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.
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.
Monday, June 27, 2016
Sunday's season finale played out the constitutional election/selection/succession contingencies to the last, producing what, in reality, would be a genuine constitutional and political crisis. And it leaves the show in the position of a genuine reboot when it comes back next season, which presents some interesting possibilities.We begin before the Senate vote for Vice President, which Tom James expects to win. He and Meyer are negotiating her role in his administration--she wants to be Secretary of State, he presents VP as take-it-or-leave-it. She initially leaves it by telling James she would not be his vice president if there were "a grassy knoll full of Jodie Foster fans" in the front row at the Inauguration (a great line). She relents because she believes it is the only way to continue working with China on freeing Tibet (a possibility set up two weeks ago). The scene where Meyer agrees and James cannot help laughing when he promises her that she will be an involved part of his team is a good commentary on how the vice presidency is perceived.*
[*] Although vice-presidential historian Joel Goldstein (SLU) has argued that this has not been true of the modern vice presidency, at least since Walter Mondale.
The show had been building to this since the end of last season, but, as I argued then, it gets it wrong. Under the 20th Amendment, when the House has not chosen a President, the VP elected by the Senate "shall act as President until a President shall have qualified." That may happen in two days, when the House holds a new vote and selects a President. Or it may happen in four years, when a new election and Electoral College vote selects a President in the scheduled quadrennial election. But this VP never becomes President, although she exercises the powers of the presidency.** She remains Vice President and cannot appoint a new VP because the vice presidency is not, in fact, vacant. As I said in a comment to last week's post, this person would not be Ford after Nixon resigned, but GHW Bush when Reagan had polyps removed. And no one believed Bush could have appointed a new VP.
[**] With perhaps some informal limits on Supreme Court appointments, as Rob Kar and Jason Mazzone suggest.
The twist in the episode is that James loses the Senate election. Vice President Doyle, mad at Meyer for reneging on her promise to make him Secretary of State, orchestrates a tie in the Senate vote (by appealing to various Senators whom James had angered over the years over judicial holds, earmarks, etc.), which he then breaks to give the Vice Presidency to Laura Montez, O'Brien's running mate. And with it, the acting--not actual--presidency. This was a twist that I certainly did not see coming. Montez then is sworn in, with a huge inauguration attended by two million people. Again, this would not happen because Montez is not, in fact, the 45th President;*** formally, the presidency remains vacant.
[***] A poll discussed in the episode rates Meyer the 43d best President, just behind James Buchanan, who is "credited with causing the Civil War."
I kept waiting for some further twist back, but it never happened. My first thought was that James would go back to the Speaker to hold a new House vote**** (since that was the plot that started all this) and James would try to whip-up votes to get Meyer the win. Of course, O'Brien came closer to winning that Meyer, so it would have required not only moving the three "abstaining" states, but also one other. Then, during a discussion of Montez's Mexican-born husband, I thought it might be revealed that Montez was not a natural-born citizen, and that might blow everything up. But nothing. And that is the plan. Showrunner David Mandel has said that Season Six will focus on Selina's life after the White House, perhaps Catherine, Gary, and Amy, who are with her at the end. No word on whether other regulars from her staff will be back. Meanwhile, the agreement with China on Tibet that Meyer had negotiated is announced during Montez's address and credited to her, with talk of her getting the Nobel Peace Prize that Meyer had been craving (shades of the freeing of the Iranian hostages on January 20, 1981).
[****] A TV in the background at the White House shows a CNN chyron that the Speaker had said he would not hold a new vote. I thought that might be Chekhov's Chyron, but it turned out to be a reminder of the House role in this and a way to stop that piece of the story.
So how did the season "stick the landing" on the constitutional stuff? Not well in the details, although fun in the story. It seriously understates the political and constitutional crisis that would be involved here, producing an unrealistic result. The Twelfth Amendment was intended to prevent this "inversion" of president and vice-president. No way would O'Brien or Meyer accept the result so easily; they would be fighting like crazy for a new House vote. No way would their supporters in the House accept the result so easily. O"Brien's supporters wanted O'Brien as president; Meyer's supporters wanted Meyer; and the ones who broke were willing to go along with James's plan because they liked him better than Meyer, but would not want Montez in the White House. The Speaker could not refuse to hold a new vote if both sides demanded it; the body might remove the Speaker if he were that obstinate.
Finally, no way would the public accept this, certainly not to the tune of two million people wildly celebrating Montez's inauguration (a law the 2009 Obama inauguration)--no Meyer voter would be happy and an O'Brien voter, while perhaps happy that their party was in the White House, voted for O'Brien, not Montez. They, too, would be pushing the House for a new vote. This is exacerbated by the show suggesting that Montez is callow and ill-prepared. So was Meyer. But Montez is thrust into office because of behind-the-scenes political dealings and the refusal of the Speaker of the House to do his job.
And consider some future problems. What happens if there is a Senate tie? Montez remains the vice-president***** who should break the tie, but she is also acting as president, in which role she would sign the bill. [Correction: A commenter points to Art. I, § 3, cl.5, which provides that the President Pro Tempore presides over the Senate "in the Absence of the Vice President, or when he shall exercise the Office of President of the United States," which seems to capture this situation. So one problem resolved]
[*****] She cannot resign the vice-presidency, since that is the source of her power to act as president.
She presumably will decline to break the tie, as a matter of prudence. But having four years of this strange arrangement is bound to create problems. And what happens in the new House after the mid-Term elections? Might a new Speaker hold a new vote on O'Brien-Meyer, resulting in Meyer coming back to office for two more years, as President, with Montez serving as her VP? That would be a neat plot twist, which the show closed off by talking about Montez as the President; it would take too much exposition to walk it back. Anyway, it is a moot point, since Mandel's plan is to focus on Selina Meyer outside the White House.
All-in-all, I enjoyed the season. And most of the broad strokes of the story worked. They got the details wrong, which is frustrating just because it would have been so easy to correct. Put Jonah in Connecticut instead of New Hampshire and that story works. Talk about divided states rather than abstaining states and that piece works. Have the House holding multiple votes and unable to break the impasse, with no Alexander Hamilton in sight, and that piece works.
Tuesday, June 21, 2016
O.J. and Rodney King
I hope people have had a chance to watch O.J.: Made in America, the spectacular five-part ESPN documentary that traces O.J.'s life from his college career to his current incarceration, while weaving his story into the story of racial bias in society and the LAPD and O.J.'s lifelong efforts to "rise above" race (the telling line is "I'm not Black, I'm O.J."). The film links O.J.'s acquittal (by a largely Black jury) to the acquittal of the officers who beat Rodney King (by an all-white jury). On this telling, O.J.'s acquittal was "revenge" for the officers' acquittal, the long-awaited chance for an African-American to benefit from mistakes in the system. One juror explicitly acknowledges this as her reason for voting to acquit.
But the film (and every conversation about the connection) omits something: Two of the officers in the King beating were convicted of federal civil rights violations and sentenced to 30 months in prison (the other two were charged and acquitted). So if justice means that a wrongdoer is convicted and punished under some criminal law for his misconduct, there was some justice in that case. It may not have been enough justice or the right kind of justice. Thirty months was arguably too short (the court departed downward from an expected Guidelines range of 70-87 months). Perhaps it somehow would have been "more just" for them to be convicted of assault, etc., in state court rather than civil rights violations in federal court. Indeed, that might prove the point. Congress enacted the Reconstruction-Era civil rights statutes because the states were incapable and/or unwilling to enforce the rights of African-Americans against whites and white public officials. Having to resort to those in 1992 demonstrated how far we had not come.* Some had a sense that the civil rights charges were illegitimate, more a result of the rioting that followed the state-court acquittals (which the Koon Court took time to call out) than legitimate prosecutorial decisionmaking or use of federal criminal law.
[*] And still have not come, where police-abuse cases now do not even make it past a grand jury and even the civil rights backstop is increasingly unavailable.
It seems too simple to say "Stacey Koon, et. al, got off, so O.J. should have gotten off." Because Koon and Powell did not get off, at least not entirely. By contrast, two people who had nothing to do with anything were dead in a horrific manner (I had never seen the photos of the bodies or the crime scene--they were stunning) and, on the definition above, they did not receive justice.**
[**] I bracket for the moment how we consider, in terms of assessing "justice," the civil verdict that necessarily included a jury finding that Simpson killed Nicole Brown and Ron Goldman but that did not impose criminal punishment, or the absurdly long sentence Simpson received in 2008 for the events in Nevada, which everyone sees as having impermissibily taken the murders into account. In one interview segment, attorney Carl Douglas points out that the Nevada judge held the jury until late into the evening to announce the verdict on the thirteenth anniversary of the murder acquittal and sentenced Simpson to 33 years, matching the $ 33 million in damages awarded in the civil case.
Monday, June 20, 2016
12 years a President?
Following up on my discussion of Veep's penultimate episode and Tom James occupying the White House for twelve years: I asked Brian Kalt (MSU), who wrote the book Constitutional Cliffhangers, which explored various gaps in the constitutional provisions on presidential selection. He wrote the following (reposted here with his permission):
On the question of whether acting as president for four years should count, it does seem right textually. As such, I think it provides one of the strongest tests I can imagine of a person’s commitment to textualism, because it is so much at odds with the purpose of the 22nd Amendment. As with the question of whether there is a distinction between being eligible to be elected president and being eligible to serve at all, the legislative history tells us that the drafters intentionally sacrificed precision and broad coverage on the altar of supposedly simple language.
Following the path I take in my book, I would dodge the question somewhat by focusing on the practical side—positing that it is very unlikely that such a person would be able to get the people to elect him two more times. Conversely, if he did manage to get the people to elect him two more times, it would be hard for the courts or Congress to deny him his prize.
Brian described evolution of the language of the 22d Amendment, where a desire for simplicity of language collided with a desire to count at least some portion of another person's term toward the term, leading to a an unintended hole.
First, the version introduced in the House said that no one: “shall be chosen or serve as President of the United States for any term, or be eligible to hold the office of President during any term, if such person shall have heretofore served as President during the whole or any part of each of any two separate terms.”
The version that passed the House had the same effect, but was more concise: “Any person who has served as President of the United States during all, or portions, of any two terms, shall thereafter be ineligible to hold the office of President.”
The Senate Judiciary Committee loosened the restraints a bit in terms of timing (one day would not count; it had to be a year) but still did not limit it to terms to which someone else had been elected: “A person who has held the office of President, or acted as President, on three hundred and sixty-five calendar days or more in each of two terms shall not be eligible to hold the office of President, or to act as President, for any part of another term.”
Senator Magnuson was the great advocate of simplicity. He also did not want to count any partial terms. To him, then, the Veep character’s position would be just fine. His language was: “No person shall be elected to the office of President more than twice.”
The Senate’s final text (to which the House agreed) accepted Magnuson’s simplification of the “eliminated from what?” language, which was the basis of the discussion here a little while back on whether two-termers can serve as President even though they cannot be elected. But on the other part of the amendment, the “eliminated based on what?” language, the Senate was not willing to fail to count unelected service. When they restored language to count unelected service, though, they used the infelicitous phrasing that we are now discussing: “or acted as President, for more than two years of a term to which some other person was elected President.” They could have just eliminated everything after “term” and avoided our current dilemma.
We finally get to the House election, but the episode is shown through the documentary (Kissing Your Sister: The Story of a Tie) that Selina's daughter, Catherine, has been working on all season. It is a nice change of pace. It gives us scenes we already have seen in real time during the season, but from the different perspective of Catherine's hand-held camera. It also shows the background events for things we have seen on the show. For humor, we see the background shots of Jonah (unsuccessfully) chopping wood for his campaign commercial. We see into the personal lives of the staffers--Amy's attempts to get together with Dan, Kent's membership in a Spanish-speaking motorcycle gang, Mike's shifting preparations for the coming babies. And we see Selina's verbal revenge against Amy for her outburst last season.
For plot, Catherine catches the lobbyist and Speaker of the House walking into Tom James' office announcing "future calling;" this lead to the dinner at the Mongolian Barbecue that we saw live a few weeks ago. We also see Catherine's interview with Bill Ericsson, the former staffer who took the fall and went to jail last season for the Meyer Campaign's illegal activities; he says that if he were James, he would try to get three states to abstain to send it to the Senate. We know Ericsson got his conviction overturned on appeal (he was running the Widow Sherman's campaign in New Hampshire), so now we can wonder if James or the lobbyist helped Ericsson to get out of jail.The show went with Ericsson's plan, hinted at the end of last season--the final House vote is O'Brien 25, Meyer 22, 3 abstentions (Missouri, Vermont, and a third state we never saw). The Speaker adjourns the House. And the implication is that the Senate will elect James as VP and he will become President next week, because "a President shall not have been chosen."
Selina made one Hail Mary, trying to get Jonah to switch New Hampshire's vote to O'Brien. If O'Brien won, she could run against him in four years, but if James won, she would have to wait eight years, at which point she would be too old. Unfortunately, Jonah did not get the word in time (he was late for the vote because he spent the night with a high school senior/congressional groupie, then could not find the House chamber). After the session ends, he tries to change his vote, announcing "The Gentleman from New Hampshire puts forth on the floor a do-over."
So how did the show do on the Constitution and the electoral process? Not well--yes, I know it is a TV show and a great one; it just does not pass the Con Law exam).
• They got the dates wrong. The House election is taking place on January 3d and we see a flashback to Jonah's swearing in the day before (right before hooking up with the groupie). But under § 2 of the Twentieth Amendment, the new House convenes on January 3. And under 3 U.S.C. § 15, the House does not open and count the Electoral College votes until 1 p.m. on January 6. And the House cannot hold an election until it actually counts the electoral votes and determines that there is, in fact, a tie (what if there had been that faithless elector?).
• I am trying to figure out why three was the magic number of abstentions for denying a majority. There does not seem anything significant about that number. Also, no states had evenly divided delegations, which seems unlikely as a practical matter, given the number of states with even-numbered House caucuses (including New Hampshire, more on that below).
• On that point: I cannot find the answer to this question and do not feel like researching it at midnight: Are abstentions treated the same as divided caucuses? Or is divided caucus a vote for neither candidate, while an abstention is a non-vote? And does the Twelfth Amendment require a majority of all states or all states that case votes, with abstentions being non-votes that reduce the denominator? History is ambiguous. In 1800, all the representatives in Delaware (1) and South Carolina (4) abstained on the 36th ballot. Jefferson already had won 10 states, so he had the election anyway. But it is not clear whether his majority was out of 16 (total states) or 14 (states casting votes, since Delaware and South Carolina abstained because each of their members abstained)? Were the abstentions from those two states the same as, say, Maryland's earlier non-committal vote when the caucus split between Burr and Jefferson?
In the Veep-iverse, this matters for two reasons. If they are the same, James did not have to necessarily plot to get states to abstain, he could have just counted the votes and seen that there were a sufficient number of evenly divided even-numbered caucuses. If they are different, then O'Brien won the election, because the three abstention reduce the denominator to 47 (states voting), so O'Brien's 25 votes constituted a majority of that.
[Update: A participant in the Con Law Prof listserv offers the right way of looking at this: If every member of the caucus abstains, then the vote from the state is 0-0-X; this is an evenly divided caucus, just as much as a 1-1-1 caucus would be. So there are no non-votes, which means the denominator must be 50. But then we go back to James not needing states to abstain, but simply be divided, whether through true division or through strategic abstentions by individual members in a state that create a tie (we thought that is what he was doing two weeks ago in getting the seventh member of Colorado's caucus to abstain, producing a 3-3-1 division). So the show seems to err again, confusing abstentions by states with abstention by individual members that tilt the balance one way or another.]
