Friday, December 13, 2013
Lawyers and Nigerian princes
Amazing. The Disciplinary Board had argued before the Iowa Supreme Court that his conduct was "delusional, but not fraudulent"--he honestly believed he was going to get $ 18 million for his clients. He just did not do sufficient due diligence (including internet searches) before bringing clients in on the adventure. The Court suspended his license for one year, a less severe sanction than the Board had recommended.
Somehow, no doubt, law professors are to blame.
Wednesday, December 11, 2013
JOTWELL: Walsh on Posner on Realist Judging
Tuesday, December 10, 2013
Forgive the excessive posting today; there is a lot happening today.
SCOTUS today unanimously decided Spring Communications v. Jacobs, placing significant limits on the scope of Younger abstention. Scott Dodson has a good analysis at SCOTUSBlog. The Court held that Younger only applies in three categories of cases: 1) criminal cases; 2) certain civil cases, typically where the state has initiated enforcement efforts against a private person; and 3) certain civil proceedings, where the challenge touches on the state's ability to perform its judicial functions (implicitly, it seems to me, where the challenge is to the source of authority for that function, such as the law imposing an appellate bond requirement). The decision eliminates the analytical distinction drawn in many circuits between coercive and remedial proceedings. And it makes clear that Younger does not reach simple parallel proceedings between private parties.
Other than rendering obsolete some of the Younger discussion in my book, this decision is good news in clarifying and narrowing Younger's particular application. It hopefully will stop what I regard as Younger Creep--where district court either used Younger to abstain inappropriately or cited it as the basis for abstaining instead of some more appropriate abstention doctrine.
But it might be interesting to consider two recent cases in which the federal court abstained on Younger grounds and how they should play out under the new analysis.First is Tyler v. Commonwealth, where the district court abstained in deference to some potential future family-law proceeding between the girl and the convicted rapist. As a purely private proceeding, that would no longer should be subject to Younger. There also was the underlying state criminal case to which the girl was not a party, but she was not actually seeking to enjoin that proceeding.
Second is SKS Assocs. v. Dart, a 2010 case out of the Seventh Circuit that I use as a problem in the book and in class. The court affirmed abstention from a challenge to the constitutionality of a state court order issued in several pending eviction actions. This is not a criminal proceeding or a civil proceeding involving state enforcement efforts. And the challenge was not to the statutory source of the order, but to the order itself, so this should not fit within the third category. In class, I suggested that Rooker-Feldman was the proper basis here.
In both cases, I would argue that Rooker-Feldman is the appropriate basis for the court to decline to hear the case. Even if I am wrong about that, Sprint should make clear that Younger is not.
College football and the Brandenburg Concerto
[Update: Reports are stating that police have identified the man in the picture and want to interview him, in part to find out how (and if) he caused the events in East Lansing.]
Students at Michigan State University celebrated their football team's Big Ten championship last weekend the way many sports fans do: Setting things on fire. Police responded to a large civil disturbance and reportedly responded to at least 57 fires throughout the city. In many cases, the favored object to burn was a couch.
So what, you ask? Well, because of the guy pictured at right, who attended the Big 10 Championship game in Indianapolis sporting that sign. According to the East Lansing Police Department Facebook page, they are looking for information on his identity. And rewards of up to $20,000 are being offered for information on the overall disturbance.
So the obvious question: Could this guy be charged with anything for holding up that sign? Could any prosecution satisfy Brandenburg v. Ohio and the requirement that the lawless action in East Lansing be imminent and likely to arise from his holding up a sign from a football stadium in Indianapolis?
SCOTUSBlog: Argument in Ray Haluch Gravel
Saturday, December 07, 2013
West on student censorship
Nice Slate essay by Sonja West (Georgia) on student speech, arguing that censoring students pervsersely teaches them that censorship is a good and acceptable idea, sort of the opposite of what we want future citizens and leaders to learn. She mentions that SCOTUS is considering the cert petition in the "I [heart] boobies] case from the Third Circuit, which, given the Court's history with student speech, may not be a good thing. Finally, she highlights the current life of Mary Beth Tinker, who retired from nursing recently to become a student-speech-rights advocate through the Tinker Tour with the Student Press Law Center.
Friday, December 06, 2013
Free speech for me but not for thee (until you're older)
I was working from home this afternoon, with Muhammad Ali's Greatest Fight (a generally cheesy docudrama about the inside-SCOTUS workings leading to the decision in Clay v. United States) on for background noise. My daughter (who will be 8 in 3 weeks) walked into the room right at the beginning of the reenactment of oral argument in Cohen v. California, as Melville Nimmer (played by Bob Balaban) stepped to the podium and the Chief (played by Frank Langella) gave his famous warning about the Court's familiarity with the facts of the case.
I quickly hit the pause button.
The inanity of balanced religious symbols
This is the annual "holiday" display in the town right next to my neighborhood in Miami, which I drive through on the way to work every day. As far as I can tell, it went up sometime Thursday afternoon or evening (I did not notice it on my way to work Thursday morning, although it's kind of hard to miss).
The problem this year, of course, is that Chanukah ended Thursday evening, before the display was fully in place and before its official "opening" that occurs this weekend. Now, since Chanukah only lasts eight nights, it is inevitable that the symbol will be up for longer than the holiday itself every year. But it would be nice if the symbol could be up for at least some portion of the holiday. Otherwise, it's a bit like dying the river green on March 18.
Worse, I am pretty confident that no one in charge realizes this fact or understands the ridiculousness of having a Menorah on display for a full month after the holiday is over. If they were serious about marking the holiday, they might have shifted the timing of the display this year. Of course, having a Menorah up without a Christmas tree probably would have violated the Establishment Clause. And vice versa, which is why the Menorah is not coming down. Instead we will, for the next month, have a religious symbol (and make no mistake, Justices, a Menorah is purely religious) on display with no connection to the holiday it is supposed to mark. [Ed: Had the city moved up the display, the other likely effect would have been total confusion]
By the way, this is not meant to be a rant against official public displays of religious symbols. It's more to push the idea that when government tries to do religion in a way that does not establish religion, it inevitably gets it wrong, sometimes in a way as to be somewhat offensive,. And especially when it's a minority religion. So perhaps they should not bother.
Monday, December 02, 2013
SCOTUSBlog: Attorney's Fees and Final Judgments
I have a new SCOTUSBlog preview on next Monday's argument in Ray Haluch Gravel Co. v. Central Pension Fund, which considers whether a district court judgment that leaves contractual attorney's fees unresolved can be a final and appealable judgment for purposes of § 1291 and Federal Rule of Appellate Procedure 4.
Wednesday, November 27, 2013
Football and limiting rules
In breaking down and defending the infield fly rule, I rely on the concept of limiting rules--special rules designed to recalibrate cost-benefit disparities that appear if some plays are left to the game's ordinary rules. I identify four features that, when present, show the need for limiting rules. I also discuss situations in which the absence of one or more feature shows that a limiting rule is not necessary. In a work-in-progress (hopefully forthcoming), I apply this model to football, focusing on several plays from the last two Super Bowls to consider situations that do or do not call for limiting rules.
But on Slate's Hang Up and Listen Podcast (go to around the 51:00 mark), Josh Levin identifies a play that exposes another hole in the rules that might justify a limiting rule. A defensive team trailing in the final minutes commits a penalty on a play on which the offense had gotten a first down; the penalty stopped the clock, even though the clock would have continued to run without the penalty. In other words, it functionally gave the trailing defensive team a free timeout, forcing the offense to run more plays in order to run out the clock. This, Levin argues, incentivizes teams to intentionally take penalties to stop the clock and give themselves extra, an idea discussed on Football Commentary almost a decade ago. This arose with 2:14 remaining in last Thursday's Saints-Falcons game (the trailing Falcons committed defensive holding on a play) and arguably gave the Falcons a chance to get the ball back one final time (although they did not score) and still lost.
Warning: Another more-sport-than-law-post, so continue at your own risk.This seems like a game situation in which a limiting rule is warranted, as it is defined by all four features: 1) the play produces a significantly inequitable cost-benefit disparity, as the trailing defensive team can stop the clock and give itself more time to get the ball back, to the detriment of the leading offensive team, which receives no benefit from the play; 2) the defense entirely controls the play, as the offense can do nothing to stop an intentional penalty or the clock from stopping, even by declining the penalty; 3) the cost-benefit disparity arises because the defense intentionally commits a penalty, something teams do not want to do under ordinary rules and practices and something that rulemakers probably do not want them doing; and 4) the opportunity to gain those advantages incentivizes the defense to make this move regularly.
