Monday, November 30, 2015
Robins v. Spokeo: An Injury Worth Remedying?
As I blogged about earlier this month, the Supreme Court heard oral arguments in Spokeo, Inc. v. Robins, a putative class-action lawsuit against Spokeo, an Internet people-search engine, for allegedly failing to follow required reasonable procedures to ensure the most accurate publishing of information on its website in violation of the Fair Credit Reporting Act (FCRA or the Act) and California fair competition and consumer protection laws. This blog entry takes a closer look at the amended complaint.
Previously, I explored the existence of Article III actual injury on the theory that Spokeo published inaccurate information. As Justice Kagan emphasized, she would feel harmed if a website posted inaccurate information about her. But this view focuses on a notion of injury with which we can all empathize. Technically (h/t Asher Steinberg), however, plaintiff Robins hopes to serve as representative for a class of plaintiffs on a theory that does not require publication of incorrect information for class members. This strategy broadens the potential class members to anyone reported on by Spokeo regardless of accuracy of the reporting. The Court may seize the opportunity to curtail class actions. The Spokeo complaint, however, still raises actual injury based on sufficient allegations of Spokeo’s improper processes and safeguards to ensure accuracy of reported information. Let’s look more closely to discern why.
According to Robins’s amended complaint, Spokeo operates a searchable website that provides detailed consumer reports, including assessments of data as well as personal information such as marital status. Further, Robins alleges that Spokeo does not publicly disclose the full list of sources for the reported information, though known sources include: “phone books, real estate listings, government records, and social networking websites.” Meanwhile, Robins asserts that Spokeo publishes inaccurate information, including information about Robins, without an effective system for consumers to remove mistakes. The gravamen of the complaint centers on Spokeo’s inadequate procedural compliance with the law, which creates fertile ground for misreporting information. The amended complaint includes further allegations regarding other federal law violations such as Spokeo’s failure: to make the required disclosures when offering consumer reports for employment purposes, and to create processes required to enable consumers to request annual file disclosures. Robins maintains that Spokeo violated federal consumer laws that mandate “strict guidelines for maintaining and distributing fair and accurate consumer reports.” The complaint’s final cause of action asserts Spokeo amassed an unfair business advantage in violation of California law “by failing to produce accurate reports and otherwise take the necessary steps to adhere to FCRA.” Robins seeks to represent a class of individuals for which Spokeo has published reports under these faulty procedures even if the information contains no inaccuracies.
In the amended complaint, Robins seeks the following remedies in his prayer for relief: declaratory relief, statutory damages, injunctive relief, attorneys’ fees, interest, and other relief as justice requires. Other relief, coupled with other portions of the complaint, might imply recovery for unjust enrichment if any. Regarding common questions of the class, the complaint lists: “whether Defendant unjustly received and/or continues to receive money as a result of its conduct described herein, and whether under principles of equity and good conscience, Defendant should not be permitted to retain those monies.”
Again, the Act establishes a private right of action and a statutory remedy for willful violations where plaintiff cannot prove actual damages: “damages of not less than $100 and not more than $1,000.” The Act envisions the very plaintiff that Robins is. He alleges no pecuniary loss for Robins or the putative class. Yet, the Act requires certain processes be provided to facilitate accurate reporting. Robins alleges that Spokeo willfully did not satisfy such procedures, which resulted in errors for some including himself. The injury to Robins with inaccuracies is more central than putative class members with no inaccuracies. But, if the point of the remedy in the Act is to deter willful noncompliance with consumer protection processes to ensure accuracy, then actual injury exists by virtue of the statutory violation.
What do you think? Should the Court vent its frustration at class actions by denying access to the federal court to vindicate a congressionally created right and remedy? Should Congress limit the class and the remedy to those who prove inaccurate information or to those who prove pecuniary loss based on the misinformation? Do you think this case fails to show actual injury because of the lack of pecuniary loss, despite the Act’s statutory minimum remedy? Regardless, this case raises significant standing and separation-of-powers issues as explored in the Vanderbilt Law Review En Banc Roundtable, as well as remedies concerns for a host of noncompensatory injuries that exist from public law to private.
Many thanks to Prawfsblog for giving me the opportunity to be a guest blogger this month. It's been an honor & a privilege. For those who enjoyed my posts (assuming that isn't a null set), I plan to continue blogging on my Tumblr, which is titled Waste-Book, in honor of Georg Christoph Lichtenberg's brilliant collection of aphorisms. The posts are perhaps a bit less law-centric than my Prawfsblog contributions, but might be amusing nonetheless. In addition, I will also be a guest blogger at the Nonprofit Law Profs Blog the week of December 28.
Even dogs can vote?!?!?!
Just kidding. I haven't found anywhere in the country that actually allows animals to vote, despite some claims that dogs have registered and voted. In fact, allegations of dogs voting -- including a springer-spaniel named Ritzy Mekler -- was one of the arguments behind the initial push for voter ID laws. Senator Kit Bond claimed that Ritzy Mekler voted in St. Louis elections in 2000, and he was the author and primary supporter of the voter ID rule put into the federal Help America Vote Act of 2002. (Bond's arguments were largely debunked.) Various states, including Indiana and Georgia, followed suit with their own, stricter state-level versions, and the rest, they say, is history. I recount this history of voter ID requirements in a chapter of the new Election Law Stories book, due out sometime next spring. (I am a co-editor of the book, along with Gene Mazo.) Forget holiday shopping; it will make a great May Day gift next year!
If you've enjoyed this discussion of election law this month, particularly on local election rules, please come to the AALS Section on Election Law panel, which is titled "Election Law at the Local Level." We have a great group of speakers that will address various aspects of local control over elections. It is on Friday, Jan. 8 at 10:30.
Vote early, vote often (well, as often as there are elections, but vote only once in each of them!). Thanks for a fun month. I'll see you all (virtually) soon.
Kolber Signs Off
My thanks to all the Prawfsblawgers and thoughtful commenters! Here's a recap:
- Nathan For You: Legal Edition
- Broad and Narrow Punishment
- The Fungibility of Intentional and Unintentional Punishment
- Your Turn, Retributivists
- Is Free Will Better than Cats?
- The Significance of Lawmaker Views About Free Will
- Mother, Child, and Meat Machines
- The "Do You Have Any Questions?" Question
- The Blandification of Stephen Colbert
- The Law is a Sith
- Do Crimes Proceed in a Smooth or Bumpy Fashion?
Those of you in New York City may be interested in this talk on Friday.
Happy December. Thanks to our November guests, who will be closing up shop in the next couple days.
Our December guests include Jessica Berch (Concordia), Chad DeVeaux (Concordia), Andrew Gilden (Grey Fellow, Stanford), and Scott Maravilla (an ALJ at the Federal Aviation Administration). Returning guests are Ian Bartrum (UNLV) and Jay Wexler (Boston University). Welcome and we look forward to a great month.
It's been a pleasure to be a guest this month. Thanks for all the comments and I look forward to seeing many of you soon at upcoming conferences. In the meantime, happy holidays,
Should Reversals on Qualified Immunity Vacate Lower-Court Merits Decisions?
The Supreme Court is becoming increasingly accustomed to reversing lower court rulings that deny qualified immunity to police. Just a few weeks ago, for instance, the Court attracted a lot of media attention in Mullenix v. Luna, which summarily sided with a police officer accused of using excessive force.
But for all the attention that Mullenix and similar decisions have garnered, the discussion has overlooked a critical procedural issue: when the Court reverses on qualified immunity because relevant law is unclear, what happens to the lower court’s separate determination that the Constitution was violated?
Under the Court’s qualified-immunity cases, there is a strong argument that lower-court merits determinations should remain intact even after the Court reverses on qualified immunity. This conclusion, if adopted, would substantially alter the implications of the Court’s vigorous enforcement of qualified immunity, including its recent use of summary reversals.
Let’s start with some quick background on Mullenix. In short, an officer attempted to stop a rogue vehicle by shooting at its engine block, even though his superiors allegedly ordered him to rely on a “spike strip” that had already been deployed. The officer’s shots missed the engine but killed the driver (whose car double-rolled seconds later, after hitting the spike strips). The officer was then sued for using excessive force in violation of the Fourth Amendment. A divided Fifth Circuit panel ruled that the officer’s alleged conduct violated clearly established law. Therefore, the officer was not entitled to qualified immunity.
In an 8-1 summary reversal, the Supreme Court ruled not that the police officer had acted constitutionally, but rather that no clearly established law precluded his action. As a result, the officer was entitled to qualified immunity. Objecting to that result, Justice Sotomayor penned a solo dissent arguing in part that the Court had encouraged a “‘shoot first, think later’ approach to policing.” That pointed observation understandably garnered a great deal of media attention—though, unfortunately, much of the media coverage didn’t appreciate the difference between ruling on qualified immunity as opposed to the merits. Indeed, Sotomayor’s criticism may ironically have contributed to the perception that the Court had upheld the constitutionality of the police conduct at issue.
Once the distinction between the merits and qualified immunity comes into focus, so too does the difficulty of Sotomayor’s position. Under current law, Sotomayor had to grapple with qualified immunity’s “clearly established law” standard—a challenge made all the harder by the fact that no other justice joined her opinion. (If you’re the only one who thinks that something is clear, it probably isn’t.) So Sotomayor’s dissent is perhaps best understood as an implicit plea to reform qualified-immunity doctrine, to make it is less protective of police.
But there’s an overlooked procedural solution to the problem that Sotomayor has identified. If summary reversals on qualified immunity are sending the wrong message to police by encouraging them to push the legal envelope, then the Court could clarify its message by explicitly preserving the lower court’s determination, applicable within its jurisdiction, that the police acted unconstitutionally. This approach would fulfill the distinctive purposes of qualified immunity by sheltering the officer in Mullenix and other cases from liability. At the same time, a targeted reversal of the lower court’s immunity decision would preserve the lower court’s ruling that the alleged police conduct was unconstitutional.
It may seem paradoxical to reverse the lower court’s formal judgment—that the officer is not qualifiedly immune—while simultaneously preserving the lower court’s determination that the officer has violated the Constitution. But as qualified immunity aficionados well know (and, really, who else is reading this post?), the Court has already drawn a similar distinction. Under Pearson v. Callahan, lower courts have discretion to rule on the merits that officers violated the Constitution, even when finding the officers protected by qualified immunity. And in Camreta v. Greene, the Court “vacated” a lower court’s informal merits decision while preserving its formal judgment finding immunity.
If a lower court can issue a distinct and reversible merits decision when it does find qualified immunity (Camreta), then it stands to reason that it can also issue a distinct and reversible merits decision when not finding qualified immunity (Mullenix). If anything, the latter conclusion is more defensible, since the existence of a constitutional violation is logically necessary to finding that the violation is clearly established. By contrast, finding a constitutional violation on the way toward finding immunity seems a lot like dicta, or an advisory opinion.
It's possible to imagine a lower court that rejects a claim of qualified immunity only because it thinks it's bound by clearly established law. If such a court had realized that it had an opportunity to exercise its Pearson discretion, it might not have made a discretionary merits ruling at all. In principle, this complication could call for vacating the lower court's implicit merits ruling. In practice, however, lower-court reasoning that supports finding a clearly established violation usually entails a finding that, even if case law is disputable, there was a violation. And to extent there is uncertainty on this point, lower courts can alleviate the concern by plainly stating that, even if the law weren't clear, they would still find a violation.
So, under existing law, the lower court decision in Mullenix is best viewed as having two distinct and freestanding components: first, a ruling on the merits that police violated the Constitution; and, second, a ruling denying the officer’s qualified immunity.
All the reasoning in Mullenix goes to whether the police violated “clearly established law”—that is, to the immunity point. None of Mullenix’s reasoning dictates the answer to the merits question. Moreover, the Court has recently said that certiorari is independently justified by the need to correct qualified immunity errors, given their “importance … to society as a whole.” All of this suggests that Mullenix and similar summary reversals should be understood to leave the lower court’s merits decision intact.
Besides clarifying the meaning of qualified-immunity reversals, preserving merits decisions by lower courts would facilitate the development of the law and provide guidance to officers and plaintiffs alike. In this way, narrowly construing Mullenix would promote systemic values recognized in Pearson and other cases as important to qualified-immunity doctrine.
None of this is to deny that the Supreme Court could properly reverse or vacate the lower court’s merits decision, in addition to reversing on qualified immunity. Most obviously, the Court could exercise its own Pearson discretion and opine on the merits itself. Or the Court might conclude, based on the Pearson factors, that it would be an abuse of discretion for any court to reach the merits. Or the Court's reasoning on qualified immunity might cast doubt on the lower court's analysis of the merits. In any event, the Court needs some reason for vacating the lower court's merits decision. The Court shouldn’t automatically eradicate distinct merits determinations as though they were so much collateral damage.
* * *
Mullenix illustrates that the Court is using its summary reversal power to cut back on lower court rulings in civil rights cases. But even if the Court is right to enforce its broad qualified immunity doctrine, that alone isn’t sufficient justification to erase lower court decisions that the Constitution has been transgressed.
Sunday, November 29, 2015
John Cage's Silence
John Cage is a well-known modernist (post-modernist?) composer, arguably the most important and influential American composer of the 20th century. And for copyright professors, he is the gift that keeps on giving, because his compositions routinely test the limits of copyright protection of musical works. Typically, his scores require a great deal of discretion on the part of the performer: consider this 1960 performance of his composition Water Walk on the TV show I've Got a Secret. But Cage's best-known composition is probably 4'33" (1952), which instructs the performer to do nothing other than be present: the performance consists of the atmospheric sounds that occur in the absence of performance. So Zen!