• The House adjourns with no announcement or plans for another vote. Of course, in 1801 the House immediately dove into additional votes over the course of that day and the following days and weeks. Catherine's movie catches a snippet of a conversation in which Selina and one of her staffers mention that James likely got the Speaker to agree not to hold additional votes once the first produced no winner. But would the members of the House, especially those who support O'Brien (and thus are politically opposed to James), tolerate that? Would the public? Yes, James is popular and competent. But it seems too pat.
• Jonah, of course, makes a fool of himself. But the problem of placing him in New Hampshire arose again. New Hampshire has two representatives, so Jonah does not exclusively control the caucus vote. New Hampshire only voted for Meyer because the other New Hampshire representative also voted for Meyer. So, again, Jonah was not necessary. More importantly, Jonah could not unilaterally switch the state's vote; switching his vote, assuming his colleague did not switch (and Jonah never had a chance to talk to him), would only render New Hampshire a split caucus going for no one, denying both candidates the possibility of a majority (unless abstentions do not count as votes).
• The show got its numbers wrong, at least for purposes of season-long consistency. The idea was that Jonah would cast the vote that would give Selina New Hampshire and the presidency. Put aside that NH could not play that role. It only works if NH would be the 26th state for Meyer. But the final vote with NH going for Selina, was 25-22-3. Even if all three abstentions would have been Meyer states, that still would not produce a victory for her.
• The show is setting up a Tom James presidency, continuing to ignore that James is not becoming President, he is only becoming acting President. Put differently, he does not hold the office of President, he only exercises those powers. The 22d Amendment expressly draws that distinction, as does the presidential succession statute. Even if it lasts four years, he still only acts as president during a period in which no President has been chosen. Neither the Constitution nor § 19 places a limit on the period in which someone can act as president or a limit on how long the period of non-qualification can last.
What the Speaker is allowing to happen is inconsistent with the purpose of the Twelfth Amendment. The amendment was motivated, in part, by the risk of "inversion," in which a party's preferred candidate for Vice President would win the House election and become President, against the preferences of the party and perhaps the public. The Federalists who voted for Burr did so because they hated Jefferson, but also because they knew it would mess with the Democratic-Republican plans to have Jefferson as President and Burr as VP. The Speaker is allowing the very inversion the amendment was designed to prohibit. Again, because James is so popular and so competent, the public in the Veep-iverse is okay with it, as he will get things done. Thinking about it, however, it starts to sound like a coup--the VP is conspiring with the Speaker to prevent a vote for the presidency, allowing him to exercise those powers for an entire four-year term. I think there would be strong opposition. And I also would expect both Meyer and O'Brien to lobby House members from their respective parties to force a vote--perhaps on bipartisan threat of removing the Speaker if he does not continue holding elections. Again, too pat.
Since the show is coming back for another season, it must be setting up what it hinted at in last season's finale--James nominating Meyer as his vice president, so next season she will be back where she started--doing nothing and waiting for the President to call. Too bad that is a constitutional impossibility.
• And now for the big mistake (ed: Maybe). Selina explains to Amy her plan to have Jonah switch so she could run against O'Brien in four years, whereas if James is made (acting) President, he would serve for eight years. Amy corrects her--"Twelve, ma'am. Tom's first term won't count because technically he'll be an elevated Vice President." My initial reaction was this is unforgivably wrong and I cannot believe they missed that badly, even if only as a piece of exposition. The Twenty-second Amendment makes clear that someone who has acted as president for more than two years of someone else's term can only be elected President once. Since James will act as president for four years (we presume, because the Speaker is blocking a vote), he could be elected once for four more years, but not a second time.
But then someone pointed out that the 22d Amendment says "held the office of President, or acted as President, for more than two years of a term to which some other person was elected President." (emphasis mine). The argument is that James is not acting in a term to which someone else was elected; he is acting because no one was elected. Textually that seems right. And it cannot be excused as drafting for an unforeseen situation, since the 12th and 20th Amendments both contemplated a VP acting as president for some period of time if the House failed to elect a President. So if they intended to include that in the 10-year limit, the drafters of the 22d should have accounted for that. Amy's exposition ("he'll be an elevated Vice President") is still wrong, but the substance is right.
But this reading is so inconsistent with the purpose of all three amendments related to a House election and presidential succession that it cannot be right. The 22d was intended to limit the number of years anyone can exercise executive power. And it would incentivize the very manipulations we see here, both in the Electoral College and in any House contingency election. And those incentives would not be limited to the VP-elect. If the House cannot pick a President and the Senate cannot pick a VP, the Speaker would act as president under § 19(a). So imagine the plots that could be hatched.
• The process the show followed for the House election is interesting. One member from each state, in alphabetical order, cast the entire state's vote publicly, presumably with individual votes having been taken in secret and within each caucus. In both 1800 and 1824, however, individual votes were recorded and each state's ballot was written and sealed. The procedures for the House vote are left to the House and changeable for each election, so nothing is set in stone. Lawrence Tribe wrote a nice essay on the process prior to the 1980 election, when it seemed possible that independent John Anderson might win some electoral votes, perhaps enough to deprive Reagan or Carter of a majority and throw the election into the House (spoiler: He didn't).
Monday, June 13, 2016
So the pieces are beginning to come together as we move into the final two episodes, which apparently will involve the actual House election (where find out if there is, indeed, an Electoral College tie) and the inauguration of someone.Jonah wins the New Hampshire special election, which is revealed to be an election to replace a representative-elect, stating that Jonah will be sworn with the rest of the House at the beginning of January. He wins in typical Jonah fashion--after he shoots himself in the foot, his opponent (the widow of the former representative and Jonah's former grade-school teacher) is quoted telling Jonah he needs to be more careful because guns can be dangerous; that last part is seized by the NRA, which undertakes a massive campaign to defeat her. So Jonah wins and promises to cast the vote that delivers Meyer the presidency.
While I like the story, let me lay out why the math does not work for the plot device of Jonah casting the deciding vote as a representative from New Hampshire. Meyer needs 26 state delegations to win. Let's say she has 25 states and the idea is that NH will be 26, with Jonah voting for her. NH has two representatives, so the delegation voting in January will consist of Ryan and Rep. X. If Rep. X supports O'Brien, Jonah's vote creates a divided delegation and does not provide the 26th state. It keeps NH away from O'Brien, but taking a state away from O'Brien does not give it to Meyer, leaving her with 25, not the required majority. If Rep. X supports Meyer, then she alone could have given the state to Meyer; there was no need to rush the special election or to get a supporter into office by January, as Meyer and her team wanted. The only possibility is that Rep. X plans to abstain, so Jonah's vote moves NH from a non-commitment to Meyer's 26th state. But that seems an odd plot move, one the writers have not set up or even telegraphed over the season, although maybe they will next week.
[Update: Upon further consideration, even that last one does not work. If Rep. X, as the lone member of the NH delegation had abstained, then the vote from NH would not have been a non-commitment, it would have been an abstention; that would drop the denominator to 49, meaning Meyer's 25 states constitute a majority. So Meyer would have a majority regardless of whether Jonah is in the House.]
By the way, the constitutional problem with the plot is not making Jonah the deciding vote (which is a cute move, given everything we know about Jonah and how the Meyer people feel about him), but putting Jonah in New Hampshire, a state with an even-numbered delegation, as the deciding vote. If you like New England, put him in Massachusetts (9 representatives), Connecticut (5), or even Vermont (a single at-large rep [update: Although, again, see above]) and the story makes constitutional sense.
I suppose another possibility is that Jonah renegs on voting for Meyer, denying her the majority and setting up a House stalemate and clearing the way for Tom James. But, again, James still only acts as president, so that hole remains.
Meyer at one point is nonchalant about losing benefits to Ohio and North Carolina from the agreement with China, in part because Jonah appeared poised to win New Hampshire. But that, too, is inconsistent with the requirement of a House majority--Meyer needs all the states she can get. Unless she is trading NH for OH and NC, which really makes no sense--why give up two states that take you past the bare majority?
I am looking forward to seeing how the writers play this out.
Tuesday, June 07, 2016
Overview of ABF Research (Part I): Criminal Justice, Legal Education & the Profession
In my previous post, I highlighted some ABF research that was on display at LSA. I’m sure I missed several other ABF-related panels at the conference. Even so, the LSA panels reflect only part of the ABF’s broader research portfolio. Let me mention some other projects. At its core, the ABF is an empirical and interdisciplinary research institute, and thus most of our research goes beyond purely doctrinal or theoretical questions to analyze “law in action,” as the legal realists put it. In this and the next set of posts, I’ll describe a few clusters of our research that reflect this focus on how law operates in society and on the ground.
Since its founding in the 1950s, the ABF has had a strong research focus on criminal justice. One of the ABF’s first projects, funded in large part by the Ford Foundation, explored the processing of offenders from arrest to prison. Led by Frank J. Remington, this study culminated in a scholarly edited volume (Discretion in Criminal Justice), as well as a larger publication (A Plane for a Survey) that highlighted the many areas of discretionary decision-making in the criminal justice system (thanks to former ABF doctoral fellow Meredith Roundtree for pointing me to this storied history).
More recently, ABF scholars have been continuing the tradition of analyzing criminal justice issues. Several are conducting research on the social and political implications of mass incarceration. ABF Research Professor and Northwestern Sociologist John Hagan and his co-author Holly Foster (Texas A&M) have been documenting how parental incarceration of non-violent offenders has had tremendous deleterious effects on children. With support from the National Science Foundation, the ABF held a White House Conference on this important topic. Similarly, Traci Burch (ABF/Northwestern Political Science) in her recent award-winning book (Trading Democracy for Justice) has shown the pervasive political and social consequences of mass incarceration, and how the criminal justice system has helped reproduce massive inequality.
Another area of ABF research related to criminal justice is Jim Heckman’s work on early childhood interventions. Jim, who is a U. of Chicago Nobel laureate economist and an ABF Research Professor, has been investigating how investments in early education and healthcare for disadvantaged children from birth to age 5 can have significant long-term effects on boosting graduation rates, improving health outcomes, and reducing violent crime. In a sense, Jim is studying ways to break down the school-to-prison pipeline that has been preoccupying many criminologists and lawmakers.
Legal Education & the Profession
In a previous post, I mentioned the ABF’s signature “After the JD” project, which continues the Foundation’s hallmark work on the legal profession. Directly connected to this line of research is more recent work on legal education. Beth Mertz (ABF/Wisconsin Law) has long been studying the relationship between language and the law. In recent years, she has been examining how law schools operate as a site for the training of lawyers in the language of law. Her award-winning book, The Language of Law Schools, draws on deep ethnographies to explain the important role of language in the socialization of law students. Beth is following up that earlier project with new research on the post-tenure experience of U.S. law professors.
In a similar vein, ABF Research Professor Steve Daniels has been conducting research on many aspects of the legal profession and legal education. Following up on his recent book (co-authored with Joanne Martin) about the Texas plaintiff’s bar, Steve is currently working on changing patterns within legal education. With support from the Access Group, Steve will be building on his experience as a consultant for the ABA’s Task Force on the Financing of Legal Education to explore how law schools have been responding to the current challenges facing legal education.
Criminal Justice and Legal Education & the Profession are just two historically prominent areas of ABF research. In my next post, I’ll describe other more recent areas of research.
Monday, June 06, 2016
It is mid-December and time for the White House Christmas party with members of Congress. And we learn what Tom James was up to in meeting with the Speaker at the end of last week and during the party this week:James is lobbying individual House members to abstain in order to create tie delegations, denying any candidate a majority. He is then counting on winning the Senate vice-presidential vote (which is by individual, not state) and, when the House vote produces a tie fails to produce a winner,* becoming acting president when no one has qualified to be President. We particularly see the fight over two members of Congress--1) Rep. Nickerson from Colorado, who's initial agreement to vote for Meyer gives her that delegation 4-3, but whose sudden abstention makes it a tie; 2) Rep. Yeager (state not mentioned that I heard), who similarly decides to abstain, denying his state delegation to Meyer. The situation is resolved by 1) Meyer and James having sex and 2) Meyer, seemingly emboldened, threatening Nickerson (in especially colorful language) and blackmailing Yeager (who was at the party with his young female "staffer") to return to supporting her. We will see if it holds up.
[*] It is not about a tie, as the show keeps saying, but about a majority. If Selina wins 25 delegations, O'Brien wins 20, and five are deadlocked, the vote is not tied, although it does not produce a winner.
The problem with James' plan remains what I argued when they began this story line at the end of last season: Under the Twelfth Amendment as modified by the Twentieth Amendment, the plan only results in James acting as president until a president (either O'Brien or Meyer) qualifies, not becoming a president. Someone could act as president for a full four-year term, but it would be an inherently unstable situation, ending at any moment that a later House vote produces a majority and a winner who qualifies as President. James also would not have an inauguration, would not appoint a new Vice President under the Twenty-fifth Amendment, and would not be listed in the line of Presidents. Would James want that position and hope it holds up for four years? Would his apparent popularity allow him to retain public support through that instability?
The show reminds us of the magic number for Meyer: 26, a majority of state delegations. Also, note that we still do not actually know if there is an electoral tie, since we still are in December and the votes will not be counted until January 6. The show could be waiting to play the faithless-elector card as late-season trump.
Update: This review of the episode proposes a fun third wrinkle: What if, while James is trying to screw Meyer by denying her a House majority, Sidney Purcell and the Speaker (the two people James met with last week) are going to screw James by denying him a Senate majority? The Twentieth Amendment gives Congress the power to provide for the failure of both the House and Senate to pick someone; that statute provides that when there is neither a President nor a Vice President for any reason (as would be the case at noon on January 20 if both the House and Senate fail to produce majorities, so that no one has qualified for the office) the acting president is . . . the Speaker of the House. That would be a legally/constitutionally accurate twist that would fit the show's screw-your-neighbor political ethos.
Monday, May 30, 2016
More small developments as the season moves towards the inevitable vote in the House.
Selina must choose two failing banks to bail out and picks one of them because it is based in Illinois, a state she needs. The show still has her treating the House vote like a mini popular vote, with individual House members voting the state's interests rather than the party line.
Along those lines, Jonah's congressional campaign turns the corner when he begins criticizing the President and her poor performance. If he wins running on that platform, how might it affect his vote in the House? (Again, this is assuming he is running to become the new representative-elect for the next Congress). [Update: Jonah Ryan for Congress has a website]
Finally, we see the next step in Tom James' plan, as he is shown meeting with the Speaker of the House and the head of the lobbying firm Dan worked for (and for which James appeared to be shilling last week). Clearly James is trying to manipulate the House vote. But how? To formally get his name in the House election, he needs that faithless elector, but we do not know what has been happening with the electors. If James is trying to create a stalemate in the House as the way to become President, I go back to my original argument that he only acts as President until the House breaks that stalemate, so this seems a constitutionally unsuccessful move (and one I hope the show does not build the entire season around).
Monday, May 23, 2016
The show takes place during Thanksgiving weekend, in an episode that has a lot of House-election stuff in the air.
Selina begins making phone calls to whip votes for the coming House election. But the show approaches that election in a way that is, at least on the surface, sloppy--the correct understanding may be in the background, but the details to come out in the way characters discuss the mater.
Details (and spoilers) after the jump.
First, no one has yet acknowledged that we do not know for sure that there is an Electoral College tie. The electors have not yet voted (that happens on the first Monday after the second Wednesday in December, so about three weeks from the current action), not every state has a faithless-elector law (and for the states that do, their constitutionality is not settled), and in the show's universe of less-rigid partisanship, an elector defecting to the other party (to say nothing of the hypothesized rogue Tom James vote) is not outside the realm. We will not know that the vote is tied until January 6, when the House meets to count the votes. There is a presumptive tie, given how the College now works, but it remains just that.
Second, it seems odd that Selina seems to be whipping current members of the House, since it is the new House, beginning January 5, that will count the electoral votes and, if there is no majority, select the President. The show could at least mine some scenes from Selina lobbying some new House-members-elect who have not yet taken office.
