Sunday, April 27, 2014
On animal rights
Sunday's New York Times Magazine reports on efforts by the Nonhuman Animal Rights Project and attorney Steven Wise to establish rights for certain breeds of autonomous animals (chimps, orcas, dolphins, etc.), using state habeas petitions in New York. It's an interesting read; Richard Epstein is interviewed for the competing position.
Saturday, April 26, 2014
The truth about justiciability
JUSTICE GINSBURG: Do you think this is a matter of standing or ripeness? The Sixth Circuit said ripeness.
MR. CARVIN: In all candor, Justice Ginsburg, I can't figure out the difference between standing and ripeness in this context. No question that we are being subject to something. I think the question is whether or not the threat is sufficiently immediate.
You have to admire the honesty. The Sixth Circuit, which analyzed this as a ripeness case (and held that the action was not ripe), similarly acknowledged that the ripeness prong of likelihood of harm overlap with the standing prong of real, immediate, non-speculative injury-in-fact. It always has been difficult to explain the distinction between standing and ripeness (mootness tends to more clearly be its own thing). And that has become worse over the past several years, as SCOTUS has ratched up the injury-in-fact requirement in its standing cases. In a pre-enforcement constitutional challenge, whether a plaintiff has suffered an injury for standing purposes necessarily includes whether the plaintiff faces a likely risk of immediate harm, which long had been the bailiwick of ripeness.
Perhaps the Court will take this as a chance to clarify, although I doubt it. It seems so obvious that the case is justiciable, and the justices all so obviously believe the Ohio law--which prohibits knowingly false statements made in support or opposition to a candidate for office--is unconstitutional. The Court is going to be racing to reverse and send the case back to give SBA its chance to argue the merits in federal court. I doubt the fine details of standing v. ripeness are going to be the central concern.
Update: Alert reader Sam Bray (UCLA) reminds me about footnote 8 in Medimune, Inc. v. Genetech, Inc., where the Court said that standing and ripeness "boil down to the same question."
Thursday, April 24, 2014
Web series: "Approach the Bench"
Approach the Bench is a new web series from Above Average, starring Bob Balaban as a judge holding a sidebar with the attorneys. The first episode involves discussion of whether actor Danny Aiello is one of the jurors. (Balaban is on a legal role--he recently played Melville Nimmer in a bad movie about the Supreme Court in 1971).
Wednesday, April 23, 2014
CFP: Seventh Junior Faculty Federal Courts Workshop
The University of Georgia School of Law will host the Seventh Annual Junior Faculty Federal Courts Workshop on October 10-11, 2014. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Confirmed senior scholars include, at this time, Janet Alexander (Stanford), A.J. Bellia (Notre Dame), Heather Elliott (Alabama), Evan Lee (UC-Hastings), Gillian Metzger (Columbia), Jim Pfander (Northwestern), Amanda Tyler (UC-Berkeley), and Steve Vladeck (American).
The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present. There is no registration fee.
The conference will begin with a dinner on Thursday, October 9, then panels on Friday, October 10 and Saturday, October 11. Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers. Georgia Law will provide all lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs.
Those wishing to present a paper must submit an abstract by June 20, 2014. Papers will be selected by a committee of past participants, and presenters will be notified by early July. Those planning to attend must register by August 29, 2014.
JOTWELL: Effron on Glover on happenstantial federalism
The latest essay for JOTWELL's Courts Law comes from Robin Effron (Brooklyn), reviewing J. Maria Glover's Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-Removable State Class Actions in Multi-District Litigation (Journal of Tort Law).
Wednesday, April 16, 2014
Extreme views in the classroom
The Chronicle of Higher Ed reports that Frazier Glenn Cross, Jr., the white supremacist suspected in the shootings of three people earlier this week, was invited two years ago to speak in a class on "New Religions" at Missouri State University. (H/T: My colleague Tom Baker). The professor issued a statement yesterday defending the choice, saying he wanted to educate his students on white supremacist views (and their dangers) and that the students would not believe the true nature of these views just by reading a textbook or hearing the professor lecture about them. According to the article, it went about as you would expect--Cross yelled at the students, used racial slurs, and praised violence, and apparently the students yelled back at him. It sounded like a productive exchange.
I do not think there is any question that it is appropriate to present Cross' views in a classroom setting. And the alternative proposed by the ADL in the story--inviting experts who have studied the subject firsthand--are not sufficient. If the point is to get students to engage with and understand these views, then hearing them characterized and filtered through an expert (no doubt, since this is the ADL, an expert who believes these views are harmful and should be suppressed) is not a substitute for engaging with the primary materials. One can question whether white supremacy is a new religion, but I will defer to the instructor on that. The broader point is there are situations in which it is appropriate to present, in unfiltered fashion, even the worst and most offensive political, religious, etc., ideas.
There is a nice question about inviting him to speak in the classroom, as opposed to having students read his writings or hear his speeches--there were more than enough available on the internet (maybe this is what the ADL rep meant in the story by "multimedia tools," although that is such an inanely empty phrase). And this issue is more pedagogical than political. Some of this is my general objection to the use of guest speakers in the classroom. But some is the question of whether having him address the students directly was necessary to the pedagogical goal. They can experience and understand these views first-hand without having to experience him first-hand. Having him shout at the students (and having them shout back) shows that he is crazy and not to be taken seriously, but it does not really show his ideas or thoughts or require them to wrestle and deconstruct them, which is supposed to be the goal. It is the difference between a cable tv shoutfest and an academic discussion.
And I wonder if the visceral responses about "endorsing" and "providing a platform" goes away if students were reading his writing rather than seeing him in-person.
Standing and the proper defendants
To absolutely no one's surprise, a panel of the D.C. Circuit rejected the challenge to the constitutionality of the Senate's filibuster rule (shout-out to Josh Chafetz and Michael Gerhardt for the citation). The district court had found none of the plaintiffs (Common Cause, some members of the House, and some people who would have benefitted from certain filibustered bills, notably the DISCLOSE Act and the DREAM Act) lacked standing--none had not suffered any cognizable injury in fact, they could not show the bills would have passed but for the filibuster, and no injunction could have accorded them relief. Fed Courts 101 (and still a course everyone should take).
The circuit court took a different path: The problem was that the plaintiffs had sued the wrong defendants. The proper defendants were the Senate and the Senators who made, retained, and voted according to the filibuster rule with respect to the bills at issue. But all Senators would enjoy absolute legislative immunity, so they could not be sued. Nor could a court impose the remedy the plaintiffs wanted--an injunction prohibiting the 60-vote requirement and compelling the Senate to adopt a simple-majority rule.
To get around that, the plaintiffs sued Vice President Biden (in his role as President of the Senate) and a bunch of non-Senator Senate officers (Sergeant-in-Arms, Parliamentarian, and Secretary) as the people responsible for "enforcing" or "executing" Senate rules. (Powell v. McCormack being the obvious precedent). But that did not work here, because the named defendants did not do anything that caused the alleged injury, since the injury was the Senators' use of the 60-vote requirement.
This analysis adds a new wrinkle to the causation prong of standing by making the identity of the defendant an element of that prong. It requires not only that the defendants' action caused the harm, but also that these defendants caused that harm. Plaintiffs must show a link between conduct and harm and that they got the "right guys" in their suit. And causation--and thus standing--is absent if either one is absent.
But doing it this way shows-again-why standing makes so little sense as a jurisdictional rather than merits rule. In any other context--including constitutional claims, even constitutional claims for injunctive relief (where standing always comes up)--it is a merits dismissal when the plaintiff sues the wrong defendant. Moreover, had the plaintiffs sued the Senators--thus solving the standing issue as viewed by the court of appeals--the legislative immunity defense would have produced a merits dismissal, not a jurisdictional dismissal.
