Sunday, May 24, 2015
Causation Anonymity in Group Police Misconduct: No Conviction, No Justice, No Peace
Here in Cleveland, tensions are running high as the City reacts to a judge's decision, following a bench trial, that Police Officer Michael Brelo is not guilty of voluntary manslaughter or the lesser-included offense of felonious assault in connection with the deaths of Timothy Russell and Melissa Williams. Russell and Williams were shot a total of 137 times by various police officers, including Brelo. Brelo himself fired 49 rounds and at one point climbed atop the victims' car to shoot them (15 shots) through the front windshield.
The judge carefully parsed the evidence on the manslaughter charges and concluded that both victims suffered multiple fatal wounds--some from Brelo, some from other officers--and that he therefore could not conclude beyond a reasonable doubt that Brelo's wounds were the but-for cause of the victims' deaths. Thus the not-guilty finding.
From a purely legal standpoint, the decision makes sense. Lawyers, with their technical training in the various elements of crimes and torts, understand that the State fails to meet its burden of proof if even one of the essential elements of a crime is in doubt.
But the public doesn't think that way. The ordinary citizen understands the bigger picture. Two unarmed people were shot 137 times. They were African-American, the shooter white. Whatever the victims' conduct, and whatever deadly force may even have been warranted at some point to protect others, what is the possible justification for 137 shots?
More troublingly, if Brelo wasn't the "but-for" cause of their deaths, who was? We'll never know. The forensic evidence does not lend itself to anything but speculation in terms of the sequence of the bullet wounds and the likelihood that any one of them was the one that precipitated each victim's death.
And therein lies the rub. This decision paves the way for causation anonymity to immunize homicide, any time a group of police officers (or gang members or any other shooters) act together to end another human being's life. We can never know which bullet caused death. We therefore can never know which shooter caused death (at least from a legal standpoint). And we can never, therefore, punish the murderer.
Ironically, it would not have mattered in this case even if we could have pinpointed Brelo as the but-for cause. The judge also acquitted him of felonious assault, concluding that his actions were reasonable under the circumstances. Presumably, his ostensibly reasonable conduct would have served to exonerate him of voluntary manslaughter, even if the evidence established him as the instigator of the death-causing bullet. That finding, and not the missing evidence of causation, is probably the most-controversial aspect of this decision.
But causation anonymity could well matter in future cases. The law's devotion to technical minutiae is sometimes the enemy of justice. Wrongdoers now have a roadmap for how to act in concert in order to absolve each of them individually of legal responsibility for the most heinous of crimes.
Ultimately, then, I fear that justice will be, over time, the greatest victim of Brelo's conduct and its aftermath. And without justice, as the protesters (in Ferguson, in New York, in Baltimore, and now in Cleveland) remind us, there can be no peace.
Monday, May 18, 2015
Judy Clarke, Dzhokhar Tsarnaev and the Discretion of Strategy
As the Alabama spring progresses towards summer, I naturally have continued to think about the State’s power, particularly in its exercise of discretion – what to investigate, which suspect to arrest, which cases to charge, which cases to prosecute and how. As I was drafting a blog post last week, NPR informed me that Dzhokhar Tsarnaev’s jury had sentenced him to death. There has been a lot written and said about the prosecutor’s discretion in this case. Massachusetts after all has no state death penalty, so Tsarnaev was charged in federal court, where a death penalty was possible. Prosecutorial discretion, in this case and more broadly, is both a fraught and a well-trod topic. And deservedly so, but in this post I want to explore a different path – the discretion of the defense.
Judy Clarke was Tsarnaev’s defense attorney and she chose what some characterized as a risky defense – she conceded his guilt in the hopes of saving his life. Put another way, she named him a murderer in the hopes that the jury would be able to see something of him as a person beyond the horror he caused. In doing this Clarke did something that lawyers do everyday in all variety of cases – she made a decision of how best to defend her client. Thinking of what I know of Judy Clarke, I have no doubt that she weighed her decision – the evidence against her client, the shock and tragedy of the event itself, the emotional weight of the trial – and discussed the defense with him. At the end of the day, however, it was her decision to make as defense counsel and she exercised her discretion to create the best trial strategy she could. That it ultimately failed, that her client got the death penalty anyway, doesn’t change the reality that she did one of the hardest things lawyers do – she made strategic choices and she presented the case according to those choices. I don’t know any trial lawyers who don’t second guess these choices, particularly after a loss, and likely Judy Clarke has her own doubts.
What can and should professors do to prepare our students to make those choices. And when I say preparing, I mean lots of different things. On the one hand, there’s the preparing that accompanies knowing enough about the law itself to understand what choices are available. I suspect (hope) most law professors do a good job teaching students what the law is. How to apply the law is a trickier proposition. It’s one thing to memorize a holding, it’s another thing to decide whether or not that holding applies to your case or even ought to apply to your case. Beyond this, there are the more amorphous decisions of strategy and the emotional baggage that accompanies decision-making. I wonder whether these can be taught at all by anyone (or anything) other than experience.
In my own classes I use role play and “exercises” to try to get students to think beyond the inevitable exam at the end of the semester and to think of the “case” in real terms (even as they play pretend roles), but I have often wondered if all I have taught in the process is how I would strategize a case. As for the sense of loss I always felt when I knew I had chosen badly (or when the best choice was still a bad one as I suspect was the case with Tsarnaev’s), nothing ever prepared me for that. I could anticipate it. I could rationalize it. But I couldn’t ever quite be ready for the knowledge that I had made decisions that contributed to the conviction and punishment of my client. So I wonder how I, and others, can teach that? I can talk to my students about the practicalities of being a lawyer and embarking on a profession in which we all wield at least some tendril of power we lacked before those three letters, esq., were placed after our names, and I do. But in the end, I think discretion remains that double-edged sword that we all have yet to master the perfect instruction on its use. And so I think some of the best “teaching moments” I have had with regard to discretion have come years after my students left my class, when they email or call or sometimes even text to say “I have a hard decision to make, do you have a moment to talk?”
Judy Clarke was not my student. She never called me to talk. But from what I can tell, she did a great job with a hard, hard case. In the end, the jury found her argument unpersuasive and sentenced her client to death. There were thousands of events that led up to that moment, most of which pre-dated Judy Clarke’s work on the case, but in the end I wonder if there is some small part (or maybe large part) of her that wonders what if I had done it just a little differently. We can all say it wasn’t ever about Judy Clarke or her choices; the case was always about the client and the victims and the law. But that would not be completely true, and it would shove back into some dark corner one of the hardest parts of being a lawyer – making the decisions that constitute advocacy.
Monday, May 11, 2015
Bill Simmons and the Duty of Loyalty
ESPN rather publicly announced that it would not be renewing its contract with Bill Simmons, editor-in-chief of its sports and entertainment site Grantland, as well as writer, author, and co-producer of the "30 for 30" sports documentary series. A lot has been written about the inside details, as well as the larger ramifications for Simmons, Grantland, and sports and entertainment media more generally. There's also some interesting IP issues -- could ESPN really appoint another host for the "B.S. Report"? But I'd like to talk about the next four months, in which Simmons is still with ESPN but is essentially a lame duck. What does employment law say about this awkward interim period?
Having been publicly cut off at the knees by his current company, Simmons will want to focus on his next gig. But the law may restrict his ability to do so. Most jurisdictions have recognized that employees owe employers a duty of loyalty. The contours of this duty are somewhat vague. At the very least, the duty would prevent Simmons from working for a competitor while he is still under contract with ESPN. But let's say he agrees to start working for, say, Fox Sports beginning the day after his ESPN contract ends. Can he tweet out his new employer? Can he use his ESPN column or podcast to mention his new gig or even promote it? Can he ask Grantland employees to join him at his new place?
The duty of loyalty has been generally recognized as prohibiting an employee from using her current employment to solicit for her future employer. Employees are also prohibited from disclosing trade secrets to their future employers. On the other hand, employees are generally allowed to "prepare" to compete by talking with other employers and agreeing to future employment. The murkiest area involves one's current fellow employees. Can Simmons solicit Grantland employees for his new venture? Some courts have found it disloyal for current employees to persuade other employees to break their contracts with the employer. It doesn't help that Simmons is editor-in-chief, as courts have held supervisory employees to a higher standard. However, courts have also focused on surprise as particularly problematic, as when a large group of employees suddenly up and leaves with no notice. ESPN has plenty of notice that Simmons is leaving and may want to take some of his hires with him. And although not officially a legal factor, the fact that Simmons is being fired (in some sense) will make his efforts to rebound more sympathetic.
Simmons's last days at ESPN could resemble the tenure of another media celebrity in the wake of a high-profile move. In 2004, Howard Stern announced his upcoming move from CBS Radio to Sirius Radio with great fanfare. He used his CBS show to make the announcement. And he proceeded to use the show to bash CBS for its efforts to censor him, and to promote his Sirius move. In 2006, CBS Radio sued Stern over his promotion efforts for his new show. CBS claimed that Stern has used his airtime at CBS to promote Sirius and had engaged in other promotional efforts off the job but while still employed. It asked for $218 million in damages -- the stock compensation Stern received from Sirius based on the huge jump in Sirius subscriptions in the wake of Stern's announcement. This request for the disgorgement of the compensation Stern received from Sirius is a traditional remedy for the violation of the duty of loyalty. The disloyal agent is expected to disgorge back to the principal any ill-gotten gains received in the course of the agency relationship. Reviewing the claims, Stephen Bainbridge concluded that Stern had likely violated the duty of loyalty with his on-the-job solicitations for Sirius. Ultimately, CBS and Stern settled the suit for an undisclosed amount.
Conan O'Brien's relationship with his employers at NBC was similarly contentious at the end. When told NBC was moving the Tonight Show to midnight, O'Brien balked, arguing that the Tonight Show could only start at 11:35 after the local news. He then spent two weeks trashing his employers on the NBC airwaves. He even had a running segment where he frittered away NBC's money on expensive cars and licensing rights. The big difference -- O'Brien was tussling with NBC over his contractual rights, and ultimately the two sides settled with Conan's departure. He had no future show o promote while still at NBC, and in fact his settlement forced him off the air and into radio silence for six months.
Simmons may be tempted to spend his last few months settling the family business -- trashing ESPN, raiding Grantland of its best writers, and setting up shop at his new home. And legally, he would have a decent case for doing all these things -- although not one without risk. What seems clear, however, is that he cannot use ESPN properties to promote his new media home while still an employee. I would expect instead that word of the new location gets out through the media, coming from everywhere but Simmons himself.
One final note -- I'm assuming that Simmons's contract does not speak specifically to these matters. He may have a non-compete that kicks in after the contract's expiration, although that seems unlikely. And if he starts trashing ESPN or the NFL commissioner, ESPN may end up suspending him again or simply firing him before his contract expires.
Thursday, May 07, 2015
Same-Sex Marriage: The (Ted) Kennedy Legacy
The odds-makers are generally in agreement that the deciding vote in Obergefell v. Hodges will be Justice Kennedy. While some have speculated that Chief Justice Roberts will find a way to join in a majority judgment (if not majority opinion) recognizing a Constitutional right to same-sex marriage, the more-prevalent view is that the liberal-conservative stalwarts on the Court will split 4-4 and that Kennedy will cast the decisive fifth vote one way or the other. If he sides with the proponents of same-sex marriage, the winners will have another Kennedy to thank, albeit posthumously, for that result: Senator Ted Kennedy.
The narrative goes like this:
In 1987, Justice Lewis Powell retired, leaving President Ronald Reagan his third Supreme Court vacancy to fill. (The first occurred when Potter Stewart retired, and President Reagan appointed Sandra Day O'Connor. The second occurred when Chief Justice Warren Burger retired, and President Reagan elevated William Rehnquist to the Chief Justice seat and appointed Antonin Scalia to fill the vacancy.) Reagan nominated Judge Robert Bork of the D.C. Circuit, leading to the infamous confirmation hearing that ended with a Senate vote rejecting Bork, 58-42.
Bork’s greatest and first nemesis in that nomination process was Senator Kennedy, who took to the Senate floor and urged that “Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”
Notably absent from that floor speech was any notion of rights for gays and lesbians. Remember, this was 1987. Bowers v. Hardwick, the 1986 case that permitted states to criminalize sexual conduct between members of the same sex, was fresh law (and remained on the books until 2002, when Justice Kennedy wrote the decision in Lawrence v. Texas that overturned it).
Kennedy's speech galvanized the Senate, and the nation. Vice-President Joe Biden, then a senator and chair of the Judiciary Committee, had his own field day during the committee hearings. I was a fresh-faced first-year law student, and the protests on my law-school campus made indelible impressions on me. When Bork was ultimately defeated, we knew we had won. We didn't quite know what we had won, but we knew we had won something.
President Reagan next nominated Douglas Ginsburg to fill Powell's spot, but Ginsburg withdrew after reports surfaced that he had used marijuana. (Remember, it was 1987.) So Reagan turned to Anthony Kennedy. And here we are today.
Bork died in 2012. Had he won confirmation and remained on the Court until his death, President Obama would have been in office at the time of the vacancy. Given the likelihood that Obama would have appointed a justice favorably disposed to same-sex-marriage rights, some might say that blocking the Bork nomination had no ultimate impact on this issue. But it’s important to remember that Obergefell did not materialize out of thin air. It comes following years of development of legal protections for gay, lesbian, and bisexual people: (1) the Kennedy opinion in Romer v. Evans, which in 1995 struck down a state constitutional provision banning anti-discrimination laws protecting gays, lesbians, and bisexuals; (2) the 2002 Kennedy opinion in Lawrence; and (3) the 2013 Kennedy opinion in United States v. Windsor, overturning a portion of the Defense of Marriage Act.
So some credit is due to Senator Kennedy, arguably responsible (at least in part) for the ultimate nomination of Justice Kennedy. And that Kennedy-Kennedy legacy may end up making a bigger mark on history when the Court announces the Obergefell decision at the end of June.
Tsarnaev and Juvenile Brain Development
Despite promises in yesterday’s post that I would talk more about discretion in criminal law, a report this morning in the Boston Globe prompts today’s post on a completely different, though equally close-to-my-heart topic: juvenile brain development and criminal culpability. Yesterday, defense counsel for Boston Marathon bomber Dzhokhar Tsarnaev presented testimony essentially arguing that Tsarnaev’s punishment should be mitigated because he was young. Arguments for mercy based on the youth of the offender are hardly novel, but Tsarnaev’s defense counsel based their argument on the neuroscience of youth – particularly the impact brain development has on decision making and appreciation of long term consequences suggested decreased culpability. Yesterday the jurors in the Tsarnaev case heard testimony from Dr. Jay Geidd, a professor at the University of California San Diego and a child psychiatrist. According to the article, Geidd testified: “Teens are more likely to choose smaller, sooner rewards” and are “less worried for long-term consequences.”
