PrawfsBlawg

Is the Availability of the Insanity Defense Constitutionally Required?

Yes, or at least that's what an amicus brief I signed  argues in connection with whether cert in the Delling case should be granted. (And yes, my signature signals that the brief meets my Fallon-inspired standards for amicus participation.)

The brief argues to the Supreme Court that the very few (four) states without an insanity defense are in violation of the Constitution and that the problem is not cured by merely allowing challenges to the mens rea elements that are predicated on mental illness. The amicus brief warrants two short observations.

First, it's a very diverse (and present company excluded) distinguished group of legal academics who have signed on to it: from Slobogin the leading schmancy anti-retributivist (as well as a leading scholar on the issue of mental health and criminal law) to, well, a bunch of schmancy retributivists...

So, in addition to the brief's arguments, I hope the fact of who has agreed to sign this brief helps the cert petition generate the sustained attention from the Court that the issue warrants.

Second, the brief advances the claim under the due process clause, but I am told by Stephen Morse, the principal academic author of the brief, that the Eighth Amendment argument is also being advanced by Jeffrey Fisher and his team from Stanford's appellate clinic. I was glad to hear this since I think the Eighth Amendment is an equally clean doctrinal device to ensure that punishments are not visited upon those who were insane at the time of their crimes. For those two of you interested, I've given some reflection to the issue of the Eighth Amendment and the punishment of the presently incompetent. To my mind, much of what I wrote there -- in the Panetti v. Quarterman context -- that retribution cannot properly be inflicted on the presently incompetent -- applies squarely to situations in which someone was incompetent at the time of the crime's commission.

Public memorials and Penn State

Legal historian Al Brophy of UNC and the Faculty Lounge writes some interesting stuff on public memorials and monuments, particularly in the South. This has become the new locus of discussion at Penn State, as the trustees and others try to figure out what to do with the Paterno iconography that dots Penn State and State College. These include a statue, the family name on the university library, and a famous mural in town (the mural artist recently removed the halo from over Paterno's head).

The current sentiment on the Board of Trustees is to leave the statue, at least for now and pending a broader public discussion. I was struck by the comment of one trustee, who insisted "The statue represents the good that Joe did. It doesn't represent the bad that he did." Can they have it both ways like that? Can a monument to someone with a divided legacy (as Paterno now has) simply remain in place, pretending there was no bad? Do the trustees at least have to acknowledge in the public conversation that they are determining that the good Paterno did outweighs the bad and thus warrants keeping the statute (a reasonable position)? I actually don't particularly care what they do with the statue; I'm more interested in how the conversation about the statue honestly addresses that Paterno genuinely did something wrong and the statute represents that part of him as much as it represents everything else.

I am far more disturbed by the announcement that they are going to renovate the locker rooms and shower areas where some of Sandusky's assaults took place. While this has been described as an attempt to "erase the legacy of Sandusky's crimes," it also strikes me as an actual and symbolic attempt to erase the past in a way that covers the university's role in those crimes. I am not suggesting they have to turn the shower into a shrine or a museum. But their first response is to whitewash the crime scene and, in some sense, the evidence of their collective misdeeds. And to also get a shiny new athletics facility out of it, when the special treatment of athletics is a major element of this entire mess, is especially offensive.

[Update, July 18: Brophy, who happens to be in Pennsylvania, comments]

Boards of Trustees Irony

Penn State's Board of Trustees took a minor beating in the Freeh Report last week, criticized for failing to exercise oversight and to have in place procedures for gathering information from university officials, especially the President and General Counsel. This was tempered somewhat by the much sharper criticism of former President Graham Spanier for failing to keep the Board informed; Spanier is the real bad guy, so the Board's misdeeds are somewhat mitigated. The point is that Board is the potential white knight--had the Board known, it would have done s0mething at least in 2001 and perhaps in 1998 and many of these problems (and perhaps the further assaults of children) would have been avoided. In other words, the narrative  is we needed more active involvement by the Board of Trustees, which should have done more to check the President and to run the university.

Wait. Wasn't the narrative  of the University of Virginia mess (less than a month ago) that the Board of Visitors was meddling and interfering with the school's academic mission and that they should leave  Teresa Sullivan alone to run the school and not impose their anti-intellectual vision on the university?

Follow up on Pretrial Release Conditions

I've rec'd some interesting emails in response to the oped/post from yesterday on abusive pretrial release conditions.

Bryan Dearinger wrote to let me know of a paper he wrote about how Congress, in the context of sex offenders, has stripped away the judicial discretion to fashion appropriate release conditions. The paper notes that "a particular, undesignated provision of the Amendments requires that every defendant charged with one of an enumerated list of offenses be subject to a prescribed set of pretrial release conditions, even if the district court would find those conditions unwarranted during a bail hearing." The paper is forthcoming. I haven't read it yet and in truth I didn't know about these provisions until Bryan mentioned them to me.  I have to say, I'm intrigued by but not persuaded yet by Congress' approach here. As a general matter, I like judges to be given guideposts and constraints, but I wouldn't say that a mandatory imposition of legislatively concocted conditions is the smartest approach unless there were various procedural safeguards in place along with some kind of check in place to ensure that the government's intrusions were minimally reasonable. Anyway, I look forward to reading Bryan's paper.

I also received a couple emails from judges who identified with those folks we criticized, arguing in particular that addressing drug addictions or imposing curfews or alcohol consumption was an important component of ensuring public safety. FWIW, I can't speak for Eric off the cuff here, but my quick sense is that the cases mentioned by the judges I heard from are *not* related to our critique. We weren't saying such restrictions on alcohol or curfew or drug treatmen were never reasonably imposed. Rather we were concerned that they sometimes aren't related to the crimes or the offenders but were still imposed.

To use one example that is in the news: George Zimmerman. His claim of self-defense in the killing of Travyon Martin may be wrong or correct. But his shooting of Martin had little to do with alcohol abuse and there's no reason to think that Zimmerman is specifically more likely to commit more crimes if he has access to any alcohol or if he's able to eat dinner at a restaurant or shop for groceries after 6pm.  The imposition of a curfew or alcohol restriction on him is entirely unnecessary in terms of how it facilitates substantial reduction in flight risk or crime prevention. Indeed Judge Lester's court order specifically states that he doesn't think Zimmerman's a risk to public safety. So that leaves flight risk, and there's no connection to flight risks from curfews or a glass of hooch. (I suppose if the thinking is that lots of alcohol might lead GZ to think it's a good idea to flea, but then Judge Lester should simply prohibit more than 2 drinks within X hours in the day.)

Obviously, if a defendant has a history of drug- or alcohol-fueled or related crimes, then restricting his access to such substances is more easily explained in terms of crime prevention or risk to public safety. I wouldn't have a problem with ensuring some kind of response to drugs or alcohol (treatment, testing, etc) in those contexts because of the putatively tight causal connection between the substance abuse and the various resulting crimes. But in Zimmerman's case, there was no established tie b/w alcohol abuse or a penchant for mayhem at night that would have required such restrictions.  As mentioned above, the judge stipulated that Zimmerman wasn't a risk to public safety. 

By the way, Zimmerman's counsel has now asked to have Judge Lester be disqualified from the case. The brief is here, and to my mind, has substantial weight. Curious for others' reactions on this. I doubt O'Mara, GZ's lawyer, would have asked to disqualify Lester unless he thought there was strong grounds to do so, since it's a pretty high-risk tactic otherwise.

Not yet tried, and sentenced to Red Lobster

Eric Miller (SLU) and I have an oped in today's NYT on the quiet scandal of abusive pretrial release conditions. I've reprinted it after the jump. This is a piece that grew out of a some discussion here on Prawfs, and the next thing you know, well, acorns and oak trees and all that. My special thanks to Eric for being such an excellent co-author. (And while I have SLU on the mind, note that Anders Walker, Eric's colleague, has started a new blog on faculty productivity. It's called Faculty Flow.)

Btw, we tried to insert hyperlinks to your scholarship (really, all of you!), but the Times has a rule about capping hyperlinks. Odd. (And my sense is that this rule is actually, um, inconsistently applied. In any event, sorry about that.)

IN May, a federal judge ordered the pretrial release of an alleged robber on the condition that he read and write book reports for 90 minutes daily. Earlier this year, a trial judge directed a domestic violence defendant, again as a condition of pretrial release, to buy his wife flowers and take her out for bowling and supper at Red Lobster. And just last week, in Florida, a county judge’s new bail order forbade George Zimmerman, who claims self-defense in the death of Trayvon Martin, to drink alcohol or go out after 6 p.m.

Of course, these orders are not themselves grave injustices, but they all raise similar and serious legal questions. They spotlight a pervasive phenomenon hiding in plain sight: the abuse of bail and other pretrial release powers for punitive and rehabilitative purposes.

Before anyone is proven guilty in a court of law, the Constitution extends the presumption of innocence. That presumption is at odds with the kinds of pretrial conditions described above.

To be sure, the presumption of innocence is not a guarantee against pretrial detention or other restrictions on liberty. As the Supreme Court has acknowledged, a defendant’s pretrial freedom can, upon a hearing, be limited in various ways when it comes to addressing substantial and reasonable fears having to do with flight risk or danger posed to the community (or danger to the judicial process itself, like in cases of witness tampering). So we don’t dispute that defendants can be, say, monitored by tracking devices while they are released.

But flight risk and crime prevention don’t justify bail conditions requiring book reports or bowling, which have far more to do with punishments or moral education techniques. While such sanctions could be permitted after conviction, they are flat-out unjustified before adjudication.

The more peculiar the conditions, the more likely they are to garner media attention and public scrutiny. Indeed, an appellate court overturned the book reports decision last month (though on the grounds that the defendant should not have been released at all). Unfortunately, the vast majority of these improper release orders fly under the radar. Indeed, the use of bail conditions as a means of engaging in low-level punishment and rehabilitation is more widespread than is generally understood. Drug testing, desisting from alcohol, as well as attendance at rehabilitation programs and mandatory job training programs have become all-too-familiar requirements of pretrial release, even for cases, like Mr. Zimmerman’s, that are unrelated to substance abuse.

This judicial paternalism persists in part because state and municipal judges, who handle the overwhelming number of criminal cases, face less public scrutiny than federal judges. But a bigger problem is that there is no widely established right to counsel at the bail stage. Accordingly, the judge gets to interact directly with the defendant, without the interference of “pesky” lawyers. Even when defense lawyers are present, they don’t make a stink over these improper conditions to avoid the risk of having bail for their clients denied altogether. They figure that at least the defendants will get out of jail, rather than having to cool their heels inside.

It’s understandable for judges to want to attack the social problems they see in the criminal justice system. The problem — besides the obvious issue of assigning punishments to people who might not even be convicted of crimes — is that they are thinking up untested responses on a case-by-case basis. This leads to disparities and fragmentation of penal policy even within jurisdictions; increased scrutiny of suspects at a stage when they should be free to build their defense against the government; and an imposition of the values of the temperance movement on the criminally accused (since even lawful and moderate consumption of alcohol is frequently prohibited). Perhaps most disconcerting is how easy it becomes for regular people to violate these unreasonable bail conditions, which leads to unnecessary arrests and even more overcrowded prisons.

Pretrial release raises complicated legal and policy issues in every case. Still, our core concern is that many judicial release orders exhibit confusion about or disregard for the distinction between pretrial release and post-conviction punishment. Judges determining pretrial release are not authorized to act as social workers or agents of public retribution. They need to stop pretending otherwise.

Dan Markel is a law professor at Florida State University. Eric J. Miller is a law professor at St. Louis University.

 

Armstrong tries again

It only took a day from getting slapped down by a federal district judge to refile his lawsuit against USADA and its CEO, again with claims for tortious interference, common law due process, and Fifth Amendment Due Process. The new pleading is 25 pages and 82 numbered paragraphs--truly short and plain. This suggests that the original complaint was 55 pages and about 180 paragraphs of snark and vitriol.

I want to break down the Fifth Amendment claim because I do not believe it can succeed. I have been writing about state (and federal) action for the past few days, so this story links well to my current work. Here goes.

First, to the extent Armstrong is seeking money damages for the Fifth Amendment violations, this is a Bivens action. But the Supreme Court has in the past decade made clear that neither a private entity nor its employee can be subject to Bivens liability, at least where state remedies are available (as there are here--Armstrong is pursuing them in the same case). Now both Malesko and Minneci were Eighth Amendment claims involving privatized prisons, so maybe this is a different circumstance. But there is a good argument that Bivens now runs only against government officers and joint private-federal participation does not create constitutional liability against private persons as it does under § 1983.

Second, even if a Bivens action is possible, I doubt it works here. The complaint alleges four sets of facts aimed at showing joint private-federal participation; most of them do not work. I cannot make this case fit into any of the recognized tests for action under color of law.

    1) Congress was "instrumental" in creating USADA and USADA receives 2/3 of its funding from Congress. Nope. Receipt of government funds, even in large amounts, does not make a private entity a government actor. Think of how much money private hospitals get from Medicare and Medicaid.

    2) "Defendants exercise powers traditionally exclusively reserved to the State." Nope. Regulating sports is not a traditional government function, nor one it alone has historically done.

    3) USADA conducted its investigation of Armstrong in conjunction with several federal agencies, including DOJ, the FBI, and the FDA. The USADA's case is based on the evidence jointly gathered. This one is closer, because this type of joint operation can be sufficient to make a private actor public. The problem for Armstrong is that the connection must be between the government and the challenged conduct. Armstrong does not challenge the joint investigation itself; he is challenging USADA instituting internal procedures against him for doping. But the federal government plays no role in those procedures or in the establishment of the rules that USADA follows. That the adjuducation relies on government-gathered evidence is not sufficient.

    4) USADA has been delegated authority to regulate and monitor drug-testing, exercising an express power grant of Congress and carrying out federal treaty obligations. Again, closer, but I am not convinced. Mere delegation of power or authorization to act in some area, even to the point of having exclusive power, is not sufficient. Nor is the simple fact that the private entity is doing something the has public import. That USADA is ensuring that the U.S. complies with treaty obligation point is a nice fact, but I do not believe it is enough.

I leave discussion of the tort, contract, and arbitrability issues to smarter hands. In the meantime, is there something else I am missing?

