Wednesday, September 02, 2015
New Jersey’s Legislature Takes a “Grave” Misstep
Other than fellow “property law geeks,” not many people may wonder about property rights in cemeteries, but it is a surprisingly complex and varied topic about which I’ve pondered and about which Professor Tanya Marsh of Wake Forest has developed national expertise. She has recently written the definitive casebook on cemetery law (co-authored by recent law school graduate Daniel Gibson), has launched a venture with the Urban Death Project to work for “ecologically beneficial meaningful death care” worldwide, and has recently been quoted in the national media with respect to death and internment issues. Monday, in a short but completely compelling piece on Huffington Post, Professor Marsh took the New Jersey legislature to task for passing a law limiting churches’ ability to manufacture and sell tombstones, vaults, and private mausoleums.
As Professor Marsh clearly explains, creation and care for tombstones in church-owned and operated cemeteries is a religious practice. After all “rituals that mark the transition from life to death are a central part of most modern religions.” (I’d go even further and say that such rituals have always been a central part of all religions.) But this new New Jersey law, Bill 3840, that was signed into law by Governor Chris Christie in March 2015, limits churches’ ability to fully participate in those rituals – even on their own land and on behalf of their own members. The law seems to be a blatant anti-competitive, special-interest-group spearheaded “win” by the Monument Builders of New Jersey, who agitated for government assistance to preserve their de facto monopoly on manufacturing graves, memorials and vaults. Not only does this law serve no state interest at all – let alone a compelling one – it violates religious freedom in an essential and inexcusable way. Professor Marsh sums it up thus:
This law is an amazing act by the New Jersey legislature and governor. It was adopted at the behest of a group of private market participants for a reason no more noble than to protect themselves from competition. This blatantly anti-competitive effort is even more stunning because the product at issue–headstones and memorial tablets–are not regulated. No license is required to manufacture or sell them. Literally anyone in New Jersey can manufacture and sell tombstones, vaults, and private mausoleums–everyone, that is, except religious organizations and non-profit corporations that own or manage cemeteries.
Happily for those who care about justice and religious freedom and economic liberty, the Archdiosese of Newark, assisted by the Institute for Justice, have brought a lawsuit against the State of New Jersey, seeking to have the law struck down. There are several asserted grounds pursuant to which the court could invalidate the law, including violations of Due Process, Equal Protection, the Privileges and Immunities Clauses, and the Contracts Clause (Art. 1, Section 1) of the Constitution.
Thursday, August 20, 2015
What the Ashley Madison Hack Teaches Us About Digital Privacy Invasions
Hackers just published a massive amount of data about the roughly 36 million members of the website, Ashley Madison, a social network that markets itself to those in relationships who may want to explore, shall we say, "what else is out there." Along with the 36 million emails, 33 million first and last names, street addresses, and phone numbers, and 9.6 million documented credit card transactions were released. The data also tell us about subscribers' sexual preferences.
There has been some fanfare about a few of the names on the list: Josh Duggar, the conservative star of TLC's "19 Kids and Counting," had two accounts. The Associated Press notes that "subscribers included at least two assistant U.S. attorneys, an IT administrator in the Executive Office of the President, a division chief, an investigator and a trial attorney in the Justice Department, a government hacker at the Homeland Security Department and another DHS employee who indicated he worked on a U.S. counterterrorism response team."Mr. Duggar, who molested his younger sisters years ago, has already conceded that he cheated on his wife. But being among those whose credit cards were used to create Ashley Madison accounts does not necessarily mean you made the same choices as Mr. Duggar. Nevertheless, every name, from the hypocrites to the innocent, is about to experience the very same shame, and it will be difficult to recover. Digital privacy invasions are cold and permanent: they remove necessary context and create a permanent truth. And, in this way, they cause untold harm.
We don't know the possibly myriad reasons why millions of people subscribed to Ashley Madison. A jilted ex or a prankster could have used your credit card. You may have been curious. You may have signed up accidentally, as Marge Simpson did (on the parody site, sassymadison.com) on "The Simpsons" episode, "Dangers on a Train." You may have wanted to have an affair and then decided not to. Perhaps you logged on, had an affair, but ultimately admitted it to your spouse and the two of you worked it out. Another possibility: you created an account to practice immersion sociology, much like the controversial sociologist Sudhir Venkatesh did with respect to gang culture. In fact, it's pretty easy to create an account on Ashley Madison using someone else's name and it's not that easy to erase it. In other words, the data is devoid of context. Now, all 33 million individuals whose first and last names were hacked are "cheaters" or, worse yet, "sluts."
And they will be branded as such forever. The internet stores information permanently because it can: it has essentially infinite storage capacity and a search platform that can find anything in 0.0000043 seconds. Even if the raw data were ever taken down, it has already been copied, recopied, told, and retold so often that it can never be scrubbed. And Google's ubiquitous search platform will ensure that anyone with an internet connection can find it. There is even a handy tool to determine if your email is included in the data dump. Furthermore, the United States does not have a European-style "right to be forgotten," which could help unlink data and reports on that data for persons innocently caught up in the breach.
As Glenn Greenwald suggested, the result is a modern scarlet letter: an invasion of privacy that gets wrapped up in a moral crusade against infidelity. This can result in long term negative effects: depression, social ostracism, loss of employment and employment opportunities, lower academic achievement, a receding from social life, and much worse.
Hackers that gleefully disseminate private personal information entrusted to a third party are causing significant harm. It may be easy to smirk and hard to find pity for victims of this particular hack, but consider some other invasions of privacy:
Victims of revenge porn similarly entrust private personal information -- an intimate "selfie" texted to a then-romantic partner -- to another only to have that data posted on websites that extort money, endanger lives, and ruin reputations. Danielle Keats Citron and Mary Anne Franks have spoken eloquently on the need for criminal revenge porn statutes as well as the very real emotional, physical, and professional damage caused by nonconsensual pornography.
