Monday, September 30, 2013
What just happened at the Naval Academy?
I have been following the military prosecution of several Naval Academy midshipmen for sexual assault, partly because news stories seem to reflect a yawning gulf between this case and our general understanding of the federal rape shield statute (which I just taught last week). I turned to my colleague Eric Carpenter, who writes on sexual assault in the military and had a long career in the Army JAG Corp.
The military just concluded a hearing at the Naval Academy into whether three midshipmen committed criminal sexual offenses against a female midshipman. According to the government, the woman attended a party and became drunk to the point of blackout and possibly passed out. Later, she heard rumors and saw social-media that led her to believe that these three men has sexually assaulted her while she was too drunk to be capable of consenting. The defense claims she was capable and did consent.
While the facts as reported by the media are disturbing, lawyers who read reports of the hearing should find something else alarming – the female midshipman was questioned by three defense counsel for over twenty hours, and the questioning went into areas that would often be off-limits due to rape shield rules. Reports are that she was cross-examined on whether she wore a bra or underwear, “felt like a ho” afterward, and how wide she opened her mouth during oral sex.
What’s going on here? What was that hearing and do rape shield rules apply to it? Why is a sexual assault victim testifying and subject to cross-examination in the first place?
What happened was something unique to the military – a hearing called an “Article 32.” This article of the Uniform Code of Military Justice (UCMJ) requires that before charges can go to a general court-martial (the rough equivalent of a felony-level court), an officer must investigate the truth of those charges (reasonable grounds that the accused committee the offense, or roughly the same thing as probable cause) and make a recommendation to the convening authority (usually a two-star general) on how she should act on the charges.
Your first reaction to that might be, “That hearing sounds like a grand jury proceeding.” My answer would be, “Yes, but mostly no.”
An accused at an Article 32 has rights that a defendant at a grand jury doesn’t. The accused can be present; has a right to a military defense counsel; can cross-examine witnesses; and has full opportunity to present evidence to rebut the charges or to seek a lower disposition.
There is no jury – just an investigating officer, and that officer usually has no legal training (she gets her legal advice from a neutral judge advocate). In the most serious or high-profile cases, like capital cases, judge advocates and sometimes military judges serve as the investigating officer. In the Naval Academy case, the media reports that a military judge served as the investigating officer.
Unlike a grand jury’s finding, the investigating officer’s conclusions and recommendations are not binding: the convening authority can still make her own decision about the case.
Evidentiary rules apply. Not the full-blown Military Rules of Evidence (which are very similar to the federal rules), but rules nonetheless. Generally, if a military witness is within 100 miles, she needs to show up, and even if the witness cannot show up in person, she usually testifies over the phone. You can’t simply turn in the victim’s sworn statement. In the Naval Academy case, that is why the victim had to testify.
Contrary to what some of the news reports imply, the rape shield rule applies. The military’s rape shield rule is essentially the same as the federal rule, and the President made this rule apply to these hearings with Rule for Court-Martial 405(i). In the Naval Academy case, I would assume that the parties argued about what the defense was allowed to ask in cross examination, and I assume the investigating officer (in this case, a lawyer) found an exception—but that may be a faulty assumption.
If the investigating officer decided that this evidence fit one of the written exceptions to the rape shield rule, that conclusion may be suspect. Generally, evidence of past sexual behavior or sexual disposition is inadmissible in inadmissible except to show that someone other than the accused was the source of physical evidence; to prove current consent with the accused if the past sexual behavior was with that accused; or the exclusion would violate the accused’s constitutional rights. The attorney for one of the accused asked her the questions about oral sex because “This is an act that cannot be performed while someone is passed out.” According to reports, the lawyer further argued that “her client could not have had oral sex performed without the woman’s consent.” Most people would disagree with that. The victim had a prior sexual relationship with one accused, but his attorney asked her about what she was or was not wearing and whether she felt like a ho on this occasion. The rule is limited to evidence of past experiences between the two. The defense counsel could have argued that this evidence was constitutionally required because the accused were mistaken as to whether she consented. But from the news reports, it appears that their defense is that was capable of and did in fact consent, not that she didn’t consent and they misread the situation.
Again, I was not at the hearing and don’t know how the investigating officer analyzed the facts. If he was right, the cross examination she faced at this hearing may have been allowed at trial. A very real issue is that he may have been wrong, and if he was wrong, there is no remedy for his mistake. With few exceptions, none of the testimony at an Article 32 is admissible at the later trial, and even if the government closed down all of the exceptions, the victim has already gone through the experience.
So it appears that Article 32 is ripe for criticism. To understand why Article 32 is the way it is and to properly frame criticism of it, we need to understand its history and original function.
As Oliver Wendell Holmes said, “The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains.” That is what happened here.
Service members don’t have a constitutional right to a grand jury, and what has developed was not because the military was trying to replicate one. Rather, the original purpose of the Article 32 was to conduct an investigation when it was very likely the only investigation that happened prior to trial. That function has now been subsumed by other features of the modern court-martial system but the investigative features of Article 32 still remain.
Prior to 1917, most charges were not investigated prior to going to trial. A commander would send charges to a court-martial, which would very often be held within a day. The accused had very few rights. There were no defense lawyers or judges or professional law enforcement investigators or appellate courts. This was quick trial before a board of officers. If you have seen the movies Breaker Morant or Paths of Glory, you will have a sense of how courts-martial worked back then.
The few cases that were investigated (because an officer demanded it) were sent to Courts of Inquiry. These courts were used to investigate a wide range of issues (the conduct of generals in combat, or to resolve allegations against character). These boards were used to resolve disputes and the procedures that developed for them reflected that purpose: the service member was present, the Court could compel witnesses, and the service member could cross-examine them.
Starting in 1917, in response to criticism that commanders had too much power and could push meritless cases through the system, commanders were required to conduct an investigation prior to sending the case to court-martial. The investigation would ensure that probable cause existed and would recommend an appropriate level of discipline. With this new requirement, commanders looked around for something familiar to model for this task and found the Courts of Inquiry.
Additional rights followed. In 1949, the accused gained the right to counsel. In 1951, Congress passed Article 32 as part of the new UCMJ, adding the right for the accused to make a statement and present evidence. In 1968, Congress required that the accused’s counsel be a real lawyer.
At the time, the rules were necessary because they provided a measure of due process that a service member did not find in the rest of the court-martial process. Since 1951, however, the court-martial process has steadily “civilianized,” with statutory requirements for independent military judges and legally qualified counsel who operate under the nation’s most liberal discovery laws (and so can marshal evidence for trial). The military’s law enforcement also became a professional, fully-functioning investigative community, complete with independent forensic laboratories.
The reasons to have an Article 32 investigation no longer exist, but the rule remains. That, I think, means it is time for change. Otherwise, we risk what we just saw.
Returning to the Naval Academy case, probably nothing new was learned at this Article 32 that could not have been learned by otherwise investigating the case, interviewing the witnesses, and conducting discovery under the military’s liberal rules. But while pursuing this now obsolete investigative function, we managed to take a service member through 20 hours of invasive testimony – which she may have to do again at trial. Twenty hours is more than enough. Forty hours is senseless.
We could have come to a probable cause determination without having this type of hearing. In a recent Op-Ed, Gene Fidell argued that it is time to get rid of this “trial before a trial” and instead have “a bare bones preliminary hearing” to determine probable cause.
A more measured response would be to modify the Article 32 so that it serves the functions that we want it to serve. We no longer need a formal investigation. Get rid of the investigative features – no more calling live witnesses, no more presentation of a defense case. This also takes care of the rape shield issue, because the defense is the party that presents that evidence.
We do need a probable cause hearing, and we can use the hearing as a discovery tool at no additional cost by allowing the accused and counsel to be present and to examine all materials presented. Make the probable cause determination binding on the convening authority (to protect the accused), but to do that, we need to make the Article 32 look more like a grand jury. Have a panel rather than one officer; have a judge advocate serve as a presiding officer. This won’t be a bare-bones hearing – knowing that the panel might kill the case should provide incentive enough to the government to produce a significant amount of information.
So what is next? Most of the current debate between Senators Gillibrand and Levin turns on who should make the disposition decision in a court-martial – the commander or the staff judge advocate. The Article 32 problem is on the radar, though. The 2013 National Defense Authorization Act mandated that the Secretary of Defense establish a panel (called the Response System Panel) to work on many of the difficult issues related to the military’s sexual assault problem. One of the mandates is to “[r]eview and assess those instances in which prior sexual conduct of the alleged victim was considered in a proceeding under [Article 32] and any instances in which prior sexual conduct was determined to be inadmissible.”
This is a good opportunity to decide what the modern functions of Article 32 should be and to revise it to promote those functions and only those functions. And I expect the Naval Academy case will be front in center in that debate.
(With thanks to Major Mike Kenna for shaping my perspective).
Sunday, September 29, 2013
How else do you enforce rules?
Last week, the NCAA reduced some of the sanctions imposed on the Penn State football program for the sexual abuse committed by a former assistant coach. Geoffrey Rapp (Toledo) describes this as "punisher's remorse"--the NCAA "realized the victims are the current players. It’s not really putting any hurt on the people that we think are really responsible."
I disagree that only the current players are being hurt. Penn State University as an institution was being punished. And if Penn State cannot be punished, then the entire scheme of NCAA regulations is unenforceable (and humor me for the moment and assume NCAA regs are worth enforcing). Any long-lasting institution survives its individual members; old members are replaced by new members, but the institution is understood to survive uninterrupted. And the institution bears responsibility for the conduct of its members--past, present, and future. The players and coaches who break rules are always gone by the time enforcement comes down. If that punishment is wrongful because current (rather than rule-breaking) players are in the institution at the time of enforcement, then punishment of the institution always becomes wrongful. Even in a case of lack of institutional control (as Penn State arguably was), the institution could always argue that its failure was to control previous players, but that shouldn't be taken out on current players. But then the university gets off scott-free and has no incentive to police its future members, because it always can argue against punishment falling on its current players.
Taken to its conclusion, Geoff's argument applies to any institution and institutional punishments. Germany should not be made to provide reparations or other compensation to Holocaust victims because the punishment falls on the current German government and citizens; ditto for arguments with respect to slavery. International law (which I rarely cite or discuss) recognizes the concept of successor governments. Why not for universities in the field of NCAA enforcement?
All that said, I agree with Geoff that this is an example of "punisher's remorse", a term I wish I had used in a radio interview I did last week. But the remorse is over punishing Penn State--the NCAA does not want one of its flagship institutions under such a harsh punishment.
Friday, September 06, 2013
Gladwell on PEDs
Malcolm Gladwell has a piece in The New Yorker (which he defends on this podcast) that basically lays out in detail an argument I've made previously--there is no good reason that performance-enhancing drugs are outlawed when performance-enhancing medical procedures (e.g., Tommy John surgery or eye surgery to improve vision) are permitted and that people with random genetic benefits (for example, an Olympic cross-country skier with a genetic mutation that over-produces red blood cells, which provides a tremendous advantage in endurance sports) are allowed to benefit from them. It is definitely worth a read, as is the new book The Sports Gene by journalist David Epstein, which Gladwell is reviewing in this piece.People (particularly present and former players, who should know better) often criticize PEDs as short-cuts and PED users as lazy; the player used instead of putting in the hard work of making himself a great player. In fact, many PEDs actually are all about hard work; the reason cyclists blood dope is so their bodies can work harder for longer and the benefit of steroids is to allow players to work-out longer and become stronger. When Lance Armstrong insisted "I am on my bike busting my ass six hours a day", he was telling the truth; the doping was what made it humanly possible for him to do that much work. On the other hand, we don't think of genetic advantages (say, especially good eyesight for a Major League hitter) as a short-cut, but as a natural tool that the player then must maximize through hard work. The point of PEDs is to level that genetic advantage, which he then must maximize through hard work. What's wrong with that?
Wednesday, September 04, 2013
The Legal Case for Intervening in Syria (Anthony Colangelo Guesting)
An International Legal Case for Military Intervention in Syria
Does international law allow U.S. military intervention in Syria? The Obama Administration has advanced a number of possible justifications including self-defense, halting civilian deaths, and debilitating the Assad regime’s chemical weapons capabilities. None of these justify intervention on the current state of international law.
Yet that doesn’t mean international law would view a U.S. intervention as illegal in the long run. International law is a tricky sort of law, and the United States could make a strong legal argument that intervention would help change the law to allow interventions to halt mass human rights abuses. Going forward, this argument could retrospectively ratify U.S. intervention in Syria and give the United States a central role in formulating international legal criteria for future interventions.
Legal arguments against intervention are straightforward and rely principally on treaty law. Most prominently, the U.N. Charter prohibits the “use of force against the territorial integrity or political independence of any state.” There are only two ways intervention is permissible under the Charter: the Security Council authorizes it, which has not and will not happen, or the United States acts in self-defense. Even the very best international lawyers can’t stretch the doctrine of self-defense to cover a U.S. strike in these circumstances. Even if they could, that’s both an awful and an awfully expansive precedent.
The Administration has also seized upon the Assad regime’s evident use of chemical weapons as a violation of international law that justifies intervention. Yet here too, treaty law cuts the other way. Syria is not a party to recent treaties banning the use of such weapons. Because treaties bind only states that have agreed to be bound by them, Syria’s use of chemical weapons cannot violate the treaties. The only treaty banning the use of chemical weapons Syria is a party to addresses international, not internal, conflicts. And in any event, it doesn’t authorize states to attack other states that violate it. In sum, treaty law does not allow intervention in Syria.
There is, however, another type of international law that might allow intervention, called customary international law. Unlike treaty law, customary international law doesn’t derive from formal agreements among states. Instead, it arises from the practice of states accompanied by what international lawyers call opinio juris, or states’ intent that their practice carries legal significance.
States can usually treaty around custom much the same way private individuals can contract around the norms that govern our everyday behavior. But there are some rules of customary international law that cannot be contracted around and that override treaties inconsistent with their rules. These are called jus cogens, or peremptory norms of international law. Jus cogens contain prohibitions on serious international law violations like genocide, torture, slavery, and crimes against humanity. To illustrate, Hitler and Mussolini can agree by treaty to afford each other’s nations certain preferential trade treatment. But they cannot enter into a treaty legalizing genocide. Jus cogens would swoop in to invalidate that treaty as contrary to a peremptory norm of international law.
Where does this leave the international legal justification for intervention in Syria? Many favoring intervention have cited jus cogens prohibitions on mass human rights abuses as justification. But that argument is flawed because the jus cogens norm does not directly conflict with the U.N. Charter’s prohibition on the use of force. That is, the Charter doesn’t authorize human rights abuses—in fact, just the opposite: it seeks to “promot[e] and encourage[e] respect for human rights.” Thus even if one can safely classify the Assad regime’s abuses as violations of jus cogens, that only gets the argument halfway to intervention. To justify intervention, the jus cogens norm would need to encompass not only a prohibition on human rights abuses but also the capacity of other states to enforce that prohibition. This latter enforcement component is presently lacking under the law. Finally, the Charter’s prohibition on the use of force isn’t some run-of-the-mill international rule. It is a cornerstone of the postwar international legal system that outlaws aggressive war. For this reason, the prohibition on the use of force is itself considered a jus cogens norm.
Nonetheless, it may be time for a change. Because customary international law arises from state practice, as practices change so too does the law, including the law of jus cogens. One way customary international law changes is states break it to form new norms; breaches effectively plant the seeds from which new norms grow. Although a breach may violate international law when it occurs, the law may develop to ratify that breach as the early stage of a new norm’s development.
If the United States intervenes in Syria, it has an initial international legal choice to make: it can ignore international law or seek to justify intervention within it. The second option’s benefit is that if state practice develops to allow intervention the illegality of U.S. action will wilt as the new norm blossoms. Yet some may view this option as undesirable precisely because it may prompt other states to accept the legality of intervention. Reciprocity is also a cardinal rule of international law: if it’s legal for us, it’s legal for you.
The question then becomes whether it’s better to operate within the law or outside it. For other states also will face that same initial choice above, to which this first-order reciprocity norm also extends; that is, the initial choice to ignore law or to justify their actions within it. In this respect, the United States may actually derive two distinct benefits from choosing to justify its actions under international law: a retrospective ratification of U.S. intervention and the ability to formulate criteria for a budding international law of humanitarian intervention.
Thursday, August 29, 2013
NYC’s Soda Ban: What’s All the Fizz About?
Reaction to New York’s 16-oz. soda limit has mostly come in two flavors. In the right-hand tap we mostly have complaints about paternalism and the nanny state. On the left, some grousing that (legal obstacles notwithstanding) a soda or sugar tax would have been a better policy. (Then lurking under the counter are the local government nerds, but let’s leave them be for now.) I’ll confess that the paternalism argument is too much for me to swallow. As lots of folks have now shown, there is a perfectly ordinary externality case for obesity control, regardless of whether the policies help us to better control ourselves.
One could say something similar about lots of modern nudges. Many of them -- smart meters, smart buildings -- are aimed at a classic externality problem, such as climate change. There isn’t really a paternalism story there. Maybe we could debate whether the nudge-y approaches are less “coercive” than your usual command and control regulation, but since no one has an especially good definition of coercive, I don’t think we’ll get anywhere. And indeed, I think that is what you’d see if you read the various back-and-forths on coercion between Sunstein et al. and their critics.
Maybe the best argument Sunstein and others (in particular, Sam Issacharoff and some smart economists) offer is that nudges are less “coercive” in the sense that they are more efficient (though they don’t typically put it that way). Usually, the nudge disproportionately affects people who need it the most---sticky pension defaults are most effective for procrastinators, and they’re the people who aren’t saving enough. So the “deadweight loss” of the nudge is small: it doesn’t bother people who don’t need it. But it’s not so clear how we tell this story about externalities. Are procrastinators more likely to emit greenhouse gasses?
