moral responsibility. What such scholars frequently fail to recognize is that the paper's claims about free will, while crisply and engagingly expressed, cover no new ground. They discuss positions long recognized and discussed by philosophers.
The paper's more significant contribution consists of a prediction. Greene and Cohen predict that as neuroscience continues to improve, we will more easily visualize the chain of causal connections between the physical world, our brains, and our decisions. It will be harder to hold on to intuitions of moral responsibility, they argue, as we start to understand ourselves as mere cogs in a universe that set our choices in motion long before we were born. As moral intuitions change, doubts about responsibility will grow, and those who craft the law will change it so that it no longer depends on increasingly dubious claims about responsibility.
Once the paper's predictive ambitions are clear and they should be to anyone who read the abstract, the central problem with the paper becomes easier to recognize: they offer very little evidence to support their prediction. I happen to be sympathetically disposed to the consequentialist world they envision. But will it come to pass for the reasons they give? The paper offers little reason to sway you. It depends on a variety of issues touched on by psychology, anthropology, religion, and more that receive little or no attention in the piece.
In Part I of my recently published paper, Will There Be a Neurolaw Revolution?, I describe some of the holes that need to be filled to support Greene and Cohen's prediction. Josh Greene tells me by email that their original paper was meant as a kind of informed speculation and that his ongoing research will flesh out the prediction. As I said, I'm sympathetic to his view and will be very interested to see how the research pans out. But in the meantime, the jury is out as to their prediction and should remain so for some time.
Monday, November 17, 2014
Inevitable conflict and the state of the First Amendment
This story reports on some planned protests in and around Ferguson when, as expected, a state grand jury declines to indict Off. Darren Wilson in the shooting death of Michael Brown. And this story reports that the governor has declared a state of emergency and called in the National Guard in anticipate of protests when, as expect, the grand jury declines to indict.
But those moves together make violent conflict inevitable. Ferguson was defined, in part, by the way in which militarized police behaved like soldiers in a war zone and reacted to potentially peaceful assembly accordingly. How can it possibly go better if the solution is to bring in actual soldiers? Moreover, note the governor's logic--the possibility of people taking to the streets to protest against a perceived injustice, absent any indication that things will turn violent constitutes a state of emergency warranting immediate activation and placement of the state's military force.
The First Amendment at least purports to recognize public streets and sidewalks as places that "time immeorial" have been reserved for expression. But the governor seems to believe that the possibility of streets being used for that "time immemorial" purpose is, by its nature, a threat to public order.
Update: Here is another take on it. And to answer a commenter's question: There has to be a way to be prepared and to take precautions that does not involve treating the possibility of protest as an emergency that threatens civil society. This type of response is virtually guaranteed to produce violence: "We're in a state of emergency, you're on the street, we're going to move you off the street by force." And now we have either 1) protesters resisting, triggering violence or 2) protesters peacably leaving, but not being able to exercise their constitutional rights to peaceably assemble and speak. Surely there must be some middle ground.
Should Circuit Precedent Deprive Officers of Qualified Immunity?
I recently posted on Carroll v. Carman, which assumed arguendo that circuit precedent could constitute clearly established law. My earlier post discussed some of the case law raising this important and fascinating issue.
In this post, I’ll discuss whether it makes sense for circuit law to deprive officers of qualified immunity.
Circuit law’s optimal effect on qualified immunity largely depends on a single question: whether it is a good idea to protect officers who ignore or second-guess circuit precedent. There are obvious reasons not to protect these officers from civil liability. Circuit courts generate the vast majority of precedential rules applicable to officers, and we generally treat those rules as, well, rules. So it makes a lot of intuitive sense for qualified immunity doctrine to encourage officers’ familiarity with this body of law.
