Tuesday, October 28, 2014
Elections and Gerrymanders
With Republicans poised to retain, and probably increase, their majority in the U.S. House of Representatives, expect political observers to criticize the partisan gerrymandering of House districts. The GOP likely will win a disproportionate number of seats because in many states, representation in Congress does not correlate well with the voting strengths of the parties. In Indiana, for example, Republican candidates for the U.S. House of Representatives outran Democratic candidates by a 53-45 percent margin statewide in 2012. Yet Republicans hold 78 percent and Democrats only 22 percent of Indiana’s House seats.
Observers are correct when they worry about the mismatch between voting strength and representation. But partisan gerrymandering is not the main culprit. Even if electoral mapmakers drew simple, compact districts without looking at voting data, representation would not correlate well with voting strength. Why is the conventional wisdom about partisan gerrymandering wrong? If partisan line drawing is not the main problem, what is?
Residential patterns are much more important than partisan gerrymandering as an explanation for the mismatch between voting strength and party representation in Congress. Republicans get more electoral bang for their votes because Democrats are bunched in urban areas and Republicans are scattered more evenly throughout suburban, rural, and other nonurban communities.
While gerrymandering is not the primary problem, it can be part of the solution. Electoral mapmakers can compensate for residential patterns by eschewing compact districts in favor of districts that combine urban and nonurban areas. That would bring party representation more in line with voting strength.
[Partisan line-drawing does have a bigger effect for state legislatures.]
Monday, October 27, 2014
Ebola: A Problem of Poverty rather than Health
Undoubtedly, the death toll in West Africa would be much lower if Guinea, Liberia, and Sierra Leone had better health care systems or if an Ebola vaccine had been developed already. But as Fran Quigley has observed, Ebola is much more a problem of poverty than of health. Ebola has caused so much devastation because it emerged in countries ravaged by civil wars that disrupted economies and ecosystems.
Ultimately, this Ebola epidemic will be contained, and a vaccination will be developed to limit future outbreaks. But there are other lethal viruses in Africa, and more will emerge in the coming years. If we want to protect ourselves against the threat of deadly disease, we need to ensure that the international community builds functioning economies in the countries that lack them.
Our humanitarian impulses in the past have not been strong enough to provide for the needs of the impoverished across the globe. Perhaps now that our self-interest is at stake, we will do more to meet the challenge.
Saturday, October 25, 2014
The Ebola "Czar"
In the wake of Craig Spencer’s decision to go bowling in Brooklyn, governors of three major states—Illinois, New Jersey, and New York—have imposed new Ebola quarantine rules that are inconsistent with national public health policy, are not likely to protect Americans from Ebola, and may compromise the response to Ebola in Africa, as health care providers may find it too burdensome to volunteer where they are needed overseas. Don’t we have an Ebola czar who is supposed to ensure that our country has a coherent and coordinated response to the threat from Ebola?
Of course, the term “czar” was poorly chosen precisely because Ron Klain does not have the powers of a czar. He will oversee the federal response to Ebola, but he cannot control the Ebola policies of each state. Unfortunately, on an issue that demands a clear national policy that reflects medical understanding, public anxieties will give us something much less desirable.
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.
Thursday, October 16, 2014
Does Teaching Torts Warp Your Brain?
Maybe something just happens after 10+ years of teaching Torts. Delve each week into human suffering...in sets a bit of desensitization. Every terrible tragedy in the news -- say, a horrible hayride accident in Maine--drives the Torts Teacher to start asking questions.
Does primary assumption of risk bar a hayride accident victim's lawsuit? (No). Has industry custom been violated? (Perhaps). There's a little voice in one ear opining, "too soon," and one in the other ear whispering, "teachable moment." Who knew, for instance, that Maine has a two-year old rec use-like "Agritourism Activities" law? (HT: Portland Press Herald). That there were attorneys specializing in hayride accidents?
Or consider a simple object encountered in daily life - say, a pencil. The Torts Teacher finds fascinating the question of how many different ways one could accidentally cause one's self fatal injury through encountering said object. (42).
The three D's for a Torts Teacher are certainly not Discipline, Dedication, and Determination. They are Death, Dismemberment, and (Permanent) Disability.
Maybe this isn't unique to my favorite first-year subject. Maybe Evidence teachers reject new science stories not adequately supported by peer review. Maybe labor law professors like Joe Slater Al Snow spend their days pondering whether, were they only in a union, they could file a grievance over some joke lobbed in their direction at the water cooler (bugged or otherwise).
Personally, the biggest effect of teaching Torts on my thinking arose after I became a parent. Baby walkers? Absolutely not. Keeping toddler in a carseat after exceeding its recommended weight? Misuse! Preschooler riding inside the shopping cart? Not on my watch. Product recalls? Reasonably, nay - vigilently!, monitored. In fact, this laptop just got recalled so I need to sign off right now.
Thursday, October 09, 2014
While controversial among some ethics experts, uterus transplantation has been performed several times, most commonly in Sweden. A few weeks ago, a mother for the first time gave birth to a baby gestated in a transplanted uterus.
Should we worry about uterus transplants? Transplanting life-extending organs, like hearts, livers, lungs and kidneys, has become well-accepted, but observers have raised additional questions about transplantation for life-enhancing body parts like faces and hands. As long as transplant recipients have their new organs, they must take drugs to prevent their immune systems from rejecting the transplanted organs. The risks can be substantial. For example, the immunosuppressive drugs put people at an increased risk of cancer. It is one thing to assume health risks for the possibility of a longer life, but are the risks of being a transplant recipient justified by improvements in the quality of life?
We always should worry about risks from novel treatments, but the risks seem quite tolerable for uterus transplantation. Over time, scientific advances have reduced the side effects from immunosuppression. The risks are not as serious as they used to be. In addition, a transplanted uterus can be removed after childbirth, avoiding the need for long-term immunosuppression that exists with other kinds of transplants. Finally, we generally allow patients to weigh the benefits and risks of medical treatment for themselves. Absent a disproportionate balance between risks and benefits, it is not appropriate for society to usurp health care decision making from patients. Hence, face and hand transplants are becoming more common even though they do not prolong life.
Of course, with uterus transplants, we also have to worry about the risks to the child from the drugs that the mother must take to prevent her body's immune system from rejecting the transplanted uterus. On that score, we have reassuring data. Recipients of kidneys, livers, and other organs take the same immunosuppressive drugs as do recipients of a uterus transplant, and more than 15,000 children have been born to transplant recipients since the 1950’s.
Though not definitive, the data are generally reassuring. While children exposed to immunosuppressive drugs during pregnancy are more likely to have a premature birth and low birth weight, they do not appear to be at elevated risk of physical malformations or other serious side effects. Moreover, it is generally difficult to argue that people should not reproduce because of the health risks to their offspring. Procreation is a right of fundamental importance and should be recognized for all persons, even if they may pass a serious disease to their children. Thus, for example, it is acceptable for women to reproduce when they are infected with HIV or carry the gene for a severe inherited disorder.
Can't women rely on gestational surrogacy instead of a uterus transplant? This may work for many women, but not in locales where gestational surrogacy is prohibited. Moreover, the legal battles that can follow gestational surrogacy illustrate the risks of that alternative, as well as the significant role that gestation plays in forming motherhood.
There are many important reasons why women want to bear their own children. Women may want to have children with their chosen partner and without the involvement of third parties (an interest considered in this article). They may want to benefit from the ties with their children that develop during pregnancy. For these and other reasons, we should be careful not to be overly skeptical of uterus transplants.
[cross-posted at Health Law Profs and orentlicher.tumblr.com]
Wednesday, October 08, 2014
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
Can't They Read on the Fifth Circuit?
With a highly troublesome reading of the U.S. Supreme Court's opinion in Planned Parenthood v. Casey, the U.S. Court of Appeals for the Fifth Circuit managed to uphold a statute that has closed many abortion clinics in Texas, at least for the time being. The statute requires abortion clinics to meet standards for ambulatory surgery clinics, and the costs of doing so are unaffordable for the majority of abortion clinics. According to the New York Times,
Thirteen clinics whose facilities do not meet the new standards were to be closed overnight, leaving Texas — a state with 5.4 million women of reproductive age, ranking second in the country — with eight abortion providers, all in Houston, Austin and two other metropolitan regions. No abortion facilities will be open west or south of San Antonio.
At issue was whether the statute imposes an "undue burden" on pregnant women seeking an abortion in Texas and is therefore unconstitutional. The district court found an undue burden because some women will have to travel 500 miles to reach an abortion clinic and therefore incur a substantial hardship from the increased time and expense of the travel. The women will have problems with child care, transportation, and getting time off from work.
The Fifth Circuit overrode the district court on the ground that Casey requires challengers to demonstrate that an abortion regulation imposes an undue burden "in a large fraction of the cases in which it is relevant." Since the women who live great distances from remaining clinics are not a "large fraction" of pregnant women in Texas, the appellate court upheld the clinic standards regulation.
But that reading ignores half of the Casey standard. Yes, the Casey Court referred to a large fraction of the cases, but it also referred to the cases for which the regulation "is relevant." Thus, when the Casey Court struck down Pennsylvania's spousal notification requirement, it observed that abortion regulations "must be judged by reference to those for whom it is an actual rather than an irrelevant restriction." Indeed in Casey, the spousal notification requirement would have been an undue burden for less than one percent of women seeking abortions in the state.
It is not always easy to interpret Supreme Court opinions, but the Fifth Circuit's reading is not tenable. Fortunately, this is only a temporary ruling pending a full appeal before the Circuit, and the Fifth Circuit will not have the final word on this matter.
[cross-posted at HealthLawProfs and orentlicher.tumblr.com]
Thursday, October 02, 2014
Another Disappointing Sign of Our Political Times
As the campaign season heats up, demagogic appeals to the voters are starting to crowd the airways. So when NPR ran a story yesterday about the seemingly lax oversight by Federal Reserve officials over Goldman Sachs, it wasn’t surprising to hear a U.S. Senator condemn the cozy relationship between the Fed and financial institutions and talk about the need for “regulators who understand that they work for the American people, not for the big banks.” Nor was it surprising that the senator did not offer any specific proposals to make the Federal Reserve work better.
But what was surprising is that the U.S. Senator was Elizabeth Warren, who has given much consideration to the ways in which we might make financial regulation more effective in this country. It would have been far more enlightening to have a discussion about what we should be doing.
As a former state representative, I understand the difference between academic discourse and political discourse, but Senator Warren was being interviewed on NPR, not delivering a stump speech at a county fair. The listening audience would likely have been quite receptive to a more nuanced discussion of the issue. Unfortunately, our political system drives even the most thoughtful elected officials to play politics as usual.
What Do We Talk About When We Talk to the Media?
One of the fun things about being a law professor is talking to journalists. Even as a junior professor, one will often have the opportunity to comment in the news media, especially if one writes in a timely area or lives in a city with a decent media market. It's also important. Professionally, one might spend two years writing a piece which redefines the theory of, say, tort law, to be rewarded with 89 readers on SSRN. But in a 15 minute interview with a major or even local media outlet, one can generate immense positive attention for a law school and an affiliated university. From a mission standpoint, moreover, one of the things law teachers can do is educate the public about legal rules and institutions, and the public reads the news a lot more enthusiastically than it does 450-footnote articles.
Below are a few thoughts about talking to the media -- not meant to be exhaustive by any means, in keeping with the "tips" theme of some recent posts:
1. Talk in sentences: Advising student writing, whether in the form of legal memos or law review Comments, we teach our students to write in paragraphs. The media isn't interested in paragraphs. At most, a journalist will quote a few sentences of your thoughts. While you don't have to limit yourself to soundbites, you're unlikely to have more than even a few sentences quoted even after conducting a 20 minute interview.
2. It's not your story: I've seen a few professors complain over the years about being quoted out of context. If you're worried that you won't be able to give the complete law professor answer, "it depends...", then you shouldn't talk to the media. Once you hang up the phone, it's out of your hands. The good news is that you can always elaborate or clarify on your own blog, or on your Twitter feed. Thanks to Twitter, these days we're all insta-pundits. So save the full explanation for a different venue.