Third, she is making calls as if individual votes matter, rather than the partisan make-up of the state delegation. Thus, when Rep. Harry Sherman of New Hampshire (an 89-year-old man from the other party) dies, Selina's reaction is that this is one less vote for O'Brien, rather than talking in terms of how it affects the New Hampshire delegation as a whole. New Hampshire has two representatives. If the other representative is from Sherman's party, the state still goes for O'Brien; if she is from the other party, it turns a split delegation into a vote for Selina. That should be the discussion.
That last point leads to the other narrative development over replacing Sherman The state announces it will hold a special election "before Christmas." Sherman's widow (perhaps also-octogenarian, although it would not surprise me if the show trotted out a much-younger woman and played that for laughs) is running to replace him and Selina's party recruits Jonah to oppose her.* But the show is not clear about what vacancy is being filled. Is it the current term, that ends on January 4? Would a state bother to hold an election so someone can serve for 15 days? Or is it for the next term (the one for which Sherman was re-elected) that begins on January 5? But that seat is not yet vacant, since the term of Congress has not begun. Would a state hold a special election before the beginning of the new Congress to fill a vacancy that will occur when the new Congress is seated, but not before and that thus does not exist? It does not appear to be constitutionally obligated to do so. Perhaps it would do so here, given the extraordinary and historic circumstances. In any event, the show is being non-specific on this point.
[*] The decision to have Jonah as the candidate is discussed inconsistently. At times, he is spoken of as cannon fodder, thrown in to lose to the grieving widow. At other times, it is discussed as Jonah likely winning the election (because his uncle is king-maker in the state), but only as a short-time placeholder until his more-favored cousin returns from a tour of duty in the Middle East.
Finally, the show throws out a little Twenty-fifth Amendment action. Selina wants to disappear for the weekend to have minor cosmetic surgery to remove the bags from under her eyes, which leaves both eyes with rings of blood for a few days. Naturally, she is needed to speak to the public, first to calm concerns over a salmonella outbreak and then to address Rep. Sherman's death. She asks both Tom James** and current VP Doyle to take the lead. Doyle agrees once, then balks a second time until he is told why Selina cannot do it. When Mike lies that she just had some minor oral surgery that renders her unable to speak in public, Doyle demands to know why the amendment was not invoked for the President's incapacity or why, if not incapacitated, Selina does not do this herself; Mike's response--"she's not not incapacitated"--is classic Veep.
[**] James is shown working some scheme through his public statements, in which he appears to be shilling for companies represented by a lobbying firm. Is he setting up that one faithless elector to get him into the House vote? Dan, who has been assigned as James' bag man, catches on, but no one in Selina's camp believes him.
Monday, May 16, 2016
The Nevada recount is moved somewhat to the background this week, with the main story being about Selina's mother suffering a stroke and Selina removing her from life support. Reports of events in Nevada are interspersed with her grieving (she did not get along with her mother), so that she breaks down while giving the eulogy because she just learned that she had lost both the Nevada recount and the national popular vote (the ballots found last week gave O'Brien a bigger win in Nevada and also flipped the national vote).
Beginning next week, things move to Congress, which is the constitutional piece I have been looking forward to. Three interesting points. First, no one has mentioned the important event before going to Congress--the actual casting of votes in the Electoral College, in December. Will the show play around with a faithless elector either changing votes and giving either Selina or O'Brien a majority (and obviating a House election) or, as some commenters here have suggested, casting a vote for Tom James (Selina's running mate), which would put him into a three-person House election? Second, I am curious to see if, and how, the show paints a House election as anything other than a straight partisan battle--everyone in O'Brien's party votes for him, everyone in Meyer's party votes for her (assuming James is not in the mix), and we see where things land. Are there going to be enough evenly divided state caucuses that straight-party voting continues to produce a tie? Third, I continue to hope the show does not make the constitutional mistake of having the Senate select James, the House unable to decide, and James becoming President and appointing Selina as his VP. Stay tuned.
Monday, May 09, 2016
Things continue in Nevada. We see the beginnings of litigation, although I am not exactly sure where or what level--the Meyer campaign is seeking a "Hail Mary Injunction," appears in front of a multi-member court, but everyone is making objections. The show also continues developing Richard as character: He has emerged as the one competent person working for the campaign, but is not liked or taken seriously by others, and one reason might be that he is an overweight African-American.
The episode raises an interesting question about the politics of a Twelfth Amendment House election. Meyer starts and escalates an economic war with China, first to cover for a mistaken Tweet, then to avoid looking weak in the face of cyber-security threats from China, which she fears will hurt her electoral chances. But her electoral chances where? Not in Nevada, where the voting is done and what is left is the counting. So it must be the vote in the House. But would we expect the House vote to be anything other than straight partisanship, especially in this political period? Would a member of Meyer's party really vote for O'Brien (or abstain, allowing O'Brien to win that state's delegation vote)? Worse, would this one event cause that member to change his vote (i.e., he planned to vote for Meyer, but now will not because of this China thing), given what a disaster she otherwise has been in office? The show plays the typical "I can't look weak" concerns of an incumbent President running for office, but it may not fit the context.
Monday, May 02, 2016
Nothing new on the federal constitutional or succession front. The story is settling in for a recount under Nevada law--although I welcome election-law folks to offer thoughts about the state process, under which a sample of votes are recounted and if it is closer than a certain margin--Meyer needed t0 pick-up 512 votes--there would be a statewide recount.
The great lawyerly moment was over the effect of a comma on a ballot on which the voter had scrawled "Fuck Selina Meyer." The O'Brien people insist it is an O'Brien vote, the voter expressing disdain for Meyer; the Meyer people insist it is a Meyer vote because there is a comma in there ("Fuck, Selina Meyer"), the voter expressing "earthy but unambiguous enthusiasm for Selina Meyer." The election official counts it for Meyer. [Update: Courtesy of one of my students]:
Actually, I read it a third way--indicating resignation ("Fuck, nothing better, [throwing up hands], might as well vote for Meyer"), which still would have produced the same result of a vote for Meyer.
Monday, April 25, 2016
As I indicated last week, I am going to blog about VEEP's storyline of an Electoral College tie. Mild spoilers (and direct quotations from the show's unique dialogue) after the jump.We pick up the morning after Election Day, still facing the Electoral College tie.
Early on, Selena asks "Didn't those Founding Fuckers ever hear of an odd number?" And while many a living constitutionalist has wanted to utter that phrase, this tie, per se, cannot be laid at the Founders' feet. The number of electors is based on congressional representation, which was last set by Congress in 1913. It might be more accurate to blame the Twenty-third Amendment, which, by adding three electors from D.C., turned an odd number into an even number. Or blame Nebraska and/or Maine, which allocate their electoral votes by district. The one time we see an electoral map, all five NE votes are red, although we do not see the split in Maine. Did O'Brien (Selena's opponent) win one district in Maine, giving him a vote he otherwise would not have, thereby creating the tie?
The big plot move is that Nevada, which had been called for O'Brien, is closer than 0.5%, kicking-in review of votes and a possible recount (Richard, who had been Jonah's crony all last season, is revealed to be an expert in Nevada recount procedure). So it appears that, at least initially, the show is going to satirize Florida 2000, rather than House of Representatives 1800. But just wait.
Finally, apparently con law experts are the new math/science/computer nerds. Amy returns from a conversation with the campaign's consultants and says "I don't know what's getting their dicks harder-an Electoral College tie or talking to a girl."
Friday, April 22, 2016
VEEP returns amid constitutional chaos
VEEP returns to HBO on Sunday night (with a new showrunner) where it left off--an Electoral College tie; a likely tie in the House of Representatives; Selena Meyer's running mate, Tom James, likely to win in the Senate, then become acting President with the House in stalemate; and the running mate/new VP/new acting President asking Meyer to become his VP. This commentator argues that the show cannot narratively go back to Meyer as VP, although it can draw the uncertainty out well. In advance of the episode, I repeat my argument that the show cannot constitutionally go back to Meyer as VP, because James will only act as President and will not have the power to appoint a Vice President.
I hopefully will have some comments on the episode on Monday. Maybe I will try bloggging the constitutional and succession issues for the season.
Tuesday, April 19, 2016
Bad presidents and fictional schools
I have been listening to WaPo's Presidential podcast, which offers 44 sequential weekly bios of the Presidents, running from the beginning of the year until the election. This week is Buchanan, next week is Lincoln.
But hearing about the forgettable presidents of the nineteenth century, especially in the period between Jackson and Lincoln, got me thinking about TV shows (especially sitcoms) naming fictional schools after presidents who are largely regarded as unsuccessful. Off the top of my head: Welcome Back, Kotter took place at Buchanan HS; Glee took place at McKinley HS; the Brady kids attended Fillmore Junior High; and Girl Meets World takes place at John Quincy Adams Middle School (this is an homage to the original taking place at John Adams HS).
What other examples am I missing?
Monday, March 28, 2016
Wednesday in North Carolina
It has been an interesting week in North Carolina. Last Wednesday, the ultra-conservative Republican super majority in the NC General Assembly called itself into a special “emergency” session to overturn an ordinance passed by the City of Charlotte on February 22. Charlotte (like many other cities) has long had a non-discrimination ordinance (section 12-58 of the Charlotte City Code), which prohibited discrimination in public accommodations on the basis of “race, color, religion, or national origin.” The new ordinance simply added “sex, marital status, familial status, sexual orientation, gender identity, [and] gender expression” to the existing list of protected categories. Additionally, the new ordinance deleted section 12-59 of the Charlotte City Code which prohibited sex discrimination in public accommodations but also provided as follows:
(b) This section shall not apply to the following:
(1) Restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private.
(2) YMCA, YWCA and similar types of dormitory lodging facilities.
(3) A private club or other establishment not, in fact, open to the public.
This rather innocuous change in a long-standing provision of the Charlotte City Code became known as the “bathroom ordinance.” So vile was the bathroom ordinance that it was necessary for the legislature to convene a special session to overturn it before it took effect on April 1.Governor Pat McCrory (R) (who served has a member of the Charlotte City Council and as mayor for a total of 20 years, all without questioning the legality of the then-LGBT free non-discrimination ordinance), declined to call the General Assembly into special session because he feared (no doubt based on inside knowledge) that the General Assembly, if summoned, would pass legislation that was far broader than the “bathroom ordinance.”
The Republican legislature, not to be stymied, called itself into special session, which it scheduled for Wednesday, March 23, 2016. Despite requests from members of the General Assembly and the media, the powers that be in the General Assembly refused to release a draft of the legislation that would be introduced on March 23 claiming that it was not yet complete. When the legislature convened around 10:00 am, the bill (House Bill 2 or “HB 2”) was introduced and made public for the first time. [The date stamp on the last page “(03/16)” makes fairly clear that the bill had been drafted at least in substantial part well in advance.] HB 2 was 5 single spaced pages of fairly dense statutory language. The first vote was held 5 minutes after it was introduced. There was a 30 minute public comment period for those who were able to get to Raleigh to testify. Then some limited debate. Then two more votes, culminating in final passage by the House at about 3:30 pm. The Senate took up the bill at about 4:45, had an initial vote and then another 30 minute public comment period. After it became clear that the Republican leadership was not interested in anything the other side had to say (according to Senate Democrats) all of the 15 Democrats walked out in protest. The chair called a final vote and HB 2 passed by a vote of 32-0. This was roughly 7:00 pm. Although Governor McCrory had 30 days to consider whether or not to sign HB 2 into law, he signed it at 9:57 pm that night.
In just under 12 hours from introduction to gubernatorial signature, North Carolina enacted what many have called the most aggressively anti-LGBT legislation in the country.
ALL local non-discrimination ordinances were banished. All local governments in NC were prohibited from protecting any group not protected by state law. In the place of inclusive local laws (passed by the duly elected representative of those local jurisdictions), the General Assembly created a statewide public accommodation law was passed which protects only race, national origin, color, religion, and BIOLOGICAL sex. It also mandated that all public restrooms in NC (including in public schools and universities) must be single sex and that a person may only use the restroom designated for his or her BIOLOGICAL SEX, as listed on his or her birth certificate.
Not content to stop there, HB 2 also contained a slew of EMPLOYMENT related provisions, despite the fact that Charlotte’s ordinance had nothing to do with employment. More on those later.
So, North Carolina – once the most progressive of southern states – is now, perhaps, the most regressive on LGBT rights.
Perhaps it was fitting that this special session that culminated in HB 2 was on Wednesday of Christian Holy Week, the day on which Judas Iscariot betrayed Jesus. I cannot think of a bigger betrayal of the teachings of the Jesus I learned about in Sunday School than legalizing discrimination against a minority group.
Friday, March 11, 2016
Visualizing Last Night's GOP Debate
So finally last night I watched my first presidential debate. (Why wait until now? Primarily because (a) I don't have cable, and (b) the debates usually come on right around my kids' bedtime.) And, based on the after-debate commentary I've heard about the other GOP debates, this was probably a good one to start with, it being higher on substance and lower on scatology. And shouting.
Still, around the hundredth time I heard Trump say the word deal, I started to wonder: what would a word cloud of the candidates' debate performance look like? So I present here, as a public service, a visualization of the candidates' messages from last night. (The transcript I used is here.)
I was surprised to find out that Cruz spoke the least in the debate last night: he only said about 3,578 words. They looked like this:
Kasich got 3,590 words in during the debate:
Rubio managed to say 4,609 words last night.
Not surprisingly, Trump spoke the most last night with 5,002 words last night. And, although deal isn't the biggest word in the bunch, frankly, my intuition wasn't that far off.
Last night, David Lat provided a Twitter version of my final word cloud:
Wednesday, February 17, 2016
Donald Trump is Jeb Bartlet. That is, Aaron Sorkin wrote Donald Trump as president/presidential candidate in Jeb Bartlet, in terms of the "game-on, don't stand on ceremony, tell the dummies how it is" approach to talking to everyone. Bartlet's first scene on the show had him telling a group of religious-conservative political activists to "get your fat asses out of my White House."* Can you not picture Trump saying the same thing? The only difference, of course, is that Trump is doing it in service of a conservative/populist/angry-alienation agenda rather than a '60s Great Society liberal agenda?
[*] Mind you, that scene also contained one of the great free speech quotations of all time. When one of the activists asked whether the fact that any child could buy pornography for $ 5 was too a high a price for free speech, Bartlet responded, "No. But $5 is too high a price to pay for pornography."
Sunday, January 24, 2016
Sunday Sci-Fi Pay Equity Blog
The X-Files returns tonight. The world seems a wee bit better when Mulder and Scully are flirting while chasing aliens and discovering inbred Pennsylvanians tied under beds.
And the good news is that the show's stars, David Duchovny and Gillian Anderson, will be receiving equal pay for the revival. According to this story, as well as a gaggle of others, Anderson was initially offered half of Duchovny's salary. Which is, you know, silly, especially since she had to fight for equal pay with her co-star the first time around. Apparently, when the show first started, Anderson was instructed to walk behind, rather than alongside, Duchovny, so she would seem more like a sidekick than a partner.
I, of course, blame the government. It's a conspiracy. Aliens are involved. The truth is out there.
Thursday, January 21, 2016
Like every third person on the planet, I like Serial. Regardless of what people are saying about the podcast's second season, the show is very good. These are master storytellers at the height of their game. Now that the show is leaking out slower than it used to, I've had more time to think about it. And that's one of the things I like best about it.
Waiting often sucks. My friend is late to pick me up. Sucks. The light has been green for twenty seconds and no one is driving their effing car. Sucks. The professor still hasn't posted grades. Sucks. But the anticipation is wonderful. The waiting is one of the things that makes it great.