The composition is an ideal point of discussion for a copyright class, because it forces students to address the meaning of copyright "originality." According to the Supreme Court, a work of authorship can constitutionally be protected by copyright only if it is "original." And the Court has interpreted "originality" to require both "creation" and "creativity." Cage's 4'33" is undeniably creative - it fundamentally transformed the concept of a musical work. But can it be protected by copyright? The idea/expression dichotomy seems to say no. So one is left struggling with what role "creativity" does and should play in copyright protection.
In any case, 4'33" is in the news (again) because Soundcloud recently removed a "remix" of 4'33" on copyright grounds. It looks like Soundcloud's action was based on a software bot that just looked at titles, but it still presents a range of copyright questions. Is the Cage composition copyrightable at all? Surprisingly, Cage's publisher seems to believe that the answer is yes. And they have aggressively pursued infringement actions against anyone performing "silence." Color me skeptical. I'm not sure I even see independent creation.
But the more interesting point is that works like 4'33" show that the Court's "creativity" requirement is incoherent nonsense. The purpose of copyright is to solve market failures in works of authorship, not to promote creativity. Copyright is not a value judgment: many immensely influential and creative works of art cannot be protected by copyright (see, e.g., Marcel Duchamp's Fountain), and many painfully banal works can (see, e.g., anything painted by Thomas Kinkade). That is ok & as it should be. Cage's compositions may not be protected by copyright, but that doesn't diminish their creativity or value. If anything, it's part of what makes them so important.
UPDATE: Zvi Rosen has alerted me to another instance of copyright entanglement with Cage's 4'33", in this case a rather witty conceptual art stunt, in which a YouTube user uploaded the song 'Murderers' by John Frusciante & titled the upload "John Cage's 4'33"". Initially, YouTube muted the music as infringing, inadvertently making the title "true" and implying that Cage's "silent" work was muted. Unfortunately (?), YouTube eventually changed its copyright policy & as a result unmuted the track, spoiling the joke.
Manta & Robertson on Secret Jurisdiction
So-called “confidentiality creep” after the events of 9/11 has given rise to travel restrictions that lack constitutionality and do nothing to improve airline security. The executive branch’s procedures for imposing such restrictions rely on several layers of secrecy: a secret standard for inclusion on the no-fly list, secret procedures for nominating individuals to the list, and secret evidence to support that decision. This combination results in an overall system we call “secret jurisdiction,” in which individuals wanting to challenge their inclusion on the list are unable to learn the specific evidence against them, the substantive standard for their inclusion on the list, or the process used to put them there. The executive branch has argued that its decision to put someone on the no-fly list should be judged by a minimal “reasonable suspicion” standard. It has further stated that any plaintiff wishing to be removed from the list must demonstrate that the government’s suspicions are unreasonable, and must do so without hearing the evidence that led to those suspicions in the first place. The momentum may have finally shifted with the litigation in Latif v. Holder, which recently led a federal court to recognize for the first time that, at a minimum, individuals have a due-process right to learn whether they are on the list and to have at least some opportunity to challenge their inclusion on the list. Many questions still remain, and no court has yet ruled on the question of what process is due to plaintiffs in such actions — that is, whether they are entitled to a hearing, whether they have the right to learn the full scope of the evidence against them, and whether “reasonable suspicion” is a sufficient basis on which to affirm travel restrictions. We argue that a traditional procedural due process analysis is insufficient to protect individual rights when national security requires that much of the information relevant to that analysis be kept secret. To counter this deficit, we suggest that courts should incorporate elements of substantive due process by applying a unified due process standard that requires a higher evidentiary burden — and real evidence of national security benefits — before the government may curtail significant individual liberties.
I read an early draft of this article & found it quite compelling. The individual burden of being placed on the "no fly" list is high & the government's incentive to ensure that such placement is justified is low, so I am inclined to agree that some degree of increased scrutiny is justified, under the circumstances. Sadly, I am not optimistic about the likelihood of Manta & Robertson's recommendation being adopted, but I hope my cynicism is unwarranted!
In other news, I recommend the oddly compelling & more-than-slightly creepy TSA Instagram account, which documents contraband seized by TSA agents, accompanied by helpful advice about what you can & cannot bring on a place & how. One of my favorite elements is the repeated assertion, "As we’ve said before, we’re not looking for illegal narcotics, but we have to report them to law enforcement when discovered." Incidentally, if you have "travel-related questions" you can tweet them to @asktsa. Which is actually considerably more responsive than you might expect.
Colman on Design & Deviance
Charles E. Colman (NYU) has published Design and Deviance: Patent as Symbol, Rhetoric as Metric, Part 1, 55 Jurimetrics: The Journal of Law, Science, and Technology 419 (2015). Here is the abstract:
This project reveals the unrecognized power of gender and sexuality norms in the deep discourse of pivotal American case law on design patents. In Part 1, I show that late nineteenth-century cultural developments in the urban Northeast gave rise to a stigma surrounding the “ornamental” and “decorative” works under the then exclusive legal purview of design-patent protection. Among the politically dominant segments of American society, the creation, appreciation, and consumption of design “for its own sake” grew increasingly intertwined with notions of frivolity, effeminacy, and sexual “deviance.” In Part 2, I will examine influential design-patent decisions from the 1870s through the 1930s against this cultural backdrop. My close reading of these decisions will demonstrate that federal judges, particularly in leading cases decided by the Second Circuit, increasingly used design-patent disputes as a vehicle for the performance and endorsement of prevailing gender norms. The resulting doctrine relegated design patents to near-total irrelevance as a viable form of intellectual property protection for a large and crucial portion of the twentieth century.
A draft version of Part 2 is available here. I found that Colman's articles provide a provocative counter-narrative to the prevailing history and scholarly assessment of design patent jurisprudence. Design patents protect the appearance of a product, rather than its function. Until relatively recently, design patents were largely considered worthless and typically not pursued. But since 1975, applications have been on the rise, a trend that was probably abetted by the creation of the United States Court of Appeals for the Federal Circuit in 1982, which made design patents more readily enforceable. While design patents are easier to obtain than utility patents, they can provide substantial benefits to their owners, depending on the circumstances, exemplified by the Apple v. Samsung (2012) case, the outcome of which relied at least in part on infringement of Apple's design patents.
In any case, Colman argues that the long dormancy of design patent protection was a function of institutional associations between design or ornament and gendered and sexualized values. I find his reading of the development of design patent jurisprudence in the late 19th and early 20th century quite compelling, and believe that his articles provide a valuable contribution to the surprisingly limited scholarship on the subject. On that note, I also recommend Sarah Burstein's scholarship on design patents, as well as her excellent Tumblr, Design Law, which collects "new, notable, or otherwise interesting design patents."
Do Crimes Proceed in a Smooth or Bumpy Fashion?
The life cycle of intentional crimes is often divided into three parts. First, you merely "prepare" to commit a crime during which time you have no criminal liability. Then, you attempt the crime during which time you are subject to, let's say, roughly half or two-thirds of the criminal liability of the offense you were attempting. Finally, you complete the offense and are fully liable for it. The ways in which the law treats the life cycle are rather bumpy: changes in your conduct have little impact on your criminal liability within a particular stage of the life cycle but when you ever so slightly cross into the next stage, a small change in conduct can dramatically alter punishment amounts. Does the law reflect what our best theories of the criminal law say?
It depends. If you focus on culpability, you might think that deserved punishment ought to increase gradually as an offender gets closer to his criminal objective. (Alternatively, you might think culpability increases in spurts as the offender increases his wholehearted commitment to the plan.) If you focus on harm caused, you likely think deserved punishment increases rather suddenly (since the ultimate harm the statute is designed to avoid doesn't occur until the moment the offense is completed). If you focus on the need to incapacitate a dangerous person, the appropriate punishment probably doesn't change much (unless you think the person actually becomes more dangerous as his plan proceeds). We could go on like this but I think you see how the rate at which warranted punishment increases depends on: (1) the factor or set of factors that you think punishment should be responsive to and (2) at least sometimes, facts about the particular offender's motivations, level of commitment, and so on that can be case specific.
At least as a general matter (that is, for many observers for many crimes), warranted punishment increases gradually as crimes proceed. For such people, they may be puzzled as to why the law punishes in a bumpy fashion given that pertinent input variables gradually increase. On the other hand, those who focus on culpability and dangerousness may find, in many instances, that warranted punishment does not change much at all as a crime proceeds. A person may mentally and emotionally commit to some offense and get down to serious business to make it happen. What does change, however, is our evidence that the person is serious about and capable of committing the crime. In such instances, we face a different puzzle: Should we allow the strength of our evidence to influence the amount of punishment we impose?
Sometimes we allow the strength of evidence to affect the punishment we impose, most notably in the context of plea bargaining. We don't do this much, however, in formal sentencing contexts, at least not overtly. Why not some have asked? If we are 99.9% sure Defendant A is guilty, should he receive more punishment than Defendant B for whom we are 96% sure he is guilty (assuming they committed identical crimes, are otherwise alike, and independently satisfy the beyond-a-reasonable doubt standard)?
I'm particularly interested in the following issue that I raise here in more detail: If justice permits us to take the weight of the evidence into account in the law of attempt and in plea bargaining contexts, then it seems like we should also be permitted to do so in formal sentencing contexts as well. Alternatively, if justice does not, then plea bargaining looks questionable, along with, perhaps, the way we often treat attempts. Could it be that justice is indifferent as to whether amounts of evidence affect amounts of punishment? If so, when should the weight of evidence count and when shouldn't it?
Friday, November 27, 2015
Even 12-year-olds can vote?!
From December 5-12 any residents of Cambridge, Ma. (including non-citizens) who are at least 12 years old may vote in the city's Participatory Budgeting election. Residents will be able to vote for up to 6 projects, out of 23, to fund using $600,000 of the City's FY17 capital budget.
In addition to the low voting age, there are other interesting features of this election as well. It will happen over a week -- call it Election Week -- and residents may vote online or at various events throughout the city. Online voting is available in English and Spanish, while paper ballots will be available in English, Spanish, Portuguese, Haitian Creole, Chinese, Amharic, and Arabic.
This is the second time the city has used a Participatory Budgeting election to decide how to allocate some of its funds. It is unclear what turnout -- especially among the 12-18 year old group -- was like in the first round, but the city was happy enough with the results that it decided to use the process again for FY17. 12 is the lowest voting age I have seen for any election in the U.S. I'm eager to learn whether many young people are voting in this Participatory Budgeting election, and how the low voting age is seen among the electorate.
If anything, this is yet another example of a franchise-enhancing rule created at the local level -- the basis of my research for the next few months. I'll be grateful for any thoughts or insights any of you might have on the topic.
Happy Holiday, er, Birthday
As someone who has a birthday near a holiday, I know it’s not an easy thing. But a birthday that is being properly marked despite the holidays is Frank Sinatra’s 100th. As a T&E professor, I have come to know Sinatra as much for his tidy estate plan as his music, so I look forward to the major music concert in his name on Dec. 6 on CBS. So, if you're a music fan like me, add that to your holiday concert list.
Once More Unto the Brine
In New York, an Asian dumpling
with all the flavors of Thanksgiving
encapsulated in one savory bite
dipped in artisan cranberry delight
A Parisian father affirming
love over hate, in the embers burning
images of twin towers, Beirut, Paris, Mali;
unarmed black young men shot: disproportionate volley
But faith restored is stronger, unshaking
after its near breaking
To see ‘hope in the unseen’—in the brine
The soul’s light streaming like Bonnie through Prine
Homecomings in places of our choosing
or of our birth, of our coupling; of conscious (re)coupling
On the heels of a Full Mourning Moon seeking cures
or tribally a Moon When the Deer Shed Antlers
The night calls for shedding, while the day calls for thanking
to see the homeless, the wounded, the incomplete remaking.
To air grievances; binge watch football and zombies
We, imperfectly, give thanks for this world of opportunity.
Wednesday, November 25, 2015
Tait on the Secret Economy of Charitable Giving
Charitable giving is big business. In 2009, the Internal Revenue Service reported close to 100,000 private foundations, almost double the number from fifteen years earlier. Some of these charitable trusts, like the Gates Foundation, are multi-billion dollar enterprises. Trust instruments and other governing documents set forth the terms that control these gifts. Because charitable trusts can exist in perpetuity, however, changing circumstances sometimes render the terms difficult to fulfill. Courts can apply cy pres, a doctrine that allows for the modification of gift restrictions, but in the past courts have tended to apply cy pres narrowly and privilege donor intent above all other considerations. Recent reforms, however, have moved courts toward a more flexible application of the doctrine. In this Article, I analyze certain high-profile cases that have driven these reforms — including the presumption of general charitable intent, the recognition of “wasteful” as a criterion, and the deployment of deviation — and explain how these reforms represent positive change. Moreover, I provide a theoretical grounding to account for the correctness of these reforms. I argue that charitable giving should be understood as embedded in a nexus of material and social exchanges — part of the “charitable gift economy.” I describe how charitable giving provides a range of benefits to donors, including both tangible tax benefits and intangible benefits such as status, social identity, and “warm glow.” Based on this understanding of the charitable gift economy, courts and charities alike should embrace current reforms and seek to expand them further.
I found this article quite fascinating. Not only does Tait provide an excellent, concise but thorough account of the history of the doctrines of cy pres and deviation, but also she proposes a rich account of what she calls the "charitable gift economy" and how it ought to affect our understanding of the proper scope of cy pres and deviation. Essentially, she argues that donors receive a congeries of benefits associated with their charitable contributions, and courts ought to consider the nature of those benefits in determining the appropriate scope and duration of restrictions on charitable gifts. In other words, perhaps cy pres and deviation ought to become easier to invoke as time passes. As an aside, I also commend Tait's well-chosen quotes from Marcel Mauss and La Rochefoucauld in the epigraph of her paper.