3. Be right most of the time: The best way to get a repeat call from a journalist, or have her refer you as a source to a colleague, is to be right most of the time. If you can accurately predict, say, the outcome of a labor dispute, then you're far more likely to get a follow up call for a future story. In scholarship it may be that being interesting is more important than being right, but that's not usually what interests journalists.
4. Air quotes don't show up on TV or the radio: I recently gave a 30 minute interview to a local TV channel. I summed up a somewhat confusing explanation by saying, with visible air quotes, that "my 'expert assessment' is..." Of course, the video clipped out my air quotes. It would be funny if I actually talked like that, but when my mom watches the .wav file it sure looks like I do.
5. Keep a jacket in your office: Not everyone boasts a Serious Professor Goatee that's worthy of Joe Slater. And sometimes we show up to work, particularly when writing in the summer, in plastic pants. Amazingly, one can don a lawyer costume from the waist up in a matter of moments. I don't want to veer into this blog's alleged sartorial obsession, but it's handy to be able to look the part when an unexpected opportunity arises.
6. A wire service is worth a dozen interviews: It's super cool to know what you sound like in Croatian. If you are lucky enough to comment in a story for Bloomberg, AP, or Reuters, particularly one with international application or interest, you can find yourself quoted in dozens of papers, including many overseas.
7. You know more than you know: There are of course reporters who cover legal issues exclusively, or are lawyers themselves, and they may know as much or more law than you do. But many reporters are really looking for someone who has legal training to respond to an emerging development, not for the world's leading expert. You need not have written a treatise on an issue to be able to add some value. Free of the conflicts arising from having to represent clients, with a little bit of legal research you can often help a reporter unpack legal issues and translate our professional "-ese" with ease. It's okay to take a few minutes to read up on some issue before offering to talk to a reporter.
8. TV will cancel your interview if Gary Bettman is available: I've had more than a few TV stations call to see if I could rush down to the local affiliate (after rushing home to change out of my plastic pants) to appear on some show or other via satellite uplink. And then, as I don my professor costume furiously, they call back to cancel because the commissioner of the league the story is on wants to appear instead.
9. Answer your phone: The best way to get a media opportunity is to be responsive, both to telephone calls and emails. For me, the reporter most likely called McCann and Feldman and only got to me because they were booked or couldn't comment due to other obligations. But even if I'm not the first person they call, if I answer the phone or respond within a few minutes to an e-mail, I'm more likely to be the one they use for an interview than the next person down on their list.
The drawbacks of heightened expectations
The NFL has been raked over the coals recently for its (mis)handling several incidents of domestic violence by players. In some ways, this seems unfair, in that we seem to be asking the NFL to do more and do better with domestic violence than anyone else. Domestic abuse is a society-wide problem and no other institution--not the judiciary, not universities, not law enforcement--has not shown much more skill in understanding or handling the problem. In any event, why should professional sports leagues play any role (much less a special one) on the subject. It is not clear that there is a higher rate of domestic violence among professional athletes (it may depend on what the comparison is). And one could argue that teams and leagues should not care about players' off-field conduct, just as most employers don't care about what their employees do outside of work.
At another level, though, I wonder if it is fair to hold sports to a higher standard because of their history--a history that sports, leagues, and teams readily promote. Baseball regularly touts that it was ahead of society on integration--Jackie Robinson joined the Dodgers six years before Brown and two months before President Truman desegregated the military. The NBA has financially propped up the WNBA for almost twenty years, allowing for the longest-running professional teams-sports league. Creating athletic opportunities for women and girls is Title IX's most-visible achievement and what makes possible genuinely popular women's sporting events--University of Connecticut basketball, the US Women's National Soccer Team, etc.). NFL Commissioner Roger Goodell has made noise about the NFL being a moral leader; this is laughable (especially with Goodell as its head), but we should be able to take him at his word as to his intent, which means he bears the burden of figuring it out ahead of the curve.
So if sports and leagues have taken the lead in the past on some social issues and if they get much PR mileage out of that past, is it unreasonable to expect them to take the lead on this issue, when they clearly want to be involved? And if they fail so spectacularly, is it unreasonable to criticize them for that failure?
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. . . . .
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)
Teaching current events
Interesting piece in the Chronicle of Higher Ed. At my school, one of the categories on student evals is how we work current events into the discussion. I have used things from Ferguson in Evidence, notably in discussing character evidence and other acts. And I think the controversy around the non-hiring of Steven Salaita at Illinois may lend itself to some discussions of promissory estoppel (there have been some interesting on-line debates about whether he might have a good P/E/ claim). But I think that is as far as a law school class can go with current events, at least before things play out legally and outside of a small, niche seminar.
On a related note, we are working to start a program of monthly faculty talks/panels to discuss ongoing and current events with students and student organizations. Something different than a series of "teach-ins," it will be more a chance for faculty to share their work and to engage with students on hot topics.
Monday, September 22, 2014
Addressing the Unmet Need for Civil Legal Representation--and the Legal Employment Market
It’s my privilege to hang out with present and future health care providers almost every day through teaching at the Texas Tech University Health Sciences Center's brand new Public Health School and being an adjunct faculty member at our terrific medical school and on the advisory board of our awesome nursing school. One of the issues that always surprises them is how little access most individuals have to legal services as compared to medical services. We are used to hearing the bad about access to health care—and there is still plenty of bad—but unless a person faces criminal charges, brought by the government, there is no right to legal representation for those who cannot afford it and very few public or private sources of insurance.
The primary source of federal funding for individuals involved with a civil dispute—child custody, divorce, land-lord tenant, employment, the Legal Services Corporation (LSC), estimates that 80% of “low income Americans who need civil legal assistance to do not receive any, in part because legal aid offices in this country are so stretched that they routinely turn away qualified prospective clients.” See report, Documenting the Justice Gap in America. Individual states also have some subsidized civil aid programs. Although the current president is about as sympathetic to LSC as any in recent history, demands for help still far outstrip demand.
Risa Kauffman of Columbia Law School reported to a U.N. Human Rights Committee examining how the U.S. complies with the an international covenant on civil and political rights reported that: "In the United States, millions of people are forced to go it alone when they're facing a crisis….It's a human rights crisis, and the United States is really losing ground with the rest of the world."
And if anyone is wondering why, given this size of this unmet need and given the existing federal investment in student loans for legal education and the downturn in legal employment opportunities, there hasn’t been federal action to increase staffing at LSC and other organizations—that’s a good question.
If, however, your first reaction here is to laugh and tell a lawyer joke, browse through these state reports, complied by the National Legal Aid & Defender Association and usually commissioned by state courts and chief judges, documenting the unmet need for civil representation in our 50 states. The National Legal Aid and Defender Association has helpfully put together a 50 state survey of reports. The ABA has a Standing Committee on the Delivery of Legal Services that considers access as well as other issues.
The “why” of this situation is interesting--it probably comes from a combination of factors including a lack of demand for legal insurance-perhaps because most people have little understanding of how much they might need a lawyer at crucial junctures in their life, let alone what such a lawyer would cost. Here’s some history from Prof. Alan Housman at Penn. Certainly at least one of those factors is the strong lobby of corporate interests who benefit from the often David and Goliath like disparity in disputes between individuals and corporate entities. Although here’s an argument from the Brennan Center for Justice at NYU School of Law explaining why civil legal aid would be economically beneficial for the states providing it. Here, too, is some very interesting work by Professor Victoria Shannon at Washington & Lee Law School about the emergency of “third-party funding” of civil law suits.
Thursday, September 11, 2014
America’s Prison System is Broken
This news item reporting on the release after 30 years of two North Carolina brothers, described in news reports as both being “mentally disabled” after being declared innocent based on DNA evidence is a timely excuse to bring up a topic that no one likes to discuss—as John Oliver put it in song, dance and puppets a few weeks ago, American’s Prisons are Broken. And one of the primary reasons for this is, as I and others have written before, is that they have become de facto warehouses for those with mental illness, mental disability, and substance abuse conditions. 73% of female prisoners and 55% of male prisoners in state systems have mental health problems (unrelated to the fact that they are prisoners). A recent edition of Health Affairs had several very useful and interesting articles on the mental health issues of prisoners. Because prisoners are the only population in the United States with a Constitutional Right to health care, the cost of prisons, including the cost of health care, has become ruinously expensive- States spent 7.7 billion on prisoner health care in fiscal 2011 the cost of health care provided to prisoners—with the aging population a considerable source of expense.
And despite whatever care they receive in prison, they leave with medical needs as or more serious than when they come in. Study after study confirms that a high rate of prisoners don’t survive the first two weeks after release-often because of a fatal drug overdose. This problem is one we share with Europe and with Australia. And the expenses continue post release with ex-prisoners making high use of emergency services-see here and here. Those prisoners who survive the first two weeks after release, and have a look at how many don’t, find themselves umemployable due to a toxic combination of lack of marketable skills, pre-existing disabilities, and the chronic illnesses that they either acquired in prison or brought out with them. A few states including Kentucky and California have developed their own programs to address these post-release issues by coordinating the transition. But these efforts are uncoordinated and underfunded.
A public health perspective of the problems we face in regard to US Prisons, would ask one question: what could prevent them? What could prevent people from going to prison in the first place and what could prevent them from returning there when they get out? And a legal perspective has to be how this situation can be consistent with a system of laws the purport to protect those with mental disabilities from discrimination and on those lawfully convicted of criminal offenses from cruel and unusual punishment.
Saturday, August 23, 2014
NPR on police body cams
I was interviewed for an NPR Weekend Edition story on police body cameras and whether they represent any sort of great solution to the problem of figuring out what happens in police-public encounters. As expected, I provide the "no, video is not some all-showing neutral observer" perspective.
Wednesday, August 20, 2014
More on police "pattern or practice" in Ferguson
Andrew Ferguson (UDC) has an essay at HuffPost discussing the potential for mapping and predictive technologies to look not only at where crime occurs (its primary current use), but also where police officers are at given times and what they are doing. We thus can identify and map "problematic" police-citizen interactions, thereby showing where individual officers may be acting improperly (e.g., making a high volume of stops without recovering any wrongdoing) and showing patterns of misconduct. The technology also would provide policymakers the notice necessary to establish municipal liability.
Friday, August 15, 2014
First Amendment repealed in Ferguson, MO
Ronald K.L. Collins suggests (hopes?) we are about to enter a New York Times v. Sullivan moment in response to events in Ferguson, MO--broad free speech principles forged from public and media outrage and exposure of racial abuse by police and government officials. I am less sanguine, because I do not see either the government or individual officers being held to account or sanctioned in any way (legally or politically) for the massive restrictions on free expression that have been imposed in the last week. Collins may be correct that this may present an opportunity for the "admirably defiant spirit" of New York Times to "find its way back into the hearts and minds" of the public and for the public to demand that local government show greater respect for First Amendment rights. But these these events are not going to end with a resounding judicial affirmation of the First Amendment that will impose those obligations on government or sanction it for its past disregard.
Courts almost certainly will accept the government's assertions of public safety concerns and recent memories of rioting as justifying officers responding to seemingly peaceful, if angry, protests with riot gear and rubber bullets--these events illustrate Timothy Zick's thesis that public spaces are no longer for collective speech by large groups (My favorite detail: Police ordering people to return to their homes, then saying "Your right to assembly is not being denied"--oh, if you so say). The Eighth Circuit has never held that citizens or the media have a First Amendment right to record police in public spaces, so individual officers will enjoy qualified immunity for various incidents in which they have ordered citizens and journalists to stop recording, confiscated video equipment, or arrested people for recording. There is no evidence the city or county itself ordered officers to target people filming police--at best, municipal policy is silent. The federal government has already backed the local power play by declaring a no-fly zone over Ferguson, thus preventing television helicopters from recording activity from the air. DOJ has promised to conduct an investigation to see that justice is done, but that seems more about the original shooting; otherwise, DOJ assistance has been with "crowd control" and urging citizens not to "antagonize" police. But that "antagonism" has, in large part, consisted of attempting to assemble and protest and to video police massively over-reacting to those attempts--so DOJ's advice is for people not to do the things they should have a constitutional right to do. And like southern officials 50 years ago, Ferguson and St. Louis County officials do not seem affected or shamed by public outrage over their conduct, do not seem to acknowledge having done anything wrong, and do not seem inclined to make any changes on their own accord.
