Thursday, December 31, 2015
Love is the answer ... and you know that for sure.
As a constitutional theorist, I've spent most of my scholarly life immersed in analytic philosophy--things like Wittgenstein, Frege, and Quine--and I find that can be a little hard on the spirit sometimes. So much so that my last piece on moral sentimentalism and constitutional structure (which I'll shamelessly self-promote) was a renewing and refreshing experience--especially as my wife and I have adopted a newborn boy relatively late in life. Suffice it to say, the Beatles had it right, and--Wittgenstein notwithstanding--I know that for sure.
If you're interested in the sentimentalist underpinnings of American popular sovereignty and their implications for constitutional interpretation, take a look at the draft and send me your thoughts. And, in any case, Happy New Year, God Bless, and thanks to Howard and the gang for hosting me again this year.
Happy New Year, and Goodbye!
Many thanks to Prawfsblawg for hosting me this month. I've greatly enjoyed sharing my thoughts on IP estates, the Cannibal Cop, Frank Sinatra, Charlie Sheen, and other assorted topics. Happy New Year to the entire Prawfs community!
Signing Off and Happy New YearAt the stroke of midnight, my coach will turn into a pumpkin, my nice clothes to rags, and my guest blogging stint will come to an end. I want to thank Howard for giving me this opportunity. I've enjoyed engaging with the PrawfsBlawg community, and hope that you will have me back in the future. This has been a great way to close one year and begin another. Happy New Year!
Should the NFL Hall of Fame Selection Criteria Include a Character Clause?
The NFL, as in other major league sports, has faced its share of scandals. The Baseball Hall of Fame includes Rule 5, the character clause, in its eligibility for enshrinement. The direction requires that "[v]oting shall be based upon the player's record, playing ability, integrity, sportsmanship, character and contribution to the team(s) on which the player played." A discussion can be found here. Here is a dissent to the requirement.
The NFL selection process for the Hall of Fame focuses solely on a players contribution on the field. The NFL Commissioner has previously expressed an opinion that some form of an ethics consideration should be included. As the League has faced some notable problems with off the field behavior, it should include such a clause to reinforce to the participants and the public that violations of its rules and the law are not tolerated.
Happy New Year's Eve!
I've had a fun month blogging about such diverse topics as the FRCP, weed, and the bar exam. It's also been an interesting and memorable year. If you want a laugh today, and haven't read Dave Barry's Year in Review yet, take a look at it here.
So, on December 31, as both the blogging and the year are set to expire, I find myself looking forward to next year -- where one resolution will be to do more blogging, at least if Howard Wasserman will have me back.
Thanks, everyone, for the great comments and questions on my posts. Enjoy your evening, and watch out for surge pricing on Uber.
ADR and the Pro Se Litigant
I previously blogged about mediation as a means of docket management. I would next like to discuss how it provide pro se litigants with greater access to justice. Unrepresented litigants pose problems both for the forum and for themselves. For the judge, it is the delicate balancing act of helping the individual without representing them. Here is a good account of one judge's perspective.
As discussed previously, ADR provides many benefits over adjudication. The informality of the process is more favorable to the pro se litigant. The self represented party has less concerns with the formal rules and deadlines of the adjudication process (other than the obvious ones like timeliness). A facilitative mediation (one in which the neutral facilitates a discussion between the parties) allows the individual to speak directly with the other party to present their position.
Neutrals are ethically prohibited from representing a party, and cannot provide legal advice. However, in the case of an early neutral evaluation (ENE) technique, the neutral may provide an analysis of the merits. This allows both parties, including the pro se, to make informed decisions on settling the case.
Tuesday, December 29, 2015
Diversity and the Requirements for Becoming an ALJ
This post is partially in response to a comment to my previous one on How to Become an Administrative Law Judge (ALJ). By diversity, I mean diversity of legal experience. With respect to gender and ethnic diversity, the administrative law judiciary has been a success.
The current requirements for becoming an ALJ essentially limit professional experience to either serving as a hearing officer or a litigator before courts or administrative bodies at the local, state, or Federal level. What is left out are career law clerks, judicial clerkship experience, rule making, and transactional experience (I observe that this does not apply to Administrative Judgeships outside the OPM process).
It is essential to have judges with extensive litigation experience. However, I believe that diversity of experience can be a positive at the ALJ level. Rule making provides the judge with insights into how the regulations they may be interpreting are promulgated. A career clerk or judicial clerk understand what it is like from the other side of the bench. They have experience assisting with hearings, case management, and legal opinion writing. I came to the administrative judiciary myself as a transactional attorney. It has provided me with an understanding of how contracts are formed, and the effects of decisions on day to day management. Given that candidates must pass a competitive examination and thorough review process to insure fitness, it should not deteriorate the quality of ALJs to have a wider range of legal experience qualify.
Making a Murderer
We just finished watching the 10-part Netflix documentary that everyone is talking about and I highly recommend it. For those of you who do not know, it tells the story of Steven Avery; Avery served 18 years in prison in Wisconsin for a sexual assault he did not commit, was released in 2003, was in the midst of a multi-million dollar § 1983 action against local police and prosecutors (from Manitowoc County), then was charged (along with his nephew) with a grisly murder, with some indications that officers from the original police department (who were supposed to have been removed from the investigation because of perceived conflicts of interest) might have planted evidence. The filmmakers spent ten years working on the film; they begin filming following his initial exoneration, then following the story in all its turns. The film is very defense-focused because that is where their access was; there is some conflict whether they offered the prosecution similar access.
Details of the case (and thus possible spoilers) aside, it provides great, realistic insight into the judicial process--what lawyers do, what trials and depositions look and sound like, how evidence really works, how procedure operates, and how lawyers put cases together and question witnesses. It turns out that Laura Ricciardi, one of the filmmakers, is a (formerly practicing) lawyer, which explains her focus on and interest on the judicial side of things Although not complete, it offers a great counterweight to those students who come to law school having watched too much Law & Order, NCIS, and CSI. I recommended it to my Civil Rights students because of the focus on the § 1983 action in the first two episodes, as well as the depiction of the problems in the criminal-justice system that may or may not lend themselves to remedy through private civil rights litigation.
I would have liked to see or hear about more of the prosecution's evidence beyond the stuff that the defense argued was planted or tainted and that was attacked at the trials. Tooling around the internet reveals some other stuff that was perhaps inculpatory or, at the very least, gives a fuller picture of the state's case. But this is a small quibble in a film I otherwise really enjoyed and believe could make a good teaching tool.
Administrative Law as a 1L Course Redux
I want to bring Professor Jay Wexler's discussion on Boston University Law School's decision to include administrative law as a mandatory 1L course back to the forefront. I think this is a great idea. Administrative law appears to be undervalued in law school curricula. Students may find themselves employed by the government or practicing in this area. Administrative law is also a broad topic, so I am glad to see that you are not just concentrating on rule making or administrative adjudication. Finally, administrative law touches upon many other practice areas including the regulation of corporations, business transactions with government entities (i.e., procurement), and securities.
Monday, December 28, 2015
Letters of Recommendation
I know . . . again? While this has been the subject of much discussion already on PrawfsBlawg (and elsewhere), I would like to add the perspective of someone who is both a producer and consumer of letters of recommendation. It is almost a cliche that a letter should illustrate the candidate's accomplishments in detail. However, I still see letters written as if we're still in the 19th century, and all you need is a general endorsement from Abraham Lincoln and the job is yours. Ok, maybe Abraham Lincoln is the exception, but you get my point.
The best letters are like a good brief. I am the advocate and attempting to persuade the decision maker to adopt my position, i.e. hire this person or accept them into your academic program. Essential is first providing a three dimensional view of that person. What are they like to work with or to teach. The notable accomplishments should be backed up with concrete examples and descriptions like we use case citations to support a point.
One point that may be new is the liberal use of adjectives. I think after reading the letter, you should walk away with the feeling that you want to meet this individual. Finally, length matters. The more you write, the better. It says something that you took the time to write a lengthy discussion of why this person should be selected. This also means writing on behalf of people you really believe in.
In Episode 3, Sarah Koenig argues against those (like Donald Trump) who claim Bergdahl is a traitor. She offers evidence that he cooperated fully in debriefings with American intelligence officials; escaped from captivity twice; and otherwise behaved as well as can be expected (and generally in accordance with the Code of Conduct) while in captivity. Earlier, we heard his reason for leaving his post. While his reason was bizarre (wanting to get the national microphone so he could draw attention to perceived instances of bad leadership), it wasn’t disloyal. In his irrational way, he was actually trying to improve things for Americans.
This episode isn’t very controversial but one interesting thing popped out to me. His mental health didn’t seem to decline that much while he was in captivity. Based on what I have read and heard so far, I suspect that he had a serious mental health problem at the time he left. He may have had something chronic, like dysthemia or a personality disorder on the schizo-spectrum, and that condition was exacerbated by acute stressors that pushed him into this grandiose thinking. Or he may have been experiencing the onset of bipolar disorder and was experiencing symptoms associated with that.
I’m not sure how to reconcile the two (a serious mental health condition that explains his behavior and reduces his culpability, but which did not seem to manifest after the crime is over), except that sometimes a mental health problem can be aggravated by some stressors and not others. It may be that at that time, Bergdahl was an injustice collector. As he compiled instances of betrayal by the very people entrusted with soldiers’ lives (these are the perceived leadership failures that he wanted to spotlight), his mental health worsened. However, while in hostile captivity, he was not exposed to that kind of stress. The stressors he faced in captivity were easier for him to process because they came from people he knew were hostile to him. Those stressors did not involve betrayal.
This is just armchair psychology from someone with no real qualifications, and I expect that we’ll learn much more about his mental health during the court-martial. Hopefully we’ll learn more during Serial.
Below the fold, I’ll answer a couple of questions people have asked me. First, if Bergdahl is facing a life sentence, why isn’t he in pretrial confinement? Second, is he being treated as a pariah while on Fort Bragg, North Carolina?
Bergdahl is not in pretrial confinement because his facts do not satisfy the military’s test for putting someone in pretrial confinement. The military does not have a bail system. Rather, commanders can order an accused into pretrial confinement but only if a fairly rigorous test is satisfied.
To order someone into confinement, commanders must be satisfied that there is probable cause that: the accused committed the crime; the accused is either a flight risk or poses a threat for future serious misconduct (like obstruction of justice, violence, or threat to national security); and less severe forms of restraint (generally, orders to stay in a certain area) are inadequate. Once the commander orders someone into pretrial confinement, that decision is later reviewed by a military magistrate using a preponderance standard. A military magistrate is usually a judge advocate who has already served a tour as a trial counsel or defense counsel and is now practicing some other area of military law.
When a potential sentence is very high (such as in Bergdahl’s case), then the government can argue that the accused might run. Here, there must not have been any other indications that Bergdahl would run, and there don’t appear to be any facts that suggest he would commit future serious misconduct. So, his commander decided he shouldn’t go into pretrial confinement.
Occasionally, these rules lead to odd results. At Fort Bragg, North Carolina, in the late 2000s, a service member was on trial for a grisly triple murder and rape -- and he was not ordered into pretrial confinement. The murders occurred in the mid-1980s. The soldier was tried in civilian court; convicted; put on death row; and discharged from the Army. His conviction was reversed and he was then retried in civilian court and acquitted. He then reenlisted into the Army (yes, he subjected himself to the only jurisdiction that could retry him for the murder) and served a full career. He retired and moved to Washington State, 30 miles south of the Canadian border. Meanwhile, in the mid-2000s, a detective in North Carolina conducted a cold-case investigation and found the accused’s DNA on a swab from the victim’s body. The service member was then given orders to report to Fort Bragg so that he could be stand trial for capital murder and rape.
Instead of crossing the border into Canada, the accused reported unescorted to Fort Bragg for his death-penalty trial. He didn’t appear to be a flight risk. And, there was no evidence that he had committed any misconduct since he reenlisted into the Army. He didn’t appear to pose a risk for committing future serious misconduct, either. So, he spent the period leading up to the trial working in an office on Fort Bragg. Once he was found guilty, he was ordered into pretrial confinement (apparently he now had a really good reason to run). He is now on the military’s death row.
Okay, so Bergdahl shouldn’t be in pretrial confinement, but is he a pariah on Fort Bragg? Probably, but he can’t be treated as a pariah. While waiting for trial, Article 13 of the UCMJ prohibits the command from punishing the accused related to those charges. A potential punishment at trial is a reprimand so the command can’t say things to Bergdahl like, “There goes the traitor” or anything like that. If someone does (or if the command otherwise tries to stigmatize or humiliate the accused), then Bergdahl can file a motion for sentencing credit. The accused has to be treated with respect, and generally this means that the accused needs to be put to work just like any other service member. This is why Bergdahl is working every day as a clerk somewhere on post.
The next Serial episode won’t be until next week, so until then, Happy New Year!
Should Tort Law be Used to Reinforce Intentional Violations of NFL Rules Aimed at the Safety of Players?
The NFL has been promulgating rules to make the game safer for players. Of particular focus is the reduction of head injuries leading to concussions and long term brain damage. Odell Beckham, Jr., the star wide receiver for the New York Giants, had his 1-game suspension by the League upheld on appeal.
Beckham and Carolina Panthers corner back Josh Norman were involved in aggressive dust ups during the teams' meeting a week ago. The provocation was so bad it resulted in multiple personal foul penalties and fines. Only Beckham received a suspension from the NFL. One of the reasons for the harsher penalty was a helmet to helmet collision with Josh Norman on a running play. It was also the second infraction from Beckham. He was previously fined for his in-game conduct from the Giants' matchup with the Buffalo Bills earlier in the season.
This brings us to the seminal case of Hackbart v. Cincinnati Bengals (a staple of Torts textbooks). The case involved a hit on Broncos' corner back Dale Hackbart by a Bengals wide receiver, which did not result in a rules infraction or foul on the play. The non call was the result of the officials not seeing it. The hit was also found to be intentional. The Court of Appeals overruled the trial court's ruling that violence was inherent in the game of football, and, thus, Hackbart could not recover.
The intention is not create an off field litigation industry aimed at professional football complete with lawyer advertisements. Rather, in egregious cases (of which I am not commenting on the Beckham case one way or the other), tort law may serve as a basis to reinforce the rules. Generally, a player should be disciplined by the NFL after receiving due process (please see my earlier post, "What the NFL Can Learn from Administrative Law").