Cyberbullying targets are ripped from private life and thrust into a very public humiliation when online aggressors, known or anonymous, take photos, harassing language, text messages, "I Hate" videos, or private encounters and post them online. This is particularly harmful to LGBTQ youth, who are unique in both their frequency of victimization and the importance of a safe internet.
A wry smile at Mr. Duggar's comeuppance is not the same as condoning privacy invasions, revenge porn, or cyberbullying of LGBT youth. His hypocritical moral crusade against gays in the name of "family values" made him a public figure on the matter of values. But the same social norms that lump all Ashley Madison account holders into one class of "cheaters" are the same norms that slut shame revenge porn victims and tell victims of cyberharassment to just turn off their computers. More to the point, it is the nature of online invasions of privacy that foster these harmful over-generalizations: the internet erases context and hoards raw, decontextualized data, transforming it into a searchable gospel.
The internet, the raw, decontextualized internet, can be a dangerous place. Ashley Madison is just one unique case study showing us how.
Monday, August 17, 2015
Baby Mama Esq.
By now we all know that the US is dead last among OECD member countries in the parental leave benefits that are offered to working mothers: in the US, there is no paid parental leave guarantied by law, and only 12 weeks protected unpaid leave (and even then only if employed for 12+ months at a big-enough company). This is, frankly, an embarrassment to the country and speaks volumes with respect to the value our society and government truly places on motherhood and on children.
Women lawyers who have babies, however, are usually better off than their non-lawyer peers. Most firms offer paid leave (50% - 100% of salary) for anywhere from 6 to 16 weeks. When I had my first baby in 2002, Fried Frank gave me a generous 4 months of fully paid leave. In fact it was a huge selling point for me when I considered their offer of employment (even though I was not pregnant at the time, I expected that I would have a child at some point after joining the firm). One might therefore think that the real battleground for paid parental leave lies beyond the personal experience of lawyers. But that isn't necessarily true. First of all, as a June 2015 article in the ABA Journal put it, "for many female attorneys, maternity leave can be the equivalent of a poisoned chalice - offered as a benefit, but damaging to a career." The New Republic agrees - generous leave policies can inadvertently reinforce a glass ceiling in a profession. My anecdotal experience (personal and thosee of friends and colleagues), supports this conclusion as well.
Reality here truly does bite: most women who take advantage of generous maternity leave policies and flex-time policies end up sliding off the partner track and settling into the mommy track. A study published by Working Mother magazine found that although flex-hours were offered and widely accepted work arrangements for women with children at top 50 firms, none of the top 50 firms had promoted a flex-time attorney to partner in 2014. And among the 50 top law firms, only 19% of the equity partners are women.
The ABA Journal column noted that some firms (like Minneapolis-based Nilan Johnson Lewis) have bucked the trend and have promoted women to partner shortly after taking maternity leave. But this remains the exception to the general rule that partnership and motherhood are challenging to balance. As a mother of 4 who practiced law for a decade and a half before making the jump to academia, I'm keenly aware of this challenge. And today's female law students - who constantly approach me as a "role model" of a mother who continually practiced law while having multiple children - are very concerned about this too. They need to be aware, however, that reality in firms doesn't always match optics. I've spoken to big-firm interviewers after their on-campus interviewing and heard expressed concern about 2L candidates who mention that one reason that they were attracted to the firm was because of its touted flex time options. This seems to suggest to the interviewer that the candidate is more interested in family (gasp!) than billable hours. (I think that the fact this point was raised in a first interview also suggests that these 1Ls are both more honest and more naive than one might expect.)
The impact of paternal leave on tenure and promotion in legal academia is unproven. (There was an interesting post in this blog 3 years ago on the topic of delaying going up for tenure because of paternal leave - here, and the AAUP has a paper regarding parental leave for university professors here.) My sense (devoid of any empirical study) is that policies regarding parental leave for female law professors are all over the map - from no paid time off to an entire semester or more of paid leave. When I was at the new law professor AALS summer program, discussants in the women in law group shared a wide variety of experiences with respect to pregnancy and childbirth and maternity leave on a law school faculty. Policies with respect to paternity leave, I believe, vary even more.
Gentle reader (to borrow the phrase), what are your experiences with parental leave at your law practice and law teaching workplaces? Should the legal profession develop norms and expectations regarding paid leave as a way to increase gender diversity in partnership (and tenured professorship) ranks? Have you seen a generous leave policy backfire into mommy-tracking competent, ambitious female lawyers? And, if so, what is the right solution?
Approximately 50% of law school graduates today are female. It is likely that a large number of these will at some point in their career have one or more children. I believe it is time that the legal profession confront this reality and ensure that women in law are not forced to choose one of these three unsatisfactory options:
(a) dropping out of practice,
(b) going into a mommy track limbo, or
(c) sacrificing an unreasonable amount of time with their newborn.
Yes, this is an issue that faces both mommies and daddies in law, but the biological reality remains that although an uber-dedicated father-to-be big law associate might even miss his child's birth, that option is frankly never possible for even the most overly dedicated expectant lawyer mom.
Tuesday, August 11, 2015
Kids Today (or "I don't know about you, but I'm feeling 22")
Friends who are not law professors are under the mistaken impression that since I spend so much time with law students, I must feel young and hip. To the contrary, I find that each passing year highlights in clearer relief the true generation gap between the fresh new 1Ls and myself. In case you too are wondering why it is sometimes hard to connect culturally to today’s “Millennial” students, here’s a little bit of info about the personal cultural context of a typical 1L, starting law school this month. For sake of this fact-based hypothetical, we’ll call her the “reasonable law student” (RLS) and assume that she is 22 years old.
- World/National Events Context:
- Childhood: RLS was born in 1993, the year that Czechoslovakia broke apart, Ruth Bader Ginsburg was appointed to the Supreme Court, and Bill Clinton instituted a “don’t ask, don’t tell” policy for homosexuality in the military. When RLS was 2, her parents watched the OJ Simpson trial and the Oklahoma City bombing on TV. RLS started kindergarten in 1998, just as the Clinton-Lewinsky scandal was winding down (and 4-year-old RLS had probably been kept in the dark about the finer points of Clinton’s “relations” with “that woman”). RLS has no memory of any Y2K worries, since these were all proven to be for naught by the time she turned 7. RLS may not have even noticed the terrorist attacks of September 11th – after all, she was only 8 at the time. Her parents may have lost a bundle from the Enron bankruptcy or the dotcom bubble/bust, but this happened when RLS was just 9. Gay marriage began to be legalized by states (starting with MA) when RLS was 11.