But the issue can look more complicated, particularly if you’re a Supreme Court Justice. Because while the circuit courts are legitimate courts, they don’t always decide things correctly. In fact, circuit courts sometimes get things very badly wrong in the eyes of the Nine. That undeniable fact helps explain unanimous qualified immunity reversals like Reichle and the summary reversals in Carroll and Stanton. As discussed in my last post, those cases not only took circuits to task, but also expressed broader interest in curbing the status of circuit precedent in qualified immunity cases. It may not be a coincidence that cases reversing circuit precedent have also shown interest in demoting it. Justices who feel distrustful of the circuit courts might not want those courts’ rules to have too much effect on officers’ conduct. Rather, the Justices might want to maximize their managerial control by ensuring that only their own precedents penetrate qualified immunity. This point counts double to the extent that some Justices are especially distrustful of particular circuits with a reputation for outlandish (read: frequently reversed) rulings.
This distrustful attitude toward circuit courts calls to mind the standard for habeas relief under AEDPA. That statutory standard generally requires habeas claimants to show a violation of clearly established Supreme Court precedent. Circuit precedent will not do. Yet the two contexts are of course quite different. For one thing, the point of AEDPA was largely to shift responsibility for review of state criminal convictions to state courts. That approach may be right or wrong, but it has a strong tradition in federalism. By contrast, suits for (federal) constitutional wrongs have generally been thought to be the special responsibility of the federal courts.
In the qualified immunity context, skepticism of circuit courts could express itself in different ways. Here are eight possible flavors, each of which has some foothold in the cases discussed in my first post.
On-point circuit precedent could strip qualified immunity:
- Unless the officer is a national officer.
- Unless it is inconsistent with earlier Supreme Court precedent.
- Unless it is inconsistent with the precedent of local state courts.
- Unless it is inconsistent with the precedent of other jurisdictions.
- Unless the officer has obtained an expert legal opinion saying otherwise.
- Unless it is unpersuasive.
In comments to my last post, Howard Wasserman and Will Baude pointed to SCOTUS cases like United States v. Lanier, which say that circuit precedent is at least relevant to qualified immunity. And Jim Pfander made a similar point regarding Camreta v. Greene (also discussed below). These cases suggest that the "Never" option would require overruling precedent. But the other options might be more available.
Of course, it’s possible to combine various options above, and there’s lots of room to play with the standard of legal clarity—for example, the “inconsistent with” standard could be softened or complicated. You could even imagine that the status of circuit precedent might vary by court: circuit courts might treat their own precedents as clearly established law; but if the case reaches the Supreme Court, then only SCOTUS precedent might apply. In that sense, "clearly established" precedent may be in the eye of the beholding court.
Importantly, adopting one option or another might prompt counterbalancing changes in doctrine or judicial behavior. For example, adopting options further down the list might prompt the Supreme Court to hear more constitutional tort cases, thereby mitigating what would otherwise be a system-wide reduction in precedent capable of overcoming qualified immunity. Or, as Andrew Siegel commented, the Court might adopt a looser understanding of how "clear" Supreme Court precedent has to be in order to de-immunize officers.
It’s also worth noting that options further down the list dilute the effect of allowing circuits to reach the merits in qualified immunity cases (as currently permitted by Pearson v. Callahan and related Supreme Court cases). If circuit precedent can never eliminate qualified immunity, for instance, then circuits’ merits decisions in qualified immunity cases won’t have much effect on officers’ future conduct. Yet the Supreme Court often seems to take it for granted that circuits can at least sometimes change officers' immunity calculus. In Camreta, for instance, a sharply divided Court noted that circuits should often rule on the merits in qualified immunity cases precisely in the hope of "establishing controlling law and preventing invocations of immunity in later cases." So perhaps the ambiguous status of circuit precedent is tied up with the still-controversial practice of allowing circuit courts to reach the merits after finding qualified immunity.
Michael Dorf recently posted a different take on Carroll and its reservation. The key to Dorf's analysis is the rule that state courts aren't bound by (federal) circuit courts. He concludes: "if the state court judges in the quiet of their chambers are free to reach different conclusions from those reached by federal judges, then police officers making snap judgments should not be bound by those same federal decisions." Dorf explains that this is "probably the right answer," but he also makes clear that "a respectable argument can be made to go the other way."
