Thursday, March 26, 2015
Better Call Saul does law
As I have written, I waited anxiously for Better Call Saul, the Breaking Bad prequel that focuses on criminal lawyer Saul Goodman in his early days as Jimmy McGill. And the show has not disappointed.
Medical shows regularly feature actors spouting off medical and scientific lingo and I always wonder whether what they were saying made any sense. This week's episode of BCS, "RICO," gives law that treatment--cases, rules, and statutes are bandied about and lawyers are asked to look things up on Westlaw and to Shepardize.
Jimmy discovers that an assisted-living facility is surreptitiously charging its residents (including his client) for various supplies (such as $ 14 for a box of tissues). He and his brother start putting together a case involving claims for elder abuse, fraud, unfair trade practices, and RICO (hence the title).
I went back through the episode to hear all the law talk and try to figure out how much of the law made any actual sense.FRCP 11: Jimmy serves a "demand letter" (this is not necessarily a thing, even under New Mexico procedure, although many states require a plaintiff to serve a "Notice of Suit" letter) on the facility, which gets relayed to the facility's high-powered lawyer. The lawyer calls Jimmy and insists that "the best response would be to send a Rule 11 letter and have [McGill] sanctioned," because McGill had "no good-faith basis to threaten any litigation."
This one is clearly wrong. Rule 11 applies to papers filed with the court, not to something sent to counsel before litigation has even commenced. Plus, who would they ask for sanctions--no court actually has jurisdiction, since no lawsuit has been filed. Moreover, according to every court of appeals except the Seventh Circuit, Rule 11 cannot be triggered by a letter, only by motion (this was the very point of the Rule 11 essay I assigned this semester).
Jimmy's brother says they need to "start pulling case law--any precedent dealing with 18 U.S.C. §§ 1961-68": This is RICO, so they got the statute right. But pulling "any precedent" on all of RICO may kick back kind of a large amount of stuff; perhaps they should narrow their search a bit.
Cases to be read and Shepardized include:
Sedima v. Imrex: This is a major case loosening up the availability of civil RICO, holding that actionable conduct need not have resulted in a criminal conviction or produced a "racketeering injury."
Holmes v. SIPC: RICO requires proximate cause
Slesinger v. Disney: This could be any of several lawsuits in state and federal court over licensing rights for Winnie the Pooh, none of which involved RICO. My guess is that this one is an inside joke.
Statutes to be researched include:
30-47-1 NMSA: State statute concerning criminal offenses related to abuse and neglect of residents in health-care facilities
57-12-1-24 NMSA: State statutory provisions on unfair trade practices.
On the RICO question: The show makes a big deal about invoices showing that the fraudulently charged supplies crossed state lines, thus providing the interstate commerce hook. But is that necessary to make the RICO claim? Wouldn't it be enough that the facility itself substantially affects interstate commerce (as all such facilities do) and that it committed fraud? Does RICO require that the fraudulent act itself have an interstate hook?
Two other exchanges worth noting:
• Jimmy's brother says they should start with class cert., trying to get a conditional certification that will hold long enough to start discovery.
Whatever. It was never that quick or easy to get into discovery, even in 2002 (when the show takes place), the pre-historic days before Twiqbal and Wal-Mart. They are going to spend six months fighting over 12(b)(6) motions, regardless of class cert, before sniffing discovery.
• The ALF will not allow Jimmy onto the grounds. Jimmy's brother says they need to "quash this prohibition against you--some injunctive relief, maybe a TRO."
What other kind of injunctive relief is there besides a TRO when time is of the essence? Plus, "quash" seems an inappropriate term when there was no court order, but simply a private property owner controlling who has access to its property. But this raises an interesting remedies question--Would/Should a court of equity issue a TRO requiring that Jimmy be given access to a facility that he is suing, given that his client(s) live there? Or would the clients need to make the motion, arguing that they are entitled to have their lawyer visit them in their homes? Or would a private ALF be allowed to keep their residents away from their attorney when the residents are suing the facility through that attorney?
All-in-all, not bad. And a lot of fun to listen to.
Finally, check out The Legal Ethics of Better Call Saul, a blog operated by New York attorney Nicole Hyland that analyzes just how unethical Jimmy/Saul is being, at least under New York (as opposed to New Mexico) law.
Wednesday, March 18, 2015
Sweet Briar a Victim of Predatory Lending?
As the Sweet Briar situation continues to unfold, a policy analyst from the Roosevelt Institute digs deeper into the school's financial statements, and discovers troubling information:
"[P]redatory banking practices and bad financial deals played an important and nearly invisible role in precipitating the school’s budget crisis. . . . A single swap on a bond issued in June 2008 cost Sweet Briar more then a million dollars in payments to Wachovia before the school exited the swap in September 2011. While it is unclear exactly why they chose 2011 to pay off the remainder of the bond early, they paid a $730,119 termination fee. . . .
Just how big a deal are these numbers? The school has a relatively small endowment even among small liberal arts colleges: currently valued at about $88 million, with less then a quarter of that total completely unrestricted and free to spend. But in 2014, the financial year that appears to have been the final straw for Sweet Briar, total operating revenues were $34.8 million and total operating expenditures were $35.4 million, which means that the deficit the school is running is actually smaller than the cost of any of the bad deals it’s gotten itself into with banks."
Unlike most victims of predatory lending, however, Sweet Briar would have had access to high-level legal and financial advisors. If the financial deals were as bad as the report suggests, something went very wrong in the college's decision-making process.
Tuesday, March 17, 2015
Fiduciary Duty, Higher Education, and the Zone of Insolvency
Questions continue to emerge about the situation at Sweet Briar and the decision-making process that led to its closure, and the situation seems destined for litigation. One of the issues that seems to run through the discourse, though, is one I’ve been thinking about for a few years: to whom do the college decision-makers owe a fiduciary duty?
A letter from Virginia State Senator J. Chapman "Chap" Petersen to Attorney General Mark Herring raises the question explicitly. The letter questions the legality of the announced closure, asks for an opinion on the legal status of restricted donations, and asks “Does the Board have a fiduciary duty to protect the interests of donors and students, as well as the mission of the College?”
The issue of fiduciary duty presents an interesting question, and I would add a follow-up: does that fiduciary duty change (or should it) when a nonprofit institution is operating in the so-called “zone of insolvency”?In recent decades, colleges and universities have attempted to act more like businesses (the so-called “corporatization” of higher education) and, in doing so, may have acted in ways that are inconsistent with nonprofit principles. In particular, I suspect that the increasing spiral of rising tuition and concomitant discounts is one of the leading causes of financial distress in higher education—and it may well be that prior Board decisions underlie Sweet Briar's current financial crisis.
But regardless of how Sweet Briar got to this point, whose interests should now be paramount? I think there is no doubt that the Board owes a duty to the “mission of the College.” But how is that best served? The stated mission of the College is to educate women—but there are far more options for women’s education now than there were at the college’s founding, making it appear less important that that mission be served by Sweet Briar College. I also think there is a strong argument that colleges and universities have a fiduciary duty to act in the best interest of their students. I suspect that there is a contractual duty (though I am doubtful there is a fiduciary one) to donors; restricted funds probably should and will go back to donors or be distributed under cy pres principles.
There may be some conflict between the interests of educational goals, students, and donors. Nonetheless, I think that the main source of tension and potential conflict arises from an idea not actually stated in Senator Peterson’s letter—the idea that the Board could also have a duty to the institution itself. When a nonprofit institution is financially solvent, it may be reasonable to think in terms of a trustee’s duty to protect the institution and its future; ideally, the interests of the institution would be aligned with the interests of the institution's mission. When the institution is not financially solvent, however—and when strategies to gain solvency would seem to conflict with the institution’s mission—then there is a significant potential for a conflict of interest. The restriction of nonprofit status (exchanged for some nice tax breaks) suggest that the interests of the institution (and its management, including faculty) have to take a back seat in the face of such a conflict. I don't know if the Sweet Briar board made the right call, and I am troubled by a reported lack of transparency in its decision-making. For Sweet Briar, questions of power, duty, and potential conflicts will likely get hashed out in court.
Monday, March 02, 2015
The Dress, Justice Holmes & Erie
What’s the half-life for internet-breaking social media sensations these days? It seems to get shorter and shorter, so I figured I should address #TheDress sooner rather than later. Is it White & Gold, or Blue & Black? For all the snark, memes, and celebrity tweets the dress has inspired, a crucial piece of historical context has been overlooked.
Ninety years ago, there was a kerfuffle in Bowling Green, Kentucky that bears striking similarities to the one that now threatens the marital harmony of Kim & Kanye. Back then, the dispute was between Black & White taxis and Brown & Yellow taxis. A federal lawsuit was filed that made its way all the way to the U.S. Supreme Court, where it prompted a strong dissent from Justice Holmes. Holmes attacked the majority for reading the 1842 decision in Swift v. Tyson to allow the federal court to disregard Kentucky law on the enforceability of a contract giving Brown & Yellow the exclusive ability to solicit customers at the Bowling Green train station.
To Holmes, the majority improperly accepted the “fallacy” that parties in federal court “are entitled to an independent judgment on matters of general law.” The Swift opinion itself—Holmes contended—was written by Justice Story “under the tacit domination” of this fallacy. Holmes explained:
Books written about any branch of the common law treat it as a unit [and] cite cases from this Court, from the Circuit Courts of Appeal, from the State Courts, from England and the Colonies of England indiscriminately …. It is very hard to resist the impression that there is one august corpus, to understand which clearly is the only task of any Court concerned. If there were such a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, the Courts of the United States might be right in using their independent judgment as to what it was. But there is no such body of law. The fallacy and illusion that I think exist consist in supposing that there is this outside thing to be found. Law is a word used with different meanings, but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State ….
If a lot of these quotes sound familiar, it may be because Justice Brandeis used them liberally in Erie Railroad v. Tompkins, where he wrote the opinion overruling Swift. Black & White Taxicab v. Brown & Yellow Taxicab, in fact, was Brandeis’ Exhibit A for Swift’s “mischievous results.” And everyone from first-year law students to Supreme Court Justices have been struggling with Erie ever since.
While White & Gold v. Blue & Black may have temporarily broken the internet, Black & White v. Brown & Yellow helped to recast judicial federalism as we know it. But rest assured that if the White & Gold dress reincorporates in Tennessee so it can sue the Blue & Black dress in federal court, you’ll hear it here first.
[Cross-posted at the Civil Procedure & Federal Courts Blog]
Sunday, February 08, 2015
Taxonomy of sleazy lawyers
Thursday, February 05, 2015
Better Call Saul
Despite my distaste for all depictions of law, lawyers, and the legal system in pop culture, I am in the anticipatory tank for Better Call Saul. Reviews are sounding pretty good. And the character is just so much fun that I probably can overlook even large mistakes. Some trailers after the jump.
So who else is in?
Sunday, February 01, 2015
Managing Our Microbial Mark: Lessons We Can Learn About Pay for Performance From Ebola's Arrival at Our Shores
It has been a privilege to join you here this past month. I close out my month as a guest with some thoughts from my current research on pay for performance, coming soon to my SSRN page.
If you've seen any of the data on the apparent ebbing of the Ebola virus outbreak in west Africa, you know that the news is good. The incidence of new reported cases is reduced and, unlike the low reported incidence from this past summer, public health officials seem to have more confidence in these reported numbers.
What is even more interesting is that is hard to say exactly what combination of domestic, international, and community efforts is bringing the number of new cases down but it has been observed that, in some places, habits and customs changed faster than in others. Those able to improve health and sanitation as well as health and sanitation literacy faster were able to reduce incidence faster.
What can we, in the developed world, learn from all this? That hand washing matters in disease incidence and transfer? That communal pressure to improve things like hand hygiene can actually make a difference, even among the less aware and less motivated? That Ebola needed to be brought out of the shadows before incidence and transfer could be fully addressed?
I have been thinking about what our brush with Ebola at our shores tells us about our health care system and our own capacity to learn these lessons from the developing world.
Ebola’s presence, however limited, in American acute care facilities has brought to light the limitations of current infection control procedures in American hospitals. Yet little has been done to extend lessons learned from Ebola transmission to non-Ebola infectious disease control. In this, we have more in common with west Africa than we may think, where focus on a single disease often disrupts health systems. Here, a focus on one disease allows us to focus on specialty care for that disease alone, without placing that disease’s spread in the larger context of infection control failures in America’s acute care facilities.
Persuaded, on some level, that the proliferation of hand sanitizer dispensers will immunize us, we alternately confront our own worst fears of a “super bug" while managing to continue to participate in our communal lives, including the highly communal and congregate experiences of acute care hospitalization and nursing home residence much as we always have since the rise of these two peculiarly modern forms of health care institutions in the 20th century. And, yet, everything is changed.
More on this and many other topics at my own blog.
Thursday, January 22, 2015
Sutter Health vs. Blue Shield: War of the Gargantuas
When I think about calls for increased consumer activation in health insurance selection, I think about how much I like the ideas of increased health insurance literacy, price transparency, and the promotion of competition in health care markets.
But when I see consumers whipsawed as with the current War of the Gargantuas taking place in Northern California, I wonder if consumer activation alone will save us.
In order to have been a savvy purchaser of health insurance through California's Exchange (or, even, outside the exchange through this fall's most recent open enrollment period for commercial insurance), you would also have to have known something about the the health insurance and health care services contracting world. Can we reasonably expect consumers to master this, to ferret out what they really need to know?
Most Northern California employers have a fall open enrollment period. Covered California's open enrollment for 2015 runs from November 15, 2014 to February 15, 2015.
Here's what your employer (or exchange) surely didn't tell health insurance shoppers in Northern California this past fall:
3. They bargain fiercely right through and past the open enrollment deadline over the next year's contract rates.
4. Even a behemoth such as Blue Shield of California has, historically, been unable to bring Sutter to heel. Sutter's tremendous market power in Sacramento and the Bay Area is one of the drivers of high health care costs in those areas.
4. Decisions that are made after the close of your open enrollment period -- such as their contractual terms or, as announced this year, their decision to maybe not contract at all, may be announced once open enrollment is closed or very near to its closure.
5. The decision by a major provider to exit an established health plan after the close of the open enrollment period is apparently not deemed a qualifying life event allowing for special enrollment under Covered California. California's largest employers have been conspicuously silent on whether such an announcment is a qualifying event for out of open enrollment insurance plan change.
So the chat boards are lighting up. Can it be that a change in a health plan's coverage options in a highly concentrated market such as Sacramento or the East Bay is not a a trigger for special enrollment rights ? You mean you didn't know all this already?