This is a pretty narrow way of thinking about the efficiency of nudges. There is no secret formula for policy evaluation; we know how to mix up a good batch of regulation. Environmental economists compare taxes to “command and control” alternatives; crim. law scholars compare fines to prison and shaming. We can infuse this same analysis into the NYC debate, or analysis of any old nudge. Or, maybe not quite the same old classic analysis--maybe more of a New Coke flavor. I’ll say more about that tomorrow.
Wednesday, August 28, 2013
Fixed matches and cultural capital
A new article in ESPN The Magazine (which includes an embedded video) tells the story of rumors that Bobby Riggs tanked the famous "Battle of the Sexes" tennis match against Billie Jean King, which was played 40 years ago next month. The touchstone of the piece is an interview with a man who claims to have overheard two mob bosses and a mob lawyer discussing Riggs' tanking several months before the match, although rumors that Riggs threw it have abounded for 40 years.
Two notable things in the article. First, Riggs' son and his best friend both suggested that Riggs' famous pre-match chauvinism was all for show, that he believed in gender equality and had worked with a female coach at the start of his career. Second, the story ends with Riggs and King speaking several days before Riggs died in 1995; King says she told Riggs how important their match was to women and the women's movement. "'"Well, we did it," Bobby Riggs finally told her. "We really made a difference, didn't we?""
What if Riggs did tank? The match is a cultural milestone because it purported to show that women could successfully compete with men. That idea is absolutely true, of course (although not in high-level professional sports, and I wish the sports conversation would move away from women competing with men so we could enjoy women's sports on their own merits). But the match no longer represents the idea if King did not actually beat Riggs. On the other hand, suppose Riggs tanked because he saw that he could advance the cause of women's rights and women's equality (ideas to which he perhaps was sympathetic) by losing. Regardless of whether the win was real, it laid the groundwork for what we now, 40 years on, understand as true. And his dying words to King suggest he may have understood that.
Saturday, August 24, 2013
The Problems with the President's Two-Year Plan
At a town hall event in Binghamton, N.Y. earlier today, President Obama was asked the following question:
I'm a faculty member of the computer science department. I'm very excited and encouraged by your plan on the affordability reform. My question is related about the quality of future higher education. As you know, many universities are trying their best to provide the best value by doing better with less. But the challenges are real, and they're getting tougher and tougher as the budget cuts are getting tougher and tougher. So my question is what your administration will do to ensure the best American universities remain to be the best in the world in the 21st century?
After acknowledging that state educational funding had dropped off significantly (". . . what you've seen is a drop from about 46 percent of the revenues of a public college coming from states down to about 25 percent"), the President then turned to ways in which universities could also cut costs:
So states have to do their jobs. But what is true also, though, is that universities and faculty need to come up with ways to also cut costs while maintaining quality -- because that’s what we’re having to do throughout our economy. And sometimes when I talk to college professors -- and, keep in mind, I taught in a law school for 10 years, so I’m very sympathetic to the spirit of inquiry and the importance of not just looking at X’s and O’s and numbers when it comes to measuring colleges. But what I also know is, is that there are ways we can save money that would not diminish quality.
This is probably controversial to say, but what the heck, I’m in my second term so I can say it. (Laughter.) I believe, for example, that law schools would probably be wise to think about being two years instead of three years -- because by the third year -- in the first two years young people are learning in the classroom. The third year they’d be better off clerking or practicing in a firm, even if they weren’t getting paid that much. But that step alone would reduce the cost for the student.
Now, the question is can law schools maintain quality and keep good professors and sustain themselves without that third year. My suspicion is, is that if they thought creatively about it, they probably could. Now, if that’s true at a graduate level, there are probably some things that we could do at the undergraduate level as well.
The full transcript is here.
I'm sure a lot will be said about this in the upcoming days, but since it's a Friday night in August, I thought I'd weigh in with a few initial thoughts. So here they are:
(1) The President's proposal does not lower tuition. It may seem obdurate to suggest that lopping off a third of the legal education provided to students would not reduce the tuition they pay. But it won't -- at least, not on its own. Yes, it will cut the costs of providing that education, at least in theory. But it won't lower tuition.
Frankly, I'm somewhat baffled that proponents of the two-year plan -- and, in fact any proposal to cut the costs of providing legal education -- fail to grasp this point. We just went through a period where a lot of law schools raised their baseline tuition at rates significantly higher than inflation despite the fact that the J.D. remained the same number of credits. In other words, over the last decade law schools charged significantly more per credit hour. What's to prevent them from doing this in the future?
But, how, you may ask, could law schools really charge the same price for 1/3 less education? Well, play it out. Let's suppose some states allow students to sit for the bar after two years, rather than three. Some schools would change their J.D. programs to two years, but many would not. In fact, it's more likely that the higher-ranked schools would keep their programs as is. But putting that variable to the side -- yes, there would be competition at lower-ranked schools, and many would create two-year programs. But they would charge what the market could bear. And up until very recently, that market could bear about $100,000 to $150,000 for a J.D. with many students lining up for it. Why wouldn't that market dynamic remain the same?
If you need further proof, just look at Matt Leichter's school-by-school analysis. As he said, "law schools do not care about controlling their costs and will shift them onto students who don’t realize that their predecessors had a significantly better deal than they did." Since I'm a law professor, I would frame this differently (schools will keep spending to improve the education they provide and their reputation), but the point is the same: law school tuition is not constrained by credit hours.
If someone magically changed the J.D. program at my law school to two years, I wouldn't shrug my shoulders and go, "Oh well -- guess we're only two years now!" I would work with my colleagues to figure out how we could make those two years meet the needs of our students -- and pack as much in as possible. If the same U.S. News rankings remained in place, don't you think schools would continue to compete on class size, expenses per student, and educational reputation? And wouldn't that drive up costs? What if, in the new two-year law school, we added a clinical component, an externship component, and a ten-person small section component to the basic Contracts class, and then assigned it to a doctrinal professor, two clinical professors, and four adjuncts? That would be a better class, no? But it'd also be a lot more expensive. A school could easily justify spending $60,000 or more a year per student -- again, if the market rewarded schools for offering such classes. (As an aside: is it better to have two years of intensive classes or three years of broader offerings? That's an interesting pedagogical question -- but it's a pedagogical, not a financial, one.)
So I do think, initially, a two-year program would lead to reduced tuition. But would it hold that way? I don't think so. The pressures towards education excellence would increase costs to meet whatever students and their lenders were willing to pay. That's not necessarily a bad thing, if consumers have the proper price sensitivity. But if you want tuition to go down, work on that. Otherwise, the assumption that law school tuition will go down if costs go down is like the argument that 11 is louder. It assumes that law schools just can't make 10 louder themselves.
(2) The President's plan would worsen the jobs aspect of the current crisis. No one doubts that a significant part of the current crisis is based on the drop in employment opportunities for law school graduates. If we change the requirements so that lawyers from here on out would only need two years of school, there would be more of them, and they would come to the market more quickly. And that would be a bad thing for those lawyers who are currently in the market.
Again, this seems to be a point that many reformers are either missing or are conveniently ducking. If you think there are too many law grads chasing too few jobs, then you really want fewer law grads. And if you are making legal education cheaper to provide, either by lopping off a third of the education required, or getting rid of tenure, or loosening other accreditation requirements, then you are putting down incentives for *more* law grads to be out there. And here's the Scylla-and-Charibdis: either tuition will not go down, and law schools will just make more money off their students as their costs drop, or tuition will go down, and more students will have the economic incentives and ability to go to law school. Pick your poison.
(3) Choices about the required program of legal education should be based on pedagogy. The President proposed lopping a third off of legal education because "by the third year -- in the first two years young people are learning in the classroom. The third year they’d be better off clerking or practicing in a firm, even if they weren’t getting paid that much." That's not much of a pedagogical theory -- I guess he doesn't like clinics -- but then again, there's not much pedagogy to a lot of these theories. I believe that with increasing legal complexity, most of us would likely need more education, rather than less, to be properly prepared. Of course, it is always the job of law schools to provide the necessary education at a sustainable price. But schools can provide a three-year legal education at a sustainable price. In fact, we've done it in the past.
If we find that a two-year J.D. provides an adequate education, then we should adopt it. But if we reduce the quality of our legal education -- and reduce it in ways that leave lawyers less able to handle their vocations -- simply because we can find no other way to reduce the price, then shame on us.
Friday, August 02, 2013
Words and actions
Two mostly unrelated items about differences between words and conduct and about what we, as a public, do and should get outraged about.
1) The Republican strategy heading into the August recess is to counter the notion that the GOP is hostile to women (as indicated by the rash of state-level legislation designed to curtail all exercises of female reproductive freedom) by arguing that the Democrats are hostile to women because they are not denouncing Anthony Wiener for sexting or San Diego Mayor Bob Filner for alleged sexual harassment, nor calling for either one to resign/drop out of the race. This, the Republicans argue, is hypocisy, given Democrats' reaction to the statements about rape by Todd Akin and Richard Mourdock during the 2012 election cycle. To absolutely no one's surprise, the lazy intellectual lightweights who constitute much of the political press have taken the bait. Worse, the AP suggests--while Akin and Mourdock were attacked for their words, the Democrats are not calling out Weiner and Fillner for their actions.First, I'm not sure the distinction is so clear here. Weiner's conduct, at least, involves words (or words and some pictures). On the other hand, while Akin and Mourdock were criticized for their words, they were words spoken in an electoral campaign, words that reflected or predicted actions--how they had voted or would vote in the future on matters such as Planned Parenthood funding and the scope of rape exceptions in abortion laws. In any event, it seems to me the important distinction is not between conduct and action, but between public and private behavior and between lawful and unlawful behavior. As David Weigel argues in Slate, the press (again, no surprise) proceeds as if sex scandals (especially those involving lawful-but-sleazy behavior) are more important than (or at least as equaly important as) actual laws that actual elected officials actually introduce and vote for. Perhaps Democrats should call on Fillner to resign. But that has no bearing on Democrats calling public attention to the words of a candidate for office, where those words lend insight to the beliefs that this candidate would attempt to enact into law.
2) Riley Cooper, a member of the Philadelphia Eagles, is in deep trouble because he was video-recorded using a racial epithet in talking about who he was ready to get into a fight with. Cooper apologized all over the place (and not the typical celebrity non-apology apology) and was fined (but not suspended) by the team. Cooper today left the team to seek counseling and at least one Philadelphia commentator has suggested that this will cost him his job (and, implicitly, that no team ever will touch him).
But the NFL (all big-time sports, actually) are notorious for giving players second (and third and fourth and fifth) chances for off-field misconduct. Players who have engaged in domestic violence, sexual violence, sexual harassment, drunk driving, and other misconduct (again, involving action) are routinely welcomed back and allowed to continue playing for their teams, perhaps following a short suspension or fine. Without condoning, excusing, or minimizing what Cooper said, is dropping a racial epithet (in a context, by the way, where it was unquestionably lawful) really more unforgiveable than all of those things?
Friday, July 26, 2013
Michelle Meyer en fuego (updated twice!)
I have deep affection for TNR (though I find the new regime prone to putting out more fluffy stuff in the magazine). What's more, I also like a lot of what I've read of Richard Thompson Ford's work before. But this non-correction correction is pretty embarrassing. Richard Thompson Ford's piece on the Zimmerman verdict was marred by some critical errors and inferences on the facts, which were brought to the editors' attention (and possibly his?), and I would think all the parties involved would want a real correction and not, as Michelle puts it ably, a correction that works a "double-down" on misleading information in a charged matter.
Oy, it just gets worse (again Jonathan H. Adler is on the case): "The article has been revised again. Now the statement reads: “Zimmerman was an edgy basket case with a gun who had called the police 46 times in 15 months.” This is still inaccurate, as the calls were made over several years, not 15 months. Moreover, the additional corrections are not noted in the editor’s note at the bottom."
Update 2: TNR editors have largely come to their senses. They have now further corrected the false facts entirely and acknowledged the stream of errors in the latest version, but they still leave in Ford's pejorative claims that Zimmerman was an "edgy basketcase," when the whole basis for that claim in the original sentence has been undermined. Maybe I'm wrong but a neighborhood watch guy who calls 46 times over 8 years is not, on those facts alone, enough to make him an "edgy basketcase." You'd have to be relying on other evidence, presumably from something else besides the night Trayvon Martin was unfortunately killed, to reach that inference.
Wednesday, July 24, 2013
Petition: Save Federal Defender Services
[At the suggestion of a commenter on my last post, I offer this petition:]
Sequestration imperils the constitutional right of criminal defendants to adequate legal representation. About 90% of federal criminal defendants require court-appointed counsel. In FY 2013, sequestration resulted in a $52 million cut to Federal Defender Services, bringing massive layoffs and furloughs. It is estimated that in FY 2014, if nothing is done, FDS will be forced to terminate as many as one-third to one-half of employees.
Funding for prosecutors is apparently headed in the opposite direction. The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court. This radical imbalance threatens the fundamental right to counsel.
Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services.
Update: Thanks to all for the strong support so far. Please send me an email (email@example.com) with your name, institutional affiliation (if applicable), and city of residence. I will subsequently post a document with this petition and the names of signatories.
Associate Professor, University of Alabama School of Law
Tuesday, July 23, 2013
Could FACs induce retirement of government officials? A "Corruption" Work-around?
Btw, a couple weeks ago on FB (where all my random mental burps occur), I proposed a possible variation of our crowdfunded FAC model in the gov't context. Specifically, I wondered aloud: could a cabal of Soros and Gates and Bloomberg create a FAC (Fan Action Committee) to throw money at Justice Ginsburg (or her favorite charity) to retire from SCOTUS (so POTUS could appoint someone new presumably) without violating any laws?
We just saw Sec. J. Napolitano step down from DHS to head the UC system. So if Soros et al. couldn't offer RBG 20 million to retire, could he give her 20 million to join as a board member of Open Society to have tea with him once a year? There you at least have a peppercorn of consideration for the contract. Is that enough to circumvent the corruption statutes or relevant ethics rules? Would you give the same deal to get Michelle Bachman to leave Congress? The interesting wrinkle here is that unlike general corruption statutes governing improper quid pro quo of "official action" for $, this FAC-y scenario just requires $ in exchange for no "official action", ie, retirement. A couple friends thought scenarios of this sort would still be illegal, but I'm not sure I'm persuaded yet; if it's illegal at the federal level under extant law, could it be used at the state level? If you disagree with me, please cite chapter and verse on why! And file this in the "devilish and probably misguided idea" drawer.
Nate Silver and the Hidden Genius of Capitalist Crowdfunding
After a long and difficult year personally, it gives me some quiet joy to announce that I've just uploaded a "shitty" first draft of Catalyzing Fans to SSRN. Actually, it's somewhat polished as a draft, but it's pre-submission, blissfully short (13,000 words) and, um, really interesting. Bonus: it has nothing to do with retributive justice. So, my co-authors, Mike McCann and Howard Wasserman, and I hope you'll read a draft and send along comments. Here's an overview:
Should Nate Silver have stayed at the New York Times, or instead go to ESPN? Where should Cass Sunstein teach? What team should Lebron James play on? In this paper, we have a proposal for how to think about the trilateral relationships among "talent" (Silver, Sunstein, James), teams (the NYT, the Miami Heat, Harvard), and fans. For some reason, the answers to where that talent should work are often only indirectly connected to the desires of third-party fans. We think this could be different.Specifically, we propose the development of Fan Action Committees (FACs).
Analogous to, but distinct from, Political Action Committees (PACs), these FACs would coordinate, aggregate, and monetize the intensity of fan preferences and would thus serve to either enrich "talent" directly, or, in a wrinkle we prefer, make contributions to charities favored by talent. If we're right about how fans could introduce crowdfunding as a way to re-configure that triangular relationship, well, it's a potential game-changer, if you'll pardon the pun. Once our paper lays out the architecture of the direct compensation and charitable models, we anticipate how to overcome obstacles to the development of FACs that may exist under current rules or laws. We also address a variety of policy concerns and objections ranging from considerations of competitive balance to distributive justice. Advancing and illuminating the possibility of FACs across pro team sports and commercial entertainment, journalists and academics, we show how crowdfunding options produce the potential for more efficient valuations of talent by registering not only the number of fans but also the intensity of their preferences. This insight, which stresses the upside of price discrimination, has relevance to a wide range of human endeavor. In short, the introduction of FACs can basically change the dynamic of any area where bilateral contracts have third party externalities that are not currently calibrated or adequately valued.
Btw, Howard, Mike and I began kicking this idea around last summer after I floated on FB something like the notion of fan interference, wondering why fans couldn't affect the Knicks' incentives to hire or retain Jeremy Lin in the midst of Linsanity. To transition this into a proper paper, however, I encountered the slight problem that I could not care less about sports or sports law, and knew zero about the area. So I enlisted my pals Mike and Howard -- two of the leading sports law guys in the country -- to write a paper with me about the law, policy and economics about fandom. The paper's come a long way from a facebook thread (which itself is a sort of crowd wisdom opportunity), and some of its most interesting moves and extensions come from conversations with prior readers at FSU and more recently the 10,000 Feet Legal Theory Workshop--so thanks to those folks! (The latter, btw, is a workshop that spontaneously emerged among the group of profs who went hiking with me in the afternoons while in the Rockies two weeks ago for the LEC's annual law and econ boot camp.) Anyway, we'll be sending it out soon, and, now that it's been gently road-tested, I'm sure any of us would be excited about the prospect of talking about it at your law school this coming year.
Thursday, July 18, 2013
Is there a Case Against Angela Corey?