Law Students May Take the Bar Exam While Still Students?
Maybe I’m partial, but Arizona’s legal community does some pretty innovative things. Full disclosure, my mom (Rebecca Berch) was the Chief Justice of the Arizona Supreme Court when the State adopted many of these initiatives (such as admission on motion and adoption of the Uniform Bar Exam). The initiative I’m going to briefly write about here is less well-known: the early bar exam.
Effective with the February 2013 bar exam, Arizona permits students in their final semester of law school to sit for the February bar, even though they will not graduate until May (or later, as students who take the bar early have 120 days from the first day of exam administration to graduate). Students at all three Arizona law schools can participate.
Data from the Sandra Day O’Connor College of Law at Arizona State University shows that in 2014, twelve students participated in the program and all twelve passed (100% passing rate). In 2015, again twelve students participated, but this time, ten passed (83% passing rate). This year (for the February 2016 bar), four ASU students are taking advantage of the early bar exam. Students who take the bar exam early pass at about the same rates, or even higher, than might be predicted by general ABA pass rates, even though we have no reason to think that the students electing to take the bar early have better credentials than the regular cohort of bar exam takers.
Arizona launched the early bar exam to allow students to gain bar admission months ahead of when they ordinarily would qualify to begin the full practice of law. The several additional months of salary that they can earn by starting work in June rather than the following October allows them to support their families and perhaps even start paying off debt.
Although previous early bar programs (such as one in Georgia) have not been successful, Arizona made some creative tweaks. Students who take the February bar exam need to plan ahead, because their final (spring) semester will look different from other students’. Their spring will be broken into two parts. During the pre-bar time, students may take no more than two units, and they are encouraged to take the two-unit “Bar and Professional Skills Study Course,” which is pass/fail. During the post-bar period, students may take up to eight units, including traditional courses, but also experiential learning courses, clinics, externships, journals, and courses to fulfill substantial writing requirements.
Arizona’s program is still a pilot program, but it is attracting some interest. Last February, New York began a version of the early bar exam. Students must participate in the “Pro Bono Scholars” program, which involves a pro bono placement after the February exam as the students’ final semester. Last February, New York had 106 pro bono scholars, and ninety passed (85% passing rate) — again, a higher passing rate than might otherwise be expected according to general ABA pass rates.
Other jurisdictions have expressed interest in this program as well. We wait for more results from Arizona and New York, and to see if other states join in this innovation.
Will Baude: Is Originalism Our Law?
The Columbia Law Review has at last published Will Baude’s thought provoking essay Is Originalism Our Law?, which is the latest entry into what has been called the “positive turn” in originalist theory. Baude and Stephen Sachs have been the primary movers in this effort, which offers a new normative justification for originalism: Judges are bound to enforce the original meaning of constitutional text because that meaning is, in a positivist sense, “the law.” Originalists have long struggled to provide good reasons why the Court ought to care about original meanings, and until recently I think those efforts have come up a little short. Early originalists simply presumed that original meanings were “the law,” but failed to justify that claim in any rigorous theoretical way. Thus, the New Originalists no longer claim that original meanings are the “law” (these meanings establish the text’s “communicative content,” not its “legal content”) and instead justify originalism as the best theory of adjudication for particular instrumental ends. Sachs and Baude make a new claim, which is that Supreme Court practice—as the actions of relevant legal officials—evince a rule of recognition that identifies original meanings as our positive constitutional law. If this is true, of course, judges ought to enforce original meanings for all the reasons they ought to follow the law writ large.
Baude’s essay recognizes that this claim seems—at the very least—counterintuitive, and certainly contradicts the traditional narrative of Supreme Court practice over the last century. After all, the primary complaint of “old school” originalists like Raoul Berger, Robert Bork, and Antonin Scalia has been that the Court has abandoned the “law” (to wit, original meaning) far too often—in cases like Blaisdell, Brown, and Roe—and has, in effect, usurped the law-making authority. How can it be, then, that this very Supreme Court practice demonstrates that original meaning is our positive law? Baude’s tactic is to concede that “old school” or “exclusive” originalism, which claims that only original meanings count as “the law,” does not reflect the Supreme Court’s practice; but a much broader “inclusive” originalism actually does describe what the Justices think they are up to. This is consistent to some degree with New Originalism—Larry Solum has made some pretty rigorous arguments in favor of inclusive originalism as positive law—but Baude’s version is certainly the most inclusive to date.
Essentially, Baude claims that the Court’s practice is presumptively originalist, and that the Justices will move to other interpretive strategies only when originalism has, for one reason or another, failed to provide an answer. Even then, the Court strains to provide suitably originalist kinds of justifications for its decisions. Baude’s biggest challenge, of course, is to show that the ostensibly non-originalist opinions that litter the U.S. Reports can be fit into his inclusive account. He tries to accomplish this in a couple ways. First, he argues that the many apparently non-originalist cases—Blaisdell, Brown, Miranda, etc.—either make clear efforts to get at original meaning, or at the very least, do not expressly reject originalist reasoning. Second, other cases that seem clearly at odds—Roe and the gender discrimination cases—actually did do originalism, they just did it badly. While Baude does an admirable job bringing all of these decisions into his paradigm, I still cannot imagine for one second Berger or Bork signing on. This is, in other words, a decidedly different sort originalism.
Baude’s essay has already been the subject of some very thoughtful criticism. Jim Fleming’s new book Fidelity to Our Imperfect Constitution makes the point, very well, that Baude’s “inclusive originalism” really isn’t originalism at all—at least not in any meaningful sense. Indeed, he argues that Baude’s work “is interesting only in the sense that it shows us the lengths originalists will go to say that originalism is our approach to constitutional interpretation.” And, over at The Narrowest Grounds, Asher Steinberg wonders whether Baude has succeeded in getting all these cases inside even his super capacious originalist tent. Both criticisms are, I think, pretty well founded.
As someone who has spent a fair amount of time exploring Philip Bobbitt’s account of the Constitution, however, I am most interested in Baude’s critique of that approach. Bobbitt describes six legitimate modalities of argument—text, structure, history, doctrine, prudence, and ethos—which characterize our legitimate constitutional practice. While Bobbitt recognizes that historical arguments are a part of this practice, he concludes that we cannot privilege any one of these modalities over the others without relying on some justification that is outside of the practical modalities (and thus not legitimate). Instead, Bobbitt suggests that efforts to privilege a particular kind of argument almost virtually rely on justifications drawn from within their preferred modality of argument, thus essentially begging the question. Indeed, Fleming makes this point when he says that Baude’s account fails "unless we are assuming, on the originalist premise, that originalism just is our law.”
I think Bobbitt’s point might be made clearer by doing a sort of thought-experiment. Could we make the same sort of case for any of the argumentative modalities as the positive law of our interpretive practice? Could we, for example, (with some creative license to “strain”) bring any case into line with an inclusive “prudentialism” or “ethos”? I am tempted to think so—and, in fact, it may be easier to do with “textualism” or “doctrinalism” than it is with “originalism”—but I, like Bobbitt, am convinced we would need to rely on justifications drawn from inside the relevant modality to make that claim work. The basic problem, as Bobbitt pointed out long ago, is that the modalities are not entirely commensurable, and when incommensurable sorts of justifications run up against one another we simply have to choose which justification we find more compelling. That, I think, is what Baude has been forced to do in order to describe an interpretive practice that privileges historical arguments. And I humbly suggest—and maybe it’s even worth doing in a real essay—that I could probably make the same case Baude has made for the legal status of originalism on behalf of several other interpretive strategies.
Sunday, December 27, 2015
There Had Been An Awakening, Have You Seen It?
I am going off topic a bit (please, no haters in the comments). When I was five years old, Star Wars changed my life. Gone was the world of G-rated Disney fare, in was science-fiction and fantasy. My question going into the film was: can J.J. Abrams recapture the magic of my youth?
In a way, he does. The film is a nostalgia fueled remake of the original Star Wars. A good discussion of the movie can be found here and a more positive take here. For all of the criticisms, it is still an exciting return to a galaxy, far, far away. It is not surprising that the filmmakers took this approach after discarding George Lucas' ideas for Episode VII. Rather than go through a point by point critique of The Force Awakens, I'll offer a few theories to the many unanswered questions.
- In the film, there is both a New Republic and a Resistance to the First Order (remnants of the Old Empire). It begs the question of what the relationship is between the two. I proffer that the Rebellion split into two at the conclusion of Return of the Jedi. One faction, tired of war, favored forming a new government and leaving the Empire alone. The other formed the Resistance led by Princess Leia to continue the fight against inter-Galactic tyranny.
- Why is Princess Leia not a Jedi! Haunted by the memory of his failure in the tree on Dagobah and Anakin Skywalker's turn to the Dark Side of the Force, Luke does not trust himself to train Leia as an adult. Thus, he adopts the old Jedi method of training them from early childhood.
- Coruscant must be occupied by the First Order. Why otherwise is it so vital to find the first Jedi Temple.
Mediation as a Means of Docket Management, or How I Learned to Stop Worrying and Love ADR
Alternative dispute resolution (ADR) is increasing in use in courts at all levels. A development has been the active encouragement of the use of mediated settlements as opposed to merely making it available to the parties. The U.S. District Court for the Western District of New York has an ADR Program in which the parties are initially referred to a mediator to explore ADR possibilities. The FAA has a statutory commitment to ADR at the administrative level for the resolution of government contract claims.
Mediation may be with an independent third party neutral rather than settlement discussions held by the presiding judge in the case. Judges, however, can offer their services as mediators. The judge, as is the case with the FAA, may be a neutral party recused from the case altogether. In those instances, the parties have the benefit of the judge's experience without fear of prejudicing a decided outcome. In fact, one type of ADR technique is the early neutral evaluation (ENE) in which the neutral (often a judge) provides the parties with an analysis of the strengths and weaknesses of their respective positions.
ADR possesses many advantages over protracted litigation. The biggest being time. Courts have scarce resources. One law review article discusses the scarcity of resources among Federal appellate courts to hold oral arguments and decide cases. In a mediation, the parties, with the assistance of a neutral, may establish a rigorous schedule to exchange information. They may then quickly enter into discussions to attempt to resolve the matter. The case can be managed based on the needs of the parties rather than on the available resources of the court. Ultimately, agreed upon settlements mean less decisions to write, and free up valuable resources for those that must be decided.
Thursday, December 24, 2015
I want to wish everyone a Merry Christmas. Here is an old holiday favorite of mine. Enjoy!
(For the intellectual property angle, this is in the public domain. I checked.)
Wednesday, December 23, 2015
Serial 2:2, part 2
The second half of this week’s episode gets closer to what I think will be the core of this season – the normative decision about whether the Army should prosecute Bergdahl and what the resolution of his case should be. In this part, Sarah Koenig documents the Army’s – indeed, the nation’s – efforts to find Bergdahl.
At the end of my last post, I mentioned that I thought that the convening authority made his decision to sent the case to a general court-martial based of the havoc Bergdahl caused rather than anything Senator McCain said. In this post, I’ll discuss the search efforts and how evidence of the search efforts can be used at the court-martial.
Koenig describes how Bergdahl’s actions caused the entire war effort to shut down. Everything else that was going on stopped and the nation focused all of its assets on finding him. Koenig talked about the extraordinary stress the search put on service members and their equipment. Units were ground down. Missions were extra risky. Special operators were conducting raids in the daylight with no real planning. The American military owns the night and loses that advantage when fighting during the day. Planning is a big deal in the American military (the military even offers a master’s degree in it), and good planning greatly reduces risk. Add to that that the Taliban was manipulating intelligence to send special operators into booby-trapped compounds and it is pretty easy to see how many people Bergdahl put at risk, even if it turns out that no one was killed looking for him. This was dangerous business.
My guess is that Bergdahl’s actions actually set the war effort back. At this time, the strategy in Afghanistan was counterinsurgency (COIN). Before General Petraeus rewrote the COIN manual in the mid-2000s, the basic American strategy in all types of combat was to use violence first. The burden of risk was on the host population. Americans conducted a lot of raids late at night, kicking in doors, separating the women and children into one room, and taking away the men.
Petraeus recognized that by doing that, we could never win over the population – we probably created more anti-Americans on each of these raids than we gained by taking somebody away.
Petraeus changed all that and put the burden of risk on the service members: “Petraeus explained this ‘population-centric’ strategy in a letter he sent to all of the soldiers he commanded. ‘You can't commute to this fight...Living among the people is essential to securing them and defeating the insurgents...patrol on foot and engage the population. Situational awareness can only be guaranteed by interacting with people face-to-face, not separated by ballistic glass.’”
That COIN strategy was in place in Afghanistan when Bergdahl left, but we went back to the old tactics to find him. Koenig tells the stories of these raids and their impact on the local population. Not only did Bergdahl stop efforts related to the COIN mission, he may have set things back.
Koenig made a comment that those who were close to Bergdahl and who really got to know the facts (the Article 32 hearing officer and the investigating officer) both recommended leniency, but that those farther away from Bergdahl (the Big Green Machine represented by general officers) wanted its pound of flesh and so sent the case to a general court-martial. I’m not sure I agree with her.
The convening authority had all of information that those officers had, so he was also pretty close to Bergdahl. Rather, I think he looked at the very serious consequences of Bergdahl’s actions and he wanted a panel of soldiers to make the final judgement after balancing the evidence of the trouble he caused with the evidence of his reduced culpability.
The fact that two people who were “close” to Bergdahl recommended leniency is pretty important, though – it gives us a clue about how a panel will react to the evidence. We already know that two people who heard the whole story (the Article 32 hearing officer and the investigating officer) were very influenced by the evidence of Bergdahl’s mental health and decided that he doesn’t deserve jail time. While I recognize the severity of the harm he caused, I am also influenced by the evidence of reduced culpability (but I was a military defense counsel for four years and am easily influenced by this stuff). In the military, two-thirds of the panel have to agree on a sentence, and for serious punishments (more than 10 years), three-fourths have to agree. I think he is likely to be convicted, but I think it is also likely that a block of panel members will be persuaded by the mitigating evidence and will prevent him from receiving a lengthy prison term.
Now, that discussion only matters if the evidence can come in at trial, and it can. While the evidence of the search efforts isn’t relevant to the desertion charge, it is for the misbehavior before the enemy charge. There, Bergdahl must have intentionally committed misconduct, and then as a separate result element, that misconduct must have endangered the safety of the command. In the charge sheet, the government alleged that this endangerment was the search and recovery operations.