- Teenage Years: As a 15-year-old, RLS may have been vaguely aware of the Foreclosure/Financial Crises, and she likely remembers when Barack Obama was sworn in as President when she was 16. Osama bin Laden was killed in 2011, the year that RLS graduated from high school. The Sandy Hook school shootings occurred while RLS was in college, in 2012.
- Technology: RLS has never known a world without full use of the Internet and cannot fathom life without click-of-a-button access to unlimited information (reliable and otherwise). Thus, RLS never has had to dig hard and do tedious research to find out the answer to a nagging question (like, “Where have I seen that actor from Mr. Robot before?” Answer -- in case you were wondering -- is that I previously saw Rami Malek in both the movie Night at the Museum and in the TV series 24. And, yes, I just took 10 seconds to look that up. You’re welcome.) What a lifetime of having instantaneous, effortless answers to one’s questions does to one’s approach to the study and research of law is a question open to debate. (Discuss.)
With the Internet as their baseline reality, not only do RLS and her peers lack experience in spending significant time wondering about and questing after unknown facts, but they are also quite used to the public disclosure and discourse of private details of everyone’s life. They’re also used to enhanced government surveillance of its citizens, the Patriot Act, and invasive airport searches by TSA.
RLS has a vocabulary and life experience that equates with being born in the Internet age, and she is adept at all sorts of social media. She is used to everyone being available 24/7 and immediate responses to her calls, emails, and texts. RLS has always been able to shop online and have instant access to new software, music, and videos downloaded directly (so much for “shrinkwrap”).
- Assumption of Risk? During RLS’s entire life, her parents and the state have mandated that she stay safe by being car-seated, buckled up, and helmeted on a bike.
- Negotiable Instruments? RLS doesn’t use cash or checks to make purchases. She has always used a plastic card (debit or credit) or her phone to pay for things (maybe she’s even experimented with digital currencies).
- Environmental Law? RLS grew up worrying about the environment and global warming. For RLS, there have always been hybrid cars, wind farms, and solar panels on buildings and in fields.
- Labor Law? For RLS, the only significant labor disputes have been professional sports-related.
- International Law? In RLS’s experience and memory:
- Prisoners have always been housed at Guantanamo Bay.
- There has never been Apartheid in South Africa.
- The countries of the Soviet Union, Czechoslovakia, and Yugoslavia exist only in history books.
- Hong Kong has always been part of China.
- It was Pres. George W. Bush (not his father) who sent troops to Iraq.
- The currency in Europe has always been the euro.
- Health Law? Cloning has always been a scientific reality. AIDS has always been a problem, but HIV-positive hasn’t been an immediate death sentence (in the US, at least). Adults have been debating the role that the government should have in providing public health insurance since her birth.
- Pop Culture Context: For RLS,
- It has never been a big deal to see women kissing women and men kissing men on television.
- The term “wardrobe malfunction” has been widely understood since RLS was 10.
- Ellen and Oprah have always been first-name-only TV talk show hosts.
- Michael Jackson was an embattled recluse defending against accusations of molestation until he died (when RLS was 15)
- The “Royal Wedding” was when Kate Middleton married Prince William (RLS probably watched this - when she was 18).
RLS likely learned to read with the Harry Potter series, the first of which was published when she was 3 and the last when she was 14 (meaning she never had to wait to read the sequel and she may have even – gasp – seen the movies first!). RLS probably spent her teenage years reading the Twilight series and The Hunger Games. As a teen, she listened to Taylor Swift, Adele, One Direction, Justin Bieber, Beyonce, Lady Gaga, Kanye West, and The Black Eyed Peas.
As for television show references, don’t bother talking about Seinfeld or Friends in class – those shows went off the air when RLS was age 4 and 10, respectively. Reality TV is her norm. For RLS, Survivor and American Idol have always been on TV. If you’re seeking some common ground, remember that RLS likely has spent time watching one or more of these shows: Game of Thrones, Suits, Homeland, Scandal, CSI, Breaking Bad, Mad Men, Big Bang Theory, Modern Family, Parks & Recreation, Glee, Pretty Little Liars, Sherlock, and Downton Abbey – but of course, she was watching them in high school!
Do you feel old yet?
Or are you “Feeling 22” too?
Wednesday, July 01, 2015
Marriage and Other Favored Unions
So we have a fundamental right to same-sex marriage. In the most obvious way, the Court’s holding was good: if the state is going to privilege a particular association (here, marriage), it should not discriminate against persons who try to take advantage of it. Fair enough. But in another way both the government’s favored treatment of marriage and especially the majority’s decidedly not-postmodern love letter to that particular form of association (Alito’s comment that the majority’s vision of liberty “has a distinctively postmodern meaning” notwithstanding) should give us cause for pause. There is another area where the state has favored a particular type of association over others: labor unions, which have been favored over other types of worker organizations. That preference has not worked out well for workers; we would do well to think more about whether the story of state preference for marriage will turn out the same.
Associations of Workers and the NLRA
Congress passed the National Labor Relations Act years ago and, with it, enacted a particular vision of what worker associations should be and how they should operate. That vision included both (1) exclusive representation and (2) a commitment to the view that the interests of workers and employers are fundamentally opposed and antagonistic.
At first the NLRA benefited workers (if rapidly increasing unionization rates are any indication), but over time that has largely ceased to be the case. The government restricted covered labor organization activity and the Act stifled the ability of covered workers to develop innovative forms of worker organizations that could better help them achieve their particular interest. One example of this stifling (and one that I discuss in a forthcoming article) comes out of the Act’s prohibition on company “support” of labor organizations. This ban has in turn dramatically limited the development of mutually beneficial collaborations between workers and companies looking to sell themselves to consumers as “conscious capitalists.” As a result of the Act’s narrow vision of appropriate worker organization, it is not surprising that innovative forms of worker organization (the Fair Food Council being just one example) have only occurred among workers who are not covered by the NLRA at all.
