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.
Bad day for the Federal Circuit
Today was a pretty bad day for the Federal Circuit, as it was unanimously reversed twice in decisions from the April sitting (meaning it took less than two months for the Court to do the reversing). While we should not expect SCOTUS to simply rubber stamp the Federal Circuit because of that court's patent expertise, the Court has now unanimously reversed the Federal Circuit three times this term alone. Anyway, this seems a good excuse to highlight the work of Paul Gugliuzza of Boston University, who combines expertise in IP and Fed Courts and has written extensively on the Federal Circuit and its expansion (for good and ill) of its power.
Saturday, May 31, 2014
Donald Sterling v. NBA: Your new Civ Pro exam
Donald Sterling sued the NBA to stop his league-imposed punishment and the forced sale of his team. A $ 2 billion offer from Steve Ballmar was accepted by Sterling's wife, Shelly on behalf of the trust that owns the team, having had Donald declared mentally incompetent; the NBA has approved that deal and canceled a planned hearing of the Board of Governors (the other 29 owners) to strip Donald of ownership. The lawsuit, with Sterling and the trust as plaintiffs against the NBA, asserts claims for a violation of the state constitution, federal antitrust, and various breach of contract claims; it seeks damages and an injunction halting the NBA-imposed punishments (a $ 2.5 million fine and lifetime suspension from the NBA) and the hearing to terminate his ownership.Oddly, these claims are either not ripe or about to become moot, depending on what happens with the sale. The NBA has not yet held the hearing to terminate his ownership, so he has not yet suffered any damages from it. And since the league will cancel the hearing if the sale goes through, that claim becomes moot. If the sale goes through, expect the league to rescind the fine, mooting that element of relief. It might even lift the lifetime suspension--what involvement will Sterling have with the league if he is no longer an owner?--mooting that claim. And assuming the sale goes through, what damage will Sterling have suffered? Two billion dollars will be more than double the sale price of any NBA franchise and likely more money than he would have earned from continued ownership of the team. So, at best, maybe he can get the non-economic value of being an NBA owner--except he is such a pariah now among NBA owners that it would be hard to put any real value on this.
What Sterling really wants is an injunction halting the sale of the team, at least pending outcome of the litigation. But to get that, Shelly Sterling needs to be involved in the case, since she claims an interest in controlling the trust and pushing through the sale. So either she has to be joined under FRCP 19 or she will try to intervene under FRCP 24. (Note: I don't do much more than lecture on these two rules, just to show other ways of bringing parties into cases But Rule 19 confuses students, who think it applies more broadly to cover simple joint-tortfeasor situations; having a nice clear example, purely involving injunctive relief, is helpful).
Jurisidction here hinges on the antitrust claim and § 1331; there is supplemental jurisdiction over the state law claims (although Sterling's lawyer--who in an ongoing media blitz has come across as the worst kind of slickster lawyer who does not actually care about things like law and procedure--did not mention that or any other basis for jurisdiction over the non-federal claims). But, here is where it gets fun. Antitrust experts generally agree that the antitrust claim is nonsense--Sterling signed a series of agreements and contracts to become owner of an NBA franchise and cannot claim harm if those contracts harm the public or competitors. Sterling really is arguing that, by violating its own Constitution and By-Laws in punishing him (arguments that are not entirely frivolous), the NBA has breached those agreements; in other words, this is really a state-law case. So perhaps the court declines supplemental jurisdiction under § 1367(c)(2) because the state claims predominate. Moreeover, the court is going to have to figure out who controls the trust (Donald or Shelly) and, perhaps, whether Donald is competent. Those sound like potentially complex issues of state law, warranting the court to decline jurisdiction under § 1367(c)(1). Finally, and most obviously, if the antitrust claim is that weak and the court dismisses it relatively early, it could decline jurisdiction simply for that reasons under § 1367(c)(3).
Update: An alert reader emails with another way Shelly Sterling could be brought into this case: She agreed to indemnify the NBA for any judgments arising from the sale of the team, including for lawsuits by her husband. So, having been sued, the NBA could now implead Shelly and the trust to enforce the indemnification agreement in the same action. Sterling then could assert claims against Shelly relating to any injunction of the sale.
Thursday, May 29, 2014
On class supplements
I have written a supplement (available at your local supermarket checkout line). I assign supplements in every course I teach, including selecting one casebook that combines the best elements of a treaty treatise and a casebook. But the overuse of supplements and study aides, especially in 1L courses, feels as if it is getting out of control. Two related problems: 1) Students are using supplements and study guides in lieu of the class reading and 2) Students are using too many study guides and it is all getting confusing.
Some examples: 1) On Civ Pro, I gave question (from a recent 5th Circuit case) that basically lined up with Nicastro, yet a significant number of students never mentioned Nicastro, but discussed the competing opinions in Asahi (which is what a supplement written before 2011 would have discussed). 2) Several students meeting with me after grades came out told me how hard they worked in the class, always indicated by how many different supplements and study guides and audio recordings they used, never by how much they focused on the actual assigned cases, rules, and statutes.
Do others notice this problem? And is there a way to get it under control, to make students focus primarily on the primary sources and let the supplements be just that?
More statutory interpretation from Donald Sterling
Sterling leads off by challenging the NBA's reliance on the secretly recorded conversations as evidence, which gets interesting. He points to California Penal Code § 632(a), which prohibits recording confidential communications without consent, and § 632(d), which excludes "evidence obtained as a result of eavesdropping upon or recording a confidential communication . . . in any judicial, administrative, legislative, or other proceeding." From this, Sterling insists he has a constitutional right not to have his private conversations recorded or having the evidence of his conversations used against him. That seems overstated--that the state offers a statutory protection against being recorded in furtherance of the constitutional right of privacy does not convert the right against being recorded into a constitutional right.The interesting statutory question is whether internal dispute-resolution proceedings of a private organization constitute an "other proceeding" under § 632(d). On one hand, the language seems to contemplate public proceedings, since the three enumerated types of proceedings are all public in nature. So under ejusdem generis, that catch-all should be read to cover only similarly public proceedings. It also makes sense that the criminal code would regulate evidence in public but not private proceedings. On the other hand, are there any public proceedings that are not judicial, administrative, or legislative? If not, then "other proceedings" must mean something not public. Perhaps it refers to something like arbitration or mediation, which can be considered quasi-public--they are privately controlled processes to which parties agree to send otherwise-public disputes. But this proceeding still seems different. This is not a situation in which the NBA established an outside-but-private process (such as arbitration of appeals under the CBA with the players' union). This is the collection of 30 owners establishing their own internal processes controlled by the 30 owners, for regulating who stays within their own ranks. Even if § 632(d) goes beyond public proceedings, the NBA process still seems fundamentally different.
