« August 2015 | Main | October 2015 »

Wednesday, September 30, 2015

The Anti-Privacy Activities of Anti-Choice Activists

Undeterred by Planned Parenthood President Cecile Richards's recent smackdown of a disingenuous Representative Jason Chafetz (R-Utah), anti-abortion activists are using many tools in an expanding arsenal to attack a woman's right to choose. One of those weapons is invading women's privacy.

Many are familiar with the anti-choice movement's traditional tactics: lobbying state governments for tighter restrictions on women's health options, attacking doctors who help women terminate their pregnancies, and protesting in front of women's health clinics. The Supreme Court has made the protest option very easy: Last year, the Court struck down a Massachusetts law that created a buffer zone around abortion clinics to prevent protesters from harassing women seeking health options.

But the anti-choice movement is updating its tactics for the twenty-first century. Some extremists have gone as far as to hack into hospital databases to snoop on and release information about women seeking abortions. Many reasonable people would agree that hacking or exceeding access authorization is beyond the pale of appropriate conduct; there are statutes aimed at preventing and punishing such behavior.

A more subtle yet no less invasive strategy is also taking hold among anti-choice groups. For several years, anti-choice activists have sought to use state freedom of information laws (also known as "sunshine" or "public records" laws) to gather information about abortion clinics, doctors, and even patients. They then turn around and use that information to file complaints with regulatory authorities based on what they learn, or more accurately, based on what they think they see in the data.

As the Washington Post has reported, an activist in Washington State has used that state's public records law to collect information about the women who have terminated their pregnancies around the state, including, "age and race, where she lived, how long she had been pregnant and how past pregnancies had ended. He also wanted to know about any complications." Washington's health department, like those in other states, collected this and other vital information statistics.

The danger does not lie in the mere collection of these data. Rather, it lies in a misuse of sunshine laws for an anti-choice crusade that results in invading the privacy of vulnerable women. And this isn't idle speculation.

Consider the story of Dr. Shelly Sella, a former colleague of the slain Dr. George Tiller and one of the few doctors in the country who openly perform late trimester pregnancy termination procedures. Although eventually exonerated of any wrongdoing, Dr. Sella became the subject of an investigation after a group of anti-choice activists used New Mexico's open records law to obtain transcripts of a 911 call about complications following an abortion performed by Dr. Sella. The 26-year-old women at the center of the story was not part of the complaint, but her "medical treatment, mental state, her religion, where she lived and family status became public record in transcripts from a three-day hearing where a board prosecutor accused Sella of gross negligence."

These tactics are aimed at discouraging women from seeking pregnancy termination options for fear that intimate details--of their medical histories, marital status, and sexual background, just to name a few--will become matters of public record at hearings or trials. The weapon isn't a megaphone or a firebomb, but its subtlety belies its sharpness. There are few events that make someone feel more victimized, more alone, more vulnerable than an invasion of privacy. Sticks and stones can bounce off a veneer, but an invasion of privacy is an attach on a person's core, on the trust he or she has in others and in the value he or she sees inside. So it is no wonder that crusaders who think women who exercise their rights and the doctors that help them are "criminals" would seek out the sharpest knife in the drawer.

Sunshine laws should arguably not even apply in these contexts. The activists' goals are clearly aimed at the women seeking abortions and their doctors; the connection to open government is an incidental and coincidental nexus providing ex post legitimacy to their tactics. 

In the Washington State example, information will not be released under the state's public records law if doing so would invade individual privacy: "disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public." It is hard to imagine that releasing personal information about a woman seeking an abortion would not be offensive to a reasonable person. But we should not allow the right's crusade against choice to make what should be a private discussion between a patient and a doctor into a public spectacle. Nor can Planned Parenthood be in the business of monitoring every court in every jurisdiction in every state through some information war room to contest release of data every time an anti-choice activist files a request. Therefore, perhaps one option is to add explicit statements that exempt such data from release.

Posted by Ari Ezra Waldman on September 30, 2015 at 03:38 PM | Permalink | Comments (0)

Tuesday, September 29, 2015

Libertarians and Abortion Restrictions: Where's the Outrage?

            A group of small businesses are under relentless attack in this country. In virtually every state of the union, hostile legislatures pass increasingly demanding regulations, many so onerous that they threaten to drive them out of business. Of course, like many such restrictions on commercial entities, they are justified in the name of health and safety. But there is no evidence that these reams of regulations actually do advance any purported state interest in health or safety, nor have legislatures even attempted to find any such evidence. What’s more, these businesses are engaging in a constitutionally protected activity.

            That’s right—I’m talking about abortion restrictions. In particular, so-called TRAP laws (Targeted Regulations of Abortion Providers) that include requirements that abortion clinics meet certain health and safety standards that are either arbitrary or unnecessary for the sorts of procedures that they perform. One recent, and widespread, manifestation of TRAP laws are those that make abortion clinic licenses depend on the ability of their physicians to secure admitting privileges at local hospitals (discussed in these earlier posts: I and II). Courts have repeatedly found that these laws supply no safety benefits and that there is virtually no evidence to support states' claims that they protect women's health.

            This seems like precisely the sort of legislation that libertarian groups should be calling out.

For example, the Institute for Justice’s website decries “arbitrary licensing and permitting laws” that undermine the “right to earn a living.” Indeed, that organization has been working to get courts to scrutinize such economic and commercial legislation more carefully than they do under the current regime of ultra-lax rational basis review. Similarly, the Cato Institute, which is “dedicated to the principles of individual liberty, limited government, free markets and peace,” trumpets the importance of “[s]ocial and economic freedom.” Yet none of these organizations appears to have taken a stand or otherwise vocally criticized the sorts of pretextual “health and safety” regulations that are becoming extremely common and profoundly threatening the ability of clinics to stay in business in many parts of the country. I’ll note, as well, that based on my unscientific survey of the matter, very few libertarian academics have spent much ink or intellectual energy on this issue, either. (One exception is Richard Epstein, a libertarian academic who disagrees with Roe but explains in this podcast why these sorts of restrictions are unconstitutional under Casey and undesirable from a libertarian perspective.)

So what gives? I think there are a number of explanations (probably at least as many explanations as there are libertarians), but I’ll hazard a few possibilities. One is that some libertarians think abortion regulations have a more legitimate foundation than other sorts of licensing laws and regulations. I suppose that depends on an underlying belief that either 1) fetuses are constitutional persons, entitled to the protection of the 14th Amendment, and therefore their interests trump any interest in economic liberty; or 2) fetuses are not constitutional persons, but the state’s interest in them is still weighty enough to trump the interest in economic liberty. It’s possible that a number of folks who espouse libertarianism embrace one of these two beliefs, but there’s no reason to think there would be consensus on this front. In addition, it’s important to note that this explanation assumes that those libertarian supporters of abortion restrictions would support them because they limit abortion access (i.e., protect fetuses), and not because they protect women’s health. The legislatures that pass these laws claim that they are justified by the interest in protecting women’s health, however, since Planned Parenthood v. Casey clearly held that it is unconstitutional to pass laws solely for the purposes of obstructing access to abortion.

Another, more practical possibility is that the issue is simply too divisive, and libertarian organizations do not want to take an official position on it for fear of alienating a portion of their staff and supporters. This seems a likely explanation for why libertarian organizations have not criticized abortion restrictions, though it wouldn’t explain the relative silence on the academic side.

 Finally, we have to consider the possibility that this issue hasn’t really garnered much attention among libertarians because, well, it’s a “women’s issue” and libertarians are, last time I checked, mostly men. So, blunt though this explanation may seem, maybe it’s just not an issue that is on their radar screens or one that seems worth engaging with. 

Other possibilities?

Posted by Jessie Hill on September 29, 2015 at 09:32 AM | Permalink | Comments (10)

Monday, September 28, 2015

Conference on Cyberharassment at New York Law School

Many members of the Prawfs community might find this interesting:

This weekend, Oct 3-4, I am hosting the First Annual Tyler Clementi Internet Safety Conference at New York Law School. The conference brings together political leaders, academics (Danielle Citron, Frank Pasquale, and Ann Bartow will be speaking!), lawyers, educators, policy makers, parents, and students to discuss how to combat cyberharassment, which overwhelmingly affects women and members of the LGBTQ community. With keynote addresses from Congresswoman Kathleen Rice (D-NY) and Congressman Mark Pocan (D-WI) and participation from business leaders at AT&T, Microsoft, and Twitter, alongside lawyers doing the hard work on the ground to represent victims of online harassment, the conference will be a great way to push the conversation on cyberharassment.

Most notably, at the conference, NYLS and I are launching what I hope will be a groundbreaking program: the first ever law school pro bono clinic that will provide free counsel to victims of cyberharassment. We are excited to partner with AT&T, which is the presenting sponsor of the conference, and many other partners (Microsoft, Twitter, NYLS, K&L Gates's Cyber Civil Rights Legal Project, and CA Goldberg Law PLLC).

The conference is free and breakfast and lunch with served both days (and CLE is available for lawyers). Please register if you would like to attend. Let me know if you have any questions (ari.waldman@nyls.edu).

http://www.nyls.edu/innovation-center-for-law-and-technology/events/conferences/

Posted by Ari Ezra Waldman on September 28, 2015 at 03:50 PM | Permalink | Comments (0)

Monkeying around with copyright law

PETA has filed a copyright infringement action on behalf of a crested macaque; the defendant is a nature photographer who used selfies that the macaque "took" by pressing the shutter button on a camera that he grabbed away from the defendant.

The lawsuit raises an interesting (although I believe easy) question of statutory standing and the zone of interests of the copyright laws--namely, whether a non-human enjoys rights under the statute. This article explains why the answer should be no. The lawsuit is also reminiscent of a 2011 lawsuit that PETA brought against Sea World on behalf of five Orcas, claiming a violation of the Thirteenth Amendment. The court dismissed for lack of standing, concluding that the Thirteenth Amendment only protected human beings, although I argued it would have been more appropriate to dismiss on the merits for failure to state a claim. In the interim, SCOTUS decided in Lexmark International v. Static Control that whether a plaintiff falls within the "zone of interests" of a statute (and we can, I think, expand this to the zone of interests of the applicable substantive law) is properly a merits question. It should follow that, to the extent a macaque does not have rights under the Copyright Act, the complaint should be dismissed on the merits.

One other question: Is this worthwhile as a sample pleading for Civ Pro? While the lawsuit is a loser, and perhaps even frivolous, the complaint is well-drafted, includes a lot of factual detail, and illustrates the form and structure of a federal complaint. Is the content too off-the-wall for these purposes?

Posted by Howard Wasserman on September 28, 2015 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Teaching Like It's 2015

As I mentioned in my previous post, there are tools and methods available to us as law teachers to structure our time in the classroom so that it involves more students more actively more of the time. [We can also send them out to deal with the needs of our local, national, and international communities through activities such as law school clinics, externships, and public service, but that's another blog for another day]. One more disclaimer:  all of this should be done as part of thoughtful course design.  

This entry will highlight two techniques that can increase student engagement without requiring major restructuring of the law school class. Both are designed to get the focus off of the professor and on to students' active participation.

Think-Pair-Share-3-1024x5761.  Think/Pair/Share. This easy device allows the professor to inject brief structured student interactions within the normal flow of classroom conversation. Its uses are as varied as the teacher's imagination, but its structure is straightforward.  The professor poses a single question, often one that requires higher order thinking skills, such as the application of legal doctrine to new facts, a consideration of policy implications, or just the synthesis of a complex topic. The students are instructed to:

  • Think briefly (e.g. 30 seconds) about the answer. (This is both helpful to more introverted students and a good practice for all in organizing one's thoughts before speaking.)
  • Pair up with another student.
  • Share (discuss) their answers with each other, also for a designated amount of time. (That will vary depending on the complexity of the question. Typically this will be brief, e.g. 1-2 minutes) 

The class can then be reconvened as a group, and selected pairs can be called on to further "share" their answers.  You can also add a final step -- "Analyze" -- to let you and the group reflect on lessons from the collective responses. This technique does not require much more time than a conventional "call on one student" approach, yet it adds desirable consequences. It secures the engagement of all students in the classroom, quick feedback for the professor (e.g., the revelation of student misconceptions), and the final "share" lets the professor reinforce and support student critical thinking.  The basic T/P/S pattern can also be expanded for small-group work within a large law school class, either to answer a single question or to work on a a problem (or problem set), while the instructor wanders the room to listen in on the student discussions. 

2. Student Response Systems (aka "Clickers").  What's not to like about toys? This technique does require writing multiple choice questions, but don't think that means it should be limited to pure doctrinal recall, or right/wrong answers.  Using whatever technology your school supports (or a free service like Socrative, with students using their own smart phones or laptops as responders), the professor projects a multiple choice question.  Students use their responders to choose the best answer.  So note what happens: 1) all students participate; and 2) they don't get to see what other students are answering; but 3) they don't have to worry about embarrassment should they choose the wrong answer.