In fact, the NFL recognized this gap iand tried to stop it with a limiting rule. The problem seems to be that the limiting rule has not gone far enough.
This play sits at the intersection of three rules.
1) Under Rule 4-3-2(f), when the clock is stopped following a foul by either team, the clock starts as if no foul had occurred. So if the clock would have kept running but for the foul, the clock starts as soon as the ball is ready; if the clock would have stopped but for the foul, it starts on the next snap.
2) But Rule 4-3-2(f) contains three exceptions: The clock starts on the snap when the foul occurs in the last two minutes of the first half, last five minutes of the second half, and when a specific rule prescribes otherwise. R. 4-3-2(f)(1), (2), (3). 4-3-2(f)(2) covered the Saints-Falcons game.
3) Finally, there is a specific rule prescribing otherwise: Rule 4-7-1 prohibits teams from "conserving time" by committing certain acts, including "any other intentional foul that causes the clock to stop." R. 4-7-1(f). The penalty for this act is a 10-second run-off and the clock starts when the ball is ready.
Rule 4-7-1 is a limiting rule. It closes a gap in the rules by imposing the outcome that would have resulted on the play--clock runs, including the ten seconds it would have taken for the ball to be spotted--and putting us in the same place as if the had not been called. By imposing that outcome, the limiting rule eliminates any incentive to commit intentional penalties and thus to act in a way contrary to the game's expectation. The problem is that the limiting rule does not go far enough--it is limited to the final minute of each half, so it does not reach intentional fouls that occur with slightly more time remaining, even if those time-conservation incentives are as present. That seems to have been the case in the Saints-Falcons game. The rule also does not address unintentional fouls, meaning a trailing team might gain that significant cost-benefit advantage, even if only accidentally.
The answer is to expand the limiting rules. Perhaps Rule 4-7-1 should be extended to the final three minutes (at least of the second half), when a leading team is already in time-wasting mode and the trailing team is in time-conserving mode. The increasing sophistication with which NFL coaches understand and strategize those final minutes--discussed weekly on advanced metrics sites--suggests teams have an incentive to begin doing this earlier than the one-minute mark.
Better still, eliminate the exceptions in Rule 4-3-2(f) for the final five minutes of the game. Instead, the clock always should start for the next play as if no foul had occurred on the previous play; if the clock would have continued running, it should keep running (as would have happened in the Saints-Falcons game). Rule 4-7-1 then could perform the narrower function of disincentivizing intentional fouls by imposing an additional cost--a 10-second run-off-- for any intentional fouls committed to stop the clock. In either case, the trailing team would no longer receive (intentionally or unintentionally) the equivalent of a time-out by committing a penalty, thereby presumably removing the incentive to commit the intentional foul.
This is a fun question, because it illustrates how rules collide. Levin does say in his commentary that he spoke with people from the NFL and they did not see this as a big problem. My best guess on that is that R. 4-3-2(f)(1) and (2) probably were designed to create more excitement in close games, by allowing the clock to stop more, allowing for more plays, and, perhaps, more comebacks. That purpose has now run into possible gamesmanship in taking penalties, but the league may consider the balance between excitement and gamesmanship properly struck.
Tuesday, November 26, 2013
More pleading/qualified immunity
The big news from SCOTUS today was the unexpected totally expected cert. grant on the constitutionality of the contraception mandate. But the Court also granted cert. in Wood v. Moss, which involves qualified immunity and pleading.
The case arises out of a street protest against President Bush, where police and Secret Service agents moved protesters several blocks away from where the President was having dinner, while allowing pro-Bush protesters to remain in place. Two months after Iqbal was decided, the Ninth Circuit found the complaint insufficient, a decision I argued illustrated the negative effects Iqbal was likely to have on civil rights litigation. The plaintiffs were given a chance to replead and a later Ninth Circuit panel held that the amended complaint sufficiently pled viewpoint discrimination.
That the Court took the case does not bode well, but I suppose I could be surprised.
§ 1983 and the 11th Amendment
I wrote last week about Tyler v. Commonewealth of Massachusetts, the lawsuit by a woman contesting a state court order forcing her to engage in family law matters with the convicted rapist who fathered her child. A federal district court dismissed the § 1983 action. One of the cited reasons was the Eleventh Amendment, a decision I said last week was wrong. Here is why.
It is true that the original complaint impermissibly named the Commonwealth of Massachusetts as defendant. But one overlooked aspect of this jurisprudence is that the inability to sue a state, at least on a constitutional violation, is a matter of the text of § 1983, not the Eleventh Amendment. SCOTUS has twice held that a state (or state agency) is not a "person" within the meaning of § 1983; the ordinary meaning of person does not include a sovereign and Congress did not provide any text or history to suggest differently. In fact, it seems clear that under either the prevailing congruence-and-proportionality analysis or Justice Scalia's "enforce means enforce" approach, § 1983 is valid § 5 legislation. There is perfect congruence-and-proportionality between § 1983 and the Fourteenth Amendment rights being enforced. And Scalia has acknowledged § 1983 as the main example of permissible legislation that creates a remedy for existing constitutional rights. So the reason the plaintiff could not sue the Commonwealth is that the Commonwealth is not a person subject to suit or liability under the applicable substantive law. This approach also has the benefit of making clear that this is all a defect in the merits of the claim--the plaintiff sued a defendant who is not subject to the duties or liabilities under that substantive law.
The other problem with the Court's analysis is more fundamentally wrong. The plaintiff moved to amend the complaint in response to the motion, seeking to substitute the justices of the Superior Court (the trial court) as defendant. And since the plaintiff sought an injunction preventing current and future enforcement of the state court orders, this seems like it would be permissible under Ex Parte Young as an action against a responsible officer seeking prospective relief from an ongoing violation.
Amazingly, however, the district court held that Young did not apply. Tyler was not seeking prospective relief because the "sentence complained of has been imposed and is now an historical fact." But this seems to misunderstand what it means for relief to be "prospective." Yes, the challenged order is already entered. But the plaintiff's argument is that the order is presently causing her constitutional harm and will continue to cause her constitutional harm in the future. The injunction she seeks is to halt future enforcement of that state-court judgment. If that is not prospective, I am not sure what is. Under the court's apparent definition, no relief is prospective--it would be just as easy for a court in an action challenging the constitutionality of a statute (the typical Ex Parte Young case) to say "the statute complained of has been enacted and is now an historical fact." The issue should not be the timing of the complained-of legal rule, but the effect of that rule and when the relief sought will take effect.
There are cases that distinguish "purely prospective" injunctions from other injunctions. But those are Younger cases; they hold that an action that seeks to enjoin future enforcement of a law without interfering with a pending prosecution are not barred by Younger. (Wooley v. Maynard is a good example). This has nothing to do with whether an injunctive is prospective for Ex Parte Young purposes.
Saturday, November 23, 2013
JFK and the CRA
Yesterday was the 50th anniversary of the assassination of John F. Kennedy (maybe you heard). Next summer will mark the 50th anniversary of passage of the Civil Rights Act of 1964. The proximity in time of the events is not necessarily coincidental, of course. One of the recurring narratives is that the assassination enabled the legislation. LBJ used the assassination and JFK's legacy to push Congress and the public to support sweeping legislation. And LBJ's legendary facility with Senate procedure, something Kennedy lacked, is often credited with enabling him to push the ultimate bill through in that house.
Many people are playing counter-factual history this weekend--what if Kennedy had not been assassinated (the subject of a book by journalist Jeff Greenfield)? So for everyone familiar with the 1964 Act and its passage, the legislative politics and procedure, and the history of the era--Would some version of comprehensive civil rights legislation (touching on voting, employment, education, and public accommodations) have passed had JFK remained president after Nov. 22, 1963?
Friday, November 22, 2013
Rooker and Younger
In August, I wrote about Young v. Commonwealth, a § 1983 lawsuit by a teen-age girl who had a child as a result of a rape; the criminal court in Massachusetts ordered the convicted rapist (who was sentenced to 16 years probation) to initiate proceedings in state family court regarding paying child support and other matters, prompting the man to also seek visitation. The girl objected to that order because she did not want the man involved in her, or the child's, lives; she attempted to appeal the criminal court order to the Massachusetts SJC, but was found not to have state-law standing. She then ran to federal court. I pointed out a number of problems with the case and even used the complaint to illustrate some concepts and doctrines in Civil Rights.