At bottom, however, this is all about how plaintiffs structure their lawsuits--who sues, who they sue, what they sue for, what remedy they seek. It should have nothing to do with federal structural jurisdictional concerns.
Tuesday, April 15, 2014
What should every lawyer know?
It is schedule-selecting time again, particularly for 1Ls trying to map out the next two years. A colleague proposed a different way of thinking of this: Lawyers, as Tocqueville's American aristocracy, should have some core base of legal knowledge when they leave law school. Thus, there is some set of courses every law student should take--beyond classes targeting the areas in which a student wants to practice, bar-tested classes (although there is some overlap), and classes providing general skills and experiential practice. What is the law school canon? It must be a small portion of the 59 post-1L credits, thus leaving students room to 1) explore specific areas of interest and 2) do some skills/experiential stuff.
Accepting the underlying premise (and I understand that some people might not), what courses belong in that canon? If you were advising 1Ls on the doctrinal classes they should make sure to take before they graduate, regardless of anything else, what would they be? [Update: Just to clarify: This is for upper-level courses; I take as a given that the current 1L curriculum is unchanged] [Further Update and Clarification: I am not talking about career advice and what they should take for career/practice purposes, but general legal knowledge]
A tentative list:
• First Amendment
• Bus Orgs/Corps
• Federal Courts (at least if you are even thinking about being any type of litigator)
• Administrative Law
This is 19 credits, leaving another 40 for the student to play around with. What am I missing? Is there anything that should not be on the list?
Clarifying Again: Let me try to put the question this way. People would say you should not leave college without taking a basic course in some area of human knowledge and creation, such as, say, Shakespeare (even if your career is not going to involve his work in any way). So what are the legal equivalents of Shakespeare?]
Sunday, April 13, 2014
The best sports deal ever
That is how Sports Illustrated describes the deal struck between the NBA and the owners of the Spirits of St. Louis when the Spirits folded and four ABA teams joined the league, which had paid them $ 300 million over the past three-plus decades. The SI story does a good job of elaborating on the deal's business and legal details, the negotiations leading to the original deal, and the litigation and settlement that ended it.
Pursuant to a recent confidential settlement (disposing of a lawsuit to obtain rights to certain international and online revenues), the old deal is over; the former owners (brothers Ozzie and Daniel Silna) will be paid more than $ 500 million, plus a small stake in the NBA's new TV contract. All told, the Silnas will make more than $ 1 billion (from a team they bought for $ 1 million in 1974).
Thursday, April 10, 2014
Law prawf letter on Adegbile nomination
A group of law professors is circulating this letter to Senators Leahy and Grassley [Updated verion] regarding the Senate's rejection Debo Adegbile to head DOJ's Civil Rights Division; several Senators expressly pointed to Adegbile's past representation of Mumia Abu Jamal as the basis for their opposition. While not asking the Senator to reconsider Adegbile's nomination, the letter expresses concern for what this rejection says about the right to counsel (issues I discussed), the obligations of lawyers to take-on pro bono representation, and what happens if lawyers are tagged with the sins of their clients (pointing not only to Chief Justice Roberts, as did several commenters to my earlier posts, but also to John Adams for his (successful) representation of the British soldiers charged in the Boston Massacre).
The authors are looking for law professors to sign on to the letter. If interested, you can do so online at this link. The deadline for signing is April 17.
Wednesday, April 09, 2014
(Practical) learning experiences
FIU today hosted an oral argument of the United States Court of Appeals for the Armed Forces, as part of the court's Project Outreach, a public and military education program. My colleague Eric Carpenter, who joined the faculty this year after twenty years in the Army, including a stint teaching at JAG School, arranged the visit. His Military Justice class wrote an amicus brief and one student was given ten minutes of argument. The court followed the argument with a public Q&A session for students, military lawyers and personel, and others.
It was a great learning experience; it would be great if other courts would so similar things in law schools and other public places.
Monday, April 07, 2014
Another (easy) procedure case
SCOTUS today granted cert in Dart Cherokee Basin Operating Co. v. Owens, to resolve whether a Notice of Removal must include evidence in support of subject matter jurisdiction (as the district court held here and the ) or whether it is enough that the Notice contain a "short and plain statement" of jurisdiction (as seven circuits have held), with no evidence necessary until arguing the Motion for Remand. I concur with Scott Dodson that this is going to be a 9-0 reversal, likely written by Justice Ginsburg.
Many in the wave of procedure/jurisdiction cases from the Roberts Court have been unanimous or near-unanimous. And Dart fits a particular pattern--a lopsided circuit split, with most of the circuits getting it right and the Court granting cert to bring the outlier court into line.
Update: Scott points out two subsidiary issues in the case. First is how to treat an insufficient short and plain statement (assuming that is all that is required in the Notice)--whether it represents a jurisdictional defect, which can be the basis for a motion to remand at any time, or a procedural defect, which must be asserted within 30 days. Second is whether the court of appeals had jurisdiction over the case under the Class Action Fairness Act, whether the court complied with CAFA's timing requirements, and whether the defendant filed its cert petition in a timely manner. The latter potentially complicates things.
We always think we did better
Paul highlighted that New Yorker cartoon caption contest of an appellate bench watching two people (other judges?) playing ping pong. You all offered some pretty good responses and I shared some responses from my Civ Pro students. Frankly, I think some 0f what folks here came up with was better than the three finalists (#3 is the best of them).
• Nobody had a coin?
• I can see both sides.
• The Founding Fathers were clear. You must win by two.
Sunday, April 06, 2014
Unions, incentives, and change
In March, the regional director of the Chicago office of the National Labor Relations Board ruled that football players at Northwestern University were employees, entitled to form a union and to collectively bargain with the university over conditions. That vote is scheduled for April 25, although the votes would be impounded if, as expected, Northwestern appeals the decision to the full NLRB. Yesterday, Northwestern football coach Pat Fitzgerald publicly urged his players to vote against forming a union in a letter sent to players and their families. And at least a few players seem inclined to vote against it, at least based on quotations in the story.
What is interesting is the near-universal sense from everyone that things do need to change in college football in terms of benefits, hours, health care, and other conditions for student-athletes.--all the things supporters want to get through the union and collective bargaining. The dispute is over how those changes will or should occur. One player pointed to Fitzgerald and his activities with the American College Football Association (he is on the association's Board of Trustees); another said he hopes the NCAA will see the need for change. But what would cause anyone to believe either of those groups (or any other non-player group) is likely to act in the players' interests. Football coaches are control freaks (I say that as a control freak myself) who would see that control threatened by many of the changes the players might want. How likely is ACFA to support tighter limits on football hours--so players can spend more time being students--or tighter limits on contact practices--so players are subject to fewer hits? The NCAA is a dysfunctional organization that has never shown any inclination to truly protect and benefit players, especially when the changes transfer from it and its schools to the players. This is not an institution likely to change unilaterally or from within. Especially since the NCAA, conferences, and schools make massive amounts of money off football and men's basketball and may make less money if the system changes.Importantly, none of these organizations is structured or legally obligated to take player interests into account or even to hear their concerns. All the unfortunate anti-union sentiment in the United States obscures the real benefit of the NLRA and a union in this situation--the rules regarding the terms and conditions under which the players operate can only be made with consent from the players. Absent a union, the players are left hoping that someone else--ACFA, the NCAA, the Big Ten/Twelve, Northwestern--will deign to give them what they want or need. In other words, change comes because the same powers that be decide to throw the players a bone via the same paternalistic arrangements. Moreover, since Northwestern must follow NCAA regulations (as a condition of membership and maintaining eligibility of its teams), the only source of change really is the NCAA.
