Friday, August 29, 2014
Video Chutzpah, defined
Stories have begun circulating about an incident in Minneapolis in January, in which officers seemed to escalate a situation in which a man was sitting in a restricted area near a public space, then used a TASER when he refused to give his name and attempted to walk away. Charges (trespass and "obstruction of the legal process") were dropped in July. Yesterday, the chief of the St. Paul Police defended the officers, beginning with: "As is often the case, the video does not show the totality of the circumstances."
He is right, of course. But that is certainly not going to be his line or the officers' line when they inevitably move for summary judgment in the inevitable § 1983 action.
Another SCOTUS counter-factual: Justice Posner?
Many sites are talking about Wednesday's Seventh Circuit arguments in challenges to same-sex marriage bans in Indiana and Wisconsin. Judge Posner was in rare form in shredding the states' arguments in support of the bans, particularly in the Wisconsin case (several of the links have either the full audio or audio clips). As usual, there is the debate about whether this is Posner being a bully (Josh Blackman says yes) or Posner being Posner and attacking bad legal arguments and bad lawyering (in fairness to Josh's viewpoint, Posner does not give the lawyers room to answer in real detail).
But the argument highlights Posner's uniqueness as a conservative-but-iconoclastic judge. And sparks this question: What if Posner had been the nominee for the late Reagan/Bush I openings--Scalia, Kennedy (after Bork and Ginsburg both went down), or Souter (replacing Brennan, a fitting seat, since Posner famously clerked for Brennan)? Was he ever truly in the running for any of those seats? Would his academic writings have done him in (thus, making the term "Posnered")? Alternatively, assuming Posner has become more iconoclastic lover the years, would he have gone the other direction had he reached the pinnacle (as some say Scalia has gone)?
More importantly, would things be different? And, if so, how? Replace Scalia or Kennedy with Posner and Carhart (upholding Nebraska's ban on D&X abortions) Gonzales v. Carhart (upholding the federal ban on D&X abortions) comes out the other way. In spring/summer 1998, while still living in Chicago, I attended arguments in the challenge to Wisconsin's D&X ban; it sounded an awful lot lot like Wednesday's arguments. Not sure what Posner would have done on Bush v. Gore had he actually been there on the ground and not writing about it ex post. On the other hand, replace the speech-protective Kennedy with Posner and the First Amendment might look somewhat different.
Wednesday, August 27, 2014
Two from Dorf on policing and body cameras
Two posts from Mike Dorf--one supporting use of body cams and one considering the effect and future of broken-windows policing, which necessarily increases the number of police-citizen law-enforcement encounters, which necessarily means increasing recording of those encounters. Mike share my view that cameras are a good idea but not a panacea.
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.
Friday, August 22, 2014
Talking about free speech or talking about racial justice?
The focus of public and media conversation on Ferguson has shfted. We are talking less about the triggering events--the possible murder/possible unconstitutionally excessive police shooting of Michael Brown,(*) the underlying racial atmosphere that made that shooting more likely, and systematic constitutional problems within the Ferguson Police Department--than about the First Amendment problems with how police have responded (and continue to respond) to peaceful protests in a public forum.(**) This has become a miniature of the Civil Rights Movement. When protesters hit the streets in the South and Bull Connor, et al., responded as they did, the legal conversation, at least in the courts, turned to the First Amendment and away from the underlying racial problems and racist policies that the protesters were attacking and seeking to change. The cases that reached SCOTUS arising from the events on the ground largely dealt with First Amendment rights to protest, sit in, crticize, organize, and advocate against the racist and discriminatory policies and practices in the South, without real discussion or resolution about their legality, constitutionality, or morality. Certainly these all were important victories for the movement and its members (as well as for society as a whole), but they can feel sterile when the underlying injustices are forgotten or pushed below the surface. The Court itself never directly tackled the underlying constitutional validity of most pieces of Jim Crow (primarily because Congress did it for them).
(*) Although the competence and commitment of the county prosecutor to vigorously prosecute a police officer has moved to the front of the line for the moment. Since the grand jury might take two months, this will go away soon, unless the governor preemptively appoints a special prosecutor.
(**) While somewhat overstated, Dahlia Lithwick makes some good points comparing police responses to these protests (which, unfortunately, likely will not be successfully litigated after the fact) with what the Supreme Court said in McCullen v. Coakley was constitutionally required, particularly about potential distinctions between protest and counseling.
On one hand, this is appropriate for the First Amendment. The whole point of free speech is that constitutional protection for protest, advocacy, and criticism of government should not turn on the subject of that protest, advocacy, or criticism or its underlying morality. It does not matter whether protesters are complaining about racism, police misconduct, the minimum wage, or United States's tolerance of homosexuality bringing about God's wrath--what matters is that their peaceful protest enjoys First Amendment protection. On the other hand, as Harry Kalven and Burt Neuborne both have argued, the concerns about ending discrimination silently informed the free speech jurisprudence of the early '60s--without necessarily saying so, the Court protected free speech precisely so the underlying system of racism and segregation could be attacked and, hopefully, changed.
But that leaves a nice question whether we (courts, the law, and the public) miss something by not talking more explicitly about the underlying issues leading to the protests and the First Amendment violations. And, more cynically, whether the national outrage over Ferguson that has latched onto the First Amendment concerns (because everyone feels and cares about "their" First Amendment rights personally) frees us to ignore the underlying racial injustice (which is personally disconnected from most people).
Thursday, August 21, 2014
Police body cameras are often seen as a panacea in police-public relations and in controlling police misconduct. Judge Scheindlin endorsed them during closing arguments in the New York stop-and-frisk trial. As I have written before, I support the idea, although I doubt it is an ultimate answer, since video is not as certain as many proponents make it out to be.
But events in Ferguson show a different reason that body cameras are not alone sufficient--we need to see all the actors in the exchange; it is not enough to see who the officer is looking at and perhaps hear what the officer is saying, we also need to see the officer. I was reminded of this by looking at the video after the jump. All of which may be to say that body cams are great, but they do not obviate a rigorous First Amendment right of citizens to video their interactions with police, wherever and however they occur. The effect would not be the same if we only heard the officer's voice, without seeing him pointing a rifle at unarmed civilians who do not appear to be committing any crime. (Reports indicate the officer has been removed from duty).
On a different video-related point: Will Baude tries to find good arguments against the right to record, but finds all lacking. I agree, but would add an additional spin: Whatever their attitudes towards public recording (Will says police unions generally oppose it), police generally seem supportive of bodycams, dashcams, and other recording technology that they use and control. But that means recording is not the real concern, police control over it is. But obviously the government cannot be the sole actor with the power to record public events.
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.
Tuesday, August 19, 2014
Reforming the Ferguson Police Department
This Slate piece discusses the potential use of 42 U.S.C. § 14141 against the Ferguson Police Department in the wake of recent events. That section authorizes DOJ to investigate and bring civil litigation against a "pattern or practice" by law enforcement organizations that violates the Constitution; DOJ can seek an injunction or consent decree or, more likely, enter into a Memorandum of Agreement about reforms to be made by the agency.