Don't get me wrong. I binge with the best of them. I binge-watch shows that beg for a cooling off period, like Sundance Channel's Rectify. It's a beautiful show, to be sure, but the main character's whole Boo Radley thing is straining, especially when you power into the third episode straight. And yet I chug it down like it has the antidote. Perhaps the problem is my lack of self-control, but that's a different post for a different day.
There's a lot of talk out there about the changing nature of entertainment norms and structures. Content is increasingly being dumped at once, and we watchers/listeners/readers have more access to good content than ever before. For the most part, I think this is great. I just worry that we lose the benefit of anticipation. My son is 12. Basically all he knows is streaming content (and he's never looked up something in a phone book, which is messed up.) I like to have stories stick with me. I like the opportunity to speculate. I like being able to set down a show for a bit. And Netflix knows this about me, which is why it just fires up the next episode. Don't let him stop. Keep him watching. Eventually he'll give in and watch Marco Polo or Hemlock Grove.
It's only a matter of time before the major networks abandon the current method of scheduling programming. And it's a shame. A show like Lost shouldn't be binge-watched. You have to dedicate a certain amount of hours to wondering where that frigging polar bear came from. The struggle is real, and we're losing it, and that's unfortunate.
Wednesday, January 20, 2016
How Being a Struggling Student of Talmud Made Me a Better Professor of Law
My mother passed away last March. With my dad’s passing six years earlier, my brother and I suddenly found ourselves parentless while still in our 30s. Dealing with the grief has been difficult enough. Equally difficult in many ways has been the challenge of administering my mom’s estate—working through the modern morass of medical forms, bills, taxes, mail and magazine subscriptions, bank accounts, and credit cards is essentially a second full-time job. It turns out that dying in the twenty-first century involves a tremendous amount of paperwork.
The silver lining to all this, I suppose, is that acting as personal representative of my mom’s estate has allowed (forced?) me to employ several long-dormant aspects of my legal education. I have reviewed more contracts, communicated with more federal and state agencies, and spent more time at the probate court clerk’s office in the last year than at any time since I left full-time practice (and maybe ever). Like working an underused muscle for the first time in a long time, doing this kind of legal work is simultaneously invigorating, exhausting, and humbling. I am despondent about the circumstances, but grateful for the experience.
The circumstances have created another unexpected educational benefit: I have been reintroduced to the awesome challenge of Talmud study. In a year when many things have been cloudy and overwhelming, a weekly dip into Talmudic debates has sharpened my mind and changed some of my perspective on teaching.
The Talmud is a compilation of commentaries surrounding Judaism’s Oral Law (that is, the law said to be provided directly to Moses and orally transmitted through the generations, before the teachings were compiled in written form around 200 CE). Serious Talmud scholars intensely focus on a single page of text each day (Daf Yomi). A statement of law or practice in the center of the page is accompanied (literally surrounded) by a variety of rabbinic debates on the meaning and application of the statement, or offering proof for the statement. Commentaries build upon commentaries, and pull in citations from a variety of other textual sources. For a very rough sense of what it feels like, imagine a treatise on the First Amendment written by a squabbling committee of brilliant academics over the course of several centuries, and referencing a dizzying array of cases, law review articles, statutes, regulations, and local practices.
My entry into the Talmudic waters has been far less intense than daily study, but still offers plenty to digest. I meet with a small group of adult learners once a week shortly before evening minyan (the service that permits me to say Kaddish, the obligatory mourning prayer said daily for eleven months after a parent’s death). We have an excellent instructor, who is both prepared and patient. I dutifully bring my book, puzzle over the debates with the others around the table, and try to understand each strand of argument line by line, paragraph by paragraph.
In some ways, my legal training has been immensely helpful for this kind of work. I can easily recognize and appreciate some of the tools of argumentation: reasoning by analogy, reasoning from history, reasoning by custom, etc. It’s Cardozo, 1500 years before Cardozo. In other ways, my American legal training is virtually useless: because the debates in the Talmud operate in a closed environment in which text, history, and practice are of divine origin, the policy arguments that animate difficult legal questions in our time are noticeably absent. You cannot just say, “Why does any of this matter? “ One must take it as a given that it matters—even when the debate is about something as arcane as when to celebrate the New Year for Vegetables. (Yes. Really.) Nor can one simply dismiss a purported proof text as wrong; since the point of the exercise is to explain the law rather than develop or discover it, rejection of one proof requires the submission of an alternative proof. Once you accept these parameters, it’s a wonderful stretching exercise for the logical mind.
More strikingly, my journey into Talmud study has been humbling. If you were to ask me at the end of each study session whether I understood what we covered, the answer would be an unequivocal yes—and an unequivocal no. I understand the scope of the debate as presented in the limited form we discussed, but at the same time I realize how little I understand of how it fits into the larger discussion. So I get it—and I don’t. And it occurs to me that only years of consistent and rigorous study will truly make some of it clear (or more accurately, clearer).
This realization has had effects on the way I teach civil procedure. My own experience suggests to me that student silence (especially among 1Ls) almost certainly does not have a uniform meaning. Some students may be quiet because they are unprepared and cannot follow the discussion in a meaningful way. Others may think they understand, but need time to process the discussion and rearticulate it in their own words. They are not ready to ask questions or jump in. Still others may understand the terms of the specific discussion we are engaged in at the moment, but (like me at Talmud study) don’t know enough (or don’t feel comfortable enough) trying to tie it together to other topics in the course. I have to try to reach all of these groups in different ways—through classroom discussion, formative assessment methods, and one-on-one meetings.
So I will stick with Talmud study, even when my other executor duties are complete. I think my mom would approve.
I would be curious to hear from others who had the simultaneous experience of being a teacher in one discipline and a student in another. How did your experience in one area influence your approach to the other?
Sunday, January 10, 2016
Sunday Soderbergh Blog
Steven Soderbergh is a productive guy. Like really productive. In the last few days, I've stumbled upon some interesting pieces about the man, the myth, the auteur . Those familiar with my writing already know that Soderbergh has been a huge influence on me and my thinking about New York hospital culture in the early years of the 20th century. So please enjoy:
The first is his own list of stuff he watched, read, and listened to in 2015. Yes, it's weird he keeps a list. And weirder that he publicizes it. But I'm really struck by the range of his interests. Dude loves him some news magazine shows. Which makes sense, because Lester Holt is awesome.
The second is a Vulture piece by Matt Zoller Seitz about how The Knick, Soderbergh's show on Cinemax, is made. It's a crazy schedule. I found it riveting--more so than the show it covers.
I'm glad no one has decided to write one of these stories about me ("He writes slowly and infrequently, breaking for podcasts, donuts, and naps.")
Tuesday, December 29, 2015
Making a Murderer
We just finished watching the 10-part Netflix documentary that everyone is talking about and I highly recommend it. For those of you who do not know, it tells the story of Steven Avery; Avery served 18 years in prison in Wisconsin for a sexual assault he did not commit, was released in 2003, was in the midst of a multi-million dollar § 1983 action against local police and prosecutors (from Manitowoc County), then was charged (along with his nephew) with a grisly murder, with some indications that officers from the original police department (who were supposed to have been removed from the investigation because of perceived conflicts of interest) might have planted evidence. The filmmakers spent ten years working on the film; they begin filming following his initial exoneration, then following the story in all its turns. The film is very defense-focused because that is where their access was; there is some conflict whether they offered the prosecution similar access.
Details of the case (and thus possible spoilers) aside, it provides great, realistic insight into the judicial process--what lawyers do, what trials and depositions look and sound like, how evidence really works, how procedure operates, and how lawyers put cases together and question witnesses. It turns out that Laura Ricciardi, one of the filmmakers, is a (formerly practicing) lawyer, which explains her focus on and interest on the judicial side of things Although not complete, it offers a great counterweight to those students who come to law school having watched too much Law & Order, NCIS, and CSI. I recommended it to my Civil Rights students because of the focus on the § 1983 action in the first two episodes, as well as the depiction of the problems in the criminal-justice system that may or may not lend themselves to remedy through private civil rights litigation.
I would have liked to see or hear about more of the prosecution's evidence beyond the stuff that the defense argued was planted or tainted and that was attacked at the trials. Tooling around the internet reveals some other stuff that was perhaps inculpatory or, at the very least, gives a fuller picture of the state's case. But this is a small quibble in a film I otherwise really enjoyed and believe could make a good teaching tool.
Sunday, December 20, 2015
The Goldbergs do Super-Chanukkah
Two weeks ago, I wrote about the TV show The Goldbergs, which is understood as a "Jewish" show based largely on the character names and the fact that the showrunner is Jewish, but without really playing up the Jewishness of the family. As if on cue, the show that week did its first Chanukkah episode (titled A Christmas Story). The mother on the show, Beverly, worries that her family is not sufficiently enthusiastic about the holiday, certainly as compared with the Christian family across the street doing an enormous Christmas. So she creates "Super-Chanukkah," which looks a lot like Christmas, down to the tree ("no, it's a Chanukkah bush"), the stockings hung by the chimney with care ("not stockings, Chanukkah socks"), and candy canes ("not candy canes, peppermint J's"). This brings her into conflict with her father, who calls her out for discarding thousands of years of culture and tradition (without, interestingly, using the word "Jewish"). The episode ends with Beverly introducing the Christian family to the most important Jewish holiday tradition of all--eating Chinese food on Christmas.
Showrunner Adam F. Goldberg has said that Chanukkah was not a big deal around his house, so this episode (like the rest of the show) is true to his vision and the semi-autobiographical story he is telling about his childhood and family. More interestingly, the real Beverly Goldberg has taken to Twitter to discuss her son's vision for the show; back in April, she said:
The GOLDBERGS is a love letter from Adam to our family,the 80's, Jenkintown , philly sports teams. We r also proudly Jewish/ but this is -- Not a show about religion . We are role model in being a loving caring family Adam has great integrity/honesty portraying us Its his show-- We r not Blackish nor Fresh off Boat. Great shows. We are about family &love Religion is private/ personal. It's up to Adam. It's his show.
Which is similar to my point in my earlier post--Goldberg is not obligated to make a show that is as Jewish as those other shows are African-American or Asian, respectively. But my other question remains, as well: Could Goldberg (or anyone else) make that show if he wanted to? I genuinely do not know the answer.
Monday, December 14, 2015
Apparently, crowdfunding can rely on the adage, "the way to a man's heart is through his stomach." A Baltimore crab house has offered Orioles star Chris Davis free crab cakes for his life and for the next two generations of his family for re-signing with the Orioles. It reminds me that we might have underemphasized the purely symbolic value and benefit to fanfunding. It need not be about raising significant amounts of money or outbidding competing fans, but about expressing support for the player in any way, including unique ways that reflect a connection to the particular city.
Friday, December 11, 2015
Sinatra's Mug and Postmortem Publicity Rights
Yesterday I listened to an entertaining and fairly illuminating Planet Money podcast about Frank Sinatra's publicity rights and his estate's (officially, Frank Sinatra Enterprises') control over the commercial use of his image. Aside from a light-hearted, music-filled history of California's right of publicity statute--which Sinatra helped spearhead in the wake of Elvis Presley's death--I was particularly taken by the journalist's interview with his daughter, Tina, who heads FSE. The interview raises important questions about children serving as stewards for their parents' cultural legacies.
Publicity rights are often justified via an analogy to patent and copyright; they incentivize investment in celebrity persona and/or ensure that celebrity laborers reap the commercial value of their efforts. At times in the podcast, both the producers and Tina Sinatra speak in these terms and emphasize Frank's financial legacy to his children and the concern with others free-riding--"ripping him off"--after he died. Although Frank did not leave his children much in the way of cash, he left lots in the way of valuable IP, which FSE has used to develop an "upscale luxury brand" around Frank's image, e.g. lounges, restaurants, special edition whiskeys.
On the other hand, much of the rhetoric in the podcast is focused on nostalgia, Frank's cultural legacy, and the integrity of his image. Tina confesses that she can't "separate [her]self" from him; that her father is with her "every second of every minute of every hour of every day." She is looking for opportunities to "honor her father" and to make sure that licensees of his image "keep it classy." Although compared with other IP estates, the Sinatras appear relatively sane in terms of allowing third-party uses (but no Bobbleheads!), it's important to acknowledge the role of a family's emotional attachments in driving its decisions about the use of celebrity imagery (or popular culture in the analogous copyright context). Publicity rights are asserted not just against traditional merchandising like t-shirts and coffee mugs, but against a range of commercial goods with a strong expressive element, such as video games. (See cert petitions in Davis v. EA). Accordingly, in trying to achieve a better balance between IP rights and free speech, it's crucial for scholars, judges, and lawmakers to see how family members' feelings of nostalgia, prestige, and legacy can skew the equation. Estates are often some of the most notoriously litigious IP holders, and it's important to account for the differences in motivations and incentives between the initial rights holder and his or her successors. There's wide variation in the postmortem terms between states (zero in New York; 100 years in Indiana), so any effort to amend/harmonize these protections would ideally account for the psychology of the IP estate.
Lastly, in light of the substantial postmortem term in many states (and the life +70 term in copyright), this story does point to the importance for celebrities, artists, and authors to actively think about and plan for cultural stewardship of their works after they die. Frank Sinatra sat down with his children long before he died and asked them to take the helm of Sinatra licensing. He also communicated to them, "I don't want to end up on a f***ing coffee mug." While as a matter of cultural policy we might not want to defer categorically to the wishes of deceased celebrities, much of the mess around postmortem rights arises when the rights holder dies intestate. See, e.g., MLK, Jr. and Marvin Gaye.
To keep up on all things publicity rights, I want to second last month's endorsement of Jennifer Rothman's new website.
Monday, December 07, 2015
My wife and I have been enjoying the tv show 'black-ish since it premiered last year. The show started as an exploration of an African-American from a hardscabble background who has "made it" (living in a wealthy, mostly white neighborhood, sending his kids to a mostly white private school, working in a mostly white ad agency) and how to maintain the family's connection to black culture. It has evolved to the story of an upper-middle-class black family, depicting and taking on (directly or indirectly) racial and cultural issues in a unique way from a unique perspective (see, e.g., this episode), usually through humor and satire. I cannot say how much the African-American perspective has been watered down for a broader audience, but the show seems to retain something of a special voice and context.
We also just started binge-watching The Goldbergs, which is similarly fantastic. It is a semi-autobiographical show about producer Adam F. Goldberg's childhood in suburban Philadelphia in the '80s. The characters are based on Goldberg's real family and friends and he intercuts photos and home movies of the real-life counterparts. The show never reveals what year it takes place (the narrator begins each episode by saying "it was [date], 1980-something"), instead combining pieces from all over the decade into a single pastiche (the kids are seeing Return of the Jedi and listening to New Kids on the Block at around the same time).
The latter show is understood as being "Jewish," but is it Jewish in the same way that 'Black-ish is black? The Jewish label seems to derive largely from the title and the names of the characters,* because showrunner Goldberg is Jewish, and because the characters behave in stereotypical Jewish ways.** On the other hand, only two of the six main actors are Jewish.*** Their house is not decorated with the background items that identify it as a "Jewish" home. And we have not yet seen an episode (halfway through Season Two) that discusses or addresses things that mark the family as Jewish--holy days, Bar Mitzvahs, Jewish culture, etc. There was one episode in which the family seemed to be discovering Chinese food for the first time. In fact, the show changes reality to pull back from one Jewish stereotype--Goldberg's real-life father was a doctor and the family lived in a large house, while on the show he owns a small discount furniture store, the home is smaller, and the family more middle class. The show seems "Jewish" in the same way that Seinfeld was Jewish. Otherwise, it really is about kids growing up in the '80s who happen to have a Jewish last name.
[*] In an interview, the actor who plays Murray Goldberg, Adam's father, said they could not get much more obvious unless they called the show "The Jews."