Again, the public takeaway from this may be a reaffirmation of free speech ideals. But is that enough without some official declaration and application of those ideals?
Update: According to this story, things played out much differently Thursday night, under the leadership of Missouri Highway Patrol Captain Ronald S. Johnson, a Ferguson native. There was no massive militarized police response to demonstrators and people were allowed to march and gather. And police officers were ordered to remove their gas masks. Missouri Governor Jay Nixon "vowed that officers would take a different approach to handling the massive crowds that have taken to Ferguson’s streets each night." (For those of you who teach Evidence, this would be an example of an inadmissible subsequent remedial measure).
Wednesday, July 16, 2014
Two (more) op-eds on Hobby Lobby
Ann Lipton has nicely captured the zeitgeist with the notion that "there is something of an obligation for all corporate law bloggers to weigh in on Hobby Lobby." Today, for example, the Conglomerate is starting up on its second Hobby Lobby symposium. So it is with some trepidation that I highlight for you two additional pieces on that speak to this case once again. First, Brett McDonnell defends the decision from a progressive perspective in "Ideological Blind Spots: The Left on Hobby Lobby," appearing in the Minneapolis Star-Tribune. Brett argues that the decision provides space for corporations to have goals outside of shareholder wealth maximization -- something that liberals have promoted in the corporate social responsibility context. The op-ed also recounts the history of RFRA, which overturned Justice Scalia's Smith opinion, and points out that progressives have traditionally been defenders of religious liberty and toleration. The op-ed has (at this point in time) 716 comments, which kind of puts us blawgs to shame.
Second, Grant Hayden and I have penned "Who Controls Corporate Culture?", which appears this morning in the St. Louis Post-Dispatch. Although not written with this intention, it is actually a nice complement/rejoinder to Brett's piece. It argues that folks are riled up about Hobby Lobby in part because the company's 13,000 employees had no role in making the decision. If corporations are going to be according political and religious rights, we argue, the employees need a voice in choosing how to exercise them, particularly when the primary impact is on employees.
Thursday, June 26, 2014
Brishen Rogers has a great, long post at CoOp considering why soccer (or futbol, if you like) never caught on in the United States. He somewhat piggybacks on David Post's VC post from last week.I was always actively antipathetic towards soccer, partly because I did not understand how the overall game worked (beyond "kick the ball in the goal" and "stop using your hands"). I started watching more in recent years, when my daughter took up the game for a few years, and I have to admit to feeling pretty down on Sunday night. I also knew we were not going to beat Germany (although that may be the pessimism that comes with being a Cubs and Northwestern fan).
I like a lot about what Rogers and Post propose; I'll add a few additional points in the gaps.
First, I want to defend the "too little scoring" explanation for soccer's relative unpopularity. The counter to that (which Rogers offers) has always been "look at baseball," which can be just as low-scoring as soccer (especially now that fewer players are juicing). But we need to tweak the comparison by recognizing the differences between soccer and baseball. Even the lowest-scoring baseball game involves a series of one-on-one encounters between pitcher and batter, each of which has a "winner" (batter gets on base or batter is out) and each of which marks a step towards the ultimate result and the ultimate victor in the game; the winner of the game is based on the sum total of those individual encounters. More importantly, baseball is untimed--the point of the game is to score the greatest number of runs within the 27 outs each side is given. So each team has two simultaneous goals--to both score some runs and to get the needed 27 outs in order to win. So we should not say "well, baseball and soccer both have a lot of 2-1 games," because that 2-1 baseball game also had the 27 outs the team needed to win the game resulting from those individual encounters. Relatedly, do not ignore the effect of ties. In baseball, the aggregate of those individual encounters--and getting both runs and outs--is guaranteed to get us to a victor.
If we want to test the "not enough scoring" explanation, the proper comparison is other timed sports, sports in which the only goal is score more points than the other team within a given period of time. And the two major timed U.S. sports--football and basketball-- both involve a lot of scoring.
Second, Post argues that there is "wa-a-a-y too much failure" in soccer and Americans do not like failure. (He adds that the hardest skill in sport is not hitting a baseball, but kicking a soccer ball into the net in a game). Comparisons aside, there still is an awful lot of failure in baseball--the offense fails in more than 75 % of those individual encounters and the greatest individual hitter fails 65 % of the time. Of course, if we focus on the individual encounters in baseball and getting outs as a team's contemporaneous goal, that sense of failure goes away, because we can say the pitcher/defense succeeds in 75 % of those individual encounters.
Third, Americans and American sports media gravitate to individual star players and those stars are more obvious in the big American sports than in soccer because it is easier to see the "star" plays they make. We see LeBron James making shots, we see Peyton Manning throwing touchdown passes, we see Mike Trout hitting home runs or Stephen Strasburg striking people out. And, particularly in basketball, one player makes the difference--in the NBA, the team with the best player in a series generally wins the series. Because we see Lionel Messi score less frequently, we have less of a sense of him as a star making "star plays" (at least plays that produce success). And one star player is less able to dictate soccer outcomes--after all, Portugal's Cristiano Ronaldo is regarded as the best player in the world and his team did not get out of the "Group of Death."
Fourth, I agree with Post about the randomness and caprice involved in soccer. Football, and to a lesser extent basekball, involves precise plays and much less of the free-wheeling running that soccer seems to entail. While all sports involve a bit of luck at the margins, soccer seems to rely on more of it.
Finally, Rogers makes some good cultural and sociological arguments for why America went in the direction of football and basketball rather than soccer. I would add one pont. MLS and professional soccer in this country is said to not be successful because it is not as big as the NBA, NFL, and MLB. But part of the problem has been the insistence on measuring MLS success (monetary and attendance) compared with the sucess of today's other leagues, as opposed to how those leagues looked when they were ten years old. The NFL was founded in the 1920s (and no one one really cared about it until the 1950s), the NBA in the 1940s; it is ridiculous to measure a nascent soccer league against those mature leagues. In 1925, the early days of modern Major League Baseball, no team had more than 1 million in attendance; in 1955, the midpoint of baseball's so-called Golden Age, only eight teams had more than 1 million in attendance and only one had more than 2 million; in 2013, every team had more than 1 million and eight teams had more than 3 million. So the question should not be if soccer is earning the same attendance or money as the other three leagues; it should be how it is doing for a new sports league. And by most measures, the answer to that question seems to be "quite well."
Tuesday, June 24, 2014
A victory for the rule of law - apparently not
I had to edit this blog because literally as I posted it, the news changed. Monday, Meriam Ibrahim, a Sudanese mother of two young children who was facing a death sentence for adultery for marrying a Christian man and apostasy after refusing to denounce her faith was released by court order. As I previously wrote, her imprisonment violated Sudanese law. Her release was a victory for the rule of law. International pressure influenced this outcome. But the victory was very short (less than 24 hours). The breaking news is that she was rearrested at the airport and was taken into custody along with her two children and husband.
Unfortunately, Ibrahim is only one of many who have suffered (and are suffering) in this way. There are many who endure tremendous human rights violations because of the lack of rule but who do not receive media attention. Ibrahim's story illustrates my previous point - international pressure is one way to help bolster rule of law in developing countries, however, that may not be enough as evidenced by the re-arrest of Ibrahim. Perhaps governmental officials who are threatened with a charge of a crime against humanity for failure to enforce their countries own laws will feel the weight of international shame and act to uphold the rule of law.
Thursday, June 19, 2014
How to Prosecute Crimes Committed Abroad?
Earlier this year, in U.S. v. Pepe, a former U.S. Marine captain was sentenced to over 200 years in prison for brutally molesting young girls while teaching in Cambodia under the pretense of being a college professor looking out for the Cambodian youth. He was found guilty of a violation of the PROTECT Act, a laudable federal statute with extraterritorial application which prohibits U.S. citizens from molesting children abroad. The Pepe case had been lingering for eight years. The investigation began in 2006, the jury convicted in 2008, and since then the case has been stuck in litigation limbo (a lingering motion for new trial based on an inappropriate relationship between a U.S. law enforcement agent and translator).
I have previously written about the PROTECT Act, and how it, along with numerous other federal statutes that criminalize U.S. citizens behavior abroad, raises an interesting Foreign Commerce Clause (FCC) issue - a matter in which circuit courts are in complete disarray over. Assuming that Congress, under the FCC, has the power to enact laws like the PROTECT Act with extraterritorial application, the next issues to address (the issues which are framing my fall research project) are the criminal procedure implications of investigations of U.S. citizens in other countries and the related evidentiary matters.If the U.S. criminally prosecutes a citizen for behavior abroad, when and to what extent should constitutional guarantees (like search and seizure) apply? It has been suggested that so long as U.S. government agencies train foreign officers, constitutional rights would be secure and the evidence would be admissible. That seems simplistic, and, indeed, case law is unclear. For example, under the "joint venture doctrine," a U.S. agency may be so involved with a foreign investigation that the foreign authorities would be deemed as "acting as agents for their American counterparts." At that point, the U.S. citizen has the right to constitutional protections. But, the circuits are split as to what level of involvement the U.S. agency has to have to give rise to a joint venture.
What about evidentiary issues? For example, in one PROTECT Act case, an NGO was helping U.S. and foreign authorities investigate a U.S. citizen traveling in Asia. When the foreign agents arrested the defendant, an individual from the NGO took the defendant's laptop home which created problematic chain of custody issues at the U.S. trial. From both practical and legal perspectives, securing witnesses and admissible evidence in the prosecution of extraterritorial crimes create extraordinary legal battles. Given how easy international travel has become, these issues will become more and more prominent.
Tuesday, June 17, 2014
IRS: "sorry, can't produce" or a bad example of hiding the ball?
Last week, the IRS stated that it lost numerous emails from Lois Lerner concerning the targeting of conservative groups for tax exempt status because her computer crashed. And this week, the IRS is now revealing that it has lost numerous additional emails from key IRS officials. Politics aside, it is interesting to think how this discovery issue involving electronically stored information (ESI) would be addressed in a federal court under the Federal Rules of Civil Procedure (FRCP).
The facts surrounding this issue almost read like a law school exam hypothetical. The IRS received a subpoena to produce emails between key IRS officials and other government agents that might suggest targeting. The IRS knew months ago, in February, that it could not produce the emails, but failed to inform Congress that the emails were lost until just the last few days. The IRS has taken the position that the emails were lost during a computer crash in 2011 but that the IRS has made a "good faith" effort to find them having spent $10 million dollars (of tax payer money) to deal with the investigation including the cost to piece together what could be found. The IRS does not deny that the recipients, other government officials, may still be in possession of the emails. The IRS, however, maintains that because the subpoena was only directed at the IRS, not other government agencies, the non-IRS recipients of the emails are not required to produce them.
If this issue arose in federal court, under FRCP 26, parties are required at the outset to submit a "discovery plan" that includes how ESI will be retained and exchanged in order to prevent unnecessary expense and waste. The FRCP requires the parties to take reasonable steps to preserve relevant ESI (a litigation hold) or face possible sanctions. Under Rule 37's so-called safe harbor provision, however, "absent exceptional circumstances, a court may not impose sanctions ... for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." The IRS is hanging its hat on this safe harbor rule by arguing that, despite a good-faith effort, the emails were lost. Did the IRS, in fact, make a good faith effort?While there is confusion among the courts on how to apply the good faith standard, there is precedent for a court to monetarily sanction the IRS if the court found that the IRS acted negligently when it lost the emails. The court would also have the authority to issue an adverse inference instruction (inferring that the lost evidence would have negatively impacted the IRS's position), if it determined that the IRS acted grossly negligent or willful.
An important fact which will probably be discussed during the next few hearings is whether the IRS violated its own electronic information retention policy. The IRS was put on notice of the investigation last year, and so had a duty to put a litigation hold on the emails at that time (the very essence of what "good faith" means). It seems that the general IRS retention policy of ESI was six months (although now it is longer), but emails of "official record" had to have a hard copy which would never be deleted. Whether these emails constituted an "official record" is hard to determine since Lerner won't testify to their content.