Comparing the Arias and Holmes jury dynamics
In an earlier Prawfs post, I talked about the holdout in the Jodi Arias case and how the holdout was able to get her vote out of the jury room because she had been “treated” with the Colorado method of capital voir dire.
That jury deliberated for five days and when they were released, those who wanted death were pretty vocal about how angry and frustrated they were with the holdout. Compare that angry reaction to the calm reaction by the jurors in the James Holmes trial. This eight-minute clip of Jury 17 describing the jury dynamics is well worth watching. She describes how the jurors were cordial and respectful of each other. When pressed by reporters as to whether tempers flared in the deliberation room, she said tempers didn’t, and that everyone simply recognized that the juror who was voting for life was firm in that position. (Two other jurors were on the fence.)
So why was the Arizona jury so angry and the Colorado jury so calm?
If anything, we should expect the reverse. The Arias case was not that egregious as far as death penalty cases go. Many reasonable people could argue that those types of cases shouldn’t even qualify for the death penalty. And in those types of cases, we might not expect the death-voters to be that committed to ensuring a death verdict gets out of the jury. However, most would agree that if a jurisdiction is going to have the death penalty, the Holmes case would qualify. The death penalty is supposed to be reserved for the worst murderers, and that case appears to be about as bad as it can get. We might expect the death-voters to be deeply committed to getting a death verdict out of the jury.
In both cases, the defense attorneys used the Colorado method of capital voir dire. (This article describes its use in the Holmes case). That method has two main parts: identification and treatment. In the first step, the defense counsel ask a precise question that is designed to accurately and reliably measure whether the potential jury is constitutionally prohibited from serving on a capital jury. The defense counsel then develop a rating for that juror using open-ended questions. Once the juror is identified, the defense counsel move to step two.
In that phase, the defense counsel “treat” all of the favorable jurors (those who are likely to start with the presumption that life is appropriate) with a condition – the defense counsel teach those jurors how to get their votes out of the deliberation room. That happened in both Arizona and Colorado.
The defense counsel also treat the unfavorable jurors (those who are likely to start with the presumption that death is appropriate) with a condition – the defense counsel teach those jurors how to respect the decisions of others. Among other things, the defense counsel explain that the penalty decision is a moral decision and that in most social situations, it is unacceptable to challenge someone’s moral decisions (“You wouldn’t tell someone that they had chosen the wrong religion, would you?”). The defense counsel also have the potential jurors commit to behaving in a professional way and to ensuring that others do the same (“If you see someone raising their voice at someone else, I can count on you to tell them to keep it professional, right?”).
In Colorado, the jury did get this treatment and responded to it. Indeed, even the prosecutor responded. But in the Arias trial, the defense counsel did not have the time in voir dire to do this treatment. The Arias defense counsel were able to treat the presumptive life-voters, though, and that proved enough to get one vote out of the deliberation room.
The Law is a Sith
In Star Wars Episode 3, Obi-Wan Kenobi says that "Only a Sith deals in absolutes." (Yes, it seems contradictory for a Jedi to assert so absolutely that only a bad-guy Sith would peddle in simplistic worldviews.) But like the Sith (and apparently Obi-Wan himself), the law at least frequently deals in absolutes. Typically, people are either negligent and owe full compensation or not and owe nothing. They are either guilty and must serve at least a minimum sentence or not and go home free. In many places, if you deal drugs 999 feet away from school, your sentence is substantially enhanced but if you were 1001 feet away, it's not.
As family descends upon your kitchen this Thanksgiving (or, in my case, upon the Bears-Packers game), I am reminded of the reasons a high estate tax would not be popular. I have a forthcoming law review article arguing that not only do people want to leave their property to their family, but also that the family law system relies on this private safety net to a great extent. The article is available here.
Bagenstos and "The Long Arc of the Accommodation Debate"
Howard always does a fine job of promoting his corner of Jotwell; I do not. But here is my con law jot on Samuel Bagenstos's excellent article "The Unrelenting Libertarian Challenge to Public Accommodations Law." Jotwell is devoted to writings that the editors and reviewers "like lots," but one can "like lots" an article that one doesn't entirely agree with, or that is not wholly in line with one's priors. When I can, I prefer to select articles of that sort for my own (rare) jots. So here is a jot on an article that I think superb and that "has troubled me for a year now." It is also, I suggest, one of the first and still one of the best of the current burgeoning line of what I call [anti-] "neo-Lochnerism" scholarship.
A contrary perspective can be found in the same journal issue in this article by Richard Epstein, but my discussion is along different lines. It spotlights the article's arguments and strengths, while emphasizing the implications of Bagenstos's observation that the balance between the "public" and "private," or "civil" and "social," spheres may prove permanently unstable and continually (but not constantly) contested. (In my view, legal academics are therefore unlikely to make unique or lasting contributions to the core conflict.) The strong critical insights Bagenstos brings to bear on previous attempts to fix the line between permissible and impermissible regulation apply well to the libertarian arguments he discusses, but they also apply to the other side of the debate.
One thing the article suggests, by comparison with later articles on "neo-Lochnerism," is that although many current liberal or progressive articles in the law reviews make use of Critical Legal Theory or Crit-type arguments to undermine their opponents and thus attempt to entrench a more egalitarian or progressive legal regime, there is a startling unwillingness in that literature to name CLS as the source of these undermining arguments, and still more reluctance to acknowledge that those arguments might undermine or destabilize their own positions. I should add that this point emerges from a reading of Bagenstos's article against some of the more recent literature; it's not a criticism of Bagenstos's article itself. Such, perhaps, is the inevitable fate of the Crits, who are applauded by normatively oriented legal scholars who are trying to resist some legal regime, but treated as unpersons when these scholars are trying to establish or entrench such a regime.
Some excerpts after the fold. If you haven't already, read Bagenstos's article!
Samuel Bagenstos’s excellent article, The Unrelenting Libertarian Challenge to Public Accommodations Law, has troubled me for a year now. Anyone seeking to elaborate, and in some cases defend and expand, the developments it describes and, I think, implicitly criticizes, must reckon with it. As this Jot argues, however, so must supporters of Title II, who may find that their arguments defending it, and their reassurances about its scope and limits, are equally subject to the undermining logic of Bagenstos’s own critical—or Critical, if you like—argument. As he concludes, the conflict over just “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres” is a real one, and unlikely to go away, for reasons that apply to both sides in the debate....
No matter their priors, people interested in public accommodations laws can profit a great deal from this article. Libertarians will find much valuable history and analysis, and perhaps an invitation to display greater candor or self-awareness about the nature of their project. Those who champion religious accommodation, even in the realm of public accommodations, for non-libertarian reasons will also find cause for concern here. For reasons both strategic and sincere, few supporters of religious accommodation want to attack entirely the underlying logic of laws forbidding discrimination in public accommodation, at least where race is concerned. Much of their own project consists of efforts to draw reasonable lines between for-profit and non-profit enterprises, or between the public and private or civil and social spheres. In doing so, they will have to reckon with Bagenstos’s article, which reveals the potential instability or incoherence of those efforts.
And defenders of an expansive reading of public accommodations laws, in the face of religious or other challengers and seekers of exemptions? They, too, ought to have reason for concern after reading Bagenstos’s article. That is perhaps the best evidence of its success as legal scholarship, of its genuinely analytic and descriptive nature. This is not simply a liberal critique of the libertarian challenge, but a critical take, drawing on the literature of Critical Legal Studies. Like the public-private distinction, he argues, the distinction between civil and social rights turns out to be “unstable and continually”—we might even say essentially—“contested.” Here, he cites Duncan Kennedy. Similarly, efforts to draw a distinction between commercial and expressive associations are “unstable.” He acknowledges that multiple readings and legal options are available in response to what, quoting Jack Balkin, he calls a “pervasive welfare state.”
Little wonder, then, that “[w]e continue to struggle over the proper placement of the civil-rights/social-rights line, nearly fifty years after Congress and the Supreme Court supposedly laid that distinction to rest.”(P. 1220.) ....
If there is a surprise in the current neo-Lochnerism literature, it is that so much of it relies on Critical Legal Theory’s insights, yet virtually none of it cites the literature, or acknowledges the double-edged nature of those insights. A Westlaw search for articles containing the terms “Lochner” and “Hobby Lobby” since the beginning of 2012 yields 43 results; add “Duncan Kennedy” to the mix and the number plummets to two. One is mostly irrelevant, and the other is Bagenstos’s article. To reveal the instabilities in another’s argument is human; to fail to notice that you have also dug a hole under yourself is, well, all too human. It is telling, perhaps—whether of extreme certitude or great insecurity is not clear—that these efforts to entrench a new liberal settlement routinely deploy the Crits’ analytical moves, but otherwise consign the Crits’ names and works to the memory hole.
Therein lies the relative weakness of the new defenses of public accommodations laws against religious challengers, and the scholarly strength of Bagenstos’s piece. It does indeed suggest a more sweeping arc to the narrative of challenges to public accommodations laws, one connecting past, present, and perhaps future. It does so on a sound basis, mostly without appealing to essentially irrelevant arguments about the challengers’ motives or funding.....
Most important, it recognizes that the instabilities and uncertainties in this area are inevitable and universal. The question “how deeply the antidiscrimination norm may properly penetrate into previously ‘social’ spheres”—whether its limits are substantial, whether the government may override associational choices altogether, or whether the balance rests at some unstable point in between—is and must be a subject of continuing contestation and re-evaluation. Every new era, with its fresh controversies, demands its own renegotiation—if not of the unstable line between “public” and “private,” then of the reasonable reach and limits of state power in practice. Hence the haunting nature of Bagenstos’s fine article.
Tuesday, November 24, 2015
Once Upon A Time in Copyright-Land
The Wu-Tang Clan is a popular hip-hop group, formed in 1993 in Staten Island, New York (shout-out to Josh Blackman) by RZA, GZA, Method Man, Raekwon, Ghostface Killah, Inspectah Deck, U-God, Masta Killa and the late Ol' Dirty Bastard. After achieving remarkable success as a group, the members of the Wu-Tang Clan gradually went in different directions, in many cases achieving similar success as solo artists.
In any case, in March 2014, the Wu-Tang Clan announced the release of a new album, Once Upon a Time in Shaolin. But there was a twist. They stated that they would create and sell only one copy of the album. And they meant it. The Wu-Tang Clan put the 128-minute concept album on Paddle8, an Internet art auction website, and sold it to an unnamed "private American collector" for a price "in the millions." The album is described as “a retrospective soundscape that threads 31 songs, skits, and stories into a 128-minute-long aural screenplay,” and the package includes a nickel-silver box, assorted artifacts, and a pair of $55,000 speakers.
Needless to say, the sale and its terms present a fascinating set of copyright issues. While the sales agreement is not public, the Paddle8 website explains its terms as follows:
The seller of this Artwork will provide the Buyer with a Certificate of Authenticity for the Artwork at the time the Artwork is delivered to the Buyer. The Buyer’s right of ownership of the Artwork and its content is for private use only. The Buyer acquires full public and commercial rights in the Artwork eighty eight (88) years from the date of sale. The seller has agreed, as a condition of the sale, not to ever release any of the content on the Artwork in any form, format, channel, medium or manner (including, print, disk, tape, electronic or virtual) to the public. This Artwork is offered for sale without copyright, broadcast rights, performers consents, and other reproduction rights. The Buyer must apply to the relevant parties to obtain such clearance and consents as may be necessary.
To begin with, it is unclear whether the agreement is to sell a copy of the recording or the copyright in the recording, or what rights it is intended to convey. As a consequence, it's not clear whether any dispute would sound in copyright or contract, per T.B. Harms. But further, the entire concept seem antithetical to the entire purpose of copyright law, which is to encourage the dissemination of works of authorship. It seems that the Wu-Tang Clan's decision to offer the album for sale as a unique object was inspired by the art market, but an audio recording is inherently not a unique object, as observed by Walter Benjamin, oh-so-many years ago. On balance, I am inclined to agree with "Method Man," who observed:
Fuck that album. I’m tired of this shit and I know everybody else is tired of it, too. Fuck that album, if that’s what they are doing. I haven’t heard anything like that, but if they’re doing crap like that, fuck that album. Straight up.
I’m just keeping it 100. When music can’t be music and y’all turning it into something else, fuck that. Give it to the people, if they want to hear the shit, let them have it. Give it away free. I don’t give a fuck; that ain’t making nobody rich or poor. Give the fucking music out. Stop playing with the public, man.
That said, it seems pretty likely that the ultimate result will be that the album is available for free, albeit perhaps illicitly, along the lines of Danger Mouse's Grey Album. So maybe the Wu-Tang Clan just hit on a clever way to cash in on the value of their album, while cutting out the middlemen. If so, I doubt that anyone is likely to find future takers for similar offerings.
Chaffee on the "Collaboration Theory" of Charitable Organizations
Eric C. Chaffee (University of Toledo - College of Law) has posted Collaboration Theory: A Theory of the Charitable Tax Exempt Nonprofit Corporation (49 U.C. Davis L. Rev. __) on SSRN. Here is the abstract:
Legal scholarship regarding tax exempt nonprofit entities is meager at best. Although some excellent treatises, book chapters, and journal articles have been written, the body of scholarship relating to these entities is not nearly as healthy and robust as the scholarship relating to their for-profit companions. This is especially troubling considering that nonprofit entities help to improve our society in a myriad of different ways.