Watch out where Gargantua steps.
Tuesday, January 20, 2015
Joachim Prinz, American Jews, and the Civil Rights Movement
This article is a few years old, but I came across it, appropriately, on MLK Day. It is about Joachim Prinz, the most prominent Jewish leader in the Civil Rights Movement and the only Jewish leader to speak at the March on Washington (he spoke just before King). I was personally interested in the story because Prinz performed my Bar Mitzvah in 1981 at B'nai Abraham in Livingston, N.J., where he was Rabbi Emeritus. As students at the Hebrew School, we sort of knew about his involvement with King. But my friends and I were more interested in being outside playing baseball.
Thursday, January 15, 2015
Chasing the Dragon in the Shadow of the OX
The numbers are in and it is official: deaths from heroin overdoses in much of the United States have doubled in the past two years. Whether the heroin was injected or smoked ("chasing the dragon"), there is some evidence that, in many places, heroin has increased in both availability and purity in the same time period.
How to explain this?
One school of thought -- I'll call it the opiate demand substitutability school of analysis -- tracks the increase in heroin's popularity to the increased difficulty addicts are reported to be having in accessing oxycodone ("OX") in light of state and federal efforts to reduce prescription drug abuse. The street value of OX has increased (at least the street value of original formulation OX has increased, while the street value of OX in the resistant to crushing and snorting format has actually gone down) and there is anecdotal evidence from treatment centers for injectable drug users that the migration from OX to heroin is well underway.
Another school of thought -- I'll call it the progression of addiction through the population school of analysis -- is that prescription drug abuse, particularly in the 18-25 age group, is still rampant but the increase in heroin overdose fatalities demonstrates a cohort of aging opiate addicts moving through the progression of addiction, seeking an ever cheaper and more powerful high. This might explain the high demand for heroin of a purity previously not well known in the United States.
Whichever theory you subscribe to -- and some thoughtful addiction specialists subscribe to both-- the increased death rate from opiate overdose is data playing out as the back story to our ongoing debate over the wisdom and utility of providing naloxone (the antidote for heroin overdose) for emergency use. Some states have now approved the training of and distribution to first responders and lay people of naloxone for just this use.
But we are conflicted. Is naloxone a step toward condoning use? If the overdose death rate is lower where heroin is both safe and accessible, is naloxone's arrival just a further expression of our own ambivalence about treatment for addiction?
Thursday, January 01, 2015
Maybe The Knick Needs a Few Midwives
I am, I concede, an odd television fan. I probably spend more time reading about television than actually viewing it. I actually enjoy reading reviews of television programs that I have no intention of ever viewing. Occasionally, however, a review or series of reviews makes me want to see something for myself.
And so it was with "The Knick", a bravura Steven Soderbergh creation (now with its second season in production) -- a medical procedural set in a turn of the century New York City hospital. With almost its first scene a heartbreaking and gut wrenching failed cesarean section, whatever else The Knick represents, it is vivid. It is also somewhat clinically detached. Eventually we learn that the failed cesarian had been attempted unsuccessfully twelve times before by the same team. As one reviewer wrote, "The Knick uses historical distance to make sickness into something strange and unfamiliar, giving its doctors the aura of scientific adventurers." Adventurers they were. Later footage depicting brave experiments with unknown forms of anesthesia tip us off that the character of Dr. Thackery may, in fact, be based on extraordinary real-life surgeon Dr. William Halstead.
It would be an understatement to describe Dr. Halstead as an adventurer. I do have to wonder if the series does him justice in one important regard. Noone comforts the crying (very soon to be dying) young cesarian candidate as she is wheeled into the operating theatre in "The Knick." It is apparent she senses she is near death but it is unacknowledged, although it is clear the risk is grave.
Dr. William Halstead, in fact, stood for a new gentler surgical approach, recognizing roughly handled tissues were often lost. No less than H.L. Mencken noted "[h]e showed that manhandled tissues, though they could not yell, could yet suffer and die."
The critics' reviews on "The Knick" are mixed. For each "Steven Soderbergh Made a Gilded-Age 'ER' and It's Riveting" review there is an equal and opposite "Surgical Strikeout." "The Knick," it seems, suffers by comparison with PBS's "Call the Midwife" (soon to be showing its fourth season with a fifth in production). "The Knick" is being criticized for lack of character development when compared with the well-developed characters of both health care providers and patients in "Call the Midwife."
In all fairness, "Call the Midwife" has had far longer to develop the characters involved but these critics may have a point. Patients in "The Knick" are often unnamed, breathtakingly mute or near-mute. Patients in "Call the Midwife" may even serve as recurring characters, as they did in Jennifer Worth's memoir on which the series, through season three, has been based.
Some of this is a difference in perspective. Jennifer Worth has left us her personal, professional, and spiritual autobiography in her three volume memoir of her time in East London. Hers is a meditation on her personal transformation through service in a low income, low health literacy community. Over time, Jennifer Worth did not flinch to discuss the desperation of women with too many children and too little money. "Call the Midwife" is not for the faint of heart despite all those wonderful sepia colored images you may have seen of midwife Jenny Lee pedaling to a house call through the clotheslines of the East End tenements. The series itself is far grittier and Jennifer Worth's memoir grittier still.
We will see where "The Knick" takes us. Given that Dr. Halsted performed the first successful radical mastectomy for breast cancer in the United States, never mind transfused himself on the spot to save his sister's life post-partum, I can only imagine that more compelling drama is ahead. Oh, and did I mention he was a stickler for complete sterility in the surgical suite? I hope we get to see a more well-rounded presentation of this compelling, complex, and astonishing man.
And the mute young mother-to-be who never lived to grow into her role? She teaches us something as well about how the human touch, whether felt in carefully restrained surgery or attentive midwifery, can comfort and strengthen, even unto the last moments of life.
Thank you to my friends at Prawfsblawg for the opportunity to visit with you this month and for the opportunity to ponder things health law related.
Tuesday, December 23, 2014
Eye of the Beholder
Historically, case law has been hesitant to define what constitutes “art.” However, with respect to what constitutes “pornography,” we all know the infamous Supreme Court line, “I know it when I see it,” as well as the discussion of the topic in this case and Justice Thurgood Marshall’s opinion here. All of this being said, I am reminded of a painting that I once saw in a law professor’s office. It was of a nude woman, clearly artistic, and certainly not pornographic. Yet, I imagine that some students and other visitors were likely uncomfortable with it. A personal office that is part of a larger professional environment may thus not be the best location for such displays, and courts are weighing in. Should some art be off limits in the office – even in law schools?
Monday, December 08, 2014
Tattoo . . . You?
I was reading an interesting article about lawyers and tattoos, which led me to question the practice among law faculty. Although dress codes have certainly become more relaxed since the days of wingtips and shoulder pads, some of the old taboos remain. Are tattoos one of them? After all, I cannot recall ever seeing a lawyer or a professor with a tattoo. Have you? Perhaps more importantly, should it matter?
Monday, December 01, 2014
Did You Hear the One About the Lawyer…
…who brought home a shoplifter for Christmas? This is the premise for one of my favorite “lawyer” holiday films – “Remember the Night” (1940) – and one that almost made the final cut for my book (please pardon the plug) that employs classic films to demonstrate important lawyering skills. What’s interesting is that, despite its warm and gentle premise, this film likely never would have been made today – or, conversely, it would now be made much differently. This film is airing on TCM later this week. For those who show film clips in their classes, there are many here to consider using, especially the trial scenes.
Speaking of films, I plan to spend my visit this month focusing on classic films and professionalism in the law. I am honored to visit again in our shared effort to keep this wonderful Blog thriving in Dan’s memory.
Saturday, November 22, 2014
Just watch the video
This article explains. I have nothing to add--skip to 22:38, when the respondent's argument begins. Somehow, law professors are to blame for this.
Sunday, November 16, 2014
Carlin's words, updated
George Carlin in the mid-'70s famously identified the seven words you can's say on television. In this review of the new legal show Benched,* NPR's Linda Holmes identifies the new prevailing rules as follows:
Basic Cable: SNOF (Shit, No Fuck), with an addendum for Breaking Bad to say "fuck" every 2-3 episodes, when it really mattered
Broadcast: NOSNOF (No Shit, No Fuck)
Pay Cable: ATFWYCSO (All The F Words You Can Spit Out)
This NPR piece from about a year ago offers a longer take on the subject. It shows that while we focus a lot on "shit" and "fuck," the word on Carlin's list that has universally come to be regarded as taboo is the one for women and/or their genitalia--no one thinks of using it, although the workarounds arguably are just as offensive. The piece also shows--still--how silly much of this is, at least for adult-centered programs.
By the way, I think I second Holmes's recommendation of the show, at least based on one episode. Although the premise is a bit offensive legally--woman lawyer has in-office meltdown (because, you know, women lawyers), still can get a job at the Public Defender's Office (because, you know, anyone can). But it has the potential to at least be funny.
Friday, November 07, 2014
NBC canceled the show Bad Judge last week, because, by all reports no one was watching and the show was, well, worse than the judge. I never watched it because I could tell from previews that it was going to depict thoroughly illegal, improper, and unethical behavior as "heroic" and it would just drive me nuts.
But the Florida Association for Women Lawyers found the show even more objectionable; the group had sent a letter to NBC last month calling on it to cancel the show. It argued that the show "depicts a female judge as unethical, lazy, crude, hyper-sexualized, and unfit to hold such an esteemed position of power" and thus is "damaging to women in the legal profession." Fair enough, I suppose, although there have been shows and movies showing judges behaving similarly badly (if not necessarily sexually).
Unfortunately, the letter completely loses it near the end, arguing that the show is
dangerous to the extent those who hold preconceived notions about women judges will find their sexist beliefs reaffirmed. A misogynist who believes that women in power cannot control their sexuality, their bodies and their professional or personal conduct would have their views endorsed by this show.
It compared the show to All in the Family* for similarly having a leading character exhibit and express hateful views that confirm the beliefs of viewers holding similar hateful attitudes. Of course, this show is hyperbole (poorly done, but nonetheless) and Archie Bunker was the butt of the joke, not the heroic model to be emulated. So the letter is relying on the old "people are too stupid to get it" argument, a uniquely bad basis for restricting speech.
* Which, needless to say, will be the first, last, and only time anyone ever will compare these two programs.
But don't worry. Better Call Saul is coming soon.
Friday, October 17, 2014
Egg Freezing and Women's Decision Making
The announcement by Apple and Facebook that they will cover the costs of egg freezing predictably provoked some controversy—predictably because it involves reproduction and also because too many people do not trust women to make reproductive decisions.
Interestingly, the challenge to women’s autonomy can come from both sides of the political spectrum, as has happened with several assisted reproductive technologies. Scholars on the left criticized surrogate motherhood on the ground that surrogates were exploited by the couple intending to raise the child, and other new reproductive technologies are criticized on the grounds that women will feel obligated to use them rather than free to use them. Indeed, this concern about coercion drives some of the objections to egg freezing.
Some women freeze their eggs because they face infertility from cancer chemotherapy; other women may not have found a life partner and want to suspend their biological clock until that time comes.
But some observers worry that with the option of egg freezing, some women will succumb to the pressures of the workplace and choose egg freezing not because they really want to but because they feel that have to. After all, if a woman can delay procreation and put in long hours at the office, why shouldn’t she do so? Employers might think that women who forgo egg freezing are not really committed to their jobs.
These concerns are legitimate, but are people too willing to invoke them? Egg freezing is not a simple procedure, nor is its success a certainty. Even if covered by insurance, women are not likely to choose egg freezing lightly. We should worry that egg freezing critics may be too ready to question the decision making capacity of women contemplating their reproductive choices.
Wednesday, October 08, 2014
Zombies Defeat Tort Law
It's always a shame to let a Prawfs guest stint go by without working in zombies. Maybe there's just something in the air. The Walking Dead is returning to my DVR box (any series which once starred a law professor's kid can't be all bad). Maybe it's that I'm still hoping a review copy of Zombie in the Federal Courts will arrive.
So next week, my college's campus gets taken over by a game called "Humans v. Zombies." According to this article in the student newspaper, all campus needs to prepare itself, because hordes of people shooting each other with nerf guns and tagging each other with two hands are about to descend. What could possibly go wrong?
A bit, learned the plaintiff in Brown v. Ohio State University, 2012 WL 8418566.
Plaintiff attended Parent's Weekend at Ohio State University's Columbus campus. Why not go on a midnight Ghost Tour? Unfortunately, President Obama was on campus that week, so his limo needed an escape route, which obviously meant putting a double layer of plywood on sidewalks (somebody should fire someone from the Secret Service or something). Anyhow, plaintiff tripped on that hazard, broke her arm, and filed suit.
Why didn't she see the plywood so evident on the sidewalk? Because a nearby "game of humans vs. zombies being played by students ... diverted her attention."
Zombies 1, Humans 0
Though of course, having been distracted by the zombies, she was able to avoid the application of the "Open and Obvious" doctrine and escape summary judgment -- genuine issues of material fact existed on "whether attendant circumstances overcome application of the open and obvious doctrine".
Too Much Information? GM Food Labeling Mandates
As NPR reported yesterday, voters in Colorado and Oregon will decide next month whether foods with genetically-modified (GM) ingredients should be identified as such with labeling. And why not? More information usually is better, and many people care very much whether they are purchasing GM foods. Moreover, it is common for the government to protect consumers by requiring disclosures of information. Thus, sellers of securities must tell us relevant information about their companies, and sellers of food must tell us relevant information about the nutritional content of their products.
Nevertheless, there often are good reasons to reject state-mandated disclosures of information to consumers. Sometimes, the government requires the provision of inaccurate information, as when states require doctors to tell pregnant women that abortions result in a higher risk of breast cancer or suicide. At other times, the government mandates ideological speech, compelling individuals to promote the state’s viewpoint. Accordingly, the First Amendment should prevent government from requiring the disclosure of false or misleading information or of ideological messages. (For discussion of abortion and compelled speech, see this forthcoming article.)
What about GM labeling?
Is this similar to requiring country-of-origin labeling for meat and produce, a policy upheld by the D.C. Circuit earlier this year? GM labeling likely will mislead more than inform. Many people harbor concerns about genetic modification that are not justified by reality. In particular, as the NPR report indicated, researchers have not found any risks to health from eating GM foods. Indeed, genetic modification can promote better health, as when crops are fortified with essential vitamins or other nutrients. For very good reasons, GM foods run throughout the food supply, whether from traditional forms of breeding or modern laboratory techniques. Thus, the American Association for the Advancement of Science has concluded that GM labeling “can only serve to mislead and falsely alarm consumers.”
