Sunday, February 01, 2015
Managing Our Microbial Mark: Lessons We Can Learn About Pay for Performance From Ebola's Arrival at Our Shores
It has been a privilege to join you here this past month. I close out my month as a guest with some thoughts from my current research on pay for performance, coming soon to my SSRN page.
If you've seen any of the data on the apparent ebbing of the Ebola virus outbreak in west Africa, you know that the news is good. The incidence of new reported cases is reduced and, unlike the low reported incidence from this past summer, public health officials seem to have more confidence in these reported numbers.
What is even more interesting is that is hard to say exactly what combination of domestic, international, and community efforts is bringing the number of new cases down but it has been observed that, in some places, habits and customs changed faster than in others. Those able to improve health and sanitation as well as health and sanitation literacy faster were able to reduce incidence faster.
What can we, in the developed world, learn from all this? That hand washing matters in disease incidence and transfer? That communal pressure to improve things like hand hygiene can actually make a difference, even among the less aware and less motivated? That Ebola needed to be brought out of the shadows before incidence and transfer could be fully addressed?
I have been thinking about what our brush with Ebola at our shores tells us about our health care system and our own capacity to learn these lessons from the developing world.
Ebola’s presence, however limited, in American acute care facilities has brought to light the limitations of current infection control procedures in American hospitals. Yet little has been done to extend lessons learned from Ebola transmission to non-Ebola infectious disease control. In this, we have more in common with west Africa than we may think, where focus on a single disease often disrupts health systems. Here, a focus on one disease allows us to focus on specialty care for that disease alone, without placing that disease’s spread in the larger context of infection control failures in America’s acute care facilities.
Persuaded, on some level, that the proliferation of hand sanitizer dispensers will immunize us, we alternately confront our own worst fears of a “super bug" while managing to continue to participate in our communal lives, including the highly communal and congregate experiences of acute care hospitalization and nursing home residence much as we always have since the rise of these two peculiarly modern forms of health care institutions in the 20th century. And, yet, everything is changed.
More on this and many other topics at my own blog.
Wednesday, January 28, 2015
Primed for Change
It is hard to believe that it was just about a year ago that I blogged here about Prime Health Care's transition from a bit player to a major player in acute care hospital ownership. A lot can happen in twelve months, especially when you are on an acquisition binge.
Prime, you may recall, specializes in the acquisition and turnaround of financially troubled acute care hospitals. Prime operates 29 hospitals in California and eight other states.
I write today about Prime's proposed acquisition of six hospitals in the Bay Area, a subject that has produced both considerable heat and light. If California Attorney General Kamala Harris approves the Daughters of Charity acquisition, Prime will become the fifth-largest hospital company in the United States, based on revenue.
The California Attorney General's review of this transaction, as required by California Corporations Code section 5914 et seq. continues apace. Consistent with the statute, the public hearings have begun. Consistent with California politics, the letter writing campaigns have begun. You can see the public documents here.
I don't envy Kamala Harris. It could be that there is just no way to please everyone here. I have written another time about the strong reactions provoked by hospital ownership transfers and closings.
The Daughters of Charity want out of their debt and do not hesitate to assert that a closed hospital -- apparently their view on the likely outcome if the sale to Prime is derailed -- costs lives. The interesting thing about this approach is more isn't necessarily better. The SEIU opposes all Prime acquisitions. The problem with this is that it contemplates absolutely no place for a turnaround artist like Prime Health Care in acute care hospital markets.
It is important to remember that California is not a certificate of need state. No CON is required to enter the acute care hospital market nor to exit it. This can produce some utterly remarkable outcomes -- my personal favorite has always been the acute care bed arms race that raged in and around Redwood City a decade or so ago where the largest acute care bed players raced each other to launch their projects to build hundreds and hundreds of new acute care beds in close proximity to each other. Those familiar with the particular torture of a Redwood City to San Francisco automobile commute will appreciate that I used to observe that whoever lost the acute care bed arms raise could convert their million dollar plus per bed facilities to emergency housing for trapped commuters.
The political theater, of course, is outstanding. But do not be distracted from the exponential growth of Prime Health Care, a business model only destined to grow as health care reform's amplification of the movement of health care outside of not for profit acute care facilities continues.
Tuesday, January 27, 2015
Extending Unequal Second Amendment Rights
Stories like this one - a 62 year old African-American man is tackled to the ground in a Tampa Wal-Mart after a white man saw him bringing a (legal) firearm into the store - have me wondering how to think about the idea of extending Second Amendment rights in a world where we can pretty well predict, ex ante, that they will not be equally available to all citizens. We can reasonably expect this sort of citizen self-help given that a big part of the case for arming all citizens is that they'll use their guns to intervene before bad things happen. But given past experience, we can also expect that race will also play a part in whether police officers decide to stop citizens based only on their visible possesion of a firearm.
We already know that there is a vast privacy gap between African-Americans and whites in the sense that Blacks are far more likely to be subject to a stop-and-frisk than whites. (And it's hard to make the case that this gap is based on higher frequency of suspicious conduct when, for instance, we see that both New York and Philly police were finding contraband in well fewer than 10% of their street stops.) Then there's Driving While Black. I think it's fair to say that African-Americans and whites don't get equal benefit from the Fourth Amendment.
And that's a sticky problem. Under current law, there isn't much you can do except to change police conduct from within. Courts don't have a lot of sway. Evidence suppression doesn't work for people who aren't arrested and nobody can count on getting compensation for a fruitless search. That's why people like Michelle Alexander are looking to public debate and activism as a possible solution.
With the expansion of the Second Amendment, we have a chance to think more about the problem early on. Although many states have long provided easy access to carry permits, the new, more muscular Second Amendment will likely lead to an expansion of gun carry rights. But it seems likely that these new rights will not be extended equally. First, though the permits themselves will be granted using formally neutral rules, provisions such as prohibiting permits for convicted felons will embed historical racial disparities in arrest, prosecution, and conviction. Theres more, however. In my mind, the right to carry a gun includes more than the right not be convicted for doing so; it also ought to include the right to carry a gun and not get stopped and searched for doing so. In that respect, I fear we won't deliver equal rights.And those disparities only reflect the burdens imposed by the state. It doesn't even touch about the fact that private citizens may be unwilling to tolerate the equal extension of gun possession rights. As long as people consider African-American + gun as a crime in progress, which was the Wal-Mart case - a gun carry permit will never confer upon African-Americans the same freedom to carry.
So what to do? One possibility is to say: it's inappropriate to extend rights to one population if every population can't receive an equal benefit. The contrary view is to see the Second Amendment just like the Fourth Amendment: a right which society will have to struggle to enforce equally but which, given its constitutional basis, ought to be extended as far as possible immediately. (And of course most Second Amendment advocates will argue that there is no extension going on here - only a much-delayed enforcement of an existing right.) But is there a third way? Could we view it as a property right which is impaired when a person is subject to a search? Might there be a novel Fifth Amendment claim here? Could we impose a tax on guns that is used to fund a statutory compensation scheme? Is there a way, other than the exclusionary rule, to disincentive police over-reach? (Something like Richard Myers' Fourth Amendment Small Claims Court?)
This is all half-baked, but it's a problem that troubles me. I'd love thoughts.
Wednesday, January 21, 2015
Acoustic Separation and Immigration Reform
In Decisions Rules and Conduct Rules: Acoustic Separation in Criminal Law, Meir Dan-Cohen talked about the partial acoustic separation between criminal rules as understood by the public and criminal rules as understood by the courts imposing sanctions. For example, we believe that in some cases, a person committing a crime under duress is not legally culpable - and her conduct may be excused. But we don't want people running around factoring in this possibility of legal excuse into their decisions at the moments they are actually under duress. We want them to experience the full legal risk of their conduct at that moment so that we can conclude they really were acting under the most extreme pressure.
I give this background only by way of explaining the concept. My rumination today has a first cousin relationship to Dan-Cohen's framework.
I was struck by the decision of Republicans to take two approaches to immigration in their response to the President's State of the Union. To English speakers, Joni Ernst made no mention of immigration at all. That is the story the GOP wants to tell to its English language base. But the party also needs support from the Spanish speaking community as well. So to this pool of voters, Rep. Carlos Curbello stated in his Spanish language response, "We should also work through the appropriate channels to create permanent solutions for our immigration system, to secure our borders, modernize legal immigration, and strengthen our economy."
I imagine that this separation will be reasonably effective - if, perhaps, not deeply consequential. Acoustic separation is never complete, but most people don't dig that deeply into law or policy. While the policy wonks who read Politico now know that the GOP has two slightly approaches to immigration reform - one being silence and the other marking immigration as a priority - most voters will not. I'm not sure that Curbello's comments would have deeply alienated the GOP base - though I'm guessing that GOP speechwriters thought immigration wouldn't be a galvanizing issue for her English language listeners. Maybe they imagined it might even drive a few voters away. (Indeed, the GOP later flipped on whether Curbello's statement was the Spanish language response - though that flip itself was presumably largely invisible.)
I know that candidates and parties commonly frame issues differently in media outlets targeted to divergent demographic groups. Perhaps this was just a case of my own naïveté in thinking that was was such a thing as "the Republican response to the State of the Union". In any case, it foreshadows and highlights a fundamental challenge for the GOP over the next two years.
Monday, January 19, 2015
Bedside Collections Visits in the Emergency Room
Should acute care hospitals be prohibited from attempting to collect health insurance co-pays and other forms of co-insurance bedside in the emergency room?
There isn't actually that much to garner a laugh in Steven Brill's new book America's Bitter Pill, but his description of how medical debt collector Accretive Health sells its services to its acute care hospital customers brought a smile to my lips. First, this was because the "Accretive Secret Sauce" is bedside Emergency Room collection and second, because Steven Brill had apparently never heard of this practice until researching this book.
Just where has he been making visits to the ER with his children? It is reported that at least half of acute care hospitals nationwide have been charging upfront ER fees. We are on the cusp of an era of changing constraints on hospital debt collection practices, including a change to the rules about bedside debt collection in the Emergency Room. Most of the new rules focus on those who likely would ultimately be eligible for free or reduced care and how they are to treated pending that determination. But what about the Bruce Folkens of the world-- the ones who most likely will not be eligible for free or reduced fee care? Will upfront fees in the ER remain the rule for them?
After all, could it be that New York Presbyterian, whose expertise in resolving aortic aneurisms such as the one Steven Brill suffered and describes as the narrative framework for much of his book, does not engage in this practice? If not, is it because their post-Emergency Room discharge collection numbers are stronger than those of Fairview Ridges Hospital in Burnsville, Minnesota?
We'll never know because, like a great many important topics in Steven Brill's book, we only know the anecdotal, the one off event. So, let's pause and do justice to Steven Brill's account of Bruce Folken's several hour visit to Fairview Ridges Hospital in Burnsville, Minnesota for chest pain where, yes, a hospital employee asked him about his plans to pay the remaining $493 left on his annual deductible.
Bruce Folken's experience at Fairview Ridges Hospital was not unusual in several ways. First, chest pain is one of the most common reported symptoms that drives Emergency Room visits in the U.S. and Bruce Folken's outcome (a diagnosis of indigestion) is also not atypical. Second, it is further not unusual that ruling out a significant cardiac event does not come cheap for reasons that the rest of Steven Brill's book struggles to explain.
So, once Brucke Folken (described as half way through his visit and resting in bed with an IV) was ruled-out as an emergency cardiac patient, why the rush to obtain payment? Could it have been that the hospital has been monitoring its collection rate and noted that Emergency Room bad debt is a disproportionate share of acute care hospital bad debt? Of course, the fine line here is between bedside debt collection from those using the ER for genuinely emergent care and those using it for urgent or even routine care and Accretive has, more than once, found itself on the wrong side of that line. Bruce Folken's situation is right on the line -- perhaps genuinely emergent at the beginning but morphing into urgent by the time bedside debt collection was undertaken.
If this offends, perhaps it is because of the retrospective determination of the validity of use of emergent care under the prudent layperson standard or some other standard found in Bruce Folken's policy, but surely not in having a substantial co-pay outstanding at the time of an ER visit.
You see, this is a scenario that will only increase in frequency. More and more of us are enrolled in high deductible plans and the trendline points upward. So, of course there are now and will be many more Bruce Folkens among those of us with unmet high deductibles and Emergency Room needs.
Don't forget your wallet.
Thursday, January 15, 2015
Chasing the Dragon in the Shadow of the OX
The numbers are in and it is official: deaths from heroin overdoses in much of the United States have doubled in the past two years. Whether the heroin was injected or smoked ("chasing the dragon"), there is some evidence that, in many places, heroin has increased in both availability and purity in the same time period.
How to explain this?
One school of thought -- I'll call it the opiate demand substitutability school of analysis -- tracks the increase in heroin's popularity to the increased difficulty addicts are reported to be having in accessing oxycodone ("OX") in light of state and federal efforts to reduce prescription drug abuse. The street value of OX has increased (at least the street value of original formulation OX has increased, while the street value of OX in the resistant to crushing and snorting format has actually gone down) and there is anecdotal evidence from treatment centers for injectable drug users that the migration from OX to heroin is well underway.
Another school of thought -- I'll call it the progression of addiction through the population school of analysis -- is that prescription drug abuse, particularly in the 18-25 age group, is still rampant but the increase in heroin overdose fatalities demonstrates a cohort of aging opiate addicts moving through the progression of addiction, seeking an ever cheaper and more powerful high. This might explain the high demand for heroin of a purity previously not well known in the United States.
Whichever theory you subscribe to -- and some thoughtful addiction specialists subscribe to both-- the increased death rate from opiate overdose is data playing out as the back story to our ongoing debate over the wisdom and utility of providing naloxone (the antidote for heroin overdose) for emergency use. Some states have now approved the training of and distribution to first responders and lay people of naloxone for just this use.
But we are conflicted. Is naloxone a step toward condoning use? If the overdose death rate is lower where heroin is both safe and accessible, is naloxone's arrival just a further expression of our own ambivalence about treatment for addiction?