Even assuming the emails were lost before a litigation hold could be placed (or despite a litigation hold being in place), at the very minimum, it seems "good faith" means that the IRS should have notified Congress in February that it lost the emails. Rule 26 would have required Congress to do so. Indeed, such notice would have brought this issue to the forefront and could have saved a lot of money - the money it apparently has already cost to piece together some of the emails, and the money it will cost as the parties argue over whether the IRS negligently or willfully destroyed evidence. If the IRS had been upfront from the beginning, then subpoenas could have been issued months ago to other agencies who, as employers of the lost email recipients, might have copies of the missing emails.
If this discovery issue had arisen in federal court, the IRS would have likely been subject to monetary sanctions and possibly an adverse inference instruction. Shouldn't the IRS be held to these standards?
SLU PLR Call for Papers: The New Civil War: State Nullification of Federal Law 150 Years after Appomattox
From the Saint Louis University Public Law Review:
In recognition of the 150th anniversary of the end of the Civil War, the editorial board of the Saint Louis University Public Law Review (PLR) is soliciting articles for a special issue on the recent resurgences of state opposition to federal power. The publication will consider articles on current federal/state tensions, as well as articles linking current events to the history of nullification in the United States. Possible topics include but are not limited to:
* State efforts to nullify Federal Marijuana Laws
* State efforts to nullify Federal Gun Laws
* State resistance to Federally Mandated Health Care
* State efforts to constitutionalize bans on Same-Sex Marriage
Interested authors should submit an abstract of no more than 1,000 words to Managing Editor Dan Rankin (email@example.com) by July 1, 2014. Publication offers will be made based on an editorial board review of the submitted abstracts. Accepted offers will receive a publication contract from PLR that will require finished articles by October 15, 2014. All inquiries should be directed to firstname.lastname@example.org.
Sunday, June 15, 2014
Marital Infidelity and the Public/Private Divide
I've just read this U.S. News editorial, suggesting that the American public has come full circle in its approach toward infidelity of public figures. It echoes some thoughts I had after watching a few episodes of Scandal, House of Cards, and The Good Wife. All three shows are deeply invested in exploring the public/private divide, and in particular, the connection between sexual infidelity and public political performance. But each of the shows does it a bit differently.
If the editorial is right, then we've seen the rise and fall of American concern with infidelity--from the indifference toward Kennedy's extramarital affairs to today's indifference to Vance McAllister's kiss. And during the heyday It seems that the combined message from the Clinton, Wiener, Spitzer, Petreaus et al. affairs is that evidence of marital infidelity has some bearing on one's function as a public citizen.
To try and understand why, let me borrow a seemingly-unrelated exaple: the Paul Ryan sub-3 marathon lie. While the fib itself was ridiculous--as an endurance athlete, the idea that Ryan wouldn't remember if he ran a 3-hour or a 4-hour marathon is utterly ludicrous to me; I remember my time in big races down to the seconds and so does everyone else I know--it did make me wonder what possible reason a vice-president-hopeful would have to brag, truthfully or falsely, about an athletic achievement. Presumably, the ability to effectively run the affairs of the state doesn't depend on one's physical endurance. Except for the following:
1) Our gendered perception of leadership means that a male politician's performance is a reflection of his masculine prowess, which includes impressive athleticism.
2) Running a marathon, especially in an impressive time, is a task that requires dedication, discipline, self-deprivation - all qualities that fit our somewhat Calvinist idea of good leadership.
3) We look for something admirable and cool in people we vote for - we want to like them as people. Therefore, any trivia about their personal life that makes them look good is acceptable and vice versa.
Similarly, it would seem that, if marriage infidelity is a problem for people holding public office, it's because it tells us something about their ability to lead. Let's see if the Paul Ryan rationales I thought about hold up:
1) How we treat infidelity is closely related to our construction of masculinity. Is a "real man" one who holds "decent family values", which include sexual fidelity, or one who possesses sexual prowess and is attractive? The media might've had something to do with the difference in which Kennedy and Clinton were treated for their respective indiscretions, but it's also about changing times and changing perceptions of masculinity.
2) As far as what we can learn from people's private behavior about their public performance, look at this interesting poll. Apparently, in the aftermath of the Clinton/Lewinsky affair, "the American public has substantially changed its view of Clinton as an individual but barely readjusted its perception of President Clinton as a political leader." If public opinion changed later, it was because of the concerted top-down effort made by Ken Starr to blemish Clinton and push for an impeachment hearing.
Think, on the other hand, about Petreaus, whose professional capability and talent was never in question (he's doing fairly well in academia and consulting). There was some effort to argue that his infidelity reflects serious problems with the ability to keep secrets and confidentiality, which had direct bearing on his military position.
3) Take a look at this anti-Harold Ford ad:
Yes, there's some effort to tie his sexual indiscretions to his political performance, but you know what? It's mostly about communicating the message that he's simply sketchy, unpleasant, unlikeable.
There seems to be a lot of top-down media messaging about this in an effort to either predict how "ordinary Americans" feel about infidelity or dictate their opinion. And in that respect, it may be that real media reports of infidelity are not all that different in their messaging agenda than fictional ones. And as in real life, the messaging in fiction is far from consistent. In three shows that make politician infidelity the focus of the plot, it's treated in three dramatically different ways:
The Good Wife plays a lot with, but does not fully problematize, the political double standard. It's fairly clear that the protagonist's husband, a politician caught in a prostitute scandal, has committed an original sin, and the show consistently portrays him in an unsympathetic light. By contrast, his separated-but-not-yet-divorced wife, who is clearly attracted to her boss but does not consummate this attraction, is portrayed very positively. Lots of gender double standard here, and lots of equating people's private behavior and public performance.
Scandal hammers a self-contradictory message in on each episode: Cheating is the ultimate original sin; nothing is worse; while murder, political corruption, and a million other pecadillos can be "fixed", sexual infidelity is the ultimate dealbreaker, understood implicitly as a valid and legitimate reason to end a marriage. At the same time, virtually every episode offers an example of sexual indiscretion, highlighting the message that this is prevalent, natural, and inevitable behavior. So, common and unavoidable, while simultaneously being condemned and unforgivable. This is a particularly interesting message in a show that attempts to portray a mild Republican presidency in a post-racist, post-homophobic world (the Chief of Staff is openly gay, married to his partner, and has adopted a baby; a powerful wheeler-and-dealer is a Black woman.) We've presumably done away with race and sexual orientation, but sexual hypocrisy is alive and well.
Finally, House of Cards has a Macbeth-like instrumental approach to politicians and sexual indiscretions: for the reigning couple, if they use their indiscretions wisely and adopt a "don't-ask-don't-tell" approach about them at home, it's all part of their general political ruthlessness. The extramarital sex in itself is not a moral failing; it's merely another expression of the corruption, selfishness, and ruthless ambition.
What to make of all this? Has television made us more indifferent to marital infidelity, or were we always pretty indifferent and just swayed by top-down smear campaigns? I'm not sure. I also haven't done a Democrat-vs-Republican scandal analysis, and I also don't know if the media's tendency to smear some people and to ignore others' infidelities has to do with other markers of class and charisma. You tell me. But I find this an interesting case study of how indicia of personality--if marital infidelity provides such indicia--are used in contradictory and complex ways to construct people's public image.
many thanks to Jonathan Korman for his interesting thoughts and contributions to this post.
Friday, June 13, 2014
The Two Newest Faces of the Problem with the Lack of the Rule of Law - a Newborn and a 20-month Old
As a tangential follow-up to my previous post concerning the use of a crime against humanity charge as a way to bolster the rule of law, another heart-wrenching story is gaining international attention.
Meet Maya, the first U.S. citizen to be born in a Sudanese prison while her mother was shackled to prison walls. Meet Martin, Maya's twenty-month old bother, who is probably the second youngest U.S. citizen to be sitting in a Sudanese prison. Their father is a U.S. citizen. Their mother is Meriam Ibrahim, a doctor and a Sudanese citizen, who has been sentenced by a Sudanese court to 100 lashes for adultery because she married a non-Muslim man and to death by hanging (once Maya is weaned) for apostasy for refusing to denounce her Christian faith. Ibrahim was found guilty of apostasy because it was determined that she was Muslim even though she testified she was Christian and raised by her Christian mother when her Muslim father abandoned the family. The trial raises due process issues since three of Ibrahim's witnesses were not allowed to testify.
There are clear human rights violations and violations of Sudanese law. Ibrahim's imprisonment violates the International Covenant on Civil and Political Rights, which, since Sudan has ratified the treaty, guarantees that all Sudanese citizens "have the right to freedom of thought, conscience and religion" and due process of law. Sudan has also ratified the African Charter on Human and People's Rights which also guarantees freedom of religion and due process. Indeed, Sudan's own 2005 interim constitution specifically guarantees the "right and freedoms enshrined in international human rights treaties" ratified by Sudan. Ibrahim's case (and the impact on her children) graphically illustrates the rule of law problem - the laws are in place but not enforced.The pressure from the international community caused some movement, albeit ineffectual as it currently stands. A few weeks ago the Sudanese government pledged Ibrahim's release, but recanted a few days later. This probably is not surprising given the government is headed by Omar al-Bashir who has an outstanding ICC warrant for CAH for his actions in Darfur. What can be done? What should be done? Perhaps with continued and more world-wide pressure (which should be headed by the U.S. given that some of the youngest U.S. citizens - Maya and Martin - are sitting in deplorable conditions), there might be another small step forward even if it simply means more discussion about and attention given to the lack of the rule of law and the consequential human rights violations of women and children. More legal attention and monetary support should be put in place to uphold the rule of law.
Tuesday, June 10, 2014
What teaching issues are you thinking about this summer?
Our faculty is having a lunch discussion this week about teaching. I simply love to teach. And, as a newly tenured professor who recently went through the tenure process, I have been reflecting a lot on my teaching. There are many areas where I could improve. In particular, this summer I have been thinking about the following three issues. While these matters have been previously discussed, I am interested in your current thoughts on each (and any other teaching issues on your mind this summer):
1. Unprepared Students: To this day, every time I call on a student, my heart skips a beat in hopes that the student is prepared. Sometimes I think I am as nervous as the students before I call out a name. I do feel that it is essential students learn that they must be prepared. I have heard of different ways to deal with unprepared students. Some professors wait for the student to read the case during class. Others assign reading panels for the week. Others call on students in alphabetical order. I am old school - I randomly cold call. If I do call on a student who is unprepared, I require them to call on another student to cover for them (like a life line). My hope is that the fear of being forced to put another student in the hot seat is scarier than coming to class unprepared. I have had moderate success with this approach. I have also toyed with counting unprepared students absent for the day. I would be interested to hear what others do.2. Internet Use During Class: I think I may have somewhat given up on this. I try to call on students who are obviously surfing the web during class discussion. But, to be honest, when I was a law student I attempted to multitask in class too - I just didn't have the internet, but I did have crossword puzzles, letters and notes to write, readings for other classes to catch up on, etc. So, sometimes I feel a little hypocritical when I make too big of a deal about surfing the web during class. In one small seminar class, I didn't allow computers, and for that small class it worked very well. I had the most engaging student discussions when laptops were closed. I haven't tried the no computer rule with a big class yet. I am hesitant to do so because I often use the web during class discussion to look up statutes and other materials. Also, students have case briefs and other prepared materials on their computers and need access to them. But, I have toyed with the idea of a "no computer week." Has anyone done this and was it successful?
3. Taking Too Many Notes: This point is somewhat tied to #2 above. Recently, there was an interesting study that determined that students do better when they handwrite lecture notes rather than typing them. Basically, the study pointed out that people tend to type faster than write, so they are less judicious in what they type than what they write. Until I read this study, I hadn't given this matter a lot of thought. Perhaps I should be encouraging students to handwrite class notes.