So much has been written about the Zimmerman verdict that I was reluctant to join the fray, but I've decided to do just that, having found few extended discussions of the prosecutor's mishandling of the case, the bizarre nature of her press conference, and whether any ethics violations could potentially be brought against her with the Florida Bar.
First, as others have written, the prosecution -- led by controversial veteran Angela Corey -- did a lousy job. But, given the many years of trial experience of the lawyers for the state, the types of errors they made have struck me as more than just the result of mere sloppiness or oversights. Isn't one of the most basic lessons of first year trial advocacy to prepare your witnesses? How could it be that the state in a high-profile murder prosecution allows a critical "ear witness" to the incident, Rachel Jeantel, to testify with so little obvious preparation? How could it be that the state could allow their medical examiner, Dr. Shiping Bao, to testify in such an confusing, halting, and ill-prepared manner (particularly under cross-examination) -- not to mention the contrast between his shaky performance and that of the defense's smooth and confident forensic pathologist, Dr. Vincent Di Maio?
Much has been said about the charges Corey's office brought against George Zimmerman, but indulge me by considering them again. Why on earth would the DA bring second degree murder charges after a six week investigation in which the police concluded that the suspect had legitimate grounds for a justifiable homicide defense? Even if Corey had disagreed with their estimation, she should have known that the investigating officers would fight tooth and nail on the stand to support their initial analysis of the evidence -- particularly given that she and her colleagues were "special" prosecutors appointed from another county and, therefore, had no history or relationship with these cops? Also, why not just charge manslaughter from the outset, thereby shifting the prosecution's focus from the nearly impossible-to-prove (given the evidence), "hate in his heart," to the more palatable, "reckless actions that led unfortunately to a death"? In fact, why not give the state the cover provided by first presenting the case to a grand jury, rather than proceeding by means of criminal information and a bare bones probable cause affidavit?
Yes, I used the term "performance" when describing the witness testimony, as every litigator knows that trials are more akin to theater than to an actual search for the truth. Your witnesses must know their lines, maintain the right affect, and have the preferred style of delivery. Not only do you prepare them for direct examination by rehearsing the questions you intend to ask and the answers you expect them to offer, but you bring in another lawyer to conduct a moot cross-examination, so that they are ready and confident before facing the other side. I find it difficult to believe that this actually happened in the state's case. And, if it did not, what was the reason? Lack of time, motivation, concern? If so, could any of these serve as the basis for an ethical violation against Corey and her associates?
Related to this point is the failure of the prosecution team to anticipate and thereby counter the age-old defense strategy of putting the victim on trial. It should have been no surprise that Zimmerman's lawyers would urge the jury to put themselves in their client's shoes and view the scenario from his perspective (Scary black male wearing hoodie! Threatening presence in the neighborhood! And he was high on weed!). Why did the prosecution make this even easier for the defense by readily admitting into evidence Zimmerman's statements as well as the VIDEO of him at the station house when he walks the detective through his seemingly reasonable version of events? Why not keep that out and try to force the defense to put Zimmerman on the stand to get these exculpatory facts into evidence? Similarly, what of Zimmerman's completely self-serving claim that Trayvon Martin told him, "You're going to die tonight"? Does this have any ring of truth to it? And if not, why not make the defendant take the stand to assert it himself, when the state could then cross-examine him?
I was perplexed by all of this, gravely disappointed though not surprised by the acquittal, and then I watched Angela Corey's surreal press conference following the verdict First of all, what of her smile? Why is she smiling when the defendant was found not guilty? She claims that she has "brought out the truth on behalf of Trayvon Martin." If she believed in the prosecution, in the commission of second degree murder by George Zimmerman, how was the truth brought out? She is proud to be part of the "historical aspect of the case." What makes it historical from her perspective -- the degree of press attention? She says that the jury has carefully "gone over all the facts and circumstances," has worked "very hard," and rendered a just verdict. And then she admits to reporters that she has not yet spoken with Trayvon Martin's parents or family but immediately made herself available to the media. It just doesn't add up.
Where does this leave the Martin family? It seems unlikely that there will be a federal prosecution of Zimmerman on different criminal charges, and as for civil rights charges, proving racial animus via the Hate Crimes Prevention Act would be extremely difficult. A wrongful death civil suit against Zimmerman is another possibility, though despite the lower standard of proof and likelihood that Zimmerman would have to testify, if he wins his hearing under the Stand Your Ground law, he'd be immune from civil action.
All of which brings me to Angela Corey and her future as a state prosecutor. Rule 4-3.8 of the Rules of Professional Responsibility regulating the Florida Bar calls for prosecutors to adhere to the following:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) not seek to obtain from an unrepresented accused a waiver of important pre-trial rights such as a right to a preliminary hearing;
(c) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.
From what I've read, it does not appear that (b) or (c) apply, but could subsection (a) be provable against Corey? If not, is there any redress under any of the other Rules? Is there any equivalent of ineffective assistance of counsel by the prosecution?
I acknowledge that this may seem to be a strange inquiry coming from a criminal defense lawyer, but I'm not convinced that if the prosecution had been handled differently, the verdict would have been the same. Trials are crap shoots, as there are so many unknowns, but they are crap shoots in which the skill of the gambler does matter. The state of Florida was clearly out-lawyered in this case, which is always possible in a jury trial. What troubles me is that it almost seemed too easy for the defense, as though the other side had decided to throw the game . . . and that's not a fair or just result for anyone.
Your thoughts? Please share in the comments.
Tuesday, July 16, 2013
A Not Quite Post-Script on Zimmerman, etc.
Interesting exchange I though I'd share. I just rec'd an email from a stranger (to me):
You write here - - that "I fear that if the races had been turned around, we might have a different verdict."
Why, given the evidence presented, the law, the jury instructions, etc., do you have this fear? Is there a scintilla of evidence that the jury, in its deliberations, was influenced by considerations of race in any way?
Thanks for writing (respectfully!).
My sense is that there likely were some subtle racial dynamics as to what prompted GZ's suspicions. I doubt that if TM had been white, GZ would have bothered to call. If GZ had been black and shot a TM who were white, I could see the possibility of conviction going up, even if the same evidence were there. I regret that's the world in which I harbor that concern.
Still, in this case, I think it would be a serious injustice to alter the verdict just because of the risk that injustice elsewhere could erupt. My point, modestly, was that one can't fix other injustices by doing an injustice in this case.
My correspondent wrote back:
Thanks for your quick -- and equally respectful -- response.
1) Re: GZ being suspicious if TM had been white: This is a bedrock assumption -- I don't think there's much evidence on the issue one way or the other -- which I don't share, but let's assume it anyway.
2) The jury seemed to be meticulous (14 hours of deliberation, etc.). According to the juror interviewed on CNN, at first, 3 jurors wanted to convict GZ "of something." But, based on the evidence presented and the "options we were given," acquittal was the only decision, in the end. I very much doubt that this jury would have acted any differently had TM been white/GZ been black. Also bear in mind that white guilt, as well as white racism, can play a role. But this is just my opinion.
At this point, it seems, we are in the realm of speculation and sociology, so I don't have much more to add than my first response. But I thought it was an interesting exchange, and I'm sure some of our readers would have more vigorous responses and reactions.
Update: I have since learned (h/t to Adler on FB and Bernstein below) that I may have been leaping to judgments re: my speculation about Zimmerman's reticence to call in suspicious non-blacks. He has a history of calling in a range of people, including fellow Hispanics, and he's also made calls, from what I understand, designed to ensure the wellbeing of young black children. I'm grateful for the information--obviously, I can't verify it myself, but if it's true, the information seems relevant about what kinds of speculations are warranted in race-switching scenarios.
Sunday, July 14, 2013
Some more thoughts on self-defense, Stand Your Ground, and Zimmerman
The point of this post is to extend some reflections of ambivalence on some difficult questions regarding self-defense. First, Stand Your Ground (SYG) laws are found in over 20 states including Florida. So, although Florida's getting a lot of heat in my FB thread, I'm not sure it's right to castigate FL as uniquely bizarre in its embrace of SYG. More importantly, it's worth noting that, although the SYG instruction was given here, it wasn't a critical part of the overall case. GZ wasn't claiming a right to deadly force at a moment when he had avenues of retreat. GZ's claim of self-defense was invoked when he (putatively) was on the bottom and shot upward at TM. Might it have framed the defense nonetheless? Perhaps. But given that the forensics were completely consistent with GZ's claim that he shot while he was on the bottom, I'm not sure we should think SYG (in place of a duty to retreat instruction) polluted the jury's decision-making here.
One way in which the FL law did play a role is by shifting the relevant burden regarding self-defense to the gov't. Specifically, the gov't bore the burden of showing beyond a reasonable doubt that GZ did not act in self-defense. In Ohio some states, and historically, self-defense is an affirmative defense, meaning that the defendant shoulders that burden.* Professor Joshua Dressler notes that FL has the burden of disproving SD BRD in the WSJ, but apparently he lumps this burden-shifting point with SYG, which seems mistaken. In other words, a legislature could make the defendant bear the burden of self-defense while still allowing SYG or requiring a duty to retreat and a state could still have the burden of disproving self-defense claims while allowing SYG or requiring a duty to retreat. (In fact, since 49 of the 50 states, including Florida, make the government bear the burden of disproving SD if the Def't is able to produce some evidence supporting SD, it's probably misleading to suggest that FL's law here is an outlier regarding who bears the burden. I don't think Dressler directly said that, but it's possible some might infer that from his comments.)
The verdict unsurprisingly seems to be renewing hostility to SYG. There are some powerful reasons to welcome this hostility.One of the reasons cops don't like it is that it makes it harder to prosecute drug dealers who kill rivals and claim self defense because they were the last ones standing. Some have stressed that SYG hurts minorities. Here the response is typical: it depends. Inasmuch as SYG is a general boon to defendants, and most crime occurs intra-racially, it's not obviously racially biased against minorities in terms of its impact on defendants. That said, analogous to the McCleskey dynamic in the death penalty, there is cause for concern based on the racial impact on victims in inter-racial crimes, and this is what seems to be raising lots of people's hackles, for good reason. But according to the study that I've seen getting circulated for trumpeting this effect, the inference of bias is unproven for two reasons:
The disparity is clear. But the figures don’t yet prove bias. As Roman points out, the data doesn’t show the circumstances behind the killings, for example whether the people who were shot were involved in home invasions or in a confrontation on the street. Additionally, there are far fewer white-on-black shootings in the FBI data — only 25 total in both the Stand Your Ground and non-Stand Your Ground states.
One last point about SYG's apparent vices. The SYG notion stands in tension with the common law duty to retreat when safe avenues of avoidance are available because we don't want the streets and floors piled with dead bodies on the ground. As mentioned before, I have a lot of sympathy for the common law rule of requiring retreat when feasible. But a principled commitment to the duty to retreat would require revision to the laws allowing the equivalent of SYG in the home. There's a pretty deep sociological commitment to the castle doctrine that works as an exception to the duty to retreat, and thus allows you to prevent being dispossessed of your home. I'm not sure the castle doctrine is net-net justified if there really are safe avenues of avoidance for everyone in the home, but regardless of whether I'm right about that, I do think it's a tough issue. Accordingly, one must bear in mind that self-defense law has to be drawn in a way that takes into account a cluster of complicated moral commitments: do we want to maximally protect home-owners? do we want to make S-D easier for battered women? do we want to maximize lives saved? do we want to maximize only non-culpable lives saved? Do we want to facilitate people feeling safe wherever they have a lawful right to be? Those who proclaim in righteous thunder against SYG have to be confident of their views in at least a couple troubling situations: domestic violence and racist intimidation. Here's a hypo from Dressler's casebook that I've altered somewhat to make the salience of SYG a little more obvious, despite my concerns about it.
One day Arthur, the resident racist homophobe, informs Dina that if she brings her "trashy gay black ass" that way again he will kill her. Dina could just as conveniently walk along another street, but believing that ‘‘I have every right to walk where I choose,’’ she decides the next day to arm herself with a licensed gun and walk along the now fraught route with her weapon visible to onlookers, as she is permitted to do. Arthur appears and, because of a bum leg, he hobbles toward her, but menacingly, raising his fists and says, "I'm going to get you now." Dina is an olympic class runner, however, and she knows she could run away without problem. Arthur hobbles toward her and is about to punch her. So Dina shoots him because she fears that if she doesn't run, Arthur's strength will overpower her completely.
Notice that here Dina has several avenues of avoidance: she could have walked along a different road altogether that day, she could have called the cops after receiving the menacing threat, and, ex hypothesis, she could have run away to safety even at the moment prior to Arthur's instigating the violence. Duty to retreat laws would require Dina to avoid this conflict and SYG laws allow her to shoot. I'm inclined to believe that she should have retreated, but I'm also not sure I want to argue that when my fellow citizens vote these laws in place that they are committing some form of moral reasoning malpractice. Anyway, I want to stress, before I close, that I'm not saying Dina and GZ are similarly situated at all. We have precious little information about the beginning of violence between TM and GZ. My point is simply that there might be a case for SYG that appeals to some "progressives" at least in some cases.
I'll close with one link to a very interesting recent article on self-defense by Larry Alexander; it is intellectually rich with examples that will stimulate and challenge most people's intuitions.
*Eugene Volokh notes here that 49 of the 50 states (all but Ohio) put the burden of disproving S-D beyond a reasonable doubt on the state once the defendant has put forth some evidence.
Saturday, July 13, 2013
Zimmerman's Not Guilty
The jury just returned an acquittal on all counts in the George Zimmerman case. I have been expecting this verdict from before the trial when I looked at the evidence that had been produced in the state's discovery. Martin's death is an unfortunate loss, but this case had close to zero evidence to support the goverment's charge of murder and only a bit more evidence to support a finding of manslaughter under a standard of beyond a reasonable doubt. As an ethical matter, the government should be ashamed to have even brought the murder charge, even though over-charging is routine. It's an ethical problem hiding in plain sight.
When I peruse some of my friends' Facebook reactions expressing dismay, they seem not to understand that beyond a reasonable doubt is a standard that precludes finding guilt when there is a plausible explanation that is consistent with the defendant's innocence. In this case, there was very strong evidence supporting the defendant's innocence, so much so that Zimmerman's lawyer expressed a desire for something approximating the Scottish verdict for the jury: guilty, not guilty, and innocent. That confidence was one that he exhibited early on in the process since Zimmerman decided to press for a trial instead of go to a pre-trial self-defense immunity hearing. He wanted to show his innocence. I'm not sure he could show his moral innocence, but for reasons Jack explained the other day, there was nothing provably unlawful about Zimmerman's following Martin, and there's also no evidence about who was the aggressor, which is a distinct and critical aspect to whether one forfeits one's privilege of self-defense. Being a provacateur is distinct from being an aggressor.
I will note, hastily, and in closing, since I have to go catch my flight, that I fear that if the races had been turned around, we might have a different verdict. Inasmuch as that is true, it is an indictment of sociological realities, not a prescription for what should have been done in this case, under the BRD standards afforded to defendants in our criminal justice system. And for what it's worth, I am optimistic that the public will get this, and that predictions of violence or mob justice will prove to be mistaken.
P.S. I will be moderating comments on this thread carefully. Signed, specific, and substantive comments will usually get a response.
Tuesday, July 09, 2013
The Poor are Still Losing: Gideon's Empty Promise
This past weekend I spent some time thinking about the future of indigent public defense and what role, if any, defense lawyers can play in a system beset by racism and classism. First, I read a provocative essay by Paul Butler, "Poor People Lose: Gideon and the Critique of Rights," in the Yale Law Journal's most recent issue, which contains over twenty articles (all available for free download) by law professors and lawyers reflecting on the 50th anniversary of Gideon v. Wainwright.
Professor Butler makes a strong case for the idea that the focus on rights discourse -- the right to counsel at trial, the right to counsel during plea negotiations, the right to Miranda, the right to a jury trial -- ultimately has little impact on a criminal justice [or juvenile justice] system in which poor people nearly always lose. Why do they lose? Because, as Butler explains, protecting defendants' rights is much different than protecting defendants: "What poor people, and black people, need from criminal justice is to be stopped less, arrested less, prosecuted less, incarcerated less." Providing a lawyer -- especially one who is underpaid, overworked, and under-resourced -- does little to change this calculus. As Butler reminds us, the reason that being poor and African American substantially increases the risk of incarceration has more to do with class and race than with the quality -- or lack thereof -- of the indigent defense system.
So, what do we do about it? That, Butler acknowledges, is the hard part. We certainly don't discourage law students from becoming public defenders, because on an individual level, they do help clients [more on this below]. But what is the alternative? Michelle Alexander has urged defendants to take their cases to trial, putting a stop to the vicious plea mill that has subsumed the adversarial process, and to "crash the justice system." Butler has called for "racially based" jury nullification for nonviolent, victimless crimes as well as decriminalizing or legalizing drugs. I'm not convinced that these specific strategies in and of themselves will catalyze a social reform movement large enough to alter the system, but it's clear that nothing should be discounted, for the situation is dire.
With all of this percolating in my mind, I happened to watch the new HBO documentary, "Gideon's Army," which follows three public defenders working in under-resourced counties in Georgia and Mississippi. The film was engrossing and offered (what seemed to me, at least) a realistic portrayal of the challenging and gruelling nature of indigent defense. The three young PDs -- two women and one man, all African-American -- were dedicated and driven, although one understandably walks away from the job when she can't pay her bills to support herself and her son. The film concludes (perhaps for marketing purposes) with a happy ending -- an acquittal after a jury trial, which made me -- a total sap -- cry as the PD was hugged by her (young black male) client and his (low-income) single mother.
