Friday, July 29, 2016
Government-Sponsored Torture in Chicago
I was listening to NPR this week, and the Planet Money section of the broadcasts was discussing the $100,000 payout received by each of the 120 victims of the City of Chicago Police Department. The payout was “reparations” for Police-sponsored violence in furtherance of the Department’s policy of torturing African Americans to extract confessions that were used at trial to convict them. Let me just say that again: a major American city had a *decades-long policy of torturing Black criminal suspects*.
Just so you’re convinced it was really torture, news reports from 1996—twenty years ago—listed the techniques as “appl[ying] electric shock and burn[ing] [a suspect]’s face, chest, and thigh by holding him against a hot radiator."
That article was based on a report from the Chicago PD’s Office of Professional Standards concluded that “detectives at Area Two had engaged in ‘systematic abuse, including “planned torture,” for at least 13 years.’ [The Report] listed the names of 50 alleged victims, grouped them by techniques applied (electroshock, suffocation, hanging by handcuffs, etc.), listed the names of detectives that had surfaced in connection with the victims' complaints, and concluded that ’particular command members were aware of the systematic abuse and perpetuated it either by actively participating in same or failing to take any action to bring it to an end.’”
The police shooting of Laquan MacDonald revealed that the way the police treat African Americans had changed little after 2010. The only thing that was a surprise was the naivety of the New York Times reporter who claimed that police brutality was a “revelation” to a city that had known about it and turned away for over thirty years.
How should we respond to this? Is it really enough to notice that it happened, prosecute the ringleader for a related offense, and continue on as if everything is better? Why not think that this is a criminal conspiracy on the part of local and state government to assault African America pins through the criminal justice system and cover it up in plain sight? Is the Chicago criminal justice community, from the police to the courts and everyone in-between, fatally compromised by this horror? The practices are even worse than another Illinois cases, concerning similar municipal and state lawlessness in the southern Illinois town of Cairo. See O'Shea v. Littleton, 414 U.S. 488 (1974). It’s worth revisiting Justice Douglas’s language in dissent from the case:
“This is a more pervasive scheme for suppression of blacks and their civil rights than I have ever seen. It may not survive trial. But if this case does not present a "case or controversy" involving the named plaintiffs, then that concept has been so watered down as to be no longer recognizable. This will please the white superstructure, but it does violence to the conception of evenhanded justice envisioned by the Constitution.”
In Crook County, Van Cleve speaks eloquently about the ways in which institutional bureaucratic structures can pervert our humanity and undermine our decency. Our grip on our values proves all too fragile. But that is a horror we must confront, not ignore. Where’s the anger until the criminal police officers and other government officials are brought to book? Where’s the truth and reconciliation committee? Is $100,000 enough?
Thursday, July 28, 2016
The Prisoner’s Dilemma in Airing Fox’s Corporate Culture
I have a new op ed today in Fortune about Gretchen Carlson's lawsuit against ousted CEO Roger Ailes. read it here. The sequence of events - Carlson apparently having reported internally sexual harassment as early as 2009 - and many other women either silenced or signed confidential agreements in a secret arbitration agreement - raises once again questions about how to balance new governance principles of self-regulation, including internal prevention program with the realities of silencing and cosmetic compliance which many whistleblowers face. Yuval Feldman and I have a few experimental studies which try and understand how to design reporting systems.
Wednesday, July 27, 2016
Video Voyuerism, Privacy-Related Sex Crimes, and Gender
Over the past few months, I've been working with some colleagues on a comparative project investigating privacy-related crimes across 9 different countries. One of the crimes that is frequently found in these countries is voyeurism (or some form of unlawful visual observation). Recently, we've received suggestions from multiple people outside our team to focus more of our attention on the gendered nature of voyeurism offenses - both in their text and application as well as in their legislative history - and, although we are still in the very early stages of pursuing this line of thought, we think there might be something interesting to say here that speaks to privacy theory more broadly (and we are also researching non-consensual ("revenge") pornography and stalking offenses, among others, as well).
In Anglo-Saxon common law jurisdictions, voyeurism is generally considered a sex crime. Voyeurism offenses often require a sexual purpose or motive or the visual observation or recording of some state of nudity. Many of these provisions can be found in the "sexual offenses" sections of various criminal codes (although in some US states, these provisions may also exist alongside criminal trespass). While some codes cover the traditional "peeping-Tom" scenario, many require the use of some technical device (e.g. a camera, binoculars, etc.) and/or require actual recording. In many continental European jurisdictions, however, voyeurism (or "unlawful observation") is generally not linked to a sexual purpose, nudity, or sexual activity; rather, it focuses on non-consensual visual observation that invades a person's private life in a broader sense, violates his or her right to privacy, is captured inside a person's home, or results in the voyeur obtaining information he or she is not entitled to obtain.
At least in the common law systems, with their focus on voyeurism as a sex-related crime, we see a gendered element to these offenses. Many have been crafted directly as a response to conduct referred to as "up-skirting" or "down-blousing." For example, in 2003, Senator DeWine introduced the federal Video Voyeurism Prevention Act of 2003, describing video voyeurism as encompassing
"...what is referred to as 'upskirting' or 'downshirting.' As the terms imply, this subset of video voyeurism involves the use of a tiny, undetectable camera to film up the skirt or down the shirt of an unsuspecting target, most often a woman."
A growing number of cases deal with up-skirting and down-blousing, and it doesn't appear that such conduct is likely to cease anytime soon. Indeed, last Tuesday, a TSA agent at Seattle's Sea-Tac Airport was caught holding his phone under women's skirts and taking photographs on an escalator at the airport. In 2015, the University of Toronto reversed its gender-neutral bathroom policies after multiple female students began complaining about smartphones appearing above the bathroom and shower room partitions in gender-neutral washrooms. In 2014, the Massachusetts Supreme Judicial Court held that the state's law did not cover up-skirting. In response, the state legislature hastily drafted a bill the day after the decision, and the Governor signed the bill into law the very next day. Similarly, less than two weeks ago, a Georgia court of appeals also held that the criminal provisions in that state's eavesdropping and voyeurism law did not cover "up-skirting."The facts of that case, as summarized by the Court in Gary v. State:
"The undisputed facts show that while employed at a Houston County Publix store, Gary aimed his cell-phone camera underneath the skirt of the victim and recorded video. Film from the store's security cameras showed that Gary aimed his camera underneath the victim's skirt at least four times as the victim walked and shopped in the aisles of the Publix. When questioned by police, Gary admitted to using his cell phone to take video recordings underneath the victim's skirt as she walked in two separate areas of the store."
However, the court found that such conduct did not run afoul of the state law for criminal invasion of privacy because the recording did not occur "in [a] private place and out of public view." The court referenced dictionary definitions of "place" and focused on the word "in" before "any private place" to determine that the statue only "criminalizes certain conduct as to an individual who is in a specific physical location – i.e., a place which is out of public view and in which the individual could reasonably expect to be free from intrusion or surveillance."
On the other hand, the Washington State law applicable in the case of the accused TSA agent, covers non-consensual visual observation or recording of "the intimate areas of another person without that person's knowledge and consent and under circumstances where the person has a reasonable expectation of privacy, whether in a public or private place." However, the law also requires that the voyeuristic conduct must be done knowingly for the "purpose of arousing or gratifying the sexual desire of any person." Simply intending to record a person's "intimate areas" without their consent is not enough.
Anita Allen and Erin Mack argued back in 1991 that "the right to privacy was born not of woman, but of man" (How Privacy Got Its Gender, 10 N. Ill. U.L. Rev. 441). Describing a case from 1881 (De May v. Roberts) in which a court found that a woman's privacy had been infringed when her doctor allowed a "unprofessional young unmarried man" to help during the delivery of her child, Allen and Mack argued that, rather than a
"vindication of women's 'individuality and dignity'... the case is better viewed as a vindication of women's modesty. For, absent exceedingly strong female modesty and seclusion standards, it is difficult to explain why Mr. Scattergood and Dr. De May should have been liable at all."
In their conclusion, Allen and Mack state: "we must hope that the next century... produces careful scholarly analyses of the role that attitudes about gender have played in the development of privacy law." Although their cautions about the improper consideration of gender in privacy law were directed at the development of tort law, I think their remarks urge caution in regards to privacy crimes as well. We've come quite a ways since Warren and Brandeis published their seminal paper in 1890 and the De May v. Roberts decision was handed down in 1881, as societal attitudes towards gender have changed considerably. However, I don't think we've come far enough, and that we still need to consider the need to carefully analyze the role that gender (and attitudes towards gender) play in the development of privacy law, privacy theory, and privacy crimes. In many feminist theories of privacy we see a critique of space (e.g., private places) as an important boundary marker for privacy protections as well as a critique of laws that legitimize different standards of modesty for men and women - and we see both of these elements showing up in certain voyeurism laws.
How should we view the gendered element of our contemporary voyeurism laws (whether facial or based merely on legislative intent)? Do we see similar gender issues in other privacy-related criminal laws (e.g., non-consensual pornography/revenge porn or stalking)? How should we account for gender in developing privacy theory and privacy law? What gender-related theories of criminal liability should we resist or avoid?
(and, finally, if anyone has pointers to particularly good legal or empirical research on these questions, please note them in the comments or feel free to send them to me via email)
Oral Arguments for Law Students
I will sometimes – not often, maybe once a semester, if that – play a couple of minutes of oral argument from the Supreme Court for my students if they are particularly enlightening. For example, I have played portions of the argument in the recent Facebook threat case, Elonis v. U.S., in Criminal Law in order to put a spotlight on how the Court decides on what mental state requirement it will impute to a statute when the statute is silent. Particularly helpful is Justice Kagan’s ticking off of the Model Penal Code’s taxonomy of mental states, just as the students are being introduced to this taxonomy in class. In my death penalty seminar, I recently had the students do moot courts of two pending cases, and then in subsequent classes we listened to the actual arguments. This was particularly helpful because students were by then intimately familiar with the issues in the case and had read the briefs.
It occurred to me recently that we ought to encourage, or perhaps even require, our students to listen to full oral arguments outside of class. For students who are still under the mis-impression that law school is about learning the law as opposed to learning to think like a lawyer, listening to arguments is a helpful reminder that the law is largely indeterminate and in flux, and that good advocacy skills are essential to the practice of law.
I would even strongly suggest that students listen to a few oral arguments before starting law school in the fall. After all, the back-and-forth between judge and advocate is strikingly similar to the back-and-forth between professor and student. Listening to oral arguments will prepare students for what law school is really all about. It may also teach students to avoid some of the common pitfalls for students, which are often reflected in poor advocacy, such as dodging the question and fighting the hypo.
While most of our students will never make it to the Supreme Court, I think there is a value to having them listen to arguments from that Court rather than some other court. First, the recordings are easily available. Second, the arguments in the Supreme Court are much more likely to cut to the heart of an issue, whereas arguments in lower courts can get bogged down in jurisdictional, procedural, or factual issues that are less interesting and accessible for future lawyers. Third, the students are more likely to be familiar with the issues in Supreme Court cases without having read the briefs. Finally, and most importantly, the issues that arise in Supreme Court cases, of course, are not peculiar to Supreme Court cases. The same issue might arise in scores of lower court cases that, for one reason or another, never make it to the Supreme Court.
Tuesday, July 26, 2016
If you write and think about policing, as I do, acting on behalf of the community has become one of the core problems of recent weeks. I have found the whole business of shootings and assassinations in Dallas, Baton Rouge, and Minnesota, quite appalling. These shootings have raised questions about who can claim to act on our behalf. And that question—how we get to act on behalf of or in the name of some community—seems to me to be one of the most pressing issues in modern policing. For the police are legitimate only if they act on behalf of the law and of the community.
Michelle Madden Dempsey, has proposed one answer to the “acting on behalf of” conundrum in her great book on criminal prosecution, Prosecuting Domestic Violence: A Philosophical Analysis. The book’s title is misleading: it goes way beyond a focus on domestic violence, although domestic violence prosecutions form a test case for some of her claims. If you are interested in criminal prosecution, or applied analytic philosophy, or just probing, clear thought, it's a must read.
On the subject of law enforcement and communities, Dempsey suggests that:
“prosecutors can be understood (…conceptually) to…act[ ] on behalf of…their communities…[T]he tenability of this claim in any given context is contingent on the satisfaction of certain legitimacy conditions adhering in the relationship between the relevant state, its criminal justice system, and the community which it purports to represent.”
And Dempsey turns to Antony Duff to suggest that:
“at a minimum, such legitimacy would entail a particular attitude by prosecutors in calling members of the community to account: ’[an] attitude . . . [that] expresses a conception of them as fellow members of a normative community…not as mere objects of our anger or as enemies to be fought or disposed of, by whose values we are collectively both bound and protected. It is to address them, and call them to judgment, in terms of a set of values to which we claim that the addressees are or should be committed just as we are. It is to recognize the need both to explain to them why we are responding in this way, and to attend to their explanations and defences of what they did—in other words, to try to engage with them in a communicative enterprise of judgement and of normative truth-seeking.’”
I have found this analysis both insightful and uplifting given the events of the past few weeks. We are, at bottom, a community of shared values. These values are publicly embodied in our laws—our laws of criminal procedure as much as criminal substance. And the substantive criminal law applies to all alike, civilian and public official. Our joint commitment to these values—of the rule of law, as much as of the prohibition of murder—makes us a community under law, and confers legitimacy upon the acts of our public officials.
Philadelphia police and public protest
Interesting discussion of how the Philadelphia police are responding to public protest during the current DNC (as well as how they have responded to more recent Occupy and Black Lives Matter events). And he contrasts it with the city's absurd overreaction to the 2000 RNC, which produced 400 arrests in four days, few or no convictions, and unknown amounts in civil settlements. I was clerking in Philly during the 2000 convention and it was walking around a police state, in the pre-9/11 days, when that was not the norm.
Monday, July 25, 2016
JOTWELL: Campos on aggregating administrative action
The new Courts Law essay comes from Sergio Campos (Miami), reviewing a recent report of the Administrative Conference of the United States on using aggregate adjudication in administrative proceedings.
Google Scholar Law Review Rankings - 2016
Google has published its 2016 Google Scholar Metrics, just in time for the fall law review submissions angsting season to begin (I see that in response to folks already calling for a new Angsting Thread, Sarah has just posted the Fall 2016 Angsting Thread slightly ahead of schedule). I've placed a table with the 2016 Google Scholar Rankings for flagship/general law reviews below the break (with comparisons to the 2015 ranking). I started tracking these Google Rankings as part of the Meta-Ranking of Flagship Law Reviews that I first proposed here at Prawfs in April (combining USN, W&L, and Google scores into a single ranking). And, as both Google and W&L have updated their rankings/metrics since that time, I'm also working on an updated meta-ranking in time for the opening of the fall submissions period (just for fun).
I realize most people probably don't make any submissions decisions based on the Google Rankings (and the methodology does have its limitations; and one startling change in the 2016 data is that the North Carolina Law Review, ranked #21 in 2015, doesn't even show up in Google's metrics this year for some reason - perhaps their article repository no longer meets Google's inclusion criteria), but I do think it provides an interesting metric for measuring law journal impact, alongside the W&L rankings, particularly for someone like me who publishes in both law reviews and peer-reviewed journals in other disciplines. I like that Google Metrics can provide some idea of how a particular range of law reviews measure up to a social science journal - and vice-versa - in terms of scholarly impact. The W&L ranking doesn't provide much of that information, as it is generally limited to law reviews; US News college rankings don't apply; and the Journal Citation Reports rankings by Thompson Reuters doesn't have very good coverage of legal journals.
However, with Google's metrics I can see e.g., how the social science journals I've published in (or am thinking about submitting to) stack up against law reviews. For example, I can see that Government Information Quarterly has a slightly higher average Google Metrics score (63; h5-index of 51, h5-median of 75) than the Harvard Law Review (61; 40/82), that The Information Society (26.5; 21/32) ties with the UC Davis Law Review (26.5; 20/33) and the Ohio State Law Journal (26.5; 18/35), and that Surveillance & Society (21; 18/24) ties the Houston Law Review (21; 16/26). I think this can be helpful for gauging where to submit research that crosses disciplinary boundaries, but I see how it might not be so useful for someone who only wants (or needs) to publish in law journals. I'm curious if any readers find the Google metrics useful for comparing law/non-law journals or for thinking about (law) journal submissions generally.