One more click of the professor's computer, and the class's collective answers are displayed (often as a lovely bar chart) for everyone to see.  If most of the students got the answer right, the professor can briefly confirm the correct answer and move on.  But if the students are confused (bonus: you find that out immediately), the teacher  can use that disagreement as a discussion starter for the whole class, or for students in pairs (e.g. "find someone who answered differently from you and argue in favor of your answer").  There are lots of types of questions that can involve students and help spark classroom discussion:

  • Student perspective/experience questions, as a new topic is introduced (e.g. Second Amendment: gun ownership; Immigration Law: student family background). Note the advantage of anonymity in answers to this type of question.
  • Conceptual questions (put things in categories; identify examples; explain concepts; expose common misconceptions)
  • Application questions (typical law school hypotheticals with multiple choice answers)
  • Questions with no right or wrong answer, nevertheless requiring the students to choose as a prelude to discussion (e.g. "The most fundamental basis for due process limits on personal jurisdiction is . . . "; "SCOTUS will decide [pending case] by . . . ") 

Although it's not written with law teaching specifically in mind, there's a great teaching guide for using clickers here, or here is a Prezi on Teaching with Clickers in Law (both by the director of Vanderbilt's Center for Teaching). And if you don't want to play with the technology, you can get most (minus anonymity) of the same effect by giving students multiple sheets of colored paper, which they hold up to answer.

These two ideas are, of course, just the tip of the iceberg. And so I will close this entry with links to some helpful free online resources, with lots more ideas:

Hess et al, Techniques for Teaching Law (the sequel is available from Carolina Academic Press)

University of Minnesota Law Library, Teaching Tools for Law School Faculty (bibliography)

And for theory:

Carnegie Foundation, Educating Lawyers

Stuckey et al, Best Practices for Legal Education

Maranville et al, Building on Best Practices (sold by LexisNexis, but chapters downloadable from SSRN)

Schwartz et al, Teaching Law by Design

 

Posted by Beth Thornburg on September 28, 2015 at 09:15 AM in Teaching Law | Permalink | Comments (3)

Lower Courts on Supreme Court Signaling

Debates over signaling, or unconventional precedential guidance to lower courts, played an important role in the same-sex marriage litigation leading up to Obergefell. Now, signaling is back thanks to religious accommodation litigation concerning the Affordable Care Act's contraception mandate. Remarkably, lower courts have started to develop case law on whether and when signaling is appropriate.

A Supreme Court “signal” is transmitted when the justices act in their official capacities without establishing conventional precedent or resolving ultimate merits issues but while nonetheless indicating some aspect of how lower courts should decide cases. (For some of my prior posts on signaling, see here, here, and here.) In the past, lower court consideration of “signals” focused in part on the Supreme Court’s decision not to stay lower court rulings that had found constitutional rights to same-sex marriage. More recently, lower courts have started debating whether the Court sent a signal by granting unusual orders in religious accommodation cases.

Here is the Court’s entire order in a representative case, Zubik v. Burwell:

The Court furthermore orders: If the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR § 54.9815–2713A(a) or 29 CFR § 2590.715–2713A(a) or 45 CFR § 147.131(b) (as applicable), respondents are enjoined from enforcing against the applicants challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of their petition for writ of certiorari.

Nothing in this interim order affects the ability of applicants’ or their organizations' employees to obtain, without cost, the full range of FDA approved contraceptives. Nor does this order preclude the Government from relying on information provided by applicants, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act. See Wheaton College v. Burwell, 573 U.S. ––––, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014).

This order should not be construed as an expression of the Court’s views on the merits. Ibid.

There are two key features of this order. First, it provides an interim accommodation for religious beliefs. Second, the final sentence of the order emphasizes that it “should not be construed as an expression of the Court’s views on the merits.” These two features are in tension with one another. For the Court to provide even interim relief, it presumably considered the merits and in some way resolved them—even if only incompletely and provisionally—in favor of the religious claimants. Yet the Court clearly views its interim decision as being a far cry from a conventional merits ruling.

What are lower courts supposed to do with this? Perhaps the final sentence’s disclaimer means that the order (and the other orders like it) have no precedential value whatsoever. But that would be odd given the obvious fact that the Court has made some kind of decision on the claim at issue. Back when the Court decided Bush v. Gore, many critics were outraged that the majority arguably suggested that its decision was a proverbial ticket good for one day only. Likewise, some might recoil at the idea of zero-precedent stay orders, particularly when consistently issued over and over again.  

But there is a proverbial third option. In a forthcoming article, I suggest that vertical precedent might operate on two tracks. The dominant track is conventional precedent emanating from full rulings on the merits. But there is also a supplemental track for signals, which provide guidance to lower courts in situations where conventional precedent is ambiguous. Signals are on the rise in part because of new technologies that enable a national culture of intensive Court-watching.

Some lower courts have started to treat the Court’s interim orders as signals. Indeed, they’ve even used that term. The most recent example comes from the Eighth Circuit’s decision last week in Sharpe Holdings v. HHS. Here’s the key passage:

[I]n Wheaton College, Little Sisters of the Poor, and Zubik, the Supreme Court approved a method of notice to HHS that is arguably less onerous than either Form 700 or HHS Notice yet permits the government to further its interests. Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests. See Priests for Life, slip op. at 23 (Kavanaugh, J., dissenting from denial of rehearing en banc) […].

In other words, the stay orders aren’t on the same level as conventional precedents, but they’re still a meaningful “signal” to lower courts. That basic view strikes me as plausible for much the same reason that the Court’s decision to deny the same-sex marriage stays struck me as a credible signal in favor of same-sex marriage rights.

Still, there's room to wonder whether the Court agrees with how the lower courts are treating signals. Perhaps we'll know for sure before long: as signaling becomes more prevalent, the lower courts' emerging caselaw on the subject may lead the Court to opine on signaling’s proper role.

Posted by Richard M. Re on September 28, 2015 at 08:30 AM | Permalink | Comments (0)

Sunday, September 27, 2015

Teaching Like It's 1801

Let's think about law school teaching. Start by watching this video, A Vision of Students Today. (Please bear with me and suspend your objections that it's not specifically about law school).  It was created by Kansas State Professor Michael Wesch (Cultural Anthropology) and his 200 students. And it's a pretty powerful indictment of education structured in a way that students are passive receivers of information. I realize (hope) that these students' experience is not a perfect fit for law school (they are undergraduates, and their average class size is 115), but I still think this has some lessons for us as law teachers. (For more from Professor Wesch, you can watch his TED Talk about moving students from "knowledgeable" to "knowledge-able" and the ability of students to create and share knowledge here.)

Our goal is to instill knowledge, skills, and values in our students in a way that encourages them to continue to learn on their own and that enables them to transfer what they learn to new settings (i.e. later classes and their professional careers). Educational theorists are very clear that active rather than passive teaching environments are best able to accomplish that goal, and that students who understand the relevance of what they are learning are more likely to retain it.  Technology can be a tool in accomplishing that goal (the first chalkboard is attributed to a Scottish headmaster in 1801), but what's most important is what happens in the classroom -- interaction, discussion, reflection, engagement.  Do our law classrooms look much different from the Harvard of Christopher Columbus Langdell, or the Kansas State classroom in the video?

The Socratic Method, at its best, involves active student engagement. But how often does it degenerate into a lecture punctuated by occasional questions? And even when excellently deployed, in a large classroom it is only an active experience for the students being called on -- we rely on the rest of the class to participate vicariously by imagining how they would be answering the questions.  I'm not arguing that we should ditch it -- but do think we need a large dose of alternative teaching methods.

Consider the critique offered by the video:

  • in large law school classes, do we know our students' names? (tips to help are here)
  • do our students do the assigned readings from their multi-hundred dollar casebooks?
  • do we make it clear how what we teach is relevant to their future lives and careers?

Consider, too, the results of the students' self-survey (and this video was made in 2007 -- it can only have gotten worse since then):

  • they read far more on web pages and Facebook than in books
  • they write far more for emails (and text messages) than for classes
  • they deal with multiple competing time demands and believe they need to multi-task
  • they worry about the impact of their student loan debt

If our law school walls could talk, what would they say? The good news: there are a number of teaching options that get us beyond nineteenth century methods.  My next blog entry will provide some ideas and resources that I hope will be helpful. 

 

Posted by Beth Thornburg on September 27, 2015 at 09:00 AM in Life of Law Schools, Teaching Law | Permalink | Comments (0)

Thursday, September 24, 2015

Justice and fairness v. procedure

Judge Bunning declined to stay his order extending the injunction against Kim Davis to all eligible couples. (H/T: Marty Lederman). Bunning explained:

Had the Court declined to clarify that its ruling applied to all eligible couples seeking a marriage license in Rowan County, it would have effectively granted Plaintiffs’ request for injunctive relief and left other eligible couples at the mercy of Davis’ “no marriage licenses” policy, which the Court found to be in violation of the Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Such an approach would not only create piecemeal litigation, it would be inconsistent with basic principles of justice and fairness. Thus, when the need arose, the Court clarified that its ruling applied with equal force to all marriage license applicants in Rowan County, regardless of their involvement in this litigation. (emphasis added).

Perhaps he is right about justice and fairness. But he is flat wrong on the procedure. What Bunning describes as "piecemeal litigation" is simply "litigation," which adjudicates and resolves the obligations of parties, not the entire world. The way to avoid the feared piecemeal litigation is to certify the class, as the plaintiffs requested, a move Bunning continues to resist. Otherwise, new couples are free to file new suits or seek to join or intervene in the pending action. Short of that, Bunning lacks the power to broaden the injunction in this way. And this remains the one issue on which Davis might actually prevail.

Posted by Howard Wasserman on September 24, 2015 at 10:01 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Settlement in Tolan v. Cotton

Last year, SCOTUS summarily reversed a grant of summary judgment against a plaintiff in a § 1983 action, concluding that the district court had impermissibly resolved disputed facts in defining the factual context for purposes of qualified immunity. I wrote about the case, arguing that, through some procedural confusion, it might indicate a new scrutiny of this sort of sub silentio fact-finding on qualified immunity.

SCOTUS remanded the case to the Fifth Circuit to reconsider whether other, undisputed facts supported qualified immunity; the Fifth Circuit sent it back to the district court. In September, the court granted summary judgment in favor of the city and sent the individual claim to trial, commenting that SCOTUS would not "be satisfied if we didn’t take this case to trial." After one day of trial, the case settled for $ 110,000, a typical outcome for cases that do not go away on summary judgment and a typical settlement amount for a claim involving serious-but-not-life-threatening injuries. (H/T: Jonah Gelbach of Penn).

An interesting side note: Tolan sought to have District Judge Melinda Harmon recuse over comments she made at the pretrial hearing on the eve of trial. The basis for the motion was a newspaper article reporting on the conference; the article quoted Harmon as saying she was tempted to grant summary judgment on the individual claim, but read SCOTUS as hinting that the case should go to trial. The article also quoted her as saying she was "confident" and "had faith" in her opinion and thought she was right the first time.

The court rightly denied the motion. She stated that some of the statements were taken out of context and referred to the claim against the city, not the individual officer. Other statements involved legalities and interpretations of law, with no discussion of what material facts might be undisputed or not. Moreover, there is nothing improper with the judge stating that she continues to believe she was right about her initial summary judgment decision on the individual claim (the one SCOTUS reversed). My experience is that district judges always continue to believe they were right even after being reversed. But that does not impair their ability to apply and follow that decision, much less indicate favoritism or antagonism towards the party against whom they originally ruled. Otherwise, a case should be assigned to a new district judge whenever there is a reverse-and-remand, which would create all sorts of unworkable procedural problems in complex cases.

Posted by Howard Wasserman on September 24, 2015 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, September 23, 2015

Yom Kippur, Sandy Koufax, and (the forgotten) Hank Greenberg

Something that had not clicked until my rabbi discussed it last night: This Yom Kippur marked the fiftieth anniversary of Sandy Koufax not pitching Game 1 of the World Series (it was October 6, 1965, on the English calendar). This story forms a big piece of Koufax's legend as one of the greatest pitchers of all time, the greatest Jewish player of all time, and a hero to American Jews who saw in his actions a place for their faith within American society (Three thousand years of beautiful tradition, from Moses to Sandy Koufax...).

My rabbi also told the oft-repeated addendum to the story. Don Drysdale (himself a future Hall of Fame pitcher, so it is not like there was such a drop-off in WAR by Koufax not pitching) started and lasted less than three innings. The story goes that when Dodgers manager Walter Alston came to the mound to remove Drysdale from the game, Drysdale said something to the effect of "Bet you wish I was Jewish, too." But a baseball historian told me there is some doubt about when this comment actually was made and by whom. One version is the common one. Another has Drysdale saying it in the clubhouse after the game. And in a third version, it was not Drysdale who said it, but a former Dodger player who was watching from the stands. The historian was unable to get underneath the most-common version of the story.

Koufax's decision has completely overshadowed a similar decision by the previous greatest Jewish player, Hank Greenberg, who played for Detroit and Pittsburgh in the '30s and '40s (his life, and this event, is covered in a wonderful 2000 documentary). In the heat of a close pennant race in 1934, Greenberg played on the first day of Rosh Hashanah (after obtaining permission from a local rabbi, who searched the texts to find that "play" was permitted on that day), but did not play on Yom Kippur. Although no one in 2014 marked the eightieth anniversary of Greenberg, in some ways, his stand was more courageous than Koufax's. For one, Greenberg was an everyday player who would have been expected to play every game; as a pitcher, Koufax only could pitch in one of the first two games, so holding him to Game 2 was not an enormous lineup change or loss. For another, the position of American Jews in 1934 was far more precarious than in 1965. While there was still anti-Semitism, both de facto and de jure, in 1965, it was far worse thirty years earlier. This was one year after Hitler came to power. And Greenberg played in Detroit, home of Henry Ford and Father Coughlin.