I thought of similar issues surrounding the union in doing an interview regarding this joint study by the Student Press Law Center and a journalism class at the University of Maryland (I am quoted in the report itself). The report describes some of the policies to which student-athletes are subject (either by the university, the athletic department, or the team) regarding social media and other speech activities; social, dating, and sexual activities; and privacy. For example, the University of Georgia men's basketball team has policies regarding monogamy (good) and visible hickeys (bad) and reserving the right to inspect a player's dorm room at any time. Obviously these policies would be unconstitutional as applied to an ordinary student at the University of Georgia. They probably are not much more constitutionally valid as applied to student-athletes--much depends on whether the court views student-athletes as akin to employees and thus subject to the tighter speech and conduct restrictions that government can impose on its employees. Of course, one still could argue that these policies are over the top even in that situation--seriously, telling a student-athlete how many girlfriends he can have or that he cannot use "offensive language" (whatever that means) on Twitter?
Of course, we never will find out whether these policies and rules are constitutionally valid because no player is ever going to challenge them in court, for fear of retribution from the powerful and in-control coach. Collective action eliminates that problem--the coach is not going to kick everyone off the team for objecting to these sorts of unconstitutional and offensive rules. Only the group, not the lone player, can resist the greater power of the coach, the school, and the NCAA.
Friday, April 04, 2014
JOTWELL: Yung on Steinman on stare decisis
The new essay for JOTWELL's Courts Law comes from Corey Yung (Kansas), reviewing Adam Steinman's To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis (Virginia Law Review). Adam's article, which is great, argues for an approach to stare decisis that looks to the core rule of a case, not to its result; Corey then discusses how this approach would control the use of Lawrence v. Texas on questions of sexual autonomy.
Wednesday, April 02, 2014
Better to post your criticisms on Twitter, I guess
One law student's travails (from Above the Law).
Tuesday, April 01, 2014
Orality in litigation
I previously have written about Daniel Meador's arguments (primarily in 1983 in Maryland Law Review) for greater orality in the appellate process. Now comes The Reappearing Judge (forthcoming in Kansas Law Review) by Steve Gensler (Oklahoma) and U.S. District Judge Lee Rosenthal (former chair of both the Committee on Practice and Procedure and the Civil Rules Advistory Committee). They argue for increased live contact between trial judges and attorneys, including many Rule 16 conferences (permitted but not required under the rules), premotion conferences for discovery and summary judgment motions (the district judge I clerked for would immediately get the parties on a telephone conference as soon as a discovery motion was filed), and increased oral argument on dispositive motions. The goal is at least some increase in the number of trials--the ultimate oral process.
The common theme is that more oral presentation of issues (an essential component of greater attorney/judge contact) makes for better, more efficient, and more functional process. Gensler and Rosenthal explicitly highlight premotion conferences as a way to avoid the multi-step "minuet" of motions briefing, saving lawyers the time and money of having to prepare all that briefing and supporting documentation and judges the time of having to review it all. They argue it is easier to get to the core of the issues and to separate the wheat from the chaff with oral presentation, controlled by questions from the court. By contrast, they argue, written motions alone become overly long and complex, with parties often talking past one another, thus they do not reflect the best way to present, understand, or resolve issues. Ironically, of course, their argument comes when written argumentation is becoming easier and faster (via computers, electronic filing, etc.).
Is it right that oral presentation is better than written presentation? Should the legal profession re-orient itself to more oral litigation, at least in the main run of cases that are not overly complex? And how might that affect what and how we teach in law school?
Monday, March 31, 2014
Video and public gatherings
Much is being written about the "riot" in Tucson near the University of Arizona campus on Saturday evening following the school's overtime loss in the Elite Eight of the NCAA Tournament. The police department is defending its actions, although there are murmurings about coming lawsuits and a thorough internal investigation. However it plays out, the event illustrates a couple of problems involving public gatherings and the role of video.
First, according to one eyewitness (the owner of one bar), students were not destroying property or acting in a violent or "unruly" manner. Nevertheless, the police "declared" it an unlawful assembly and issued a dispersal order; the violence (people throwing beer bottles began after that order, once police began trying to clear the streets. So the question (which I have not heard asked or answered) is why this was an unlawful assembly or why it was necessary for people to disperse when, according to that bar owner, they were "more were hanging out in the street rather than trying to cause problems." Tim Zick (William & Mary) has written extensively on the collapse of public spaces under the First Amendment, as public gatherings become heavily regulated and, in this case it seems, presumptively unlawful, to be met with massive displays of force and immediate dispersal. This is not to excuse violent responses to the move-along order, as much as to question the need for, and propriety of, the order in the first instance.Second, people are talking about this video, in which a riot-gear-clad officer body-checks a woman over a bench (go to the :21 mark).
The video does not provide context, although the person who shot the video says the woman was walking to her car and talking on her cell when the officer ran over to her. It is hard to watch this without thinking about qualified immunity (is there Ninth Circuit case law about body-checking people talking on the phone?), the likelihood that this officer is going to have a job for much longer, and whether the plaintiff should get summary judgment under Scott v. Harris, because anything the officer can say to explain his actions will be "blatantly contradicted by the record" (i.e., this video). On the other hand, this case actually shows why video, while helpful, does not obviate the need for a factfinder; at the very least, there can be a dispute as to what the video shows and means and as to possible non-video explanations and reconciling any such conflicts is why we have factfinders.
Finally, this should render hollow the arguments against a public right to video record police conduct. This seems like exactly the situation in which we want people to be able to "check" police and the type of conduct that we want to expose with the more real and affecting (albeit not conclusive) evidence that video provides. The argument that police will behave differently if people with cameras are watching is incoherent, since this behavior is exactly what we hope officers will refrain from doing--and if the chance that they are being recorded provides that deterrence, great (it likely is more effective deterrence than § 1983 liability). And allowing people to record in no way "interferes" with this officer's work, other than by potentially exposing his misconduct.
Friday, March 28, 2014
Two lawyers walk into a bar . . .
Slate is running a multi-part series on humor, co-authored by a journalist and a professor at Colorado who has developed and is testing a new theory of what makes something funny. In the latest entry, they write that lawyer jokes are unique to the United States. One explanation: "No other country is so rooted in the sanctity of law—and in no other country are those who practice it so reviled."
Wednesday, March 26, 2014
Wood: So many ways for the plaintiff to lose
The Court heard argument today in Wood v. Moss, a "bit-of-everything" case that I have written about previously both on Prawfs and as an early illustrator of Iqbal's dangers. There are all sorts of issues and reasons flying around the case, and while I do not see anyway the plaintiffs will win, I cannot tell why they're going to lose.
Justice Scalia seemed to be itching to hold that the First Amendment cannot be enforced through Bivens. Or, at least, not against Secret Service agents charged with protecting the President. Or, at least, subjective viewpoint-discriminatory intent is irrelevant if there also is a subjective security rationale (i.e., applying Whren to the First Amendment). The government wants to skip the merits and simply conclude that the right against viewpoint discrimination at a presidential appearance was not clearly established.