Two weeks ago, District Judge Stearns of the District of Massachusetts dismissed the complaint, seemingly with prejudice (H/T: One of my alert students). The court dismissed for three reasons: 1) the suit is barred by the Eleventh Amendment because it named the Commonwealth as defendant and the attempt to instead name the state judges under Ex Parte Young is still barred because the suit does not seek prospective relief, but relief from a prior judgment (this last point is beyond wrong, although I leave that for another day); 2) it is barred by Burford Abstention, which requires federal abstention in deference to a unified state regulatory regime, which includes family courts); and 3) it is barred by Younger abstention, because the § 1983 action interferes with an ongoing state proceeding.
In my earlier post, I suggested that the real basis for dismissal should be Rooker-Feldman, which is also what I suggested to my students in class. The court's reliance on Younger instead of Rooker-Feldman reflects what may be a common, but unfortunate, confusion between the doctrines.Younger and Rooker-Feldman share similar underlying comity concerns--allowing state institutions, mainly as courts, to function according to their own processes and preventing federal district courts from hearing cases that interfere with or override those proceedings. And both doctrines rest on the premise that constitutional errors in state proceedings should be corrected by seeking appellate review in the state system and, if necessary, SCOTUS review of the final state-court judgment.
The difference is (or should be) the target of the federal suit. In the typical Younger case, the state is seeking to enforce its substantive law in a state proceeding and the state defendant asks a federal court to enjoin that enforcement effort, and thus to enjoin the ongoing state proceeding, because the underlying substantive law is defective (usually constitutionally, but also as a matter of federal statutory law). The federal defendant is usually the executive officer or agency who initiated the enforcement efforts. Younger prevents that end-run, forcing the party to defend in the state enforcement proceeding, present its constitutional challenge to the underlying law there, and appeal any adverse result. And if Scott Dodson is right about the case pending before SCOTUS, Younger's scope is going to be explicitly more confined to such coercive proceedings. By contrast, Rooker-Feldman applies where the constitutional injury to the would-be federal plaintiff is caused by an adverse judgment or order already issued in any type of ongoing state proceeding, where the federal injunction would functionally review and reverse that order.
The problem is that many courts (and presumably defendants, which is where this begins) immediately turn to Younger anytime the injunction touches a pending state proceeding, without stopping to consider the nature of the state proceeding, the source of the alleged constitutional injury, or the target of the sought federal injunction. Those features should mark the line between Younger and Rooker-Feldman. The Tyler court is not alone in this conflation. In SKS Assocs. v. Dart, the Seventh Circuit held that Younger barred a federal action to enjoin a General Order issued by the chief judge of the state court and applicable to all pending eviction actions in state court. The court similarly went straight for Younger, even though the challenge was to the constitutionality of the order issued (functionally) in a pending state case and not to the underlying applicable law. The court did acknowledge that this was not the typical Younger case because SKS was not a defendant in the state proceedings, but nevertheless insisted that Younger comity demanded abstention.
The Tyler court also seems to have missed the point of the lawsuit, which may add to the confusion. The court saw it as an effort to enjoin the family proceedings (which have not yet produced any final order), meaning there was no specific order to point to as the source of injury. But the complaint actually asks the court to enjoin the underlying criminal court order that sent the perpetrator to family court in the first instance, as order already issued and final. So, once again, the target of the federal action matters.
The further irony is that less than a decade ago, lower courts were overusing RF, having conflated it with claim preclusion. SCOTUS halted that with two decisions (Saudi Basic and Lance). Now the courts seem to be running away from RF's core application.
At some level, of course, it does not make a practical difference. A federal district court cannot hear Tyler's § 1983 action and Tyler's recourse lies in appellate review of state proceedings, with possible certiorari to SCOTUS. But there is nothing wrong with a little doctrinal consistency and accuracy.
Wednesday, November 20, 2013
Stay in Texas clinic litigation remains in place
By a 5-4 vote (divided along predictable lines), SCOTUS let stand the Fifth Circuit stay of the district court injunction prohibiting enforcement of the restrictions on reproduction health clinics. The law remains in effect and enforceable, and clinics must comply with the law, pending resolution of the appeal. The Fifth Circuit has expedited briefing and set oral argument for January. The main order was unsigned. Justice Scalia (to whom the original application was directed) wrote an opinion concurring in the denial of the application, joined by Justices Thomas and Alito. Justice Breyer wrote a dissent for four.
The dissent focused, properly I believe, on preserving the status quo and properly balancing the harms. By enjoining enforcement of the law, the district court changed the status quo from what it would have been were the laws in effect and returned to the status quo before the law was enacted. The stay thus disrupts that status quo by putting the state laws into immediate effect, thereby forcing many clinics (advocates insist as many as 1/3 of the clinics in the state) to close and many women to have to travel hundreds of miles to obtain reproductive health services. And many of those clinics may be unable to reopen even if the district court is ultimately affirmed. The balance of harms is thus between the state being unable to enforce its laws for a few months against the permanent harm to women unable to exercise their constitutional rights without undue burden (which the district court found was imposed by these laws).
The dissent also found no public interest considerations that warranted a stay. Justice Scalia responded by insisting that "[m]any citizens of Texas, whose elected representatives voted for the law, surely feel otherwise." But this goes to the related point about harm to the state if it is barred from enforcing its laws and linking (as the Fifth Circuit and Justice Scalia both did) the public interest to harm to the state--it proves too much. The state always has an interest in enforcing its duly enacted laws and the public in the enforcement of the laws duly enacted in its name. If those two truly predominate and always run together, then injunctions should always be stayed pending appeal to preserve that interest in enforcing the law until any law is finally determined to be unconstitutional.
But not every negative injunction is stayed pending appeal; I would imagine that most aren't (this might be a nice empirical question to explore). And, if we focus on maintaining a status quo, most shouldn't be. Which suggests that what is really going on is a tip of the hand on the merits--that five-justice majority is convinced the Texas law is constitutionally valid and sees no reason to delay enforcement. And so we have a pretty good sense of what will happen if/when the case comes back to SCOTUS for full merits consideration.
Tuesday, November 12, 2013
Teaching procedure from bad procedure
Last week, I wrote about the § 1983 action by a man allegedly subjected to multiple invasive searches and medical procedures--including a colonoscopy, enemas, and digital penetration--in a futile, seemingly unsupported search for drugs. Michelle Meyer at The Faculty Lounger reports on two additional incidents, one involving the Hidalgo County Sheriff's Office (the same department, and the same K-9, as in the first suit) and one involving federal border agents.
Michelle also reports that a Scribd user is collecting all the documents in the first lawsuit, including the complaint and the four answers (by the county and its officers, by the city and its officers, by the deputy DA, and by the two different doctors). Given the attention this issue is getting and the outrage the cases have generated, these seem like they would lend themselves as sample pleadings for Civ Pro. Unfortunately, they are not great pleadings. The complaint is ok; it illustrates how to plead detail to get around Twiqbal and shows how different claims go towards different defendants; but there are problems/omissions in the jurisdiction statement and in the framing of the claims. The multiude of answers shows how each defendant or group of defendants must answer separately. But they all are a mess, particularly in being drafted so it is impossible to match paragraphs between the pleadings.
The question is how much we want to teach by negative implication--"here is an example of a bad pleading, don't do it this way."
Monday, November 11, 2013
Counter speech, hecklers, and heckler's vetoes
This story (from Slate and Inside Higher Ed) [link fixed] discusses recent events at Brown University, in which students repeatedly interrupted a speech by NYPD Commissioner Ray Kelly (architect of the city's stop-and-frisk policy), ultimately causing the speech to be canceled. The author pairs this with a 2001 incident, in which students trashed 4000 copies of the student newspaper containing an editorial advertisement questioning the wisdom of slavery reparations. Both Kelly (or it least his policies) and the ad were alleged to be racist. The University president has criticized the Kelly protesters and spoken of the need to allow all voices to be heard. The legal director of the Foundation for Individual Rights in Education ("FIRE") (an organization whose views about campus speech I largely share) expressed concern over the pervasiveness of such "heckler's vetos."
The incident illustrates something I wrote about here, about three distinct forms that counter-speech (whether actual or symbolic) may take. One involves counter-speakers in the same location as the original speaker, attempting to drown him out. While those counter-speakers are certainly hecklers, heckling is itself a form of protected free-speech activity, at least so long as the hecklers are lawfully entitled to the space in which they are heckling. While this perhaps is not the ideal path to rational discourse, both the speaker and the heckling counter-speaker attempting to drown him out are doing what the First Amendment contemplates and protects.