Finally, the answer may be affected by the 2001 decision in Bartnicki v. Vopper. Bartnicki held that Congress could not punish publication of an illegally intercepted and recorded phone call, where the publishers were uninvolved in the unlawful interception or recording. The First Amendment protects publication (and, implicitly, other uses) of truthful lawfully obtained information on matters of public concern, except where the government is serving a need of the highest order. So perhaps the NBA could argue that it is entitled under Bartnicki to use the laefully obtained (and thus constitutionally protected) recording in its private internal proceedings, meaning California law is limited only to public, California-established proceedings, but not to whatever private proceedings private persons and entities may adopt.
Wednesday, May 28, 2014
Is Wood v. Moss generalizable?
Wood v. Moss turned entirely on the reasonable security rationale of keeping protesters out of "weapons range" of the President, even if that meant moving only certain speakers out of visual and audio range of their target. But does this rationale apply to all public officials who have security details? Is the President sui generis for security purposes? Or can the state troopers who protect, say, Gov. Chris Christie also claim a security interest in moving protesters out of weapons range? Certainly the President has a larger security apparatus and is more of an obvious target. But the security logic of Wood is not so obviously limited, especially since there was no evidence that anyone intended to harm the President here (other than the protesters' disagreement with him).
Tuesday, May 27, 2014
The awfulness of Wood v. Moss
OK, if Town of Greece did not get me too worked up, Tuesday's decision in Wood v. Moss (summary here), while not surprising, is so bad as to have me going the other way. And this was a Ginsburg opinion for a unanimous Court, so I am all alone on the island on this one. The Court held that two Secret Service agents enjoyed qualified immunity because no case law had held that agents engaged in crowd control were obligated to ensure that competing groups are at comparable locations or given equal access at all times when reasonable security concerns are in play. Sounds simple enough, but inside the opinion is a lot of really bad stuff.
First, the Court makes explicit (it previously was implicit) that the absence of qualified immunity is an element of the claim, rather than qualified immunity being an affirmative defense. The Court stated that the plaintiff must plead facts, under the Twiqbal standard, showing that the defendants violated a constitutional right and that the right was clearly established. So this means qualified immunity is the default starting point--a plaintiff must carry the burden of persuasion both as to the facts on the ground and the state of the law.
Second, for the third time, the Court assumed without deciding that a Bivens could be used for First Amendment claims (the issue was not preserved below). Eventually some defendant will be smart enough to preserve this issue (the hints are there) and the Court will resolve it--and likely not in a good way.
Third, while the Court purported to resolve the case on the second prong of the qualified immunity analysis (no clearly established right ) rather than the first (no right violated), the analysis kept conflating the prongs and moving back and forth between them--there was a lot of discussion about why there was no violation here because the agents were motivated not by viewpoint discrimination but by security concerns. This is partly a consequence of the Court's insistence that the second prong must consider the right in the particular factual context and not at too high a level of generality, which invites entwinement of the two prongs. But the analysis (particularly at pp. 14-end) is all about why the agents were justified in moving the anti-Bush protesters (but not the pro-Bush protesters) in this case, not about anything having to do with prior case law. That sounds like the Court saying the plaintiffs did not sufficiently plead a violation.
Fourth, the decision does not leave any obvious room for protesters to ever challenge Secret Service decisions regarding crowd control (which is what Justice Scalia urged during argument). The Court pays lip service to the principle that "government officials may not exclude from public places persons engaged in peaceful expressive activity solely because the government actor fears, dislikes, or disagrees with the views those persons express." And it insists (as the defendants conceded) that the First Amendment might be violated if the agents moved some protesters with "no objectively reasonable security rationale." But that principle will virtually always be trumped by the overriding concerns for protecting the President and it is impossible to imagine a case in which a court would find that the Secret Service lacked an objectively reasonable security rationale while protecting the President. Indeed, the only purported security rationale in this case was keeping the protesters out of "weapons range" of the President (Ginsburg repeats that phrase four times), even though there is no indication on the facts pled that anyone had or planned to use a weapon. Someone being in range raises, per se, a valid security rationale.
But the Court then summarily dismissed any significance of allegations regarding the diners permitted to remain inside the restaurant--obviously in "weapons range" of the President--as undermining the security rationale. The justices simply accept the defendants' argument that the diners “'could not have had any expectation that they would see the President that evening or any opportunity to premeditate a plan to cause him harm,'" and thus were not a security risk, even if within weapons range. Of course,the anti-Bush demonstrators also did not expect to see the President in the open courtyard; they originally only expected to be able to stand along the path of the President's motorcade as it drove by (with pro-Bush protesters on the opposite sidewalk). So they, too, could not have had any opportunity to premeditate a plan. If the diners were not security threats because they were not expecting to be near the President, then neither should the protesters be security threats. Except for one difference--the protesters held anti-Bush views and were there to express those views. So is the Court saying that everyone who disagrees with the President is a security threat if in weapons range and thus can constitutionally be kept from getting "too close" to the President (at least when he is outside his secure car)?
Fifth, the Court does a lot of factfinding (without acknowledging as much, of course) on a case that remains at the pleading stage. The Court finds and accepts the defendants' security rationale, even though the defendants still have not answered the complaint or offered their own factual allegations or evidence. The Court makes determinations about what maps of the area, included as part of the Complaint, show (perhaps another example of plaintiffs pleading themselves out of court by providing the additional information needed to comply with Iqbal). And the Court rejects inferences about differential treatment of the protesters as compared with the diners. It appears to be apply Iqbal's "obvious alternative explanation," although without saying so. Otherwise, these at least should be matters for discovery and summary judgment, if not the factfinder.
Finally, the plaintiffs alleged past instances of viewpoint discrimination by other Secret Service agents; they were trying for an inference from these past instances to an informal agency policy of viewpoint discrimination to the individual defendants acting pursuant to that policy. The Court rejected this out of hand, insisting that Bivens liability can attach only to the officer's own misconduct and declining to accept the plaintiffs' inferences. Putting aside that reasonable inferences should be drawn in the plaintiffs' favor on a 12(b)(6) motion, this seriously cramps the ability to ever plead viewpoint discrimination in the absence of an agent dumb enough to announce that he is moving speakers because of their viewpoint. Moreover, the Court points to the agency's official policy--which expressly prohibits viewpoint discrimination--as evidence that the agents did not act improperly. But repeated past instances of ignoring official policy at least raise an inference that officers regularly ignore official policy, suggesting that these officers also ignored the policy. At the very least, that should be enough at the pleading stage.
As I pointed out previously, at oral argument Justice Kennedy mused that "it seems to me that if this complaint doesn't survive, nothing will." And given what the Court finally said in this case, nothing will.
Monday, May 26, 2014
Legal movie recommendation: "Shenandoah"
My wife's late father grew up in Shenandoah, PA (apparently, pronounced Shen'-en-doe-uh), a coal-mining town in east-central Pennsylvania populated (like many of these towns) by people of eastern European descent (Poland, Lithuania, etc.). Back in the day, there was a small Jewish population in town that was received about as you would expect for the '40s and '50s; my father-in-law told of suffering anti-Semitic bullying (and worse) growing up and of rocks being thrown at the houses that were not decorated at Christmastime. My wife has not visited since she was a teen-ager (her family is gone from the area).