This Article seeks to fill a void in the existing scholarship by offering an essentialist theory for charitable tax exempt nonprofit corporations that helps to explain the essence of these entities. Beyond the purely academic metaphysical inquiry into what is a corporation, understanding the essential nature of these corporations is important because it helps to determine how they should interact with society, what rights they should have, and how they should be governed by the law. This discussion is especially timely because the recent opinions by the Supreme Court of the United States in Citizens United and Hobby Lobby have reinvigorated the debate over the essence of the corporation.
This Article breaks new ground by offering a new essentialist theory of the corporation, which shall be termed “collaboration theory.” The decades of debate over the essence of for-profit corporations has coalesced into three prevailing theories of the corporation, i.e., the artificial entity theory, the real entity theory, and the aggregate theory. The problem is that none of these prevailing theories fully answers the question of what is a corporation.
Collaboration theory suggests that charitable tax exempt nonprofit corporations are collaborations among the state governments, federal government, and individuals to promote the public good. Unlike the prevailing theories of the corporation, collaboration theory explains both how and why charitable tax exempt nonprofit corporations exist, which provides a fuller and more robust understanding of these corporations. Collaboration theory advances the existing scholarship by finally offering an essentialist theory for nonprofit corporations, and it shows remarkable promise for understanding the essential nature of for-profit corporations as well.
I saw Chaffee present this article at the Central States Law Schools Association 2015 Annual Scholarship Conference at the University of Toledo College of Law in October and was very impressed. And I could not recommend the paper more highly. As he observes, while the scholarship relating to the taxation of charitable organizations is vast and quite sophisticated, scholarship relating to the governance and theory of charitable organizations is considerably more meager. Unsurprisingly, tax scholars tend to see charitable organizations as an interesting taxation issue, and corporations scholars tend to see charitable organizations (to the extent they notice them) as just another corporate form.
By contrast, Chaffee sees the charitable organization as a unique organizational form that traditional theories of business corporations cannot adequately describe. As he explains:
This theory is superior to the existing essentialist theories of for profit corporations because it answers why corporations exist, rather than simply struggling with how they exist. The reason why charitable tax exempt nonprofit exist is because they are collaborations to promote the public good among state governments, the federal government, and individuals. How they exist is as separate entities because collaboration yields something greater than the state government, federal government, and individuals could achieve alone, yet the state and federal governments can circumscribe these entities rights because the state and federal governments are part of the collaboration.
But as Chaffee further observes, "collaboration theory" may enrich our understanding of business corporations as well, by explaining the normative justification for corporations, rather than just describing their function. In order to understand what corporations - charitable or otherwise - should look like and how they should be governed, we must understand their purpose and justification. Chaffee's article provides a helpful step in that direction.
The Blandification of Stephen Colbert
I'm a big fan of Stephen Colbert--an extraordinary smart and talented comedian--especially in his days as a correspondent on The Daily Show. I liked The Colbert Report, too, but his character's personality could sometimes be a little much (and did we really have to wait each night for his audience's clapping to quiet down?). So I was excited to learn that he'd be playing his naturally charming self on his late night talk show.
It's probably too soon to predict how his show will fare. This article suggests that his political views may be alienating a good chunk of his potential audience. My own concern with the show is two-fold: First, he's got more time to fill. Material that's hysterical for about 20 minutes is a bit less hysterical spread out over a much longer time period. Just as I think scholarship should roughly be a function of interesting ideas per unit time spent reading it, comedy is roughly a function of humor value per unit time spent consuming it. Second, The Colbert Report was much more subversive than his current show. I was surprised how much his late night show sticks to a relatively common formula. I get that he used to have a half-hour show on Comedy Central and now has a longer show on a major broadcast network. Still, one can regret the possibility that Colbert has been forced to tame his comedic sensibilities.
ABA-LSD realizes it screwed up
A couple of weeks ago, I wrote about the ABA Law Student Division's National Appellate Advocacy Competition, which featured an appellate court unanimously reversing a district judge in a hate-crimes prosecution by saying "We fear that [the district judge] allowed his personal feelings as a black man to color his view of the evidence."
The LSD has released a revised record, with that line removed. Good for them for coming to their senses (presumably following some loud complaints), although without explanation, apology, or acknowledgement of the change or the original mistake. And I remain appalled that the drafters would have included such a line in the first place. It will be interesting to see if there is longer-term fallout from this.
E.L. v. V.L.
A cert petition was filed last week in a very interesting case. A few states recognize—whether by statute or case law—second parent adoption, which allows a second parent of the same gender as the biological parent to adopt a child without terminating that parent’s parental rights. As you can imagine, this is very useful for same-sex parents who want to be both recognized as the parents.
In the case, Georgia had allowed a second parent adoption by a same-sex partner, even though Georgia’s second parent statute at the time required a marriage between the prospective adoptive parent and the biological parent (this was pre-Obergefell, so the parties did not have the choice to marry). Otherwise, the biological parent would have to terminate parental rights for an adoption to proceed.
Now, after breaking up, the women are fighting over visitation in the state of Alabama, and the Alabama Supreme Court is refusing to recognize the second parent adoption that happened in Georgia, on the grounds that Georgia misapplied its own adoption statute by allowing a second parent adoption to proceed despite the lack of a marriage.
The constitutional problem, of course, is that the Full Faith and Credit Clause requires state courts to recognize each other’s judgments. There is, however, a narrow exception to the Full Faith and Credit Clause: a court need not grant Full Faith and Credit to a judgment issued by a sister state court that lacked jurisdiction. This is where the Alabama Supreme Court hangs its hat: by granting a second parent adoption when there was no marriage, the Georgia court lacked subject matter jurisdiction.
Of course, there are other arguments besides Full Faith and Credit—for example, the need for finality of adoption decisions and the child’s best interests to have a parent legally recognized if the parent raised the child (especially for visitation purposes).
It’ll be interesting to see whether the U.S. Supreme Court will want to hear this case, and if so, whether it will serve as a proxy for the same-sex adoption issue.
Another military justice oddity comes under attack -- this time, guilty pleas
The American military justice system has been under sustained, serious criticism for about a decade now. The primary criticism is that commanders do not take sexual assault cases very seriously. Congress and the President have already plucked the low-hanging fruit from the military justice tree: the rape statute has been rewritten (until 2007, the military used the common law definition); the pretrial investigation, where victims generally had to testify and be subject to cross examination, has become a limited hearing; the commander’s authority to reverse a court-martial’s finding of guilt or to reduce a sentence has been sharply reduced; and an exception to the character rules that allowed an accused to present good military character evidence during the merits has been restricted.
The real remaining piece of fruit – or really, the trunk of the tree – is the commander’s authority to make the prosecutorial decision in each case. That is where critics are currently focusing their attention.
So I was a bit surprised when I saw this recent AP article that criticizes a different feature of the military justice system – the guilty plea process. The article highlights a case where an officer assaulted several prepubescent girls, recorded those assaults, and distributed those recordings to others. The officer pleaded guilty and military judge sentenced him to 144 years in prison but through the terms of a pretrial agreement, the commander reduced that sentence to 20 years.
This shocked the authors. They point out that in many jurisdictions, the prosecutor might just make a recommendation that the trial judge can accept or reject. The trial judge isn’t bound by the recommendation (think Jared Fogle). Here, the authors suggest that the military judge should have the power to reject a plea agreement if the judge does not agree with the sentencing terms.
So how could that happen? Why is it that in the military, the judge can sentence someone to 144 years and a commander can reduce it to 20?
First, a quick explanation of the process. In the military, the military judge goes over the plea agreement with the accused but does not learn the agreed-upon sentence until after the military judge announces her decision on sentence (panels can do the sentencing, too, but that is uncommon in guilty pleas). Both parties can put on a fully-contested presentencing case where the rules of evidence generally apply. This is a contested mini-trial. Both sides generally call witnesses and introduce documents. This hearing can last from an hour to a day or more.
After this mini-trial, the military judge decides what she thinks is the appropriate sentence. Only after announcing that decision in open court does the military judge read the agreed-upon sentence that the accused has with the commander. Then, the accused gets whichever is lowest – the sentence announced by the military judge, or the sentence limitation he negotiated with the commander. In the AP article, that sentence limitation was 20 years.
That is pretty odd and is the result of some quirks in the history of American military justice. After World War II, Congress completely overhauled the military justice system. Those first reformed courts-martial would look strange by today’s standards. There were no military judges (the military didn’t get those until 1969). Every court-martial went to a three or five-member panel (depending on the level of court). And, there were no provisions for pretrial agreements. If an accused wanted to plead guilty, he did not receive any benefit from pleading guilty other than whatever discount the panel might give him.
So, every case went to a panel, and most were contested. This was really resource intensive. The panel members were often subordinate commanders or senior officers and had other important tasks to do. Commanders started to look for a work-around. They were not allowed to influence the actual trial itself but commanders did control the case after the court-martial concluded: after trial, the commanders had plenary authority to grant clemency. They tapped into that power to make deals. If the accused pleaded guilty, then the commander would disapprove any sentence handed down by the court-martial that was over the agree-upon amount.
That workaround was pretty effective and the military still operates under it. The trial still goes on without any influence from the commander (that is why the military judge does not read the agreed-upon sentence until after announcing her sentence). If the military judge’s sentence is below the agreed-upon amount, then the accused still benefits from that independent portion of the trial. If the sentence is higher than the agreed-upon amount, then the deal provisions kick in. When Congress recently stripped commanders of most of their post-trial clemency powers, Congress left them with the power to disapprove sentences in excess of that found in the pretrial agreement so that they could continue to make deals.
Returning to the AP story, the authors look at the reduction from 144 years to 20 years as evidence that commanders are taking it easy on child rapists. To them, this would be just another example of commanders misusing the military justice system to take care of their own.
But there is another dynamic going on. The military judge knew that there was a pretrial agreement with the accused and that that pretrial agreement had a sentencing cap. I suspect that the military judge thought the sentencing cap was somewhere between twenty and forty years. So, the military judge could come up with a huge sentence (144 years) knowing that there was no way that number would ever be used and the accused was just going to get what he had agreed upon with the commander. The military judge gets to send a consequence-free social retribution message to the accused.
In general, this system provides a lot of certainty to the accused and that makes deals more attractive to them. Other ideas for reform have actually gone the other direction from the AP author’s suggestion. Rather than giving the military judge more power to reject sentencing limitations, the idea has been to make the sentencing limitation binding on the court-martial. That would end the inefficiency of holding these contested mini-trials and also provide more certainty to another group of participants in the system – the victims. They might be more likely to support a plea agreement if they knew the accused would get the agreed upon sentence rather than risking the chance that the accused would beat the deal in the mini-trial.
Election Results? Lies! Let's Recount
Monday, November 23, 2015
"Of Foxes, Hedgehogs, and . . . Law School"
My former colleague, Dan Myers -- who is now the Provost of Marquette University -- has an essay in the Fall 2015 issue of the Marquette Lawyer called "Of Foxes, Hedgehogs, and Marquette Law School." He writes, among other things, that "[l]aw schools, like most academic divisions, have a natural tendency to operate more like hedgehogs than foxes, and this tendency is reinforced by an administrative structure that sets the law school in a somewhat peripheral functional location at a university. . . . It is incumbent on law schools to resist and to find ways of becoming more vulpine in their activities and reach."
Dan makes a good point about the potential of administrative (or even simply geographical) matters to "reinforce" "more like hedgehogs" practices. At the same time, I think there's a fair bit about legal education, legal scholarship, and the legal enterprise itself that has a "natural tendency" in the opposite direction. My impression is that, sometimes, this latter "natural tendency" is stunted not by anything inherent in or interior to the enterprise of law schools but instead by expectations in Universities' central administrations or other units that law schools should become less "vulpine" -- that is, more siloed, specialized, and heavily invested in specific methodologies.
Dan's piece points to some good things going on at Marquette and he expresses his support for them and their fox-like potential. I wonder, though, if part of the project of "find[ing] ways of [helping law schools] becom[e] more vulpine in their activities and reach" is to let them be themselves?
Should Non-Citizens Be Allowed to Vote? (Local Law Edition)
Municipalities have vast powers to define the electorate, as I explained when noting that some local jurisdictions have expanded voting rights to sixteen- and seventeen-year-olds. Similarly, some municipalities have granted the right to vote to non-citizens. Studying these local laws on voting rights is vital to understanding and protecting the right to vote more generally.
Currently there are six Maryland towns that allow non-citizens to vote in all city elections. Two Massachusetts cities, Cambridge and Amherst, have also passed laws granting the right to vote to non-citizens, but these ordinances cannot go into effect unless the state legislature approves them. In Chicago, non-citizens may vote in school board elections. New York City also used to allow non-citizens to vote for school board until the city disbanded the elected school boards in 2002.
Some local jurisdictions are debating whether to expand the voter rolls to include non-citizens. New York City, for instance, is considering an ordinance to allow aliens to vote in all city elections, which would add up to 800,000 people to the voting rolls. The proposal, debated in 2013, would allow non-citizen legal residents who have lived in New York City for six months to vote in mayoral and city council elections. Although thirty-one of the fifty-one New York City Council Members supported the ordinance two years ago, Mayor Michael Bloomberg opposed it, and the Speaker of the Council blocked a final vote on the law. There is speculation that the measure could come before the City Council again, especially as current Mayor Bill de Blasio might support the idea. Non-citizen voting is also being debated internationally, such as in Toronto, Vancouver, and in various European countries.
There are both theoretical and practical reasons for expanding voting rights to non-citizens. As Professor Jamie Raskin explained in a law review article, “the disenfranchisement of aliens at the local level is vulnerable to deep theoretical objections since resident aliens — who are governed, taxed, and often drafted just like citizens — have a strong democratic claim to being considered members, indeed citizens, of their local communities.” Moreover, local residents – whether they are citizens or not – care about, and should have a say in, local affairs. Allowing them to vote facilitates greater participation in the community, which will encourage these voters to become citizens.