Greenberg was similarly lauded for his act of conscience and seen as similarly inspirational by American Jews. Yet his stand has been lost to history. Some of it is that the World Series is a bigger deal than a pennant race. Some of it is that Koufax is closer to being the greatest pitcher of all time than Greenberg is to being the greaterst first-baseman of all time, so all of his actions are magnified. Some may be recency bias.

In any event, with all the additional post-season rounds and games, no Jewish player will ever again have to skip a World Series game for Yom Kippur. It is more likely he would miss a World Series game for Thanksgivukkah 79811.

Posted by Howard Wasserman on September 23, 2015 at 09:31 PM in Howard Wasserman, Religion, Sports | Permalink | Comments (2)

Tuesday, September 22, 2015

Piling on Judge Posner

Cue the outrage: Judge Posner is in the news again for researching facts outside the record and using those facts in judicial opinions. His earlier research included issues of donning and doffing work clothes, dreadlocks in prisons, guns and danger, a traveling would-be preacher and campus geography,  and a rabbi involved in a dispute with Northwestern University. Unlike some judges who do research but don't disclose it, Judge Posner is forthright about his research, discussing it at length in chapter 5 of his book, Reflections on Judging.

Although federal judicial ethics rules (Canon 3(A)(4)) are implicated when judges do their own fact research, in practice the propriety of the research tends to come down to whether judicial notice would be proper. For adjudicative facts (generally what Judge Posner is researching), judicial notice is only proper under the rules of evidence if it can be "accurately and readily determined from sources whose accuracy cannot reasonably be questioned." F.R. Evid. 201. (There is no exception for "background information," although such research might meet the requirements for adjudicative facts, or be mere harmless error). Especially at the appellate level, fact research can also mess with the burden of proof, the prohibition of judges as witnesses, and the requirements for admissibility of treatises under the hearsay rule.

Some of Judge Posner's research is entirely proper under those requirements. Some is not. And unless you count the availability of a motion to reconsider, it fails the procedural requirement of Rule 201: "On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard." One of the concerns about independent judicial research is the loss of an opportunity to argue that the "facts" the judge finds are wrong, or are not indisputable, or have been misapplied. In addition, Judge Posner uses some of his research to draw inferences, and that is an area where an opportunity to be heard is especially important.  In U.S. v. Boyd (the gun case) for example, research about the nature of ammunition and the location of buildings was used to infer that shooting a gun into the air at 3 a.m. in downtown Indianapolis created a "substantial risk of bodily injury to another person." In the traveling preacher case, Judge Posner drew a conclusion about the comparative desirability of speaking locations from Google's view of the college campus. The research involves not just "facts," but also inferences from those facts, and so research done at the appellate level, outside the record, with no opportunity to reply, can be particularly troubling.

But hold on a minute. . . .

When I initially researched and wrote about the issue of judicial research, I did something I had never done before, and never expect to do again:  wrote a law review article with two endings. Independent judicial research raises some significant policy concerns, and I worry about those, but there is also a powerful policy counterargument, and Judge Posner makes it in the most recent case, Rowe v. Gibson.
  • This was a case with a pro se plaintiff, and the information disclosed by Judge Posner's research could easily have been put in the trial court record by competent plaintiff' counsel.
  • The defendant's medical expert (whose views were challenged by information that can be found online, as well as by the plaintiff's own sworn statements about his symptoms) was himself a defendant
  • This was not the review of a jury fact-finding, but a question of whether a fact issue existed that should be submitted to the jury rather than resolved through summary judgment. Judge Posner's research would thus lead to a fuller fact-finding process, not disrupt one.

 To put it more broadly -- do judges need to accept a result that may be very wrong in "fact" (put even more strongly, a miscarriage of justice) even when asymmetrical party resources have severely skewed the record? Judges themselves are strongly divided on this issue, polls show. Regarding the Rowe case itself, opinion is split up the middle in an Above the Law poll (scroll down and click on "View Results"). Criminal cases may raise especially strong concerns. Seventh Circuit judge Diane Wood once noted that Internet research about street names cast doubt on a criminal conviction. U.S. v. Harris, 271 F.3d 690, 708 n.1 (7th Cir. 2001) (Wood, J., dissenting).  However, even if we want to allow research to promote accurate outcomes, the need to give the parties timely notice and an opportunity to be heard is crucial.

This policy debate is not easily resolved, and one can construct a parade of horribles on both sides.  In the meantime, lawyers would do well to take care at the trial level that important information is made part of the record.

Posted by Beth Thornburg on September 22, 2015 at 01:13 PM in Judicial Process, Web/Tech | Permalink | Comments (3)

JOTWELL: Vladeck on Hart & Wechsler

The latest Courts Law essay comes from our own Steve Vladeck, reviewing the new Seventh Edition of Hart & Wechsler's The Federal Courts and the Federal System. I am a Low, Jeffries, and Bradley person myself, but Steve's review at least makes me want to take a look.

Posted by Howard Wasserman on September 22, 2015 at 09:30 AM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Monday, September 21, 2015

Encouraging Jury Service

In Civil Procedure, we spend a lot of time teaching students how to determine when the Seventh Amendment provides a right to juries in civil trials, but very little time talking about how juries actually function and why they are important. In studying post-trial motions, we focus on debates about whether small amounts of circumstantial evidence are sufficient to create a fact issue and whether apparently aberrant verdicts allow the imposition of a new trial.  The result can be that law students, despite legal training, share the public's general misconception about jury competence, which in turn may make them avoid jury trials as lawyers and encourage clients to fear juries.

But whatever we do in law school, the prejudice is out there. Bad joke: the problem with juries is that people who serve on them are too stupid to get out of jury duty. It's disrespectful to the many people who understand that jury service is important to the rule of law, an important political right, and personally rewarding. It also ignores the substantial body of empirical evidence that juries mostly get it right.

Nevertheless, the nugget of truth that makes the joke work is that sinking feeling we get when we receive a jury summons, and the reality that many jurisdictions have very high no-show rates. The system would function better if summoned jurors would appear and if the pool of potential jurors better reflected a cross section of the community.  Are there measures that court systems could take to increase participation?  Absolutely. Many are identified in the ABA's Principles for Juries and Jury Trials (Principle 2). This blog entry will focus on three ways to get more people to the courthouse.

1.  Who gets summoned? The choice of sources used to create master jury lists (aka jury source lists or jury wheels) affects both the size and composition of the pool. Voter registration and drivers license lists (the two most common sources) are not reliably updated. Use of these lists results in a large (often about 20%) number of undeliverable summonses, and it leads to a pool that tends to over-exclude young, poor, and urban citizens. What might be more reliable? New York, for example, also uses addresses of state income tax filers and the recipients of unemployment insurance and family assistance benefits. Those are addresses that the recipients have a strong incentive to keep current.

2.  Can people afford to serve? Juror pay also deters many people from showing up when summoned. When I was on a jury and spent four days at the courthouse, I had to rearrange my schedule but still got paid. For those who get paid only while working, however, especially those with little extra room in the family budget, jury duty is a hardship.  Take a look at this list of jury fees -- there's not a state that pays enough to compensate even a minimum wage worker for a lost day of work. This, too, is apt to skew the composition of empaneled juries.

3. Can we allay anxieties? The first two suggestions are politically difficult (admitting that something as simple as choosing an address list implicates political and social policies) and expensive (increasing juror pay to income replacement would be extraordinarily costly). But some people avoid jury service because they don't know how to drive downtown and park, don't know what to expect, and fear a long, boring day in an uncomfortable chair. That barrier to service can be addressed with a combination of internet communication and actual amenities. Not free, but very doable.  Watch this excellent YouTube video, Jury Service 101, from the Mecklenburg County, NC courts. In addition to a street level view of where to park and where to report, it notes that jurors have access to a comfy kitchen area, business center, fresh air balcony, game room, movies (and popcorn!), and free onsite child care. This well produced video could be a model for court systems around the country.

As an academic, I'm going to rethink how I teach my students about the role of juries and the judge/jury relationships. As a citizen, I'm going to advocate more juror-friendly policies.  Join me?

 

Posted by Beth Thornburg on September 21, 2015 at 09:00 AM in Civil Procedure, Judicial Process, Teaching Law | Permalink | Comments (9)

Sunday, September 20, 2015

Deparmentalism, popular constitutionalism, and constitutional politics

Joey Fishkin writes at Balkinization about the race among GOP presidential candidates to undo birthright citizenship. Fishkin identifies several approaches--an "old school" departmentalism espoused by Mike Huckabee, in which the President can ignore Supreme Court precedent, a moderate approached advocated by Donald Trump (and echoed by Rand Paul and Ted Cruz) that acknowledges the Court's "ultimate authority" in constitutional interpretation, and pure judicial supremacy suggested by Carly Fiorina, under which only a constitutional amendment can challenge Supreme Court precedent.

Fioria to one side, I am not sure the distinction between Trump et al and Huckabee is as sharp as Fishkin suggests. In fact, either approach envisions both the power of the President and Congress to disagree with and disregard SCOTUS precedent and the interpretive role for SCOTUS.

President Trump must initiate birthright citizenship as a live constitutional issue--for example, signing a law providing that children of undocumented immigrants are not citizens and are subject to removal or commencing removal  proceedings against U.S.-born children of undocumented immigrants. Either move would be in so-called "defiance" or "disobedience" to (admittedly old) precedent on the meaning of "subject to the jurisdiction" in § 1 of the Fourteenth Amendment, based on President Trump's independent assessment (supported by constitutional "experts") of the meaning of § 1. That interpretive independence is a key feature of departmentalism, which holds that the President does not violate his "Take Care" obligations or his constitutional oath by acting contrary to even SCOTUS precedent. Either move also triggers a role for the Court, as the judiciary almost certainly will be called on to consider the issues, whether in reviewing a removal decision or in evaluating the constitutional validity of the statute in a pre-enforcement challenge, and render a judgment in a specific challenge, based on the court's own constitutional analysis.

The difference among the candidates may be what happens next. Under a middle-ground departmentalism, the President must abide by and enforce the judgment in those specific cases. But he can continue to act in disagreement with the opinion underlying that judgment (as by, for example, initiating new removal proceedings against new individuals),  until a new judgment bars him from doing so as to particular individuals. Eventually, the repeated losing will become politically and financially expensive and he will stop the cycle. This does seem a middle ground between where Fishkin places Huckabee (who seems to believe obeying an individual judgment constitutes "judicial tyranny") and Trump (whom Fishkin seems to presume would fall in line with SCOTUS precedent after the first decision).

For present purposes, I would be content to hear Trump argue, in essence: "My constitutional vision, supported by constitutional experts, is that § 1 does not guarantee birthright citizenship to the children of non-citizens, I am unconvinced by the Supreme Court's 120-year-old decision to the contrary, and, as President, I will act on that constitutional vision in the following ways. I do not need a constitutional amendment in the first instance."

But Fishkin offers a way in which departmentalism and popular constitutionalism overlap. The judiciary can be influenced and ultimately swayed by "experts" whose advocacy (in and out of court) make heretofore unexpected constitutional positions seem reasonable and proper to the public and thus to the court. Those experts similarly can influence the popular branches in their departmental constitutional analysis and their subsequent actions (described above) to put the issues in play and in front of the courts. In other words, I describe above a process of the executive repeatedly losing. Fishkin suggests that departmentalism, girded by popular constitutionalism, may lead to an ultimate constitutional victory in the courts.

Posted by Howard Wasserman on September 20, 2015 at 10:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Saturday, September 19, 2015

Lederman on Kim Davis

At Balkinization, Marty Lederman discusses whether Kim Davis is violating the district court order, issued when she was released from custody, prohibiting her from interfering with the efforts of deputy clerks to issue marriage licenses to all eligible couples. Lederman questions whether some changes Davis has made to the forms--removing her name, the name of her office, the name of the county, and the position of the deputy clerk--constitute interference.

I trust Marty's analysis. But then we have two questions. The first is whether there is interference (and thus contempt) if the altered licenses are deemed valid, as the governor announced last week. The other is whether, even if Davis is interfering and thus is in contempt, Bunning will jail her, given the circus that surrounded it the last time.

Posted by Howard Wasserman on September 19, 2015 at 11:11 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (7)

Friday, September 18, 2015

Burnham on Dismissing Indictments

James Burnham has a new Green Bag piece on dismissing indictments, and it's deservedly getting attention. In a nutshell, Burnham argues that the way that federal courts review indictments has facilitated over-criminalization. By simply reading a federal rule according to its terms and bringing criminal practice in line with civil procedure, Burham believes that federal courts can take a significant step toward curbing ever-expanding criminal liability. (By way of disclosure, I know Burnham from my law firm days and commented on a draft of his piece.)