But as the credits rolled, I didn't feel much like recruiting baby PDs for this "army" or donating to the organization that inspired the documentary -- the Southern Public Defender Training Center (SPDTC) (now called "Gideon's Promise"), led by the dynamic (white male) Jon Rapping. Instead, I wanted to crash the system. The film's explicit message is that there's a "battle" going on in which dedicated and hard-working PDs can win if only enough of them sign up, endure slave wages, and get down with representing one poor person of color (and the occasional white poor person) after another, as our prisons only continue to expand.
The director, Dawn Porter, draws clumsy parallels to the civil rights movement (and even offers a cameo by John Lewis who appears at a fund-raising event for SPDTC), but there's no acknowledgement that the lawyers who represented civil rights workers in the south had clear goals and objectives, while these PDs are fighting for...what exactly? By acting as cogs in a broken machine, one that even Rapping admits is "hell," they are not bringing about systemic change. Yes, they may make a difference to an individual defendant, but there is no talk of broader-based action -- such as a demand for a living wage, reasonable caseloads, or enough funding to perform basic investigative tasks and forensic testing. Let's be real -- how could there be this sort of activism? These lawyers are barely hanging on, working 15-16 hours/day and scrambling for change to buy enough gas to get them to the courthouse.
Don't get me wrong -- I was a proud public defender for ten years, and as a clinical professor, I still represent the same client population; I am heartened whenever one of my students enters this field. But I would never suggest that the work of the average PD, like the ones featured in the film and in most offices across the country, actually transforms the populations they serve or that the appointment of a lawyer -- the RIGHT to a lawyer -- helps dismantle the incarceral state.
I would also be reluctant to recruit young lawyers for this work using the pitch championed in the film, because as romantic as it sounds, it will inevitably attract people for all the wrong reasons, such as one of the women who balks when a client feels no remorse for his heinous crime. She thought she was on the "right" side of the war, only to find that the lines are not so easily drawn. As Travis Williams, my favorite PD in the film said, "I don't see how you can do this job for any period of time and not love it. Either this is your cause or this ain't." He's the guy who has tattooed the names of his clients who have been convicted after trial on HIS OWN back. He will be a career PD, and his clients will be truly blessed to have him on their side. He also recognizes, however, that the work is thankless, that the conditions are unlikely ever to change, and that it's more of a marathon than a war. A marathon with no end in sight.
Your thoughts? Please share in the comments.
Monday, July 08, 2013
"Stalking", George Zimmerman and Curry v. State
Many commentators, some in response to my earlier post, have suggested that GZ was "stalking" Trayvon Martin. GZ admittedly was "observing," "monitoring" or "watching" Mr. Martin, at least for some period of time, but the implication of "stalking" is that, assuming GZ was following Mr. Martin as closely as he possibly could, he was doing something inappropriate or illegal. This seems incorrect, because GZ's conduct was not unlawful.
First, although I am not an expert in torts, it seems in the absence of stalking statutes, a person is free to follow any other in public in a non-threatening manner. I invite correction if I am wrong. (And, of course, in a state which allows the carrying of weapons by license, the lawful exercise of that privilege simpliciter cannot be a threat). I get this from Prosser and Keeton, as quoted by the Alabama Court of Civil Appeals: “[o]n the public street, or in any other public place, the plaintiff has no legal right to be alone; and it is no invasion of his privacy to do no more than follow him about and watch him there." Similarly, the U.S. Supreme Court explained in United States v. Knotts, "When [defendant] travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property." That is, it was not that the police could follow the defendant because they were the police and had special powers, it was that the police could follow the defendant because any private person could follow anyone in public. Although Knotts involved a car, the principle is equally applicable to pedestrians.
This common-law tradition, of course, has been changed by stalking statutes; Florida's is Fla. Stat. Ann. 748.048. It requires that the misconduct (which clearly can be conduct which would be legal in the absence of the stalking statute) be without a "legitimate purpose." The key Florida case on "legitimate purpose" is Curry v. State, which reversed a conviction for aggravated stalking. Not surprisingly, it involves a dispute among neighbors. The Court found that "A report to an arm of government, concerning a matter within the purview of the agency's responsibilities, serves a "legitimate purpose" . . . , regardless of the subjective motivation of the reporter." The Court also found that reporting to the government was constitutionally protected as a petition for redress of grievances. Gathering information for use in a possible report to police seems covered by Curry and similar cases.
By a quirk of Florida law, arrests by on-duty police outside the officer's jurisdiction are treated as citizen's arrests. Such officers, accordingly to the Florida Supreme Court, have no "greater power of arrest outside their jurisdiction than private citizens." Yet, they may follow suspects, and, if probable cause develops, make arrests. (However, under the "color of office" rule, if they use their police authority to investigate, i.e., show their shields to get statements or consent to search, the out-of-jurisdiction action is invalid). It is clear, then, that citizens are not categorically prohibited from investigating crimes and making arrests in public. Therefore, I see no per se illegality in GZ following Trayvon Martin even if he intended to investigate and, if warranted, make an arrest. This puts in a different light the statement by the dispatcher to GZ that "we don't need you" to follow Mr. Martin.
The wisdom of every legal doctrine affecting the case is debatable, including the permissibility of citizen's arrests and neighborhood watches, the liberal granting of concealed weapons permits, limited stalking statutes, and broad self defense doctrines. Particularly in a former Confederate state, taken together, these doctrines have the whiff of the slave patrol. But GZ's conduct must be evaluated given the law on the books at the time, which, in my view, quite favors him.
Thursday, July 04, 2013
When Police Question Young Suspects
Two years ago, Justice Sotomayor delivered the opinion of the Court in JDB v. North Carolina, an important decision and one to which I had a personal connection. When I had been practicing in the juvenile delinquency courts of North Carolina for only a year, UNC's Juvenile Justice Clinic was appointed to represent a young man who was the co-defendant to JDB, a 13-year-old special education student at one of our local middle schools (the one my older daughter currently attends). Weeks earlier, the Chapel Hill juvenile police investigator at the time, DiCostanzo, had been stymied from questioning JDB at his home about a string of neighborhood burglaries (JDB's grandmother, who was his legal guardian, had not allowed it), so DiCostanzo went to Smith Middle School to talk to the boy there. DiCostanzo had the school resource officer (a uniformed cop on detail to the school) take JDB out of his social studies class and bring him to a small conference room where they were joined by the assistant principal (the school disciplinarian) and another adult who was an administrative intern.
Long story short -- the adults closed the door and began questioning JDB who initially denied any involvement in the crimes, but after they told him to "do the right thing" and threatened to place him in juvenile detention, he confessed. Because DiCostanzo et al. didn't consider the questioning to be custodial, JDB's grandmother was never contacted (which was required for custodial interrogation of juveniles under the NC Juvenile Code), and he wasn't given Miranda or told he could leave, make a phone call, etc. At the motion to suppress hearing in the local juvenile court, I sat and watched JDB's public defender expertly cross-examine DiCostanzo, clearly showing that as a result of JDB's age/youth/student status, no one in his position would have felt free to leave the conference room -- or, for that matter, challenge two police officers and school administrators. Although I was angry when the suppression motion was denied, I was hardly surprised, as I had become long resigned to the fact that common sense rarely prevailed in juvenile court.
About six years later, I paid the fee to join the USSC bar, drove up to D.C., and sat several rows away from the justices when the case was argued. At one point, Justice Breyer asked with no small degree of sarcasm, "And what is the terrible thing, the awful thing that has to happen if the officer isn't sure whether this individual thinks he's in custody or not? Suppose the officer just isn't sure. What terrible thing happens?" He paused and then said, "The terrible thing that happens is you have to give them a Miranda warning." To which Justice Scalia responded, ""We don't want Miranda warnings to be given where they are unnecessary because they are only necessary to prevent coercion, and where there's no coercion, we want confessions, don't we?" To emphasize his point, he added, "It's a good thing to have the bad guys confess that they're bad guys, right?" Breyer, of course, recognized the irony -- that giving Miranda has a negligible effect on most interrogations, particularly if the suspect is a 13-year-old boy questioned at school. In contrast, Scalia didn't want criminal suspects -- no matter their age -- to have any perceived advantage.
I was heartened when the decision came down several months later and the liberal justices -- joined by Justice Kennedy -- reversed the denial of JDB's suppression motion (which the NC appellate courts had affirmed) and remanded the case to address whether interrogation was custodial taking into account the boy's age at the time. In relying on Roper v. Simmons (ending the juvenile death penalty) and Graham v. Florida (ending JLWOP for non-homicide offenses), the Court held that "officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult." As can happen with even Supreme Court decisions, no action in the North Carolina courts has yet to be taken, as JDB is no longer a juvenile and perhaps feels no great incentive to pursue the matter.
I've been thinking of all of this of late, as I learned from Josh Tepfer and Steve Drizin of Northwestern Law's Center on Wrongful Convictions of Youth (CWCY) about several recent instances of interrogations of teenagers in Tennessee and elsewhere in which confessions were given in homicide cases only after the police made extreme threats, including promises that the suspect would face the death penalty if he didn't confess (a legal impossibility given Roper) or that the suspect would be raped in prison on a daily basis if he didn't confess. The cases have been resolved in a variety of ways; in two matters the motions to suppress were supported by strong amicus briefs from CWCY, which led to favorable plea deals for the juveniles; in the case of 17-year-old Codey Miller, the confession was suppressed by the judge who called the interrogation practices of the police "mind-boggling"; in the case of 14-year-old Jonathan Ray, the confession was also suppressed, though the case has not yet been resolved; in the case of 19-year-old Carlos Campbell, the motion to suppress the confession was denied and it's unclear whether there will be an appeal; and in a recent decision by the Kentucky Supreme Court, the conviction of 17-year-old Garrett Dye was reversed and a new trial ordered after holding that his confession was involuntary.
Because the fact patterns in these cases are clearly different than JDB, as the parties agreed that police questioning was custodial and Miranda warnings were given, the legal issues raised are also somewhat different (Was the Miranda waiver involuntary? Was the right to counsel invoked? Was the confession coered?), but the critical questions remain the same: should the rules that apply to the questioning of juveniles, and the standards by which courts review interrogations of kids, be different than those for adult suspects? If so, what should be different? The principle reform has been mandatory recording (either audio or video) of the interrogations of suspects, whether juveniles or adults, something that has been successfully adopted in 17 states and Washington, D.C., either by legislatures or courts. Mandating that juveniles be given counsel prior to custodial interrogation is a proposal that has yet to gain much traction (likely for pragmatic as well as philosophical reasons), with states preferring to provide "parental notification" before police can question youth, which rarely helps as most parents are as unfamiliar with how best to handle these situations as their children. Given that most police officers receive fewer than 10 hours of juvenile interview and interrogation training over their entire careers, another proposal is that law enforcement should be regularly trained consistent with the best practices established by the International Association of Chiefs of Police and be directed not to use aggressive or deceptive strategies when questioning minors.
Your thoughts? Please share in the comments.
Wednesday, July 03, 2013
According to this CBS story, Dan Balz's book on the 2012 election reports that Mitt Romney was seriously considering selecting New Jersey Governor Chris Christie as the Republican vice-presidential nominee, but was dissuaded by an SEC regulation governing campaign contributions:
I found this striking and was curious whether the reg was constitutional, but I can't actually figure out what rule the CBS story is referring to. I did find this long discussion of the SEC pay-to-play reg, but I can't actually figure out what the story is referring to. Readers -- any idea? Is there a rule that stops banks from contributing to home-state candidates? You were very resourceful about Guthrie.
In the end, it was money, not chemistry, that kept Christie off the GOP ticket. A "pay to play" regulation from the Securities and Exchange Commission prevented the country's largest banks from donating to candidates and elected officials from states in which big banks were located. If Christie, the governor of New Jersey, were added to the ticket, Romney's campaign would have been barred from accepting any campaign contributions from Wall Street - a critical source of cash for the GOP candidate, formerly a private equity manager.
Cohen on what's next for SSMApropos of my query last week about where the marriage equality movement goes next after Windsor and Hollingsworth, David Cohen at Faculty Lounge suggests "everyone just sue the bastards"--flood the courts with lawsuits challenging marriage bans (and other anti-gay laws), highlighting the already-strong arguments in favor of marriage equality, now helped by the language of Windsor. Unlike when Massachusetts legalized SSM in 2004 and the ACLU urged caution, Cohen argues, the legal and political terrain has shifted, such that victories are more likely in the lower courts (putting SCOTUS to one side). Interesting take.
Monday, July 01, 2013
Apolitical sports leagues? No
Beginning October 1, people will be able to shop for the expanded insurance coverage made possible by ACA. As part of its publicity effort, the Department of Health and Human Services is seeking to partner with the NFL and other sports leagues in publicity efforts. This does not sit well with GOP Sens. Mitch McConnell and John Cornyn, who sent this letter to Commissioner Roger Goodell.
The letter chastises the league for risking its "inclusive and apolitical" brand, expressing surprise that a pro sports league would take "public sides in such a highly polarized public debate." But I would reject the suggestion that the NFL, or any other sports league, is or ever has been apolitical. Putting aside the way leagues regularly engage in politics for their own direct benefit--antitrust, labor law, stadium funding. Leagues and teams regularly get involved in public issues--gay rights, women's rights, racial equality, war and the military. At least some of these are at least as contentious as ACA. In fact, as the letter acknowledges, the Boston Red Sox in 2007 participated in efforts to encourage enrollment in Massachusetts' program (which was the basic model for ACA). The reason for this being different, they argue, is that ACA passed on a party-line vote using "legislative gimmicks" and "ridiculed political favors." Stated differently, ACA passed through the ordinary legislative process, but the process worked to our disadvantage and produced a law we don't like. Thus, the law is illegitimate, so you, as an apolitical entity, should stay out of it.
There also is a hint of the paranoid. They express concern for "the Obama Administration's record of using the threat of policy retaliation to solicit support for its policies or to silence its critics" and helpfully tell the NFL to come to them if they are feeling threatened or coerced so the Senate GOP can protect them from the big, bad President. Of course, in emphasizing how unheard-of and wrong-headed the NFL's involvement would be , the letter could be read as its own threat designed to solicit support for the McConnell/Cornyn side in this debate. It actually is the classic bully trick--you better come to us for protection from that other guy who is threatening you.
Sunday, June 30, 2013
SSM ongoing in CaliforniaSo reports Lyle Denniston at SCOTUSBlog. On Friday, the Ninth Circuit lifted the stay on the district court injunction and California began performing same-sex marriages across the state (so far, I have heard no reports of recalcitrant county officials). Prop 8's proponents petitioned Justice Kennedy (the circuit justice for the Ninth Circuit) to reinstate the stay, arguing that because SCOTUS' mandate had not yet issued (that does not happen for 25 days, pursuant to SCOTUS rules), the Ninth Circuit still lacked jurisdiction over the case and thus could not lift the stay.
Lyle notes that Kennedy did not explain his decision. It might have been that the petitioners, lacking standing to appeal, also lacked standing to challenge what the Ninth Circuit did with the stay. It might have been that the Ninth Circuit retained jurisdiction over its own stay of the district court order, even if it no longer had jurisdiction to rule on the merits of the case.
Adoptive Couple v. Baby Girl (2 of 4): 3/256th Cherokee?
This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. This post address race, tribal enrollment, and Indian authenticity.
Baby Veronica’s mother is “predominantly Hispanic” and her father has only a small fraction of Cherokee ancestry. Legally, his fraction of ancestry doesn’t matter; only his tribal enrollment does. But the very first sentence of Justice Alito’s opinion describes Veronica as “1.2% (3/256) Cherokee,” underscoring the anxiety about race that has pervaded the case. The father has only a distant Cherokee ancestor - isn’t he more white than Indian? Sure, he is enrolled in the tribe, but how can “one drop of blood . . . trigger all these extraordinary rights?” (asked Justice Roberts during the argument). Why should the child’s ties to her Cherokee heritage be privileged over her Hispanic heritage, especially if she is fractionally more Hispanic than Cherokee? It is these racial anxieties, rather than the law itself, that seem to drive the majority opinion as well as the media coverage of the case. As Will Baude points out, neither the majority nor the concurrence has much in the way of express discussion of equal protection concerns. But the briefs, the oral arguments, and the references to fractional ancestry that peppered the majority opinion suggest these kinds of questions lurked just below the surface.
The short answer is that Indianness, especially in the form of formal enrollment in a tribe, is a political classification, not just a designation of race, heritage, or culture. I have written elsewhere about how to make sense of the “racial v. political” dichotomy that that seems to trouble many people about Indian law. In my view, it makes no sense to claim that Indianness has nothing at all to do with race and racism, but it is equally a mistake to suggest that the specter of race renders it less of a political status in the sense that the term is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people. (Bethany Berger and Sarah Krakoff have also written about this interplay.) Indian tribes have a different relationship with the federal government than any other group, a relationship based largely on treaties and recognition of nationhood. That is why Veronica’s Cherokee-ness matters in a way that her Hispanic-ness does not.
The term “Indian” has various definitions in different areas of federal law. In general, though, legal Indianness requires indigenous ancestry (descent from a group indigenous to what is now the United States) and some kind of political recognition. There are certainly areas of Indian law that spur debates about what qualifies as political recognition, but this is not one of them. As noted above, the definition of Indian here is clear, and it is clearly tied to tribal enrollment. Of all the possible indicia of Indianness, formal enrollment in a tribe is the most clearly “political” because it refers to national citizenship. Yet even enrollment-based distinctions raise concerns because most tribal enrollment rules require a demonstration of ancestry. Ancestry in tribal enrollment rules serves a different function than simply being “a proxy for race,” though. It is a nod to the kinship relations that form the basis of most tribes, and it is an indicator of indigeneity. As Justice Sotomayor points out in her dissent, the majority’s frequent references to the tribe’s reliance on descent and its “second-guess[ing]” of the tribe’s membership requirements are ironic in light of the fact that federal regulations require that all members demonstrate “descent from a historical Indian tribe” as a condition for tribal acknowledgement.