Geidd’s testimony is consistent with what every parent of a teenager knows and what many in the juvenile defense community (myself included) have argued for a long time – adolescents are fundamentally different than adults and criminal law should recognize this fact. Tsarnaev’s defense counsel is making this point in the context of sentencing – a context the Supreme Court itself has repeatedly endorsed as of late (see Roper, Graham, and Miller, all restricting or prohibiting the application of forms of severe punishment to adolescent offenders based on their immaturity). But many, again myself included, have argued that neuroscience should inform substantive criminal law as well. In my forthcoming article, Brain Science and the Theory of Juvenile Mens Rea, I argue that what is known about adolescent decisionmaking is relevant to calculations of mens rea – the state of mind element – required in all but strict liability offenses, as well as for many defenses (think self-defense for example).One of the issues that frequently arises in this context was highlighted by the Government’s cross examination in the Tsarnaev case – even with all we know about brain development generally, how do we calibrate it’s effect on any particular defendant? Put another way, is development, and its effect on adolescents, uniform? When asked this question, Geidd responded no – that many factors, including variation in development rates and environmental factors, can influence brain maturation and decision making. But what was lost in the reporting of Geidd’s response was what neuroscience studies seem to confirm: that even within these degrees of uncertainty and variance, the adolescent brain is not as developed as the adult brain and the adolescent decisionmaking process is different than the adult decisionmaking process.
You can raise all sorts of questions about where this effect fits into the hard decisions that jurors must make, whether in the context of a guilt or a sentencing phase. But what seems clear to me is that this evidence must be presented to those jurors if we are, as we claim we are, seeking to hold defendants accountable, and later to punish them, based on their corresponding level of culpability.
Friday, May 01, 2015
Questioning the Law School Debt Narrative
Given the strong feelings that discussions about the value of legal education triggers, I have been reluctant to blog about the so-called law school scam. But a story about a recent law school grad and his debt that is making rounds in the national media has me truly puzzled. This story, which has been picked up by the New York Times, among others, reports about a 2010 graduate from Ohio State’s law school who graduated with $328,000 in student debt. As someone who financed her own education through a combination of student loans, work study, and other financial aid, I am puzzled how this individual accumulated so much debt.
A quick search of Ohio State’s webpage tells me that an out-of-state student should expect tuition and other expenses to total just under $65K a year, and so three years of law school education and other expenses should result in approximately $195,000 in debt. Yet media outlets are repeating this $328,000 number without questioning why a student would incurred an amount of educational debt that is so much higher than the cost of attending law school for three years. The New York Times, for example, reports that this particular law school graduate’s $328,000 debt “includes some undergraduate loans,” yet the story is clearly focused on the high cost of legal education. But, in light of the information that is readily available from Ohio State, one presumes that this student’s debt from law school should make up no more than 60% of this overall educational debt.
Don’t get me wrong, legal education is expensive. At many schools it is probably more expensive than it needs to be. And I can’t imagine how devastating it must be to incur significant debt to obtain a law degree, and then find yourself unable to obtain employment as a lawyer. But I really wish that the media’s reporting on this issue were more nuanced. Many reporters seem so devoted to the narrative that legal education is not worth the sticker price, that their reporting on this issue no longer seems objective.
Sunday, April 26, 2015
Ohio is Not New York. Or Even Texas.
The Times today has a write-up of the recent Deborah Jones Merritt study of employment outcomes for the JD Class of '10 in Ohio. As I described in more detail at the law & econ prof blog a few weeks ago, Prof. Merritt's study has, ahem, merits. It's a great snapshot of struggling graduates in Ohio, people who deserve our attention and support. The trouble is that the Times story reports these findings as though they told us something about the national law job market. Merritt's new data are all in Ohio, which may be a systematically different legal market than many others. Nonetheless, the Times story reports Merritt's findings as though they were representative of the whole country (and also describes the study as "published," when in fact it's an ssrn working paper). Most troublingly, the Times reports Prof. Merritt's conclusion that "the 2010 class had not recovered in the ensuing years" without any caveats.
Yet there are several serious caveats that ought to have been offered. For example, as I read the paper, Merritt 's claim depends entirely on a trend line she draws between 2010 national NALP data (which are based on self-reported survey results but supplemented with some web follow-up) and 2014 Ohio data (which Merritt hand-collected on the web). That is not likely to be a persuasive method of measuring employment trends for anyone, whether in Ohio or anywhere else. It's like comparing 2014 scoring in the NBA against 2010 scoring in college basketball. Unless you can show a really convincing case for why these groups are actually very similar to each other, the trend line is likely to be just random noise.
Deborah and I had an exchange about these issues on my blog. She convinced me that the method NALP used for supplementing some of the 2010 data was similar to her method (although that leaves the question whether it makes any sense to compare her results to the bulk of the NALP numbers, which used a quite different method). But she did not address the issue that the 2010 NALP data were for the whole country, not Ohio, and there is no a priori reason to think that Ohio was similar to the U.S. in 2010 or that its trend since has been similar. I left our exchange believing she would return to her project and revise it to reflect its serious limitations as a window into national trends. If that has happened, it is not reflected in the Times story.
Wednesday, April 22, 2015
A (very) brief note on law employment statistics
You, reader, are in the wrong place for the debate over how law schools should present employment data. Mike Simkovic has a long series of posts (I link here just to the latest, which in turn includes links to the earlier work), and Bernie Burk has weighed in here and here. To digest, Mike says that it is reasonable for law schools to report "unemployment" figures using standard BLS definitions, which include part-time workers and workers employed outside law as employed. Bernie says this is potentially misleading, since applicants probably also would like to know what share of the employed are full-time or in JD-required jobs. Mike notes that the definition of unemployment can be googled (probably by an 8th-grader, but he says "by a college graduate") pretty easily -- a step, I might add, that might reasonably be expected of someone who is relying on data to decide how to spend 3 years of their life.
I write this post, though, because for whatever reason Mike hides his best response to Bernie's point at the bottom of a long post: "There is a distinction between the potential for additional information to be useful and the stronger claim that summary information is inherently misleading."
Tuesday, April 21, 2015
In the marketplace of ideas, Twitter has decided that online trolls are bad for business. Back in February, it was reported that Twitter's CEO Dick Costolo told staff "We lose core user after core user by not addressing simple trolling issues that they face every day." This statement suggested that keeping Twitter safer from abusers had become a corporate goal.
Recently, Twitter began to roll out changes that puts meaning behind Costolo's statement. Rather than asking the victim to track down an abuser, Twitter has flipped the script to test a new a feature to lock the abuser's account for a period of time. The account can be reactivated if the user provides a phone number verification, and then deletes all of the tweets that are in violation of terms of service. A screen shot of the procedure is below (and a text explanation is here on Ars Technica).
Additionally, Twitter's guidelines have been amended to broaden the definition of prohibited conduct to include "threats of violence against others or promot[ing] violence against others" (expanded from the “direct, specific threats of violence against others” in the former policy). In addition, the company is implementing measures to limit distribution of certain tweets that exhibit "a wide range of signals and context that frequently correlates with abuse including the age of the account itself, and the similarity of a Tweet to other content that our safety team has in the past independently determined to be abusive."
The sheer size and volume of Twitter's platform, and the types of distinctions that will have be made, make implementation of these standards a challenge. Of course, the platform is in the private sector, and these guidelines are a form a type of private governance. I wonder where this direction will take the company, what the impact will be on public discourse, and whether it will affect the behavior of other online platforms.
Tuesday, April 14, 2015
The Right to Privacy vs. Freedom of Expression
Most of us are in the phase of the semester where we are discussing defenses, exceptions, and limitations on the areas that are the subject of our courses. Certainly, my trademark class is grappling with cases considering First Amendment limitations on IP rights.
One recent case places the First Amendment as a limitation on the right of privacy. This New York court considered a photographer's images taken with a telephoto lens aimed inside people's homes. The plaintiff asserted violation of New York's statutory right of privacy. According to the opinion, the photographer, Arne Svenson, has exhibited the works and reproduced some images here.
According to an earlier court opinion, Mr. Svenson did not obtain consent but rather "I carefully shoot from the shadows of my home into theirs." Although some of the images do not show the occupant's faces, some did at least partially. One is a child's face that was alleged to be identifiable. According the plaintiff, the location of their apartment has been made known as well "which Plaintiffs allege compromises the security and safety of the children."
Nonetheless, the Appellate Division affirmed dismissal of the complaint, given that the art works were for expressive purposes protected under the First Amendment. As the court stated, "works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption." Further, the Court observed that "the depiction of children, by itself, does not create special circumstances which should make a privacy claim more readily available." Certainly, in an era of emerging drone use, such cases are likely to arise with more frequency. If you are interested, a full copy of the slip opinion is here.
Monday, April 13, 2015
Law and Social Change
Law has an ill-defined relationship to culture. Certainly, some legal rules seek to standardize norms in the way that the reasonable person operates in tort law or custom sets interpretive principles for contractual relations. Law may push against culture, such as the way anti-discrimination laws attempt to eradicate bias.
Further, culture can seek to change law. One recent example that caught my eye is the transport of films, TV shows and other media into North Korea via weather balloons. Among other things, these balloons carry TV shows including Desperate Housewives and The Mentalist, so that those who find the USB drives on which this entertainment is stored can be exposed to cultural information about those outside North Korea's borders. This is one way that the Human Rights Foundation is seeking to reach out to North Korean citizens to open up the government's information block.
Where do such efforts come from? Recently, Peter Lee (UC Davis School of Law) has posted an interesting piece on social innovation that is insightful for those interested in innovation, the theory of the firm, distributive justice, and/or intellectual property. In it, he contrasts the formal incentive system of the intellectual property system to:
...the altruistic motivations and public funding that drive social innovations. . . Beyond efficiency considerations, however, social innovations often play a distributive role in shifting resources to underserved communities. Social innovations address underserved markets, such as when microfinance entities provide loans to populations who do not qualify for traditional financing. Going further, social innovations sometimes provide essential goods and services to entirely neglected populations on a charitable basis.
I found that Lee's piece opens a new door on the mechanisms that foster the creation of public goods. The piece is replete with insights about the interaction between government and private entities in both the IP and social innovation spheres. He argues that these systems have much to learn from each other. This is downloadable here and certainly worth a read.
Thursday, April 09, 2015
Technology & Tailights
It's not IP, but it is on my mind. Legally justified. That cannot be the end of the discussion, as it has been up until this point. Apartheid was the law. Women not voting was the law. Jews not being able to own property was the law. Same sex relationships were (and still are in some places) prohibited by the law. Dramatic? Not really. Not any more than the videos (i.e. North Charleston shooting etc. etc.) that keep surfacing. Seems like "the law" is hampering some honest and difficult conversations about the kind of society we want to have.
Technology is revealing failings in the legal system. The fact that the current law may tolerate or encourage something does not mean we should tolerate it. Someone will, no doubt, make a legal argument that the North Charleston police officer was acting within the scope of his authority when he shot and killed an unarmed black man in the back as the man ran away. Eight shots. Bravely caught on video by an anonymous person. Who would otherwise believe what happened? Technology made a difference here. Stopped for a tail light. For others, their "tail light" was walking through a store, standing on the street, riding the subway, or standing in the playground with a toy gun.
Video cameras are catching horrific acts in the United States that are reminiscent of South Africa's numerous incidents of "death by falling" during the Apartheid era. There are killings caught on camera and seemingly "harmless" speech involving racial slurs. These two are not completely unrelated.
While I value free speech, I am also mindful of the power of words. After all, words were used to condition populations to view their neighbors, friends, and family from different ethnic groups as the "other" and to eventually incite genocide. In Rwanda, the talk of eliminating "cockroaches" was a terrible, yet highly effective, strategy adopted from Nazi Germany. Just words. Just words. Words matter because they sensitize us to whether or not the person we are berating, beating, or shooting, is a cockroach, a dog, a monkey, or a human being. Will we pause before we shout, or shoot? Or are we now used to the idea of the criminal "other," such that we raise our fists, or pull the trigger, a little more quickly? If one gets used to referring to some group as "monkeys," "cockroaches," or the "N word," maybe it is just that much easier to pull the trigger. For instance, one of my friends from college who was raised in Apartheid South Africa, told me "no offense, but I just cannot think of blacks as people." He was a lovely and pleasant guy. However, that was his conditioning.
Legally justified. This cannot be where the conversation ends. Multiple killings of unarmed black men and boys have been caught on camera. When there is no legal consequence, is it possible that we get conditioned to see the killing as acceptable? Maybe this officer is surprised at what is happening to him. But for the video, he might reasonably assume that his actions would be viewed as "legally justified," even without a trial.
The Boston bombing case - spring training is over, and it'll be Opening Day soon
Accused Boston bomber Dzhokhar Tsarnaev was, not surprisingly, convicted yesterday of all 30 federal counts that he faced. As he faced a possible death sentence, the case was bifurcated into a guilt phase and a penalty phase. Various commentators noted that defense lawyer Judy Clarke essentially conceded guilt from the beginning of the guilt phase, an indication that the defense goal has been to avoid the death penalty. (Clarke took similar approaches with previous clients such as the Unabomber and Jared Lee Loughner, among others.)
This means that the legal fight is beginning in earnest with the penalty phase, where Clarke can be expected to put up a fierce defense. It's clear from the defense posture that the theory of mitigation will be that Tsarnaev was heavily influenced, if not coerced, by his older brother Tamerlin (who was killed during capture efforts).Clarke certainly has a formidable reputation with an impressive list of former clients who escaped the death penalty. But of those successes, only Susan Smith and Zacarias Moussaoui actually faced juries in the penalty phase. The others (the Unabomber, Aryan Nations member Brandon Furrow, Olympic bomber Eric Rudolph, and Loughner) all reached plea bargains with the prosecutors. And Moussaoui reportedly avoided a jury vote of death by a single vote.
Predicting the outcome of the penalty phase would be a foolhardy task, especially ahead of the presentation of any of the aggravating or mitigating evidence. The jury has, however, already heard some extremely aggravating evidence in the case in chief:
The government called 92 witnesses over 15 days, painting a hellish scene of torn-off limbs, blood-spattered pavement, ghastly screams and the smell of sulfur and burned hair. Survivors gave heartbreaking testimony about losing legs in the blasts or watching people die. The father of 8-year-old Martin Richard described making the agonizing decision to leave his mortally wounded son so he could get help for their 6-year-old daughter, whose leg had been blown off.