[**] The mother (or the "smother," as she is called) is loud, overbearing, and thinks her children are God's gift. The sons are geeky and non-athletic, but you can tell they will grow up to be "Nice Jewish Boys."
[***] The father and the grandfather, the latter played by George Segal. An older brother is played by an actor with the last name Gentile, which may be the apex of the old adage "Write Yiddish, Cast British." The actress who plays the mother is wonderful, but does not look remotely Jewish.
I am curious about this difference and why 'Black-ish offers a much more recognizable slice of black culture than The Goldbergs does of Jewish culture. Some of this may be artistic vision. Obviously, people make the show they want to make (and ABC execs insist this is Goldberg's vision). And, again, I love the show he is making and am not trying to suggest that Goldberg was somehow obligated to write 'Jew-ish.
But I am wondering whether that show would fly if he had wanted to make it. One might argue this is unnecessary, that Jewish pop culture is a big piece of American pop culture; there is no need for a distinctly "Jewish" voice on TV because so many of the voices on TV are Jewish (actually or stylistically). On the other hand, we need the distinctly black voice that 'Black-ish provides because it is otherwise non-existent. Alternatively, perhaps the vision of the "cultural" Jewish family depicted on the show is that similarly watered-down vision that can appeal to a broader audience that would not, for example, relate to an episode showing the youngest son's Bar Mitzvah. If so, then it seems that, despite the very different power positions the two groups occupy in American society, there is more of an acceptance for African-American culture (in watered-down, but still recognizable, form) than for Jewish culture in similar form.****
[****] The "Jewish" show that does go beyond last names to depict Jewish culture and people who are part of that culture is Transparent, which, of course, is far better known for the other culture it depicts.
Thursday, December 03, 2015
Second Circuit Sides with the "Cannibal Cop"
Today, the Second Circuit (2-1) issued its long-awaited opinion in United States v. Valle--the so-called "Cannibal Cop" case. The court upholds the lower court's judgment of acquittal on Valle's kidnapping conspiracy charge and, joining the Fourth and Ninth Circuits, reverses his conviction under the Computer Fraud and Abuse Act.
A brief recap of the case: Gilberto Valle was convicted of a conspiracy to kidnap, kill, and eat several women based largely upon a set of 40 conversations he had via the website DarkFetishNet. He was convicted under the CFAA for accessing a police database to look up one of the women he had discussed with his alleged co-conspirators (obviously not for NYPD-related purposes). A year after his conviction, Judge Gardephe granted a Rule 29 motion solely on the kidnapping charge on the basis that the government had not sufficiently shown that Valle's online conversations were anything more than fantasy--Valle had thousands of conversations with at least 24 different people on DarkFetishNet, and the government failed to provide any reasonable basis for plucking out 40 "real" conversations from the thousands it conceded were "fantasy." All the conversations involved the same gruesome kidnapping and cannibalism scenarios, and if the prosecution's theory was true, he was planning on kidnapping three different women in three locations (in two different continents) on the same day. Moreover, the alleged conspiracies were contingent upon a number of elements--e.g., a human-sized oven, a secluded cabin in the woods--that didn't exist, and Valle repeatedly lied about and avoided giving any actually identifying information about the victims.
The Second Circuit largely adopts Judge Gardephe's reasoning and as well as the concerns (without citing) that Thea Johnson and I raise in a recent essay: "We are loathe to give the government the power to punish us for our thoughts and not our actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). That includes the power to criminalize an individual’s expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime."I see at least three important aspects of this case:
First, as pointed out by Judge Straub's dissent, both Judge Gardepehe and the majority rather boldly set aside the jury's conclusion that Valle's conversations were not merely fantasy. Indeed, a number of other courts addressing Internet sex-related crimes have acknowledged that the defendant presented a potentially viable fantasy defense but nonetheless deferred to the jury’s assessment about the credibility of that defense. See, e.g., United States v. Dwinells, 508 F.3d 63 (1st Cir. 2007); United States v. Howard, 766 F.3d 414 (5th Cir. 2014). The court does really seem to be reweighing the evidence, but this reweighing is demonstrably infused with an awareness of the need to separate out fantasy from real crime. This is an issue that courts will increasingly be called upon to tease out in the Internet era, as people's intimate lives have become both more transparent and more easily admissible in court. Jurors sitting in a single trial are less likely to be sensitive to this need and are more likely to be swayed, as the court recognizes, by a sense of disgust or revulsion. As tempting as it may be to defer to jurors' common sense in these matters, the court recognizes the difficulty of soberly teasing apart fantasy from criminal intent. Relatedly, in an HBO documentary about this case (Thought Crimes), I was struck by an interview with one of the jurors, who said the jury was convinced Valle "wanted to do it." This, of course, is not the relevant inquiry.
Second, and relatedly, the court recognizes the limited probative value of Internet searches, namely that is inappropriate to conflate an interest or curiosity in a particular subject matter with an actual intent to move forward with that fantasy. "Valle’s Internet searches show that he was interested in committing acts of sexualized violence against women. Interest may be relevant evidence of intent, but it does not by itself prove intent." (p 21). Judge Straub counters that the jury could reasonably deduce that his inquiries showed criminal intent (p 57), but this again assumes that a reasonable person has a good grasp on how people use the Internet to explore sexual interests. There’s a growing body of research showing that people search a wide range of “wicked” thoughts online, and as legal scholars like Neil Richards have argued, search history is often an externalized recording of our inner thought processes. It therefore shouldn’t be conflated with probative evidence of our intended actions. As the majority in Valle acknowledges, “the link between fantasy and intent is too tenuous for fantasy alone to be probative.” (p. 4)
The "Cannibal Cop" case may seem like an anomalous case with a strange outcome driven by very strange facts. However, as I am examining in a new paper, it raises important questions that have and will continue to plague courts: what line should the law draw between the virtual and the real? what inferences can we draw from Internet and social media activity? how can judge, juries, and prosecutors adapt free speech and due process to unfamiliar and uncomfortable subject matter made newly transparent?
Tuesday, December 01, 2015
World AIDS Day: Non-disclosure, Criminal Law, and Contracts
Many thanks to Prawfsblawg for hosting me this month! I look forward to discussing my scholarship and sharing some of my favorite cat videos in the coming weeks. I thought I'd start, however, on a more sober note:
Today is World AIDS Day, and I wanted to share two recent items about how the law handles--and mishandles--issues of HIV disclosure. The first is this excellent, yet disturbing, write-up of the trial of Michael Johnson, a black, gay, HIV-positive college wrestler given a 30 year sentence for not disclosing his HIV status to his sexual partners. Although Johnson maintains that he in fact disclosed his status, the article does a good job connecting his conviction to issues of racism, homophobia, and a widely held (and mistaken) belief that no one would have consensual sex with someone HIV-positive. Johnson's case highlights an increasingly wide schism between highly punitive non-disclosure laws and today's reality of HIV treatment and prevention. Current treatments allow HIV-positive people to have a life expectancy roughly comparable to the average US population and can reduce viral loads to undetectable, nontransmittable levels. The best way to prevent the spread of HIV is through testing and treatment, yet criminalizing non-disclosure can deter people from getting tested and taking on the legal obligations that might come with their results.
The other item concerns, perhaps unsurprisingly, Charlie Sheen. Much has been written about Sheen's potential legal issues in the wake of his HIV disclosure (see, e.g., here, here, and here), but I wanted to focus on one interesting detail. Sheen reportedly required his sexual partners to sign a non-disclosure agreement, with liquidated damages of $100,000, covering any personal or business information obtained during time spent with him. The NDA was exclusively leaked to the esteemed repository of legal research, InTouch Weekly. My initial reaction to the NDA was in line with with most others: forcing young women to sign a contract before sex seems sleazy and censorial, designed to insulate potentially humiliating, abusive, or exploitative behavior. After thinking some more about Sheen's circumstances, however, things may be a bit more complex and perhaps sympathetic. As highlighted in the previous paragraph, Sheen's HIV status put him in a rather difficult bind. If he complied with his legal obligation to disclose his status, he faced the high likelihood that his status would either be sold to the press or used as blackmail (which reportedly it was). And even though Sheen had an undetectable viral load--and thus posed minimal risk of infection to his partners--he was at the very least arguably under a moral obligation to disclose that risk. An NDA in these circumstances might thus be a way for Sheen to disclose his status while navigating the unique circumstance of being an HIV-positive celebrity. This is certainly not meant to beatify Sheen, but it highlights an effort to use contract law to organize intimate affairs in the face of continued fear, stigma, and misinformation about sex and HIV.
(By the way, aside from the bigger policy issues, Sheen's NDA is chock full of geekery: sexual consideration (see my student note!); arbitration clauses; copyright assignments (more here); and contracting for irreparable harm)
In the spirit of World AIDS Day, I hope this post will encourage a few more people to learn about the current state of HIV and AIDS, both in the US and abroad. Here are a few useful links I've come across in the past few weeks:
Tuesday, November 17, 2015
"It sounds so simple I just got to go"
A few weeks ago I had the privilege of speaking before the Mexican Electoral Tribunal in Mexico City at a conference titled "Two Paths in the Law of Democracy." The conference was sponsored by the Mexican Electoral Tribunal and the University of Texas. The U.S. delegation consisted of five American scholars who study election law and politics, and we presented on various aspects of election law to the researchers, staff, and judges of the Tribunal. It was a fascinating experience and I learned a lot.
Mexico, as a young democracy, is trying to learn best practices for running free and fair elections. Yet there is so much that we can learn from the Mexican experience as well -- both procedurally and substantively.
For example, as the very existence of the Tribunal demonstrates, Mexico has a federal agency that is charged with administering elections. This Tribunal also includes a court that decides all election disputes. Although we, too, have two federal agencies that focus on elections -- the Federal Election Commission and the Electoral Assistance Commission -- neither are very effective, especially because they often deadlock along partisan lines on most important issues. In addition, our regular courts hear election law controversies, and we all know how well that has gone. Mexico has figured out a way to, at least initially, avoid this partisan deadlock, and its Tribunal and court are well-respected and effective at administering elections in a way that people perceive as generally independent. Perhaps this is because the members of the Tribunal are non-political and because of the strong research and education focus of its activities.
Substantively, Mexico has figured out some things that we are still struggling to solve. For instance, partisan gerrymandering is not allowed in Mexican redistricting, which is conducted by the independent Tribunal. (That said, there are still questions about whether Mexico has sacrificed transparency in the process and whether politics still infiltrates the resulting maps.) Similarly, there seem to be fewer Election Day mistakes at the polls in Mexico, perhaps due to the robust educational and training programs the Tribunal puts on throughout the country.
Just traveling to Mexico City was a learning experience itself. It is a fascinating place with beautiful museums, amazing tacos, and extremely nice people. The researchers at the Tribunal are among the most respected people at the agency. There is a true commitment to understanding American election law to discern best practices for their own system. And our hosts showed us genuine sincerity, respect, deference, and collegiality.
This experience demonstrates the importance of looking beyond our borders to improve our own laws and legal structures. Although we often espouse American exceptionalism, we also deal with the same kinds of issues and share the same kinds of struggles as places all over the world. We can learn a lot from other countries, especially newer democracies where the rules are not as entrenched. The Mexican Electoral Tribunal invited the American scholars so it could learn how we do things in an effort to improve its own processes, but of course with any exchange like this, we learned as much, if not more, from them. This further suggests that we should not shy away from looking to international norms when evaluating our own rules and laws--whether in legislative debates or judicial decisions.
Sunday, November 01, 2015
The Art Film That (Helped) Torpedo a Supreme Court Nomination
On Friday, October 30, the New York Times published an article titled "The Prosecution Resets in a 1964 Obscenity Case," which relates how Gerald Harris, the prosecutor of a 1964 obscenity case, recently apologized to Jonas Mekas, one of the defendants. In the early '60s, the New York District Attorney pursued a large number of misdemeanor obscenity cases, famously including the prosecution of comedian Lenny Bruce. But the DA also charged several members of the New York underground film scene with showing obscene films, including Jack Smith's Flaming Creatures and Jean Genet's Un Chant d'Amour.
Specifically, Jonas Mekas, Ken Jacobs, Florence Karpf, and Jerry Sims were charged with showing Flaming Creatures, and Jonas Mekas and Pierre Cottrell were charged with showing Un Chant d'Amour. The Flaming Creatures trial began first. Gerald Harris was the prosecutor, and the defendants were represented by civil rights lawyer Emile Zola Berman and David G. Trager, who later became a federal judge. The defense attempted to call a series of art world luminaries - including Susan Sontag, Allan Ginsberg, and Shirley Clarke - to testify that Flaming Creatures was a work of art, but their testimony was largely excluded as irrelevant. Jonas, Mekas, and Karpf were convicted and received suspended sentences, and the Un Chant d'Amour trial was dismissed. After exhausting state appeals, Berman filed a notice of appeal of Jacobs v. New York with the United States Supreme Court, which was initially granted, but stayed pending the Court's decision in Redrup.
In 1967, the court dismissed Jacobs as moot in a per curiam opinion, because the suspended sentences had lapsed. However, Justice Fortas voted to reverse on the merits, on the ground that Flaming Creatures was not obscene as a matter of law. The following year, President Johnson nominated Justice Fortas to replace Chief Justice Warren. The Republicans were determined to block the Fortas nomination, and pursued several angles, including Fortas's relationship with the President (as described by Gerald Magliocca in the Green Bag), and his votes in the obscenity cases. Senator Strom Thurmond took the lead on the obscenity issue, alleging that Fortas was "soft on pornography." Thurmond took the unorthodox tack of sharing with his fellow Senators the stag films that Fortas had voted were not obscene (memorably dubbed "The Fortas Film Festival"), with little effect, until Charles Keating of the Catholic anti-pornography group Citizens for Decent Literature sent him a print of Flaming Creatures that had been confiscated at a screening at the University of Michigan. When Thurmond showed Flaming Creatures in the Senate Office Building, his colleagues were horrified, one anonymous Senator walking out after a few minutes and exclaiming, "That film was so sick, I couldn't even get aroused!" Soon afterward, the Fortas nomination was withdrawn, and Fortas eventually resigned, because of an ethics scandal.
If you're interested in reading more about the Flaming Creatures prosecution and its role in the Fortas nomination, I published an article (rather exhaustively?) documenting and reflecting on the events.
Still from Flaming Creatures (1963)
Thursday, October 01, 2015
How to Remember a Scholar Who Dies?
Thanks to the Prawfs gang for having me back. It's a pleasure to be here again.
I'd like to blog a little this month about the quirks of the legal academy. For my first post, I want to tip my hat to the wonderful Al Brophy, who is one of the most thoughtful members of our profession. Though Al is a denizen of a different blog, he has for years done something that deserves our attention. When a scholar passes away, Al not only mentions it on his blog, but he also engages with that scholar’s work. If a recently departed scholar wrote a book, for example, Al will discuss it and often post a picture of the book's cover. And he always ensures that this discussion is engaging and thoughtful. I find these posts to be deeply moving. Though I may never have met the former scholar, I often find myself, after reading one of these posts, going to Amazon and buying one of his books. Al’s “memorial” notices (I’ll link to several here, here, here, here, here, here, and here) remind us of what's important in life, and perhaps in death, too. I say that because I can think of no better way to celebrate a person’s life than by reading his words.
How should the legal academy remember a scholar who dies? We seem to have these ways:
(1) The Book Dedication: Many of us will dedicate a book to a colleague who passes. It’s a great honor when this is done. It is, perhaps, a reason to write books.
(2) The Symposium: In academia, we use a Festschrift to honor a respected person during his or her lifetime. A comparable event held posthumously is a Gedenkschrift. Commonly, we will hold a symposium honoring a life’s contributions.
(3) The Scholarship: Law schools often name the scholarships that they give to their students in honor of their former long-serving faculty members.