But the anxiety runs even deeper. The Cherokee Nation is one of a handful of tribes that require only lineal descendancy to enroll. Many tribes require a certain degree of ancestry (called “blood quantum”), and some impose additional requirements (the most recent study of enrollment rules is here). Most often, tribes are criticized for this use of blood quantum in their enrollment criteria. The criticism is both external (by requiring that members possess a certain percentage of “Indian blood,” tribes are injecting race into their citizenship criteria) and internal (minimum blood quantum requirements are partly the product of federal influence and reflect a campaign to ensure that “real” Indians will eventually disappear). (For more about the history of blood quantum, I suggest starting with Paul Spruhan and J. Kehaulani Kauanui.) The Cherokee Nation does not require members to have any specific blood quantum; members must instead demonstrate descent from a person on the historical tribal rolls. Instead of being cheered for removing race from its enrollment criteria, however, it is chided for relying on nothing but race - and only an “insignificant” fraction at that. (Similar concerns surrounded the use of ancestry in Rice v. Cayetano. Ironically, Justice Roberts argued that case for the state - the party relying on ancestry - yet he may be the current Justice most concerned with the use of ancestry in Indian law.)
Tribes can’t win here. If they require a specific percentage of Indian blood, they are relying on race. If they require only descent, their members aren’t really Indians (see Alex Pearl’s recent post). If they do not require descent, they are no longer indigenous. At the oral argument, Justice Roberts was also concerned about the possibility that ICWA could apply based on only enrollment, but not ancestry. He asked about a “hypothetical tribe” with a “zero percent blood quantum” that is “open for, you know, people who want to apply, who think culturally they’re a Cherokee or - and number of fundamentally accepted conversions.” And if you are paying close attention, you know that the Cherokee Nation is the same tribe being sued for removing freedmen from its rolls because - according to the tribe - they lack indigenous ancestry. (Of course, it is far more complicated, but this isn’t a post about the Cherokee freedmen.) I chose the term “racial anxieties” carefully because that is exactly what plagues Indian law. The problem is that the Justices (and the public) don’t know how to think about race and Indian law. Is it too racial? Is it not racial at all? Is it not racial enough? And what is race anyway?
That the law itself remains intact is no small victory. The brief for the guardian ad litem in this case advocated a reinterpretation of ICWA that would demand some additional “non-biological” demonstration of Indianness (presumably besides tribal enrollment), arguing that the law is unconstitutional otherwise (see here for a discussion of how this argument has surfaced in other ICWA cases). The attorney for the GAL, Paul Clement, recently attacked the constitutionality of Indian legislation in another area. Given Clement’s track record before the Court, tribes are rightly concerned that these lingering racial anxieties could damage tribal rights even more than they did here.
Posted by Addie Rolnick on June 30, 2013 at 03:17 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (4) | TrackBack
Saturday, June 29, 2013
Adoptive Couple v. Baby Girl (1 of 4): Why the Court’s ICWA Ruling Matters
I’ve been a quiet guest this month, but this post (part 1 in a 4-part series) has been germinating a long time. Indian country issues get very little press (academic or otherwise), but when the occasional case is more widely followed, it can surface misunderstandings about Indian law and history and deep-seated anxieties about how Indian rights mesh with other areas of law. During my last guest stint here, I addressed this phenomenon in posts about the widely-debated Santa Clara Pueblo v. Martinez case and the Supreme Court’s 2012 holding in Ramah Navajo Chapter v. Salazar. I’m particularly concerned with how these crossover cases make their way into law school classes and legal scholarship not typically focused on Indian law, and I hope professors who incorporate these cases will find some of my observations and links useful.
Adoptive Couple v. Baby Girl, a major Indian law decision that has been nearly buried among the responses to Shelby, Fisher and Windsor, is one of those cases. It is a case about the language, history, and intent of the Indian Child Welfare Act, but the statutory issues have been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series, co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the posts are a product of our collective views. Here, we address the holding and its immediate significance. In later posts, we will address the lurking issues.
What Exactly Is the Indian Child Welfare Act?
The Indian Child Welfare Act is a federal law that sets particular procedural rules that must be followed before parental rights can be terminated over a child who qualifies as “Indian.” The law was passed in 1978 to counter generations of forced removal of Indian children from their homes and communities, first via federally-sponsored assimilationist boarding schools and later via state child welfare systems, which removed Indian children from their homes at alarmingly high rates and placed them with white families, which were perceived to be better than their home communities. (This history is described in detail in an Indian law professor amicus brief filed by Stuart Banner and Angela Riley at UCLA.) The law does many things, but most important in this case are the procedures that state courts must follow if an Indian child (defined as as one who is “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”) comes before them in a foster care, parental termination, or adoption proceeding. These include notifying the parent and the child’s tribe, giving the tribe the opportunity to intervene or to assume jurisdiction over the case, setting a high evidentiary and procedural bar before parental rights can be terminated, and, in the event of removal, placing the child with a relative, a family from the same tribe, or another Indian family if at all possible.
In the only other ICWA case it has ever heard, the Court recognized that the law is primarily concerned with connecting tribes and children by strengthening tribal governments’ control over the placement of their children and by recognizing that the “best interests” of Indian children include maintenance of their tribal ties. (On the issue of what is “best” for adoptee children, read the amicus brief filed by pre-ICWA adoptees. The common complaint that the child’s best interests are “overridden” by the tribe or by federal law misses this aspect of ICWA; it recognizes that protecting the relationship between tribe and child is in line with, not antithetical to, the best interests analysis). That case, Mississippi Band of Choctaw Indians v. Holyfield, also involved a voluntary adoption in which the birth parents intentionally left the reservation in order to have their children adopted through state court to a white couple. The Court held that the statute required that the tribe have jurisdiction over the case, effectively refusing to allow individual Indian parents to circumvent the larger purposes of the law. Justice Scalia was in the majority in Holyfield, and he later described the decision to “turn that child over to the tribal council” as “very hard” but clearly mandated by the law. Justice Scalia’s characterization makes it sound as if the children were cruelly ripped from their adoptive home and returned to an opaque pit of corruption. What most people don’t know is that the Mississippi Choctaw tribe, after accepting jurisdiction and considering the best interests of the Holyfield children, eventually placed them with the adoptive family the parents had chosen, but required the parents to maintain contact with the children’s extended family and tribal culture. One lesson of that case, then, is that following federal law and respecting tribal jurisdiction doesn’t mean children won’t be properly placed in loving homes.
Baby Veronica, as she is known, is the child of a non-Indian mother and a Cherokee father, Dusten Brown. (Indian Country Today has a nice 4-part series on the family involved in the case. The first article is here and the last article, with links to the earlier ones, is here.) Her mother placed her up for adoption through a private agency and chose the Capiobiancos, a white couple with professional careers and advanced degrees, who have been referred to in most of the media coverage as “ideal” parents. As the court noted in the first footnote of its opinion, there was never any question that Veronica was an “Indian child” involved in a “child custody proceeding” - exactly the situation that would normally trigger ICWA’s requirements. The mother knew Brown was Cherokee, but she and/or her attorneys made several misstatements along the way (requesting information about enrollment using the wrong name and date of birth for Brown, listing the baby’s ethnicity as Hispanic on interstate transfer forms), and so the tribe was not involved. But the petitioners argued that because Brown failed to pay child support and did not have custody of Veronica, he had essentially abandoned her and therefore was no longer a “parent” under the law. With no Indian parent, they argued, there was no basis for applying ICWA.
This, of course, is precisely why ICWA matters: under state law in South Carolina, a father who has not actively parented (i.e., paid support, been actively involved in child’s life) has no right to object to an adoption, but ICWA superseded state laws to institute a uniform, more stringent standard in cases involving Indian children: parental rights cannot be terminated and Indian families cannot be broken up unless active efforts have been made to keep them intact and the parent has been deemed beyond a reasonable doubt to be unfit. (Voluntary relinquishment under ICWA requires a written order entered before a judge, which did not happen here.) Both the state family court and the supreme court denied the adoption, finding that ICWA’s standards for involuntary termination of parental rights (stricter than state law) had not been met. The question before the Court was whether ICWA should apply at all.
How the Court Narrowed ICWA
It is important to say here that the Court did not invalidate any part of the statute. It simply held that a non-custodial father cannot invoke ICWA’s protections. (Justice Thomas’ concurrence, on the other hand, inexplicably asserts that Congress has no power to supersede state law where Indian children are involved.) The majority (Alito, Roberts, Kennedy, Thomas and Breyer, whose concurrence is more limited) read the law as concerned primarily with involuntary termination proceedings in which state social workers come into Indian families and remove children. A non-custodial Indian father invoking the statute to counter the voluntary adoption initiated by a non-Indian mother seemed to the majority to be outside of the law’s scope. In the majority’s view, this case was not about “the breakup of the Indian family” because the only Indian parent was not actively parenting the child at the time. In other words, there was no Indian family to break up. The Court remanded the case to state court after holding that ICWA does not apply, but it did not order that Veronica be returned to the Capiobiancos. The state court must now decide, applying state law, where to place her.
(The majority also held that ICWA’s placement preferences did not apply because no other prospective adoptive parent was put forward by the tribe. This is disingenuous; no other placement was suggested because Brown’s extended family and the tribe supported Brown’s efforts to retain custody. The dissenting opinion points out - correctly, in my view - that the Court cannot rule on the placement question preference question before it has arisen, leaving room for the possibility that a relative could seek custody on remand. Justice Breyer, in his concurrence, suggested that Brown could be considered as a prospective adoptive placement if his rights were terminated.)
The blow struck by this case is significant. As the Court recognized in Holyfield, ICWA is about preserving the relationship between an Indian child and her tribe. The tribe has an interest in its children that may be separate from the interests of the Indian parents. The child’s interests are likewise served by maintaining a connection to her tribe and her extended family, even if she no longer has a relationship with her parents. In this case, the Cherokee Nation supported Dusten Brown’s effort to regain custody, but tribal intervention does not always (or even usually) mean returning the child to her Indian parent. By focusing so much on the father’s actions in the case, the Court has allowed tribal rights to be subsumed by an individual parent’s lack of responsibility. This is precisely the opposite of its holding in Holyfield, and it significantly undermines the spirit of the law.
For what it’s worth, I am a non-Indian mother of Indian children. Were we to consider giving our children up for adoption, or if they removed from our care, the ICWA’s procedures would come into play, possibly limiting our preferences about where we would want the children placed. I don’t consider ICWA’s recognition of a relationship between child and tribe to be an unfair burden or a barrier to pursuing my children’s best interests. As the Court recognized in Holyfield, but completely failed to acknowledge in Adoptive Couple, the two are closely linked.
Posted by Addie Rolnick on June 29, 2013 at 03:12 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2) | TrackBack
Thursday, June 27, 2013
Where does the marriage equality movement go next?
Supporters of marriage equality are rightly ecstatic over yesterday's events and it might have been the best they could have hoped from this Court in a single term. But when the ecstacy recedes, the movement is faced with a fundamental question--what do we do now, since the one thing SCOTUS did not do was end the discussion once and for all.
As Marty Lederman notes, on August 2, there will be marriage equality in D.C. and 13 states--California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota (where a new law takes effect August 1), New Hampshire, New York, Rhode Island, Vermont, and Washington. If the theory is that SCOTUS wants a critical mass of states to adopt marriage equality before (a la Loving) it pulls the outliers along via the Fourteenth Amendment, more states probably are needed. So what states should the movement target? Presumably, if pursuing popular means (legislation or ballot proposals), you look to "blue" states. But where? Illinois, is an obvious choice (Democratic governor, large Democratic majorities in both houses, Obama's home state), but a bill to give same-sex couples the right to marry was recently held back because it did not have the votes. New Jersey is also blue, although it has a Republican governor, as do Pennsylvania and Wisconsin. Plus, those states, like Michigan, have a bit too much of a conservative streak. Oregon? Colorado?And should the focus be on the legislatures and voters or on the courts? As the Slate piece cited above notes, the popular momentum from last November seems to have slowed a bit (perhaps because there are no states that are obvious candidates). And maybe yesterday's events signal that federal litigation is now a better strategy than it was a few years ago, helped by the district court opinion in Perry and strong language in Windsor? If so, in what states and in what circuits? Do you target Illinois or Wisconsin and hope you get Posner on the panel? Do you target Pennsylvania or New Jersey hoping, where the Third Circuit has more Democratic appointees and something of a right-friendly reputation? A judge in the District of Nevada upheld that state's voter-approved (twice) prohibition; when the plaintiffs appealed, the ballot proponents then tried to get SCOTUS to hear the case directly. Yesterday, SCOTUS declined. So that case goes back to the Ninth Circuit, where I imagine (hope?) the Ninth Circuit to invalidate the prohibition. Does SCOTUS immediately take that case for next term (as Justice Scalia predicted in his Windsor dissent)?
Wednesday, June 26, 2013
Respectfully, up yours!
I noticed that Scalia's dissent in Windsor was not respectfully offered (color me shocked!) but Alito's was. Kennedy charmingly referred to his dissent in Perry twice as being respectfully offered, no doubt out of some awareness of the fragility of coalitions in that case.
So, for those of you Kremlin-watchers curious about the mores of SCOTUS denizens, here's a question: do you think the number of dissents offered "respectfully" has increased under CJ Roberts? Declined? Is Scalia the principal Justice who offers dissents disrespectfully or non-respectfully? Anyone want to run the numbers? Ross Davies, this is a Green Bag piece in the making!
It would also be interesting to see if there's any change in the pattern of dissents being respectfully tendered before and after Bush v. Gore. One thing that seems impressionistically clear to me: despite the sound and fury following cases like Bush v. Gore or even the ACA cases from last year, my sense is that the Court proceeds to do its business w/o much damage let alone influence from earlier cases overhanging. Life moves on. As it should. Unless it doesn't--I'm open to seeing the data :-)
Monday, June 24, 2013
A Zombie in the Wild
I have long thought fairly highly of the Atlantic, both as a magazine and as a blog. So the following article by Richard Gunderman1 is disheartening to read. It is a perfect example of the very zombie I am trying so hard to kill: the "Standard Story" that unquestioningly accepts the generally-incorrect conventional explanations without (for obvious reasons) providing data to back them up. So I thought I'd spend this post attacking it point by point, just so it is clear how deeply flawed the conventional story is, and to highlight the dubious arguments that are so often made in favor of it.Gunderman starts with the standard it-isn't-crime explanation:
Why have U.S. incarceration rates skyrocketed? The answer is not rising crime rates. In fact, crime rates have actually dropped by more than a quarter over the past 40 years.
His statement that crime has dropped by 25% over 40 years is wrong in several ways. As the graph below (taken from here) shows, crime has only been dropped since 1991, which is 24 years ago. Between 1974 (that's 40 years ago) and 2011 (the last year for which the FBI has data), violent crime has risen by 23%, and property crime has falled by just over 2%. The net change: + 0.1% (since there is about 10 times as much property crime as violent crime). So he is just factually wrong.2
But looking at the graph reveals another, deeper problem with his analysis. Given that crime soared from 1960 to 1991 (with a little pause for violent crime in the early 1980s), why present just a single percent-change number? If we want to understand why prison populations have risen sharply since the mid-1970s, we can't just ignore the unprecedented rise in crime that accompanied the first 20 years of prison growth.
Furthermore, if we want to understand why crime remains such a politically powerful issue, just note that despite the crime drop since 1991, violent crime is still 100% higher than it was in 1960, which were the formative years of the politically-powerful Baby Boom cohort. And much of the drop since 1991 has come through self-protective measures that don't necessarily make us actually feel safer (security systems, not going out at night, etc.). So we are still a relatively violent country by historical standards for a large bloc of voters.
Gunderman's conceptually and factually misleading number misses all of this, and thus understates the direct and indirect roles that crime can play. Sadly, this is not an unusual problem in the literature.
Next he moves on to sentencing:
New sentencing guidelines have been a key factor. They have reduced judges' discretion in determining who goes to jail and increased the amount of time convicts sentenced to jail spend there. A notable example is the so-called "three-strikes" law, which mandates sentences ranging from 25 years to life for many repeat offenders.
First, let's start with the strike laws. While a majority of states have them, according to Frank Zimring about 90% of all strike sentences are handed down in California. So states have them, but don't use them.
Moreover, guidelines are used in a minority of states, and some data suggests that guidelines are negatively correlated with prison growth: states adopted them to rein in prison populations. Now if we are talking about the federal guidelines, maybe Gunderman is right. But the story is much different in the remaining 89% of the system.
Even more important, it simply isn't the case that longer sentences has caused prison growth. This is the biggest zombie idea of them all, and I will be dedicating several posts to it down the line. But it simply is not the case. I'll give Gunderman a pass on this claim, though. It is almost accepted as gospel inside and outside the academy. I've had people tell me that my results must be wrong because of the conclusions I reach, a complete inversion of the (social) scientific process, and one that must make Thomas Bayes and Pierre-Simon Laplace spin in their graves.
Up next, an oldie-but-goodie:
Perhaps the single greatest contributor has been the so-called "war on drugs," which has precipitated a 12-fold increase in the number of incarcerated drug offenders. About 1.5 million Americans are arrested each year for drug offenses, one-third of whom end up in prison. Many are repeat offenders caught with small quantities of relatively innocuous drugs, such as marijuana, a type of criminal activity often referred to as "victimless."
Do I even need to say anything more at this point? Maybe just two small things. First, the ratio of drug inmates to drug arrests is about 23%, not 33% (see here and here). And 1.5M arrests is a large number, but keep in mind we arrested almost 12.5M people in 2011. It would be surprising if just 12% of all arrests drove everything. The back-of-the-envelope calculations don't seem to work.