While Dorf's argument has some force, there is an important relevant difference between state judges and state police: only the police are routinely sued in federal court for violating federal rights, leading to invocations of qualified immunity. To the extent that qualified immunity is, and should be, a central vehicle for holding police to account, it makes sense to fashion that doctrine so as to create desired police incentives. And that pragmatic frame leads to the set of questions and options outlined above.
Another possible reason for excluding circuit precedent from "clearly established law" derives from Supreme Court review. Imagine that a circuit makes a clear holding and, later, that the Supreme Court wants to consider whether that holding is correct. If the Supreme Court disagrees with the circuit and establishes a different rule, then a supposedly "clearly established" bit of law would be no more. Put another way, there is a conceptual tension between saying that circuit precedent is "clearly established law" and saying that it could be rejected at any time by the Supreme Court. This tension would be resolved if the Court clarified that what deprives officers of qualified immunity isn't clear law so much as clear notice of what is and isn't immunized. Circuit courts could comfortably provide such notice. Whether circuits should be able to provide that notice is, again, a practical question leading to the analysis above.
All this points toward another, perhaps even more interesting question: If on-point circuit precedent might not be "established" enough to deprive officers of qualified immunity, why should Supreme Court precedent be any different?
Imagine for example that a Supreme Court precedent prohibits Action X, but the precedent in question was highly divisive and poorly reasoned. If you like, further imagine that there now appears to be a majority of the Court prepared to overturn the precedent. An officer might then say: “Action X is precluded by Supreme Court precedent today, but that’s only precedent. The Constitution, properly understood, is on my side.” Would that officer have a plausible claim to qualified immunity, on the ground that no “clearly established law” precludes Action X?
To make the point even sharper, imagine that the officer does Action X and that the Supreme Court then declares that its own apparent precedent against Action X was actually just non-binding dictum--and a potentially erroneous dictum at that. Then the officer gets sued for her prior action. Should that officer have the benefit of qualified immunity? Maybe so, since the Supreme Court itself would have validated the officer’s skepticism of the earlier Supreme Court precedent at issue. (Should it matter whether the officer actually thought through any of this, or sought out a legal opinion on the subject?)
In a 2013 DC Circuit case, Moore v. Hartman, something similar actually happened. To simplify somewhat, an officer seemed to have violated then-extant precedent from the circuit court and perhaps even the Supreme Court, but the Court later suggested (including in Reichle, as it happened) that the relevant legal issue was actually unsettled. After all that had happened, the DC Circuit had to decide whether the officer should get immunity, even though the officer’s alleged conduct (when the conduct was performed) was contrary to on-point circuit precedent. The panel divided 2-1 against immunity. As this case illustrates, the relationship between circuit precedent and qualified immunity is already starting to become an issue in the courts of appeals.
With the Court now repeatedly noting these issues, perhaps the circuit courts will become more attuned to them, creating the possibility of a circuit split--and a cert vehicle that can raise the issues directly.
The above is cross-posted from Re's Judicata, where there are also some interesting comments.
I Can't Stop Thinking About Steven Salaita This Hiring Season
The Salaita case raises a number of issues of academic freedom and culture, but it also has significant implications for the pragmatic aspects of hiring. The rubber stamp at the board of trustees level has always been thought to be a formality, but now, clearly, it is not. And this will be true even if Professor Salaita wins his suit, because a school that wants to have a board review surely is capable of writing an offer letter to require one, even if he prevails on a claim that it was not clear enough here.