2016 Google Scholar Law Review Rankings
Includes only flagship/general law reviews at ABA accredited schools (I think I've captured (almost) all of these, but let me know if I've missed any). Rankings are calculated based on the average of Google's two scores (h5-index and h5-median), as proposed here by Robert Anderson. The final column shows how much a journal's rank has changed in 2016 versus last year's ranking (0 indicates no change, a positive number indicates the ranking has gone up in 2016, while a negative number indicates a drop in ranking in 2016).
|Journal||Rank (2016)||h5-index||h5-median||Average Score||Rank (2015)||Rank Change|
|Harvard Law Review||1||40||82||61||1||0|
|The Yale Law Journal||2||41||61||51||2||0|
|Columbia Law Review||3||36||61||48.5||3||0|
|U. Pennsylvania Law Review||4||35||61||48||5||1|
|Stanford Law Review||5||33||54||43.5||4||-1|
|The Georgetown Law Journal||6||33||52||42.5||6||0|
|Texas Law Review||6||35||50||42.5||8||2|
|New York U. Law Review||8||28||53||40.5||11||3|
|Cornell Law Review||8||31||50||40.5||13||5|
|California Law Review||10||31||46||38.5||9||-1|
|Virginia Law Review||10||32||45||38.5||10||0|
|Michigan Law Review||12||30||44||37||6||-6|
|Minnesota Law Review||13||29||44||36.5||12||-1|
|U. Chicago Law Review||14||29||43||36||16||2|
|UCLA Law Review||14||29||43||36||15||1|
|Vanderbilt Law Review||16||30||36||33||16||0|
|Fordham Law Review||16||28||38||33||22||6|
|Notre Dame Law Review||18||26||39||32.5||18||0|
|Indiana Law Journal||18||26||39||32.5||26||8|
|Duke Law Journal||20||26||38||32||13||-7|
|Northwestern U. Law Review||20||26||38||32||22||2|
|Boston U. Law Review||20||28||36||32||26||6|
|William and Mary Law Review||20||26||38||32||19||-1|
|Iowa Law Review||24||27||36||31.5||20||-4|
|Boston College Law Review||25||25||35||30||26||1|
|Florida Law Review||25||22||38||30||22||-3|
|The George Washington L. Rev.||27||25||34||29.5||31||4|
|Emory Law Journal||28||19||39||29||30||2|
|U. Illinois Law Review||29||22||34||28||29||0|
|Hastings Law Journal||29||20||36||28||32||3|
|U.C. Davis Law Review||31||20||33||26.5||43||12|
|Ohio State Law Journal||31||18||35||26.5||43||12|
|Arizona Law Review||33||19||33||26||35||2|
|Maryland Law Review||33||22||30||26||45||12|
|Southern California Law Review||35||22||29||25.5||37||2|
|Washington and Lee Law Review||35||21||30||25.5||47||12|
|Seattle U. Law Review||37||18||32||25||38||1|
|Cardozo Law Review||38||21||28||24.5||33||-5|
|Washington U. Law Review||39||20||28||24||35||-4|
|Wake Forest Law Review||39||18||30||24||38||-1|
|Wisconsin Law Review||41||20||27||23.5||22||-19|
|Washington Law Review||41||19||28||23.5||49||8|
|American U. Law Review||43||19||27||23||40||-3|
|Connecticut Law Review||44||19||25||22||40||-4|
|George Mason Law Review||45||18||25||21.5||49||4|
|Houston Law Review||46||16||26||21||58||12|
|Alabama Law Review||47||17||24||20.5||49||2|
|Seton Hall Law Review||47||14||27||20.5||52||5|
|South Carolina Law Review||47||16||25||20.5||68||21|
|Brigham Young U. Law Review||50||17||23||20||52||2|
|Penn State Law Review||50||17||23||20||58||8|
|Colorado Law Rev.||52||15||24||19.5||47||-5|
|Pepperdine Law Review||52||15||24||19.5||52||0|
|Oregon Law Review||52||14||25||19.5||72||20|
|UC Irvine L. Rev.||55||16||22||19||84||29|
|Lewis & Clark Law Review||55||16||22||19||33||-22|
|Santa Clara Law Review||55||17||21||19||64||9|
|Howard Law Journal||55||14||24||19||55||0|
|New York Law School Law Review||55||15||23||19||58||3|
|Georgia Law Review||60||14||23||18.5||55||-5|
|Tulane Law Review||60||14||23||18.5||64||4|
|Arizona State L. Journal||62||16||20||18||93||31|
|U. Miami Law Review||62||14||22||18||77||15|
|Case Western Reserve Law Review||62||15||21||18||81||19|
|Georgia State U. Law Review||62||15||21||18||72||10|
|U. Kansas Law Review||66||13||22||17.5||68||2|
|U. Richmond Law Review||66||14||21||17.5||77||11|
|Utah Law Review||68||14||20||17||72||4|
|Temple Law Review||68||14||20||17||95||27|
|San Diego Law Review||68||14||20||17||86||18|
|Loyola U. Chicago Law Journal||68||16||18||17||81||13|
|Marquette Law Review||68||14||20||17||95||27|
|Buffalo Law Review||73||13||20||16.5||58||-15|
|Nevada Law Journal||73||13||20||16.5||86||13|
|Louisiana Law Review||73||13||20||16.5||64||-9|
|Mitchell Hamline Law Review||73||14||19||16.5||95||22|
|Florida State U. Law Review||77||14||18||16||68||-9|
|Loyola of Los Angeles Law Review||77||11||21||16||46||-31|
|Missouri Law Review||77||12||20||16||55||-22|
|DePaul Law Review||77||14||18||16||81||4|
|Brooklyn Law Review||81||14||17||15.5||77||-4|
|U. Cincinnati Law Review||81||14||17||15.5||68||-13|
|Chicago-Kent Law Review||81||13||18||15.5||58||-23|
|Michigan State Law Review||81||14||17||15.5||118||37|
|Mississippi Law Journal||81||11||20||15.5||95||14|
|New England Law Review||81||13||18||15.5||95||14|
|Pace Law Review||87||11||19||15||86||-1|
|Washburn Law Journal||87||11||19||15||84||-3|
|Duquesne Law Review||87||11||19||15||95||8|
|SMU Law Review||90||10||19||14.5||95||5|
|Saint Louis U. Law Journal||90||12||17||14.5||95||5|
|Vermont Law Review||90||12||17||14.5||40||-50|
|Capital U. Law Review||90||13||16||14.5||113||23|
|Denver U. Law Review||94||12||16||14||64||-30|
|Indiana Law Review||94||12||16||14||72||-22|
|Nebraska Law Review||94||12||16||14||113||19|
|Hofstra Law Review||94||12||16||14||104||10|
|West Virginia Law Review||94||12||16||14||123||29|
|Albany Law Review||94||12||16||14||58||-36|
|Creighton Law Review||94||11||17||14||86||-8|
|U. St. Thomas Law Journal||94||12||16||14||113||19|
|Tennessee Law Review||102||11||16||13.5||93||-9|
|Texas Tech Law Review||102||12||15||13.5||104||2|
|Suffolk U. Law Review||102||12||15||13.5||109||7|
|Valparaiso U. Law Review||102||12||15||13.5||122||20|
|Catholic U. Law Review||106||10||16||13||113||7|
|U. Pacific Law Review||106||10||16||13||118||12|
|Southwestern Law Review||106||10||16||13||109||3|
|Villanova Law Review||109||11||14||12.5||86||-23|
|UMKC Law Review||109||10||15||12.5||86||-23|
|Mercer Law Review||109||10||15||12.5||126||17|
|Cleveland State Law Review||109||11||14||12.5||123||14|
|John Marshall Law Review||109||9||16||12.5||118||9|
|Touro Law Review||109||10||15||12.5||128||19|
|Rutgers U. Law Review||115||10||14||12||86||-29|
|Akron Law Review||115||11||13||12||72||-43|
|Drake Law Review||115||10||14||12||95||-20|
|Kentucky Law Journal||118||9||14||11.5||118||0|
|Syracuse Law Review||118||9||14||11.5||104||-14|
|Maine Law Review||118||10||13||11.5||104||-14|
|Quinnipiac Law Review||118||9||14||11.5||No 2015 Rank|
|Idaho Law Review||118||8||15||11.5||104||-14|
|Wyoming Law Review||118||9||14||11.5||128||10|
|Chapman Law Review||118||9||14||11.5||109||-9|
|Ohio Northern U. Law Review||118||8||15||11.5||113||-5|
|Southern Illinois U. Law Journal||126||8||14||11||131||5|
|Northern Kentucky Law Review||126||9||13||11||131||5|
|Oklahoma Law Review||128||10||11||10.5||137||9|
|U. Toledo Law Review||128||10||11||10.5||123||-5|
|Arkansas Law Review||130||9||11||10||77||-53|
|Loyola Law Review||130||9||11||10||131||1|
|U. Arkansas Little Rock Law Review||130||9||11||10||142||12|
|St. John’s Law Review||133||8||11||9.5||137||4|
|The Wayne Law Review||133||8||11||9.5||142||9|
|South Dakota Law Review||133||7||12||9.5||135||2|
|U. Memphis Law Review||136||8||10||9||126||-10|
|Campbell Law Review||136||7||11||9||131||-5|
|St. Mary's Law Journal||136||8||10||9||No 2015 Rank|
|Roger Williams U. Law Review||136||8||10||9||142||6|
|Baylor Law Review||140||7||10||8.5||147||7|
|Willamette Law Review||140||8||9||8.5||No 2015 Rank|
|Widener Law Journal||140||8||9||8.5||137||-3|
|Arizona Summit [Phoenix] Law Review||140||7||10||8.5||147||7|
|FIU Law Review||144||7||8||7.5||147||3|
|Tulsa Law Review||145||6||8||7||142||-3|
|Montana Law Review||145||6||8||7||150||5|
|North Dakota Law Review||145||5||9||7||153||8|
|Stetson Law Review||148||5||8||6.5||137||-11|
|Texas A&M Law Review||148||6||7||6.5||137||-11|
|South Texas Law Review||148||6||7||6.5||150||2|
|Thurgood Marshall Law Review||148||6||7||6.5||150||2|
|Oklahoma City U. Law Review||152||5||7||6||109||-43|
|U. Hawaii Law Review||153||5||6||5.5||153||0|
|North Carolina Law Review||21||No 2016 Rank|
|Mississippi College Law Review||128||No 2016 Rank|
|U. Louisville Law Review||135||No 2016 Rank|
|Nova Law Review||142||No 2016 Rank|
|U. Detroit Mercy Law Review||153||No 2016 Rank|
|U. Pittsburgh Law Review||Not Ranked|
|U. San Francisco Law Review||Not Ranked|
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Submission Angsting Fall 2016
This is the post to share information or ask questions about submitting to law reviews.
The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.
Additionally, a spreadsheet to gather information is here (and embedded below).
I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.
Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.
Here is the final page of comments.
Thoughts on Reason-Based Regulation of Reproductive Decision-Making: Part II
In an earlier post, I blogged about the rise of reason-based bans on abortion (such as laws banning abortion for sex selection, or because of fetal anomaly), and I hypothesized that there is the constitutional privacy right includes a right to make a constitutionally protected decision for whatever reasons one chooses. In this post, I want to consider another type of law that arguably implicates this privacy right, and also places it in conflict with other individuals’ religious freedom–specifically, laws that require employers to provide insurance coverage for contraceptives when they are needed for particular reasons.
About half of the states currently require insurers in the state to provide coverage for contraceptives. These state-law contraceptive coverage mandates are separate from the regulation requiring contraceptive coverage under the Affordable Care Act and apply independently of it. Because these mandates are enforced by state governments rather than the federal government, the federal RFRA—construed in Hobby Lobby to require an accommodation for employers that object on religious grounds—does not apply directly to them. Nonetheless, in many of these states, religious employers may still be able to access insurance plans without contraceptive coverage, either because the state contraceptive coverage laws also have religious exemptions written into them, or because those exceptions are available via state RFRA analogs.
In a handful of states, employers may opt out of providing insurance coverage of contraceptives for contraceptive purposes but not for therapeutic purposes. For example, Arizona law, which requires insurers to provide contraceptive coverage if they cover other prescription drugs, also provides that “a religiously affiliated employer may require that the corporation provide a contract without coverage for” contraceptives. However, it goes on to specify that the insurance policy cannot exclude coverage for prescription contraceptive methods prescribed "for medical indications other than for contraceptive, abortifacient, abortion or sterilization purposes.” Similarly, North Carolina law allows religious employers to offer plans without contraceptive coverage but does not exempt them from covering prescription contraceptives "for reasons other than contraceptive purposes, or ... that is necessary to preserve the life or health of a person covered under the plan.” Presumably, these sorts of provisos would cover women who seek contraceptive drugs for purposes of avoiding or curing particular medical conditions (such as certain skin conditions or menstrual disorders) as well as women who need contraception because pregnancy would be life-threatening or harmful to their health. At least in the latter scenario, it seems clear that such provisos distinguish between valid and valid reasons for the same reproductive conduct.
These sorts of laws set up a potential conflict between a woman’s right to privacy with respect to the deliberative process and an employer’s right to act based on religious motivations. Because the right to autonomous decision-making has constitutional stature (as I argue in Part I) and the right to act based on religious motivations does not (as explained below), it seems clear that the woman’s right to access contraception for any reason whatsoever should prevail.
These state laws, while presumably intended to ensure that women’s physical health is protected while safeguarding the religious freedom of employers, nonetheless have the effect of regulating the reasons for which women may engage in constitutionally protected conduct. Women who work for religious employers taking advantage of these exceptions may access covered contraception if it is necessary to avoid harm to their health but not for family-planning purposes. According to the framework outlined in Part I, laws that distinguish between acceptable and unacceptable reasons for choosing contraception would be unconstitutional. Similarly to the selective abortion bans discussed in Part I, they allow the employer to dictate the terms of the woman’s reproductive decision, interfering with the woman’s deliberative process as clearly as if the law itself denied women contraceptive access for certain reasons and not others. By empowering employers to privilege certain grounds of decision over others, the government picks and chooses among the reasons a woman may or may not have access to contraception.
The privacy right related to contraceptives is constitutionally protected. However, there is no constitutional free exercise right to be exempt from a generally applicable health insurance mandate because of one’s religious beliefs. The right claimed by Hobby Lobby was based on RFRA, not the Constitution, and the Supreme Court made clear in Employment Division v. Smith that there was no general free exercise right to an exemption from a neutral and generally applicable law. Thus, the woman’s right to choose contraception without regard to the reason should trump.
Ironically, however, one consequence of this analysis is that laws providing blanket exemptions from contraceptive coverage are on firmer constitutional ground than more carefully tailored exemptions. A blanket exemption allowing religious employers to opt out from covering contraceptives would not unconstitutionally privilege certain reasons over others and therefore would not burden the constitutional right to deliberate autonomously, because it would not distinguish between valid and invalid reasons. Is this result a correct one, or a desirable one?
Although this result seems counter-intuitive, it may nonetheless be the correct one based on existing constitutional doctrine. Once the government begins carefully tailoring exemptions, problems can ensue. For example, a statute with a narrowly drafted religious exemption that excludes certain religious groups while protecting others would likely be more problematic than one with no exemption.
Moreover, it may be worth considering the political implications of a decision requiring states to exempt all religious employers from covering contraception in all circumstances, even when it is needed to protect the woman’s health, or none at all. It is possible that the result would be that the practice of covering oral contraceptives for non-family-planning purposes would continue but without the sanction of law; employers and insurers could continue to make the distinction between therapeutic and non-therapeutic contraception, but through private, internal policies. (For example, Catholic employers generally do not have a problem with covering contraception for “therapeutic,” as opposed to family planning purposes.) Since no law would be implicated, there would be no state action and no constitutional problem. On the other hand, there might be value in highlighting the conflict between religious beliefs and private reproductive decision-making in this context. It is worth considering, perhaps in a more public way, whether the distinction between therapeutic and non-therapeutic contraception is one that the government should make and whether the government should be deciding which uses of contraception are sufficient to outweigh an employer’s religious claims. Currently, this debate is submerged by Hobby Lobby and the post-Hobby Lobby discourse, which treats religious exemptions from contraceptives coverage as an all-or-nothing issue.
Saturday, July 23, 2016
Dudziak on Trump on Turkey (Updated)
Mary Dudziak (Emory) critiques Donald Trump's comments about not lecturing Turkey about civil liberties in light of our problems at home. A legal historian, Dudziak describes how this argument--that the United States could not exercise moral authority abroad because of problems at home--was made by the Soviet Union, not Presidents of the United States. Instead, those Presidents responded by seeking to remedy domestic injustice (she points to Eisenhower sending troops to Little Rock and Kennedy's response to Birmingham), expressly to bolster international standing.
But as I argued, Trump is not making the same argument that the Soviets made during the Cold War, that we cannot exercise moral standing on matters of justice because we have not corrected racial injustices at home. He is not arguing that we are estopped to exercise moral leadership because of our own failings, failings these other Presidents then tried to correct. He is arguing we should not care about exercising moral leadership until we get our house in order. And getting our house in order means not eliminating barriers to racial equality, but eliminating barriers to police maintaining law and order. Trump does not want to convince Turkey to be more like us; he wants to make us more like Turkey.
More on athlete speech in the WNBA (Second Update)
Second Update (Saturday evening): The WNBA, about to enter a month-long break for the Olympics, has rescinded the fines against several teams and players and will use the break to negotiate with the players' union about rules for player protests.
Following on my post about protests by WNBA players: Claire McNear at The Ringer wonders when the WNBA became apolitical, given the league's reactions to previous tragedies such as the Orlando shooting (when the league gave the players official memorial t-shirts), to say nothing of the league's general promotion of LGBTQ and women's issues. It also departs from the NBA's response both to the Lynx protest (NBA Commissioner Adam Silver praised their efforts) and to individual NBA players who have spoken out in similar ways the past few seasons (notably in wearing "I Can't Breathe" shirts during warm-ups). McNear questions whether the line really can be about who made and distributed the t-shirts.
Unfortunately, I fear a different explanation. The recent deaths of police officers has made them untouchable in the realm of public debate. You no longer can criticize or protest police officers, as by memorializing the victims of police-involved shootings (even as part of a general statement against all violence by memorializing everyone). The Orlando memorials no longer work as analogue, because the shooter there was a terrorist, not to mention an "other," so honoring those victims does not implicate police. We may be entering a time in which athletes can speak through the game, but only to express certain messages or certain positions on an issue.
As I said in the prior post, this is playing out on a smaller stage. The question is whether the same limitations are imposed on NBA or NFL players.