Here's the opening of the essay, with some edits:

Many lawyers are familiar with the problem of overbroad, vague federal criminal laws that ensnare unwary defendants and perplex the lawyers who defend them. … 

[This essay proposes] a tool for combating overcriminalization that is, perhaps, simpler and more readily available than the heavy artillery of constitutional law – making it easier for criminal defendants to secure a legal ruling before trial on whether their alleged conduct actually constitutes a federal crime. Implementing this basic reform would require nothing more than applying the Federal Rules of Criminal Procedure, which already contain provisions for dismissing indictments that are materially identical to the familiar 12(b)(6) standard and the rules for dismissing civil complaints.

Yet the same federal judges who routinely dismiss complaints for failure to state a claim virtually never dismiss indictments for failure to state an offense. The judiciary’s collective failure to apply the dismissal standard in criminal proceedings … largely eliminates the possibility of purely legal judicial opinions construing criminal statutes in the context of a discrete set of assumed facts [and] leaves appellate courts to articulate the boundaries of criminal law in post-trial appeals where rejecting the government’s legal theory means overturning a jury verdict and erasing weeks or months of judicial effort.

Courts should eliminate this anomalous difference between criminal and civil procedure. There is no good reason why federal prosecutors cannot abide by the same pleading standards as civil plaintiffs. That is what the rules already provide. And holding prosecutors to that reasonable standard would go a long way toward making federal criminal law a little less lawless.

This is an important proposal that has the significant virtue of being realistic. For now, let me just make a few rather high-level points about why Burnham's argument is so interesting.

First, the argument essentially rests on a point of system design. When a certain outcome seems bad, like overcriminalization, it's tempting to want a new (constitutional?) legal rule that simply fiats an end to that badness. But in many instances those solutions are too broad-brush to be satisfying and in any event don't grapple with the structural forces underlying the problem. By focusing on institutions and the way they make decisions, Burnham has uncovered what seems like a systematic procedural bias and potentially identified a way of transforming it into a solution. We need more reform proposals of this type.

Second, the argument is attentive to the connections between civil and criminal procedure. Unfortunately, those two worlds are too often thought of as distinct. Like research into historical or foreign practices, research that merges the worlds of civil and criminal procedure can expose unrealized assumptions and point toward realistic solutions. (See for example this piece by David Sklansky and my colleague Stephen Yeazell.) Burnham is able to write in that spirit, which strengthens the persuasiveness of his critique as well as the viability of his suggested reform.

Finally, Burnham's piece is both good and short, befitting the Green Bag. And it's informed by Burnham's practice experiences. We could also use more essays like that.

Posted by Richard M. Re on September 18, 2015 at 06:16 PM | Permalink | Comments (4)

Sixth Circuit denies Kim Davis another stay

The Sixth Circuit on Thursday denied Kim Davis a stay pending appeal of the order extending the original injunction to bar her from denying licenses to any eligible couples (the extended injunction was issued the same day Judge Bunning jailed Davis for contempt). (H/T: Religion Clause Blog and Josh Blackman) Davis never asked the district court for a stay pending appeal, as required by Federal Rule of Appellate Procedure 8(a)(1)(A), and the court of appeals refused to accept "extraordinary doggedness of the district court to expand the Injunction, without jurisdiction or fair notice and opportunity to be hearing" as basis for finding that it would be "impracticable" to move in the district court, as required by FRAP 8(a)(2)(A)(i).

The latter conclusion is fair, I suppose, since the argument basically accuses the district court of having it in for Davis. Nevertheless, there is something strange about asking a district court to stay an injunction that he just entered by finding that the defendant has a substantial likelihood of success on appeal--in other words, there is a substantial likelihood that the district court was wrong. We do not require trial courts to make a similar confession of likely error in any other context. It also seems like a waste here--Davis will now ask Bunning for a stay, he will deny it, and the issue will be back with the court of appeals in a week or two.

It is notable that the extension of the injunction was not, as plaintiffs requested and many (including me) assumed, in anticipation of class certification. Instead, the district court extended the injunction in recognition of two other individual actions challenging Davis' no-marriage policy. (H/T: Marty Lederman for the analysis). I am not sure that is a valid basis for extending the injunction (where as expanding in anticipation of class status would be), so Davis may actually have one small argument that is not doomed to total failure.

Posted by Howard Wasserman on September 18, 2015 at 01:01 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Thursday, September 17, 2015

Affirmative Consent and Burden Shifting, Take 4

In my last post, I argued that affirmative consent switches the burden of proof at least some of the time. I also asserted that affirmative consent allows a person to be found guilty of rape for having sex with a fully consenting adult. In a follow-up comment, I pointed out that a person could be found responsible for rape even if his paramour had affirmatively consented.

The scenario looks like this: A wakes up and sees her roommate B having vaginal sex with Accused. Ever the voyeur, A observes them for some twenty minutes before falling back asleep. A observes nothing to make her think that B doesn't want to be having sex with Accused, but never does A hear B tell Accused that she wants him to penetrate her. Nor does A ever see B doing anything that clearly conveys she wants him to do so. (Unbeknownst to A, B had whispered to Accused right before A woke up that she wanted to have sex with him.) The next morning A reports that B has been raped.

Depending on how affirmative consent is defined and interpreted, Accused could be found guilty. California, for instance, explicitly states that affirmative consent must be ongoing, but what does that mean?  Does affirmative consent exist unless and until B revokes it, or must B continue to affirmatively consent (as opposed to consent) during the entire sexual encounter?  Under the latter definition, B's initial consent even though never revoked seems to be legally insufficient. 

SUNY says that “Consent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act.” How do we define sexual act, and what is the line between a prior and a current sexual activity? In California, for instance, the jury instruction given in rape trials states "Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. [Ejaculation is not required." Applying affirmative consent to that definition would seem to require B to affirmatively consent to each penetration.

Some might ask whether such a situation could ever happen in the first place.  How could the state proceed with A as the only witness? Wouldn’t there be some sort of hearsay problem? Universities explicitly allow hearsay evidence in campus disciplinary proceedings involving allegations of rape and sexual assault. Even if hearsay were barred, A’s testimony would still be admissible. A could prove that B didn’t affirmatively consent by describing B’s nonverbal conduct. Unless B was intending to convey an assertion through her conduct, it wouldn’t constitute a statement at all. Nor would there be an obstacle to A introducing statements B made during the encounter. The Federal Rules of Evidence have hearsay exceptions for present sense impressions, excited utterances, and then existing states of mind.

But what about the confrontation clause revolution heralded by Crawford v Washington (2004)? That won’t help Accused either. Only defendants in criminal cases have 6th Amendment rights, and even if this were a criminal prosecution, the statements would still be admissible as non-testimonial.

At this point, some of you may throw up your hands and accuse me of being trapped in my ivory tower. “This is mere academic jiggery pokery,” you exclaim. “The state would never do such a thing. They would never file rape charges when the purported victim insists that she wasn’t a victim at all!”

Perhaps, but I for one don’t want to rely on the good sense of a prosecutor to restrain himself from misusing an ambiguous law. If the law has problems we should fix them now. 

 

(This post has been revised after the helpful comments of many people.)

Posted by Tamara Rice Lave on September 17, 2015 at 02:22 PM | Permalink | Comments (27)

Debate: Courts, not Campuses, Should Decide Sexual Assault Cases (And Susan Brownmiller Shocker)

Jed Rubenfeld and Jeannie Suk (for) and Michelle Anderson and Stephen Schulhofer (against) participated in an interesting and  extensive debate on this question on September 16; video here.  One of the most notable aspects of the discussion was the systematic doubt about the capacity of courts to be fair.  Professor Suk noted that campus disciplinary proceedings had a disproportionate impact on the poor and minorities; Dean Anderson responded, to oversimplify, that Ferguson and other incidents make clear that the criminal justice system is worse.  All sides agreed that there are excesses in campus discipline which are appropriately being weeded out in courts.  Again, to oversimplify, Professor Schulhofer argued nevertheless that campus discipline was necessary for fairness to the accused; given draconian sexual assault sentences, the power of prosecutors, the pressure of sweet pleas, and the unreliability of juries, some form of accountability other than prosecution was necessary so that the lives of minor offenders (or alleged offenders) were not ruined.   Taken together, I think most or all parties might agree that the criminal justice system has often been disrespectful of victims, dismissive of sexual assault claims, and also sometimes arbitrary and brutal to those charged with or convicted of sex offenses.  If this is so, one wonders what makes the character or ability of professors and administrators so much higher that better results are likely in the academy.  

An aside: At a couple of points, the argument seemed to be made that campus discipline was private while criminal cases are public; as I read FERPA, though, a finding of liability for a campus sex offense is not confidential under federal law. (20 U.S.C. 1232g(b)(6))

Another aside:   Susan Brownmiller, unquestionably one of the intellectual leaders of the post-Eisenhower reform of rape law, s[p]its all over campus rape activism in an interview in New York Magazine.  Some key points:  "They think they can drink as much as men, which is crazy because they can't drink as much as men. I find the position 'Don't blame us, we're survivors' to be appalling." "The slut marches bothered me, too, when they said you can wear whatever you want. Well sure, but you look like a hooker." Ms. Brownmiller is 80; there may be a generational difference at play here.

Posted by Jack Chin on September 17, 2015 at 11:48 AM | Permalink | Comments (7)

Wednesday, September 16, 2015

Texas, Abortion, and the Supreme Court – Part III

 In this final post on the certiorari petition in Whole Women’s Health v. Cole, I want to consider the likelihood that the Supreme Court will take this case, and if it does, what it is likely to do with it.

I think it’s a very good bet that the Supreme Court will decide to hear this case this Term, perhaps in conjunction with one of the other cases that deals with admitting privileges laws – either Currier v. Jackson Women’s Health Organization, another admitting privileges case, in which the Fifth Circuit actually enjoined an admitting-privileges requirement that would have shut down the last remaining abortion clinic in Mississippi, or Planned Parenthood v. Van Hollen, in which the Seventh Circuit enjoined an admitting-privileges law. However, both of those cases are still at the preliminary-injunction stage, unlike Whole Women’s Health, which was rushed to trial on an expedited schedule. Still, SCOTUS has been holding onto the petition in Jackson Women’s Health Organization since the spring and may well decide to consolidate it with Whole Women’s Health. (No petition has yet been filed in Van Hollen, as that case is back in front of the district court and scheduled for trial.) 

            There are a lot of reasons for the Court to grant cert in at least one of these cases.

There is a clear circuit split, both in outcomes and, as noted in my prior post, in how the relevant legal standard is applied. Moreover, the Supreme Court has not waded fully back into the abortion fray since Gonzales v. Carhart in 2007, and it hasn’t really clarified the undue burden standard since introducing it in Planned Parenthood v Casey in 1992. In the past decade or so, a whole new slew of abortion restrictions has been tried out in the states, and uncertainty reigns in the lower courts. 

So what will happen if and when the Supreme Court hears one of these cases? That depends on Justice Kennedy, as usual. There is some reason for the abortion clinics and providers to feel optimistic, as Kennedy, one of the authors of the joint opinion in Casey, must think “undue burden” means something, and the facts in the Texas and Mississippi cases, in particular, are extreme. If he is ever going to find an undue burden is imposed by a purportedly neutral health regulation, it is probably going to be in a case like these. Moreover, these cases deal with access to all abortions, the overwhelming majority of which occur in the first trimester; they don’t involve later abortion procedures—an issue that seems to have caused Kennedy to peel off from his pro-choice colleagues on the Court the Carhart cases in 2000 and 2007. And Kennedy has not been afraid to show some liberal stripes lately, as his opinion on same-sex marriage in Obergefell demonstrated. 

            At the same time, there is reason for the clinics to be concerned. First, the undue burden standard may be ripe for revisiting. If the Court decides to re-open that can of worms, there’s no saying where its jurisprudence may end up. Perhaps more importantly, Kennedy is a big believer giving deference to legislatures—particularly on medical and scientific issues. Such deference was central to his dissent in Stenberg v. Carhart (the 2000 case striking Nebraska’s so call partial-birth abortion ban), for example, and he struggled with the same issue in Gonzales v. Carhart (the 2007 case upholding the federal Partial Birth Abortion Ban Act). Although he ultimately decided not to rely on Congress’s demonstrably false factual findings, he did so reluctantly, continuing to suggest that Courts need to act modestly in the fact of medical and scientific “uncertainty.” If he sees the admitting privileges issue as one of legislatures’ power to decide on the most appropriate measures to advance health and safety in the face of medical or social scientific uncertainty, the prospects for the plaintiffs may be considerably more grim.

Posted by Jessie Hill on September 16, 2015 at 02:33 PM | Permalink | Comments (8)

Monday, September 14, 2015

Texas, Abortion, and the Supreme Court – Part II

As I noted in an earlier post, several Texas abortion providers have filed a petition for certiorari in Whole Women’s Health v. Cole, asking the U.S. Supreme Court to decide on the constitutionality of a Texas state law requiring abortion providers to have admitting privileges at a local hospital and requiring all abortion clinics to qualify as ambulatory surgical centers (ASCs), including requirements that are more demanding than those that apply to other, similar facilities that do not provide abortions. Here is my brief analysis of the legal issues in that case. (Note that this analysis is only of the “undue-burden” issues; there is also a res judicata issue in that case, which I will not analyze.) 