A cinematic illustration of this idea after the jump:
But I hesitate to call what happened with Kelly censorship or a heckler's veto, at least without knowing more about what happened there. A heckler's veto presumes government involvement in stopping the original speaker on behalf of the hecklers or in furtherance of the hecklers' preferences; it does not include heckling counter-speakers who succeed in drowning out the original voices. It is the difference between Brown officials canceling Kelly's speech (whether to keep the peace or to satisfy the hecklers) and Kelly giving up because he could not get a word in edgewise.
Again, drowning out a speaker or burning publications with whom you disagree is not the best approach to public discourse and dialgoue, especially on a university campus, where all ideas should be aired. It is to say, however, that, no, Brown University does not have a problem with free speech; its students are acting entirely consistent with one vision of free speech and the First Amendment.
Thursday, November 07, 2013
JOTWELL: Leong on Schwartz on indemnifying policeNancy Leong (Denver, visiting at UCLA) has the new essay on JOTWELL's Courts Law, reviewing Joanna Schwartz's Police Indemnification (forthcoming NYU L. Rev.), which undertakes an empirical exploration of municipal indemnification practices in § 1983 litigation.
Tuesday, November 05, 2013
You can't make this stuff up, § 1983 edition
So: Would the officers even try asserting qualified immunity, on the ground that there is no case law establishing this conduct as unconstitutional? Is it safe to say these guys are plainly incompetent? Absent case law, is this analogous to Judge Posner's hypothetical about selling foster children into slavery? And what of the doctors? Did they act under color of law? And under what test?
Monday, November 04, 2013
The rhetoric of qualified immunity
I think SCOTUS has given up on qualified immunity. Today the Court in one eight-page per curiam order in Stanton v. Sims granted cert, reversed, and remanded a case in which the Ninth Circuit had denied qualified immunity, where an officer kicked open a fence to enter private property without a warrant, purportedly in "hot pursuit" of a misdemeanor suspect. And all without resolving whether there was a violation, so lower courts have no new guidance on the question.
What is noteworthy is the Court's new rhetorical move. In Ashcroft v. Al-Kidd, the Court had explained that qualified immunity "protects ‘all but the plainly incompetent or those who knowingly violate the law.'" The Court today repeated the phrase "plainly incompetent" five times in the opinion; in doing so, it seems to be suggesting that a court that denies qualified immunity is, per se, labeling that officer as "plainly incomepetent." If lower courts and defendants seize on that, qualified immunity will become even harder to overcome (and dismissal easier to obtain), because no plaintiff wants to be seen as labeling the officer incompetent and no court wants to sign onto calling police officers names or questioning their integrity and ability.
Sunday, November 03, 2013
When I lived in places with actual seasons, I was the rare person who liked "falling back." I love late fall and early winter in the north and midwest, and the extra hour of darkness was part of that. One fall, I actually missed the time change completely--I woke up, went on a long bike ride, then spent the day writing and watching football; it was only when "60 Minutes" did not come on as expected that I happened to glance out my window at a billboard that contained a clock and realized I had been off by an hour the entire day.
Personal stories aside, I did not realize how much controversy in law, policy, health, safety, economics, and life in general is bound up with Daylight Savings and the back-and-forth with Standard Time. Economist Allison Schrager has floated a proposal that is gaining some media attention--eliminate DST and move the continental U.S. to two time zones one hour apart, with the line on Texas's western border and running up through Kansas, Nebraska, and the Dakotas.
Saturday, November 02, 2013
Stays and appellate benchslaps
In staying the injunction pending appeal in the New York stop-and-frisk, the Second Circuit also ordered that the district judge, Shira Scheindlin, be removed from the case for running "afoul" of the judicial code of conduct. The court then remanded the case to the district court to 1) be reassigned to a different judge so 2) that new judge to implement the stay and "otherwise await further action by the Court of Appeals on the merits of the ongoing appeals,." But the case remains in the court of appeals, and subject to its jurisdiction, in all other respects.
In a listserv discussion, Aaron Caplan (Loyola-LA) questioned the necessity of this limited remand. FRCP 62 makes clear that the power of district judges to stay proceedings pending appeal does not limit the power of the court of appeals to stay proceedings and to issue orders preserving the status quo. So why the remand at this point? Why did the Second Circuit not simply order the stay, decide the merits, and remand to a new district judge only if and when remand is necessary once the Second Circuit decides the appeal. One answer may be that this ensures formal procedural regularity--under FRAP 8, the expectation is that a stay will be sought and entered in the district court in the first instance. So the remand order ensures that there is a stay in the trial court.
A second, and more likely, explanation is implicit in Emily Bazelon's article on the case, which describes this as the court of appeals reaching to call out Judge Scheindlin. Remanding now maximizes the appellate benchslap, drawing particular attention to her removal from the case. The removal would not carry the same force as a criticism of Scheindlin if it came at the end of the appeal, particularly if the court affirms the injunction (which remains possible). If the goal was to publicly bring the judge to heel, this was the way to do it.
Note how the Second Circuit's view of the relation between the court of appeals and the district court on stays contrasts with the Fifth Circuit's approach in the Texas abortion case. The court of appeals issued the stay even though the state never requested a stay in the district court, as required by FRAP 8(a)(1). The rule allows for a first request in the court of appeals if a motion in the district court would be "impracticable." Of course, the court did not explain why a motion in the district court was impracticable; it simply asserted that the plaintiffs did not push this point and that the challenged law was due to take effect the day after the final judgment and injunction issued from the trial court. I'm not sure what any of that has to do with the practicality of seeking a stay there.
Friday, November 01, 2013
Injunctions and stays
Earlier this week, a district judge held that several provisions of the restrictive reproductive health regulations enacted by Texas last summer (over the famous Wendy Davis filibuster) were unconstitutional and enjoined their enforcement. On Thursday, the Fifth Circuit stayed the injunction pending resolution of the appeal. This means the laws are enforceable. It also means a number of clinics are not going to be able to operate beginning tomorrow morning.
Putting aside my views of the constitutionality and wisdom of these laws, the stay surprises me. The idea behind staying an injunction is to preserve the status quo and to avoid permanent or long-lasting effects that may be inconsistent with the ultimate state of the law once the litigation is fully resolve. Ultimately, we want to avoid a mess, whatever the outcome of the constitutional challenge. Under that consideration, a stay seems inappropriate here. Several clinics are going to have to close, cease performing abortions, or make physical or operational changes, all at some cost. If the district court is ultimately affirmed, these losses would have been incurred because of an ultimately invalid law. And even if the district court is ultimately affirmed, some clincis, having had to close or to incur these additional costs, may be unable to recover. This seems pretty messy. The court of appeals addressed this concern in a sentence, saying any such concerns were overcome by the likelihood that the state would succeed on the merits and that the laws are constitutional) But the uncertainty of the constitutional question, combined with the cost and messiness that comes with allowing the law to be enforced, should weigh against the stay and in favor of letting the injunction remain until the case is resolved.
Contrast this with the Prop 8 litigation, where everyone knew the initial district court injunction would (and should) be stayed pending appeal. If that injunction had taken immediate effect, people would have been able to marry, even before the question of Prop 8's constitutionality was conclusively resolved. And had the district court been reversed, we would have had a bunch of couples the state was forced to marry, although its law was not ultimately unconstitutional. Here, the mess goes the other way--not staying the injunction would have created confusion.
Update I: I suppose I should add something on the Second Circuit's stay of the injunction in the New York stop-and-frisk case. This also seems like an inappropriate case for a stay. The status quo should be that people are not subject to potentially unconstitutional searches (as already determined by a district court) until their constitutionality is resolved.
Sunday, October 27, 2013
Baseball rules, again
One year after benefiting from a bizarre and controversial (although I believe correct) Infield Fly call in the NL WIld Card, the St. Louis Cardinals won Game 3 of the World Series on an obstruction call on the Red Sox third baseman. Although early reaction (at least outside the Red Sox clubhouse) seems to approve of the call, this one will remain a point of contention, both because it occurred in the World Series and because it allowed the game-winning run to score (officially, it was scored an error on the third baseman who obstructed).