Lance Armstrong gets sua sponte Twiqbaled

Yesterday morning, Lance Armstrong filed a lawsuit and motion for a TRO in federal court in Texas against the United States Anti-Doping Agency and its CEO, seeking to halt USADA's doping investigation. The lawsuit claimed tortious interference with contract and violation of Fifth Amendment due process. The lengthy (80 pages, 261 paragraphs), rhetorically loaded complaint derides USADA's "kangaroo court" and its belief that it is "above the United States Constitution, above the law, above court review, free from supervision from any person or organization, and even above its own rules." And those are the mild parts.

Upon initial review, I questioned the Fifth Amendment claim because I doubt USADA or its CEO acts under color of federal law (assuming the concept even still exists for private entities after Minneci). It certainly is not a federal actor based on the facts contained in the pleading.

In any event, we may have to wait a few days to find out. Yesterday afternoon, District Judge Sam Sparks sua sponte dismissed the complaint without prejudice. Judge Sparks said the complaint is "far from short" and the claims not "plain," buried in "excessive" rhetoric; the court was "not inclined to indulge Armstrong's desire for publicity, self-aggrandizement, or vilification of Defendants." He noted that "[c]ontrary to Armstrong's apparent belief, pleadings filed in the United States District Courts are not press releases, internet blogs, or pieces of investigative journalism. All parties, and their lawyers, are expected to comply with the rules of this Court, and face potential sanctions if they do not." A complaint, the court said, requires facts, not a "lengthy and bitter polemic against the named defendants."

This is an extraordinary order. I have written before about pleading as press release (Elizabeth Thornburg coined the term). The district court in the Duke lacrosse lawsuits took the plaintiffs to task for ther overly long and overly overheated complaints, but that was in the course of ruling on 12(b)(6) motions and was done largely in passing and as a reminder to the lawyers going forward. I have never seen a court preemptively and unilaterally reject a complaint for overdoing the rhetoric. Especially since, while Armstrong unquestionably was speaking to the sports media and the world, I am not sure the rhetoric here is so much more excessive than in many other pleadings I have seen.

I am not a fan of this sort of over-the-top pleading, but it is becoming more common. So while I am surprised by the order, I am glad to see a judge halting these practices. Perhaps this is judicial order as press release. Judge Sparks knows the world is watching this lawsuit and he is proactively seizing control over the case and making clear to the parties and attorneys that they litigate for the court, not for the press.

One final question: Did Judge Sparks go too easy on Armstrong's lawyers? He never even hints at sanctions, although we can see this dismissal as functionally equivalent to a non-monetary sanction imposed sua sponte. But the admonitions about following the rules and not using litigation for PR purposes seemed primarily directed at Armstrong, even though his lawyers (and he is represented by Patton Boggs and Williams and Connolly) obviously wrote that paper.

[Update: It turns out Judge Sparks has something of a reputation for radical-and-perhaps-inappropriate efforts to control what he sees as attorney misconduct. (H/T: Bryan Camp of Texas Tech)]

A couple must-reads

Vaguely apropos the end of my last post, I want to point you to Marshall Poe's wonderful new essay in Inside Higher Ed, which explores the moral imperatives toward open-access university press publishing. I think Poe's right on the money.

Less relevant to us as academics but more relevant as persons interested in plain justice and the veneer of law, you've got to check out this very interesting blog post (and what will be a series of posts on Obama's lethal presidency) by Tom Junod over at Esquire's politics blog. Junod's blog discusses the killing of Al-Alwaki's American son by drone missile and its putative legality.

Some of you know I favor a strong forward lean on terrorists and this seemingly endless war with the Islamofascists. (And yes, there's a personal component to it, having lost my childhood best friend to a pipe bomb on a Tel Aviv beach back in 1990. Discount or consider accordingly.) Nonetheless, ever since Charlie Savage's clutch reporting in the NYT has made clear to us the scope of the problem, I have been very disappointed by the secret legal reasoning that Obama has relied upon to warrant his selection of targets and his authorization of the killing of those targets, even when they're American citizens. I love so much of this country, but the idea that there's a secret document propounded from within the Executive branch that explains the rationale for killing putatively innocent 16 year old American citizens is abhorrent to those of us who cherish rule of law values about a knowable and known source of law.

I hope that those reading this blog -- those who (also) consider themselves friends of the Obama regime, and those who are his devoted political opponents -- will continue to press for transparency and accountability in this respect. It's one thing to say to suspected American terrorists, you're on our knock list unless you surrender peacefully in the next 15 days, at which point you can receive due process. A more modest approach is Junod's prescription: an ex post accounting of any dead Americans killed abroad by the American government. But we apparently have no hope under the current administration for such weak but non-trivial procedural protections ex ante or for ex post oversight. Instead we have a different regime altogether, one where it's permissible to kill American children abroad without any such notice and safe opportunity to surrender, and on grounds that are inscrutable to all outside the White House. Shame shame.  Obama can do better, and we deserve better as a nation. Pass the sunlight, please. And Republicans, feel free to use this as fodder for your daily foolishness scrums with the Dems too, but remember, what's good for the goose is good for the gander.

 

"The Fog of Law": Covering the Court

If, as some believe for varying reasons, the ACA decision will have limited precedential effect, perhaps its legacy will be on how the press covers the Court. For one thing, we have the seemingly unusual number of leaks in the immediate aftermath of the decision. For another, we have the rush to report the result as quickly as possible, leading to the famously incorrect initial reports by Fox and CNN that the individual mandate had been invalidated. Tom Goldstein has this lengthy rundown of the nine minutes from when the Chief began reading the opinion from the bench (at which point the Court's Public Information Office began distributing the opinion) until CNN corrected itself.

As Goldstein describes it, it was quite the ride. I was particularly intrigued by several things in the rundown: 1) His description of the information gap at the White House and that, for a while, the President knew less than much of the country; 2) the nice media ethics question of whether Fox or CNN screwed up or whether this is just how immediate reporting should go, with the key being their willing to quickly self-correct; 3) the way social media, even when connected to a larger news organizations, has a life of its own--news organizations were holding off until they got it right, but their own Twitter desks were reporting something; and 4) the way some SCOTUSBlog commenters were mad at the Blog reporters when their conclusions conflicted with Fox and CNN (Tom describes them as insisting that Fox and CNN were res judicata on other sites). Finally, the Fox anchor began the process of correcting the network by saying reports are coming in the "fog of law"--that is a fantastic title for an article, name for a legal blog (if Dan someday boots me off here, you know where to find me), or both.

I continue to believe this was a unique case in terms of the number of people (and not just lawyes, politicos, and other over-educated geeks) paying attention to a a case with a known date of decision, so maybe this remains sui generis. Still, Goldstein offers some suggestions for both the news outlets and the Court itself for handling future cases.

Interestingly, the one thing Tom does not mentin is cameras in the Court. Wouldn't it all have been so much easier and more accurate if there had been live video and audio of Roberts reading his summary from the bench? Everyone could have waited and watched it play out in real time and gotten the answer directly from Roberts himself. Relying solely on the press (and other information outlets such as SCOTUSBlog) as intermediaries is problematic when the race to be first results in fundamental mistakes, no matter how easily correctable and ultimately harmless.

Inappropriate Judicial Sanction Order Following Lawyer's Selective Prosecution Argument?

I read a fairly remarkable sanction order this week from the Southern District of Texas. In U.S. v. Ray Marchan, the court publicly admonished defense counsel for arguing selective prosecution to the jury on the basis of race, because the court found the argument baseless. Moreover, the court warned other attorneys of serious sanctions they may face if they improperly argue racial discrimination. News reports on this order can be found here, here, and here. I also reviewed court filings through PACER. I am troubled by the overall tone and message of this order.

Some detailed background may be helpful. Ray Marchan was prosecuted in federal court for bribery offenses involving a Texas state judge. During summation at trial, defense counsel suggested selective prosecution because his client is Mexican-American and a similarly-situated person who is white was not prosecuted:

“On the record, this [non-prosecuted] man is a better lawyer than most of us. He went to the FBI without a lawyer, by himself, admits he gave money to [Judge] Limas, and they still don’t charge him with a crime? [The FBI agent] is God now? He can tell when it’s a bribe and when it’s a loan? Or is it the color of his skin? My client is Mexican. [The non-prosecuted] person is white. What is it?”

According to the prosecutor’s subsequent brief, defense counsel during this argument “motioned to the color of his own skin and then pointed directly at [the FBI agent].”

The court prevented counsel from continuing with this argument, and directed counsel to identify his evidence that the grand jury was racially motivated. Counsel started to explain that his claim did not involve the grand jury, but the court repeated its direction. Counsel said he had no evidence of racial bias in the grand jury. The court next asked counsel for his evidence that the prosecution team, by name, was racially motivated. When counsel started to respond, “The only thing is the … ,” the court interrupted, “Tell me, do you have any evidence?” Counsel replied, “I do not, sir.” The court directed counsel to file a show-cause brief “telling me why you shouldn’t be sanctioned for that argument.”

Defense counsel’s brief did not retreat from the selective prosecution claim. Rather, counsel acknowledged that he should have raised this issue with the court and not the jury, and he apologized for this error. Counsel added that his argument, “although done in error, was done in the spirit of zealously representing his client and not with the intent of offending the Government or the Court.” The prosecutor’s brief responded, “Defense counsel’s brief dilutes the serious nature and far-reaching consequences of his comments. [Defense counsel], in no uncertain terms, accused the government—including members of the prosecution and the investigating agency—of being racists, and did so publicly in Federal Court … Defense counsel, with his accusations of racism, crossed the line from zealous advocate to inflammatory rabble rouser.” According to the court’s order, the prosecutor also argued, “lead counsel for the government and the judge presiding at this trial are Caucasian as well, and I think that was a stab at both.”

The court’s order found that defense counsel “baselessly” argued selective prosecution. The court reached this conclusion in part by counting the number of persons with Hispanic-sounding surnames on the grand jury, the petit jury, the investigation team, and the prosecution team, and inferring an absence of racial motivation from this fact. The court further identified three major concerns resulting from this assertion of the “race card”: (1) A baseless claim of racial bias “demeans the claims of those who have actually been the victims of real discrimination”; (2) A baseless claim of racial bias can divide a community and damage personal and professional reputation. “Unfortunately,” the court observed, “there are those who thrive by sowing racial disharmony”; and (3) to prevent loss of public confidence in the justice system, a lawyer has a “duty to preserve and protect the integrity of the judicial process that distributes justice.”

The court thus directed defense counsel to apologize to the prosecution in writing. Moreover, the court warned, “[i]n the event of a future transgression by any attorney, this Court will consider all of the many remedies and/or sanctions that the rules contemplate. Counsel should not assume that this Court will in the future allow each lawyer ‘one free bite.’” (emphasis in original)

I of course agree that attorneys, including criminal defense lawyers, should pursue responsible, evidence-based arguments. I also agree that a bad faith allegation of racial prejudice unfairly can harm individuals and the legitimacy of the justice system.

But the court’s extensive public sanction of defense counsel, and warning to other lawyers, also may reflect a troubling “colorblind” trend of people aggressively personalizing and shaming frank talk of race, absent clear proof of discriminatory motives. This concern really came to mind when I read a particular passage in the court’s order that preceded the court’s warning about future sanctions. Noting that “the Court is not easily offended,” the court continued:

“The undersigned, if asked to describe himself, would use words like: husband, father, Texan (not native, but got here as soon as he could), American (and proud to be) and Christian—not necessarily in that order. It would never occur to the undersigned to describe himself or any other individual by using racial terms.”

One could infer a lot of implicit privilege and assumptions from this passage. But here’s how I thought this passage fairly could read as a direction to lawyers: As legal professionals, we publicly and proudly may discuss marital and parental status, nationality, regional affinity, and religious identity. But tough talk of race, well, you had better not go there absent evidence proving good cause to raise that subject. Otherwise, you are the racial offender, and you will be sanctioned.

My question for readers: We often have to err somewhere when we draw lines—too much or too little in favor of something. Does this order err too much on the side of avoiding “baseless” allegations of racial prejudice, particularly in a criminal justice system so heavily afflicted by racial disparities?

Signing Off and Remembering Andy

Multitasking has its limits -- especially in the midst of a major move. As I prepare to head south to Savannah Law School, I wistfully regret not having more time to post on Prawfs during the month of June as frequently as I would have liked, but, as always, I enjoyed my stay. This time around, I'd like to sign off with a posting dedicated to the late and always wonderful Andy Griffith. His first film, A Face in the Crowd (1957) is featured in Advocacy to Zealousness, but Griffith is best known as a fictitious television sheriff and lawyer. Whenever I watch A Face in the Crowd, I think about Griffith's wonderful range as an actor and artist, and how he was celebrated for only a small portion of what he was capable of conveying on the big and small screens of film and television, respectively. Having experienced Griffith as Lonesome Rhodes makes me see Andy Taylor and Ben Matlock a little differently -- with an increased awareness of the depth beneath the surface of affability, and a realization of Griffith's strategic choice to go further in his career by staying in second gear indefinitly rather than shifting to fourth for a brief several miles. He personified some of the most beloved characters related to law and order in popular cultural history. Much like Lonesome, yet in a vastly more positive and productive way, Griffith read his audience and went with what they wanted, what "worked" for the long haul, and he seemed to be at peace with his decision to embrace his "brand" throughout his career. Do we also do this as law professors, or do we continue to stretch and grow throughout our careers? If you've ever shown a Griffith clip in class, which one(s) did you use?

How Not to Criminalize Cyberbullying

My co-author Andrea Pinzon Garcia and I just posted our essay, How Not to Criminalize Cyberbullying, on ssrn.  In our essay, we provide a sustained constitutional critique of the growing body of laws criminalizing cyberbullying. These laws typically proceed by either modernizing existing harassment and stalking laws or crafting new criminal offenses. Both paths are beset with First Amendment perils, which our essay illustrates through 'case studies' of selected legislative efforts. Though sympathetic to the aims of these new laws, we contend that reflexive criminalization in response to tragic cyberbullying incidents has led law-makers to conflate cyberbullying as a social problem with cyberbullying as a criminal problem, leading to pernicious consequences. The legislative zeal to eradicate cyberbullying potentially produces disproportionate punishment of common childhood wrongdoing. Furthermore, statutes criminalizing cyberbullying are especially prone to overreaching in ways that offend the First Amendment, resulting in suppression of constitutionally protected speech, misdirection of prosecutorial resources, misallocation of taxpayer funds to pass and defend such laws, and the blocking of more effective legal reforms. Our essay attempts to give legislators the First Amendment guidance they need to distinguish the types
of cyberbullying that must be addressed by education, socialization, and stigmatization from those that can be remedied with censorship and criminalization. To see the abstract or paper, please click here or here. 