(4) The Endowed Chair. Many law schools have chairs named after longtime faculty members to honor and remember their years of service after they pass.
(5) Name a Prize … or a Classroom ... or a Building: Naming a prize after someone is also common, as might be naming a classroom or something similar of the sort.
These are the ways I can think of, and you are welcome to add to my list. We owe thanks to Al Brophy for doing something over the years that I have always found to be thoughtful, caring, and decently humane. And thanks to his colleagues over at The Faculty Lounge, and on other blogs, for doing the same.
Sunday, September 13, 2015
Museum of Tort Law
The American Museum of Tort Law. I thought it was a joke when it started showing up in my Twitter feed (@TortMuseum). Imagine the exhibit possibilities: the firecrackers from Palsgraf, the chair pulled out from under Ruth Garratt, the shotguns from Summers v. Tice. It's just hard to picture. But it turns out the museum is real, Ralph Nader is its President, and it actually has a Corvair!
On top of that, it has a serious purpose. Its vision statement includes these goals:
- Create and sustain a world-class facility that focuses on the rich historical legacy of Tort Law in American life and culture, inform people about the effect of Tort Law on their lives, and inspire a sense of future possibilities for the welfare of our society
- Create a unique historical environment that fosters an appreciation of the intellectual rigor and community standards embodied in law
- Show by example how ours is a nation of laws, and how Tort Law reflects the voice of the community
And to do that, the Museum "will be a unique mix of historic displays and engaging experiences that will illustrate the workings and effect of Tort Law. Visitors will experience the ideas and decisions that go into the making of the law that defines the world in which we live." Exhibits might include great closing arguments, the stories of famous tort cases, and "you make the call" challenges in which visitors weigh in on torts policy decisions.
I doubt that it will be competing with Disney World anytime soon. But it got me thinking about my own academic discipline, Civil Procedure. What would a Museum of Civil Procedure look like? Like Torts, it raises tough policy conflicts and, these days, those conflicts are highly politicized and involve campaigns financed by wealthy corporations seeking to affect public opinion and SCOTUS amicus briefs hoping to make procedural law less claimant-friendly. How would we design a procedure museum that might convey the importance of fair processes or citizen (jury) participation? Might visitors play a game applying a Prisoner's Dilemma scenario to decisions about discovery? Classic civ pro cases might also provide thought-provoking artifacts: William Twombly's complaint? The Robinsons' burnt-out Audi? Video of the recollections of Sandra Adickes about her efforts to integrate Hattiesburg (Adickes v. Kress)? Maybe the museum could stage a battle between the Repeat Players and One-Shot Players. [I see real potential for a Procedure wing of the Tort Law museum.]
Silly? Not really. I found it to be a great exercise in thinking about how to explain to members of the public why I think procedure is interesting and important, and what's really at stake. What about your own legal academic discipline? I'd love to see Comments about The Museum of [Your Subject Here].
Tuesday, September 08, 2015
The Future of Housing
In February 2015 I participated in a fascinating conference at Washburn University School of law called "The Future of Housing: Equity, Stability, and Sustainability." The conference covered three distinct but interrelated problems that our system of housing must face and overcome in the near future. (Articles from that symposium can be found here). Since participating in that February conference, nearly every day I am struck anew by how vital it is that we as a nation craft effective solutions to housing challenges.
First, we are facing a crisis of de facto housing segregation and inequity in this country. Today, fifty years after the creation of HUD and 47 years after the passage of the Fair Housing Act, housing discrimination and the effects of racially-determined disparate policies regarding homeownership continue to plague our society. Current housing patterns are as equally segregated as they were back in 1968 when the Fair Housing Act was passed. The New York Times reported on Sunday that "[e]conomic isolation is actually growing worse across the county, as more and more minority families find themselves trapped in high-poverty neighborhoods without decent housing, schools or jobs, and with few avenues of escape." As the article explains, housing disparity in this country came about not by accident but by deliberate design among all sectors of the housing market, private lenders, private property sellers, and - most disturbingly - the federal government agencies tasked with growing homeownership for the nation. The Federal Housing Administration very much served as an "architect" of segregation in the 1930s and 40s, conditioning mortgage funding on neighborhood racial homogeneity (and - even then - granting funding almost exclusively to white homebuyers). These policies were also reflected in other housing initiatives that shaped the landscape of housing today - in particular the GI bill that significantly grew homeownership in this country, but only for whites. Efforts to combat housing inequities today are hamstrung by a cumbersome "disparate impact" jurisprudence (see Professor Rigel Oliveri's article here) and the reality that it is harder to un-do a nation's housing patterns built on segregation than it would have been not to have the segregation-creating policies to begin with. At least this summer the Supreme Court refrained from further limiting the scope of the Fair Housing Act in the Inclusive Communities case, but that alone is unlikely to lead to housing parity.
In addition to the continuing need to address housing inequity, our country still must re-establish (or establish for the first time, depending on your perspective), a stable residential mortgage market. In the aftermath of the 2008-to-present Financial Crisis sparked by the 2007 subprime mortgage meltdown, much has been written and said about allocation of blame. To date, however, we still have an incomplete picture of how to solve systemic financial instability going forward. Professor David Reiss has made a recent, insightful contribution to the stability question in his recent article, Underwriting Sustainable Homeownership: The Federal Housing Administration and the Low Down Payment Loan, wherein he advocates that the Federal Housing Administration be preserved, but that its underwriting approach be significantly re-worked in order to create a more efficient and effective home finance system.
In addition to equity and stability issues, we must continue to bear in mind the challenge of housing sustainability. Volatile gas prices and disenchantment with suburbia (see here and here, for example) are now calling into question longstanding assumptions about zoning, neighborhood design, and community housing goals. Automobile dependence, large-footprint houses, and suburban communities perhaps should become anachronisms as our housing policy modernizes and recognizes realities of sprawl, pollution, and suburban population de-connectedness (food for thought: see here and here).
These challenges are not easily overcome. How can this country solve the problem of entrenched housing segregation patterns, particularly without problematic government mandate? How can market volatility be eradicated when we continue to have financial institutions (both government sponsored and private) that today are not only "too big to fail," but are even BIGGER than ever before? And is it really possible to reconsider and possibly reverse patterns of development that are encouraged (or required) by legislation (from the local to the federal level) and enshrined in centuries of the common law?
I leave you with these questions, in the hopes that together we can craft solutions and build a better future of housing.
I have so very much enjoyed this stint as a guest blogger at prawfsblawg. Thank you for this opportunity. And thanks to all of you who are working - in all the various important subject matter areas - toward positive developments for our law and our society.
Monday, September 07, 2015
When Political Correctness Was, Well, Correct
It's a pleasure to join PrawfsBlawg as a September guest blogger. I thought I would use my first entry to indulge my fascination with language, more specifically with Lawtalk -- words and expressions that have both legal and cultural significance. So let's talk about 'politically correct' and its strange reversal of meaning. It's hard to resist something so thoroughly in the news. (HT to my Lawtalk co-author James Clapp, who is a master of digging out historic uses of language and who wrote our book's discussion of 'politically correct').
These days, some politicians are throwing around the term 'politically correct' like dirty Kleenex. Donald Trump has probably gotten the most headlines that way: "I think the big problem this country has is being politically correct. I’ve been challenged by so many people and I don’t, frankly, have time for total political correctness. And to be honest with you, this country doesn’t have time, either." Thus he invokes fears of Mexican immigrant rapists, expresses disdain for "anchor babies," mimics broken English in discussing Asian business people, and makes so many horrifying remarks about women that I've lost count. Those who question his accuracy, his policies, or his choice of words are easily dismissed with that easy insult: they are just being politically correct. And so a charge that something is politically correct becomes a charge that it undesirable and untrue.
It's not just politicians. Court cases reflect this dismissive use of the phrase by ordinary citizens. For example, a California court tells the story of a doctor who, while performing surgery in the presence of an African-American nursing instructor, kept up a running commentary on race that included appalling remarks such as this: "You don't see 'no colored allowed' signs posted on doors anymore. I hate all this politically correct crap. People are afraid to tell the truth. . . . A pure white race, that's how it should be." [Williams v. Vartivarian, 2003 WL 361274].
But did you know that the phrase goes back at least to the founding generation, and was once a compliment? James Wilson -- a signer of the Declaration of Independence and SCOTUS Justice -- put the words together as early as 1793. Arguing that the federal government derives its powers not from the states but from the people of all the states together, he bemoaned the sloppy use of language about the government:
Sentiments and expressions of this inaccurate kind prevail in our common, even in our convivial language. Is a toast asked? "The United States" instead of the "People of the United States" is the toast given. This is not politically correct. [Chisholm v. Georgia]
Wilson meant that the toast was not an accurate characterization of the government structure established by the Constitution. 'Correct,' or the alternative adjective 'right,' were also used to signal philosophical approval. Thomas Jefferson happily predicted that graduates of his new University of Virginia would carry forth into government service "the correct principles of our day." The most influential use of 'politically right' appeared in a 1786 oration dedicated to Benjamin Franklin: "Nothing can be politically right that is morally wrong; and no necessity can ever sanctify a law, that is contrary to equity." (This quote was later much used by anti-slavery crusaders to counter the argument that slavery must be tolerated as a politically expedient tool to maintain national unity). Being politically correct, then, was a Good Thing.
In a century that saw political conformity enforced by the likes of Hitler and Stalin, the phrase 'politically correct' lost its identity as a straightforward compliment. In the 1970s, the term 'politically correct' reappeared in the United States as a kind of wry lingo within progressive groups seeking greater inclusion and recognition of women and African-Americans. Although useful in internal debates (meaning something like 'consistent with our political ideals'), it was often used with self-mocking humor. In the 1980s, however, conservative politicians used this shorthand as a way to characterize the liberal positions as too dogmatic. By the 1990s, the media picked up the phrase, and opposition to 'political correctness' became the insult of choice for those who did not want to use inclusive language and did not want to reconsider the subjects or people taught in our schools. Any sense that 'correct' meant 'accurate' pretty much disappeared. [Scary experiment for today's pop-culture meaning: put "politically correct" into Google or Google Images, and see what you get.]
The reversal of meaning became particularly clear in the educational context in a statement by Lynne Cheney when she was chair of the National Endowment for the Humanities (when George H.W. Bush was President). The NEH commissioned a group of educators to devise national standards for teaching history, but when the draft was released Cheney hated them. In a statement that would have puzzled both Jefferson (who used 'correct' to mean ideologically desirable) and Wilson (who used 'correct' to mean accurate), Cheney said, "I've received dozens of phone calls from people worried that the standards represent not only a politically correct version of history, but a version of history that's not true."
Here's my suggestion: let's lose "politically correct" from our collective vocabulary. It's a content-free insult, deflecting thoughtful debate -- a label that avoids both fact check and policy discussion. Let it go.
Wednesday, September 02, 2015
New Jersey’s Legislature Takes a “Grave” Misstep
Other than fellow “property law geeks,” not many people may wonder about property rights in cemeteries, but it is a surprisingly complex and varied topic about which I’ve pondered and about which Professor Tanya Marsh of Wake Forest has developed national expertise. She has recently written the definitive casebook on cemetery law (co-authored by recent law school graduate Daniel Gibson), has launched a venture with the Urban Death Project to work for “ecologically beneficial meaningful death care” worldwide, and has recently been quoted in the national media with respect to death and internment issues. Monday, in a short but completely compelling piece on Huffington Post, Professor Marsh took the New Jersey legislature to task for passing a law limiting churches’ ability to manufacture and sell tombstones, vaults, and private mausoleums.
As Professor Marsh clearly explains, creation and care for tombstones in church-owned and operated cemeteries is a religious practice. After all “rituals that mark the transition from life to death are a central part of most modern religions.” (I’d go even further and say that such rituals have always been a central part of all religions.) But this new New Jersey law, Bill 3840, that was signed into law by Governor Chris Christie in March 2015, limits churches’ ability to fully participate in those rituals – even on their own land and on behalf of their own members. The law seems to be a blatant anti-competitive, special-interest-group spearheaded “win” by the Monument Builders of New Jersey, who agitated for government assistance to preserve their de facto monopoly on manufacturing graves, memorials and vaults. Not only does this law serve no state interest at all – let alone a compelling one – it violates religious freedom in an essential and inexcusable way. Professor Marsh sums it up thus:
This law is an amazing act by the New Jersey legislature and governor. It was adopted at the behest of a group of private market participants for a reason no more noble than to protect themselves from competition. This blatantly anti-competitive effort is even more stunning because the product at issue–headstones and memorial tablets–are not regulated. No license is required to manufacture or sell them. Literally anyone in New Jersey can manufacture and sell tombstones, vaults, and private mausoleums–everyone, that is, except religious organizations and non-profit corporations that own or manage cemeteries.
Happily for those who care about justice and religious freedom and economic liberty, the Archdiosese of Newark, assisted by the Institute for Justice, have brought a lawsuit against the State of New Jersey, seeking to have the law struck down. There are several asserted grounds pursuant to which the court could invalidate the law, including violations of Due Process, Equal Protection, the Privileges and Immunities Clauses, and the Contracts Clause (Art. 1, Section 1) of the Constitution.
Thursday, August 20, 2015
What the Ashley Madison Hack Teaches Us About Digital Privacy Invasions
Hackers just published a massive amount of data about the roughly 36 million members of the website, Ashley Madison, a social network that markets itself to those in relationships who may want to explore, shall we say, "what else is out there." Along with the 36 million emails, 33 million first and last names, street addresses, and phone numbers, and 9.6 million documented credit card transactions were released. The data also tell us about subscribers' sexual preferences.
There has been some fanfare about a few of the names on the list: Josh Duggar, the conservative star of TLC's "19 Kids and Counting," had two accounts. The Associated Press notes that "subscribers included at least two assistant U.S. attorneys, an IT administrator in the Executive Office of the President, a division chief, an investigator and a trial attorney in the Justice Department, a government hacker at the Homeland Security Department and another DHS employee who indicated he worked on a U.S. counterterrorism response team."Mr. Duggar, who molested his younger sisters years ago, has already conceded that he cheated on his wife. But being among those whose credit cards were used to create Ashley Madison accounts does not necessarily mean you made the same choices as Mr. Duggar. Nevertheless, every name, from the hypocrites to the innocent, is about to experience the very same shame, and it will be difficult to recover. Digital privacy invasions are cold and permanent: they remove necessary context and create a permanent truth. And, in this way, they cause untold harm.
We don't know the possibly myriad reasons why millions of people subscribed to Ashley Madison. A jilted ex or a prankster could have used your credit card. You may have been curious. You may have signed up accidentally, as Marge Simpson did (on the parody site, sassymadison.com) on "The Simpsons" episode, "Dangers on a Train." You may have wanted to have an affair and then decided not to. Perhaps you logged on, had an affair, but ultimately admitted it to your spouse and the two of you worked it out. Another possibility: you created an account to practice immersion sociology, much like the controversial sociologist Sudhir Venkatesh did with respect to gang culture. In fact, it's pretty easy to create an account on Ashley Madison using someone else's name and it's not that easy to erase it. In other words, the data is devoid of context. Now, all 33 million individuals whose first and last names were hacked are "cheaters" or, worse yet, "sluts."
And they will be branded as such forever. The internet stores information permanently because it can: it has essentially infinite storage capacity and a search platform that can find anything in 0.0000043 seconds. Even if the raw data were ever taken down, it has already been copied, recopied, told, and retold so often that it can never be scrubbed. And Google's ubiquitous search platform will ensure that anyone with an internet connection can find it. There is even a handy tool to determine if your email is included in the data dump. Furthermore, the United States does not have a European-style "right to be forgotten," which could help unlink data and reports on that data for persons innocently caught up in the breach.