Of course, there may be good policy reasons not to expand suffrage to non-citizens, such as that voting is one of the key rights of citizenship, and that expanding the franchise for only certain elections is a logistical nightmare with separate ballots for federal, state, and local offices.
The point here is not to comment upon the merits of those policy questions -- although they have even greater salience these days given our current debates on immigration. Instead, what is key is that this discussion is occurring at the local level. Municipal laws have driven the debate over expanding the franchise. The voting rights community should take notice. If we want better protection for the right to vote, then we need to shift our focus to look at municipal laws.
Like many of the teaching candidates now working on it, I have a teaching philosophy from my meat market days, and it is partly devoted to the virtues of the Socratic method, or at least a modified Socratic method. However, as I was teaching my 100-person tax course recently, I got a small dose of what I will call “reverse Socratic”—the students were particularly enthusiastic about finding out more about a particular code section and were asking wonderful questions that linked together to build our understanding of that provision. I must admit, I kind of liked it as a teaching tool—so I didn’t insist on being the one asking the questions. I think reverse Socratic works particularly well in tax, where creative lawyers excel. I guess it’s time to update my teaching philosophy, at least when it comes to tax.
The "Do You Have Any Questions?" Question
Legal academic job interviewers frequently end with "So, do you have any questions for us?" I understand where the question comes from. We've been inquiring into all manner of a candidate's job history and scholarly work for the prior 20 minutes or so and we want to: (1) recognize that hiring is a two-way street and show that we care about the candidate's interests and concerns, (2) perhaps see how the candidate handles the DYHAQ question and what it might reveal about the nature and extent of the candidate's interest in the position, and (3) signal that the interview is coming to a close.
Still, I'm not a big fan of the DYHAQ question. It often has an artificial quality about it. For one thing, candidates have frequently had several prior opportunities to ask questions. Often, candidates have to struggle to ask a variation of the same question or select from a repertoire of pre-conceived questions. Meanwhile, candidates really do have a ton of questions, but the questions may be perceived as inappropriate--or at least risky--to ask until an offer has been made. For example, what is the salary? What are the issues that divide the faculty? How easy or hard is it to get tenure? Can my spouse get a job here? Candidates may find polite ways of asking questions like these, but they're not risk-free relative to blander questions. Sometimes something will come up in the course of the interview or a prior interview and you'll be able to ask a genuine, non-prearranged, more-or-less spontaneous question. But that's unusual and takes some skill.
As an alternative, interviewers could simply say, "I see we're just about out of time. Please feel free to call or email any of us if you should have any questions." Were I an interviewee, I'd have no problem with that. In fact, I think some of the best interviews are ones where the conversation is so organic that you're rushing to discuss topics you really care about and have no time for needless formalities like the DYHAQ question. At a minimum, if some interviewers stopped asking the question, then it will not feel so artificial on the occasions when it is asked.
If you have suggestions for how to handle the question or the dynamic, I encourage you to post them in the comments. One question I would sometimes ask is: What do faculty generally do for lunch? I'm genuinely interested in this question. It can say a lot about faculty interaction. It also gives interviewers flexibility in their response: they can focus on the nature of faculty camaraderie or they can talk about more practical issues like the school's locale and/or cafeteria. It may also reveal interesting facets of student life or student-faculty interaction--aspects of a school you might not otherwise observe during a short visit.
Platinum Cards of Social Change II
In a post a couple of months ago titled "Social Movements: The Platinum Card of Social Change," I offered some thoughts on a Balkinization post by Mark Graber. There, Graber wrote, "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." I suggested in response 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." I concluded with this observation/prediction:
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.
That sentence was recalled for me the other day by the announcement that Brown University "expects to spend more than $100 million over the next 10 years to deal with issues of racism and diversity at the institution." That announcement, of course, stands alongside Yale's recent announcement of a $50 million diversity initiative--directed primarily at faculty diversity, not at students.
Since my prediction was based on the same historical experiences and tendencies, if not inevitabilities, that underlay Graber's post, there's no back patting involved here. I just thought the Brown announcement, taken together with Yale's and (doubtless, given both genuine sentiment and competition in the elite university market) others to come, was a striking example. One might add the following:
1) This shouldn't be seen just as a response to recent campus protests, I think, but should be seen as a response in some measure to BLM and other protests, debates, and social movements over the past year or so. A lot of the recent discussions have focused on universities and campus issues in isolation, but they should be seen as having some relation to a larger social movement.
2) One needn't approve or disapprove of how private universities choose to allocate their resources to note nevertheless that if the most substantial acts of resource redistribution in response to such movements takes place at elite and/or well-funded universities--and, moreover, is often directed at faculty and administrators rather than students or applicants--this is not, perhaps, a response directed at those institutions or sectors of the population that most urgently need resources and reforms. We could, I suppose, view universities as serving as vanguards of social change; but we could also view the story as one of a form of capture or siphoning of the energy of social movements toward narrower and more elite interests.
3) I say nothing here about the motives of the institutions in question, or of those who end up devoting greater efforts toward, and/or enjoying more success at, resource redistribution within elite institutions than elsewhere. My assumption, however, is that we should apply to the universities' actions the same kind of analysis we would apply to the actions of other large corporations. I assume there is a good deal of sincerity in these actions (just as, in fairness, there is a good deal of sincerity when a tech company pushes for equal benefits for same-sex couples, or a religious closely held corporation sues to avoid complicity in the provision of coverage for abortifacients). But I also assume, as I would with other corporations, that sincerity alone does not result in the ostensible movement of tens of millions of dollars. Presumably there are also intra-institutional politics and resource disputes involved, and possibly these announcements are also efforts to buy peace, occasionally to buy silence or co-opt various actors, and to compete with other institutions in the university market.
Seeking the truth
Later this term, SCOTUS will decide Bank Markazi v. Peterson, which involves a challenge under United States v. Klein to a law applicable to an action seeking to attach Iranian assets to satisfy a default judgment for victims of Iranian-sponsored terrorism. I was contacted by both sides of the case about being involved in a scholars' amicus, obviously because both sides believed that my previous work on Klein supported their position. I hope that means I really was looking for the truth.
Sunday, November 22, 2015
Doonesbury on student evaluations
Saturday, November 21, 2015
California’s Right-to-Die Law
As a Trusts & Estates professor, I would be remiss if I did not mention California’s new right-to-die law. California was the first state to recognize cohabitants’ property rights and the first state to recognize no-fault divorce, and now these are the majority approaches. While California is not the first state to have a right-to-die law on the books (it’s the fifth), it’s the first big state. If history is any indication, we’ll see a lot more of these laws in the foreseeable future.
In the meantime, the debate will change from whether we should have assisted suicide to what these laws would look like. How do we define “terminally ill”? How many medical opinions regarding the person’s illness are needed? How long of a waiting period should exist after the initial request for aid in dying? How many requests should a patient have to make?
California modeled its law on Oregon’s. The California law requires a mentally fit patient and 2 doctors to determine that a patient has less than 6 months to live. The state's legal change was significantly prompted by the case of Brittany Maynard, a young woman with terminal brain cancer who moved from California to Oregon to legally end her life in 2014.
Goals of Remedies: Beyond Compensation
Remedies for civil litigation serve a variety of important goals. It is too often assumed that all cases must involve the compensation goal. Of course many cases have a compensatory purpose. Further, that purpose may be one of many remedial ends in a given case such as a particularly outrageous, malicious tort that warrants a punitive award supplementing compensation. Some cases, however, have no compensatory component. Distinct remedial functions may operate without a compensatory anchor in appropriate cases. Beyond compensation goals may include: symbolic, dignitary, substitutionary, litigation incentives, deterrence, prevention, and punishment.
Commonly in civil causes of action, the core remedy seeks to compensate—to make whole. The underlying goal to undo harm by making whole is intuitive. How we achieve that goal is more complicated. In easy cases, the converter might return a taken item belonging to the other (of course if time is lost or the item diminished, other relief will be available as well). Another simple example involves harm easily monetized by the money it takes to cure the injury.
Much of civil litigation, however, arises out of wrongs that can’t literally be undone. So the law does the best it can. It substitutes money for harm caused. Even if we cannot materialize a receipt for fixing it, and in fact, never will.
Thus, in most instances, juries determine the appropriate amount of money to compensate the plaintiff for the harm caused by the tortfeasor, breaching party, or other offender. Each body of substantive law has preferences for the best way to measure the harm so that the jury is guided to a principled award. These measurements include, for example, diminution in value and benefit of the bargain damages. Regardless of the underlying cause of action, concerns naturally arise when we need to translate harm that is not already in dollars.
The more intangible and nonpecuniary the harm, the greater the tension is. Yet, juries regularly place a dollar figure on such items as pain and suffering, lost limbs, and loss of consortium. For contracts, a plaintiff may claim the benefit of the bargain is lost profits, which means anticipated profits that would have been made if the breaching party had performed as promised. Not all such damages are recoverable because the law provides doctrines of limitation to restrain the measurement guides. Doctrines of limitation generally bound the decisionmaker to reasonably certain, foreseeable, and non-avoidable damages.
If the law limited its remedial force at this point, fewer critiques of excesses might flow, but certain harms would remain unremedied, unprevented, undeterred, and unpunished.
Accordingly, civil redress must go—when appropriate—beyond compensation. Civil litigation may in fact have nothing to do with compensation. The examples are varied but include enjoining imminent irreparable harm; setting aside a transaction that violates fiduciary duty; disgorging wrongful gains. Unjust enrichment and restitution claims saliently prove this point: they have nothing to do with compensation. That is why the remedy of restitution on an unjust enrichment claim is not called damages. The purpose of the remedy is to prevent unjust enrichment by the wrongdoer; thus, to measure it we look to the defendant’s gain not plaintiff’s loss. More on this later.
Friday, November 20, 2015
Mother, Child, and Meat Machines
Check out this wonderful magnetic resonance image of a mother kissing her son, along with Rebecca Saxe's brief description of the circumstances.
Looking at the image, I had the semi-conscious thought, "here's one sack of bone and soft tissue that loves another sack of bone and soft tissue." It's very hard to reconcile, I think, our understanding of ourselves both as persons that can love and as physical organisms that can love. Yesterday, in a comment, I described humans as meat machines. I'm not very fond of that expression, but I think it captures a side of ourselves that we sometimes prefer to ignore.
Hello, Delete Button
Today, Adele has dropped her long-awaited third album. In promoting it, she mentioned that she had created enough music to release an album sooner, but had thrown it all away. For example, she had written a few songs about parenthood, but decided that they were boring. She had called in musical greats to co-write songs, and ruffled feathers when she decided those songs were boring too. She ended up with 11 tracks on her album, which has been criticized as short. Her single off the album, “Hello,” took a slow 6 months to write.
There’s something to be learned from every person’s creative process, and I think Adele’s lesson is as good as any—if you don’t like it, pitch it. The problem, of course, is how painful it is to do because of our investment in our work and the pressure to produce. But, Adele's a reminder that it's possible to do, and necessary too.
Thursday, November 19, 2015
Civ Pro and the lagging bar exam
Civ Pro is now a subject on the Multistate Bar Exam. But I learned earlier today that the questions are not going to incorporate the 2015 discovery amendments until 2018. In the meantime, test-takers are expected to know (and bar prep courses are going to teach) the rules as of 2012 and current jurisdiction/procedure statutes.
This strikes me as insane. I intentionally taught my Spring 2015 students the amended rules, knowing that passage was inevitable (I would have done the same this fall were I teaching the class then), knowing that this is the law they would use as lawyers, even if it won't be effective for another few months. Now it turns out they need to learn something entirely different in between. In other words, the final "vetogate" before the practice of law requires them to learn law that is different than what they learned in school and different from what they will actuallysue on the other side of the vetogate. It makes even less sense given that the Bar is using current statutes along with the old rules--if the questions can remain up-to-date on statutes without imposing an enormous exam-writing problem, they should be able to remain up-to-date on the rules.
Update I: In response to a comment, I have not heard any explanation, only a statement to bar prep/academic support folks that they should continue using the current prep manual until 2018.
Update II: An emailer points out that it may not have as great an effect on Civ Pro teachers, as the current 1Ls, the first group to deal with the amended rules, will take the Bar in 2018, the first year of testing on the new rules. But, as I noted above, it punishes the past students of profs who attempt to be proactive about rules changes (as did last spring). And it leaves questions about what to do in, for example, Advanced Civ Pro/Complex Lit, Pretrial Practice, or other upper-level courses that deal with the FRCP? For that matter, consider students doing a clinic/internship involving federal practice or a judicial clerkship--current 2Ls and 3Ls are going to deal with one version of discovery now and a very different version for the Bar.
T7, T17 instead of T14?
One of the criticisms of the U.S. News rankings is the way it reports its results. U.S. News uses a process where they gather a lot of data, run it through the Willy Wonka gobstopper machine, and out pops some magical raw number. U.S. News then gives each school an overall score that is the percentage of that school’s number compared to the top number (Yale, which is reported as 100). But then, U.S. News racks and stacks those scores and simply reports a ranking. The actual score of the variable that U.S. News is trying to measure – quality – falls out. (For this discussion, I’m assuming, probably incorrectly, that the U.S. News instrument measures what U.S. news claims it measures – quality).
There could be a huge drop in quality between a school ranked 40 and a school ranked 41, or hardly any drop in quality between schools ranked 50 and 100, and the reader would not know. U.S. News goes to all this work and then reports a number that is pretty much meaningless. And for some people, those numbers may matter. A potential student who is deciding between schools may factor those numbers into her decision, along with cost, location (near family, near a major legal market), bar passage rates (already factored a little bit into the quality score), job prospects, etc.