Gunderman then turns his attention to crack/powder sentencing in particular:
Some sentencing laws seem little less than perverse. For example, in the 1980s, crack cocaine received a great deal of public attention. In response, the U.S. Congress passed legislation imposing a 100 to 1 sentencing ratio for possession of crack cocaine, as compared to its powdered form. ... From a medical point of view, this makes little sense.
First--again!--we should focus on state sentencing, not federal. And apparently most states do not punish crack and powder differently, and those that do use lower ratios.
Moreover, the medical argument is tricky. What matters is not the chemical form but the method of delivery: oral ingestion is more addictive than smoking or IV use, and smoking and IV use are more addictive than inhaling. Since crack is generally smoked and powder frequently inhaled, the form did make a difference. Moreover, there were real social costs associated with the introduction of crack, though these were almost certainly linked more to the destabilizing effects of the crack markets, not the drug itself, since crack use appears to remain at about 70% of its peak use level.
Now perhaps targeting form rather than method of distribution, or targeting the drug rather than the social ills directly, were bad policy decisions. But the issue is far more complex than the glib "little less than perverse" implies.
Next, Gunderman turns to the costs of prisons, arguing:
The costs of incarceration are high. For example, the state of California spends approximately $9,000 per year for each public school student it educates but over $50,000 per year for each inmate it keeps incarcerated. The proportion of the state budget devoted to imprisonment has been increasing at a rate much faster than that for education. Moreover, despite California's huge prison expenditures, its prisons recently held 140,000 prisoners in facilities designed for only 80,000.
First, all fifty states are different, and when it comes to penal policy California is a distinct--albeit large--outlier. So it does not necessarily make sense to use California as a stand-in for the US. As my own work has shown, Census data on expenditures suggest that prison spending as a share of the budget has been flat since crime started dropping in the 1990s. States have become much richer during that time, and they have chosen to spend on everything. There may be some crowding out going on, but it is not immediately clear.
Moreover, at a national level, spending on schools greatly exceeds that on prisons. Perhaps on a per-student and per-prisoner basis the prisons get more, although the implications of that are not immediately clear--there are a host of assumptions about the correlation between spending and outcomes that underlie Gunderman's point. These assumptions may be true, but they need to be supported (or at least acknowledged).
Finally, note that the $50,000/prisoner number--which is one of the highest levels in the country--is just an average cost measure, not a marginal. Cutting one prisoner will not reduce costs by $50,000. After all, releasing one prisoner does not reduce heating, staffing, maintenance, or other costs at all. The best estimate of marginal costs that I have seen, using data from Maryland, suggests that marginal costs are half of average costs.
Then, he turns to the other side of the prison-crime problem:
Does prison do any good? This is a surprisingly difficult question to answer.
He's absolutely right: given the endogenous nature of prison and crime, disentangling any sort of causal story is incredibly hard. But he uses this difficulty to basically just throw up his hands and admit that there may be some incapacitative and retributive benefits, but that's about it. Perhaps. But while complicated, there is a lot of data out there, and the more-methodologically sound studies do find that prison growth reduced crime. We may be well past a point of declining--maybe even negative--marginal returns, and our focus on prison likely distracted us from what would have been a much more efficient focus on police. But again, these are much more nuanced arguments than the usual "prison doesn't stop crime" argument that gets trotted out as part of the Standard Story.
He goes on:
Yet it is difficult to make the case that so-called correctional institutions do much in the way of correcting, reforming, or rehabilitating inmates. The recidivism rate at 3 years post-release is about two-thirds, of which over half end up back in prison. The most important factor in preventing recidivism is not the amount of time people serve in prison, but the age at which they are set free. The older inmates are at the time of their release, the less likely they are to return.
First, an "amen." The age-profile of offending is a hugely-overlooked issue in our criminal justice system. Offending does not occur randomly over the life-course. Those who offend repeatedly start in their early teens with property crime, graduate into violent crime in their late teens and early 20s, and start to ease out of offending in their late 20s and 30s. Of course, there is a lot of variation in these trends, and sadly we cannot seem to predict who will follow what trajectory in advance.
But our policies clearly ignore this fundamental fact. Offenders generally get their harshest recidivist-enhanced sentences just as they are most likely to start aging out of criminal behavior. One could argue that such sanctions are the necessary evils of maintaining a credible threat, but the evidence about the deterrent effect of severe sanctions is weak. On the other hand, throwing the book at the young first-timer is hard because of the false-positive risk. Gunderman deserves credit for drawing our attention to this.
On the other hand, the 2/3 number is a really tricky one to understand. First, if 1/3 of all cancer patients receiving a chemotherapy treatment survived three years, would we call the therapy a "failure"? It depends on the baserate survival risk without the treatment--and we have no idea what that would be for the recidivists. If 1/3 would not have recidivated no matter what happened, then prison does not reform well. But if all would have recidivated but for incarceration, then maybe 1/3 is a remarkable success, given the challenges of changing human behavior later in life.
Instead, we should look to prison programs directly. And here there is a huge literature which suggestst that a lot actually works, although context, design, etc., etc. all matter significantly. Again, a much more complicated picture than the Standard Story is equipped to handle.
His next point is that incarceration hurts the families of inmates, and this is a good point to make; I don't really have anything to criticize. In our debates over prisoners-vs-victims, it is important to remember that many family members of inmates--particularly their children--are themselves now victimized by the process.
His turn to community harms, though, again reflects the unnuanced perspective of the Standard Story:
Incarceration also takes a big toll on communities. Its costs, both direct and indirect, are high, and it draws resources away from other equally or more worthy needs, such as education and healthcare. Some communities, particularly in inner cities, are devastated by incarceration.
True, but since crime is geographically concentrated, these are also the communities devastated by crime. As James Forman has pointed out, much of the demand for tougher sentencing laws during the 1980s came from inner-city black communities, which have also borne the brunt of their enforcement. Crime policy is not just some disinterested state imposing its will on politically powerless inner-city communities.
That's enough (and the end of the Atlantic article). Sadly, this is what I am used to reading: this is the Standard Story in a nutshell. And it is wrong in so many ways. It undersells crime, it oversells harsh sentences, it focuses too much on drugs and not enough on the complicated politics of a disaggregated criminal justice system. It looks at the harms to inmates and families--perhaps because its focus on drug crimes leads it to think of average offender as someone who committe a "victimless" crime--but ignore the victims of crimes. And, in particular, ignores how the victims of crimes are generally the neighbors of the victimizers, making the community story a tough one to describe empirically.
And as long as we accept the Standard Story, it is unlikely we will implement reforms that really target the heart of the problem.
1Gunderman is a pediatric radiologist who writes primarily about bioethics. So I have no idea why he feels qualified to write about prison growth, and why the Atlantic decided to publish his writings. His primary hook seems to be that mass incarceration has serious public health ramifications, which is indubitably true. But that does not automatically make a doctor qualified to write about such a complicated social process (nor an epidemiologist, for that matter). All I can think of is this xkcd cartoon.
2Violent crime has fallen by 37%, and property crime by 28%, since 1992. But that is just 24 years, not 40.
Friday, June 21, 2013
Comey, Bipartisanship and the Obama Administration
From what little I know and recall of the guy, James Comey seems like a pretty solid selection for the FBI. But in picking yet another Republican from the W ancien regime, and particularly in the area of national security/homeland protection, I have to wonder what's motivating the Obamians.
As one friend on FB mentioned, it seems staggering that there would be such bipartisanship efforts made after the scorched earth policies toward Dems by R's in the pre-2008 era. And as another friend mentioned, picking Comey means not advancing the careers of a Dem who could be elevated in future Dem administrations for other high and higher slots. Obama's also been picking a number of Comey-like judges (e.g., my old colleague from OMM Sri Sri...probably a Dem but someone who was an SOC clerk and well, is he really an Obama guy?). Sure they're highly qualified, able, and demonstrate integrity. But there will be interstitial discretion on policy issues that maybe don't reflect the Dems' point of view. Still, maybe that's what Obama's game is: perhaps he really is principled in this respect and isn't seeking to lard his administration with lackeys. But I wonder if he just thinks he can't get folks with more lefty credentials through Congress, or that there aren't folks he likes/trusts with those lefty creds given his love of the lethal presidency. In any event, I would be more likely to simply applaud choices like Comey and Sri, and maybe some of the other cabinet or sub-cabinet picks (i'm still kind of pissy about Hagel), but I have great trouble recalling any Dems being promoted under the W regime to such high profile positions. Does Obama think his "gifts" to folks across the Aisle will change the Beltway culture of the Republicans, or does he just not care because he thinks these are the best guys (and, um, yes, there are lots of guys here)? Inquiring minds want to know...
Thursday, June 13, 2013
Selling Made-To-Order Embryos and the Split on the Right
The New England Journal of Medicine will soon have in print an essay by Eli Adashi and I on the sale of "made-to-order" embryos. The article "Made-to-Order Embryos for Sale — A Brave New World?" has been online for a while already and concerns a recent development in the reproductive technology industry. As we put it:
The proliferation of commercial gamete sources (e.g., sperm and oocyte banks) has opened the door to a made-to-order embryo industry in which embryos are generated with a commercial transaction in mind. This prospect of a for-profit embryo bank is no longer theoretical. Indeed, as recently as November 2012, the Los Angeles Times reported on one such clinic that “sharply cuts costs by creating a single batch of embryos from one oocyte donor and one sperm donor, then divvying it up among several patients.” The report went on to state that “the clinic, not the customer, controls the embryos, typically making babies for three or four patients while paying just once for the donors and the laboratory work.”
Our essay reviews the legal regime that governs it (short answer, in most states it is not illegal or even regulated) and then considers the ethical premissibility of this practice. We examine objections to the practice premised on crowding out of embryo donors, the exploitation or undue inducement of donors, the corruption of reproduction (this is sometimes called "commodification" thought I think that term represents a broader set of arguments, so I use "corruption" in my work to capture the value-denigrating objection specifically in its intrinsic or consequentialist form), and the furthering of eugenic objectives. Throughout the short essay our argumentative strategy is to press on whether this new practice is all that different from existing practices, epsecially the sale of sperm and egg which individuals can themselves put together to create embryos for reproductive use or to destroy in the generation of embryonic stem cells as well as the practice known as 'embryo adoption' or 'embryo donation.' The thing we think is newest here is actually issues related to lack of guidance on the parentage and ownership of embryos in the event of clinic bankruptcy, changes in minds by the donors, or dispositional conflicts (though John Robertson has suggested the law may be more certain than we posit).
The article is short, limited to 1500 words, so obviously we couldn't tackle everyhting. What has been most interesting to me has been a split of opinion on the article in the righter wings of the blogosphere.
The American Enterprise Institute published commentary on our article "'Walking the Ethical Edge: Made to Order Embryos Address Genuine Needs'" beginning with a view that we own our own bodies and pressing on justifications for prohibiting voluntary transactions, concludes our article "offer[s] a thoughtful guidance through the ethical thicket of embryo donation," and that "arping about or in some cases ignoring the failures of the current IVF system, seems the preferred choice for those opposed to even debating the benefits and challenges of a for-profit embryo market. Unless we as a society are determined to reserve the right of reproduction by infertile couples to the wealthy, we should welcome options."
By contrast, the National Review Online has an article "Made To Order Commodities Market" with a more negative reaction. The author claims we've engaged in "sophistry [that] has always been the anything goes in biotech crowd’s primary tool"and concluding ominously "Make no mistake: This means human cloning is coming closer, as selling embryos for use in IVF is just the front for selling cloned embryos for use in research." The author seems to agree with us for the most part that the distinction between existing practices and this new one is thin[fn1] , but would have us reverse those other practices. That is fair enough. We employ an argument from symmetry here and it can be resolved either way, and we don't actually take a position as to whether these technologies should all be permitted or all prohibited just that they are hard to distinguish (that said, anyone who knows my own work can suspect where I would come out, I can't speak for my coauthor on this!)
Both commentaries are interesting and worth reading. What is more interesting to me is the way in which debates on reproductive technology usage, much more so than abortion, really does cleave the right into two. The libertarian wing wants a strong justification for limiting reproductive choices like other choices about what to do with our bodies and likens the debate to that on organ sale. The more socially conservative wing sees this the beginning of slouching towards gommorah. On abortion this fissure is easier to solve, since the claim of fetal personhood allows more libertarian oriented thinkers to adopt Harm Principle type justifications of preventing harm to fetuses as persons . As I noted in blogging about personhood on my last visit, embryonic personhood claims may be harder to sustain, and thus the consensus more easily shattered. I am part of a project looking at the intersection of abortion and reproductive technology advocacy and scholarship, so this room for schism is something I may write more about soon.
[fn1]: The author does suggests that sperm and egg sale are different because there is no "nascent human being." I think he means "person" not "human being" and I've blogged about why that distinction might matters in my last visit and also why one might support certain theories of when personhood begins over others. In any event the theory of personhood the author implictly champions would seem not to distinguish the existing possibility of preembryo destruction, indefinite freezing, stem cell derivation, etc.
Monday, June 10, 2013
Judges Gone Wild?
I couldn't help but think that this judge's behavior, earlier today, is an example of imperious official action. The judge was all set to accept the defendant's plea bargain, but because the offender, footballer Chad Johnson, gave a playful slap on the backside to his lawyer during the hearing, in response to a question asked by the judge regarding whether he was satisfied with his counsel, she rejected the bargain, which called for no jail time, and gave him 30 days in jail. You can read more about it here and see the footage from the court. (H/t: atl). Stephen A. Smith's apt albeit volcanic reaction on ESPN emphasizes the socio-legal realities of why Johnson was an idiot here. It's true that Johnson is a criminal wife-beating a**hole, and, in this context, acted imprudently, but is the bum-slap really the kind of thing that warrants jail when it was not otherwise about to happen? It doesn't warrant the judge's behavior in my mind, and instead strikes me as the kind of official tyranny and hot-headed hubris that rule of law constraints are meant to prevent. The quickness of the decision also suggests the need for courts to impose a mandatory cooling-off period between the time they reach a decision re: liability and the time they impose a sentence.
Cf. some of the problems of judicial discretion more generally. And of course, this seems right in the same vein as Judge Marvin Frankel's famous story in Criminal Sentences: Law Without Order about the judge who, over cocktails, acknowledged elevating a defendant's sentence by a year simply because the offender had been disrespectful to the judge that day.
The Law and Economics of "The Purge"
"The Purge" is the number one movie in America -- by a healthy margin! People are pretty surprised. Perhaps it's because it stars Jesse and Cersei. Or perhaps it's because of its concept. As Box Office Mojo says: "The fact that The Purge wound up so much higher can be attributed to the movie's unique, intriguing premise—what if all crime was legal for 12 hours once a year?" You can check out the trailer here.
I haven't seen the movie, but it seems to focus more on one particular home invasion than it does on the broader implications of its premise. (Cf. "Panic Room.") But I want to focus on that frankly unbelievable premise. First, what does it mean that there is no enforcement of the law during the twelve hours of the purge? Do norms still exist? The father in the trailer indicates that he has "no need" to engage in the atavistic free-for-all, because he has no violent urges to purge. But is society endorsing those urges, or simply acknowledging they exist? I'd be curious to know how the movie treats it. (Of course, it looks like our heroes have to get violent to save themselves in the end, which is how most of these movies have their cake and eat it, too.)
My second question -- and the basis for the somewhat silly title for my post -- is whether the film's premise has any tether in criminal law theory. Basically, the idea is that the purge -- or, The Purge -- allows the nation's criminals to beat up on each other for a night and kill each other off. The lawlessness is justified by its overall effects -- crime rates go down, unemployment goes down, the other 364.5 days are better. I don't know if a purer faceoff between consquentialist and deonotological theories could be devised. Let's assume that a lawless 12-hour period would reduce overall crime, and that the primary victims would be the criminals themselves. Would that justify such a period?
Of course (and again, I haven't seen the movie) I think part of the movie's philosophical bent is that the purge leaves the wealthy elites better off, since they have their fortresses to retreat to, but society as a whole is not better off, particularly the poor. And from there you could argue that the purge is not so unlike the everyday reality of Rio de Janeiro or even -- name your U.S. city of choice. So the faceoff is really a false faceoff -- which is the attack that a lot of law & economics critics have leveled against that form of utilitarianism. Again, I'd be interested to hear whether the movie explores these themes, but even if it doesn't -- there's always The Purge 2. Perhaps our blogfather could be a script consultant.
Monday, June 03, 2013
Three Reflections on the MOOC Debate
Maybe it is because I teach in close proximity to edx, but I have been having more and more conversations with other academics and with non-academics about Massive Open Online Courses, or MOOCs. I actually don't yet have strong views on the subject, which may make me part of a minority, but I have noticed a couple of pathologies in the way people discuss these MOOCs and the threat/promise they have. Here are three:
(1) A failure to disentangle distributive impact from merit of MOOCs:
Let's face it, a big piece of the MOOC debate is distributional. Most of us who entered academia did so because we liked it in its current incarnation. In a world where MOOCs took over in any substantial part, many of our jobs would cease to exist and/or would change dramatically. As status quo entitlement holders we can all certainly complain about that fact, as could our students. That may be a worthwhile debate to have, but it is quite different from the debate about whether MOOCs are a good idea independent of this retroactivity problem.
One way I often try to engage people on this subject is to ask them to imagine that we were at Time Zero, on a blank slate, and creating the first universities for our day and age. We would then ask: what elements of MOOCdom would be optimal with its attendant effects on cost. Only by doing so can one potentially trade off any negative distributional effects to current entitlement holders against potential benefits (or costs) of the system on its own merits, and evaluate whether a CHANGE is worthwhile. That's not rocket science as an analytical separation, and yet many of the people I talk with on this issue are unable to separate out the issues.