So she was struck to learn, belatedly, about a documentary called Shenandoah: The story of a working class town and the American dream on trial, released in 2012. It tells the story of the 2008 beating death of Luis Ramirez, an undocumented immigrant from Mexico living in town, by six white members of the high school football team (who shouted ethnic slurs during the attack) and the ethnic, xenophobic, divisions it created in the community. Two players were tried on third-degree murder and related charges in state court, but acquitted on all but simple assault; they then were convicted of federal hate crimes (here is the Third Circuit opinion affirming those convictions). One player pled guilty to federal hate crimes and testified against the other two. And a fourth attacker was a juvenile and not tried as an adult; he cooperated and received probation. (Several police officers also were charged with various federal crimes for helping the players cover-up the crime, with mixed results).
The movie simultaneously tells the story of the murder and the subsequent state court proceedings, of the football's team's unsuccessful season following the attack (playing without several key players), and of a struggling industrial town and how it is dealing with changing demographics. It is definitely a film worth seeing. A couple of thoughts on the film and the story.One is the role of narrative choice. A main participant in the film was Brian Scully, the juvenile who received probation for his role in the attack. Scully is portrayed very sympathetically in the film--he is remorseful and thoughtful about what they did and how wrong it was, and he is seen achieving some redemption in joining the school musical (the football coach would not allow him to play while charges were pending) and graduating. But the facts in the Third Circuit opinion describe Scully as being more centrally involved in the assault, including in shouting ethnic slurs. The movie shows that the state-court defendants tried to shift blame to Scully, but it portrays this as an unfair lawyer move (that was unfortunately successful).
Second the film portrays the ethnic tension as something new, a product of the town's relatively new economic struggles and the new wave of Mexican immigration. But my father-in-law's experiences suggest that this tension is nothing new; there always have been insiders and outsiders in this community and outsiders have not been treated well. And the smallness of the town (there was much "celebration" of the small town in the film) exacerbates those problems, because outsiders simply stand out more. One of the more disturbing events was a rally in support of the defendants, with attendees wearing shirts and carrying signs with messages like "I'm American and I speak English" and singing "patriotic" songs. It degenerated into people shouting epithets and sexually offensive comments at the victim's (Anglo) fiancee, who was there as part of a counter-protest. The tenor of the rally was captured by a speaker who said something to the effect of "he didn't deserve to die, but if he had stayed in his own country, he'd be alive today." There concededly is no good way to protest on something like this without looking like a bigot. But you can help yourself by not saying and doing bigoted things.
Third, I did not know that the Fair Housing Act has a hate-crimes provision, which was the basis for the federal convictions of the two assailants. The provision criminalizes violence, threats, or intimidation because of the victim's race and because he is occupying a dwelling or with the intent to prevent him from occupying a dwelling. The goal would appear to be stopping cross burnings and other acts directed at keeping people from integrating neighborhoods. But in affirming the conviction, the Third Circuit made clear the statute reached all conduct motivated by dislike of particular people seeking to live in an area. Statements made during the attack about this being "our town" and telling the victim to go home to Mexico and that he did not belong in Shenandoah, along with evidence the defendants generally did not like the influex of Mexicans into town, all suggested an intent to intimidate him and other Mexicans from dwelling in Shenandoah.
Wednesday, May 21, 2014
JOTWELL: Malveaux on Marcus on Trans-Substantivity
The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing David Marcus Trans-Substantivity and the Processes of American Law (BYU Law Review).
Tuesday, May 20, 2014
Injury and standing, rights and merits
In this post, I suggested that the difference between an injury and a right (or claims of right) marks the difference between standing and merits. Richard's post explaining unspoken standing issues in Town of Greece offered as one possibility that while coercion is necessary to state an Establishment Clause claim, something less (say, mere offense at being subjected to sectarian prayer) is enough of an injury for standing. So are we saying the same thing?
My initial inclination was no. Richard notes that mere offense has not been sufficient injury in other contexts; for example, the stigma of race discrimination is insufficient to establish standing, as is knowledge of general wrongdoing by government. But I saw the offense in Greece as something different and more direct. The plaintiffs were offended by sectarian prayer with which they were directly confronted and made to sit through. A pure stigmatic or generalized injury would be a citizen who did not attend council meetings, but alleged that she was harmed simply because sectarian prayers were going on. It was not that there was something unique about the Establishment Clause that the Court was afraid to address; the nature of the conduct and thus the injury genuinely were different.
But as I think on it further, I am less sure we are not saying the same thing. The difference between Warth or Schlesinger and Town of Greece is the different nature of an injury caused by the Establishment Clause compared with the Equal Protection Clause, given the unique purposes of each provision. But if so, that is problematic for my attempted explanation for the standing/merits divide. It necessarily means that whether someone has suffered an injury-in-fact turns on the potential right at issue--in other words, something may be injury for one source of right (Establishment) but not for another (Equal Protection). This more closely links injury to right (or claim of right). And the closer those two things come together, the less standing doctrine makes sense as a concept distinct from merits and the more it appears as nothing more than a cheat to preempt ordinary merits analysis on some constitutional claims.
Two procedural cases of note
Two procedural cases having nothing to do with one another, other than being interesting (to me).
1) Monday's SCOTUS Orders List included Thomas v. Nugent, in which the Court GVR'd to the Fifth Circuit for further consideration in light of last week's per curiam reversal without full briefing (also of the Fifth Circuit) in Tolan v. Cotton (which I wrote about here and here). I will simply quote what an alert reader wrote in an email: "So if the holding of Tolan is 'remember the basic concept of summary judgment, dummy,' then Thomas v Nugent seems to stand for the proposition 'you probably did it again, dummy, but your work was so sloppy that we're not even going to check it until you rewrite it.'" That about covers it.
2) Scott Dodson (Hastings) points me to this Ninth Circuit decision, written by Fed Courts guru Judge William Fletcher. A lot of Civ Pro/Fed Courts/Civil Rights stuff in here. Of particular note is the discussion at pp. 25-27. Part of the case involved the failure by the county to take sufficient steps to immediately find the family of an unidentified man shot and killed by a police officer (thus denying the family the opportunity to bury him in accordance with their Muslim faith). Among the many claims were I/I/E/D and negligence claims by the victim's siblings; the district court found they lacked standing because they had no legal interest in the disposition of the victim's remains and thus had not suffered an injury-in-fact. The court of appeals rejected that conclusion. The plaintiffs suffered emotional harm allegedly caused by the county's actions, which was sufficient to establish standing. Instead, the siblings' claims failed on the merits, because the county owed no duty to the siblings (defeating the negligence claims) and the county did not intend to cause the siblings emotional distress (defeating the I/I/E/D claims). But the absence of a valid claim of right reflects a failure of the claims on the merits, not an absence of standing/jurisdiction.