Probably the best way to report the scores would be in standardized units (z-scores) where U.S. News would calculate the mean of the raw scores and then report each school’s standard deviation above or below that mean. If the z-scores of two schools are pretty close together, then it might not make any sense to spend more to go to a school with a slightly higher z-score. If the z-scores are far apart, it might.
We could figure out the z-scores (for the overall scores, at least) except that U.S. News doesn’t report the overall scores for the fourth quartile of schools. We could also take the data that U.S. News provides and calculate a raw score for each school, trying to replicate the way that U.S. News comes up with its raw score, and then report out z-scores based on that. One problem is that many of the schools in the fourth quartile are missing important data, and another problem is that that would take some real effort.
I think the best we can do without much effort is to graph the distributions of the overall scores using Brian Huddleston’s U.S. News data. I did that, and a couple of things jump out.
One is potential categories. “T-14” has become a category based on lack of movement across the magical 14-15 boundary. Looking at the following chart, if there is a significant drop somewhere (a step), then there is a large quality difference between the abutting units. On the y-axis is the U.S. News overall score. The x-axis is just a discrete unit with that score (I have removed ties). We see steps in quality at the two arrows.
Looking back at the original data, that first step is between schools ranked 7 and 8. For school 8 to catch school 7, it has to increase its overall score by four. (One tie aside, the steps between the top six schools are also pretty big – three or four points). The second step is between schools ranked 17 and 18. For school 18 to catch school 17, it has to increase its overall score by 5. From 8 to 17 and then from 18 and beyond, the differences between units is only one or occasionally two overall points.
If we are to do what humans love to do – draw circles around things and create categories – then we would have this:
We do seem to have a category at T-7 and one at T-17. We should expect limited movement within or out of T-7, and limited movement in or out of the next category, T-17. After school 18, shuffling up or down a few spots could occur anywhere on that segment. And there doesn’t seem to be anything magical about that 14-15 point.
The next chart may be more useful for potential students. The flatter spots show areas that are pretty sensitive – small changes in overall scores can cause some pretty wild swings. For example, a school ranked 94 can jump to 87 with a one-point increase in overall score; to 82 with two points; and to 78 with three. (Recently, Oregon has had some pretty big swings in this zone.)
The overall quality difference between 78 and 94 isn’t that much and probably would not translate into a different law school experience for that potential student. And it might not justify a difference in cost. Looking just at the rankings, though, the potential student wouldn’t know.
(I thought the following scatterplot was pretty cool. Space to the right of a dot means that several schools are tied at that point. You can see the T7, T17 gaps.)
Setting the Record Straight on Resettlement of Syrian Refugees
The following is by Jill Goldenziel, former guest Prawf, FOD, and a research fellow at Harvard Kennedy School's International Security Program of the Belfer Center for Science and International Affairs and a Senior Fellow at the University of Pennsylvania's Fox Leadership Program.
In the wake of the Paris attacks, 27 U.S. governors and several presidential candidates have called for Syrian refugee resettlement to be halted. Members of Congress have drafted legislation that would cease resettlement immediately. In light of these debates, it’s important to remember the legal framework governing refugee resettlement in the U.S.—along with some important facts.
- A refugee, according to international law and U.S. law, is someone who flees his country of origin due to a well-founded fear of persecution on the basis of race, religion, nationality, political opinion, or membership in a particular social group.
- Refugees undergo extensive checks before resettlement in the U.S., often lasting 2-3 years. They are first screened by the U.N. Refugee Agency, who then refers them to the U.S. for resettlement. They then undergo a rigorous 13-step process of interviews, background checks, security clearances, and medical screenings, detailed here: https://goo.gl/lw8qTb. Beyond this, Syrians get an extra level of scrutiny.
- At any stage of the process, any refugee deemed to be a security threat is screened out and will not be resettled in the U.S.
- Once refugees arrive, the State Department’s Bureau of Population, Refugees, and Migration coordinates their admission and placement, and the Department of Health and Human Services’ Office of Refugee Resettlement provides case management services, assists with transitions, and helps with short-term medical and financial needs. More about this process can be found here. https://goo.gl/9JizS0.
- In other words, authorities know who the refugees are and where they are going. They will eventually be free to move throughout the U.S., just as other citizens do, but it won’t be easy for them to slip under the radar.
- Governors have virtually no authority not to accept refugees for resettlement in their states if the federal government says they must do so. They can make life difficult for refugees by opposing their presence, but doing so would be against states’ interests in keeping public order.
- Of Syrians resettled in the U.S. since 2011, half are children, ¼ are adults over 60, 2% are single men of combat age, half are male, and half are female.
- During the vetting process, refugees referred by the U.N. to the U.S. for resettlement remain in their countries of first asylum—for Syrians, primarily Jordan, Turkey, and Lebanon. They are not allowed to leave these countries while they are waiting.
- Many refugees don’t want to be resettled in the U.S. because the waiting periods are so long and because the social welfare net is much smaller in the U.S. than in other countries.
- For the financial year ending in 2016, the U.S. has agreed to accept 85,000 refugees, including 10,000 Syrians. By 2017, the number will increase to 100,000 total refugees, and it is expected that the number of Syrians will increase as well.
- This is hardly the first time that the U.S. has accepted refugees from states known to harbor terrorists. The U.S. has resettled more than 100,000 Iraqi refugees since the 2003 invasion. Stringent background checks have ensured that they have posed a minimal security threat to the U.S. security clearances for Syrians are even tougher.
This post is adapted from my fact sheet originally published by the Harvard Kennedy School’s Belfer Center for Science and International Affairs.
The Significance of Lawmaker Views About Free Will
In a recent paper, I argue that, lawmakers over the last several centuries (including today, perhaps) have likely understood moral responsibility in a way that is inconsistent with the modern scientific worldview. They likely viewed us as having souls that make decisions independent of the causal forces of the universe. Nevertheless, a plausible case can be made that lawmaker views, outdated though they may be, ought not be ignored entirely when considering the legal meaning of words like "intent." If lawmakers took intent to mean something about contra-causal souls, words like "intent" may be inconsistent with the modern scientific worldview and require updating.
Paul Litton, by contrast, following in the path of Stephen Morse, believes the law is clearly compatibilist. On the compatibilist view, the law doesn't require updating because, even if we are mechanistic creatures who make choices caused by the atoms in our brains, so long as we satisfy compatibilist criteria of responsibility (for example, we have certain rational powers of deliberation or the like), the law deems us responsible.
I don't deny that this is a plausible interpretation of the law. But as I've suggested, I don't think it's the only plausible interpretation. Moreover, I question the legal basis for the compatibilist interpretation. While some will certainly proclaim compatibilism's virtues on philosophical grounds, when we care about the meaning of the law, we not infrequently consider the intent of the law's crafters. And a plausible case can be made that the law's crafters were, by and large, not compatibilists. I use the qualifier "plausible" on purpose. We don't have a lot of relevant data (at least I don't). And there are important questions about how to construe intentions and how much, if any, legal weight to give them. But if the Chief Justice in NFIB v. Sebelius can worry about whether we live in "the country the Framers of our Constitution envisioned," then it's worth noting how lawmaker intentions are sometimes construed broadly and flexibly when interpreting the law.
In response to my position, Litton imagines a case in which a defendant tests the law’s assumptions about free will and a judge actually seeks to resolve the matter. The judge Litton envisions takes an overtly compatibilist view of the criminal law. The judge accepts that everything the defendant did was deterministically caused by factors beyond his control, but he holds him responsible anyway:
Imagine a bench trial in which the defendant, charged with theft, claims insanity under a volitional control prong. An expert testifies that the defendant’s diagnosable mental disorder caused his criminal conduct. The defendant further argues that he lacked control over his conduct because his conduct was deterministically caused by events outside his control. Now stipulate that the judge, in rejecting the insanity claim, explicitly accepts the defendant’s arguments that his actions were deterministically caused by facts outside his control, thereby accepting that he lacked contra-causal free will. The judge, nonetheless, explains that the defendant was not subject to a desire to steal so powerful that he could not contemplate reasons to refrain. The judge determines that the defendant would have refrained had he known that the victimized store had a hidden video camera. Is it plausible to describe the judge’s decision as contrary to law even if Kolber is right that hidden libertarian assumptions lurk beneath the law in the sense that its crafters believed in libertarian souls? Whether the judge’s decision is morally best or not, we would not describe it as contrary to law, demonstrating that any such “hidden assumption” is not part of the law. [I recommend Litton's very interesting paper from which this quote is taken.]
Litton lets us assume that the crafters of the law in this jurisdiction believed in souls operating outside the physical universe. Then, as to whether it is “plausible to describe the judge’s decision as contrary to law,” I say “absolutely.” Litton concedes, for purposes of this example, that those who crafted the law believed that we are responsible because we have contra-causal free will and that this particular defendant has demonstrated that he had no such thing. Hence, given the special role afforded to the intent of legislators (including legislators enacting common law that is itself sensitive to the intentions of common law judges), it is certainly plausible that this judge got it wrong. After all, trial judges are primarily supposed to enforce law made by others. The judge’s ruling is not indisputably consistent with the law if the very people who crafted the law would have reached a contrary conclusion.
Litton’s hypothetical judge resolves his compatibilist inquiry by asking how the defendant would have acted under other circumstances. But to the soul-based libertarians we assume crafted the law (and to many modern free will skeptics), this bit of legal reasoning is suspect. The inquiry makes no sense in the deterministic world in which Litton situates them. How could it matter, they ask, how the defendant would have acted under other circumstances that didn’t occur and couldn’t possibly have occurred? How can we hold the defendant responsible, they wonder, for a crime that, in principle, could have been predicted before he was born? We wouldn’t blame a toaster for malfunctioning by noting that, had it been wired correctly, it would have worked properly.
Granted, those who crafted the criminal law might have offered some other grounds for holding people responsible if they came to believe that contra-causal free will does not exist. Even if such fallback positions ought to be granted legal weight, they would be difficult to assess. Some lawmakers likely gave no thought to the matter. To be sure, their fallback positions may be less uniform than their primary positions such that we cannot discern a clear fallback position. Regardless, there is clearly room to disagree with the compatibilist approach adopted by Litton’s hypothetical judge. Maybe the judge is right all things considered, but the decision is certainly open to dispute. (Adapted from Free Will as a Matter of Law; see also Will There Be a Neurolaw Revolution?)
Wednesday, November 18, 2015
Prosecuting Insider Trading
The law on insider trading has been accused of being too vague, and soon it might be accused of being too narrow—the U.S. Supreme Court last month declined to hear an appeal from a case that significantly narrowed the definition of insider trading by requiring proof that an inside tip recipient knew the confidential information came from an insider and that the insider disclosed the information for a clear personal benefit. The result of the case was the overturning of 2 convictions for insider trading and dropped charges against others.
The problem for prosecutors is thus increasingly two-fold: they can’t count on the legal framework for their efforts, and, as commentators have noted, catching insider trading is difficult in the first place. My co-author and I set out to see if we could aid prosecution of insider trading by detecting the presence of an insider trading in the first place, and how the market responds to the insider’s activity.
Analyzing the dataset composed of shares from NASDAQ, AMEX, the New York Stock Exchange, and over the counter (OTC) markets, we find that insider trades are different from surrounding trades in both trade to trade price impact and trade lot volume, when compared with trades executed in the same thirty minute interval by other traders. The size and volume effect is most pronounced on the two specialist exchanges of the American Stock Exchange (AMEX) and the New York Stock Exchange (NYSE). Trade to trade price movement is statistically significant at the 1% level for the panel of NYSE and AMEX shares.
While insider trades possess attributes that differentiate them from surrounding trades, a great deal of those attributes depends on the trade characteristics – aggressive market orders will draw scrutiny due to their price impact, whereas limit orders are less noticeable. Insiders trade lot sizes that are also larger than other market participants at the time, thereby potentially drawing attention from regulators and surveillance departments.
You can read our article forthcoming in the Wake Forest Law Review here.
Some Interesting Data From the Yale Law Journal Survey
A statement from the Yale Law Journal announces the release of two reports as part of a two-year project of "address[ing] our diversity challenges and identify[ing] ways we can better foster an inclusive community." One of those is described as qualitative. The other is quantitative: Patterns in Yale Law Journal Admissions and Student Scholarship, by Ian Ayres and Anthony Cozart. Many of the data are quite interesting, with "interesting" here meant more literally than the word generally is in blogging; the word is used with no intention of signaling irony, suggestiveness, or implicit judgment.
By way of background, I should note that I am (slowly, slowly) at work on a book about social class and the American legal professoriate, with the general and, I hope, non-partisan thesis that social class, both currently and as a matter of background, influences the individual and cultural surround of law professors and, hence, affects the issues they are most likely to view as salient and to make a focus of their writing. This is (I will argue) often implicit and relatively rarely acknowledged; that in turn often takes social class both as a subject and as an admitted influence off the table, and makes class itself a less salient or frequently examined issue or identity aspect than other aspects of identity that receive frequent discussion. Without here suggesting how scholarship might change if things were different, and what topics might be more frequently discussed and (as important) accorded more prestige if they were--and certainly without suggesting that it would or must necessarily come from a particular political position--I suggest that more self-awareness and -examination would have an effect on the body of scholarly work produced by law professors, if greater recognition were given to class and its effects on who we are and what we see and do. (Needless to say, I'm happy to hear from correspondents on this project--especially those law professors who think their own experience and/or background is highly unusual in one direction or the other, or conversely who think their background is utterly typical, and might be willing to share that experience and their observations and views.)