 

 

So, did John Roberts Succeed? Some thoughts on being too clever by half.

Thanks to Dan for having me back!

Though I'm not sure I can add much useful insight to the polyphony already out there about the Supreme Court decision in the Affordable Care Act case, the question that's moving me to blog, now that we're a few days out, is whether Chief Justice John Roberts in fact succeeded in his ostensible goal--that is, convincing the nation that this was not a politically or ideologically driven decision and that the Supreme Court is not a political/ideological institution.

Obviously, the disposition of the case did not ultimately break down on ideological lines. No one can dispute that. But at the same time, from this postgame perspective, Roberts's rather cunning opinion appears to me to be more politically driven than it would have if he had just voted with the conservatives. 

 

First, it's pretty much an accepted fact, among legal academics and, I'm guessing, the public at large--especially after exposés like this one on Roberts's "switch" in time--that the decision was crafted primarily (or exclusively) to achieve Roberts's political goals. Second, it is pretty unpersuasive from a doctrinal perspective. And third, it is almost Marbury-like in its simultaneous giving-and-taking-away of authority from the political branch. 

Ultimately, I doubt the opinion itself will have much staying power--which is another way in which it, ironically, resembles Bush v. Gore (the type of precedent Roberts was presumably trying not to re-create). I guess I just wish that Roberts had done the right thing by, well, doing the right thing--not by crafting the most politically cunning decision since Marbury v. Madison.

 

Emboldened Democrats Move to Pass "Broccoli Tax"

In the wake of their victory in NFIB v. Sebelius, the Obama Administration and its allies in Congress are looking to build upon health care reform by encouraging healthier eating.  In a press conference held after the Supreme Court's decision, President Obama endorsed legislation to mandate the purchase of vegetables, particularly broccoli, by all Americans.  The bill would require the purchase at least three pounds of broccoli each week, as well as one pound of broccoli for each dependent.  (Parents would have to buy broccoli for their children up through the age of 26.)  Those who do not buy sufficient broccoli will have to pay a fee for the equivalent amount to the federal government.

In promoting the new legislation, President Obama also unveiled a plan for "food exchanges" where Americans could buy their vegetables from private retailers on state-sponsored websites.  "These health initiatives, when combined with exisiting programs like ChooseMyPlate and Let's Move, will not only insure a healthy America, but they will also reduce the deficit by bringing down health care costs."  The OMB estimated that the broccoli mandate will save the U.S. $320 billion over the next decade.

The president refuted Republican claims that new taxes were being imposed.  "It's not really a tax," said the President.  "For us to say that you’ve got to take a responsibility to eat healthily is absolutely not a tax increase.  What it’s saying is, is that we’re not going to have other people carrying your burdens for your diet of Red Bull and Cheetos."  

Senate Democrats, however, acknowledged that the mandate could act as a tax.  "I can't imagine anyone would not want to buy broccoli -- it's delicious!" said Senator Schumer.  "But for Supreme Court purposes, the fee for not buying broccoli is a tax.  It's definitely not a penalty."  The Senate version of the bill would require the fee to be paid in pennies at the IRS office in Anchorage, Alaska.  Schumer called such a process "a relatively normal means of taxation."

Presumptive Republican nominee Mitt Romney vowed to repeal any effort to mandate the purchase of healthy vegetables such as broccoli.  Reporters questioned him about his Massachusetts brussels sprouts program that was enacted during his term as governor, but Romney claimed that the two were quite different.  "States are free to propose vegetable-eating initiatives," Romney stated.  "But for the federal government to do this violates our fundamental maxims of liberty.  Will kale be next?  Nobody likes kale."

The ACA and the Marbury Meme: Two Reactions

In light of the e-forrests being felled over today's Supreme Court decision re: the Affordable Care Act, I'm loathe to say much of anything, both because (1) life goes on; and (2) we're reaching that point in the proceedings where everything has been said, it's just that not everyone has said it.

Nevertheless, I wanted to interject two brief rejoinders to one of the memes lurking in the (ever-proliferating) analyses of today's decision--i.e., that Chief Justice Roberts' majority opinion was a political masterstroke (a la Marbury v. Madison) insofar as it allowed him to save the Court while "gutting" the Commerce Clause; or, on different terms, that "supporters of limited government" lost the battle, but may have won / be winning the war. Examples of the former include Larry Solum @ LTB and Tom Scocca @ Slate; examples of the latter include Ilya Somin @ SCOTUSblog and (I'm sure) lots of others I haven't read. Whether this narrative is coming from folks trying to put a positive spin on what to them is a disappointing result or otherwise, I suspect it's going to be one of the common themes in the more studied post-morterms, and at least initially, I'm not convinced:

1. NFIB Isn't Another Marbury. Leaving aside the fact that the case name just doesn't roll off the tongue the same way, I have a hard time seeing much in the Chief's opinion that resembles Marbury at anything other than a hopelessly abstract and superficial level. For starters, Chief Justice Marshall's masterstroke in Marbury was expanding the Court's literal power in a manner that didn't require him to rule against President Jefferson--to the contrary, striking down section 13 of the Judiciary Act of 1789 deprived him of his authority to rule for the side with which his politics were sympathetic. The Federalists didn't win in the long-term; the Court did. Nothing in NFIB v. Sebelius, in contrast, expands the Court's jurisdiction beyond where it stood yesterday, or its unquestioned power to invalidate state and federal laws that are inconsistent with the Constitution (see, e.g., the joint dissent).  Although the Chief's opinion surely has institutional value (insofar as, in the eyes of many, it maintained the Court's legitimacy), I dare say that nothing is true about the Court as an institution tomorrow that wasn't true yesterday. And whether NFIB ends up as more of a boon to Democrats or Republicans, it's hard to see how the Court wins in the long-term from today's decision in any way other than because it didn't lose--avoiding the enmity and bitterness of a jaded and disappointed progressive community. 

Some might respond that the analogy to Marbury isn't about institutional power, but rather doctrinal misdirection: Hiding important substantive law behind a decision that seems to come out the other way, so that the Court achieves substantive results in the long-term that institutional concerns prevented it from claiming more immediately. Thus, Scocca, suggests, "Roberts' genius was in pushing this health care decision through without attaching it to the coattails of an ugly, narrow partisan victory." Even if this were a fair reading of Marbury (does anyone besides Federal Courts nerds actually care in the long term about Congress's power over the Supreme Court's original jurisdiction), it assumes facts not in evidence about NFIB, specifically that the Chief's Commerce Clause and Spending Clause analyses will have significant weight going forward.  That brings me to...

2. It's Spending, Not Commerce, That's Going To Matter. The assumption behind this entire narrative is that Chief Justice Roberts' majority opinion materially advances the ball with regard to constitutional limits on the Commerce and Clause, and is therefore a strategic, if not tactical, victory for those opposed to expansive views of the federal government's regulatory powers. Although I think there's a lot to this claim with respect to the Spending Clause, I'm far less convinced re: commerce. After all, (1) there's a non-frivolous argument that the Commerce Clause analysis is dicta (I just don't buy the necessary-to-the-result analysis); and (2) even if it is a holding, I can't think of a single other statute (or widely discussed proposal) that is vulnerable to the narrowly circumscribed Commerce Clause problems the Chief identifies in his opinion. Corey Yung is unquestionably right that there are lots of quiet penalties for inactivity in federal law. But few that look just like this--that was the whole point, remember? So might today's decision affect how Congress legislates going forward? Sure. The next time Congress wants to take an unprecedented step to require Americans to participate in a market in which there is a plausible claim they would otherwise stay out of, it'll matter whether the Chief's analysis was dicta or a holding. I, for one, will not be holding my breath in anticipation.

As for the Spending Clause, I really do think that, given what the Court (including Justices Breyer and Kagan) did here, today's result is not as sweeping a win for the Obama Administration as many had hoped for / reported. Indeed, I basically agree entirely with what Sam Bagenstos had to say re: how this might matter going forward. Without question, the substantive constraints on Spending Clause statutes will affect future legislation and litigation (albeit probably very little, ironically, with regard to the Medicaid expansion itself, thanks to both (1) the five-Justice Booker-remedy move; and (2) the terms of the ACA deal, which will likely prove too good to pass up even as a pure bribe). And even if the effects are overstated, it's not every day that the Supreme Court recognizes a limit on a particular source of Congress's powers for the first time in 75 years. But, and again unlike Marbury, there was no misdirection here. This was just a different holding on an analytically different issue that just happened to arise in the same case. Had the issues been resolved in separate opinions, or wholly separate cases, we wouldn't even think of the Marbury analogy. And as big a deal as the Spending Clause holding is, as mixed a bag as it makes what happened today, and as important as it may be in the future, none of those does a Marbury make. Sometimes a pig is just a pig.

A Guess on the CNN/FoxNews Snafu

Both CNN and FoxNews reported initially (as did Diane Rehm) that the mandate had been struck down.  Was that based on reading the Roberts opinion, or was it based on The Chief Justice's' way of announcing the opinion in court?  Did he start with the Commerce Clause, and then transition with a big "But . . . "?  Just curious if anyone was in attendance and could speak to how the moment felt.

Waiting for a judicial announcement

When was the last time that the entire country was waiting for a particular judicial decision that we all knew was coming on a specific day and at a specific time? If you think about the other universally anticipated SCOTUS decisions of recent years, we did not have such prior notice of when the decision would be coming down.

Strangely enough, I keep coming back to the O.J. Simpson verdict. If you remember, the report came out that there was a verdict in the afternoon (I think it was a Tuesday) and Judge Ito announced that the verdict would be announced the following morning. So everyone knew exactly when to tune in and exactly what was coming.

Other examples?

Nora Ephron, Distinguished Legal Theorist, RIP

It's with great sadness that I note Nora Ephron's passing. Here's the Times obit. She did so many things surpassingly well that I'm struck by the absence of discussion about her many contributions (perhaps unwittingly) to the realm of legal theory. Tomes could be written on her insights as they apply to law, and not just the human condition.  Here are just a few treasures of hers. Feel free to add your own in the comments. May her memory be a continued blessing to those who loved her.

1) In the end, I always want potatoes. Mashed potatoes. Nothing like mashed potatoes when you’re feeling blue. Nothing like getting into bed with a bowl of hot mashed potatoes already loaded with butter, and methodically adding a thin cold slice of butter to every forkful. The problem with mashed potatoes, though, is that they require almost as much hard work as crisp potatoes, and when you’re feeling blue the last thing you feel like is hard work. Of course, you can always get someone to make the mashed potatoes for you, but let’s face it: the reason you’re blue is that there isn’t anyone to make them for you. As a result, most people do not have nearly enough mashed potatoes in their lives, and when they do, it’s almost always at the wrong time."

2) You're the worst kind; you're high maintenance but you think you're low maintenance.

3) But, really, what's so hard about finding an apartment? What you do is look in the obituary section. You see who died, find out where they lived, and tip the doorman. What they could do to make it easier is combine the two. You know, Mr. Kline died yesterday, leaving behind a wife, two children, and a spacious three bedroom apartment with a wood burning fireplace. 

The Math of 5-4 Summary Reversals (or, What I Don't Get About Bullock)

I'm late to the party re: the Supreme Court's 5-4 summary reversal yesterday in the "Citizens United sequel," American Tradition Partnership, Inc. v. Bullock. More to the point, I'm not an expert on campaign finance law specifically, or the First Amendment generally, so I'm not sure I have much to add to the various substantive reactions percolating around / pervading the blogosphere. Instead, the fed courts nerd in me gravitated toward the oddity of the disposition--a 5-4 per curiam summary reversal. While there have cerainly been 5-4 per curiams before, and 5-4 decisions without argument (see Garcia v. Texas for an example of both), off the top of my head, I couldn't think of a single 5-4 summary reversal--and my copy of Stern & Gressman is 4000 miles (and one very big ocean) away.

The reason why 5-4 summary reversals are so unusual is actually somewhat straightforward: As we know, it only takes four votes to grant a petition for certiorari, whereas it (usually) takes five votes for dispositions on the merits--including summary reversals. Whether because it would undermine the four-to-grant rule or for some other reason, the Court by tradition has historically given precedence to four votes for plenary review over five votes for a summary reversal. Thus, a 5-4 summary reversal could only occur if both (1) exactly four Justices object to a summary reversal; and (2) not all of those four want plenary review. [Note that this also explains why the old belief in a "rule of six" for summary reversals probably was never true--five will suffice so long as the other four don't all prefer plenary review.] And needless to say, although either scenario is relatively common, their confluence is not, for reasons I elaborate upon below the fold...  

One possibile situation in which such an outcome could occur is where the four dissenters would have summarily affirmed the decision below--and are therefore dissenting on the merits, rather than on the summary disposition (an example of this appears to be the Court's last 5-4 summary reversal: Riggan v. Virginia, 384 U.S. 152 (1968), which I found through this blog post). For obvious reasons, I have to think that this is a vanishingly small set of cases.

The second way such an outcome could arise is what happened in Bullock: where at least one of the four opponents of summary reversal votes to deny certiorari rather than to grant plenary review (in Bullock, all four of the "dissenters" so voted). In a typical error correction case, one could imagine this happening if some of the dissenting Justices just didn't think the decision below was worth the Court's time one way or the other. Indeed, examples abound of 6-3, 7-2, or 8-1 summary reversals where at least one Justice objected on such terms without expressing a view as to either the merits or the form of the disposition. Perhaps it's just a fluke that there aren't similar examples of such a split in a 5-4 summary reversal; perhaps it's a reflection of deeper institutional realities, since it would be odd if five Justices thought an error so egregious as to warrant a summary reversal and the other four thought the error utterly unworthy of correction.

But whatever else Bullock was, it wasn't a typical error correction case--as made abundantly clear by the Ginsburg/Breyer opinion respecting the stay. And that's where things get interesting...

Let's start with the obvious: I think Rick Hasen is exactly right to suggest that such a move by the lefties is actually a "relative victory" for campaign finance reformers, given the extent to which "[t]aking the case would have been an opportunity for the majority of Supreme Court justices to make things worse [from the reformers' perspective], such as by suggesting that limits on direct contributions to candidates are unconstitutional." I'd only add the stare decisis point: separate from what the Justices didn't have a chance to decide, even what they did decide, i.e., that Citizens United applies to state campaign finance laws, will not have the same value qua stare decisis going forward, since "[a] summary disposition does not enjoy the full precedential value of a case argued on the merits and disposed of by a written opinion." That won't matter in the short term, but it certainly could matter if the day comes when there are no longer five strong votes to defend Citizens United... 