This wasn't an unforeseen result of the defendant's actions. Given that the jury has already been death qualified, one has to wonder, if the death penalty doesn't apply in a case like this, when would it?
As it turns out, we have something of a comparable case: the 1995 Oklahoma City bombing of the Murrah Federal Building. (Obligatory disclosure: I clerked for Judge Holloway in Oklahoma City from 1996-97, so I was in the courthouse for much of the pre-trial hearings in the case, but obviously I wasn't present at the time of the bombing itself.)
Obviously, the death toll in the Oklahoma City bombing was much, much higher, and so too was the property damage. But co-defendants Timothy McVeigh and Terry Nichols both went to trial, were convicted, and faced the death penalty. McVeigh was sentenced to death, while Nichols was not. What was different between the two of them?
Observers at the time noted that:
[P]roving his guilt would end up a greater challenge for the federal government than it had been in the McVeigh case. There was no evidence that Nichols had rented the Ryder truck used to carry the bomb to Oklahoma City, and there was no one who could positively identify him as the purchaser of the two tons of ammonium nitrate, the major component in the bomb.
Most problematic for the government was the compelling fact that Nichols was at home in Kansas when McVeigh detonated the truck in front of the Murrah building at the promising start of a sunny workday.
One might be able to see Tamerlin Tsarnaev as McVeigh and Dzhokhar Tsarnaev as Nichols, in terms of relative guilt, but most of the other comparisons do not favor Tsarnaev. Perhaps most importantly, Nichols may have benefited from being prosecuted after McVeigh had already been convicted and sentenced to death. While Tamerlin Tsarnaev is dead, his death did not result from a completed trial, and so Dzhokhar Tsarnaev is the only one of the two to face a jury; this is the one opportunity for a jury to, as they say, send a message.
(I should note that I'm not offering these to persuade anyone that Tsarnaev should receive the death penalty, but rather, why I think he probably will. For my views on the kinds of cases for which a death sentence would be appropriate in the interest of protecting other inmates, see an op-ed I wrote, or a short law review article.)
Additionally, whereas Nichols aided McVeigh in assembling the truck bomb, he apparently stopped helping McVeigh and thus had gone nowhere near the federal building. Dzhokhar Tsarnaev, on the other hand, appears to have been every bit as much of a perpetrator of the marathon bombing as his older brother was.
I wouldn't bet on the outcome of the penalty phase, but I do think Judy Clarke is facing an uphill battle in trying to persuade the jury to spare Dzhokhar Tsarnaev.
For further reading on comparisons between the Boston and Oklahoma City bombing cases, see this interview with McVeigh's lawyer.
Wednesday, March 25, 2015
The Sweet Briar Legal Challenge
The alumnae group Saving Sweet Briar has hired the law firm of Troutman Sanders LLP to represent the group in its attempt to oust the current board and prevent the school's closure. The law firm sent a letter to the board's counsel outlining its legal position. Its first argument makes a breach-of-fiduciary-duty claim, asserting that "[a]s directors of a non-stock corporation, your clients [that is, the board members] are required to promote the College’s best interests, and your clients have good faith duties of care, loyalty, and obedience toward the College."
As I said before, however, I don't know that the Board's fiduciary duty in fact runs to the institution--I think the duty runs more broadly to the institution's mission. In good times, those duties would be congruent; in less good times, however, the two may conflict. What if, as some have posited, Sweet Briar could be saved by going co-ed? Or by lowering academic credentials? I'm not sure how well the school's mission is defined; it was explicitly founded to educate women, and perhaps less explicitly, founded to educate women from a relatively elite social class. (Perhaps not so much less explicitly--social class seems to come up often in discussions of the college's past and present, and a recent New York Times article points out that "both Mr. Jones [the interim president] and Paul Rice, the board chairman, said Sweet Briar’s rich-girl days were long gone").
Changing that mission might be a good idea, but the challenge raised by the letter isn't a question of what policy would be best--it was explicitly stated as a legal question, and I think it is an interesting one. Brad, a commenter to my prior post, pointed out that the March of Dimes changed its mission from polio eradication to the prevention of birth defects once polio was eradicated. From a legal perspective, I think that such mission changes probably fit within a reasonable cy pres distribution of charitable assets. The Sweet Briar board, like the March of Dimes, would likely have been on strong legal footing if it had modified its mission to become sustainable. But, as Brad points out, the harder question is does it have to?
It appears to me that Saving Sweet Briar is arguing that the board in fact had a duty to sustain the organization--even if doing so meant modifying the school's mission. To be fair, this is not stated explicitly in the letter, and the letter also raises other issues of financial secrecy and lack of decision-making transparency. But some of the language, I think, hints that the group thinks the Board should have considered mission-changing options like going co-ed; it mentions a failure to "consider other methods of meeting the College’s needs" and a "failure to explore all possible options." The group's FAQ page is explicit that its focus is keeping the college open: (Q: "What are your plans to turn the college around?" A: "At this time, we are focused on halting the school’s closure and keeping the college open.").
I'm interested to see how these arguments develop. I do fear, though, that the cost of litigating those arguments might very well consume so much of the remaining resources that there is not enough money left either to soften the transition of closure or to restore the school to sustainability.
Wednesday, March 18, 2015
Sweet Briar a Victim of Predatory Lending?
As the Sweet Briar situation continues to unfold, a policy analyst from the Roosevelt Institute digs deeper into the school's financial statements, and discovers troubling information:
"[P]redatory banking practices and bad financial deals played an important and nearly invisible role in precipitating the school’s budget crisis. . . . A single swap on a bond issued in June 2008 cost Sweet Briar more then a million dollars in payments to Wachovia before the school exited the swap in September 2011. While it is unclear exactly why they chose 2011 to pay off the remainder of the bond early, they paid a $730,119 termination fee. . . .
Just how big a deal are these numbers? The school has a relatively small endowment even among small liberal arts colleges: currently valued at about $88 million, with less then a quarter of that total completely unrestricted and free to spend. But in 2014, the financial year that appears to have been the final straw for Sweet Briar, total operating revenues were $34.8 million and total operating expenditures were $35.4 million, which means that the deficit the school is running is actually smaller than the cost of any of the bad deals it’s gotten itself into with banks."
Unlike most victims of predatory lending, however, Sweet Briar would have had access to high-level legal and financial advisors. If the financial deals were as bad as the report suggests, something went very wrong in the college's decision-making process.
Tuesday, March 17, 2015
Fiduciary Duty, Higher Education, and the Zone of Insolvency
Questions continue to emerge about the situation at Sweet Briar and the decision-making process that led to its closure, and the situation seems destined for litigation. One of the issues that seems to run through the discourse, though, is one I’ve been thinking about for a few years: to whom do the college decision-makers owe a fiduciary duty?
A letter from Virginia State Senator J. Chapman "Chap" Petersen to Attorney General Mark Herring raises the question explicitly. The letter questions the legality of the announced closure, asks for an opinion on the legal status of restricted donations, and asks “Does the Board have a fiduciary duty to protect the interests of donors and students, as well as the mission of the College?”
The issue of fiduciary duty presents an interesting question, and I would add a follow-up: does that fiduciary duty change (or should it) when a nonprofit institution is operating in the so-called “zone of insolvency”?In recent decades, colleges and universities have attempted to act more like businesses (the so-called “corporatization” of higher education) and, in doing so, may have acted in ways that are inconsistent with nonprofit principles. In particular, I suspect that the increasing spiral of rising tuition and concomitant discounts is one of the leading causes of financial distress in higher education—and it may well be that prior Board decisions underlie Sweet Briar's current financial crisis.
But regardless of how Sweet Briar got to this point, whose interests should now be paramount? I think there is no doubt that the Board owes a duty to the “mission of the College.” But how is that best served? The stated mission of the College is to educate women—but there are far more options for women’s education now than there were at the college’s founding, making it appear less important that that mission be served by Sweet Briar College. I also think there is a strong argument that colleges and universities have a fiduciary duty to act in the best interest of their students. I suspect that there is a contractual duty (though I am doubtful there is a fiduciary one) to donors; restricted funds probably should and will go back to donors or be distributed under cy pres principles.
There may be some conflict between the interests of educational goals, students, and donors. Nonetheless, I think that the main source of tension and potential conflict arises from an idea not actually stated in Senator Peterson’s letter—the idea that the Board could also have a duty to the institution itself. When a nonprofit institution is financially solvent, it may be reasonable to think in terms of a trustee’s duty to protect the institution and its future; ideally, the interests of the institution would be aligned with the interests of the institution's mission. When the institution is not financially solvent, however—and when strategies to gain solvency would seem to conflict with the institution’s mission—then there is a significant potential for a conflict of interest. The restriction of nonprofit status (exchanged for some nice tax breaks) suggest that the interests of the institution (and its management, including faculty) have to take a back seat in the face of such a conflict. I don't know if the Sweet Briar board made the right call, and I am troubled by a reported lack of transparency in its decision-making. For Sweet Briar, questions of power, duty, and potential conflicts will likely get hashed out in court.
Friday, March 13, 2015
Would the Alabama Supreme Court prefer no marriage at all?
There’s an interesting paragraph in this week’s order from the Alabama Supreme Court, which confirmed that Mobile County probate judge Don Davis is subject to its earlier mandamus ruling even though he is also the subject of a federal-court injunction. In trying to make sense of this situation, Judge Davis had stopped issuing marriage licenses altogether (as a commenter on my last post noted).
Here’s what the Alabama Supreme Court said (emphasis mine) on p.9:
Section 30-1-9, Ala. Code 1975, provides that Judge Davis "may" issue “marriage licenses." To the extent he exercises this authority, he must issue those licenses in accordance with the meaning of the term "marriage" in that Code section and in accordance with other provisions of Alabama law, as discussed in our March 3 opinion.
Is the implication here that Judge Davis has no obligation to issue marriage licenses to anyone? That he can refuse to issue them across the board, just as long as no marriage licenses are issued to same-sex couples?
Meanwhile, expect some more activity in federal court next week. Judge Granade has ordered Judge Davis to file a response to the Strawser plaintiffs’ motion for class certification by Tuesday, March 17.
[Cross-posted at the Civil Procedure & Federal Courts Blog]
Thursday, March 12, 2015
Bankruptcy and Higher Education
Futurist Clayton Christensen predicted that half the nation's colleges will be in bankruptcy within fifteen years. I have doubts about both his predicted number and his predicted timeline, but there is no doubt that many colleges and universities are struggling, and that current financial models in higher education--especially the high-tuition, high-discount model--may well be unsustainable.
The more immediate question, for some of those institutions, is whether bankruptcy is even a viable option. Most people know that student loans are largely nondischargeable in bankruptcy. What is less well known is that universities face their own bankruptcy restrictions that make them unable to benefit from Chapter 11 restructuring opportunities. When a college or university files for bankruptcy, it immediately loses eligibility to participate in the federal government's Title IV aid program (which includes Pell grants, Stafford loans, and Plus loans), so its students cannot get federal loans or grants. Because the vast majority of students rely on federal aid to pay for school, it is effectively impossible for an institution to maintain enrollment while restructuring its finances.
Lon Morris College, the oldest junior college in Texas (in existence since 1854) ran into this problem in 2012. It originally filed a Chapter 11, seeking to restructure. Once the bankruptcy judge ruled that it was ineligible to participate in Title IV, the college had to quickly liquidate and ended up selling much of its property to the local school district. Like many other struggling schools, Lon Morris had trouble navigating its pricing structure: "College officials blamed the school’s financial hardship on their overambitious goal to grow student enrollment during the economic recession by offering discounts on its $22,190-a-year tuition," which was steep for a two-year college. The school had an $11 million restricted endowment, which became the subject of litigation over whether it could be used to pay for the costs of bankruptcy lawyers. By early 2015, there was a little over a million dollars left; it went to Texas Wesleyan to pay for scholarships.
A recent Hill editorial called for amendments to the Higher Education Act that would allow universities to restructure without losing eligibility for federal aid. Without such amendments, the author argues that "schools must either declare bankruptcy and implode (like the non-profit Lon Morris College in 2013 or the for-profit Anthem College in 2014) or, in many cases, go through a protracted consensual foreclosure process to accomplish, in essence, a debt-for-equity swap (as was done with the for-profit ATI Enterprises in 2013)." Neither option is good for students, and he may be right that an amendment is called for. In the long run, though, breaking away from the high tuition/high discount model may do more for financial sustainability.
Wednesday, March 11, 2015
New developments in the Alabama same-sex marriage litigation
The litigation over Alabama’s ban on same-sex marriage has taken many twists and turns in these early months of 2015, but the main action has been in two arenas: the Alabama Supreme Court and U.S. District Judge Callie Granade’s courtroom in the Southern District of Alabama. Of course, everyone will be watching the U.S. Supreme Court as well, where Obergefell v. Hodges will be argued next month. And it was the Supreme Court’s February order refusing to stay Judge Granade’s initial injunction that began the latest round of activity. Here’s where things stand:
The Alabama Supreme Court said its piece last week, granting a writ of mandamus ordering all Alabama probate judges to stop granting marriage licenses. The merits of that ruling are certainly open to debate—both on the key constitutional issue and the standing/jurisdiction issue—but there are a few things to keep in mind going forward. First, the mandamus action was brought by two groups opposing same-sex marriage (acting as “relators” for the State of Alabama) against the Alabama probate judges. No individuals or couples who might wish to challenge Alabama’s same-sex marriage ban were parties to that proceeding, so as a matter of preclusion the ruling by the Alabama Supreme Court does not prevent them from seeking relief in federal court.
Second, the court ordered Alabama probate judges not to issue new same-sex marriage licenses (and it seems to have had that effect), but it ignored the relators request to order Alabama probate judges “not to recognize any marriage licenses issued to same sex couples.” In doing so, the court avoided one potential direct conflict with the federal judiciary, insofar as Judge Granade had previously ordered Mobile County probate judge Don Davis to issue marriage licenses to four same-sex couples in the Strawser case. Indeed, the Alabama Supreme Court’s order asked Davis to “advise” it “as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.” His deadline was last Thursday (3/5), but he’s asked for more time to respond. [Update: Today the Alabama Supreme Court posted on its website an order confirming that Judge Davis was also subject to its mandamus ruling, but only after determining for itself (whether correctly or not) that Judge Granade’s injunction did not extend beyond those four licenses.]