Section 14141 was seen as a big step when it was enacted as part of the Violent Crime Control and Law Enforcement Act of 1993, a way to make-up for the perceived under-use of criminal civil rights prosecutions under § 242. Actual practice has been disappointing to many commentators, as Rachel Harmon (U VA) and Kami Chavis Simmons (Wake Forest) have discussed. In particular, they note that the focus of investigations has been on smaller cities, such as Pittsburgh, rather than large cities such as New York and Chicago (although the Slate article discusses an agreement--not sure if it was a consent decree or MOA--with Los Angeles that has been found effective). Certainly, this is the type of high-profile situation that would overcome federal inertia and prompt a response.
One problem is whether there can be a finding of a "pattern or practice" in Ferguson. Certainly the past week has demonstrated some potential misconduct and abuse of power by individual officers. And the department as a whole has handled the entire fallout badly (for example, of 78 people arrested last night, 75 were for failing to disperse when ordered, which brings us back to the problem of how police do (and are allowed) to respond to lawful assembly and protest whenever they also can point to the slightest risk of violence). And the militarized response certainly reflects department policies and practices, although typical of what many police departments are now doing. But there is a nice question whether awful response in a single situation, even one as high-profile as this, is sufficient to warrant federal intervention or whether it necessarily indicates broader problems.
The best hope may be that DOJ goes to Ferguson in a cooperative stance, looking not to pursue litigation, but to convince the department to accept an MOA, particularly in light of the awful optics of the past week. When my current dean headed the Civil Rights Division, he favored this approach, believing it created buy-in from the local government without an adversarial posture or the need to establish pattern or practice.
Summary judgment and the infield fly rule
No, not together, sadly.
The final version of An Empirical Analysis of the Infield Fly Rule is now on-line at the Journal of Legal Metrics/Journal of Law (the book will be out in a month or so). The article presents the results of a four-year study of all infield fly calls in Major League Baseball. I am extending the study for the 2014 and 2015 seasons, as well as trying to apply some advanced baseball metrics to measure the effect of the rule (or, more precisely, what the effect might be if we did not have the rule and infielders were free to intentionally not catch the ball in search of cost-benefit advantages).
And, completely unrelatedly, Mixed Signals on Summary Judgment is now posted to SSRN, and hopefully coming to a law review near you. Here is the abstract:
This essay examines three cases from the Supreme Court’s October Term 2013 that addressed the standards for summary judgment. In one, the Court affirmed summary judgment against a civil rights plaintiff; in two others the Court rejected the grant of summary judgment against civil rights plaintiffs, arguably for the first time in quite awhile, but in procedurally confounding ways. The essay unpacks the substance and procedure of all three decisions, and considers their likely effect and what signals they send to lower courts and litigants about the proper approach to summary judgment.
Monday, August 18, 2014
To the man who taught me the infield fly rule
I originally planned to post this last month, but obvious events made it feel inappropriate.
My father, Lawrence Wasserman, passed away July 10, at age 85. A friend once told me that losing a parent is when you really become an adult; I kind of believe that. Dan, being Dan, was one of the first people to reach out and extend condolences from afar--in fact, it was one of our last text exchanges. To tie this back to an earlier post, I just ended shloshim, the 30-day period of mourning in the Jewish faith, so this seemed a good time to write.My dad was a huge baseball fan. He somehow became a Yankees fan in 1930s/1940s Brooklyn, an interesting choice that probably subjected him to some abuse (although his consolation was that the Yankees always won and the Dodgers always lost). He passed that love of the game down to me (even if I traded the Yankees for the Cubs as an adult--don't ask). I still cry at the end of Field of Dreams ("Dad, you wanna have a catch?"), because, who doesn't?
More importantly, though he certainly could not have imagined it at the time, he set me down the path of my two-plus-year (and counting) scholarly obsession with the Infield Fly Rule.
Crazy as it sounds, one of my vivid snapshot memories of childhood is that moment when I first learned about this crazy rule. I was about eight years old and my dad and I were watching a Yankee game on TV. One of the announcers said "Infield Fly Rule is in effect" (standard baseball broadcaster lingo on IFR plays, for reasons I have not yet been able to uncover); I asked what that meant and he explained. And he obviously did it in very clear terms, because I immediately understood both the rule and its logic and his explanation stuck with me going forward. If, as I have argued, to understand the infield fly rule is to understand baseball, then my dad understood baseball. And he made sure I did, as well.
One of the last times I visited him in New Jersey in the spring, I brought along two of my infield fly articles. He flipped through them while we were sitting together talking and he read them after I left. And I am quite certain it is the only thing I have written as a prawf that he read or understood. So that alone made this whole project worthwhile.
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, August 13, 2014
Even football coaches are banning laptops
Tuesday, August 12, 2014
Leiter on FAR forms
Brian Leiter offers six thoughts/pieces of advice on completing FAR forms. I agree with all six of his points, especially these two: 1) In listing courses, "be who you are, and not someone else," and do not try to game the system, and 2) Do not use the Comments, especially for something vacuous, like "I'm committed to being an excellent classroom teacher."
Jurisdictional elements and merits
Here is a Ninth Circuit decision properly analyzing jurisdictionality in a Lanham Act case. The court held that the requirement that a trademark be "use[d] in commerce" is an element of the trademark claim and does not go to the court's jurisdiction over the claim. Relying on Arbaugh, the court held that the substantive provisions of the Lanham Act do not contain jurisdictional language and the actual jurisdictional grants for trademark cases (§ 1331 and 15 U.S.C. § 1121(a), along with 28 U.S.C. § 1338, which the court did not mention) do not use this language. Thus, "use in commerce" goes to the merits, not jurisdiction. This is spot-on analysis and the court made relatively light work of the arguments.
The court did not discuss it in these terms, but this case demonstrates the confusion created by so-called jurisdictional elements. The "use in commerce" element hooks the Lanham Act into Congress' Commerce power--Congress lacks the power (the jurisdiction) under that clause to regulate trademarks not used in interstate commerce. The "jurisdiction" here is Congress' prescriptive or legislative jurisdiction, its authority to prescribe legal rules to regulate real-world conduct. An internal limitation on congressional legislative power--like an external limitation such as the First Amendment ministerial exemption--constitutionally limits the scope of the legal rule and thus the rights granted and duties imposed under that rule.
But jurisdictional elements write that prescriptive-jurisdictional limitation into the statute, and the statutory claim, itself. Rather than absence of "use in commerce" rendering the statute unconstitutional as applied (as with a minister's ADA claim against a church), the failure of the jurisdictional element means the statute by its terms does not "reach" the conduct at issue. A Lanham Act plaintiff must prove "use in commerce" just as it must prove "reproduction, counterfeit, copy, or colorable imitation of a registered mark;" both go to whether there is an existing legal rule imposing liability on these defendants on the real-world facts at issue and thus whether the plaintiff's infringement claim has merit. In that regard, a jurisdictional element functions the same as an ordinary element of a statute. The jurisdictional element is there for a different reason than an ordinary element, but its role is the same--it controls the "reach" of the statute, which is uniformly understood as a merits concern. And it has nothing to do with whether the court has adjudicative jurisdiction to hear and resolve a claim because it is "arising under" that statute.
Monday, August 11, 2014
Informal survey time (I raised this on some listservs last week and wanted to try a different audience):
If you were to make a short list of five (5) of the most important free speech opinions (majority, concurrence, or dissent), what would they be? I want to drop a footnote in the intro of an article, so I welcome input. I am looking for both rhetorical and practical power, as well as rhetorical and practical effect in the development of modern, speech-protective free speech jurisprudence. Note that since I am focusing on the development of the broad free speech protection we have in the U.S., I am primarily looking for opinions that sided with the speech claimant.