Most of it will come in on sentencing, too. For the most part, a court-martial looks like a regular civilian trial. One of the big differences is the sentencing case. The sentencing hearing occurs right after the merits phase ends -- there isn’t a two or three month break. This puts the attorneys in the odd position of preparing for the sentencing case while they are preparing their merits case (and where they may never even get to sentencing if there is an acquittal). Within an hour period, the defense counsel may go from saying, “My guy didn’t do it,” to, “The reason he did it is because of these mitigating factors.”
The sentencing hearing is also fully contested. Both sides call witnesses and, for the most part, the rules of evidence apply. There is a heightened relevancy requirement for the government: the government can only introduce aggravating evidence that is directly related to or resulting from the offenses, and that includes evidence of “significant adverse impact on the mission, discipline, or efficiency of the command directly or immediately resulting from the accused’s offense.” The aggravating evidence in Bergdahl’s case will clear this hurdle.
So at trial, it will come down to the aggravating evidence related to the search against the mitigating evidence of Bergdahl’s mental health. It may turn out that those in the military are less likely to be sympathetic to the mitigating evidence in this case, though, and I’ll get to that in a future post.
A Trademark Is Not A License Plate?
Yesterday, the Federal Circuit held in In re Tam that a portion of Section 2(a) of the Lanham Act, prohibiting the registration of "disparaging" trademarks, violated the First Amendment. Dennis Crouch has a useful rundown of the various opinions in the case. As most of press coverage has emphasized, this decision may have major implications for that notorious Washington DC football trademark, which also was cancelled under the disparaging marks provision. The constitutionality of that provision is currently before the Fourth Circuit, after a judge in the Eastern District of Virginia upheld the mark's cancellation earlier this year. For regular Prawfs readers, the Federal Circuit and EDVa opinions take opposing positions on the First Amendment issues that Christine Farley and Robert Tsai set out earlier this year--namely that Section 2(a) is constitutional because a federal trademark registration is either government speech or a lawful government subsidy for speech.
On the government speech point, the Federal Circuit spends several pages explaining why the trademark registration system is different in kind from the speciality license plate scheme held by the Supreme Court to be government speech last term in Walker v. Sons of Confederate Veterans. I think this question is really difficult, as both trademarks and specialty license plates involve substantial government action and support for speech originating with private actors. The Federal Circuit rather conclusively states, "Trademarks are not understood to convey a government message or carry a government endorsement," but this strikes me as an empirically open question. (The Supreme Court's contrary conclusion w/r/t license plates is susceptible to similar criticism). It will be interesting to see how far the Walker license plate analogy goes in expanding government speech. For example, Laura Heymann and Eric Goldman observed today that the analogy impacts the ability to petition for a name change--courts have a fairly lengthy history of denying name changes for ideological reasons surrounding race, religion, and gender identity. If a name change is a license plate, then a lot of great work in this area could be imperiled.
Although the two cases both present facial challenges to the disparaging marks provision, the facts of the two cases could hardly pull more strongly in opposite directions. The Federal Circuit case involved an all-Asian American, "Chinatown Rock Band" named "The Slants," who intentionally reclaim the offensive term at issue.
The Fourth Circuit facts, by contrast, are probably best captured by this South Park clip:
"Religious Institutionalism--Why Now?"
Nelson Tebbe and I have a chapter with this title in a forthcoming (and terrific) book, The Rise of Corporate Religious Liberty, edited by Micah Schwartzman, Chad Flanders, and Zoë Robinson. Here's the abstract:
The recent rise of religious institutionalism in Supreme Court doctrine presents a puzzle. After all, the Court has been emphasizing groups at exactly the same moment when social scientists have been showing that Americans are disaffiliating from religious organizations at a rapid rate. What explains this apparent tension? We argue that multiple factors contribute in complex ways to the rise of group rights of religious freedom. But we also tentatively suggest an overarching theme. Once it is appreciated that religious disaffiliation is happening chiefly among those on the left of the political spectrum, it becomes possible to hypothesize that lawyers’ focus on groups and institutions reflects a countervailing impulse among religious traditionalists. If that is correct, then the rise of group rights of religion is happening alongside, not despite, religious disaffiliation. The two developments are aspects of a general phenomenon of polarization on questions of religious freedom.
I should say in the interests of fairness that Nelson was more than generous in keeping me on as co-author. We started the paper together but I was substantially sidelined by illness last year and my contribution to it dropped precipitously. I hope there's a little bit of me left in there, but I would feel bad about not acknowledging publicly that Nelson did the lion's share of the work, with his usual excellence. I was nevertheless pleased and grateful to come along for the ride with him.
Let me offer some thoughts about the paper beyond the abstract, although I think most of them are explicit and/or implicit in the chapter. First, I think the general approach is useful and perhaps too often absent from legal scholarship of this kind. Doctrines emerge, develop, find a receptive audience or wither, and evolve in various ways and for various reasons, some internal and some external: path-dependence within doctrine, changes in the cultural surround or in the legal culture, strategic first moves and reactions to other moves, interest-group politics and funding, and so on. In thinking about these questions, and about where and how doctrine might move, it is valuable, in my view, to think at least somewhat from an internal perspective, but not only from that perspective. That's especially true if one is going to make pronouncements about what doctrinal developments say about our legal or political culture. All of this is more or less obvious, although I think people rarely tease out all the nuances of these relationships, and are especially likely to label strategic moves by those they disagree with as strategic while describing similar moves by their friends as sincere and inevitable. A fuller picture doesn't always emerge in the scholarship, however, both because of reasonable concerns about parsimony--it's difficult to make a single "point" given all these cross-currents--and because, general complaints about this notwithstanding, many legal scholars are still doctrinalists at heart, and/or hold a largely "internal" view of the law. In any event, it's worth noting that such moves can be both strategic and sincere. Arguments in favor of affirmative action in higher education on the grounds of diversity rather than remediation, for instance, increased significantly after the Supreme Court in Bakke channeled legal claims in that direction. But diversity was in the air before that, and even if there was an initial strategic motivation for focusing more on this, individuals and groups in time came to internalize it as a treasured value. Religious groups may have been driven by various developments, such as the Court's decision in Employment Division v. Smith, to push institutionalist arguments, but the idea was hardly foreign to them and, once such claims are made, others will end up internalizing their importance.
Second, I think a key point in the paper is worth underscoring. Religious institutionalism can rise in importance at the same time as, and in part because of, a trend toward religious "disaffiliation and individuation" described in recent Pew polls about religious belief in the United States. One sometimes sees hints or suggestions in public and scholarly literature that the rise of the "nones" in American religious demography undercuts religious institutional claims. That's not quite right, although such a view may find a warm welcome in a legal and political culture that tends to "Protestantize" American religion and the structures that surround it. Reporting to her feckless colleagues on the latest purges in the Soviet Union, Greta Garbo in the movie Ninotchka says, "There are going to be fewer but better Russians." As, and in part because, many religious individuals become less strongly tied to particular church bodies or disciplinary orders, other individuals and groups will become more strongly tied to religious institutions and more convinced of their importance and the value of their maintaining some autonomy, particularly in the face of a legal and political culture that in their view disparages or denies the importance of such associations or sees them as wholly subordinate to the enacted will of the majority. Indeed, one view is that under such circumstances, it may be both more important and less dangerous (because those groups are smaller, and because the idea of exit will be highly visible in the surrounding culture and, as Charles Taylor suggests, more "available" to religious individuals) to allow those groups a space of their own, from which they can generate or preserve norms and ideas that critique the prevailing culture.
At the same time, it is possible that the smaller and stronger ties of these groups, and their reaction to the surrounding culture, may make their beliefs or norms stricter, and their legal claims stronger and likelier to interfere with the general legal regime, including its beneficial aspects. The creation of "fewer but better," or smaller but stricter, religious groups may also, both by making it easier to monitor members and by creating stronger and more isolated enclaves, make exit more difficult for individuals, including vulnerable ones. How to balance these conflicting points is the stuff of the law and its response to pluralism. I would like to suggest, however--and this is not in the paper--that it points to a potential, oft-neglected, benefit of accommodationism: a willingness to accommodate such groups may reduce these groups' polarization and alienation from the general culture and desire to build a strong enclave around itself, and make it less likely that the end point will be one of strong illiberalism and/or insistent isolation from the culture.
Third, it's worth noting that however much particular ideas or strategies may be associated with one side of the debate at particular times, they often have a more complicated genealogy than that, and may well cross political lines at different points. Advocacy on behalf of society's "little platoons" is right now associated strongly with religious conservatives, for example, but in the 1970s, a concern with the importance of these groups could be found across both the left and right. (See chapter 6 of Daniel Rodgers's terrific book Age of Fracture.)
Finally, a couple of reading recommendations, both of them published after the initial drafts of this chapter. For a critical take on religious polling, see Robert Wuthnow's Inventing American Religion: Polls, Surveys, and the Tenuous Quest for a Nation's Faith. And for a wonderful argument that, "both normatively and historically, liberal political thought rests on a deep tension between a rationalist suspicion of intermediate and local group power, and a pluralism favorable toward intermediate group life, and preserving the bulk of its suspicion for the centralizing state," see Jacob T. Levy's Rationalism, Pluralism, and Freedom.
Again, thanks to Nelson for letting me hang out with him on the page, and I hope y'all enjoy the chapter. I highly recommend the book as a whole; it has many great contributors who have turned out some very interesting chapters.
Happy Festivus!, by Jessica Berch and Chad DeVeaux
It's December 23, which means it's Festivus for the rest of us. Chad and I are both Seinfeld fans, and when we realized we would be blogging in December, well, we just had to do this post. Please excuse our rather limited Photoshop skills (though I think our Festivus pole looks vaguely like a lightsaber -- which reminds me, if you haven't seen Star Wars, get a move on that).
Fortunately for all of you, I have no grievances to air (I finished grading earlier this week, so I'm feeling particularly content), and the feats of strength can't be accomplished through our virtual PrawfsBlawg world (though as you can see from the picture, my scrawny frame isn't doing me any favors in that category). I hope you're all enjoying the much-needed break between semesters. Happy holidays! Happy Festivus!
Monday, December 21, 2015
From Plessy to Brown and Back Again
I’m spending Christmas in New Orleans with my family this week, and today we took a rainy walk through St. Louis Cemetery No. 1. With the arguments in Fisher II fresh in my head, I paused for a while at Homer Plessy’s grave to read the plaque. I listened to a tour guide describe Plessy’s infamous train ride to Covington and the “separate but equal doctrine,” but she finished with what—for me at least—was a bit of a surprising take. “If it wasn’t for Homer Plessy, we wouldn’t have gotten Brown v. Board of Education and the end of segregation—even if he never lived to see it.” The guide’s narrative was of a long path (almost 60 years) to vindication; but what it made me think about was the 60 years since Brown, and the long journey the Court has taken back to Plessy.
To me, the crucial passage in Justice Henry Brown’s opinion is when he explains that law—at least American law—is simply inadequate to the task of racial justice:
The [petitioner] assumes that social prejudices may be overcome by legislation, and that equal rights cannot be secured to the Negro except by an enforced commingling of the two races. We cannot accept this proposition. If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals.
Bruce Ackerman has argued, quite persuasively I think, that this conception of law’s capacity shifted dramatically during the New Deal, when our government began to regulate market inequities in previously unimagined ways. It was only after this fundamental change had taken root in our constitutional ethos that Brown became possible. Indeed, Earl Warren very much assumed that “social prejudices” could “be overcome by legislation” and the “enforced commingling of the two races.” That, after all, is the gravamen of Brown—law can combat racial inequalities and injustice through (among other things) enforced integration—or at least that was what Brown was all about until the late 1980s.
By the time of Robert Bork’s nomination hearings, if not well before, the case had become canonical, and its opponents had recognized that an argument that relies on Brown being wrong is … well … a bad argument. Sophisticated advocates began to try to get Brown on their side—if you can’t beat ‘em, join ‘em—but that required some careful recalibration. Through a series of arguments and opinions (which I won’t recount in this short space) advocates and judges began slowly to change Brown’s meaning in our argumentative practice. The real lesson of Brown, for these folks, was not that government should endeavor to promote racial justice by bringing people together in common space and experience, but that the law must be “colorblind” and let the racial chips fall where they may.
This tack has been remarkably successful. So much so that by 2007, in Parents Involved v. Seattle, Chief Justice Roberts could hold up the new Brown as the centerpiece of his final rhetorical flourish. Relying primarily on language in Brown II, in which the Court pressed school districts “to achieve a system of determining admission to the public schools on a nonracial basis,” Roberts made an exultant return to Plessy’s central conviction about law’s inability to achieve racial equality: “The way to stop discrimination on the basis of race, is to stop discriminating on the basis of race.” In concurrence, Justice Thomas made the point even more clearly, “racial imbalance is not segregation,” and Brown was only about ending segregation, and not about law as means of achieving racial equality.
It is (I think) ironic that Roberts and Thomas should appropriate the “colorblind” spirit of Justice John Harlan’s iconic Plessy dissent (which is decidedly not Brown), even as they bring the Fourteenth Amendment back to pre-New Deal formalism. But, as we await a decision in Fisher II, I think that’s where things stand. For a majority of this Court, racial inequality is a social problem, not a legal problem. And so, though the tour guide at St. Louis No. 1 Cemetery may not have known it, it may have been 60 years from Plessy to Brown, but it’s been 60 years back again.
A Review of Andrew Hartman's A War for the Soul of America: A History of the Culture Wars
Andrew Hartman, a historian at Illinois State University, had both fantastic and poor timing in publishing this year his book A War for the Soul of America: A History of the Culture Wars. Fantastic in that the book turned out to be incredibly timely, due to the recrudescence of the culture wars on and off campus; poor in that the book is labeled as history and he doubles down on that label, writing, "This book gives the culture wars a history—because they are history. The logic of the culture wars has been exhausted. The metaphor has run its course." However much they enjoyed the book, reviewers looked around them and disagreed; indeed, they had enjoyed the book because it was so timely.
Here is my review of the book for Commonweal. Given my field and its close relationship to the subject of the book, I was pleased to read it, although I ended up underwhelmed--by the effect his sympathies have on the analysis, by its over-reliance on a particular definition of power and resistance as the primary subject of the culture wars, and by the recent appearance of a similar but, I think, better book, Age of Fracture, by Daniel T. Rodgers. (As a side note, I would add that this and other histories don't give enough attention to the Dionysian side of 60s culture, which was relevant well into the 70s and which has never figured as much in the legal history/theory literature as it ought to.)