(2) A failure to recognize that much of what is at stake is the unbundling of the university and the cross-subsidization in the status quo arrangement.
The modern research university, in part, cross-subsidizes research through the payment for teaching by students. While students partially internalize the value of that research (both in terms of being taught by those doing the leading edge stuff and by the prestige it brings to the institution) there is no doubt that much of the value of that research is externalized, generating a kind of public good. MOOCs may threaten that by having fees pay for teaching much more directly without the research -- I say *might* because it is hypothetically possible, though unlikely in the current climate to be sure that MOOCs might free up more time for research by allowing professors to spend less time in the classroom by recording their lectures only once rather than constantly performing it (more on that in a moment), though in the current climate that is highly unlikely. The move to adjuncts, heavier teaching loads, more heavy TA usage, etc are much more direct moves in this direction. This kind of move has analogues in many other professions -- for example using nurses and physicians' assistants instead of doctors where possible, and as it was there it is aimed primarily at cost savings.
The only point I want to make is that the optimal amount of cross-subsidization of research through teaching -- again putting to one side the distributional question of what happens to status quo entitlements and instead starting at day zero -- is not altogether obvious. To the extent what is threatening about MOOCs is that they may reduce that cross-subsidization and thus lead to the generation of less research, then THAT is the debate to have.
(3) What is so great about the traditional live lecture?
I don't teach by lecture. In fact, portions of my civil procedure course that I would lecture through if forced to do so are ones I usually instead put on handouts for students to read on their own, since I think it is a better use of both of our times. Still, I am prepared to accept that in many instances a lecture may have pedagogical value, especially if it is delivered in an inspiring sort of way. What I don't understand, and have yet to get a good defense of, is why the value of those lectures requires it to be live?
Now as someone who loves the theater I can appreciate the difference between seeing Henry V live versus those wonderful 1970s-80s BBC Shakespeare versions. However, whatever "performance" value live lectures have of that sort strike me as a fairly light benefit if costs could be dramatically cut. Again, it may be that many academics who are most against MOOCs engage in just this kind of live lecture, and the possibility of recording it rather than doing it every year would have significant threats to their livelihood. Fair enough. But that is different from mounting the defense against MOOCs on the pedagogical advantage of such live lecturing.
If that defense is out there, I would like to see it. If not, then it seems to me that whether a MOOC is a step down pedagogically, and whether it is such a huge step to justify the increased cost, will depend on how much non-lecture content professors currently bring in. I use the Socratic method or teach classes that are very discussion oriented, things much harder to reproduce (or so I think!) in MOOC land and that have (or so I think, I've not run a randomized trial to find out!) pedagogical value above and beyond a straight lecture. So my defense of resisting MOOCs (again at time zero) would have to be that the pedagogical value added over a recorded lecture is great enough to justify the extra expense. Could I mount such a defense successfully? I'd need to know more about the cost vs. learning trade-offs, but I think this would be the right way to think about it.
* * *
None of this is to say yay to MOOCs. I think there are significant potential problems with the MOOC model, most interestingly the risk of homogenizing education. I have an Orwellian picture of every Civil Procedure class doing the same MOOC segment at exactly the same time around the U.S. year in and year out. But I think it is important to focus on these and other arguments clearly and this is my own (modest) attempt to sort argumentative wheat from chaff.
I am sure many will disagree and look forward to hearing your thoughts.
- I. Glenn Cohen
Tuesday, May 21, 2013
Sperm Donation, Anonymity, and Compensation: An Empirical Legal Study
In the United States, most sperm donations* are anonymous. By contrast, many developed nations require sperm donors to be identified, typically requiring new sperm (and egg) donors to put identifying information into a registry that is made available to a donor-conceived child once they reach the age of 18. Recently, advocates have pressed U.S. states to adopt these registries as well, and state legislatures have indicated openness to the idea.
In a series of prior papers I have explained why I believe the arguments offered by advocates of these registries fail. Nevertheless, I like to think of myself as somewhat open-minded, so in another set of projects I have undertaken to empirically test what might happen if the U.S. adopted such a system. In particular, I wanted to look at the intersection of anonymity and compensation, something that cannot be done in many of these other countries where compensation for sperm and egg donors is prohibited.
Today I posted online (downloadable here) the first published paper from this project,Can You Buy Sperm Donor Identification? An Experiment, co-authored with Travis Coan, and forthcoming in December 2013 in Vol. 10, Issue 4, of the Journal of Empirical Legal Studies.
This study relies on a self-selected convenience sample to experimentally examine the economic implications of adopting a mandatory sperm donor identification regime in the U.S. Our results support the hypothesis that subjects in the treatment (non-anonymity) condition need to be paid significantly more, on average, to donate their sperm. When restricting our attention to only those subjects that would ever actually consider donating sperm, we find that individuals in the control condition are willing-to-accept an average of $$43 to donate, while individuals in the treatment group are willing-to-accept an aver-age of $74. These estimates suggest that it would cost roughly $31 per sperm donation, at least in our sample, to require donors to be identified. This price differential roughly corresponds to that of a major U.S. sperm bank that operates both an anonymous and identify release programs in terms of what they pay donors.
We are currently running a companion study on actual U.S. sperm donors and hope soon to expand our research to egg donors, so comments and ideas are very welcome online or offline.
* I will follow the common parlance of using the term "donation" here, while recognizing that the fact that compensation is offered in most cases gives a good reason to think the term is a misnomer.
- I. Glenn Cohen
Wednesday, May 08, 2013
“Why is a big gift from the federal government a matter of coercion? ... It’s just a boatload of federal money for you to take and spend on poor people’s health care” or the mysterious coercion theory in the ACA case
At oral argument in NFIB v. Sebelius, the Affordable Care Act (ACA) case, Justice Kagan asked Paul Clement:
“Why is a big gift from the federal government a matter of coercion? It’s just a boatload of federal money for you to take and spend on poor people’s health care. It doesn’t sound coercive to me, I have to tell you.”
The exchange is all the more curious because, despite
her scepticism, Kagan signed on to the Court’s holding that the Medicaid
expansion in the ACA was coercive, as did all but two of the Justices (Ginsburg and Sotomayor). What happened? I try to answer this question, suggesting the court misunderstood what makes an offer coercive, in this article published as a part of a symposium on philosophical analysis of the decision by the peer-reviewed journal Ethical Perspectives.
First a little bit of background since some readers may not be as familiar with the Medicaid expansion part of the ACA and Sebelius: The ACA purported to expand the scope of Medicaid and increase the number of individuals the States must cover, most importantly by requiring States to provide Medicaid coverage to adults with incomes up to 133 percent of the federal poverty level. At the time the ACA was passed, most States covered adults with children only if their income was much lower, and did not cover childless adults. Under the ACA reforms, the federal government would have increased federal funding to cover the States’ costs for several years in the future, with States picking up only a small part of the tab. However, a State that did not comply with the new ACA coverage requirements could lose not only the federal funding for the expansion, but all of its Medicaid funding.
In Sebelius, for the first time in its history, the Court found such unconstitutional ‘compulsion’ in the deal offered to States in order to expand Medicaid under the ACA. In finding the Medicaid expansion unconstitutional, the Court contrasted the ACA case with the facts of the Dole case, wherein Congress “had threatened to withhold five percent of a State’s federal highway funds if the State did not raise its drinking age to 21.”In discussing Dole, the Sebelius Court determined that “that the inducement was not impermissibly coercive, because Congress was offering only ‘relatively mild encouragement to the States’,” and the Court noted that it was “less than half of one percent of South Dakota’s budget at the time” such that “[w]hether to accept the drinking age change ‘remain[ed] the prerogative of the States not merely in theory but in fact’.”
By contrast, when evaluating the Medicare expansion under the ACA, the Sebelius Court held that the
financial “inducement” Congress has chosen is much more than “rela- tively mild encouragement” – it is a gun to the head [...] A State that opts out of the Affordable Care Act’s expansion in health care cover- age thus stands to lose not merely “a relatively small percentage” of its existing Medicaid funding, but all of it. Medicaid spending accounts for over 20 percent of the average State’s total budget, with federal funds covering 50 to 83 percent of those costs [...] The threatened loss of over 10 percent of a State’s overall budget, in contrast [to Dole], is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion.
I argue that this analysis is fundamentally misguided, and (if I may say so) I have some fun doing it! As I summarize the argument structure: If the new terms offered by the Medicaid expansion were not coercive, the old terms were not coercive, and the change in terms was not coercive, I find it hard to understand how seven Supreme Court Justices could have concluded that coercion was afoot; the only plausible explanation is that these seven Justices in Sebelius fundamentally misunderstood coercion. This misunderstanding becomes only more manifest when we ask exactly ‘who’ has been coerced, and see the way in which personifying the States as answer obfuscates rather than clarifies matters.
The paper is out, but I will be doing a book chapter adapting it so comments still very much approeciated.
- I. Glenn Cohen
Monday, May 06, 2013
The truth about past relationships
NBA player Jason Collins famously came out as gay last week, the first active player in a major U.S. team sport to do so. The reaction was the expected mixed bag. One mini firestorm erupted over comments by media critic Howard Kurtz, who chastised Collins for not owning up to his having been engaged to a woman. Unfortunately for Kurtz, Collins actually mentions his engagement (along with the fact that he dated women) in the eighth paragraph of the Sports Illustrated cover story. Kurtz apologized--initially in a typically half-assed fashion, then more unequivocally--and was grilled about it on CNN, stating "I deserve the criticism, I accept it and I am determined to learn from this episode." He also was terminated from The Daily Beast, although he insists this was in the works for a while and the timing was a coincidence.
Criticisms of Kurtz, and his apology, all focus on the factual error of his criticism. But this suggests that had Kurtz been correct and Collins had not mentioned the engagement, Kurtz's criticism would have been justified. Is that right? hat bothered me about Kurtz's initial story (but that I did not see discussed) was the stupidity of his premise: Collins was not being completely honest or forthcoming in excluding the detail of his engagement from the SI story. When a public-figure comes out, does the story really have to be "complete" and does that completeness necessarily include details about past heterosexual sexual activity? And how deep does this run--what is it, exactly, that Kurtz believes the public is entitled to know? Is it only the engagement about which Collins was obligated to "come clean"? Is it all dating? Is it the number of heterosexual sexual partners? Collins is 34 years old and only recently (within the past several years) came to understand his sexuality. It stands to reason that in the decade-plus between puberty and his coming out, he dated and had relationships, perhaps even long-term and serious relationships, with women. But why is that fact remotely relevant to the story of his coming out? Does it make him less gay? Does it make his story less sympathetic that he behaved as many closeted (or unrealizing) GLBT people do and as people have been forced to do by society, particularly in the world of team sports?
Tuesday, April 23, 2013
Some Must Reads from the Mich LR Books Issue
I spent a decent bit of time with the recent books issue of the Michigan Law Review. Whenever I read review essays of books, I watch for the degree to which the author performs the script identified and lampooned by David Schleicher. The latest issue of the MLR has no shortage of review essays in which the upshot by the reviewer is: this book would be better and its problems would be cured if it were more interested in the things that I also am interested in and had cited and addressed my work more.
Still, I'm delighted to say that in the area of criminal justice, there are 2 pieces that are absolutely vital for every prof in that area to read.
The first is Steve Schulhofer's polite but fearless and fierce critique of Bill Stuntz's book, The Collapse of American Criminal Justice. As some of you know, this book, and more generally, its late author, have received a cascade of encomia from distinguished and usually shrewd reviewers. The circle of love around Stuntz is understandable and obviously warranted. He was a gem of a human being and a superb colleague. I had Stuntz as a teacher when he arrived at Harvard, and ever since, was grateful for his generosity of spirit and example as a teacher and scholar. But as Nietzsche said, one repays a teacher badly by always remaining a pupil.
And so, on the merits of the work, I have long been a skeptic, though as someone who doesn't specialize in criminal procedure as such, I had refrained from investing the necessary time to ground the skepticism and make it intellectually tidy. Thanks to Steve Schulhofer's piece, however, that task is now substantially underway. With some luck it will do the work of bringing a generation of criminal procedure scholars back on course. For notwithstanding the many deservedly kind things that could be said about Stuntz, my fear is that his seductive writing and bold and innovative claims took too many people off course from truth and justice. Schulhofer's review, which I'm sure was enormously difficult to write, will provide adequate grounds for others to revisit and soberly re-assess the significance of the Stuntzian corpus of scholarship.
Elsewhere in the issue is John Pfaff's review of Ernest Drucker's book on the epidemiology of mass incarceration. John is guesting here at Prawfs over the next while and so I won't steal his thunder and say too much of his review essay other than it artfully and carefully outlines the empirical basis to wholly undermine much of the conventional wisdom found among lots of criminal law academics and some of the prominent journalists who have been clobbered by their Zombie memes.
In short, if you're at all interested in being better informed about the American criminal justice system and the pathologies of its scholarship, read Steve and John's pieces.
Finally, I can't forbear from also highlighting our own Paul Horwitz's contribution to that MLR issue. Paul's critique of Tamanaha and Olson's books on legal education is typically Horwitzian: fair-minded, pointed, and subtle (and thus, Canadian?). Enjoy!
Thursday, April 18, 2013
The Senate and democracy: April 17, 2013 edition
The following is the breakdown for yesterday's vote on the Manchin-Toomey amendment proposing background checks for gun purchases (S. Vote 97):
States where both senators voted "Yes": 21
- Total population for those states: 156 million
States where senators split: 12
- Total population for those states: 76 million
States where both senators voted "No": 17
- Total population for those states: 80 million
Monday, April 15, 2013
NYU Criminal Law and the Modern Court Conference
My friends at the Center for the Adminstration of Criminal Law at NYU are having a very cool gathering this coming Friday.
Information is below and after the jump.
On Friday, April 19, 2013, the Center will host its 5th annual conference. This year's conference, entitled "Criminal Law and the Modern Court," will include panels that will survey novel judicial innovations, explore the future of drug courts and drug policy, and consider where the U.S. Supreme Court is headed on important criminal law issues. The Keynote speaker will be Professor of Practice at Harvard Law, and former U.S. District Court Judge for the District of Massachusetts, Nancy Gertner. The full program is after the jump. You can register here.
The Center on the Administration of Criminal Law Presents
CRIMINAL LAW & THE MODERN COURT
Friday, April 19, 2013 – Vanderbilt Hall, Greenberg Lounge
9:00 – 9:30 CLE Registration & Coffee
9:30 – 9:45 Welcoming Remarks
9:45 – 11:15 FIRST PANEL: A SURVEY OF CRIMINAL COURT INNOVATIONS. The panel
will discuss innovative models and tools being tested in criminal courts around the country,
including: mental health courts; a new and more effective approach to probation violations
(the HOPE model); and new “algorithm” tools being applied to sentencing and bail
Moderator: Nancy Hoppock, Executive Director of the CACL. Panelists: Judge Matthew J.
D’Emic, Kings Co. Supreme Court; Mark Kleiman, Professor of Public Policy, UCLA
School of Public Affairs; Prof. Allegra McLeod, Associate Professor of Law, Georgetown
Law School; Anne Milgram, Vice President of Criminal Justice at the Laura and John Arnold
Foundation; Michael A. Wolff, Dean of St. Louis University School of Law.
11:15 – 11:30 Break
11:30 – 12:45 SECOND PANEL: THE FUTURE OF DRUG COURTS AND DRUG POLICY.
The panel will look at the progression of drug courts and drug policy in New York City and
Moderator: Prof. Josh Bowers, Associate Professor of Law, University of Virginia School of
Law. Panelists: Bridget G. Brennan, New York City’s Special Narcotics Prosecutor;
Chauncey Parker, Executive Assistant District Attorney of the Manhattan District Attorney’s
Office; Gabriel Sayegh, New York Director of the Drug Policy Alliance; and Prof. Frank
Zimring, Professor of Law, Berkeley Law School.
12:45 – 2:00 Lunch Break
2:00 – 2:30 Afternoon Keynote Address by Prof. Nancy Gertner, former U.S. District Court Judge and
Professor of Practice at Harvard Law School.
2:30 – 3:45 THIRD PANEL: TODAY’S SUPREME COURT AND CRIMINAL LAW. The panel
will look at where the Supreme Court has recently been and where it is headed on criminal
Moderator: Prof. Rachel E. Barkow, Professor of Law, NYU School of Law. Panelists:
Miguel A. Estrada, Esq. of Gibson, Dunn & Crutcher; Prof. Jeffrey L. Fisher, Professor of
Law, Stanford Law School; Erin E. Murphy, Professor of Law, NYU School of Law; Prof.
Nancy Morawetz, Professor of Clinical Law, NYU School of Law; and Sonja Ralston, an
Attorney with the Department of Justice’s Appellate Section.
Monday, March 11, 2013
"The Right to Counsel: Badly Battered at 50" (at a great moment for hope and change)The title of this post is drawn in part from the headline of this notable commentary by Lincoln Caplan, which appeared in yesterday's New York Times. Here are excerpts (with a final key point stressed by me below):
A half-century ago, the Supreme Court ruled that anyone too poor to hire a lawyer must be provided one free in any criminal case involving a felony charge. The holding in Gideon v. Wainwright enlarged the Constitution’s safeguards of liberty and equality, finding the right to counsel “fundamental.” The goal was “fair trials before impartial tribunals in which every defendant stands equal before the law.”
This principle has been expanded to cover other circumstances as well: misdemeanor cases where the defendant could be jailed, a defendant’s first appeal from a conviction and proceedings against a juvenile for delinquency.