The plaintiffs in Whole Women's Health claim that the admitting-privileges and ASC requirements are unconstitutional because, under the standard identified in Planned Parenthood v. Casey, they impose an undue burden on the right to abortion. There are basically two ways in which these requirements can be seen to impose an undue burden. 

First, they will close three quarters of the abortion clinics in Texas, reducing the number from 40 to 10. The law would therefore drastically reduce abortion access for women in Texas, essentially making the procedure completely unavailable for a large swath of Texas residents. The problem would be particularly acute in the Rio Grande Valley, which is a largely impoverished area that would be left without any abortion provider at all (indeed, a recent study listed two metropolitan areas in the Rio Grande Valley as the two poorest cities in the country). 

Although the undue burden standard is notoriously amorphous, there seems to be good argument that a requirement that closes so many clinics and reduces access so dramatically-- in practical terms eliminating the right to seek an abortion for a large number of women -- would have to constitute an undue burden. In other words, if anything is an undue burden, this is.

At the same time, this theory raises the question of just how many clinic closings is too many. There is no easy answer to that question. If a state enacted a law that would have the effect of closing every clinic in the state, it would seem to constitute a clear undue burden for women in that state. But how close to that line can a state come without violating the undue burden standard? Moreover, what if the clinics were being closed because they were all being operated by incompetent physicians, or because they were unsanitary?  (That is emphatically not the case here, but I pose that hypothetical because it raises the question of whether undue burden can be judged based on the impact on access alone.)

That’s the first argument. The second argument is related. It says that the Texas law imposes an undue burden because it dramatically reduces abortion access without having a similarly significant health benefit to women in Texas. The state justifies the ASC and admitting privileges requirements as measures that protect health and safety. Yet, there is no evidence whatsoever that these requirements actually do advance any health or safety interest. So, the plaintiffs argue, the burden on abortion is “undue” because it has little positive impact in advancing the state’s purported interest while imposing a heavy burden on abortion access. In other words, in determining whether a burden is “undue,” courts should weigh the effect on abortion access against the extent to which the restriction actually advances a legitimate state interest. 

The circuits are currently split on whether to engage in this sort of balancing test. As the plaintiffs’ cert petition notes, the Seventh and Ninth Circuits hold that this sort of balancing is required by the undue burden test, whereas the Fifth and perhaps Sixth Circuits have rejected it.

Again, it seems the plaintiffs have a very strong argument here.  The balancing-test model makes sense of the hypothetical I presented above, in which the state’s clinics were being closed due to real, rather than unsubstantiated, health and safety concerns. In addition, if the undue-burden test doesn’t take the legitimacy of the state’s interest or the mean-end fit into account, then it starts to look a lot like a rational-basis standard of review, according to which any asserted state interest in health and safety, no matter how pretextual, is permitted to justify closing of clinics, as long as it doesn’t close all, or virtually all of the clinics.

So, that’s the big-picture overview of the legal claims in the case. In my third and final post on this case, I’ll do a brief evaluation of the likelihood that the Court will take the case and how it might decide it.

Posted by Jessie Hill on September 14, 2015 at 10:25 AM in Constitutional thoughts | Permalink | Comments (19)

Subconscious Juror Bias

I am a big fan of juries. But it is our job as lawyers to be sure that we structure the process of summoning, seating, and using juries in a way that maximizes their effectiveness. I have argued that we need to do a better job of writing instructions they can understand (because they really try), and that broader jury question formats are more consistent with the political and instruments purposes of the jury. My interest became more than academic when I actually served as a juror in a criminal trial in 2014. That experience reinforced my theoretical expectations: a very diverse group of jurors analyzed the evidence, listened to and learned from each other, deliberated carefully, referred to the court's instructions, and took the process very seriously.

I was so enthusiastic about the experience that, the following semester, I taught a seminar about juries. The students read a lot of empirical information about juries -- from selection through deliberation and on to post-service issues. And they did a bit of research of their own.  (The students also blogged, which I recommend as a way to get students to think and write). One issue kept coming up in almost every context: the impact of juror biases, especially racial biases, on the entire jury system. The Batson process would be laughable if the impact weren't so serious. In addition, as in other areas of the law, subconscious bias on the part of people who believe themselves to be racism-free is hard to prove.

That's why I found this recent New Jersey case, State v. Brown & Smith, so fascinating. Brown and Smith were charged with carjacking, and their defense was that they were not the carjackers. During jury deliberations, Juror #4 told two other jurors that she had seen two African-Americans in her neighborhood and this made her “nervous” because this was not typical in the area where she lived. She therefore thought this “may have had some kind of sinister connection to the trial.”  The judge questioned all three jurors and assured them that they were not in danger, but the jurors' assumptions about race went largely unexamined.

In considering on appeal whether the jurors should have been removed, the Appellate Division got it:

When Juror 4 inferred a sinister conspiratorial purpose from a facially innocuous event, based only on the race of the participants, she revealed a deeply-rooted, latent racial bias that required her removal from the jury. The trial judge erred in permitting her to remain on the jury and continue deliberating merely based on the juror's self-serving denial of racial bias.  Her initial instinctive, subliminal association of race with criminality or wrong-doing far trumped her subsequent assurances of impartiality. In her willingness to come forward and candidly report her misgivings, Juror 4 also revealed her unawareness of how engrained her racial bias was in her subconscious. This incongruity between Juror 4's conscious acts and latent beliefs is one of the most pernicious, unintended aspects of our jury system. (p. 3 of PDF)

The court wrote at length about the trial process, hoping to provide guidance to trial judges that would make clear that the trial judge's attitude -- "[W]e expect to some extent people have developed certain prejudices, some fixed ways of thinking" -- is unacceptable. A juror's assurance that he or she has no biases, or can set them aside, should not overcome evidence of lurking racial profiling.

By the way: for a wonderful weekly email with news related to both civil and criminal juries, subscribe to the National Center for State Court's Jur-E Bulletin.

Posted by Beth Thornburg on September 14, 2015 at 09:30 AM in Blogging, Civil Procedure, Criminal Law, Judicial Process, Teaching Law | Permalink | Comments (4)

Sunday, September 13, 2015

Museum of Tort Law

FeaturedtortcasesThe American Museum of Tort Law. I thought it was a joke when it started showing up in my Twitter feed (@TortMuseum). Imagine the exhibit possibilities: the firecrackers from Palsgraf, the chair pulled out from under Ruth Garratt, the shotguns from Summers v. Tice. It's just hard to picture. But it turns out the museum is real, Ralph Nader is its President, and it actually has a Corvair!

On top of that, it has a serious purpose. Its vision statement includes these goals:

  • Create and sustain a world-class facility that focuses on the rich historical legacy of Tort Law in American life and culture, inform people about the effect of Tort Law on their lives, and inspire a sense of future possibilities for the welfare of our society
  • Create a unique historical environment that fosters an appreciation of the intellectual rigor and community standards embodied in law
  • Show by example how ours is a nation of laws, and how Tort Law reflects the voice of the community

And to do that, the Museum "will be a unique mix of historic displays and engaging experiences that will illustrate the workings and effect of Tort Law.  Visitors will experience the ideas and decisions that go into the making of the law that defines the world in which we live." Exhibits might include great closing arguments, the stories of famous tort cases, and "you make the call" challenges in which visitors weigh in on torts policy decisions.

I doubt that it will be competing with Disney World anytime soon. But it got me thinking about my own academic discipline, Civil Procedure. What would a Museum of Civil Procedure look like? Like Torts, it raises tough policy conflicts and, these days, those conflicts are highly politicized and involve campaigns financed by wealthy corporations seeking to affect public opinion and SCOTUS amicus briefs hoping to make procedural law less claimant-friendly. How would we design a procedure museum that might convey the importance of fair processes or citizen (jury) participation? Might visitors play a game applying a Prisoner's Dilemma scenario to decisions about discovery? Classic civ pro cases might also provide thought-provoking artifacts: William Twombly's complaint? The Robinsons' burnt-out Audi? Video of the recollections of Sandra Adickes about her efforts to integrate Hattiesburg (Adickes v. Kress)? Maybe the museum could stage a battle between the Repeat Players and One-Shot Players. [I see real potential for a Procedure wing of the Tort Law museum.]

Silly? Not really.  I found it to be a great exercise in thinking about how to explain to members of the public why I think procedure is interesting and important, and what's really at stake.  What about your own legal academic discipline? I'd love to see  Comments about The Museum of [Your Subject Here].

Posted by Beth Thornburg on September 13, 2015 at 06:39 PM in Civil Procedure, Culture, Torts | Permalink | Comments (5)

Friday, September 11, 2015

Affirmative Consent and Burden Shifting, Take 3

            I have been arguing that affirmative consent in effect shifts the burden of proof to the accused because universities do not afford adequate procedural protection. But now I’m going to go one step further. As long as the standard of proof is preponderance, the burden is on the accused to prove there was affirmative consent. Furthermore, affirmative consent means that consensual sex can be successfully prosecuted as rape.

            Affirmative consent proponents pooh-pooh these claims. They insist that the burden is on the state, and it meets that burden when the victim takes the stand and testifies that she never affirmatively consented. Although they may not admit it, there is an implicit assumption that a person wouldn’t go through the trouble of saying she hadn’t affirmatively consented unless the sex had actually been nonconsensual. Proponents can rest easy believing that they are only prosecuting men that penetrated women who said “no” or would have said “no” if they hadn’t been traumatized by what was happening.

            But what happens if the complaining witness isn’t the purported victim?

            Say two women, A and B, are college roommates. A (who is admittedly a bit of a voyeur) wakes up in the middle of the night and sees B having vaginal sex with Accused. A observes them for at least twenty minutes before falling back asleep. Never does A hear B tell Accused that she wants him to penetrate her, and never does she see B doing anything that clearly conveys that she wants him to do so. The next morning, A reports that B has been raped. At the hearing, only A testifies. Since the sole evidence is sex without affirmative consent, that is sufficient under a preponderance standard to find Accused responsible.

            What happens if Accused takes the stand and says that A did affirmatively consent?  (This is the burden shifting that I’m talking about.) Now it’s Accused’s word against A’s. I was a public defender for ten years, and I can hear the argument that the state would make. “Who has the motive to lie here?  A, the concerned roommate, or Accused who faces expulsion for rape?” Unless Accused has proof that either A is biased or B affirmatively consented, I think he’s still likely to found responsible.

            And what if Accused goes one step further and actually calls B to the stand? B testifies that she did want to have sex with Accused. On cross examination, however, B admits that she never actually told Accused that he could penetrate her, nor did she ever perform any acts that clearly conveyed that she wanted him to do so. But, A insists, “I really wanted to have sex with him.” Is Accused off the hook? Once again, I can imagine what the state would argue. “B is just covering for Accused. She doesn’t want him to get in trouble. Indeed, this is exactly what domestic violence victims do.”

            Even if the fact finder believes that B really did want to have sex with Accused, under the letter of the statute, Accused is responsible. Consider SUNY’s statute, “Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression.” Unless the fact finder nullifies, Accused is guilty.

            As written, the woman’s state of mind is relevant but not determinative. It is action that matters. The problem is that not all women have lawyer sex (I, declare under penalty of perjury that I am fully consenting to this act of penetration) or porn star sex (My p*ssy is so hot and wet. You need to f*ck me now). Nor do all women want to be on top. People may say that a university would never go forward with the case above, but I am not so sure. Title IX requires them to take all complaints seriously.

            I am not being provocative. I am very, very concerned. 

Posted by Tamara Rice Lave on September 11, 2015 at 03:09 PM | Permalink | Comments (22)

Podcast on Crazy in Alabama

I did a podcast for Northwestern University Law Review discussing my NULR Online essay, Crazy in Alabama: Judicial Process and the Last Stand Against Marriage Equality in the Land of George Wallace. This was a lot of fun to do. It's always nice to be able to talk about your work. And it is a great idea for the Review to supplement time-sensitive online essays with this type of additional discussion.

Posted by Howard Wasserman on September 11, 2015 at 09:31 AM | Permalink | Comments (0)

Thursday, September 10, 2015

Art for law's sake

Scott Dodson and Ami Dodson have a fun contribution to a Green Bag micro-symposium on A Top Ten Ranking of the U.S. Supreme Court. They identify the "most literary" justice by citation to great works of literature (Spoiler Alert: It's Scalia, by a lot). I was surprised that Roberts was low, citing literary work in only two of 135 opinions. Given Roberts' often-florid writing style, I would have expected literary references to be part of that.

Then I realized that Roberts' focus seems to be more visual art than literature. Without looking it up, I recall him citing Jackson Pollack, Sargent's Gassed, and Delacroix's Liberty, to say nothing of The Wizard of Oz (depending on how one categorizes motion pictures).

Shimmering-substance

 

 

 

 

 

AZVF134lI4GSJlXrBdZ8Dbm7uOw8YZX_Ei--GhgYdMgULmbinDF1lGCo19aM=s1200 Images

Posted by Howard Wasserman on September 10, 2015 at 12:00 PM in Howard Wasserman | Permalink | Comments (6)

Tuesday, September 08, 2015

Affirmative Consent and Burden Shifting, Take 2

    In my last post, I was a bit glib in my discussion of affirmative consent; so let me take this more slowly.  Suppose a woman (Complaining Witness or CW) says that she was raped but is reluctant to testify. CW proffers her roommate who states that on the afternoon in question, she heard loud music in CW’s room. Roommate knocked, and getting no response, opened the door. Roommate observed Defendant vaginally penetrating CW and immediately closed the door.