In short, when the government favors a particular vision of worker association – even with good intentions – it also frustrates experimentation with other forms – forms that may in fact be better for at least some workers.
Associations of Individuals and Marriage
Something similar might be said about marriage. Like the vision of worker organization demanded by the NLRA, marriage (including same-sex marriage) is but one of the many forms romantic and family associations can take. And like a traditional labor union, a traditional marriage (same-sex marriage included) will work better for some than others. The government, however, does much to encourage traditional marriage. Spousal privilege and military, social security, and immigration benefits being just a few examples. And these benefits, like all incentives, serve to promote marriage over non-matrimonial forms of romantic and family association. Those benefits alone might already have been enough to stifle experimentation with other forms. But the majority opinion in Obergefell, if its love letter to marriage is read and its views adopted, imposes an arguably different and more potent type of cost on would-be experimenters: stigma. As the majority sees it, marriage is of “transcendent importance” and “promise[es] nobility and dignity to all persons”. It is marriage that “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” Without it, “children suffer the stigma of knowing their families are somehow lesser.” (emphasis added). Given all this, a reader would think marriage the sole means by which we come to flourish in relationships – that families and romantic relations structured without it truly are lesser. On that view, failure to get on board with the institution really does deserve to be stigmatized.
For those who think the Court’s substantive view on marriage’s importance right and the government’s subsequent promotion of it good, this all won’t seem bad. But for those who think the highest ideals of love and family might be better achieved – at least for them – through other forms of association, the majority’s reification of the centrality of marriage to the good life will strike them as yet another barrier to a future where those ideals can be realized. As with the story of worker associations, it might take us a long time to realize that the government’s “help” of our association of choice today won’t actually be so helpful tomorrow.
 A few argue exclusive representation was not required from the start but it certainly was treated as such soon afterward. Either way, my point is the same.
Monday, June 29, 2015
Obergefell in Haiku
At McSweeney's, Daniela Lapidous has helpfully condensed each of the opinions in Obergefell to a haiku. Chief Justice Roberts, for example:
I support you all
No, really, I do, but this
Isn't our problem
For the rest, see The SCOTUS Marriage Decision in Haiku. (Hat tip to Leah Lee.)
Thursday, June 25, 2015
Singletons in film
Much deserved praise is being heaped on the new Pixar film Inside Out, which is setting all sorts of box-office records and gaining all sorts of critical acclaim. It has earned praise for (finally) featuring a lead female character (arguably 3 of them) who is not a princess, who likes sports, and who seems like a typical kid. It is a comprehensible visualization of how emotions and the brain genuinely work--the producers consulted with neuroscientists, psychologists, and other smart people, who have talked about what the film captures. And it makes parents cry about their children (especially daughters) growing up.
I want to mention one side point, which is not central to the story or its consequences, but still worth noting: Riley, the 11-year-old lead character, in whose head the action takes place, has no siblings (I hate the term "only child" and find "singleton" better, if essentializing). And this is presented in the film without remark or commentary. This is a story about a "typical" preadolescent girl who is happy, good natured, well-adjusted, close with her parents, has friends--all traits not associated with the stereotype of the spoiled or lonely singleton (all of which have been debunked, but which still carry cultural resonance). What she experiences in the film--as she becomes moody and isolated--is depicted as the ordinary work of ordinary emotions and growing up. And I was happy to see that the filmmakers did not feel the need to throw in an annoying younger brother, either for comic relief or to create a "complete" family.
Parents and one child can a family, with a happy child, make. I just like to see pop culture catch up with that idea. Or better yet--not even have to mention it.
Tuesday, June 16, 2015
Veep does the Constitution
Veep is a hilarious show, described by one former Obama adviser as the most accurate depiction of Washington and definitely the most hilariously profane (reflecting the sensibilities of creator, and departing showrunner, Armando Iannucci). The season finale, which aired on Sunday, takes place on Election Night and ends on a constitutional cliffhanger related to presidential elections and presidential succession, a common theme for political TV shows.
More (with spoilers) after the jump.
The election ends in a 269-269 Electoral College tie,* sending everyone scrambling to figure out, and discuss in expository dialogue, what happens; it became a mini Con Law lecture, although there did not seem to be a practicing lawyer in the room. The show explains that the House selects the President, voting by state delegation, and the Senate selects the Vice President, voting as a body of the whole; they get that part right. But then the narrative reveals uncertainty over numerous close House races** and over what the make-up of the House will be, with everyone raising the possibility of a tie in the House. What happens then? The show posits that the Vice President becomes President. This sets-up the dramatic twist that Meyer's running mate, Tom James (who is seemingly more popular and more competent than Meyer***), will "backdoor" his way into the top spot; one of the last beats in the episode has James asking Meyer to serve as his VP.
[*] This allows for a nice riff about the stupidity of having an even number of electors--blame the Twenty-third Amendment. The tie also results from a bizarre electoral map for current politics. Selina Meyer, whose party is unnamed but who seems to be a Democrat, wins Virginia, Pennsylvania, Florida, and Wisconsin, but loses Minnesota and Ohio.
[**] Also unlikely in current politics, given gerrymandering practices creating vast numbers of "safe" seats.
[***] And ambitious. Earlier in the episode, James insists that, in addition to serving as VP, he wants to be Secretary of the Treasury. I do not believe there is a constitutional bar to the VP holding a cabinet position, although I cannot see the Senate going for it.
That last part seems both constitutionally wrong and factually unlikely, at least as presented. So the mini Con Law lecture did not quite get it right.