So now the ball is back in Judge Granade’s court (literally), where a few things have happened in the wake of the Alabama Supreme Court’s order. First, Don Davis filed an emergency motion to stay Judge Granade’s earlier injunction “until after the U.S. Supreme Court issues its ruling” in Obergefell. Second—as Howard posted on Monday—the Strawser plaintiffs have filed a motion to amend their complaint to, among other things, certify a class action. (Here’s the proposed amended complaint, including the class action allegations) The amendment would add some additional plaintiffs, three same-sex couples who have been refused marriage licenses in either Mobile County or Baldwin County; it also would add Tim Russell, the Baldwin County probate judge, as an additional defendant.
The proposed plaintiff class is: “all persons in Alabama who wish to obtain a marriage license in order to marry a person of the same sex and to have that marriage recognized under Alabama law, and who are unable to do so because of the enforcement of Alabama’s laws prohibiting the issuance of marriage licenses to same-sex couples and barring recognition of their marriages.”
The proposed defendant class is: “all Alabama probate judges who are or may enforce Alabama’s marriage ban.”
There’s been no ruling yet on the class-certification question—nor have I seen any reports of what the timing will be on that. It’s worth noting, though, that Judge Granade herself suggested in an earlier order that “certification of plaintiff and defendant classes” could be proper in the event that probate judges who were not formally bound by her initial injunction refused to follow it. Alabama Attorney General Luther Strange—who is also a defendant in Strawser and was the subject of the first injunction Judge Granade issued—has filed an opposition to class certification.
Stay tuned. Also in Judge Granade’s court is another action brought by Cari Searcy, the plaintiff whose earlier case led to the initial ruling by Judge Callie Granade declaring Alabama’s same-sex marriage ban unconstitutional. Searcy and Kimberly McKeand were legally married in California, but the Mobile County probate judge’s action on Searcy’s petition to adopt McKeand’s biological son was “qualified in nature,” and he refused to issue a final adoption order “until a final ruling is issued in the United States Supreme Court on the Marriage Act cases before it.”
[Cross-posted at the Civil Procedure & Federal Courts Blog]
Tuesday, March 03, 2015
Alabama Supreme Court Enjoins Probate Judges from Issuing Marriage Licenses to Same-Sex Couples
As you may know (Howard has had some excellent coverage), we’re in the midst of a real-life fed-courts hypo here in Alabama as litigation continues over the state’s ban on same-sex marriage. There was another development this evening, when the Alabama Supreme Court issued a 134-page per curiam opinion enjoining Alabama probate judges from issuing marriage licenses to same-sex couples.
The ruling was prompted by a petition for a writ of mandamus that was filed earlier this month by two groups opposing same-sex marriage, purporting to be “relators” for the State of Alabama. The petition named four probate judges who had been issuing same-sex marriage licenses as respondents, and designated all other Alabama probate judges as “Judge Does ##1-63.” One of those Doe judges, Judge Enslen of Elmore County, sought to have the Alabama ban enforced and was redesignated as an additional relator-petitioner.
This evening’s order acknowledges that one Alabama probate judge—Judge Davis of Mobile County—is the subject of a federal injunction issued by Judge Callie Granade, who back in January had declared Alabama’s ban unconstitutional.
Here’s the full text of the order that appears at the end of today’s Alabama Supreme Court opinion:
The named respondents are ordered to discontinue the issuance of marriage licenses to same-sex couples. Further, and pursuant to relator Judge Enslen's request that this Court, "by any and all lawful means available to it," ensure compliance with Alabama law with respect to the issuance of marriage licenses, each of the probate judges in this State other than the named respondents and Judge Davis are joined as respondents in the place of the "Judge Does" identified in the petition. Within five business days following the issuance of this order, each such probate judge may file an answer responding to the relator's petition for the writ of mandamus and showing cause, if any, why said probate judge should not be bound hereby. Subject to further order of this Court upon receipt and consideration of any such answer, each such probate judge is temporarily enjoined from issuing any marriage license contrary to Alabama law as explained in this opinion. As to Judge Davis's request to be dismissed on the ground that he is subject to a potentially conflicting federal court order, he is directed to advise this Court, by letter brief, no later than 5:00 p.m. on Thursday, March 5, 2015, as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.
If you want to get up to speed on what’s been going on, you can find copies of all the important orders, filings, and other documents at the Civil Procedure & Federal Courts Blog.
Financing Higher Education
Thanks to Howard and the Prawfsblawg community for hosting me this month! For some time, I have had an interest in (or possibly more accurately, an obsession with) the question of how we fund higher education--and especially the ethical dimensions of that funding issue. I hope to explore some of those questions here this month.
Obviously, funding issues are very much front-and-center in the law school world these days--but many liberal arts colleges are facing even bigger challenges. Today Sweet Briar College announced that it will be closing at the end of this academic year, though it still has an endowment of $94 million. I thought the board chair's explanation of the decision to close raised an interesting point about the priorities of a nonprofit institution:
Paul G. Rice, board chair, said in an interview that he realized some would ask, "Why don't you keep going until the lights go out?"
But he said that doing so would be wrong. "We have moral and legal obligations to our students and faculties and to our staff and to our alumnae. If you take up this decision too late, you won't be able to meet those obligations," he said. "People will carve up what's left -- it will not be orderly, nor fair."
This is a courageous stand for the chair to take; there is a temptation for self-preservation even at the expense of the larger mission of the college. But even though I think that the board made the right decision, my heart goes out to the staff and faculty who will lose their jobs.
Monday, March 02, 2015
The Dress, Justice Holmes & Erie
What’s the half-life for internet-breaking social media sensations these days? It seems to get shorter and shorter, so I figured I should address #TheDress sooner rather than later. Is it White & Gold, or Blue & Black? For all the snark, memes, and celebrity tweets the dress has inspired, a crucial piece of historical context has been overlooked.
Ninety years ago, there was a kerfuffle in Bowling Green, Kentucky that bears striking similarities to the one that now threatens the marital harmony of Kim & Kanye. Back then, the dispute was between Black & White taxis and Brown & Yellow taxis. A federal lawsuit was filed that made its way all the way to the U.S. Supreme Court, where it prompted a strong dissent from Justice Holmes. Holmes attacked the majority for reading the 1842 decision in Swift v. Tyson to allow the federal court to disregard Kentucky law on the enforceability of a contract giving Brown & Yellow the exclusive ability to solicit customers at the Bowling Green train station.
To Holmes, the majority improperly accepted the “fallacy” that parties in federal court “are entitled to an independent judgment on matters of general law.” The Swift opinion itself—Holmes contended—was written by Justice Story “under the tacit domination” of this fallacy. Holmes explained:
Books written about any branch of the common law treat it as a unit [and] cite cases from this Court, from the Circuit Courts of Appeal, from the State Courts, from England and the Colonies of England indiscriminately …. It is very hard to resist the impression that there is one august corpus, to understand which clearly is the only task of any Court concerned. If there were such a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute, the Courts of the United States might be right in using their independent judgment as to what it was. But there is no such body of law. The fallacy and illusion that I think exist consist in supposing that there is this outside thing to be found. Law is a word used with different meanings, but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State ….
If a lot of these quotes sound familiar, it may be because Justice Brandeis used them liberally in Erie Railroad v. Tompkins, where he wrote the opinion overruling Swift. Black & White Taxicab v. Brown & Yellow Taxicab, in fact, was Brandeis’ Exhibit A for Swift’s “mischievous results.” And everyone from first-year law students to Supreme Court Justices have been struggling with Erie ever since.
While White & Gold v. Blue & Black may have temporarily broken the internet, Black & White v. Brown & Yellow helped to recast judicial federalism as we know it. But rest assured that if the White & Gold dress reincorporates in Tennessee so it can sue the Blue & Black dress in federal court, you’ll hear it here first.
[Cross-posted at the Civil Procedure & Federal Courts Blog]
Sunday, March 01, 2015
Recommending Highly The Black Box Society by Professor Frank Pasquale
This is my last post for this stint (my third) on Prawfsblawg and I want to thank again for inviting me Howard Wasserman and the others who are doing the work of keeping going what Dan Markel, ZT”L started.
I also wanted to share a very interesting, well-written and important book that I’ve been reading this month by PrawfsBlawg alumni @frankpasquale called The Black Box Society: The Secret Algorithms that Control Money and Information. (Amazon). Professor Pasquale is a professor at the University of Maryland Francis King Carey School of Law School of Law. In this book, Frank explains in clear, non-technical English what exactly is going on behind the internet technology we use every day. He explains how the sites we access on the internet are not just collecting information from us, but are selling it to others who are using that information in shaping the information we get back. So, and this among the more benign points, what you get when you run a Google (or other) search is probably very different than what I would. Google is not an automated index nor is a database like Lexis or Westlaw. Moreover, the information collected isn’t just shaping the advertisements we see on the screen, it’s controlling our access to jobs, credit, insurance, security clearances, and housing. As he explains, “you can’t form a trusting relationship with a black box.”
What makes the book of special interest to law professors is that it doesn’t just present the issue, it addresses the lack of legal restraints in the United States to regulate (or even monitor) the information private companies collect and the ways they use it. Frank makes a strong case, as he has in his scholarship, for the role of regulation not just in promoting transparency, but in regulating behavior. As he explains, “If credit scores can be regulated, why not the scoring systems used by digital advertisers and employers?”
Whether we directly use the internet to apply for credit, insurance or jobs, those offering these things to us have full access to extensive data about what we like, what we do, and how we are likely to behave. For example, they know whether we are willing to pay above market price for convenience. We are, he tells us, voluntarily opening our entire lives to commercial organizations who not only lack any obligation to keep our confidences, whose business model is to package and sell them.
While we were worrying about the government listening to our phone calls, we didn’t notice that “the state’s immense powers of compulsion and enforcement can now be enlisted in support of the black box technologies of the search, reputation, and finance sectors.”
I commend the book to you highly, as well as his NY Times Op-Ed overview but in the event you need more convincing, please see what others have said in Science, The New Republic, Slate, and The New York Times.
Tuesday, February 10, 2015
Brian Williams, Eye Witness Testimony and the Permeability of Memory
I have no idea after reading this article in the New York Times if Brian Williams does or does not believe that he witnessed the helicopter crash when he was actually nowhere near it, but I do believe, based on scientific evidence discussed in this post, that our memories are highly permeable. Things that we see and hear later can become part of what we think are events we actually experienced. In other words, our memory is not like a hard-drive or a camera where events are recorded. Instead, they are a creation of our imagination that recreates themselves every time we think of them. See this article in Scientific America for the details. In an article I’m preparing for the current submission season, I start with reference to the charming Lerner & Lowe song from Gigi where Maurice Chevalier and Hermione Ginglold compare conflicting versions of the first time they met—each equally sure they are right. And that’s the problem—our mind gives us memories as a seamless whole, we cannot perceive cracks or seams.
But what does this have to do with law? Well, Brian Williams will be fine whatever happens. However, the millions of people in the United States who have been convicted based on inaccurate eye-witness testimony are far less fortunate. Here at Texas Tech University we recently honored the memory of Tim Cole, a student at the university, who died in prison after being wrongly convicted of a rape based on now recanted eye-witness testimony.
Elizabeth Loftus, the research psychologist who did the most to make this phenomena known in the criminal justice community, describes here research in this TED Talk and her website at the UC Irving School of Law will lead you to her substantial body of work. My very favorite study showing how false memories can be created involves individuals who were convinced that they shook hands with Bugs Bunny at Disneyland (an intellectual property impossibility). Other legal scholars to check out are Mark Godsey at the University Of Cincinnati College of Law School, Sandra Guerra Thompson at the University Of Houston Law Center, Professor Brandon Garrett at the University of Virginia School of Law, Patricia J. Williams at Columbia Law School. For a compilation of materials see these collections put together by the Huffington Post and The Innocence Project including this piece by Barry Scheck highlighting a recent National Academy of Sciences report.
Monday, February 09, 2015
Measels--An Update and Some Constitutional Issues
So things are moving fast on the Measles front. Today I’m going to do a quick overview of mandatory vaccination for childhood disease and later this week what it tells us about our efforts to prepare for a bioterrorism event (spoiler, nothing good).
The measles outbreak has spread now to 17 states and the District of Columbia. And things are worse than they seem. The current “outbreak” (the number of cases that can be traced back to the original Disneyland exposure) signals how many people in the U.S. lack immunity not just to measles, but most likely to the other two deadly diseases which the MMR vaccine protects against—Mumps and Rubella (German Measles). For an overview of the damage done by Andrew Wakefield’s now discredited article see here. See how Megyn Kelly explains it here. Last year I gathered some resources specific to young adults, and they are here.
Rubella poses a serious risk to developing fetuses. According to the CDC A pregnant woman has “at least a 20% chance of damage to the fetus if….infected early in pregnancy.” This damage is called CRS-congenital rubella syndrome. Warning-you may want to take my word that this potential damage is serious rather than read this very descriptive CDC report . Mumps is also quite serious. Again a warning, it may be enough to know that the virus causes swelling in various body parts and can be a contributing factor to infertility or low fertility in a small but real percentage of men who become infected.
Moreover, it seems unlikely that MMR is the only vaccine these children lack. They are also at risk for polio, diphtheria, tetanus, whooping cough, chickenpox, hepatitis B(and no, it’s not just a sexually transmitted disease),meningococcal disease , and something really unpleasant for which there is now a vaccine—rotavirus. Here’s the list.
The public focus has turned very quickly to law and ending vaccination exemptions, see here and here, —so these are some resources if this comes up. Top legal experts like Professor Lawrence O. Gostin are making clear, there is no Constitutional requirement to exempt anyone from mandatory vaccination in the face of a credible threat to the public’s health. The Supreme Court in held Jacobson v. Massachusetts that the individual states have full authority to pass mandatory vaccination laws and that they are not obligated to give exemptions for reasons of philosophy or preference. For more background on the Constitutional issues see Prof. Parmet here, here, and here and Professor Edward P. Richards. The situation is a closer call when it comes to religion, but not much. As Justice Ginsberg points out in her dissenting opinion in Burwell v. Hobby Lobby, “Religious objections to immunization programs are not hypothetical.” 134 S.Ct. 2751, 2805, n. 31 (2014). And in terms of an adult’s right to claim a religious exemption from medical care for a minor, the law is if anything clearer. Even when making a “martyr” of oneself doesn’t pose a threat to others, a state still has the power to intervene when the religious belief is claimed on behalf of a minor. Here’s a helpful overview by the Congressional Research Service about vaccination laws in the US and here's one that looks at laws overseas.You may be interested to know that the CDC is tracing several outbreaks at the moment including Listeria monocytogenes from caramel apples and sprouts
Same-sex marriage comes to Alabama
Read the whole thing for reports and photos of same-sex marriages in Alabama (my favorite is the two African-American women posing with the white male judge who married them in Birmingham--maybe we have come some ways.. Roy Moore's Sunday gambit had mixed results; marriages are taking place throughout the state, although not in particular counties. Lawyers are preparing to file an action in federal court against the probate judge in Mobile asking for an injunction--exactly how this should play out.