Tuesday, January 13, 2015
What should we infer about the health of our democracy if the major party nominees in 2016 are Jeb Bush and Hillary Clinton? Here are several possibilities:
1. Nothing, they're just the most qualified candidates.
2. Nothing, family dynasties are no different from the other kinds of political dynasties (relationships of mentorship and support, party hierarchies up which one moves, etc.) democracies have had since time immemorial.
3. An indirect worry: when the only viable presidential candidates are close family members of prior presidents, this is strong evidence that access to positions of power is not genuinely open to all citizens.
4. A direct worry: family dynasties are just flat-out inconsistent with democratic values.
I am personally torn between views #2 and #3, but a case could be made for all of them.
Monday, January 12, 2015
The Art of Saving a Life
Perhaps you saw the recent New York Times Arts Section review of the vaccination promotion campaign sponsored by the Bill and Melinda Gates Foundation. The campaign, as part of an international effort to raise funds to inoculate millions, has commissioned artists to interpret the "Vaccines Work" tag line.
The article was accompanied by the reproduction of three of the remarkable commissioned pieces, but it was Alexia Sinclair's tableau of a 18th century vaccination that caught my eye. A young boy is clearly receiving the innoculation from a bewigged doctor while the mother -- detached and yet attached -- sits apart and looking away from the tableau while also reaching out to reinforce the doctor's acts with an almost yearning reach of her hand. All of them sit in a fine 18th century sitting room, yet the carpet of grass and blossoms -- we are told of the artist's vision -- was meant to symbolize the virulence of smallpox. "It brings a fashion-y aesthetic to a virulent disease" the New York Times notes.
Smallpox is not pretty. But the asethetic of the Sinclair tableau is not exactly beautiful, more profoundly eerie. I wonder if it doesn't also tap into our modern anxieties about vaccination. It is, after all, an act of faith to vaccinate, then as now.
If you visit "The Art of Saving a Life" website you find Alexia Sinclair's tableau titled "Edward Jenner's Smallpox Discovery." Edward Jenner, sometimes known as the father of immunization, did not discover the smallpox vaccination, however. He was, rather, the first person to confer scientific status on the procedure and to pursue its scientific validation. Vaccinated against smallpox himself as a young boy, he spent some of his prodigious talents attempting to validate the mikmaids' truism that exposure to cowpox meant immunity to smallpox.
Seen from this perspective, eight year old James Phipps (Edward Jenner's first human subject) and Sarah Nelms (the milkmaid donor of cow pox for transfer to James Phipps) ought be in Alexia Sinclair's interpretation of Edward Jenner's smallpox discovery.
Wednesday, January 07, 2015
In Defense of Facebook Copyright Disclaimer Status Updates (!!!)
Every few weeks, it seems, Facebook unilaterally changes its terms of service, by providing something like actual or constructive notice to its members of the new terms. Often, the new terms offend people by making, or being believed to make, either privacy or licensing claims with respect to intellectual property posted by users. Sometimes, Facebook doesn’t even actually change its terms, a rumor just comes about that it has changed its terms (some “contracts” these are, that are spread primarily by rumor).* Invariably, a bunch of people then decide that, hey, goose, gander, if Facebook can unilaterally change the terms of our agreement by presenting new ones where, theoretically, a user might see them, then a user can unilaterally change the terms of our agreement by presenting new ones where, theoretically, some responsible party in Facebook might see them. Accordingly, they post Facebook statuses declaring that they reserve all kinds of rights in the content they post to Facebook, and expressly denying that Facebook acquires any rights to that content by virtue of that posting.
That’s not an obviously stupid notion, at least to the lay conception of how law ought to work (i.e., evenhandedly). But after each of these public convulsions, the wise heads of the media, blogosphere, and the like leap to service to reassure(?) the public that no, you can’t unilaterally change Facebook’s terms, even though Facebook can unilaterally change yours. (Just from the last few days, we have, for example, WaPo, CNN, Snopes, and Cnet.)
I’d like to defend the laypeople against the insiders (under the fold).
Let us assume that the media graybeards are right. I have my doubts, largely for the reasons expressed with great force by Radin (i.e., why should we pretend that the Facebook terms of service are real contracts in the first place, when that’s obviously nonsense?). But let us be conventional here, and assume that under the best interpretation of current U.S. contract doctrine Facebook does indeed have the power to set, and unilaterally change, the terms of service that apply to people who wish to make use of their intellectual property and server space, and that users do not have the similar power to set and unilaterally change the terms under which Facebook uses their intellectual property and personal information.
What, then, should we think about what’s going on in the heads of people who post the disclaimers as their Facebook statuses? Are they merely ignorant? Are they worse than ignorant---are they profoundly deceived about the nature of our legal system, like the “sovereign citizens” who believe they can immunize themselves from taxes by writing some magic words on their IRS forms?
To the contrary, I think the Facebook status-updaters reflect both cause for hope and cause for worry about our legal system. The cause for worry is that the system does seem to present itself as magic words. The Facebook status updates, like the protests of the sovereign citizens (but much more mainstream), seem to me to reflect a serious alienation of the public from the law, in which the law isn’t rational, or a reflection of our collective values and ideas about how we ought to treat one another and organize our civic life. Instead, it’s weaponized ritual, a set of pieces of magic paper or bits on a computer screen, administered by a captured priesthood, which the powerful can use to exercise that power over others. With mere words, unhinged from any semblance of autonomy or agreement, Facebook can (the status-updaters perceive) whisk away your property and your private information. This is of a kind with the sort of alienation that I worried about over the last few posts, but in the civil rather than the criminal context: the perception that the law is something done to one, rather than something one does with others as an autonomous agent as well as a democratic citizen. Whether this appears in the form of one-sided boilerplate contracts or petty police harassment, it’s still potentially alienating, and, for that reason, troubling.
And why shouldn’t they see the civil law that way? From the perspective of an ordinary citizen, when they interact with the civil law, it’s usually in the form of some more powerful party erasing, as Radin puts it, their rights. And contract law isn’t the only culprit, as many industries routinely pair one-sided contracts of adhesion with procured legislation that preempts state consumer protection law en masse, criminalizes otherwise ordinary uses of otherwise ordinary consumer goods, and allows more powerful parties to deny ordinary people a day in court. Does an ordinary consumer, who does not own a business or commercial property, ever have a good interaction with the law, one in which it’s used as a tool to make fair agreements with other people (the Hayekian conception of the common law, so loved by libertarians) rather than as a fence imposed by those who are more powerful to bound his or her world?
But the cause for hope is that those who post the Facebook magic words still seem to think that the law represents some kind of valuable reciprocity. Rather than viewing the power of legal magic words as one-sided, the way relative insiders like those linked above from the Post, CNN, etc., do, these outsider citizens imagine that legal magic words are two-sided, that they can turn around and use the same magic to reclaim their rights as those with control over money and power use to take them away.
It seems to me that this is a perception that we insiders should encourage, and that we should work to bring it about that that happy perception accurately reflects the world.
I also think that social science and legal scholarship should come together to investigate this alienation hypothesis. I might be totally wrong: maybe the combination of petty law enforcement and adhesive contracts are not the chief ways that ordinary people interact with the legal system. Or maybe I’m right about that interactional claim, but wrong about its implications for perceptions the legal system: maybe people do nonetheless see the legal system as a more-or-less fair way of ordering our common lives as well as creating a framework for private ordering.
* Incidentally, the comforting media reassurances that, "don't worry, Facebook isn't actually making any claims on your data," are, as I read its "data use policy," less than fully accurate. While it is true that Facebook does not claim ownership of intellectual property posted to the service, it does say the following:
While you are allowing us to use the information we receive about you, you always own all of your information. Your trust is important to us, which is why we don't share information we receive about you with others unless we have:
received your permission;
given you notice, such as by telling you about it in this policy;
or removed your name and any other personally identifying information from it.
As I read that passage, the "or" is quite fraught: it suggests that Facebook may use "your information" at will on (constructive) notice, regardless of whether it has explicit permission, and accordingly amounts to a claim of an unlimited license to reproduce, make derivative works from, and publicly perform any and all copyrightable material one happens to have shared with it on such notice. Imagine if I sent an e-mail to a movie studio telling it that as a condition of my allowing one of its DVDs to sully my computer, viewing the advertisements contained in its unskippable previews, etc., I claimed a right to share "its information" with others on mere notice!
Tuesday, January 06, 2015
Harvard Gets a Taste of Its Own Medicine
The transformation of the employer sponsored health care plans offered by Harvard University has hit the press. Heck, it was even discussed at AALS. Harvard has insulated its employees longer and more fully from the transformation -- begun before the passage of the ACA but accelerated by its implementation -- of its employer sponsored health insurance from a risk shifting to a risk sharing model. By this I mean that Harvard's employees are being introduced to a world of higher cost-share (deductibles, co-pays, etc.). Some Harvard employees are not happy at all.
I am agnostic on the question of whether Harvard ought single-handedly bear the cost of expanded health insurance. Conversations about Harvard's endowment are inherently fraught.
Regrettably, what has gotten less attention is the idea that Harvard might -- as some employers have -- embrace narrow networks in at least some of its offerings in order to offer a variety of plans that trade off choice and cost. The New York Times did note: "But Harvard’s ability to create such networks is complicated by the fact that some of Boston’s best-known, most expensive hospitals are affiliated with Harvard Medical School. To create a network of high-value providers, Harvard would probably need to exclude some of its own teaching hospitals, or discourage their use."
Oh, so much more could have been said. Harvard's teaching hospitals are, in fact, a leading contributor to health care inflation in Massachusetts, as the Massachusetts Attorney General's 2013 report on the matter amply demonstrates. The increased concentration of hospitals in Massachusetts, particularly those under the Harvard affiliated banner, has also played a significant role in high health care inflation in Massachusetts. And the proposed Partners Health merger, combining Harvard teaching hospitals with community hospitals has some people concerned that the post-merger entity will bring community hospitals under the Harvard teaching hospital reimbursement rate system.
If Drew Gilpin Faust were really serious about controlling health care costs for her employees, she might have to consider steering her own employees past Harvard affiliated facilities. But that may not pass the political laugh test.
Harvard may be learning what academic medical centers have been learning for a long time: it can be difficult to operate a medical center that serves your own employees at a cost effective price point, a bitter pill indeed.
Policing Part 3: Some Unoriginal Thoughts on Cost-Benefit Analysis
I hadn’t intended to start an extended debate about policing on this blog; the area isn’t even particularly within my expertise. But the very interesting discussion sparked so far, along with a story that I just saw and an experience I just had, have inspired yet a third (and hopefully a final) post on the subject. It’s a call for more open talk about the costs even of effective law enforcement, and has some remarks about race and class as well as about Singapore, below the fold. Nothing in here is terribly original (not within my expertise, remember?), but these are things we need to be talking about right now, in the context of the Brown and Garner killings and the NYPD slowdown. So consider this an attempt to steer the conversation toward territory well trod by others.
First the story. The Guardian just wrote a sort of urban profile of Singapore, focusing on the way that its extreme public order policies (chewing gum banned to keep it from littering places, etc.) underpin its low crime, prosperity, etc. This matches my very slight experience of the country—a few years ago, I was sent by a nerd camp program to teach a very short (days, not weeks) political science intensive to some middle-schoolers, and my impression of the country was one of almost overwhelming sterility. Much of the city was a giant underground shopping mall, everything was very, very clean, but very, very intimidating. I spent the entire time terrified that I’d teach the kids something a little too liberal, or thoughtlessly spit on the street or something and get arrested. This attitude of fear appears to me to be deliberately cultivated by the state. The first greeting I got from the Singaporean government was its infamous immigration form, which announced “death for drug traffickers.” Ghastly.
Second, the experience. Yesterday afternoon, I defended myself in a traffic ticket trial in Princeton municipal court. (It was a quixotic attempt to get the court to read a mens rea requirement into a crosswalk law. I lost. I may appeal.) As happens in municipal courts where almost nobody tries anything, I sat there for hours while the court ran through its entire docket of first appearances and warrants before getting to me. The most astonishing case up before mine was that of an early 20’s-appearing, neatly but not expensively dressed, Black man. He’d been picked up on an arrest warrant for a three-year old fine of about $600; since it was three years old, I imagine it was probably originally a much smaller amount and for something pretty minor, before the fees that get added when one misses a fine. He claimed that he’d simply not realized the fine was due, and that as he was a temp worker with inconsistent income, he couldn’t pay anything on the spot. However, he had just gotten an assignment, and would get his first paycheck in two weeks. Accordingly, he was confident he could handle a $100 month payment plan, beginning with the first payment in two weeks with his first paycheck. The judge accepted his payment plan, but scheduled his first payment not for two weeks from the date, but for the very next day, on pain of another arrest warrant. There was no evidence introduced about his ability to pay other than his own testimony, which seemed honest and believable to me; he seemed like a good guy and a straight shooter.
What the Singapore story leads me to think is this: let us suppose arguendo that things like the “broken windows” policies work, that aggressive enforcement of laws that I would consider petty really does make life better in a lot of ways—cleaner streets, and maybe even less serious crime. At what point is the marginal gain in things like cleaner streets and less crime outweighed by the marginal cost in things like conformity and fear? It seems pretty clear to me that Singapore has gone too far in one direction. New York obviously isn’t Singapore, but has it, too, gone too far? How would we tell?
What observing the guy picked up for the overdue fine leads me to think is this: what about the economic and social cost of broken windows-type policing (scholarly ref 1, scholarly ref 2, District Court opinion from last year finding racial bias in New York City stop and frisk practices; all three references just skimmed, no full endorsement intended)? And who pays that cost? The answer to the second question is obvious: people of color, who are profiled, and poor people, who have their lives disrupted by the costs that those of us with more money can easily absorb. And while the racial disparity is a product of our own disgusting racial politics and history, the class disparity is, I would suggest, almost a structural necessity—the rich have more access to private spaces to carry out acts that are punished in public but de jure or de facto decriminalized in private (or just hard to enforce behind walls); the very poor lack even the spaces to carry out basic acts that are de jure legal in private but criminal in public like drinking and urinating.