My project focuses on the professoriate, not the students. In the case of Yale, however, that distinction is famously thin and the data on students might be viewed as a study of embryonic law professors. Much of the interesting data appear in a chart at pages 7-9 discussing the characteristics of all applicants, including transfer and third-year students, to volumes 123 through 125 of the Yale Law Journal. There is this, for instance, on the political views of the applicants:
Democratic, Liberal, or Progressive 35%
Republican, Conservative, or Libertarian 9%
Other (e.g., Independent) 6%
Did Not Disclose 44%
I do not find any of this terribly surprising (and I hope people don't equate "interesting" with "surprising"). But I am curious about the large percentage who did not disclose their political identification. There are all kinds of reasons one might refuse to disclose this, and having no reason at all or asserting that it ought to be irrelevant would be fine with me. But it is much higher than, say, the number of students who did not disclose or provided no information about their racial identification. Among other possibilities, I'd be interested in knowing whether many of these students were conservative and unwilling to say so. Or, rather, were they liberal or progressive and unwilling to answer for more strategic reasons--because they thought it would be detrimental to have too large a percentage of the class openly identified as such?
Highly interesting as well are the data on what the study calls "Family Characteristics." Of the students surveyed--who, remember, were students who had applied to the YLJ, not just the editors of that journal--46 percent disclosed family incomes of $100,000 or greater, including 19 percent from families with incomes over $250,000. (By comparison, those with family incomes under $60,000 made up 11 percent of those surveyed. Again, a high number of students--23 percent--did not disclose any family income information. On parental education, fully 45 percent of the journal applicants surveyed reported that both parents had attended graduate school--kind of a patrimonie des clercs. (No data are given on the percentage of applicants with at least one parent who attended graduate school.) Of the students themselves, 29 percent had attended Harvard, Yale, or Princeton, and 43 percent some Ivy League university, while 35 percent attended a private non-Ivy university; by contrast, the 2011 CHE Almanac showed 73 percent of post-secondary students attended public colleges and universities and 0.4 percent attended Ivies, with 16 percent attending private colleges and universities. Only six percent of the applicants surveyed provided no information about their educational background. Also, ten percent had also attained a master's or doctorate.
All interesting, and of course there is much more in the study. For my purposes, I regret that the portion of the study that looks at students whose notes or comments were accepted for publication focuses on race and gender only, not on family or educational background.
Tuesday, November 17, 2015
Scalia (sort of) gets it, the media (still) doesn't
According to this story, Justice Scalia gave (an unrecorded) talk at Princeton. Robert George, a Princeton faculty member and a leading opponent of marriage equality, claims that Scalia "declared that though Supreme Court rulings should generally be obeyed, officials had no Constitutional obligation to treat as binding beyond the parties to a case rulings that lack a warrant in the text or original understanding of the Constitution." Needless to say, that caused the reporter from Think Progress, Ian Millhiser, to lose his mind, as well as to question the accuracy of George's recollections.
A few thoughts after the jump.
First, why did Scalia limit it only to those rulings that are not sufficiently textual or originalist--that is, rulings with which Scalia likely agrees? The departmentalist question should not turn on the "correctness" (methodological or substantive) of the decision. If political-branch officials possess authority to independently interpret the Constitution in the face of conflicting judicial rulings and to act on their own constitutional understandings, that authority applies to all constitutional decisions. If Scalia is serious, limiting it only to sufficiently originalist decisions makes no sense and undermines the accurate procedural point in service of a textualist/originalist hobby horse.
Second, Millhiser attempts to explain the procedure in the final three paragraphs, but he gets it completely wrong. His two biggest mistakes were suggesting that 1) this reduces the Court to an advisory body and 2) enforcement through future litigation is merely "conceivable." The whole point is that future litigation guarantees enforcement because, unlike executive officials, lower courts are bound by the Court's judgments; so when lower courts apply precedent to new parties in a new judgment, that new judgment is binding on those officials. He is correct that this is complex and potentially expensive. But that is inherent in the nature of the judicial power, under which a judgment in one case is generally limited to determining the rights and obligations of the parties to that case And the costs is mitigated (somewhat) by the availability of attorney's fees. Unfortunately, Millhiser does not mention (or grasp) either point.
Finally, Millhiser allows that Scalia's approach could be correct with respect to "decisions like Dred Scott or the anti-government decisions resisted by Roosevelt — decisions that are now widely viewed as evil," but not to "a decision that allows Americans to marry the person that they love." Nothing like neutral procedure applied neutrally.
Gilden on Raw Materials and the Creative Process
Andrew Gilden (Stanford Law School) recently posted Raw Materials and the Creative Process, 104 Georgetown L.J. __ (2016), on SSRN. Here is the abstract:
There has been a marked shift in how intellectual property laws address free speech, creative expression, and artistic practices that involve extensive copying. Over the past decade, courts increasingly have shielded authors from claims of infringement if they used a preexisting image or likeness as “raw material” for a new work. Both copyright law’s fair use doctrine and right of publicity law’s First Amendment defense have coalesced around this raw material inquiry, and similar notions of cultural raw material long have pervaded IP scholarship.
This Article is the first to challenge the emerging “raw material” framework, and it uncovers a range of normative and conceptual shortcomings. First, the growing body of raw material case law has unequally expanded artists’ ability to freely copy from the world around them: famous artists have been shielded, but lesser-known artists have not. Second, in distinguishing between a creative work and its raw materials — between “raw” and “cooked” imagery — courts have drawn from a range of analogous social hierarchies. For instance, courts repeatedly associate “raw material” with appropriated images of women and racial minorities. Lastly, the raw material framework distorts the creative practices it aims to promote; artists often appropriate familiar imagery not because it is “raw,” but because it offers a rich source of shared cultural meaning. This Article puts forward a set of alternative approaches that situate questions of IP infringement more concretely in the actual creative processes at issue.
I have read this article several times now & have found that it richly rewards each re-reading. Essentially, Gilden examines the "transformation" of fair use doctrine prompted by Judge Pierre Leval's seminal article Toward a Fair Use Standard, 103 Harv. L. Rev. 1105 (1990), by investigating the practical effects of Leval's suggestion that courts presented with fair use defenses ask whether the allegedly infringing junior work "transformed" the copied elements of the senior work. In particular, Gilden focuses on Leval's use of the "raw and cooked" metaphor to analyze transformativeness: a use is "raw" and not transformative if it does not add meaning to the senior work, and "cooked" or transformative if it does add meaning to the senior work. Notably, Leval borrowed the metaphor from French anthropologist Claude Levi-Strauss, and courts have adopted it, without acknowledging - or perhaps even realizing - its source.
Of course, Leval's article was immensely important to the rationalization and expansion of the fair use doctrine under the 1976 Act. But Gilden observes that Leval's use of the "raw & cooked" metaphor may have had unintended effects. In particular, his study of cases suggests that a court's assessment of whether an allegedly infringing use is "raw" or "cooked" is affected by the court's familiarity with the context of the use, in particular the rhetorical forms common to different social groups. In other words, courts appear to be less likely to find fair use when the judge in unfamiliar with the aesthetic genre or social group in which the allegedly infringing author is working. This is a troubling finding, because it suggests that marginal and minority authors may be less able to successfully make fair use defenses than majority authors.
Interestingly, Gilden is not alone in questioning the rhetoric of "transformation." Amy Adler's fantastic new article Fair Use and the Future of Art also questions the "transformativeness" requirement from a different angle, asking whether it is consistent with social practice among contemporary artists, and suggesting that courts should focus on market substitution instead. And I have previously addressed similar issues, in an article considering Andy Warhol's use of copyrighted images and trademarks in his artwork. And at a recent Belmont Law Review symposium, I presented a draft paper titled Aesthetic Nondiscrimination & Fair Use, drawing on Gilden & Adler's work to argue that the aesthetic nondiscrimination doctrine, which provides that judges should not (cannot?) consider the aesthetic value of a work when determining whether it is original and protected by copyright, should also apply to fair use. In other words, judges should not consider the aesthetic value of a "transformation" when determining whether it is a fair use, but only whether it changes the original. I hope to have a draft posted soon!
"It sounds so simple I just got to go"
A few weeks ago I had the privilege of speaking before the Mexican Electoral Tribunal in Mexico City at a conference titled "Two Paths in the Law of Democracy." The conference was sponsored by the Mexican Electoral Tribunal and the University of Texas. The U.S. delegation consisted of five American scholars who study election law and politics, and we presented on various aspects of election law to the researchers, staff, and judges of the Tribunal. It was a fascinating experience and I learned a lot.
Mexico, as a young democracy, is trying to learn best practices for running free and fair elections. Yet there is so much that we can learn from the Mexican experience as well -- both procedurally and substantively.
For example, as the very existence of the Tribunal demonstrates, Mexico has a federal agency that is charged with administering elections. This Tribunal also includes a court that decides all election disputes. Although we, too, have two federal agencies that focus on elections -- the Federal Election Commission and the Electoral Assistance Commission -- neither are very effective, especially because they often deadlock along partisan lines on most important issues. In addition, our regular courts hear election law controversies, and we all know how well that has gone. Mexico has figured out a way to, at least initially, avoid this partisan deadlock, and its Tribunal and court are well-respected and effective at administering elections in a way that people perceive as generally independent. Perhaps this is because the members of the Tribunal are non-political and because of the strong research and education focus of its activities.
Substantively, Mexico has figured out some things that we are still struggling to solve. For instance, partisan gerrymandering is not allowed in Mexican redistricting, which is conducted by the independent Tribunal. (That said, there are still questions about whether Mexico has sacrificed transparency in the process and whether politics still infiltrates the resulting maps.) Similarly, there seem to be fewer Election Day mistakes at the polls in Mexico, perhaps due to the robust educational and training programs the Tribunal puts on throughout the country.
Just traveling to Mexico City was a learning experience itself. It is a fascinating place with beautiful museums, amazing tacos, and extremely nice people. The researchers at the Tribunal are among the most respected people at the agency. There is a true commitment to understanding American election law to discern best practices for their own system. And our hosts showed us genuine sincerity, respect, deference, and collegiality.
This experience demonstrates the importance of looking beyond our borders to improve our own laws and legal structures. Although we often espouse American exceptionalism, we also deal with the same kinds of issues and share the same kinds of struggles as places all over the world. We can learn a lot from other countries, especially newer democracies where the rules are not as entrenched. The Mexican Electoral Tribunal invited the American scholars so it could learn how we do things in an effort to improve its own processes, but of course with any exchange like this, we learned as much, if not more, from them. This further suggests that we should not shy away from looking to international norms when evaluating our own rules and laws--whether in legislative debates or judicial decisions.
Does Fisher I Establish Jurisdiction For Fisher II?
Fisher v. University of Texas, raises an important question about the constitutionality of affirmative action in university admissions, but it also poses a jurisdictional riddle. When Fisher came to the Supreme Court a few years ago, there was fairly extensive debate, including at oral argument, as to whether the Court had jurisdiction to hear the case. But in ruling in favor of the plaintiff and remanding the case, the justices said not a word about jurisdiction. Last year, I wrote a post asking whether Fisher I should be understood as a precedent on jurisdiction. Now the case is back at the Court, and UT is again pressing jurisdictional arguments. Will these renewed arguments have any sway, and should they?
1. Let’s assume—consistent with the attention that the issue received at oral argument in Fisher I—that UT’s jurisdictional objections are at least non-frivolous. If so, what explains Fisher I’s silence on that point?
The most likely explanation is that the Fisher I majority silently found jurisdiction but chose not to say so. That choice could of course be criticized. For instance, the Court’s practice of giving reasons is thought to be an important source of its legitimacy and a constraint on its willfulness. Yet avoiding comment on the jurisdictional issue might have aided in the formation of what became Fisher I. And one might think that each justice is subject to an absolute obligation to confirm the existence of jurisdiction, but not to explain why it exists or to create precedent on that point. On that view, the Court is free to sidestep distracting disagreements as to reasoning and avoid the creation of iffy precedent that it might later come to regret.
The only other possibilities that come to mind are that the Court: (i) didn’t think it was important to confirm its own jurisdiction, (ii) relied on hypothetical jurisdiction, and (iii) found jurisdiction due to an equally divided court (with Kagan recused there are 8 justices in Fisher). But none of these possibilities seems likely. The first possibility would require a fairly strong form of judicial cynicism, given that the justices so often emphasize the need to have jurisdiction. The second possibility would require restoring the practice of hypothetical jurisdiction (which the Court rejected in Steel Co.) and then expanding that doctrine to apply even where the plaintiff wins a kind of interim victory. And the third possibility would seem to run afoul of the Court’s recent practice (see American Electric) of noting equally divided jurisdictional votes.
2. Assuming that a majority silently found jurisdiction in Fisher I, could some of the justices have silently believed there wasn’t jurisdiction?
Perhaps one or more justices swallowed their jurisdictional doubts for the sake of compromise. According to Joan Biskupic’s reporting, Justice Sotomayor penned a powerful dissenting opinion in Fisher I that persuaded the majority to cut back on the scope of its ultimate ruling. Sotomayor then pulled her dissent and joined the majority opinion. And Ginsburg’s published solo dissent didn’t mention jurisdiction either. If Sotomayor’s original dissent did emphasize jurisdictional concerns, perhaps those concerns were dropped from the published opinions in Fisher I for the sake of forming the compromise merits ruling. Something similar appears to have happened several years ago in NAMUDNO, where a supermajority opinion emerged out of an apparent compromise over the constitutionality of the Voting Rights Act.