First, whatever the uncertainty of the makeup of the next House,the possibility that twenty-five state delegations will be controlled by one party and twenty-five controlled by the other seems like an implausible logical leap. It would be a fun narrative twist to actually show happening; it just seemed a strange place for Meyer's aides to go in predicting right then. Second, and related, why does nobody consider the possibility of a tie in the Senate (historically, a more likely occurrence) or even of James losing in the Senate (if the opposing party has a majority). It is not discussed, even to explain away that the Senate make-up is not unknown and that the Meyer/James party will control the Senate.
Third, under the Twelfth Amendment, if the House has not yet chosen a President by the appointed date (as further amended, January 20), "the Vice President shall act as President, as in the case of the death or other constitutional disability of the President." The Twentieth Amendment further provides that "[i]f a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified." In other words, contrary to what the show says, James would be Acting President, not President; he would not enjoy an inauguration, he would not be listed in the line of Presidents, and he certainly would not be able to appoint a Vice President.
He also would act as President only until "a President shall have qualified," that is, until the House is finally able to resolve any stalemate and pick the President. This presents the fourth problem with the show's constitutional narrative--the assumption that there would be one House vote, it would end in a tie, and that would be the end of the discussion. But the House may (and will) take multiple votes and engage in a lot of politics to resolve the question--it took 36 ballots and political pressure from Alexander Hamilton for the House to elect Jefferson over Burr in 1801. So even if the initial vote were tied (again, unlikely), the House likely would not stop at a tie and leave an elected VP to serve four years as acting President; the House would feel public and political pressure to continue negotiating and holding votes until someone is elected President from between the two**** top-of-the-ticket candidates for whom the public had just cast millions of votes.
[****] The Twelfth Amendment provides that the House may consider up to the top three Electoral College vote-getters, unnecessary here, since no third-party candidate received College votes. The show might have tried to really go all the way on E/C confusion by throwing in a third candidate who won two three-elector states (one from each candidate), producing a tie without a possible majority.
None of which is to dampen my enthusiasm for the show. But if the writers are deliberately showing a constitutional possibility, I just want them to get the small details right (especially when those details involve legal issues I am interested in).
Wednesday, June 10, 2015
Is Lethal Injection About Us or Them?
I’ve been thinking a bit lately about lethal injection, about the ways it is problematic regardless of what the Supreme Court holds in Glossip. I’m at the very early stages of a work-in-progress on the topic, and one of the things I’ve been quite drawn to is a passage from Chief Judge Alex Kozinski’s dissent from the denial of a rehearing en banc in Wood v. Ryan.
Here’s what he wrote:
Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. . . . But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
It’s worth noting that Judge Kozinski supports the death penalty (his essay “Tinkering with Death” presents a thoughtful and remarkably personal account of his views on the subject) so his position here can’t be written off as just another abolitionist trying to muck things up. The pain inflicted on victims and their families is tremendous, he says, and society has a moral right to respond accordingly. The point here is that we should at least be honest about what the death penalty is: brutality for brutality. And if we’re not willing to accept that, we shouldn’t be doing it.
So here’s my question: is lethal injection about us or is it about them? That is, is it about masking the brutality of executions so we don’t have to deal with the violence inherent in taking another life? Or is it about providing the condemned with a relatively painless death, something they don’t deserve (at least by the measure of their own crimes) but can expect from a civilized society?
Perhaps it’s both, but the history of lethal injection suggests it’s a lot about us. Oklahoma was the first state to adopt lethal injection, and its legislators did not ask how do we euthanize pets, how does physician-assisted suicide work, how can we do this as pain free as possible. It was 1977, and the Supreme Court had just brought back the death penalty the year before in Gregg v. Arizona, after having abolished it in Furman v. Georgia in 1972. Legislators worried that the American public wouldn’t have the stomach for executions the old fashioned way—hanging, electrocution, gas (firing squad made a famous appearance in 1977 but never really got off the ground). They needed something that wouldn’t jar the public, something that looked much more peaceful, civilized. The answer was what would become the standard 3-drug lethal injection protocol.
I’ve been chewing on the democratic accountability point Kozinski makes at the end of the above passage: “If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.” We should own it, and that means we shouldn’t be executing in a way that people associate with putting down a beloved pet. It seems to me he’s on to something here.
But how far do you want to take this? one of my colleagues asked. I mean, one could go all Hunger Games on this thing, and make people watch executions on a huge screen. The more blood the better.
That’s not what I have in mind, but there is something to recognizing that the death penalty is inherently violent. It has to be; it’s extinguishing life before the body would naturally have it end. And there is something to recognizing that lethal injection hides that fact, and indeed was designed for the very purpose of hiding that from us to make it more palatable.
Sunday, May 24, 2015
Causation Anonymity in Group Police Misconduct: No Conviction, No Justice, No Peace
Here in Cleveland, tensions are running high as the City reacts to a judge's decision, following a bench trial, that Police Officer Michael Brelo is not guilty of voluntary manslaughter or the lesser-included offense of felonious assault in connection with the deaths of Timothy Russell and Melissa Williams. Russell and Williams were shot a total of 137 times by various police officers, including Brelo. Brelo himself fired 49 rounds and at one point climbed atop the victims' car to shoot them (15 shots) through the front windshield.
The judge carefully parsed the evidence on the manslaughter charges and concluded that both victims suffered multiple fatal wounds--some from Brelo, some from other officers--and that he therefore could not conclude beyond a reasonable doubt that Brelo's wounds were the but-for cause of the victims' deaths. Thus the not-guilty finding.
From a purely legal standpoint, the decision makes sense. Lawyers, with their technical training in the various elements of crimes and torts, understand that the State fails to meet its burden of proof if even one of the essential elements of a crime is in doubt.
But the public doesn't think that way. The ordinary citizen understands the bigger picture. Two unarmed people were shot 137 times. They were African-American, the shooter white. Whatever the victims' conduct, and whatever deadly force may even have been warranted at some point to protect others, what is the possible justification for 137 shots?
More troublingly, if Brelo wasn't the "but-for" cause of their deaths, who was? We'll never know. The forensic evidence does not lend itself to anything but speculation in terms of the sequence of the bullet wounds and the likelihood that any one of them was the one that precipitated each victim's death.