My crosswalk fine won’t disrupt my life. but what will happen to the young man who was ordered to pay today money he won’t have until two weeks from now? A temp worker who cannot come up with a hundred uncommitted dollars on demand is on the economic knife-edge, and so the judge’s order could easily cause extreme collateral damage. He might not pay it, in which case he’ll be under yet another arrest warrant, and could easily get hit with more fines, or get picked up again and this time lose a job because of the jail time. Alternatively, he could take unaffordable measures to pay for it. He could take out a payday loan, perhaps, rolling it over repeatedly and ultimately paying hundreds more dollars to the lender. He could skimp on rent, and risk getting evicted. He could skimp on car repairs or a car payment, and risk losing employment because of inadequate transportation. The point being that for the poor, being subject to a fine backed up with the power of the state in the hands of a compassionless judge can lead to massive collateral consequences. And criminal justice policies that subject everyone to a greatly increased risk of petty fines put those without the cushion to absorb those fines at risk of greatly magnified economic impact. This, too, is something that needs to be taken into account in any cost-benefit analysis of petty policing policy: how much crime reduction is needed to justify putting people into increasingly precarious economic positions this way?
Even if you think (as the unempathetic judge evidently did, and as I do not) that the man before the court was to rightly blame for not knowing about the fine, or for not having budgeted to pay it, these consequences go beyond the individual. As a society, is a little bit of public order worth having some of our members in more precarious economic positions? Poverty does not hurt only the poor.
Saturday, January 03, 2015
The Problem with Petty, Pedantic, Penny-Ante Policing
As a follow-up to yesterday's post, I'd like to say a little bit more about what seems wrong, to me, with pervasive small-fry/penny-ante policing, both in the form of “broken windows” and “stop and frisk” policies like those associated with post-Giuliani New York City, and with more naked attempts to use the petty criminal justice system for revenue purposes like we've seen in Ferguson and like critics of red light cameras and similar devices have been alleging for years. As a rule of law specialist, and someone whose thinking is moving more in the direction of the democratic rule of law this year, it seems to me that such regimes are highly problematic even if (in a hypothetical universe where we don't have America's race problem) carried out in a genuinely racially unbiased fashion. And they remain problematic even if it can be shown, as some commenters suggested in the prior post, that policies like broken windows actually reduce what I would like to tendentiously call "real crime."
To be clear, the concern is with laws that penalize ordinary behavior---behavior that many or most people do at least sometimes, either because that behavior is consistent with social norms (smoking a joint, not coming to a complete stop before turning right on red), or because it is easy to accidentally do the behavior (violate a complicated parking sign). And the worry is that such laws, when pervasively enforced, break the connection between genuine wrongdoing (in the sense of the violation of social norms, also in the sense of doing anything actually morally wrong) and negative interactions with the legal system. When the law routinely penalizes ordinary folks for doing things that ordinary folks in the community do, or hammers people with large fines for understandable day-to-day screwups, legal punishment stops looking like a consequence of doing bad things to others, and the law stops looking like an expression of our collective sense of how we ought to treat one another. Instead, it starts to look like a form of taxation, or a negative lottery, in the sense that the "lawbreaker" is one who just happened to have the bad luck to be in front of an official when acting like a normal person, and now has to pay the price.
Here's a silly case from a few months ago. Culver City, CA, had a notorious fifteen-foot high parking signpole with eight separate signs, some (but not all!) listing complicated restrictions. It hit the press, to public outrage and mockery, and the mayor removed it, promising to replace it with one that only had four signs. Now, there are a lot of things that might be said about this kind of rule. Were I cited under it, I'd probably try a due process defense. From a jurisprudential perspective, we might wonder whether it ran afoul of Fuller's dictum that a law should not be impossible to follow (I suppose the safest course would be to just read it as a really big “no parking, ever,” sign, but if the city wants to ban parking at a spot outright, one might think it ought to just do so openly). It also seems like the mayor's “solution” is small comfort—50% of insanity is still insanity. But what I really want to ask is: how should we expect someone who gets a ticket under such a sign to feel? Are they to understand themselves to have actually done something wrong? Will they finish their interaction with the legal system feeling well-treated or ill-used? Will they trust the next public official they see? Will they have any clue when they can legally park in the same spot next time? Will they even bother to try?
This isn't just about legal complexity. When the issue is serious, when the stakes are high, or when the regulated are sopisticated, legal complexity might be justified. And this isn't a brief for some kind of anarchism or thoughtless libertarianism. Rather, it's about harassing people and filling their lives with legal triviality: about when normal people going about their day-to-day business, like picking up their kids from school, are liable to negative lotteries inflicted by the police over things that, honestly, don't matter. Then, it starts to feel less like law and more like “swarms of Officers to harrass our people, and eat out their substance.”
Another illustrative case. Some years ago, a friend of mine was arrested for public drunkenness in New Orleans. Many will tell you that public drunkenness arrests are basically the tourist tax in New Orleans---so long as you don't wander out of the French Quarter, you're ok, but the clueless tourist who drunkenly stumbles a little too far out of the tourist zone gets (or got, at the time) about four hundred bucks in post-and-forfeit bail money as the penalty for not knowing the local norms. Such arrests are obnoxious enough as is---it's New Orleans, everybody's drunk, and the city survives off of the drunk tourist trade!---but this case was particularly bizarre, because, as I recall (and this was about a decade ago, so memory may embellish), she was arrested out of the back of a taxicab. She was drunk. She was in public. So she did what social norms as well as common sense suggest one is supposed to do: she called a cab to take her home. The officer saw her stumbling on the way to the cab, pulled it over, and arrested her. Tourist tax. But! Technically legal. Well within his powers.
Legal punishment ought to be seen as a consequence of genuine misconduct, not of bad luck. There are plenty of moral arguments for that claim, but perhaps most worrying is a pragmatic one: if day-to-day law on the streets becomes a negative lottery, it poses the danger of delegitimizing the system. Democratic law depends in extremis on democratic buy-in (just accept this for now; I'm trying to put together a book-length argument for it and related propositions at the moment): the people themselves are the ultimate source of legitimation as well as enforcement in a democratic legal system. If they become cynical about the legal system as a whole, and stop understanding it as an expression of their collective values, as a result of its visibly unreasonable or unjust impositions on their lives, then it ceases to be democratic. In sufficiently egregious cases, it might collapse; in less egregious cases, it might be maintained by sheer force of elites and the state, unhinged from ongoing democratic justification. Will a bunch of unfair traffic tickets achieve those horrible results on their own? No, obviously not. But they are a case of a larger phenomenon which, as a whole and if it becomes more pervasive, does threaten those results. And that seems to me to give us a good reason to oppose the sorts of things that the NYPD, out of the kindness of their temper-tantruming hearts, are currently not doing.
To be fair, taking such a position raises as many questions as it answers. We probably ought not to repeal all of the petty laws (every once in a while, someone really oughta get a parking ticket). And we can't leave it all to the discretion of police officers, because we know what happens when officials get too much discretion. So what do we do?
Until we discover a reliable way to actually control the abuse of on-the-ground official discretion—principal-agent problems, disparate information, we know the drill—it seems we have a trifecta of bad choices: repeal the laws, over-enforce the laws, or accept the price of discretion. Personally, the first option seems like the lesser evil. And, who knows—can social sanctions effectively keep the level of peeing in the street and parking in the disabled spot down to a dull roar even in the absence of punishment? Maybe the NYPD will help us find out.
Friday, January 02, 2015
Hello! And, the NYPD "Slowdown"Hi everyone---it's great to be here. This is my first Prawfs visit (hopefully of many), and I really feel like one of the cool kids now. Also, appearing here reminds me of Dan---he and I were in law school together back in the dark ages (my 15-year reunion is coming up in a few months---madness), and I remember when he started this blog years ago. Last saw him a couple AALSes ago in New Orleans---you are missed, Dan. Relatedly, I hope to see many of you at MarkelFest tomorrow @AALS. And if you have nothing else to do at 8:30am tomorrow morning, come see me being terribly intimidated on the same panel as Harold Koh and Judith Resnik, at the law and humanities section. But actually, word is that there's a Ferguson panel at the same time, which is obviously much more important.
For the next month, I'll be blogging about some of my crazy interdisciplinary stuff---there will be a lot of math-ey things, including a series of posts about game theory for legal scholarship, maybe even a post about algorithmic grade curving. I'm also considering other crazy interdisciplinary things (any requests?), including classical Athenian law (more important than you might think!), jurisprudence (of course), and the other stuff I do. And more frivolous things. Possibly live-blogging my attempt to defeat a traffic ticket in Princeton municipal court. I've written a bench memo. It includes a hypo.
Speaking of Ferguson, Eric Garner, etc.---I'd like to open a thread to discuss the NYPD "slowdown" in response to the Mayor's remarks about his fears for his multiracial son. According to media reports, the police have responded by refraining from citations and arrests "unless they have to," and, in particular, by drastically cutting down on arrests for things like open container and public urination, as well as tickets. (Presumably, they are also not arresting people for selling untaxed cigarettes.). Some journalists have suggested that this is cause for celebration, not dismay---that this slowdown will reveal that we don't need these kinds of trivial arrests, and that the city (with the possible exception of its bottom line, now missing the revenue from these kinds of citations) will be better off for it. I'm inclined to agree, and to wish for a smart economist to figure out a way to measure the impact of such things---of the (how regressive?) tax effect of such penny ante law enforcement, and the economic benefits of such "broken windows" policing against the costs it imposes to those targeted (and the second-order costs in lost productivity, lost consumer spending, etc.). Thoughts?
Thursday, January 01, 2015
Maybe The Knick Needs a Few Midwives
I am, I concede, an odd television fan. I probably spend more time reading about television than actually viewing it. I actually enjoy reading reviews of television programs that I have no intention of ever viewing. Occasionally, however, a review or series of reviews makes me want to see something for myself.
And so it was with "The Knick", a bravura Steven Soderbergh creation (now with its second season in production) -- a medical procedural set in a turn of the century New York City hospital. With almost its first scene a heartbreaking and gut wrenching failed cesarean section, whatever else The Knick represents, it is vivid. It is also somewhat clinically detached. Eventually we learn that the failed cesarian had been attempted unsuccessfully twelve times before by the same team. As one reviewer wrote, "The Knick uses historical distance to make sickness into something strange and unfamiliar, giving its doctors the aura of scientific adventurers." Adventurers they were. Later footage depicting brave experiments with unknown forms of anesthesia tip us off that the character of Dr. Thackery may, in fact, be based on extraordinary real-life surgeon Dr. William Halstead.
It would be an understatement to describe Dr. Halstead as an adventurer. I do have to wonder if the series does him justice in one important regard. Noone comforts the crying (very soon to be dying) young cesarian candidate as she is wheeled into the operating theatre in "The Knick." It is apparent she senses she is near death but it is unacknowledged, although it is clear the risk is grave.
Dr. William Halstead, in fact, stood for a new gentler surgical approach, recognizing roughly handled tissues were often lost. No less than H.L. Mencken noted "[h]e showed that manhandled tissues, though they could not yell, could yet suffer and die."
The critics' reviews on "The Knick" are mixed. For each "Steven Soderbergh Made a Gilded-Age 'ER' and It's Riveting" review there is an equal and opposite "Surgical Strikeout." "The Knick," it seems, suffers by comparison with PBS's "Call the Midwife" (soon to be showing its fourth season with a fifth in production). "The Knick" is being criticized for lack of character development when compared with the well-developed characters of both health care providers and patients in "Call the Midwife."
In all fairness, "Call the Midwife" has had far longer to develop the characters involved but these critics may have a point. Patients in "The Knick" are often unnamed, breathtakingly mute or near-mute. Patients in "Call the Midwife" may even serve as recurring characters, as they did in Jennifer Worth's memoir on which the series, through season three, has been based.
Some of this is a difference in perspective. Jennifer Worth has left us her personal, professional, and spiritual autobiography in her three volume memoir of her time in East London. Hers is a meditation on her personal transformation through service in a low income, low health literacy community. Over time, Jennifer Worth did not flinch to discuss the desperation of women with too many children and too little money. "Call the Midwife" is not for the faint of heart despite all those wonderful sepia colored images you may have seen of midwife Jenny Lee pedaling to a house call through the clotheslines of the East End tenements. The series itself is far grittier and Jennifer Worth's memoir grittier still.
We will see where "The Knick" takes us. Given that Dr. Halsted performed the first successful radical mastectomy for breast cancer in the United States, never mind transfused himself on the spot to save his sister's life post-partum, I can only imagine that more compelling drama is ahead. Oh, and did I mention he was a stickler for complete sterility in the surgical suite? I hope we get to see a more well-rounded presentation of this compelling, complex, and astonishing man.
And the mute young mother-to-be who never lived to grow into her role? She teaches us something as well about how the human touch, whether felt in carefully restrained surgery or attentive midwifery, can comfort and strengthen, even unto the last moments of life.
Thank you to my friends at Prawfsblawg for the opportunity to visit with you this month and for the opportunity to ponder things health law related.
Tuesday, December 23, 2014
"I've got a lot of problems with you people...!"
Today is one of my favorite made-up holidays: festivus (for the rest of us!) Somewhat amazingly, Festivus, the Seinfeld-inspired "holiday," has become a real thing in some places. According to that most-reliable source, both Wisconsin and Florida have displayed Festivus poles as part of their official winter holiday displays. Former Representative Eric Cantor apparently once held a Festivus fundraiser (although we can now see how that fared). This year, prominent politicians, such as Rand Paul, are finding their Festivus spirit, with Paul even hinting at a 2016 presidential run during his #festivus themed Twitter activity this morning.
So..air your grievances; engage in the feats of strength; and hope for a Festivus miracle!