    Could Defendant be convicted of rape based only on Roommate’s testimony?

    The answer depends on how the statute is written. If part of the point of an affirmative consent standard is to show that the default should be non-consent, then rape might be defined as follows: “Any penetration, no matter how slight, of a person’s vagina or anus is rape unless it is accomplished with that person’s affirmative consent.” Under this definition, all a prosecutor needs to prove is that penetration occurred. The burden would then be on the defendant to prove (by a preponderance of the evidence? beyond a reasonable doubt?) that there was affirmative consent, just as the burden would be on the defendant to show that he was insane or under a state of duress at the time of the crime.

    Of course, lawyers are competitive creatures. We want to win. And so the prosecutor would put on whatever evidence he could to prove his case, and indeed, he might choose not to go forward with only Roommate’s testimony. But a strategic decision is not the same as one based on legal insufficiency.

    Now rape could be defined differently so that it made the absence of affirmative consent an element of the crime. For instance, it might read, “Any penetration, no matter how slight, of a person’s vagina or anus constitutes rape if accomplished without that person’s affirmative consent.” Here, a prosecutor would have to prove beyond a reasonable doubt that CW had not affirmatively consented in order to convict Defendant of rape. Under this definition, Roommate’s testimony would be insufficient to meet the burden of proof.

    Although many would find Definition #1 unfair, they might support Definition #2. But what happens when Definition #2 moves from the criminal justice setting to the university with its fewer procedural protections for the accused? Even if it might still technically be the university’s burden to prove that there was no affirmative consent, effectively, I don’t think it is. The preponderance of the evidence standard is too low, and combining that with no right to cross-examine and the pressure on universities from the Department of Education, Office of Civil Rights to convict, the result is that even if sexual assault is defined with certain elements, they do not pose any real hurdle to conviction. In practice, Definition #1 and Definition #2 become the same. 

Posted by Tamara Rice Lave on September 8, 2015 at 02:33 PM | Permalink | Comments (22)

Kim Davis released from custody

Kim Davis has been released from custody and had the contempt sanction lifted, based on the plaintiffs' report that they had received marriage licenses and that deputy clerks were issuing licenses to "all legally eligible couples." The court furthered barred Davis from  interfer[ing] in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples." (H/T: Marty Lederman).

As written, however, the new order brings us back to the recurring problem we have seen with most district court injunctions: This has not been certified as a class action, so the injunction was satisfied when the named plaintiffs received their licenses. Further, Davis cannot properly be held in contempt for interfering with the issuance of licenses to other couples; those licenses are not  formally happening on the strength of the court's order, so Davis would not formally be defying the court's order. Of course, if she attempts to push that point, the plaintiffs will simply ask Judge Bunning to certify the class, thereby expanding the injunction to that scope. The wiser move is for Davis to stand aside and let her deputies voluntarily comply.

Posted by Howard Wasserman on September 8, 2015 at 01:54 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

The Future of Housing

In February 2015 I participated in a fascinating conference at Washburn University School of law called "The Future of Housing: Equity, Stability, and Sustainability."  The conference covered three distinct but interrelated problems that our system of housing must face and overcome in the near future. (Articles from that symposium can be found here).  Since participating in that February conference, nearly every day I am struck anew by how vital it is that we as a nation craft effective solutions to housing challenges.

First, we are facing a crisis of de facto housing segregation and inequity in this country. Today, fifty years after the creation of HUD and 47 years after the passage of the Fair Housing Act, housing discrimination and the effects of racially-determined disparate policies regarding homeownership continue to plague our society. Current housing patterns are as equally segregated as they were back in 1968 when the Fair Housing Act was passed.  The New York Times reported on Sunday that "[e]conomic isolation is actually growing worse across the county, as more and more minority families find themselves trapped in high-poverty neighborhoods without decent housing, schools or jobs, and with few avenues of escape." As the article explains, housing disparity in this country came about not by accident but by deliberate design among all sectors of the housing market, private lenders, private property sellers, and - most disturbingly - the federal government agencies tasked with growing homeownership for the nation. The Federal Housing Administration very much served as an "architect" of segregation in the 1930s and 40s, conditioning mortgage funding on neighborhood racial homogeneity (and - even then - granting funding almost exclusively to white homebuyers). These policies were also reflected in other housing initiatives that shaped the landscape of housing today - in particular the GI bill that significantly grew homeownership in this country, but only for whites. Efforts to combat housing inequities today are hamstrung by a cumbersome "disparate impact" jurisprudence (see Professor Rigel Oliveri's article here) and the reality that it is harder to un-do a nation's housing patterns built on segregation than it would have been not to have the segregation-creating policies to begin with.  At least this summer the Supreme Court refrained from further limiting the scope of the Fair Housing Act in the Inclusive Communities case, but that alone is unlikely to lead to housing parity.

In addition to the continuing need to address housing inequity, our country still must re-establish (or establish for the first time, depending on your perspective), a stable residential mortgage market.  In the aftermath of the 2008-to-present Financial Crisis sparked by the 2007 subprime mortgage meltdown, much has been written and said about allocation of blame. To date, however, we still have an incomplete picture of how to solve systemic financial instability going forward. Professor David Reiss has made a recent, insightful contribution to the stability question in his recent article, Underwriting Sustainable Homeownership: The Federal Housing Administration and the Low Down Payment Loan, wherein he advocates that the Federal Housing Administration be preserved, but that its underwriting approach be significantly re-worked in order to create a more efficient and effective home finance system.

In addition to equity and stability issues, we must continue to bear in mind the challenge of housing sustainability. Volatile gas prices and disenchantment with suburbia (see here and here, for example) are now calling into question longstanding assumptions about zoning, neighborhood design, and community housing goals.  Automobile dependence, large-footprint houses, and suburban communities perhaps should become anachronisms as our housing policy modernizes and recognizes realities of sprawl, pollution, and suburban population de-connectedness (food for thought: see here and here).  

These challenges are not easily overcome. How can this country solve the problem of entrenched housing segregation patterns, particularly without problematic government mandate?  How can market volatility be eradicated when we continue to have financial institutions (both government sponsored and private) that today are not only "too big to fail," but are even BIGGER than ever before? And is it really possible to reconsider and possibly reverse patterns of development that are encouraged (or required) by legislation (from the local to the federal level) and enshrined in centuries of the common law? 

I leave you with these questions, in the hopes that together we can craft solutions and build a better future of housing.

I have so very much enjoyed this stint as a guest blogger at prawfsblawg. Thank you for this opportunity. And thanks to all of you who are working - in all the various important subject matter areas - toward positive developments for our law and our society.

 

Posted by Andrea Boyack on September 8, 2015 at 11:19 AM in Article Spotlight, Culture, Current Affairs, Property | Permalink | Comments (5)

Open Culture

BoundbyLawOne of my very favorite websites is Open Culture -- both an entertaining blog and an incredibly helpful collection of open source media. Today's lead blog entry, for example, takes a look a the million (yes, million) images that the British Library has put in the public domain.  On Monday it was Stephen Colbert reading Flannery O'Connor.

One of my favorite Open Culture entries has legal significance -- and is useful for legal academics as both teachers and scholars. It highlights Bound by Law?, a free comic book sponsored by Duke's Center for the Study of the Public Domain. It not only contains fabulous comic book art, but also manages both to provide information about copyright law and raise larger policy issues about the boundaries of fair use. [Bound by Law, copyright 2006, Keith Aoki, James Boyle, Jennifer Jenkins, is made available under a Creative Commons Attribution, Non-Commercial, Share-alike License].

You can get a daily email from Open Culture, subscribe to its RSS feed, or even follow it on Twitter (@openculture). At the very least, it's a fun and enlightening study break. Check it out!

Posted by Beth Thornburg on September 8, 2015 at 10:48 AM | Permalink | Comments (0)

Monday, September 07, 2015

When Political Correctness Was, Well, Correct

It's a pleasure to join PrawfsBlawg as a September guest blogger. I thought I would use my first entry to indulge my fascination with language, more specifically with Lawtalk -- words and expressions that have both legal and cultural significance. So let's talk about 'politically correct' and its strange reversal of meaning. It's hard to resist something so thoroughly in the news. (HT to my Lawtalk co-author James Clapp, who is a master of digging out historic uses of language and who wrote our book's discussion of 'politically correct').

These days, some politicians are throwing around the term 'politically correct' like dirty Kleenex. Donald Trump has probably gotten the most headlines that way: "I think the big problem this country has is being politically correct. I’ve been challenged by so many people and I don’t, frankly, have time for total political correctness. And to be honest with you, this country doesn’t have time, either." Thus he invokes fears of Mexican immigrant rapists, expresses disdain for "anchor babies," mimics broken English in discussing Asian business people, and makes so many horrifying remarks about women that I've lost count. Those who question his accuracy, his policies, or his choice of words are easily dismissed with that easy insult: they are just being politically correct. And so a charge that something is politically correct becomes a charge that it undesirable and untrue.  

It's not just politicians. Court cases reflect this dismissive use of the phrase by ordinary citizens.  For example, a California court tells the story of a doctor who, while performing surgery in the presence of an African-American nursing instructor, kept up a running commentary on race that included appalling remarks such as this: "You don't see 'no colored allowed' signs posted on doors anymore. I hate all this politically correct crap. People are afraid to tell the truth. . . . A pure white race, that's how it should be." [Williams v. Vartivarian, 2003 WL 361274].

But did you know that the phrase goes back at least to the founding generation, and was once a compliment? James Wilson -- a signer of the Declaration of Independence and SCOTUS Justice -- put the words together as early as 1793.  Arguing that the federal government derives its powers not from the states but from the people of all the states together, he bemoaned the sloppy use of language about the government:

Sentiments and expressions of this inaccurate kind prevail in our common, even in our convivial language.  Is a toast asked? "The United States" instead of the "People of the United States" is the toast given.  This is not politically correct. [Chisholm v. Georgia]

Wilson meant that the toast was not an accurate characterization of the government structure established by the Constitution.  'Correct,' or the alternative adjective 'right,' were also used to signal philosophical approval.  Thomas Jefferson happily predicted that graduates of his new University of Virginia would carry forth into government service "the correct principles of our day." The most influential use of 'politically right' appeared in a 1786 oration dedicated to Benjamin Franklin: "Nothing can be politically right that is morally wrong; and no necessity can ever sanctify a law, that is contrary to equity." (This quote was later much used by anti-slavery crusaders to counter the argument that slavery must be tolerated as a politically expedient tool to maintain national unity). Being politically correct, then, was a Good Thing.

In a century that saw political conformity enforced by the likes of Hitler and Stalin, the phrase 'politically correct' lost its identity as a straightforward compliment. In the 1970s, the term 'politically correct' reappeared in the United States as a kind of wry lingo within progressive groups seeking greater inclusion and recognition of women and African-Americans. Although useful in internal debates (meaning something like 'consistent with our political ideals'), it was often used with self-mocking humor.  In the 1980s, however, conservative politicians used this shorthand as a way to characterize the liberal positions as too dogmatic. By the 1990s, the media picked up the phrase, and opposition to 'political correctness' became the insult of choice for those who did not want to use inclusive language and did not want to reconsider the subjects or people taught in our schools. Any sense that 'correct' meant 'accurate' pretty much disappeared. [Scary experiment for today's pop-culture meaning: put "politically correct" into Google or Google Images, and see what you get.]

The reversal of meaning became particularly clear in the educational context in a statement by Lynne Cheney when she was chair of the National Endowment for the Humanities (when George H.W. Bush was President). The NEH commissioned a group of educators to devise national standards for teaching history, but when the draft was released Cheney hated them.  In a statement that would have puzzled both Jefferson (who used 'correct' to mean ideologically desirable) and Wilson (who used 'correct' to mean accurate), Cheney said, "I've received dozens of phone calls from people worried that the standards represent not only a politically correct version of history, but a version of history that's not true."

Here's my suggestion: let's lose "politically correct" from our collective vocabulary. It's a content-free insult, deflecting thoughtful debate -- a label that avoids both fact check and policy discussion. Let it go.

 

Posted by Beth Thornburg on September 7, 2015 at 12:38 PM in Culture, Current Affairs, Law and Politics | Permalink | Comments (13)

What if it doesn't pass and other questions about Lessig 2016

Larry Lessig successfully crowd-funded his $ 1 million and is running for President as a single-issue "referendum candidate"--he will serve as President only until passage of the Citizen Equality Act of 2017, after which he will resign and have his Vice President (preferably a liberal such as Elizabeth Warren or Bernie Sanders) become President.

I generally think this is silly. And I say this while supporting pretty much all of the substantive provisions of the Act and as someone who might support a Lessig-type as a presidential candidate (if I thought he could win a general election, which I don't). But a few questions--none of them new or original, but I throw them out here:

1) What if the law does not pass in his first term? Would he seek reelection in 2020?