This standing analysis--resting on the distinction between injury-in-fact and right (in the Hohfeldian sense)--provides a different explanation for Richard's post on standing in Town of Greece (I tried to put this as a comment to that post, but Typepad is having some problems). There is a difference between whether a plaintiff has suffered an injury and whether his rights have been violated; the former goes to standing while the latter goes to the merits. In other words, a person can be injured, and thus have standing, even if the conduct at issue did not violate their rights, thus losing on the merits.
Here, for example, the siblings' emotional distress constitutes an injury-in-fact for standing, even if their rights were not actually violated (because there was no duty and no intent). In Town of Greece, the plaintiffs suffered an injury in that they were offended or felt excluded, even if their rights were not violated because only actual coercion runs afoul of the First Amendment; again, the plaintiffs have standing, but the claim fails on the merits. Or take one more example: The victim here suffered an injury-in-fact in being shot, providing standing (for his survivors), even if turns out the use of force was reasonable and thus the claim fails on the merits.
Now perhaps this distinction between injury and right is artificial or impossible to implement. But it may be the only way that standing does not swallow merits.
State panel denies InfiLaw license
The South Carolina Committee on Academic Affairs and Licensing voted 3-1 to recommended rejection of the sale of Charleston Law School to InfiLaw. Members cited two lawsuits against the company by other law schools. Faculty, students, and alumni all oppose the sale. It now goes to the full Commission on Higher Education for a vote on June 6.
Monday, May 19, 2014
More on taxis and the First Amendment
Saturday, May 17, 2014
Jennifer raises a good point: There is too much law to know now. I can think of several subjects I would add to Texas Tech's upper-level requirments. So perhaps the solution is breadth over depth--expose students to a bit less of more areas and subjects. And if that is what we are after, what about a trimester/quarter system? Stanford and Chicago are the most prominent law schools to follow that calendar (Stanford switched about five years ago). And Northeastern uses a year-round quarter system, with students alternating quarters in the classroom and in field co-ops over the course of three calendar years. I did undergrad on a quarter system and really enjoyed the academic experience.
The trade-off in law school is obvious. Students can take 12 courses in an academic year rather than 8-10, so they can be exposed to more subjects and areas. But instead of 13 weeks/52 class hours of a four-hour course, they get 10 weeks/40 class hours; instead of 13 weeks/39 hours of a three-hour course, they get 10 weeks/30 class hours. In Civ Pro, for example, this means so long Erie and discovery.
Thoughts? For those teaching at/attending/attended Stanford or Chicago, how did you like the trimester system? Does the trade-off work and is it worth it? Do we need to trade depth to get additional breadth?
Friday, May 16, 2014
First Amendment problem?
A New York City cab driver who was seen driving around wearing an armband with a Nazi swastika has had his license suspended for 30 days by the New York City Taxi and Limousine Commission. How does this not raise significant First Amendment problems?
The TLC is an agency of the New York City government. The driver, Gabriel Diaz, appears to be an independent contractor operating under a government license and not an employee of the city or the TLC. According to this report, the suspension was for violating § 54-12(e) of the regulations for medallion cab drivers, which prohibits commission of "any act that is against the best interests of the public." But the act at issue--wearing the arm band--is unquestionably expressive. There is no indication he ever refused to transport anyone. Is the issue that the armband effectively dissuades people from getting in his cab? But is that enough to overcome his First Amendment interests? Isn't it on him if he chooses to forego income by presenting an unwelcoming vehicle? Or is there an analogy to a licensed attorney who has a Nazi flag in his office--"I'm willing to represent anyone who comes through the door, sorry if you don't want to retain me because of this flag"? How is this different than if he were listening to neo-Nazi radio programs in his cab?
There is a Travis Bickle joke to be made here. But in the meantime, please tell me what I am missing here.
Update: The ADL's public statement praising the suspension made the "message of exclusion" argument, stating that Diaz "sent a frightening and offensive message to New Yorkers about who might be welcome – and unwelcome – in the taxicab he was driving." And this story summarizes Diaz's political beliefs, sarcastically describing him as a "[c]harming fellow all around." But that does not change the role of the First Amendment in prohibiting government from stripping even a "charming fellow" of a business license solely because he holds and wishes to express those reprehensible views.
Justice Scalia and the upper-level curriculum
Scalia also criticizes the absence of required upper-level classes, noting the curriculum from his Harvard days. I probably would be all for required upper-level classes, but do not see how it would happen. The problem is that the first-mover would be at too-great a disadvantage. Schools are now actively and competitively recruiting good students and students are playing schools against one another; one thing schools may try to offer is "flexibility" in the final two years and the chance to "create" an upper-level course package. School A thus can sell that flexibility as against School X and its mandatory post-1L classes (however limited they may be). School X is not going to win the battle for that student (all else being equal), even if its approach may produce better Scaliaesque lawyers-as-professionals.
On the other hand, is that move necessary? At least outside the super-elite schools, the pressure of bar passage causes schools to push students hard towards "bar-tested" courses, which likely are the same courses that schools would make mandatory in any event.
Justice Scalia on legal education
Justice Scalia delivered the law school commencement address at William & Mary earlier this week week and had a lot to say about two-year law schools, "carefully-structured skills-based experience," and the difference between law-as-trade and law-as-profession. Will Baude offers his thoughts. Apropos of my post last month about what every lawyer should know, Scalia specifically points to the First Amendment:
Can someone really call himself an American lawyer who has that gap in his compendious knowledge of the law? And can a society that depends so much upon lawyers for shaping public perceptions and preserving American traditions regarding the freedom of speech and religion, afford so ignorant a bar?
This all reflects a very Tocquevillian view of the law and lawyers as a learned intellectual aristoracy. And much of the resistance to proposals such as two-year law schools and all-experiential education rests on a similar view.
Wednesday, May 14, 2014
Faculty protest at Charleston Law
In the run-up to hearings and a vote (scheduled for next Monday) by the South Carolina Commission on Higher Education regarding the sale of Charleston Law School to InfiLaw, the tenured faculty and untenured faculty (speaking through counsel and anonymously, for fear of retribution) have sent letters to the Commission urging denial of InfiLaw's request for a license to operate the school. The tenured-faculty letter notes the "culture of intimidation and fear--fear of reprisal for speaking out against the transaction or even voicing concerns" about the proposed sale and a desire not to "see the Charleston School of Law mirror the admissions practices, attrition rates, transfer rates, or educational programs of the InfiLaw consortium schools." (For an alleged picture of alleged life at an InfliLaw school, see this lawsuit by two tenured professors fired by InfiLaw-owned Phoenix School of Law).
The Commission has hearings scheduled for this Friday and next Monday morning, with a vote scheduled for Monday afternoon.
Tuesday, May 13, 2014
Web Series: "Approach the Bench"
The final installment of the web series Approach the Bench.