The pleading discussion came largely in the Respondent's argument. He and the Chief had an interesting exchange about how to read Iqbal--Respondent's attorney hit on the "plausibility is not probability" language, while the Chief hit on the "obvious alternative explanation" language. Lower courts have not done much with that language, at least not rhetorically, but the Chief may be trying to revive it. Respondent tried to read that as one of degree-only if the alternative is so clearly obvious and right that it renders the pled explanation implausible (which, of course, is not the case here). There is also a nice exchange about how discovery can or will work here and (implicitly) whether or not the district court can control it, including whether there are secrecy concerns with disclosing practices and policies regarding how the President is protected.
Justice Kennedy summed the case up best--"it seems to me that if this complaint doesn't survive, nothing will." Indeed. And that is the problem.
Tuesday, March 25, 2014
Clearing brush on standing and merits
While SCOTUS has successfully disentangled jurisdiction and merits over the past several years, it has not done much with standing and its unfortunate conflation with merits. Tuesday's decision in Lexmark int'l v. Static Control Components perhaps marks a first step toward drawing sharper distinctions. The issue in the case was whether Static Control could bring a false advertising claim under the Lanham Act against Lexmark, even though the companies are not competitors.
The parties and the lower courts framed this in terms of the "zone of interests" test for prudential standing. The Court unanimously rejected that framing (as well as the closely related "statutory standing"), saying it has nothing to do with subject matter jurisdiction or standing. Zone of interests goes to whether the plaintiff falls within the class of people whom Congress authorized to sue through the statutory cause of action. This is a pure merits inquiry, akin to whether a plaintiff is an "employee" under Title VII. The focus is on the pleading (citing Iqbal) and whether the plaintiff has sufficiently alleged a claim that falls within the scope of the congressionally created cause of action.
Moreover, in footnote 3, the Court potentially cast doubt on all "prudential standing" as an "inapt" label. Prudential standing has historically consisted of three doctrines: Zone of Interest; No Third-Party Standing; and No Generalized Grievances. This case establishes the first as a merits inqury. In FN 3, the Court said that recent cases have treated the third as a matter of the Article III case-or-controversy requirement rather than as prudential. As for the second, the Court noted that some cases suggesting it is "closely related" to whether the plaintiff has a right of action, although most cases have not framed it that way. It expressly left that question for another day, although the tenor of this opinion and this footnote suggest a reluctance to keep this category alive. In other words, something is either a true Article III inquiry or a merits inquiry, with no fuzzy middle ground.
As an admitted adherent to the William Fletcher "it's all merits improperly constitutionalized" view of standing, this is a move in the right direction.
Sunday, March 23, 2014
Students take on the New Yorker cartoon
I presented that New Yorker cartoon (the one Paul wrote about here) to my Civ Pro students; you can see some of their entries by paging through the course blog. Some of them are pretty good and even incorporate Civ Pro concepts, although they read the cartoon as depicting lawyers playing ping pong.
Wednesday, March 19, 2014
Think it was his law clerks?
This Fair Labor Standards Act case turned in part on the length of time it takes workers in a poultry processing plant to don and doff protective clothing. Judge Posner conducted an experiment, described on pp. 9-10 of the majority opinion--he purchased identical equipment and video-recorded "three members of the court's staff" taking the clothing on and off.
I guess a Posner clerkship really is a different type of clerkship.
A new justiciability puzzle
The Enforce the Law Act was introduced in the House earlier this month; it purports to allow one or both houses of Congress to sue the President or other executive officers for failing to enforce the laws. The focus is on executive-branch non-enforcement policies, rather than individual enforcement decisions. And it does not include policies of failing to defend laws is court (e.g., what happened with DOMA).
Assuming the bill solves the legislative standing problem (because a clear statement granting legislative standing is enough to solve the Article III issue), any action seeking an injunction compelling the executive to enforce the laws would seem to be barred by the Political Question Doctrine. Is there anyway to avoid that hurdle?
JOTWELL: Coleman on Reinert on meritless litigation
The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Alex Reinert's Screening Out Innovation: The Merits of Meritless Litigation (forthcoming in Indiana L.J.), which critiques a host of doctrines for not distinguishing meritless claims from frivolous claims. On a separate note, Reinert's article is terrific and I have tried to get my students to grasp that basic distinction, at least rhetorically.
Saturday, March 15, 2014
Where are they now, St. Patrick's Day Edition
(or Winning by losing and losing by winning)
In 1995, SCOTUS unanimously held that the private organizers of Boston's St. Patrick's Day Parade (a group called the Allied Veterans' War Council) had a First Amendment right to exclude LGBTQ groups from the parade. That decision laid some important free-speech groundwork, particularly in the idea that speech need not have a particularized message to enjoy constitutional protection (citing to works such as Pollock, Schoenberg, and Carroll's Jabberwocky). Although the gay-rights position lost, many advocates appreciated the opinion for (arguably for the first time) speaking in generally positive (or at least not harshly negative) terms about homosexuality.
Fast forward two decades. That same organization, armed with a First Amendment right to exclude, still runs the parade. But it is facing increasing political and economic pressure to allow some LGBTQ groups into the parade. The group had been negotiating to allow in the LGBT Veterans for Equality, although those stalled last week, with AVWC accusing a gay rights group of creating an ersatz veterans' group as a "Trojan Horse" to sneak into the parade. Now numerous corporate sponsors of the parade--including Gillette and Boston Beer Co. (makers of Sam Adams)--have withdrawn as parade sponsors.
So the AVWC has its constitutional rights. But so do other people and entities and they are exercising them in a very different direction and in support of very different ideas than they were in 1995. And so that hard-won constitutional victory may end up somewhat empty.
Friday, March 14, 2014
Monday, March 10, 2014
Letter on cameras in SCOTUS
Yesterday (intentionally timed to the fiftieth anniversary of New York Times v. Sullivan), the Coalition for Court Transparency, a coalition of media and public interest organizations, sent a letter urging Chief Justice Roberts to open SCOTUS proceedings to video. The letter addresses all the familiar arguments for and against video, as well as offering a preliminary step of same-day audio before moving to same-day video.
Saturday, March 08, 2014
Gambling v. PEDs and the Baseball Hall of Fame
Warning: Another sports-and-law post, this focusing on the internal rules of baseball as a business
Kostya Kennedy has a new book on Pete Rose, titled Pete Rose: An American Dilemma, excerpted in this week's Sports Illustrated cover story. Kennedy states that Rose's Hall-of-Fame worthiness has come under "renewed discussion" as players linked to PED use (Mark McGwire, Barry Bonds, Roger Clemens) come up for Hall consideration. TThe excerpt (and presumably the book) present the arguments that Rose' gambling is a lesser crime than PED use, so he should be a more worthy candidate for the Hall than a juicer. Will Leitch at Sports on Earth responds and basically blows up the argument, by pointing out the serious problems that gambling creates and the moral panic that surrounds PEDs.
But there is a different, more legalistic reason Kennedy's article gets Rose's Hall eligibility wrong, one I discussed eight years ago, just as the major PED suspects were beginning to retire. Rose is ineligible for the Hall because he voluntarily accepted a lifetime ban from baseball and placement on baseball's permanently ineligible list. Under Rule 3E of the BBWAA voting rules, "Any player on Baseball's ineligible list shall not be an eligible candidate." And that ends the inquiry. It actually does not matter whether Rose bet on baseball or on the Reds (he admitted gambling on baseball, although never on games involving his team)--he accepted the ban and thus the collateral consequence of the ban. On the other hand, no suspected steroid user has ever been assessed a lifetime ban or placed on the permanently ineligible list, thus none is subject to Rule 3E. Steroid users are being kept out of the Hall by the principled insistence (or priggish obstinance, depending on your perspective) of BBWAA members.