Rule 2.00 of the Official Baseball Rules defines "Obstruction" as "act of a fielder who, while not in possession of the ball and not in the act of fielding the ball, impedes the progress of any runner." A Comment to the rule provides that a fielder can occupy space when "in the act of fielding a ball," but once he has attempted to field a ball and missed, he can no longer be in the act. Thus, if a player dives at a ball and continues to lie on the ground after it is passed him and delays the runner's progress, "he very likely has obstructed the runner." The rule has no intent requirement; impeding the runner, even unintentionally, constitutes obstruction. Under R. 7.06(b), the umpire can "impose such penalties, if any, as in his judgment will nullify the act of obstruction;" typically, that is awarding base the player would have been entitled to without the obstruction, in this case, home.
And here is the umpires' post-game press conference, which can best be described as an opinion issued orally from the bench, explaining the court's judgment.
A couple of themes emerge that, I think, support the call. First, intent does not matter, only the result. Even if (as here) it is almost unfair because the play happened too quickly for the fielder to do anything to get out of the way. Second, while the internet is talking about the Sox third baseman's legs going up in the air, the umpires insisted that it was not the legs, but the fielder's body that created the obstruction. Third, it did not matter that the runner was inside the foul line when he tripped over the fielder (one ump said he was right on the chalk, the video suggests he was inside the line), a point the Red Sox players kept repeating in interviews; a runner can "make his own baseline" by picking the most direct path to the next base.
As expected, some players (Sox starter Jake Peavy was one) complained about the game ending on the umpire's call and the umpire "deciding" the game, a reflection of what Mitch Berman has called "temporal variance" in enforcement of sports rules. That argument seems especially incoherent in this context. After all, the Cardinals could just as easily argue that the play was important precisely because the Cardinals had a chance to score the game-winning run and the Sox were preventing him from doing so in a way not allowed under the rules.
Anyway, obstruction now will be the word of the rest of this Series.
Thursday, October 24, 2013
JOTWELL: Epstein on Enns and Wohlfarth on swing justicesThe new essay for JOTWELL's Courtslaw comes from Lee Epstein (USC), reviewing Patrick K. Enns and Patrick Wohlfarth's The Swing Justice (forthcoming in Journal of Politics), which takes a new look at the concept of swing justices.
Monday, October 21, 2013
Courts and Law Reviews
To pile-on the posts by Jack and Matt: Regardless of whether courts (particularly SCOTUS) are citing to law review articles, they are listening to and relying on the arguments of legal scholars. While these arguments are coming to them in amicus briefs rather than articles, that is a matter of format rather than substance. And many an amicus brief begins as, or eventually becomes, a law review article.
Take this month as an example. In argument in Madigan v. Levin, the justices asked several questions about an amicus brief authored by Steve Vladeck and signed by a number of Fed Courts scholars, including me. Steve made those same arguments in an article in Green Bag last winter. And in Atlantic Marine Construction Co. v. District Court, the Court expressly ordered the parties to discuss an amicus brief by Duke's Stephen Sachs and asked numerous questions about the brief during argument. Depending on how the Court decides Atlantic Marine, perhaps Stephen will turn those arguments into an article.
Tell me what I need to know
How would that be as an opening question in a meat market or faculty interview? Certainly out of the ordinary. But in theory it gets to the heart of things very quickly--it tests how well a candidate thinks on his feet, while also giving her control over the conversation.
Would you want to deal with a question like that as a candidate? Would you want to ask that question as a committee member/interviewer?
BTW: The idea for this question came from a colleague with extensive non-academic, real-world interviewing/hiring experience.
Wednesday, October 16, 2013
Law schools and the shutdown
Courtesy of Andrew Ferguson (UDC) is this story (registration required) on the effect of the shutdown on law schools, faculty, and students, including at UDC, the only public law school in DC. The story indicates that the school's clinics have been deemed essential. But the faculty has been talking about whether to continue teaching if/when the money runs out--are there ethical, legal, or other concerns by teaching during the shutdown?
Probably a moot point, as it appears this all will end with a whimper tonight (just in time for everyone to gather in DC for the meat market). But an thought game.
Olympic free expression at 45
Today (Wednesday, October 16) is the 45th anniversary of the Tommie Smith/John Carlos Black Power salute on the medal stand following the 200 meters at the 1968 Olympics in Mexico City. The third person on the stand is Australian Peter Norman, the silver medalist, who supported Smith and Carlos by giving them his gloves and standing at attention while wearing a badge of the Olympic Project for Human Rights. And while Smith and Carlos are generally regarded as heroes who took a stand, 45 years ago they were vilified and expelled from the games.
Of course, gay rights have become an issue for the 2014 Winter Olymics in Sochi, Russia, given recent legislation prohibiting gay-rights "propaganda" and public displays of homosexuality or support for homosexuality. And the International Olympic Committee has repeatedly and publicly reminded athletes of IOC regulations requiring respect for the home country and its laws--in other words, athlete protests of these laws will not be tolerated.
In other words, the "Olympic Ideal" of free expression has not evolved much in 45 years.
Monday, October 14, 2013
On online law reviews
Mark Tushnet shares a story and raises some questions about on-line law review supplements. I have had several great experiences with the format and am a big fan, both for myself and in offering suggestions to my colleagues. Mark raises two questions I wanted to respond to.
First, he wonders if the piece will be cited. It seems to me the answer is "as much as anything else by a high-profile author." Nowadays, people find scholarship on SSRN and Westlaw/Lexis. Most of the on-line supplements (certainly from the top-tier reviews) are published with hard-copy reviews. And authors will distribute their supplement essays through SSRN. So the articles will be seen.Second, he wonders what P&T (and, I might add, although to a lesser extent, appointments) committees will do with these. That answer has a few more moving parts. Given the length limitations at most supplements, such pieces will not alone be enough to satisfy the tenure standard at most law schools. At the same time, the existence of such journals should provide an incentive to scholars to take advantage of them and might give committees an expectation that faculty will do so; more scholarly outlets means more publication opportunities. At many schools, the statutory minimum for tenure is 3 "substantial scholarly works" (whatever that might mean) by the beginning of the sixth year--roughly an article every two years. Perhaps a committee might think reasonable productivity is one big piece and one smaller piece (such as might run in a supplement) in that time?
As for what P&T committees will do, that is going to change quickly as the make-up of those committees changes. The really old guard, especially the mythical "dead wood," may not look kindly on such placements, seeing tham as little more than glorified op-eds. But committees are increasingly populated and influenced by people who begin their academic careers within the past 10-15 years, just as these journals were coming into existence, and who are therefore comfortable with and respectful of what goes into publishing in them.
Sunday, October 13, 2013
The justices talk procedure
If you want to hear SCOTUS talk intelligently about procedure, have a listen to last week's argument in Atalantic Marine Construction Co. v. District Court. The issue in the case is whether, when a party files someplace in violation of a contractual choice-of-forum provision, the issue is properly considered as improper venue under FRCP 12(b)(3)/§1406 or as a request to transfer venue under § 1404. It discussed venue, forum non, improper venue, 12(b)(6), and the interconnections among all of these, in a very intelligent and easy-to-grasp way. And the argument repeatedly discussed a law professor by name--Stephen Sachs of Duke, who wrote an amicus brief arguing for a third way at this question. Leading the way were Justices Ginsburg and Kagan (no surprise) and Alito; on the other hand, Justice Breyer again asked questions that suggest he does not know (or want to know) anything about civil procedure.
Although I expect the Court to have decided the case by the time I reach venue next semester, I may assign the argument as a way to show this stuff fits together.
Wednesday, October 09, 2013
Tips for newly tenured professorsFrom Eric Goldman (Santa Clara). Discuss.
Tuesday, October 08, 2013
There are a few of usAnd Dahlia Lithwick (sorry) Emily Bazelon tried to talk to some of us.
JOTWELL: Pfander on Ewald on the Committee of DetailThe latest essay for JOTWELL's Courts Law Section comes from James Pfander (Northwestern), reviewing William Ewald's The Committee of Detail (Constitutional Commentary), which explores the role of the Committee of Detail (and particularly James Wilson) at the Philadelphia Convention in the creation of the Article III judiciary.
Baseball and removal
Baseball player and PED pariah Alex Rodriguez sued Major League Baseball in state court in New York last week, asserting claims for tortious interference with existing contract (his contract with the New York Yankees) and tortious interference with prospective business relationship (because sponsors have dropped or refused to hire him). Today, MLB removed the action to the Southern District of New York.
But the basis for removal was not, as one might expect in a tort suit, diversity. That removal would have been impossible. MLB is an unincorporated association of its 32 teams, which are themselves unincorporated associations and partnerships; each team is a citizen of every state in which a member or partner is a citizen, meaning MLB is a citizen of every such state. MLB thus is a citizen of New York (among other places), as is Rodriguez, meaning complete diversity is lacking. Moreover, because MLB is a citizen of New York, it cannot remove a diversity action under the Forum Defendant Rule.