Update (Saturday afternoon): In my prior post, I argued that the key question is the extent to which athletes should be able to use the game, on the field/court, as a platform for their expression. The answer from the WNBA, according to this ESPN story, is that the players should keep their activism off the court. The league and the union have been trying to negotiate some arrangements, such as allowing players to wear what they want during early warmups (until, say ten minutes before the game), then change into official shirts for the national anthem; so far, they have been unable to reach an agreement.
The story includes comments from USA Coach Geno Auriemma, who seems to expect some players to attempt to speak out during the Olympics, which would become a matter for Olympic and basketball authorities. I hope we have come far enough in 48 years that the USOC would not respond as it did to Tommie Smith and John Carlos, by kicking them out of the Olympic Village.
I am more surprised by the following from Auriemma:
"I respect Tina (Charles) and the players in the WNBA for their concern and their voices and the passion that they have and for their beliefs. I really do," he said, citing the former UConn player and Liberty star for wearing her warmup shirt inside-out before Thursday's game. "I'm really proud of some of my former players and the way they've stepped forward and spoken their conscience and express their feelings."
This is a change in tone from Auriemma. In 2003, a small-college basketball player named Toni Smith began protesting the Iraq War by turning her back on the flag during the pre-game playing of the national anthem (what I described as "symbolic counter-speech"). Her coaches and teammates accepted her protest. But coaches and commentators criticized her actions, if only for distracting from the team. Auriemma, among others, insisted that whatever a player's right to speak, she did not have right to be part of the UConn women's basketball team (or to speak through her participation in the UConn women's basketball team). I am happy to see he has come around on this.
Clinton's VP and the Senate
I do not pretend to know anything about Hillary Clinton's political calculations in choosing Tim Kaine (forever a/k/a, "The Boring Choice") as her running mate. There was a lot of media discussion about the effects on the Senate. Four of Clinton's choices were sitting Senators--Kaine, Cory Booker (NJ), Sherrod Brown (OH), and Elizabeth Warren (MA)--who would resign their seats if elected VP. All but Kaine would be replaced by a temporary appointee appointed by a Republican governor, possibly costing the Democrats control of the Senate, which might come in at 50-50. In theory, that was a factor in his favor.
But this also means the Democrats will have to defend that seat in a special election in a purple state, a low-turnout situation in which Democrats tend not to fare well. Which means if the Senate is 50-50 beginning in January 2017, Clinton may have her majority only for a year. By contrast, at least with Brown Booker and Warren, Democrats would have had the opposite problem--a lost or weakened majority at the beginning of the term (because those seats would be filled by Republican governors), but a greater chance to win the special election in a deep-blue state (Booker won his seat in a 2013 special election), giving or increasing that majority for the second year of Clinton's term. Moreover, the calculus likely assumes that Democrats will lose the Senate in 2018, when they have to defend 25 seats, including a number of people in Republican states who won on the strength of Obama turnout in 2012. So is it better to have the bigger majority in the first year or the second year? Probably the first, since by 2018, the Republicans will be gearing up for a landslide mid-term.
Advocates for selecting Warren had been pushing a way to make the appointee term even shorter. Massachusetts requires a special election 145-160 days after a vacancy occurs (in the other states, the special election would be in November 2017). So if Warren had resigned on January 20, the election would have been in June; if she resigned November 8 (or whatever date it became clear she and Clinton had won and that she would be VP absent some catastrophe), the special election would have been in April. The Democrats likely would have won that seat (having learned the lesson of Scott Brown), so Clinton would have gotten her majority 3-6 months into the first year of her term.
Friday, July 22, 2016
The Meaning of Sex Discrimination
In response to a number of questions from school districts about how to serve transgender students under Title IX, the Departments of Justice and Education issued joint guidance in May explaining how they interpreted the prohibition on sex discrimination contained in Title IX and its implementing regulations. In bringing clarity to the issue, the guidance explains that the prohibition on sex discrimination “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” Pursuant to the guidance, “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” The guidance then details that transgender students should be permitted to use restrooms and locker rooms consistent with their gender identity.
A number of states have filed lawsuits challenging the guidance, arguing that the Administration is “foisting its new version of federal law” on schools. But the Departments’ interpretation is not drawn from whole cloth. In fact, courts have recognized that sex discrimination under federal civil rights statutes includes discrimination based on someone’s transgender status for some time, authority that is noted in the Departments’ guidance, and is collected here and here. And of course, in Price Waterhouse v. Hopkins, the Supreme Court adopted a capacious understanding of what constitutes “sex” discrimination, prohibiting sex stereotyping or treating people differently because of their perceived failure to conform to gender norms.
The states also argue that the Departments are attempting to “redefine the unambiguous term ‘sex.’” But the statutory and regulatory meaning of the prohibition on sex discrimination as it relates to transgender individuals is far from clear, as the Fourth Circuit recently concluded in G.G. v. Gloucester County School Board, the lawsuit by a Virginia transgender boy challenging his exclusion from the boys bathroom. Indeed, as one of the lawsuits challenging the Departments’ guidance concedes, “[n]othing in Title IX’s text, structure, legislative history, or accompanying regulations address gender identity,” suggesting—at most—that the statute doesn’t speak, one way or another, to whether transgender individuals are protected by the statute. As the Fourth Circuit held in G.G., because the law is “silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms,” there is an ambiguity which the Departments are permitted to clarify.
As an alternative interpretation, those challenging the Departments’ guidance suggest that “sex” means what they call “biological sex.” But neither the statutory language or the legislative history quoted by those challenging the guidance appear to reference so-called “biological sex” at all. As discussed in a prior post, medical experts have established that the factors contributing to one’s sex are multifaceted, including “external genitalia, internal reproductive organs, gender identity, chromosomes, secondary sex characteristics and genes.” Thus, even if one focused purely on the physical characteristics of sex, reliance on “biological sex” creates more ambiguity than it resolves. Again, as the Fourth Circuit reasoned: “For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.”
When one combines the statutory and regulatory ambiguity with the medical reality, defining “sex” with reference to one’s gender identity is far from radical, is certainly reasonable, and is probably the best interpretation of the relevant language.
The reasonableness of that interpretation is heightened when one considers that, at least with regard to public schools, the Equal Protection Clause overlays any analysis. And, without diving into a detailed discussion, the Supreme Court’s Obergefell decision makes clear that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity” (emphasis added). Given Obergefell’s context, this is powerful language suggesting that we possess constitutional rights over our sexual and gender identity.
But if you try sometime
The Rolling Stones' "You Can't Always Get What You Want" has become a staple at Donald Trump rallies, including following last night's acceptance speech (the band objected months ago, but the campaign has not relented). Some questioned the choice, that it seems odd for a political candidate to adopt a theme of settling because you could not get what you wanted to get.
But the theme of last night's speech-- "I alone can fix it"--suggests that the key phrase is what comes later in the chorus--"if you try sometime, you might find you get what you need." Trump is positioning himself as the essential person, the only person to save the nation from, apparently, a dystopian hellscape. The American people need Donald Trump, and only Donald Trump, to be President. By electing him, the American people will find they got what they need.
Or am I giving them too much credit?
Call for papers: Visual Data as Accountability, Resistance, and Surveillance (Law & Social Inquiry)
Along with my colleagues Sarah Brayne (UT-Austin, Sociology) and Karen Levy (Cornell, InfoSci), I am excited to announce our call for papers for a special section of a forthcoming issue of Law & Social Inquiry. Abstracts of ~500 words are due August 10 via email to LSIvisualdataspecialissue [at] gmail [dot] com. You can find a PDF of the full CFP here, and in text form below.
We are happy to receive a broad range of proposals for the special issue as long as they fall within the theme Visual Data as Accountability, Resistance, and Surveillance. Indeed, quite a few topics in the news recently also speak to the importance of greater legal, technical, and social understandings of these issues, including the continued use of citizen video/body camera video/CCTV video to document police action or even livestream events, Erdogan's use of FaceTime after the recent attempts at a coup in Turkey, and even Kim Kardashian's snapchat video of Kanye West and Taylor Swift.
Overview (continues after the break):
The capture, analysis, and dissemination of visual data—including video (with or without audio), photographs, and other visual recordings—has become ubiquitous. Facilitated by digitization, globalization, and the proliferation of mobile media, visual data is transforming the documentation of activities in a wide range of contexts, including policing, legal adjudication, war, human rights struggles, and civic action. Visual data is being collected by state actors and individual citizens, each often documenting the actions of the other. The use of this data as evidence (both inside and outside formal legal proceedings) raises significant issues related to privacy and ethics, authentication and credibility, interpretation, inequality, power, and legibility. Law is implicated at both the point of recording (or documentation) and during downstream activities, such as when recordings are shared or posted online, publicly disclosed under freedom of information laws, or introduced into evidence during legal proceedings.
Different technologies afford different viewpoints. Visual data constitutes a unique form of information that presents emergent legal and policy questions because of its technical form and social effects. The mobilization of visual data can shape and reshape public opinion, representation, suppression, visibility, inequality, and admissibility of evidence; it can serve to incriminate or exonerate. Visual evidence can legitimize certain accounts of events while calling others into question. And, thanks to the proliferation of mobile devices, more people can capture video and photographs than ever before, at a moment’s notice, simply by pulling out their phones—and can distribute them instantaneously, creating visual records of all types of behaviors and conflicts, from confrontations between citizens and police to political gaffes, from sex tapes to dashboard camera footage of traffic-related events. The recent adoption of police body cameras and the use of video by bystanders as a tool for inverse surveillance demonstrate our increasing reliance on video as a check on power, as well as a source of ostensible authority when accounts about “what really happened” are in conflict. At the same time, the crucial role of interpretation suggests video is not as much of an “objective observer” or independent witness as it is sometimes claimed to be, and visual evidence may have unforeseen implications for weighing evidence in civil or criminal cases—or in the court of public opinion.
Permissive freedom of information laws in some jurisdictions have also led to recordings made by the police ending up on websites like YouTube—alongside myriad channels of police misconduct videos filmed by citizens. All of this footage increases the secondary visibility of those captured in recordings, and the video itself can also be analyzed as (potentially) a new form of big data. Audio and video streams contain biometric information that can be detected, analyzed, and compared against existing databases—while also adding new data to these databases in the process.
The creation, dissemination, mediation, interpretation, and quantification of visual data are all fundamentally social processes. From citizen video of police (mis)conduct to the visual documentation of human rights abuses, the process of transforming material experience into digital evidence can facilitate accountability or resistance. These citizen-led forms of surveillance also function as forms of resistance to more panoptic forms of state-sponsored video collection and surveillance (e.g. camera-enabled drones, CCTV cameras). On the other hand, police-worn body cameras also act as an accountability mechanism, even though they face away from officers and collect evidence about—and document the conduct of—civilians. These forms of mobile, user-controlled cameras significantly alter earlier reliance on more static and passive video collection.
As technological developments far outpace empirical research on—and legal regulation of—visual data, this special paper symposium in Law & Social Inquiry will provide an opportunity to highlight new empirical work with connections to law and policy, serve as a venue to build theory about a rapidly changing subject, and showcase research relevant to a variety of stakeholders—including lawyers, judges, law enforcement, legislators and policymakers, activists and civil and human rights organizations, technologists, and academics in a variety of fields.
We welcome contributions that present original empirical research; offer conceptual, critical, or theoretical analyses; or address the unique legal, ethical, and policy questions implicated by visual documentation. We welcome scholarly contributions that come from—or that cross—academic disciplines such as sociology, law, information science, anthropology, science and technology studies, criminology, geography, communications and media studies, and computer science.
We encourage submissions addressing (but not limited to) such subjects as:
- Body-worn cameras, dashcams, policing practices
- Citizen video/video as human rights advocacy
- Covert and overt recording
- Video as surveillance and sousveillance
- Resistance to and avoidance of audio or visual surveillance
- Design and regulation of audio or visual surveillance systems
- Unanticipated consequences of audio or visual records
- Use and interpretation of audio or video as evidence in legal proceedings
- Data storage, access, and retention policies
- Algorithmic practices of metadata extraction from video content
- Image processing
- Technical means of privacy preservation and authentication
- Audio and video analytics and forensics
- Audio and video redaction and privacy concerns
- Live streaming
- Video/audio and public opinion
- Voyeurism, victimhood, and the ethics of viewing
- Affective aspects of video
- Embedding human values into the design of video-related technologies or systems (e.g. value sensitive design or privacy by design)
- Implications for inequality
- Facial recognition or other forms of biometrics enabled by audio or visual documentation and recording
Deadlines and anticipated timeline:
- Initial abstract submission deadline (~ 500 words):August 10, 2016
- Authors notified of (tentative) acceptance:August 30, 2016
- Full papers due (based on accepted abstracts):December 1, 2016
- Papers sent out for peer-review: mid-December, 2016
- Reviews returned to authors (with editorial decisions): expected, Feb.-Mar. 2017
- Publication in 2017
Specifics about submissions:
Initial abstracts should contain approximately 500 words. Subsequent full paper submissions should contain fewer than 10,000 words (including footnotes and citations), and should contain a 200-word abstract and biographical information about the authors on a cover page. Invited full paper submissions will undergo formal double-blind peer review, which is expected to take between 1 and 3 months (submissions that are not selected for peer-review will be released back to the authors quickly). All submissions should be submitted in editable Word (*.doc/x) or *.rtf formats, and should adhere to the formatting and citation requirements of Law & Social Inquiry (available at http://www.blackwellpublishing.com/pdf/lsi_author_guidelines.pdf).
All submissions should be sent to the editors via email to LSIvisualdataspecialissue@gmail.com. Please do not submit to this special call via the regular Law & Social Inquiry journal submission portal.
Additional questions may be sent to the editors at the same address.
Thursday, July 21, 2016
Athlete speech and team dynamics
Last week, NBA stars Carmelo Anthony, Chris Paul, LeBron James, and and Dwyane Wade kicked off the ESPY Award telecast with a call for athletes to become politically engaged, particularly around the issues of violence by and against police. Players on the Minnesota Lynx wore black warmup shirts with white lettering commemorating Alton Sterling, Philando Castile, and Dallas shootings, which prompted four off-duty police officers to walk-off their security jobs there. Several other teams followed suit by wearing plain black warmup shirts, which prompted the league to fine each team $ 5000 and each player $ 500, citing its uniform policy. The league president praising and expressed pride in the players' "engagement and passionate advocacy for non-violent solutions to difficult social issues," while demanding that they "comply with the league's uniform guidelines." This, of course, is a classic example of how neutral policies can be used to restrain speech, while allowing those doing the restraining to claim to support the speech. Players responded today with a media blackout, refusing to answer basketball-related questions and only talking about the political issues at the heart of their protests. Since the league no doubt has rules about speaking with the media, expect the WNBA to follow with more praise for the players' political courage, more citation to "neutral" rules, and more fines for that political courage.
This is playing out on a smaller stage than if it were male athletes in football, basketball, and baseball. But this story illustrates important issues about athlete speech for team, as opposed to individual, sports. The athletes we remember as being most politically engaged played individual sports--Muhammad Ali, Arthur Ashe, John Carlos, Billie Jean King, Jesse Owens, Tommie Smith. A lot of the activism from Jackie Robinson and Jim Brown came after each had retired and, in any event, rarely came out on the field (except to the extent Robinson's very presence on the field was political). All athletes risk their standing with the public and fans who may object to their speech (recall Michael Jordan's apocryphal "Republicans buy shoes, too"). But team-sport athletes face another hurdle--their expression implicates the financial, business, and other concerns of teams and leagues, who have their own incentives to limit this speech. Neutral rules designed to promote the sport (speaking to the media) or to promote team unity (uniform rules) provide the perfect weapon of control, allowing leagues or teams to shut the players down without appearing to be stopping them because of their message.
The question then becomes the extent to which "athlete speech" includes (or should include) the liberty to speak through the game itself and the platform the game provides. In other words, the extent to which LeBron James not only should be able to rely on his fame to get his message out, but also the platform of the game itself to do so.
Trump, Turkey, and the "problem" of civil liberties
Donald Trump's interview with The New York Times would be the story of the day, but for Ted Cruz's act of political courage/political suicide. Trump was asked about the situation in Turkey, where President Recep Endrogan survived a coup attempt and is consolidating power, declaring a three-month state of emergency, purging political rivals, and imposing restrictions on speech and press. Trump's short answer was that the US has too many problems at home and has no right to lecture other countries about civil liberties.
Some have read that as Trump saying that we have issues with limits on civil liberties here, so we cannot speak to anyone else about their own limits. That is what people usually mean by "no right to X"--we don't have the right to lecture anyone about X, because we do X ourselves. It is an argument about hypocrisy and inconsistency between word and deed.
But a closer look at Trump's remarks reveals the opposite. Trump is arguing that we have anarchy here, implicitly because we have too many civil liberties. So we need to restore order (which fits with his new Nixonian Law-and-Order theme) before worrying about urging other countries to be less repressive on their own people. It is an odd use of the "no right to" argument, but it better fits with his views of dissent and speech he does not like.Here is the exchange (from the transcript, which The Times released when--stop me if you heard this one before--the campaign denied Trump had said what the newspaper reported).
SANGER: Erdogan put nearly 50,000 people in jail or suspend them, suspended thousands of teachers, he imprisoned many in the military and the police, he dismissed a lot of the judiciary. Does this worry you? And would you rather deal with a strongman who’s also been a strong ally, or with somebody that’s got a greater appreciation of civil liberties than Mr. Erdogan has? Would you press him to make sure the rule of law applies?