Of course, we might reconsider this ordering, which would require reconsideration of the comparative evil of steroid use and gambling. Under present rules, a person is banned for life for a third positive test or finding of PED use, but banned for life on one finding of having bet on games involving his team. Perhaps that should be flipped, or at least treated on equal footing. (On this, I agree with Leitch that we have the order right, that gambling is a far greater sin than taking drugs designed to help you play better and for longer). But none of that changes anything for Rose given the current rules and the rules under which he operated.
Friday, March 07, 2014
The problem with PowerPoint
Thursday, March 06, 2014
More on the Civil Rights Division
Dahlia Lithwick basically gets it right: The "notion that the head of the Justice Department’s Civil Rights Division should have ever fought for civil rights has now become disqualifying."
But this is not anything new--Senate Republicans have been doing this to Democratic nominees to the Civil Rights Division for 20 years. As Bill Clinton's first nominee for the position, Lani Guinier famously faced strong Republican opposition based largely on her academic writings; Clinton withdrew the nomination when it became clear she could not be confirmed. And Bill Lan Lee served Clinton's entire second term without Senate confirmation--2+ years as acting head and one year as a recess appointee. Senate Republicans explicitly opposed Lee because he was and would be "activist" on civil rights. (And I would add that using that word to describe a lawyer and an executive-branch official reveals just how utterly meaningless it is).
Wednesday, March 05, 2014
More Honest Bob Casey
[But any attorney who seeks to help guarantee that right, in a case in which I believe the crime is sufficiently heinous, becomes per se unqualified for high public office. So, hey attorneys, feel free to help guarantee that right to citizens.]
Monday, March 03, 2014
In Why We Need More Judicial Activism (the subject of a great Green Bag micro-symposium), Suzanna Sherry identified the eight universally condemned Supreme Court decisions (Spoiler Alert: Bradwell v. Illinois, Minor v. Happersett, Plessy, Abrams, Buck v. Bell, Gobitis, and Hirabayashi and Korematsu). The unifying theme is that all have been, if not overruled, certainly discredited, such that none remains good law.
But are there cases that remain genuinely good law that are similarly disliked by both sides of political and constitutional debates and that both sides would like to see overruled? Two come to mind.
One is DeShaney. Liberals would like to see the Fourteenth Amendment impose affirmative obligations on government to protect the public; conservatives see affirmative government obligations to protect the public as a possible route to prohibiting abortion (my thoughts here were triggered by Steve's post about North Dakota's personhood amendment, which, as I said in the comments there, arguably overrules DeShaney at the state level and imposes some sort of affirmative obligations on government). A second, I think, is Slaughterhouse. Both sides would like a textually sounder basis for incorporation through Privileges of Immunities (although Due Process incorporation is so well-established at this point that the issue is more formalist). And since that was an economic liberty case, conservatives would like to see it come out differently.
What other cases might fit the bill? And am I wrong about these?
An Empirical Analysis of the Infield Fly Rule
The third piece in my "Infield Fly Rule Trilogy," titled An Empirical Analysis of the Infield Fly Rule, is up on SSRN. As the title suggests, I (with the help of seven FIU students, who all seemed to enjoy themselves) conducted an empirical study of the past four MLB seasons to find out the frequency of Infield Fly calls and the effectiveness of the rule in avoiding dramatically inequitable cost-benefit exchanges.Legal scholars have written extensively about baseball’s Infield Fly Rule -- its history and logic, its use as legal metaphor, and its cost-benefit policy rationales. This paper now conducts the first empirical analysis of the rule, exploring whether the rule’s legal and policy justifications are statistically supported. Based on a review of every fly ball caught by an infielder in the relevant game situation in Major League Baseball from 2010-2013, this paper measures the frequency and location of Infield Fly calls and the effect the rule has on individual games, all to determine whether the feared cost-benefit disparities that motivate the rule would, in fact, result absent the rule. Ultimately, the merits of the Infield Fly Rule cannot be measured empirically, at least not without resort to some ex ante value judgments; the normative conclusion one draws about these data depends on where one starts -- a supporter of the rule and a skeptic both will find confirmation in the information gathered in this paper. Nevertheless, the numbers shed specific and interesting light on the realities of baseball’s most unique and famous (or infamous) play.
Wednesday, February 26, 2014
The other side of corporate speech
There are reports that the NFL is monitoring Arizona's SB 1062, which gives private businesses the right to refuse service to anyone if providing service would violate their religious beliefs. Phoenix is scheduled to host next year's Super Bowl, but the league stated that such a bill would be inconsistent with the league's (stated and purported) policies of tolerance, inclusiveness, and non-discrimination for all sorts of reasons, including sexual orientation. The fear among Arizona business and political leaders now is that the NFL may move the game if this bill becomes law (it has passed both houses and is waiting the governor's signature). And there is precedent for this--the league moved the 1993 Super Bowl from Arizona (theme warning!) when it failed to recognize Martin Luther King Day as a state holiday.
But isn't this corporate speech? Isn't the NFL, a powerful entity, engaging in First Amendment expressive activities by using its economic influence to affect public policy? Isn't this exactly what critics of the "corporations have First Amendment rights" meme object to? (The NFL is not a corporation but an unincorporated association of associations, but I doubt that matters much for most arguments). Liberals and progressives and supporters of LGBT rights--the very groups most likely to be criticsl of Citizens United, are now quite pleased with, and supportive of, the NFL's stance and the (hoped-for) effect it could have on this horrific piece of public policy. But other than the valence of the political position at issue, how is this different than a large company trying to affect environmental policy or elections (which, in turn, will define policy)?
This gets at what I always have regarded as an inconsistency in many anti-corporate-speech arguments. We like businesses that are socially conscious and that work towards the public good. But that must mean they have the same right to define (what they regard as) the public good as anyone else. It cannot simply be that entity speech is ok when it promotes LGBT rights, but not ok when it promotes something we do not support.
Update: Gov. Jan Brewer vetoed the bill.
Tuesday, February 25, 2014
More personal jurisdiction from SCOTUS
SCOTUS today decided Walden v. Fiore, unanimously (per Justice Thomas) holding that a district court in Nevada lacked personal jurisdiction in a Bivens action against a Georgia police officer who wrongfully seized money from plaintiffs at the Atlanta airport. Adam Steinman a the Civ Pro/Fed Courts blog has some excerpts.
No major new doctirnal ground broken. It does reframe the effects test to focus on the defendant's contacts with the forum, not with the plaintiff, although recognizing that they may be intertwined. But injury in the forum, even if the defendant knew the injury would be suffered there (arguably the case here), is not sufficient absent some conduct by the defendant that implicated the forum (physical entry, phone calls, affect on reputation or property there, etc.). Otherwise, the plaintiff otherwise controls where she lives and where she feels the harm, a unilateral act of the plaintiff that is insufficient to establish jurisdiction--the plaintiffs here were harmed in Nevada because they chose to live in Nevada when they wanted their money. At best, an injury felt in a state can show that the defendant formed a contact with that state.
The Court drops a footnote (n.9 on p. 13) that it once again is not deciding anything about internet-based contacts. The targeting that the opinion seems to demand could be read to mean that broad enough wrongdoing (say, a fraud scam over the internet) will not create jurisdiction in the victim's home, because the defendant targeted the world, not just that plaintiff's state.