To be sure, I don't think any of this analysis is particulary earth-shattering. Whatever one thinks about the merits of Justice Breyer's move, it's a relatively obvious one, at least once it became clear that there were five unshakeable votes to slap down the Montana Supreme Court. But if it really was that clear, then the less obvious, more interesting question becomes why the conservative Justices acquiesced, since nothing would have stopped any four of the five Justices in the majority from opting for plenary review instead of a summary disposition.

New judicial appointee in S.D. Fla.

The Senate this morning confirmed Robin Rosenbaum to a seat on the United States District Court for the Southern District of Florida. Robin's sister, my friend and colleague Marci Rosenthal, runs FIU's Legal Skills & Values program.

We assume that Hillary Clinton will deliver Robin's commission in due course.

Choosing your own decisionmaking processes

At Sunday's Olympic Trials in the women's 100m, there was a tie for third place (the final spot on the team). And now the question is how to break the tie, with the options being a coin flip or a run-off between the two women, Allyson Felix and Jeneba Tarmoh. But it gets more complicated, because the choice is delegated to the runners: If they agree on a process, they use that. If they disagree on their preferences, they use a run-off. And if no one expresses a preference, they use a coin flip.

This raises a couple of interesting issues:

1) As Miriam Cherry discusses at CoOp, Olympic officials have avoided making a decision (and having to provide reasons for the decision) by delegating the choice to the participants, something judges typically are unable to do.

2) Is there any doubt that world-class athletes will choose the run-off? And, if so, why? Is it fear of randomness? Is it a desire for control? Is there something unique about professional athletes that influences their choices?

3) Note the game theory element to this. If they state a preference and disagree, it's a run-off; if one or both decline to state a preference, it's a coin flip.

The Joy of Free, Redux

I have an op-ed in this week's Forward that largely rips off riffs on a blog post I had here a couple weeks ago. The piece has to do with why "free" is not obviously a terrible model to use (in the context of Jewish continuity and community-building efforts). 

Changing the rhetoric on women's sports

The sports world marked yesterday's 40th anniversary of Title IX by showing a lot of women's sports on TV, including Olympic trials in a number of sports (such as diving and track) and a marathon of WNBA games.

I also caught a new Nike ad, titled Voices. It features close-up shots of basketball players Diana Taurasi and Lisa Leslie, boxer Marlen Esperaza, and marathoner Joan Benoit Samuelson (I still remember her winning the first Olympic women's marathon in Los Angeles in 1984, wearing a white painter's cap) talking about the obstacles and challenges they faced growing up and starting to play sports. Notably, each of the four is a different age (ranging from 20s to 55) and grew up at different stages in Title IX's 40-year history. Those head shots are interspersed with shots of young girls in uniform lip-synching their comments. This ad can be seen as the successor to Nike's famous 1995 If You Let Me Play (regarded by many as one of the all-time best ads). Both can be seen after the jump.

In watching them, note the new rhetoric and narrative. The earlier ad tried to convince the viewer that women and girls should be ableto play sports by citing all the instrumental benefits that come with participation in sports (better grades, increased self-confidence, better health, etc.). The new ad says that women and girls do and should play simply because they want to. Oh, and because they're really freaking good. This strikes me as progress.

Voices:

 

 

If You Let Me Play:

 

 

The People's Law School

Today in 1934, the Reich Association of the German Automobile Industry commissioned Ferdinand Porsche to design a "people's car" that would be marketed to the masses, and that would serve as a competitive alternative to models that were only accessible to a fortunate few. Porsche's design later became the Volkswagen Beetle. If you had to design a model for a "people's law school," what would it contain, and how would it compare to schools that already exist?

Ideological judges, evolving judges

A colleague offered the following, as a possible explanation for the increased public perception of a divided partisan Supreme Court: We have no "cross-over" justices. The "conservative" justices all were appointed by Republicans, the "liberal" justices all were appointed by Democrats (my colleague rejects these labels and so do I, thus the danger quotes, but they are the labels everyone is using). We no longer have a Justice Stevens or Souter or, from the other side, a Justice White, who regularly vote contrary to the constitutional and political viewpoints associated with the party that appointed them.. So the Court looks like Congress and the public begins to view it that way.

Let me suggest a corollary idea: Justices are not "evolving" anymore. The "conservative" justices generally remain in step with the prevailing political leanings, interests, and issues of the appointing party, even 20-25 years later. Same with the "liberal" justices.

One explanation is that the core constitutional commitments associated with each party have not evolved or have remained consistent over time. In other words, we are not seeing people such as Justice Frankfurter or, to a lesser extent, Justice Black. Both were Democratic appointees appointed with the hope that they would uphold congressional power to enact the New Deal and they followed the Democratic line in doing so. But they then fairly quickly found themselves out of party step when the core issues about which Democrats cared became individual liberties, substantive due process and unenumeratred rights such as privacy and reproductive freedom, and vigorous judicial policing of individual liberties.

Instead, current constitutional battle lines remain consistently drawn across issues and the Justices are mostly in step across issues and provisions. Thus, while Frankfurter had Democrat-friendly views on congressional power, he had less-Democrat-friendly views on the new issues of civil liberties and judicial protection of civil liberties. So he was voting contrary to what you would expect from a Democratic appointee by the 1950s. By contrast, Justice Scalia's views on congressional power, equal protection, and reproductive freedom  match up with the prevailing Republican view, just as  Justice Ginsburg's views on all three match up with the prevailing Democratic view.

Perhaps this is an inevitable result of the polarization of the parties. We get far greater consistency in the overall constitutional vision of each party, such that judicial appointees (who are far better vetted than they used to be) carry that vision across all the issues. Roosevelt appointed Frankfurter in 1939 with an eye on upholding the New Deal; he was not thinking about these other constitutional questions or anticipating that they might become important. On the other hand, Reagan appointed Scalia or Obama appointed Kagan with the expectation that each would be a consistent vote for their constitutional visions across the board, because the respective visions are so consistent down the line.

A Dream Come True?

Some of you might remember my posting about a former student who was an undocumented immigrant who, despite various challenges, flourished as a law student and was asking the Florida Bar to let him join now that he passed the Bar exam. Here's the story on that.

As you probably just saw via various news bulletins, the Obama Administration has announced that it will, for now, stop deporting many young folks who are here illegally if they were brought here as children and have since led law-abiding lives. I'm very relieved to hear this. I hope it means that Jose's petition to the Florida Bar will be an even easier case. But I recognize that as an executive policy, it's still precarious:

"This is not immunity, it is not amnesty," said Janet Napolitano, the homeland security secretary. "It is an exercise of discretion."

At the very least, the temporary nature of this relief allows the administration to gather some data. And, as many people expect, that data could show that the folks who benefit from this exercise of discretion are not dangers to the security or economic health of the country. If that turns out to be true, it might bring around some legislators still on the fence to the extent that facts are able to sway them!

Prison Rape and Cost Benefit Analysis

Over at the GULC faculty blog, Lisa Heinzerling has a very sharp post criticizing the Administration for undertaking a 168 page report that performs a cost benefit analysis of prison rape reform efforts. Prof. Heinzerling labels the effort "a labored, distasteful, and gratuitous essay on the economics of rape and sexual abuse."

I haven't had a chance to digest the report yet. Early feedback from some of my FB friends show substantial support for Prof. Heinzerling's point of view. I wonder what the defenders of the report might have to say in its favor, though I suspect some will say that the report is meant to offer its own defense!

All politics is local, some of it is microscopic

Primary voters in North Dakota yesterday voted in favor of legislation that will allow the state Board of Education to retire the controversial Fighting Sioux nickname of the University of North Dakota.

The NCAA has been pressing UND to get rid of its logo and nickname for several years because it deems it offensive to American Indians; schools that continue to use offensive nicknames are barred from hosting NCAA tournament events and cannot use the name and logo in NCAA tournament play. The state was unable to get approval for continued use of the name from the two area nations, Standing Rock and Spirit Lake Sioux; the latter passed a resolution supporting the nickname but the latter never held a vote. In 2011, the North Dakota legislature passed a law requiring the school to continue using the nickname, but that law was repealed in a special session. A group supporting the nickname then gathered the signatures necessary to challenge the repeal law on the ballot. This now sends the matter back to the Board of Ed., which is expected to change the name.

That is, unless nickname supporters succeed in making the Fighting Sioux nickname a constitutional requirement. Yep, the next move, which supporters say they are going to pursue, is a popular constitutional amendment to amend the state's structural charter to require a university to use a particular nickname and logo. Needless to say, I don't expect to see this particular proposla in Slate's discussion of How to Fix the Constitution. I do not have skin in this nickname dispute; I do not believe that using Indian tribe names and titles (as opposed to, for example, "Redskins")  is inherently offensive and perhaps the NCAA is overreacting (shocking, I know). But this cannot be the sort of even symbolic issue that has any place in a state constitution.

One other touch to this report, also reflective of every political dispute: Sean Johnson, spokesman for the group supporting the ballot measure, pointed out that they were outspent by the other side. It is now virtually guaranteed that the loser in any election, particularly on issue refenda and initiatives, will point out how badly it was outspent. This has become the electoral equivalent of calling the judge in a case "activist": If I lose, it must be because someone (the judge, the other side) did something wrong or untoward.

Suing the NFL: Where Labor Law meets Fed Courts

A couple of weeks ago I wrote about the federal defamation action brought against NFL Commissioner Roger Goodell by New Orleans Saints linebacker Jonathan Vilma over his one-year suspension for his alleged participation in the Saints "bounty" program. Two more interesting things in the case.

First, I have heard a few people suggest that the lawsuit is preempted by the NLRA and the new CBA, which gives Goodell broad power to investigate and punish player misconduct. The argument, I guess, is that in suing over Goodell's statements reporting his findings and punishment, Vilma is functionally challenging Goodell's exercise of that power. In other words, to determine the falsity of Goodell's statements requires a court to review the evidence that the league gathered about the bounty programa and to review the accuracy of Goodell's decision. Labor law people (are you out there, Matt?): Is that right? Can a legal claim arise from arbitrable conduct that violates some other right?

Second, I found it notable that Vilma sued Goodell, but did not sue the NFL on a respondeat superior theory. My suspicion has been that Vilma wanted to be in federal court and the NFL would have destroyed complete diversity. Vilma is a Florida citizen and so, it appears, is the NFL for these purposes, although it takes some digging. And it also provides a nice case for illustrating the puzzle of determining citizenship for diversity purposes when non-corporate entities are involved.

The NFL is an unincorporated association of its 32 teams, so it is a citizens of every state of which one of its teams is a citizen. One team, of course, is the Miami Dolphins, which are owned by Miami Dolphins Ltd., a Florida limited partnership. A partnership's domicile is that of every general and limited partner. The general partner is South Florida Football Associates LLC, which has its principal offices in New York; no other general or limited partners were listed on its 2012 Annual Report. An LLC's domicile is that of every member. The managing member is Stephen Ross, the man who is colloquially known as the "team owner." According to Wikipedia, Ross resides in New York' of course, residence is not domicile, so it is possible he also has a home in Florida and that is he true residence. Guess we need more discovery on this one. The key, though, is that Ross famously brought in a number of celebrities as minority owners, including Gloria and Emilio Estefan, the Williams sisters, Fergie, and Marc Anthony. I know for sure that the Estefans are Florida citizens. I am not sure if these "minority owners" are members of the LLC or limited partners in the partnership. Either way, Estefan alone means the partnership has become a Florida citizen (directly or through Estefan's effect on the LLC), which makes the NFL a Florida citizen. And thus a strategic reason for not suing the league.^*

On the other hand, it may seem surprising that Vilma so wants to be in federal court. The theory underlying diversity jurisdiction is that it allows one party to avoid local bias that would exist in state court by getting to federal court. The converse is that the local would want to be in state court to take advantage of that bias. Yet Vilma, the "local," is looking for federal court. True, Vilma is not a Louisiana citizen. But he is a star player on the Saints and a leader of their championship team. He could expect to benefit from local favoritism even more than any Louisiana citizen would.

Finally, another explanation for Vilma's strategic choice may tie the two issues together. Perhaps Vilma was indeed worried about CBA preemption of his claim. Maybe the thought is that the defense argument that this issue is subject to arbitration appears stronger if the lawsuit is against the league, which is a party to the CBA, than if the lawsuit is against Goodell, who is not a party to the CBA. By not suing the NFL, Vilma could try to argue that this dispute is not subject to labor arbitration because this dispute involves people who are not parties to the CBA.

Thoughts?

    ^*Lawyers routinely gets this wrong. So I hope Vilma's attorney's reasoning did not go as follows: "The NFL is all 32 teams, the Dolphins are a partnership with their principal offices in Miami, so it is a Miami citizen, so the team destroys diversity." Full stop. That would be the right conclusion but the wrong analysis, and thus a not-so-good grade.

A few reading pointers for Tuesday morning

First, I want to point out an outstanding article I just read titled Election Law Behind a Veil of Ignorance. It's by Chad Flanders (SLU), a former co-author of mine. There's an early and differently titled draft up on SSRN. Admittedly it's outside my area of expertise, but I found its clarity and pointedness -- consisting in a gentle rebuke to/modification of Rick Hasen's celebrated revival of the Democracy Canon -- sharp and instructive. It's pretty short as law review articles go, and has lots to say about the relationship between statutory interpretation and democracy. 

Next, this morning's Times was brimming with some excellent pieces. I guess they didn't want them buried over the long weekend!

First, there's a long piece on Obama's central role in approving the knock list for who gets targeted. The assessment is something along the lines of: wow, who knew Democrats could be so ruthless in the forward lean on terrorists. The most interesting piece of news (from my perspective) is the tidbit from Romney's foreign policy advisor who is critical of Obama for not revealing the legal memo that purportedly justified the targeting and killing of an American citizen abroad, Anwar al-Awlaki. 

Mr. Hayden, the former C.I.A. director and now an adviser to Mr. Obama’s Republican challenger, Mr. Romney, commended the president’s aggressive counterterrorism record, which he said had a “Nixon to China” quality. But, he said, “secrecy has its costs” and Mr. Obama should open the strike strategy up to public scrutiny.

“This program rests on the personal legitimacy of the president, and that’s not sustainable,” Mr. Hayden said. “I have lived the life of someone taking action on the basis of secret O.L.C. memos, and it ain’t a good life. Democracies do not make war on the basis of legal memos locked in a D.O.J. safe.”