One might think that a justice who doubted the presence of jurisdiction in Fisher I would feel obliged to say so. But justices sometimes accept the majority’s jurisdictional rulings for the purposes of the case at hand. Likewise, perhaps there were jurisdictional dissenters in Fisher I who silently chose to accept that they were bound by the majority’s jurisdictional finding, even though they disagreed with it. This rationale might permit the jurisdictional dissenters to join the majority in good faith.
3. So, what should the Court do with the jurisdictional issue in Fisher II?
One straightforward possibility is that the justices should adhere to the rule against sub silentio rulings and so afford Fisher I no binding force on jurisdiction. The Court has adopted that approach before, including when the law of the case doctrine (discussed in more detail below) arguably applied. See Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 165 (1981) (Stevens, J., dissenting) (arguing that the Court had wrongly followed the no sub silentio rule, rather than the law of the case doctrine, on a jurisdictional issue). However, the Court sometimes ascribes force to silent jurisdictional rulings when the issue was raised. Justice Ginsburg has been a leading proponent of that approach, and Justices Breyer and Sotomayor have both joined opinions taking that position. Further, it’s hard to imagine a stronger case for finding a sub silentio jurisdictional ruling than Fisher I, where the justices' questions at oral argument showed that they were aware of the jurisdictional issues.
Another possibility is that the Court should view its sub silentio jurisdictional ruling as binding for this case only, perhaps under the law of the case doctrine. But why should stare decisis and the law of the case doctrine take opposite positions on sub silentio rulings? One answer is that the plaintiffs in Fisher have reasonably relied on the Court’s sub silentio ruling in continuing to pursue the case. Another answer would focus on the special obscurity of sub silentio rulings. Because the Court didn’t explain itself in Fisher I, we can’t know for sure if its rationale for finding jurisdiction should apply to any other fact pattern, besides the one in that case. So perhaps we can confidently say only that the sub silentio ruling applies only in Fisher itself—at least barring a material change in our understanding of that case’s facts. Adhering to Fisher I's sub silentio result in Fisher II would therefore promote all the values that normally underlie the law of the case doctrine, including consistency and predictability.
Lower-court practice supplies some guidance on how the law of the case doctrine should intersect with sub silentio jurisdictional findings. In general, lower courts tend to agree that implicit but actual determinations on jurisdiction trigger the law of the case doctrine. For instance, a 2011 decision asserted a rule that seems applicable to Fisher I:
Where the question of jurisdiction was actually raised and argued before the prior panel and the panel subsequently exercised jurisdiction without explanation in its opinion, it is clear enough that “the necessary assumption is that the prior panel found subject matter jurisdiction present,” and the ruling constitutes law of the case. USPPS, Ltd. v. Avery Dennison Corp., 647 F.3d 274, 283 (5th Cir. 2011).
In the past, some courts have cited the special importance of subject matter jurisdiction to qualify the law of the case doctrine, and some sentiment along those lines is still visible in the cases. E.g., Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003). Still, courts have increasingly held that implicit-but-actual decisions as to subject matter jurisdiction create law of the case. E.g., Sierra Club v. Khanjee Holding (US) Inc., 655 F.3d 699, 704 (7th Cir. 2011); LaShawn A. v. Barry, 87 F.3d 1389, 1394 (D.C. Cir. 1996) (en banc); Oneida Indian Nation of New York v. State of N.Y., 860 F.2d 1145, 1151 (2d Cir. 1988). Even if the law of the case doctrine applies, of course, it might be overcome based on, for instance, clear error.
You can imagine variations on the above. For instance, perhaps only the specific justices who joined the Fisher I majority should feel bound, based on a kind of personal stare decisis; on that view, Fisher I's sub silentio holding wouldn’t have bound new justices, if any had been appointed and confirmed after Fisher I. Or perhaps the justices should internally view the sub silentio decision as binding, since they themselves presumably remember their conclusions on that point, but shouldn’t assert that view in the published version of Fisher II. Instead, they might simply use the opportunity of Fisher II to explain their prior opinions on the issue, whether concurring or dissenting.
4. A final question: if a majority of the justices seem to have silently found jurisdiction in Fisher I, then why is the University of Texas expending a significant amount of energy arguing the point in Fisher II?
The most obvious answer is that UT might hope to persuade some of the justices who had previously if tentatively found jurisdiction. That strategy is likely to succeed only if key justices end up adhering to the rule against sub silentio holdings.
But there’s another salient possibility: Forcing the Court to explain why there is jurisdiction might discourage it from issuing a sweeping ruling against UT on the merits. Indeed, this strategy may already have worked. Sotomayor’s unpublished dissent in Fisher I may have objected in part on jurisdictional grounds. The justices in the majority presumably thought that Sotomayor was wrong, but they might still have worried that her dissent would persuade some readers that the Court was playing fast and loose with its own power. In other words, a debate on jurisdiction might have undermined the legitimacy of the Court's overall ruling, particularly if the justices in the majority didn't entirely agree among themselves on the basis for jurisdiction. So the challenge of responding to UT's jurisdictional arguments might have been part—just part—of the reason why the original Fisher I majority agreed to a compromise on the merits. UT may hope to recreate this dynamic in Fisher II.
Of course, justices who complain about a lack of jurisdiction in Fisher II could be criticized as hypocritical, given their failure to note any such concerns in Fisher I. But as already discussed, this problem is surmountable. For instance, the jurisdictional dissenters might say that, in Fisher I, they silently bowed to the unexpressed views of a silent majority. And Justice Ginsburg might add that her Fisher I dissent rested on a kind of hypothetical jurisdiction. Now, in Fisher II, the dissenters can flesh out their preexisting concerns, thereby all but compelling the majority to address the matter.
In preparing the above, I’m especially grateful to I. Glenn Cohen and to Andrew Crespo for sharing insightful comments in connection with my post last year.
Is Free Will Better than Cats?
Jaroslav Flegr, a Czech scientist, has argued for decades that a surprisingly large number of people have been infected by a parasite carried by certain cats that causes toxoplasmosis. He believes the parasite remains dormant in people’s brains even after symptoms of acute infection disappear and subtly affects brain function for years to come. As one journalist describes Flegr’s views, the “parasite may be quietly tweaking the connections between our neurons, changing our response to frightening situations, our trust in others, how outgoing we are, and even our preference for certain scents.” The parasite may also “contribute to car crashes, suicides, and mental disorders such as schizophrenia” in ways that may be killing “at least a million people a year.”
Flegr’s views have started to receive increased attention from mainstream researchers. But whether or not he is right, his research raises the following question: Suppose a person is, without fault, infected by a parasite that alters his brain function. Assume it doesn’t make him insane or even diagnosably mentally ill, but it changes his personality in ways that make him more careless, impulsive, aggressive, and tempted by criminal behavior. Should we hold him responsible for crimes he would not have committed but for the parasitic infection?
On one view, he should not be held fully responsible because he is not responsible for being infected and, had he not been infected, he would not have engaged in criminal behavior. Indeed, if you or I were infected, we might have engaged in the very same behavior. And, one might argue, you and I would not deserve punishment for behaviors caused by an unforeseen and unwanted infection.
On another view, we all act in ways determined by features of ourselves for which we are not responsible. Most notably, we have limited, if any, control over our genes and the environments in which we were raised. So another powerful intuition pushes us in the other direction. Merely being subject to the causal influence of factors beyond our control cannot excuse our conduct because then none of us would be responsible for anything. And surely you and I are sometimes responsible, one might argue, as when we deserve credit for our brave and heroic deeds.
Here’s one possible explanation of why those with parasite-infected brains seem less-than-fully responsible: the more we know about the “mechanistic” causes of a person’s behavior—the causes of a person’s actions framed in terms of the movement of particles or the firing of synapses (and so on)—the less inclined we are to hold the person fully responsible. I call this the “reduced responsibility” reaction. Knowledge of mechanistic causation frequently weakens our intuitions that a person is responsible, even when the mechanistic causes are unrelated to traditional excusing conditions like duress or insanity.
So, for example, one might have a reduced responsibility reaction sparked by growing evidence that preschool lead exposure especially from car exhaust explains much of the soaring crime rates from the 1960s through the 1980s. Or one might have such a reaction to causal stories of antisocial behavior sparked by debilitating migraines or severe premenstrual symptoms. Detailed explanations of the physiological causes of behavior sometimes reduce ascriptions of responsibilities even when traditional excusing conditions are irrelevant.
Yet those who subscribe to the scientific, mechanistic view of the universe should find the reduced responsibility reaction unreliable as a general matter. If the world is mechanistic, some mechanism explains every human action. Whether we happen to know the mechanistic causes of a person’s action is irrelevant to the person's actual level of responsibility. Nevertheless, the reduced responsibility reaction may explain why the debate about free will has persisted for centuries: Our intuitions point us to a conclusion that lacks a sound theoretical justification.
Leading theories of free will address the reduced responsibility reaction in opposite ways. One approach, which we can call free will skepticism, says that the reduced responsibility reaction doesn’t go far enough. If knowledge of a partial causal back story reduces our ascriptions of responsibility to some degree, then a full causal back story ought to eliminate our attributions of responsibility entirely, whether we know the back story or not. In other words, one might conclude that free will doesn't really exist and that we ought not hold people morally responsible. Returning to the parasite that causes toxoplasmosis, the free will skeptic would say that those infected are not responsible for the behavior the parasite causes them to take because none of us are ever genuinely responsible for our actions. There may still be good reasons to punish people or detain them, but their responsibility for their actions is not one of them.
Alternatively, one might say that the reduced responsibility reaction itself goes too far. If partial knowledge of a causal back story inclines us to reduce ascriptions of responsibility, such reactions cannot be trusted for they imply that full causal knowledge would eliminate attributions of responsibility entirely. And responsibility plays such an important role in our daily lives that we ought not dismiss it too quickly. According to a "compatibilist's" description of the toxoplasmosis hypothetical, we should determine the details of the parasitic infection. Does it interfere with the human host’s rationality? Does it create urges that are impossible for him to resist? To the compatibilist, the mere fact that the parasite causes a person to take actions that he would otherwise resist is irrelevant to the person’s responsibility, so long as the parasite leaves intact his ability to reason, decide in accordance with his values, or satisfy some other compatibilist criterion that purportedly allows us to identify a choice with a particular person rather than just the motion of particles in his brain.
All of this is a prelude to my view (see here) that the free will debate isn't just an important philosophical issue. It's one for which the law may have its own perspective. (Adapted from Free Will as a Matter of Law; see also Will There Be a Neurolaw Revolution?) (Here's the dated reference in the title of the post.)
Monday, November 16, 2015
The Most Scholarly Justices
I started subscribing to The Green Bag as a 1L in 2002. And I've been a subscriber ever since. It's always been a favorite read & had an importance influence on how I thought about legal scholarship. As I observed in a 2005 letter "To The Bag," it was a model for the NYU Journal of Law & Liberty, which I co-founded in 2004. A couple of months ago, Howard Wasserman posted about one of the articles in the Green Bag micro-symposium on A Top Ten Ranking of the U.S. Supreme Court, Scott Dodson & Ami A. Dodson's Literary Justice, which provided an (very amusing) empirical analysis of Supreme Court opinions in order to determine which justice is the most literate.
As it happens, I was exceptionally pleased to also be included in the micro-symposium, represented by a short "empirical" article titled The Most Scholarly Justices, which purports to identify the "most scholarly justices" in history by counting both their respective publications and citations. I don't think it's a spoiler to divulge that some of the results were rather unexpected: the most productive justice was Warren E. Burger (quelle horreur!) and the most "impactful" was Oliver Wendell Holmes, Jr. But not to worry, the Notorious RBG was among the few who ranked on both charts, as #2 most productive & #7 most impactful.
Kelley on North Carolina Charter Schools & Charity Law
Thomas A. Kelley III (University of North Carolina School of Law) recently published North Carolina Charter Schools' (Non-?) Compliance With State and Federal Nonprofit Law, 93 N.C. L. REV. 1757 (2015). Here is the abstract:
In North Carolina, as in most jurisdictions across the country, state law requires that charter schools be governed by nonprofit corporations. This Article examines the governance practices of a select group of North Carolina charter-holding nonprofits and asks whether they are complying with state and federal nonprofit law. It scrutinizes with particular care a group of North Carolina charter-holding nonprofit corporations that have entered into comprehensive management agreements with for-profit educational management organizations, also known as EMOs. Based on an exhaustive analysis of the nonprofit corporations’ board meeting minutes, contracts, financial reports, tax filings, and real estate records, this Article concludes that certain North Carolina charter-holding nonprofits have very likely violated nonprofit law by in essence handing the keys of the charter schools over to the for-profit EMOs, permitting them with minimal supervision or disclosure to convert public educational dollars into significant corporate profits. This Article calls for legal and regulatory reform to rein in abusive practices by for-profit EMOs and more effectively safeguard the public funds that North Carolina citizens have devoted to education.
I really enjoyed reading - and was deeply troubled by - this article. I am agnostic about the merits of charter schools, and my sense is that Kelley is as well. But his detective work very strongly suggests that some NC charter schools are flagrantly violating state and federal charity law, not only by failing to satisfy governance standards, but possibly (& quite plausibly) by providing private benefits & possibly even by distributing assets. And the main reason we don't know is because the worst offenders refused to provide relevant (or any) documents. This should come as no great surprise, as there is a lot of money on the table & little or no oversight. But still, I found Kelley's findings quite shocking.
But in addition, I would suggest that the article could be a fantastic teaching tool for nonprofits classes. Kelley provides refreshingly clear and concise explanations of many of the most important doctrines relating to charitable purpose and the fiduciary duties of board members, and then proceeds to apply them to rigorously documented & crisply described factual scenarios. I highly recommend this article.