Like Daimler v. Bauman, decided last month, this is another good teaching case, in that it simplifies things and discusses the doctrine as a whole. It shows clearly that the effects test is not a unique separate test (as some lower courts had suggested), but another way that a defendant creates minimum contacts. So my syllabus just got revamped (again) when I teach P/J in April--Daimler instead of Good Year or Helicol and Walden instead of Calder and Clemens v. McNamee (a 5th Circuit decision).
Sport, non-sport, and judging
I have wanted to use Jordy's posts about judging and reputation to jump into other things, especially as the posts pertain to activities such as figure skating. And I want to tie this to my ongoing interest in defining what constitutes sport, for which I believe I have landed on a workable definition that focuses on whether a contest is decided by evaluating the intrinsic quality of an athletic skill (not sport) or the instrumental result of the performance of that skill (sport). The attempt to understandin judging may introduce some consequences into the distinction.
Sport is governed by what Mitchell Berman called the “competitive desideratum,” the desire that the “outcome of athletic contests . . . depend (insofar as possible) upon competitors’ relative excellence in executing the particular athletic virtues that the sport is centrally designed to showcase, develop, and reward.” The outcome of a sporting event should not be decided by anyone other than the players themselves. And it particularly should not be decided by an umpire or referee making pronouncements about the game's rules.. Of course, that is not entirely possible, since sports are governed by rules that must be applied and enforced by someone, with enforcement certainly influencing the outcome.The answer, I began arguing here, is that sports rules are analogous to rules of procedure, the framework rules in which a contest (athletic or judicial) is decided and resolved. These framework rules are not the focus of the contest and should not dictate the outcome. Instead, they regulate the competition, while the players control the outcome through their relative skills and the results of those skills. True, decisions about these framework rules--whether a pitch is a ball or strike or whether something is a foul-- affect how the competitors act and the contest must be resolved in light of those decisions. So we might say these rules "influence" the result. But the players still control the outcome of the game through their skills--whether the pitcher gets the batter out, whether the ball goes in the basket, etc.--without real input from the umpire/judge/referee.
And this is where the sport/non-sport distinction matters. For non-sports such as figure skating, we never get away from the judge and her ultimate opinion as to the intrinsic quality of the skater's performance of those skills. That opinion of the skaters' skills decides the outcome of the contest, not anything that follows from those skills. In other words, the rules of a non-sport are analogous to substantive law that courts (whether through jury or judge) use to decide a legal dispute. Non-sport possesses some of Berman's "competitive desideratum," but the skills cannot alone decide the outcome without a judicial ruling. Just as legal arguments and proof cannot alone decide the outcome of litigation without a judicial ruling.
Returning to Jordy's point about attorney reputation in the eyes of judges, the difference between sport and non-sport lies in how directly reputation affects the outcome. In a sport, to the extent reputation affects what gets called a strike for certain hitters or what gets called a foul for certain players, the influence is indirect, the outcome still controlled by whether the pitcher can get the batter out or whether the ball goes in the basket. In non-sport, to the extent reputation affects how the judges perceive the quality of a jump, spin, or skate, the influence directly dictates the end result of the competition. (In the litigation realm, this might parallel differences in how attorney reputation affects a judge's view of a particular attorney's discovery motion and how it affects the judge's ultimate findings of fact on the merits of the claim).
These are necessarily preliminary thoughts that I hope to perhaps flesh out in the future.
Banning home plate collisions: An exercise in statutory interpretation
Major League Baseball yesterday announced an experimental rule banning, or at least limiting, home-plate collisions. The rule is intended to protect players, as home-plate collisions are a common cause of concussions and other injuries to catchers. Whether it does or not provides an interesting exercise in statutory interpretation.New Rule 7.13 provides:
A runner attempting to score may not deviate from his direct pathway to the plate in order to initiate contact with the catcher (or other player covering home plate). If, in the judgment of the umpire, a runner attempting to score initiates contact with the catcher (or other player covering home plate) in such a manner, the umpire shall declare the runner out (even if the player covering home plate loses possession of the ball). In such circumstances, the umpire shall call the ball dead, and all other baserunners shall return to the last base touched at the time of the collision.
An interpretive comment adds:
The failure by the runner to make an effort to touch the plate, the runner's lowering of the shoulder, or the runner's pushing through with his hands, elbows or arms, would support a determination that the runner deviated from the pathway in order to initiate contact with the catcher in violation of Rule 7.13. If the runner slides into the plate in an appropriate manner, he shall not be adjudged to have violated Rule 7.13. A slide shall be deemed appropriate, in the case of a feet first slide, if the runner's buttocks and legs should hit the ground before contact with the catcher. In the case of a head first slide, a runner shall be deemed to have slid appropriately if his body should hit the ground before contact with the catcher.
Unless the catcher is in possession of the ball, the catcher cannot block the pathway of the runner as he is attempting to score. If, in the judgment of the umpire, the catcher without possession of the ball blocks the pathway of the runner, the umpire shall call or signal the runner safe. Notwithstanding the above, it shall not be considered a violation of this Rule 7.13 if the catcher blocks the pathway of the runner in order to field a throw, and the umpire determines that the catcher could not have fielded the ball without blocking the pathway of the runner and that contact with the runner was unavoidable.
The rule reportedly reflects a compromise between MLB, which had wanted a must-slide-can't-block rule that would have eliminated all collisions and thus done the most for player safety, and the MLBPA, which did not want to make such a major change so close to the season, fearing the players would not have time to adjust.
The basic rule prohibits a runner from deviating from the direct path home to initiate contact with the catcher (or whoever is covering the plate)--that is, from going out of his way to make contact rather than running directly for the plate. But the rule does not prohibit collisions where the runner runs directly into the catcher in trying to score. So, reading only the text, it is not clear the new rule eliminates most collisions, since most collisions come when runner, catcher, and ball all converge at the plate and running through the catcher is the most direct route to scoring. It thus is not clear that it provides the safety benefits it is intended to provide.
The solution may come in the interpretive comments and a more purposivist approach. An umpire may find that the runner deviated if the runner fails to make an effort to touch the plate, lowers his shoulder, or pushes with his hands, elbows, or arms. On the other hand, a runner does not violate the rule if he slides into the plate in an "appropriate manner," meaning his body hits the ground before making contact with the catcher. The upshot of the comments is to grant the umpires discretion to judge when the runner has "deviated" from the path, and thereby to apply the rule so as to further its purpose. The comment incentivizes runners to slide in most cases, since a proper slide per se will not violate the rule, while running through the catcher might be deemed deviating, subject to how the umpire exercises his discretion in viewing the play (whether the runner lowered his shoulder or raiseed his arms, etc.).
The rule seems unnecessarily complicated, given the player-safety goals involved. Especially since they simply could have modeled this rule after the rules that apply at the other three bases. But the sense seems to be that this is experimental, designed to be revisited during and after the upcoming seasons and to function as a first step to get players used to this new way of playing. Think of it as the legislature phasing-in new rules so as to also phase-in new, preferred behavior.
Monday, February 24, 2014
Brevity is . . . wit
In trying to make sure my students are practicing writing as a skill (along with the thinking and analysis that is a precursor to writing), while also trying to ensure an appropriate workload, I have settled on using short writing assignments. I assign quick, discrete questions inviting short, quick-hitting analysis of those questions (e.g., "Identify the problems with this pleading"). The benefit is that it forces them to perform legal analysis--identify and explain a rule and apply it--without room to ramble or BS or throw everything at the wall to see what sticks, which also makes them easier to evaluate and grade. I have a better sense of who gets it and who doesn't. I also think I am able to provide better feedback (written and oral), since the analysis necessarily is compact and concise. It also offers coverage--I can test on a lot of different areas, while avoiding the discomfort I always felt in relying exclusively (or even heavily) on multiple-choice (despite the obvious bar-exam benefits).