Thursday, June 05, 2014
'Bring Back Our Girls' - Failure to Enforce the Rule of Law as a Crime Against Humanity
The media has been saturated with stories of violence against children and women in developing countries and the lack of meaningful action by government officials. As a recent example, hundreds of girls in Nigeria were kidnapped from a boarding school and Nigerians have criticized the government for failure to sufficiently act. In India, two girls were raped and hung from a mango tree while, villagers allege, the police stood by. In Pakistan, a pregnant woman, while literally standing on the courthouse steps of a high court, was stoned to death by relatives even though such "honor killings" are illegal.
Many developing countries have well-written laws dealing with such issues as violence against women and children, bonded labor, property grabbing, and the general administration of justice, but a large swath of the most vulnerable part of the population (the poorest, the women, and the children) fail to receive protection or justice. No doubt, there is a rule of law problem.
Rule of law issues are complex. Developing countries do not have the funds to enforce laws. Citizens of developing countries are often unaware of their rights and protection under the law. Corruption is a problem throughout law enforcement agencies and the justice system, from the police to the prosecutors and the judges. The international community needs to do more to help battle this corruption (of course, this is not to say that we don't have our own major corruption problems on the domestic front). The rule of law problem is so pervasive in some of these countries that all the good NGOs do by providing food, education and health care is overshadowed by the violence that the most vulnerable populations face daily. Focus (and funds) should be shifted away from simply providing material aid, and instead more attention should be given to establishing the rule of law.
It doesn't matter how healthy or educated a young girl is if she is raped without any recourse or murdered without any justice. This is the subject of my current research project where I argue that the failure by high ranking government officials to enforce their countries' laws could establish a crime against humanity under the Rome Statute. A systematic failure to protect a large portion of the population (i.e., women and children) from murder, rape and other inhumane acts fits the definition of a crime against humanity. There are some potential problems with this analysis, though.
Even if the failure to enforce laws (an act of omission) could constitute a crime against humanity, could anyone really be charged? Many developing nations (including India and Pakistan) have not ratified the Rome Statute. However, the U.N. Security Council has referred a few matters (Sudan and Libya) to the International Criminal Court. In the Sudan matter, the ICC issued an arrest warrant for the leader of Sudan under the Rome Statute even though Sudan is not a party member. With enough international pressure, perhaps the Security Council would act again. Even if it did not, some of the countries where gender and children violence is pervasive are parties to the Rome Statute (like Nigeria).
Second, and perhaps more important, even if a government official is charged with a crime against humanity, so what? The ICC is struggling with number of issues, including the problem of enforcement. Despite the issues surrounding the ICC, however, the shame brought upon an individual with a crime against humanity charge (or investigation) might send a strong message that the international community believes in the rule of law.
Tuesday, June 03, 2014
The Internet and Violence on Campus
I want to thank Dan Markel and everyone at PrawfsBlawg for the opportunity to guest blog this month. As a regular reader, I am honored to officially join the conversation.
Because of the recent tragedy at the University of California, Santa Barbara, where Elliot Rodger murdered six students, I have been thinking a lot about violence in school. Although Rodger wasn't a current student and didn't use the internet to threaten one specific individual, his video messages posted on YouTube were clearly directed at students at the school. I have written about the intersection of the internet and school violence, but my focus was on K-12 public schools, not public universities. These cases raise complex First Amendment and due process challenges. When does a public school have the authority (or the requirement) to regulate off-campus speech that bullies or threatens other students or school officials? As for K-12 public schools, the courts are all over the board in their decisions and the U.S. Supreme Court has yet to rule on the issue. Because the pedagogical goals are different in college than in K-12 school, these issues become even more complex in the public university setting.
In a recent case, Tatro v. University of Minnesota, the Minnesota Supreme Court held that a public university could discipline a student enrolled in a professional program for posting inappropriate comments on Facebook that violated her academic program rules without impinging on her free speech rights. The University disciplined Tatro, who was enrolled in the undergraduate mortuary science program, for posting off-colored remarks about a cadaver in an embalming lab. The Court only sided with the University because the University's rules were narrowly tailored and directly related to the professional conduct standards of the student's program. Although this case did not raise issues about violent comments created off-campus, it does bring to the forefront issues that desperately need resolution.
First, does the Tinker v. Des Moines Independent School District standard, which, in part, allows schools to regulate speech that substantially impinges upon the rights of others, apply to speech that students make off-campus and post on the internet? If so, does that same standard apply to college students? I have argued that the Tinker standard should apply to K-12 public schools, but the analysis seems different for public universities. Not only are most college students legally adults who should be afforded more speech protection than minors given their presumed cognitive development, but colleges themselves are supposed to be bastions for the free exchange of ideas. Thus, even if the Tinker standard applies to off-campus speech in the university setting, the bar should be much lower. But, even with a lower bar, college officials should be required to take action when there are threats or extreme bullying - of course, what constitutes "extreme bullying" (my phrase) raises a host of other issues.
Given this digital age and that social-networking sites pervade people's daily lives, students will undoubtedly continue to use the internet as the forum in which to air grievances, bully, make threats, and even post suicide notes. I would be interested to hear what others think about how schools should respond to these issues.
Saturday, May 31, 2014
The month of May has come quickly to an end. Much thanks to Dan and the PrawfsBlawg team for letting me visit this month. Thanks also my very supportive colleagues at Texas Tech including reader extrordinaire, Professor Eric Chiappinelli, to everyone who read the pieces, who commented on-line, and who contacted me directly. For those interested in thoughtful commentary on legal education, the place to be in addition PrawfsBlawg and TaxProf blog this summer is a third member of the family, Law Deans on Legal Education edited by I. Richard Gershon, Dean and Professor University of Mississippi School of Law, Paul E. McGreal Dean and Professor of Law University of Dayton School of Law, and Cynthia L. Fountaine, Dean and Professor of Law, Southern Illinois University School of Law
I look forward to visiting again in September.
With best wishes,
How do we know that the version of any case, statute or regulation we read is an accurate one
The recent kurfuffle about Supreme Court Justices changing the text of already released opinions raises the larger question of how we can ever know whether the version of any statute or case or regulation we are reading is the “final one.” It also highlights the problem of of linkrot that is also affecting the reliability of judicial opinions.
Given how important a problem it can be if the text we rely on is wrong, its interesting that authenticating information places no role in the legal curriculum. I never gave it a thought until one of my dissertation advisors asked me to write a methodology section that explained to lay readers “where statues and opinions come from” and “how do we know they are reliable.” Here's a highly abbreviated version with some helpful links (reliable as of posting, May 31, 2014).
For statutes, all roads led to the National Archives and the Government Printing Office which operates the FDYS. The National Archives operates the Office of the Federal Register (OFR), which receives laws directly from the White House after they are signed by the U.S. President..” The accuracy of these texts is assured by “[t]he secure transfer of files to GPO from the AOUSC [that] maintains the chain of custody, allowing GPO to authenticate the files with digital signatures.”
The GPO assures us that it “uses a digital certificate to apply digital signatures to PDF documents. In order for users to validate the certificate that was used by GPO to apply a digital signature to document, a chain of certificates or a certification path between the certificate and an established point of trust must be established, and every certificate within that path must be checked." Good news.
The GPO has developed a system of “Validation Icons”--explained further on the Authentication FAQ page.
Editors at the OFR then prepare a document called a “slip law,” which “is an official publication of the law and is admissible as ‘legal evidence.’” It is the OFR that assigns the permanent law number and legal statutory citation of each law and prepares marginal notes, citations, and the legislative history (a brief description of the Congressional action taken on each public bill), which also contains dates of related Presidential remarks or statements.” Slip laws are made available to the public by the GPO online.
The system is more complicated when it comes to judicial opinions. Each of the Eleven Circuit Courts of Appeal issues its own opinions. For example, this is the website of the Fifth Circuit Court of Appeals, The GPO has joined with the Administrative Office of the United States Courts (AOUSC) “to provide public access to opinions from selected United States appellate, district, and bankruptcy United States Courts Opinions (USCOURTS). Currently the collection has cases only as far back as 2004As indicated by the term “selected,” this database only contains some of the federal courts.
The official source for the opinions of the U.S. Supreme Court of the United States is the U.S. Supreme court itself. Pursuant to 28 U.S.C. § 673(c), an employee of the U.S. Supreme Court is designated the “Reporter of Opinions” and he or she is responsible for working with the U.S. Government Printing Office (GPO) to publish official opinions “in a set of case books called the United States Reports.”
According to the Court, “[p]age proofs prepared by the Court’s Publications Unit are reproduced, printed, and bound by private firms under contract with the U.S. Government Printing Office (GPO). The Court’s Publications Officer acts as liaison between the Court and the GPO.” Moreover, “the pagination of these reports is the official pagination of the case. There are four official publishers of the U.S. Reports but the court warns on its website that “[i]n the case of any variance between versions of opinions published in the official United States Reports and any other source, whether print or electronic, the United States Reports controls.”
To some exent this latest information suggesting that there may be different versions of opinions at different times fits in well with the history of the court. As most of us know, the Supreme Court did not have an official reporter until the mid-nineteenth century and did not produce a written opinion for every decision. Moreover, it has only been recording oral arguments since 1955 and although now issues same day transcripts this was hardly always the case. Also now available are the remarks that the Justices make when reading their opinions. But, and no link is missing, I don't have one, in hearing Nina Totenberg give a key note presentation at ALI in 2012 about her days at the court, she pointed out that when she began covering the Court this was not available. And that it was not unusual for notes to differ on exactly what the Justices said.
Thursday, May 29, 2014
More statutory interpretation from Donald Sterling
Sterling leads off by challenging the NBA's reliance on the secretly recorded conversations as evidence, which gets interesting. He points to California Penal Code § 632(a), which prohibits recording confidential communications without consent, and § 632(d), which excludes "evidence obtained as a result of eavesdropping upon or recording a confidential communication . . . in any judicial, administrative, legislative, or other proceeding." From this, Sterling insists he has a constitutional right not to have his private conversations recorded or having the evidence of his conversations used against him. That seems overstated--that the state offers a statutory protection against being recorded in furtherance of the constitutional right of privacy does not convert the right against being recorded into a constitutional right.The interesting statutory question is whether internal dispute-resolution proceedings of a private organization constitute an "other proceeding" under § 632(d). On one hand, the language seems to contemplate public proceedings, since the three enumerated types of proceedings are all public in nature. So under ejusdem generis, that catch-all should be read to cover only similarly public proceedings. It also makes sense that the criminal code would regulate evidence in public but not private proceedings. On the other hand, are there any public proceedings that are not judicial, administrative, or legislative? If not, then "other proceedings" must mean something not public. Perhaps it refers to something like arbitration or mediation, which can be considered quasi-public--they are privately controlled processes to which parties agree to send otherwise-public disputes. But this proceeding still seems different. This is not a situation in which the NBA established an outside-but-private process (such as arbitration of appeals under the CBA with the players' union). This is the collection of 30 owners establishing their own internal processes controlled by the 30 owners, for regulating who stays within their own ranks. Even if § 632(d) goes beyond public proceedings, the NBA process still seems fundamentally different.
Finally, the answer may be affected by the 2001 decision in Bartnicki v. Vopper. Bartnicki held that Congress could not punish publication of an illegally intercepted and recorded phone call, where the publishers were uninvolved in the unlawful interception or recording. The First Amendment protects publication (and, implicitly, other uses) of truthful lawfully obtained information on matters of public concern, except where the government is serving a need of the highest order. So perhaps the NBA could argue that it is entitled under Bartnicki to use the laefully obtained (and thus constitutionally protected) recording in its private internal proceedings, meaning California law is limited only to public, California-established proceedings, but not to whatever private proceedings private persons and entities may adopt.
Friday, May 23, 2014
Report from ALI Annual Meeting--and What Justice Ginsberg is Reading
I’m just back from the 91st annual meeting of the American Law Institute in Washington, DC. So much happened in a three day period that it’s hard to do justice—I know that many others have blogged and tweeted. In keeping with the theme of what I’ve been blogging about, higher education, I will report that the current state of legal education was a palpable presence and a frequent topic of conversation. Whether it was ALI President Roberta Cooper Ramointroducing Associate Academic Dean Ellen Clayton of my neighbor institution, the University of North Texas, UNT Dallas College of Law, as someone doing a remarkable thing to open a new law school to Justice Breyer's charming refusal to be drawn into either a criticism of legal education or a comment on the current complaints being made against it.