And therein lies the rub. This decision paves the way for causation anonymity to immunize homicide, any time a group of police officers (or gang members or any other shooters) act together to end another human being's life. We can never know which bullet caused death. We therefore can never know which shooter caused death (at least from a legal standpoint). And we can never, therefore, punish the murderer.
Ironically, it would not have mattered in this case even if we could have pinpointed Brelo as the but-for cause. The judge also acquitted him of felonious assault, concluding that his actions were reasonable under the circumstances. Presumably, his ostensibly reasonable conduct would have served to exonerate him of voluntary manslaughter, even if the evidence established him as the instigator of the death-causing bullet. That finding, and not the missing evidence of causation, is probably the most-controversial aspect of this decision.
But causation anonymity could well matter in future cases. The law's devotion to technical minutiae is sometimes the enemy of justice. Wrongdoers now have a roadmap for how to act in concert in order to absolve each of them individually of legal responsibility for the most heinous of crimes.
Ultimately, then, I fear that justice will be, over time, the greatest victim of Brelo's conduct and its aftermath. And without justice, as the protesters (in Ferguson, in New York, in Baltimore, and now in Cleveland) remind us, there can be no peace.
Monday, May 18, 2015
Judy Clarke, Dzhokhar Tsarnaev and the Discretion of Strategy
As the Alabama spring progresses towards summer, I naturally have continued to think about the State’s power, particularly in its exercise of discretion – what to investigate, which suspect to arrest, which cases to charge, which cases to prosecute and how. As I was drafting a blog post last week, NPR informed me that Dzhokhar Tsarnaev’s jury had sentenced him to death. There has been a lot written and said about the prosecutor’s discretion in this case. Massachusetts after all has no state death penalty, so Tsarnaev was charged in federal court, where a death penalty was possible. Prosecutorial discretion, in this case and more broadly, is both a fraught and a well-trod topic. And deservedly so, but in this post I want to explore a different path – the discretion of the defense.
Judy Clarke was Tsarnaev’s defense attorney and she chose what some characterized as a risky defense – she conceded his guilt in the hopes of saving his life. Put another way, she named him a murderer in the hopes that the jury would be able to see something of him as a person beyond the horror he caused. In doing this Clarke did something that lawyers do everyday in all variety of cases – she made a decision of how best to defend her client. Thinking of what I know of Judy Clarke, I have no doubt that she weighed her decision – the evidence against her client, the shock and tragedy of the event itself, the emotional weight of the trial – and discussed the defense with him. At the end of the day, however, it was her decision to make as defense counsel and she exercised her discretion to create the best trial strategy she could. That it ultimately failed, that her client got the death penalty anyway, doesn’t change the reality that she did one of the hardest things lawyers do – she made strategic choices and she presented the case according to those choices. I don’t know any trial lawyers who don’t second guess these choices, particularly after a loss, and likely Judy Clarke has her own doubts.
What can and should professors do to prepare our students to make those choices. And when I say preparing, I mean lots of different things. On the one hand, there’s the preparing that accompanies knowing enough about the law itself to understand what choices are available. I suspect (hope) most law professors do a good job teaching students what the law is. How to apply the law is a trickier proposition. It’s one thing to memorize a holding, it’s another thing to decide whether or not that holding applies to your case or even ought to apply to your case. Beyond this, there are the more amorphous decisions of strategy and the emotional baggage that accompanies decision-making. I wonder whether these can be taught at all by anyone (or anything) other than experience.
In my own classes I use role play and “exercises” to try to get students to think beyond the inevitable exam at the end of the semester and to think of the “case” in real terms (even as they play pretend roles), but I have often wondered if all I have taught in the process is how I would strategize a case. As for the sense of loss I always felt when I knew I had chosen badly (or when the best choice was still a bad one as I suspect was the case with Tsarnaev’s), nothing ever prepared me for that. I could anticipate it. I could rationalize it. But I couldn’t ever quite be ready for the knowledge that I had made decisions that contributed to the conviction and punishment of my client. So I wonder how I, and others, can teach that? I can talk to my students about the practicalities of being a lawyer and embarking on a profession in which we all wield at least some tendril of power we lacked before those three letters, esq., were placed after our names, and I do. But in the end, I think discretion remains that double-edged sword that we all have yet to master the perfect instruction on its use. And so I think some of the best “teaching moments” I have had with regard to discretion have come years after my students left my class, when they email or call or sometimes even text to say “I have a hard decision to make, do you have a moment to talk?”
Judy Clarke was not my student. She never called me to talk. But from what I can tell, she did a great job with a hard, hard case. In the end, the jury found her argument unpersuasive and sentenced her client to death. There were thousands of events that led up to that moment, most of which pre-dated Judy Clarke’s work on the case, but in the end I wonder if there is some small part (or maybe large part) of her that wonders what if I had done it just a little differently. We can all say it wasn’t ever about Judy Clarke or her choices; the case was always about the client and the victims and the law. But that would not be completely true, and it would shove back into some dark corner one of the hardest parts of being a lawyer – making the decisions that constitute advocacy.
Thursday, May 07, 2015
Twelve Angry Men Inside Amy Schumer
If you have not seen Twelve Angry Men Inside Amy Schumer--Schumer's 12 Angry Men parody that brilliantly satirizes male attitudes about female attractiveness--check it below or wherever you can find it. The homage to what is often regarded as one of the great legal dramas is impeccable, the dialogue is hilarious, and the political messages (about gender issues and a host of other things) are clear without being didactic.
Monday, April 27, 2015
Natural Rights and the "Human Right" to Intellectual Property
I am picking up from where I left off in my prior post on human rights and intellectual property. My concern with embracing a human right to intellectual property arises from the possibility that it will lead to more expansive intellectual property protections. I would tend to agree, therefore, with the report by the United Nations Special Rapporteur in the field of cultural rights (mentioned by Lea Shaver in her comment), which characterizes copyright as distinct from the human right to authorship.