2) What does it mean for the law to "pass"? Must every piece pass? If not, how many pieces? Must it pass in the current form or are amendments permissible? If not, how watered-down can a version be to still constitute "passing" so as to trigger his resignation?

3) Does he resign after the legislation is signed? Or does he wait around for completion of judicial review? Nothing in the Act seems constitutionally questionable. Of course, in 2009, we all would have said that the health-insurance market affects interstate commerce. And what happens if some (or all) pieces are declared invalid.

4) If he fails to resign as promised, is that an impeachable-and-removable offense?

5) Accepting that legislation takes months even in a functioning Congress (which we surely do not have), how will Lessig handle all the other presidential responsibilities or who will he delegate them to? Will the VP be handling most of these other presidential duties? How will he fill judicial and executive vacancies? Is it fair to question whether he cares about these "mundane" aspects of the presidency and to be concerned that he doesn't?

6) Is it fair game during the election and "debates" to prod Lessig about his views and plans on other issues, accepting that he will have to do other things as President, at least for some period of time? Will he answer these questions and will he answer them well?

7) Are substantial numbers of Democratic voters this detached from political reality? At least part of the frustration with the Obama presidency involved the extraordinary (and unrealistic) expectations when he entered the White House, which he could not possibly meet.* And he began his presidency with substantial majorities in both houses and a filibuster-proof majority in the Senate. And he still could not get done everything he wanted or tried to do, at least not in the absolute way he wanted.

* No, that was not the only problem. But it has played a role in the perception of his achievements as President.

What makes Lessig (or those who would support him) think he will have any more success, especially since he definitely will not have a House majority and almost uncertainly will not have a Senate majority. Does he (or his voters) believe putting the word "referendum" into his candidacy will actually give him more of a mandate than Obama enjoyed despite having received 70 million votes and 365 Electoral votes? Does he (or his voters) believe Mitch McConnell, John Boehner, or any of the representatives who might lose their seats under a non-gerrymandered proportional representation scheme will care?

8) Aren't all the incentives for Republicans to oppose and drag their feet on this (beyond even the ordinary perverse incentives of divided government)? The longer it drags on, the longer they keep in office someone who really does not want to be President. And the longer it drags on (or the legislation does not pass), the easier to run against Lessig in 2018 and 2020 as a failure who could not achieve his one (and only) presidential goal. "Presidential failure," not "congressional recalcitrance," is always the narrative on which the press, and thus the public, seize.

Posted by Howard Wasserman on September 7, 2015 at 08:22 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Sunday, September 06, 2015

Many other takes on the Kim Davis mess (Updated)

Both from Balkinization. Marty Lederman parses Kentucky law and suggests that either the deputy-issued licenses are invalid or there was no need to hold Davis in contempt it was improper to throw Davis in jail (the contempt order was proper). Mark Graber discusses a "class bias in rights" (which Paul already commented on), under which rights that inure, in whole or in part, to the wealthy are more easily implemented than those that inure largely to the less wealthy.

Both are worth a read.

Update: Mike Dorf adds his take, arguing that a district court has broad powers to remedy constitutional violations, even where those remedies might otherwise violate state law. Thus, even if Davis's  name/consent ordinarily is necessary, once it became necessary for licenses to issue without her name (in order to ensure compliance with the underlying injunction), those licenses could be made valid. Note that Mike and Marty agree that it was unnecessary to put Davis in jail.

Further Update: More from Sam Bagenstos (Michigan) in The New Republic.

Posted by Howard Wasserman on September 6, 2015 at 05:32 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Saturday, September 05, 2015

Social Movements: The Platinum Card of Social Change

At Balkinization, Mark Graber offers what he calls "a different take on Kim Davis." (And thank goodness. I cannot say that the stories and FB posts that have made their way into my media feed have been especially illuminating.) His short take: "Put more broadly and more polemically, the fuss over Kim Davis demonstrates that the Constitution of the United States remains an effective means of combatting governmental policies that inflict stigmatic harm on members of the upper-classes, but a far less effective means of combatting government policies that inflict material deprivation on the lower classes."

Of course this seems true to me. I would add three caveats and one more point that seems to me to be a natural next step to his argument. It is certainly fair to say that marriage is hardly limited to the upper classes, but he is right that it is generally essential that the stigmatic harms also be suffered by the upper classes to gain traction. It is also fair to say, and some advocates for concentrating on same-sex marriage argued along the way, that the SSM movement has or will realize many indirect benefits for gays and lesbians--call them "trickle-down" benefits. But, aside from how one feels about trickle-down arguments, Graber's observation still holds even if this is true: it still involves focusing first and foremost on a harm shared by the upper classes and an issue that interests them.

Finally and probably most important by way of reservations, one might argue that the problem with Graber's statement is its focus on the Constitution rather than the law in general. On this view, the Constitution has a lot to say about individual rights of this sort and very little about economic rights. One might even believe this argument to be true in some objective sense, insofar as one believes there is a clear constitutional text that reflects itself in the rulings of the courts. But I don't find this argument especially convincing. Twenty years ago it was not clear at all that the Constitution spoke to the state's role in marriage itself, although it was quite arguable, in the interval between Romer and Lawrence, that it spoke to how the law penalized personal conduct related to sexual orientation. It was not much more or less clear at this point that the Constitution guaranteed a right to same-sex marriage than it was forty or fifty years ago that the Constitution would not soon be read to guarantee economic rights for the poor. There were surely class-based, or class-relevant, reasons why the Constitution ultimately yielded few results for that movement, and considerable results for the same-sex marriage movement.

The "next step" point is this. Once we reach Gruber's conclusion about the Constitution as a mechanism for social change, we ought to consider what this says about the social movements that have been a part of this story as well, and that are always relevant to legal and constitutional change. In my crowd, the tendency to idolize judges is an on-again, off-again thing, and the notion that judges mostly end up giving traction to legal cases that benefit the upper classes would hardly be shocking. But they do tend to have a more on-again, on-again affection for social movements, and even to treat them--or at least those movements they support--as genuinely popular in nature. And yet it seems to me that Graber's statement would still be largely true if it were extended beyond the Constitution and the courts, to say that social movements are a relatively effective means of serving the social interests of the upper classes, and a relatively ineffective means of serving the material interests of the lower classes.

Two small points about this. First, one might question whether the current prominence of the Black Lives Matter movement serves as a counter-example. I doubt it. For one thing, it's too early to know how successful the movement will be. For another, it's possible that the movement's greatest tangible reforms will end up being directed toward stigmatic harms shared by African-Americans of all socio-economic levels and not material harms suffered by the poorest in the community. Finally, and I suspect this is true of most or all social movements, at the end one would want to know how much of the actual payout resulting from the movement and whatever reforms it achieves is siphoned off, cy-pres fashion, by more affluent sectors--giving rise to more jobs by professional consultants, for instance, or resulting in foundation grants to think tanks and most certainly to universities and their many institutes. Second, and as usual, the general point carries across ideological lines. Even if one believes the Tea Party movement was at some point a genuine popular movement among less affluent right-wing Republicans, it is certainly true that its financial benefits were enjoyed largely by people whose first or second homes are clustered within ten miles around the Capitol building.

Posted by Paul Horwitz on September 5, 2015 at 05:52 PM in Paul Horwitz | Permalink | Comments (0)

God's authority, religious accommodation, and civil judges

Following up on Howard's and others' posts on the Kim Davis matter:  About 25 years ago, I remember being disappointed that some of then-Judge Clarence Thomas's critics insisted they were nervous about -- or, in some cases, were simply snarky about -- statements and writings of his regarding the importance and relevance of the natural law.  It seemed to me at the time (and still does) that there was nothing particularly remarkable or weird about these views, considered in the broad context of the American legal and political traditions.  But, again, for some of Thomas's critics -- including, interestingly, some of the same people who had, a few years before, professed concern about Judge Bork's statements against the relevance of the natural law -- the fact that Judge Thomas (like Dr. King, etc., etc.) believed that the natural law is real and relevant was thought to be worrisome.

It is similarly disappointing, to me, that some of those (not here!) criticizing Kim Davis's refusal to issue marriage licenses are doing so on the ground that she is not only required by her job description but also -- again, to hear some argue it -- by foundational principles of political morality to comply with every duty imposed on her by the positive law, regardless of any conscientious or religious objections to compliance she might have.  This seems too strong.  I think we can all think of fairly recent instances in which officials have declined to comply with what seemed to be the positive law duties attached to their offices and avoided the kind of condemnation that Davis has been attracting.  

This piece, by Robert Barnes, provides a helpful overview of at least one aspect of the debate ("Legally, 'God's Authority' Is a Tough Issue.")  I spoke with Mr. Barnes -- who is, I think, an excellent reporter on legal and constitutional matters -- for a little while yesterday.  At one point in the piece, I'm cited in the following way:

. . .  Such compromises can be difficult to find. Appeals to “natural law,” and morality, as Davis and Bunning discussed Thursday, are difficult for a judge to assess, said Richard Garnett, a Notre Dame law professor who specializes in religion and the law. . . .

The citation is accurate. It seems to me that, generally speaking, an official who objects on moral grounds to carrying out a positive-law duty should recuse herself or resign (and not refuse to comply with a court order or injunction).  That said, my observation about the difficulty any secular/civil judge faces in dealing directly with a claimant's invocation of natural law came in the context of a broader (and fun) conversation in which, among other things, I said that I see nothing spooky or innovative, in the American tradition -- nothing requiring scare-quotes -- about invoking higher-law standards in the course of morally evaluating the positive law.  As I discussed with Mr. Barnes, it seems to me that a large part of the human-rights enterprise has involved precisely (even if not always overtly) this kind of evaluation.  I believe that the natural law is real and morally binding and that it is entirely appropriate for citizens to do what we reasonably can to make it the case that positive law and policy are consonant with (which, of course, does not mean they should fully capture) the natural law.  In other words, to criticize Davis simply for invoking a higher-law standard is, I think, misguided, even if, in the end, we think that Judge Bunning's rulings are correct. 

Prof. Mark Rienzi, who is also quoted, put things pretty well: 

It is better to base legal arguments on constitutional protections and statutes such as the Religious Freedom Restoration Act, said Mark Rienzi, a Catholic University law professor who is fighting the contraceptive mandate but is not involved in the Davis case.

Judges may have their own ideas of morality, he said, “but I don’t think any of them have the authority to enforce their own moral preferences.”

Posted by Rick Garnett on September 5, 2015 at 12:56 PM | Permalink | Comments (0)

Friday, September 04, 2015

Texas, Abortion, and the Supreme Court

Thanks to Prawfs for letting me linger a little longer!

All eyes have been on Eastern Kentucky of late, so you may have missed the news that a group of abortion clinics and physicians in Texas have petitioned the Supreme Court for certiorari in the much-publicized 5th Circuit case involving admitting privileges and the requirement that all clinics qualify as Ambulatory Surgical Centers.

I expect the Supreme Court will decide to take this case and/or a very similar case out of Mississippi this term. I'll blog more on this next week -- until then, have a great Labor Day!

Posted by Jessie Hill on September 4, 2015 at 02:24 PM | Permalink | Comments (0)

Out George Wallace-ing George Wallace

I was quoted (mostly out of context) in yesterday's New York Times on Kim Davis; I said that Davis was "out George Wallace-ing George Wallace." Wallace's stand in the schoolhouse door, and accompanying speech, remain one of the signature moments of Massive Resistance to Brown and integration. But after making his speech, Wallace stood down when facing the Attorney General, rather than being hauled off by a federalized National Guard or facing a contempt charges (the University had been enjoined to allow Vivian Malone and James Hood to register and Wallace had been enjoined not to interfere with the prior injunction). Wallace made his point and had his moment, but in the end chose not to defy the forcible execution of a court order or to go to jail for a lost cause.

What does it say about society, this issue, current politics, and attitudes towards the judiciary that Davis believed it necessary or proper to take that next step? Is it that she believes she is fighting for conscience rather than secular principles such as federalism?  Is her stand less popular locally or nationally than was Wallace's, necessitating the bigger step in order to be heard? Is her stand more popular locally or nationally, such that she garners more support and sympathy by going to jail than Wallace would have? How does the relative popularity of Obergefell as opposed to Brown affect the respective choices each make.

Does Davis go down as this generation's George Wallace? She might, if only because she is proving so rare. According to this WaPo story, citing the group Freedom to Marry, there are only a handful of counties (fewer than 20) in Southern states refusing to issue licenses, at least as a matter of formal office policies.*

* And 13 of those are in Alabama, where probate judges are waiting for the Supreme Court of Alabama to lift the mandamus prohibiting them from issuing licenses (or for SCOTUS to quickly reverse if the Supreme Court of Alabama refuses to lift the mandamus).

Posted by Howard Wasserman on September 4, 2015 at 11:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (19)

Marriage licenses issuing in Rowan County

Here and here. The first couple--William Smith and James Yates--were not parties to the litigation. No word on whether the license was issued in Kim Davis' name or whether it is valid if issued over her command not to. That probably is moot; it would arise only if a marriage officiant refuses to recognize the license or someone somewhere down the line refuses to recognize the marriage as valid, neither of which is likely to occur.

Davis remains in jail, probably until next week. It may come down to whether, if she returns to her job, she intends to order her staff to again stop issuing licenses.