[Update: Or not. The lawyers for a couple actually filed a Motion for Contempt and Immediate Relief against Judge Don Davis, probate judge in Mobile. But since Davis is not a party to the original action or subject to the original injunction, he cannot be held in contempt by this judge. All they had to do was file a new action, which would have been assigned to Judge Granade for a new preliminary injunction. This is insane.]
[One More: Marty Lederman reminds me that Judge Davis was originally a party to the case, but was dismissed with prejudice for reasons I cannot fathom, beyond, again, no one knows what they're doing here. But it is even less possible to hold in contempt a person who was explicitly dismissed from the case.]
SCOTUS this morning denied a stay in Searcy, from which Justices Thomas and Scalia dissented. In response, AG Luther Strange clarified that, while he is barred from enforcing Alabama's ban, he has no power to issue license, and that probate judges should consult their attorneys and associations.
Josh Blackman has some thoughts on Thomas's dissent. I may have more to say later.
Monday, February 02, 2015
First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this. It’s wonderful to see how what Dan started continues to grow and thrive.
Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.
As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland. My focus will be on legal issues, but lets start with an overview. As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here. Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home. This is a very helpful graphic. In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States. But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time. Globally, 400 (mostly) children die of measles every day, 16 die every hour. Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.
The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated. It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.
Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old. There are also counter-indications (more about them later) about who shouldn’t get the vaccine. Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before. Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection. And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.
The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state. Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation. Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.
To be continued.
Posted by Jennifer Bard on February 2, 2015 at 03:10 PM in Constitutional thoughts, Current Affairs, First Amendment, International Law, Law and Politics, Religion, Science, Teaching Law | Permalink | Comments (0)
Sunday, February 01, 2015
Managing Our Microbial Mark: Lessons We Can Learn About Pay for Performance From Ebola's Arrival at Our Shores
It has been a privilege to join you here this past month. I close out my month as a guest with some thoughts from my current research on pay for performance, coming soon to my SSRN page.
If you've seen any of the data on the apparent ebbing of the Ebola virus outbreak in west Africa, you know that the news is good. The incidence of new reported cases is reduced and, unlike the low reported incidence from this past summer, public health officials seem to have more confidence in these reported numbers.
What is even more interesting is that is hard to say exactly what combination of domestic, international, and community efforts is bringing the number of new cases down but it has been observed that, in some places, habits and customs changed faster than in others. Those able to improve health and sanitation as well as health and sanitation literacy faster were able to reduce incidence faster.
What can we, in the developed world, learn from all this? That hand washing matters in disease incidence and transfer? That communal pressure to improve things like hand hygiene can actually make a difference, even among the less aware and less motivated? That Ebola needed to be brought out of the shadows before incidence and transfer could be fully addressed?
I have been thinking about what our brush with Ebola at our shores tells us about our health care system and our own capacity to learn these lessons from the developing world.
Ebola’s presence, however limited, in American acute care facilities has brought to light the limitations of current infection control procedures in American hospitals. Yet little has been done to extend lessons learned from Ebola transmission to non-Ebola infectious disease control. In this, we have more in common with west Africa than we may think, where focus on a single disease often disrupts health systems. Here, a focus on one disease allows us to focus on specialty care for that disease alone, without placing that disease’s spread in the larger context of infection control failures in America’s acute care facilities.
Persuaded, on some level, that the proliferation of hand sanitizer dispensers will immunize us, we alternately confront our own worst fears of a “super bug" while managing to continue to participate in our communal lives, including the highly communal and congregate experiences of acute care hospitalization and nursing home residence much as we always have since the rise of these two peculiarly modern forms of health care institutions in the 20th century. And, yet, everything is changed.
More on this and many other topics at my own blog.
Wednesday, January 28, 2015
Primed for Change
It is hard to believe that it was just about a year ago that I blogged here about Prime Health Care's transition from a bit player to a major player in acute care hospital ownership. A lot can happen in twelve months, especially when you are on an acquisition binge.
Prime, you may recall, specializes in the acquisition and turnaround of financially troubled acute care hospitals. Prime operates 29 hospitals in California and eight other states.
I write today about Prime's proposed acquisition of six hospitals in the Bay Area, a subject that has produced both considerable heat and light. If California Attorney General Kamala Harris approves the Daughters of Charity acquisition, Prime will become the fifth-largest hospital company in the United States, based on revenue.
The California Attorney General's review of this transaction, as required by California Corporations Code section 5914 et seq. continues apace. Consistent with the statute, the public hearings have begun. Consistent with California politics, the letter writing campaigns have begun. You can see the public documents here.
I don't envy Kamala Harris. It could be that there is just no way to please everyone here. I have written another time about the strong reactions provoked by hospital ownership transfers and closings.
The Daughters of Charity want out of their debt and do not hesitate to assert that a closed hospital -- apparently their view on the likely outcome if the sale to Prime is derailed -- costs lives. The interesting thing about this approach is more isn't necessarily better. The SEIU opposes all Prime acquisitions. The problem with this is that it contemplates absolutely no place for a turnaround artist like Prime Health Care in acute care hospital markets.
It is important to remember that California is not a certificate of need state. No CON is required to enter the acute care hospital market nor to exit it. This can produce some utterly remarkable outcomes -- my personal favorite has always been the acute care bed arms race that raged in and around Redwood City a decade or so ago where the largest acute care bed players raced each other to launch their projects to build hundreds and hundreds of new acute care beds in close proximity to each other. Those familiar with the particular torture of a Redwood City to San Francisco automobile commute will appreciate that I used to observe that whoever lost the acute care bed arms raise could convert their million dollar plus per bed facilities to emergency housing for trapped commuters.
The political theater, of course, is outstanding. But do not be distracted from the exponential growth of Prime Health Care, a business model only destined to grow as health care reform's amplification of the movement of health care outside of not for profit acute care facilities continues.
Tuesday, January 27, 2015
Extending Unequal Second Amendment Rights
Stories like this one - a 62 year old African-American man is tackled to the ground in a Tampa Wal-Mart after a white man saw him bringing a (legal) firearm into the store - have me wondering how to think about the idea of extending Second Amendment rights in a world where we can pretty well predict, ex ante, that they will not be equally available to all citizens. We can reasonably expect this sort of citizen self-help given that a big part of the case for arming all citizens is that they'll use their guns to intervene before bad things happen. But given past experience, we can also expect that race will also play a part in whether police officers decide to stop citizens based only on their visible possesion of a firearm.
We already know that there is a vast privacy gap between African-Americans and whites in the sense that Blacks are far more likely to be subject to a stop-and-frisk than whites. (And it's hard to make the case that this gap is based on higher frequency of suspicious conduct when, for instance, we see that both New York and Philly police were finding contraband in well fewer than 10% of their street stops.) Then there's Driving While Black. I think it's fair to say that African-Americans and whites don't get equal benefit from the Fourth Amendment.
And that's a sticky problem. Under current law, there isn't much you can do except to change police conduct from within. Courts don't have a lot of sway. Evidence suppression doesn't work for people who aren't arrested and nobody can count on getting compensation for a fruitless search. That's why people like Michelle Alexander are looking to public debate and activism as a possible solution.
With the expansion of the Second Amendment, we have a chance to think more about the problem early on. Although many states have long provided easy access to carry permits, the new, more muscular Second Amendment will likely lead to an expansion of gun carry rights. But it seems likely that these new rights will not be extended equally. First, though the permits themselves will be granted using formally neutral rules, provisions such as prohibiting permits for convicted felons will embed historical racial disparities in arrest, prosecution, and conviction. Theres more, however. In my mind, the right to carry a gun includes more than the right not be convicted for doing so; it also ought to include the right to carry a gun and not get stopped and searched for doing so. In that respect, I fear we won't deliver equal rights.And those disparities only reflect the burdens imposed by the state. It doesn't even touch about the fact that private citizens may be unwilling to tolerate the equal extension of gun possession rights. As long as people consider African-American + gun as a crime in progress, which was the Wal-Mart case - a gun carry permit will never confer upon African-Americans the same freedom to carry.
So what to do? One possibility is to say: it's inappropriate to extend rights to one population if every population can't receive an equal benefit. The contrary view is to see the Second Amendment just like the Fourth Amendment: a right which society will have to struggle to enforce equally but which, given its constitutional basis, ought to be extended as far as possible immediately. (And of course most Second Amendment advocates will argue that there is no extension going on here - only a much-delayed enforcement of an existing right.) But is there a third way? Could we view it as a property right which is impaired when a person is subject to a search? Might there be a novel Fifth Amendment claim here? Could we impose a tax on guns that is used to fund a statutory compensation scheme? Is there a way, other than the exclusionary rule, to disincentive police over-reach? (Something like Richard Myers' Fourth Amendment Small Claims Court?)
This is all half-baked, but it's a problem that troubles me. I'd love thoughts.
Wednesday, January 21, 2015
Acoustic Separation and Immigration Reform
In Decisions Rules and Conduct Rules: Acoustic Separation in Criminal Law, Meir Dan-Cohen talked about the partial acoustic separation between criminal rules as understood by the public and criminal rules as understood by the courts imposing sanctions. For example, we believe that in some cases, a person committing a crime under duress is not legally culpable - and her conduct may be excused. But we don't want people running around factoring in this possibility of legal excuse into their decisions at the moments they are actually under duress. We want them to experience the full legal risk of their conduct at that moment so that we can conclude they really were acting under the most extreme pressure.
I give this background only by way of explaining the concept. My rumination today has a first cousin relationship to Dan-Cohen's framework.
I was struck by the decision of Republicans to take two approaches to immigration in their response to the President's State of the Union. To English speakers, Joni Ernst made no mention of immigration at all. That is the story the GOP wants to tell to its English language base. But the party also needs support from the Spanish speaking community as well. So to this pool of voters, Rep. Carlos Curbello stated in his Spanish language response, "We should also work through the appropriate channels to create permanent solutions for our immigration system, to secure our borders, modernize legal immigration, and strengthen our economy."
I imagine that this separation will be reasonably effective - if, perhaps, not deeply consequential. Acoustic separation is never complete, but most people don't dig that deeply into law or policy. While the policy wonks who read Politico now know that the GOP has two slightly approaches to immigration reform - one being silence and the other marking immigration as a priority - most voters will not. I'm not sure that Curbello's comments would have deeply alienated the GOP base - though I'm guessing that GOP speechwriters thought immigration wouldn't be a galvanizing issue for her English language listeners. Maybe they imagined it might even drive a few voters away. (Indeed, the GOP later flipped on whether Curbello's statement was the Spanish language response - though that flip itself was presumably largely invisible.)
I know that candidates and parties commonly frame issues differently in media outlets targeted to divergent demographic groups. Perhaps this was just a case of my own naïveté in thinking that was was such a thing as "the Republican response to the State of the Union". In any case, it foreshadows and highlights a fundamental challenge for the GOP over the next two years.
Monday, January 19, 2015
Bedside Collections Visits in the Emergency Room
Should acute care hospitals be prohibited from attempting to collect health insurance co-pays and other forms of co-insurance bedside in the emergency room?
There isn't actually that much to garner a laugh in Steven Brill's new book America's Bitter Pill, but his description of how medical debt collector Accretive Health sells its services to its acute care hospital customers brought a smile to my lips. First, this was because the "Accretive Secret Sauce" is bedside Emergency Room collection and second, because Steven Brill had apparently never heard of this practice until researching this book.
Just where has he been making visits to the ER with his children? It is reported that at least half of acute care hospitals nationwide have been charging upfront ER fees. We are on the cusp of an era of changing constraints on hospital debt collection practices, including a change to the rules about bedside debt collection in the Emergency Room. Most of the new rules focus on those who likely would ultimately be eligible for free or reduced care and how they are to treated pending that determination. But what about the Bruce Folkens of the world-- the ones who most likely will not be eligible for free or reduced fee care? Will upfront fees in the ER remain the rule for them?
After all, could it be that New York Presbyterian, whose expertise in resolving aortic aneurisms such as the one Steven Brill suffered and describes as the narrative framework for much of his book, does not engage in this practice? If not, is it because their post-Emergency Room discharge collection numbers are stronger than those of Fairview Ridges Hospital in Burnsville, Minnesota?
We'll never know because, like a great many important topics in Steven Brill's book, we only know the anecdotal, the one off event. So, let's pause and do justice to Steven Brill's account of Bruce Folken's several hour visit to Fairview Ridges Hospital in Burnsville, Minnesota for chest pain where, yes, a hospital employee asked him about his plans to pay the remaining $493 left on his annual deductible.
Bruce Folken's experience at Fairview Ridges Hospital was not unusual in several ways. First, chest pain is one of the most common reported symptoms that drives Emergency Room visits in the U.S. and Bruce Folken's outcome (a diagnosis of indigestion) is also not atypical. Second, it is further not unusual that ruling out a significant cardiac event does not come cheap for reasons that the rest of Steven Brill's book struggles to explain.
So, once Brucke Folken (described as half way through his visit and resting in bed with an IV) was ruled-out as an emergency cardiac patient, why the rush to obtain payment? Could it have been that the hospital has been monitoring its collection rate and noted that Emergency Room bad debt is a disproportionate share of acute care hospital bad debt? Of course, the fine line here is between bedside debt collection from those using the ER for genuinely emergent care and those using it for urgent or even routine care and Accretive has, more than once, found itself on the wrong side of that line. Bruce Folken's situation is right on the line -- perhaps genuinely emergent at the beginning but morphing into urgent by the time bedside debt collection was undertaken.
If this offends, perhaps it is because of the retrospective determination of the validity of use of emergent care under the prudent layperson standard or some other standard found in Bruce Folken's policy, but surely not in having a substantial co-pay outstanding at the time of an ER visit.
You see, this is a scenario that will only increase in frequency. More and more of us are enrolled in high deductible plans and the trendline points upward. So, of course there are now and will be many more Bruce Folkens among those of us with unmet high deductibles and Emergency Room needs.
Don't forget your wallet.
Thursday, January 15, 2015
Chasing the Dragon in the Shadow of the OX
The numbers are in and it is official: deaths from heroin overdoses in much of the United States have doubled in the past two years. Whether the heroin was injected or smoked ("chasing the dragon"), there is some evidence that, in many places, heroin has increased in both availability and purity in the same time period.
How to explain this?