 

I agree with Hayden. The prospect  reality of an internal memo serving as a secret law--it's a real problem for rule of law values that both parties should vigorously support. Put simply, I'm bummed that the Administration hasn't saw fit to distribute the memo notwithstanding (or because of?) Charlie Savage's reportage on the substance of the memo. But, fwiw, if Republicans end up winning the White House (ack!), then I hope they follow Hayden's counsel, rather than rely on the "precedent" of Obama's secret laws...

Next,  Erica Goode has an awesome piece discussing the promise and perils of a relatively new and somewhat unknown " gunshot detection system called ShotSpotter [that pinpoints] the location of gunfire seconds after it occurs." Some critics of the system are worried about how the acoustic surveillance intrudes upon privacy interests, but the sensitivity of the system, which can pick up some conversations,  is meant to be triggered only after there's a gunshot. No doubt, this kind of sound amplification can be abused absent adequate controls. Still, the idea that this might reduce further the problems of Type II errors in relation to gun violence in cities is very seductive. Indeed, I wonder to what extent it might be used as a substitute (rather than just a supplement) for NYC's aggressive stop and frisk policies. Obviously, Shotspotter is an ex post measure whereas the stop and frisk policies are ex ante, but it might be the case that the use of Shotspotter would have a more effective ex ante preventive effect than the aggressive stop and frisk policies cops are using in NYC. My guess is that both will continue to be used -- to the extent the law allows. Relatedly, it'll be interesting to see if the lawsuit unfolding in Judge Sheindlin's court has much practical effect in curtailing the NYPD's off-the-record stop and frisk practices. Here's a link to J. Sheindlin's decision to certify the class at issue. 

Finally, take a look at Adam Liptak's Sidebar column on mandatory minimums in federal sentencing and then Sandy Levinson's oped laying the predicate about our imbecilic constitution for his new book about what we can learn from state constitutions. Classic Sandy: bracing and bright.

 

 

Using empirical methods to analyze the effectiveness of persuasive techniques

Slate Magazine has a story detailing the Obama campaign's embracement of empirical methods to assess the relative effectiveness of political advertisements. 

To those familiar with the campaign’s operations, such irregular efforts at paid communication are indicators of an experimental revolution underway at Obama’s Chicago headquarters. They reflect a commitment to using randomized trials, the result of a flowering partnership between Obama’s team and the Analyst Institute, a secret society of Democratic researchers committed to the practice, according to several people with knowledge of the arrangement. ...

The Obama campaign’s “experiment-informed programs”—known as EIP in the lefty tactical circles where they’ve become the vogue in recent years—are designed to track the impact of campaign messages as voters process them in the real world, instead of relying solely on artificial environments like focus groups and surveys. The method combines the two most exciting developments in electioneering practice over the last decade: the use of randomized, controlled experiments able to isolate cause and effect in political activity and the microtargeting statistical models that can calculate the probability a voter will hold a particular view based on hundreds of variables.

Curiously, this story comes on the heels of a New York Times op-ed questioning the utility and reliability of social science approaches to policy concerns and a movement in Congress to defund the political science studies program at NSF.

Jeff

 

Reading Assignments as a Condition of Bail? Really?

Well, as Judge Vaughn Walker says, it might have something to do with the seat.

That's because when Judge Walker's successor, Judge Yvonne Rogers, became a federal district court judge in San Fran, she seems to have inherited his penchant for creative sanctioning. You might recall Walker garnered fame not only for his role in striking down Prop 8's restriction on same-sex marriage, but also for the shaming sanction  he imposed on Shawn Gementera, who had to stand outside a post office with a sign that said "I stole mail.  This is my punishment."  (The Gementera sanction was affirmed by a divided panel on the Ninth Circuit and the opinion is now part of many crim law casebooks. Disclosure: I had a small role in the appellate proceedings.)

Now, Judge Rogers has triggered some curiosity across the country for a recent bail provision imposed on Otis Mobley. Specifically, while Mobley is released in advance of his upcoming trial, he is required, as a condition of bail, to read certain books for an hour a day and to write a report for a half hour a day.

The reading list hasn't yet been circulated, but still, one has to wonder about the suitability of such a condition with respect to bail. It wasn't included in the list of conditions recommended by the magistrate judge--not surprisingly.  Regardless of how one feels about such creativity in the context of punishment,* one has to wonder about its usage when it comes to bail conditions.

After all, bail is pre-trial, and thus pre-adjudication. Moreover, we do have this business associated with the presumption of innocence. SO, while it's one thing to say that the moral weight of such a presumption can be overcome when it comes to substantial and reasonable fears having to do with flight risk or danger to the community (or danger to the judicial process itself in cases of witness tampering), those issues are hard to imagine as related to the conditions associated with reading and writing reports. Rather, it seems as if reading and writing reports are tethered to the blaming and communicative functions of punishment for wrongdoing. To my mind, such conditions should not be imposed because they blur the lines of what we're trying to achieve, as a society, before and after adjudication. To be clear, I'm not saying that Mobley should not be released (although he has some, um, icky issues to work out) and I'm not saying he should be detained pre-trial. But the judge's order is curious because it is likely to be conceptually confused about the nature of pre-trial release and detention. It would be nice if we could find out, soon, what the judge is assigning, and why.

*Putting aside some rule of law reservations that nag at me about "creative" sanctions and punishment generally, I'm largely in favor of guilting punishments (which are designed to facilitate moral education without the public degradation associated with shaming punishments). As a general matter, it's fair to say that assigned reading and writing can facilitate those valuable guilting goals, perhaps even quite well. (Still, I'm not sure I'd go so far as ordering a defendant to write a book, as this WSJ story details about a defendant in a pharma-related crime.).  By contrast, I have a strong aversion to shaming punishments, which I think are largely illiberal and anti-retributive in spirit, as laid out here, among other places. For those interested in alternative sanctions more generally, I've linked to a few here (under media appearances) for some news stories over the years about the phenomenon.

 

The New Info re: Trayvon Martin and George Zimmerman

The latest batch of information shared by the government with the public and the defense continues to bode poorly for the prosecution, at least when held to a BRD standard for a murder charge.

1. The Times has posted a few audiotapes of interviews with witnesses of the encounter between Martin and Zimmerman. I'm on a deadline with something else, so I haven't gone through all of them yet, but at least one of them provides information to the effect that it corroborates Zimmerman's account that he was getting the stuffing beaten out of him by Martin prior to the shooting, and that Zimmerman had cried for help.

2. The article accompanying the audiotapes also reports that Martin's father told police that it was not Trayvon Martin who cried out for help on the 911 tapes. (Zimmerman's father said it was Zimmerman's voice, whereas Martin's mother had earlier said it was Martin). Audio specialists with the FBI apparently couldn't tell.

3. Traces of pot were found in Martin's body at the time of his death.

4. There's a picture of Zimmerman's bloodied head up also, which again, corroborates the story Zimmerman told and the report of the witness who saw Zimmerman getting beaten on the pavement.

None of this is to deny that there could still be a plausible case made for imperfect self-defense leading to something like a manslaughter conviction. (Indeed, one of the investigators had initially prepared a probable cause for manslaughter recommendation.) But taken together, these various pieces of information make it much less likely that a jury will find Zimmerman guilty of murder based on a beyond a reasonable doubt standard. Interestingly, if you read the NYT piece carefully, you won't really see any discussion of specific evidence bolstering the government's case discussed. (That's not to say it's not there in the discovery; just that the reporter had omitted to discuss anything).

A friend of mine who's a former prosecutor here in Florida, and now is a local defense lawyer, told me he thought that no charge would stick against Zimmerman. If the NYT piece is roughly accurate regarding the contents of the new information, I suspect the release of the new information won't do much to change his mind.

P.S. I just checked out the Orlando Sentinel coverage, which is a bit more extensive, and which again bodes poorly for the government.

5. The autopsy report reveals that the gun was fired touching Martin's clothes. Indeed, "Trayvon's autopsy showed that he died of a shot to the heart and that the gun was so close, it had left gunpowder burns on his skin." This too is consistent with Zimmerman's account. If in fact the gun was shot from further away, it would possibly cast doubt on the nature of the encounter.

6. There is no witness testimony or other evidence regarding who started the altercation.

 

 

The Missing Argument on the Tax Anti-Injunction Act

The following is a guest post from Yale 3L, Daniel Hemel. 

During the March oral arguments in the health care cases, the Justices seemed skeptical of the claim that the individual mandate was a “tax” for the purposes of the Tax Anti-Injunction Act (TAIA). (If the Justices find that the Tax Anti-Injunction Act applies, they presumably would withhold a ruling on the constitutional questions.) The Tax Anti-Injunction Act states that unless one of the enumerated exceptions applies, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person.” But as Justice Breyer said of the individual mandate: “Now, here, Congress has nowhere used the word ‘tax.’ What it says is penalty. . . . And so why is this a tax?”  His colleagues on the Court were similarly unwilling to countenance the claim that the penalty provision of the Patient Protection and Affordable Care Act (ACA) was a “tax” for the purposes of the TAIA.

Yet while the oral arguments focused on whether the individual mandate is a tax for the purposes of the TAIA, no one seems to have remembered that the lawsuit in question—Florida v. HHS—is not simply a suit to restrain the enforcement of the individual mandate. The complaint in Florida v. HHS “requests that the Court . . . [d]eclare the Patient Protection and Affordable Care Act, as amended, to be unconstitutional.”  The plaintiffs explicitly argue that the mandate is not severable from the rest of the Act, and thus that “[t]he Court should hold the ACA invalid in its entirety.”

So for TAIA purposes, the relevant question is not whether the individual mandate meets the TAIA’s definition of a “tax.”

Rather, the relevant question is whether anything in the Patient Protection and Affordable Care Act meets the TAIA”s definition of a “tax.” If it does, then Florida v. HHS is a “suit for the purposes of restraining the assessment or collection of a[] tax,” since it is a suit for the purposes of restraining the enforcement of every single provision in the ACA.
This latter question is not a terribly difficult one. Section 1402 of the ACA, entitled “Unearned Income Medicare Contribution,” imposes a 3.8% tax on the non-wage income of high-income individuals. It is clearly a tax; indeed, it contains the words “there is hereby imposed . . . a tax.” Section 1405 imposes a 2.3% tax on the sale of certain medical devices (again, using the magic words “[t]here is hereby imposed . . . a tax”). Section 1409 codifies the common-law “economic substance doctrine” and imposes penalties for purely tax-motivated transactions. Congress has unambiguously called these provisions “taxes,” and the plaintiffs in Florida v. HHS have unambiguously sought to restrain their assessment and collection.
Even if the Court rejects the plaintiffs’ claim that the individual mandate is inseverable from the remainder of the Affordable Care Act, that doesn’t save their suit from the TAIA. As the Solicitor General argued, and as at least some of the Justices seemed willing to accept, the TAIA is a jurisdictional statute.  When the Court decides whether it has subject matter jurisdiction over a case, it must “take[] the allegations of the complaint as true.” Warth v. Seldin, 422 U.S. 490, 502 (1975).  If, as the plaintiffs allege, the whole Act is unconstitutional, then the challenge to the individual mandate cannot be separated from the challenge to the rest of the ACA (including the sections that clearly impose taxes). In other words, taking the allegations of the complaint as true, a ruling for the plaintiffs in Florida v. HHS would restrain the assessment and collection of several sections that walk like a tax and talk like a tax. According to this logic, the Court should throw the suit out on TAIA grounds regardless of whether it finds that the individual mandate is itself a tax.

It may be too late in the day to revive the argument that the TAIA bars a ruling on the merits of the constitutional challenges. And even if the Court did buy the argument laid out here, a future plaintiff could circumvent the TAIA by styling her suit as a challenge to the individual mandate specifically, rather than the Affordable Care Act as a whole. But given that the plaintiffs in Florida v. HHS decided to shoot for the moon and seek the invalidation of the Affordable Care Act in toto, it is difficult to see how their suit survives the TAIA. The irony is that, because the plaintiffs in Florida v. HHS asked the Court for too much, the TAIA may prevent them from receiving anything at all.

Who Should Enjoy Credit for SSM Progress? My vote: Andrew Sullivan.

Success has many fathers, the old saying goes. With Obama finally coming out of the closet and embracing SSM openly, we might take a moment to pause and wonder: who warrants credit for this development?

Joe Biden the other day extended kudos to the TV show, Will and Grace. That might be right as a matter of mass culture. And no doubt Mitt Romney himself will eventually take credit for it, notwithstanding his current squeamishness. (Make sure to watch the Jon Stewart clip.)

But among the chattering classes of columnists, lawyers, and academics, many of whom were advocating SSM prior to Will and Grace, which only appeared 1998-2006, I think substantial (though certainly not exclusive) credit should go to Andrew Sullivan, and derivatively, through his support for Sullivan's editorship of TNR, Marty Peretz.  (For long-time readers, you may recall this is a point I made in a comment years ago with respect to an interesting exchange spurred by Ethan on whether TNR is "liberal.") 

Sullivan had edited TNR from 1991-1996. Whatever the merits of his editorship generally, and there were some wacky things that occured under his watch, he did an awful lot to persuade and then mobilize elite opinion and thought-leaders into support for same-sex marriage. He has remained a provocative and thoughtful writer on a range of political and cultural issues, but my sense is that his early years as a writer and editor for TNR will mark his most lasting contribution. Of course, this is just my speculation and no doubt it is related to when I became "aware" of the injustices to the LGBT community -- I was in college during Sullivan's editorship. So perhaps I should ask SSM supporters reading this blog who are roughly  five to 15 years older than I am (I'm turning 40 this year): when did you become an SSM supporter and who or what intellectual influences do you attribute it to?

Ahdieh on Judge Browning's Passing

It's with regret that I share the news that Judge James Browning from the Ninth Circuit recently passed away. One of his former clerks, Bobby Ahdieh (vice-dean at Emory), has shared some reflections on the man and judge. These reflections were written up a few weeks ago, just before his passing. At the time of his death, he was the last of Kennedy’s circuit appointees, and (probably?) the longest serving federal judge. Thanks, Bobby, for sharing these memories and inspirations.

A Montana Man:

Lessons in Judging and the Law

As I wandered through the cherished memories that I carry of the year I was honored to serve as law clerk to Judge James R. Browning, I felt like a kid in a toy shop:  with so many great choices, what was I to pick?