Saturday, May 10, 2014
Hear, hear. (From Feminist Law Professors) (H/T: Kerri Stone):
Friday, May 09, 2014
More on Tolan and summary judgment
At the Civ Pro & Fed Courts Blog, Ed Brunet and John Parry comment on SCOTUS's per curiam/summary reversal/some other strange procedure in Tolan v. Cotton, the § 1983 summary judgment case I wrote about earlier this week. Ed and John note that this is the first SCOTUS victory for a civil rights plaintiff in a summary judgment case in quite awhile. I would argue that the effect of the decision, and the meaning we should draw from it, is wrapped up in the strange process the Court used to decide the case (whatever we call it--GVR, summary reversal, per curiam decision, or something else)
One possibility they propose is that this represents a change in the Court's attitude, a sharp reminder to lower courts to take seriously the requirement to identify obvious factual disputes and to deny summary judgment when evidence genuinely goes in competing directions. Doing so in a per curiam opinion signals that this is nothing new legally, but simply a reminder of what it is well-established courts are supposed to be doing all along. On the other hand, by doing so in a per curiam opinion without full briefing, the Court removes some of the precedential weight of the decision.
Another possibility Ed and John propose is that the Court was just looking to correct grievous error in a very simple case, making this one of those one-off cases in which SCOTUS corrects egregious error without a broader rulemaking goal. But if that was the goal, the Court could have genuinely GVR'd the case or issued a summary reversal. By also writing an opinion--even per curiam--identifying the factual disputes and the conflicting evidence showing those disputes, the Court arguably is trying to do more: Demonstrating the appropriate analysis and trying to pull lower courts into line.
As I said earlier, I believe much depends on how the Court decides Plumhoff v. Rickard and the analysis the Court uses to get there. If the Court speaks, a la Scott v. Harris, about some testimony being "blatantly contradicted" by the record and thus insufficient to create factual disputes, that will remove a lot of the force from Tolan as a major summary judgment decision. If the Court rules for the defendant (as I expect) without a lot of focus on summary judgment, it may leave Tolan more room to do something.
Establishment and disagreeable speech
Let me try a slight twist on Rick's take on Town of Greece. I was struck by the following line from Justice Kennedy's plurality:
Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.
The first clause is true, but too facile for two reasons. First, the disagreeable speech we encounter comes from private speakers, not from the government or with the government's imprimatur. Saying that the cost of citizenship is hearing another member of the polity utter disagreeable words is simply in the nature of free expression. And that carries over to other private expressions of religion, where any member of the public can express their own convictions.
Of course, sometimes that disagreeable speech comes from the government and we have to deal with that, even if it makes us feel excluded, much as we have to deal with disagreeable government policies (at least until the next election). But that leads to my second concern. Having an Establishment Clause means that religious speech is different, that government cannot express disagreeable or exclusionary ideas in this area. It is an open question when, exactly, an establishment occurs (which is Rick's point). The point is that it is not as simple as Kennedy suggests in saying "you can always express your own views"--the government's involvement changes the metric.
Thursday, May 08, 2014
Donald Sterling and free speech
There have been scattered rumblings about the problem of the NBA sanctioning Donald Sterling for protected, although offensive, speech. Obviously, this is not a First Amendment problem, since the NBA is a wholly private actor. But we might call it a free speech problem, in that Sterling did suffer a sanction for expressing his opinions. And because it may be difficult to draw the line between this case and people speaking on other matters of people controversy (marriage equality, gay rights, abortion, whatever) and possibly offending someone, the specter of league-imposed suspensions for political speech looms.
Mike Dorf looks for a principled line and finds it in a broad conception of harassment, such that once Sterling's racist views became public, his continued position as owner "created a kind of hostile work environment." While this is not enough to violate Title VII, Dorf argues that private firms often adopt prophylactic policies that go beyond what the law requires. He thus urges the NBA to defend the punishment on those grounds, rather than on his offensive speech simpliciter.
There is an appeal to this view, especially as a post hoc explanation for what the league did and as a way to isolate what Sterling did as something unique. But I wonder if the principle can be easily cabined. Any controversial policy could be recast as creating this sort of hostile environment--an openly LGBT player may find it hostile that the owner or a teammate contributes to anti-marriage equality causes, just as a devoutly religious player may find it hostile that a teammate opposes Christian prayer before public meetings, just as an Dominican player may find it hostile that a teammate supports heightened immigration enforcement. Maybe this is just the worst kind of slippery-slope anxiety--no league is going to suspend anyone for being involved in genuine social and political causes and we should not dignify what Sterling did by comparing it genuine political involvement. But I am not convinced Sterling (or to go back a longer time, former MLB pitcher John Rocker) only a difference of degree, not kind.
But if not Dorf's approach, then what?One possibility is to try to distinguish speech (and wrongful non-speech activities) that genuinely relates to one's part or role on a team and in the league from speech that does not, with only the former providing a basis for league sanction. I thought about a version of this in thinking about what the league should have done a decade ago with the various racialized civil actions Sterling was involved in.
Now, this may not be any better, since it does not necessarily avoid those same line-drawing problems. Just as a league always can say X's involvement in a hot-button political controversy "creates a kind of hostile work environment," so can a league always say X's involvement in a hot-button political controversy relaates to his role on the team (often by throwing out the buzzword of creating "distractions in the lockerroom"). This saves us having to define and develope a new concept such as "kind of hostile work environment." But we still have to figure out what "genuinely relates" to one's role on the team. Another approach is for private entities to import some kind of Pickering balance, although that remains squishy and malleable enough to still cause problems.
None of this changes my basic view that the NBA has the authority to force the sale (and probably to suspend) Sterling and that these sanctions should hold up if/when he challenges them in court. But Dorf is onto something about not what the league can do, but what it ought to do.
Wednesday, May 07, 2014
The end of roller derby names?
In the closing segment of this week's Slate Hang Up and Listen podcast (go to 57:55 mark), Slate's Josh Levin discusses efforts to make roller derby a more serious sport at the intercollegiate and international levels, also discussed in this Slate piece. Making the sport serious includes the demise of the roller derby nickname--Nun Meaner, Sigmund Droid, Haute Flash, Carmen Getsome, and my favorite, Stone Cold Jane Austen (that one belongs to Devoney Looser, an English professor at Arizona State). More players are going by their given names, at least in international competition, to make the sport seem less like professional wrestling. Occasional GuestPrawf Dave Fagundes, who wrote the definitive article on roller derby names, will no doubt be saddened to learn of this development.
And, since we all need a break from grading: What would you choose as your law- or law-professor-related derby name?
Tuesday, May 06, 2014
Town of Greece and Iqbal
A funny thing about Town of Greece v. Galloway: I am not outraged or panicked about the future, as I somehow feel I should as a Jewish liberal Democrat. (Update: Perhaps I am not alone). I would have dissented were I on the Court, but I do not see the majority as tragically wrong. Maybe because Paul is right. Maybe because I know I am a religious minority and am not bothered by being reminded about that. Maybe because I do not attend town council meetings. Maybe because I have never lived in the type of community likely to use this decision as a reason to start those council meetings with pervasively sectarian or proselytizing prayers.
I do find troubling the utterly illusory nature of the (already small) opening the plurality left for challenging legislative prayers. Justice Kennedy stated this opening three different ways: "If circumstances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course." And "[c]ourts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood." And "[a]bsent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose," there is no constitutional violation.