Monday, December 22, 2014
The Dating Game
Dating is a personal issue – unless it involves the workplace or the classroom. In several law schools where I have worked, there are professors or employees who are happily married to former students, whom they began to date while they were students. Perhaps schools turn a blind eye because law students are adults – in contrast to undergraduate students – and, in theory, they are thus freer to make decisions about whom to date, much like people who date co-workers. But what about unwanted attention or a perceived inability to say no? An increasing number of companies and schools are instituting no-dating policies for these reasons. Should law schools follow suit?
Friday, December 12, 2014
Where's John McCain?
Much of the debate over the so-called "Crominbus" (a combination Continuing Resolution and Omnibus spending bill), which the House passed late last night, surrounds the last-minute insertion of a campaign finance provision that would raise the limits on individuals donating to political parties. The provision would gut the main portion of the McCain-Feingold law that is still standing after Supreme Court review: the ban on "soft money." Political parties used to raise unlimited amounts of "soft money," in return giving their wealthy donors access to legislators. The 2002 McCain-Feingold law largely put an end to this practice, and the Court upheld the provision in McConnell v. FEC.
The current spending bill would allow an individual to give over $1.5 million, and a couple over $3.1 million, to the Democratic or Republican party during a two-year election cycle. This is more than three times the current limit. The provision was slipped in at the last minute without any public debate. The new rule would fundamentally alter the scope of campaign finance by re-inserting the political parties into the fundraising business, potentially opening the doors to undue access once again.
Rep. Nancy Pelosi, as well as various campaign finance watchdog groups, have been vocally opposed to the measure. But what about John McCain?
Campaign finance reform used to be McCain's signature policy initiative. Partnering with Democrat Russ Feingold, his bill, which he worked on for years, in essence thwarted political parties from providing undue access to legislators in exchange for campaign donations. (The bill also strenghtened the ban on corporations and unions from making independent expenditures, which the Supreme Court struck down in Citizens United.)
As far I as can tell, McCain has been fairly mute on this aspect of the Cromnibus. He apparently said, before it was unveiled, that it would be "disgraceful" and "jammed full of shit." But I haven't found any statements from him since the campaign finance provision was made public.
One might imagine that McCain would be outraged. And his outrage could potentially influence other Republicans to vote against the Cromnibus package, although that of course would lead to the possibility of a government shutdown. Either way, it's curious that McCain has been relatively silent so far on this provision, which would severely gut the major piece of the McCain-Feingold law that is still standing. McCain has been one of the few legislators to understand the problem of entrenchment: the concern of legislators passing laws to help keep themselves in power. The current provision would help both of the two major parties. It is a pro-establishment rule. But it would mostly help wealthy donors and already-wealthy politicians.
Will McCain stick to his morals and speak out against this provision? Or has he become just another Washington insider?
Monday, December 08, 2014
State Judges and the Right to Vote
If you follow elections, you probably heard about the Supreme Court's last-minute decisions in the Wisconsin and Texas voter ID cases, stopping Wisconsin from implementing its ID law but allowing Texas to move forward with its law for the 2014 election. But unless you study election law, I bet you didn't notice the Arkansas Supreme Court decision invalidating that state's voter ID law, or the myriad other election cases state courts decide that affect the voting process.
But state courts are intimately involved in regulating elections, especially given that, unlike the U.S. Constitution, all state constitutions explicitly confer the right to vote. Indeed, to understand the meaning and scope of the right to vote, we need to study how state judicial decisions impact the way in which we run our elections. Below the fold I provide some details of my study of state judges and the right to vote.
This inquiry reveals some interesting trends.
First, state courts decide lots of cases on issues of importance, such as voter ID, felon disenfranchisement, the legality of voting machines, whether to keep polls open late, whether to count absentee ballots, and others. State court activity on voting rights is much more robust than federal court decision making in this area. Yet as legal scholars and as a society at large we tend to pay much less attention to state cases than to federal court decisions. Second, not surprisingly, "liberal" judges tend to construe the constititutional right to vote more broadly than "conservative" judges. Third, appointed judges are better than elected judges at ruling more broadly toward voting rights, especially for political minorities.
These gems--and others--fill up the pages of my new draft, State Judges and the Right to Vote. I'd be delighted for comments and thoughts on the piece. Here is the abstract:
State courts are paramount in defining the constitutional right to vote. This is in part because the right to vote is, in many ways, a state-based right protected under state constitutions. Yet our focus on state courts and on how state judges interpret the right to vote is sorely lacking. This article remedies that deficiency. It examines numerous state court cases involving voter ID, felon disenfranchisement, and the voting process, demonstrating that state courts vary in whether they rule broadly or narrowly toward voting rights. When state courts issue rulings broadly defining the constitutional right to vote, they best protect the most fundamental right in our democracy. On the other hand, state decisions that constrain voting to a narrower scope do harm to that ideal. Further, a preliminary analysis shows that liberal judges, as well as those who earn their seats through merit selection, are more likely to define the right to vote robustly as compared to their conservative and elected counterparts. Given that state judges impact our election system in significant ways through broad or narrow rulings on voting rights, we should advocate in favor of state courts and state judges who will broadly construe and protect the state-based constitutional right to vote.
Wednesday, December 03, 2014
Video does not prevent "another Ferguson"
A grand jury has decided not to indict a NYPD officer in the choking death of Eric Garner--an event captured on a cell phone video. Apparently the video "said" something to the grand jurors quite different than what it said to many other people who have seen it. That the chokehold maneuver is forbidden by department regs did not change anything. Nor did the fact that the officer used physical force against someone for selling loose cigarettes.
To the extent we hope video will create greater accountability, this result suggests maybe not--it obviously does not make an indictment more likely (it also is further proof that video would not have made a difference in the Michael Brown case). Nor is it likely to produce deterrence--police can respond with force to even the most petty misconduct. So bring on those body cameras; just do not expect them to change much.
Meanwhile, NYPD is preparing for the "potential contingency" of public protest, which of course means mass arrests and forcefully moving people off the streets.
Update: Nia-Malika Henderson at WaPo suggests the non-indictment hurts Obama's body-camera arguments. But she comes around to the right point--cameras are good, but they are not the solution and they will not alone achieve significant change.
Update II: This NPR story describes a lot of the developments over the course of the afternoon, including a "die-in" at Grand Central Station and the mayor canceling his planned appearance at the Rockefeller Center tree-lighting ceremony tonight, which may be a target for protesters.
Tuesday, December 02, 2014
Media, Op-Eds, and the Value of the "Extra" Things We Do as Law Professors
Today CNN published an article quoting me about the Kentucky law that prohibits Rand Paul from appearing on the ballot for both President and U.S. Senate at the same time. During the election season I published a few Op-Eds on various issues involving the electoral process. Beyond the shameless self-promotion, in this post I want to explore the value of law professors appearing in the "popular press." Why do some professors welcome media inquiries or write Op-Eds? And what value should our schools give to that activity?
In my view, there are several benefits to using the popular press to share our expertise. Of course, there's the inherent "wow" factor in seeing one's name in a major publication. But that's purely self-serving. I think there more signfiicant instutitional and prudential considerations for being quoted or writing an Op-Ed.
First, it brings publicity to one's law school. Especially given that I teach at a public institution, I believe it is my duty to explain complex election law problems to the general public. It provides institutional goodwill, giving the state's taxpayers some additional value for employing me.
Second, it helps expose more people to my work. In an age when judges and others question the value of legal scholarship, using the popular press shows the world how scholarship relates to the "real world" and can have an actual impact.
Third, I think it makes me a better scholar. When I have to distill a concept from a law review article into a quote or Op-Ed, it inherently makes me refine and shape the overall argument.
Fourth, it assists my teaching. Law students are generally not "experts," and one goal of classroom instruction is to explain complex topics in easy-to-understand ways. The more we practice this technique, whether in the classroom or in the media, the better we are at what is often a very difficult task.
But this discussion raising an intriguing question: what value should this kind of activity have in our assessments? It's not obviously teaching, scholarship, or service, although it fits in with all three activities. Should law schools value this activity more? Or is the inherent excitement of being known publicly as an "expert" enough?
I'm not sure. I engage in these activities because, as noted above, I believe it is my public duty, and because I think it makes me a better scholar and teacher. Plus, I have tenure now, so does it matter anyway?!
Sunday, November 23, 2014
Judicial Elections and Historical Irony
Last week I was privileged to participate in a conference in New Mexico on the judiciary. The debates and assigned readings focused especially on judicial elections (a new issue-area for me). There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).
“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states. This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).
With many judicial elections now under the shock of increasing party polarization, interest-group mobilization, and campaign spending, it seems likely that these calls to end judicial elections for the sake of judicial independence will only intensify. Yet one of the historical ironies I learned from the conference readings is that “judicial independence” was also the primary value that was put forward as the rationale for creating elected judges in the first place.
In the mid-nineteenth-century campaigns for an elected judiciary, however, the sort of judicial dependence that was especially targeted by reformers was judges’ dependence on state legislatures and associated party machines that had become corrupt or spendthrift (especially in economic development projects). It was hoped that a switch to elected judges would empower judges to reign in discredited legislatures, policing them for their fidelity to the state constitutions (“the people’s law”) while keeping judges accountable to the people through elections (and later, recalls).
The longer history of elected judges in the United States offers many other enlightening contrasts with today’s premises. (The stance of the professional bar towards the desirability of elected judges flipped over time. The dominant presumption about whether appointed or elected judges are the ones more likely to lean conservative or liberal also flipped over time…) For now, however, I only want to ask one question of this rich history—whether it makes plausible the possibility that, in some states, contemporary reform movements to eliminate elected judges will have unintended adverse consequences for democratic responsiveness and the separation (or balance) of powers between the judiciary and other branches of government.
My question is prompted--not by a preference for elective over appointive judiciaries--but by the historical scholarship that shows that the nineteenth-century push for elected judges was often packaged with—and used as a justification for—very substantial expansions of judicial power and very substantial curtailments of legislative power. Making state judges electorally accountable was supposed to make it safe to greatly expand the role of judicial review of legislation, and to give judges much more independence from the other branches in the terms and conditions of their appointments.
This new form of judicial accountability to the electorate even justified a judicial role in which judges were tasked to police procedural constraints on the legislatures, including rules that had previously been considered essentially internal to the legislature (perhaps—I wonder—starting to unravel some of the Anglo-American tradition of legislative autonomy and privileges that had taken centuries to develop). Meanwhile, this change in the role of judges may also have coincided with the decline of juries.
If much of the nineteenth-century judicial empowerment and legislative disempowerment was enacted on the premise of it being bundled with judicial elections, then I ask—if some states now revert to appointed judiciaries without also considering the larger package—do they risk an institutional imbalance or loss of democratic accountability in the legislature and executive? (Perhaps this question is already asked and answered somewhere in current policy debates or scholarship?)
It would be nice to think these structural matters of constitutional development tend towards equilibrium in some organic fashion. At the least, we can expect that state legislatures and executives will long retain the cruder sorts of tools for reining in abuses of appointed judges. Depending on the particular state, these might include decisions about judicial budgets, impeachment or removal of a judge upon legislative address, jurisdiction-stripping, court packing, or informal control of judges through the influence of political parties and the professional bar. Nonetheless, I find it just as easy to imagine that judicial empowerment at the expense of legislatures might be ‘sticky’, if never a one-way ratchet. Here I am influenced by the social science accounts that suggest that, around the world today, judicial power has been much expanding at the expense of legislatures. I am also thinking about the possibility that there may be institutional biases in some states against structural adjustments (like ’single subject rules’).
In theory, the public should have the capacity to ensure that one branch of government never gets too big or unaccountable. In the many states that are characterized by constitutions relatively easy to amend, constitutional change is, after all, supposed to occur more through formal amendment processes than through judicial interpretation. Even so, query whether such large structural questions lend themselves to retrospective scrutiny and popular oversight. (This is a real, not rhetorical, question for someone who has a lot more knowledge about the states and judicial reform movements than I now have.)
John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006)
John Ferejohn, “Judicializing politics, politicizing law,” Law and Contemporary Problems 65 (3): 41–68 (2002).
Jack P. Greene, The Quest for Power: The Lower House of Assembly in the Southern Royal Colonies (Norton, 1972)
Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard Univ. Press 2012)
G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (Stanford Univ. Press 2012)
Tuesday, November 18, 2014
Prior restraint: How far have we really come?
In a comment to my earlier post on the preemptive state of emergency in Ferguson, Steven Morrison asks whether an advance state of emergency and deployment of troops amounts imposes such an extraordinary chill on speech as to amount to a de facto prior restraint. I think the answer is no. But the point made me think.
In a current work-in-progress, I discuss Walker v. City of Birmingham, in which the Court held that the Collateral Bar Doctrine applied even to the First Amendment and even as to a blatantly unconstitutional injunction. Anticipating civil rights marches during Easter week 1963, officials in Birmingham got a state judge to issue an injunction that repeated, word-for-word, the text of the city's unquestionably unconstitutional permitting ordinance* and prohibited movement leaders from leading or encouraging marches without a permit. When the marches went ahead anyway, the leaders were jailed for contempt of court for violating the injunction. A 5-4 Court upheld the convictions, insisting that the long-held obligation with an injunction is to challenge the injunction directly or obey it (in this case by getting a permit).
* In dissent, Justice Brennan derided this process of converting an ordinance to an injunction as "inscrutable legerdemain."
So my answer to the question in the title of the post is that we actually are moving backward where public assembly and expression are concerned. As corrupt as the events and officials in 1963 Birmingham were, they at least went through the pretense of judicial process. Here, with the stroke of a single executive's pen, the possibility of protest--even without any genuine threat of unlawful behavior--has been declared an emergency and a threat to civil society, justifying deploying military force and turning Ferguson into a battle zone.
Can we really say this is more respectful of First Amendment ideals than what happened fifty years ago?
Sunday, November 02, 2014
A Republican Senate Majority and Partisan Conflict
As the New York Times editorial board observed recently, the prospect of a Republican Senate majority may make for even more gridlock in Washington. Other political observers think that we may see less obstruction, as Republicans assume greater responsibility for governmental decision making.
But whether or not Republicans in Congress should be held accountable, they likely will not be. Voters view the president as being in charge of the government and will reward or punish the president’s party accordingly. As Justice Robert Jackson wrote in Youngstown, the president is the “focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.”