One school of thought -- I'll call it the opiate demand substitutability school of analysis -- tracks the increase in heroin's popularity to the increased difficulty addicts are reported to be having in accessing oxycodone ("OX") in light of state and federal efforts to reduce prescription drug abuse. The street value of OX has increased (at least the street value of original formulation OX has increased, while the street value of OX in the resistant to crushing and snorting format has actually gone down) and there is anecdotal evidence from treatment centers for injectable drug users that the migration from OX to heroin is well underway.
Another school of thought -- I'll call it the progression of addiction through the population school of analysis -- is that prescription drug abuse, particularly in the 18-25 age group, is still rampant but the increase in heroin overdose fatalities demonstrates a cohort of aging opiate addicts moving through the progression of addiction, seeking an ever cheaper and more powerful high. This might explain the high demand for heroin of a purity previously not well known in the United States.
Whichever theory you subscribe to -- and some thoughtful addiction specialists subscribe to both-- the increased death rate from opiate overdose is data playing out as the back story to our ongoing debate over the wisdom and utility of providing naloxone (the antidote for heroin overdose) for emergency use. Some states have now approved the training of and distribution to first responders and lay people of naloxone for just this use.
But we are conflicted. Is naloxone a step toward condoning use? If the overdose death rate is lower where heroin is both safe and accessible, is naloxone's arrival just a further expression of our own ambivalence about treatment for addiction?
Tuesday, January 13, 2015
What should we infer about the health of our democracy if the major party nominees in 2016 are Jeb Bush and Hillary Clinton? Here are several possibilities:
1. Nothing, they're just the most qualified candidates.
2. Nothing, family dynasties are no different from the other kinds of political dynasties (relationships of mentorship and support, party hierarchies up which one moves, etc.) democracies have had since time immemorial.
3. An indirect worry: when the only viable presidential candidates are close family members of prior presidents, this is strong evidence that access to positions of power is not genuinely open to all citizens.
4. A direct worry: family dynasties are just flat-out inconsistent with democratic values.
I am personally torn between views #2 and #3, but a case could be made for all of them.
Monday, January 12, 2015
The Art of Saving a Life
Perhaps you saw the recent New York Times Arts Section review of the vaccination promotion campaign sponsored by the Bill and Melinda Gates Foundation. The campaign, as part of an international effort to raise funds to inoculate millions, has commissioned artists to interpret the "Vaccines Work" tag line.
The article was accompanied by the reproduction of three of the remarkable commissioned pieces, but it was Alexia Sinclair's tableau of a 18th century vaccination that caught my eye. A young boy is clearly receiving the innoculation from a bewigged doctor while the mother -- detached and yet attached -- sits apart and looking away from the tableau while also reaching out to reinforce the doctor's acts with an almost yearning reach of her hand. All of them sit in a fine 18th century sitting room, yet the carpet of grass and blossoms -- we are told of the artist's vision -- was meant to symbolize the virulence of smallpox. "It brings a fashion-y aesthetic to a virulent disease" the New York Times notes.
Smallpox is not pretty. But the asethetic of the Sinclair tableau is not exactly beautiful, more profoundly eerie. I wonder if it doesn't also tap into our modern anxieties about vaccination. It is, after all, an act of faith to vaccinate, then as now.
If you visit "The Art of Saving a Life" website you find Alexia Sinclair's tableau titled "Edward Jenner's Smallpox Discovery." Edward Jenner, sometimes known as the father of immunization, did not discover the smallpox vaccination, however. He was, rather, the first person to confer scientific status on the procedure and to pursue its scientific validation. Vaccinated against smallpox himself as a young boy, he spent some of his prodigious talents attempting to validate the mikmaids' truism that exposure to cowpox meant immunity to smallpox.
Seen from this perspective, eight year old James Phipps (Edward Jenner's first human subject) and Sarah Nelms (the milkmaid donor of cow pox for transfer to James Phipps) ought be in Alexia Sinclair's interpretation of Edward Jenner's smallpox discovery.
Wednesday, January 07, 2015
In Defense of Facebook Copyright Disclaimer Status Updates (!!!)
Every few weeks, it seems, Facebook unilaterally changes its terms of service, by providing something like actual or constructive notice to its members of the new terms. Often, the new terms offend people by making, or being believed to make, either privacy or licensing claims with respect to intellectual property posted by users. Sometimes, Facebook doesn’t even actually change its terms, a rumor just comes about that it has changed its terms (some “contracts” these are, that are spread primarily by rumor).* Invariably, a bunch of people then decide that, hey, goose, gander, if Facebook can unilaterally change the terms of our agreement by presenting new ones where, theoretically, a user might see them, then a user can unilaterally change the terms of our agreement by presenting new ones where, theoretically, some responsible party in Facebook might see them. Accordingly, they post Facebook statuses declaring that they reserve all kinds of rights in the content they post to Facebook, and expressly denying that Facebook acquires any rights to that content by virtue of that posting.
That’s not an obviously stupid notion, at least to the lay conception of how law ought to work (i.e., evenhandedly). But after each of these public convulsions, the wise heads of the media, blogosphere, and the like leap to service to reassure(?) the public that no, you can’t unilaterally change Facebook’s terms, even though Facebook can unilaterally change yours. (Just from the last few days, we have, for example, WaPo, CNN, Snopes, and Cnet.)
I’d like to defend the laypeople against the insiders (under the fold).
Let us assume that the media graybeards are right. I have my doubts, largely for the reasons expressed with great force by Radin (i.e., why should we pretend that the Facebook terms of service are real contracts in the first place, when that’s obviously nonsense?). But let us be conventional here, and assume that under the best interpretation of current U.S. contract doctrine Facebook does indeed have the power to set, and unilaterally change, the terms of service that apply to people who wish to make use of their intellectual property and server space, and that users do not have the similar power to set and unilaterally change the terms under which Facebook uses their intellectual property and personal information.
What, then, should we think about what’s going on in the heads of people who post the disclaimers as their Facebook statuses? Are they merely ignorant? Are they worse than ignorant---are they profoundly deceived about the nature of our legal system, like the “sovereign citizens” who believe they can immunize themselves from taxes by writing some magic words on their IRS forms?
To the contrary, I think the Facebook status-updaters reflect both cause for hope and cause for worry about our legal system. The cause for worry is that the system does seem to present itself as magic words. The Facebook status updates, like the protests of the sovereign citizens (but much more mainstream), seem to me to reflect a serious alienation of the public from the law, in which the law isn’t rational, or a reflection of our collective values and ideas about how we ought to treat one another and organize our civic life. Instead, it’s weaponized ritual, a set of pieces of magic paper or bits on a computer screen, administered by a captured priesthood, which the powerful can use to exercise that power over others. With mere words, unhinged from any semblance of autonomy or agreement, Facebook can (the status-updaters perceive) whisk away your property and your private information. This is of a kind with the sort of alienation that I worried about over the last few posts, but in the civil rather than the criminal context: the perception that the law is something done to one, rather than something one does with others as an autonomous agent as well as a democratic citizen. Whether this appears in the form of one-sided boilerplate contracts or petty police harassment, it’s still potentially alienating, and, for that reason, troubling.
And why shouldn’t they see the civil law that way? From the perspective of an ordinary citizen, when they interact with the civil law, it’s usually in the form of some more powerful party erasing, as Radin puts it, their rights. And contract law isn’t the only culprit, as many industries routinely pair one-sided contracts of adhesion with procured legislation that preempts state consumer protection law en masse, criminalizes otherwise ordinary uses of otherwise ordinary consumer goods, and allows more powerful parties to deny ordinary people a day in court. Does an ordinary consumer, who does not own a business or commercial property, ever have a good interaction with the law, one in which it’s used as a tool to make fair agreements with other people (the Hayekian conception of the common law, so loved by libertarians) rather than as a fence imposed by those who are more powerful to bound his or her world?
But the cause for hope is that those who post the Facebook magic words still seem to think that the law represents some kind of valuable reciprocity. Rather than viewing the power of legal magic words as one-sided, the way relative insiders like those linked above from the Post, CNN, etc., do, these outsider citizens imagine that legal magic words are two-sided, that they can turn around and use the same magic to reclaim their rights as those with control over money and power use to take them away.
It seems to me that this is a perception that we insiders should encourage, and that we should work to bring it about that that happy perception accurately reflects the world.
I also think that social science and legal scholarship should come together to investigate this alienation hypothesis. I might be totally wrong: maybe the combination of petty law enforcement and adhesive contracts are not the chief ways that ordinary people interact with the legal system. Or maybe I’m right about that interactional claim, but wrong about its implications for perceptions the legal system: maybe people do nonetheless see the legal system as a more-or-less fair way of ordering our common lives as well as creating a framework for private ordering.
* Incidentally, the comforting media reassurances that, "don't worry, Facebook isn't actually making any claims on your data," are, as I read its "data use policy," less than fully accurate. While it is true that Facebook does not claim ownership of intellectual property posted to the service, it does say the following:
While you are allowing us to use the information we receive about you, you always own all of your information. Your trust is important to us, which is why we don't share information we receive about you with others unless we have:
received your permission;
given you notice, such as by telling you about it in this policy;
or removed your name and any other personally identifying information from it.
As I read that passage, the "or" is quite fraught: it suggests that Facebook may use "your information" at will on (constructive) notice, regardless of whether it has explicit permission, and accordingly amounts to a claim of an unlimited license to reproduce, make derivative works from, and publicly perform any and all copyrightable material one happens to have shared with it on such notice. Imagine if I sent an e-mail to a movie studio telling it that as a condition of my allowing one of its DVDs to sully my computer, viewing the advertisements contained in its unskippable previews, etc., I claimed a right to share "its information" with others on mere notice!
Tuesday, January 06, 2015
Harvard Gets a Taste of Its Own Medicine
The transformation of the employer sponsored health care plans offered by Harvard University has hit the press. Heck, it was even discussed at AALS. Harvard has insulated its employees longer and more fully from the transformation -- begun before the passage of the ACA but accelerated by its implementation -- of its employer sponsored health insurance from a risk shifting to a risk sharing model. By this I mean that Harvard's employees are being introduced to a world of higher cost-share (deductibles, co-pays, etc.). Some Harvard employees are not happy at all.
I am agnostic on the question of whether Harvard ought single-handedly bear the cost of expanded health insurance. Conversations about Harvard's endowment are inherently fraught.
Regrettably, what has gotten less attention is the idea that Harvard might -- as some employers have -- embrace narrow networks in at least some of its offerings in order to offer a variety of plans that trade off choice and cost. The New York Times did note: "But Harvard’s ability to create such networks is complicated by the fact that some of Boston’s best-known, most expensive hospitals are affiliated with Harvard Medical School. To create a network of high-value providers, Harvard would probably need to exclude some of its own teaching hospitals, or discourage their use."
Oh, so much more could have been said. Harvard's teaching hospitals are, in fact, a leading contributor to health care inflation in Massachusetts, as the Massachusetts Attorney General's 2013 report on the matter amply demonstrates. The increased concentration of hospitals in Massachusetts, particularly those under the Harvard affiliated banner, has also played a significant role in high health care inflation in Massachusetts. And the proposed Partners Health merger, combining Harvard teaching hospitals with community hospitals has some people concerned that the post-merger entity will bring community hospitals under the Harvard teaching hospital reimbursement rate system.
If Drew Gilpin Faust were really serious about controlling health care costs for her employees, she might have to consider steering her own employees past Harvard affiliated facilities. But that may not pass the political laugh test.
Harvard may be learning what academic medical centers have been learning for a long time: it can be difficult to operate a medical center that serves your own employees at a cost effective price point, a bitter pill indeed.
Policing Part 3: Some Unoriginal Thoughts on Cost-Benefit Analysis
I hadn’t intended to start an extended debate about policing on this blog; the area isn’t even particularly within my expertise. But the very interesting discussion sparked so far, along with a story that I just saw and an experience I just had, have inspired yet a third (and hopefully a final) post on the subject. It’s a call for more open talk about the costs even of effective law enforcement, and has some remarks about race and class as well as about Singapore, below the fold. Nothing in here is terribly original (not within my expertise, remember?), but these are things we need to be talking about right now, in the context of the Brown and Garner killings and the NYPD slowdown. So consider this an attempt to steer the conversation toward territory well trod by others.
First the story. The Guardian just wrote a sort of urban profile of Singapore, focusing on the way that its extreme public order policies (chewing gum banned to keep it from littering places, etc.) underpin its low crime, prosperity, etc. This matches my very slight experience of the country—a few years ago, I was sent by a nerd camp program to teach a very short (days, not weeks) political science intensive to some middle-schoolers, and my impression of the country was one of almost overwhelming sterility. Much of the city was a giant underground shopping mall, everything was very, very clean, but very, very intimidating. I spent the entire time terrified that I’d teach the kids something a little too liberal, or thoughtlessly spit on the street or something and get arrested. This attitude of fear appears to me to be deliberately cultivated by the state. The first greeting I got from the Singaporean government was its infamous immigration form, which announced “death for drug traffickers.” Ghastly.
Second, the experience. Yesterday afternoon, I defended myself in a traffic ticket trial in Princeton municipal court. (It was a quixotic attempt to get the court to read a mens rea requirement into a crosswalk law. I lost. I may appeal.) As happens in municipal courts where almost nobody tries anything, I sat there for hours while the court ran through its entire docket of first appearances and warrants before getting to me. The most astonishing case up before mine was that of an early 20’s-appearing, neatly but not expensively dressed, Black man. He’d been picked up on an arrest warrant for a three-year old fine of about $600; since it was three years old, I imagine it was probably originally a much smaller amount and for something pretty minor, before the fees that get added when one misses a fine. He claimed that he’d simply not realized the fine was due, and that as he was a temp worker with inconsistent income, he couldn’t pay anything on the spot. However, he had just gotten an assignment, and would get his first paycheck in two weeks. Accordingly, he was confident he could handle a $100 month payment plan, beginning with the first payment in two weeks with his first paycheck. The judge accepted his payment plan, but scheduled his first payment not for two weeks from the date, but for the very next day, on pain of another arrest warrant. There was no evidence introduced about his ability to pay other than his own testimony, which seemed honest and believable to me; he seemed like a good guy and a straight shooter.
What the Singapore story leads me to think is this: let us suppose arguendo that things like the “broken windows” policies work, that aggressive enforcement of laws that I would consider petty really does make life better in a lot of ways—cleaner streets, and maybe even less serious crime. At what point is the marginal gain in things like cleaner streets and less crime outweighed by the marginal cost in things like conformity and fear? It seems pretty clear to me that Singapore has gone too far in one direction. New York obviously isn’t Singapore, but has it, too, gone too far? How would we tell?