Human rights are generally understood to be natural rights. If one accepts this proposition, how does treating intellectual property protection as a human right relate to the natural rights intellectual property scholarship? The intellectual property and human rights conversation is primarily an international intellectual property conversation. However, the natural rights framing of intellectual property rights is primarily a domestic intellectual property conversation. Both of these frameworks are based on natural rights theories, yet they appear to reach opposite conclusions. With some exceptions, proponents of natural rights justifications for intellectual property tend to support more expansive intellectual property protections. On the other hand, proponents of a human right to intellectual property speak of “balance” and of using human rights frameworks to respond to excessive intellectual property rights.
One might be inclined to dismiss the theoretical foundations for intellectual property as irrelevant to the practical aspects of intellectual property law. However, the framing of intellectual property rights can impact the way private citizens, including judges and policy makers, view intellectual property protection and infringement. Gregory Mandel’s study on the public perception of intellectual property rights, for instance, found that individuals who view intellectual property rights as natural rights tend to support more expansive intellectual property protection. This is consistent with legal scholarship that takes a natural rights approach to intellectual property. My inclination, then, is that distinguishing between copyright protection and the human right to the moral and material interests arising from one’s literary or artistic production is a step in the right direction.
Tuesday, April 21, 2015
In the marketplace of ideas, Twitter has decided that online trolls are bad for business. Back in February, it was reported that Twitter's CEO Dick Costolo told staff "We lose core user after core user by not addressing simple trolling issues that they face every day." This statement suggested that keeping Twitter safer from abusers had become a corporate goal.
Recently, Twitter began to roll out changes that puts meaning behind Costolo's statement. Rather than asking the victim to track down an abuser, Twitter has flipped the script to test a new a feature to lock the abuser's account for a period of time. The account can be reactivated if the user provides a phone number verification, and then deletes all of the tweets that are in violation of terms of service. A screen shot of the procedure is below (and a text explanation is here on Ars Technica).
Additionally, Twitter's guidelines have been amended to broaden the definition of prohibited conduct to include "threats of violence against others or promot[ing] violence against others" (expanded from the “direct, specific threats of violence against others” in the former policy). In addition, the company is implementing measures to limit distribution of certain tweets that exhibit "a wide range of signals and context that frequently correlates with abuse including the age of the account itself, and the similarity of a Tweet to other content that our safety team has in the past independently determined to be abusive."
The sheer size and volume of Twitter's platform, and the types of distinctions that will have be made, make implementation of these standards a challenge. Of course, the platform is in the private sector, and these guidelines are a form a type of private governance. I wonder where this direction will take the company, what the impact will be on public discourse, and whether it will affect the behavior of other online platforms.
A Human Right to Intellectual Property?
The merger between trade and intellectual property, referred to as “strange bedfellows” in the 1990’s, has become the norm as a result of the WTO Agreement on Trade-related Intellectual Property Rights, and subsequent agreements. Intellectual property and human rights may seem like strange bedfellows as well. However, there is a greater connection between these two areas of law than one might imagine.
Article 27(2) of the Universal Declaration of Human Rights (UDHR) provides that “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” The International Covenant on Economic, Social, and Cultural Rights contains similar language. A number of scholars have considered the relationship between human rights instruments and intellectual property rights (i.e. Helfer, Yu, Shaver, Land, Chapman, Carpenter, and others). Some (Chapman, for instance) have suggested that this UDHR provision provides a basis for a human right to copyright or patent protection.
Writing on corporations and the possible human right to intellectual property, I found myself reluctant to accept the notion of a right to intellectual property as a human right. I like the idea of considering the impact of intellectual property rights on human rights, as has been done in the access to medicines debate, for instance. However, I am generally uncomfortable with the notion of a human right to intellectual property. Equating the UDHR human right to a right to copyright or patent protection raises a number of issues, and I doubt that it is ultimately a good idea. However, I am willing to be convinced otherwise.
Thursday, April 16, 2015
Ice cream Court of the United States
I missed this suggestion from a few weeks ago that Ben & Jerry's needed to name some flavors after women. Two proposals after the jump: Ruth Bader Ginger and Sonya [sic] Sotomayoreo Mint Cookie.
Wednesday, April 15, 2015
The Yale School of Law and Super-Parenting
In case you were feeling accomplished for having gotten the kids to school on time this morning, Heather Gerken has written nine YA vampire novels for her tween daughter. Gerken reports that her daughter "was never impressed that I was working full time, part of a two-career household and still outpacing J.K. Rowling by a considerable margin." My favorite line of the article: "The women [in the book] are ambitious and career-oriented, and some have the emotional I.Q. of a tree frog."
Gerken joins fellow Yalies Ian Ayres and Amy Chua in showing us the ways to channel our inner achievers into the more mundane joys of parenting. Ayres promised his children a puppy if they wrote and published an article in an academic peer-reviewed journal. Lo and behold, they did. And now they have Cheby, named for the mathematician that discovered Chebychev‘s inequality. In January we got an update from the Tiger Mother herself as her teenage daughters sleep past noon. I appreciate the introspection in constructing a pretty incisive self-parody, but since her shtick is how extreme she's willing to be, self-parody and honest reportage are a little difficult to differentiate.
Thursday, April 09, 2015
Technology & Tailights
It's not IP, but it is on my mind. Legally justified. That cannot be the end of the discussion, as it has been up until this point. Apartheid was the law. Women not voting was the law. Jews not being able to own property was the law. Same sex relationships were (and still are in some places) prohibited by the law. Dramatic? Not really. Not any more than the videos (i.e. North Charleston shooting etc. etc.) that keep surfacing. Seems like "the law" is hampering some honest and difficult conversations about the kind of society we want to have.
Technology is revealing failings in the legal system. The fact that the current law may tolerate or encourage something does not mean we should tolerate it. Someone will, no doubt, make a legal argument that the North Charleston police officer was acting within the scope of his authority when he shot and killed an unarmed black man in the back as the man ran away. Eight shots. Bravely caught on video by an anonymous person. Who would otherwise believe what happened? Technology made a difference here. Stopped for a tail light. For others, their "tail light" was walking through a store, standing on the street, riding the subway, or standing in the playground with a toy gun.