It is also my honor to pass on that Justice Ruth Bader Ginsberg reported that she was reading Wings of Freedom: Addressing Challenges to the University while giving its author, former president of Stanford University Professor Gerhard Casper, the ALI’s Distinguished Service Medal. I have ordered but not yet received the book, so here is the blurb:
“From affirmative action and multiculturalism to free speech, politics, public service, and government regulation, Casper addresses the controversial issues currently debated on college campuses and in our highest courts. With insight and candor, each chapter explores the context of these challenges to higher education and provides Casper’s stirring orations delivered in response. In addressing these vital concerns, Casper outlines the freedoms that a university must encourage and defend in the ongoing pursuit of knowledge.”
ALI is always inspiring--like everyone I had no idea as a law student that the Restatements were actually the product of so much collective and collaborative work. It is also a "how to" of running an event at which every attendee is used to being in charge either as a Judge, a Professor, a General Counsel or a Partner.
Thursday, May 15, 2014
Is Yours One of the 45 Law Schools to Which it is Worth Going: A Look at the Broken Market for Legal Education
As those of you who have read my earlier posts (and I hope you have) know everything I’m writing on legal education takes as a premise that the entire system of financing higher education is broken and that we, as a society, are borrowing against our future by making college, let alone graduate and professional schools, financially prohibitive to those who otherwise have the interest and ability to pursue it. But as bad as the debt to employment ratio is for many law students right now it is made worse by a misperception of a uniform level of financial stress, a uniform kind of desirable job, and a uniform market for legal services. These misperceptions are making the market for legal education inefficient yet this inefficiency is supported by a social norm that higher must be better (yes, Wikipedia--Prof. Ellickson don't rescind my property grade)--and as a result causing hardship for prospective law students and law schools alike.
On Monday, fearless leader of the Law Professor blogs network, Professor Paul Caron, in our flagship, Taxprof Blog highlighted this working paper by Kelsey Webber who “does the math” and concludes that there are only 45 law schools worth attending at sticker price. That may sound better than the critics who conclude that there are no law schools work attending, but it is based on the same flawed assumptions.
Like all “works in progress” there’s lot to pick at—starting with the premise that any law student anywhere is paying “sticker price,” but over the next five days, or so, I’m not going to pick at the paper but rather am going to challenge the generalizations it reflects. I’m going to focus on law’s status as a highly regionalized profession and on the differences that have always existed between schools that historically sent a big chunk of their students to large firms and schools that never did.
And I’m going to address a lurking elephant in the living room that is contributing to the misery—students pursuing legal educations often do so not out of a sense of vocation but rather as a hazy path to a good income. Nothing wrong with that—but it interferes with an efficient, market in which law students would flock to regions not suffering from economic downturn and to law schools offering attractive combinations of low tuition/strong financial aid.
I’m not here to blame students for decisions they make at age 20 with limited available information. I’m just pointing out that this idea of a universal hierarchy of law schools perpetuated by US News rankings has fueled the suffering and distress in the regions where there is little hope of getting a job that would make law school a sound investment. I'm not blaming the messenger, I'm suggesting that they don't work in law the way they work for Clinical Psychology Programs, Engineering Schools or even Medical Schools where higher ranked programs (regardless of location) are closely linked to better job prospects.
I’m also going to address some measurement issues that assume a “big law” view of the world. So, for example, while lack of a big law job 9 months out of law schools is catastrophic because traditionally those were sewn up by the end of the second year summer or certainly by graduation, it means far less outside big law where students are seldom even considered until they have passed the bar-something that won’t happen until five or six months after graduation. And in general, what it means in relation to whether law school was “worth it” depends entirely on the size and shape of the financial hole law school creates. And that varies a lot.
At the other end, I’m going to dispute how safe a bet these 45 schools actually are for every student interested in becoming a lawyer. These are all great schools. The students attending them worked hard to get there, and have every right to enjoy the status they confer, but, again, law is highly regionalized and I plan to vigorously dispute the pernicious paradigm that all higher ranked law schools are better for all law students than all lower ranked law schools.
To be continued.
Tuesday, May 06, 2014
Outcomes Based Assessment is Coming
Thanks for all the comments about evaluation of faculty teaching—and thank you to Professor Bainbridge for the transition to the next topic—Outcomes Assessment. The days when we in legal education could say that the bar exam did outcomes assessment for us are rapidly coming to an end. Outcomes assessment (or “output assessment as it is sometimes known) is something we in legal academe will soon likely be required to do in every class, for every student. Why? Because our regional accrediting agencies already demand it and the ABA has already put forward for comments changes to Section 301 here reflecting this report by a 2008 subcommittee.
If I’ve lost anyone here about regional accrediting agencies, now is a good time to lift the veil. So long as we depend on our students using federal student loan programs to pay their tuition, we must meet the Department of Education’s standard that we provide a “quality” education. And while the DOE does not tell us, or anyone else, what “quality” is, it can require that we submit ourselves to an entity it recognizes as being qualified to do so. We all know that the ABA sets standards of quality for legal education, but unless you have a role in developing new programs, you may not be aware of your regional accreditor, but rest assured your Dean and Provost think about them all the time. For example, Texas A & M University would not have been able to acquire Texas Wesleyan Law School without the approval of the Southern Association of Schools ad Colleges. Here’s the TAMU Press Release and here’s the actual SACSCOC announcement.
So back to Outcomes Assessment— it makes sense to evaluate law schools and faculties on their results rather than their efforts (we don’t raise the grades of students because they “tried hard”) but like all assessment it can’t happen without first identifying what outcomes to measure and how to do it. Is it mastery of material in individual courses? Bar Passage? Employment in a J.D. required job? Competency in practice? Client satisfaction? Personal satisfaction? All of these are desirable outcomes for our law students, but the question legal education shares now with all higher education is which of them can be directly linked to what happens in law schools.
Luckily for us as we make the transition to outcomes assessment, there is a wealth of reference material. This piece from Prof. Gregory Munro reviews the topic of outcomes assessment at the level of the individual law school class. Since we are relatively late to the outcomes assessment party there are a lot of models out there. Here is a very interesting article by Profs. Deborah Maranville, Kate O’Neill, and Carolyn Plumb drawing lessons for legal education from Engineering’s experiences in assessing not just content outcomes but also ethical ones. Here is an article by Carolyn Grose about her experiences integrating outcome measures into her Trusts and Estate class.
At a practical level, our friends at UCHastings have put together a very helpful compilation of resources, including sample syllabi, for law professors who want to create and then assess learning objectives in their classes. The Institute for Law Teaching and Learning is a rich and frequently updated source of helpful material on all aspects of law teaching, very much including issues of outcomes assessment.
This will be a big change for us both on the level of setting individual output/outcome goals for each of our classes and then on a larger scale for our schools as a whole. But it’s a change that’s coming and for which we need to prepare ourselves. I know that these links only scratch the surface of the work being done within legal academe to address the need for outcomes measures and I invite everyone to include material they either created or know about that will be helpful to the community at large.
Saturday, May 03, 2014
Sen Elizabeth Warren's New Memoir of Special Interest to Law Profs
There are a lot of reasons why law professors should read Senator Elizabeth Warren’s recently published memoir--“A Fighting Chance." The top two are that it's well-written and frequently very funny. (for full effect--I suggest the audio version that the Senator narrates herself).
Beyond that, not only is it a lucid explanation of the banking industry’s efforts to limit the ability of creditors to make a fresh start through declaring bankruptcy, it is an account of her extraordinary academic career--one that she achieved without any of the traditional criteria such as academic pedigree, powerful mentors, family connections, prestigious fellowships or judicial clerkships. For those unfamiliar with her as Bankruptcy Professor-here are some posts she has made on the Credit Slips blog.
She also closely documents her struggles to balance family, both her children and elderly parents (and pets). There is a lot for law professors to unpack here--including how her interest in the people behind the laws has shaped her career.
But more generally, I look forward to discussing how critical it is for the future of legal education that Senator Warren succeed in convincing her colleagues of the need to reform the way higher education is financed. Whether she herself has the best plan for fixing student loans—well different people have different views-including just eliminating them. But unless we can stop the ever increasing cycle of debt that is making our students’ lives so difficult, any of the important changes that need to be made in legal education risk being about as effective as bailing out a sinking boat with a bucket that itself has a hole in it.
As I will elaborate later, I’m very optimistic that we can all create a program about which students can say 5, 10, 15 years later that they are better off for having gone to our law school. But we’re probably not there now. Rather, we are in a situation similar to being attacked by a hive of bees. Every individual bee, lack of job opportunities, bimodal salary distributions, drop in state support for public institutions, lack of transparency about student outcomes, out dated curriculums, disconnect between the classroom and the practice of law, imposition of a value system that drives law students into disproportionate levels of depression that may well follow them throughout their careers, is capable of inflicting painful or even lethal stings. But the breach in the hive comes from a level of student loan debt that cannot be supported by any reasonably obtainable career path. It’s not a perfect metaphor—student loan reform is necessary but not sufficient to developing a legal education that better prepares our students for the important role they will play in society.
Thursday, May 01, 2014
Hello—and thank you to Dan and PrawfsBlawg for inviting me to guest this month!
My name is Jennifer Bard and I am a Professor at Texas Tech University School of Law where, among other things, I direct our Health Law Program. I’ve been blogging in the “Profs” family at HealthLawProfs and more recently also at the Harvard Bill of Health. My research interests include legal & ethical issues in conducting research, the effect of increasing knowledge about the brain on the legal response to criminal conduct, and the intersection between Constitutional Law and the regulation of health care delivery and finance. Here’s where you can find some things I’ve published.
Over the next month, I look forward to blogging about issues I’ve been thinking about a lot including the future of legal education—both in terms of curricular reform and addressing the substantial challenges facing us about the cost of law school and the rapidly changing job market, current issues in higher education, and of course on-going developments in health law.
My thinking has been shaped a lot by two degrees I got after law school. The first was a master’s of public health which gave me the “prevention” model of solving. The big idea in public health is that it’s always easier to prevent a problem than to solve one—but first you need to understand its causes. The second is a Ph.D. in Higher Education that introduced me to the much larger theoretical and regulatory context in which legal education occurs.
This is a time of significant change in higher education as it faces close scrutiny from consumers and the state and federal governments representing them. For example, on Monday President Obama issued a report calling for substantial changes to the way universities both prevent and respond to sexual harassment and sexual assault. Here is the first PSA to come from the White House on this topic. Although law schools often see themselves as autonomous islands within the larger university, we are all going to see the effects of this and other related campaigns.
Two additional thoughts on the Sterling suspension
Yesterday I questioned the precise basis for the NBA's suspension of Clippers owner Donald Sterling. On further reflection, I want to consider some additional interpretive points.
First, I noted that the NBA Constitution and By-Laws contain two provisions--Article 35A(c) allows for a fine of up to $ 1 million for statements prejudicial or detrimental to the league and Article 35A(d) allows for a suspension and/or a fine of up to $ 1 million for conduct prejudicial or detrimental to the league. Commissioner Adam Silver must have relied on 35A(d), since 35A(c) does not allow for a suspension. But I questioned that usage. Sterling's misdeeds involved statements and the existence of distinct prohibitions--one regulating conduct and one regulating statements--suggests that the statement-specific provision should have been used here, which would make the suspension inappropriate.
But now I am wondering whether I am reading 35A(c) incorrectly. Perhaps the "statements" it prohibits are those that directly criticize the league or something about the league, for example game officiating (many a fine has been imposed on a coach or owner for doing that). But it does not reach statements about something else that, because of their viewpoint, happen to make the league look bad. That would instead be treated as "conduct" and pulled back within the more-general regulation of 35A(d).Second, I am wondering if Silver simply jumped to the catch-all power of Article 24(l) to make decisions and impose punishments in the best interests of the NBA for all three sanctions, ignoring anything in Article 35A. Article 24(l) allows for a range of penalties, including suspension and a fine up to $ 2.5 million. If so, it brings to even sharper light the question of how he could do that, since, again, 24(l) only operates when "a situation arises which is not covered in the Constitution and By-Laws." This means Silver should have at least glanced at 35A(c) and/or (d), which do seem to cover this situation.