My tentative list (in no particular order): 1) Holmes dissent in Abrams; 2) Brandeis concurrence in Whitney; 3) Barnette; 4) Sullivan; 5) Cohen v. California (I originally had Texas v. Johnson or Reno v. ACLU here, but people convinced me that Cohen is more significant).
Have at it.
Wednesday, August 06, 2014
SEALS v. AALS
At the Law Deans on Legal Education Blog, Richard Gershon (Mississippi) compares SEALS and AALS as conferences, identifying the pros and cons of each. Speaking as someone who regularly attends SEALS and has not attended AALS in seven years (mostly because of timing), I agree with pretty much everything he says. I do think his criticism about lost networking opportunities at SEALS because of its length are overstated--many people stay the full week (on their own dime, obviously) and many stay at least four days.
SEALS always has had the air of a boondoggle--professors and their kids playing at a beach resort for a week while purporting to be at an academic conference. But most folks balance time with family and time in the conference. There are some great panels and discussions every year and many of them are as well-attended as AALS panels I've seen (there were about 50 people at a panel on Bickel last year). In reality, people do not go to these conferences for the panels, anyway. So the real difference between SEALS and AALS may be this: When people skip SEALS panels on Amelia Island in August, they do it to play golf or jump in the pool; when they skip AALS panels in New Orleans in January, they do it to get drinks and good food. Make of that what you will.
Tuesday, August 05, 2014
Submission angsting thread, Fall 2014
It has been a semi-annual Prawfs tradition to provide a space for questions, answers, comments, complaints, and general angst about the article submission windows. (Dan spoke, and Matt still speaks, reverently of this as the time of Redyip's semi-annual return).
Either way, the "Fall" submission window is open and angsting may commence.
So, if you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.
Guest prawfs, unite
An email and Kelly's comment on my prior post raised two administrative issues.
First, Dan undoubtedly extended guest invitations to people for the coming months (not sure how far in advance he went, but I imagine he had people lined up for this month and next, at the very least). So if you had already agreed to guest-blog at anytime in the remainder of 2014, please email Paul Horwitz and me; we will happily continue with Dan's schedule.
Second, if you are a past guest-prawf and would like to do so again--or even simply write a single post in Dan's honor-- please email Paul and me.
Return to blogging
We remain saddened and stunned by Dan’s tragic death, although buoyed by the overwhelming outpouring of love, respect, and appreciation for everything he achieved in his career and life, including establishing PrawfsBlawg. With that in mind, we wanted to let everyone know that we plan to move forward with PrawfsBlawg and to continue the conversation and community that Dan created. Beginning this week, the remaining permanent bloggers, along with new permanent blogger Sarah Lawsky and the July holdover guests, will resume posting. Thanks to all of you for your support.
As we move forward, we also want to think about the future of PrawfsBlawg and how to both carry forward and build on Dan’s legacy. So we welcome your thoughts, comments, and ideas on how best to continue this community and this dialogue, even in the face of our loss. I should add that you can leave remarks in the comments or email any of the perma bloggers.
Friday, August 01, 2014
The first MarkelFest!, co-sponsored by PrawfsBlawg and CoOp, on Saturday, August 2, from 8:30-? in the Seaglass Lounge (located directly off the lobby of the Omni). Beer and other drinks are $ 1 off and lounge food is on the menu. Come continue Dan's tradition of blog-sponsored conference gatherings.
Florida State College of Law will sponsor a formal memorial for Dan on Monday August 4, from 6:15-7:15 in Magnolia D. Approximately 50 people already have expressed interest in attending and/or speaking; Wayne Logan (FSU) will be reaching out with more details. If you have not responded and are interested in attending, please fill out this form.
Monday, July 28, 2014
Bay Area Memorial
Jonathan Simon, Malcolm Feeley, and Ashley Rubin have organized a small Bay Area gathering for Dan's friends at 4:30 p.m., this Wednesday, July 30, at Berkeley Law. You can email Jonathan (firstname.lastname@example.org) or Malcolm (email@example.com) for more details.
First MarkelFest! at SEALS
The first MarkelFest! will be at SEALS this Saturday, August 2, from 8:30-?, in Seaglass Lounge at the Omni Amelia Island Plantation. Drinks and lounge food are available. Continuing Dan's tradition of blog-sponsored conference get-togethers and now under a new moniker, this is co-sponsored by PrawfsBlawg and Concurring Opinions. Seaglass is located directly off the lobby of the hotel.
Come remember Dan with your best tales and stories and continue his beloved tradition of blog-sponsored gatherings. Hope to see everyone there.
FSU Memoral at SEALS
Florida State will sponsor a formal memorial program on Monday August 4, from 6:15-7:15 in Magnolia D. Approximately 50 people already have expressed interest in attending and/or speaking; Wayne Logan (FSU) will be reaching out with more details. If you have not responded and are interested in attending, please fill out this form.
Tuesday, July 22, 2014
Memorials for Dan Markel (Updated)
So much outpouring of affection for our friend.
1) At Brooklyn Law School as we speak (it began around 5:30). It is on the 22d floor of Feil Hall, 205 State Street (building # 3 on this map). Sorry for the late notice; get there if you can.
2) Correction: The informal gathering at Harvard Hillel happened on Wednesday (yesterday). aplogies for the confusion. You can email Jill Goldenziel at "Jill underscore Goldenziel at hks dot harvard dot edu" for further information. Apparently, HLS Dean Martha Minow and the director of Hillel both indicated a desire to do something more formal in the future. Stay tuned.
3) Funeral and shiva in Toronto on Thursday. You can email any of the perma-Prawfs for more details and information on these events and on memorial tributes.
4) Florida State will sponsor a memorial at the upcoming SEALS Conference at Amelia Island on Monday August 4 from 6:15-7:15, right after a discussion group in which Dan was to participate. Precise location will be announced soon. If you plan to attend, please fill out this form.
5) Also at SEALS, will be the first-ever MarkelFest! on Saturday evening, August 2 (Time and Location T/B/D). As you know, blog-sponsored happy hours have been a regular feature at the major prawf conferences, thanks to Dan's energy and organizational skills. Steve Vladeck suggested that all such gatherings should henceforth be known as MarkelFest!(s) and we agreed.
6) Law and Society's Collaborative Research Network # 27 (Punishment and Social Control), will host a panel in Dan's memory on retribution at the 2015 Law & Society Association Annual Meeting in Seattle, May 28-31, 2015. Regular Guestprawf Hadar Aviram is co-chairing the group. Anyone whose work corresponds with Dan's or retributivism and is interested in participating on that panel can send an abstract to Hadar.
We will post information about other local gatherings and memorial efforts as we receive them.
Saturday, July 19, 2014
Chokeholds and clearly established rights
This is a tragic story and has all the trappings of yet another racially polarized split involving police, city government, and the public. Plus, we have video, with all the confusion and false certainty that goes along with visual images of police-public encounters gone bad. The NYPD, the City, and the DA all are investigating, and I would not be surprised if DOJ jumped into the mix at some point (likely depending on what the City and DA do).