In the end, I think Hartman's claim about the culture wars being "history" is actually subtler and more interesting than other reviewers thought, although his claim--that the previous culture wars ended up neglecting questions of class and capitalism that will have to feature more prominently in any subsequent conflicts--should have altered and enriched both his history and the predictions he offers in the book more than it does. I close on a cheery note:
It cannot be a surprise that either liberatory or reactionary movements of this sort sometimes ended up preoccupied more with who would get to be department chair than with deeper questions of social and economic justice. Yet, early on Hartman does not have much patience for those who argued that the left had forsaken its working-class constituency in what he calls “normative America” for a new brand of emancipatory cultural politics. A more patient engagement with this argument would have allowed him to limn the limits of the “New Left” from the start. It might also have given him a little more sympathy, if not for the leading think-tank neoconservatives, then at least for all those bewildered people drifting within “normative America” itself. As it is, although this is not an especially partial or unfair account, there is no doubt where the author’s sympathies lie. Sometimes he conveys these very subtly, but even then they distort the overall picture. The left is described in essentially objective terms, allowed to speak for itself, sometimes criticized, but almost always forgiven. The right, by contrast, is psychoanalyzed and subjected to frequent spot-checks for concealed motives.
Hartman is pleased with the victories won by the “New Left,” but now urges us to place our focus on economic and not just cultural issues. But the culture wars he describes in this book have long conditioned us to see the personal as political and to identify justice narrowly with personal liberation. He is right to think that this approach leaves important issues off the table. But then, it always did. Why, the reader may wonder, does Hartman seem to notice this problem only at the end of his story? And why, as we enter a new era of similar conflict, should we doubt that the same mistake will happen again?
We're Requiring Administrative Law in the First Year, We're Requiring Administrative Law in the First Year!
As you might have surmised from the title of this post, we at Boston University School of Law are, as of this year, requiring all first year students to take a course in Administrative Law. The course will be three credits (compared to the four credit courses we require in Property, Torts, etc.) and, just to reiterate, it will be called "Administrative Law." Not Legislation or Leg-Reg or Reg-Leg or Regislation or Legulation or Fundamentals of the Regulatory State or Thinking About Public Law or anything like that, but Administrative Law. Personally I'm excited to be teaching it (we teach it in the spring semester, so it starts in a few weeks) because, among other things, it signals the importance of understanding regulation and the other things that agencies do to being a practicing lawyer. I also like to imagine that we are the first school to do this (require straight-up Administrative Law in the first year, that is), because it lets me walk around with a swagger bragging about how we're the first school to require Administrative Law in the first year, but at the same time I sort of doubt it's true. But on the other hand, maybe it's true!!! Is it true? Or are there other schools out there that are doing it or have done it? And if so, how is it going/did it go?
Serial 2:2, part 1
I think we are officially in the blogging black hole -- those couple of weeks between semesters when we all shift focus to the other parts of our lives. For those of you hanging with us, here is the Serial recap. Thursday’s episode of Serial has three parts. The first few minutes bring the listener up to date on the recent news – Bergdahl is going to a general court-martial – and hinted that Senator McCain’s comments on the case may have had something to do with that. That raises some interesting legal issues about unlawful command influence that I’ll discuss below.
The second part tells the story of Bergdahl’s capture but from the point of the view of the local population and the Taliban. That section is primarily story-telling and there isn't too much to discuss (although it is interesting that the Taliban thought Bergdahl was “brainless” – they may have been observing the symptoms of his mental illness).
The third part covers the military’s search for Bergdahl and that section involves some controversy (but not all of it -- Sarah Koenig appears to be waiting until the next episode to tell us if anyone was killed looking for Bergdahl). This section raises some interesting legal issues and some social psychology issues, which I will discuss tomorrow.
Looking first at the decision to refer Bergdahl’s case to a general court-martial, Koenig reminds the listener about some of Senator McCain’s recent comments about this case, where he said, “If it comes out that [Bergdahl| has no punishment, we’re going to have a hearing in the Senate Armed Services Committee.” Those familiar with the confirmation process for general officers may hear the subtle message: “I am ready to hold up this particular convening authority’s next confirmation process and I may even hold up all Army general officer confirmations for a period of time.”
One of the foundations of the American military justice system is the prohibition against unlawful command influence (UCI). Prior to the implementation of Uniform Code of Military Justice (UCMJ) in 1951, commanders would often influence courts-martial by, say, issuing reprimands against panel members who voted for acquittals or light sentences. (The movies Breaker Morant and Paths of Glory do a good job portraying this).
Back then, these actions were lawful. The military was pretty small and no one paid much attention – until huge numbers of Americans were drafted into service in World War II and 2,000,000 of them received a courts-martial. When they got back, they complained loudly and Congress reacted by scrapping much of the old system. Article 37 of the UCMJ now expressly prohibits unlawful command influence.
If the right person says what Senator McCain said, that would raise two problems. Those comments would likely be accusatory UCI, meaning that a commander or convening authority might recommend that the case go to trial when he or she would not have without that unlawful influence. If you are the convening authority and concerned about your career, you will probably pay attention when your boss says, “There better be punishment in this case.” Even if you think the case should be disposed of at a lower level, the risk-averse decision would be to send the case to a general court-martial. This is the kind of UCI that Koenig was hinting at.
In relative terms, this kind of UCI is not that serious. It is often identified before trial and a military judge can fix the problem by telling the military to reprocess the case within a new chain of command. And, even if the case ends up at a general court-martial, the accused still has all of the protections offered in that forum and might get an acquittal or no punishment.
The more serious kind of UCI is adjudicative UCI. With this type, the actual court-martial has been influenced: the judge or defense counsel does something she shouldn’t have, a witness doesn’t up, or a panel member changes her vote. For example, if you are a panel member and your commander says, “There better be punishment in this case or else,” you may be more likely to vote for guilt or for a big punishment. That is a serious problem. If a commander made the same comments that Senator McCain made and everyone know about them before trial, the military judge would craft remedies to prevent the comments from affecting the trial. Often, the defense does not know about this kind of UCI until after the trial is over and the case is on appeal. Appellate courts treat UCI issues like constitutional violations, with presumptions stacked against the government that have to be rebutted beyond a reasonable doubt.
Article 37 has a limited scope, though. For example, the first clause prohibits any convening authority from reprimanding the actors in the system. “Convening authority” includes the President, Secretary of Defense, and the service secretaries, but does not include most of the people in the military – and does not include members of Congress. The second and more important clause prohibits anyone subject to the code from trying to coerce or unlawfully influence a court-martial. The President and secretaries are not subject to the code. You can’t court-martial them. Members of Congress are not subject to court-martial, either. While what Senator McCain said was irresponsible, it technically isn’t unlawful command influence.
That doesn’t end the analysis, though. If the President or a secretary or a powerful member of Congress says something like that, it is likely a due process violation. The accused might not be able to get a fair trial. What Article 37 really does is codify a particular type of due process violation. In Bergdahl’s case, the military judge likely have to craft remedies (possibly ordering a new referral process or ordering expansive voir dire) to ensure that the case processing and the trial are fair.
Still, I’m not convinced that the convening authority was influenced by Senator McCain’s comments. In my experience, senior commanders were almost always thoughtful, wise, and ethical people. They try to do the right thing. (Mid-level and junior officers and noncommissioned officers sometimes get tripped up with UCI). As the second half of this episode shows, Bergdahl’s actions caused serious consequences and I expect those consequences are what drove the convening authority’s decision to refer the case to a general court-martial. I would not have made that decision, but I think it is within the bounds of reason -- and most likely made independently.
Tomorrow I’ll will discuss the second half of the episode.
Sunday, December 20, 2015
The Goldbergs do Super-Chanukkah
Two weeks ago, I wrote about the TV show The Goldbergs, which is understood as a "Jewish" show based largely on the character names and the fact that the showrunner is Jewish, but without really playing up the Jewishness of the family. As if on cue, the show that week did its first Chanukkah episode (titled A Christmas Story). The mother on the show, Beverly, worries that her family is not sufficiently enthusiastic about the holiday, certainly as compared with the Christian family across the street doing an enormous Christmas. So she creates "Super-Chanukkah," which looks a lot like Christmas, down to the tree ("no, it's a Chanukkah bush"), the stockings hung by the chimney with care ("not stockings, Chanukkah socks"), and candy canes ("not candy canes, peppermint J's"). This brings her into conflict with her father, who calls her out for discarding thousands of years of culture and tradition (without, interestingly, using the word "Jewish"). The episode ends with Beverly introducing the Christian family to the most important Jewish holiday tradition of all--eating Chinese food on Christmas.
Showrunner Adam F. Goldberg has said that Chanukkah was not a big deal around his house, so this episode (like the rest of the show) is true to his vision and the semi-autobiographical story he is telling about his childhood and family. More interestingly, the real Beverly Goldberg has taken to Twitter to discuss her son's vision for the show; back in April, she said:
The GOLDBERGS is a love letter from Adam to our family,the 80's, Jenkintown , philly sports teams. We r also proudly Jewish/ but this is -- Not a show about religion . We are role model in being a loving caring family Adam has great integrity/honesty portraying us Its his show-- We r not Blackish nor Fresh off Boat. Great shows. We are about family &love Religion is private/ personal. It's up to Adam. It's his show.
Which is similar to my point in my earlier post--Goldberg is not obligated to make a show that is as Jewish as those other shows are African-American or Asian, respectively. But my other question remains, as well: Could Goldberg (or anyone else) make that show if he wanted to? I genuinely do not know the answer.
Saturday, December 19, 2015
Donahoe v. Richards, the Shahada, and Education About Religion in Public Schools
In the nineteenth century, many common or public schools, believing that religious and moral education was important but facing doctrinal disagreements within the broad Protestant majority, adopted a practice that John Jeffries and James Ryan call a "least-common-denominator Protestantism" that avoided areas of controversy. In particular, Horace Mann, secretary of the Massachusetts board of education, instituted "a strategy described as 'a stroke of genius.' Mann insisted on Bible reading, without commentary, as the foundation of moral education." Students would simply read aloud the unadorned verses. As Jeffries and Ryan note, this was not at all satisfactory to the Catholic minority or Church officials:
Friday, December 18, 2015
How to Become an ALJ
At Paul Gowder's request, I am providing advice to lawyers aspiring to become an administrative law judge. A good overview of the ALJ position and hiring process is provided by the Office of Personnel Management (OPM) here. Another article by the ABA Journal can be found here.
First, there are two different kinds of administrative judges: Administrative Law Judge (ALJ) and Administrative Judge (AJ). The ALJ is hired via a competitive process including an examination governed by OPM. Most ALJs go on to work for the Social Security Administration. AJs, on the other hand, are hired directly by the agency, and are subject matter experts in that niche area of law. A good example are judges on the Boards of Contract Appeals and on my own forum. The hires are attorneys with at least seven years of practice in the area of government contracts.
Here are some tips applicable to both:
- Litigation experience is important. If you are applying to be an ALJ, the minimum seven years of experience must be in either general litigation or administrative litigation. Rule making and advising on government contracts, for example, do not count.
- Government experience, while not a requirement, is helpful. I observe that many judges have experience at the Department of Justice and with the hiring Agency. I am included in this category.
- In either an exam or interview, the questions may involve hypotheticals aimed at gauging how you would react to certain situations on the bench. Remember to think like a judge.
- Expand your search - administrative judges are hired at every level: city, county, and state as well as federal.
Please feel free to ask specific questions in the comments.
Klein and NFL Officiating
I no longer watch football, particularly the NFL; the league is just too corrupt and the sport just too gladiatorial for my taste. But I cannot avoid news stories related to the league. I was interested in the league's announcement this week that, in the wake of increasing criticism of the game officiating this season (that may or may not be justified), game officials would be in contact the league vice president of officiating during games about replay and other "administrative" matters. This has sparked concerns among many, including the former VP of officiating, about the lack of accountability and increase in uncertainty from having a league official whispering into the ref's earpiece. One former official worried that we could not know whether a changed call was because the game officials got together or because "someone in New York doesn't like the call." As another former official said, "what it looks like is that the league office is making decisions on who possibly wins or loses the game."
The last concern sounds in the sports-officiating equivalent of United States v. Klein (which returns to SCOTUS later this term with a case challenging a law that may actually be unconstitutional for the first time since 1872): Just as Congress cannot dictate specific decisions or outcomes in specific cases, the NFL should not be telling officials what calls to make or how to apply the rulebook on specific plays in a specific game.
A contribution to the SCOTUSblog symposium on the Little Sisters of the Poor
The good folks over at SCOTUSblog are hosting a symposium on the Little Sisters case, this term's religious-freedom challenge in the Supreme Court to the contraception-coverage mandate. Here is my contribution, "Integrity, Mission, and the Little Sisters of the Poor." A bit:
. . . What the Little Sisters and the other religious non-profits have done is simply invoked the protection of a near-unanimously enacted federal statute that reflects the longstanding values of our own (and any decent) political community and the foundations of human-rights law. The administration’s response, the Supreme Court’s response, and our response should not be resentment or disdain but a genuine willingness to ask, “well, why not?” We should spend less time interrogating, second-guessing, or criticizing as impertinent their assertion of religious-freedom rights and more time considering, in an open-minded way, whether it is possible – perhaps with a bit of effort and flexibility – to accommodate them.
Some religious employers, of course, have been accommodated by the administration. Religious houses of worship, and some affiliated institutions, have been exempted from the contraception-coverage mandate. The Little Sisters, however – like many religious hospitals, schools, universities, and social-welfare agencies – are engaged in the world. They heal, teach, serve, and employ some who do not share their religious faith, but theirs is nevertheless a religious mission. They aspire to carry out this mission, just as many of us aspire to live our lives, with integrity and character. The preventive-services mandate, they say, thwarts this aspiration by changing – indeed, by hijacking – their relationships with their employees.
This claim about the character-distorting and integrity-undermining nature of the mandate – including the limited “accommodation” that the administration has provided – should not be difficult to understand. . . .
Check out also the other posts from (so far!) Erin Hawley, Chip Lupu, Bob Tuttle, Leslie Griffin, Helen Alvare, Marcia Greenberger, John Bursch, Fred Gedicks, and Lyle Denniston.