At any rate, we won’t solve our gridlock by condemning the radical right. We will suffer from high levels of partisan conflict as long as we have a winner-take-all electoral system. As long as Democrats and Republicans can hope to gain control of the levers of power, they will fight for control.
If we want a bipartisan spirit, we need reforms that encourage cooperation rather than conflict. And the best way to do that is to ensure that political power is shared—and always will be shared—by elected officials across the political spectrum. We’ve recognized the need for power sharing across social divides in Afghanistan and Iraq. We should do the same for our own country. For more discussion along these lines, see here.
Tuesday, October 28, 2014
Elections and Gerrymanders
With Republicans poised to retain, and probably increase, their majority in the U.S. House of Representatives, expect political observers to criticize the partisan gerrymandering of House districts. The GOP likely will win a disproportionate number of seats because in many states, representation in Congress does not correlate well with the voting strengths of the parties. In Indiana, for example, Republican candidates for the U.S. House of Representatives outran Democratic candidates by a 53-45 percent margin statewide in 2012. Yet Republicans hold 78 percent and Democrats only 22 percent of Indiana’s House seats.
Observers are correct when they worry about the mismatch between voting strength and representation. But partisan gerrymandering is not the main culprit. Even if electoral mapmakers drew simple, compact districts without looking at voting data, representation would not correlate well with voting strength. Why is the conventional wisdom about partisan gerrymandering wrong? If partisan line drawing is not the main problem, what is?
Residential patterns are much more important than partisan gerrymandering as an explanation for the mismatch between voting strength and party representation in Congress. Republicans get more electoral bang for their votes because Democrats are bunched in urban areas and Republicans are scattered more evenly throughout suburban, rural, and other nonurban communities.
While gerrymandering is not the primary problem, it can be part of the solution. Electoral mapmakers can compensate for residential patterns by eschewing compact districts in favor of districts that combine urban and nonurban areas. That would bring party representation more in line with voting strength.
[Partisan line-drawing does have a bigger effect for state legislatures.]
Monday, October 27, 2014
Ebola: A Problem of Poverty rather than Health
Undoubtedly, the death toll in West Africa would be much lower if Guinea, Liberia, and Sierra Leone had better health care systems or if an Ebola vaccine had been developed already. But as Fran Quigley has observed, Ebola is much more a problem of poverty than of health. Ebola has caused so much devastation because it emerged in countries ravaged by civil wars that disrupted economies and ecosystems.
Ultimately, this Ebola epidemic will be contained, and a vaccination will be developed to limit future outbreaks. But there are other lethal viruses in Africa, and more will emerge in the coming years. If we want to protect ourselves against the threat of deadly disease, we need to ensure that the international community builds functioning economies in the countries that lack them.
Our humanitarian impulses in the past have not been strong enough to provide for the needs of the impoverished across the globe. Perhaps now that our self-interest is at stake, we will do more to meet the challenge.
Saturday, October 25, 2014
The Ebola "Czar"
In the wake of Craig Spencer’s decision to go bowling in Brooklyn, governors of three major states—Illinois, New Jersey, and New York—have imposed new Ebola quarantine rules that are inconsistent with national public health policy, are not likely to protect Americans from Ebola, and may compromise the response to Ebola in Africa, as health care providers may find it too burdensome to volunteer where they are needed overseas. Don’t we have an Ebola czar who is supposed to ensure that our country has a coherent and coordinated response to the threat from Ebola?
Of course, the term “czar” was poorly chosen precisely because Ron Klain does not have the powers of a czar. He will oversee the federal response to Ebola, but he cannot control the Ebola policies of each state. Unfortunately, on an issue that demands a clear national policy that reflects medical understanding, public anxieties will give us something much less desirable.
Friday, October 17, 2014
Egg Freezing and Women's Decision Making
The announcement by Apple and Facebook that they will cover the costs of egg freezing predictably provoked some controversy—predictably because it involves reproduction and also because too many people do not trust women to make reproductive decisions.
Interestingly, the challenge to women’s autonomy can come from both sides of the political spectrum, as has happened with several assisted reproductive technologies. Scholars on the left criticized surrogate motherhood on the ground that surrogates were exploited by the couple intending to raise the child, and other new reproductive technologies are criticized on the grounds that women will feel obligated to use them rather than free to use them. Indeed, this concern about coercion drives some of the objections to egg freezing.
Some women freeze their eggs because they face infertility from cancer chemotherapy; other women may not have found a life partner and want to suspend their biological clock until that time comes.
But some observers worry that with the option of egg freezing, some women will succumb to the pressures of the workplace and choose egg freezing not because they really want to but because they feel that have to. After all, if a woman can delay procreation and put in long hours at the office, why shouldn’t she do so? Employers might think that women who forgo egg freezing are not really committed to their jobs.
These concerns are legitimate, but are people too willing to invoke them? Egg freezing is not a simple procedure, nor is its success a certainty. Even if covered by insurance, women are not likely to choose egg freezing lightly. We should worry that egg freezing critics may be too ready to question the decision making capacity of women contemplating their reproductive choices.
Thursday, October 16, 2014
Does Teaching Torts Warp Your Brain?
Maybe something just happens after 10+ years of teaching Torts. Delve each week into human suffering...in sets a bit of desensitization. Every terrible tragedy in the news -- say, a horrible hayride accident in Maine--drives the Torts Teacher to start asking questions.
Does primary assumption of risk bar a hayride accident victim's lawsuit? (No). Has industry custom been violated? (Perhaps). There's a little voice in one ear opining, "too soon," and one in the other ear whispering, "teachable moment." Who knew, for instance, that Maine has a two-year old rec use-like "Agritourism Activities" law? (HT: Portland Press Herald). That there were attorneys specializing in hayride accidents?
Or consider a simple object encountered in daily life - say, a pencil. The Torts Teacher finds fascinating the question of how many different ways one could accidentally cause one's self fatal injury through encountering said object. (42).
The three D's for a Torts Teacher are certainly not Discipline, Dedication, and Determination. They are Death, Dismemberment, and (Permanent) Disability.
Maybe this isn't unique to my favorite first-year subject. Maybe Evidence teachers reject new science stories not adequately supported by peer review. Maybe labor law professors like Joe Slater Al Snow spend their days pondering whether, were they only in a union, they could file a grievance over some joke lobbed in their direction at the water cooler (bugged or otherwise).
Personally, the biggest effect of teaching Torts on my thinking arose after I became a parent. Baby walkers? Absolutely not. Keeping toddler in a carseat after exceeding its recommended weight? Misuse! Preschooler riding inside the shopping cart? Not on my watch. Product recalls? Reasonably, nay - vigilently!, monitored. In fact, this laptop just got recalled so I need to sign off right now.
Thursday, October 09, 2014
While controversial among some ethics experts, uterus transplantation has been performed several times, most commonly in Sweden. A few weeks ago, a mother for the first time gave birth to a baby gestated in a transplanted uterus.
Should we worry about uterus transplants? Transplanting life-extending organs, like hearts, livers, lungs and kidneys, has become well-accepted, but observers have raised additional questions about transplantation for life-enhancing body parts like faces and hands. As long as transplant recipients have their new organs, they must take drugs to prevent their immune systems from rejecting the transplanted organs. The risks can be substantial. For example, the immunosuppressive drugs put people at an increased risk of cancer. It is one thing to assume health risks for the possibility of a longer life, but are the risks of being a transplant recipient justified by improvements in the quality of life?
We always should worry about risks from novel treatments, but the risks seem quite tolerable for uterus transplantation. Over time, scientific advances have reduced the side effects from immunosuppression. The risks are not as serious as they used to be. In addition, a transplanted uterus can be removed after childbirth, avoiding the need for long-term immunosuppression that exists with other kinds of transplants. Finally, we generally allow patients to weigh the benefits and risks of medical treatment for themselves. Absent a disproportionate balance between risks and benefits, it is not appropriate for society to usurp health care decision making from patients. Hence, face and hand transplants are becoming more common even though they do not prolong life.
Of course, with uterus transplants, we also have to worry about the risks to the child from the drugs that the mother must take to prevent her body's immune system from rejecting the transplanted uterus. On that score, we have reassuring data. Recipients of kidneys, livers, and other organs take the same immunosuppressive drugs as do recipients of a uterus transplant, and more than 15,000 children have been born to transplant recipients since the 1950’s.
Though not definitive, the data are generally reassuring. While children exposed to immunosuppressive drugs during pregnancy are more likely to have a premature birth and low birth weight, they do not appear to be at elevated risk of physical malformations or other serious side effects. Moreover, it is generally difficult to argue that people should not reproduce because of the health risks to their offspring. Procreation is a right of fundamental importance and should be recognized for all persons, even if they may pass a serious disease to their children. Thus, for example, it is acceptable for women to reproduce when they are infected with HIV or carry the gene for a severe inherited disorder.
Can't women rely on gestational surrogacy instead of a uterus transplant? This may work for many women, but not in locales where gestational surrogacy is prohibited. Moreover, the legal battles that can follow gestational surrogacy illustrate the risks of that alternative, as well as the significant role that gestation plays in forming motherhood.
There are many important reasons why women want to bear their own children. Women may want to have children with their chosen partner and without the involvement of third parties (an interest considered in this article). They may want to benefit from the ties with their children that develop during pregnancy. For these and other reasons, we should be careful not to be overly skeptical of uterus transplants.
[cross-posted at Health Law Profs and orentlicher.tumblr.com]
Wednesday, October 08, 2014
Too Much Information? GM Food Labeling Mandates
As NPR reported yesterday, voters in Colorado and Oregon will decide next month whether foods with genetically-modified (GM) ingredients should be identified as such with labeling. And why not? More information usually is better, and many people care very much whether they are purchasing GM foods. Moreover, it is common for the government to protect consumers by requiring disclosures of information. Thus, sellers of securities must tell us relevant information about their companies, and sellers of food must tell us relevant information about the nutritional content of their products.
Nevertheless, there often are good reasons to reject state-mandated disclosures of information to consumers. Sometimes, the government requires the provision of inaccurate information, as when states require doctors to tell pregnant women that abortions result in a higher risk of breast cancer or suicide. At other times, the government mandates ideological speech, compelling individuals to promote the state’s viewpoint. Accordingly, the First Amendment should prevent government from requiring the disclosure of false or misleading information or of ideological messages. (For discussion of abortion and compelled speech, see this forthcoming article.)
What about GM labeling?
Is this similar to requiring country-of-origin labeling for meat and produce, a policy upheld by the D.C. Circuit earlier this year? GM labeling likely will mislead more than inform. Many people harbor concerns about genetic modification that are not justified by reality. In particular, as the NPR report indicated, researchers have not found any risks to health from eating GM foods. Indeed, genetic modification can promote better health, as when crops are fortified with essential vitamins or other nutrients. For very good reasons, GM foods run throughout the food supply, whether from traditional forms of breeding or modern laboratory techniques. Thus, the American Association for the Advancement of Science has concluded that GM labeling “can only serve to mislead and falsely alarm consumers.”
[cross-posted at Health Law Profs and orentlicher.tumblr.com]
Monday, October 06, 2014
And then Ferguson
The start of the semester is always a bit of a frenzied mess. I'm usually rushing to revise my syllabi, get a head start on finer tuned preparation for classes, finish up a summer project, find my grown-up clothes, and get my kids organized for the start of their school year. This year was no different. And then a police officer shot an unarmed teenager in Ferguson, Missouri, one of the ninety municipalities in St. Louis County. And then people started protesting, there was looting and a fire one night, and law enforcement engaged in a number of strategies to shut down the protests, including curtailing speech at night, prohibiting people from standing still on the city streets and sidewalks, and using tanks, tear gas, and rubber bullets. Much of the events were broadcast over live video feeds, so that people near and far could watch what was unfolding. In short, the metro St. Louis area was caught up in the turmoil, and between the public's demand for answers and the focus of the national media, the demand for information about the law and the federal, state, and local legal systems was incredibly high. In addition, the demand for legal services and public outreach within the community was incredibly high. Those of us in the region who work in areas related to criminal law and criminal procedure, civil rights, race, the First Amendment, or other areas related to poor people and their interests were constantly on call for at least the first few weeks. We also had a responsibility to ensure that colleagues and students who lived in Ferguson were safe and supported, and that we were helping our students understand the issues and their relationship to the community as future lawyers.
After the jump I want to highlight the ways that my colleagues, students, and a group of SLU alumni jumped in with both feet to serve the community we are a part of and to empower them to work for needed reforms. Much of the groundwork had actually been laid well before the protests and police response through ongoing projects to serve underserved communities. Before I do that, I want to emphasize a broader point. It is often difficult, in the midst of things, to recognize the important moments, moments when our students and the communities we serve need to see us in a variety of lawyerly roles, or moments when we need to act because we can and others cannot. To me, the most remarkable part of the stories related to Ferguson is that many people recognized their moment, and many people chose to act. For a law school committed to social justice, to training men and women to service with others, recognition of the moment and action were particularly important and helped to renew at least my faith in that mission.
So now, let me highlight some of the important contributions that lawyers and students in the St. Louis community have made.
1. Arch City Defenders. Last year, Eric Miller highlighted the work of this 501(c)(3) entity, which provides holistic civil and criminal legal services to low income people in connection with other social services. In August, they issued a white paper, describing both abuses that violate the law in municipal court proceedings, and the way that the system of municipal violations and municipal court proceedings "push the poor further into poverty, prevent the homeless from accessing the housing, treatment, and jobs they so desperately need to regain stability in their lives, and violate the Constitution." This white paper addresses several root causes of the alienation that led to the protests in Ferguson.
2. SLU Clinical faculty Sue McGraugh (see her Twitter feed @slewzq for excellent updates), John Ammann, and Brendan Roediger have represented protesters, lobbied for a number of reforms of the municipal court system, sponsored forums educating members of the public about their legal rights, and supported student advocacy work at city council meetings and other public forums. A more full list of activities is here.