Instead, removal was based on federal question jurisdiction under the doctrine of complete preemption. MLB argues that Rodriguez's claim, which functionally challenges his suspensiona and the process by which that suspension was imposed, is preempted by § 301 of the Labor Management Relations Act and MLB's agreements with the MLBPA. The LMRA is one of a few federal statutes (ERISA and the National Bank Act are the others) that have "uniquely powerful preemptive force;" the statute provides the only available cause of action in this realm, such that any state law claim is converted into a federal claim arising under the federal statute. Thus, although Rodriguez pled state-law claims, such state claims do not exist. His claims therefore arise under federal law (the LMRA) and are removable as such.Complete preemption is controversial and in many ways makes no sense. Preemption ordinarily is a defense; the preemptive force of federal law defeats the state law claim and warrants its dismissal. But that argument is made in state court. By allowing removal to federal court, the doctrine carves an unexplained exception to the Well-Pleaded Complaint Rule, under which removal can only be based on the claims appearing in the complaint, not on defenses. The response, I suppose, is that this is a unqiue form of preemption, which converts the nature of the cause of action; removal is not based on a defense, but on the actual claim, recast in light of federal law's preemptive force. But the Court has never explained or justified what Justice Scalia has derided as this "federalize-and-remove dance."
It is particularly obvious in this case that the LMRA provides a defense rather than a change to the claim. With the case now in federal court, MLB almost certainly will argue that the civil action should be dismissed because the claims are governed by MLB's Basic Agreement (its CBA) and related agreements respecting drug use and testing, which empower the commissioner with respect to PED use and commit challenges to that power to binding arbitration. In other words, the LMRA and the Basic Agreement are doing double work--providing the jurisdictional hook to put the case in federal court, then providing the merits hook to defeat the claim. This offends my basic belief that rules should be either merits or jurisdictional but never both. In any event, the extra step seems wasteful and unncecessary. It would have been simpler and more efficient for MLB to simply move to dismiss in state court in favor of arbitration.
Monday, October 07, 2013
Cert. denied in Duke lacrosse
SCOTUS this morning denied cert. in Evans v. Durham, the § 1983 action by the three indicted-but-exonerated members of the 2005 Duke men's lacrosse team. The Fourth Circuit rejected (which I discussed here) claims against the city and the investigating police officers involved; the plainitffs tried to get to SCOTUS on the issue of whether the prosecutor's conduct (which enjoys prosecutorial immunity) breaks the causal chain and cleanses the officers' misconduct when they conspired together. Interestingly, they did not seek cert on the "stigma-plus" theory of liability for other officer misconduct (on which the causal chain was not broken).
The plaintiffs still have state-law malicious prosecution claims pending. The next question may be whether the district court declines supplemental jurisdiction over those claims or decides to keep them, seeing as how this litigation is now 6+ years old.
Wednesday, October 02, 2013
Does the First Amendment exception to the government shutdown violate the First Amendment?
Well, I was joking. But I guess we should not overestimate the ability of members of Congress to engage in absurd demagoguery, especially when it involves the Greatest Generation. So as the sign at left shows and as a couple of commentators to my earlier post pointed out, national parks are closed, except for "1st Amendment activities." So park police will not be in the awkward position of arresting WW II veterans for trespassing. And Republican congressmen may lose at least one photo opportunity.
The question, of course, is what constitutes "1st Amendment activities," who decides, and how. Is it simply visiting a memorial or monument to see it (which is what the Honor Flights from Mississippi were trying to do)? If so, why should the WW II Memorial be different than any other national park, even one that doesn't have a particular monument, but is a historical, special, or meaningful place to see (which would seem to be, by definition, any place the government saw fit to designate a national park)? This all looks ripe for some pretty blatant content/viewpoint discrimination, wherein "1st Amendment activities" are only those engaged in by people who have congressmen helping them move fences.
If I'm the attorney for the Klan, I'm in district court right now asking for a declaratory judgment that the above sign means they can hold their scheduled rally (which involves actual expression of their own) on Saturday.
Wrong amendmentJack Balkin says the government shutdown violates the Second Amendment, because people cannot bring their guns to national parks. A Pennsylvania Maryland chapter of the KKK begs to differ--the shutdown violates the First Amendment.
Monday, September 30, 2013
What just happened at the Naval Academy?
I have been following the military prosecution of several Naval Academy midshipmen for sexual assault, partly because news stories seem to reflect a yawning gulf between this case and our general understanding of the federal rape shield statute (which I just taught last week). I turned to my colleague Eric Carpenter, who writes on sexual assault in the military and had a long career in the Army JAG Corp.
The military just concluded a hearing at the Naval Academy into whether three midshipmen committed criminal sexual offenses against a female midshipman. According to the government, the woman attended a party and became drunk to the point of blackout and possibly passed out. Later, she heard rumors and saw social-media that led her to believe that these three men has sexually assaulted her while she was too drunk to be capable of consenting. The defense claims she was capable and did consent.
While the facts as reported by the media are disturbing, lawyers who read reports of the hearing should find something else alarming – the female midshipman was questioned by three defense counsel for over twenty hours, and the questioning went into areas that would often be off-limits due to rape shield rules. Reports are that she was cross-examined on whether she wore a bra or underwear, “felt like a ho” afterward, and how wide she opened her mouth during oral sex.
What’s going on here? What was that hearing and do rape shield rules apply to it? Why is a sexual assault victim testifying and subject to cross-examination in the first place?
What happened was something unique to the military – a hearing called an “Article 32.” This article of the Uniform Code of Military Justice (UCMJ) requires that before charges can go to a general court-martial (the rough equivalent of a felony-level court), an officer must investigate the truth of those charges (reasonable grounds that the accused committee the offense, or roughly the same thing as probable cause) and make a recommendation to the convening authority (usually a two-star general) on how she should act on the charges.
Your first reaction to that might be, “That hearing sounds like a grand jury proceeding.” My answer would be, “Yes, but mostly no.”
An accused at an Article 32 has rights that a defendant at a grand jury doesn’t. The accused can be present; has a right to a military defense counsel; can cross-examine witnesses; and has full opportunity to present evidence to rebut the charges or to seek a lower disposition.
There is no jury – just an investigating officer, and that officer usually has no legal training (she gets her legal advice from a neutral judge advocate). In the most serious or high-profile cases, like capital cases, judge advocates and sometimes military judges serve as the investigating officer. In the Naval Academy case, the media reports that a military judge served as the investigating officer.
Unlike a grand jury’s finding, the investigating officer’s conclusions and recommendations are not binding: the convening authority can still make her own decision about the case.
Evidentiary rules apply. Not the full-blown Military Rules of Evidence (which are very similar to the federal rules), but rules nonetheless. Generally, if a military witness is within 100 miles, she needs to show up, and even if the witness cannot show up in person, she usually testifies over the phone. You can’t simply turn in the victim’s sworn statement. In the Naval Academy case, that is why the victim had to testify.
Contrary to what some of the news reports imply, the rape shield rule applies. The military’s rape shield rule is essentially the same as the federal rule, and the President made this rule apply to these hearings with Rule for Court-Martial 405(i). In the Naval Academy case, I would assume that the parties argued about what the defense was allowed to ask in cross examination, and I assume the investigating officer (in this case, a lawyer) found an exception—but that may be a faulty assumption.
If the investigating officer decided that this evidence fit one of the written exceptions to the rape shield rule, that conclusion may be suspect. Generally, evidence of past sexual behavior or sexual disposition is inadmissible in inadmissible except to show that someone other than the accused was the source of physical evidence; to prove current consent with the accused if the past sexual behavior was with that accused; or the exclusion would violate the accused’s constitutional rights. The attorney for one of the accused asked her the questions about oral sex because “This is an act that cannot be performed while someone is passed out.” According to reports, the lawyer further argued that “her client could not have had oral sex performed without the woman’s consent.” Most people would disagree with that. The victim had a prior sexual relationship with one accused, but his attorney asked her about what she was or was not wearing and whether she felt like a ho on this occasion. The rule is limited to evidence of past experiences between the two. The defense counsel could have argued that this evidence was constitutionally required because the accused were mistaken as to whether she consented. But from the news reports, it appears that their defense is that was capable of and did in fact consent, not that she didn’t consent and they misread the situation.