TRUMP: I think right now when it comes to civil liberties, our country has a lot of problems, and I think it’s very hard for us to get involved in other countries when we don’t know what we are doing and we can’t see straight in our own country. We have tremendous problems when you have policemen being shot in the streets, when you have riots, when you have Ferguson. When you have Baltimore. When you have all of the things that are happening in this country — we have other problems, and I think we have to focus on those problems. When the world looks at how bad the United States is, and then we go and talk about civil liberties, I don’t think we’re a very good messenger.
SANGER: So that suggests that you would not, as, say, President Bush did, the last President Bush, make the spread of democracy and liberty sort of a core of your foreign policy. You would say, “We need allies, we’re not going to lecture them about what they do inside their borders.”
TRUMP: We need allies.
SANGER: And lecture inside their borders?
TRUMP: I don’t know that we have a right to lecture. Just look about what’s happening with our country. How are we going to lecture when people are shooting our policemen in cold blood. How are we going to lecture when you see the riots and the horror going on in our own country. We have so many difficulties in our country right now that I don’t think we should be, and there may be a time when we can get much more aggressive on that subject, and it will be a wonderful thing to be more aggressive. We’re not in a position to be more aggressive. We have to fix our own mess.
His point is that we should not be worried about civil liberties elsewhere. But implicitly he is arguing that we also should not be worried about civil liberties at home, but instead about the government gaining control against the "riots and the horror"and "our own mess."*
[*] The party flip between optimism and pessimism and how great America is right now is fascinating. It will be interesting to see how and if the Democrats strike at this theme next week.
Also interesting is Trump's reference to "Ferguson" as a single word with an understood meaning. But what is that meaning? To Trump, Ferguson means riots and destruction of property. To others, however, Ferguson means a police officer shooting an unarmed Black person with impunity, generally abusive police practices, and a massive overreaction to peaceful-if-angry public assembly speech, and protest. Trump obviously hopes that substantial numbers of people adopt his meaning of the single word. On the other hand, there is a consent decree in the Eastern District of Missouri--explicitly requiring changes in policy and training with respect to responding to public expression, handling of encounters with suspects, and the operation of fine offensives in municipal courts--that suggests the former may be the better narrative. So is the problem of Ferguson too much speech (or at least too much speech critical of police)?
Similarly, what does Trump understand "Baltimore" to represent? Wrongfully prosecuted police officers? Is outrage at the death of a person in policy custody part of the riots, horror, and mess in this country?
He Who Must Not Be Named
Do Animal Rights Trump Their Guardians' Fourth Amendment Protections?
Today, the Supreme Court of Oregon decided State v. Newcomb, an interesting animal neglect/Fourth Amendment case, which raises interesting questions about sentience, ownership, poverty, and state intervention.
Newcomb's neighbor complained to the police that Newcomb was neglecting and starving her dog, Juno. A police officer arrived at Newcomb's house and saw Juno "in a near-emaciated condition", with "no fat on his body", "eating at random things in the yard, and * * * trying to vomit", but "nothing was coming up." The officer inquired as to the dog's condition, and Newcomb explained that she had run out of food for the dog, which she bought in small quantities. The officer took custody of Juno and brought him to the Humane Society, where he was found to be in deplorable physical condition due to starvation. The vet took a [warrantless] blood sample--which is at the heart of the controversy here--which found that Juno had no underlying condition explaining his emaciated state except malnutrition.
Newcomb was charged with second-degree animal neglect and moved to suppress the evidence. She claimed the officer had no probable cause to seize Juno. More interestingly, she claimed that, since the dog is no more than property in the eyes of the law--"no different than a folder or a stereo or a vehicle or a boot"--the blood sample was an unreasonable Fourth Amendment search, which violated Newcomb's expectation of privacy. The fact-finding court denied the motion and Newcomb was convicted. At the Oregon Court of Appeals, the decision was reversed with regard to the blood sample. The Supreme Court unanimously reversed, finding for the State and affirming the conviction.
The Court reiterated the importance of Fourth Amendment protections in people's "... effects", and proceeded to ask whether it mattered that the "effect" in question was a living animal, rather than an inanimate piece of property. Under Oregon law, dogs are explicitly said to be personal property; but is Juno akin to a search in an opaque container, the contents of which requires probable cause and a warrant? The Court reasoned that not all property was the same for Fourth Amendment purposes, and that the extent of protection of property may be sensitive to the nature of the property, the defendant's relationship to the property, and the circumstances of the government's intrusion into said property.
Relying on State v. Fessenden/Dicke, the Court held that animals are a distinct form of property, worth of protection. The extensive animal welfare legislation is evidence of this intent. These laws reflect the understanding the animals are sentient beings, capable of feeling pain, and while the law does not place them on a par with humans--allowing for their killing and for medical research--it does create special norms.
In the context of humans' Fourth Amendment rights in their nonhuman animal companions, the Court looks to social norms and conventions. For example, if someone walks their dog off-leash down the street, and a well-meaning third party pets the dog, there is no Fourth Amendment violation. However, if said third party suddenly uses a syringe to take a blood sample from the dog--even for the purpose of important research--that would fall outside convention to the point of violating the dog's human's expectation of privacy.
In this case, Juno's removal from the defendant's dominion was done for the purpose of protecting Juno, who was emaciated and dry-heaving. The vet drew the blood sample for the legitimate purpose of Juno's medical treatment. Juno's blood was part of him--he was not a vessel for the defendant in which to hide things. As the prosecutor said, inside Juno was "more dog".
The limitations Oregon law places on ownership and possessory rights in animals mean that the defendant had no Fourth Amendment rights to override her duty to provide minimal care for the dog.
Fourth Amendment Thoughts
The takeaway from Newcomb can be read narrowly or broadly. Narrowly, it applies to animals, in situations in which the seizure of the sample is taken primarily for medical reasons. But what happens if things are more complicated? Our local SPCA vet, who treated one of our cats in the summer, told us that, not infrequently, the clinic finds traces of meth in pets (this happens with heroin as well). That this is absolutely horrifying should go without saying (and what an indicator of human as well as animal tragedy). But I wonder: If the vet suspects the animal to have been drugged with meth--which is, of course, an issue of animal welfare, but also an issue clearly involving the owner's criminality--does that change the Fourth Amendment balance?
Moreover: Does the finding that not all "effects" are created alike apply just to animals, or to other distinctions between different "effects"? For example, does ecological damage to plants/trees in one's territory merit more intrusion than damage to non-organic property? I lean toward the idea that, in creating these boundaries, the guideline should be sentience: as many vegan thinkers (including Sherry Colb, Peter Singer, and others) suggest, it makes sense to draw this boundary in the place of the existence of a central nervous system. The Oregon Court did not have the opportunity (and probably the inclination) in this case to go as far as those of us who find animal exploitation for consumption to be a serious moral atrocity, but the rationale--being sentient, feeling suffering--holds true for this context as well.
Extra-Legal Issues 1: Poverty, Animals, and Protectionism
It's not difficult to read between the lines in Newcomb, even though the Court doesn't really do that. Newcomb said to the police officer that she fed the dog WinCo food bought in small packages. WinCo is a low-grade kibble that sells in bulk at Costco, chock-full of grains, chemicals, and artificial fillers. It's telling that the defendant did not buy the kibble in bulk, but rather in small packages: poor people can't afford to spend on bulk and reap the savings, which is true for every product. As Yesim Orhun and Mike Palazzolo found in a study based on Nielsen data, frugality is hard to afford.
Hastings is located in San Francisco's Tenderloin neighborhood, which is a window into the lives of people ravaged by extreme poverty. We frequently see folks who live in the streets with pets, which almost always seem groomed, well-fed, and very much loved. But since homeless people's lives, by their very nature, are exposed to the eyes of strangers, the ability to detect animal welfare and neglect is heightened, to the point that the police might intervene more frequently than when it gets reports of neglect in houses. Obviously, Newcomb was not homeless. But the reason she provided for the dog's emaciated condition is very telling, and might also explain the police's zealousness in following up on the complaint.
Don't get me wrong: I think the court's decision is 100% correct. The rights of an animal that is mistreated should trump the "ownership" rights of whoever owns him or her, regardless of social class. But I think it does raise questions as to whether we enforce these laws equitably, and whether we should develop means to report and expose animal abuse and neglect in other settings.
Extra-Legal Issues 2: The Ethics of Regarding Animals as Property
Newcomb has been hailed by the Animal Legal Defense Fund as a "win for all animals" (I just got an email from them; if you'd like to support their important work on Oregon law and elsewhere, click here.) But it does little to shake the solid foundation of animal status as property in U.S. law. Which begs the question: if the only way to guarantee the safety and well-being of companion animals, under a property law scheme, is to relax a bit the definition of property--namely, to regard them as a "special category of property"--does that raise a question as to the ethics of animal ownership at all?
In Run, Spot, Run: The Ethics of Keeping Pets, bioethicist Jessica Pierce challenges the welfarist and anthropocentric views supporting pet keeping, raising the question whether pet ownership, in itself, is ethical, and if so, whether some species should never be kept as pets. Individual animals' lives are saved through the framework of ownership, but they are also curtailed; which of the two factors should guide our legal regime? And, assuming that some domestic animals would not exist if we weren't raising them to serve us--as consumer products or as company--is it ethical to keep their status as it is to propagate the species? The debate over ecocentrism and biocentrism comes to mind.
The Oregon Supreme Court decided this case correctly within the existing legal framework. But it is up to us to question the logic of this framework, or to imagine alternative frameworks in which sentient beings do not belong in the property category.
Wednesday, July 20, 2016
In defense of Paul Ryan (no, really)
Paul Ryan is taking heat, from right and left, for his speech last night and his general decision to support Trump's presidency. But Ryan's decision is defensible, in terms of his political and policy goals.
He wants to enact a particular conservative agenda, which he only can do with a Republican in the White House. Ryan may sincerely believe that Trump is not Mussolini or David Duke [or other non-Hitler authoritarian], but Warren Harding with verbal diarrhea--someone who lacks the ability or interest to govern and will turn things over to those around him. So Trump will travel the world and the country talking (sometimes stupidly, perhaps, but never to any real effect), leaving the business of governing to others. Ryan must believe that he will be that other (although it could be Mike Pence), with Trump coming back to sign the bills that Ryan passes. In a sense, Ryan is trying to make himself something like a Prime Minister--the head of government to Trump's figurehead head of state. It is telling that his speech last night spoke less of electing Trump than of establishing a "conservative majority" that could enact the conservative legislative agenda. Trump is necessary for that only in that he is more likely to sign that agenda into law than Hillary Clinton.
Ryan could be wrong about what Trump is and would be as President, of course, and this could blow up in his face. But if he genuinely believes Trump is not dangerous, then this move is the logical extension of the recent trend toward a system that only works if there is party unity between the legislative and executive branches. It no longer matters who is President, only his party affiliation.
Note that Mitch McConnell is making the same calculation in the Senate (with the added bonus that he is more likely to keep his job as Majority Leader if Trump wins, since a Clinton win may flip the Senate), although without taking the same heat. That must be because no one had any illusions that McConnell was anything other than a political hack.
SSRN, Elsevier, and the Alternatives (again)
(I've updated this post on July 21 at 10:17am CET, and I've indicated below what content is new or revised)
Elsevier has become the world's largest open-access publisher, but it has also faced quite a lot of pushback from scholars over its open access policies. Now it has purchased SSRN, generally seen as the go-to repository for open access to (mostly) pre-print legal scholarship (or papers not bound by restrictive copyright licenses), and certain voices have begun to call for authors to pull out of SSRN and move elsewhere (the almost-in-beta nonprofit and open access SocArXiv repository looks like it might make a viable option as it comes more fully online).
Following up on this recent post by Howard (of an email by Stephen Henderson (Oklahoma)), as well as coverage at TechDirt, and Author's Alliance (asking: "Is it Time for Authors to Leave SSRN?"), I wanted to raise some additional questions. My first reaction is that a well-organized and sufficiently funded not-for-profit platform would be much more preferable in the long run than keeping ties with a for-profit platform owned by a controversial mega-publisher. However, I wonder whether such a move is worth it, without some larger (even institutional) challenge to SSRN's reign. I also wonder whether junior scholars like me risk more in leaving than more established scholars. To the specific questions:
First, is there a role for institutions (law schools) to withdraw support for SSRN/Elsevier and move towards supporting a non-profit like SocArXiv? If so, how would we organize such a movement? Would it be worth it in the long run to move support away from a for-profit platform to something like SocArXiv? SSRN has done a good job of getting institutional buy-in, which may make it harder for a broader institutional challenge to its pre-eminence in this regard. For example, my own law school, at Tilburg University, has proudly advertised that we are ranked in the top 10 (worldwide) and #2 (international, non-US) on SSRN for "total new downloads." We also publish our working paper series through SSRN. Yet, we also have a history of calling for boycotts of Elsevier over not making more work available on an open access basis in the Netherlands. (Edit: I offered these examples to show that the elements of gamification on SSRN work as a way to entrench support or, at least, make leaving more costly.)
Second, what are the individual risks of pulling papers off SSRN and moving elsewhere? Would pulling papers off SSRN (and thus presumably losing the stats and author ranking on the site) be more risky for less established junior scholars (or law prof hopefuls)? What role has SSRN (and author download rankings) played in evaluating entry-level job candidates or lateral candidates for jobs, or internal candidates for promotion/tenure? Does SSRN performance play any role in committees or administrations judging scholarly impact? (if so, should it?)
[Edit: Third, If a new open-access archive for law scholarship were to come online in the near future, what characteristics or features would you want it to have or not have (either those already existing on SSRN, ResearchGate, et al., or entirely new features?)]
Update (July 21, 2016 at 10:17am CET):
Since I published this post yesterday, a number of new discussions on this topic popped up on a variety of lawprof listservs. The following thoughts from Ariel Katz (Toronto) are shared with permission:
I’d like to float the following idea:
The names of esteemed members of these groups adorn SSRN’s subject matter journals. For example: the editors of the Cyberspace Law eJournals are Peter Swire and Jonathan Zittrain, and members of the Advisory Board are: A. Michael Froomkin, Trotter Hardy, David Reynold Johnson, Ethan Katsh, Mark A. Lemley, Jessica Litman, David G. Post, Margaret Jane Radin, Pamela Samuelson, and Eugene Volokh. Rob Merges is the editor of the IP eJournals and the Advisory Board members are Rebecca S. Eisenberg, Paul Goldstein, I. Trotter Hardy, William M. Landes, Mark A. Lemley, J. Thomas Mccarthy, Margaret Jane Radin, and Pamela Samuelson.
I imagine that being an editor or a member of those advisory boards is rather meaningless in practice, and I won’t be surprised if some of the colleagues whose names are on those advisory boards don’t even remember that they have once assumed this role. However, decorating it’s communications with those names isn’t meaningless for SSRN, because it has helped it to build its reputation for a scholarly endeavor and a scholar-friendly entity, and appear to be part of the academia even though it has always been a private company.
Now, I don’t know if colleagues who are members of the advisory boards were ever asked to actually provide advice. But maybe now is the time to give it, even if unsolicited. If I were on one of these boards I think I might share my concerns with SSRN and decline to give my name if SSRN failed to provide satisfactory answers.
This email was quickly followed by a number of advisory board members voicing support for coordinating a more united front to give advice to SSRN, or to think about what an ideal alternative platform might look like.
Tuesday, July 19, 2016
Stanley Fish is Criticizing the Academy, for a Change
I must admit that I am bothered by Stanley Fish’s op-ed from a couple of days ago, entitled Professors, Stop Opining About Trump. In it, he criticizes the strongly anti-Trump “Open Letter” from a group of historians calling itself Historians Against Trump, published on July 11, 2016.
In his op-ed, Fish describes the letter as hubristic, in that it improperly seeks both to “equate the possession of an advanced degree with virtue” and to “claim for [the historians] a corporate identity and more than imply that they speak for the profession of history.” He points out that historians do not all share the same political views; that the fact that “that they have read certain books, taken and taught certain courses and written scholarly essays, often on topics of interest only to other practitioners in the field” gives them no special expertise relevant to the question of Trump’s suitability for the presidency; and that professional academic historians’ job is not to opine publicly on such matters, but rather to “to teach students how to handle archival materials, how to distinguish between reliable and unreliable evidence, [and] how to build a persuasive account of a disputed event.”
To summarize, it seems there are two principal aspects of the Open Letter that Fish takes issue with: first, that it claims to speak on behalf of an entire profession; and second, that it implies that historians, by virtue of their professions and advanced degree, have any special standing to criticize a political figure or make political arguments.
This sort of anti-elitism from within the elite of the academy has its charms, of course, and Fish is certainly one of its most brilliant and provocative practitioners....It appears self-deprecating to speak in this way (except for the fact that one often garners a lot of attention by doing so), and it gives the speaker automatic credibility: If I am willing to say things that are so clearly self-critical, so clearly against my own self-interest, it tells the reader that I must be speaking the truth.
It seems to me that Fish’s take on the Open Letter is both unfair and largely inaccurate, however. First, I fail to see how a group that calls itself “Historians Against Trump”—thus specifically designating itself as a subset of historians—can be claiming to speak for all historians. If I speak on behalf of a group called Mothers for Reproductive Freedom, I may be claiming that my status as a mother gives me some particular connection to, or authority with respect to, this issue—I am speaking “as a mother,”—but I am certainly not claiming to speak on behalf of all mothers. (Or, even more starkly, think of Jews for Jesus.) I also fail to see where the historians, in their letter, claim to embody “virtue,” or “moral and political superiority,” as opposed to simply expressing an informed opinion. I’m not convinced that the historians’ letter should be viewed any differently from a letter that the hypothetical Mothers for Reproductive Freedom might choose to write and publish on a website, articulating and even advocating for their views on a particular candidate. In this day and age, is it really shocking that a group of individuals with a particular identity take to the internet to express a collective political opinion?