3. Justin Hansford, an assistant professor, is an active leader on the ground, helping the U.S. Human Rights Network prepare a report to the United Nations and collaborating with the Advancement Project, NAACP Legal Defense Fund, National Lawyer's Guild and other national legal groups with associated legal efforts.
4. Students . . . lots of students have been active in the work of the clinics, in voter registration drives, as legal observers in the protests, educating the public about their legal rights, developing ongoing strategies for reform and education, surveying the legal needs of the Ferguson community, and more.
5. Bill Freivogel (St. Louis Public Radio, Director of the Univ. of Southern Ill. School of Journalism and Professor in the Paul Simon Public Policy Institute) has been collecting and publishing general information for the public on the legal issues related to the shooting and subsequent protests. Relying on a cast of many sources, his articles have focused on the rules about deadly force, why the officer wasn't immediately arrested, the grand jury process, the prosecutor's plans after this grand jury returns (or refuses to return) an indictment, the federal investigations related to Ferguson, and how changing police practices could help bring justice to the community.
I'm sure that I am leaving out people whose work I chose not to highlight or don't know enough about.
One takeaway to leave you with is a cautionary note. Ferguson is a relatively sleepy suburb, which is why the size of the protests and police response were both so surprising. There are people who are fairly disillusioned with the system and who feel relatively powerless there, but they have, by and large, reacted by protesting and not resorting to violence. There are other parts of the metro area with larger concentrations of people in poverty, larger numbers of people affected by systemic racism, people who feel more alienated, and who may see no reasonable alternative to violence, places like North St. Louis. Depending on the results of the grand jury proceeding and the police response in anticipation of violence upon news of those results, there is a lot of possiblity for things to get much worse. I hope they don't.
Friday, October 03, 2014
The Right to be Forgotten
Much of my scholarship concerns comparative constitutional law. An interesting example of such topics being addressed, beyond a law journal, is the recent article by Jeffrey Toobin in the Sep. 29 New Yorker titled "The Solace of Oblivion," http://www.newyorker.com/magazine/2014/09/29/solace-oblivion. His article focuses on a European Court of Justice ruling that essentially ordered Google to delete any links to information regarding an individual in Spain, who had cleared up some financial difficulties that had been previously written about on the Internet. The ECJ said individuals had a right to prohibit Google from linking to items that were "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed." From a U.S. First Amendment perspective, such a ruling would almost certainly be an untenable speech restriction, especially given the vagueness and overbreadth of these criteria.
The article includes an interview with the Austrian born Oxford professor who is considered by Toobin to be the "intellectual godfather" of this right to be forgotten. The professor apparently sees analogies between Google retaining links to permanent blemishes about people on the one hand, and the Stasi, or other surveillance states, keeping records on people. It's a short fascinating article that I recommend to folks who want to learn more about the differences between American and European approaches to these issues. Students would find it especially accessible. The article has special relevance now in light of disclosures regarding NSA and other surveillance actions in the U.S. Yale Law Professor James Whitman wrote a seminal law review article addressing some of the underlying philosophical differences between the U.S. and Europe on privacy that has some similarities. "The Two Western Cultures of Privacy: Dignity Versus Liberty," 113 Yale L.J. 1151 (2003-4), http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1647&context=fss_papers
Can't They Read on the Fifth Circuit?
With a highly troublesome reading of the U.S. Supreme Court's opinion in Planned Parenthood v. Casey, the U.S. Court of Appeals for the Fifth Circuit managed to uphold a statute that has closed many abortion clinics in Texas, at least for the time being. The statute requires abortion clinics to meet standards for ambulatory surgery clinics, and the costs of doing so are unaffordable for the majority of abortion clinics. According to the New York Times,
Thirteen clinics whose facilities do not meet the new standards were to be closed overnight, leaving Texas — a state with 5.4 million women of reproductive age, ranking second in the country — with eight abortion providers, all in Houston, Austin and two other metropolitan regions. No abortion facilities will be open west or south of San Antonio.
At issue was whether the statute imposes an "undue burden" on pregnant women seeking an abortion in Texas and is therefore unconstitutional. The district court found an undue burden because some women will have to travel 500 miles to reach an abortion clinic and therefore incur a substantial hardship from the increased time and expense of the travel. The women will have problems with child care, transportation, and getting time off from work.
The Fifth Circuit overrode the district court on the ground that Casey requires challengers to demonstrate that an abortion regulation imposes an undue burden "in a large fraction of the cases in which it is relevant." Since the women who live great distances from remaining clinics are not a "large fraction" of pregnant women in Texas, the appellate court upheld the clinic standards regulation.
But that reading ignores half of the Casey standard. Yes, the Casey Court referred to a large fraction of the cases, but it also referred to the cases for which the regulation "is relevant." Thus, when the Casey Court struck down Pennsylvania's spousal notification requirement, it observed that abortion regulations "must be judged by reference to those for whom it is an actual rather than an irrelevant restriction." Indeed in Casey, the spousal notification requirement would have been an undue burden for less than one percent of women seeking abortions in the state.
It is not always easy to interpret Supreme Court opinions, but the Fifth Circuit's reading is not tenable. Fortunately, this is only a temporary ruling pending a full appeal before the Circuit, and the Fifth Circuit will not have the final word on this matter.
[cross-posted at HealthLawProfs and orentlicher.tumblr.com]
Thursday, October 02, 2014
Another Disappointing Sign of Our Political Times
As the campaign season heats up, demagogic appeals to the voters are starting to crowd the airways. So when NPR ran a story yesterday about the seemingly lax oversight by Federal Reserve officials over Goldman Sachs, it wasn’t surprising to hear a U.S. Senator condemn the cozy relationship between the Fed and financial institutions and talk about the need for “regulators who understand that they work for the American people, not for the big banks.” Nor was it surprising that the senator did not offer any specific proposals to make the Federal Reserve work better.
But what was surprising is that the U.S. Senator was Elizabeth Warren, who has given much consideration to the ways in which we might make financial regulation more effective in this country. It would have been far more enlightening to have a discussion about what we should be doing.
As a former state representative, I understand the difference between academic discourse and political discourse, but Senator Warren was being interviewed on NPR, not delivering a stump speech at a county fair. The listening audience would likely have been quite receptive to a more nuanced discussion of the issue. Unfortunately, our political system drives even the most thoughtful elected officials to play politics as usual.
What Do We Talk About When We Talk to the Media?
One of the fun things about being a law professor is talking to journalists. Even as a junior professor, one will often have the opportunity to comment in the news media, especially if one writes in a timely area or lives in a city with a decent media market. It's also important. Professionally, one might spend two years writing a piece which redefines the theory of, say, tort law, to be rewarded with 89 readers on SSRN. But in a 15 minute interview with a major or even local media outlet, one can generate immense positive attention for a law school and an affiliated university. From a mission standpoint, moreover, one of the things law teachers can do is educate the public about legal rules and institutions, and the public reads the news a lot more enthusiastically than it does 450-footnote articles.
Below are a few thoughts about talking to the media -- not meant to be exhaustive by any means, in keeping with the "tips" theme of some recent posts:
1. Talk in sentences: Advising student writing, whether in the form of legal memos or law review Comments, we teach our students to write in paragraphs. The media isn't interested in paragraphs. At most, a journalist will quote a few sentences of your thoughts. While you don't have to limit yourself to soundbites, you're unlikely to have more than even a few sentences quoted even after conducting a 20 minute interview.
2. It's not your story: I've seen a few professors complain over the years about being quoted out of context. If you're worried that you won't be able to give the complete law professor answer, "it depends...", then you shouldn't talk to the media. Once you hang up the phone, it's out of your hands. The good news is that you can always elaborate or clarify on your own blog, or on your Twitter feed. Thanks to Twitter, these days we're all insta-pundits. So save the full explanation for a different venue.
3. Be right most of the time: The best way to get a repeat call from a journalist, or have her refer you as a source to a colleague, is to be right most of the time. If you can accurately predict, say, the outcome of a labor dispute, then you're far more likely to get a follow up call for a future story. In scholarship it may be that being interesting is more important than being right, but that's not usually what interests journalists.
4. Air quotes don't show up on TV or the radio: I recently gave a 30 minute interview to a local TV channel. I summed up a somewhat confusing explanation by saying, with visible air quotes, that "my 'expert assessment' is..." Of course, the video clipped out my air quotes. It would be funny if I actually talked like that, but when my mom watches the .wav file it sure looks like I do.
5. Keep a jacket in your office: Not everyone boasts a Serious Professor Goatee that's worthy of Joe Slater. And sometimes we show up to work, particularly when writing in the summer, in plastic pants. Amazingly, one can don a lawyer costume from the waist up in a matter of moments. I don't want to veer into this blog's alleged sartorial obsession, but it's handy to be able to look the part when an unexpected opportunity arises.
6. A wire service is worth a dozen interviews: It's super cool to know what you sound like in Croatian. If you are lucky enough to comment in a story for Bloomberg, AP, or Reuters, particularly one with international application or interest, you can find yourself quoted in dozens of papers, including many overseas.
7. You know more than you know: There are of course reporters who cover legal issues exclusively, or are lawyers themselves, and they may know as much or more law than you do. But many reporters are really looking for someone who has legal training to respond to an emerging development, not for the world's leading expert. You need not have written a treatise on an issue to be able to add some value. Free of the conflicts arising from having to represent clients, with a little bit of legal research you can often help a reporter unpack legal issues and translate our professional "-ese" with ease. It's okay to take a few minutes to read up on some issue before offering to talk to a reporter.
8. TV will cancel your interview if Gary Bettman is available: I've had more than a few TV stations call to see if I could rush down to the local affiliate (after rushing home to change out of my plastic pants) to appear on some show or other via satellite uplink. And then, as I don my professor costume furiously, they call back to cancel because the commissioner of the league the story is on wants to appear instead.
9. Answer your phone: The best way to get a media opportunity is to be responsive, both to telephone calls and emails. For me, the reporter most likely called McCann and Feldman and only got to me because they were booked or couldn't comment due to other obligations. But even if I'm not the first person they call, if I answer the phone or respond within a few minutes to an e-mail, I'm more likely to be the one they use for an interview than the next person down on their list.
The drawbacks of heightened expectations
The NFL has been raked over the coals recently for its (mis)handling several incidents of domestic violence by players. In some ways, this seems unfair, in that we seem to be asking the NFL to do more and do better with domestic violence than anyone else. Domestic abuse is a society-wide problem and no other institution--not the judiciary, not universities, not law enforcement--has not shown much more skill in understanding or handling the problem. In any event, why should professional sports leagues play any role (much less a special one) on the subject. It is not clear that there is a higher rate of domestic violence among professional athletes (it may depend on what the comparison is). And one could argue that teams and leagues should not care about players' off-field conduct, just as most employers don't care about what their employees do outside of work.
At another level, though, I wonder if it is fair to hold sports to a higher standard because of their history--a history that sports, leagues, and teams readily promote. Baseball regularly touts that it was ahead of society on integration--Jackie Robinson joined the Dodgers six years before Brown and two months before President Truman desegregated the military. The NBA has financially propped up the WNBA for almost twenty years, allowing for the longest-running professional teams-sports league. Creating athletic opportunities for women and girls is Title IX's most-visible achievement and what makes possible genuinely popular women's sporting events--University of Connecticut basketball, the US Women's National Soccer Team, etc.). NFL Commissioner Roger Goodell has made noise about the NFL being a moral leader; this is laughable (especially with Goodell as its head), but we should be able to take him at his word as to his intent, which means he bears the burden of figuring it out ahead of the curve.
So if sports and leagues have taken the lead in the past on some social issues and if they get much PR mileage out of that past, is it unreasonable to expect them to take the lead on this issue, when they clearly want to be involved? And if they fail so spectacularly, is it unreasonable to criticize them for that failure?
Wednesday, October 01, 2014
The Electorate and Attorneys
Thanks to the PrawfsBlawg folks for letting me join in again. Dan Markel's loss has been devastating, but I hope we can keep his mission alive here by going full speed ahead. As an Iowa-based law professor (Director of the Drake Constitutional Law Center), we have one of the key U.S. Senate elections occurring between Republican Joni Ernst and Democrat Bruce Braley. They are battling to replace Democrat Tom Harkin. Some of you may know, from national new stories, that Braley got into trouble when he was filmed at an out of state fundraiser explaining, in part, that popular incumbent Senator Grassley is a farmer from Iowa who never went to law school. Moreover, Braley elaborated that Grassley may become leader of the Senate Judiciary Committee. Braley's statements were not good politics to say the least. In addition, the fundraiser apparently involved trial lawyers and Braley himself is a trial lawyer. Joni Ernst supporters have run that film clip often on television. On the other hand, Ernst has at times advocated abolishing the Department of Education, privatizing social security, and has not opposed impeaching President Obama. During a recent debate, she appeared to move to the center on some issues as would be expected. Braley did a good job in the debate but did not press her hard on certain matters.
What's fascinating though is that the Braley team has made no effort on television to defend the view that lawyers can play valuable roles in society, even though his campaign Web site does just that. The Web site mentions several instances of Braley helping the underdog against various powerful interests. Certainly, former Presidential candidate John Edwards used his work as a plaintiff's attorney at times to promote his candidacy. Presumably Braley's political consultants (who may know more than me) think the "attorney" word should go virtually unmentioned in television advertisements. But that has handed over the issue of who is the better person to Joni Ernst, as her campaign has run effective ads about her leadership in the National Guard. Moreover, she presents well on television. The polls show Ernst with about a 6 point lead. Whatever happens, it's sad to see the Braley team essentially abandon any defense of some of the good work that Braley likely did as an attorney, even if their strategy is not totally unexpected.
Life is short
Thanks to Howard for the introduction and to him and all of the permaprawfs for letting me guest here this month. I had expected to thank Dan, of course, who asked in May if I would do another guest stint (my last one was a number of years ago), and so it was oddly comforting that the actual invitation from typepad to begin blogging had the subject line, "Dan Markel has invited you to join PrawfsBlawg." I have had similar messages before, automated from accounts connected with friends or family members who have passed away. I like these messages from the ether, like a friendly wave from the other side.