Again, I was not at the hearing and don’t know how the investigating officer analyzed the facts. If he was right, the cross examination she faced at this hearing may have been allowed at trial. A very real issue is that he may have been wrong, and if he was wrong, there is no remedy for his mistake. With few exceptions, none of the testimony at an Article 32 is admissible at the later trial, and even if the government closed down all of the exceptions, the victim has already gone through the experience.
So it appears that Article 32 is ripe for criticism. To understand why Article 32 is the way it is and to properly frame criticism of it, we need to understand its history and original function.
As Oliver Wendell Holmes said, “The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains.” That is what happened here.
Service members don’t have a constitutional right to a grand jury, and what has developed was not because the military was trying to replicate one. Rather, the original purpose of the Article 32 was to conduct an investigation when it was very likely the only investigation that happened prior to trial. That function has now been subsumed by other features of the modern court-martial system but the investigative features of Article 32 still remain.
Prior to 1917, most charges were not investigated prior to going to trial. A commander would send charges to a court-martial, which would very often be held within a day. The accused had very few rights. There were no defense lawyers or judges or professional law enforcement investigators or appellate courts. This was quick trial before a board of officers. If you have seen the movies Breaker Morant or Paths of Glory, you will have a sense of how courts-martial worked back then.
The few cases that were investigated (because an officer demanded it) were sent to Courts of Inquiry. These courts were used to investigate a wide range of issues (the conduct of generals in combat, or to resolve allegations against character). These boards were used to resolve disputes and the procedures that developed for them reflected that purpose: the service member was present, the Court could compel witnesses, and the service member could cross-examine them.
Starting in 1917, in response to criticism that commanders had too much power and could push meritless cases through the system, commanders were required to conduct an investigation prior to sending the case to court-martial. The investigation would ensure that probable cause existed and would recommend an appropriate level of discipline. With this new requirement, commanders looked around for something familiar to model for this task and found the Courts of Inquiry.
Additional rights followed. In 1949, the accused gained the right to counsel. In 1951, Congress passed Article 32 as part of the new UCMJ, adding the right for the accused to make a statement and present evidence. In 1968, Congress required that the accused’s counsel be a real lawyer.
At the time, the rules were necessary because they provided a measure of due process that a service member did not find in the rest of the court-martial process. Since 1951, however, the court-martial process has steadily “civilianized,” with statutory requirements for independent military judges and legally qualified counsel who operate under the nation’s most liberal discovery laws (and so can marshal evidence for trial). The military’s law enforcement also became a professional, fully-functioning investigative community, complete with independent forensic laboratories.
The reasons to have an Article 32 investigation no longer exist, but the rule remains. That, I think, means it is time for change. Otherwise, we risk what we just saw.
Returning to the Naval Academy case, probably nothing new was learned at this Article 32 that could not have been learned by otherwise investigating the case, interviewing the witnesses, and conducting discovery under the military’s liberal rules. But while pursuing this now obsolete investigative function, we managed to take a service member through 20 hours of invasive testimony – which she may have to do again at trial. Twenty hours is more than enough. Forty hours is senseless.
We could have come to a probable cause determination without having this type of hearing. In a recent Op-Ed, Gene Fidell argued that it is time to get rid of this “trial before a trial” and instead have “a bare bones preliminary hearing” to determine probable cause.
A more measured response would be to modify the Article 32 so that it serves the functions that we want it to serve. We no longer need a formal investigation. Get rid of the investigative features – no more calling live witnesses, no more presentation of a defense case. This also takes care of the rape shield issue, because the defense is the party that presents that evidence.
We do need a probable cause hearing, and we can use the hearing as a discovery tool at no additional cost by allowing the accused and counsel to be present and to examine all materials presented. Make the probable cause determination binding on the convening authority (to protect the accused), but to do that, we need to make the Article 32 look more like a grand jury. Have a panel rather than one officer; have a judge advocate serve as a presiding officer. This won’t be a bare-bones hearing – knowing that the panel might kill the case should provide incentive enough to the government to produce a significant amount of information.
So what is next? Most of the current debate between Senators Gillibrand and Levin turns on who should make the disposition decision in a court-martial – the commander or the staff judge advocate. The Article 32 problem is on the radar, though. The 2013 National Defense Authorization Act mandated that the Secretary of Defense establish a panel (called the Response System Panel) to work on many of the difficult issues related to the military’s sexual assault problem. One of the mandates is to “[r]eview and assess those instances in which prior sexual conduct of the alleged victim was considered in a proceeding under [Article 32] and any instances in which prior sexual conduct was determined to be inadmissible.”
This is a good opportunity to decide what the modern functions of Article 32 should be and to revise it to promote those functions and only those functions. And I expect the Naval Academy case will be front in center in that debate.
(With thanks to Major Mike Kenna for shaping my perspective).
Sunday, September 29, 2013
How else do you enforce rules?
Last week, the NCAA reduced some of the sanctions imposed on the Penn State football program for the sexual abuse committed by a former assistant coach. Geoffrey Rapp (Toledo) describes this as "punisher's remorse"--the NCAA "realized the victims are the current players. It’s not really putting any hurt on the people that we think are really responsible."
I disagree that only the current players are being hurt. Penn State University as an institution was being punished. And if Penn State cannot be punished, then the entire scheme of NCAA regulations is unenforceable (and humor me for the moment and assume NCAA regs are worth enforcing). Any long-lasting institution survives its individual members; old members are replaced by new members, but the institution is understood to survive uninterrupted. And the institution bears responsibility for the conduct of its members--past, present, and future. The players and coaches who break rules are always gone by the time enforcement comes down. If that punishment is wrongful because current (rather than rule-breaking) players are in the institution at the time of enforcement, then punishment of the institution always becomes wrongful. Even in a case of lack of institutional control (as Penn State arguably was), the institution could always argue that its failure was to control previous players, but that shouldn't be taken out on current players. But then the university gets off scott-free and has no incentive to police its future members, because it always can argue against punishment falling on its current players.
Taken to its conclusion, Geoff's argument applies to any institution and institutional punishments. Germany should not be made to provide reparations or other compensation to Holocaust victims because the punishment falls on the current German government and citizens; ditto for arguments with respect to slavery. International law (which I rarely cite or discuss) recognizes the concept of successor governments. Why not for universities in the field of NCAA enforcement?
All that said, I agree with Geoff that this is an example of "punisher's remorse", a term I wish I had used in a radio interview I did last week. But the remorse is over punishing Penn State--the NCAA does not want one of its flagship institutions under such a harsh punishment.
Wednesday, September 25, 2013
Subject matter ties
On the first day of Civil Rights, I discuss Reconstruction activity, including the Emancipation Proclamation. In honor of that, I wore a tie with the text of the Emancipation Proclamation, a fact I mentioned to the students. On the second day, students asked about the meaning of that tie; I chose it at random, which seemed to disappoint them. One even tried to find a tie that could represent action under color of law; he actually found one containing a police badge.
So my goal since then has been to match my tie to the topic of the day. Sometimes this is easy, as when I wore a tie with the U.S. Constitution when we covered "rights, privileges, or immunities secured," or one with cars when we covered Burton v. Wilmington Parking Authority. Others have been a stretch, such as the one with elephants for legislative immunity (explanation: The Republicans are in the majority in the House right now). We will see how this goes for the rest of the semester.
And if anyone has a relevant tie he would like to donate to the cause, I promise to return it in good condition.
Monday, September 23, 2013
JOTWELL: Vladeck on Reagan on National Security CasesThe latest essay on JOTWELL's Courts Law is by our own Steve Vladeck, reviewing Robert Timorthy Reagan's National Security Case Studies, published by the Federal Judicial Center. Steve uses this compendium to show that Article III courts are capable of handling cases touching on national security, obviating the need for special national security courts.
The post-hoc First Amendment
At some point in the future, I hope to write an article on the problems with enforcing First Amendment liberties through § 1983. One problem (not unique to free speech claims) is qualified immunity. Case in point is this recent Fourth Circuit decision involving sheriff's deputies in North Carolina allegedly fired for supporting the opposing sheriff candidate.