I want to skip ahead to several interesting issues that likely will arise in the inevitable § 1983 action:
1) What will the court do with the video on summary judgment? As I wrote in a draft paper for a SEALS discussion group, the Court last term in Plumhoff v. Rickard, just as in Scott v. Harris, was all too willing to interpret the video for itself and identify its single meaning (in favor of the defendant officer) as a basis for granting summary judgment. Will courts be similarly bold with potentially more damning video or will they be less willing to find a single message and leave it all to the jury? On that note, check out the lede of The Times article describing the officer "holding him in what appears, in a video, to be a chokehold." (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see. But it is veery different than what everyone (press, government officials, and courts) has done in, for example, describing video of high-speed chases.
2) According to The Times, chokeholds are expressly prohibited by NYPD regulations. How will that affect the qualified immunity analysis? In Hope v. Pelzer and Wilson v. Layne, the Court looked at department regulations and whether they endorsed or prohibited some conduct as indications of whether theright at issue is clearly established. While not conclusive, administrative regs can support a doctrinal consensus or demonstrate the absence of that consensus. Absent case law holding that chokeholds always violate the Fourth Amendment or violate the Fourth Amendment when in furtherance of arresting non-violent offenders, what will the court do with this officer violating clear departments regulations in dealing with a non-violent offender (they were trying to arrest the victim for selling loose cigarettes on the street).
3) What happens when the plaintiff tries to make his Monell claim against the city? On one hand, the express prohibition on chokeholds in department regs would seem to weigh against any argument that the city had a policy of allowing its officers to utilize such holds, since the very opposite is true--he really is the "bad apple" expressly disobeying how we told him to behave. On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. (Note that many of those complaints never go anywhere or are unsubstantiated--the point is that many citizens are talking about officers using chokeholds).
Thursday, July 17, 2014
Marriage equality in Florida
Judge Luis Garcia of the 16th Judicial Circuit of Florida (the higher-level trial court covering the Keys) has invalidated Florida's prohibition on same-sex marriage, finding that marriage is a fundamental right for Due Process purposes and that there is no rational basis for prohibiting same-sex marriage. The ruling does not take effect until next Tuesday, July 22. This is one of three actions in Florida challenging the anti-equality constitutional amendment passed in 2008--the other two are in state court in Miami-Dade County and in federal court in the Northern District of Florida.
Several quick thoughts:
1) Judge Garcia is up for non-partisan election this fall; let's see what happens in that race.
2) I genuinely expected Florida to be one of the stragglers that would get marriage equality only when SCOTUS finally spoke after 40 other states had eliminated SSM bans.
3) At this point, we need to stop reporting on trial-court decisions, since they are all going in one direction, but their coverage is so limited. It really will matter when federal courts of appeals and state supreme courts begin speaking out.
4) Is it even remotely possible that these lower courts are all getting it wrong? Is there any chance that appeals courts will split or go in different directions or that SCOTUS will ignore the singular position of these lower courts and hold that SSM bans do not violate the Constitution?
Tuesday, July 15, 2014
Weird Al teaches English
And Slate evaluates the rules he espouses in the song. Someone said this could be the new generation's "Conjunction Junction."
JOTWELL: Levy on Bray on declaratory judgments
The new essay for JOTWELL's Courts Law comes from Marin Levy (Duke), reviewing Samuel Bray's The Myth of the Mild Declaratory Judgment (Duke L.J.). Sam's article is terrific and both it and the review essay are worth a read.
Sunday, July 13, 2014
The risk to catalyzed fans
As everyone in the Free World now knows, LeBron James chose not to re-sign with the Miami Heat and is on his way back to Cleveland to play for the Cavs, the team he abandoned (to angry rants and burned jerseys) four years ago. So it appears the efforts of two Miami sports-radio hosts to use charitable fan contributions to help keep James did not work.
This demonstrates the risk in Dan, Mike McCann, and my idea about fan action committees--it might not work and if it might not work, fans might not want to participate (I have not been able to find out how much money was donated to Boys & Girls Club or how many fans contributed). One way around that is to utilize a trigger, as many kickstarter campaigns do--the contribution remains only a pledge until and unless the player signs; this one did not have a trigger, and I imagine most charities will not allow triggers when the program is set up directly through the organization (as this one was). Alternatively, organizers hope fans still contribute despite the risk. Perhaps fans continue to donate as a way of engaging in the purely expressive act of showing their support for team and player; fans spend money on many things to support their team--why not charity? Alternatively, fans may be willing to participate because contributing to the charity is a social good (note the non-political nature of the chosen charity) and worth the donation, even if not achieving the alternative goal of convincing James to stay.
Tuesday, July 08, 2014
Determining the effect of video
Just coincidentally, three stories are simultaneously in the news involving potential police misconduct caught on video. The recordings are after the jump (these are partial, although fuller recordings of some are available):
1) A California Highway Patrol officer (Erik Estrada never did this) takes a woman to the ground on the side of the highway.and repeatedly punches her, including in the head. The video was taken by a passing driver. The matter is under investigation.
2) A South Carolina state trooper arrests Sam Montgomery, an NFL player, for driving more than 25 m.p.h. over the speed limit. The officer threatens to TASE Montgomery for not cooperating. This is dashcam video. The trooper was suspended for failing to treat Montgomery with the expected courtesy.
3) A Lafayette, Indiana police officer shoves a man in a wheelchair with two hands, causing the chair to tip over and the man to go sprawling on the sidewalk. The shove occurred after the man rode over the officer's foot while departing an encounter with the officers, who had been called to the scene when the man allegedly told officials at a school that he had a gun. The department sought to fire the officer, but a civil service board reduced the punishment to a 30-day suspension without pay, demotion, and probation. This is dashcam video.
These three stories tell us a few things about video and its role in parsing events.
First, it should call into doubt the argument that allowing citizens free-range to video police in action will change officer behavior, making them over-cautious because of how things will "appear" on the video and the snap judgments people might reach. But video in two of these cases came from the officers themselves and, even knowing they were being filmed, they still engaged in some, at least, questionable behavior. So if officers are threatening and shoving people knowing they are being filmed by their own cars, there is no reason to believe that thei behavior will change by the possibility of being filmed or recorded by someone else. And that is before any argument that we want the chilling effect that the threat of video might have on officers.
Second, these videos show why the Supreme Court was wrong in its treatment of video on summary judgment in Scott v. Harris and this past term in Plumhoff v. Rickard. The videos do not "speak for themselves," as demonstrated by the wide range of responses to them, responses that seemingly confirm the Kahan thesis about how personal characteristics and political preferences affect perception of video. There likely is more that each video does not show or fully contextualize. If we would not grant summary judgment in favor of the arrestees in any of these cases (and I doubt we would), then we should not grant it in favor of the police in other video cases.
Third, I have to admit to feeling some sympathy for the trooper in # 2. Reading press accounts, it sounded like the officer simply started out acting in an overbearing and overofficious manner. But in watching the video, Montgomery is not following the officer's instructions to put his hands behind his back with his palms up in the air, keep his feet apart, and face away from the officer. The reason appears to be not resistance but confusion about what the officer wanted and how to do several things at once (try putting your hands behind your back with palms up--it's not a natural position). So while the officer perhaps jumpted to the TASER pretty quickly, it sometimes is hard to distinguish confusion from disobedience. Of course, given my political and social views, my viewing the video in that way flies in the face of everything Kahan, et al. would have predicted.