[cross-posted at Health Law Profs and orentlicher.tumblr.com]
Monday, October 06, 2014
And then Ferguson
The start of the semester is always a bit of a frenzied mess. I'm usually rushing to revise my syllabi, get a head start on finer tuned preparation for classes, finish up a summer project, find my grown-up clothes, and get my kids organized for the start of their school year. This year was no different. And then a police officer shot an unarmed teenager in Ferguson, Missouri, one of the ninety municipalities in St. Louis County. And then people started protesting, there was looting and a fire one night, and law enforcement engaged in a number of strategies to shut down the protests, including curtailing speech at night, prohibiting people from standing still on the city streets and sidewalks, and using tanks, tear gas, and rubber bullets. Much of the events were broadcast over live video feeds, so that people near and far could watch what was unfolding. In short, the metro St. Louis area was caught up in the turmoil, and between the public's demand for answers and the focus of the national media, the demand for information about the law and the federal, state, and local legal systems was incredibly high. In addition, the demand for legal services and public outreach within the community was incredibly high. Those of us in the region who work in areas related to criminal law and criminal procedure, civil rights, race, the First Amendment, or other areas related to poor people and their interests were constantly on call for at least the first few weeks. We also had a responsibility to ensure that colleagues and students who lived in Ferguson were safe and supported, and that we were helping our students understand the issues and their relationship to the community as future lawyers.
After the jump I want to highlight the ways that my colleagues, students, and a group of SLU alumni jumped in with both feet to serve the community we are a part of and to empower them to work for needed reforms. Much of the groundwork had actually been laid well before the protests and police response through ongoing projects to serve underserved communities. Before I do that, I want to emphasize a broader point. It is often difficult, in the midst of things, to recognize the important moments, moments when our students and the communities we serve need to see us in a variety of lawyerly roles, or moments when we need to act because we can and others cannot. To me, the most remarkable part of the stories related to Ferguson is that many people recognized their moment, and many people chose to act. For a law school committed to social justice, to training men and women to service with others, recognition of the moment and action were particularly important and helped to renew at least my faith in that mission.
So now, let me highlight some of the important contributions that lawyers and students in the St. Louis community have made.
1. Arch City Defenders. Last year, Eric Miller highlighted the work of this 501(c)(3) entity, which provides holistic civil and criminal legal services to low income people in connection with other social services. In August, they issued a white paper, describing both abuses that violate the law in municipal court proceedings, and the way that the system of municipal violations and municipal court proceedings "push the poor further into poverty, prevent the homeless from accessing the housing, treatment, and jobs they so desperately need to regain stability in their lives, and violate the Constitution." This white paper addresses several root causes of the alienation that led to the protests in Ferguson.
2. SLU Clinical faculty Sue McGraugh (see her Twitter feed @slewzq for excellent updates), John Ammann, and Brendan Roediger have represented protesters, lobbied for a number of reforms of the municipal court system, sponsored forums educating members of the public about their legal rights, and supported student advocacy work at city council meetings and other public forums. A more full list of activities is here.
3. Justin Hansford, an assistant professor, is an active leader on the ground, helping the U.S. Human Rights Network prepare a report to the United Nations and collaborating with the Advancement Project, NAACP Legal Defense Fund, National Lawyer's Guild and other national legal groups with associated legal efforts.
4. Students . . . lots of students have been active in the work of the clinics, in voter registration drives, as legal observers in the protests, educating the public about their legal rights, developing ongoing strategies for reform and education, surveying the legal needs of the Ferguson community, and more.
5. Bill Freivogel (St. Louis Public Radio, Director of the Univ. of Southern Ill. School of Journalism and Professor in the Paul Simon Public Policy Institute) has been collecting and publishing general information for the public on the legal issues related to the shooting and subsequent protests. Relying on a cast of many sources, his articles have focused on the rules about deadly force, why the officer wasn't immediately arrested, the grand jury process, the prosecutor's plans after this grand jury returns (or refuses to return) an indictment, the federal investigations related to Ferguson, and how changing police practices could help bring justice to the community.
I'm sure that I am leaving out people whose work I chose not to highlight or don't know enough about.
One takeaway to leave you with is a cautionary note. Ferguson is a relatively sleepy suburb, which is why the size of the protests and police response were both so surprising. There are people who are fairly disillusioned with the system and who feel relatively powerless there, but they have, by and large, reacted by protesting and not resorting to violence. There are other parts of the metro area with larger concentrations of people in poverty, larger numbers of people affected by systemic racism, people who feel more alienated, and who may see no reasonable alternative to violence, places like North St. Louis. Depending on the results of the grand jury proceeding and the police response in anticipation of violence upon news of those results, there is a lot of possiblity for things to get much worse. I hope they don't.
Friday, October 03, 2014
The Right to be Forgotten
Much of my scholarship concerns comparative constitutional law. An interesting example of such topics being addressed, beyond a law journal, is the recent article by Jeffrey Toobin in the Sep. 29 New Yorker titled "The Solace of Oblivion," http://www.newyorker.com/magazine/2014/09/29/solace-oblivion. His article focuses on a European Court of Justice ruling that essentially ordered Google to delete any links to information regarding an individual in Spain, who had cleared up some financial difficulties that had been previously written about on the Internet. The ECJ said individuals had a right to prohibit Google from linking to items that were "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed." From a U.S. First Amendment perspective, such a ruling would almost certainly be an untenable speech restriction, especially given the vagueness and overbreadth of these criteria.
The article includes an interview with the Austrian born Oxford professor who is considered by Toobin to be the "intellectual godfather" of this right to be forgotten. The professor apparently sees analogies between Google retaining links to permanent blemishes about people on the one hand, and the Stasi, or other surveillance states, keeping records on people. It's a short fascinating article that I recommend to folks who want to learn more about the differences between American and European approaches to these issues. Students would find it especially accessible. The article has special relevance now in light of disclosures regarding NSA and other surveillance actions in the U.S. Yale Law Professor James Whitman wrote a seminal law review article addressing some of the underlying philosophical differences between the U.S. and Europe on privacy that has some similarities. "The Two Western Cultures of Privacy: Dignity Versus Liberty," 113 Yale L.J. 1151 (2003-4), http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1647&context=fss_papers
Wednesday, October 01, 2014
The Electorate and Attorneys
Thanks to the PrawfsBlawg folks for letting me join in again. Dan Markel's loss has been devastating, but I hope we can keep his mission alive here by going full speed ahead. As an Iowa-based law professor (Director of the Drake Constitutional Law Center), we have one of the key U.S. Senate elections occurring between Republican Joni Ernst and Democrat Bruce Braley. They are battling to replace Democrat Tom Harkin. Some of you may know, from national new stories, that Braley got into trouble when he was filmed at an out of state fundraiser explaining, in part, that popular incumbent Senator Grassley is a farmer from Iowa who never went to law school. Moreover, Braley elaborated that Grassley may become leader of the Senate Judiciary Committee. Braley's statements were not good politics to say the least. In addition, the fundraiser apparently involved trial lawyers and Braley himself is a trial lawyer. Joni Ernst supporters have run that film clip often on television. On the other hand, Ernst has at times advocated abolishing the Department of Education, privatizing social security, and has not opposed impeaching President Obama. During a recent debate, she appeared to move to the center on some issues as would be expected. Braley did a good job in the debate but did not press her hard on certain matters.
What's fascinating though is that the Braley team has made no effort on television to defend the view that lawyers can play valuable roles in society, even though his campaign Web site does just that. The Web site mentions several instances of Braley helping the underdog against various powerful interests. Certainly, former Presidential candidate John Edwards used his work as a plaintiff's attorney at times to promote his candidacy. Presumably Braley's political consultants (who may know more than me) think the "attorney" word should go virtually unmentioned in television advertisements. But that has handed over the issue of who is the better person to Joni Ernst, as her campaign has run effective ads about her leadership in the National Guard. Moreover, she presents well on television. The polls show Ernst with about a 6 point lead. Whatever happens, it's sad to see the Braley team essentially abandon any defense of some of the good work that Braley likely did as an attorney, even if their strategy is not totally unexpected.
Life is short
Thanks to Howard for the introduction and to him and all of the permaprawfs for letting me guest here this month. I had expected to thank Dan, of course, who asked in May if I would do another guest stint (my last one was a number of years ago), and so it was oddly comforting that the actual invitation from typepad to begin blogging had the subject line, "Dan Markel has invited you to join PrawfsBlawg." I have had similar messages before, automated from accounts connected with friends or family members who have passed away. I like these messages from the ether, like a friendly wave from the other side.
I didn't intend for my first post to be so sentimental, but night before last a woman in my circle of friends passed away, and her husband and other friends have been writing about her decision to end treatment that would not cure her so that she could live her remaining days as fully as possible with her family. It's a good reminder to work in the things that matter all of the time. And so, in her honor and as a reminder for all of us, here is a link to the poem that she asked her husband to read at her memorial service, On Living by Nazim Hikmet, which begins:
Living is no joke,
you must live with great seriousness
like a squirrel for example,
I mean expecting nothing except and beyond living,
I mean living must be your whole occupation. . . . .
Friday, September 26, 2014
Tuesday, September 23, 2014
The Washington Redskins, the Lanham Act, and Article III
As the Associated Press reported yesterday, the five Native Americans who prevailed earlier this year before the U.S. Trademark Trial and Appeal Board (TTAB) in their effort to have the Washington Redskins' trademarks cancelled have now moved to dismiss the lawsuit that the Redskins ("Pro-Football, Inc.") filed against them in the U.S. District Court for the Eastern District of Virginia under the Lanham Act, 15 U.S.C. § 1071(b)(4). As I endeavor to explain in the post that follows, it certainly appears that their motion should be granted--and the Redskins' lawsuit dismissed either because the Lanham Act doesn't actually authorize such a suit, or, insofar as it does, it trascends Article III's case-or-controversy requirement in this case.
I. The Lanham Act's Cause of Action for "Adverse" Parties
In their Complaint in Pro-Football, Inc. v. Blackhorse, the Redskins explained that they were seeking:
an Order of this Court: (1) reversing the TTAB Order scheduling the cancellation ofthe Redskins Marks; (2) declaring that the word "Redskins" or derivations thereof contained in the Redskins Marks, as identifiers ofthe Washington, D.C. professional football team, do not consist of or comprise matter that may disparage Native Americans; (3) declaring that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a),is unconstitutional, both on its face and as applied to Pro-Football by the TTAB, under the First Amendment of the U.S. Constitution, and is void for vagueness; (4) declaring that the TTAB Order violates Pro-Football's rights under the Fifth Amendment of the U.S. Constitution; and (5) declaring that Defendants' petition for cancellation in the TTAB challenging the Redskins Marks under Section 2(a) was barred at the time it was brought by the doctrine of laches.
But whereas the Redskins' Complaint routinely describes their lawsuit as an "appeal" of the decision by the TTAB (where it wouldn't be that weird to have the complaining party before the TTAB--the Blackhorse defendants--as the putative appellees), the Lanham Act actually authorizes something else altogether--a standalone, new civil action against an "adverse party" so long as that party was "the party in interest as shown by the records of the United States Patent and Trademark Office at the time of the decision complained of." The problem with application of that provision here, as the motion to dismiss quite persuasively explains, is that it's not at all clear how the defendants here are "the party in interest," at least in light of the specific nature of the Redskins' challenge:
Ordinarily, the adverse parties in an opposition or cancellation proceeding before the TTAB are two businesses claiming rights to the same or similar trademarks. Thus, when a party dissatisfied with a decision of the TTAB brings actions under 15 U.S.C. § 1071(b)(4), it is usually involved in a dispute with a business that uses a similar trademark, with the parties often joining claims for trademark infringement, unfair competition and other causes of action.
Here in contrast, there's no such relationship, and "PFI does not allege any wrongdoing on the part of the Blackhorse Defendants. PFI does not allege that they breached a contract, committed a tort, or violated any law. Instead, PFI’s allegations are directed solely against the USPTO and PFI seeks relief only against the USPTO." In effect, the Redskins' claim is that the TTAB wrongly cancelled their trademarks--which, for better or worse, has rather little to do at this point with the complainants who initiated the cancellation proceedings in the first place. Thus, it certainly appears as if 15 U.S.C. § 1071(b)(4) does not in fact provide the Redskins with a cause of action against the Blackhorse defendants--and that the suit should be dismissed for failure to state a claim upon which relief can be granted.
II. The Case-or-Controversy Requirement
But imagine, for a moment, that the Lanham Act does so provide--and that § 1071(b)(4) actually authorizes this suit. The motion to dismiss argues that, so construed, the Lanham Act would violate Article III's case-or-controversy requirement, and that seems right to me--albeit for slightly different reasons than those offered by the Blackhorse defendants.
The motion argues that "The Blackhorse Defendants’ legal and economic interests are not affected by the registration cancellations and they will not be affected by this litigation." But I think the case-or-controversy defect here goes to the Redskins' Article III standing. After all, it's black-letter law that a plaintiff must allege (1) a personal injury [“injury in fact”]; (2) that is fairly traceable to the defendant’s allegedly wrongful conduct [“causation”]; and (3) that is likely to be redressed by the requested relief [“redressability”]. Although the Redskins were clearly injured, it's not at all clear to me how the Redskins satisfy either the causation or redressability prongs.
On causation, as should be clear from the above recitation of the Redskins' claims, none of them even as alleged in the Complaint run against the Blackhorse defendants--who were the complaining parties before the TTAB. After all, even though they initiated the proceeding that produced the TTAB order the Redskins seek to challenge, they did not themselves issue that order, nor are they a competing business somehow reaping financial or noneconomic advantage from the deregistration of the Redskins' trademark.
As for redressability, neither the TTAB nor the Director of the U.S. Patent & Trademark Office are parties to the Redskins' suit, and so it is impossible to see how the relief the Redskins are seeking could be provided by the Blackhorse defendants. Again, one can imagine a different set of facts where the adverse party before the TTAB could have both (1) caused the plaintiff's injuries; and (2) be in a position to redress them, but I just don't see how either is true, here. It's certainly odd to think that the defect in this suit goes to the Redskins' standing--after all, if nothing else is clear, the Redskins are certainly injured by the TTAB's cancellation decision. But standing isn't just about the plaintiff being injured by a party nominally connected to the injury...