As Glenn Greenwald suggested, the result is a modern scarlet letter: an invasion of privacy that gets wrapped up in a moral crusade against infidelity. This can result in long term negative effects: depression, social ostracism, loss of employment and employment opportunities, lower academic achievement, a receding from social life, and much worse.
Hackers that gleefully disseminate private personal information entrusted to a third party are causing significant harm. It may be easy to smirk and hard to find pity for victims of this particular hack, but consider some other invasions of privacy:
Victims of revenge porn similarly entrust private personal information -- an intimate "selfie" texted to a then-romantic partner -- to another only to have that data posted on websites that extort money, endanger lives, and ruin reputations. Danielle Keats Citron and Mary Anne Franks have spoken eloquently on the need for criminal revenge porn statutes as well as the very real emotional, physical, and professional damage caused by nonconsensual pornography.
Cyberbullying targets are ripped from private life and thrust into a very public humiliation when online aggressors, known or anonymous, take photos, harassing language, text messages, "I Hate" videos, or private encounters and post them online. This is particularly harmful to LGBTQ youth, who are unique in both their frequency of victimization and the importance of a safe internet.
A wry smile at Mr. Duggar's comeuppance is not the same as condoning privacy invasions, revenge porn, or cyberbullying of LGBT youth. His hypocritical moral crusade against gays in the name of "family values" made him a public figure on the matter of values. But the same social norms that lump all Ashley Madison account holders into one class of "cheaters" are the same norms that slut shame revenge porn victims and tell victims of cyberharassment to just turn off their computers. More to the point, it is the nature of online invasions of privacy that foster these harmful over-generalizations: the internet erases context and hoards raw, decontextualized data, transforming it into a searchable gospel.
The internet, the raw, decontextualized internet, can be a dangerous place. Ashley Madison is just one unique case study showing us how.
Monday, August 17, 2015
Baby Mama Esq.
By now we all know that the US is dead last among OECD member countries in the parental leave benefits that are offered to working mothers: in the US, there is no paid parental leave guarantied by law, and only 12 weeks protected unpaid leave (and even then only if employed for 12+ months at a big-enough company). This is, frankly, an embarrassment to the country and speaks volumes with respect to the value our society and government truly places on motherhood and on children.
Women lawyers who have babies, however, are usually better off than their non-lawyer peers. Most firms offer paid leave (50% - 100% of salary) for anywhere from 6 to 16 weeks. When I had my first baby in 2002, Fried Frank gave me a generous 4 months of fully paid leave. In fact it was a huge selling point for me when I considered their offer of employment (even though I was not pregnant at the time, I expected that I would have a child at some point after joining the firm). One might therefore think that the real battleground for paid parental leave lies beyond the personal experience of lawyers. But that isn't necessarily true. First of all, as a June 2015 article in the ABA Journal put it, "for many female attorneys, maternity leave can be the equivalent of a poisoned chalice - offered as a benefit, but damaging to a career." The New Republic agrees - generous leave policies can inadvertently reinforce a glass ceiling in a profession. My anecdotal experience (personal and thosee of friends and colleagues), supports this conclusion as well.
Reality here truly does bite: most women who take advantage of generous maternity leave policies and flex-time policies end up sliding off the partner track and settling into the mommy track. A study published by Working Mother magazine found that although flex-hours were offered and widely accepted work arrangements for women with children at top 50 firms, none of the top 50 firms had promoted a flex-time attorney to partner in 2014. And among the 50 top law firms, only 19% of the equity partners are women.
The ABA Journal column noted that some firms (like Minneapolis-based Nilan Johnson Lewis) have bucked the trend and have promoted women to partner shortly after taking maternity leave. But this remains the exception to the general rule that partnership and motherhood are challenging to balance. As a mother of 4 who practiced law for a decade and a half before making the jump to academia, I'm keenly aware of this challenge. And today's female law students - who constantly approach me as a "role model" of a mother who continually practiced law while having multiple children - are very concerned about this too. They need to be aware, however, that reality in firms doesn't always match optics. I've spoken to big-firm interviewers after their on-campus interviewing and heard expressed concern about 2L candidates who mention that one reason that they were attracted to the firm was because of its touted flex time options. This seems to suggest to the interviewer that the candidate is more interested in family (gasp!) than billable hours. (I think that the fact this point was raised in a first interview also suggests that these 1Ls are both more honest and more naive than one might expect.)
The impact of paternal leave on tenure and promotion in legal academia is unproven. (There was an interesting post in this blog 3 years ago on the topic of delaying going up for tenure because of paternal leave - here, and the AAUP has a paper regarding parental leave for university professors here.) My sense (devoid of any empirical study) is that policies regarding parental leave for female law professors are all over the map - from no paid time off to an entire semester or more of paid leave. When I was at the new law professor AALS summer program, discussants in the women in law group shared a wide variety of experiences with respect to pregnancy and childbirth and maternity leave on a law school faculty. Policies with respect to paternity leave, I believe, vary even more.
Gentle reader (to borrow the phrase), what are your experiences with parental leave at your law practice and law teaching workplaces? Should the legal profession develop norms and expectations regarding paid leave as a way to increase gender diversity in partnership (and tenured professorship) ranks? Have you seen a generous leave policy backfire into mommy-tracking competent, ambitious female lawyers? And, if so, what is the right solution?
Approximately 50% of law school graduates today are female. It is likely that a large number of these will at some point in their career have one or more children. I believe it is time that the legal profession confront this reality and ensure that women in law are not forced to choose one of these three unsatisfactory options:
(a) dropping out of practice,
(b) going into a mommy track limbo, or
(c) sacrificing an unreasonable amount of time with their newborn.
Yes, this is an issue that faces both mommies and daddies in law, but the biological reality remains that although an uber-dedicated father-to-be big law associate might even miss his child's birth, that option is frankly never possible for even the most overly dedicated expectant lawyer mom.
Tuesday, August 11, 2015
Kids Today (or "I don't know about you, but I'm feeling 22")
Friends who are not law professors are under the mistaken impression that since I spend so much time with law students, I must feel young and hip. To the contrary, I find that each passing year highlights in clearer relief the true generation gap between the fresh new 1Ls and myself. In case you too are wondering why it is sometimes hard to connect culturally to today’s “Millennial” students, here’s a little bit of info about the personal cultural context of a typical 1L, starting law school this month. For sake of this fact-based hypothetical, we’ll call her the “reasonable law student” (RLS) and assume that she is 22 years old.
- World/National Events Context:
- Childhood: RLS was born in 1993, the year that Czechoslovakia broke apart, Ruth Bader Ginsburg was appointed to the Supreme Court, and Bill Clinton instituted a “don’t ask, don’t tell” policy for homosexuality in the military. When RLS was 2, her parents watched the OJ Simpson trial and the Oklahoma City bombing on TV. RLS started kindergarten in 1998, just as the Clinton-Lewinsky scandal was winding down (and 4-year-old RLS had probably been kept in the dark about the finer points of Clinton’s “relations” with “that woman”). RLS has no memory of any Y2K worries, since these were all proven to be for naught by the time she turned 7. RLS may not have even noticed the terrorist attacks of September 11th – after all, she was only 8 at the time. Her parents may have lost a bundle from the Enron bankruptcy or the dotcom bubble/bust, but this happened when RLS was just 9. Gay marriage began to be legalized by states (starting with MA) when RLS was 11.
- Teenage Years: As a 15-year-old, RLS may have been vaguely aware of the Foreclosure/Financial Crises, and she likely remembers when Barack Obama was sworn in as President when she was 16. Osama bin Laden was killed in 2011, the year that RLS graduated from high school. The Sandy Hook school shootings occurred while RLS was in college, in 2012.
- Technology: RLS has never known a world without full use of the Internet and cannot fathom life without click-of-a-button access to unlimited information (reliable and otherwise). Thus, RLS never has had to dig hard and do tedious research to find out the answer to a nagging question (like, “Where have I seen that actor from Mr. Robot before?” Answer -- in case you were wondering -- is that I previously saw Rami Malek in both the movie Night at the Museum and in the TV series 24. And, yes, I just took 10 seconds to look that up. You’re welcome.) What a lifetime of having instantaneous, effortless answers to one’s questions does to one’s approach to the study and research of law is a question open to debate. (Discuss.)
With the Internet as their baseline reality, not only do RLS and her peers lack experience in spending significant time wondering about and questing after unknown facts, but they are also quite used to the public disclosure and discourse of private details of everyone’s life. They’re also used to enhanced government surveillance of its citizens, the Patriot Act, and invasive airport searches by TSA.
RLS has a vocabulary and life experience that equates with being born in the Internet age, and she is adept at all sorts of social media. She is used to everyone being available 24/7 and immediate responses to her calls, emails, and texts. RLS has always been able to shop online and have instant access to new software, music, and videos downloaded directly (so much for “shrinkwrap”).
- Assumption of Risk? During RLS’s entire life, her parents and the state have mandated that she stay safe by being car-seated, buckled up, and helmeted on a bike.
- Negotiable Instruments? RLS doesn’t use cash or checks to make purchases. She has always used a plastic card (debit or credit) or her phone to pay for things (maybe she’s even experimented with digital currencies).
- Environmental Law? RLS grew up worrying about the environment and global warming. For RLS, there have always been hybrid cars, wind farms, and solar panels on buildings and in fields.
- Labor Law? For RLS, the only significant labor disputes have been professional sports-related.
- International Law? In RLS’s experience and memory:
- Prisoners have always been housed at Guantanamo Bay.
- There has never been Apartheid in South Africa.
- The countries of the Soviet Union, Czechoslovakia, and Yugoslavia exist only in history books.
- Hong Kong has always been part of China.
- It was Pres. George W. Bush (not his father) who sent troops to Iraq.
- The currency in Europe has always been the euro.
- Health Law? Cloning has always been a scientific reality. AIDS has always been a problem, but HIV-positive hasn’t been an immediate death sentence (in the US, at least). Adults have been debating the role that the government should have in providing public health insurance since her birth.
- Pop Culture Context: For RLS,
- It has never been a big deal to see women kissing women and men kissing men on television.
- The term “wardrobe malfunction” has been widely understood since RLS was 10.
- Ellen and Oprah have always been first-name-only TV talk show hosts.
- Michael Jackson was an embattled recluse defending against accusations of molestation until he died (when RLS was 15)
- The “Royal Wedding” was when Kate Middleton married Prince William (RLS probably watched this - when she was 18).
RLS likely learned to read with the Harry Potter series, the first of which was published when she was 3 and the last when she was 14 (meaning she never had to wait to read the sequel and she may have even – gasp – seen the movies first!). RLS probably spent her teenage years reading the Twilight series and The Hunger Games. As a teen, she listened to Taylor Swift, Adele, One Direction, Justin Bieber, Beyonce, Lady Gaga, Kanye West, and The Black Eyed Peas.
As for television show references, don’t bother talking about Seinfeld or Friends in class – those shows went off the air when RLS was age 4 and 10, respectively. Reality TV is her norm. For RLS, Survivor and American Idol have always been on TV. If you’re seeking some common ground, remember that RLS likely has spent time watching one or more of these shows: Game of Thrones, Suits, Homeland, Scandal, CSI, Breaking Bad, Mad Men, Big Bang Theory, Modern Family, Parks & Recreation, Glee, Pretty Little Liars, Sherlock, and Downton Abbey – but of course, she was watching them in high school!
Do you feel old yet?
Or are you “Feeling 22” too?
Wednesday, July 01, 2015
Marriage and Other Favored Unions
So we have a fundamental right to same-sex marriage. In the most obvious way, the Court’s holding was good: if the state is going to privilege a particular association (here, marriage), it should not discriminate against persons who try to take advantage of it. Fair enough. But in another way both the government’s favored treatment of marriage and especially the majority’s decidedly not-postmodern love letter to that particular form of association (Alito’s comment that the majority’s vision of liberty “has a distinctively postmodern meaning” notwithstanding) should give us cause for pause. There is another area where the state has favored a particular type of association over others: labor unions, which have been favored over other types of worker organizations. That preference has not worked out well for workers; we would do well to think more about whether the story of state preference for marriage will turn out the same.
Associations of Workers and the NLRA
Congress passed the National Labor Relations Act years ago and, with it, enacted a particular vision of what worker associations should be and how they should operate. That vision included both (1) exclusive representation and (2) a commitment to the view that the interests of workers and employers are fundamentally opposed and antagonistic.
At first the NLRA benefited workers (if rapidly increasing unionization rates are any indication), but over time that has largely ceased to be the case. The government restricted covered labor organization activity and the Act stifled the ability of covered workers to develop innovative forms of worker organizations that could better help them achieve their particular interest. One example of this stifling (and one that I discuss in a forthcoming article) comes out of the Act’s prohibition on company “support” of labor organizations. This ban has in turn dramatically limited the development of mutually beneficial collaborations between workers and companies looking to sell themselves to consumers as “conscious capitalists.” As a result of the Act’s narrow vision of appropriate worker organization, it is not surprising that innovative forms of worker organization (the Fair Food Council being just one example) have only occurred among workers who are not covered by the NLRA at all.
In short, when the government favors a particular vision of worker association – even with good intentions – it also frustrates experimentation with other forms – forms that may in fact be better for at least some workers.
Associations of Individuals and Marriage
Something similar might be said about marriage. Like the vision of worker organization demanded by the NLRA, marriage (including same-sex marriage) is but one of the many forms romantic and family associations can take. And like a traditional labor union, a traditional marriage (same-sex marriage included) will work better for some than others. The government, however, does much to encourage traditional marriage. Spousal privilege and military, social security, and immigration benefits being just a few examples. And these benefits, like all incentives, serve to promote marriage over non-matrimonial forms of romantic and family association. Those benefits alone might already have been enough to stifle experimentation with other forms. But the majority opinion in Obergefell, if its love letter to marriage is read and its views adopted, imposes an arguably different and more potent type of cost on would-be experimenters: stigma. As the majority sees it, marriage is of “transcendent importance” and “promise[es] nobility and dignity to all persons”. It is marriage that “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” Without it, “children suffer the stigma of knowing their families are somehow lesser.” (emphasis added). Given all this, a reader would think marriage the sole means by which we come to flourish in relationships – that families and romantic relations structured without it truly are lesser. On that view, failure to get on board with the institution really does deserve to be stigmatized.
For those who think the Court’s substantive view on marriage’s importance right and the government’s subsequent promotion of it good, this all won’t seem bad. But for those who think the highest ideals of love and family might be better achieved – at least for them – through other forms of association, the majority’s reification of the centrality of marriage to the good life will strike them as yet another barrier to a future where those ideals can be realized. As with the story of worker associations, it might take us a long time to realize that the government’s “help” of our association of choice today won’t actually be so helpful tomorrow.
 A few argue exclusive representation was not required from the start but it certainly was treated as such soon afterward. Either way, my point is the same.
Monday, June 29, 2015
Obergefell in Haiku
At McSweeney's, Daniela Lapidous has helpfully condensed each of the opinions in Obergefell to a haiku. Chief Justice Roberts, for example:
I support you all
No, really, I do, but this
Isn't our problem
For the rest, see The SCOTUS Marriage Decision in Haiku. (Hat tip to Leah Lee.)
Thursday, June 25, 2015
Singletons in film
Much deserved praise is being heaped on the new Pixar film Inside Out, which is setting all sorts of box-office records and gaining all sorts of critical acclaim. It has earned praise for (finally) featuring a lead female character (arguably 3 of them) who is not a princess, who likes sports, and who seems like a typical kid. It is a comprehensible visualization of how emotions and the brain genuinely work--the producers consulted with neuroscientists, psychologists, and other smart people, who have talked about what the film captures. And it makes parents cry about their children (especially daughters) growing up.