And now the videos. Draw your own inferences as if you are a juror, think about inferences if you are a judge on a motion for summary judgment.
Thursday, July 03, 2014
Federalism, RFRA, and Free Exercise in the next Hobby Lobby
Someone please tell me if I am wrong on the following points in the potential next round of Hobby Lobby-type litigation.
A major concern after Hobby Lobby is that similar closely held corporations will raise similar objections to legal obligations to hire (and not create hostile environments for) women, racial minorities, pregnant women, religious non-believers and other-believers, LGBTQ people, etc., as well as obligations to serve and do business with those groups.
Here is the thing. Protections for LGBTQ employees and customers are, at this point, not federal; they exist only in some states and/or some municipalities. But RFRA and strict scrutiny does not apply to state or local laws under City of Boerne. So any such claims to avoid those state or local obligations must be brought under the Free Exercise Clause and are likely to fail under Smith, since laws prohibiting discrimination in employment or public accommodations appear to be neutral laws of general applicability. The only way around that is if the company can tie some other constitutional liberty in (such as Free Speech in the wedding photographer case). So, ironically, LGBTQ people may be better off in this realm than women, since the corporation can rely only on the First Amendment, not a statutory strict scrutiny, to avoid its non-discrimination obligations.
Pushing it a bit further: Every state has a prohibition on race, gender, etc., discrimination that parallels federal law. So even if a hypothetical company could claim an opt-out from Title VII's ban on sex discrimination in hiring based on RFRA, that company still must comply with the state ban on sex discrimination in hiring, which, if challenged, again would only receive Smith-level Free Exercise scrutiny and the challenge likely will fail.
On the other hand, many states have their own RFRAs, which would require strict scrutiny of state anti-discrimination laws and might require analysis similar to Hobby Lobby. But that case at least would be litigated in state court, with the state's highest court having the last word; that court would not be bound by Hobby Lobby, may be less solicitous of accommodation demands (depending on the state), and might adopt the Ginsburg view on the question. Such a case would not be reviewable to SCOTUS, because a decision applying state RFRC would be an independent and adequate state ground for the decision. So the future of Hobby Lobby may produce some interesting federalism angles.
Monday, June 30, 2014
Catalyzing Miami Heat fans
LeBron James has opted out of the final year of his contract with the Miami Heat and become a free agent (although he is generally expected to re-sign with the Heat for less money, allowing the team to sign better surrounding players). Just to be sure, the hosts of a show at a Miami sports radio station have announced LeBron-a-Thon, expressing support for James by raising money for Boys & Girls Clubs of Broward County. One of the hosts kicked things off with a $ 1000 donation.
This is an example of what we describe in the paper as a charitable FAC. James is a big supporter of Boys & Girls Club--"The Decision," the ESPN media circus in which James announced his intention to sign with the Heat in 2010, was designed to raise money for that organization. This also shows how easy it is to set something up, although we obviously will have to wait to see if it succeeds in 1) raising significant amounts of money or 2) helping keep James in Miami (causation will be impossible to show, of course). This is slightly different than what we discuss, as there is no trigger--money is donated to the charity regardless of what James does. But this highlights the purely expressive nature of such FAC contributions--fans are saying, in essence, "we appreciate you and so want you as part of our team that we will contribute to a worthy cause that is dear to you." Moreover, the monetary benefit to this reputable charity from fan donations likely represents a net public good, as charity presumptively does, regardless of what James chooses to do.
Now we wait to see what teams beside the Heat emerge as suitors for James and whether fans of those teams launch a similar campaign.
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."
Wednesday, June 25, 2014
Standing and defendants
In affirming the district court and invalidating Utah's ban on marriage equality, the Tenth Circuit considered standing sua sponte. But, as with the D.C. Circuit's decision on the filibuster, the standing issue was not about the plaintiffs (who want to get married and are prevented from doing so, thus obviously have standing), but about the defendants--whether the governor and attorney general were proper defendants in this Ex Parte Young action. (This was necessary as a preliminary to whether the governor and A/G could appeal, since the county clerk of Salt Lake County, a named defendant who is directly responsible for issuing marriage licenses to four sets of plaintiffs, declined to appeal).
Under Ex Parte Young, the named defendant must be the executive officer responsible for enforcing the challenged law. And the plaintiffs should lose if they sue an officer who is not responsible for enforcing that law. But the Tenth Circuit did not explain why this should be a component of the plaintiffs' standing, as opposed to the merits of the constitutional claim.
In fact, the unique position of the governor and A/G in this case illustrates why treating this as standing makes no sense. Under Utah law, the governor and A/G are not directly responsible for issuing marriage licenses (that rests with county clerks) or for doing things that require recognition or non-recognition of out-of-state marriages (not giving spousal benefits, not allowing joint tax returns, not giving marital deductions, etc.). But they are responsible for advising, supervising, and compellling the clerks and other state officials who refuse in recognizing same-sex marriages, which made them responsible defendants subject to suit. In essence, the court accepted "supervisory" Ex Parte Young liability (which makes sense, since executives delegate all the time).
But we regularly deal with supervisory liability in § 1983 damages actions, without ever invoking standing. For example, imagine Officer Y uses excessive force against A; A sues Supervisor X for failing to supervise Y, but it turns out that X is not Y's supervisor under state law. Without question, A loses. But the court would not say that A lacks standing; instead, that claim fails on the merits. Or compare this Eighth Circuit decision holding that an officer violated a person's rights by enforcing a flag-burning ordinance. The plaintiff also brought a Monell claim against the city for failing to properly train the officer, which the court rejected because, under Missouri law, cities are not responsible for training police officers. So the city could not be liable and the Monell claim failed on the merits. Again, no mention of standing.
So why if "you got the wrong guy" is a merits matter in these actions for retroactive relief, it makes no sense whatsoever for it to become a standing matter in Ex Parte Young actions for prospective relief.
Tuesday, June 24, 2014
The end of umpires?
That is the proposal from John McEnroe to make tennis more interesting--have the players call their own lines, as a way to introduce greater intensity into the game. Players would be given challenges and McEnroe argues that the threat of fan anger would keep players in line. It has been said that back in the day, if the umpire clearly missed a call, the player who benefitted from the blown call would tank the next point as an equalizer (I am not sure if that is true). On surfaces where the ball leaves a mark (notably clay), a player will often point to the spot of the ball to show the opponent before an argument begins.
Continuing my previous suggestion that sports rule as enforced by umpires are analogous to rules of procedure--the framework rules regulating the process in which the players control the outcome through performance of skills: This is the sports equivalent of arbitration; the parties have privatized the dispute-resolution process into something they create and control themselves, perhaps less formally, rather than using formalized "outside" processes and arbiters that they work with but exert less control over. Maybe that means McEnroe's proposal will work about as well as arbitration.
On a different note on McEnroe's suggestion: This video is pretty funny. Latvian Ernests Gulbis is asked about McEnroe's proposal to get rid of umpires; Gulbis misunderstands and thinks the reporter asked about getting rid of vampires and begins to discuss the benefit of getting ride of vampires (in the metaphorical sense of hangers-on).
Monday, June 23, 2014
Goldstein on journalism and SCOTUSBlog's press credential
JOTWELL: Thornburg on Hadfield and Ryan and information disclosure
The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Gillian K. Hadfield & Dan Ryan, Democracy, Courts, and the Information Order, 54 J. European Sociology 67 (2013), exploring the demoratizing role of civil litigation, particularly discovery and the public value of information disclosure.