III. The Equities
Finally, although the motion to dismiss doesn't make this point, there's an equitable point here that I think deserves mention. Whatever the merits of the TTAB's underlying ruling, I have to think that the Lanham Act was not designed to disincentive individuals like the Blackhorse defendants from bringing non-frivolous claims seeking the cancellation of registered trademarks on the ground that they are disparaging. But if the Redskins are right, here, then any party that pursues such a proceeding before the TTAB is necessarily opening itself up to the (rather substantial) costs of a new federal civil action if it prevails, even when the subject-matter of the suit is simply an effort to relitigate the TTAB's underlying cancellation decision. (All the more so because the standard of review in the new lawsuit is de novo, with full discovery.)
Such a result strikes me not only as unwise, but as not possibly being what Congress could have intended when it enacted § 1071(b)(4). Indeed, in many ways, the Redskins' claims sure seem analogous to a SLAPP suit--all the more so when you consider that the Redskins could have, but did not, directly appeal the TTAB ruling to the Federal Circuit.
Posted by Steve Vladeck on September 23, 2014 at 08:47 PM in Civil Procedure, Constitutional thoughts, Corporate, Culture, Current Affairs, Intellectual Property, Steve Vladeck | Permalink | Comments (2)
Tuesday, July 08, 2014
Thoughts on Work-Life ImBalance from Those Left Behind
Friends, I suspect many of you recall the world's light dimmed in the aftermath of Andrew "Taz" Taslitz's untimely death earlier this year. Andy made the world brighter through his ebullient spirit, infectious laughter, and tireless work on behalf of improving the criminal justice system and the lawyers thrust into its maw.
Since it's summer time and many readers of the blog are just beginning their teaching careers, I thought I'd share a post of Taz's widow, Patty Sun. This is reproduced with her permission from Facebook:I'll post this on Andy's FB page because I'm not sure anyone reads mine anymore, and while this can apply to anyone, it's really addressed to law professors. In the past 4 months I have kept seeing accolades to Andy's amazing productivity - the 100+ articles, the zillions of case books, etc., and I have always told people that yes, he led a normal life, yes, he got plenty of sleep and yes, he even took plenty of naps.
But that's not really true. His life was not normal, at least not to me, and it certainly wasn't balanced. Yes, I know he genuinely loved his work and yes, I know he had a brilliant and unusual mind, and yes, I know he was cut down in his prime when he still had so much more to give.
But all of that came with a price. Not the teaching or the mentoring, but all that scholarship. A few years ago the chair of some symposium set an absolute deadline for everyone to get their drafts in, and by then, even I knew that academics never did that, so I told him to relax and finish it at a normal pace. So what did he do instead? He sacrificed an entire weekend and worked 12 hours both Saturday and Sunday, because damn it, HE was going to submit his draft in on time. So of course what happened? NO ONE else was even close to done by the deadline so the chair had to give everyone else a long extension. And did he mind? Not really, because it just freed up more time for him to do another encyclopedia entry or edit another friend's manuscript.
So what was the price in the end? In the entire time we were married we only took a two-week vacation once, and just about every vacation we did take was wrapped around one of his conferences or presentations. The furthest he went on each of his two sabbaticals was his front bedroom, because he spent every single day on his manuscripts. He turned down trips to China, to South Africa, to Japan, and most impressively to me, he twice turned down a chance to be an observer at Guantanamo. Of course he always had different reasons - S. Africa wasn't safe, the timing of the China trip was bad, etc., but I knew the real reason was he didn't want to take time away from work.
It was only the last vacation we took, to Vermont two years ago, that truly had no relation to his work, and then last year when we finally booked a 2 week cruise to Alaska we had to cancel it after they found his tumor a month before we were supposed to go.
So in the end how do I feel about his productivity? Yes, he enjoyed it, but he also killed himself trying not to disappoint people or to break deadlines.
And as I sit here with the dogs on July 4th, I think was it really that important to add one more book review to his CV or to do one more tenure letter as a favor for someone he never met? I'm glad his peers all loved him for the reliable genius that he was, and I don't know how he feels wherever he is now, but I am very, very bitter.
Yes, he was a great academic mentor and collaborator, but the price for all that frenzied output was me, and there's a part of me that will never forgive him for it, because he died right after he promised to slow down and enjoy life itself more.
So think about it, members of the "academy." All that talk about US News rankings and SSRN citations. Do you REALLY think stuff like that is life and death to your loved ones? I think most of them would sacrifice one more line on your resume for one more day of quality time with you. I know I would. But it's a bargain I can't make any more.
I know that pre-tenure and post-tenure are different worlds, but in Andy's case getting tenure didn't relax him a bit. It only spurred him on to work harder to prove, I think mostly to himself, that he really did deserve it. And it never stopped, because he could always find another reason to choose work over play, becoming active in the ABA, signing on to yet another new project where he could work with good friends or meet exciting new people, and of course lately, brainstorming ways to keep his law school competitive.
I'm not saying Freud was wrong when he said you need both love and work to be happy; in fact, my own work is one of the factors in keeping me sane now, but I believe equally strongly in the Golden Mean. I know that Mean differs for everyone, but Andy always found a reason to keep the needle tilted very far to the work end. I know that kept him happy, but love always involves other people, and anyone who cares about that other part of the equation would do well to remember that if you always decide to choose the work side of the balance you run the risk of having no balance at all.
Friday, June 27, 2014
From Posner's recent long and fascinating interview:
"I've changed my views a lot over the years. I'm much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason, published in 1992, which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things. I've become much more concerned with long prison sentences; softer on drugs; more concerned with consumer protection, the environment and economic inequality; less trustful of purely economic analysis—the last partly because of the crash of 2008 and the ensuing economic downturn. That shook some of my faith in economic analysis. And developments in psychology have required qualification of the "rational choice" model of economic behavior. So my views have changed a lot. You don't want a judge who takes a position and feels committed to it because he thinks it's terrible to change one's mind."
I remember Posner's Holmes' lectures at HLS a bazillion years ago, when he suggested that it's not likely that philosophers will be able to change the moral positions of many people who read their work. I'm wondering if in light of the identified changes above, he would change his mind about *that* and attribute any of the changes to having been persuaded by normative legal/political theory--maybe having Martha Nussbaum as his friend and colleague has had some effect too. Anyway, it's an interesting array of things to have changed one's mind about, and I guess the fact that Posner changes his mind publicly is a reason I quite like him. One of my intellectual heroes, Jeffrie Murphy, made a noble career out of changing his mind, seemingly every six months, about matters of punishment theory. Posner's public volte-face (or other admissions) strikes me as the self-laceration we academics should all be willing to inflict when the situation warrants.
P.S. In related Posner-watching, I couldn't help but notice his reaction in Slate to Orin and by extension to Riley v. California, which amounts basically to: "Pfft. What's the BFD? I wrote that opinion two years ago."
Update: I just came across this sharp response to the Posner piece in Slate by Will Baude.
Sunday, June 15, 2014
Marital Infidelity and the Public/Private Divide
I've just read this U.S. News editorial, suggesting that the American public has come full circle in its approach toward infidelity of public figures. It echoes some thoughts I had after watching a few episodes of Scandal, House of Cards, and The Good Wife. All three shows are deeply invested in exploring the public/private divide, and in particular, the connection between sexual infidelity and public political performance. But each of the shows does it a bit differently.
If the editorial is right, then we've seen the rise and fall of American concern with infidelity--from the indifference toward Kennedy's extramarital affairs to today's indifference to Vance McAllister's kiss. And during the heyday It seems that the combined message from the Clinton, Wiener, Spitzer, Petreaus et al. affairs is that evidence of marital infidelity has some bearing on one's function as a public citizen.
To try and understand why, let me borrow a seemingly-unrelated exaple: the Paul Ryan sub-3 marathon lie. While the fib itself was ridiculous--as an endurance athlete, the idea that Ryan wouldn't remember if he ran a 3-hour or a 4-hour marathon is utterly ludicrous to me; I remember my time in big races down to the seconds and so does everyone else I know--it did make me wonder what possible reason a vice-president-hopeful would have to brag, truthfully or falsely, about an athletic achievement. Presumably, the ability to effectively run the affairs of the state doesn't depend on one's physical endurance. Except for the following:
1) Our gendered perception of leadership means that a male politician's performance is a reflection of his masculine prowess, which includes impressive athleticism.
2) Running a marathon, especially in an impressive time, is a task that requires dedication, discipline, self-deprivation - all qualities that fit our somewhat Calvinist idea of good leadership.
3) We look for something admirable and cool in people we vote for - we want to like them as people. Therefore, any trivia about their personal life that makes them look good is acceptable and vice versa.
Similarly, it would seem that, if marriage infidelity is a problem for people holding public office, it's because it tells us something about their ability to lead. Let's see if the Paul Ryan rationales I thought about hold up:
1) How we treat infidelity is closely related to our construction of masculinity. Is a "real man" one who holds "decent family values", which include sexual fidelity, or one who possesses sexual prowess and is attractive? The media might've had something to do with the difference in which Kennedy and Clinton were treated for their respective indiscretions, but it's also about changing times and changing perceptions of masculinity.
2) As far as what we can learn from people's private behavior about their public performance, look at this interesting poll. Apparently, in the aftermath of the Clinton/Lewinsky affair, "the American public has substantially changed its view of Clinton as an individual but barely readjusted its perception of President Clinton as a political leader." If public opinion changed later, it was because of the concerted top-down effort made by Ken Starr to blemish Clinton and push for an impeachment hearing.
Think, on the other hand, about Petreaus, whose professional capability and talent was never in question (he's doing fairly well in academia and consulting). There was some effort to argue that his infidelity reflects serious problems with the ability to keep secrets and confidentiality, which had direct bearing on his military position.
3) Take a look at this anti-Harold Ford ad:
Yes, there's some effort to tie his sexual indiscretions to his political performance, but you know what? It's mostly about communicating the message that he's simply sketchy, unpleasant, unlikeable.
There seems to be a lot of top-down media messaging about this in an effort to either predict how "ordinary Americans" feel about infidelity or dictate their opinion. And in that respect, it may be that real media reports of infidelity are not all that different in their messaging agenda than fictional ones. And as in real life, the messaging in fiction is far from consistent. In three shows that make politician infidelity the focus of the plot, it's treated in three dramatically different ways:
The Good Wife plays a lot with, but does not fully problematize, the political double standard. It's fairly clear that the protagonist's husband, a politician caught in a prostitute scandal, has committed an original sin, and the show consistently portrays him in an unsympathetic light. By contrast, his separated-but-not-yet-divorced wife, who is clearly attracted to her boss but does not consummate this attraction, is portrayed very positively. Lots of gender double standard here, and lots of equating people's private behavior and public performance.
Scandal hammers a self-contradictory message in on each episode: Cheating is the ultimate original sin; nothing is worse; while murder, political corruption, and a million other pecadillos can be "fixed", sexual infidelity is the ultimate dealbreaker, understood implicitly as a valid and legitimate reason to end a marriage. At the same time, virtually every episode offers an example of sexual indiscretion, highlighting the message that this is prevalent, natural, and inevitable behavior. So, common and unavoidable, while simultaneously being condemned and unforgivable. This is a particularly interesting message in a show that attempts to portray a mild Republican presidency in a post-racist, post-homophobic world (the Chief of Staff is openly gay, married to his partner, and has adopted a baby; a powerful wheeler-and-dealer is a Black woman.) We've presumably done away with race and sexual orientation, but sexual hypocrisy is alive and well.
Finally, House of Cards has a Macbeth-like instrumental approach to politicians and sexual indiscretions: for the reigning couple, if they use their indiscretions wisely and adopt a "don't-ask-don't-tell" approach about them at home, it's all part of their general political ruthlessness. The extramarital sex in itself is not a moral failing; it's merely another expression of the corruption, selfishness, and ruthless ambition.
What to make of all this? Has television made us more indifferent to marital infidelity, or were we always pretty indifferent and just swayed by top-down smear campaigns? I'm not sure. I also haven't done a Democrat-vs-Republican scandal analysis, and I also don't know if the media's tendency to smear some people and to ignore others' infidelities has to do with other markers of class and charisma. You tell me. But I find this an interesting case study of how indicia of personality--if marital infidelity provides such indicia--are used in contradictory and complex ways to construct people's public image.
many thanks to Jonathan Korman for his interesting thoughts and contributions to this post.
Friday, June 13, 2014
The Two Newest Faces of the Problem with the Lack of the Rule of Law - a Newborn and a 20-month Old
As a tangential follow-up to my previous post concerning the use of a crime against humanity charge as a way to bolster the rule of law, another heart-wrenching story is gaining international attention.
Meet Maya, the first U.S. citizen to be born in a Sudanese prison while her mother was shackled to prison walls. Meet Martin, Maya's twenty-month old bother, who is probably the second youngest U.S. citizen to be sitting in a Sudanese prison. Their father is a U.S. citizen. Their mother is Meriam Ibrahim, a doctor and a Sudanese citizen, who has been sentenced by a Sudanese court to 100 lashes for adultery because she married a non-Muslim man and to death by hanging (once Maya is weaned) for apostasy for refusing to denounce her Christian faith. Ibrahim was found guilty of apostasy because it was determined that she was Muslim even though she testified she was Christian and raised by her Christian mother when her Muslim father abandoned the family. The trial raises due process issues since three of Ibrahim's witnesses were not allowed to testify.
There are clear human rights violations and violations of Sudanese law. Ibrahim's imprisonment violates the International Covenant on Civil and Political Rights, which, since Sudan has ratified the treaty, guarantees that all Sudanese citizens "have the right to freedom of thought, conscience and religion" and due process of law. Sudan has also ratified the African Charter on Human and People's Rights which also guarantees freedom of religion and due process. Indeed, Sudan's own 2005 interim constitution specifically guarantees the "right and freedoms enshrined in international human rights treaties" ratified by Sudan. Ibrahim's case (and the impact on her children) graphically illustrates the rule of law problem - the laws are in place but not enforced.The pressure from the international community caused some movement, albeit ineffectual as it currently stands. A few weeks ago the Sudanese government pledged Ibrahim's release, but recanted a few days later. This probably is not surprising given the government is headed by Omar al-Bashir who has an outstanding ICC warrant for CAH for his actions in Darfur. What can be done? What should be done? Perhaps with continued and more world-wide pressure (which should be headed by the U.S. given that some of the youngest U.S. citizens - Maya and Martin - are sitting in deplorable conditions), there might be another small step forward even if it simply means more discussion about and attention given to the lack of the rule of law and the consequential human rights violations of women and children. More legal attention and monetary support should be put in place to uphold the rule of law.
Tuesday, June 10, 2014
What teaching issues are you thinking about this summer?