While the constitutional commitment is generally met in federal courts, it is a different story in state courts, which handle about 95 percent of America’s criminal cases. This matters because, by well-informed estimates, at least 80 percent of state criminal defendants cannot afford to pay for lawyers and have to depend on court-appointed counsel.
Even the best-run state programs lack enough money to provide competent lawyers for all indigent defendants who need them. Florida set up public defender offices when Gideon was decided, and the Miami office was a standout. But as demand has outpaced financing, caseloads for Miami defenders have grown to 500 felonies a year, though the American Bar Association guidelines say caseloads should not exceed 150 felonies.
Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.
Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm. In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers. In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes....
The powerlessness of poor defendants is becoming even more evident under harsh sentencing schemes created in the past few decades. They give prosecutors, who have huge discretion, a strong threat to use, and have led to almost 94 percent of all state criminal cases being settled in plea bargains — often because of weak defense lawyers who fail to push back....
After 50 years, the promise of Gideon v. Wainwright is mocked more often than fulfilled. In a forthcoming issue of the Yale Law Journal, Stephen Bright, president of the Southern Center for Human Rights in Georgia, and Sia Sanneh, a lawyer with the Equal Justice Initiative in Alabama, recommend [in an article available here] that all states have statewide public defender systems that train and supervise their lawyers, limit their workloads and have specialized teams in, for example, death-penalty cases.
There is no shortage of lawyers to do this work. What stands in the way is an undemocratic, deep-seated lack of political will.
I have stressed the penultimate sentence in this commentary because readers with any connection to law schools and on-going debates over legal-education reform know well the modern concerns and problems caused by the graduation of so many lawyers with large debt loads while there are, apparently, not enough viable jobs in the legal marketplace to employ all the debt-saddled new lawyers. This commentary provides a ready reminder that there are ample legal needs going unaddressed and unresolved even when there are ample new lawyers looking for jobs and struggling to deal with their education debt.
Leaders involved with legal eduction reform and involved with right-to-counsel reform need to get together ASAP to try to fix two big problems with one solution. Problematically, if the private marketplace could readily engineer a solution to the problems of inadequate counsel for indigent defendants, these matters would not even be a modern concern. But, because of market failings and limitations, these problems need a government solution; the federal government would seem to be the right source for a solution given that the federal government has been giving out the guaranteed student loans that helped produce a glut of debt-saddled new lawyers.
In another setting a few years ago, I talked up here the notion of a "Lawyer Peace Corps" or "Lawyering for America" to do good while helping new law grads to better. The 50th Anniversary of the Gideon decision would seem to be an ideal moment to get such programming off the ground.
Cross-posted at Sentencing Law & Policy (where I do most of my blogging).
Saturday, February 02, 2013
The nature of online speech
At CoOp, Danielle Citron and Mary Anne Franks have numerous posts about the problem of revenge-porn sites. Keeping with that theme of misogyny on the internet, here are posts by Ann Friedman at New York Magazine and Amanda Marcotte at Slate offering advice on how to deal with "the creeps, the weirdoes, the bug-eyed nutters, and the sleazeballs in fedoras" who show up in on-line comments sections. Marcotte in particular makes what I think is a nice point: These days everyone owns a computer, which means that the creepy guy on the subway or the paranoid guy in the bank line also have access to comments sections. But, she argues, if this guy is just annoying in the former contexts, he should not be legitimately powerful in the latter context.
I am not a woman and I write on a blog read by a relatively small, niche audience of thoughtful and intelligent people; so I will not try to be overly sanguine about the trash (and purveyors of trash) who go after female opinion writers on-line. But I would try to build something on Marcotte's point. There is not necessarily more vitriol or more hateful, misogynistic speech out there than twenty or thirty years ago, nor are there necessarily more people who hold such beliefs. But there are infinitely more forums in which they can express those views, pretty much at will and without any external filter. That obviously is one thing the internet has wrought. But the internet also has wrought infinitely more forums (this blog included) for thoughtful, intelligent commentary about a host of things by a lot of different people.
The question, of course, is whether the benefits of the latter are worth the costs of the former.
Wednesday, January 30, 2013
Does Not Translate?: How to Present Your Work to Real People
Recently I've agreed to give talks on social media law issues to "real" people. For example, one of the breakfast talks I've been asked to give is aimed at "judges, city and county commissioners, business leaders and UF administrators and deans." Later, I'm giving a panel presentation on the topic to prominent women alumni of UF. My dilemma is that I want to strike just the right tone and present information at just the right level for these audiences. But I'm agonizing over some basic questions. Can I assume that every educated person has at least an idea of how social media work? What segment of the information that I know about Social Media Law and free speech would be the most interesting to these audiences, and should I just skip a rock over the surface of the most interesting cases and incidents, accompanied by catchy images? How concerned should I be about the offensive potential of talking about the real facts of disturbing cases for a general but educated audience? As a Media Law scholar and teacher, I'm perfectly comfortable talking about the "Fuck the Draft" case or presenting slides related to the heart-wrenching cyberbullying case of Amanda Todd that contain the words "Flash titties, bitch." But can I talk about this at breakfast? If I can, do I need to give a disclaimer first? And for a general audience, do I want to emphasize the disruptive potential of social media speech, or do I have an obligation to balance that segment of the presentation with the postive aspects for free speech? And do any of you agonize over such things every time you speak to a new audience?
Anyway, translation advice is appreciated. I gave our graduation address in December, and I ended up feeling as if I'd hit the right note by orienting the address around a memorable story from history that related to the challenges of law grads today. But the days and even the minutes preceding the speech involved significant agonizing, which you'd think someone whose job involves public speaking on a daily basis wouldn't experience.
Sunday, January 20, 2013
Think they can get it right this time?
No matter what day they're administering the oath.
Friday, January 18, 2013
Vilma lawsuit dismissed
U.S. District Judge Ginger Berrigan yesterday dismissed under FRCP 12(b)(6) the defamation suit filed by Jonathan Vilma, one of the Saints player suspended in "Bountygate,"against Roger Goodell (but not the NFL). The court concluded that Goodell made these statements in his role as commissioner exercising his investigative powers under the CBA, thus the claims were precluded by the anti-suit provision and other portions of the CBA and the Labor Management Relations Act. The court also concluded that Goodell could not have acted with actual malice because his statements came after an investigation, even if it was a procedurally flawed one.
The second of those conclusions is a bit dicey, although the first seems right (based on what little I know about the LMRA). The court was not always faithful in drawing all inferences in favor of the plaintiff and at times seemed to be making factual conclusions based on what she read in the newspaper about Bountygate. There also is some gratuitous "look at me" language that the case "feels as protracted and painful as the Saints season itself" and taking a potshot at Goodell that had he been less heavy-handed, the lawsuit could have been avoided. Lines like that always sounds better coming from Posner or Kozinski.
In any event, the timing of this decision is good for me. I gave my Civ Pro students Vilma as one of their sample pleadings (it lends itself to a great subject matter jurisdiction question) and we just started talking about 12(b)(6).
Wednesday, January 16, 2013
Fixing Pretrial Risk Assessment (in Florida)
For those of you interested in pretrial release, I thought I'd point you to a neat roundtable hosted in part by my colleague Sam Wiseman. Last week, FSU hosted the American Bar Association Roundtable on “Pretrial Risk Assessment and Community Supervision: Tools to Advance Public Safety.” The Roundtable featured panelists discussing a variety of pretrial tools to advance Florida public safety and reduce citizens’ tax burden. The event was co-sponsored by the Florida Sheriffs Association, the Florida Association of Counties, the Florida State University College of Law and the Florida State University Project on Accountable Justice. Video of the event is available here. The focus of the roundtable was on the collection and use of data in the pretrial process, both in individual release decisions and at the system level. Legislators, judges, sheriffs, prosecutors, public defenders, pretrial agency supervisors, commercial bondsmen, GPS monitoring vendors, and court administrators from around the state attended or appeared on panels.
Monday, January 07, 2013
It's Never Too Early To Think About 2016
Even though the presidential election is over and won’t return until 2016, election legislation is a year-round business. And that beleaguered institution, the Electoral College, is the object of recent legislative buzz. Some are shocked—shocked!—that politicians may write facially neutral rules that might improve their own political party’s chances.
The larger scheme to effectively abolish the Electoral College, the National Popular Vote, has slowed of late. It’s a process that fascinates me (and one I’ve written a little about), but it’s not the one I want to focus on here. Instead, I want to examine a smaller, more piecemeal effort.
Under Article II, state legislatures have the power to direct how they appoint presidential electors. Today, most states have adopted a winner-take-all system: the winner of a plurality of that state’s popular vote wins the whole slate of presidential electors. (It’s largely in their rational self-interest: a big chunk of electoral votes awarded to a single candidate makes the state more influential and attracts more attention from the candidates.)
Two states, however, use the “district method.” Thus, in Maine and Nebraska, the presidential candidate who wins each congressional district in the state earns one elector, and the statewide winner earns two electors. In Nebraska in 2008, for example, Senator John McCain won the 1st and 3d districts, Senator Barack Obama won the 2d district, and Mr. McCain won the statewide vote; that yielded four electors for Mr. McCain and one elector for Mr. Obama.
After the 2012 election, a few states are now considering adopting such a method. Legislators in Pennsylvania, Michigan, and Virginia have floated such an idea, as has the governor of Wisconsin and, in slightly more abstract terms, the Secretary of State of Ohio.
But there is a common thread—perhaps just a big coincidence. Each advocate is a Republican in a state with Republican legislative control and a Republican governor—in a state that has preferred the Democratic presidential candidate in the last two presidential elections.
There is, perhaps obviously, a serious advantage to the Republican presidential candidates if these states, previously winner-take-all slates of electors for the Democratic candidates, move to a system where the Republican candidate can win at least a portion of the electors. If enough states do it, pretty soon we’re talking real numbers.
Additionally, more Republicans than Democrats won House districts—Republicans hold a 33-seat advantage—despite the fact that Democratic candidates received more popular votes nationwide. (One slightly upset commentator called them “ridiculous gerrymanders.”)
For three reasons, I’m not that worried.
First, there often are House-President “mismatches.” Nebraska’s Second District in 2008, is one such “mismatch,” where the winner of the congressional seat was a Republican but a winner of the presidential vote was a Democrat. In 2012, Virginia’s Second District is another similar example. Granted, there aren’t many. But the mere fact that a district is gerrymandered to favor a Republican or Democratic member of Congress is no guarantee of the same result in a presidential election. (Moreover, such a change, if enacted, would prompt different behavior from presidential campaigns, which would likely yield more mismatches.)
Second, it’s been proposed before… and it generally has remained just that—a proposal. In 2012, Pennsylvania considered an identical plan, and it didn’t go anywhere. Republicans in California and Democrats in North Carolina considered (and rejected) the district method prior to the 2008 election. Colorado voters considered (and rejected) a plan for proportional allocation of electors in 2004. It seems as if all this has happened before, and will happen again.
Third, call it Rawlsian concern, to borrow a bit from Chad Flanders, that the partisans might not apply a rule today that might backfire on them tomorrow. Take the North Carolina proposal before the 2008 election. Had Democrats in North Carolina had their way, North Carolina’s electors would have been apportioned by congressional district because, so the thinking went, there was little chance that a Democrat would carry the state. Fast forward just a few months, and the Democratic candidate carries the state.
Despite partisan motives, legislatures will be slow to act given the uncertainty of what the next presidential election may hold. And so they are disinclined to make temporary partisan gains for an uncertain political future.
To be the wet blanket on this media fire, I don’t think there’s too much “there” there. But, perhaps you disagree? I’m interested to hear.
Tuesday, January 01, 2013
The Doc Fix Is In
I am grateful for the opportunity to visit as a guest blogger this month. I am, as you might imagine, all about health care finance and reimbursement today.
Roll Call is reporting -- citing anonymous Congressional aides -- that a one year Doc Fix is included in the fiscal cliff resolution package. This, of course, is unconfirmable. But I would be astonished were it not true. Kicking the can down the road on Medicare's sustainable growth rate formula (SGR) is what we are good at. Deciding whether we can ever have a coherent public conversation about Medicare physician reimbursement rates and the systematic undervaluation of primary care services, not so much.
The SGR's origins in the Balanced Budget Act of 1997, as part of an attempt to link Medicare physician reimbursement to the general growth rate of the economy, are almost lost to history.Some of this is because, as early as 2001, the Medicare Payment Advisory Committee (MedPac) was calling for its repeal. This first call for repeal, as with all subsequent ones, has gone unheeded. In 2002, the SGR formula triggered a 4.8% reduction in Medicare reimbursement for physician services. Physicians were displeased. And it is physician displeasure combined with Congressional inability to confront that displeasure that has kept us at an impasse ever since. It is not for nought, though perhaps an overly cynical insight, that the SGR is sometimes described as a Congressional fundraising vehicle. So long as Medicare physician reimbursement hangs in the balance, members of Congress will be in close communication with physician constituents.
Unable to implement, we have deferred SGR implementation through fourteen Doc Fixes since 2002, producing what Peter Suderman has described as the "permanently temporary" decision not to decide what we think about reining in Medicare physician reimbursement. Now you know why I would be astonished by any other news, despite the fact that SGR repeal is rumored to have been included in one of the fiscal cliff negotiating packages.
Why would the long-contemplated SGR repeal have fallen out of the fiscal cliff negotiations? I can only speculate that the fiscal and political complexity of developing an alternative reimbursement restraint played some role. So, here we are: continuously overriding a systemless system. Unable to move forward or backward, like crabs we scuttle continuously sideways.
None of this is news.
Thursday, December 27, 2012
The Majoritarian Senate
Many thanks to Dan Markel for allowing me to make a one-time appearance on this blog. Recently my co-author, Gregory Koger, and I completed a draft of a paper on the filibuster entitled "The Majoritarian Senate," which is now up on SSRN.
In the paper we demostrate that the a majority of senators can reform the filibuster at any time using ordinary Senate procedures. We show that reforming the filibuster does not require a supermajority of senators, the beginning of a new Congress, or any appeals to the Constitution (let alone judicial review). The argument is simple, and one that a lawyer would certainly appreciate. Just as one can change the meaning of the Constitution through interpretation, a majority of senators can change the rules that constitute the modern Senate filibuster by reinterpreting them.
Oddly enough, and this came as a surprise to me, the procedures for Senate rule interpretation cannot be filibustered, can be used at any time, and historically have been used by both the House of Representatives and the Senate to limit filibustering. In fact, the paper shows that the House abolished the filibuster by essentially using the same procedures for rule interpretation as the ones we describe in the paper.
The paper is still a draft, so I would welcome any comments you may have. Part of why we posted the draft now is hopefully to reach policymakers as they negotiate possible filibuster reform proposals. Even if filibuster does not happen in January, we hope that supporters of reform will recognize that they do not have to wait for a new Congress to try again. More broadly, the goal of the paper is to show that Senate rules and procedures are no obstacle to reform. All that is needed is the will of a determined majority of senators. In other words, when it comes to filibuster reform, don't hate the game, hate the players.
Saturday, December 22, 2012
A statement too far?
We live (thankfully) under a Brandeisian "remedy to be applied is more speech" model of the freedom of speech, which protects "verbal tumult, discord, and even offensive utterance" and accepts "verbal cacophony" as "necessary side effects of the broader enduring values which the process of open debate permits us to achieve." One underlying theory of that model is that eventually speakers will be exposed--one statement will go too far or be so totally tone-deaf, ungrounded in reality, insincere or cynical that the speaker loses all credibility.
I wonder if Wayne LaPierre (if not necessarily the NRA as a whole) hit that point yesterday. Probably not, truth be told. But we can hope.
Tuesday, December 18, 2012
The Pathological Perspective, Guns, and Deinstitutionalization
I offer here an observation on some of the post-Sandy Hook debate. It doesn't have any clear policy implications one way or another, but it nonetheless struck me.
Almost 30 years ago, Vince Blasi famously argued that we should take a "pathological perspective" on the First Amendment. He argued that we should interpret the First Amendment such that it is best positioned to do maximum work in the "worst of times" -- the times "when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically." It seems to me that a lot (though far from all) of the advocacy of rights of gun ownership in this country takes a similar pathological perspective. Thus we hear that gun ownership is necessary to prevent tyranny, and that we have to be worried about the government disarming the populace.
Yet when we have a mass shooting, we often hear from gun rights advocates (again, far from all of them), that the problem is not lax gun laws but the deinstitutionalization of people with mental illness. David Kopel's op-ed in today's Wall Street Journal contains a few grafs making this argument. What's striking to me is this: Much (though, again, far from all) advocacy of deinstitutionalization in the 1960s particularly was itself driven by a pathological perspective. Some (though far from all) advocates of deinstitutionalization argued that the government would use its power to institutionalize as a means of detaining and torturing dissenters, outcasts, or peceived deviants. And they had then-current examples (from the Soviet Union) where governments were doing just that. (For a hint at these issues, see page 15 and note 63 of this article.)
Given the pathological perspective on these two issues, one might be tempted to ask gun rights advocates, What makes you think that a government that is so tyrranical that we will need to overthrow it by force can be trusted with the power of locking people up based on assertions of mental illness or predictions of dangerousness without the benefit of a criminal process? Okay, a bit of a cute question, and the policy issues for both gun and mental health laws are difficult and complicated ones on which reasonable people can disagree. For myself, I'm not sure that a pathological perspective on gun rights or deinstitutionalization makes a whole lot of sense. For one thing, it likely leads us to ignore the day-to-day threats to freedom that make far more of a practical difference to our lives in expected-value terms than does the exceedingly unlikely "worst of times." And if we do get to the "worst of times," I'm not sure how much value "parchment barriers" (or even pistols and rifles) will have for us in practical terms. But I thought the parallel in the arguments was striking.