But it seems unlikely that a plaintiff will ever be able to make this showing. More problematically, it seems extraordinarily unlikely that a plaintiff will even be able to even sufficiently plead this under Iqbal (perhaps not coincidentally, another Kennedy opinion over a four-Justice dissent) so as to have an opporuntity to make the showing. It is easy to imagine the Court sweeping the complaint aside by finding an “obvious alternative explanation” for the government practice that is more plausible than the conclusion of an Establishment Clause violation. So, as in Town of Greece itself, that decade-long streak of only pervasively Christian prayers are a result not of impermissible purpose, but of bureaucratic over-simplification (using the Chamber of Commerce's limited list of houses of worship) or the fortuity of geography (the synagogue is on the other side of the imaginary town line).
Update: Dahlia Lithwick reports that Al Bedrosian, a member of the Roanoke County (Va.) board of supervisors has announced that he will seek to impose a Christian-only prayer policy, admitting that he probably would not allow any other religions, because America is a Christian nation and adherents to other religions are free to pray on their own. Public statements such as this make it easy enough to state a claim. The problem is that most public officials are smarter, saner, or subtler than Bedrosian, or will quickly learn to be. Then, much as with employment discrimination, cases become more difficult to prove and plead.
Extraterritoriality, criminal law, and jurisdictionality
Here is a great opinion from the Second Circuit holding that the required nexus to the United States, necessary for extraterritorial application of the federal prohibition on providing material support to foreign terrorist organizations, did not affect the trial court's subject matter jurisdiction in a criminal prosecution. Citing Morrison v. National Australia Bank, the court recognized that whether Congress did or can reach overseas conduct with a particular statute was a substantive merits that does not implicate the power of the district court to hear and decide the case. The court held that Morrison abrogated several past decisions, while recognizing that other circuits have run into similar confusion, even post-Morrison.
Monday, May 05, 2014
Why not plenary review?
SCOTUS on MOnday GVR'd Tolan v. Cotton with a per curiam opinion (beginning on p. 13) holding that the lower courts failed to view the facts in the light most favorable to the plaintiff in granting the § 1983 defendant summary judgment (the case involved a police shooting). The analysis illustrates how a court should draw inferences in the non-movant's favor, identifying four or five facts and why the presence of contradictory evidence puts those facts in dispute. And the Court avoids the slicing-and-dicing of facts as in so many summary judgment cases. (The opinion could be a nice supplemental case for teaching summary judgment, showing how a court finds or does not find factual disputes).
But why did the Court GVR, rather than performing plenary review of the case and producing a precedential opinion? We certainly could use a precedential case from SCOTUS showing that sometimes there are factual disputes and summary judgment is not appropriate (especially given how Plumhoff v. Rickard likely will come out). Yes, the factual disputes were fairly obvious from the record, although probably not more so than in other cases. Moreover, most GVRs are done to give the lower court an opportunity to reconsider the case in light of new law or a recent decision, rather than, as here, to reconsider the decision because the lower court did it wrong the first time. The Court did produce a per curiam opinio analyzing the merits (unusual in GVRs), which should have some precedential effect. But it seems an odd approach.
Justice Alito, joined by Justice Scalia, concurred in the judgment (p. 24 of Monday's Order List). They argued that it was inappropriate to grant cert. (although they agreed with disposition of the case once cert. was granted), which only involved the routine consideration of the sufficiency of the record on summary judgment and possible factual error--routine work for courts of appeals, but not for SCOTUS.
Interestingly, Alito, joined by Scalia, cited his concurring opinion from Tolan in dissenting from denial of cert. in Beard v. Aguilar (p. 26 of Monday's Order List), a habeas case in which the Ninth Circuit found that the California Supreme Court had unreasonably Brady to the facts of the case. The point, I guess, is that if the Court is going do error correction in Tolan, it also should have done so there.
Friday, May 02, 2014
Churches and marriage equality, ctd.
Chanakya Sethi at Slate reads the North Carolina anti-SSM stautes the same way I did -- as prohibiting civil ceremonies, not purely religious ones having no civil effect -- as do an expert on North Carolina family law and religious law scholar Doug Laycock.
Laptops, redux, redux
A study by two psychologists showing students learn when taking notes by hand rather than on laptops, which I previously discussed, has been published in the journal Psychological Science and is beginning to draw some attention.
Interestingly, the authors leave open the question of handwriting notes on a tablet, which may be the best of both worlds--hand-writing and initial selectivity with a permanent electronic copy.
Thursday, May 01, 2014
Two additional thoughts on the Sterling suspension
Yesterday I questioned the precise basis for the NBA's suspension of Clippers owner Donald Sterling. On further reflection, I want to consider some additional interpretive points.
First, I noted that the NBA Constitution and By-Laws contain two provisions--Article 35A(c) allows for a fine of up to $ 1 million for statements prejudicial or detrimental to the league and Article 35A(d) allows for a suspension and/or a fine of up to $ 1 million for conduct prejudicial or detrimental to the league. Commissioner Adam Silver must have relied on 35A(d), since 35A(c) does not allow for a suspension. But I questioned that usage. Sterling's misdeeds involved statements and the existence of distinct prohibitions--one regulating conduct and one regulating statements--suggests that the statement-specific provision should have been used here, which would make the suspension inappropriate.
But now I am wondering whether I am reading 35A(c) incorrectly. Perhaps the "statements" it prohibits are those that directly criticize the league or something about the league, for example game officiating (many a fine has been imposed on a coach or owner for doing that). But it does not reach statements about something else that, because of their viewpoint, happen to make the league look bad. That would instead be treated as "conduct" and pulled back within the more-general regulation of 35A(d).Second, I am wondering if Silver simply jumped to the catch-all power of Article 24(l) to make decisions and impose punishments in the best interests of the NBA for all three sanctions, ignoring anything in Article 35A. Article 24(l) allows for a range of penalties, including suspension and a fine up to $ 2.5 million. If so, it brings to even sharper light the question of how he could do that, since, again, 24(l) only operates when "a situation arises which is not covered in the Constitution and By-Laws." This means Silver should have at least glanced at 35A(c) and/or (d), which do seem to cover this situation.
CFP: Legal Scholarship We Like, and Why It Matters
JOTWELL has issued a Call for Papers for Legal Scholarship We Like, and Why It Matters, to be held November 7-8, 2014, at University of Miami School of Law. The complete CFP is here and after the jump.
Legal Scholarship We Like,
and Why It Matters
University of Miami School of Law
November 7-8, 2014
JOTWELL, the Journal of Things We Like (Lots), is an online journal dedicated to celebrating and sharing the best scholarship relating to the law. To celebrate Jotwell’s 5th Birthday, we invite you to join us for conversations about what makes legal scholarship great and why it matters.
In the United States, the role of scholarship is under assault in contemporary conversations about law schools; meanwhile in many other countries legal scholars are routinely pressed to value their work according to metrics or with reference to fixed conceptions of the role of legal scholarship. We hope this conference will serve as an answer to those challenges, both in content and by example.