Wednesday, April 30, 2014
Of (Courtney) Love and Malice
Today Seattle Police released a note found on Kurt Cobain at his death excoriating wife Courtney Love. Based on her subsequent behavior, Love cannot have been an easy person to be married to. I've been researching Love lately for an article on social media libel that I'm writing with RonNell Andersen Jones. Love is not only the first person in the US to be sued for Twitter libel; she's also Twibel's only repeat player thus far. According to news reports, Love has been sued for Twitter libel twice , and recently she was sued for Pinterest libel as well.
Love's Twitter libel trial raises interesting issues, one of which is how courts and juries should determine the existence of "actual malice" in libel cases involving tweets or Facebook posts by "non-media" defendants. As you probably recall, the US Supreme Court has held that the First Amendment requires public figures and public officials to prove actual malice--i.e., knowledge or reckless disregard of falsity--before they can recover for defamation. And even private figure defamation plaintiffs involved in matters of public concern must prove actual malice if they wish to receive presumed or punitive damages. However, US Supreme Court jurisprudence elucidating the concept of actual malice predominantly involves “media defendants”—members of the institutional press—and the Court’s examples of actual malice reflect the investigative practices of the institutional press. Thus, the Court has stated that in order for a plaintiff to establish actual malice, “[t]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." [St. Amant v. Thompson] Actual malice, for example, exists if a defendant invents a story, bases it on ‘an unverified anonymous telephone call,” publishes statements “so inherently improbable that only a reckless man would have put them in circulation,” or publishes despite “obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports." Id.
These examples have little resonance for “publishers” in a social media context, many of whom, like Love, post information spontaneously with little verification other than perhaps a perusal of other social media sources. The typical social media libel defendant is less likely than her traditional media counterpart to rely on informants strategically placed within government or corporate hierarchies or to carefully analyze primary sources before publishing. Moreover, the typical social media defendants has no fact-checker, editor, or legal counsel and is less likely than institutional media publishers to have special training in gauging the credibility of sources or to profess to follow a code of ethics that prizes accuracy over speed.
The issue Courtney Love's libel trial appears to have raised is whether it constitutes reckless disregard of falsity if a defendant irrationally believes her defamatory accusation to be true. I say "appears," because one can only glean the issue from media accounts of Love's libel trial--the first full jury trial for Twitter libel in the US. The jury found that Love lacked actual malice when she tweeted in 2010 that her former attorney had been "bought off." Specifically, Love tweeted: “I was f—— devestated when Rhonda J. Holmes esq. of san diego was bought off @FairNewsSpears perhaps you can get a quote[sic].” Holmes sued Love in California state court for $8 million, arguing that the tweet accused Holmes of bribery. Love contended that her tweet was merely hyperbole. News accounts of the jury verdict in Love’s favor, however, indicate that the jury found that Love did not post her tweet with “actual malice." The jury deliberated for three hours at the end of the seven-day trial before concluding that the plaintiff had not proved by clear and convincing evidence that Love knew her statements were false or doubted their truth.
The Love case doesn't set any precedents, but it raises interesting issues for future cases. According to court documents and news accounts, Love consulted a psychiatrist for an “addiction” to social media. Certainly Love’s actions in the series of defamation cases she has generated do not seem entirely rational, but there is no “insanity defense” to a libel claim. Yet the determination of whether a defendant had “actual malice” is a subjective one, meaning that it is relevant whether the defendant suffered from a mental illness that caused her to have irrational, or even delusional, beliefs about the truth of a statement she posted on social media. It seems problematic, however, for the law to give no recourse to the victims of mentally disordered defamers pursuing social media vendettas based on fantasies they have concocted. As a practical matter, this problem is likely to be solved by the skepticism of juries, who will rarely accept a defendant’s argument that she truly believed her delusional and defamatory statements. Or at least I hope so.
And in case you wondered . . . Love's first social media libel case involved her postings on Twitter, MySpace and Etsy calling a fashion designer known as the "Boudoir Queen" a "nasty lying hosebag thief" and alleging that the Queen dealt cocaine, lost custody of her child, and committed assault and burglary. Love apparently settled that case for $430,000. Love's third social media libel case involves further statements about the Queen that Love made on the Howard Stern show and posted on Pinterest. Some people, it seems, are slow learners.
Posted by Lyrissa Lidsky on April 30, 2014 at 06:30 PM in Blogging, Constitutional thoughts, Culture, Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky, Torts, Web/Tech, Weblogs | Permalink | Comments (0)
Tuesday, April 29, 2014
Sterling, Silver, and statutory interpretation
For those of you who like using sports rules to illustrate statutory interpretation, NBA Commissioner Adam Silver's lowering of the hammer on Clippers owner Donald Sterling is a gold mine (forgive the precious metal puns). And it may be that, while Silver is being lauded for his moral and ethical stand, his legal footing is a bit shakier.
Silver on Tuesday imposed three punishments: 1) A lifetime ban from all involvement with the Clippers or the league; 2) a $ 2.5 million fine; and 3) a call for the owners to vote to terminate Sterling's ownership. The NBA had previously kept its governing documents secret; at the time of Silver's press conference, no one outside the league knew the precise bases for these punishments (when asked, Silver said he would "leave that to the lawyers"). The league finally released its Constitution and By-Laws (H/T: Deadspin), although they still have not announced the precise bases for these decisions, so we are guessing as to exactly what Silver relied on and why. We may only know if Sterling challenges his punishments (presumably through a breach of contract action). Either way, you probably could get a nice legal analysis exam out of this.
The lifetime ban is most likely pursuant to Article 35A(d), which empowers the commissioner to "suspend for a definite or indefinite period . . . any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association." The fine seems to be pursuant to Article 24(l), which gives the commissioner catch-all authority to make decisions "as in his judgment shall be in the best interests of the Assocaition" when a situation is not otherwise covered; the maximum fine under that provision is $ 2.5 million. Finally, the call for termination of Sterling's membership triggers Articles 13, 14, and 14A. Article 13 enumerates ten bases for termination; the only one that might fit is (a), where an owner "Willfully violate[s] any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association," which brings us back to Article 35A(d)'s conduct prejudicial or detrimental or Article 24(l)'s "best interests." The power to terminate rests with the NBA's Board of Governors, comprised of the other 29 owners, and requires a 3/4 supermajority.
First, it is interesting that Silver apparently split the source for the first two punishments. The suspension seems to have been under Article 35A(d) for conduct prejudicial or detrimental to the NBA. But 35A(d) (already used as the basis for the suspension) also allows for a maximum $1m fine in addition to the suspension. Clearly Silver did not rely on Article 35A for the fine, however, since he imposed a fine 1 1/2 times larger than 35A(d)'s limit. Instead, the fine must have been under the Article 24(l) catch-all, given the amount. Why did he do it this way? Presumably to impose the larger fine under 24(l).
But there is a good argument that resort to the catch-all is inappropriate here. Article 24(l) expressly applies only "[w]here a situation arises which is not covered in the Constitution and By-Laws." This situation is covered by another part of the Constitution--Article 35A(d), already used for the suspension. In other words, since Silver found that Sterling violated Article 35A(d) (in suspending him), that also should have been the basis for the fine. Silver thus was wrong to resort to the catch-all. Further complicating matters is Article 35A(c), providing for fines (again, maximum $ 1 m) specifically for statements prejudicial or detrimental to the best interests of the team, league, or basketball. That also seems to cover this situation--Sterling obviously said things contrary to the best interests of the NBA--again making resort to Article 24(l) inappropriate.
Second, and related: Why did Silver rely on Article 35A(d) for conduct prejudicial or detrimental rather than Article 35A(c) for a statement prejudicial or detrimental? Presumably because (c) does not allow for suspension, while (d) does. But Sterling is unquestionably being punished for statements, not conduct (whatever his racist views, he was not punished for acting on his views or operating his team in a way that implemented those views). While a provision prohibiting conduct could, standing alone, also reach statements, that argument does not work when there are distinct provisions, one regulating conduct and one regulating speech. Did the NBA Constitution intentionally set-up a situation in which conduct could be the basis for a suspension but statements only for a fine? If so, perhaps this means the suspension is improper.
Note that my analysis presumes a certain exclusivity--Article 24(l) by its terms cannot be in play if a different provision is; Article 35A(d) cannot be used to regulate statements because 35A(c) already does. Perhaps Silver would argue--and an arbiter would accept--that all of the provisions together allow for this range of punishments. But that is an odd form of statutory interpretation and would render many provisions of the NBA Constitution superfluous.
Third, expect some controversy when the owners attempt to terminate Sterling's ownership. The league would be basing termination on a willful violation of either of three broad, non-specific provisions (either "conduct prejudicial or detrimental," statements prejudicial or detrimental, or conduct judged not in the "best interests'); either seems a very generic basis for this ultimate sanction. (For a legal comparison, think of SCOTUS' efforts to make 18 U.S.C. § 241 work for catch-all Due Process violations in the face of vagueness concerns). The other nine bases for termination are fairly specific, going to gambling and fixing games (forever the cardinal sin) and extreme mismanagement of the franchise, although none is in play here. Perhaps Sterling could argue that either 35A(d) or 24(l) is not a specific enough rule in the Constitution & By-Laws as to be willfully violated as to form a basis for termination under 13(a). Failing that, termination of ownership, if the owners must the necessary supermajority (and I imagine they will, both to show support for Silver's leadership and to keep the players happy), appears proper and within league rules. Of course, under Article 14(j), owners waive any review of this decision (and a similar one in the franchise agreement), so it may not matter (unless, as David Hoffman suggests, the enforceability of this waiver-of-recourse clause is dubious).
[Update: A thought that just rolled around: One might read "willfully" in Article 13(a) to require specific intent (again, what the Court has done with § 241 to avoid vagueness concerns). That is, requiring a finding that Sterling not only specifically intended to make those statements (he did), but specifically intended to make them so as to be prejudicial or detrimental to the league. If that is what willfully does, termination of ownership may become tougher. Otherwise, any little violation of any rule could become a basis for termination.]
Finally, it will be interesting to see how the owners approach termination of ownership. Typically, terminating a franchise transfers control to the league, under Article 14A(c). But the media seems to be talking in terms of the owners giving Sterling an opportunity to sell the team outright to some outside owner. While not specifically provided for, that might be a potential negotiated resolution.
Monday, April 28, 2014
People everywhere are looking for ways to protest the racist comments allegedly made by Los Angeles Clippers owner Donald Sterling. Clippers players used a silent pre-game protest, leaving their warm-up jackets on the floor at halfcourt and warming up with their shirts inside-out (hiding the "Clippers" logo). Two Golden State fans got creative with posters. And Los Angeles Dodgers outfielder Matt Kemp, who was mentioned in the telephone conversation between Sterling and his girlfriend as someone who was OK to bring to games because he is of mixed race and ethnicity, used Michael Jackson's "Black or White" as the music when he came to the plate in Sunday's game. And some companies are now withdrawing from sponsorship deals with the Clippers.
It has become commonplace to protest high-level business people by economically targeting the businesses with which they are associated, by refusing to invest, work at, or shop at these companies. These include attempted or limited boycotts--see Chick-Fil-A or, going back further, Domino's Pizza--or threatened targeting with the hope of inciting change--see the ouster of RadiumOne's CEO following his guilty plea on misdemeanor domestic violence charges or Mozilla firing the CEO who supported Prop 8). Whether such efforts are effective, they have come to be seen as a strong means of political expression if not change.
For all that I have argued for the intimate connection between sport and free expression, however, it is ironic that those expressive weapons cannot work with respect to professional sports.
The first problem is the collective nature of leagues such as the NBA. Donald Sterling benefits from everything that happens as to every team in the league, not just what happens to the Clippers. He benefitted from Warriors fans who attended the game in Oakland on Sunday, since visiting teams receive a percentage of gate. He benefitted from every basketball fan of every team who watched any playoff game on television, because teams share revenue earned from the league's massive broadcast deals--that includes not only the Clippers-Warriors game, but all three games played yesterday. It is not enough to target the Clippers, in other words; it would take a massive fan movement against the NBA as a whole.