I want to mention one side point, which is not central to the story or its consequences, but still worth noting: Riley, the 11-year-old lead character, in whose head the action takes place, has no siblings (I hate the term "only child" and find "singleton" better, if essentializing). And this is presented in the film without remark or commentary. This is a story about a "typical" preadolescent girl who is happy, good natured, well-adjusted, close with her parents, has friends--all traits not associated with the stereotype of the spoiled or lonely singleton (all of which have been debunked, but which still carry cultural resonance). What she experiences in the film--as she becomes moody and isolated--is depicted as the ordinary work of ordinary emotions and growing up. And I was happy to see that the filmmakers did not feel the need to throw in an annoying younger brother, either for comic relief or to create a "complete" family.
Parents and one child can a family, with a happy child, make. I just like to see pop culture catch up with that idea. Or better yet--not even have to mention it.
Tuesday, June 16, 2015
Veep does the Constitution
Veep is a hilarious show, described by one former Obama adviser as the most accurate depiction of Washington and definitely the most hilariously profane (reflecting the sensibilities of creator, and departing showrunner, Armando Iannucci). The season finale, which aired on Sunday, takes place on Election Night and ends on a constitutional cliffhanger related to presidential elections and presidential succession, a common theme for political TV shows.
More (with spoilers) after the jump.
The election ends in a 269-269 Electoral College tie,* sending everyone scrambling to figure out, and discuss in expository dialogue, what happens; it became a mini Con Law lecture, although there did not seem to be a practicing lawyer in the room. The show explains that the House selects the President, voting by state delegation, and the Senate selects the Vice President, voting as a body of the whole; they get that part right. But then the narrative reveals uncertainty over numerous close House races** and over what the make-up of the House will be, with everyone raising the possibility of a tie in the House. What happens then? The show posits that the Vice President becomes President. This sets-up the dramatic twist that Meyer's running mate, Tom James (who is seemingly more popular and more competent than Meyer***), will "backdoor" his way into the top spot; one of the last beats in the episode has James asking Meyer to serve as his VP.
[*] This allows for a nice riff about the stupidity of having an even number of electors--blame the Twenty-third Amendment. The tie also results from a bizarre electoral map for current politics. Selina Meyer, whose party is unnamed but who seems to be a Democrat, wins Virginia, Pennsylvania, Florida, and Wisconsin, but loses Minnesota and Ohio.
[**] Also unlikely in current politics, given gerrymandering practices creating vast numbers of "safe" seats.
[***] And ambitious. Earlier in the episode, James insists that, in addition to serving as VP, he wants to be Secretary of the Treasury. I do not believe there is a constitutional bar to the VP holding a cabinet position, although I cannot see the Senate going for it.
That last part seems both constitutionally wrong and factually unlikely, at least as presented. So the mini Con Law lecture did not quite get it right.
First, whatever the uncertainty of the makeup of the next House,the possibility that twenty-five state delegations will be controlled by one party and twenty-five controlled by the other seems like an implausible logical leap. It would be a fun narrative twist to actually show happening; it just seemed a strange place for Meyer's aides to go in predicting right then. Second, and related, why does nobody consider the possibility of a tie in the Senate (historically, a more likely occurrence) or even of James losing in the Senate (if the opposing party has a majority). It is not discussed, even to explain away that the Senate make-up is not unknown and that the Meyer/James party will control the Senate.
Third, under the Twelfth Amendment, if the House has not yet chosen a President by the appointed date (as further amended, January 20), "the Vice President shall act as President, as in the case of the death or other constitutional disability of the President." The Twentieth Amendment further provides that "[i]f a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified." In other words, contrary to what the show says, James would be Acting President, not President; he would not enjoy an inauguration, he would not be listed in the line of Presidents, and he certainly would not be able to appoint a Vice President.
He also would act as President only until "a President shall have qualified," that is, until the House is finally able to resolve any stalemate and pick the President. This presents the fourth problem with the show's constitutional narrative--the assumption that there would be one House vote, it would end in a tie, and that would be the end of the discussion. But the House may (and will) take multiple votes and engage in a lot of politics to resolve the question--it took 36 ballots and political pressure from Alexander Hamilton for the House to elect Jefferson over Burr in 1801. So even if the initial vote were tied (again, unlikely), the House likely would not stop at a tie and leave an elected VP to serve four years as acting President; the House would feel public and political pressure to continue negotiating and holding votes until someone is elected President from between the two**** top-of-the-ticket candidates for whom the public had just cast millions of votes.
[****] The Twelfth Amendment provides that the House may consider up to the top three Electoral College vote-getters, unnecessary here, since no third-party candidate received College votes. The show might have tried to really go all the way on E/C confusion by throwing in a third candidate who won two three-elector states (one from each candidate), producing a tie without a possible majority.
None of which is to dampen my enthusiasm for the show. But if the writers are deliberately showing a constitutional possibility, I just want them to get the small details right (especially when those details involve legal issues I am interested in).
Wednesday, June 10, 2015
Is Lethal Injection About Us or Them?
I’ve been thinking a bit lately about lethal injection, about the ways it is problematic regardless of what the Supreme Court holds in Glossip. I’m at the very early stages of a work-in-progress on the topic, and one of the things I’ve been quite drawn to is a passage from Chief Judge Alex Kozinski’s dissent from the denial of a rehearing en banc in Wood v. Ryan.
Here’s what he wrote:
Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. . . . But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
It’s worth noting that Judge Kozinski supports the death penalty (his essay “Tinkering with Death” presents a thoughtful and remarkably personal account of his views on the subject) so his position here can’t be written off as just another abolitionist trying to muck things up. The pain inflicted on victims and their families is tremendous, he says, and society has a moral right to respond accordingly. The point here is that we should at least be honest about what the death penalty is: brutality for brutality. And if we’re not willing to accept that, we shouldn’t be doing it.
So here’s my question: is lethal injection about us or is it about them? That is, is it about masking the brutality of executions so we don’t have to deal with the violence inherent in taking another life? Or is it about providing the condemned with a relatively painless death, something they don’t deserve (at least by the measure of their own crimes) but can expect from a civilized society?
Perhaps it’s both, but the history of lethal injection suggests it’s a lot about us. Oklahoma was the first state to adopt lethal injection, and its legislators did not ask how do we euthanize pets, how does physician-assisted suicide work, how can we do this as pain free as possible. It was 1977, and the Supreme Court had just brought back the death penalty the year before in Gregg v. Arizona, after having abolished it in Furman v. Georgia in 1972. Legislators worried that the American public wouldn’t have the stomach for executions the old fashioned way—hanging, electrocution, gas (firing squad made a famous appearance in 1977 but never really got off the ground). They needed something that wouldn’t jar the public, something that looked much more peaceful, civilized. The answer was what would become the standard 3-drug lethal injection protocol.
I’ve been chewing on the democratic accountability point Kozinski makes at the end of the above passage: “If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.” We should own it, and that means we shouldn’t be executing in a way that people associate with putting down a beloved pet. It seems to me he’s on to something here.
But how far do you want to take this? one of my colleagues asked. I mean, one could go all Hunger Games on this thing, and make people watch executions on a huge screen. The more blood the better.
That’s not what I have in mind, but there is something to recognizing that the death penalty is inherently violent. It has to be; it’s extinguishing life before the body would naturally have it end. And there is something to recognizing that lethal injection hides that fact, and indeed was designed for the very purpose of hiding that from us to make it more palatable.
Sunday, May 24, 2015
Causation Anonymity in Group Police Misconduct: No Conviction, No Justice, No Peace
Here in Cleveland, tensions are running high as the City reacts to a judge's decision, following a bench trial, that Police Officer Michael Brelo is not guilty of voluntary manslaughter or the lesser-included offense of felonious assault in connection with the deaths of Timothy Russell and Melissa Williams. Russell and Williams were shot a total of 137 times by various police officers, including Brelo. Brelo himself fired 49 rounds and at one point climbed atop the victims' car to shoot them (15 shots) through the front windshield.
The judge carefully parsed the evidence on the manslaughter charges and concluded that both victims suffered multiple fatal wounds--some from Brelo, some from other officers--and that he therefore could not conclude beyond a reasonable doubt that Brelo's wounds were the but-for cause of the victims' deaths. Thus the not-guilty finding.
From a purely legal standpoint, the decision makes sense. Lawyers, with their technical training in the various elements of crimes and torts, understand that the State fails to meet its burden of proof if even one of the essential elements of a crime is in doubt.
But the public doesn't think that way. The ordinary citizen understands the bigger picture. Two unarmed people were shot 137 times. They were African-American, the shooter white. Whatever the victims' conduct, and whatever deadly force may even have been warranted at some point to protect others, what is the possible justification for 137 shots?
More troublingly, if Brelo wasn't the "but-for" cause of their deaths, who was? We'll never know. The forensic evidence does not lend itself to anything but speculation in terms of the sequence of the bullet wounds and the likelihood that any one of them was the one that precipitated each victim's death.
And therein lies the rub. This decision paves the way for causation anonymity to immunize homicide, any time a group of police officers (or gang members or any other shooters) act together to end another human being's life. We can never know which bullet caused death. We therefore can never know which shooter caused death (at least from a legal standpoint). And we can never, therefore, punish the murderer.
Ironically, it would not have mattered in this case even if we could have pinpointed Brelo as the but-for cause. The judge also acquitted him of felonious assault, concluding that his actions were reasonable under the circumstances. Presumably, his ostensibly reasonable conduct would have served to exonerate him of voluntary manslaughter, even if the evidence established him as the instigator of the death-causing bullet. That finding, and not the missing evidence of causation, is probably the most-controversial aspect of this decision.
But causation anonymity could well matter in future cases. The law's devotion to technical minutiae is sometimes the enemy of justice. Wrongdoers now have a roadmap for how to act in concert in order to absolve each of them individually of legal responsibility for the most heinous of crimes.
Ultimately, then, I fear that justice will be, over time, the greatest victim of Brelo's conduct and its aftermath. And without justice, as the protesters (in Ferguson, in New York, in Baltimore, and now in Cleveland) remind us, there can be no peace.
Monday, May 18, 2015
Judy Clarke, Dzhokhar Tsarnaev and the Discretion of Strategy
As the Alabama spring progresses towards summer, I naturally have continued to think about the State’s power, particularly in its exercise of discretion – what to investigate, which suspect to arrest, which cases to charge, which cases to prosecute and how. As I was drafting a blog post last week, NPR informed me that Dzhokhar Tsarnaev’s jury had sentenced him to death. There has been a lot written and said about the prosecutor’s discretion in this case. Massachusetts after all has no state death penalty, so Tsarnaev was charged in federal court, where a death penalty was possible. Prosecutorial discretion, in this case and more broadly, is both a fraught and a well-trod topic. And deservedly so, but in this post I want to explore a different path – the discretion of the defense.
Judy Clarke was Tsarnaev’s defense attorney and she chose what some characterized as a risky defense – she conceded his guilt in the hopes of saving his life. Put another way, she named him a murderer in the hopes that the jury would be able to see something of him as a person beyond the horror he caused. In doing this Clarke did something that lawyers do everyday in all variety of cases – she made a decision of how best to defend her client. Thinking of what I know of Judy Clarke, I have no doubt that she weighed her decision – the evidence against her client, the shock and tragedy of the event itself, the emotional weight of the trial – and discussed the defense with him. At the end of the day, however, it was her decision to make as defense counsel and she exercised her discretion to create the best trial strategy she could. That it ultimately failed, that her client got the death penalty anyway, doesn’t change the reality that she did one of the hardest things lawyers do – she made strategic choices and she presented the case according to those choices. I don’t know any trial lawyers who don’t second guess these choices, particularly after a loss, and likely Judy Clarke has her own doubts.
What can and should professors do to prepare our students to make those choices. And when I say preparing, I mean lots of different things. On the one hand, there’s the preparing that accompanies knowing enough about the law itself to understand what choices are available. I suspect (hope) most law professors do a good job teaching students what the law is. How to apply the law is a trickier proposition. It’s one thing to memorize a holding, it’s another thing to decide whether or not that holding applies to your case or even ought to apply to your case. Beyond this, there are the more amorphous decisions of strategy and the emotional baggage that accompanies decision-making. I wonder whether these can be taught at all by anyone (or anything) other than experience.
In my own classes I use role play and “exercises” to try to get students to think beyond the inevitable exam at the end of the semester and to think of the “case” in real terms (even as they play pretend roles), but I have often wondered if all I have taught in the process is how I would strategize a case. As for the sense of loss I always felt when I knew I had chosen badly (or when the best choice was still a bad one as I suspect was the case with Tsarnaev’s), nothing ever prepared me for that. I could anticipate it. I could rationalize it. But I couldn’t ever quite be ready for the knowledge that I had made decisions that contributed to the conviction and punishment of my client. So I wonder how I, and others, can teach that? I can talk to my students about the practicalities of being a lawyer and embarking on a profession in which we all wield at least some tendril of power we lacked before those three letters, esq., were placed after our names, and I do. But in the end, I think discretion remains that double-edged sword that we all have yet to master the perfect instruction on its use. And so I think some of the best “teaching moments” I have had with regard to discretion have come years after my students left my class, when they email or call or sometimes even text to say “I have a hard decision to make, do you have a moment to talk?”
Judy Clarke was not my student. She never called me to talk. But from what I can tell, she did a great job with a hard, hard case. In the end, the jury found her argument unpersuasive and sentenced her client to death. There were thousands of events that led up to that moment, most of which pre-dated Judy Clarke’s work on the case, but in the end I wonder if there is some small part (or maybe large part) of her that wonders what if I had done it just a little differently. We can all say it wasn’t ever about Judy Clarke or her choices; the case was always about the client and the victims and the law. But that would not be completely true, and it would shove back into some dark corner one of the hardest parts of being a lawyer – making the decisions that constitute advocacy.
Thursday, May 07, 2015
Twelve Angry Men Inside Amy Schumer
If you have not seen Twelve Angry Men Inside Amy Schumer--Schumer's 12 Angry Men parody that brilliantly satirizes male attitudes about female attractiveness--check it below or wherever you can find it. The homage to what is often regarded as one of the great legal dramas is impeccable, the dialogue is hilarious, and the political messages (about gender issues and a host of other things) are clear without being didactic.
Monday, April 27, 2015
Natural Rights and the "Human Right" to Intellectual Property
I am picking up from where I left off in my prior post on human rights and intellectual property. My concern with embracing a human right to intellectual property arises from the possibility that it will lead to more expansive intellectual property protections. I would tend to agree, therefore, with the report by the United Nations Special Rapporteur in the field of cultural rights (mentioned by Lea Shaver in her comment), which characterizes copyright as distinct from the human right to authorship.
Human rights are generally understood to be natural rights. If one accepts this proposition, how does treating intellectual property protection as a human right relate to the natural rights intellectual property scholarship? The intellectual property and human rights conversation is primarily an international intellectual property conversation. However, the natural rights framing of intellectual property rights is primarily a domestic intellectual property conversation. Both of these frameworks are based on natural rights theories, yet they appear to reach opposite conclusions. With some exceptions, proponents of natural rights justifications for intellectual property tend to support more expansive intellectual property protections. On the other hand, proponents of a human right to intellectual property speak of “balance” and of using human rights frameworks to respond to excessive intellectual property rights.
One might be inclined to dismiss the theoretical foundations for intellectual property as irrelevant to the practical aspects of intellectual property law. However, the framing of intellectual property rights can impact the way private citizens, including judges and policy makers, view intellectual property protection and infringement. Gregory Mandel’s study on the public perception of intellectual property rights, for instance, found that individuals who view intellectual property rights as natural rights tend to support more expansive intellectual property protection. This is consistent with legal scholarship that takes a natural rights approach to intellectual property. My inclination, then, is that distinguishing between copyright protection and the human right to the moral and material interests arising from one’s literary or artistic production is a step in the right direction.