Saturday, June 21, 2014
Lance Armstrong: Another Civ Pro exam
Judge Wilkins on the District of the District of Columbia addressed a host of motions to dismiss in the False Claims Act and common law fraud lawsuit against Lance Armstrong and others over false statements and claims relating to the Postal Service sponsorship of Armstrong and his team; the case began as a qui tam action by rider Floyd Landis and the United States intervened. For some reason, when sports disputes hit the courts, they carry procedure and jurisdiction problems with them.
If you are looking for a single source for a lot of possible exam issues, this 81-page decision has a little bit of everything: 1) Presentation of outside documents and facts on a motion to dismiss and the possibility of converting a 12(b)(6) to summary judgment; 2) when an action commences under Rule 3 and the validity of Rule 3 in the face of different state law; 3) handling lawsuits against no-longer existing corporate entities; 4) Relation back of a new party's complaint (the U.S., when it intervened) where the relevant statute of limitations provides for relation back; 5) propriety of the manner of service of process; 6) propriety of using 12(b)(6) to assert a statute of limitations defense; and 7) how to plead fraud under FRCP 9(b).
Friday, June 20, 2014
When dissent rhetoric comes true
In covering summary judgment in civ pro, I teach an Eighth Circuit case called Sitzes v. City of West Memphis. A police officer drove, perhaps without lights or sirens, 80-90 mph through a residential neighborhood towards what may or may not have been a genuine emergency and hit a car, killing the driver and injuring the passenger. A divided court held that intent-to-harm was the applicable standard and granted summary judgment in favor of the officer. It is a great teaching case because both the majority and dissent parse the evidence in the record in identifying what may or may not be genuine disputes of material fact and join issue with what facts are material in light of the applicable legal standard. It is also one of the few cases in Civ Pro that genuinely seem to get students riled up.
At one point, the dissenter (a district judge sitting by designation) went into parade-of-horribles mode. The majority held that there was no intent to injure since the officer genuinely subjectively believed he was rushing towards an emergency. That being so, the dissent argued, "an officer could avoid Section 1983 liability for driving 100 miles per hour through a children’s playground during recess time, by stating that he subjectively believed there was an emergency and the path through the playground was the most direct to get to the claimed emergency." The majority's only responses were: 1) that's not this case and 2) "we think it very likely that an officer who intentionally drove through a playground . . . could be held liable even under the intent-to-harm standard, regardless of the officer’s avowed belief, at least absent some compelling exigency not described in the hypotheticals."
True, it is a golf course not a playground and the video seems to suggest it was not crowded. And it was a pursuit, apparently begun when officers attempted to serve outstanding drug warrants, perhaps the "compelling exigency" the majority demanded; it was not the officers using the golf course as a short-cut to reach some other location. And, fortunately, the officers did not hit anyone, so we need not address the § 1983 or due process questions.
On the other hand, why chase him onto the course, with all the attendant risks? There was a police helicopter in the chase, so the guy was not going anywhere.
Thursday, June 19, 2014
Standing is easier when you're Younger
An open issue in the standing discussion in SBA List is the extent to which the threat of an administrative proceeding, a la a complaint about false electoral speech before the Ohio Elections Commission, constitutes sufficient harm to allow standing for a preenforcement challenge to the underlying statute. The Court emphasized that adminstrative proceedings impose burdens on time, cost, and distraction to possible speakers and that a Commission finding that some speech was false may be viewed by the public as a state-imposed sanction--all genuine injuries-in-fact. The Court cited Ohio Civil Rights Commission v. Dayton Christian Schools for the proposition that "If a reasonable threat of prosecution creates a ripe controversy, we fail to see how the actual filing of the administrative action threatening sanctions in this case does not." But the Court ultimately punted on the question because Commission proceedings might be followed by criminal prosecution, presenting an additional element of harm in this case.
But the Court's hesitancy or ambiguity on this point is unwarranted and potentially troubling. There should be no question that genuinely threatened administrative enforcement proceedings should be sufficient for preenforcement standing.
Dayton was a Younger case, which held that federal courts must abstain in deference to ongoing coercive enforcement proceedings before a state civil rights commission. The portion of Dayton quoted in SBA List was from Footnote 1, in which the Court quickly disposed of any ripeness concerns, citing two other Younger decisions, both of which involved threatened criminal prosecutions, Steffel v. Thompson and Doran v. Salem Inn.
The key is recognizing that connection between standing and Younger. Younger requires abstention in deference to three types of pending state proceedings, including civil enforcement proceedings, especially those in which the state is party to the proceeding and in which the state initiates the formal process following some other preliminary investigation. The Sprint Court expressly recognized the administrative proceedings in Dayton as of the type to which a federal court must abstain. And the Court has never suggested that administrative proceedings must be supported by criminal prosecution to trigger abstention; a purely civil administrative proceeding is enough. Younger does not require abstention where those civil-enforcement proceedings are threatened but not pending. The issue then is one of standing or ripeness (or both)--whether there is a sufficiently credible threat (how sufficient is the point of Marty's post) that any such proceeding will be initiated. This creates a window for individuals to get into federal court--in the time between when the threat of initiation becomes real and when proceedings actually have been initiated.
So now we can frame the standing question for preenforcement challenges in those terms. If there is a credible threat of initiation of any proceeding and it is a proceeding from which Younger would require federal abstention once that proceeding is initiated, then the plaintiff has standing (or the action is ripe, whatever) for a preenforcement challenge. This now preserves that window for getting to federal court. Otherwise, if a genuine threat of a purely administrative proceeding is not sufficient to trigger standing, then a plaintiff is forever blocked from that federal forum--he cannot bring a preenforcement challenge and Younger kicks-in once the government initiates the administrative proceeding. In SBA List, it seems obvious that a federal court would abstain once Commission proceedings were pending against a speaker--that is what the district court initially held in the case (before other things happened procedurally). Therefore, the real threat of those Commission proceedings alone--whether or not supported by criminal prosecution--should be enough to establish standing.
Wednesday, June 18, 2014
More on SBA List and standing
Marty Lederman offers some thoughts at SCOTUSBlog on the future of standing after SBA List. He focuses on something I glossed over a bit: The seeming inconsistency between Clapper, which required that an injury be "certainly impending," and prior case law (referred to in passing in a footnote in Clapper) which only required a "substantial risk" of harm. In SBA List, Justice Thomas presents them as alternative standards. Marty parses the decision, suggesting the Court applied a uniquely forgiving standard there, given that there was little chance (not even substantial and certainly not "certainly impending") of the state bringing a criminal prosecution on top of the administrative proceedings that were more likely. He also argues that the Court has the flexibility to make the requirements looser or stricter, depending on future contexts (considering, e,g., whether free speech is involved or whether election issues are involved or something else).
That "something else" might be the difference between challenges to regulations of the public's primary conduct as opposed to regulations of law-enforcement techniques and practices.
Monday, June 16, 2014
Standing, ripeness, and SBA List
Not surprisingly, SCOTUS in Susan B. Anthony List v. Driehaus reversed the Sixth Circuit and held that the First Amendment challenge to Ohio's prohibition on knowingly or recklessly false campaign speech was justiciable; Justice Thomas wrote for a unanimous Court in a challenge brought by a group that wanted to run ads suggesting that supporting the Affordable Care Act means supporting taxpayer funded abortions. A few things of note (in addition to Richard's comments).