And, of course, it famously can be harder to write less than more, so there is a writing challenge to it. (As I think back to my days as a journalism undergraduate, the longest thing I wrote in my first two writing courses was at most 1000 words). Meanwhile, student are writing "full" papers (briefs, memos, etc.) in legal writing, so I know they are meeting a different type of writing requirement elsewhere.
There are a number of ways to do this. One colleague shared that in courses in which students write judicial opinions, the word limit is 2,358--the number of words in Justice Holmes' dissent in Abrams v. United States. As my colleague explains, if Justice Holmes only needed that many words to create what would become free speech doctrine, law students do not need more. I am going to adopt this for the opinions in my upper-level classes. As for other assignments, my in-semester essays run anywhere from 500-1000 words (depending on the class and the assignment). And I have moved to primarily short-answer in-class exams, consisting of 30-or-so questions, with a maximum of 110 words for each answer.
The goal in all of this is that students are writing, even if only a small amount at a time, and even if it does not precisely reflect the briefs they will write in practice. There still is educational benefit in this sort of writing.
Friday, February 21, 2014
George Anastaplo, RIP
I am late to the table in commenting on the death of George Anastaplo last week, but one of my colleagues insisted I could not claim to love the First Amendment and not post something about it here. Anastaplo had a storied academic career as a con law and political science scholar. But Anastaplo he lived it first, litigating his own First Amendment challenge to his denial of admission to the Illinois Bar. He lost 5-4, although Justice Black wrote a dissent (for himself, Chief Justice Warren and Justices Douglas and Brennan) defending the First Amendment and the role of lawyers in times of political conflict. On Black's instruction, the dissent was read at his funeral.
Not a sport, redux
Jordan presaged it, although for different reasons: Judging in women's figure skating is once again a thing, as people question the scoring that gave a Russian skater a surprisingly easy Gold Medal on Thursday. The issue here is less about reputation than about good, old-fashioned home cooking. And a judge who was suspended previously for trying to fix a competition previously. And we may be back to concerns about anonymous judging--established to avoid collusion and bloc-voting, it also removes accountability.
Thursday, February 20, 2014
Show me plead on, plead off
At the end of the pleading portion of Civ Pro, I spend one lecture day walking through the pleading process and all the rules and issues, showing how the pieces (which I teach in discrete and independent segments, not necessarily in chronological order) fit together. A few years ago I started calling this "Miyagi Day," because it felt a lot like that scene where Mr. Miyagi shows Daniel-San how waxing and sanding and painting fit together. And the students, shockingly, seemed to know and appreciate the reference.
Tonight was Miyagi Day (or Night, whatever) and this is what I found when I walked into the room:
Tuesday, February 18, 2014
JOTWELL: Tidmarsh on English civil justice reform
The new essay on JOTWELL's Courts Law is by Jay Tidmarsh (Notre Dame) discussing civil justice reform efforts in England, under the leadership of Lord Justice Jackson. (These efforts are notable, given recent concerns about the proposed FRCP discovery amendments and the direction they are taking on reform).
Friday, February 14, 2014
Coleman on the discovery amendments
Civ Pro profs are talking quite a bit about the proposed amendments to the Federal Rules of Civil Procedure, partly because the comment period is closing. At ACSBlog, Brooke Coleman (Seattle) argues against the amendments to the discovery rules. These amendments would lower the presumptive limits on discovery devices and make proportionality part of the initial inquiry into what information is discoverable (it currently is a basis for the producing party to oppose discovery). Brooke argues that these changes are motivated by concerns for out-of-control and disproportionate discovery that, in fact, are unsupported by empirical studies.
Needed Compromise In The Proposed Discovery Amendment War
The following was written by Suja Thomas (Illinois) on the proposed amendments to the discovery rules of the FRCP, which are a current topic of conversation among civ pro types
The discovery rules are hot. The Advisory Committee of the Civil Rules has proposed several changes to the rules, and lawyers representing plaintiffs and defendants are deeply divided over many of the changes. The changes may be a game changer. Over 700 comments have been submitted, more than twice as ever before, and many law professors have weighed in. Much of the commentary focuses on a proposed amendment to the scope of discovery in Rule 26(b)(1) under which parties can withhold discovery on the basis of lack of proportionality to the needs of a case.
The Advisory Committee is motivated to make change here because discovery is out of whack is some set of cases. However, a study by the Federal Judicial Center shows that discovery is disproportionate in at most 25% of the cases, and more likely, only 6-15% of the cases. A further indication of the extent of the problem is a report of actual discovery costs. Plaintiffs and defendants reported median discovery costs of respectively $15,000 and $20,000 and discovery costs of respectively $280,000 and $300,000 at the 95th percentile (costs equal to or higher than the costs in 95% of the cases). If discovery is working in most cases, a rule change for all cases seems doomed to create problems for already proportional cases. Because of natural lawyer behavior, lawyers vigorously defend their clients, and under the proposed rules, they will aggressively decide not to search or produce discovery on the basis of lack of proportionality even when such discovery would have been otherwise produced or searched in the past. In a recent article in the Wake Forest Law Review, I argued that atypical cases can make bad law, and similarly here, atypical cases can make bad rules where the rules must be applied to typical cases.
At the same time, the problem of disproportionate cases should be fixed. It may be best fixed by a switch away from transubstantivity to address only the cases where discovery is disproportionate, a new rule that could be similar to the Class Action Fairness Act, which provides a different rule for very large cases.
If the proposed change to Rule 26(b)(1) (adapted from Rule 26(b)(2)(C)(iii)) goes forward, there is concern that when a party withholds discovery on the basis of lack of proportionality, the requesting party will possess insufficient information to assess whether to challenge the withholding. In response, the Committee added a requirement borrowed from the interrogatory rule that the nonproducing party must state with specificity the grounds for objecting to a request. However, comparing withholding on the basis of lack of proportionality to objections to interrogatories is not quite the right comparison. Instead, the more appropriate comparison is privilege.
Under the current rule, parties need not produce relevant discovery that is privileged. The proposed rule adds lack of proportionality as the other basis on which to object to the production of relevant discovery. By analogy, then, similar information should be provided for discovery withheld on the basis of lack of proportionality as is provided for discovery withheld on privilege grounds. As much or more information is actually needed when discovery is withheld on the basis of lack of proportionality. Privilege is similar to a recipe. If two lawyers (with the same information about the case) assessed the same discovery, the lawyers would withhold the same discovery as privileged with very few exceptions. Lack of proportionality, on the other hand, is far from a recipe. If two lawyers assessed discovery for lack of proportionality, they likely will not produce or not search different discovery. In other words, proportionality is a much more vague concept than privilege. Add to this, a requesting party will rarely challenge privilege because of the recipe nature of privilege. However, because of the vague notion of proportionality, the requesting party will likely challenge assertions of lack of proportionality.
Rule 26(b)(5) requires particular information must be provided—what is often referred to as a privilege log—when relevant discovery is not produced on the basis of privilege. Similarly, in the analogous context where relevant discovery is not produced or searched on the basis of lack of proportionality, parties will need information to decide whether to challenge assertions of lack of proportionality. A proportionality log would provide such information. The type of information that would be provided on such a proportionality log includes where the party has not searched and why such searches would not be proportional to the needs of the case. While there would be some cost associated with such a log, this log would strike the right balance to permit the requesting party to assess the assertion of lack of proportionality, have discussions with the nonproducing party, and prevent unnecessary involvement of the court. If the amendments are going forward, it is time for a compromise.