What observing the guy picked up for the overdue fine leads me to think is this: what about the economic and social cost of broken windows-type policing (scholarly ref 1, scholarly ref 2, District Court opinion from last year finding racial bias in New York City stop and frisk practices; all three references just skimmed, no full endorsement intended)? And who pays that cost? The answer to the second question is obvious: people of color, who are profiled, and poor people, who have their lives disrupted by the costs that those of us with more money can easily absorb. And while the racial disparity is a product of our own disgusting racial politics and history, the class disparity is, I would suggest, almost a structural necessity—the rich have more access to private spaces to carry out acts that are punished in public but de jure or de facto decriminalized in private (or just hard to enforce behind walls); the very poor lack even the spaces to carry out basic acts that are de jure legal in private but criminal in public like drinking and urinating.
My crosswalk fine won’t disrupt my life. but what will happen to the young man who was ordered to pay today money he won’t have until two weeks from now? A temp worker who cannot come up with a hundred uncommitted dollars on demand is on the economic knife-edge, and so the judge’s order could easily cause extreme collateral damage. He might not pay it, in which case he’ll be under yet another arrest warrant, and could easily get hit with more fines, or get picked up again and this time lose a job because of the jail time. Alternatively, he could take unaffordable measures to pay for it. He could take out a payday loan, perhaps, rolling it over repeatedly and ultimately paying hundreds more dollars to the lender. He could skimp on rent, and risk getting evicted. He could skimp on car repairs or a car payment, and risk losing employment because of inadequate transportation. The point being that for the poor, being subject to a fine backed up with the power of the state in the hands of a compassionless judge can lead to massive collateral consequences. And criminal justice policies that subject everyone to a greatly increased risk of petty fines put those without the cushion to absorb those fines at risk of greatly magnified economic impact. This, too, is something that needs to be taken into account in any cost-benefit analysis of petty policing policy: how much crime reduction is needed to justify putting people into increasingly precarious economic positions this way?
Even if you think (as the unempathetic judge evidently did, and as I do not) that the man before the court was to rightly blame for not knowing about the fine, or for not having budgeted to pay it, these consequences go beyond the individual. As a society, is a little bit of public order worth having some of our members in more precarious economic positions? Poverty does not hurt only the poor.
Saturday, January 03, 2015
The Problem with Petty, Pedantic, Penny-Ante Policing
As a follow-up to yesterday's post, I'd like to say a little bit more about what seems wrong, to me, with pervasive small-fry/penny-ante policing, both in the form of “broken windows” and “stop and frisk” policies like those associated with post-Giuliani New York City, and with more naked attempts to use the petty criminal justice system for revenue purposes like we've seen in Ferguson and like critics of red light cameras and similar devices have been alleging for years. As a rule of law specialist, and someone whose thinking is moving more in the direction of the democratic rule of law this year, it seems to me that such regimes are highly problematic even if (in a hypothetical universe where we don't have America's race problem) carried out in a genuinely racially unbiased fashion. And they remain problematic even if it can be shown, as some commenters suggested in the prior post, that policies like broken windows actually reduce what I would like to tendentiously call "real crime."
To be clear, the concern is with laws that penalize ordinary behavior---behavior that many or most people do at least sometimes, either because that behavior is consistent with social norms (smoking a joint, not coming to a complete stop before turning right on red), or because it is easy to accidentally do the behavior (violate a complicated parking sign). And the worry is that such laws, when pervasively enforced, break the connection between genuine wrongdoing (in the sense of the violation of social norms, also in the sense of doing anything actually morally wrong) and negative interactions with the legal system. When the law routinely penalizes ordinary folks for doing things that ordinary folks in the community do, or hammers people with large fines for understandable day-to-day screwups, legal punishment stops looking like a consequence of doing bad things to others, and the law stops looking like an expression of our collective sense of how we ought to treat one another. Instead, it starts to look like a form of taxation, or a negative lottery, in the sense that the "lawbreaker" is one who just happened to have the bad luck to be in front of an official when acting like a normal person, and now has to pay the price.
Here's a silly case from a few months ago. Culver City, CA, had a notorious fifteen-foot high parking signpole with eight separate signs, some (but not all!) listing complicated restrictions. It hit the press, to public outrage and mockery, and the mayor removed it, promising to replace it with one that only had four signs. Now, there are a lot of things that might be said about this kind of rule. Were I cited under it, I'd probably try a due process defense. From a jurisprudential perspective, we might wonder whether it ran afoul of Fuller's dictum that a law should not be impossible to follow (I suppose the safest course would be to just read it as a really big “no parking, ever,” sign, but if the city wants to ban parking at a spot outright, one might think it ought to just do so openly). It also seems like the mayor's “solution” is small comfort—50% of insanity is still insanity. But what I really want to ask is: how should we expect someone who gets a ticket under such a sign to feel? Are they to understand themselves to have actually done something wrong? Will they finish their interaction with the legal system feeling well-treated or ill-used? Will they trust the next public official they see? Will they have any clue when they can legally park in the same spot next time? Will they even bother to try?
This isn't just about legal complexity. When the issue is serious, when the stakes are high, or when the regulated are sopisticated, legal complexity might be justified. And this isn't a brief for some kind of anarchism or thoughtless libertarianism. Rather, it's about harassing people and filling their lives with legal triviality: about when normal people going about their day-to-day business, like picking up their kids from school, are liable to negative lotteries inflicted by the police over things that, honestly, don't matter. Then, it starts to feel less like law and more like “swarms of Officers to harrass our people, and eat out their substance.”
Another illustrative case. Some years ago, a friend of mine was arrested for public drunkenness in New Orleans. Many will tell you that public drunkenness arrests are basically the tourist tax in New Orleans---so long as you don't wander out of the French Quarter, you're ok, but the clueless tourist who drunkenly stumbles a little too far out of the tourist zone gets (or got, at the time) about four hundred bucks in post-and-forfeit bail money as the penalty for not knowing the local norms. Such arrests are obnoxious enough as is---it's New Orleans, everybody's drunk, and the city survives off of the drunk tourist trade!---but this case was particularly bizarre, because, as I recall (and this was about a decade ago, so memory may embellish), she was arrested out of the back of a taxicab. She was drunk. She was in public. So she did what social norms as well as common sense suggest one is supposed to do: she called a cab to take her home. The officer saw her stumbling on the way to the cab, pulled it over, and arrested her. Tourist tax. But! Technically legal. Well within his powers.
Legal punishment ought to be seen as a consequence of genuine misconduct, not of bad luck. There are plenty of moral arguments for that claim, but perhaps most worrying is a pragmatic one: if day-to-day law on the streets becomes a negative lottery, it poses the danger of delegitimizing the system. Democratic law depends in extremis on democratic buy-in (just accept this for now; I'm trying to put together a book-length argument for it and related propositions at the moment): the people themselves are the ultimate source of legitimation as well as enforcement in a democratic legal system. If they become cynical about the legal system as a whole, and stop understanding it as an expression of their collective values, as a result of its visibly unreasonable or unjust impositions on their lives, then it ceases to be democratic. In sufficiently egregious cases, it might collapse; in less egregious cases, it might be maintained by sheer force of elites and the state, unhinged from ongoing democratic justification. Will a bunch of unfair traffic tickets achieve those horrible results on their own? No, obviously not. But they are a case of a larger phenomenon which, as a whole and if it becomes more pervasive, does threaten those results. And that seems to me to give us a good reason to oppose the sorts of things that the NYPD, out of the kindness of their temper-tantruming hearts, are currently not doing.
To be fair, taking such a position raises as many questions as it answers. We probably ought not to repeal all of the petty laws (every once in a while, someone really oughta get a parking ticket). And we can't leave it all to the discretion of police officers, because we know what happens when officials get too much discretion. So what do we do?
Until we discover a reliable way to actually control the abuse of on-the-ground official discretion—principal-agent problems, disparate information, we know the drill—it seems we have a trifecta of bad choices: repeal the laws, over-enforce the laws, or accept the price of discretion. Personally, the first option seems like the lesser evil. And, who knows—can social sanctions effectively keep the level of peeing in the street and parking in the disabled spot down to a dull roar even in the absence of punishment? Maybe the NYPD will help us find out.
Friday, January 02, 2015
Hello! And, the NYPD "Slowdown"Hi everyone---it's great to be here. This is my first Prawfs visit (hopefully of many), and I really feel like one of the cool kids now. Also, appearing here reminds me of Dan---he and I were in law school together back in the dark ages (my 15-year reunion is coming up in a few months---madness), and I remember when he started this blog years ago. Last saw him a couple AALSes ago in New Orleans---you are missed, Dan. Relatedly, I hope to see many of you at MarkelFest tomorrow @AALS. And if you have nothing else to do at 8:30am tomorrow morning, come see me being terribly intimidated on the same panel as Harold Koh and Judith Resnik, at the law and humanities section. But actually, word is that there's a Ferguson panel at the same time, which is obviously much more important.
For the next month, I'll be blogging about some of my crazy interdisciplinary stuff---there will be a lot of math-ey things, including a series of posts about game theory for legal scholarship, maybe even a post about algorithmic grade curving. I'm also considering other crazy interdisciplinary things (any requests?), including classical Athenian law (more important than you might think!), jurisprudence (of course), and the other stuff I do. And more frivolous things. Possibly live-blogging my attempt to defeat a traffic ticket in Princeton municipal court. I've written a bench memo. It includes a hypo.
Speaking of Ferguson, Eric Garner, etc.---I'd like to open a thread to discuss the NYPD "slowdown" in response to the Mayor's remarks about his fears for his multiracial son. According to media reports, the police have responded by refraining from citations and arrests "unless they have to," and, in particular, by drastically cutting down on arrests for things like open container and public urination, as well as tickets. (Presumably, they are also not arresting people for selling untaxed cigarettes.). Some journalists have suggested that this is cause for celebration, not dismay---that this slowdown will reveal that we don't need these kinds of trivial arrests, and that the city (with the possible exception of its bottom line, now missing the revenue from these kinds of citations) will be better off for it. I'm inclined to agree, and to wish for a smart economist to figure out a way to measure the impact of such things---of the (how regressive?) tax effect of such penny ante law enforcement, and the economic benefits of such "broken windows" policing against the costs it imposes to those targeted (and the second-order costs in lost productivity, lost consumer spending, etc.). Thoughts?
Thursday, January 01, 2015
Maybe The Knick Needs a Few Midwives
I am, I concede, an odd television fan. I probably spend more time reading about television than actually viewing it. I actually enjoy reading reviews of television programs that I have no intention of ever viewing. Occasionally, however, a review or series of reviews makes me want to see something for myself.
And so it was with "The Knick", a bravura Steven Soderbergh creation (now with its second season in production) -- a medical procedural set in a turn of the century New York City hospital. With almost its first scene a heartbreaking and gut wrenching failed cesarean section, whatever else The Knick represents, it is vivid. It is also somewhat clinically detached. Eventually we learn that the failed cesarian had been attempted unsuccessfully twelve times before by the same team. As one reviewer wrote, "The Knick uses historical distance to make sickness into something strange and unfamiliar, giving its doctors the aura of scientific adventurers." Adventurers they were. Later footage depicting brave experiments with unknown forms of anesthesia tip us off that the character of Dr. Thackery may, in fact, be based on extraordinary real-life surgeon Dr. William Halstead.
It would be an understatement to describe Dr. Halstead as an adventurer. I do have to wonder if the series does him justice in one important regard. Noone comforts the crying (very soon to be dying) young cesarian candidate as she is wheeled into the operating theatre in "The Knick." It is apparent she senses she is near death but it is unacknowledged, although it is clear the risk is grave.
Dr. William Halstead, in fact, stood for a new gentler surgical approach, recognizing roughly handled tissues were often lost. No less than H.L. Mencken noted "[h]e showed that manhandled tissues, though they could not yell, could yet suffer and die."
The critics' reviews on "The Knick" are mixed. For each "Steven Soderbergh Made a Gilded-Age 'ER' and It's Riveting" review there is an equal and opposite "Surgical Strikeout." "The Knick," it seems, suffers by comparison with PBS's "Call the Midwife" (soon to be showing its fourth season with a fifth in production). "The Knick" is being criticized for lack of character development when compared with the well-developed characters of both health care providers and patients in "Call the Midwife."
In all fairness, "Call the Midwife" has had far longer to develop the characters involved but these critics may have a point. Patients in "The Knick" are often unnamed, breathtakingly mute or near-mute. Patients in "Call the Midwife" may even serve as recurring characters, as they did in Jennifer Worth's memoir on which the series, through season three, has been based.
Some of this is a difference in perspective. Jennifer Worth has left us her personal, professional, and spiritual autobiography in her three volume memoir of her time in East London. Hers is a meditation on her personal transformation through service in a low income, low health literacy community. Over time, Jennifer Worth did not flinch to discuss the desperation of women with too many children and too little money. "Call the Midwife" is not for the faint of heart despite all those wonderful sepia colored images you may have seen of midwife Jenny Lee pedaling to a house call through the clotheslines of the East End tenements. The series itself is far grittier and Jennifer Worth's memoir grittier still.
We will see where "The Knick" takes us. Given that Dr. Halsted performed the first successful radical mastectomy for breast cancer in the United States, never mind transfused himself on the spot to save his sister's life post-partum, I can only imagine that more compelling drama is ahead. Oh, and did I mention he was a stickler for complete sterility in the surgical suite? I hope we get to see a more well-rounded presentation of this compelling, complex, and astonishing man.
And the mute young mother-to-be who never lived to grow into her role? She teaches us something as well about how the human touch, whether felt in carefully restrained surgery or attentive midwifery, can comfort and strengthen, even unto the last moments of life.
Thank you to my friends at Prawfsblawg for the opportunity to visit with you this month and for the opportunity to ponder things health law related.
Tuesday, December 23, 2014
"I've got a lot of problems with you people...!"
Today is one of my favorite made-up holidays: festivus (for the rest of us!) Somewhat amazingly, Festivus, the Seinfeld-inspired "holiday," has become a real thing in some places. According to that most-reliable source, both Wisconsin and Florida have displayed Festivus poles as part of their official winter holiday displays. Former Representative Eric Cantor apparently once held a Festivus fundraiser (although we can now see how that fared). This year, prominent politicians, such as Rand Paul, are finding their Festivus spirit, with Paul even hinting at a 2016 presidential run during his #festivus themed Twitter activity this morning.
So..air your grievances; engage in the feats of strength; and hope for a Festivus miracle!
Monday, December 22, 2014
The Dating Game
Dating is a personal issue – unless it involves the workplace or the classroom. In several law schools where I have worked, there are professors or employees who are happily married to former students, whom they began to date while they were students. Perhaps schools turn a blind eye because law students are adults – in contrast to undergraduate students – and, in theory, they are thus freer to make decisions about whom to date, much like people who date co-workers. But what about unwanted attention or a perceived inability to say no? An increasing number of companies and schools are instituting no-dating policies for these reasons. Should law schools follow suit?