Fish’s mischaracterization of the historians’ letter bothers me, but what bothers me even more is his second proposition—that possessing an advanced degree (in history, or presumably in pretty much any field at all) should give the speaker no particular standing to opine on areas outside one’s expertise (as defined, narrowly, by Fish) and should provide the listener with no reason to care at all what the speaker has to say. To say that historians might have a valuable perspective on world political events—by virtue of having had not only (in most cases) a rounded, four-year liberal-arts education, but in addition to that, somewhere between four and seven years of delving both broadly (with course work and comprehensive exams) and deeply (with a dissertation) into the discipline of history—is not to say that they know more than absolutely everyone else. But the views of someone whose job it is to think and examine and write about history—which of course itself touches on, among other things, human nature, politics, and social life—might nonetheless be worth listening to. I don’t see how it’s hubristic of the historians to suggest as much.
Indeed, consider again how Fish characterizes the “job” of the historian: in addition to the “handling” of archival materials, they are apparently experts in “how to distinguish between reliable and unreliable evidence, [and] how to build a persuasive account of a disputed event.” Yet, these are precisely some of the grounds on which the letter criticizes Trump—specifically calling out his “contempt for constructive, evidence-based argumentation.” Assessing the quality of evidence and of arguments is precisely the sort of skill that Fish just acknowledged that historians possess (and that even law professors possess, for that matter).
Finally, I am very troubled by Fish’s mocking suggestion that “[t]hey are saying, here is our view of the election and you should pay particular attention to it because we are academics; indeed in speaking out, we are doing our academic job.” I have already explained why I think that, in fact, maybe some attention should be paid because they are academics, and they presumably have not only a relevant skill set but also the time that many Americans don’t have to dwell on the big picture of world events. I frankly don’t know where he gets the idea that the historians are saying that this sort of speaking out is “part of the job,” but—after all—even if they’re not on the clock while they're doing it, aren’t academics supposed and expected to speak out about matters of public importance? Especially when something potentially quite significant is at stake? According to Fish, the answer to that question is an emphatic no, but in my view, he hasn’t made a very persuasive case for why—at least not here.
Black and Blue in Baltimore
Was it worth it? A judge, after a bench trial, just acquitted the third and highest ranking of the Baltimore police officers charged with killing Freddie Gray. So far there have been no convictions. Should the Baltimore District Attorney prosecute the others? More generally, is there a duty to prosecute public officials, even if there is only a remote chance of success on the merits?
I think the work of Antony Duff might prove helpful here. He believes wrongdoers are a specific category of people identified by a duty that they are under: to answer to those they have wronged for their unjustified and harmful act. The duty to answer is, so Duff thinks, a feature of responsibility: wronging someone puts the wrongdoer in a relationship with their victim. The victim has the duty (not just the right, but—Duff believes—the duty) to call the wrongdoer to account; and the wrongdoer owes the victim a response: the wrongdoer has a duty to account for her wrongdoing by giving reasons to justify, excuse, or accept the blame for her wrongdoing, and then take action to expiate her wrong. Owing a response places the onus on the wrongdoer to come forward with her account; morally, she cannot just stand pat and hope no-one notices the wrong, or her responsibility for it.Duff draws a line between ordinary moral wrongs and extraordinary criminal wrongs. What makes criminal wrongs so extraordinary, he thinks, is that they are wrongs that the public ought to take an interest in. Failing to buy a beer when it is your round is a wrong, but unless I’m one of the folks you are drinking beer with, it’s none of my business that you are stingy and selfish. Engaging in an act of domestic violence is a wrong, but even though it may occur in a private place, it is a wrong that affects the community as a whole, and which the public has an interest in seeing prosecuted. Moreover, the community enacts criminal laws to express the fact that it is the public’s business. People whose wrongs affect the community are not just ordinary wrongdoers; they are criminal offenders and have a duty to come forward to answer the community, to whom they are accountable, in a public forum, such as a trial.
Duff’s special significance as a theorist of punishment and criminal responsibility is (as Malcolm Thorburn points out) in identifying the trial (rather than the punishment) as the focal point of the criminal justice system. The trial is centerpiece of the accountability because it is a communicative forum. It is there, in public, that the offender answers to the community and (if the law provides) suffers public censure. Responsibility for wrongdoing demands (for Duff) that the offender answer to someone; responsibility for criminal activity requires an offender answer to the public through the trial process. The result of the trial (conviction or acquittal) is secondary to calling the offender to account.
Duff’s view suggests that whenever the community plausibly suspects that someone is a wrongdoer, then both the community and the wrongdoer have a positive duty discuss it: to demand and provide a rational accounting of the wrong. Where the wrong is one that touches the community as a whole, then the proper forum for such an accounting is the criminal trial.
Duff’s argument about communities and the criminal law is quite compelling. At the very least, it provides an important moral basis for criminal law: that it is the moral law of the public, the community; not just a set of wrongs that the politicians decide to sanction with an especially harsh or significant punishment. The wrongs of the criminal law are extraordinary ones which affect the community as a community. And when the wrongs are those engaged in by public officials, then the community and the state has an especial interest in ensuring that the official publicly accounting for those wrongs. (Duff has some radical and interesting things to say on this, which would take too much time here. See his Punishment, Communication, and Community at 183-17; see also Ekow Yankah, Legal Vices and Civic Virtues). [As a side note, Duff, Yankah, and Thorburn are not just theorists of criminal law; what they have to say about criminal procedure, and in particular its relation to political theory, deserves much more attention in the world of mainstream American criminal procedure than they are currently receiving).
So trying the other Baltimore officers involved in the Freddie Gray killing is not a waste of time: it is an important way to treat the community as wronged and the officers as responsible—as individuals who are capable of being held responsible and so have a duty to answer in a public forum. It is not enough: if there was a wrong, then the officers in addition deserve public censure and should make some form of reconciliatory act to the public and the victims—the Freddie Gray family. If the court fails to acknowledge the officers’ wrong, they still remain on the hook as wrongdoers if not as offenders. But now the legal system too is on the hook, for failing to provide an adequate forum, not only for accountability, but also for censure and expiation. Without these further possibilities, the community—the public, the people—are inadequately valued by the state, and will continue to feel that they have been denied the justice they deserve as equal members of the polity.
One final thought: in her excellent book, Prosecuting Domestic Violence, Michelle Madden Dempsey also discusses the role of the prosecutor in constituting the community. While she and Duff have important differences, Dempsey's discussion of the ways in which the prosecutor constitutes the community on behalf of the state, and so the prosecutor's duties to the community as a public official, is essential reading for anyone interested in this topic. I hope to say a little more about Dempsey's work in a later post.
Monday, July 18, 2016
Decentralizing the Exclusionary Rule
One strand of my research in the last few years has focused on exploring what I see as a federalism component of the Fourth Amendment. In The Contingent Fourth Amendment, 64 Emory L.J. 1229 (2015), I looked at the law of search and seizure from 1765 to 1795, with particular focus on the Justice of the Peace manuals used at the time, and what the Anti-Federalists said and wrote about search and seizure during the ratification period. I concluded that the best way of viewing the Reasonableness Clause of the Fourth Amendment was as a constraint that federal officers follow state law when searching and seizing. In a piece I am currently finishing up, “The Local-Control Model of the Fourth Amendment,” http://ssrn.com/abstract=2721014, I provide more evidence in support of that claim and I contrast this “local-control model” to the two dominant models of viewing the Fourth Amendment, the “warrant model” and the “reasonableness model.” And in “Decentralizing Fourth Amendment Search Doctrine,” which I just began in earnest, I am exploring the claim that the “what is a search” question should be decentralized so that the answer might differ by State, or even by locality.
Something I so far have not looked at, but hope to in the coming years, is the exclusionary rule, and how a decentralized approach to the rule might make sense.That’s why I was intrigued when listening to the oral argument in Utah v. Strieff. Early on, Justices Sotomayor and Kagan express a concern that when a high percentage of people have outstanding warrants, the police might have every incentive to conduct illegal stops if – as the Court ultimately ruled – the evidence found as a result of the ensuing arrest is not generally subject to the exclusionary rule. But, of course, the percentage of residents with outstanding warrants is going to vary widely from place to place. As Justice Sotomayor put it: “[I]f you have a town like Ferguson [Missouri], where 80 percent of the residents have minor traffic warrants out, there may be a very good incentive for just standing on the street corner in Ferguson and asking every citizen, give me your ID . . . .” Justice Kagan almost immediately followed up with
if you're policing a community where there is some significant percentage of people who have arrest warrants out on them, it really does increase your incentive to . . . make that stop on the chance that there will be a warrant that will allow you to search and admit whatever evidence you gained in that search. * * * [I]t does change your incentives quite dramatically, it seems to me, if you're policing a community where there is some significant percentage of people who have arrest warrants.
So that led me to wonder why we think about the exclusionary rule in gross, rather than at the retail level. The Court has posited that the only justification for the exclusionary rule is the deterrence of police misconduct. The Court has also said that whether the rule deters police misconduct must be evaluated on a context-by-context basis. Excluding evidence from anything but a criminal trial, the Court has told us, is not worth the price we pay in the currency of lost evidence. Fair enough. The deterrent value of excluding evidence is also not worth the cost where the arresting officer reasonably relied on an invalid warrant, an unconstitutional statute, an erroneous report of the existence of an outstanding warrant, or binding case law that was later reversed. Again, fair enough. But if we are going to apply the exclusionary rule in such a context-sensitive way, why not also vary it by locality? If the figures set forth by Justice Sotomayor are accurate, the incentives for police in some communities are going to be very different than in other communities. The entire concept of deterrence hinges on a prediction based on empirical evidence about how people will act under certain conditions. If one of the variables that might change the prediction is the locality, because of the percentage of people who are subject to outstanding warrants, then it seems to me that if the defendant shows that this percentage is high, the prediction about police behavior ought to change accordingly
Indeed, the majority opinion in Strieff seems to leave open the possibility of a more localized application of the exclusionary rule. The Court acknowledged the argument that a large number of outstanding warrants within a local population might motivate the police to conduct illegal stops in the hopes of hitting upon a person with such a warrant. It did not outright reject this argument; it wrote simply that this was not a problem in the locality where the stop took place:
Strieff argues that, because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think that this outcome is unlikely. Such wanton conduct would expose police to civil liability. And in any event, the Brown factors take account of the purpose and flagrancy of police misconduct. Were evidence of a dragnet search presented here, the application of the Brown factors could be different. But there is no evidence that the concerns that Strieff raises with the criminal justice system are present in South Salt Lake City, Utah.
(citations omitted) (emphasis added). Thus, the Court folded the perverse incentives argument into the third Brown factor, the purpose and flagrancy of the police misconduct. My argument is somewhat different. The Court seems to be willing to take into account idiosyncratic characteristics of the locality but only to the extent that they might produce flagrant, systemic flouting of the Fourth Amendment. My approach would not require evidence of misconduct that stark, which might be nigh impossible for a defendant to produce. I would simply allow local judges to take into account local conditions in determining what the likely incentives are for police within those localities. If the community has a very high number of people with outstanding warrants, the incentive is there for police to take advantage of that, regardless of whether there is hard proof that they do so on a systemic basis. One can presume that, as rational actors, at least some police will do so. The exclusionary rule should be applied to counteract that incentive.
Sunday, July 17, 2016
Greetings from France
As chance would have it, I happen to be in Paris at the moment (and was here at the time of the Nice attack, on the 14th of July). I can’t imagine what it’s like to be in Nice at the moment; Paris is very calm and even somewhat quiet, though this is probably at least partly attributable to the fact that the city is starting to empty out for the long holiday season for the French, which stretches from the second half of July to the end of August.
I haven’t had enough contact with actual French people here to tell you what they are thinking and feeling about the Nice attack; it would be pretty presumptuous to try to speak for them anyway, even if I did. But I was struck by a headline in the Sunday edition of Le Monde, which roughly translates to “After Nice, [Prime Minister] Valls responds to critics, denounces ‘Trumpification.’” (The article, which recounts an interview with the Prime Minister, makes clear that this neologism refers to Trump’s proposed policy of excluding all Muslims from the country.) Apparently, Donald Trump is already having an impact on policy, or at least rhetoric, abroad—though at this point the impact is mostly in the form of rejection of his views. I’ll leave it to others to imagine what the Donald’s Twitter response would be, if he ever read Le Monde...
Saturday, July 16, 2016
Free assembly at the Cleveland RNC
Tabatha Abu El-Haj (Drexel) writes at Slate about the looming First Amendment disaster at next week's Republican Convention in Cleveland, given the severe restrictions on public assembly and speech the city has imposed and the current desiccated state of this area of the First Amendment. And this will be an improvement over what the city attempted; stricter regulations (for example, pushing protesters more than three miles away from the site of the Convention) were declared invalid by a federal district court.
Part of Tabatha's argument is the following:
While policing the line between constitutionally protected protest and unlawful assembly is unquestionably difficult, the fact is that cities hosting party conventions tend to do a poor job of distinguishing between the violent and the merely angry elements of assemblies. Nonviolent protesters are frequently charged with various misdemeanors from disorderly conduct and breach of the peace to trespass and disobeying lawful police orders for any minor breach of the public order. Denver police charged some Occupy participants with improperly honking car horns. Even if those charges are subsequently dropped, as with those in Denver, it will not matter much to the individual who was removed from the scene while attempting to exercise her First Amendment rights.
I will add a procedural hook to this. This individual could sue for damages for the improper arrest or for removing her from the scene. But the arresting officers likely have qualified immunity. And any damages (against non-immunized officers or the city) will be limited, if not solely nominal, damages the city already has worked into the cost of doing business. The real financial risk to the city is attorneys' fees for prevailing plaintiffs, which similarly can be worked into the cost of doing municipal business (although they might be more substantial than the plaintiff's damages),* and, in any event, do nothing for the person whose rights were violated. These procedural realities also incentivize cities to do what Cleveland did here. Enact extreme restrictions (even ones officials believe cannot survive constitutional scrutiny) on the eve of the event, knowing there will not be enough time to redraft better (or substantially better) regulations. Even if, as happened here, a court steps in to declare invalid the extreme violations, a court, aware of time constraints, is unlikely to do the same for the entire plan and make the city start over. To the extent those regulations produce First Amendment violations during the Convention, the city can deal with the limited costs (nominal damages and attorney's fees) in ex post litigation.
[*] I have been arguing that attorneys' fees represent the greatest incentive for departmentalist states and executives to fall into line with judicial precedent.
Friday, July 15, 2016
Interesting Development in Federal Capital Case in Vermont
As reported by a local Vermont paper, there is an interesting development going on in a federal capital case in Vermont, United States v. Donald Fell. Fell and an accomplice committed a carjacking in Vermont in 2000 in which they kidnapped the victim, Teresca King, drove her into New York, and killed her. Fell was convicted and sentenced to death in 2005. The Second Circuit affirmed but the conviction was vacated in 2014 due to juror misconduct. The case is back in the District of Vermont for retrial.
The defense filed the usual battery of motions for a capital case, arguing among other things that the death penalty has become cruel and unusual punishment. Curiously, the court issued an order this past February calling for a hearing on the issue. Citing Justice Breyer’s dissenting opinion in Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting), the court expressed an interest in the suggestion there that the risk of wrongful execution, the geographic disparities in the implementation of the death penalty, the long delays before execution, and the purported arbitrariness in meting out the death penalty all added up to its unconstitutionality. However, the court seemed unsatisfied with deciding these issues without a factual record complete with testifying experts, and wrote that the purpose of a hearing “is to develop the fullest possible expression of both sides' factual and empirical arguments.” In particular, while capital defendants typically repeat the same empirical assertions in their briefs, a hearing would provide the Government the opportunity to “cross-examine the sources of social and statistical information cited by the defense” and “offer its own empirical evidence in response.”
That hearing began this past Monday and is scheduled to continue next week. Irrespective of how the court rules, it appears that the court is attempting to get as complete a factual record as possible in order to tee the unconstitutionality issue up for appeal. My interest in this particular case stems from the fact that this is a federal capital prosecution for crimes occurring in a non-death penalty State (well, here, two separate non-death penalty States). I have appeared in the case as an amicus and have filed an amicus brief on my own behalf making the argument, based on my prior scholarship, that the Cruel and Unusual Punishments Clause forbids the imposition of the federal death penalty under these circumstances. Presumably, the court will ultimately address that issue as well, unless it is mooted by a broader ruling that the death penalty is unconstitutional full stop.
SSRN postings and copyright
The following was sent by Stephen Henderson (Oklahoma) to the Law Prof Listserv; it is reposted here with his permission. It is one experience and could be unique, but it presents something to watch for.
It appears that the corporate takeover of SSRN is already having a real impact.