The case has drawn praise for recognizing that clicking "Like" on Facebook constitutes protected speech. And this certainly is a good thing from a court of appeals. Of course, the district court decision on this point reflected such a lack of understanding of how people can express themselves (quite apart from how technology works) that this was almost too easy. But lost in the celebration of a court getting technology right (for once) is that the deputies largely lost. The divided court held that the sheriff was entitled to qualified immunity from damages for the firings. The judges wranged over the scope and meaning of a particular divided en banc decision from a few years earlier; for the the majority, their wrangling shows precisely why the right was not clearly established, on the old "if three federal judges can't agree on the state of the law, then how can we expect a layperson to understand?" rationale. So it all ends up looking like a giant advisory opinion. Especially since this looks like a case in which it was entirely unnecessary to reach the merits--an obvious dispute about the meaning of circuit precedent made it obvious this was not clearly established. So why bother with the merits?
Interestingly, the plaintiffs' claims for reinstatement survive; that is prospective/equitable relief, to which qualified immunity does not apply and to which for Ex Parte Young does. This raises an interesting question--what if the plaintiffs sought front pay in lieu of reinstatement? Lower courts have all held that this is not available, because it is monetary relief paid for out of the state treasury. But this seems like it would fall within the Eleventh Amendment's prospective compliance exception, which provides that there is no sovereign-immunity bar to the state paying (out of the treasury) the ordinary costs of complying with prospective relief. If the plaintiffs prevail, the state has to pay them the same amount of money either way--either for actually working or for the work they would have done were reinstatement a viable option. And the latter will be paid out for less time. It seems incoherent to label identical payments in identical amounts for identical purposes differently.
Saturday, September 21, 2013
Defining public law
What is public law, as distinct from private law? Has anyone come up (or can anyone offer) a good defintiion of the distinction, where the line is, and falls in which category? A student asked a question the other day, which rested on the premise that the Constitution (and constitutional claims against the government) was public law and everything else was private law (the issue was a plaintiff bringing claims under both § 1983 and Title IX or Title VII). But that doesn't reflect convention, where we typically speak of statutory anti-discrimination law (Title VII, Title IX, et al.) as public law, even when it involves claims against private entities.
So where is the line and why?One possibility is that anti-discrimination are like the Constitution, in that Congress was attempting to enforce the Fourteenth Amendment. But that doesn't work because these statutes were actually enacted pursuant to either the Commerce or Spending powers, not § 5. It reflects the values of the Fourteenth Amendment, but it is not really enforcing that provision. Plus, a lot of other statutory areas (labor law comes to mind), though not touching on the Fourteenth Amendment or discrimination at all, are labeled public.
Another is to include all constitutional and statutory issues as public. But a lot of stuff that often gets called private (say, corporations, business formation, and business deals) involves statutes and statutory issues. Even contracts (which a Roman Law expert might call the quintessential private law issue) is somewhat displaced by the UCC in many areas.
Friday, September 20, 2013
Words for ParentsFrom Freakonomics. The story is a couple of years old, but good listening for the weekend (for those moments when you're not schlepping your kids everywhere).
Monday, September 16, 2013
Faculty Hiring: FIU College of LawFlorida International University College of Law seeks applicants for entry-level and lateral appointments for tenure-track faculty positions beginning in the 2014-15 academic year. Particular areas of curricular interest include Torts and Environmental Law.
Lateral candidates should show a demonstrated record of scholarly achievement and teaching excellence. Entry-level candidates should show significant potential for future development as scholars and a commitment to excellence in teaching.
About FIU College of Law: As a vital part of Miami's only public research university, FIU College of Law is a dynamic urban law school with approximately 502 students. The College of Law currently has 42 full-time faculty members. The FIU College of Law is housed in a state-of-the-art building in the heart of the main university campus. Over the past three years, the FIU on-campus community has been enriched through the addition of a new medical school and the construction of the Frost Art Museum. For more information on the College of Law, please visit our website at law.fiu.edu
The FIU community and the College of Law are strongly committed to the pursuit of excellence and the goal of ensuring opportunities within the legal profession for individuals who represent different groups as defined by race, ethnicity, gender, sexual orientation, socioeconomic background, age, disability, national origin, and religion.
Application Procedure: Interested applicants should send a cover letter and c.v. to Professor Hannibal Travis, Chair, Faculty Appointments Committee, FIU College of Law, Modesto Maidique Campus, RDB Hall, Miami, FL 33199. Applicants also may submit materials electronically to email@example.com.
Applicants also must register and create an on-line Profile through the university’s website at jobsearch.fiu.edu.; reference Position No. 70004897.
Florida International University encourages applications from candidates who would continue to enhance the diversity of our College of Law faculty and university community and does not discriminate on the basis of race, color, national origin, ancestry, sex, disability, religion, age, sexual orientation or veteran status in its education and employment programs or activities. FIU is also a member of the State University System and an Equal Opportunity, Equal Access, Affirmative Action Employer.
Friday, September 13, 2013
Two completely random itemsFirst, a question for our Jewish readers: Where will you be tomorrow evening after the shofar has blown--at "break fast" or at "break the fast"? And when did the latter become a thing?
Second, in Gore Vidal's memoir, he tells that when Tennessee Williams was confronted with the fact that he claimed to be younger than the age on his birth certificate, Williams responded "“I do not choose to count as a part of my life the three years I spent selling shoes." Which was, of course, done as an employee of the International Shoe Company of St. Louis, MO. I wonder if Williams only got to carry around the left shoe in every pair.
Wednesday, September 11, 2013
"Better Call Saul"I am sure it will get so much law wrong, but I am totally in the bag for Better Call Saul, a planned prequal to Breaking Bad that focuses on the show's hilariously sleazy criminal-defense/PI attorney.
Tuesday, September 10, 2013
Understanding Civil Rights Litigation
I am happy to announce publication of Understanding Civil Rights Litigation with LexisNexis.
My main motivation for writing the book was to provide a supplement for my Civil Rights course, which I teach through open-source materials and, like Robin, believed the students can use some bit of help putting together the raw cases and information. The book also works as an assigned or recommended course supplement for any Civil Rights or Fed Courts casebook, or as a student study guide. And it includes relevant constitutional and statutory provisions and problem sets for use in classroom discussions.
Now available from Lexis, through your favorite Lexis rep, and in supermarket checkout lines near you.
Sunday, September 08, 2013
(Repost): CFP: Micro-Symposium: Stanley Fish and the Meaning of Academic Freedom
Call for Papers: Micro-Symposium: Stanley Fish and the Meaning of Academic Freedom (Reposted)
FIU Law Review and the FIU College of Law invite contributions for a Micro-Symposium, Stanley Fish and the Meaning of Academic Freedom, to be published in FIU Law Review in 2014. Micro-symposium commentaries will accompany the papers and proceedings of a live roundtable discussion on academic freedom and Stanley Fish’s forthcoming book, Versions of Academic Freedom: From Professionalism to Revolution. Roundtable participants include Dean Robert Post (Yale), Frederick Schauer (Virginia), Fish, and several others. The program will be held at FIU College of Law on Friday, January 24, 2014.
Micro-symposium commentaries can be a maximum of 600 words. Commentaries must be received by Tuesday, October 1, 2013 at firstname.lastname@example.org.In the book, Fish argues
The academy is the place where knowledge is advanced, where the truth about matters physical, conceptual and social is sought. That’s the job, and that’s also the aspirational norm—the advancement of knowledge and the search for truth. The values of advancing knowledge and discovering truth are not extrinsic to academic activity; they constitute it. . . . These goods and values are also self-justifying in the sense that no higher, supervening, authority undergirds them; they undergird and direct the job and serve as a regulative ideal in relation to which current ways of doing things can be assessed and perhaps reformed. (The “it’s just a job” is not positivism; it does not reify what is on the books.)
It follows from this specification of the academy’s internal goods that the job can be properly done only if it is undistorted by the interests of outside constituencies, that is, of constituencies that have something other than the search for truth in mind. There are thus limits both on the influences academics can acknowledge and the concerns they can take into account when doing their work. . . . It must be conducted (to return to the l915 Declaration) in “in a scholar’s spirit”, that is with a view to determining what is in fact the case and not with a view to affirming a favored or convenient conclusion. If that is the spirit that animates your academic work, you should be left free to do it, although, with respect to other parts of the job (conforming to departmental protocols, showing up in class, teaching to the syllabus), you are constrained.
Commentaries may discuss any and all legal, ethical, moral, social, practical, personal, and theoretical aspects of academic freedom, Stanley Fish's new book, or his extensive body of work on academic freedom or any other topic. Interested commenters will be provided manuscripts of Fish's book, on request.
Expressions of interest, requests for the manuscript, and other inquiries can be directed to Ben Crego, Law Review Editor-in-Chief, at email@example.com or to Prof. Ediberto Roman at firstname.lastname@example.org.