Injury-in-fact is established for purposes of a preenforcement challenge when the plaintiff alleges an intention to engage in some conduct "arguably affected with a constitutional interest" that is prohibited by the challenged statute where there is a credible threat of prosecution. That threat be shown by past prosecutions against similar conduct by the plaintiff or others similarly situated and by the absence of any disavowal of intent to prosecute. Threat may also include bringing administrative proceedings (such as those at issue here), at least when combined with a threat or risk of criminal enforcement (the Court left open whether administrative proceedings alone is enough of an injury to create standing).Although this is a free speech case and the Court relied on many free speech cases (especially Steffel v. Thompson and Babbitt v. United Farm Workers), the Court spoke about all preenforcement challenges generally. It did not suggest, as some lower courts have said, that there is a lesser standard or reduced burden for free speech cases, but that more is required as to other constitutional rights. This arguably could change lower-court analysis of challenges to, for example, some abortion regulations.
At the same time, the Court did not demand the certainty of injury (i.e., state enforcement of the law) that the Court appeared to require just last year in Clapper v. Amnesty International. The Court did cite Clapper's statement that "allegation of future injury may suffice if the threatened injury is 'certainly impending,' or there is a 'substantial risk’ that the harm will occur," but it focused more on substantial risk and did not demand a similar level of certainty. Although the Court does not discuss it, I think the difference lends support to my idea that the Court silently treats standing differently when the challenged law regulates primary conduct of individuals (i.e., whether they can engage in some political expression) as opposed to laws regulating what law enforcement officers can do in investigating oro pursuing criminal activity (i.e., whether they can surveil calls or use chokeholds).
Note that the Sixth Circuit had also analyzed the imminence of the threat of prosecution, concluding it was not sufficiently imminent. But it held that the lack of imminence meant the case was not ripe, while SCOTUS addressed the same question in standing terms. Justice Thomas noted Medimmune's footnote 8 that both standing and ripeness "boil down to the same question," and insisted on speaking in standing terms because that is what prior cases have done.
But the Court did not explain what is the proper realm for these doctrines and how litigants and courts are to know. To the extent standing and ripeness remain distinct aspects of justiciability, how are we to know which to argue? Lea Brilmayer long ago argued that standing arose when the plaintiff wanted to challenge a no-lawn-sign ordinance because his neighbor wants to post the sign, while ripeness arose when the plaintiff did not want to post the sign until next year. But standing cases (certainly since Lujan and including SBA) have focused on plaintiff's present intent and immediate plans to engage in some conduct (such as going to see the Nile crocodile), which sounds like ripeness as Brilmayer has defined it. Or we might say that the plainiff's immediate intent to engage in some conduct goes to standing, while the likelihood that the government will act to enforce goes to ripeness. But SBA discussed both of those as distinct elements that together went to standing.
The Sixth Circuit did consider two additional "prudential" elements for ripeness beyond imminent threat of prosecution--whether the factual record is sufficiently developed and the hardship to the plaintiffs if judicial relief is denied at this stage. SCOTUS cited its decision in Lexmark to suggest that such prudential factors no longer are part of any justiciability analysis, including ripeness (the focus of Richard's post). And even if they were, the Court disposed of both in a short paragraph, hinting that, at least where there is a legitimate threat of prosecution (creating standing), a preenforcement challenge to the constitutionality of a law always will be ripe.
So what role, independent of standing, if any, does ripeness continue to play in constitutional litigation?
Saturday, June 14, 2014
CFP Deadline: Seventh Junior Faculty Fed Courts Workshop
The Economics of the Offside Rule
The recently begun World Cup allows us to think about soccer (or football, for those of you reading outside the United States) as a source of laws and rules, as opposed to our usual focus on baseball. Well, for all the complaints about the technicality and incomprehensibility of the Infield Fly Rule, it has absolutely nothing on Offside (Law 11 of Football's 17 Laws). I could not explain the rule in the space of this post, although I think I now sort-of understand it thanks to the videos embedded after the jump.
Offside (note the singular: people get persnickety if you add an 's' at the end) is soccer's counterpart to the infield fly rule as being what marks you as someone who really knows and understands the game--you know baseball if you can explain the infield fly, you know soccer if you can explain Offside. But is Offside a limiting rule as I have defined that term--is it soccer's logical and policy counterpart to the infield fly? I am not sure.
Offside is an anti-"cherry-picking" rule, preventing teams from having one or more players hang around the goal and doing nothing but kicking long balls up the field pitch. It also prevents the defense from having to keep multiple defenders back by the goal to guard the cherry-picker. The result is to push the action up the field and keep more players involved on both ends. The underlying logic is aesthetics and the look of the game. The rulemakers did not want what one soccer web site called a "ping-pong match" of long kicks back and forth, as opposed to short passes and runs up and through the middle of the pitch. It also avoids what many would regard as "cheap" goals.
But Offside does not seem to be about extreme cost-benefit disparties, as is the IFR. I suppose it would give the offense an advantage--the cherry-picker could get the ball in position to go one-on-one with the goalkeeper, a big advantage to the offense. Importantly, however, the opponent is not helpless. Absent Law 11, the defense simply counters the cherry-picker by moving a defender back to his area. The opponent also might be able to prevent the long pass to the cherry-picker or otherwise prevent the team from taking advantage of the loitering player. More importantly, the cherry-picker is not intentionally failing to perform the expected athletic skills. The infield fly rule aims at a play in which the infielder might otherwise intentionally not catch the ball (the thing he is expected to do). In being in offside position, a soccer player is trying to succeed as expected--he is trying to score a goal by getting into the best position for himself. (Note: I know little about soccer, so please correct me if I miss anything here).
Lastly, the complexity of the rule likely reflects an attempt to calibrate it and the game. As written, the rule allows for long balls, so long as the player was onside when the pass is made. And it only penalizes if the offside player is involved in the play (itself subject to a detailed definition). Again, check out the videos below if you want to learn.
In Esquire's Father's Day edition, there is an article about fathers and sports, with a sidebar giving the approximate ages that kids typically can do certain sports-related things (e.g., sustain a game of catch--8). The last entry: "Understand the Infield Fly Rule--34." I'm 46--what does that say about Offside?
Now for the videos:
Watch this one if you like PowerPoint:
Watch this one if you like British accents, bad graphics, and cheesy music.
Tuesday, June 10, 2014
Falling in line on the FTAIA
The Second Circuit last week became the latest circuit (joining the Third and Seventh) to overrule circuit precedent and hold that the Foreign Trade Antitrust Improvements Act (FTAIA), which limits the extraterritorial reach of the Sherman Act, is a nonjurisdictional merits limitation. This court focused more on Arbaugh and the absence of "jurisdictional language," rather than Morrison's absolute "extraterritoriality-is-always-merits" approach. But, citing the Seventh Circuit, the court recognizes the merits nature of the FTAIA. The court makes one nice move with the FTAIA's legislative history and its repeated references to jurisdiction. References to the "subject matter jurisdiction of United States antitrust law" are not unambiguously about the adjudicative authority of the federal courts, but instead are better understood as inartfully referring to the prescriptive scope of federal law, which goes to the merits of any claim under that law.