When I posted a final PDF of an article for which not only do my co-author and I retain the copyright, but for which the contract also includes _explicit_ permission to post on SSRN, I received the typical happy “SSRN Revision Email” saying all was well. Only when I went to take a look, I found there was no longer any PDF to download at all—merely the abstract. So, download counts are gone, and no article. Not the former working version nor the final version. And then in the revision comments, I found this:
It appears that you do not retain copyright to the paper, and the PDF has been removed from public view. Please provide us with the copyright holder's written permission to post. Alternatively, you may replace this version with a working paper or preprint version, if you so desire. Questions and/or written permissions may be emailed to firstname.lastname@example.org, or call 1-877-SSRNHELP (877-777-6435 toll free) or 1-585-442-8170 outside the US.So, not only have they completely changed their model, but—at least to me—they gave no effective notice, and they pull papers without asking. Nobody bothered to _ask_ whether I had permission; they simply took down every version of the article and said nothing. Alas. And when I called customer support and someone called back, I pointed out that some profs have hundreds of articles posted for which SSRN doesn’t hold the copyright agreements. “Are you going to take all those down too?,” I asked. The answer, in essence, “Those were posted in error.” Unbelievable.
Of course, for years they have insisted on maintaining “citation counts” for legal papers despite knowing their algorithms don’t work for papers with footnotes as opposed to endnotes. So, I suppose one should not expect much. But this is new and much worse. So, be wary, and long live Bepress Digital Commons!
Old Man Yells at Cloud, First Installment
I wanted to use some of my blog posts this month to discuss some of the mechanical and organizational errors that I see authors make in their legal scholarship. This is real nitty-gritty stuff, small mistakes that may not seem to matter much but which can really detract from a piece. I was going to call this “Pet Peeves” but I think that that diminishes the importance of these points: these are not peevish predilections for a certain style of writing over others; they are things that are simply incorrect and should be fixed. On the other hand, I try not to take myself too seriously, so I have settled on “Old Man Yells at Cloud” (if you don’t know the origin, Google it).
For the first installment, I wanted to focus on a glaring error that I see more and more: Many times authors will describe an opinion as “concurring” when it really should be “concurring in the judgment.” It is as if those last three words don’t really matter, so they can be cut out. I used to think this was solely the fault of student law review editors, and in turn, perhaps, the people who are supposed to be teaching them proper citation form. I myself have had more than one set of editors “fix” my citations by changing “concurring in the judgment” to simply “concurring,” and have had to change them back. But then I saw more and more first drafts of papers, before they even hit the law reviews, that contain the same error, by people who should know better.
The difference between a concurring opinion and one concurring merely in the judgment is an important one. For one thing, a concurrence in the judgment is often more like a dissent than a straight concurrence. Take, for example, the recent case of United States v. Jones, 132 S.Ct. 945 (2012), which addressed whether government officials conduct a “search” for purposes of the Fourth Amendment when they attach a GPS device to a vehicle and track its movements for 28 days. The Justices were unanimous that this was a search but split 5-4 over the reasoning. The Court held this to be a search because the government physically intruded upon a private space, by placing an object onto personal property, for the purpose of gathering information. Justice Alito, joined by three of his colleagues, sharply disagreed with this “trespass theory” of the Fourth Amendment but concluded that tracking the suspect’s movements with a GPS device for so long infringed upon his reasonable expectation of privacy in his movements. Justice Alito spends the bulk of his separate opinion criticizing the Court’s return to the old “trespass” doctrine, with much less space devoted to why the government’s conduct violated Jones’s reasonable expectation of privacy. The opinion is much more dissent than concurrence but, of course, because he and his three colleagues would have come to the same result as the Court, it is a concurrence in the judgment. To mischaracterize it as a “concurrence” is to make much more than a simple technical error; it is to mislead the reader into thinking that Justice Alito essentially agreed with the majority and simply wanted to add his two cents or try his hand at explaining what the majority was really saying.
By contrast, Justice Sotomayor wrote a true concurrence in Jones. She joined the majority and agreed with its reasoning but wrote separately to indicate her agreement with much of what Justice Alito wrote in his separate opinion and to call into question some more general aspects of Fourth Amendment search doctrine. Thus to call both what Justice Alito wrote and what Justice Sotomayor wrote “concurrences” conveys a false impression about the two opinions and their relationship to the majority.
Another context in which the distinction really matters is where there is no majority opinion. Take, for example, Missouri v. Seibert, 542 U.S. 600 (2004), in which the Court addressed whether, where the police deliberately first obtained un-Mirandized statements from a suspect during custodial interrogation, later adherence to the Miranda warnings-and-waiver protocol rendered admissible a suspect’s subsequent statements. A plurality of the Court said that the subsequent statements were inadmissible, even though they followed Miranda warnings and waiver, because the initial statements had been un-Mirandized. However, the plurality looked to a number of factors – “the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first” – to determine when such mid-stream warnings and waiver would render subsequent statements admissible.
Justice Kennedy wrote a separate opinion concurring in the judgment, agreeing with the outcome, but relying on only one factor: that the police deliberately obtained the first set of statements without adhering to Miranda in order to “soften up” the suspect into waiving her rights on the second go-round. Had the same police conduct occurred inadvertently, Justice Kennedy presumably would have come out the other way.
Here, the distinction between a concurrence and a concurrence in the judgment is critical. Had Justice Kennedy written a straight concurrence, presumably he would have joined the plurality, making it a majority. Anything he wrote in such a concurrence would be important inasmuch as it explains the majority opinion from the perspective of the necessary fifth vote, but it would not have the force of law. By stark contrast, the opinion as a concurrence in the judgment takes on much more significance. Pursuant to the Court’s Marks rule, where there is no majority opinion, one must discern the narrowest point on which five Justices agree. In many cases, this means that a concurrence in the judgment is the law because it represents that narrowest point. In Seibert, that conclusion is more questionable, given that Justice Kennedy’s focus on the good or bad faith of the police seems to have been rejected by seven other Justices. Lawyers, judges, law students, and academics have struggled to figure out what, if anything, is the holding of Seibert. Mischaracterizing Justice Kennedy’s separate opinion in that case as a “concurrence” misleads the reader into thinking that she need not engage in that struggle because Justice Kennedy agreed with and joined his colleagues’ multi-factor analysis. But he didn’t. A mere concurrence might be enlightening but it is rarely as critical as a concurrence in the judgment when there is no majority opinion.
So “concurring in the judgment” does not mean “concurring.” Authors and editors need to stop pretending that it does.
Thursday, July 14, 2016
Some reflections on, and reactions to, Prof. Wolterstorff's "Mighty and the Almighty"
A few years ago, the Program on Church, State & Society at Notre Dame Law School hosted a day-long roundtable conversation on Prof. Nicholas Wolterstorff's then-pretty-new short book on political theology, The Mighty and the Almighty. It was really engaging, and brought together a great group of historians, theologians, philosophers, and prawfs. Each participant wrote up a short reaction/reflection paper -- a kind of "admission ticket" -- and now (finally?) they are all out in print. Here, in Vol. 4 of the Journal of Analytic Theology are papers by Marc DeGirolami, Chris Eberle, Kevin Vallier, Paul Weithman, and Terence Cuneo (and a response by Nick). And here, in the Journal of Law and Religion, are the contributions of Robert Audi, Jonathan Chaplin, Dana Dillon, Brad Gregory, John Inazu, Anna Bonta Moreland, Michael Moreland, Mark Noll, and Gladden Pappin. The book, and the tickets, are -- like the man says -- "highly recommended"!
Privacy and Transgender Bathroom Access
In the litigation and public debate surrounding transgender people’s rights to use the bathroom, two of the principal issues are the meaning of “sex” and the privacy rights of everyone using restrooms or locker rooms. In this post, I’ll address the privacy claims because doing so highlights, to me, that separate and apart from the merits of any interpretive debate on the statutory meaning of “sex,” the underlying real world concerns of all involved are, in fact, not in conflict. Transgender bathroom access does not harm or implicate the privacy concerns of anyone else. Conversely, excluding trans people from bathrooms consonant with their gender identity publicly outs them every time they use the facilities.
Opponents of permitting trans people to use the bathroom corresponding to their gender identity seem concerned that a person’s genitalia will be seen by someone with different genitalia, or that a person may see genitalia different than their own. In terms of both logistics and law, these concerns seem overstated.
First, bathrooms provide private spaces—stalls. This is true even in men’s rooms. So, if someone has a concern about who sees their genitalia, or if one prefers not to view another person’s, one can use the stall and avoid the urinals. Even in locker rooms, practical solutions such as privacy curtains can be affordably installed to provide greater privacy to those who desire it. Such curtains have been endorsed by the Department of Education.
Second, to the extent there is concern over someone’s prurient interest, those supporting bathroom bans overlook issues of sexual orientation. Transgender people—like cisgender people—can be straight, gay, or bi. Our gender does not dictate our sexuality. That’s to say, a straight transgender woman will have no sexual interest in other women in the restroom. But even if she did, we obviously permit gay men and lesbians to use public restrooms and changing facilities, so why should trans people be treated differently?
Third, the myth that transgender bathroom access somehow represents a risk of sexual violence has already been empirically refuted by government officials in jurisdictions that have trans-inclusive policies. Existing laws prohibit voyeurism and violence and transgender bathroom access doesn’t change that.
Although privacy is not endangered by the presence of transgender people, excluding trans people does endanger their privacy and safety. Forcing transgender individuals to use a bathroom that does not correspond with their gender identity and outward gender expression outs that person as transgender each time they use the public restroom.
Of course, transgender people should feel no shame over their identity or their bodies—quite the opposite. But unfortunately, misunderstanding and, at times, animus toward transgender individuals is not uncommon. As discussed in my previous post, transgender people are subject to high levels of violence, poverty, incarceration, and employment discrimination. And because comprehensive nondiscrimination protections for transgender people are lacking, maintaining privacy over one’s trans status may be critical to a range of activities from obtaining a job to keeping safe.
As such, to the extent this debate is about privacy, the real world harms seem to tilt in favor of access for transgender individuals, not exclusion.
The same holds true for privacy law.
While in broad strokes case law supports constitutional limits on the government’s ability to disseminate our private, intimate information, the cases relied on by proponents of transgender exclusion do not support their argument here.
For example, proponents of trans exclusion have relied on cases involving a female police officer being videotaped partially nude by a male colleague after taking a decontamination shower, schools installing video cameras in student locker rooms, strip searches of students, and the forceful removing of an inmate’s underclothes. These are, of course, horrific privacy invasions. But they are quite distinct from the mere presence of transgender people using facilities corresponding to their gender identity. As the Fourth Circuit Court of Appeals acknowledged in its recent decision in G.G. v. Gloucester County School Board, it is doubtful that a trans student’s “use of the communal restroom of his choice threatens the type of constitutional abuses present” in such appalling privacy cases.
Instead, to the extent that the law recognizes limits on the government’s ability to disseminate personal information (and it does), courts enforce those limits most rigorously when information regarding a stigmatized characteristic is disclosed—for example, one’s HIV status, minority sexual orientation, or transgender identity. This is because disclosure of that information can result in further harm to the individual, including discrimination. And certain courts have specifically held that laws that out a person’s transgender status implicate this right to informational privacy.
In other words, the right to informational privacy—the right to limit disclosure of one’s information—appears to be at its zenith when dealing with information that might expose someone to stigmatization, discrimination, or some other concrete downstream harm.
As noted, in a world with continued misunderstanding and hostility towards trans people, there can be little doubt that outing of a person’s transgender status can lead to very real harms. The constitutional right to privacy restricts such outing.
*Parts of this post draw on articles of mine first appearing in Slate and Salon.
As if on cue . . .
The ACLU and several other organizations have sued Baton Rouge, citing, among other events, the incident described in this story and this post. The requested TRO goes after several specific practices, including too readily declaring an assembly unlawful, arresting protesters for stepping into the street in the absence of any obstruction of traffic, and dispersing protesters off the sidewalks and into the street and then arresting them for being in the street. The suit also names the DA and seeks to enjoin continued prosecution of those previously arrested.
Note that there is no individual plaintiff named in the action. Plaintiffs are the local ACLU, local National Lawyers Guild, and three Louisiana advocacy groups.
Wednesday, July 13, 2016
Violence and the future of public assembly
Since the Dallas shootings, I have been concerned about the possible effect on public protest. Local governments already cite vague concerns for public safety and risks of violence as grounds for restricting public assemblies, marches, and protests, and courts already accept those concerns too easily. An event such as the Dallas shooting makes those concerns more than abstract and allows government to argue for greater restrictions (if not for closing the streets entirely) with a "it-could-happen-here" argument. Reports of a link between a Baton Rouge burglary and a plot to shoot police (which the tiny conspiracy theorist in my brain finds a bit too convenient) have been used to justify police breaking up protests there.
See, then, this post from Michael Dorf, arguing that the threat of violence is unavoidably baked into the idea of public assembly and protest. This means government efforts to maintain order and safety, while legitimate, cannot be allowed to render hollow or meaningless the rights to assemble, speak, and petition. The balance to be struck must account for the risk inherent in the very nature of the First Amendment enterprise.
Hiring Posts - Schedule
An approximate schedule of other posts follows, based off the dates of the first FAR submission (Thursday, August 18) and the AALS conference (October 13-15).
Wednesday, July 13 (today): Hiring committee thread posted. Available here.
Thursday, August 25: Law School Hiring, Thread One (reporting interview requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.
Thursday, August 25: Clearinghouse for Questions (last year's thread here).
Monday, October 17: Law School Hiring, Thread Two (reporting callback requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.
Monday, November 7: VAP thread (last year's thread here).
Late February/early March: Begin entry level hiring report data collection.
Hiring Committees 2016-2017
Please share in the comments the following information related to the 2016-2017 law school faculty hiring season:
Additionally, if you would like to share the following information, candidates might find it helpful to know:
I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)
If you would like to reach me for some reason (e.g., you would prefer not to post your committee information in the comments but would rather email me directly), my email address is sarah dot lawsky (at) law dot northwestern dot edu.
Update: to clarify, you cannot edit the spreadsheet directly. The only way to add something to the spreadsheet is to put the information in the comments or email me directly, and I will edit the spreadsheet.
Pokemon GO and the law
Pokemon GO has quickly garnered a massive following since its release last week, prompting one University of Utah professor to call it "arguabl[y] the most popular video game in the world," and others to argue that "it's daily use is expected to exceed Twitter by the end of the week." But the app raises some very interesting questions about privacy and data protection law, as well as a variety of other possible liability issues. Supposedly it originally siphoned huge amounts of personal data off smartphones, but the developer has been pulling back after getting some bad press.
Users, by getting out of their lazy boys and joining the outside world in the hunt for monsters, have already begun harming themselves and putting themselves in real physical danger, and the app has reportedly sent dozens of players to at least one private residence (a remodeled church building) in search of a Pokemon Gym. Douglas Berman, over at the Sentencing Law and Policy LawProfBlog, has noted that criminals have begun (or could begin) to abuse the app. And Andrés Guadamuz has just posted a very interesting summary of some the legal issues raised by the game over at TechnoLlama, including privacy and data collection, security, liability, and virtual location rights (or: how can a person tell the app to move an unfortunately-placed Gym to somewhere besides the inside of his or her home?).
Have you seen students (or faculty colleagues) wondering around campus chasing Pokemon? Are there other interesting liability issues raised by an augmented reality game like this that haven't yet been addressed?
Ginsburg's Double-Down: Not Defensible--And Also Interestingly and Problematically Elitist
Since the round of interviews I wrote about yesterday, Justice Ginsburg has doubled down, in an interview with Joan Biskupic. (Biskupic's interview, incidentally, raises the same question I noted yesterday: Who is more damaging to Justice Ginsburg--her enemies, or her friends?) I thought her last set of remarks was inappropriate, and that the new remarks are even less appropriate and less defensible. So, naturally, there have been some defenses. Those defenses are mostly wrong.
I'll address those points in my next post. (I may be slow getting around to it, for medical reasons. For the same reason, and with apologies, I'm going to close comments.) First, I wanted to deal with some related issues--more far-flung in certain respects, perhaps, but also less likely to be remarked upon by the legal academic commentariat, which is basically conventional, non-radical, and establishment-oriented. Although these observations are less immediately related to the question whether the defenses offered on Ginsburg's behalf are sound or credible, I think they provide some useful background to that question. They also add some necessary points unlikely to be raised elsewhere, since most law professors enjoy essentially and often unconsciously privileged positions and are not likely to go in for self-wounding class warfare.
So, a couple of preliminary and certainly opinionated observations. The first has to do with the substance of Ginsburg's remarks. One understands why politeness might dictate not saying much about that. Still, one can and should ask: Do her remarks offer something new, insightful, wise, expert, or authoritative? Does she say anything that one would consider useful and novel regardless of the speaker's identity, or that draws usefully on any particular expertise? Or are her remarks essentially conventional, unexceptional, and banal? My view is that they fall easily into the latter category. This view does not depend on whether her opinions are right or wrong. I think some are right, and some buy into a conventional narrative that is so un-nuanced as to be more wrong than right. But even if they are all correct, they are still all conventional, unoriginal, and uninteresting. One remembers a fuss a while back when Justice Scalia said that he had stopped bothering to read anything other than the Wall Street Journal and the Washington Times. The opinions Ginsburg offers here are fully consistent with the views of a well-educated if impressionable person who reads, and only reads, The New York Times and The Washington Post every day, takes what is written there as conventional wisdom, and then passes it along. Apart from the identity of the speaker, there is no value-added in the substance of anything Ginsburg says in her latest interview. That's not a terribly kind thing to say, perhaps. But it is ultimately relevant to the underlying question whether her remarks are appropriate or defensible. Extraordinary extrajudicial statements may be justified because the circumstances are so novel, or (in my view, and only on rare occasions) because the remarks are so interesting and valuable that we would lose something if the judge remained silent. I'll deal with the first case later. But these remarks certainly don't fall into the second category.