I thought of the humanity and warmth that are Judge Browning’s hallmarks, and remembered my first encounter with him, in the temporary chambers at the Rincon Center – a conversation that ended with my mention that I was en route to have dinner with Judge Dorothy Nelson.  As we both stood up, he walked around the desk, and took both my hands:  “Wonderful!  Please, tell her I love her!”  How many judges, I wondered as I left, have ever had occasion to send such warm greetings to a colleague?

From that same discussion, I also remembered the Judge’s insistence that I take as long as I needed to decide whether to accept his offer, and my promise to respond by the next day – as it would be unfair for me to delay his hiring further.  And I remembered our discussion two years later, when I pressed him on the need to give exploding offers to clerkship candidates, and he sent me packing, insisting applicants be given the time they needed, to make the right decision for them.

I thought of Judge Browning’s place astride history – which reads like a review session for 1L’s in constitutional law.  Who else could claim to have sat at the side of the Solicitor General as he argued Youngstown Sheet & Tube Co. v. Sawyer,[1] to have helped ensure submission of the United States’ amicus brief in Brown v. Board of Education,[2] and to stand at the literal center of perhaps the most iconic presidential inauguration photograph in U.S. history, in which Chief Justice Earl Warren administered the Oath of Office to John F. Kennedy, with the Judge holding the Bible on which Kennedy’s hand lay?  Or to have provoked disagreement among the Justices of the Supreme Court years earlier, when he was appointed to represent the defendant in the first Mann Act case to reach the Court,[3] and Justice Frankfurter insisted – incorrectly, of course – that the capable (and successful) advocate for the defense surely must be “A Harvard Man”?

But I also thought of the humility the Judge brings to all he does – forcing us to discover each of the above by chance or through our own efforts, without a word of encouragement (or even suggestion) from him.  On one occasion, the Judge asked me to prepare draft testimony for him to deliver to Congress, regarding the then-latest attempt to divide his beloved Ninth Circuit.  By way of a forceful opening, I included a statement of his place as the longest serving active federal judge in the country.  He deleted the reference, and I reinserted it.  Twice.  Finally, he called me to his office and – with all the force of the longest serving active federal judge in the country – told me that he simply did not have it in his constitution to make such a statement, even in the service of preserving the Circuit.

For those among us who were honored to serve as his clerks, the latter must also recall the care that Judge Browning invested in his written work – be it a brief thank you note, or a published opinion on an issue of first impression.  Consider his opinion in Guerrero v. Clinton.[4]  All of his clerks recall the forceful work he did with his red pen – which often left nary of word of the drafter’s prose to be found.  At least as striking was the work he undertook with his scissors – whether to strike whole paragraphs or sections, or to relocate them to more suitable ground.

It was against this backdrop that I – in an act of youthful indiscretion – offered the Judge a fifteen-page draft dissent from the majority opinion in Guerrero, addressing a concern he had raised with the latter.  Then began the real work, of achieving the precise framing and prose that he sought.  Draft after draft, the Judge whittled the analysis down to its core.  And what, in the final analysis, became of my fifteen-page dissent?  It would almost be better to leave you to look it up in F.3d yourself, but let me save you the suspense:  Go to 157 F.3d at 1997, and what will you find there?  A three-sentence concurrence.

For all my memories of Judge Browning, though, what I most carry away from my time with him is not any of the foregoing, but something deeper.  For so many of us in the legal profession – and perhaps especially in legal academia – the assumptions of legal realism, of rational choice, of motivated reasoning by judges represent the foundation of our approach to the law.  In this view, interests, preferences, and biases are at the center of legal analysis.  What the law is, ultimately, depends on who the judge is.

I embrace these assumptions as much as the next guy.  Never less so, in fact, than when I engage my students in Socratic dialogue about a case and what we should take away from it.  Should we really understand a given shard of Supreme Court jurisprudence to arise from what went before – or as simply a reflection of Justice Brennan’s famous adage on justices’ ability to “count to five”?

I count myself lucky, however, to always carry with me an antidote to such cynicism and doubt.  As effectively as I wish to convey to my students the critical perspective they must bring to their engagements with the law, few semesters pass without at least a mention or two of Judge Browning.  For all the insights of legal realism and rational choice, I tell them, I know at least one judge who is different.  Who proves that judges can be true umpires – even if the latter are less common on our highest court than has sometimes been advertised.

My judge, I tell them, might not prove the rule – but he is surely exceptional.  I tell them of the time I ran into his office, to insist that we simply had to vote for en banc review in what I was surely the most important case ever to come before the Ninth Circuit.  Perhaps, the Judge told me, smiling.  But in his time on the bench – at that point, as I did the math in my head, a mere thirty-six years – he had found such cases to often come and go, without nearly the impact they promised.  In another case early in my tenure, I tell them, I shared my notes as to how I thought the other judges might vote, and what that might mean for us.  I looked up and found the Judge staring at me intently, if quizzically:  “But what is the law?”

It is not that Judge Browning is oblivious to politics or political context.  But for his astute insight into the latter, and capacity to engage in the former, he would not have had the incredibly successful tenure as Chief Judge that he did – and the Ninth Circuit would have been divided long ago.  Nor is it that he is a blank slate – with no strongly felt views he might bring to the table.  I recall no lack of morning meetings, thus, at which the Judge would casually offer his own views of the wisdom or justice of the matter presented.  For him, however, those views are that, and no more.

For me, thus, Judge Browning exemplifies the capacity of law to be greater – and to do more – than its constituent parts.  Few of us may consistently live up to the standard, whether on the bench or at the bar.  But it is that vision – and its potential application in the day-to-day life of the lawyer – that I took away from my time with Judge Browning.  And it is that lesson that I hope I will always convey to my students, on his behalf.

---

[1] 343 U.S. 579 (1952).  We were ecstatic to stumble upon the connection to Youngstown, by way of a newspaper photo showing Solicitor General Philip B. Perlman speaking to reporters out of his car window, en route to oral arguments – with his special assistant, James R. Browning, immediately beside him.

[2] 347 U.S. 483 (1954).

[3] Bell v. United States, 349 U.S. 81 (1955).

[4] 157 F.3d 1190 (9th Cir. 1998).

 

Signing Off, With a Parting Shot at Legal Education

Thanks to Dan and the rest of the Prawfs community for welcoming me here this past month.  Although my stint is up, and I'm signing off today, I can't help taking one last shot at some important legal education news that has just broken.  Chief Judge Jonathan Lippman of the New York Court of Appeals has just announced that all candidates for admission to the Bar of the State of New York will soon be required to prove that they have performed at least 50 hours of law-related pro bono service prior to being admitted.  I'm a firm believer in the value of pro bono service, and did quite a bit of pro bono work in my past life as an associate at Cravath.  And as Jason Mazzone notes over at Balkinization, all these person-hours could well produce some serious social good.  But this new rule strikes me as seriously problematic, particularly in light of the challenges facing legal education and the prevailing economic climate, both of which are the topic of so much current discussion and angst.

The current recession has not been kind to the young, particularly those without a broad support network.  The deck is stacked against them in a contractionary economy, both because they haven't yet had the chance to acquire sufficient resources to see them through hard times, and because in periods of scarcity (like the current one), those who do have such resources guard them ever more jealously, making it difficult for those just starting out to get on their feet.  Chief Judge Lippman's proposal notably declines to impose pro bono requirements on current members of the bar on grounds that it would not be "workable," in part because there are "lawyers who can't make a living on what they are doing now."  This special pleading seems to be of a piece with the current trend of muddling through hard times by demanding more sacrifice from those who have less, while failing to make comparable demands of otherwise similarly situated people who are fortunate enough--often due to nothing more than the historical accident of having been born at the right time--to have more.

As my former colleague Brian Tamanaha and others have argued at length, law school is an increasingly bad deal for many students.  The looming spectre of unmanageable debt and the fierce competition for legal employment have created all sorts of opportunities for incumbents in the legal profession to take advantage of those who seek to enter the profession as a means to a better life.  I'm sure I'm not alone in having been somewhat concerned at the contortions that law schools and legal employers alike are willing to go through to steer a course between the ABA's Standard 305 (governing externships) and the recently reinvigorated enforcement of the Fair Labor Standards Act.  Even federal judges and US Attorneys Offices appear to be hungry for free labor from those who are desperate to get a foot on the ladder to a successful legal career.  The fact that we incumbents are increasingly demanding these types of sacrifices of those who seek to climb up the ladder behind us strikes me as at best uncharitable and at worst venal.  Certainly it strikes me as inconsistent with the values underlying a commitment to pro bono service.  If the stewards of the legal profession really think pro bono service is important enough to be made mandatory--and I'm not opposed to that idea--then we should be mandating it across the board, not singling out already disadvantaged new entrants for treatment we don't have the stomach to impose on ourselves.

I hate to be leaving on such a down note, but that's all the time I have this go-round.  Thanks again for listening.

 

Some Modest Predictions on Severability

The Court’s decision on the severability of the individual mandate may be the aspect of the PPACA litigation that is most difficult to predict. If the Court holds that the individual mandate is constitutional, then severability won’t be an issue in the first place. If severability does arise, whether and how the Court will sever the mandate is uncertain. In part, this is because of problems with severability doctrine itself. Notwithstanding over a century of cases on the issue, the Court has had a hard time settling upon a definitive severability test. Sometimes the emphasis has been on legislative intent. Other times the focus has been on whether the constitutional remainder can function without the invalid part. Still other times the Court has severed or refused to sever without acknowledging the doctrine at all. The oral argument on severability reflected this state of affairs, as the Justices spent a considerable amount of time exploring the merits of several possible tests. Without knowing the doctrine, it is difficult to anticipate a result. 

In part, the unpredictability also reflects the absence of a completely satisfying way to sever the mandate if it is unconstitutional. Because the PPACA lacks a severability clause, covers such a diversity of topics, and reflects a variety of legislative compromises, it is hard to identify a clear legislative intent with respect to severability. Because the invalidation of the mandate will render certain aspects of the core health-care reforms financially problematic, it is unsatisfying to focus exclusively on the textual separability of the mandate from surrounding provisions. And because courts are poorly equipped to appreciate the complexities of health care policy, it seems problematic to base severability on anticipated financial implications.

That being said, I think we can reasonably make a couple of predictions about this aspect of the decision. First, if the Court holds that the individual mandate is not severable, that holding will rest on the votes of the conservative Justices, who generally seemed much more skeptical of severability than their counterparts during oral argument. 

Second, and regardless of whether the Court severs the mandate, most—maybe even all—of the Justices will emphasize that the Court has a general preference for severance, and that severance is often an appropriate result because of the permissiveness of the doctrine. I think the liberal Justices will make this point in emphasizing that the mandate should be severable. And I think that the conservative Justices will make the point because of their previously stated preference for as-applied challenges.

The story on the latter point goes like this: The Roberts Court has repeatedly expressed a preference for as-applied challenges over facial challenges. The distinction between the two, and thus the justification for the preference, requires a liberal severability doctrine: If the law disfavors or prohibits severance, the result of successful as-applied challenges will tend to mirror that of successful facial challenges by dictating total statutory invalidation. This follows from the so-called “valid-rule requirement,” which holds that partially invalid statutes cannot remain operative because litigants are entitled to judgment under constitutionally valid rules of law. By contrast, if severance is easy to obtain, the result of successful as-applied challenges will often be partial invalidation, as the Court’s preference intends. In emphasizing that severance is generally appropriate, the conservative Justices will buttress the distinction between facial and as-applied challenges by preserving the tendency for the latter to yield only partial, rather than wholesale, statutory invalidation. The distinction won’t matter in the PPACA litigation, but it will elsewhere.

Otherwise, all bets are off. I’m not sure whether the Court will sever, or how they will sever if they choose to do so.

The Selection of Charges in the Zimmerman case

I've been getting a bunch of media inquiries about the Zimmerman case, most of which ask me things far enough outside my expertise that I decline to help (a soft version of the Fallon amicus rule!). But I watched with surprise at the unfolding decision by state attorney Corey to file second degree murder against Zimmerman.  Corey is reputed to be a prosecutor who is both tough and possessing integrity. For all I know, she and her colleagues have all sorts of evidence that hasn't yet been leaked and that would support a murder charge beyond a reasonable doubt.

But if everything we've seen reported is true (and I'll assume this provides a useful summary), and there aren't other missing pieces of evidence, I cannot fathom how a jury would return a guilty verdict for murder. If that's right, what could justify bringing a murder charge? Certainly, the idea of charging high with the hope of inducing a plea could explain bringing a murder charge as a matter of tactics. But it would not be a justified basis for bringing a murder charge. To my mind, it would be repugnant to bring a high charge if the prosecutor herself does not readily believe in it, and if it is not readily provable beyond a reasonable doubt. Some jurisdictions or prosecutors' offices might say: this is complicated stuff, we have an adversary system, let the jury sort it out. That's a cop-out. Prosecutors are not partisans or advocates; they're agents of public justice. I have no special insight into Corey's evidence files but I sure hope she knows more than we do. Otherwise, a murder charge seems like a terrific injustice, and one that happens so frequently that it's become difficult to see in plain sight. 

Anyway, curious if anyone shared my surprise (I don't want to say disappointment b/c it requires evidence of facts that I don't have) at the murder charge?

P.S. I'm having trouble getting Typepad to allow me to comment on my own post, so after the jump, I'll respond to Sam's first comment. Also, I've appended a comment to AF's comment. Last, for now, here's an interesting document that constitutes the probable cause statement by the government. This scenario reveals a story different than the one told in the NYT summary I linked to earlier. So, of course, change the facts, change the analysis...

Sam, I'll issue the same caveats. I'm not a member of the Florida Bar and don't study this stuff as part of my research. 
That said, based on what I've seen, for 2d murder, you have to have evidence showing a depraved mind without regard for human life. I can't yet see a jury, faced with the evidence purported by Zimmerman and the witnesses, etc,  conclude that kind of mens rea brd. 
By contrast, if one thinks Martin was engaged in unlawful battery against Zimmerman, and one thinks that Zimmerman unnecessarily killed him (some form of imperfect self-defense) then the following statute section would probably apply.  
782.11 Unnecessary killing to prevent unlawful act.—Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in s. 775.082.
Moreover,  the culpable negligence for the manslaughter statute you mention is defined in the jury instruction in a most peculiar way (ie, it allows recklessness to be conflated with negligence):  Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights. The negligent act or omission must have been committed with an utter disregard for the safety of others.  Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

One more thing:  Apparently even Martin's mother thinks the shooting was an "accident." She told NBC: "I believe it was an accident. I believe it just got out of control and he couldn't turn the clock back."
Maybe Martin's mom doesn't quite understand the significance of what she's said, but, wow, this case keeps getting more interesting. Can you imagine if Zimmerman had just said, Sorry, your son and I got into words, he was beating me up and I felt I had no choice but to shoot, but I'm sorry for your loss. Do you think this whole thing would have been stopped right there? 