The Second Circuit also recognized that Congress was as confused as the courts about jurisdictionality and as likely as the courts to use terms loosely and inaccurately, at least prior to Arbaugh in 2006. This suggests that even if Congress did include "jurisdictional language" in a pre-2006 statute, courts still must look carefully at whether it really meant adjudicative jurisdiction or whether it meant jurisdiction in some other sense (notably in referring to its own legislative authority). Morrison's absolute approach helps in this reading of statutory text and history.
Monday, June 09, 2014
Chief Justice Goldberg? A SCOTUS counterfactual
I am reading Lee Levine's and Stephen Wermiel's The Progeny, which traces the history of New York Times v. Sullivan and subsequent cases and Justice Brennan's efforts to control development of that area of First Amendment law. Arthur Goldberg makes a brief cameo in Sullivan and Garrison v. Louisiana as a third voice on the Court (along with Justices Black and Douglas) pushing for absolute First Amendment protection for all criticism of government and public officials, before resigning (at LBJ's urging) in summer 1965 to become UN Ambassador and to allow LBJ to appoint Abe Fortas to the Court.
So a counterfactual (and maybe this has been written about): What if Arthur Goldberg had not resigned from the Court?
Short term, The Progeny shows that the early path of post-Sullivan defamation cases might have been different. Goldberg aligned t with Black and Douglas for the broadest First Amendment protection (beyond Brennan's actual malice), while Fortas went in the other direction, on one occasion all by himself. Certainly football coach Wally Butts does not keep his defamation judgment if Goldberg rather than Fortas is occupying what at the time was called "the Jewish seat."
What about longer term? Chief Justice Warren supposedly wanted Goldberg to succeed him as Chief. We probably do not get the insanity of the failed nomination of Fortas to be Chief. We definitely do not get Fortas' subsequent pressured resignation from the Court. Do we get a Democratic Chief in 1968 (Goldberg? Brennan? Someone else, and if so, who?), instead of Warren Burger two years later? Would Goldberg have been filibustered the way Fortas was? And if Goldberg becomes Chief, we get someone other than Harry Blackmun in that associate justice seat, another LBJ nomine in 1968 (likedly Homer Thornberry of the Fifth Circuit, who was nominated to Fortas's seat when Fortas was nominated as Chief). In either event, Goldberg lived until 1990; does he become a 20+-year Justice? (or was too otherwise-ambitious and distracted, believing he could be Governor of New York or President).
If nothinge else, does Flood v. Kuhn come out differently? Goldberg likely would have been a third for Flood on the Court, which might have moved other people. More importantly, Goldberg no longer can represent Flood, so he no longer can deliver one of the worst arguments in the Court's history.
Friday, June 06, 2014
Pregnancy and information overload
A non-law (although sort of policy) post: Yesterday's Times published "The T.M.I. Pregnancy", on the drawbacks of the wealth of available pre-natal information. The author's daughter-in-law went through a tense pregnancy in which various tests suggested possible problems (including small size, low birthweight, and a short longbone). While obviously beneficial, the extra information that is now available makes the whole experience nerve-racking.
Nine years later, I can sympathize.
Like the author's children, we did the series of genetic tests targeted for Ashkenazi Jews (our O.B. called it the "Jewish Panel") and waited anxiously for the results. The first ultrasound detected an ecogenic focus, a calcium deposit on the developing heart and a soft possible indicator of Down Syndrome; more anxiety and a long weekend waiting for the results of other tests for Down (all were negative--and the focus ultimately disappeared, although not for awhile, so my wife still was slightly worried). Then the doctors were concerned about fetal size (my mother-in-law and sister-in-law both carried very small), which meant weekly ultrasounds for the final six weeks of the pregnancy. At the last ultrasound, 2 1/2 weeks before the due date, they became concerned about size and amniotic fluid and recommended immediate delivery (I made the mistake of reading the report as we drove back to the O.B.). While in the hospital and hooked to the fetal heart-rate monitor (the machine that goes ping), the fetal heart rate tumbled, prompting the doctor to recommend--and us quickly to accept (my precise words were "Get her out of there")--an immediate C-Section (the doctor insisted it was not emergent, but a non-emergency C-Section is like minor surgery--it is what happens to somone else). Our daughter was small but within range and just fine.
It's a bad combination, really--lots of scientific and medical information, but nothing you can know in the moment and nothing you can do if the information is negative, other than wait, hope, and pray.
Wednesday, June 04, 2014
Setting traps in a deposition
A while ago, I linked to a New York Times Verbatim video, in which actors recreate depositions, based on the transcripts. In this one, a lawyer gets increasingly agitated as he goes round and round with the deponent about the meaning of "photocopier." At the time, I missed this feature on the lawyer taking the deposition, David Marrburger, a partner at Cleveland's Baker-Hostetler. Marburger states that in reality he was not angry or agitated during the deposition; he actually enjoyed stringing along the deponent (the exchange goes on for 10 pages), who clearly had been prepped by his lawyer to obfuscate, in a way that was going to make him and the defendant look bad. Watching the reenactment, it was pretty obvious what the deponent was doing and pretty easy to guess why. While the video is funny, the background story provides a nice lesson both for lawyers defending depositions against doing this and for lawyers taking depositions about how to handle it.
Tuesday, June 03, 2014
Wow, there is a right that is clearly established
According to the Eighth Circuit, it is the right to destroy an American flag for expressive purposes. And an officer who does not know that is the plainly incompetent officer who does not warrant qualified immunity and should be liable for damages.
A police officer in Gape Girardeau, MO arrested Snider--pursuant to a warrant obtained from a county judge on an application from the county prosecutor--for violating the state's flag desecration law. According to the case, neither the officer nor the prosecutor (nor, we must assume, the judge) knew about Texas v. Johnson; the charges were dismissed and Snider was released when a reporter called the prosecutor and told him about the case. Snider then filed a § 1983 action, claiming the arrest violated the First and Fourteent Amendments.
The Eight Circuit agreed that the officer (who conceded that Snider's rights were violated) lacked qualified immunity. Johnson and United States v. Eichman established in 1989-1990 that someone could not be punished for using the American flag to express an opinion and a reasonably competent officer in 2009 (the time of Snider's arrest) would have known that. The officer was not saved by the judge issuing a warrant; while a warrant typically indicates the officer acted in an objectively reasonable manner in effecting an arrest, this case fell within the exception where no reasonably competent officer would have concluded that the warrant was valid, given the clearly established state of the law.
There is some other good § 1983 stuff in this case, including the unexplained intervention of the State of Missouri, attorney's fees (imposed in part on the State, even though it could not have been liable in the case), and the rejection of a failure-to-train claim against the city (one could argue that an officer who does not know something as basic as Johnson has not been constitutionally trained) because the State, not the local government, is responsible for training local police officers.
Monday, June 02, 2014
Please stop, Chief
From Bond v. United States:
"[T]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard." (in fairness, the kitchen cupboard language was in the Third Circuit's opinion). Earlier, Roberts posed a hypothetical about "[a]ny parent . . . when, exasperated by the children’s repeated failure to clean the goldfish tank, he considers poisoning the fish with a few drops of vinegar." (Seriously? Seems like extreme parenting).
I have wondered before whether Robert's penchant for these flourishes makes for good writing or whether it is incredibly distracting. I am still wondering.