Even if banal, are her comments expert? One can, of course, hold a conventional opinion that is still buttressed by expertise. Hearing it from one more expert doesn't really add all that much, but it is still an expert opinion, at least. None of Ginsburg's remarks fall into the category of expert statement. Of course she has more experience dealing with the press, with powerful people, and with fellow members of the elite than most of us could ever hope for (or, perhaps, want). But her remarks do not really seem to call seriously on any of that experiential knowledge, and certainly not on any of her legal expertise.
So we are left with the fact that Ginsburg indulged herself in a series of statements, vastly amplified by the megaphone provided by her fame and her office, that if offered anonymously on the comments section of, say, Slate or Salon, would read like every other comment to be found there. Not that there's anything wrong with that! No one should expect people to be wise because they are smart, or original because they are wise, or brilliant because they are heroic, or to have fascinating and unconventional opinions on matters that are essentially outside their expertise. Ginsburg spoke as the average well-educated citizen-member of a certain cohort of the population offering a fundamentally conventional set of opinions. That's fine, or would be if she were simply the average citizen of this kind and was not also making use of an ethically constrained public office as a megaphone. But it certainly doesn't make her remarks vital or necessary.
And this is the preliminary point I wanted to reach before showing why Ginsburg's defenders are wrong. Ginsburg's statements essentially present a representative, non-expert elite view--not wrong, necessarily, and perhaps quite right, but also not new or interesting. It is not an authoritative view in itself. But, because of who she is and because the statements are broadcast as coming from a Supreme Court Justice, they do trade on her authority, and get vastly more attention than they would have if coming from the average, anonymous, highly (perhaps unduly) self-confident and assertive Ivy graduate.
It's worth thinking a little about the ways in which her remarks speak to, and about, problems with class, social status, and elites. Our democracy would, in my view, be healthier if citizens paid no more attention and gave no greater weight to extrajudicial statements on non-legal matters from Justice Ginsburg than they did from the next randomly chosen person. And it might be healthier still if members of elites did not--as they so often tend to do--think of their own non-expert opinions as especially sage, interesting, courageous, or well-qualified. Failing that, if and when elites, by virtue of some office or position they occupy, are given special attention, authority, and weight by listeners when speaking in an unofficial capacity on matters outside their authority and expertise, but in circumstances which they know take advantage of their office and status, it does not seem like a heavy burden to ask them to use that status lightly--if at all. The failure to display that kind of modest silence, aside from the particular concerns that arise where a Supreme Court Justice is involved, speaks in broad terms (I am not accusing Ginsburg herself of these qualities) to the risks of arrogance and hubris that may afflict the successful members of what people sometimes think of, consciously or not, as a kind of natural aristocracy of high SAT-scorers.
One last aspect of the overlooked elite-centric nature of Ginsburg's remarks is that they were essentially costless. Supreme Court Justices have lifetime tenure and, as many others have complained on many other occasions, are substantially insulated from the same kinds of ethical rules and requirements that would confine many another professional. They make enough money and can draw on enough resources to insulate themselves quite effectively from many other pressures of everyday life or notoriety as well, if they choose to. Ginsburg can and, famously, will retire whenever she feels like it and not before. She will not face any serious repercussions for trading on her official status and celebrity in this very public fashion, other than being condemned on blogs or subjected to angry tweets. An Army staff sergeant with a couple of mortgages who decided to throw on her uniform, head downtown to the local newspaper, and make the same remarks would....Well, most likely she would not be paid any attention at all; she's not a Supreme Court Justice, after all, just a common soldier. But if she were, she would face the risk of the kinds of serious and even devastating disciplinary and professional consequences--military discipline, perhaps dishonorable discharge--from which Ginsburg at this point is essentially completely insulated. And, unlike that staff sergeant, for every critical remark she gets, Ginsburg will also receive any number of garlands from like-minded friends, fans, and courtiers. It's always worth remembering that one reason elites sometimes, if rather rarely, "speak truth to power," whatever that phrase means exactly, is because doing so is fairly cheap for them. It seems to me that if we're going to consider fully and seriously how we feel about Ginsburg's recent escapades and whether they are defensible, we should not overlook the heavy elements of class, elite social status, and privilege that feed into the whole affair.
More on the question whether Ginsburg's remarks were defensible, which essentially turn on two arguments--"emergencies justify extraordinary conduct," and "all citizens are entitled to speak"--in the next post.
NBA changes to stop Hack-a-Shaq
The NBA on Tuesday announced rule changes designed to limit the "Hack-A-Shaq" strategy of intentionally fouling bad free throw shooters away from the ball. Beginning next season, all fouls away from the ball in the final two minutes of every quarter will result in one free throw and the ball out of bounds for the offensive team (this has been the rule for the final two minutes of the fourth quarter). The same rule will apply to fouls on inbounds plays (the new rage was jumping out of bounds to foul the inbounder). And jumping on a player's back during a free throw (a recent development used in the final two minutes) will be deemed a flagrant foul, punishable by one free throw and the ball, plus possible future punishment of the fouling player for repeated violations.
Unfortunately, I am not sure this gets the NBA where it wants to be, because it does nothing to deter Hack-a-Shaq outside the last two minutes of a quarter. Perhaps the league had statistics showing that the strategy was more prevalent in those times. But the rule change does nothing to stop the reductio of the strategy--a January 2016 game in which the Houston Rockets intentionally fouled DeAndre Jordan of the Los Angeles Clippers twelve times in a row (four times, using an end-of-the bench player, to put them in the bonus and eight times to put Jordan on the free throw line) at the beginning of the third quarter. I still believe the better rule would be to give the offense the choice of shooting the free throws or taking the ball out of bounds for off-the-ball fouls. Presumably, teams will choose the latter option for all but their best free throw shooters, thereby eliminating the perverse incentive to intentionally foul, at least away from the ball. But the NBA went a different way, given us temporal, if not complete, relief from this eyesore.
Update: This Deadspin piece makes a fair point: Hack-a-Blank only becomes worthwhile if the hacking team is in the bonus following the fourth foul of the quarter, so that the hacked player would shoot. If a team is otherwise playing good defense and the game is not being called unusually close, that may not happen until 6-8 minutes into the quarter. So the window left for Hack-a-Blank is not the first ten minutes of a quarter, but maybe only a 2-3 minute window before the last two minutes. Teams typically do not do what the Rockets did in the game described above, hacking right from the beginning of the quarter, using an end-of-bench player only to commit a succession of fouls; this is what drew so much attention to that game.
Tuesday, July 12, 2016
Professor Patricia Leary
Random free speech stories for a Tuesday
1) It is sad that an even-handed attempt to mourn police and victims of police violence--and thus to show that the problem affects all sides--nevertheless devolves among those who cannot accept the possibility that some police shootings are unjustified, that an antagonistic relationship between law enforcement and those they police cannot hold, or that police conduct is a legitimate subject of public discussion and protest.
2) If this story is even a bit true, I can hear the consent decree language ordering Baton Rouge to establish policies and training regarding "the right to criticize or complain about police conduct without being subject to retaliation" and "the right to engaged in lawful public protest." Part VIII offers a good start, as the same things keep coming up.
3) If Black Lives Matter is responsible for the "horrible" and "divisive" rhetoric of some protesters, then is Donald Trump responsible for the rhetoric of some of his supporters, not to mention himself? And will anyone point that out to Trump? Obviously, Trump is not responsible for his protesters' rhetoric. But then neither is BLM. And Trump cannot have it both ways.
Monday, July 11, 2016
Judges--and, Perhaps, Journalists--Behaving Badly
I was glad to see I was not the only person who thought Justice Ginsburg spoke obviously inappropriately in a couple of recent press interviews, in which she pronounced on presidential politics--although there is no particular reason to think she has any special expertise, insight, or wisdom about presidential politics--and on current cases. There is no point in loading another dollop of high moral dudgeon on about this, but there are a couple of other interesting things to be said about it.
The most interesting thing, to me, is what Jonathan Adler points out today on the Volokh Conspiracy blog. I'll just quote the relevant material from Jonathan's post:
[Ginsburg] said Heller was a “very bad decision.” As originally posted, the story reported that Justice Ginsburg added “that a chance to reconsider it could arise whenever the court considers a challenge to a gun control law.” For whatever reason, that line was removed and no longer appears in the online version of the article. [UPDATE: The missing language on Heller has not been restored to the article.]
UPDATE: It appears that this is the second time within the past week that comments from an interview with Justice Ginsburg as originally published were later removed. The other example, caught by Rick Hasen, is here.
I was going to write about the changes to the Liptak story before seeing this second example. I hate to attribute motives or actions to others on the basis of what "obviously" must have happened, because I know life is regularly more boring and contingent than that. From my brief experience in journalism, I know that although editors often help prevent reporters from screwing up, reporters nevertheless routinely have to fight editors to make sure that their edits don't introduce new inaccuracies into a story. And that was in the pre-Internet days, when one fought only one or two editors for only one or two editions of a story, rather than having to put up different versions of stories all day and struggle against a larger and less experienced cadre of editors. Still, one obvious possibility was that Justice Ginsburg, or someone from the Court, had asked Liptak or his editors to change the story between one version and the next, so that Ginsburg would not be seen as publicly trumpeting her desires and intentions for future cases. Against that, however, one has to factor in the possibility that the original version was the inaccurate one, and that the requested correction had to do with accuracy and not with saving the Justice from embarrassment.
I still refuse to impute or ascribe motives or anything else absent much stronger evidence. But it becomes much harder to accept the charitable readings so easily in the face of the second example, noted by Rick Hasen and reported by Jonathan Adler. In both cases, it appears that the story was changed to soften some of the details provided by Justice Ginsburg, on the record in a press interview, and thus reduce the damage done by the interview. That damage includes reputational damage in both instances, at least for those fuddy-duddy traditionalists who still think judges ought to abide by standards of dignity and discretion in extrajudicial statements. And it would include perhaps greater and broader damage in the case of the Liptak interview, since the original comments about Heller would provide a fair basis for recusal arguments in future gun-control cases. Given that both examples involve changing the story in the Justice's favor t0 make it less rather than more revealing, it is harder to simply assume that the change in both cases had to do with eliminating inaccuracies.
From my point of view, if it is in fact the case that Justice Ginsburg, or someone in her office or acting on her behalf, or some officer of the Supreme Court, contacted both reporters to get them to try to soften their stories in subsequent editions, that itself is not blameworthy conduct--for the Justice or her proxies, that is. After all, they don't work for the paper. But if the original versions of the stories are accurate, it would be entirely blameworthy for the reporters, or their editors, to change the story because someone associated with the Justice complained about it. It is certainly not a reporter or newspaper's job to save a judge or Justice from indulging, embarrassing, or even hanging him- or herself in print. To the contrary, and I doubt any journalist would disagree with me, if Justice Ginsburg or some other judge or justice wants to say something either slightly or incredibly inappropriate in an interview, the journalist's job is to provide him or her with enough rope to effect the hanging. And there is only one reasonable journalist's response to a request or demand from a source to change a story for any reason other than that it is inaccurate. The answer is a colloquial one, and the colloquialism is "get bent," or "go to hell." Via FB I have asked Adam, a regular and generous reader of the blog, to shed some insight into how or why the change was made in his story.
There are two words I think highly relevant but too rarely spoken or offered, due to the law's culture of flattery, in thinking about Ginsburg's recent rash of foolish public statements. The first is "senescence." Never having met Justice Ginsburg, I have an insufficient basis to think, or at least to say publicly, that she has become partly or completely senile. I also have no desire at all to speak lightly or casually about such things. But I think foolish interviews of this sort, which she has given increasingly over the last few years, do not just demonstrate a changing cultural standard that is being applied by an increasing number of judges. They also suggest, on an individual level, a possible increasing loss of the kind of judgment and restraint that Justice Ginsburg once would have displayed. I raise this not to suggest that she is not still capable of doing her job as a Justice--although this is not saying much, since I think even a pretty senescent individual can continue to fulfill the function of judge or Justice in a staff-heavy environment. But Justices are effectively managed by their staff in their official work, not their extrajudicial statements. And the increasing lack of prudence she is displaying with regard to the press, in circumstances where her staff does not or cannot run interference for her up-front, does suggest that she is no longer functioning at her best. (This, incidentally, is the kind of point we once would have expected Judge Posner to raise especially keenly, given his interest in aging and old age and his realism about judges as human beings. But I dare say that Posner's own recent extrajudicial statements suggest that he is suffering from the same condition.)
The second word is "enabling." One wants one's friends, not one's enemies or adversaries, to look out for one and to speak up if one is behaving badly or showing signs of decline. I wonder whether all the Ginsburg fans, friends, and admirers who have enjoyed and passed along these interview remarks, or who have indulged in the fun of meme-sharing and buying trivial T-shirts and coffee-table books, recognize just how much of a disservice they are doing to the person they purport to admire. If they really admired her, they would be better advised to urge her, publicly and privately, to keep quiet off the bench.
Should junior legal academics write a book? (and if so, when?)
As a junior academic, I found Chris Walker's recent Junior Law Prawfs FAQs Series here at Prawfs to be quite useful and informative. I don't intend to add an exhaustive series of posts on this topic this month, but I do hope to contribute a little to that rich conversation, as I think it's worth continuing.
First of all, I want to ask about the place of books in legal academy - specifically, should junior (or aspiring) law profs seriously consider writing a book? And, if so, when? How should such a decision be approached and where should a junior prof be thinking about submitting their work? (Brian Leiter has previously blogged about ranking the prestige of presses in law, but there are also other such lists for other disciplines - often with some overlap.) Books obviously consume a large amount of research and writing time, and could potentially distract an author from publishing as much in journals. However, many legal academics write books (though quite a few authors often incorporate a number of previously published law review articles as chapters, which does help keep the book from completely consuming the author's output during the writing period). As a point of reference, I have just signed a book contract myself, and I know others who are proposing and writing books at the moment, both inside and outside of legal academia. The process, and the decision-making that up to my decision to initiate it, was both difficult as well as quite encouraging, and the prospect of the book itself is quite exciting.
I've noticed what I suspect might be two approaches to writing books among legal authors. First, those that started as book-length projects from the outset, with select chapters sometimes also serving as the basis for separate law review articles published in the months or year before the full book. Second, I would guess that other books only became books after an author had published quite a bit on a topic and then, subsequently, decided to incorporate his or her scholarship together into a longer, more extended discussion. I suspect both of these approaches have their pros and cons.
I also wonder if scholars with PhDs approach questions about books differently than those without PhDs? I am now working at a law school in the Netherlands, and I quickly noticed that here (as apparently in other parts of Europe), law PhD Candidates are often expected (or required) to publish their dissertation in book format. (In fact, in a recent PhD defense in our department, the committee consistently referred to the PhD Candidate's dissertation as a book (e.g., "In your your book you argue that..." or "I really enjoyed reading your book, but..."). In my own PhD program, there was no expectation (or even pressure) to publish my dissertation as a book - even when it was a holistic body of research (that is, not a collection of 3-4 published articles, as some often are in certain disciplines).
So, a set of questions:
- should junior legal academics be thinking seriously about book writing?
- What considerations would you suggest need to be taken into account?
- If a person decides to pursue a book project, are their times within the typical model of professional development (e.g. pre-tenure, first couple of years as a faculty member, etc.) when a book does or does not make sense?
Based on my own experience, I think a book makes sense for me at the moment because the book project builds on (but is not) my PhD dissertation, and also brings together legal research and empirical findings from a single multi-year and multi-method study. A series of articles based on the work is also a possibility, but it doesn't allow me to tell the bigger story that is emerging from my data and analysis in a holistic and integrated way. I plan to publish a couple of journal articles along the way, based on chapters, but these will only provide small glimpses into the larger results I hope to present in the book. As for timing, publishing a book after establishing yourself as an authority in a field obviously lends a book some heightened credibility, but publishing a book earlier might also really help establish that authority in the first place. (Chris's earlier post "How Do I Become a Voice in My Field?" and subsequent posts are also relevant here.) In my case, my research project is wrapping up now and I didn't want to sit on writing or publishing because it might be better timed at some possible point in the future, and I hope to move onto other projects anyways. I'm currently a post-doc and not yet in a continuing or tenure-track faculty position - which also means I have fewer teaching and administrative responsibilities to distract me from research and writing now than I will (hopefully) have in the coming years, which also makes this time an attractive option.
But, I'd be interested to hear what other have to say...
FIRE podcast on Nazis in Skokie
The latest edition of FIRE's So to Speak podcast features an interview with Aryeh Neier, who was the ACLU's Executive Director in the late 1970s, when the Nazis marched in Skokie and wrote a book on the controversy. Neier makes an interesting point in the interview--this case is a strong symbolic victory for speech, although not necessarily precedential victory, as the case really ended in the Seventh Circuit. Nevertheless, this case is the reverse slippery slope for free-speech advocates--"If the Nazis can march in Skokie, then ____ is permissible."
Thoughts on Reason-Based Regulation of Reproductive Decision-Making: Part I
This post and the next (Part II) are drawn from my contribution to the forthcoming edited volume Law, Religion, and Health in the United States (Holly Fernandez Lynch, I. Glenn Cohen & Elizabeth Sepper eds., Cambridge University Press 2017).
In the wake of Whole Woman’s Health, what will be the future strategy of anti-abortion activists? One possibility, for which there is at least some evidence, is that they will turn away from working to enact restrictions justified by purported health and safety benefits and instead focus on restrictions that advance a claimed state interest in the life and/or dignity of the fetus.