Update: Martin's mother has now clarified her statement to the effect that she still believes Zimmerman did in fact stalk and murder her son in cold blood. 

The Self-Defense Argument for Intervention in Syria

News media are reporting today that the combat in Syria has, for the first time, spilled across international borders, with Syrian government forces firing into Turkey last night, killing two people and injuring three others, and also firing into Lebanon. The New York Times suggests that a “large number of reinforcements for the government troops, backed by tanks and helicopters,” may have arrived “close to Turkish territory.” And of course Turkey is already sheltering a large number of refugees from the conflict—over 24,000, by the Turkish government’s estimate.

All of which raises the question of what, if anything, can be done. For the past year, the answer has been very little: Russia and China blocked effective measures in the Security Council; the legitimacy of humanitarian intervention on the basis of the responsibility-to-protect (“R2P”) principle has been contested; and neighboring states seemed to lack a persuasive argument for intervention on the basis of self-defense. But yesterday’s events suggest that the self-defense argument is strengthening. Article 51 of the UN Charter recognizes an “inherent right of individual or collective self-defense if an armed attack occurs against” a member state, “until the Security Council takes measures necessary to maintain international peace and security.” There is at least a reasonable argument that by firing bullets across the border, amassing troops nearby, and forcing Turkey to cope with a significant influx of refugees, Syria is violating Turkey’s territorial integrity and creating justification for an armed intervention on the basis of a Turkish right of self-defense.

To be clear, I’m not necessarily advocating the legality of intervention on the ground of self-defense; I’m saying simply that the argument for a self-defense-based intervention is getting stronger. And, of course, whether intervention makes sense as a practical matter is another issue altogether.

Dream a little DREAM for me

My former student is in the news. It's an amazing story of resilience and dignity against inertia. Yes, my wife is involved in the litigation as are some dear colleagues.

Thanks to Ediberto Roman for the link to the story below in the Miami Herald:

US representatives support Fla. immigrant lawyer

ASSOCIATED PRESS

TALLAHASSEE, Fla. -- Eight members of Congress on Monday joined four former American Bar Association presidents in urging the state Supreme Court to grant a law license to an illegal immigrant whose parents brought him to the United States from Mexico on a visitor's visa when he was 9 years old.

Seven U.S. representatives and Puerto Rico's nonvoting resident commissioner sent a letter to the justices supporting Jose Godinez-Samperio's admission to the Florida Bar.

They also expressed support for a "friend of the court" brief being submitted by three ex-ABA presidents. The fourth, former Florida State University President Talbot "Sandy" D'Alemberte, is representing Godinez-Samperio. D'Alemberte, now a professor, was one of his teachers at Florida State's law school.

"Here's a kid who came over not speaking any English, learned to speak English, went to school, became an Eagle Scout, continued helping as an assistant scoutmaster, graduated valedictorian from his high school class," D'Alemberte said.

Godinez-Samperio, 25, graduated from Florida's New College, earned a law degree at Florida State and passed the bar exam.

The Florida Board of Bar Examiners, though, declined to admit him, instead asking the justices for an advisory opinion on whether illegal immigrants can be licensed as lawyers.

D'Alemberte's argument is that requiring proof of immigration is an invalid policy because the board never obtained the Supreme Court's permission to adopt it as a formal rule. Therefore, Godinez-Samperio has complied with all valid requirements and should be admitted to the Florida Bar, he said.

Godinez-Samperio's parents overstayed their visas and never returned to Mexico. He grew up in rural Hillsborough County. His father, a veterinarian in Mexico, milked cows on a dairy farm. His mother, a dentist, worked at a factory that made sliding glass doors.

The congressional representatives, all Democrats, noted the U.S. Supreme Court has found the Constitution requires all states to educate illegal immigrants through the 12th grade so Florida already has made a heavy investment in them.

"To deny these students an opportunity to become doctors or lawyers or practice another profession is to deny the state of Florida and all of our neighbors an educated and talented workforce," they wrote.

Rep. Kathy Castor of Tampa was the only Florida House member who signed. The others are Reps. Charles Gonzalez and Ruben Hinojosa of Texas, Xavier Becerra and Grace Napolitano of California, Luis Gutierrez of Illinois and Raul Grijalva of Arizona as well as Resident Commissioner Pedro Pierluisi of Puerto Rico.

All of the former ABA presidents submitted the friend of the court brief are from Florida: Martha Barnett, Stephen Zack and William Reece Smith Jr.

A call to the Board of Bar Examiners placed shortly after 4 p.m. was answered with a recording saying the switchboard was closed for the day and that no messages could be accepted.

 

 

DOJ responds

Here is the letter that Judge Smith demanded from the Department of Justice following President Obama's comments about the Supreme Court reviewing ACA (H/T: LawCourts Listserv). I think Holder did what he could with, basically saying "of course courts exercise judicial review, but courts also regularly recognize presumptions of constitutionality and deference to the political branches, and the President did not say otherwise." That last part may be open to some debate, at least until the President's "clarification. In any event, I'm not sure that should matter, since the President ought to be clear to put forward a constitutional vision that suggests a minimized role for the courts.

Hopefully this all goes away. Robin and I were interviewed for a radio piece on this mess (Prawfs gets MSM attention!) and one question was whether we will see this happen again or whether this was a one-off thing. Robin's answer (with which I agree) is that judges are usually good at self-restraint. I would add that I doubt a bunch of federal judges want to get into it with a sitting President.

Fifth Circuit Jumps on the Marbury-gate Bandwagon

The fallout continues from President Obama's unfortunate comment that it would be "unprecedented" for the Supreme Court to overturn a law "passed by a strong majority of a democratically elected Congress."  Like Howard, I believe that the ACA is constitutional, but that the Supreme Court has the power to strike down unconstitutional laws.

He has been skewered in the media for presenting a mistaken view of the role of judicial review, and right-leaning commentators in particular have not missed a single opportunity to remind the public that Obama once taught Constitutional Law.  Never mind that politicians across the political spectrum have complained about this sort of "judicial activism" for years when a court strikes down a democratically elected law that the politician at hand favors.  Regardless of this fact, since Obama did indeed misstate the law, he was right to issue a clarification and retraction.

Now enter the Fifth Circuit, which is hearing oral arguments on a separate ACA challenge brought by physician owned hospitals.  Yesterday, Judge Jerry Smith engaged in the following exchange with the DOJ lawyer:

Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes. 

Judge Smith then referred to Obama's comments, remarking "So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases."

After Kaervsang cited Marbury v. Madison, Judge Smith demanded further briefing on the topic, asking for a three-page single-spaced letter stating "the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review."

I must say that as troubled (and annoyed) as I was by Obama's comments on Monday, I was shocked by this exchange.  It raises several difficult issues of judicial behavior and appellate litigation.

First, Obama's remarks were not part of the record before the court.  Judge Smith's request dips into the murky area of what sources of authority judges may consult when reviewing the facts of a case or deciding on the law.  While it is not impossible (or, should I say, unprecedented) for judges to take judicial notice of facts outside of a formal record, this power is usually exercised in a very narrow and tailored fashion.  I am particularly worried about statements made by lawmakers commenting on legislation.  Politicians, who engage in a good deal of high rhetoric and puffery, should not have to be concerned that every last statement they make will be come part of the record of litigation and subject to extra briefing and defense.  The President is perfectly capable of directing the DOJ to change the government's positions on various statutes (see DOMA).  This sort of judicial behavior chills a politician's ability to engage in a public discussion of various policy decisions without fearing that every statement now becomes official administration policy for purposes of litigation.

Second, the exchange calls into question Judge Smith's impartiality in this matter.  Because while President Obama--a member of a political branch of government--has the right and perhaps sometimes the obligation to take partisan stances on issues, Judge Smith is a member of the judiciary who should theoretically be above the fray.  

Most commentators who were not motivated by political leanings understood the Obama gaffe to be either: (a) a very poor misstatement in which he meant to defend the constitutionality of the ACA, but made the unfortunate mistake of questioning judicial review; or (b) campaign-year puffery.  Either way, Obama has since assured us that judicial review is not actually under attack.  No serious commentator took Obama's statement to signal a change in the adminstration's view of judicial review, any more than numerous other comments by other presidents and politicians over the years have been taken as a serious statement of operational policy.

What then, motivated Judge Smith to demand extra briefing on a point with which the DOJ lawyer agreed?  In my opinion, it was motivated by a desire to humiliate and punish Obama and the administration.  While the actual request is not a technical breach of judicial ethics, it toes the line and reveals a willingness to engage politically with a litigant (and another branch of government, no less) instead of limiting review to the merits of the law and the content of the record.  

Therefore, I don't think it's a stretch to question Judge Smith's impartiality in this case, even if it does not rise to the level of recusal.  His specific animus toward a litigant is troubling, and I hope that this issue receives the attention it deserves.

Your ox or mine?

First, I strongly disagree with President Obama's suggestion yesterday that it would be inappropriate for SCOTUS to strike down ACA. Other than being (in my opinion) wrong as a matter of substantive Commerce Clause doctrine, it is an entirely proper exercise of judicial review.

But we're getting into Through the Looking Glass stuff now. Congressional Republicans have accused the President of trying to intimidate the Court (Lamar Smith); insisting that a decision invalidating the law would "not be an activist court -- that will be a court following the Constitution" (Mit Romney); and insisting that "[j]udicial activism or restraint is not measured by which side wins but by whether the Court correctly applied the law." (Orrin Hatch). And, of course, we know the difference--striking down ACA is correctly applying the law, while, say, invalidating bans on sodomy is activism. There could not be a better illustration than Hatch's comment that judicial activism is an utterly empty and meaningless epithet. It really depends on whose ox is being gored--if you agree with a decision (or in this case, what many people expect to be the decision, it's correctly following and applying the Constitution, if you disagree, it's activism.

[Update: I missed this, but apparently Sen. Kyl actually insisted that a decision upholding ACA would be activist. I am sure no one in the press asked him to explain that one or what he possibly could have said.]

Congressional Republicans have spent fifty years decrying as activist Supreme Court decisions that just happened (shocked! shocked!) to come out contrary to Republican policy preferences. They have spent thirty years threatening to strip federal courts of jurisdiction to prevent them from making decisions (that Republicans presumably will not like) on certain issues. They have talked, at least informally, about impeaching judges or at the very least statutorily reminding judges of the threat of impeachment. And it was a Republican presidential candidate who, just a few months ago, was running on a platform of ignoring judicial interpretations and decrees and calling federal judges before Congress to explain and justify their decisions.

Again, Obama was flat wrong (and probably politically unwise and somewhat tone-deaf) in what he did. But the President preemptively challenging an expected result--without calling for anyone to disregard the judgment or calling for anyone's impeachment--is intimidation? Given the history of political debates over the Court since the Warren Era, this is just bizarre.

Chief Justice Strangelove or: How I Learned to Stop Worrying and Love HHS v. Florida

According to a Gallup poll taken in February -- before Justice Kennedy had a chance to terrify Jeffrey Toobin -- 72% of Americans thought the individual mandate was unconstitutional, including a majority of Democrats (56%).  Despite this, only 47% wanted the law to be repealed; 44% opposed repeal.  Why such a bizarre split?  

My conjecture is that most folks believe we need some form of health care reform.  Most folks do not want to be left in a world where they can't get insurance at an affordable rate if they lose their job and have a preexisting condition.  But the individual mandate seems like a significant infringement on one's liberty.  Should the government have the right to force you to buy something from a private seller, even if you don't want to?  (As Mickey Kaus puts it: "It sounds creepy for the government to be able to make you buy things.")  Not only that, it uses government power to support individual market players -- it's forced capitalism.  I actually think the broccoli example is too benign -- who fears the all-powerful broccoli industry?  A better example would be, say, security: what if the government forced you to buy private home protection for your house from one of a set of individual security companies?  That's more ominous than broccoli.  And it'd be justifiable --  the costs of providing police and fire protection would drop (perhaps significantly) if everyone had ADT.  

Of course, to constitutional law scholars, this is a confused argument, because the law is being challenged on Commerce Clause grounds, not liberty interests.  States have the right to force you to buy car insurance; why shouldn't the federal government have a similar power?  The whole "limiting principle" -- or lack thereof -- is irrelevant to the states' economic power.  So if states wanted to make you buy health care, or broccoli, or private security, that'd be fine even if the ACA is unconstitutional.  I'm not sure that gibes with what the average American would think on this -- they likely would object to the forced purchase, no matter what governmental body was doing it.

Nevertheless, the principle that the (federal) government cannot force people to buy products from private companies is not necessarily a conservative one.  It may, in fact, protect us against instances of crony capitalism and special interest abuse.  There was at one time a progressive critique of the current bill for failing to provide a public option for market participants to fall back on.  A bill that offered the choice between buying your own insurance or being enrolled in the government's health insurance plan would clearly be constitutional (probably even to Randy Barnett).

My colleagues Tim Greaney and John Ammann provide a strong case for the mandate, based on the need to account for the costs of those who would otherwise fail to insure themselves.  And I agree that, considering where we are at this particular moment, the individual mandate -- when paired with the other reforms, particularly for preexisting conditions -- is better than the status quo ante.  As the president said yesterday, "this is not an abstract argument.  People’s lives are affected by the lack of availability of health care, the inaffordability of health care, their inability to get health care because of preexisting conditions."  Moreover, I also agree that the law should be constitutional -- Mickey Kaus, among others, has offered an array of plausible possibilities for upholding the law. But there is something to the populist notion that forcing a private purchase is incompatible with liberty.  If that is in fact the ruling, there may be some very progressive applications for it down the road.

Why broccoli?

This question came up on a listserv last week. Why has broccoli become an evil product, the rhetorical exemplar (for conservatives and libertarians) for a noxious law and of government run amuk? Obviously, broccoli for years has been the signature vegetable that parents force kids to eat because it's "good for them." So it carries that negative "I'm making you do it for your own good" vibe that opponents of ACA atttribute to the individual mandate itself. Perhaps we can bring it back to George H.W. Bush, who famously insisted that, as the President of the United States, he could not be forced to eat broccoli. So Republicans have had political issues with broccoli for years.