Video cameras are catching horrific acts in the United States that are reminiscent of South Africa's numerous incidents of "death by falling" during the Apartheid era. There are killings caught on camera and seemingly "harmless" speech involving racial slurs. These two are not completely unrelated.
While I value free speech, I am also mindful of the power of words. After all, words were used to condition populations to view their neighbors, friends, and family from different ethnic groups as the "other" and to eventually incite genocide. In Rwanda, the talk of eliminating "cockroaches" was a terrible, yet highly effective, strategy adopted from Nazi Germany. Just words. Just words. Words matter because they sensitize us to whether or not the person we are berating, beating, or shooting, is a cockroach, a dog, a monkey, or a human being. Will we pause before we shout, or shoot? Or are we now used to the idea of the criminal "other," such that we raise our fists, or pull the trigger, a little more quickly? If one gets used to referring to some group as "monkeys," "cockroaches," or the "N word," maybe it is just that much easier to pull the trigger. For instance, one of my friends from college who was raised in Apartheid South Africa, told me "no offense, but I just cannot think of blacks as people." He was a lovely and pleasant guy. However, that was his conditioning.
Legally justified. This cannot be where the conversation ends. Multiple killings of unarmed black men and boys have been caught on camera. When there is no legal consequence, is it possible that we get conditioned to see the killing as acceptable? Maybe this officer is surprised at what is happening to him. But for the video, he might reasonably assume that his actions would be viewed as "legally justified," even without a trial.
Sunday, April 05, 2015
Getting law right on "BCS"
Friday, April 03, 2015
Final Thoughts on Fiduciary Duty in Higher Education
As my month of guest blogging comes to an end (how did it get to be April already?), I wanted to close with a final thought about fiduciary duty in higher education. Financial pressures bring these issues to the fore. At Appalachian School of Law, we see board members accused of having “breached the fiduciary duty to the law school, to the students and to the public” by refusing to consider a merger or move out of Grundy. At Sweet Briar, a county attorney in Virginia has filed suit to stop closure of the school, alleging that the board should have considered other options including “a new fund-raising campaign, admitting more international students, stepped-up recruiting at private girls' schools with equine programs (a strength of the college), restructuring the curriculum, or stepped-up recruiting of wealthy students.”
Changes in the educational marketplace mean that universities will continue to come under tremendous financial pressure. Cost increases and changes in the way that universities are paid for similarly mean than students are asked to bear an ever-growing share of the educational costs. In some cases, the cost of debt-financing an education may well come close to—or even exceed—the financial premium gained from degree attainment.
In this environment, I think it is important that institutions—including board members, administrators, and faculty members—begin talking early and often about what obligations they have to serve current students, future students, and the public more broadly. Waiting until an institution is in danger of closing is really too late to decide what the institution’s goals, mission, and obligations are. By starting discussions much earlier, schools will be much more likely to be able to acclimate to a rapidly changing landscape.
Tuesday, March 31, 2015
A Collection of Thoughts on Depression, Perverse Incentives, and Misunderstanding Mental Illness
Listening to this interview on NPR's Weekend Edition Saturday morning, I was not surprised to hear that Andreas Lubitz, the pilot who may have deliberately crashed a Germanwings plane into the Alps last week, also deliberately hid his depression from Lufthansa (Germanwings' parent company). Mental illness continues to be an embarrassment to people, despite the large numbers of those who suffer from some form of depression/anxiety or other condition.
I was more surprised to hear what the result would have been had Lubitz disclosed during his training that he was seeking treatment for depression. According to Matthias Gebauer of Der Spiegel, Germanwings would have "kick[ed] him out of education and pull[ed] away his pilot license." When Scott Simon [the radio host] pushed back noting that many people suffering from depression are able to be highly functioning members of society, Gebauer's response was that "pilots . . . that is a very special job [with] strict responsibility." While not speaking for the airline specifically, this seems like a weak response for an anachronistic policy. And, instead of deterring those with "mental illness" from becoming pilots, the policy, in this case (and I suspect in others), forced Lubitz underground with the treatment he clearly needed.
The perverse incentives created by the Lufthansa/Germanwings policy arise in the bar admission process too. The Justice Department is investigating the Florida Supreme Court over its questions about the mental health of bar applicants. Among the routine questions posed to would-be-attorneys is whether they have ever been diagnosed with a mental illness such as bipolar disorder, psychosis or depression. Not surprisingly, this question (questionable in its purpose) drives applicants to lie on their questionnaire or, worse, away from seeking treatment. Florida is not the first state to come under fire from the Justice Department for these potentially discriminatory questions. In the past few years Vermont and Louisiana have received letters from the agency criticizing their invasive mental health-questions. In Louisiana's case, Justice threatened to sue before an agreement was reached.
Relatedly, to the extent it reflects our general cultural ignorance about mental illness, in recent months police have come under fire for their inability to peaceably handle the mentally ill, including using lethal force against unarmed, clearly ill people. of A particularly sad instance of this took place in Georgia a couple of weeks ago. Anthony Hill, who began to suffer symptoms of bipolar disorder after returning from his service in Afghanistan, was shot and killed as he, naked and unarmed, approached police despite warnings to halt. Meanwhile, it is well known that a large percentage of those in prison suffer from untreated mental illnesses -- this is both an indictment of our choice to warehouse ill people and a waste of limited government resources. We cannot condemn the criminal justice system's inhumane treatment of the mentally ill, however, without noting that it reflects similarly uniformed decisions made in numerous societal contexts.
Lubitz's suicide mission/mass murder has led to knee-jerk responses by US airlines. Currently, "due to a growing public awareness that common mental disorders like depression are treatable," these airlines have more reasonable policies toward employees' mental health. They are now reviewing these policies to determine if they are not doing enough to "detect" pilots with mental illness. This seems like the wrong lesson to learn from the Germanwings tragedy but given the many contexts in which our culture and polity refuse to acknowledge the reality and complexity of a range of mental illnesses, it is sadly not surprising.
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.