We invite pithy abstracts of proposed contributions, relating to one or more of the conference themes. Each of these themes provides an occasion for the discussion (and, as appropriate, defense) of the scholarly enterprise in the modern law school–not for taking the importance of scholarship for granted, but showing, with specificity, as we hope Jotwell itself does, what good work looks like and why it matters.
I. Improving the Craft: Writing Legal Scholarship
We invite discussion relating to the writing of legal scholarship.
1. What makes great legal scholarship? Contributions on this theme could either address the issue at a general level, or anchor their discussion by an analysis of a single exemplary work of legal scholarship. We are open to discussions of both content and craft.
2. Inevitably, not all books and articles will be “great”. What makes “good” legal scholarship? How do we achieve it?
II. Improving the Reach: Communicating and Sharing
Legal publishing is changing quickly, and the way that people both produce and consume legal scholarship seems likely to continue to evolve.
3. Who is (are) the audience(s) for legal scholarship?
4. How does legal scholarship find its audience(s)? Is there anything we as legal academics can or should do to help disseminate great and good scholarship? To what extent will the shift to online publication change how people edit, consume, and share scholarship, and how should we as authors and editors react?
III. Improving the World: Legal Scholarship and its Influence
Most broadly, we invite discussion of when and how legal scholarship matters.
5. What makes legal scholarship influential? Note that influence is not necessarily the same as “greatness”. Also, influence has many possible meanings, encompassing influence within or outside the academy.
6. Finally, we invite personal essays about influence: what scholarship, legal or otherwise, has been most influential for you as a legal scholar? What if anything can we as future authors learn from this?
Jotwell publishes short reviews of recent scholarship relevant to the law, and we usually require brevity and a very contemporary focus. For this event, however, contributions may range over the past, the present, or the future, and proposed contributions can be as short as five pages, or as long as thirty.
We invite the submission of abstracts for proposed papers fitting one or more of the topics above. Your abstract should lay out your central idea, and state the anticipated length of the finished product.
Abstracts due by: May 20, 2014. Send your paper proposals (abstracts) via the JOTCONF 2014 EasyChair page, https://www.easychair.org/conferences/?conf=jotconf2014.
If you do not have an EasyChair account you will need to register first – just click at the “sign up for an account” link at the login page and fill in the form. The system will send you an e-mail with the instructions how to finish the registration.
Responses by: June 13, 2014
Accepted Papers due: Oct 6, 2014
Conference: Nov. 7-8, 2014
University of Miami School of Law
Coral Gables, FL
Symposium contributions will be published on a special page at Jotwell.com. Authors will retain copyright. In keeping with Jotwell’s relentlessly low-budget methods, this will be a self-funding event. Your contributions are welcome even if you cannot attend in person.
Wednesday, April 30, 2014
This is kind of funny. It is a dramatization of a deposition in which the attorney and deponent go round and round over the definition of "photocopier." It is taken verbatim from the transcript, although there is likely some dramatic license with tone and delivery. The Times is making this a regular opinion feature and they are soliciting transcripts for future videos.
This also may be fun and useful as a Civ Pro teaching device, to illustrate something about depositions.
Tuesday, April 29, 2014
Sterling, Silver, and statutory interpretation
For those of you who like using sports rules to illustrate statutory interpretation, NBA Commissioner Adam Silver's lowering of the hammer on Clippers owner Donald Sterling is a gold mine (forgive the precious metal puns). And it may be that, while Silver is being lauded for his moral and ethical stand, his legal footing is a bit shakier.
Silver on Tuesday imposed three punishments: 1) A lifetime ban from all involvement with the Clippers or the league; 2) a $ 2.5 million fine; and 3) a call for the owners to vote to terminate Sterling's ownership. The NBA had previously kept its governing documents secret; at the time of Silver's press conference, no one outside the league knew the precise bases for these punishments (when asked, Silver said he would "leave that to the lawyers"). The league finally released its Constitution and By-Laws (H/T: Deadspin), although they still have not announced the precise bases for these decisions, so we are guessing as to exactly what Silver relied on and why. We may only know if Sterling challenges his punishments (presumably through a breach of contract action). Either way, you probably could get a nice legal analysis exam out of this.
The lifetime ban is most likely pursuant to Article 35A(d), which empowers the commissioner to "suspend for a definite or indefinite period . . . any person who, in his opinion, shall have been guilty of conduct prejudicial or detrimental to the Association." The fine seems to be pursuant to Article 24(l), which gives the commissioner catch-all authority to make decisions "as in his judgment shall be in the best interests of the Assocaition" when a situation is not otherwise covered; the maximum fine under that provision is $ 2.5 million. Finally, the call for termination of Sterling's membership triggers Articles 13, 14, and 14A. Article 13 enumerates ten bases for termination; the only one that might fit is (a), where an owner "Willfully violate[s] any of the provisions of the Constitution and By-Laws, resolutions, or agreements of the Association," which brings us back to Article 35A(d)'s conduct prejudicial or detrimental or Article 24(l)'s "best interests." The power to terminate rests with the NBA's Board of Governors, comprised of the other 29 owners, and requires a 3/4 supermajority.
First, it is interesting that Silver apparently split the source for the first two punishments. The suspension seems to have been under Article 35A(d) for conduct prejudicial or detrimental to the NBA. But 35A(d) (already used as the basis for the suspension) also allows for a maximum $1m fine in addition to the suspension. Clearly Silver did not rely on Article 35A for the fine, however, since he imposed a fine 1 1/2 times larger than 35A(d)'s limit. Instead, the fine must have been under the Article 24(l) catch-all, given the amount. Why did he do it this way? Presumably to impose the larger fine under 24(l).
But there is a good argument that resort to the catch-all is inappropriate here. Article 24(l) expressly applies only "[w]here a situation arises which is not covered in the Constitution and By-Laws." This situation is covered by another part of the Constitution--Article 35A(d), already used for the suspension. In other words, since Silver found that Sterling violated Article 35A(d) (in suspending him), that also should have been the basis for the fine. Silver thus was wrong to resort to the catch-all. Further complicating matters is Article 35A(c), providing for fines (again, maximum $ 1 m) specifically for statements prejudicial or detrimental to the best interests of the team, league, or basketball. That also seems to cover this situation--Sterling obviously said things contrary to the best interests of the NBA--again making resort to Article 24(l) inappropriate.
Second, and related: Why did Silver rely on Article 35A(d) for conduct prejudicial or detrimental rather than Article 35A(c) for a statement prejudicial or detrimental? Presumably because (c) does not allow for suspension, while (d) does. But Sterling is unquestionably being punished for statements, not conduct (whatever his racist views, he was not punished for acting on his views or operating his team in a way that implemented those views). While a provision prohibiting conduct could, standing alone, also reach statements, that argument does not work when there are distinct provisions, one regulating conduct and one regulating speech. Did the NBA Constitution intentionally set-up a situation in which conduct could be the basis for a suspension but statements only for a fine? If so, perhaps this means the suspension is improper.