So what are the likely moves?A risk-averse lateral will: 1) not resign from her current position without a positive board vote, 2) delay her starting date, turning hiring from a two-semester process to a three- or four-semester marathon, or 3) demand a timely board vote as part of the negotiation. The first option could involve taking a leave of absence to visit at the acquiring school while retaining one's current position, or it could involve a professor simply failing to mention to her current dean until the middle of August that she won't be teaching her scheduled courses, for the reason that she has moved away to take another job. The second option would mean that the acquiring school would be delayed in getting the work they wanted while the old school would have a lame duck colleague.
The third option makes the most sense, for both the schools and the laterals. I understand why trustees might retain jurisdiction over tenure contracts as they do over other university expenditures (although I also understand why an institution might abolish a formality which functions only to cause train-wrecks). But every tenure vote I have ever heard of (other than the appeal of a denial of tenure) has been on the board's consent calendar, not something that the board actively evaluates and considers. Here are recent examples from Miami U and the University of Texas; the UT example is particularly illuminating, because it is a consent package of 74 agenda items with 64 pages of detail. The average trustee, I assume, does not read a 64-page memo describing issues that the upcoming board meeting will not address. it would be no no loss to trustee decision-making to have a tenure consent agenda each, say, February, March, April, and May, circulated by email, which is deemed automatically approved unless a trustee wants to put it on the regular agenda for discussion.
Has anyone seen any increased discussion of this issue in the hiring process this season?
By the way, nothing in this post should be taken as a view on the merits of Professor Salaita's political views.
Sunday, November 16, 2014
Rover. Land Rover.
Sometimes academic studies and works can be entirely funded by an outside group. Transparency about these sorts of projects is desirable, and people may react to the resulting work skeptically. This is exactly what happened to one of the authors of the James Bond novels, William Boyd. He’s just released a 17,000-word story “The Vanishing Game,” for which Land Rover paid six figures. The company gave him major creative license in composing the story, telling him only that it “would be good” if a Land Rover appeared at some point. Apparently (although I just started reading the story), the Land Rover Defender only appears in the novella as the protagonist’s car as he sets off for Scotland. Boyd defends himself to the Times, pointing out “If I was approached to write a Batman movie I would assume it would have to feature Batman. There’s really no difference in this case.” But, apparently, there is a difference for readers and publishing houses, who have been giving Boyd a hard time. And a difference for writers too, the majority of whom will not agree to do commercial endorsements like this. As for me, I typically will take a good story wherever I can get one, but I like to know if it’s only a clever ad campaign.
Carlin's words, updated
George Carlin in the mid-'70s famously identified the seven words you can's say on television. In this review of the new legal show Benched,* NPR's Linda Holmes identifies the new prevailing rules as follows:
Basic Cable: SNOF (Shit, No Fuck), with an addendum for Breaking Bad to say "fuck" every 2-3 episodes, when it really mattered
Broadcast: NOSNOF (No Shit, No Fuck)
Pay Cable: ATFWYCSO (All The F Words You Can Spit Out)
This NPR piece from about a year ago offers a longer take on the subject. It shows that while we focus a lot on "shit" and "fuck," the word on Carlin's list that has universally come to be regarded as taboo is the one for women and/or their genitalia--no one thinks of using it, although the workarounds arguably are just as offensive. The piece also shows--still--how silly much of this is, at least for adult-centered programs.
By the way, I think I second Holmes's recommendation of the show, at least based on one episode. Although the premise is a bit offensive legally--woman lawyer has in-office meltdown (because, you know, women lawyers), still can get a job at the Public Defender's Office (because, you know, anyone can). But it has the potential to at least be funny.
Saturday, November 15, 2014
JOTWELL: Pfander on Bruhl on lower-court precedent
The latest Courts Law essay comes from Jim Pfander (Northwestern), reviewing Aaron-Andrew Bruhl's Following Lower-Court Precedent (U. Chi. L. Rev. 2014), which considers how and when SCOTUS cites to lower-court authority.
Does Circuit Precedent Deprive Officers of Qualified Immunity?