Restrictions that fall into this category include reason-based bans on abortion—laws forbidding abortions that are sought for particular reasons, such as fetal abnormality or sex selection. It may be easier for such restrictions to pass constitutional muster after Whole Woman’s Health v. Hellerstedt, because, given the intangible nature of the dignitary interest supporting them, states will not bear the onus of justifying them with hard medical or scientific evidence. Abortion opponents may also reason that such justifications are more likely to appeal to Justice Kennedy, who has shown concern for various kinds of dignitary harm, including to the fetus (see Gonzales v. Carhart).
It is therefore worth considering whether such bans (at least one of which—Indiana’s—has recently been challenged) are constitutional. In the remainder of this post, I’ll analyze that question. In the next post, I’ll consider a different form of reason-based regulation of reproduction: state laws that distinguish between therapeutic and non-therapeutic uses of contraception for purposes of insurance coverage mandates.
The law often has something to say about what constitutes a legally acceptable reason for certain conduct. Indeed, sometimes the motivation for a person’s actions can make the difference between legality and illegality. For example, a hate crime is one that is committed because of illicit bias; a crime that is not committed out of such a motivation cannot constitute a hate crime. Similarly, under the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), actions that are taken for religious reasons are specially protected, whereas the same actions could be outlawed when driven by secular reasons.
But constitutional law has marked some areas off-limits for governmental regulation of individual decision-making. For example, at the same time that religious reasons are valorized, they are also protected by a zone of noninterference, as courts largely defer to individuals on the content of their beliefs. In Burwell v. Hobby Lobby, the Supreme Court took an extremely deferential stance toward the plaintiffs’ beliefs, in that it declined to examine closely the connection between the asserted religious belief—that abortion and complicity in abortion are morally wrong—and the conduct the plaintiffs wished to avoid—providing their employees with health care coverage that included contraceptives that the plaintiffs characterized as abortifacients. Likewise, when applying the “ministerial exception,” which protects religious organizations from liability in certain hiring and firing decisions and which is required by the Free Exercise and Establishment Clauses of the First Amendment, courts may not examine the actual reason for the employment decision to determine whether it is in fact religious, or whether it is a pretext for discrimination. It therefore appears that there is a zone of privacy around religious deliberation, grounded at least in part in the First Amendment, similar to the zone of privacy that protects familial and reproductive decision-making under the Fourteenth Amendment.
Since Griswold v. Connecticut, the right to make reproductive health care decisions, too, has been framed in terms of a right to privacy. In the Fourteenth Amendment substantive due process context, the right to privacy includes both a sense of spatial sanctity and decision-making autonomy. The decision-making autonomy aspect of privacy most directly implicates the government’s ability to influence, and pass judgment on, the reasons on which individuals rely for their most important and intimate decisions. As the joint opinion in Planned Parenthood v. Casey famously declared, “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” This language highlights the protected nature of the decision-making process. Thus, although the “undue burden” standard established by Casey for reviewing abortion restrictions seemingly focuses primarily on the outcome of the challenged regulation—whether it places a “substantial obstacle” in the woman’s path and prevents her from accessing an abortion that she has chosen—it is nonetheless embedded in a broader privacy framework that connects it to the concept of decisional autonomy.
Given this decisional autonomy framework, the possibility that the government might regulate the reasons for which an abortion may be obtained contradicts Roe v. Wade’s, as well as Casey’s, reasoning. As Jaime King has pointed out, the Supreme Court’s reasoning in Roe and Casey emphasized the burdens of unwanted pregnancy as the rationale for protecting reproductive choice, but at no point did the Court suggest that only certain reasons for not wanting the pregnancy were valid ones. Thus, in recognizing a right to reproductive privacy, the Supreme Court has suggested that the government cannot commandeer the private decision-making process around contraception, abortion, and fertility. Indeed, as Carol Sanger has argued, the right to non-interference in reproductive decision-making arguably implies a right to non-interference with the decision-making process as well. (Indeed, in countries outside the U.S. where abortion is not governed by a privacy framework, such as England, governmental regulation based on reasons for which an abortion is sought is much more prevalent.)
At the same time, it is worth noting that Roe demonstrated some discomfort with the notion of "abortion on demand." And the Supreme Court has emphasized that the government has a role to play in ensuring that the woman’s decision is well-informed, going so far as to insist that the state can try to persuade the woman to choose childbirth over abortion. This suggests that the Supreme Court believes the state’s role may extend beyond merely giving the woman factual information to actually putting a thumb on the scale of her deliberations.
Nonetheless, much as the Supreme Court may appear to accept a role for the state in encouraging deliberation, the structure and logic of the decisional privacy right run counter to the notion that the government may actually control or commandeer the individuals’ reasoning process. The fact that religious or spiritual beliefs may form part of the reasoning process, as implied by Casey, may further strengthen the notion that the deliberation itself must be immune from governmental interference, because religious beliefs, too, are specially immunized from legal control. There is therefore a difference between deliberation-forcing mechanisms, such as reasonable informed consent requirements, and coercion, such as taking abortion off-limits altogether when it is sought for certain reasons. And although courts have sometimes upheld even ideological speech requirements, they do not cross the line into directing the result or the path of the woman’s deliberations, as opposed to seeking to influence them.
This logic thus places on questionable constitutional ground the recent spate of laws forbidding abortions for particular reasons, such as sex selection or fetal anomaly. Because they not only regulate conduct protected by the constitutional right to privacy but also directly regulate the deliberative process, these laws should be found unconstitutional under the Roe-Casey line of cases.
Saturday, July 09, 2016
Law professor responds to students on "Black Lives Matter" (Updated)
Update, July 10: As noted in the comments, the response states that the professor wore the t-shirt on the day the Crim Pro class discussed police violence against the Black community. But that leads me to a curriculum question: How many of you cover police violence (or, more broadly, Fourth Amendment/excessive force) in crim pro? This seems an odd fit in a course that typically focuses on how police conduct affects subsequent prosecution and the evidence that can be used in that prosecution. I think of excessive force (aside from physically coercing confessions, which has not been BLM's focus) not as a matter of the lawfulness of a search or seizure for evidentiary purposes, but only for subsequent civil damages suits.
This letter by an unknown crim law professor at an unknown law school responding to an anonymous student complaint about the prof wearing a "Black Lives Matter" t-shirt to class is making the rounds and drawing raves in the left-leaning interwebs, as well as Facebook accounts of law profs.
I post it and welcome responses comments. I have not yet figured out what I think.
On one hand, the substantive defense of BLM as a name and a movement is spot-on, especially the idea of focus v. exclusion. So is the defense of the opinion, philosophy, and social context involved in creating, and thus teaching, "law." The student letter is poorly written nonsense, trafficking in "freedom from speech" tropes ("alienates and isolates," etc.).
On the other, the letter comes across as pedantic (especially Part II, where she picks apart the structure of the letter).*
[*] I agree with most of her arguments, especially about the use of CAPS. It is gratuitous in a debate.
I cannot get past wearing a t-shirt (to say nothing of a politically charged one, which seems intentionally provocative) to class.** The professor's argument either means it would be permissible for me to wear a t-shirt with a Confederate flag or an IDF logo to class (a position I doubt the professor would endorse) or that the freedom-of-thought-in-the-classroom ideal is limited only to ideas with which this professor agrees. Finally, I cannot help thinking that something else is going on. Is this really about the t-shirt alone? Is the t-shirt alone the "indoctrination or personal opinions" while the class content was focused on the elements of murder, or whatever? Or is the t-shirt reflective of the broader approach to teaching crim law? This does not make the students' arguments any better, but it would make the stuff about BLM, in the original letter and the response, beside the point.
Again, I do not know what I think. But I would like to hear from others.
Update: A commenter notes that the letter identifies one time when the professor wore the shirt "around campus." That being so, I take back all of the above criticism of the professor. The student letter becomes even more inane--the professor wearing that shirt, outside of the classroom, does not impose a personal opinion on them or undermine their learning of the law.
Friday, July 08, 2016
Police body cameras raise a host of legal (Fourth Amendment) issues
Police use of body-worn cameras raises a host of difficult and interesting legal questions. I have spent a good deal of time watching body camera videos over the past couple of years - both those that show up on sites like YouTube as well as those filmed by officers with whom I have been conducting field research with two municipal police departments in Washington State. Because some of my recent (forthcoming) research is focused primarily on issues of state privacy and access to information laws, I wanted to raise some issues for discussion here at Prawfs related to some of the videos I've watched most recently, and in the context of the Fourth Amendment (as this is the next area I need to begin really grappling with). One of these videos is now on YouTube, and the other hasn't made it there (but I describe it more in my paper and forthcoming book), but both were filmed by officers in the departments where I conducted my research).
The first video (I'm not going to provide links, as I don't want to directly increase the number of views of these videos) was captured by an officer's camera as he responds to a call for service from an elderly woman who is complaining about people she believes are trying to scam her into a fraudulent loan for home renovations (I know this because the conversation is captured on the video). Upon reaching the woman's house, the officer says hello and enters the home when he is welcomed in by the woman. He does not verbally announce the presence of the camera - and under the State AG's legal interpretation of Washington State law, he has no obligation to do so - but he does continue to record the conversation that takes place inside the woman's house. The second video is captured by a camera worn by an officer as he responds to an emergency inside a private residence, and the video depicts a truly horrible scene, including the failed efforts of the officer to revive a lifeless little baby who has stopped breathing. We see other children, adults, a wailing and distraught mother, and a number of other officers throughout the video as the officer's chest mounted camera captures the scene in front of him.
In both of these cases, body cameras were worn into private homes and captured different types of officer-citizen interactions. In both cases, much of the video (and audio) was subject to public disclosure, even to anonymous requestors, at the full expense of the police department. Officers also wear cameras during warranted searches and arrests inside homes. However, on June 9, a number of new exemptions to Washington State's Public Records Act became effective, and one of these exemptions specifically covers body camera footage that records "[t]he interior of a place of residence where a person has a reasonable expectation of privacy." (Another prohibits disclosure of dead bodies.)Prior to June 9, at least in Washington, quite a bit of footage recorded inside peoples' homes was potentially subject to public disclosure, and I think this specific exemption is a positive development. However, this particular exemption is subject to at least two important limitations (that are linked in some ways): 1) the exemption is crafted as a rebuttable presumption (because disclosure would be not be "highly offensive to a reasonable person," as required by the Act's general privacy provision), and 2) it only applies where a person has a "reasonable expectation of privacy." Read on their own, this protection provided by the new exemption may sound fairly strong, as we may generally assume that people maintain heightened expectations of privacy in their homes. However, read in conjunction with an opinion by the Washington State AG that says that conversations between police officers and citizens are not private (for purposes of the state Privacy Act) even when they occur inside that person's home, we begin to see some potential conflicts.
In the context of the Fourth Amendment, the U.S. Supreme Court (in Wilson v. Layne, 526 U.S. 603(1999)) has held that bringing a reporter into a private home during the execution of search warrant cold violate the suspect's Fourth Amendment rights, at least when the "the presence of reporters inside the home was not related to the objectives of the authorized intrusion" (id. at 611). When an officer wears a body camera into a home, the use is arguably "related to the objectives" of the search or arrest, but permissive public records laws could make the officer's video nearly as accessible to the press (or any other member of the public) as the reporter's video or photographs. In a way then, the Wilson decision provides protection at a procedural level, but doesn't necessarily change the essence of the outcome between these two cases. Are the connections between Fourth Amendment's guarantees and state records laws relevant for Fourth Amendment analysis purposes? Should they be?
Another interesting set of questions arise in the context of the "plain view" exception to the Fourth Amendment's warrant requirement. I can easily imagine that body camera video filmed inside a person's home (by an officer legally inside the home) could capture potential evidence that was in "plain view," but wasn't actually seen by the officer (or was audible and recorded by the cameras's microphone, but not actually heard by the officer). Much like Justice Sotomayor's worries, expressed in her concurrence in U.S. v. Jones (132 S.Ct. 945 (2012)) that long-term GPS tracking of a suspect's automobile does something qualitatively different than merely improve law enforcement efficiency (or merely replicate what a police officer could legally do anyway, as described in U.S. v. Knotts, 460 U.S. 276 (1983)). In this case, the possibility of police personnel viewing and analyzing the footage after-the-fact and then finding evidence of other, unrelated, criminal activity, could serve to initiate (and legitimize) future law enforcement searches or arrests for reasons unrelated to the initial search. Is this a good or bad result?
What do readers think about these three sets of issues? Are there other Fourth Amendment questions or issues that also seem obvious or important? I look forward to hearing your responses.
Thursday, July 07, 2016
Learning About Gender Identity
As transgender people have gained more visibility over the past couple of years, many of us have had to consider what it means to be transgender for the first time. Understanding what it means to be transgender is important for unpacking the legal issues confronting transgender individuals, but, as educators, being knowledgeable about gender identity is also necessary to make sure we are serving our students. As a recent study by UCLA’s Williams Institute concludes, roughly 1.4 million adults in America are transgender, suggesting we are likely to have trans or gender nonconforming people in our classrooms.
So, while in future posts I will dive into some of the legal issues, I thought it might be useful at the outset to share some of things I’ve learned about gender identity.
First, a transgender person is someone whose sex assigned at birth (usually based on a quick exam of their external genitalia) does not accurately reflect their gender identity.
Second, we all have a gender identity, which simply refers to one’s personal sense of being a certain gender. People whose gender identity comports with their sex assigned at birth are referred to as “cisgender.”
Third, sex and gender are not as straightforward as the boxes we check, or even our external genitalia, might suggest. There are many aspects to sex. According to medical experts such as Dr. Deanna Adkins, “although we generally label infants as ‘male’ or ‘female’ based on observing their external genitalia at birth, external genitalia do not account for the full spectrum of sex-related characteristics nor do they ‘determine’ one’s sex. Instead, sex related characteristics include external genitalia, internal reproductive organs, gender identity, chromosomes, secondary sex characteristics and genes. These sex-related characteristics do not always align as completely male or completely female in a single individual.”
Fourth, gender identity is increasingly understood as the principal determinant of sex.
Fifth, many people do not fit neatly into categories we love to create (such as male, female, trans or cisgender). Many people are simply gender nonconforming, which, according to one definition, “refers to the extent to which a person’s gender identity, role, or expression differs from the cultural norms prescribed for people of a particular sex.” Indeed, to a certain extent we are all gender nonconforming in particular ways—if we are a female with short hair, a male with skinny jeans, then we are cutting against the grain—we are not conforming with gender norms or stereotypes.
Sixth, one of the most important aspects of transgender health is socially transitioning. Yet socially transitioning is extremely difficult, and to be transgender also means being subject to higher rates of violence, suicide, poverty, discrimination, and incarceration, as detailed in the National Transgender Discrimination Survey.
Finally, given the significance of socially transitioning and our responsibility to our students as educators, to me at least, it is important that we do what we can to make trans students’ lives as smooth as possible, and reduce any feelings of isolation and despair they may be feeling. We should consider ways in which our teaching methods may be silencing or singling out trans students. Gabriel Arkles has put together a great list of suggestions for ways we can make our classrooms more inclusive for trans and gender nonconforming students. One simple thing that I’ve adopted from colleagues is instead of using the school’s attendance list, I circulate a sign-up sheet on the first day of class letting students provide me their name and preferred pronoun, which prevents me from using an inaccurate pronoun based on my perception of their gender or calling them a name they no longer prefer.
Thanks for reading; happy to discuss and learn about these issues with anyone further! I look forward to launching into some of the legal barriers facing trans folk in the coming weeks.
Your first big news story
What's the first major news story you can remember living through as a child?
(Note: This is not necessarily the same as "where were you when" or even the first story you could understand; it is the first story you remember hearing or knowing about, even in simplest terms):
For me, it was Nixon's resignation and the impeachment talk in the month-or-so leading to that.
Have at it in comments.
Wednesday, July 06, 2016
A short take on churches' tax exemptions
This might be timely, given our recent commemoration of the July 4 tax revolt! Here's a short piece of mine, just out in U.S. Catholic, on the question of churches' tax exemptions. A bit:
. . . But our tradition of exempting churches and religious institutions from taxes is justified and important. The separation of church and state is not a reason to invalidate or abandon these tax exemptions but is instead a very powerful justification for retaining them.
The Supreme Court’s precedents and popular opinion have been shaped, for better or worse, by Thomas Jefferson’s figure of speech about “a wall of separation.” This saying has often been misunderstood and misused. Still, Jefferson’s metaphor points to an important truth: In our tradition, we do not banish religion from the public square and we have not insisted on a rigid, hostile secularism that confines religious faith to the strictly private realm. We do, however, distinguish between political and religious institutions. They can productively cooperate without unconstitutional entanglement. . . .
. . . A political community like ours, that is committed to the freedom of religion and appropriately sensitive to its vulnerability, takes special care to avoid excessively burdening these institutions or interfering in their internal, religious matters. It’s not simply that churches’ contributions to the public good make them deserving of a tax-exempt status; it’s that, given our First Amendment, secular power over religious institutions is and should be limited. Governments refrain from taxing religious institutions not because it is socially useful to “subsidize” them but because their power over them is limited—and because “church” and “state” are distinct.
The point of church-state “separation” is not to create a religion-free public sphere. It is, instead, to safeguard the fundamental right to religious freedom by imposing limits on the regulatory—and, yes, the taxing—powers of governments. After all, as Daniel Webster famously argued in the Supreme Court (and the great Chief Justice John Marshall agreed) the power to tax involves the power to destroy, and so we have very good reasons for exercising that power with care—especially when it comes to religious institutions.