Some Data on Gender Representation at the AALS Annual Conference
Browsing the brochure yesterday for the upcoming AALS annual conference, I was quite struck by the nature of the gender representation on the panels and did a little extra digging. Here are some very rough data. Given the potential sensitivity of the issue, including what I assume are real efforts by many of the people involved in putting together the panels, an earlier draft of this post contained a long list of caveats and so on. I've cut most of that out on the assumption that people will understand I am just presenting the data; they can make their own judgments about it. It's long been the general sentiment in the profession that more data of this kind are valuable, I think, so few will doubt that it's worth presenting, rough as it is.
I looked at most or all available, click-through-able items in the 2016 program that name more than one speaker or moderator (about 150 in my count). Those include panels put on by the Federalist Society rather than the AALS, although I note them below with the initials "FS," and special or unusual events such as the interview with Justice Stephen Breyer (by Alan Morrison). I gave a "pass" to two-speaker panels with gender parity and multi-speaker panels with a minimum of two men and a minimum of two women. I "counted" panels containing two or more speakers or moderators that were exclusively male or exclusively female, and panels of three or more in which there was only one man, or only one woman, on the panel. In both cases, I counted moderators and speakers alike.*
Eleven panels that are or appear to be all-male, with the following numbers: 2/2, 2/2, 5/5, 5/5 [FS], 5/5, 4/4, 5/5, 4/4, 2/2, 5/5, 4/4. (The number is ten if one excludes the panel put on by the Federalist Society rather than the AALS.)
Eight panels that are or appear to be all-female, with the following numbers: 4/4, 5/5, 3/3, 2/2, 2/2, 4/4, 5/5, 5/5.
Fifteen panels that are or appear to be overwhelmingly male, meaning that only one person on the panel is or appears to be female, with the following numbers [men/total]: 4/5, 5/6, 2/3, 3/4, 5/6, 4/5, 3/4, 6/7, 9/10 [FS], 3/4, 3/4, 5/6, 2/3, 3/4, 3/4. (The number is fourteen if one puts aside the panel put on by the Federalist Society rather than the AALS.)
Nineteen panels that are or appear to be overwhelmingly female, meaning that only one person on the panel is or appears to be male, with the following numbers [women/total]: 3/4, 4/5, 4/5, 4/5, 3/4, 3/4, 5/6, 8/9, 5/6, 8/9, 6/7, 3/4, 4/5, 7/8, 4/5, 4/5, 14/15, 4/5, 5/6.
Again, I will mostly leave others to make of the data what they will, adding just a few observations. In brief, I was surprised and disappointed by the substantial number of panels--about a third of my total count--that are single-sex or that feature one lone man or woman in what is often a substantial number of speakers and moderators.
I've been involved in planning panels many times, and my recollection, perhaps faulty, is that the AALS encourages the planners to keep gender representation in mind. Certainly I always keep that norm in mind myself, at the AALS and elsewhere. My experience putting together panels and conferences, in which invited speakers may decline or cancel, makes me unwilling to speculate about the intentions or good faith of those who planned these panels, although I have found that it's possible to do better, and two-thirds of the panels here did. But one third is a pretty big number to fall below the mark. I found myself wondering whether there was a lack of sufficient commitment and effort here; given some of the numbers, I also wondered whether some of the planners deliberately excluded people of one gender. I'm sure there are arguments for such a policy, but they should be made openly by the section, and approved openly by the AALS, with reasons given publicly, rather than just happening quietly; a millet system is a very different thing from shooting for representation on every panel, and AALS members are bound to have different views about whether that approach is appropriate. As a side note, and as an example of what is possible, a panel on "Female Perspectives in Commercial and Consumer Law" has two male speakers or moderators among its roster of participants. That's quite a contrast to the many sections that had no people of the opposite sex or only one.
I will note that a number of the panels that met my criteria for being non-representative appear to be put on by the AALS itself, not just a section. I'll also note that although it's always dangerous and perhaps wrong to label the politics of a section or of particular panelists, and although I hope and think that at this point wanting decent gender representation is a non-political norm in the legal academy, I was surprised at how many of the panels that failed my criteria of representativeness, including several that were all-male or almost all-male, could reasonably be said to involve liberals speaking on a "liberal" topic.
In any event, I think the data are more important and interesting than my own views on them. I leave others to make of the numbers what they will--in the interest, as always, of having more information and better discussion.
*I should note that I looked at the apparent gender identification of the speaker, ie. a faculty website referring to the individual as "he" or "she." I acknowledge that some individuals may self-identify as gender-fluid or other possibilities, but I did not find any examples of this and stuck with the gender binary for present (and limited) purposes.
SAVE THE DATE: 4/15/2016
On April 15, 2016, there will be an commemoration of our friend and founder Dan Markel at Harvard Law School and Harvard Hillel. Dean Martha Minow and Professor Noah Feldman will make remarks and we will gather to share stories, memories, and ideas. The event will be at 5:00pm. We hope to see many of you there. Some details follow:
Harvard Hillel and the Markel Family present
a Harvard Law School Conversation and Harvard Hillel Shabbat Dinner in Memory of Dan Markel
with Martha Minow, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School
and Noah Feldman, Felix Frankfurter Professor of Law, Harvard Law School
Friday, April 15th, 2016
The Conversation will be in the Milstein East room of the Wasserstein Building at Harvard Law School at 5pm.
Shabbat Dinner will be at Harvard Hillel's Rosovsky Hall at 7:45pm, following (optional) Sabbath evening services.
Refreshments will be available at Rosovsky Hall for those not attending religious services.
A shuttle bus will be available before the Sabbath for anyone who prefers such transportation to a walk
across Harvard Yard from the Harvard Law School to Harvard Hillel.
The topic of Dean Minow and Professor Feldman's conversation, and links for registration,
will be forthcoming in the new year.
This program commemorates Dan's distinguished career in legal scholarship
and his commitment to Jewish life at Harvard University.
For more information,
contact Rabbi Jonah C. Steinberg, Ph.D.
Executive Director and Harvard Chaplain, Harvard Hillel
Thursday, December 17, 2015
Following Up on Posner, Prison and Porn
I want to follow up on Professor Gilden's earlier post on Payton v. Cannon. It is an interesting case. The prison defended its confiscation of an inmate's order of sexually explicit magazines on the basis of a statement from a former warden. The Seventh Circuit affirmed the lower court ruling on the basis that the plaintiff had not proffered any evidence in support of his alleged breach of First Amendment rights. As Professor Gilden points out, Judge Posner, in dicta, calls for more empirical evidence.
Posner cites to articles and studies supporting the proposition that the consumption of pornography is harmless. However, there is research to the contrary. It may be that the academic literature and studies serve as the basis for regulation.
Subotnik on Copyright and T&E
In a post last week, I emphasized the need for a better grasp on what motivates intellectual property estates. Well, hot off the SSRN press is Eva Subotnik's excellent new article, Copyright and the Living Dead? Succession Law and the Postmortem Term, forthcoming in Harvard J. L. & Tech. Here's the abstract:
A number of commentators have recently objected to the existence of any postmortem period of copyright protection. Absent from the contemporary debate over this issue, however, is a systematic study of how longstanding succession law theories and doctrines, which govern the at-death transmission of other forms of property, bear on the justifications for, and scope of, postmortem copyrights. This Article takes up that task. It applies the justifications for, and incidents of, the generally robust principle of testamentary freedom to the particular case of copyrights.
The comparative analysis undertaken here suggests two principal lessons. First, succession law principles do provide discrete, though qualified, support for a postmortem term that, in addition to property theories more generally, should be considered in any rigorous debate over copyright duration. Second, more precision should be used in categorizing the costs associated with postmortem protection. In particular, in many instances the costs should be conceptualized as resulting from suboptimal stewardship by the living rather than from dead-hand control. This is not merely a matter of semantics. Distilling the most pressing costs is key to identifying the most appropriate means of addressing them, such as the shortening of the postmortem term, the reining in of dead-hand control where it does exist, and/or the instantiation of better stewardship practices among the living.
From my perspective, Subotnik's article makes at least two important contributions to the literature:
First, she brings copyright law more explicitly into conversation with trusts & estates theory and scholarship. The basic term of copyright is the author's life plus an additional 70 years, meaning that succession law issues are baked deeply into the structure and day-to-day practice of copyright. Yet although copyright scholars have looked to a variety of other fields in/outside the law (e.g. property law, economics, psychology, literary theory) to unravel some of the difficult questions at the core of copyright (e.g. author incentives, dissemination of creative works, and cultural "progress"), only a small body of scholarship has grappled with how wills, trusts, and intestacy laws can help mediate competing claims to valuable resources. Subotnik provides some useful new ways of using succession law to think about the very long postmortem copyright term, and her article more broadly reads as a blueprint for some fruitful conversations between and among copyright and T&E scholars.
Second, Subotnik's article begins the useful task of disaggregating the initial "life" term from the "plus 70." Often in debates around the lengthy copyright term, the life+70 term is treated as one continuous time period, in which the marginal incentive to an author of each additional year of exclusivity declines into essentially nothing. However, recognizing the discontinuities between the life and postmortem terms can shed light on questions of both author incentives and cultural stewardship. As Subotnik observes, succession laws generally recognize the strong desire for individuals to provide for their loved ones, the sentimental attachment to particular items, and an interest in preserving legacy. Structuring copyright around a postmortem term might accordingly provide a qualitatively different set of incentives than the financial incentives typically acknowledged in the case law. On the cultural stewardship issues, authors and their heirs are often differently situated with respect to downstream uses of copyrighted work--e.g. Sub0tnik mentions that Kurt Vonnegut gave permission to a biographer to publish portions of his private letters, only to be revoked by his children after his death. She accordingly usefully suggests that problems with a postmortem copyright term should not be thought of solely in terms of the author's deadhand control of the living but in terms of suboptimal stewardship by the living. Definitely worth a read!
I see around the web that it's time for year-end book roundups and recommendations, especially for those seeking last-minute gifts and such. Here are a few, not specifically in law and not necessarily published this year.
1) Now available in paperback, Zia Haider Rahman's novel In the Light of What We Know is superb. Booklist calls it an "expansive novel [that] sprawls over the past half-century and has as its primary settings the U.S., the UK, and South Asia. Its nameless narrator is an upper-class Englishman of Pakistani parentage, and its main character and secondary voice is the Bangladeshi-born Zafar, the narrator’s brilliant former Oxford classmate. Our narrator gets ensnared in the banking scandals of the early 2000s, and Zafar in the coterminous conflict in Afghanistan. This is, in part, a novel of international geopolitics going back to American involvement (or inaction) in the South Asian wars of 1971; in part, a novel of global finance; in referential detail, a novel of ideas; and, in addition, a novel of personal relationships in which issues of caste and class figure prominently." It's true that the book is substantially about politics and ethnic identity, but for me its many musings about social class, along with its perceptive depictions of failures of self-knowledge, are what make it worth reading. I'm not much of a reader of recent novels, but I thought this one was terrific. The author studied law and banking in the US and UK and has been both an investment banker and a corporate and international human rights lawyer; the book contains many lessons--not necessarily welcome ones. and they won't be learned anyway--for people of this ilk. James Wood's review, which convinced me to read the book, contains the following passages, which are worth reading in themselves and aptly describe why I liked the book and think it would be good for our usual audience and peer group here:
[W]hile “In the Light of What We Know” is full of knowledge, it is never merely knowing. It wears its knowledge heavily, as a burden, a crisis, an injury. This is because Rahman is interested in the possession of knowledge, and in the politics of that possession. Who gets to be called “educated,” and why? And what does knowledge, in a place like Yale or Oxford (or a city like New York or London), really consist of? Why should three or four years studying classics or economics, in élite and antique corridors, be a qualification for, say, running an N.G.O. in Kabul, or talking authoritatively about radical Islamism or human rights in Pakistan? Rahman is deeply suspicious of our claim to know things, and his long novel attempts to tell us, again and again, that we know much less than we think we do, that intellectual modesty in the face of mystery and complexity may be the surest wisdom. . . .
Even knowledge itself, the novel’s narrator suggests in the book’s final, and distinctly religious, peroration, functioned as a kind of metaphor for Zafar: it was his attempt to find a home. He acquired knowledge—so much of it, and so greedily—not to “ ‘better himself,’ as the expression goes,” but
in order to lay ground for his feet to stand upon; in order, that is, to go home, somewhere, and take root. I believe that he had failed in this mission and had come to see, as he himself said in so many words, that understanding is not what this life has given us, that answers can only beget questions, that honesty commands a declaration not of faith but of ignorance, and that the only mission available to us, one laid to our charge, if any hand was in it, is to let unfold the questions, to take to the river knowing not if it runs to the sea, and accept our place as servants of life.
2) Between some surgery and a fair quantity of pain medicine, last year and this one were somewhat lost, or at least misplaced, years for me. It is fortunate, then, that it was the year I finally "discovered" World War II as an abiding fascination and reading subject. Lord knows the world is almost as full of enthusiastic readers of WWII histories as it is enthusiastic writers of WWII histories. I am embarrassed that I joined their ranks relatively late in life. The gateway drug for me was Rick Atkinson's Liberation Trilogy, which covers the Allied war in Africa, Sicily and Italy, and Western Europe from the time of the Americans' entry into combat through V-E Day. Atkinson was a foreign and military correspondent for the Washington Post before turning to military history, and he is--unlike many newspaper reporters who have turned to book-length journalism--a superb writer, with an exceptional eye for both anecdotes and set pieces. I started for some reason with the third book in the trilogy, whose extended account of D-Day is brilliant. It's largely a clip-job, but an expertly done one, and its detailed endnotes constitute a perfect reading list for those who want to dive into the ocean of WWII history. After this, I dare say you will also want to read everything Max Hastings has ever written on the subject too, and then about the war in Russia, whose savagery and losses dwarfed that of the war in the West, and then about the naval war, and then, and then...Not an entirely fashionable historical subject, but never an outdated one; and given that our legal culture continues to sanctify FDR, reading about the war, about Tehran and Yalta, and about such dreadful figures as Joseph Davies--may his monuments be renamed--provides a nice partial antidote to that.