In Carroll v. Carman, one of this week’s summary reversals, the Supreme Court held that officers violated no clearly established federal law in conducting a “knock and talk” and so were protected by qualified immunity. Almost as an aside, the Court assumed arguendo that circuit law could constitute clearly established law. In other words, the Court reserved the possibility that officers could defy on-point circuit precedent and still retain qualified immunity. This issue is both important and fascinating.
In this post, I’ll assess relevant cases to shed light on how the doctrine reached its current shape and where it might be going. In my next post, I’ll discuss whether the apparent trend in qualified immunity doctrine makes sense.
The Court has held that officers sued for constitutional wrongs are generally immune from suit unless their conduct violated "clearly established" law. Carroll applied that deceptively familiar standard. Quoting Stanton v. Sims, a similar qualified-immunity summary reversal from about a year ago, Carroll found the officers immune: “[W]hether or not the constitutional rule applied by the court below was correct, it was not ‘beyond debate.’” In other words, it was beyond debate that the issue wasn’t beyond debate.
For present purposes, the interesting thing about Carroll is that it expressed uncertainty as to whether circuit precedent could defeat an officer’s assertion of qualified immunity. Here's the key passage:
[T]he Third Circuit cited only a single case to support its decision that Carroll was not entitled to qualified immunity—Estate of Smith v. Marasco, 318 F.3d 497 (C.A.3 2003). Assuming for the sake of argument that a controlling circuit precedent could constitute clearly established federal law in these circumstances, see Reichle v. Howards, 566 U.S. ––––, ––––, 132 S.Ct. 2088, 2094 (2012), Marasco does not clearly establish that Carroll violated the Carmans' Fourth Amendment rights.
As this passage indicates, the Court made a similar reservation in Reichle two years ago. Reichle’s reservation was somewhat surprising and prompted blog commentary marveling that this basic aspect of the “clearly established law” standard was itself not clearly established. Interestingly, the Court doesn’t always make this reservation when discussing qualified immunity. In last year’s Stanton summary reversal, for instance, no such disclaimer appeared, even though the Court marched through circuit precedents to show their ambiguity.
The reservation in Reichle could have had to do with the distinctive features of that case, which involved the Secret Service. In its Reichle brief, the Solicitor General made the following argument:
The protective duties of the Secret Service are not confined to a particular geographic locale, but instead follow the protected individuals wherever they may be. It is unreasonable, undesirable, and unrealistic to expect agents to modify their performance of their duties based on the law of the local court of appeals, or to “abide by the most stringent standard adopted anywhere in the United States.” al-Kidd, 131 S. Ct. at 2087 (Kennedy, J., concurring).
In other words, it might not be reasonable to expect officers operating in many jurisdictions to study up on each new jurisdiction that they enter. In support of that point, the Solicitor General relied on Justice Kennedy’s 2011 concurrence in Ashcroft v. al-Kidd. The “Ashcroft” in that case name was the Attorney General of the United States. For present purposes, here is the key passage from Justice Kennedy’s opinion:
Some federal officers perform their functions in a single jurisdiction, say within the confines of one State or one federal judicial district. They “reasonably can anticipate when their conduct may give rise to liability for damages” and so are expected to adjust their behavior in accordance with local precedent. In contrast the Attorney General occupies a national office and so sets policies implemented in many jurisdictions throughout the country. The official with responsibilities in many jurisdictions may face ambiguous and sometimes inconsistent sources of decisional law. While it may be clear that one Court of Appeals has approved a certain course of conduct, other Courts of Appeals may have disapproved it, or at least reserved the issue.
When faced with inconsistent legal rules in different jurisdictions, national officeholders should be given some deference for qualified immunity purposes, at least if they implement policies consistent with the governing law of the jurisdiction where the action is taken.
Because of the way the Solicitor General briefed the case, it seemed possible that Reichle meant to reserve the role of circuit precedent specifically in cases involving national officers. Supporting that possibility, the reservation was expressly (if vaguely) limited to “the circumstances of this case.” Perhaps the relevant “circumstances” included the defendants’ role as secret-service agents—a fact that figured prominently in the briefing, oral argument, and ultimate decision.