I didn't intend for my first post to be so sentimental, but night before last a woman in my circle of friends passed away, and her husband and other friends have been writing about her decision to end treatment that would not cure her so that she could live her remaining days as fully as possible with her family. It's a good reminder to work in the things that matter all of the time. And so, in her honor and as a reminder for all of us, here is a link to the poem that she asked her husband to read at her memorial service, On Living by Nazim Hikmet, which begins:
Living is no joke,
you must live with great seriousness
like a squirrel for example,
I mean expecting nothing except and beyond living,
I mean living must be your whole occupation. . . . .
Tuesday, September 23, 2014
The Washington Redskins, the Lanham Act, and Article III
As the Associated Press reported yesterday, the five Native Americans who prevailed earlier this year before the U.S. Trademark Trial and Appeal Board (TTAB) in their effort to have the Washington Redskins' trademarks cancelled have now moved to dismiss the lawsuit that the Redskins ("Pro-Football, Inc.") filed against them in the U.S. District Court for the Eastern District of Virginia under the Lanham Act, 15 U.S.C. § 1071(b)(4). As I endeavor to explain in the post that follows, it certainly appears that their motion should be granted--and the Redskins' lawsuit dismissed either because the Lanham Act doesn't actually authorize such a suit, or, insofar as it does, it trascends Article III's case-or-controversy requirement in this case.
I. The Lanham Act's Cause of Action for "Adverse" Parties
In their Complaint in Pro-Football, Inc. v. Blackhorse, the Redskins explained that they were seeking:
an Order of this Court: (1) reversing the TTAB Order scheduling the cancellation ofthe Redskins Marks; (2) declaring that the word "Redskins" or derivations thereof contained in the Redskins Marks, as identifiers ofthe Washington, D.C. professional football team, do not consist of or comprise matter that may disparage Native Americans; (3) declaring that Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a),is unconstitutional, both on its face and as applied to Pro-Football by the TTAB, under the First Amendment of the U.S. Constitution, and is void for vagueness; (4) declaring that the TTAB Order violates Pro-Football's rights under the Fifth Amendment of the U.S. Constitution; and (5) declaring that Defendants' petition for cancellation in the TTAB challenging the Redskins Marks under Section 2(a) was barred at the time it was brought by the doctrine of laches.
But whereas the Redskins' Complaint routinely describes their lawsuit as an "appeal" of the decision by the TTAB (where it wouldn't be that weird to have the complaining party before the TTAB--the Blackhorse defendants--as the putative appellees), the Lanham Act actually authorizes something else altogether--a standalone, new civil action against an "adverse party" so long as that party was "the party in interest as shown by the records of the United States Patent and Trademark Office at the time of the decision complained of." The problem with application of that provision here, as the motion to dismiss quite persuasively explains, is that it's not at all clear how the defendants here are "the party in interest," at least in light of the specific nature of the Redskins' challenge:
Ordinarily, the adverse parties in an opposition or cancellation proceeding before the TTAB are two businesses claiming rights to the same or similar trademarks. Thus, when a party dissatisfied with a decision of the TTAB brings actions under 15 U.S.C. § 1071(b)(4), it is usually involved in a dispute with a business that uses a similar trademark, with the parties often joining claims for trademark infringement, unfair competition and other causes of action.
Here in contrast, there's no such relationship, and "PFI does not allege any wrongdoing on the part of the Blackhorse Defendants. PFI does not allege that they breached a contract, committed a tort, or violated any law. Instead, PFI’s allegations are directed solely against the USPTO and PFI seeks relief only against the USPTO." In effect, the Redskins' claim is that the TTAB wrongly cancelled their trademarks--which, for better or worse, has rather little to do at this point with the complainants who initiated the cancellation proceedings in the first place. Thus, it certainly appears as if 15 U.S.C. § 1071(b)(4) does not in fact provide the Redskins with a cause of action against the Blackhorse defendants--and that the suit should be dismissed for failure to state a claim upon which relief can be granted.
II. The Case-or-Controversy Requirement
But imagine, for a moment, that the Lanham Act does so provide--and that § 1071(b)(4) actually authorizes this suit. The motion to dismiss argues that, so construed, the Lanham Act would violate Article III's case-or-controversy requirement, and that seems right to me--albeit for slightly different reasons than those offered by the Blackhorse defendants.
The motion argues that "The Blackhorse Defendants’ legal and economic interests are not affected by the registration cancellations and they will not be affected by this litigation." But I think the case-or-controversy defect here goes to the Redskins' Article III standing. After all, it's black-letter law that a plaintiff must allege (1) a personal injury [“injury in fact”]; (2) that is fairly traceable to the defendant’s allegedly wrongful conduct [“causation”]; and (3) that is likely to be redressed by the requested relief [“redressability”]. Although the Redskins were clearly injured, it's not at all clear to me how the Redskins satisfy either the causation or redressability prongs.
On causation, as should be clear from the above recitation of the Redskins' claims, none of them even as alleged in the Complaint run against the Blackhorse defendants--who were the complaining parties before the TTAB. After all, even though they initiated the proceeding that produced the TTAB order the Redskins seek to challenge, they did not themselves issue that order, nor are they a competing business somehow reaping financial or noneconomic advantage from the deregistration of the Redskins' trademark.
As for redressability, neither the TTAB nor the Director of the U.S. Patent & Trademark Office are parties to the Redskins' suit, and so it is impossible to see how the relief the Redskins are seeking could be provided by the Blackhorse defendants. Again, one can imagine a different set of facts where the adverse party before the TTAB could have both (1) caused the plaintiff's injuries; and (2) be in a position to redress them, but I just don't see how either is true, here. It's certainly odd to think that the defect in this suit goes to the Redskins' standing--after all, if nothing else is clear, the Redskins are certainly injured by the TTAB's cancellation decision. But standing isn't just about the plaintiff being injured by a party nominally connected to the injury...
III. The Equities
Finally, although the motion to dismiss doesn't make this point, there's an equitable point here that I think deserves mention. Whatever the merits of the TTAB's underlying ruling, I have to think that the Lanham Act was not designed to disincentive individuals like the Blackhorse defendants from bringing non-frivolous claims seeking the cancellation of registered trademarks on the ground that they are disparaging. But if the Redskins are right, here, then any party that pursues such a proceeding before the TTAB is necessarily opening itself up to the (rather substantial) costs of a new federal civil action if it prevails, even when the subject-matter of the suit is simply an effort to relitigate the TTAB's underlying cancellation decision. (All the more so because the standard of review in the new lawsuit is de novo, with full discovery.)
Such a result strikes me not only as unwise, but as not possibly being what Congress could have intended when it enacted § 1071(b)(4). Indeed, in many ways, the Redskins' claims sure seem analogous to a SLAPP suit--all the more so when you consider that the Redskins could have, but did not, directly appeal the TTAB ruling to the Federal Circuit.
Posted by Steve Vladeck on September 23, 2014 at 08:47 PM in Civil Procedure, Constitutional thoughts, Corporate, Culture, Current Affairs, Intellectual Property, Steve Vladeck | Permalink | Comments (2)
Teaching current events
Interesting piece in the Chronicle of Higher Ed. At my school, one of the categories on student evals is how we work current events into the discussion. I have used things from Ferguson in Evidence, notably in discussing character evidence and other acts. And I think the controversy around the non-hiring of Steven Salaita at Illinois may lend itself to some discussions of promissory estoppel (there have been some interesting on-line debates about whether he might have a good P/E/ claim). But I think that is as far as a law school class can go with current events, at least before things play out legally and outside of a small, niche seminar.
On a related note, we are working to start a program of monthly faculty talks/panels to discuss ongoing and current events with students and student organizations. Something different than a series of "teach-ins," it will be more a chance for faculty to share their work and to engage with students on hot topics.
Monday, September 22, 2014
Addressing the Unmet Need for Civil Legal Representation--and the Legal Employment Market
It’s my privilege to hang out with present and future health care providers almost every day through teaching at the Texas Tech University Health Sciences Center's brand new Public Health School and being an adjunct faculty member at our terrific medical school and on the advisory board of our awesome nursing school. One of the issues that always surprises them is how little access most individuals have to legal services as compared to medical services. We are used to hearing the bad about access to health care—and there is still plenty of bad—but unless a person faces criminal charges, brought by the government, there is no right to legal representation for those who cannot afford it and very few public or private sources of insurance.
The primary source of federal funding for individuals involved with a civil dispute—child custody, divorce, land-lord tenant, employment, the Legal Services Corporation (LSC), estimates that 80% of “low income Americans who need civil legal assistance to do not receive any, in part because legal aid offices in this country are so stretched that they routinely turn away qualified prospective clients.” See report, Documenting the Justice Gap in America. Individual states also have some subsidized civil aid programs. Although the current president is about as sympathetic to LSC as any in recent history, demands for help still far outstrip demand.
Risa Kauffman of Columbia Law School reported to a U.N. Human Rights Committee examining how the U.S. complies with the an international covenant on civil and political rights reported that: "In the United States, millions of people are forced to go it alone when they're facing a crisis….It's a human rights crisis, and the United States is really losing ground with the rest of the world."
And if anyone is wondering why, given this size of this unmet need and given the existing federal investment in student loans for legal education and the downturn in legal employment opportunities, there hasn’t been federal action to increase staffing at LSC and other organizations—that’s a good question.
If, however, your first reaction here is to laugh and tell a lawyer joke, browse through these state reports, complied by the National Legal Aid & Defender Association and usually commissioned by state courts and chief judges, documenting the unmet need for civil representation in our 50 states. The National Legal Aid and Defender Association has helpfully put together a 50 state survey of reports. The ABA has a Standing Committee on the Delivery of Legal Services that considers access as well as other issues.
The “why” of this situation is interesting--it probably comes from a combination of factors including a lack of demand for legal insurance-perhaps because most people have little understanding of how much they might need a lawyer at crucial junctures in their life, let alone what such a lawyer would cost. Here’s some history from Prof. Alan Housman at Penn. Certainly at least one of those factors is the strong lobby of corporate interests who benefit from the often David and Goliath like disparity in disputes between individuals and corporate entities. Although here’s an argument from the Brennan Center for Justice at NYU School of Law explaining why civil legal aid would be economically beneficial for the states providing it. Here, too, is some very interesting work by Professor Victoria Shannon at Washington & Lee Law School about the emergency of “third-party funding” of civil law suits.
Thursday, September 11, 2014
America’s Prison System is Broken
This news item reporting on the release after 30 years of two North Carolina brothers, described in news reports as both being “mentally disabled” after being declared innocent based on DNA evidence is a timely excuse to bring up a topic that no one likes to discuss—as John Oliver put it in song, dance and puppets a few weeks ago, American’s Prisons are Broken. And one of the primary reasons for this is, as I and others have written before, is that they have become de facto warehouses for those with mental illness, mental disability, and substance abuse conditions. 73% of female prisoners and 55% of male prisoners in state systems have mental health problems (unrelated to the fact that they are prisoners). A recent edition of Health Affairs had several very useful and interesting articles on the mental health issues of prisoners. Because prisoners are the only population in the United States with a Constitutional Right to health care, the cost of prisons, including the cost of health care, has become ruinously expensive- States spent 7.7 billion on prisoner health care in fiscal 2011 the cost of health care provided to prisoners—with the aging population a considerable source of expense.
And despite whatever care they receive in prison, they leave with medical needs as or more serious than when they come in. Study after study confirms that a high rate of prisoners don’t survive the first two weeks after release-often because of a fatal drug overdose. This problem is one we share with Europe and with Australia. And the expenses continue post release with ex-prisoners making high use of emergency services-see here and here. Those prisoners who survive the first two weeks after release, and have a look at how many don’t, find themselves umemployable due to a toxic combination of lack of marketable skills, pre-existing disabilities, and the chronic illnesses that they either acquired in prison or brought out with them. A few states including Kentucky and California have developed their own programs to address these post-release issues by coordinating the transition. But these efforts are uncoordinated and underfunded.
A public health perspective of the problems we face in regard to US Prisons, would ask one question: what could prevent them? What could prevent people from going to prison in the first place and what could prevent them from returning there when they get out? And a legal perspective has to be how this situation can be consistent with a system of laws the purport to protect those with mental disabilities from discrimination and on those lawfully convicted of criminal offenses from cruel and unusual punishment.
Saturday, August 23, 2014
NPR on police body cams
I was interviewed for an NPR Weekend Edition story on police body cameras and whether they represent any sort of great solution to the problem of figuring out what happens in police-public encounters. As expected, I provide the "no, video is not some all-showing neutral observer" perspective.
Wednesday, August 20, 2014
More on police "pattern or practice" in Ferguson
Andrew Ferguson (UDC) has an essay at HuffPost discussing the potential for mapping and predictive technologies to look not only at where crime occurs (its primary current use), but also where police officers are at given times and what they are doing. We thus can identify and map "problematic" police-citizen interactions, thereby showing where individual officers may be acting improperly (e.g., making a high volume of stops without recovering any wrongdoing) and showing patterns of misconduct. The technology also would provide policymakers the notice necessary to establish municipal liability.
Friday, August 15, 2014
First Amendment repealed in Ferguson, MO
Ronald K.L. Collins suggests (hopes?) we are about to enter a New York Times v. Sullivan moment in response to events in Ferguson, MO--broad free speech principles forged from public and media outrage and exposure of racial abuse by police and government officials. I am less sanguine, because I do not see either the government or individual officers being held to account or sanctioned in any way (legally or politically) for the massive restrictions on free expression that have been imposed in the last week. Collins may be correct that this may present an opportunity for the "admirably defiant spirit" of New York Times to "find its way back into the hearts and minds" of the public and for the public to demand that local government show greater respect for First Amendment rights. But these these events are not going to end with a resounding judicial affirmation of the First Amendment that will impose those obligations on government or sanction it for its past disregard.