By the way, note the rhetoric floating around here: Davis's husband is quoted as saying "Just because five Supreme Court judges make a ruling, it’s not a law." Now regardless of how silly that statement is on its own, it is notable that blame for his wife being in jail is being placed on the shoulders of the Supreme Court and Obergefell. But the problem is not that Davis ignored the Supreme Court, at least not directly; the problem is that she ignored a district court order directed at her.

Posted by Howard Wasserman on September 4, 2015 at 09:59 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, September 03, 2015

Kim Davis (not Jim or Garfield) jailed for contempt

Judge David Bunning has held Kim Davis in contempt and had her jailed. Bunning apparently pointed to the fact that members of the public are raising money to cover the fines (damn crowd-funding) as evidence that fines alone would not work. This is civil contempt, so she will be released as soon as she agrees to comply with the injunction and issue licenses.

So Davis is now a martyr to the cause, probably what she and her lawyers wanted. It raises a couple of questions: 1) Does this provide grounds for the governor or other state-level official to remove her from office (a question of Kentucky law)? 2) Is Davis now "unable" to issue licenses, opening the door for the county judge to do it, as a commenter to an earlier post suggested? 3) If the county judge begins issuing licenses, does that get Davis out of jail? 4) If the county judge begins issuing licenses, does it moot the case once the plaintiffs get their licenses from the judge (the answer to this one is probably not, because I expect Bunning to go back and certify a class).

For what it is worth, the judicial process is working as it should in all of this. No one said it should be pretty.

Update: Five of the six employees of the office (all but Davis's son) have promised to issue licenses beginning tomorrow, filling out the forms in Davis' name. Bunning also indicated he will lift the contempt order in a few days if employees issue licenses. Davis could have stayed out of jail by agreeing not to interfere with her employees issuing licenses, but she said she could not do so consistent with her conscience. There may be a question of whether those licenses can be valid if issued in defiance of office policy. But I suppose it will be enough that the form is properly completed with Davis' name on it by a duly employed clerk.

Posted by Howard Wasserman on September 3, 2015 at 02:19 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (9)

Affirmative consent and switching the burden of proof

I have been thinking a lot about affirmative consent in sex cases. I understand why advocates want affirmative consent as a policy matter; certainly, people should ensure that they are only having sex with partners who actually want to be doing whatever conventional or freaky act they happen to be engaged in. But I have a problem with legally requiring affirmative consent. I don’t see how making a person prove that her partner consented doesn’t switch the burden of proof to the accused.

 When I was a public defender, I used to always remind jurors that because the BOP was on the prosecutor, I could literally say nothing, and still, if the D.A. didn’t prove the case beyond a reasonable doubt, they would have to acquit. But with affirmative consent, the accused must put on evidence. If the university proves by a preponderance of the evidence that a sex act happened, the student has violated the university code of conduct unless he can convince the fact finder that the complainant consented.  

 Alas, New York and California have enacted affirmative consent laws, and other states are considering following. I find this trend to be extremely troubling and am relieved that at least one judge is similarly critical of affirmative consent. The case I am referring to is Mock v University of Tennessee at Chattanooga, and it was decided on August 4. Corey Mock was alleged to have had non-consensual sex with a female student.  At the hearing, the Administrative Law Judge found that UTC had not carried its burden of proof and dismissed the charges. The complainant then spoke with the Chancellor, who petitioned for reconsideration. Although the ALJ did not change any findings of fact, she changed her overall conclusion. Mock appealed to the Chancellor who upheld the order and expelled Mock. Mock then appealed to the Chancery Court.

 In her opinion, Chancellor Carol L. McCoy wrote, “Under the ALJ’s Revised Initial Order, a person accused of violating SOC7 must overcome the presumption inherent in the charge that the violation has been established. Mere denial of the accusation is insufficient.  The accused must prove the converse of what is taken as true and credible, i.e., the complainant’s statement that no consent was given.  He must come forward with poof of an affirmative verbal response that is credible in an environment in which there are seldom, if any, witnesses to any activity which requires exposing each party’s most private body parts. Absent the tape recording of a verbal consent or other independent means to demonstrate that consent was given, the ability of an accused to prove the complaining party’s consent strains credulity and is illusory.”

 After finding that the UTC Chancellor “improperly shifted the burden of proof and imposed an untenable standard upon Mr. Mock to disprove the accusation that he forcibly assaulted Ms. Morris,” Chancellor McCoy reinstated the original order of the ALJ and reversed the decision of the UTC Chancellor.

 I applaud Chancellor McCoy’s decision and hope that other judges will also see the problem with affirmative consent.

Posted by Tamara Rice Lave on September 3, 2015 at 11:33 AM | Permalink | Comments (57)

Tinkering with the machinery of marriage

Jonathan Adler explains why Kim Davis cannot, and should not be able to, use her personal religious beliefs to refuse to issue licenses to same-sex couples; if her conscience prevents her from doing this, she must resign. Adler points to a 2002 essay by Justice Scalia, in which Scalia explained why, if he believed capital punishment immoral, he must resign from the bench--his personal morality cannot override his judicial obligations. Adler argues that Davis similarly cannot use her personal religious morality to refuse to participate in (paraphrasing Harry Blackmun) the machinery of marriage.

But is there a middle ground between violating religious beliefs and resignation--recusal. Could a Justice Scalia whose religious views prevent him from affirming a death sentence recuse from all such cases? If so, that seems to be what Davis is doing here--recusing herself from the one function that runs afoul of her beliefs, while being ready and willing to perform other functions, even as to same-sex couples.

I am not suggesting Davis should win--she shouldn't. But does the reason have less to do with an absolute prohibition on this type of moral refusal to perform a public function and more with whether the attempted accommodation sufficiently protects the rights of couples seeking marriage licenses?

Posted by Howard Wasserman on September 3, 2015 at 10:10 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (5)

Chief Justice William H. Rehnquist

Ten years ago today, I got a phone call from my friend Janet, the old Chief's assistant, telling me that Chief Justice Rehnquist had died.  Here's the short thing I wrote for Slate that day, remembering him and the experience of working for him.  A bit:

. . . During my clerkship year, the chief, my co-clerks, and I played tennis together weekly at a public, outdoor court near Capitol Hill. (We played on the same day that the week's "cert memos," analyzing petitions filed by those seeking review of their cases, were due, so—more than a few times—clerks played without having slept.) We took turns driving and buying a new can of balls. I was the chief's doubles partner that year, and I several times beaned him with my hopelessly chaotic serves. One day, I am ashamed to admit, after yet another double-fault, I slammed my racket to the ground and yelled an extremely unattractive expletive. My co-clerks looked across the net at me in horror. The chief, though, didn't turn around. He just slowly bent over, put his hands on his knees, and started laughing. . .

The chief was a lawyer's lawyer. He taught and inspired me, and all of his clerks, to read carefully, to write clearly, and to think hard. He will, quite appropriately, be remembered as one of the few great chief justices. For me, though, William Rehnquist is more than a historic figure and a former boss. Today, thanks in no small part to him, I have a great job: I get paid to think, research, and write about things that matter and to teach friendly and engaged students about the law. I will always be grateful. And I hope that the deluge of political spin to come will not drown out what Americans should remember about the chief: He was a dedicated public servant, committed to the rule of law and to the court. He regarded himself as the bearer of a great trust and of a heavy obligation of stewardship. In my judgment, he was faithful to that trust, and he fulfilled that obligation.

Posted by Rick Garnett on September 3, 2015 at 09:35 AM in Rick Garnett | Permalink | Comments (0)

Wednesday, September 02, 2015

New Jersey’s Legislature Takes a “Grave” Misstep

Other than fellow “property law geeks,” not many people may wonder about property rights in cemeteries, but it is a surprisingly complex and varied topic about which I’ve pondered and about which Professor Tanya Marsh of Wake Forest has developed national expertise.  She has recently written the definitive casebook on cemetery law (co-authored by recent law school graduate Daniel Gibson), has launched a venture with the Urban Death Project to work for “ecologically beneficial meaningful death care” worldwide, and has recently been quoted in the national media with respect to death and internment issues.  Monday, in a short but completely compelling piece on Huffington Post, Professor Marsh took the New Jersey legislature to task for passing a law limiting churches’ ability to manufacture and sell tombstones, vaults, and private mausoleums.

As Professor Marsh clearly explains, creation and care for tombstones in church-owned and operated cemeteries is a religious practice. After all “rituals that mark the transition from life to death are a central part of most modern religions.” (I’d go even further and say that such rituals have always been a central part of all religions.)  But this new New Jersey law, Bill 3840, that was signed into law by Governor Chris Christie in March 2015, limits churches’ ability to fully participate in those rituals – even on their own land and on behalf of their own members. The law seems to be a blatant anti-competitive, special-interest-group spearheaded “win” by the Monument Builders of New Jersey, who agitated for government assistance to preserve their de facto monopoly on manufacturing graves, memorials and vaults.  Not only does this law serve no state interest at all – let alone a compelling one – it violates religious freedom in an essential and inexcusable way. Professor Marsh sums it up thus:

This law is an amazing act by the New Jersey legislature and governor. It was adopted at the behest of a group of private market participants for a reason no more noble than to protect themselves from competition. This blatantly anti-competitive effort is even more stunning because the product at issue–headstones and memorial tablets–are not regulated. No license is required to manufacture or sell them. Literally anyone in New Jersey can manufacture and sell tombstones, vaults, and private mausoleums–everyone, that is, except religious organizations and non-profit corporations that own or manage cemeteries.

Happily for those who care about justice and religious freedom and economic liberty, the Archdiosese of Newark, assisted by the Institute for Justice, have brought a lawsuit against the State of New Jersey, seeking to have the law struck down. There are several asserted grounds pursuant to which the court could invalidate the law, including violations of Due Process, Equal Protection, the Privileges and Immunities Clauses, and the Contracts Clause (Art. 1, Section 1) of the Constitution. 

Posted by Andrea Boyack on September 2, 2015 at 11:17 AM in Books, Culture, Current Affairs, Property, Religion | Permalink | Comments (1)

Tuesday, September 01, 2015

(Repost): Section on Fed Courts: Annual Award for Best Untenured Article

The AALS Section on Federal Courts is pleased to announce the fourth annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school ­and to solicit nominations (including self-nominations) for the prize to be awarded at the 2016 AALS Annual Meeting in New York, NY. 


 
The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2015 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2015), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award.
 
Nominations (or questions about the award) should be directed to Tara Leigh Grove at William and Mary Law School (tlgrove@wm.edu). Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2015. Nominations will be reviewed by a prize committee comprised of Professors Janet Cooper Alexander (Stanford), Tara Leigh Grove (William & Mary), Caleb Nelson (Virginia), Judith Resnik (Yale), and Amanda Tyler (Berkeley), with the result announced at the Federal Courts section program at the 2016 AALS Annual Meeting.

Posted by Howard Wasserman on September 1, 2015 at 05:59 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Contempt proceeding in Rowan County

The ACLU today moved to hold Kim Davis in contempt for refusing to allow her office to issue marriage licenses, asking for "financial penalties" seemingly tied to the compensation she continues to receive from the state despite not performing her functions. The motion does not ask for jail time, likely realized that is what she and/or her attorneys want. Judge Bunning has scheduled a hearing for Thursday.

More interestingly, the ACLU also moved the court to clarify the preliminary injunction to "state unambiguously that the preliminary injunction applies not only to future marriage license requests submitted by the four named Plaintiff couples in this action, but also to requests submitted by other individuals who are legally eligible to marry in Kentucky." The motion states that the action was filed as a "putative class action," although the court has never addressed or resolved the class certification issue. So the motion appears to be asking the court, in the guise of clarifying its injunction, to convert it into a class-wide injunction without ever doing the FRCP 23 analysis of whether certification is appropriate. Can the court do this?

Posted by Howard Wasserman on September 1, 2015 at 04:27 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

The baby is coming, the baby is coming ...

Actually, she is not.  She is now eight days past due and showing no signs of emerging from the womb.  So the blogging must stop ... not because she needs to enter this world for all of our sakes (the in-laws are in town with nothing to do ... we are all miserable including, most prominently, the pregnant one), but because Howard has told me that my time with you has come to an end.  But never fear, I'll be back ... maybe not next month, maybe not next year, maybe not in the next twenty years ... but I'll be back.  

On a final note, I feel that given the origins of the blog, I owe a short word to the originator.  I never knew Dan.  Never met him once.  So I really have nothing to offer in terms of a personal experience with him.  But being a religious reader of this blog (not so religious as to deny a marriage license, but pretty religious) I can say that if I have the opportunity to touch and impact the lives of even half the people that he touched and impacted, I will consider it a life well lived. 

Thank you all for your wonderful and extraordinarily interesting engagement with my blog posts.  I have taken all the comments in even though I only responded to a few of them.  My ideas are evolving on how to protect the marginalized poor and each of you has helped with that evolution.  For that, I will be sure to reserve a star footnote slot for all of you (is there any greater honor?), even anon at 12:42.  Best wishes for a rewarding, productive, and impactful new academic year. 

Posted by Bertrall Ross on September 1, 2015 at 12:20 PM | Permalink | Comments (1)