The Court began to expand on Justice Kennedy’s concurrence in Stanton, the qualified summary reversal from last year. As a side note, the fact that this development occurred in Stanton is rather remarkable in itself, since summary reversals aren’t supposed to change the law—though that purported rule is often observed in the breach. (Michael Dorf just made a similar point in connection with both of this week's summary reversals.) In any event, Stanton emphasized that the officers had acted in accordance with local state-court precedent. This led the Court to observe:
It is especially troubling that the Ninth Circuit would conclude that Stanton was plainly incompetent—and subject to personal liability for damages—based on actions that were lawful according to courts in the jurisdiction where he acted. Cf. al–Kidd, 131 S.Ct., at 2086–2087 (KENNEDY, J., concurring).
The “Cf.” cite here is appropriate, for the Court was building on Justice Kennedy’s insight, rather than applying it. The officer in Stanton wasn’t a “national” officer. Rather, he was a regular officer who was getting somewhat different messages from the state and federal courts operating in the same geographical space. This situation is structurally similar to the predicament of a national officer getting conflicting precedential signals, but still quite different. Most obviously, there are fewer sources of precedent for local officers (usually just two, as Justice Kennedy’s concurrence noted), and it doesn’t seem so hard to keep abreast of two jurisdictions’ laws. National officers are also uniquely relevant to, well, national policy. Finally, moving beyond national officers means that the logic of the Kennedy concurrence is no longer an exception or unusual situation. Instead, Stanton’s logic is potentially applicable to every officer.
Carroll may build on Stanton by suggesting that out-of-jurisdiction precedent might countermand local precedent. In addition to making the state-court point above, Stanton had emphasized "the fact that federal and state courts nationwide are sharply divided" on the relevant question. Carroll likewise explained at some length that the “Third Circuit’s decision is even more perplexing in comparison to the decisions of other federal and state courts, which have rejected the rule the Third Circuit adopted here.” Could such supportive out-of-jurisdiction precedent provide a reason to immunize an officer, even when the officer’s home jurisdiction prohibits a particular action? This possibility may explain Carroll’s reservation. To repeat, Carroll “[a]ssume[d] for the sake of argument that a controlling circuit precedent could constitute clearly established federal law in these circumstances.” The relevant “circumstances” may have included not just the fact that “only a single case” cut against the officers, but also the existence of pro-officer case law from other jurisdictions. Or perhaps not--the Court is opaque on this point.
While it’s impossible to know for sure, the Court seems to be exhibiting increasing interest in limiting the sources of law that can overcome qualified immunity. Especially remarkably, that apparently growing level of interest is evident in unanimous summary reversals, like Stanton and Carroll. Indeed, all of the cases discussed above are just a few years old at most. So while the trend line might shift, it currently places circuit precedent’s status in doubt.
My next post will discuss the normative question of whether circuit precedent should deprive officers of qualified immunity.
The above is cross-posted from Re's Judicata.
Friday, November 14, 2014
22 Is the New 18
The media has lit up about a New Jersey court’s decision to order the divorced parents to pay $16,000 per year for the college education at Temple of their estranged daughter, Caitlyn Ricci. To family lawyers, this is not a surprising result. I have written about the equal protection and other issues inherent to treating married parents (who are never required to pay for their kids’ college education) differently from unmarried or divorced parents (who may be required to pay for their kids’ college education), but the minority of states with postsecondary educational support laws have pointed to findings that divorced and nonmarital parents are far less likely to pay for college. Lawmakers and courts in these states have seized the opportunity to level the field by requiring unmarried parents to be liable for college support. Perhaps in these states, the cost-of-raising-a-child estimates should be revised from low six figures to something a bit higher to avoid a shock to parents—more of whom are implicated as the numbers of divorces and out-of-wedlock births continue to climb.