Courts almost certainly will accept the government's assertions of public safety concerns and recent memories of rioting as justifying officers responding to seemingly peaceful, if angry, protests with riot gear and rubber bullets--these events illustrate Timothy Zick's thesis that public spaces are no longer for collective speech by large groups (My favorite detail: Police ordering people to return to their homes, then saying "Your right to assembly is not being denied"--oh, if you so say). The Eighth Circuit has never held that citizens or the media have a First Amendment right to record police in public spaces, so individual officers will enjoy qualified immunity for various incidents in which they have ordered citizens and journalists to stop recording, confiscated video equipment, or arrested people for recording. There is no evidence the city or county itself ordered officers to target people filming police--at best, municipal policy is silent. The federal government has already backed the local power play by declaring a no-fly zone over Ferguson, thus preventing television helicopters from recording activity from the air. DOJ has promised to conduct an investigation to see that justice is done, but that seems more about the original shooting; otherwise, DOJ assistance has been with "crowd control" and urging citizens not to "antagonize" police. But that "antagonism" has, in large part, consisted of attempting to assemble and protest and to video police massively over-reacting to those attempts--so DOJ's advice is for people not to do the things they should have a constitutional right to do. And like southern officials 50 years ago, Ferguson and St. Louis County officials do not seem affected or shamed by public outrage over their conduct, do not seem to acknowledge having done anything wrong, and do not seem inclined to make any changes on their own accord.
Again, the public takeaway from this may be a reaffirmation of free speech ideals. But is that enough without some official declaration and application of those ideals?
Update: According to this story, things played out much differently Thursday night, under the leadership of Missouri Highway Patrol Captain Ronald S. Johnson, a Ferguson native. There was no massive militarized police response to demonstrators and people were allowed to march and gather. And police officers were ordered to remove their gas masks. Missouri Governor Jay Nixon "vowed that officers would take a different approach to handling the massive crowds that have taken to Ferguson’s streets each night." (For those of you who teach Evidence, this would be an example of an inadmissible subsequent remedial measure).
Wednesday, July 16, 2014
Two (more) op-eds on Hobby Lobby
Ann Lipton has nicely captured the zeitgeist with the notion that "there is something of an obligation for all corporate law bloggers to weigh in on Hobby Lobby." Today, for example, the Conglomerate is starting up on its second Hobby Lobby symposium. So it is with some trepidation that I highlight for you two additional pieces on that speak to this case once again. First, Brett McDonnell defends the decision from a progressive perspective in "Ideological Blind Spots: The Left on Hobby Lobby," appearing in the Minneapolis Star-Tribune. Brett argues that the decision provides space for corporations to have goals outside of shareholder wealth maximization -- something that liberals have promoted in the corporate social responsibility context. The op-ed also recounts the history of RFRA, which overturned Justice Scalia's Smith opinion, and points out that progressives have traditionally been defenders of religious liberty and toleration. The op-ed has (at this point in time) 716 comments, which kind of puts us blawgs to shame.
Second, Grant Hayden and I have penned "Who Controls Corporate Culture?", which appears this morning in the St. Louis Post-Dispatch. Although not written with this intention, it is actually a nice complement/rejoinder to Brett's piece. It argues that folks are riled up about Hobby Lobby in part because the company's 13,000 employees had no role in making the decision. If corporations are going to be according political and religious rights, we argue, the employees need a voice in choosing how to exercise them, particularly when the primary impact is on employees.
Thursday, June 26, 2014
Brishen Rogers has a great, long post at CoOp considering why soccer (or futbol, if you like) never caught on in the United States. He somewhat piggybacks on David Post's VC post from last week.I was always actively antipathetic towards soccer, partly because I did not understand how the overall game worked (beyond "kick the ball in the goal" and "stop using your hands"). I started watching more in recent years, when my daughter took up the game for a few years, and I have to admit to feeling pretty down on Sunday night. I also knew we were not going to beat Germany (although that may be the pessimism that comes with being a Cubs and Northwestern fan).
I like a lot about what Rogers and Post propose; I'll add a few additional points in the gaps.
First, I want to defend the "too little scoring" explanation for soccer's relative unpopularity. The counter to that (which Rogers offers) has always been "look at baseball," which can be just as low-scoring as soccer (especially now that fewer players are juicing). But we need to tweak the comparison by recognizing the differences between soccer and baseball. Even the lowest-scoring baseball game involves a series of one-on-one encounters between pitcher and batter, each of which has a "winner" (batter gets on base or batter is out) and each of which marks a step towards the ultimate result and the ultimate victor in the game; the winner of the game is based on the sum total of those individual encounters. More importantly, baseball is untimed--the point of the game is to score the greatest number of runs within the 27 outs each side is given. So each team has two simultaneous goals--to both score some runs and to get the needed 27 outs in order to win. So we should not say "well, baseball and soccer both have a lot of 2-1 games," because that 2-1 baseball game also had the 27 outs the team needed to win the game resulting from those individual encounters. Relatedly, do not ignore the effect of ties. In baseball, the aggregate of those individual encounters--and getting both runs and outs--is guaranteed to get us to a victor.
If we want to test the "not enough scoring" explanation, the proper comparison is other timed sports, sports in which the only goal is score more points than the other team within a given period of time. And the two major timed U.S. sports--football and basketball-- both involve a lot of scoring.
Second, Post argues that there is "wa-a-a-y too much failure" in soccer and Americans do not like failure. (He adds that the hardest skill in sport is not hitting a baseball, but kicking a soccer ball into the net in a game). Comparisons aside, there still is an awful lot of failure in baseball--the offense fails in more than 75 % of those individual encounters and the greatest individual hitter fails 65 % of the time. Of course, if we focus on the individual encounters in baseball and getting outs as a team's contemporaneous goal, that sense of failure goes away, because we can say the pitcher/defense succeeds in 75 % of those individual encounters.
Third, Americans and American sports media gravitate to individual star players and those stars are more obvious in the big American sports than in soccer because it is easier to see the "star" plays they make. We see LeBron James making shots, we see Peyton Manning throwing touchdown passes, we see Mike Trout hitting home runs or Stephen Strasburg striking people out. And, particularly in basketball, one player makes the difference--in the NBA, the team with the best player in a series generally wins the series. Because we see Lionel Messi score less frequently, we have less of a sense of him as a star making "star plays" (at least plays that produce success). And one star player is less able to dictate soccer outcomes--after all, Portugal's Cristiano Ronaldo is regarded as the best player in the world and his team did not get out of the "Group of Death."
Fourth, I agree with Post about the randomness and caprice involved in soccer. Football, and to a lesser extent basekball, involves precise plays and much less of the free-wheeling running that soccer seems to entail. While all sports involve a bit of luck at the margins, soccer seems to rely on more of it.
Finally, Rogers makes some good cultural and sociological arguments for why America went in the direction of football and basketball rather than soccer. I would add one pont. MLS and professional soccer in this country is said to not be successful because it is not as big as the NBA, NFL, and MLB. But part of the problem has been the insistence on measuring MLS success (monetary and attendance) compared with the sucess of today's other leagues, as opposed to how those leagues looked when they were ten years old. The NFL was founded in the 1920s (and no one one really cared about it until the 1950s), the NBA in the 1940s; it is ridiculous to measure a nascent soccer league against those mature leagues. In 1925, the early days of modern Major League Baseball, no team had more than 1 million in attendance; in 1955, the midpoint of baseball's so-called Golden Age, only eight teams had more than 1 million in attendance and only one had more than 2 million; in 2013, every team had more than 1 million and eight teams had more than 3 million. So the question should not be if soccer is earning the same attendance or money as the other three leagues; it should be how it is doing for a new sports league. And by most measures, the answer to that question seems to be "quite well."
Tuesday, June 24, 2014
A victory for the rule of law - apparently not
I had to edit this blog because literally as I posted it, the news changed. Monday, Meriam Ibrahim, a Sudanese mother of two young children who was facing a death sentence for adultery for marrying a Christian man and apostasy after refusing to denounce her faith was released by court order. As I previously wrote, her imprisonment violated Sudanese law. Her release was a victory for the rule of law. International pressure influenced this outcome. But the victory was very short (less than 24 hours). The breaking news is that she was rearrested at the airport and was taken into custody along with her two children and husband.
Unfortunately, Ibrahim is only one of many who have suffered (and are suffering) in this way. There are many who endure tremendous human rights violations because of the lack of rule but who do not receive media attention. Ibrahim's story illustrates my previous point - international pressure is one way to help bolster rule of law in developing countries, however, that may not be enough as evidenced by the re-arrest of Ibrahim. Perhaps governmental officials who are threatened with a charge of a crime against humanity for failure to enforce their countries own laws will feel the weight of international shame and act to uphold the rule of law.
Thursday, June 19, 2014
How to Prosecute Crimes Committed Abroad?
Earlier this year, in U.S. v. Pepe, a former U.S. Marine captain was sentenced to over 200 years in prison for brutally molesting young girls while teaching in Cambodia under the pretense of being a college professor looking out for the Cambodian youth. He was found guilty of a violation of the PROTECT Act, a laudable federal statute with extraterritorial application which prohibits U.S. citizens from molesting children abroad. The Pepe case had been lingering for eight years. The investigation began in 2006, the jury convicted in 2008, and since then the case has been stuck in litigation limbo (a lingering motion for new trial based on an inappropriate relationship between a U.S. law enforcement agent and translator).
I have previously written about the PROTECT Act, and how it, along with numerous other federal statutes that criminalize U.S. citizens behavior abroad, raises an interesting Foreign Commerce Clause (FCC) issue - a matter in which circuit courts are in complete disarray over. Assuming that Congress, under the FCC, has the power to enact laws like the PROTECT Act with extraterritorial application, the next issues to address (the issues which are framing my fall research project) are the criminal procedure implications of investigations of U.S. citizens in other countries and the related evidentiary matters.If the U.S. criminally prosecutes a citizen for behavior abroad, when and to what extent should constitutional guarantees (like search and seizure) apply? It has been suggested that so long as U.S. government agencies train foreign officers, constitutional rights would be secure and the evidence would be admissible. That seems simplistic, and, indeed, case law is unclear. For example, under the "joint venture doctrine," a U.S. agency may be so involved with a foreign investigation that the foreign authorities would be deemed as "acting as agents for their American counterparts." At that point, the U.S. citizen has the right to constitutional protections. But, the circuits are split as to what level of involvement the U.S. agency has to have to give rise to a joint venture.
What about evidentiary issues? For example, in one PROTECT Act case, an NGO was helping U.S. and foreign authorities investigate a U.S. citizen traveling in Asia. When the foreign agents arrested the defendant, an individual from the NGO took the defendant's laptop home which created problematic chain of custody issues at the U.S. trial. From both practical and legal perspectives, securing witnesses and admissible evidence in the prosecution of extraterritorial crimes create extraordinary legal battles. Given how easy international travel has become, these issues will become more and more prominent.
Tuesday, June 17, 2014
IRS: "sorry, can't produce" or a bad example of hiding the ball?
Last week, the IRS stated that it lost numerous emails from Lois Lerner concerning the targeting of conservative groups for tax exempt status because her computer crashed. And this week, the IRS is now revealing that it has lost numerous additional emails from key IRS officials. Politics aside, it is interesting to think how this discovery issue involving electronically stored information (ESI) would be addressed in a federal court under the Federal Rules of Civil Procedure (FRCP).
The facts surrounding this issue almost read like a law school exam hypothetical. The IRS received a subpoena to produce emails between key IRS officials and other government agents that might suggest targeting. The IRS knew months ago, in February, that it could not produce the emails, but failed to inform Congress that the emails were lost until just the last few days. The IRS has taken the position that the emails were lost during a computer crash in 2011 but that the IRS has made a "good faith" effort to find them having spent $10 million dollars (of tax payer money) to deal with the investigation including the cost to piece together what could be found. The IRS does not deny that the recipients, other government officials, may still be in possession of the emails. The IRS, however, maintains that because the subpoena was only directed at the IRS, not other government agencies, the non-IRS recipients of the emails are not required to produce them.
If this issue arose in federal court, under FRCP 26, parties are required at the outset to submit a "discovery plan" that includes how ESI will be retained and exchanged in order to prevent unnecessary expense and waste. The FRCP requires the parties to take reasonable steps to preserve relevant ESI (a litigation hold) or face possible sanctions. Under Rule 37's so-called safe harbor provision, however, "absent exceptional circumstances, a court may not impose sanctions ... for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system." The IRS is hanging its hat on this safe harbor rule by arguing that, despite a good-faith effort, the emails were lost. Did the IRS, in fact, make a good faith effort?While there is confusion among the courts on how to apply the good faith standard, there is precedent for a court to monetarily sanction the IRS if the court found that the IRS acted negligently when it lost the emails. The court would also have the authority to issue an adverse inference instruction (inferring that the lost evidence would have negatively impacted the IRS's position), if it determined that the IRS acted grossly negligent or willful.
An important fact which will probably be discussed during the next few hearings is whether the IRS violated its own electronic information retention policy. The IRS was put on notice of the investigation last year, and so had a duty to put a litigation hold on the emails at that time (the very essence of what "good faith" means). It seems that the general IRS retention policy of ESI was six months (although now it is longer), but emails of "official record" had to have a hard copy which would never be deleted. Whether these emails constituted an "official record" is hard to determine since Lerner won't testify to their content.
Even assuming the emails were lost before a litigation hold could be placed (or despite a litigation hold being in place), at the very minimum, it seems "good faith" means that the IRS should have notified Congress in February that it lost the emails. Rule 26 would have required Congress to do so. Indeed, such notice would have brought this issue to the forefront and could have saved a lot of money - the money it apparently has already cost to piece together some of the emails, and the money it will cost as the parties argue over whether the IRS negligently or willfully destroyed evidence. If the IRS had been upfront from the beginning, then subpoenas could have been issued months ago to other agencies who, as employers of the lost email recipients, might have copies of the missing emails.
If this discovery issue had arisen in federal court, the IRS would have likely been subject to monetary sanctions and possibly an adverse inference instruction. Shouldn't the IRS be held to these standards?