A second problem is the emotional connection and loyalty that fans feel to their teams. Clippers fans do not want to entirely abandon the team, because they want to see "their" team succeed. And that is not fungible--I can get a chicken sandwich from a lot of places, but I cannot just shift my team loyalties overnight. Moreover, fan loyalty runs to the players who represent them on the court, not to the owner in the background. And it still is about the league as a whole, not one team. Fans of the Warriors are not going to abandon their loyalties to their players and teams, and their desire to celebrate a championship, because the owner of the opposing team is a racist. Nor are the fans of the other playoff teams not currently playing the Clippers, who similarly want their teams to win and do not care about the racist owner of a team other than their beloved franchise. Even fans without another rooting interest are in a bind; the easy move is to root against the Clippers so Sterling does not enjoy a championship and to stop watching games. But that means rooting against the players who also want that success, which somehow seems unfair.
A third problem is that the players are unable to vote with their feet by seeking employment elsewhere, at least not right now. They want to win a championship right now--it is bound up in who they are and what they do, and the opportunity does not come around very often. To walk away from that opportunity in protest hurts them more than it hurts Sterling (who still profits from being part of the NBA money-printing aparatus). It is why Clippers players reportedly only briefly considered, then rejected, forfeiting Sunday's game. Again, it would take league-wide action--every team refusing to play until the NBA takes action against Sterling. And while the NBAPA is trying to get involved in the matter, I see no way that such a collective walkout is in the offing (not to mention whether it is even legal under the NLRA)--again, players must jump at the opportunity to win a championship, because it may not come around again.
Update: I forgot the most important point in all of this, so I'll add it here: The most obvious way for Clippers fans to express their anti-Sterling viewpoints without having to stop supporting their team is to show up with signs and clothes and chants doing just that. This doesn't change the team's ownership or anything, but it is the best outlet for fan expression. But this raises an important issue: Will the Clippers and/or the NBA try to control what fans say about Sterling or how they say it? On one hand, I believe Staples Center (where the Clippers play) is privately owned, so the First Amendment is not in play and fans are at the mercy of the arena's owners. Most pro teams are look to stop speech criticial of ownership when they can. On the other hand, both would take an overwhelming PR hit for censoring anti-Sterling speech at this point, so they might actually allow fans to get away with more than they ordinarily would in a situation that had not so boiled over.
Monday, April 07, 2014
Eich and the Politicization of the Corporation
Just a brief word on the (forced) resignation of Mozilla CEO Brendan Eich because of his Prop 8 donations: welcome to the continuing politicization of the corporation. If corporations have speech protections and can play an active role in ideological debates of all stripes, then it matters if the CEO takes a different political position than the majority of stakeholders in the enterprise. The CEO controls the company and speaks for the company. So it is not suprising that stakeholders would be concerned about a CEO that did not reflect their values.
I think we're entering interesting and perhaps dangerous territory here as corporations take on First Amendment roles beyond their core business. Corporations will always be associated with "core concern" speech directly related to the company's products and services. But there is no need for "symbolic" speech that is unrelated to the business. As I discussed at the Glom with regard to the Chick-fil-A controversy, gay marriage has little to do with delicious chicken sandwiches. It is needlessly entangling of commerce and politics to make the purchase of a sandwich into a political act, especially when many participants in the enterprise have no interest in fomenting such a debate. But those lines are blurring. So Chick-fil-A begat the Eich resignation, because Mozilla customers and employees did not want their association with the company to end up labeled as support for limitations on gay marriage.
And that's the concern with Hobby Lobby, too -- if the court upholds First Amendment religion clause rights for a private, for-profit corporation, those who control the corporation will control its religion, too. That means whatever ideologically-charged positions the controllers choose to take, the rest of the participants will be dragged along as well. And that will make the corporation even more of an ideological battlefield.
Wednesday, April 02, 2014
Affordable Care and the Lessons of History
The Affordable Care Act (ACA) seems to be gaining steam. After a rocky start in October, the new health insurance exchanges reached the government's enrollment goal of 7 million. As ACA's provisions continue to take effect, its status should solidify and transform the U.S. health care system in important ways.
Yet there also are reasons to be cautious about ACA's long-term prospects. The Act's basic framework may not have taken sufficient account of the lessons from history. After watching health insurers torpedo the Clinton plan in 1994, President Obama took care to secure support for ACA from the insurance industry, as well as drug companies, physicians, and other important interest groups. But there may have been more important lessons from the country's history with other public benefit programs, including Medicare, Medicaid, and food stamps.
As NPR and the New York Times reminded us with their ACA updates last week, federal-state partnerships can have serious drawbacks compared to programs operated by the federal government. Some states effectively meet the needs of their residents, but others do not. Just as Texas had the highest percentage of uninsured people under pre-ACA health care, Texas continues to lag other states under ACA in terms of access to health care coverage. Similarly, when states were responsible for setting eligibility standards for food stamps, the program reached counties with only 59 percent of the U.S. population. After a decade of state oversight, Congress established uniform eligibility standards.
Benefit programs also fare better when they are perceived by the public as having been earned. Medicare and Social Security have enjoyed strong support because they are funded in part by payroll deductions. Medicaid, on the other hand, with its funding from general revenues, often is viewed as providing handouts.
Finally, benefit programs for the poor tend to generate broad support only when the well-to-do also are eligible for the programs. Medicare with its universal eligibility is a much stronger program than is Medicaid. Under ACA, the more prosperous will continue to receive their health insurance from their employers or on their own, without government subsidies, while the poor will have to rely on Medicaid or federally-subsidized health exchange coverage. History tells us that political support flags over time when benefits are restricted to the less prosperous. Perhaps support for the exchange coverage subsidies will persist since poeple are eligible for the subsidies up to 400 percent of the federal poverty level, but the Medicaid expansion only goes up to 138 percent of the poverty level.
President Obama and congressional Democrats may have made the correct short-term political bet when they went with ACA rather than a federally-operated, Medicare-for-all system funded by payroll deductions. But the long-term prospects of ACA carry much uncertainty.
[cross-posted at HealthLawProf blog and orentlicher.tumblr.com]
Friday, March 14, 2014
Who will create an astute marijuana litigation and legal practice blog?
Regular Prawfs readers know that I have done some blogging here about marijuana laws, policies and reform because I see so many interesting general legal issues intersecting with the drug war generally and criminal justice approaches to marijuana specifically. Indeed, I felt compelled to start a new blog, Marijuana Law, Policy and Reform, in part because I was interested in writing about broad issues of public policy implicated by modern marijuana reform efforts: as I have said in my marijuana seminar course description, "contemporary state-level reforms of marijuana laws have raised significant new constitutional, legal, political and practical issues; policy concerns relating to states' rights, local government law, race, gender, public health, crime, political economy, and bioethics intersect with modern marijuana law reform."
Now, as the title of this post suggests and largely thanks to some terrific guest blogging by Alex Kreit over at MLP&R, I think the time may be right for an enterprising lawyer and/or law firm to start a blog focused particularly on marijuana-related litigation and emerging legal practice issues surrounding this new industry. I say this based in part on these four new recent posts over at MLP&R which highlight the array of diverse issues and courts now dealing with dynamic marijuana-related litigation:
In this Prawfs post a few months ago, I speculated that green (i.e., young/junior) lawyers may have a uniquely important role to play in the emerging marijuana "green rush" industry: not only may veteran lawyers be cautious and concerned about representing persons actively involved in state marijuana business, but marijuana reform often seems a "young man's game" for which junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena. Now I am thinking, based in part on the posts above, that an especially effective way for a young lawyer or law firm to make a name in this arena (and to learn a whole lot) would be to start blogging astutely about the emerging challenges and opportunities that surround marijuana litigation and legal practice.
Saturday, March 08, 2014
Gambling v. PEDs and the Baseball Hall of Fame
Warning: Another sports-and-law post, this focusing on the internal rules of baseball as a business
Kostya Kennedy has a new book on Pete Rose, titled Pete Rose: An American Dilemma, excerpted in this week's Sports Illustrated cover story. Kennedy states that Rose's Hall-of-Fame worthiness has come under "renewed discussion" as players linked to PED use (Mark McGwire, Barry Bonds, Roger Clemens) come up for Hall consideration. TThe excerpt (and presumably the book) present the arguments that Rose' gambling is a lesser crime than PED use, so he should be a more worthy candidate for the Hall than a juicer. Will Leitch at Sports on Earth responds and basically blows up the argument, by pointing out the serious problems that gambling creates and the moral panic that surrounds PEDs.
But there is a different, more legalistic reason Kennedy's article gets Rose's Hall eligibility wrong, one I discussed eight years ago, just as the major PED suspects were beginning to retire. Rose is ineligible for the Hall because he voluntarily accepted a lifetime ban from baseball and placement on baseball's permanently ineligible list. Under Rule 3E of the BBWAA voting rules, "Any player on Baseball's ineligible list shall not be an eligible candidate." And that ends the inquiry. It actually does not matter whether Rose bet on baseball or on the Reds (he admitted gambling on baseball, although never on games involving his team)--he accepted the ban and thus the collateral consequence of the ban. On the other hand, no suspected steroid user has ever been assessed a lifetime ban or placed on the permanently ineligible list, thus none is subject to Rule 3E. Steroid users are being kept out of the Hall by the principled insistence (or priggish obstinance, depending on your perspective) of BBWAA members.
Of course, we might reconsider this ordering, which would require reconsideration of the comparative evil of steroid use and gambling. Under present rules, a person is banned for life for a third positive test or finding of PED use, but banned for life on one finding of having bet on games involving his team. Perhaps that should be flipped, or at least treated on equal footing. (On this, I agree with Leitch that we have the order right, that gambling is a far greater sin than taking drugs designed to help you play better and for longer). But none of that changes anything for Rose given the current rules and the rules under which he operated.
Thursday, March 06, 2014
The Unfulfilled Potential of "Above the Law"
"Above the Law" has been disappointing. Like a lot of other law professors, I would guess, I'm uncomfortable with some of the anti-law-school rhetoric that Elie Mystal and others have been trading in there. But that's not the disappointing part -- in fact, I think Elie has been largely responsible in his vitriol. (And there have sadly been many deserving targets.) Instead, I'm disappointed that ATL has not fulfilled its promise of being the go-to site for news about lawyers and law schools. Instead, it's been a useful site for *links* to news about lawyers and law schools.
What's the difference? ATL has almost no original content, at least in terms of news. There's a lot of opinion, yes, and that opinion can be entertaining and informative. But most of the time, the opinion is: "Hey, did you see this? Wow! LOL!" I cannot remember any time--any time--where ATL broke a news story. Maybe they have, and I'm forgetting. All the stories I remember start with a brief overview, a link, opinion, a block quote from the original source, and then further opinion. It's like I'm reading Yahoo.
So here's my plea -- do some original journalism! Yes, journalism is expensive. But how many people are working over there? Can't you assign three folks out of j-school or law school each to a "beat" -- law schools, Big Law, and other lawyers and judges -- and set them loose with a modest expense account and time to dig? There's news out there -- do some actual reporting! I suppose it's not the Gawker way, perhaps, but seriously -- how much better would ATL be if it actually broke some of its own stories? It would depend on the quality of the stories, of course. But ATL could make itself into a "farm team" for folks looking to work at the New Yorker, NY Mag, VF, the Atlantic, the Awl, or Grantland. I'd prefer some long-form pieces -- send somebody to X law firm or Y law school to actually do some digging and provide a deeper perspective. But short "Page Six" items would be entertaining as well!
I give ATL credit for its rankings, which were a thoughtful attempt to reconstruct the formula with more emphasis on jobs and alumni rankings. (Full disclosure: SLU placed 47th.) But it's not the investigative journalism that ATL seemed poised to provide when it started. With the proliferation of blogs, there is so much opinion out there. ATL is now a group blog, with some smart folks and smart opinions but just links, not news. I had thought it had the chance to be something a little different.