Our faculty is having a lunch discussion this week about teaching. I simply love to teach. And, as a newly tenured professor who recently went through the tenure process, I have been reflecting a lot on my teaching. There are many areas where I could improve. In particular, this summer I have been thinking about the following three issues. While these matters have been previously discussed, I am interested in your current thoughts on each (and any other teaching issues on your mind this summer):
1. Unprepared Students: To this day, every time I call on a student, my heart skips a beat in hopes that the student is prepared. Sometimes I think I am as nervous as the students before I call out a name. I do feel that it is essential students learn that they must be prepared. I have heard of different ways to deal with unprepared students. Some professors wait for the student to read the case during class. Others assign reading panels for the week. Others call on students in alphabetical order. I am old school - I randomly cold call. If I do call on a student who is unprepared, I require them to call on another student to cover for them (like a life line). My hope is that the fear of being forced to put another student in the hot seat is scarier than coming to class unprepared. I have had moderate success with this approach. I have also toyed with counting unprepared students absent for the day. I would be interested to hear what others do.2. Internet Use During Class: I think I may have somewhat given up on this. I try to call on students who are obviously surfing the web during class discussion. But, to be honest, when I was a law student I attempted to multitask in class too - I just didn't have the internet, but I did have crossword puzzles, letters and notes to write, readings for other classes to catch up on, etc. So, sometimes I feel a little hypocritical when I make too big of a deal about surfing the web during class. In one small seminar class, I didn't allow computers, and for that small class it worked very well. I had the most engaging student discussions when laptops were closed. I haven't tried the no computer rule with a big class yet. I am hesitant to do so because I often use the web during class discussion to look up statutes and other materials. Also, students have case briefs and other prepared materials on their computers and need access to them. But, I have toyed with the idea of a "no computer week." Has anyone done this and was it successful?
3. Taking Too Many Notes: This point is somewhat tied to #2 above. Recently, there was an interesting study that determined that students do better when they handwrite lecture notes rather than typing them. Basically, the study pointed out that people tend to type faster than write, so they are less judicious in what they type than what they write. Until I read this study, I hadn't given this matter a lot of thought. Perhaps I should be encouraging students to handwrite class notes.
Tuesday, June 03, 2014
The Internet and Violence on Campus
I want to thank Dan Markel and everyone at PrawfsBlawg for the opportunity to guest blog this month. As a regular reader, I am honored to officially join the conversation.
Because of the recent tragedy at the University of California, Santa Barbara, where Elliot Rodger murdered six students, I have been thinking a lot about violence in school. Although Rodger wasn't a current student and didn't use the internet to threaten one specific individual, his video messages posted on YouTube were clearly directed at students at the school. I have written about the intersection of the internet and school violence, but my focus was on K-12 public schools, not public universities. These cases raise complex First Amendment and due process challenges. When does a public school have the authority (or the requirement) to regulate off-campus speech that bullies or threatens other students or school officials? As for K-12 public schools, the courts are all over the board in their decisions and the U.S. Supreme Court has yet to rule on the issue. Because the pedagogical goals are different in college than in K-12 school, these issues become even more complex in the public university setting.
In a recent case, Tatro v. University of Minnesota, the Minnesota Supreme Court held that a public university could discipline a student enrolled in a professional program for posting inappropriate comments on Facebook that violated her academic program rules without impinging on her free speech rights. The University disciplined Tatro, who was enrolled in the undergraduate mortuary science program, for posting off-colored remarks about a cadaver in an embalming lab. The Court only sided with the University because the University's rules were narrowly tailored and directly related to the professional conduct standards of the student's program. Although this case did not raise issues about violent comments created off-campus, it does bring to the forefront issues that desperately need resolution.
First, does the Tinker v. Des Moines Independent School District standard, which, in part, allows schools to regulate speech that substantially impinges upon the rights of others, apply to speech that students make off-campus and post on the internet? If so, does that same standard apply to college students? I have argued that the Tinker standard should apply to K-12 public schools, but the analysis seems different for public universities. Not only are most college students legally adults who should be afforded more speech protection than minors given their presumed cognitive development, but colleges themselves are supposed to be bastions for the free exchange of ideas. Thus, even if the Tinker standard applies to off-campus speech in the university setting, the bar should be much lower. But, even with a lower bar, college officials should be required to take action when there are threats or extreme bullying - of course, what constitutes "extreme bullying" (my phrase) raises a host of other issues.
Given this digital age and that social-networking sites pervade people's daily lives, students will undoubtedly continue to use the internet as the forum in which to air grievances, bully, make threats, and even post suicide notes. I would be interested to hear what others think about how schools should respond to these issues.
Saturday, May 31, 2014
How do we know that the version of any case, statute or regulation we read is an accurate one
The recent kurfuffle about Supreme Court Justices changing the text of already released opinions raises the larger question of how we can ever know whether the version of any statute or case or regulation we are reading is the “final one.” It also highlights the problem of of linkrot that is also affecting the reliability of judicial opinions.
Given how important a problem it can be if the text we rely on is wrong, its interesting that authenticating information places no role in the legal curriculum. I never gave it a thought until one of my dissertation advisors asked me to write a methodology section that explained to lay readers “where statues and opinions come from” and “how do we know they are reliable.” Here's a highly abbreviated version with some helpful links (reliable as of posting, May 31, 2014).
For statutes, all roads led to the National Archives and the Government Printing Office which operates the FDYS. The National Archives operates the Office of the Federal Register (OFR), which receives laws directly from the White House after they are signed by the U.S. President..” The accuracy of these texts is assured by “[t]he secure transfer of files to GPO from the AOUSC [that] maintains the chain of custody, allowing GPO to authenticate the files with digital signatures.”
The GPO assures us that it “uses a digital certificate to apply digital signatures to PDF documents. In order for users to validate the certificate that was used by GPO to apply a digital signature to document, a chain of certificates or a certification path between the certificate and an established point of trust must be established, and every certificate within that path must be checked." Good news.
The GPO has developed a system of “Validation Icons”--explained further on the Authentication FAQ page.
Editors at the OFR then prepare a document called a “slip law,” which “is an official publication of the law and is admissible as ‘legal evidence.’” It is the OFR that assigns the permanent law number and legal statutory citation of each law and prepares marginal notes, citations, and the legislative history (a brief description of the Congressional action taken on each public bill), which also contains dates of related Presidential remarks or statements.” Slip laws are made available to the public by the GPO online.
The system is more complicated when it comes to judicial opinions. Each of the Eleven Circuit Courts of Appeal issues its own opinions. For example, this is the website of the Fifth Circuit Court of Appeals, The GPO has joined with the Administrative Office of the United States Courts (AOUSC) “to provide public access to opinions from selected United States appellate, district, and bankruptcy United States Courts Opinions (USCOURTS). Currently the collection has cases only as far back as 2004As indicated by the term “selected,” this database only contains some of the federal courts.
The official source for the opinions of the U.S. Supreme Court of the United States is the U.S. Supreme court itself. Pursuant to 28 U.S.C. § 673(c), an employee of the U.S. Supreme Court is designated the “Reporter of Opinions” and he or she is responsible for working with the U.S. Government Printing Office (GPO) to publish official opinions “in a set of case books called the United States Reports.”
According to the Court, “[p]age proofs prepared by the Court’s Publications Unit are reproduced, printed, and bound by private firms under contract with the U.S. Government Printing Office (GPO). The Court’s Publications Officer acts as liaison between the Court and the GPO.” Moreover, “the pagination of these reports is the official pagination of the case. There are four official publishers of the U.S. Reports but the court warns on its website that “[i]n the case of any variance between versions of opinions published in the official United States Reports and any other source, whether print or electronic, the United States Reports controls.”
To some exent this latest information suggesting that there may be different versions of opinions at different times fits in well with the history of the court. As most of us know, the Supreme Court did not have an official reporter until the mid-nineteenth century and did not produce a written opinion for every decision. Moreover, it has only been recording oral arguments since 1955 and although now issues same day transcripts this was hardly always the case. Also now available are the remarks that the Justices make when reading their opinions. But, and no link is missing, I don't have one, in hearing Nina Totenberg give a key note presentation at ALI in 2012 about her days at the court, she pointed out that when she began covering the Court this was not available. And that it was not unusual for notes to differ on exactly what the Justices said.
Friday, May 23, 2014
Report from ALI Annual Meeting--and What Justice Ginsberg is Reading
I’m just back from the 91st annual meeting of the American Law Institute in Washington, DC. So much happened in a three day period that it’s hard to do justice—I know that many others have blogged and tweeted. In keeping with the theme of what I’ve been blogging about, higher education, I will report that the current state of legal education was a palpable presence and a frequent topic of conversation. Whether it was ALI President Roberta Cooper Ramointroducing Associate Academic Dean Ellen Clayton of my neighbor institution, the University of North Texas, UNT Dallas College of Law, as someone doing a remarkable thing to open a new law school to Justice Breyer's charming refusal to be drawn into either a criticism of legal education or a comment on the current complaints being made against it.
It is also my honor to pass on that Justice Ruth Bader Ginsberg reported that she was reading Wings of Freedom: Addressing Challenges to the University while giving its author, former president of Stanford University Professor Gerhard Casper, the ALI’s Distinguished Service Medal. I have ordered but not yet received the book, so here is the blurb:
“From affirmative action and multiculturalism to free speech, politics, public service, and government regulation, Casper addresses the controversial issues currently debated on college campuses and in our highest courts. With insight and candor, each chapter explores the context of these challenges to higher education and provides Casper’s stirring orations delivered in response. In addressing these vital concerns, Casper outlines the freedoms that a university must encourage and defend in the ongoing pursuit of knowledge.”
ALI is always inspiring--like everyone I had no idea as a law student that the Restatements were actually the product of so much collective and collaborative work. It is also a "how to" of running an event at which every attendee is used to being in charge either as a Judge, a Professor, a General Counsel or a Partner.
Saturday, May 03, 2014
Sen Elizabeth Warren's New Memoir of Special Interest to Law Profs
There are a lot of reasons why law professors should read Senator Elizabeth Warren’s recently published memoir--“A Fighting Chance." The top two are that it's well-written and frequently very funny. (for full effect--I suggest the audio version that the Senator narrates herself).
Beyond that, not only is it a lucid explanation of the banking industry’s efforts to limit the ability of creditors to make a fresh start through declaring bankruptcy, it is an account of her extraordinary academic career--one that she achieved without any of the traditional criteria such as academic pedigree, powerful mentors, family connections, prestigious fellowships or judicial clerkships. For those unfamiliar with her as Bankruptcy Professor-here are some posts she has made on the Credit Slips blog.
She also closely documents her struggles to balance family, both her children and elderly parents (and pets). There is a lot for law professors to unpack here--including how her interest in the people behind the laws has shaped her career.
But more generally, I look forward to discussing how critical it is for the future of legal education that Senator Warren succeed in convincing her colleagues of the need to reform the way higher education is financed. Whether she herself has the best plan for fixing student loans—well different people have different views-including just eliminating them. But unless we can stop the ever increasing cycle of debt that is making our students’ lives so difficult, any of the important changes that need to be made in legal education risk being about as effective as bailing out a sinking boat with a bucket that itself has a hole in it.
As I will elaborate later, I’m very optimistic that we can all create a program about which students can say 5, 10, 15 years later that they are better off for having gone to our law school. But we’re probably not there now. Rather, we are in a situation similar to being attacked by a hive of bees. Every individual bee, lack of job opportunities, bimodal salary distributions, drop in state support for public institutions, lack of transparency about student outcomes, out dated curriculums, disconnect between the classroom and the practice of law, imposition of a value system that drives law students into disproportionate levels of depression that may well follow them throughout their careers, is capable of inflicting painful or even lethal stings. But the breach in the hive comes from a level of student loan debt that cannot be supported by any reasonably obtainable career path. It’s not a perfect metaphor—student loan reform is necessary but not sufficient to developing a legal education that better prepares our students for the important role they will play in society.
Thursday, May 01, 2014
UF Law's (and My) New MOOC: The Global Student's Introduction to US Law
I am now officially part of a MOOC, which went online today. It has been a learning experience (!!), with the biggest lesson being that it is nowhere as easy as you might think to put one of these courses together. I plan to blog about the experience at length when I get a chance. For now, though, you might be interested in viewing the University of Florida Law School's foray into the great MOOC experiment: The Global Student's Introduction to US Law.
The course description is as follows:
In this course, students will learn basic concepts and terminology about the U.S. legal system and about selected topics in the fields of constitutional law, criminal law, and contract law. A team of outstanding teachers and scholars from the University of Florida faculty introduces these subjects in an accessible and engaging format that incorporates examples from legal systems around the world, highlighting similarities to and differences from the U.S. system. Students seeking an advanced certificate study additional topics and complete assignments involving legal research that are optional for basic level students. The course may be of interest both to U.S. students contemplating law school and to global students considering further study of the U.S. legal system.
My Senior Associate Dean Alyson Flournoy spearheaded the project, and we had excellent technical assistance, which was crucial, by Billly Wildberger. My colleagues Pedro Malavet, Jeff Harrison, Claire Germain, Loren Turner, Jennifer Wondracek, and Sharon Rush all provided lectures, and our research assistant Christy Lopez is providing support with the discussion forums.
Wednesday, April 30, 2014
Of (Courtney) Love and Malice
Today Seattle Police released a note found on Kurt Cobain at his death excoriating wife Courtney Love. Based on her subsequent behavior, Love cannot have been an easy person to be married to. I've been researching Love lately for an article on social media libel that I'm writing with RonNell Andersen Jones. Love is not only the first person in the US to be sued for Twitter libel; she's also Twibel's only repeat player thus far. According to news reports, Love has been sued for Twitter libel twice , and recently she was sued for Pinterest libel as well.
Love's Twitter libel trial raises interesting issues, one of which is how courts and juries should determine the existence of "actual malice" in libel cases involving tweets or Facebook posts by "non-media" defendants. As you probably recall, the US Supreme Court has held that the First Amendment requires public figures and public officials to prove actual malice--i.e., knowledge or reckless disregard of falsity--before they can recover for defamation. And even private figure defamation plaintiffs involved in matters of public concern must prove actual malice if they wish to receive presumed or punitive damages. However, US Supreme Court jurisprudence elucidating the concept of actual malice predominantly involves “media defendants”—members of the institutional press—and the Court’s examples of actual malice reflect the investigative practices of the institutional press. Thus, the Court has stated that in order for a plaintiff to establish actual malice, “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." [St. Amant v. Thompson] Actual malice, for example, exists if a defendant invents a story, bases it on ‘an unverified anonymous telephone call,” publishes statements “so inherently improbable that only a reckless man would have put them in circulation,” or publishes despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports." Id.