3) Peter Olsthoorn, Honor in Political and Moral Philosophy. Almost a law book! Certainly relevant for a good deal of current constitutional law. The publisher's description says: "In this history of the development of ideas of honor in Western philosophy, Peter Olsthoorn examines what honor is, how its meaning has changed, and whether it can still be of use. . . . Today, outside of the military and some other pockets of resistance, the notion of honor has become seriously out of date, while the term itself has almost disappeared from its moral language. . . . Wide-ranging and accessible, the book explores the role of honor in not only philosophy but also literature and war to make the case that honor can still play an important role in contemporary life." Bookend this one with Jeremy Waldron's recent Dignity, Rank, and Rights and Joanne Freeman's classic history Affairs of Honor: National Politics in the New Republic.
4) Like everything he has written since Cryptonomicon and Anathem, Neal Stephenson's Seveneves is pretty damn imperfect. But the first two thirds, describing the end of the world and the loss of most of humanity, are tremendous fun.
5) I'm writing about class and the legal academy right now (if "writing" is defined loosely and with infinite mercy), and here are some good books, some recent and starting with several by law professors, that have added usefully to my small store of knowledge on the subject: Lani Guinier's The Tyranny of the Meritocracy: Democratizing Higher Education in America; Sheryll Cashin's Place, Not Race: A New Vision of Opportunity in America; Joan C. Williams, Reshaping the Work-Family Debate: Why Men and Class Matter; Daria Roithmayr, Reproducing Racism: How Everyday Choices Lock In White Advantage; Mike Savage, Social Class in the 21st Century; and a superb older book, Jerome Karabel's The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton.
6) I'm reading Richard Posner's new book Divergent Paths: The Academy and the Judiciary right now for review purposes, so I won't say too much about it, except the following: it's a natural gift choice for law students, professors, clerks, etc.; it contains the usual full store of enjoyable Posnerian observations and apothegms; and there is a good book, maybe several, contained within the book, although I'm not sure that judgment applies to the book itself.
7) If you have time to kill and already invested some of your weeks and months in the first three volumes, I can recommend the fourth and final volume of Isaiah Berlin's letters, Affirming: Letters 1975-1997. The best volumes, sheerly from a reader's perspective, are the second and third, I think. But for those who are interested in Berlin and value pluralism--and I think pluralism is a subject that is curiously missing from many current discussions of law and religion in the United States, stuck as they are right now on the liberty-equality debate, although it is coming back as a topic--this volume provides a lot of fairly detailed discussion of that subject, as Berlin, in the autumn of his life, answers questions from correspondents, defends and clarifies earlier statements, and, while rarely confessing error, notes the questions his position can't answer.
8) Thomas Vinciguerra's Cast of Characters: Wolcott Gibbs, E.B. White, James Thurber, and the Golden Age of The New Yorker is the newest and lightest of these books and my last recommendation. What can I say? The New Yorker was an endless stream of enjoyable figures, fights, stories, and legends, and they are very well told here. If you haven't already read a stream of books about The New Yorker in its heyday, this is a good place to start; if you have, there's more than enough here that's new to justify reading this one. I'm struck right now, in the middle of reading it, by the loss of two wonderful genres of American literature, of which this book provides many good examples: the letter and the telegram. (In a letter from Ralph Ingersoll to Harold Ross, Ingersoll writes, "The river looks very tempting this afternoon. I suggest--not entirely--facetiously--that you go over and jump in it.") People don't waste their best wit on emails, and anyway they are too afraid of being misunderstood in that affectless medium to risk it. Between the examples given in the book and the everyday example of online media, whether FB or Twitter or the Gawker family, and at the risk of committing the Golden Age fallacy, I am filled with the impression that somewhere along the way, America mislaid its rapiers and stilettos in the dark and picked up bludgeons instead.
Wednesday, December 16, 2015
Is the Solicitor General Playing a Shell Game With the Supreme Court Over Johnson Retroactivity?
I've already written a pair of posts about the very significant current conflict among the circuits over the retroactive effect of the Supreme Court's June 2015 in Johnson v. United States, and the extent to which the Court may need to use an application for extraordinary relief (perhaps including an "original" writ of habeas corpus) to resolve that split--given (1) the unavailability of certiorari to review denials of second-or-successive habeas petitions; (2) government's agreement that Johnson may be retroactively enforced; and (3) the one-year statute of limitations, which likely requires all Johnson-based claims to be filed by June 26, 2016. And in my most recent post, I noted that the Solicitor General had already recommended denial of review in one case by reference to three pending "original" applications--perhaps hinting that it would support the Court's using one or all of those cases as a vehicle for settling the circuit split (and clarifying that Johnson is indeed retroactive).
In the past week, the government has effectively mooted one of the three original cases (by completely reversing a position it had taken earlier in different litigation involving the same prisoner), and has filed briefs opposing extraordinary relief in the other two. As I explain in the post that follows, these actions (and the arguments in the briefs) give rise at least to the appearance that, even though the Solicitor General agrees that Johnson is retroactive on the merits and should therefore be enforceable by federal prisoners through both original and second-or-successive applications for post-conviction relief, the government is perfectly content to run out the clock--and to not support efforts to have the Supreme Court so hold before next June's deadline.
I. Mooting Butler
Of the pending "original" applications, one of the most compelling was that filed by Juan Deshannon Butler, a prisoner in the Tenth Circuit (which had held that, whether or not Johnson is retroactive, it had not yet been "made retroactive" by the Supreme Court). Butler's case was an easy one because there was no question that, but for ACCA's residual clause, he could only have served a maximum of ten years in prison (and he'd already served more). In other words, if Johnson applied to Butler's case, he was entitled to an order of immediate release.
But Butler had another habeas petition pending in the U.S. District Court for the District of Arizona, arguing that one of his prior convictions didn't qualify under ACCA as a statutory matter because, under the Supreme Court's 2009 decision in Chambers, not all "escape" offenses constitute "violent felonies" under ACCA. The government had previously opposed this claim--and even obtained an order from the district court denying it on the merits. Yet, curiously, once Butler had filed his original habeas petition, the government filed a new brief withdrawing its opposition, and suggesting that Butler was entitled to relief on the Chambers claim. As a result, last Wednesday, the district court ordered Butler's release--which led the parties to voluntarily dismiss his original habeas application before the Supreme Court. It's always nice for the government to concede error (if error there was), but the timing of the complete-180 on Butler's Chambers claim seems more than a little curious...
II. Opposing Triplett
Then, on Monday, the government filed its response to the petition for an original writ of mandamus in Triplett, opposing such relief because, among other things, it is not entirely clear whether Johnson will make a difference in Triplett's case--that is, whether, but for the residual clause, he would not have received the same sentence. That argument isn't that surprising; in effect, the government is saying, Triplett isn't a great vehicle for resolving the Johnson question because it might not actually matter in his case.
But the government's opposition also suggested that mandamus would not be appropriate in any Johnson case because "the courts of appeals are 'openly divided' on the question whether this Court has 'made' Johnson retroactive to cases on collateral review. The absence of a definitive ruling from this Court on that question, coupled with the division of opinion on the issue in the courts of appeals, shows that petitioner’s right to relief, if any, is not 'clear and indisputable.'" Thus, even though the government agrees that Johnson is retroactive (and has been "made retroactive" by prior Supreme Court decisions), its opposition in Triplett rests on the argument that a writ of mandamus won't ever be appropriate where the lower courts are divided--even if the government is on the same side as the petitioner in arguing that one side of that split is clearly erroneous.
And although the government noted the serious timing issue raised by AEDPA, it suggested that such a concern could not "make it appropriate to conduct review through mandamus where the conditions for issuing the writ are not otherwise satisfied." Instead, the government suggested, the Court should wait for an ordinary petition for certiorari (which could conceivably come through the Fifth Circuit, which has held that Johnson is not even substantive--let alone that it has not been "made retroactive"), or rely upon the pending original habeas cases, including Sharp.
III. Opposing Sharp
Then, today, the Solicitor General filed his response to the original habeas petition in Sharp--and argued against it. In particular, the SG's brief rests almost entirely on the prospect of "ordinary" certiorari review via a district court's denial of a first 2255 motion in a case out of the Fifth Circuit, and notes that a petition for certiorari before judgment has now been filed (although still not docketed) in one such case--Harrimon v. United States. Thus, the SG concludes, "The continued availability of certiorari review in that context undercuts petitioner’s suggestion . . . that exceptional circumstances exist that warrant the exercise of habeas jurisdiction."
There are two obvious problems with this line of reasoning: First, the government is hardly conceding that it will support certiorari in Harrimon (or a similar case), especially the extraordinary remedy of certiorari before judgment. After all, in its oppositions in both Triplett and Sharp, it argued that AEDPA's one-year statute of limitations is not a justification for extraordinary relief not supported by other factors; why would certiorari before judgment be any different?
Second, even if the government were eventually to support certiorari in a case out of the Fifth Circuit (perhaps after judgment), time is increasingly of the essence. Recall from the recent spat over Texas's request for an extension in Texas v. United States that the Solicitor General took the view that, for a case to be briefed and argued in the "ordinary course" during the current Term, it would need to be considered by the Justices no later than their January 15 Conference. And yet, the petition in Harrimon hasn't even been docketed yet--let alone scheduled such that the government's brief in response (assuming one is called for) would be filed in time to be distributed for the January 15 Conference. (I'm not optimistic.) Nor does there appear to be any other ordinary certiorari petition from the Fifth Circuit in which full briefing will be complete in time for the January 15 Conference.
Thus, the clock is running out for the Supreme Court to issue a decision that will clarify that Johnson is retroactive in time for virtually all of the prisoners who would benefit from such a ruling to take advantage of it. As we explained in our amicus brief in Butler, there's no jurisdictional obstacle to the issuance of relief in an original habeas case like Sharp, and there's no reason why an extraordinary writ should be denied just because there's a remote, entirely speculative possibility that an ordinary remedy "might" be available in time.
Thus, the Supreme Court should ignore the Solicitor General in Sharp, and set the matter for plenary briefing and argument. Otherwise, the Solicitor General just might succeed in running out the clock on thousands of federal prisoners--whether or not he means to.
Commercial Law Curriculum Redo
The following bleg comes from Wayne Barnes (Texas A&M), David Epstein (Richmond), Paula Franzese (Seton Hall), and Kevin Tu (New Mexico), on their plan to redo the place of Commercial Law in the curriculum. Address responses to any of them.
More and more law schools are no longer regularly offering three-credit courses in (1) payment systems, (2) secured transactions, and/or (3) sales. In part because these schools do not have faculty members who want to teach the courses. And, in part because students do not sign up for commercial law courses. Even if the commercial law courses are taught from 11-12 on Tuesdays and Thursdays.
And, the students are, of course, right. Most students do not need 42 class hours of payment systems or 42 hours of secured transactions or 42 hours more of sales. However, lawyers in a general civil practice do need to have familiarity with core commercial law concepts in order to master the specific statutory provisions that govern the transaction or litigation matter that they are working on. And, before that, there is a need to pass the state bar exam.
We propose that those needs can best be meet in a two credit course covering just the core commercial law concepts and are working on course materials for such a course. We welcome your reasoned arguments against this proposal. Even more welcome would be your suggestions as to how 28 class hours can most effectively be used by students learning core commercial concepts.
Look forward to seeing you at the AALS and/or receiving your emails.
Call for Papers: Admin Law New Scholarship Roundtable
Michigan State University College of Law is pleased to host the inaugural Administrative Law New Scholarship Roundtable on June 23-24, 2016, in East Lansing, Michigan.
The Roundtable is the creation of four schools—Michigan State University, University of Michigan, Ohio State University, and University of Wisconsin—each of which has committed to hosting the Roundtable during one of the next four years.
The Roundtable will bring together a mix of emerging and established scholars to present new work on Administrative Law. Participants will present their papers in small panel sessions designed to foster rich discussions with experts in the field and contribute to a vibrant Administrative Law community. Each panel will be led by a distinguished scholar who will facilitate the discussion. Confirmed commentators currently include Michael Asimow (Stanford), Daniel Farber (Berkeley), Kristin Hickman (Minnesota), Gillian Metzger (Columbia), Peter Shane (Ohio State), Glen Staszewski (Michigan State), and Kathryn Watts (Washington). In addition to the paper panels, a lunch program will address current issues in Administrative Law and institutional resources for empirical research projects.
Scholars wishing to participate in the Roundtable and present a paper must submit a one-to-two-page abstract by Friday, March 18, 2016. Applicants should include their title, institutional affiliation, and number of years teaching in the academy. Preference will be given to those who have been teaching nine years or less in a tenure-track position. Abstracts should be sent to Michael Sant’Ambrogio at [email protected]. You may also contact Michael Sant’Ambrogio with any questions you may have about the Roundtable.
The Roundtable will provide meals for all participants. Participants must cover their own travel and lodging costs. We will reserve a block of reasonably priced rooms at a local hotel in advance of the Roundtable.
Administrative Law New Scholarship Roundtable Host Committee
University of Michigan
Michigan State University
University of Wisconsin
Ohio State University
Michigan State University
Ohio State University
The introductory episode of Serial provides our first in-depth look at Bergdahl’s side of the story. As it turns out, over the last year, Bergdahl has been giving interviews to screenwriter Mark Boal. Boal then teamed up with the Serial crew, possibly to generate interest in the film that will be based on the screenplay.
The very basic story is that Bergdahl was an infantry soldier assigned along with his company to a forward operating base in Afghanistan. Smaller units from his company would rotate out to observation posts for about a week at a time, looking for possible Taliban movements and for people who might be placing improvised explosive devices (IED). The observation posts were small, austere, and exposed positions. While on one of these rotations, Bergdahl snuck out in the middle of the night and was captured a short time later by hostile forces.
In Episode 1, we learn why Bergdahl left the observation post (at least, according to Bergdahl). His side of the story is that he left in order to call attention to leadership failures and the plight of his fellow service members.
According to his plan, he would sneak out of the observation post. Once he was discovered missing, the military would issue a “DUSTWUN,” or “duty status whereabouts unknown,” and this would be national news. In the meantime, he would walk or run across 20 miles of hostile territory to the forward operating base and when he showed up at the gates, everyone would be so astounded by his feat that he would get an audience with senior ranking generals and even then get the national microphone. He would use this microphone to point out these leadership failures. Society would ultimately condone his actions and the military would probably drop any criminal charges against him.