Friday, December 12, 2014
Where's John McCain?
Much of the debate over the so-called "Crominbus" (a combination Continuing Resolution and Omnibus spending bill), which the House passed late last night, surrounds the last-minute insertion of a campaign finance provision that would raise the limits on individuals donating to political parties. The provision would gut the main portion of the McCain-Feingold law that is still standing after Supreme Court review: the ban on "soft money." Political parties used to raise unlimited amounts of "soft money," in return giving their wealthy donors access to legislators. The 2002 McCain-Feingold law largely put an end to this practice, and the Court upheld the provision in McConnell v. FEC.
The current spending bill would allow an individual to give over $1.5 million, and a couple over $3.1 million, to the Democratic or Republican party during a two-year election cycle. This is more than three times the current limit. The provision was slipped in at the last minute without any public debate. The new rule would fundamentally alter the scope of campaign finance by re-inserting the political parties into the fundraising business, potentially opening the doors to undue access once again.
Rep. Nancy Pelosi, as well as various campaign finance watchdog groups, have been vocally opposed to the measure. But what about John McCain?
Campaign finance reform used to be McCain's signature policy initiative. Partnering with Democrat Russ Feingold, his bill, which he worked on for years, in essence thwarted political parties from providing undue access to legislators in exchange for campaign donations. (The bill also strenghtened the ban on corporations and unions from making independent expenditures, which the Supreme Court struck down in Citizens United.)
As far I as can tell, McCain has been fairly mute on this aspect of the Cromnibus. He apparently said, before it was unveiled, that it would be "disgraceful" and "jammed full of shit." But I haven't found any statements from him since the campaign finance provision was made public.
One might imagine that McCain would be outraged. And his outrage could potentially influence other Republicans to vote against the Cromnibus package, although that of course would lead to the possibility of a government shutdown. Either way, it's curious that McCain has been relatively silent so far on this provision, which would severely gut the major piece of the McCain-Feingold law that is still standing. McCain has been one of the few legislators to understand the problem of entrenchment: the concern of legislators passing laws to help keep themselves in power. The current provision would help both of the two major parties. It is a pro-establishment rule. But it would mostly help wealthy donors and already-wealthy politicians.
Will McCain stick to his morals and speak out against this provision? Or has he become just another Washington insider?
Monday, December 08, 2014
State Judges and the Right to Vote
If you follow elections, you probably heard about the Supreme Court's last-minute decisions in the Wisconsin and Texas voter ID cases, stopping Wisconsin from implementing its ID law but allowing Texas to move forward with its law for the 2014 election. But unless you study election law, I bet you didn't notice the Arkansas Supreme Court decision invalidating that state's voter ID law, or the myriad other election cases state courts decide that affect the voting process.
But state courts are intimately involved in regulating elections, especially given that, unlike the U.S. Constitution, all state constitutions explicitly confer the right to vote. Indeed, to understand the meaning and scope of the right to vote, we need to study how state judicial decisions impact the way in which we run our elections. Below the fold I provide some details of my study of state judges and the right to vote.
This inquiry reveals some interesting trends.
First, state courts decide lots of cases on issues of importance, such as voter ID, felon disenfranchisement, the legality of voting machines, whether to keep polls open late, whether to count absentee ballots, and others. State court activity on voting rights is much more robust than federal court decision making in this area. Yet as legal scholars and as a society at large we tend to pay much less attention to state cases than to federal court decisions. Second, not surprisingly, "liberal" judges tend to construe the constititutional right to vote more broadly than "conservative" judges. Third, appointed judges are better than elected judges at ruling more broadly toward voting rights, especially for political minorities.
These gems--and others--fill up the pages of my new draft, State Judges and the Right to Vote. I'd be delighted for comments and thoughts on the piece. Here is the abstract:
State courts are paramount in defining the constitutional right to vote. This is in part because the right to vote is, in many ways, a state-based right protected under state constitutions. Yet our focus on state courts and on how state judges interpret the right to vote is sorely lacking. This article remedies that deficiency. It examines numerous state court cases involving voter ID, felon disenfranchisement, and the voting process, demonstrating that state courts vary in whether they rule broadly or narrowly toward voting rights. When state courts issue rulings broadly defining the constitutional right to vote, they best protect the most fundamental right in our democracy. On the other hand, state decisions that constrain voting to a narrower scope do harm to that ideal. Further, a preliminary analysis shows that liberal judges, as well as those who earn their seats through merit selection, are more likely to define the right to vote robustly as compared to their conservative and elected counterparts. Given that state judges impact our election system in significant ways through broad or narrow rulings on voting rights, we should advocate in favor of state courts and state judges who will broadly construe and protect the state-based constitutional right to vote.
Wednesday, December 03, 2014
Video does not prevent "another Ferguson"
A grand jury has decided not to indict a NYPD officer in the choking death of Eric Garner--an event captured on a cell phone video. Apparently the video "said" something to the grand jurors quite different than what it said to many other people who have seen it. That the chokehold maneuver is forbidden by department regs did not change anything. Nor did the fact that the officer used physical force against someone for selling loose cigarettes.
To the extent we hope video will create greater accountability, this result suggests maybe not--it obviously does not make an indictment more likely (it also is further proof that video would not have made a difference in the Michael Brown case). Nor is it likely to produce deterrence--police can respond with force to even the most petty misconduct. So bring on those body cameras; just do not expect them to change much.
Meanwhile, NYPD is preparing for the "potential contingency" of public protest, which of course means mass arrests and forcefully moving people off the streets.
Update: Nia-Malika Henderson at WaPo suggests the non-indictment hurts Obama's body-camera arguments. But she comes around to the right point--cameras are good, but they are not the solution and they will not alone achieve significant change.
Update II: This NPR story describes a lot of the developments over the course of the afternoon, including a "die-in" at Grand Central Station and the mayor canceling his planned appearance at the Rockefeller Center tree-lighting ceremony tonight, which may be a target for protesters.
Tuesday, December 02, 2014
Media, Op-Eds, and the Value of the "Extra" Things We Do as Law Professors
Today CNN published an article quoting me about the Kentucky law that prohibits Rand Paul from appearing on the ballot for both President and U.S. Senate at the same time. During the election season I published a few Op-Eds on various issues involving the electoral process. Beyond the shameless self-promotion, in this post I want to explore the value of law professors appearing in the "popular press." Why do some professors welcome media inquiries or write Op-Eds? And what value should our schools give to that activity?
In my view, there are several benefits to using the popular press to share our expertise. Of course, there's the inherent "wow" factor in seeing one's name in a major publication. But that's purely self-serving. I think there more signfiicant instutitional and prudential considerations for being quoted or writing an Op-Ed.
First, it brings publicity to one's law school. Especially given that I teach at a public institution, I believe it is my duty to explain complex election law problems to the general public. It provides institutional goodwill, giving the state's taxpayers some additional value for employing me.
Second, it helps expose more people to my work. In an age when judges and others question the value of legal scholarship, using the popular press shows the world how scholarship relates to the "real world" and can have an actual impact.
Third, I think it makes me a better scholar. When I have to distill a concept from a law review article into a quote or Op-Ed, it inherently makes me refine and shape the overall argument.
Fourth, it assists my teaching. Law students are generally not "experts," and one goal of classroom instruction is to explain complex topics in easy-to-understand ways. The more we practice this technique, whether in the classroom or in the media, the better we are at what is often a very difficult task.
But this discussion raising an intriguing question: what value should this kind of activity have in our assessments? It's not obviously teaching, scholarship, or service, although it fits in with all three activities. Should law schools value this activity more? Or is the inherent excitement of being known publicly as an "expert" enough?
I'm not sure. I engage in these activities because, as noted above, I believe it is my public duty, and because I think it makes me a better scholar and teacher. Plus, I have tenure now, so does it matter anyway?!
Sunday, November 23, 2014
Judicial Elections and Historical Irony
Last week I was privileged to participate in a conference in New Mexico on the judiciary. The debates and assigned readings focused especially on judicial elections (a new issue-area for me). There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).
“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states. This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).
With many judicial elections now under the shock of increasing party polarization, interest-group mobilization, and campaign spending, it seems likely that these calls to end judicial elections for the sake of judicial independence will only intensify. Yet one of the historical ironies I learned from the conference readings is that “judicial independence” was also the primary value that was put forward as the rationale for creating elected judges in the first place.
In the mid-nineteenth-century campaigns for an elected judiciary, however, the sort of judicial dependence that was especially targeted by reformers was judges’ dependence on state legislatures and associated party machines that had become corrupt or spendthrift (especially in economic development projects). It was hoped that a switch to elected judges would empower judges to reign in discredited legislatures, policing them for their fidelity to the state constitutions (“the people’s law”) while keeping judges accountable to the people through elections (and later, recalls).
The longer history of elected judges in the United States offers many other enlightening contrasts with today’s premises. (The stance of the professional bar towards the desirability of elected judges flipped over time. The dominant presumption about whether appointed or elected judges are the ones more likely to lean conservative or liberal also flipped over time…) For now, however, I only want to ask one question of this rich history—whether it makes plausible the possibility that, in some states, contemporary reform movements to eliminate elected judges will have unintended adverse consequences for democratic responsiveness and the separation (or balance) of powers between the judiciary and other branches of government.
My question is prompted--not by a preference for elective over appointive judiciaries--but by the historical scholarship that shows that the nineteenth-century push for elected judges was often packaged with—and used as a justification for—very substantial expansions of judicial power and very substantial curtailments of legislative power. Making state judges electorally accountable was supposed to make it safe to greatly expand the role of judicial review of legislation, and to give judges much more independence from the other branches in the terms and conditions of their appointments.
This new form of judicial accountability to the electorate even justified a judicial role in which judges were tasked to police procedural constraints on the legislatures, including rules that had previously been considered essentially internal to the legislature (perhaps—I wonder—starting to unravel some of the Anglo-American tradition of legislative autonomy and privileges that had taken centuries to develop). Meanwhile, this change in the role of judges may also have coincided with the decline of juries.
If much of the nineteenth-century judicial empowerment and legislative disempowerment was enacted on the premise of it being bundled with judicial elections, then I ask—if some states now revert to appointed judiciaries without also considering the larger package—do they risk an institutional imbalance or loss of democratic accountability in the legislature and executive? (Perhaps this question is already asked and answered somewhere in current policy debates or scholarship?)
It would be nice to think these structural matters of constitutional development tend towards equilibrium in some organic fashion. At the least, we can expect that state legislatures and executives will long retain the cruder sorts of tools for reining in abuses of appointed judges. Depending on the particular state, these might include decisions about judicial budgets, impeachment or removal of a judge upon legislative address, jurisdiction-stripping, court packing, or informal control of judges through the influence of political parties and the professional bar. Nonetheless, I find it just as easy to imagine that judicial empowerment at the expense of legislatures might be ‘sticky’, if never a one-way ratchet. Here I am influenced by the social science accounts that suggest that, around the world today, judicial power has been much expanding at the expense of legislatures. I am also thinking about the possibility that there may be institutional biases in some states against structural adjustments (like ’single subject rules’).
In theory, the public should have the capacity to ensure that one branch of government never gets too big or unaccountable. In the many states that are characterized by constitutions relatively easy to amend, constitutional change is, after all, supposed to occur more through formal amendment processes than through judicial interpretation. Even so, query whether such large structural questions lend themselves to retrospective scrutiny and popular oversight. (This is a real, not rhetorical, question for someone who has a lot more knowledge about the states and judicial reform movements than I now have.)
John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006)
John Ferejohn, “Judicializing politics, politicizing law,” Law and Contemporary Problems 65 (3): 41–68 (2002).
Jack P. Greene, The Quest for Power: The Lower House of Assembly in the Southern Royal Colonies (Norton, 1972)
Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard Univ. Press 2012)
G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (Stanford Univ. Press 2012)
Tuesday, November 18, 2014
Prior restraint: How far have we really come?
In a comment to my earlier post on the preemptive state of emergency in Ferguson, Steven Morrison asks whether an advance state of emergency and deployment of troops amounts imposes such an extraordinary chill on speech as to amount to a de facto prior restraint. I think the answer is no. But the point made me think.
In a current work-in-progress, I discuss Walker v. City of Birmingham, in which the Court held that the Collateral Bar Doctrine applied even to the First Amendment and even as to a blatantly unconstitutional injunction. Anticipating civil rights marches during Easter week 1963, officials in Birmingham got a state judge to issue an injunction that repeated, word-for-word, the text of the city's unquestionably unconstitutional permitting ordinance* and prohibited movement leaders from leading or encouraging marches without a permit. When the marches went ahead anyway, the leaders were jailed for contempt of court for violating the injunction. A 5-4 Court upheld the convictions, insisting that the long-held obligation with an injunction is to challenge the injunction directly or obey it (in this case by getting a permit).
* In dissent, Justice Brennan derided this process of converting an ordinance to an injunction as "inscrutable legerdemain."
So my answer to the question in the title of the post is that we actually are moving backward where public assembly and expression are concerned. As corrupt as the events and officials in 1963 Birmingham were, they at least went through the pretense of judicial process. Here, with the stroke of a single executive's pen, the possibility of protest--even without any genuine threat of unlawful behavior--has been declared an emergency and a threat to civil society, justifying deploying military force and turning Ferguson into a battle zone.
Can we really say this is more respectful of First Amendment ideals than what happened fifty years ago?
Sunday, November 02, 2014
A Republican Senate Majority and Partisan Conflict
As the New York Times editorial board observed recently, the prospect of a Republican Senate majority may make for even more gridlock in Washington. Other political observers think that we may see less obstruction, as Republicans assume greater responsibility for governmental decision making.
But whether or not Republicans in Congress should be held accountable, they likely will not be. Voters view the president as being in charge of the government and will reward or punish the president’s party accordingly. As Justice Robert Jackson wrote in Youngstown, the president is the “focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.”
At any rate, we won’t solve our gridlock by condemning the radical right. We will suffer from high levels of partisan conflict as long as we have a winner-take-all electoral system. As long as Democrats and Republicans can hope to gain control of the levers of power, they will fight for control.
If we want a bipartisan spirit, we need reforms that encourage cooperation rather than conflict. And the best way to do that is to ensure that political power is shared—and always will be shared—by elected officials across the political spectrum. We’ve recognized the need for power sharing across social divides in Afghanistan and Iraq. We should do the same for our own country. For more discussion along these lines, see here.