These examples have little resonance for “publishers” in a social media context, many of whom, like Love, post information spontaneously with little verification other than perhaps a perusal of other social media sources. The typical social media libel defendant is less likely than her traditional media counterpart to rely on informants strategically placed within government or corporate hierarchies or to carefully analyze primary sources before publishing. Moreover, the typical social media defendants has no fact-checker, editor, or legal counsel and is less likely than institutional media publishers to have special training in gauging the credibility of sources or to profess to follow a code of ethics that prizes accuracy over speed.
The issue Courtney Love's libel trial appears to have raised is whether it constitutes reckless disregard of falsity if a defendant irrationally believes her defamatory accusation to be true. I say "appears," because one can only glean the issue from media accounts of Love's libel trial--the first full jury trial for Twitter libel in the US. The jury found that Love lacked actual malice when she tweeted in 2010 that her former attorney had been "bought off." Specifically, Love tweeted: “I was f—— devestated when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote[sic].” Holmes sued Love in California state court for $8 million, arguing that the tweet accused Holmes of bribery. Love contended that her tweet was merely hyperbole. News accounts of the jury verdict in Love’s favor, however, indicate that the jury found that Love did not post her tweet with “actual malice." The jury deliberated for three hours at the end of the seven-day trial before concluding that the plaintiff had not proved by clear and convincing evidence that Love knew her statements were false or doubted their truth.
The Love case doesn't set any precedents, but it raises interesting issues for future cases. According to court documents and news accounts, Love consulted a psychiatrist for an “addiction” to social media. Certainly Love’s actions in the series of defamation cases she has generated do not seem entirely rational, but there is no “insanity defense” to a libel claim. Yet the determination of whether a defendant had “actual malice” is a subjective one, meaning that it is relevant whether the defendant suffered from a mental illness that caused her to have irrational, or even delusional, beliefs about the truth of a statement she posted on social media. It seems problematic, however, for the law to give no recourse to the victims of mentally disordered defamers pursuing social media vendettas based on fantasies they have concocted. As a practical matter, this problem is likely to be solved by the skepticism of juries, who will rarely accept a defendant’s argument that she truly believed her delusional and defamatory statements. Or at least I hope so.
And in case you wondered . . . Love's first social media libel case involved her postings on Twitter, MySpace and Etsy calling a fashion designer known as the "Boudoir Queen" a "nasty lying hosebag thief" and alleging that the Queen dealt cocaine, lost custody of her child, and committed assault and burglary. Love apparently settled that case for $430,000. Love's third social media libel case involves further statements about the Queen that Love made on the Howard Stern show and posted on Pinterest. Some people, it seems, are slow learners.
Posted by Lyrissa Lidsky on April 30, 2014 at 06:30 PM in Blogging, Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (0)
Tuesday, April 29, 2014
"Shadows" and "Innocence," copyright and performance
Earlier, I wrote about the Ninth Circuit’s recent Garcia decision, which is turning out to be the copyright Ishtar* of 2014. One take on what is so rank about the opinion is that it flouts a basic copyright principle that performances (separately from the works they are based on) are not copyrightable.
But earlier this month, just after Garcia was decided, the District of Nevada issued a far less remarked-on opinion entering summary judgment in favor of Teller (the silent, shorter member of the famed Penn & Teller duo), who argued that a YouTube video by Dutch magician Gerard Dogge infringed Teller’s copyright in his illusion “Shadows.”
At first glance, it’s hard to tell these cases apart. If Garcia was wrongly decided because (in large part) it erroneously held that performances are copyrightable, then shouldn’t Teller have lost as well? The answer is no, but it requires a closer look at the circumstances of these deceptively different cases. And the value of taking that closer look is to parse out more carefully what does, and does not, work about the “performance is not copyrightable” aphorism. More below the fold.
It’s worthwhile to give a quick sense of the infringement in Teller. Teller’s “Shadows” is a very elegant and affecting illusion that begins with a rose on a stand with a light in front of it causing a shadow of the rose to be projected onto a screen behind it. Teller then appears, and cuts away the petals of the rose’s shadow, and when he does so, each corresponding petal on the actual rose falls as well. In Dogge’s video, he performs a virtually identical illusion with nearly identical set dressing and materials (indeed, the name of his illusion is “The Rose and Her Shadow”), though there are some slight variations (Teller uses a rose in a vase, while Dogge’s is in a bottle; Teller’s and Dogge’s performances end with different performative flourishes).
That said, the way to reconcile Garcia’s wrongness with Teller’s (relative) okayness lies in the nature of the latter’s asserted copyright interest. Teller registered his work, “Shadows,” as a dramatic work (actually, "dramatic pantomime" in the registration certificate) with the Copyright Office in 1983 (though he had been performing the illusion since 1976). The registration comprises a detailed description of “Shadows” to the minutest detail. By contrast, Garcia’s purported copyright in “Innocence of Muslims” derived solely from whatever originality her performance added to the underlying words written by the screenwriter.
Moreover, Teller’s registration of “Shadows” also clarifies and simplifies his authorship status with respect to the work. He is solely listed as the dramatic work’s author, because he is—the entirety of “Shadows” is the product of his creative mind alone. Again by contrast, Garcia’s authorship status with respect to “Innocence” is a wreck. She is at best one of many joint authors of the work, though her relative contribution to the final product is vanishingly slim.
Still, these two cases raise a puzzle: Is performance copyrightable or isn’t it? I don’t think we need to get too Clintonian about this (i.e., no need to default to “it depends on what ‘performance’ means” hair-splitting). Teller didn’t hold that performances are generally copyrightable. It held that Dogge’s YouTube video amounted to an unauthorized public performance of Teller’s copyrighted dramatic work.
If you want to get really technical about it, Teller’s claim was not that Dogge’s video was substantially similar to Teller’s performance of “Shadows” (indeed, there are many different performances of “Shadows,” though they are all nearly identical), but rather that it was similar to the dramatic work “Shadows” that was embodied in the copy Teller filed with the Copyright Office back in ’83. A performance is something that you can do with a work, just as you can reproduce or adapt or distribute copies of it, it’s not the work itself, and only works are copyrightable.
Throughout this post, I’ve been saying that Teller seems basically right. The reason I’m equivocal lies in one part of the opinion that went largely unremarked. The court remarked that the defendant’s work was substantially similar to Teller’s in part because “both performances are based on the incredibly unique concept of a performer cutting parts of a rose’s shadow, thereby cutting the corresponding parts of a real rose.”
Putting aside the court’s problematic usage of “performance” and “performer”, what raises a red flag about this passage is the court’s suggestion that Teller’s copyright extends past his specific expression of the particular dramatic work articulated in the deposit copy he included with his copyright registration, and applies generally to the “concept” embodied in his dramatic work.
This phrasing seems to flout copyright’s good old idea/expression dichotomy, though as with all idea/expression issues, the distinction is a hard one to draw. I’m OK with the outcome in Teller because Dogge’s video mimicked Teller’s work down in detail with only a few exceptions. But one could imagine variation on “Shadows” that are not as slavish in their copying. Consider a variant where a garrulous magician cut the petals from the projected shadow of a sunflower, causing the real thing to fall. Or more abstractly, imagine a version where a talkative illusionist came out and cut the limbs off of the projected shadow of the human effigy of some great historical villain (Hitler, Stalin, Donald Sterling), causing the limbs on the actual figure to fall off. I think the latter two would be far enough from Teller’s work to be allowable, even though they are based on the “incredibly unique concept” that animates “Shadows.”
Finally, if Teller is (mostly) rightly decided, does that mean that magic tricks are copyrightable, contra the major premise of Jacob Loshin’s really cool article on informal means of protecting illusions in the magician community? No way. What Teller owned was the copyright in a dramatic work that happened to contain a magic trick. The underlying idea that animates the specific expression of the performance remains, in my opinion if not the D-Nev’s, fair game.
*This 1987 movie, featuring Warren Beatty and Dustin Hoffman lost in the Sahara Desert, was generally considered unspeakably awful and became a legendary Hollywood bomb. This tends to be my go-to reference for Hollywood disasters because, unlike Waterworld or Cutthroat Island or Heaven’s Gate, I actually saw Ishtar in the theater when I was a kid. God knows why. Maybe it was some form of punishment.
Wednesday, April 09, 2014
A Typology of Authorship in Highly Collaborative Works
To paraphrase Anna Karenina for the kajillionth time, all copyright scholars think Garcia was wrongly decided,* but every copyright scholar thinks so in their own way. When the Ninth Circuit held a couple months back that an actress has a “copyright interest” in the film in which she briefly performed, the (understandably) apoplectic reaction was as entertaining as the decision was mysterious. I’m on board with the general reception that the Garcia opinion was the copyright equivalent of sitting on a whoopee cushion, so instead of beating that long-deceased equine, I will instead explore a related issue raised by the case.
Copyright’s notion of authorship works great when we’re dealing with the classic, solo Romantic author: Some genius artist sits alone in a room painting a masterpiece all of her own invention, and—boom—thanks to section 201(a), the copyright in that work vests in her, making her the author of the work for the duration of the copyright, and the owner of the work until she transfers her copyright.
But a much harder question arises when we complicate the story of authorship to include multiple collaborators on a project. The solo writer or painter is clearly the author of their work, but when we imagine a fashion photograph involving a photographer, model, makeup people, and numerous technicians, the notion of authorship becomes far murkier. This is, then, one of the major issues raised by Garcia: how do we allocate authorship when many people make expressive contributions to a final creative product?
So this post seeks neither to praise Garcia (obv.) or to bury it (that’s been done amply and adequately already). Instead, below the fold, I want to develop a typology of the different kinds of creative contributions people make to works, and how these different kinds of contributions might give rise to what we call copyright authorship. Importantly, this is not a normative claim that all of the contributors in these classes are or should be entitled to joint or freestanding copyrights, but merely to organize and make sense of the different kinds of contributions to works that could plausibly be understood to be the result of creative authorship.
First is what I will call visionaries. This is a grandiose term because I can’t at present think of a less pretentious one, but I mean it simply to refer to the person who is in charge of the overall vision of a highly collaborative work of authorship—the director of a film, the producer of a sound recording, and perhaps the photographer of a sophisticated, artistic photograph (hence there will be no rehashing of the Ellen’s-selfie debacle here).
The visionary comes closest to the person who fits the Romantic notion of authorship of a work. The director of a film, for example, typically has the initial vision of and the most creative control over the content of the entire film. Hence courts have tended to conclude that (presuming we are to regard works as unitary rather than comprised of many different subworks by many different artists, which Garcia surprisingly called into question) the person exercising this visionary function is the presumptive author of a highly collaborative work. E.g., Burrow-Giles v. Sarony (U.S. 1884) (holding that Napoleon Sarony was the author of a famous photograph of Oscar Wilde because Sarony determined the setting, lighting, subject placement, and other features of the work).
Second, consider performers—actors in films, models in photographs, singers and session musicians in sound recordings). It was the Garcia court’s willingness to consider performers as authors of works that was so jarring to settled understandings of copyright (and also to the Copyright Office, which had rejected Garcia’s application for a copyright in the same performance that the Ninth Circuit held was protected).
I share the intuition that something seems very wrong about extending Garcia a copyright in her performance. But what complicates this is that I don’t have that same intuition in the context of sound recordings.** It does not seem obviously wrong to me that singers and musicians should not be the owner of the sound recordings they create at a studio. Their performances vivify the otherwise highly abstracted musical works on which they are based, and comprise the substance of the recorded sounds themselves. The seeming plausibility that musical performers might have a copyright in their sound recordings makes it a little harder to reject out of hand the notion that dramatic performers can never have a copyright interest in the audiovisual works to which they contribute.
The third category is the technician. This is the person who actually causes sounds or images to be fixed in the tangible medium of expression that is required for federal copyrightability—the cinematographer in film, the sound engineer in a recording studio, or the person taking a photograph (modernly, this is usually the visionary as well, but this was not always the case—Napoleon Sarony, for example, never touched a camera in his life).
A colleague once pointed out to me a formalist argument for why such technicians should have authorial status. The work in photographic works, audiovisual works, and sound recordings is pretty much indistinguishable from the fixation. So for a sound recording, the work is the actual sounds fixed in the studio’s digital audio tape. By this logic, then, the person who is actually creating the work is the person who is actually fixing the sounds (or in the case of other works, fixing the images).
This argument works well when the technician also makes crucial creative decisions about the work. The best example is the photographer. Eddie Adams or Manny Garcia (no relation to the “Innocence of Muslims” actress—as far as I know, anyway) are both the visionaries who imagine their photos (to the extent possible with photojournalism, which typically requires spontaneous creation) as well as the technicians who execute the fixation of their creative vision. Sound recordings are a harder case. Some sound engineers make creative contributions, while others act at the direction and discretion of producers. And the case where this makes the least sense is the cinematographer, who exercises great technical skill to operate the camera but who typically acts in the service of realizing the director’s creative vision (again, there are exceptions—Spielberg, for example, takes a relatively greater technical role in his films than most Hollywood directors).
The fourth and final category is the writer. This category will be populated only where the highly collaborative work is derivative of some other work—a screenplay, a musical work—so would exclude works like a painstakingly posed photograph. And it is beyond obvious that in order to create the film or sound recording at all, the creator of the derivative must get a license, either through bargaining (in the case of a film) or through section 115’s compulsory license provisions (in the case of a sound recording). But the fact of acquiring a license does not diminish the central role that the writer’s contribution plays in the creative impact of films or sound recordings. It just means that here, unlike with other categories, the copyright ownership issues are reasonably well demarcated and understood.
These categories—not meant to be exhaustive, but just illustrative—comprise four different ways that one might contribute to a highly collaborative work in a creative way that approaches copyright’s notion of authorship. One could contribute an overall guiding vision, or provide an original and electric performance, or supply the work’s underlying narrative structure, or contribute technical expertise in a thoughtful way that contributed to the aesthetic success of the final creative product.
The problem with acknowledging this multiplicity of forms of creative contribution for the purposes of law, though, is that copyright is ill-suited to manage the descriptive reality of authorship in highly collaborative works.*** This may suggest that Garcia is flawed pragmatically more than doctrinally. There may be some plausibility to the idea that a performance could be copyrighted, but the practical implications of going down that rabbit hole are just too messy to contemplate. So while the Romantic notion of locating authorship of all works in a single individual—visionary, technician, or whoever—may not square with the need to have a manageable notion of authorship (and, related, ownership). Hence this may be one rare instance in which Romanticism and pragmatism are on the same page.
*In all fairness, there were apparently a handful of Garcia supporters (other than members of industry groups benefited by the decision’s outcome).