That is fairly irrational reasoning and probably indicates that he had a serious mental health issue. I expect that some significant part of the series will focus on that and how mental health issues are handled in the military so in this post, I'll give some of the legal framework for a couple of issues that are likely to pop up over the next few weeks. First, does Bergdahl have a failure of burden of proof defense for the desertion charge based upon what he claims was his specific intent for leaving? Can he introduce evidence of his mental health problem to support that defense? Second, assuming the rest of the military’s mental responsibility test was satisfied, would it matter that he thought he was doing something morally right even though he knew it violated the Uniform Code of Military Justice?
First, Bergdahl is charged with desertion with the intent to shirk important service or avoid hazardous duty, which carries a potential five-year sentence. (He is also charged with misbehavior before the enemy, a potential life offense.) The desertion charge is a specific intent offense.
Bergdahl’s argument would be that he did not have the specified intent when he left. He didn’t leave because he wanted to shirk important service or avoid hazardous duty; rather, he left with this other (irrational) intent. This would be similar to a defendant arguing in a burglary case that he did not enter a house with the intent to commit a felony therein; rather, he entered the house with the intent to pass out after a night of drinking. He might be guilty of unlawful entry but not burglary. Bergdahl would argue that he might be guilty of simple AWOL (a general intent offense), but not desertion.
The good news for Bergdahl is that he can introduce evidence of his mental health problems to help explain why he did not form the required intent. Some jurisdictions ban mental health evidence except when used to prove the lack of mental responsibility defense; some limit this evidence to only murder cases; and some allow it for any relevant purpose, which would include explaining what the accused was thinking. The military falls into that last category.
The bad news for Bergdahl is that in a poorly-reasoned opinion, the Court of Appeals for the Armed Forces (the highest military appellate court) turned the intent element of this desertion offense into an attendant circumstance. See United States v. Huet-Vaughn, 43 M.J. 105 (C.A.A.F. 1995). If you are up for reading this case, it has some comical exchanges between the defense counsel and the military judge that point out some of the absurdities of holding. After this decision, the best way to read the elements of this desertion offense is: if you leave your post and by doing so, you shirk important service or avoid hazardous duty, then you can be found guilty. So Bergdahl can, and if this case continues on its current path, likely will be found guilty on the desertion charge.
On to the second issue. Does it matter that Bergdahl knew that what he was doing was illegal but believed that what he was doing was morally right? If he wanted to present evidence that he lacked mental responsibility for the offenses, could he? The answer is, “Probably.”
The military’s lack of mental responsibility test is the same as the federal test: as a result of a severe mental disease or defect, the accused was unable to appreciate the nature and quality or the wrongfulness of his or her acts. The critical word is “appreciate.” (For criminal law professors who use the Dressler casebook, this is State v. Wilson.)
The law in the military is a bit uncertain but it looks like “appreciate” means more than just knowing that the action are illegal. In United States v. Martin, 56 M.J. 97 (C.A.A.F. 2001), the court stated that the word “appreciate” requires a higher cognitive awareness, something more than knowing the actions are unlawful, something like a moral understanding of the wrongfulness of the behavior. If the accused honestly believes that society will ultimately approve of his actions, then he may not appreciate the wrongfulness of his acts.
If Bergdahl continues to trial and, importantly, if he decides to pursue this defense, he should be allowed to present evidence that he did not appreciate that his actions were wrongful (because he thought society would ultimately thank him for bringing these perceived injustices to light) even though he knew that his actions were illegal.
So that is a lot of crystal ball gazing from one episode! More after the next episode.
Fantasy Football Law (and Playoffs)!
I want to highlight a development in anti-gambling laws, and celebrate the beginning of fantasy football playoffs. I will do the latter by offering some advice.
The Attorney General of New York has issued an opinion that playing fantasy football constitutes gambling. Consequently, two leading sites, FanDuel and DraftKings, are prohibited from soliciting in the State. A state legislator has already put forth a bill to lift the ban. The case is now making it's way through the New York courts.
The interesting part is that the ban is strictly aimed at sites that explicitly offer cash for playing. As a disclaimer, I have never played on either site, and my knowledge is based on the general advertising by these companies. The prohibition does not appear to extend to free sites like Yahoo!, NFL.com, and CBSSports, among others, who host fantasy football leagues.
I play fantasy football myself for fun. I have consistently fielded playoff teams in my leagues. I also appeared in three championships in a row in one, winning twice. Here are some tips for building a championship team:
- Seek a competitive advantage - every year there is a position with a dearth of talent. It may be at lead wide receiver, quarterback, or, last year, tight end. Take one of these in the first two rounds.
- Don't over rely on the experts when it comes to your draft - take who you want. Past production, which pre-season rankings are based on, is not indicative of future performance.
- Do over rely on the experts in choosing your lineup - they work full time analyzing match ups.
- I prefer young players even if they have little experience. Young players get hurt less frequently. This is a particular advantage in large leagues where they may be little opportunity to augment your team.
Tuesday, December 15, 2015
Of Mascots and Men
In the last few weeks my university has considered changing our mascot—“Hey Reb!”—to something less offensive. “Hey Reb!” is a modified version of an older mascot that was pretty clearly a Confederate soldier. Now his defining characteristic is an impossibly large handlebar moustache—but there are certainly some vestiges of the Confederacy left in him. I grew up in Hanover, New Hampshire, and we had season tickets to Dartmouth hockey games around the time that the team morphed from the “Indians” into the “Big Green.” My father, who had a pretty conservative outlook on the world, found the irony delicious when, a few years later, we lost the national semifinals to the North Dakota “Fighting Sioux." (North Dakota became the “Fighting Hawks” in 2012).
I’m a bit more progressive than my Dad, and I’m generally on board with the effort to bring our mascots up to speed with modern sensibilities. They are, after all, mascots. I’m less sure, however, about more recent demands to rename buildings and institutions that honor individual people. Yale’s John C. Calhoun College and Princeton’s Woodrow Wilson School of Public and International Affairs are probably the most prominent focal points in this controversy. I have to admit, I always found it a little strange that Yale decided to name a college after the South Carolina statesman who mounted such a vigorous defense of slavery and slave culture—but I’m not sure that means I’m down with the movement to change the name. I’m even less sure about Woodrow Wilson.
When I was in college I had a friend who used to say that one of the surest signs your country is in trouble is when your leader starts making public appearances in military uniform. Military hats were even worse, according to this guy, and the bigger the hat, the bigger the trouble. I’ve recently wondered what it means if your leader starts making appearances shirtless—but that’s another topic. I’ve often thought the same sort of thing about countries that start renaming famous landmarks or institutions. It smacks a little bit too much of revisionist history for my liking.
I tend to think it is worth being reminded that, not that long ago, Calhoun (who was, to be fair, an alumnus that served as the nation’s Vice President) was one of just a few Yale “worthies” immortalized in statue. The college now bears a plaque recounting his role in secession and the defense of slavery, and those who read it are made to confront the fact that, less than a century ago someone could be both a virulent racist and slave owner and be considered “an eminent Yale man.” There’s something valuable, I think, in keeping that historical reality in public view. Many of the same sorts of things could be said about Woodrow Wilson—he was undoubtedly a racist, and a pretty good case can be made for his general incompetence as a statesman.
Randy Newman once said of Lester Maddox, “He may be a fool, but he’s our fool.” (Trump, anyone?) I think the lesson applies here, too. I understand the idea that we might consolidate a change in our social values by getting rid of tributes to people and ideas that we no longer find admirable… but saying that we don’t believe in something now doesn’t change the fact that we once did—and that fact itself might be worth remembering.
A Modest Proposal for Preventing the Marijuana of Legalizing States from Being a Burden to Prohibitionist States
I live in a state (Idaho) that has not legalized marijuana. In fact, the popular belief is that Idaho will be among the last states to legalize the drug, if it ever does. But Idaho borders Washington and Oregon, which have fully legalized marijuana. As it currently stands, Idaho only suffers from this arrangement. As marijuana from Washington and Oregon finds its way into Idaho, Idaho suffers from increased car accidents, hospital visits, negative long-term health effects, drug-trafficking arrests, incarceration numbers and costs, lost productivity in the workplace and, in general, increased amounts of cannabis flowing into Idaho. (Chad admits all of this. Check it out here.) With these negative externalities come no positive benefits — no marijuana tourism, no tax revenue, no new business. The scales have tipped much too far. Recently, I’ve been thinking about whether there are ways Idaho can rebalance the scales between it and its legalizing neighbors.
As Chad and I explained last week in our blog post, some scholars have advocated that a prohibitionist state (like Idaho) may enact criminal laws prohibiting its own citizens from engaging in the illicit conduct, even in states where such conduct is licit. While potentially constitutional, this proposal is too draconian for my tastes. If enacted, it would prohibit Californians from taking a vacation in Atlantic City and gambling. It would prohibit New Yorkers from visiting legal brothels in Nevada. In an era of over-incarceration, teeming prisons, and shrinking budgets, creating additional crimes — for engaging in conduct that is legal where undertaken — seems the wrong way to go. I’m looking for a less “harsh” response than enacting criminal statutes.
As Chad explains to you this week, Idaho cannot reset the balance — that if Idaho attempts to fight back against the externalities created by Washington and Oregon, Idaho will be acting unconstitutionally and will, in fact, be opening the door to the very “rivalries and reprisals” that the Constitution aims to prohibit. Baldwin, 294 U.S. at 522. But how are we to tell which state is responsible for the rivalries and reprisals? Couldn’t it actually be Washington (and Oregon) creating the rivalries and reprisals by legalizing marijuana and then not adequately ensuring the drug remains within Washington’s (and Oregon’s) borders? How can Idaho be required to sit idly by, suffering all the harm, and not deploying any defenses? I’m aiming “higher” than doing nothing.
So, I advocate a “mellow” middle position. Prohibitionist states may enact statutes, modeled on extant dram shop laws, to impose civil liability on marijuana sellers when their sales to instate citizens cause harm in the Home State. Dram shop laws impose liability on bars, restaurants, and liquor stores arising out of the sale of alcohol to already intoxicated persons or minors who subsequently injure innocent third parties. This sort of law sweeps less broadly than the criminal law explored above by imposing liability on the out-of-state business, and only when there is cognizable instate harm. On the other hand, this sort of law is certainly more inclusive than the status quo of doing nothing and wishing the harms away. With these revamped dram shop laws — appropriately called “gram shop laws” (thanks goes to Michael E. Brofin, who, as a student, coined this term in his Comment, “Gram Shop” Liability: Holding Drug Dealers Civilly Liable for Injuries to Third Parties and Underage Purchasers, 1994 U.Chi. Legal. F. 345) — non-legalizing states can modify a familiar tool already in their arsenal (at least with respect to alcohol) to help stem the flow of externalities across their borders and force dispensaries to internalize their harms.
Chad says that my proposal runs afoul of the “most dormant aspect of the dormant Commerce Clause” — the prohibition against extraterritorial regulation. Epel, 793 F.3d at 1170. Even assuming that the extraterritorial prohibition hasn’t slipped from dormant into a full-blown coma or, as the Tenth Circuit in Epel has said, death, there are several reasons to believe that Idaho may constitutionally enact such legislation. I will briefly mention them here, and will, of course, explore each of them more robustly in my paper. (Please let me know if you have other thoughts. I am still in the research phase of my paper.)
First, dram shop laws are currently applied against out-of-state sellers of liquor. E.g., Bernhard v. Harrah’s Club, 546 P.2d 719 (Cal. 1976). These laws have not been struck down as unconstitutional. If dram shop laws may be applied extraterritorially, it stands to reason that gram shop laws may be as well.
Second, I disagree with the assumption that gram shop laws regulate extraterritorially. They do not. If Idaho enacts a gram shop law, Washington and Oregon remain free to legalize pot; Washington and Oregon dispensaries remain free to sell pot — and may even sell to Idahoans. Washington and Oregon dispensaries merely need to be ready to pay tort judgments if and when those sales lead to cognizable harm to innocent third parties in Idaho. If the dispensaries change their business practice (and stop selling to Idahoans), that is an economic reaction to Idaho’s regulation, but it is not Idaho’s regulation itself requiring that result, (just as car manufacturers may change their manufacturing processes to account for California’s more stringent emissions standards). Washington and Oregon dispensaries remain free to operate and to sell to whomever they wish.
Third, assuming that Idaho is (contrary to what I believe) regulating extraterritorially, what else could states like Idaho to do? Unlike our national borders, where the Fourth Amendment permits customs checks based on no suspicion whatsoever, states cannot set up checkpoints at their borders with the primary purpose of searching for drugs. An expansive reading of the extraterritoriality principle in the dormant Commerce Clause leaves non-legalizing states with two unpalatable choices in the short term: (1) remain anti-pot and suffer the harms from their neighbors or (2) become a legalizing state so that it too may benefit from pot.
In sum, Idaho should be allowed to remain anti-pot and should be allowed to combat the harms from Washington and Oregon. The Gram Shop Act is a measured response to the increasing spillover from legalizing states into non-legalizing ones.
My Harsh Response to Jessica’s Mellow Proposal
As Jessica and I previously explained, the Tenth Circuit, in Epel, recognized that the Constitution does not divest Colorado of the power to regulate Nebraska’s coal-driven power industry. As an environmentalist, Colorado’s initiative is near and dear to my heart. But as a constitutionalist, I believe that the court’s logic threatens to violate what is, for me, the first tenet of jurisprudence: Don’t hurt the people you are trying to help. If Colorado can impose its progressive environmental policies on Nebraska, Nebraska can impose its own will on Coloradans.
The Harvard Law Review, in 2013, endorsed the repudiation the extraterritoriality principle on the ground that it impedes Brandesian experimentation: “What is clear is that the mechanical application of a territorial principle inhibits state experimentation with laws that attempt to solve their social and economic problems.” 126 HARV. L. REV. at 2442. In fact, the dormant Commerce Clause’s extraterritoriality doctrine is one of the most important constitutional buttresses for such experimentation.
While Colorado celebrated its new-found power to impose its legislative judgments on Nebraskans, the festivities might be short lived. Colorado inexplicably failed to foresee the impact the extraterritorial doctrine’s apparent demise will have on its own marijuana-legalization experiment. Sauce for the goose is, after all, sauce for the gander. Nebraska posits that Colorado’s commercial pot market allows marijuana to “flow into [Nebraska], undermining its own marijuana ban, draining its treasury, and placing stress on its criminal justice system.” Complaint at 3–4. If that is so — and evidence suggests that it is — what prevents Nebraska from projecting its own laws across the border to regulate Colorado marijuana transactions that “affect a substantial number of [Nebraska] residents”? That’s what Jessica thinks should happen.