Thursday, February 13, 2014
Fan speech, once again
I suppose I should wade back into the renewed interest in fan speech at sporting events, given two recent events at college basketball games: 1) Last week, Marcus Smart, a star player for Oklahoma State, was suspended for three games for shoving an adult fan at a game against Texas Tech, in response to something that the fan, a prominent heckler at games, yelled at him (the fan, Jeff Orr, apologized for his role and voluntarily agreed not to attend any more games this season); 2) Last night, an adult fan was ejected from a game at the University of Memphis, apparently at the request of the referee.
I do not know all the details, so I am not necessarily opining on either situation. But both have people thinking about fan speech, so I would weigh in with what I think are the general principles at work (And I know very well that I am not on the side of the angels in this).
1) At a game involving a public university (as both Texas Tech and Memphis are), the First Amendment is in play. Any efforts to punish fans for their speech is subject to First Amendment limits. This applies, I would argue, even in a privately owned arena that a government entity (such as a public university) is using for its official governmental functions.
2) The stands of a publcily owned/controlled basketball arena are a designated public forum for "cheering speech," which is a broad category consisting of just about everything will say (and shout) during a sporting event that is not inconsistent with that event. This includes taunts, insults, profanity, and even some racist and sexist comments against players, coaches, and refs, as well as all manner of social and political speech.
3) As a public forum, content-based regulations (as on a particular type of cheering) are subject to strict scrutiny, while content-neutral regulations (no signs) are subject to intermediate scrutiny. There also could be reasonable viewpoint-neutral restrictions on non-cheering speech, but the category of cheering speech is so broad, I don't know what that would reach.
4) Fans can be punished for the rare speech that crosses the line into fighting words, which has been narrowed to reach only up-close, targeted, face-to-face taunts. It is possible that Jeff Orr crossed that line, since the incident occurred in very close range--Smart had fallen out of bounds right below where Orr was sitting. And Smart says he heard Orr use a racial epithet, although Orr says he just called Smart a "piece of crap." I do not know if this was a close enough encounter to fall outside the First Amendment, regardless of what was said.
5) Labeling what Orr did "fighting words" does not justify what Smart did. Contrary to what some apparently have said on ESPN, one person using fighting words does not mean the listener has license to fight. It simply means that the speaker can be sanctioned.
6) I legitimately cannot imagine what the fan at the Memphis game said last night that would have gotten him ejected and still be consistent with the First Amendment. Everyone at a basketball game is yelling and screaming and that is accepted as part of the game. So the ejection must have been based on the content of his particular screaming--a content-based enforcement that the First Amendment does not permit.
Sunday, February 09, 2014
More on skating: What if they know your reputation and your routine?
I hope to have more to say on Jordy's post on figure-skating judging. In the meantime, this story on the move from the (new) team skating competition to the upcoming individual competitions later this week adds a new element to Jordy's point. The skaters will perform the same routines in the individual competitions that they did in the team competition. This means that not only do the judges have each skater's reputation in mind, but they already have seen exactly what each skater is going to do and likely have formed some opinion about how they do it.
So how will the combination of reputation and prior viewing affect judging? Because they already loved Russian Julia Lipnitskaia's routine (performed to music from Schindler's List and dancing as the girl in the red coat, as creepy as that may seem), will they be predisposed to loving it the second time? And because they found fault with American Ashley Wagner's jumps, will they be predisposed to find the same faults the second time?
Women and Title VII
From Slate, a brief history of the inclusion of protection for women in Title VII of the Civil Rights Act of 1964. Sen. Howard Smith, a Virginia segregationist, introduced the provision 50 years ago Saturday (Feb. 8, 1964) as a poison pill.
Misusing and misunderstanding the language of law
I do not agree with everything in this Dahlia Lithwick piece on the Dylan Farrow/Woody Allen mess. But she makes a couple of good points about the unfortunate things that happen when the language of law gets abused in the court of public opinion (or, as she calls it, "litigation by hashtag").
First, she has a good takedown of this incoherent nonsense that Allen is not the only one who enjoys a presumption of innocence; Farrow does, too--a presumption of innocence of making false allegations against Allen. As I tell my students, presumptions are about burdens of proof; a presumption of innocence means that those attempting to prove non-innocence bear the burden of offering evidence (burden of production) of non-innocence and the burden of convincing the factfinder (burden of persuasion) of non-innocence. To accord a similar presumption of innocence to the accuser is to shift the burden of proof to the accused to offer evidence and convince the factfinder to the accused party that the accuser is untruthful. But you can't have it both ways. The reason for the presumption (and thus the assignment of the burdens) is because the party proving non-innocence is asking a government body (the court) to formally deprive the accused of life, liberty, or property. It is that threat of official governmental sanction that properly places the burden on the accuser.Of course, those who defend Allen via the shibboleth of "presumption of innocence" similarly misunderstand the concept. Farrow's accusations are evidence, and one could read her account and the other reports of her accusations and conclude that Allen did what she accuses him of doing. One can disbelieve her story or insist it is not enough (especially by throwing around a second shibboleth--"beyond a reasonable doubt"). But one cannot claim that her story is not evidence and thus at least an attempt at the burden of production.
Second, Lithwick criticizes the very idea of the "court of public opinion," because it is a court unbounded by any rules--and a court is defined by its rules. Those who speak of that court never identify what evidence is admissible (e.g., internet trolls calling Farrow a "bitch"?) , what the standards and thesholds are, what to do about lost evidence, what role cross-examination plays, and even who bears the burden of proof. Lithwick's point is that the court of public opinion is often nothing more than opinions (often uninformed) dressed up in "fancy talk" of burdens of proof" and "presumptions of innocence," none of which is helpful. I suppose the court of public opinion could place the burden on the accused. But then own that this is what you're doing.
Finally, a third point that Lithwick does not mention, but that has bothered me through much of this conversation. Everything is clouded by confusion about standards of proof and when and how they apply. One refrain is that Allen has never been convicted of anything and that no one has ever offered proof beyond a reasonable doubt. Because of that absence of a judicial finding B/R/D, either we just do not know what happened and never will (from those who cannot decide) or clearly he did nothing wrong (from Allen's defenders).
But there is a difference between whether someone did something wrong and whether someone should be criminally sanctioned by the state for doing something. The beyond-a-reasonable-doubt standard applies only to answer the latter question. But have other ways to determine whether someone did something wrong, notably civil proceedings, governed by a lower standard of proof, such as preponderance of evidence. Although we do not put people in jail when there is only a preponderance of evidence, we impose other sanctions that obviously are based in a conclusion that the accused did something wrong. And a civil judgment ordinarily is enough to conclude that someone did something wrong. (I wrote something similar following the jury verdict in the sexual harassment case against the Knicks and Isaiah Thomas in 2007).
In this case, there was a civil proceeding to determine custody of the minor children when Allen split with Farrow in 1993, a proceeding governed by the preponderance standard. In that proceeding, Allen was denied full custody and all visitation with Dylan (the court's order is here). There was no finding that Allen sexually abused Dylan, although the judge found that Allen's "behavior toward Dylan was grossly inappropriate and that measures must be taken to protect her." Thus, to the extent legal sanctions other than jail (e.g., custody and visitation) and non-legal sanctions (whether to ever watch a Woody Allen movie) can be imposed on a lesser standard of proof, it is at least arguable that we do have that. So to say Allen has never been found to have done anything wrong is incorrect--this becomes clear once we really understand what standards of proof are all about.