**Based solely on casual empiricism, I think others share this intuition. I always ask my class (before we get into what law actually says about these things) who they think the author of a movie should be, and most people answer "director." But when I ask them who the author of a sound recording should be, the most common instinctive response is "the vocalist." No love for the producer, I guess.
***This may be a problem endemic to all property, actually. Real property law does ok with the idea of limited co-ownership, but once the owners of a given plot become too numerous, management problems and devaluation kick in. This is a particular problem for familial or tribal holdings over time.
Wednesday, April 02, 2014
A salience-bias defense of marginal law reforms
Hey y’all. It’s always good to be back guesting at Prawfs. I’m looking forward to sharing thoughts about property—physical, intellectual, and otherwise—over the course of the next month. I’ll kick it off with a news item that caught my eye today: The UK just announced a forthcoming reform to its copyright law. Among other things, British citizens and subjects are now free to—wait for it—make personal copies of legally acquired copies of digital media (e.g., eBooks, CDs) for format-shifting or backup purposes.
This aspect of the British copyright reform strikes me as a perfectly good and sensible idea (as did its other features, like broadening the UK notion of fair use), but response to it sounded more in the register of “meh” or “so what?” than “hallelujah.” After all, this part of the revision legalized conduct that most people assumed was already legal (and may indeed be legal in other countries with broader notions of users’ rights), was certainly widely underenforced (because it doesn’t make a lot of sense to spend resources breaking into people’s homes to see if they’ve made a nefarious illicit backup CD copy of, say, Fartbarf’s “Dirty Power”*), and was, in any event, largely a moot point thanks to the increasing marginality of the relevant technologies (because, as my students helpfully point out to me when I refer to this medium for experiencing music, who uses CDs anymore, Grandpa?).
And yet I think there is something interesting about the UK’s move, not so much for the substantive impact on copyright law or user practices, but about a strategy for how and why we may want to reform laws generally. I explore this notion below the fold.
The major justification for these reforms (which grew out of the very thoughtful Hargreaves Report, which, for what it’s worth, could be a model for US copyright reform, in the vanishingly unlikely event that any congressfolks are reading this) is simply that it makes sense to update law to reflect actual practices. By one estimate, 85% of people in the UK assumed that making personal use copies was already legal, and the practice is already widespread. On this explanation, the personal-use element of the UK's copyright reform is well-taken but inconsequential, like fixing a spelling error that didn’t really confuse anyone about the meaning of a sentence.
But there’s another, broader, reason why this reform might be good even—perhaps especially—for the kind of copyright industries who were likely to resist it. This kind of conspicuous gap between social norms and practices on one hand and regulation on the other can be an embarrassment to the law that exacts outsized costs in terms of credibility. The reason that law/norm disjunctures can be especially problematic is that non-specialists may generalize about the entire law based on one conspicuous silly or outdated provision. This is a species of salience bias or the availability heuristic. Observing one particularly notable example about a place or, say, a body of law can falsely lead us to believe we have a true sense of its overall character.
The UK group Consumer Focus made just such a leap in this setting, pointing out that the illegality of innocuous conduct like making personal backup copies had caused the credibility of all “UK copyright law to fall through the floor.” This move—deriving the character of an entire body of law from its worst provisions—is not limited to copyright. A roughly analogous phenomenon is the tendency of laypeople to assume that when one (purportedly) guilty man goes free, that the criminal law system is generally very lenient—despite the overwhelming rates of conviction for accused criminals.
This is sort of like synechdoche in law—using a part, and especially a flawed or discordant part—to represent the whole. And what it means for law reform, and in particular the reform of statues like the Copyright Act, is that law/norm disjunctures may be more problematic than is usually appreciated. We generally tend to think that these kind of disparities between law on the books and actual practices are bad because of the people they unwittingly regulate. Out of date laws could impose sanctions for conduct that has become widely, imposing outsized penalties on unsuspecting people for trivial violations. But the UK example reminds us that the law/norm gap may be a major problem for law itself, especially in light of the tendency of lay observers to infer from a single out-of-step provision that an entire regulatory structure is flawed.
*Yes I used the name of this band in this illustration for amusement (mainly my own). But also yes, there actually is a band called Fartbarf, and perhaps more surprisingly, they actually have appeal once the juvenile humor value of their name fades, assuming that you’re into 80s-inflected synth-pop performed by a bunch of guys in gorilla masks. And hey, isn’t everyone?
Sunday, February 09, 2014
Misusing and misunderstanding the language of law
I do not agree with everything in this Dahlia Lithwick piece on the Dylan Farrow/Woody Allen mess. But she makes a couple of good points about the unfortunate things that happen when the language of law gets abused in the court of public opinion (or, as she calls it, "litigation by hashtag").
First, she has a good takedown of this incoherent nonsense that Allen is not the only one who enjoys a presumption of innocence; Farrow does, too--a presumption of innocence of making false allegations against Allen. As I tell my students, presumptions are about burdens of proof; a presumption of innocence means that those attempting to prove non-innocence bear the burden of offering evidence (burden of production) of non-innocence and the burden of convincing the factfinder (burden of persuasion) of non-innocence. To accord a similar presumption of innocence to the accuser is to shift the burden of proof to the accused to offer evidence and convince the factfinder to the accused party that the accuser is untruthful. But you can't have it both ways. The reason for the presumption (and thus the assignment of the burdens) is because the party proving non-innocence is asking a government body (the court) to formally deprive the accused of life, liberty, or property. It is that threat of official governmental sanction that properly places the burden on the accuser.Of course, those who defend Allen via the shibboleth of "presumption of innocence" similarly misunderstand the concept. Farrow's accusations are evidence, and one could read her account and the other reports of her accusations and conclude that Allen did what she accuses him of doing. One can disbelieve her story or insist it is not enough (especially by throwing around a second shibboleth--"beyond a reasonable doubt"). But one cannot claim that her story is not evidence and thus at least an attempt at the burden of production.
Second, Lithwick criticizes the very idea of the "court of public opinion," because it is a court unbounded by any rules--and a court is defined by its rules. Those who speak of that court never identify what evidence is admissible (e.g., internet trolls calling Farrow a "bitch"?) , what the standards and thesholds are, what to do about lost evidence, what role cross-examination plays, and even who bears the burden of proof. Lithwick's point is that the court of public opinion is often nothing more than opinions (often uninformed) dressed up in "fancy talk" of burdens of proof" and "presumptions of innocence," none of which is helpful. I suppose the court of public opinion could place the burden on the accused. But then own that this is what you're doing.
Finally, a third point that Lithwick does not mention, but that has bothered me through much of this conversation. Everything is clouded by confusion about standards of proof and when and how they apply. One refrain is that Allen has never been convicted of anything and that no one has ever offered proof beyond a reasonable doubt. Because of that absence of a judicial finding B/R/D, either we just do not know what happened and never will (from those who cannot decide) or clearly he did nothing wrong (from Allen's defenders).
But there is a difference between whether someone did something wrong and whether someone should be criminally sanctioned by the state for doing something. The beyond-a-reasonable-doubt standard applies only to answer the latter question. But have other ways to determine whether someone did something wrong, notably civil proceedings, governed by a lower standard of proof, such as preponderance of evidence. Although we do not put people in jail when there is only a preponderance of evidence, we impose other sanctions that obviously are based in a conclusion that the accused did something wrong. And a civil judgment ordinarily is enough to conclude that someone did something wrong. (I wrote something similar following the jury verdict in the sexual harassment case against the Knicks and Isaiah Thomas in 2007).
In this case, there was a civil proceeding to determine custody of the minor children when Allen split with Farrow in 1993, a proceeding governed by the preponderance standard. In that proceeding, Allen was denied full custody and all visitation with Dylan (the court's order is here). There was no finding that Allen sexually abused Dylan, although the judge found that Allen's "behavior toward Dylan was grossly inappropriate and that measures must be taken to protect her." Thus, to the extent legal sanctions other than jail (e.g., custody and visitation) and non-legal sanctions (whether to ever watch a Woody Allen movie) can be imposed on a lesser standard of proof, it is at least arguable that we do have that. So to say Allen has never been found to have done anything wrong is incorrect--this becomes clear once we really understand what standards of proof are all about.
Tuesday, February 04, 2014
Judgment Calls and Reputation, Part One: Figure Skating
Thanks to Dan and the Prawfs gang for letting me hang out here again for February. Over the course of the month, I hope to explore how impressions of others influence judgments in a variety of litigation settings. With the Winter Olympics approaching, however, it seems appropriate to start outside the courtroom with a different group of high-profile decision-makers: figure skating judges.
Assessing a skater’s performance is a highly challenging cognitive activity. The judge must evaluate both the skater’s technical proficiency and artistic contribution in real time, and convert those assessments into a quantifiable score just minutes after the performance has ended. There is no video replay, no time for careful review and consideration of what was observed. Skating judges must act quickly and decisively. It seems natural that skating judges would therefore rely on mental shortcuts and other strategies to reduce their cognitive load. And indeed, one study out of the University of Ottawa found that one common and influential mental shortcut for judges was the skater’s reputation.
The Ottawa study (unfortunately, available by subscription only) concluded that when judges believed that a skater had made a positive name for him- or herself within the regional skating community, the skater received significantly higher scores than when the skater was unknown to the judges. The study concluded that a skater’s positive reputation set certain expectations for the judges about the skater’s ability, which in turn led to a more positive assessment of the skater’s performance.
Now, it is likely (though not guaranteed) that skaters with positive reputations were indeed excellent at their craft. But even if a skater’s reputation perfectly captured her average past performance, it cannot reliably capture the intricacies of any future performance. So although the judges’ reliance on reputation (consciously or not) was entirely natural, we might look to ways to reduce or eliminate the bias in the interest of obtaining the most accurate assessment possible.
One solution, proposed by the Ottawa researchers, is to ensure that judges in any given competition are unfamiliar with the individual skaters – thereby forcing them to assess the skaters on the current performance alone. This proposal might work if there was a large enough pool of qualified judges to assure that judges were always unfamiliar with the skaters before them. Still, as a long-term way of promoting better accuracy, “blind” figure skating judging seems unworkable. Sooner rather than later, the system would exhaust the number of qualified judges, or judges would share with each other what they had seen in earlier competitions. In either event, judges would eventually come into competitions with some reasonably well-defined expectation of each skater’s skill and artistic ability.
Figure skating provides a fairly straightforward introduction to the problem; the cognitive challenges that impressions and reputation pose to accurate judgments are compounded in the litigation setting. Whereas the effects of impressions in figure skating judging are essentially felt one way—even if the skaters know something about a particular judge’s reputation, there is not much they can do about it on the day of competition—the effects of impressions in litigation are multidirectional. Lawyers, judges, and parties must regularly make decisions based on their ongoing interactions and evolving perceptions of each of the other players. Other ways of promoting accurate judgments are needed and, as I will suggest in the next series of posts, the best approach may be the opposite of blind judging; that is, extensive, repeated interaction between the key players.
Monday, February 03, 2014
Diversity and Coke commercials
The "This is America, speak English" reaction to this commercial from yesterday's Super Bowl
is probably far more limited than would seem from the stories aggregating all the absurd Twitter comment. Although I will say that the comments and tweets complaining that the commercial defiled "God Bless America" or "the National Anthem" make me smile.
Still, I find even the limited outrage interesting, if only because Coca Cola previously gave us this, widely regarded as one of the best commercials of all time:
For its time, of course, this commercial displayed incredible diversity.
So what explains the different reactions, even if the negative reaction to yesterday's add is far less pervasive than it appears? Is it that the old commercial is about "the world," while the new one is defining (or in some views, redefining) America? Are people more comfortable with and accepting of the outward appearance of diversity, so long as everyone is doing the "American" thing of singing in English? In other words, apparent diversity is acceptable so long as one outward aspect of real diversity--language--is kept out of the picture?
Sunday, January 26, 2014
Six million Jews (or six million Jewish people)
Sunday's New York Times reports on a new book titled And Every Single One Was Somone, which consists of the word "Jew" repeated six million times in 5.5-point type. From normal distance, it is impossible to see each word, but only a patterned mass; you have to look more closely to see each "Jew." But even then, are you still seeing something de-humanized and reduced to that particular word? Is this a context in which the word is offensive, because we know how it was being thought of by the people (the Nazis) using it?
Monday, January 20, 2014
Recognizing Race on Martin Luther King Day
Over at Constitutional Law Prof Blog, Ruthann Robson has an interesting post about the way judges quote Martin Luther King, Jr. The claim -- relying on a fascinating article by Jeremiah Goulka -- is that when judges quote MLK, they are usually doing so in the course of reaching a result that MLK would not support.
This discussion brought to mind a topic that I've discussed during my previous visit to Prawfs. In my article Racial Capitalism, which came out last June, I defined racial capitalism as the process of deriving value from racial identity. My article focused, in particular, on white people and predominantly white institutions deriving value from non-white racial identity. An easy example is a school that photoshops a black student into its admissions brochure, or -- as a less extreme measure -- overrepresents the percentage of non-white students in its promotional materials.
In the article, I identify a judicial variant of racial capitalism, influenced by Justin Driver's work Recognizing Race. (In Racial Capitalism, I discuss this on pages 2197-98.) In a nutshell, Driver's work uncovers substantial variation in the circumstances when courts do and don't choose to explicitly identify the race of people discussed in their opinion. In Ricci v. DeStefano, for example, the Supreme Court held that the New Haven fire department's decision to ignore standardized test results that disparately affected racial minorities violated Title VII. Justice Kennedy's majority opinion discussed the testimony of three experts on standardized testing, yet only identified the race of one of the three -- the one whose testimony best supported the majority's result -- by stating that he "is black." This is particularly striking because one of the other experts was also black, and yet the majority did not identify her by race. As Professor Driver trenchantly explains: "This identification is striking because, in a decision that cautions against the dangers of racially disparate treatment, it treats Lewis disparately by race."
Judges identify -- or ignore -- racial signifiers all the time, in ways that subtly buttress the result they reach. In Whren v. United States, for example, the Court held stopping a motorist did not violate the Fourth Amendment so long as the officer had probable cause to believe that the the motorist violated traffic laws, even if an objectively reasonable officer would not have stopped the motorist in that situation. The holding also meant that it didn't matter whether the traffic stop was pretextual so long as there was probable cause to believe that a traffic violation of some sort had occurred. In the opinion, Justice Scalia identified the officer who arrested Whren as "Officer Ephraim Soto" and referred to him by name three times within the first two pages of the opinion. While I have not been able to discover Officer Soto's racial or ethnic identity -- or, perhaps more importantly, how others would have perceived his race or ethinicity -- it appears relatively uncontroversial that Soto is a Spanish surname. By emphasizing Officer Soto's surname, then, Justice Scalia implies that Soto might also be non-white, thereby distancing the events in Whren from the common pattern of white officers harassing black motorists that provoked outcry from civil rights advocates.