If Colorado can regulate emissions from Nebraska’s coal-fired power plants because they harm Coloradans, why can’t Nebraska directly regulate Colorado marijuana sales? Can Nebraska bar Colorado vendors from selling pot to Nebraskans? Can — as Jessica argues — Nebraska apply a “gram-shop law” to Colorado marijuana vendors who sell pot to impaired drivers who cause accidents in Nebraska? Can Nebraska apply its law to Colorado’s border-town vendors whose primary source of revenue are Nebraskans? Can Colorado enforce laws protecting its nascent pot industry from interference by Nebraska or other prohibitionist States?
Admittedly, the Supreme Court has, “revamped the doctrine” on occasion since the DCC’s original formulation, 135 S. Ct. at 1808, by Daniel Webster and Chief Justice John Marshall in 1824. But few constitutional doctrines are truer to the Charter’s original intent. The doctrine in general — and its extraterritoriality principle in particular — literally embodies the animating principle behind both the Commerce Clause and the Constitution itself. The States’ unfettered ability to mettle in their neighbors’ commercial activities “during the Articles of Confederation led to ongoing disputes among the States, and the prospect of a descent toward even more intense commercial animosity was one of the principal arguments in favor of the Constitution.” Dennis, 498 U.S. at 453.
As Justice Cardozo observed in the first articulation of the DCC’s extraterritoriality doctrine, if the States were free to sabotage their neighbors’ economic ventures by protecting their domestic industries from out-of-state competitors or “projecting legislation into [neighboring states],” then “the door will be opened to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation.” Baldwin, 294 U.S. at 522. For this reason, the Court has recognized that “when a state statute [either] directly regulates or discriminates against interstate commerce we have generally struck down the statute without further inquiry.” Brown-Forman, 476 U.S. at 579. The Tenth Circuit’s recent ruling contends that one-half of this proposition is no longer binding.
The looming standoffs between neighboring pot-friendly and prohibitionist states demonstrates that Justice Cardozo’s axiom applies equally to non-protectionist attempts by States to regulate commercial transactions beyond their borders. As the Fourth Circuit noted, rejecting arguments that the DCC’s application should be limited to protectionist laws, “extraterritorial laws disrupt our national economic union just as surely as [protectionist] ones” because “one extraterritorial burden can easily lead to another. When one state reaches into another state’s affairs or blocks its goods, ‘the door has been opened to rivalries and reprisals that were meant to be averted by subjecting commerce between the states to the power of the nation.’” Carolina Trucks, 492 F.3d at 490. The present feud between Nebraska and Colorado over each’s respective marijuana and energy policies demonstrates the Fourth Circuit’s prescience.
According to the Tenth Circuit, Colorado now enjoys the power to “reach into [Nebraska’s] affairs” and regulate Nebraskan utility transactions — against Nebraska’s wishes and in contravention of Nebraska’s own chosen policies. But Colorado’s intervention in Nebraska’s internal affairs may trigger retaliation: “one extraterritorial burden can easily lead to another.” Jessica’s theory fails to account for this.
Admittedly, Nebraska’s coal burning and Colorado’s marijuana market produce negative externalities that spillover into neighboring states. But resolution of such transboundary disputes lies exclusively in federal hands. “When a State enters the Union it surrenders certain sovereign prerogatives” — including the power to reach beyond its borders to quell transboundary nuisances. The Constitution dictates that “these sovereign prerogatives are now lodged in the Federal Government.” Mass. v. EPA, 549 U.S. at 519. The looming extraterritorial marijuana contests will prove the wisdom of this choice.
Advice for Students Seeking Judicial Internships
Some of you may be seeking internships for next summer, or have students asking for your advice. I think a judicial internship (next to a research assistantship for a professor) is a great opportunity. It emphasize research and writing skills, which employers value. Not all internships are created equal. You may have one that amounts to photocopying and document review with little substantive work.
If you choose well, you may find yourself with a mentor and receive strong feedback on your writing. The writing sample as well will be helpful for on campus interviews. Here are some points:
- For those interested in a judicial clerkship, this may serve as a tryout. If not for your judge, another on the court. There are those that prefer to hire their interns. You may be able to find this out by talking to current and former clerks after receiving an offer.
- Very important - will you be working directly with the judge or for their clerks?
- Apply widely. If you want a judicial internship there will be an opportunity somewhere. So, apply at all levels: state, federal, administrative, etc.
- Do not be afraid to follow up. Sometimes your application may get lost amid many others. A polite request for an update on your status may bring yours to the forefront.
Please feel free to ask specific questions in the comments.
Monday, December 14, 2015
And just like that, a Bergdahl update
Breaking news in Bergdahl -- the convening authority referred his case to a general court-martial. A general court-martial is the highest level of court-martial and can adjudge the full penalties authorized by the punitive statutes. Here is the Washington Post report.
According to Bergdahl's lawyer, the preliminary hearing officer recommended that the convening authority refer the case to a special court martial, which is roughly equivalent to a misdemeanor court. One of the unusual features of the military's preliminary hearing is that the hearing officer's findings and recommendations are not binding on the convening authority. The convening authority can take it or leave it, and here, the convening authority left it. This feature has been criticized but was not reformed in the latest revisions of the preliminary hearing -- partly because members of Congress thought hearing officers were often biased against victims in sexual assault cases and Congress did not want their "mistakes" to be binding.
Serial, Season 2
Serial is back, this season covering the story of former-POW/current court-martial defendant Bowe Bergdahl. My colleague Eric Carpenter will blog the season here, posting weekly commentaries on each episode. Eric served in the Army for twenty years, both in JAG and as a combat officer, and he teaches military justice, so he can write about both the military and legal angles to the story.
Serial Season 2
Thank you to Howard for giving me another guest blogger opportunity, this time to comment on the current season of Serial. This season, Sarah Koenig and crew have turned their attention to the Bergdahl case. For those hoping for another murder mystery, this season won’t be that. Rather, it appears that Koenig’s goal is to explain why Bergdahl left his post and what the conditions of his captivity were like. In the first season, the ultimate question was factual: did Adnan commit the murder? In this season, I expect the ultimate question will be normative: should Bergdahl be prosecuted?
This will be the first time we have heard Bergdahl's side of the story. We don’t have much information about that because the government has issued a protective order on the investigative report that contains these details. If the government had just released that report, as I discussed here, there probably wouldn’t be much story left for Serial to tell and I’m not sure the Serial team would have even picked up the case. Because of that decision to close the report, the government now gets to deal with this publicity, and I am not sure that it will be good.
One reason why I am excited that Serial picked up the story is that it will focus some public attention on the military justice system. I teach a class on military justice where we spend a lot of the semester being critical of certain aspects of the system. My punch line for the course, though, is that the military justice system is probably the fairest system in the country. Sure, there are some strange rules that might seem unfair, but the system does something great – it fully funds its public defenders, and every accused gets one.
A typical county public defender might carry 200 cases at a time. A military public defender generally has ten to twenty. If I got in trouble, I would rather be in a system with a couple of odd rules but where my defense counsel will fully litigate the issues in my case, than in a system with standard rules but where my defense counsel doesn’t have the resources to investigate or litigate the government’s failure to follow those rules.
Another reason that I am excited that Serial picked up the case is that, if the rest of the series is anything like the first episode, Koenig will be telling the story of our service members who are serving in austere and dangerous environments. I don’t think this story is told enough.
During my deployment, I spent most of my time at Bagram. This was a sprawling compound and I was a full-on FOBBIT. I lived in a tent, had internet access, and used a Porta Potty. As Koenig explained in the first episode, the soldiers at these small observation posts (the type that Bergdahl walked away from) didn’t have those luxuries. During holiday season, they weren’t stirring cookie dough. I spent about a week total at different forward operating bases (the larger base that Bergdahl was trying to reach on his walk). Even these aren’t very big. Most of them are old, small adobe compounds without a lot of security and are isolated in the middle of hostile territory. These are dangerous places.
Over the next few weeks, I hope to offer some insight on the military justice system. I’ll try to spot those questions that listeners might have about the system (particularly listeners who are law professors) but which the show doesn’t answer. And where I can, I hope to offer some insights based on my own experiences in the military.
What the NFL Can Learn from Administrative Law
Problems with off field behavior have long plagued the National Football League (NFL). A study of player arrests since 2000 shows 713 reported incidents where players had run ins with the law as reported by the media. As these incidents have become more high profile, the NFL Commissioner's power over player misconduct has come under scrutiny. The case involving Minnesota Vikings running back Adrian Peterson was upheld by an arbitrator. However, other cases involving Greg Hardy, Tom Brady, and Ray Rice were overturned or penalties reduced in Federal court or by an arbitrator. While prior to the current Collective Bargaining Agreement (CBA), the Bountygate sanctions (as applied to the players, not the coaches) were overturned.
Recently, in Hewitt v. Kerr, the Missouri Supreme Court questioned the impartiality of an arbitration process where the Commissioner directly appoints the arbitrators. The Court stated:
"Our recognition of the potential for very real bias is not intended to impugn the integrity of the Commissioner or his appointee. However, the very nature of bias is often subtle and unseen to the person or persons holding such bias. For that reason, it is imperative that an arbitration proceeding be overseen by an arbitrator selected in an objectively impartial and unbiased manner."Further discussion on Hewitt v. Kerr can be found here.
The issue here is how can the provisions of the CBA with respect to player misconduct be revised in a way that strengthens the Commissioner's decisions. The answer can be found in governmental administrative appeals.
First, the NFL Commissioner has had general authority over player conduct since 1968. The relevant part of Article 46 of the CBA in effect now is as follows:
Section 1. League Discipline: . . .
(a) All disputes involving a fine or suspension imposed upon a player for conduct on the playing field . . . or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player’s approval, may appeal in writing to the Commissioner.
* * *
Section 2. Hearings:
(a) Hearing Officers. For appeals under Section 1(a) above, the Commisioner shall . . . appoint one or more designees to serve as hearing officers. . . . [T]he Com- missioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion.
Article 46 vests discretion with the Commissioner who may hand down the sanction before a hearing. If the decision is appealed, the Commissioner has the discretion to appoint himself as the hearing officer. The initial decision is being made at the top subject to appeal. Generally, in the government context (local, state, or federal), the initial decision is made at a lower level, and then appealed to a hearing officer. Further appeal may be made to the head of the agency, which is then accompanied by an administrative record. In the Federal context, ultimate appeal of a Final Agency Order is to the Court of Appeals.
In the case of the NFL, the Commissioner, while the head of the NFL, is making an initial decision to be appealed. This may lead to scrutiny of the Commissioner's initial order. The NFL could amend the CBA to allow a player to elect a hearing at the initial stage of the discipline process. The appeal would then proceed to the Commissioner who would decide it based on the record established at the hearing. This would provide greater due process and strengthen the Commissioner's role by being the final arbiter.
To address the bias question posed by the Missouri Supreme Court, arbitrators should not be appointed by the Commissioner. Rather, they should be permanent employees of the NFL for that sole purpose. The hiring of hearing officers should be made jointly by the NFL and the NFL Players Association. Removal could be limited to cause.
These changes will only strengthen the Commissioner's authority as he will be reviewing the appeal. His authority will not be subject to the perception that it is waning every time he is overturned. A change in the selection of hearing officers will provide a sense of impartiality.
Pete Rose remains banned from Major League Baseball
MLB Commissioner Rob Manfred announced today that it would not reinstate Pete Rose, concluding that Rose had not presented credible evidence that, if reinstated, he would not again violate the prohibition on gambling on baseball games and on his own team. Manfred emphasized both that Rose continues to bet on baseball and that he has not fully owned up to the full scope of the gambling activities that lead to the ban in the first place (for example, he continues to deny betting on Reds games as a player in 1985-86, despite records indicating that he did, and he continues to insist that he did not selectively bet on the Reds, which is contradicted by documentary evidence). There also is an interesting discussion of how the commissioner should reconcile the mandatory lifetime ban imposed for gambling under Rule 21 with the broad discretion vested in the commissioner under Rule 15 to reinstate a suspended player; Manfred's solution was to say that reinstatement was warranted under Rule 15 only with "objective evidence" that there was no risk of a repeat violation of Rule 21.
Manfred also took a short detour to emphasize that he was not making any determination about Rose's eligibility for the Hall of Fame and that any debate over his eligibility or qualifications "must take place in a different forum" and turn on different questions and policy considerations. This is only partially right, of course. Rose is not in the Hall almost almost entirely because of Rule 3E of the Baseball Writers Association of America Election Rules, which provides that "Any player on Baseball's ineligible list shall not be an eligible candidate;" that rule was passed in 1991 (two years after Rose accepted his lifetime ban) specifically to eliminate any chance that Rose (and, to a lesser extent, Joe Jackson) would slip into the Hall. So while Manfred was not deciding whether Rose is eligible, his decision here basically dictates the outcome of the Hall vote.*
* Hall criteria include integrity and sportsmanship, so there is a chance that sportswriters might decline to vote Rose in because of his gambling misconduct, even if he were not on the ineligible list, just as they have kept out suspected PED users (Clemens, Bonds, etc.) who remain on the eligible list and thus eligible for the Hall.
Tuttle in the Balance reviewed by Above the Law
Hi there. Me again. If you read my post of about 20 minutes ago closely, you may have realized that it was surprisingly mostly free of obnoxious self promotion. Also it did not mention my pet hedgehog in any way.
Therefore, I would like to now add a dash of obnoxious self-promotion by linking to Above the Law's review of my new novel Tuttle in the Balance, in which the reviewer said that the book "is a cross between American Beauty and the works of Christopher Buckley." This review is notably better than the recent one on Amazon which called the book "complete and utter trash."
Also, tonight (Monday) at 6 pm I'll be reading from and discussing the novel at Teaism Penn Quarter, 8th & D in Washington DC, in an event sponsored by the American Constitution Society. Tomorrow (Tuesday), I'll be doing the same thing, along with special guest hilarious former Prawfer Brian J. Foley, at the Ethical Society of Philadelphia (1906 Rittenhouse Square) at 7 pm. There will be after-parties. Won't you come? It will be fun.
Finally, here is a video of my pet hedgehog trying to eat my wife's hand.