The industry can't be happy about this. I wonder if anyone has looked into whether this rhetoric has had an effect on the indurstry. And I wonder if thee were any other product or food that opponents could have used and whether it would have been as effective.

Further Comment: Indirect response to one of the comments: This is precisely why so many states enacted agricultural product disparagement ("food libel") laws. No one (least of all me) is suggesting they are constitutional or a good idea.

Upcoming Conference on Race and Criminal Justice at NYU

Folks,

I'm passing on some information of an exciting conference I wish I could attend, hosted by my friends at the NYU Center on the Administration of Criminal Law. 

--

You are cordially invited to "New Frontiers in Race and Criminal Justice," the Center's fourth annual major conference.It will be held on Tuesday, April 17, 2012, in Greenberg Lounge, Vanderbilt Hall, New York University School of Law, 40 Washington Square South, New York, NY.  We are pleased to announce that our keynote speaker will be Michelle Alexander, author, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, and Associate Professor of Law, The Ohio State University, Moritz College of Law.  5.5 NY CLE credits will be offered in Areas of Professional Practice.

Please RSVP via this link or the Center website (www.prosecutioncenter.org). Please feel free to forward this invitation to friends and colleagues. (You may also RSVP by cutting and pasting http://its.law.nyu.edu/rsvp/annual/ into your browser.)

Panel subjects will include: What should prosecutors do to address racial bias and the disproportionate impact of criminal justice policies on communities of color? How can law enforcement and police officers mitigate implicit racial bias? What can and should be done about mass incarceration, sentencing, and collateral consequences of conviction? The scholars and practitioners who will participate are:

• Anthony S. Barkow, Partner, Jenner & Block LLP; Former Executive Director, Center on the Administration of Criminal Law
• Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law
• The Honorable James E. Boasberg, United States District Judge, District of Columbia
• Bennett Capers, Professor of Law, Maurice A. Deane School of Law at Hofstra University
• Lisa Daugaard, Deputy Director and supervisor, Racial Disparity Project, Defender Association of Seattle, Washington
• Angela J. Davis, Professor of Law, American University Washington College of Law  
• James Forman, Jr., Clinical Professor of Law, Yale Law School
• Vanita Gupta ('01), Deputy Legal Director, American Civil Liberties Union
• Ketanji Brown Jackson, Vice Chair, United States Sentencing Commission
• Ronald Machen, United States Attorney, District of Columbia
• Glenn E. Martin, Vice President of Development and Public Affairs, The Fortune Society
• L. Song Richardson, Associate Professor of Law, American University Washington College of Law
• Kami Chavis Simmons, Associate Professor of Law, Wake Forest University School
• David A. Sklansky, Yosef Osheawich Professor of Law, U.C. Berkeley School of Law
• J. Scott Thompson, Chief of Police, Camden, New Jersey
• Tom R. Tyler, Professor of Psychology, Yale Law School
• Whitney Tymas, Director, Prosecution and Racial Justice, Vera Institute of Justice

The conference will begin at 11:00 a.m. and end at approximately 5:45 p.m. Lunch will be served and the event will be followed by a reception.

Center on the Administration of Criminal Law  http://www.prosecutioncenter.org

 

Angela Johnson's Death Sentence Vacated

Late last week, Angela Johnson's death sentence was vacated by the U.S. District Court for the Northern District of Iowa. In case you don't know who Angela Johnson is, she is a member of two distinctively small groups: women who have been given federal death sentences in the modern era and defendants sentenced to the federal death penalty for crimes committed in non-death States. Of the nine people in the modern era who have been sentenced to death in federal court for crimes committed in non-death States, five have now had their death sentences reversed or vacated: Valerie Friend, Johnson, George Lecco, Gary Sampson, and Ronell Wilson. This does not include Marvin Gabrion, who had his sentence reversed by the Sixth Circuit last year but whose appeal is currently pending in the Sixth Circuit en banc.

Trayvon Martin and the Initial Aggressor Issue

In my initial post on the tragic Trayvon Martin case, I intentionally avoided discussion of the "initial aggressor" issue because I wanted to focus on the no-duty-to-retreat rule set up by Florida's self-defense statute and the fact that it had little to do with the immunity from prosecution and arrest that the statute also establishes. But the aggressor issue is unavoidable.

In general, the "initial aggressor" is divested of the right to use physical force in self-defense, much less deadly physical force, unless he withdraws from the encounter and indicates to the victim his withdrawal, and then the victim pursues. Thus, even in a "no duty to retreat" jurisdiction, such as Florida, the initial aggressor does indeed have a duty to retreat before resorting to deadly force. This should sound familiar to anyone who grew up with a sibling -- who can deny the innate sense of justice invoked by the words: "But s/he started it."

The trouble lies in the "it" that the other person supposedly started. What does one have to do to be considered the initial aggressor?

I have always found this to be one of the most maddeningly indeterminate questions of criminal law. In the case of U.S. v. Peterson, which I use in my Criminal Law class, the victim trespassed on the defendant's land and stole the windshield wipers from the defendant's vehicle, a misdemeanor. The defendant went into his house, retrieved a gun, returned, and told the victim not to move. The victim approached the defendant menacingly with a wrench and the defendant shot and killed him. The court held that the question of who was the initial aggressor was a question for the jury, rejecting the defendant's argument that the victim's trespass and misdemeanor theft made him the aggressor as a matter of law. (Confusingly, the court also held that the defendant had a duty to retreat, even if his dwelling extended to the curtilage of his house, because he was the initial aggressor as a matter of law!) Peterson tells us that committing an unlawful act does not necessarily make one an aggressor.

But then what does make someone the aggressor? A broad reading of some of the cases indicates that if the defendant was somehow "at fault," then he is the initial aggressor. But, if that were true, Peterson was wrongly decided because certainly the victim, by committing a theft, was the first person in the confrontation to act wrongfully. A much more narrow conception of "initial aggressor" encompasses an intent requirement -- one is the initial aggressor only if one's acts are, in the words of Peterson, "reasonably calculated to produce an affray foreboding injurious or fatal consequences" (emphasis added).

So let's apply this to the Trayvon Martin case. Florida Stat. sec. 776.041(2) is decidedly ambiguous on what an aggressor is: it provides that the right of self-defense is "not available to a person who [i]nitially provokes the use of force against himself . . . ." The critical word there is "provokes." "Provokes" might imply that some intent to precipitate violence is necessary. On the other hand, "provokes" can be read more broadly as simply triggering a violent response without intent that it occur, as when, in the classic voluntary manslaughter example, a wife "provokes" a fatal attack by her husband when he catches her in the arms of her lover, even if she did not expect to be discovered. The problem with this broad a reading is that one could be said to be the initial aggressor even by engaging in behavior that is entirely innocent, such as by asking a passerby for a handout, or even constitutionally protected, such as by telling the passerby that he practices a false religion and will burn in hell for it.

According to Zimmerman's statement to the police, released today, he had lost sight of Martin when Martin approached Zimmerman and then attacked him. Obviously, under this version of events, Martin is the initial aggressor. However, Martin's girlfriend has also said that she was on the phone with Martin when he heard him say, "What are you following me for?" and someone (presumably Zimmerman) answered, "What are you doing around here?" Martin told her that the man we now know was Zimmerman was following him and that he was going to walk quickly to get away. The Martin family lawyer has said that this information "blows Zimmerman's absurd self-defense claim out of the water."

Well, not quite. That would be true if following someone to ask questions rendered Zimmerman the "initial aggressor" as a matter of law. In that case, even if Martin had been the first to launch a physical attack, Zimmerman would have had to withdraw in order to regain the right to self-defense. But does following someone, even with the intent only to ask questions, render Zimmerman the "initial aggressor?" I would think not. This seems more like the panhandler hypothetical, except that Zimmerman had to approach and follow Martin in order to engage him in conversation. But, to me, the word "provokes" encompasses something more than asking another person questions, even one has to follow him down the street to do so.

This is not to say that Zimmerman could not be initial aggressor. If he followed Martin down the street with the intent to precipitate a violent encounter, or if he initiated physical contact, he would likely be the initial aggressor as a matter of law. And even if a jury believed that Zimmerman had no such intent, and that Martin initiated physical contact, it might be the case that Martin himself was justified in using physical force because he reasonably believed that Zimmerman was about to do him harm. In such a case, odd as it may seem, both may have had a valid self-defense claim, and there might not have been an "initial aggressor." But to say that the phone conversation between Martin and his girlfriend "blows Zimmerman's . . . self-defense claim out of the water" is, at the least, an overstatement.

An ACA Amicus Brief Worth Reading: The SEIU on the Medicaid Coercion Question

As Eric Lichtblau's front-page story in today's New York Times suggests, the Supreme Court has been a bit oversaturated with amicus briefs in the ACA litigation, to the tune of 136 briefs (on top of the extensive briefing by the parties themselves) on the four issues the Justices will consider this week. Given that staggering number, and the very real likelihood that exceedingly few of those amicus briefs will therefore be given careful consideration, I thought I'd write to flag one particular brief that, to my mind, truly stands out: The brief of the SEIU on the Medicaid coercion question--the part of the cert. grant that, to me at least, makes the least sense. Below the fold, I offer some reflections on the parties' briefing, and why the SEIU brief, in my view, makes such an important and noteworthy contribution.

I.  The Issue and the Parties' Framing

At SCOTUSblog, Lyle Denniston has a typically comprehensive discussion of the Medicaid question in "Part IV" of his ACA argument preview. Suffice it to say, the issue is whether the expansion of Medicaid eligibility in the ACA, which the parties agree would be severable from the rest of the bill if the minimum essential coverage provision were invalidated, itself violates the Tenth Amendment by "coercing" the states--along the lines Chief Justice Rehnquist hinted at in his majority opinion in South Dakota v. Dole. Arguing that "this coercion challenge is in a class of its own," the states' principal contention is that the ACA did not really present states with a choice when it came to accepting the expansion in Medicaid eligiblity. Yes, states could simply opt out of Medicaid, but the reality of current economic and budgetary constraints belies the feasibility of such an option.

In its briefing, the federal government's response strikes me as fairly tame, focusing on the extent to which the federal government, and not the states, will bear virtually all of the new economic burden imposed by the expansion in Medicaid eligibility. As the brief explains,

From 2014 through 2016, the federal government will pay 100% of the costs of providing medical assistance associated with the extension of eligibility. That amount will gradually decrease, to 95% in 2017, 94% in 2018, and 93% in 2019. In 2020 and thereafter, the federal government will pay 90% of these costs. That level of support significantly exceeds the typical federal contribution rates, which range from 50% to 83% of a State’s Medicaid expenditures and which have generally averaged 57%. 

These statistics are telling not just because they belie the states' claim that the expansion in Medicaid eligibility will impose a particularly onerous (and coercive) burden on them (later on, the government's brief suggests that the expansion in Medicaid eligiblity may actually save states money in the long term), but because they also help identify the real stopping-point of the states' argument, i.e., that Medicaid itself is unconstitutionally coercive. True, the states don't ever actually suggest as much (per the "class of its own" line quoted above), but it's hard to see how a limited expansion in Medicaid eligibility (for which the federal government is almost entirely financially responsible) could violate the Tenth Amendment when Medicaid itself doesn't.

The states' answer, such as it is, is that they have become so dependent upon Medicaid funding that they're in no position meaningfully to evaluate the merits of any expansion in Medicaid eligibility--that Medicaid itself may not be coercive, but any mandatory change to its scope is. Although the states stop short of framing Medicaid as a "vested right," the crux of their argument is that Medicaid has created a form of functional dependency on federal funding, which is why expansions like that created by the ACA don't really give states a "choice."

II.  The SEIU Brief and the Unconvincing Distinction Between the ACA and Medicaid Itself

Enter, the SEIU amicus brief, which can fairly be described as rejecting the feasibility of the distinction the states try to articulate, i.e., that there is a "constitutionally relevant and judicially manageable distinction between the pre-existing federal spending program [the states] desire to continue and the expanded program they challenge." In far more detail than the federal government's brief (which, to be fair, had other fish to fry), the SEIU brief focuses on the necessary implication of the states' argument--that Medicaid has in effect become a "vested right," and that, while the original program may itself be permissible, the expansion is necessarily coercive. 

Thus, the SEIU brief proceeds to make three points: First, there is no precedent supporting the idea that states "gain a 'vested' or otherwise constitutionally protected interest in the continuation of a federal-state cooperative spending program after Congress determines that continued federal subsidization of such a program is no longer its preferred course." Indeed, the Supplemental Security Income (SSI) program stands as decisive proof to the contrary, since Congress in 1972 converted it from a cooperative federal-state spending program to a solely federal spending program.

Second, precedent aside, 

Petitioners essentially argue that States face tremendous political pressures from their own residents to provide similar benefits to those in pre-expansion Medicaid, but would face difficulties in doing so absent federal funds because increasing local taxes would be politically intolerable. Judging these assertions in any meaningful way, if they were deemed legally relevant, would enmesh the judiciary in evaluating the relative strengths of various local political pressures and the relative merits of possible political tradeoffs.

For a host of reasons, the brief explains, courts are ill-equipped to enter into such a "realm of quintessentially political decision-making regarding the relative importance and inter-relationship of different aspects of a federal spending program that Congress has linked together as necessary to promote the general welfare."

Third, and most tellingly, accepting the states' argument "not only would treat the States in a manner highly inconsistent with the constitutional plan — i.e., treat them as dependent entities in need of forced federal assistance, secured by judicial intervention — but it also would mean that Congress’ authority to define the scope of the programs it is willing to fund is limited by either the States’ present desires or the spending decisions of prior Congresses." But as the brief argues, clearly, Congress could terminate the Medicaid program in its entirety, and then create a brand-new program that is virtually identical to the current Medicaid program as expanded by the ACA. If both of those steps are constitutionally permissible, where is the flaw, here?

Whatever else one might say about the minimum essential coverage provision, or the ACA litigation more generally, I've never been particularly convinced that the Medicaid challenge is a serious one--and the SEIU brief, to my mind, goes a long way toward explaining why. At the end of the day, I have to think that the only chance the states have at succeeding on this claim is to convince the Court that it can meaningfully be distinghished from a challenge to Medicaid, writ large. There may be folks out there who don't think this distinction matters because Medicaid itself, in their view, raises similar constitutional concerns. However plausible this argument is descriptively, I think it's a non-starter before this--or any other--Supreme Court. Ultimately, then, if the SEIU brief does nothing else, it rather conclusively proves why the distinction on which the states have seized ultimately fails to persuade. But that may be the only point that matters...