Of course, none of this is limited to judges. More generally, it's quite common for white people and predominantly white institutions using the words of deceased black leaders to gain legitimacy and shield themselves against claims of racism. Just today, Sarah Palin posted the following message on her Facebook page:
"Happy MLK, Jr. Day!
"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character." – Martin Luther King, Jr.
Mr. President, in honor of Martin Luther King, Jr. and all who commit to ending any racial divide, no more playing the race card."
Although of course I can't be sure, my guess is that MLK probably would not want his words used by Sarah Palin to chastise our nation's first black president for "playing the race card" (whatever Palin means by that).
Of course, Palin is far from alone. Some conservatives have recently dubbed themselves "Frederick Douglass Republicans." As one forthrightly explained, if you invoke the name of a well-respected black family member like Frederick Douglass, "you can trump the race card."
These various examples are unified by the theme of white people and institutions invoking race -- whether that of a famous black person such as MLK, or that of a participant in a legal drama -- as a way of achieving moral legitimacy and shielding whatever argument they happen to be making from charges of racism. Whether this is effective is, of course, another story, although at least sometimes it appears to be. (When I last checked, Palin's post had over 32,000 "likes.") Whether sucessful or unsuccessful, however, this use of non-white identity by white people is worth evaluating critically. As Goulka says in the conclusion to his piece, "on this MLK Day and every other day, whenever a court invokes Dr. King," -- and I think this extends to invoking non-white people more generally -- "make sure to judge it by the content of their characterization."
Friday, November 22, 2013
Making Law Sex Positive
It has been a good decade for sexual freedom. The Supreme Court issued opinions protecting the rights of gay individuals to engage in sexual relationships and striking down a ban on the federal recognition of same-sex marriages. Two gay teen characters were portrayed as having a positive sexual relationship (leading to a marriage proposal) on network television. Sexual practices formerly viewed as perverse, such as role playing and sado-masochism, seem almost provincial now that there is a copy of Fifty Shades of Grey on every great-aunt’s bookshelf.
But, in an op-ed published in the Washington Post this weekend, I argue that even among this legal and pop culture sexual revolution, much of our law remains curiously silent, squeamish, or disapproving on the topic of sexual pleasure itself. Indeed, several areas of the law rely on the counterintuitive assumption that sexual pleasure has negligible or negative value and that we sacrifice nothing of importance when we curtail it. This phenomenon extends even to legal realms that regulate behaviors central to the experience of sexual pleasure.
The assumption that sexual pleasure has negligible or negative value is simply unfounded, and unfounded assumptions create bad laws and policies. Legal regulation generally sacrifices our freedom to engage in certain activities because the activities result in harm or because regulation generates benefits. Devaluing sexual pleasure distorts this calculus. In truth, sexual pleasure is actually a very good thing, simply because it is pleasurable.
Truly progressive legal reform would recognize the inherent value of sexual pleasure. This would have significant implications for several areas of law, ranging from obscenity to rape law. The op-ed out this weekend is part of a larger project challenging the sex-negativity of law and envisioning how simply valuing sexual pleasure in itself would require us to rethink different areas of law.
Obscenity law, for example, relies on the assumption that offensive speech that is intended merely to arouse is entitled to less constitutional protection than any other type of offensive speech. The Miller test allows states to freely ban any material that depicts sexual activity “in a patently offensive way” and “appeals to the prurient interests.” The First Amendment only protects this material if it has some serious literary, artistic, political, or scientific value to redeem it. In contrast, states may not ban other types of offensive material unless they can show it is likely to cause some harm. If sexual pleasure in itself is valuable, then we can’t justify banning offensive prurient material more freely simply because its primary purpose is to arouse people. Instead, we have to think more carefully about how (and whether) states should be able to regulate any offensive materials.
Recognizing sexual pleasure would also require state courts and legislatures rethink the criminalization of sado-masochistic sexual activities (or “BDSM”). BDSM has become so prevalent in popular culture that it seems almost quaint. But even some consensual spanking can lead to an assault or battery charge in most states. In contrast, the law permits violent sports, cosmetic surgery, tattooing, and skin piercing, in large part because courts and legislatures accept their value. We can’t justify this distinction if we acknowledge that sexual pleasure has as much value as the pleasure derived from a boxing match or cheek implants.
Recognizing the value of sexual pleasure doesn’t mean we have to value it above everything else. We regulate the things that bring people pleasure all the time. We value the pleasure we experience from music, but I may not kidnap Beyoncé and force her to join me on a song-filled road trip, no matter how magical the experience would be for me. Sexual pleasure is no different—we can acknowledge it is important and still regulate it.
But valuing sexual pleasure does require us to regulate more honestly. It allows a more complete and well-reasoned discussion of what we choose to regulate, what we fail to regulate, and our justifications for those choices.
The op-ed “The Joyless Law of Sex,” is available here. “Sex-Positive Law” will appear in the 87th volume for the NYU Law Review in April.
Wednesday, September 11, 2013
"Better Call Saul"I am sure it will get so much law wrong, but I am totally in the bag for Better Call Saul, a planned prequal to Breaking Bad that focuses on the show's hilariously sleazy criminal-defense/PI attorney.
Tuesday, July 23, 2013
Could FACs induce retirement of government officials? A "Corruption" Work-around?
Btw, a couple weeks ago on FB (where all my random mental burps occur), I proposed a possible variation of our crowdfunded FAC model in the gov't context. Specifically, I wondered aloud: could a cabal of Soros and Gates and Bloomberg create a FAC (Fan Action Committee) to throw money at Justice Ginsburg (or her favorite charity) to retire from SCOTUS (so POTUS could appoint someone new presumably) without violating any laws?
We just saw Sec. J. Napolitano step down from DHS to head the UC system. So if Soros et al. couldn't offer RBG 20 million to retire, could he give her 20 million to join as a board member of Open Society to have tea with him once a year? There you at least have a peppercorn of consideration for the contract. Is that enough to circumvent the corruption statutes or relevant ethics rules? Would you give the same deal to get Michelle Bachman to leave Congress? The interesting wrinkle here is that unlike general corruption statutes governing improper quid pro quo of "official action" for $, this FAC-y scenario just requires $ in exchange for no "official action", ie, retirement. A couple friends thought scenarios of this sort would still be illegal, but I'm not sure I'm persuaded yet; if it's illegal at the federal level under extant law, could it be used at the state level? If you disagree with me, please cite chapter and verse on why! And file this in the "devilish and probably misguided idea" drawer.
Tuesday, July 16, 2013
A Not Quite Post-Script on Zimmerman, etc.
Interesting exchange I though I'd share. I just rec'd an email from a stranger (to me):
You write here - - that "I fear that if the races had been turned around, we might have a different verdict."
Why, given the evidence presented, the law, the jury instructions, etc., do you have this fear? Is there a scintilla of evidence that the jury, in its deliberations, was influenced by considerations of race in any way?
Thanks for writing (respectfully!).
My sense is that there likely were some subtle racial dynamics as to what prompted GZ's suspicions. I doubt that if TM had been white, GZ would have bothered to call. If GZ had been black and shot a TM who were white, I could see the possibility of conviction going up, even if the same evidence were there. I regret that's the world in which I harbor that concern.
Still, in this case, I think it would be a serious injustice to alter the verdict just because of the risk that injustice elsewhere could erupt. My point, modestly, was that one can't fix other injustices by doing an injustice in this case.
My correspondent wrote back:
Thanks for your quick -- and equally respectful -- response.
1) Re: GZ being suspicious if TM had been white: This is a bedrock assumption -- I don't think there's much evidence on the issue one way or the other -- which I don't share, but let's assume it anyway.
2) The jury seemed to be meticulous (14 hours of deliberation, etc.). According to the juror interviewed on CNN, at first, 3 jurors wanted to convict GZ "of something." But, based on the evidence presented and the "options we were given," acquittal was the only decision, in the end. I very much doubt that this jury would have acted any differently had TM been white/GZ been black. Also bear in mind that white guilt, as well as white racism, can play a role. But this is just my opinion.
At this point, it seems, we are in the realm of speculation and sociology, so I don't have much more to add than my first response. But I thought it was an interesting exchange, and I'm sure some of our readers would have more vigorous responses and reactions.
Update: I have since learned (h/t to Adler on FB and Bernstein below) that I may have been leaping to judgments re: my speculation about Zimmerman's reticence to call in suspicious non-blacks. He has a history of calling in a range of people, including fellow Hispanics, and he's also made calls, from what I understand, designed to ensure the wellbeing of young black children. I'm grateful for the information--obviously, I can't verify it myself, but if it's true, the information seems relevant about what kinds of speculations are warranted in race-switching scenarios.
Sunday, June 30, 2013
Adoptive Couple v. Baby Girl (2 of 4): 3/256th Cherokee?
This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. This post address race, tribal enrollment, and Indian authenticity.
Baby Veronica’s mother is “predominantly Hispanic” and her father has only a small fraction of Cherokee ancestry. Legally, his fraction of ancestry doesn’t matter; only his tribal enrollment does. But the very first sentence of Justice Alito’s opinion describes Veronica as “1.2% (3/256) Cherokee,” underscoring the anxiety about race that has pervaded the case. The father has only a distant Cherokee ancestor - isn’t he more white than Indian? Sure, he is enrolled in the tribe, but how can “one drop of blood . . . trigger all these extraordinary rights?” (asked Justice Roberts during the argument). Why should the child’s ties to her Cherokee heritage be privileged over her Hispanic heritage, especially if she is fractionally more Hispanic than Cherokee? It is these racial anxieties, rather than the law itself, that seem to drive the majority opinion as well as the media coverage of the case. As Will Baude points out, neither the majority nor the concurrence has much in the way of express discussion of equal protection concerns. But the briefs, the oral arguments, and the references to fractional ancestry that peppered the majority opinion suggest these kinds of questions lurked just below the surface.
The short answer is that Indianness, especially in the form of formal enrollment in a tribe, is a political classification, not just a designation of race, heritage, or culture. I have written elsewhere about how to make sense of the “racial v. political” dichotomy that that seems to trouble many people about Indian law. In my view, it makes no sense to claim that Indianness has nothing at all to do with race and racism, but it is equally a mistake to suggest that the specter of race renders it less of a political status in the sense that the term is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people. (Bethany Berger and Sarah Krakoff have also written about this interplay.) Indian tribes have a different relationship with the federal government than any other group, a relationship based largely on treaties and recognition of nationhood. That is why Veronica’s Cherokee-ness matters in a way that her Hispanic-ness does not.
The term “Indian” has various definitions in different areas of federal law. In general, though, legal Indianness requires indigenous ancestry (descent from a group indigenous to what is now the United States) and some kind of political recognition. There are certainly areas of Indian law that spur debates about what qualifies as political recognition, but this is not one of them. As noted above, the definition of Indian here is clear, and it is clearly tied to tribal enrollment. Of all the possible indicia of Indianness, formal enrollment in a tribe is the most clearly “political” because it refers to national citizenship. Yet even enrollment-based distinctions raise concerns because most tribal enrollment rules require a demonstration of ancestry. Ancestry in tribal enrollment rules serves a different function than simply being “a proxy for race,” though. It is a nod to the kinship relations that form the basis of most tribes, and it is an indicator of indigeneity. As Justice Sotomayor points out in her dissent, the majority’s frequent references to the tribe’s reliance on descent and its “second-guess[ing]” of the tribe’s membership requirements are ironic in light of the fact that federal regulations require that all members demonstrate “descent from a historical Indian tribe” as a condition for tribal acknowledgement.
But the anxiety runs even deeper. The Cherokee Nation is one of a handful of tribes that require only lineal descendancy to enroll. Many tribes require a certain degree of ancestry (called “blood quantum”), and some impose additional requirements (the most recent study of enrollment rules is here). Most often, tribes are criticized for this use of blood quantum in their enrollment criteria. The criticism is both external (by requiring that members possess a certain percentage of “Indian blood,” tribes are injecting race into their citizenship criteria) and internal (minimum blood quantum requirements are partly the product of federal influence and reflect a campaign to ensure that “real” Indians will eventually disappear). (For more about the history of blood quantum, I suggest starting with Paul Spruhan and J. Kehaulani Kauanui.) The Cherokee Nation does not require members to have any specific blood quantum; members must instead demonstrate descent from a person on the historical tribal rolls. Instead of being cheered for removing race from its enrollment criteria, however, it is chided for relying on nothing but race - and only an “insignificant” fraction at that. (Similar concerns surrounded the use of ancestry in Rice v. Cayetano. Ironically, Justice Roberts argued that case for the state - the party relying on ancestry - yet he may be the current Justice most concerned with the use of ancestry in Indian law.)
Tribes can’t win here. If they require a specific percentage of Indian blood, they are relying on race. If they require only descent, their members aren’t really Indians (see Alex Pearl’s recent post). If they do not require descent, they are no longer indigenous. At the oral argument, Justice Roberts was also concerned about the possibility that ICWA could apply based on only enrollment, but not ancestry. He asked about a “hypothetical tribe” with a “zero percent blood quantum” that is “open for, you know, people who want to apply, who think culturally they’re a Cherokee or - and number of fundamentally accepted conversions.” And if you are paying close attention, you know that the Cherokee Nation is the same tribe being sued for removing freedmen from its rolls because - according to the tribe - they lack indigenous ancestry. (Of course, it is far more complicated, but this isn’t a post about the Cherokee freedmen.) I chose the term “racial anxieties” carefully because that is exactly what plagues Indian law. The problem is that the Justices (and the public) don’t know how to think about race and Indian law. Is it too racial? Is it not racial at all? Is it not racial enough? And what is race anyway?
That the law itself remains intact is no small victory. The brief for the guardian ad litem in this case advocated a reinterpretation of ICWA that would demand some additional “non-biological” demonstration of Indianness (presumably besides tribal enrollment), arguing that the law is unconstitutional otherwise (see here for a discussion of how this argument has surfaced in other ICWA cases). The attorney for the GAL, Paul Clement, recently attacked the constitutionality of Indian legislation in another area. Given Clement’s track record before the Court, tribes are rightly concerned that these lingering racial anxieties could damage tribal rights even more than they did here.
Posted by Addie Rolnick on June 30, 2013 at 03:17 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (4) | TrackBack