Note that my analysis presumes a certain exclusivity--Article 24(l) by its terms cannot be in play if a different provision is; Article 35A(d) cannot be used to regulate statements because 35A(c) already does. Perhaps Silver would argue--and an arbiter would accept--that all of the provisions together allow for this range of punishments. But that is an odd form of statutory interpretation and would render many provisions of the NBA Constitution superfluous.
Third, expect some controversy when the owners attempt to terminate Sterling's ownership. The league would be basing termination on a willful violation of either of three broad, non-specific provisions (either "conduct prejudicial or detrimental," statements prejudicial or detrimental, or conduct judged not in the "best interests'); either seems a very generic basis for this ultimate sanction. (For a legal comparison, think of SCOTUS' efforts to make 18 U.S.C. § 241 work for catch-all Due Process violations in the face of vagueness concerns). The other nine bases for termination are fairly specific, going to gambling and fixing games (forever the cardinal sin) and extreme mismanagement of the franchise, although none is in play here. Perhaps Sterling could argue that either 35A(d) or 24(l) is not a specific enough rule in the Constitution & By-Laws as to be willfully violated as to form a basis for termination under 13(a). Failing that, termination of ownership, if the owners must the necessary supermajority (and I imagine they will, both to show support for Silver's leadership and to keep the players happy), appears proper and within league rules. Of course, under Article 14(j), owners waive any review of this decision (and a similar one in the franchise agreement), so it may not matter (unless, as David Hoffman suggests, the enforceability of this waiver-of-recourse clause is dubious).
[Update: A thought that just rolled around: One might read "willfully" in Article 13(a) to require specific intent (again, what the Court has done with § 241 to avoid vagueness concerns). That is, requiring a finding that Sterling not only specifically intended to make those statements (he did), but specifically intended to make them so as to be prejudicial or detrimental to the league. If that is what willfully does, termination of ownership may become tougher. Otherwise, any little violation of any rule could become a basis for termination.]
Finally, it will be interesting to see how the owners approach termination of ownership. Typically, terminating a franchise transfers control to the league, under Article 14A(c). But the media seems to be talking in terms of the owners giving Sterling an opportunity to sell the team outright to some outside owner. While not specifically provided for, that might be a potential negotiated resolution.
Marriage, religion, and good (and bad) arguments
A § 1983 action was filed Monday in the Western District of North Carolina, challenging North Carolina's prohibition on marriage equality. What is interesting here is that the plaintiffs include the General Synod of the United Church of Christ and a number of clergy of different faiths; they argue that state law violates Free Exercise by prohibiting them, under penalty of criminal prosecution, from performing religious same-sex marriage ceremonies that their religious teaching approves.
Proponents of marriage equality have responded to religious objections by emphasizing the difference between secular and religious marriage--that requiring the state to recognize same-sex marriages (under the Fourteenth Amendment) does not obligate religious institutions to recognize or solemnize those marriages, to the extent it would contradict that religion's teaching. The plaintiffs here allege the opposite--that North Carolina, in prohibiting same-sex secular marriages, is prohibiting religious institutions from recognizing or solemnizing same-sex marriages where it is consistent with that religion's teaching.
While state legislatures enact a lot of blatantly unconstitutional laws, a law imposing criminal sanctions on clergy performing a sacrament seems way beyond the pale. But is that really what is going on here?Paragraphs 91a and 91b of the Complaint quote the relevant statutory provisions, which refer to any "minister, officer, or other person authorized to solemnize a marriage under the laws of this State" performing a marriage for a couple that does not present a valid marriage license (presumably a different provision prohibits issuance of a marriage license to a same-sex couple). It seems to me the appropriate reading of that language is that it only prohibits ministers and others from performing a marriage ceremony that requires a license from the state--in other words, a secular marriage that would be recognized by and binding in the state. But that does not extend to purely religious marriages--I do not need a marriage license from the state to obtain a Jewish marriage, only a ketubah. In addition, the language "minister, officer, or other person" includes clergy as well as non-clergy who perform only secular marriages (judges, notary publics). This suggests that the prohibition is on performing secular marriages, not religious ones, since secular marriages are the only things the people listed in the statute have in common. On this reading, there is no First Amendment problem, because state law does not, in fact, prohibit clergy from engaging in any purely religious ceremonies or otherwise prohibit anyone from practicing their religion.
Alternatively, perhaps the church and clergy plaintiffs are arguing that the state is unconstitutionally depriving these religious ceremonies of legal effect, meaning the state must recognize any marriage performed by clergy whose religion would recognize that marriage. But that seems such an obvious Establishment problem. And ¶ 106 states the claim as clergy being "prohibited under threat of criminal prosecution from performing any such religious ceremonies" and congregants being "prohibited from becoming married in the tradition of their respective faiths," all suggesting that it is only the religious element being challenged here.
So why raise this claim? Well, it allowed at least one commentator to seize on the case and rail about religious hypocrisy, so there is a political and rhetorical benefit. But when there are (in my, and every lower court's, opinions) so many good arguments to make as to why these laws violate the Fourteenth Amendment, why reach out for a bad one based on an unrealistic statutory reading?
Update: The point of this post was to consider the constitutional validity of one particular claim in this lawsuit. It was not to have a debate about theology and whether SSM is consistent with the will of god, a debate I am not competentto have here. There are many internet fora for such discussions; this post is not one of them. Please refrain from posting comments arguing such issues. I will continue removing them, which gets old quickly. At some point I simply will have to close comments, which I hate to do, since there are many relevant points to be made on the actual subject of the post.
Monday, April 28, 2014
People everywhere are looking for ways to protest the racist comments allegedly made by Los Angeles Clippers owner Donald Sterling. Clippers players used a silent pre-game protest, leaving their warm-up jackets on the floor at halfcourt and warming up with their shirts inside-out (hiding the "Clippers" logo). Two Golden State fans got creative with posters. And Los Angeles Dodgers outfielder Matt Kemp, who was mentioned in the telephone conversation between Sterling and his girlfriend as someone who was OK to bring to games because he is of mixed race and ethnicity, used Michael Jackson's "Black or White" as the music when he came to the plate in Sunday's game. And some companies are now withdrawing from sponsorship deals with the Clippers.
It has become commonplace to protest high-level business people by economically targeting the businesses with which they are associated, by refusing to invest, work at, or shop at these companies. These include attempted or limited boycotts--see Chick-Fil-A or, going back further, Domino's Pizza--or threatened targeting with the hope of inciting change--see the ouster of RadiumOne's CEO following his guilty plea on misdemeanor domestic violence charges or Mozilla firing the CEO who supported Prop 8). Whether such efforts are effective, they have come to be seen as a strong means of political expression if not change.
For all that I have argued for the intimate connection between sport and free expression, however, it is ironic that those expressive weapons cannot work with respect to professional sports.
The first problem is the collective nature of leagues such as the NBA. Donald Sterling benefits from everything that happens as to every team in the league, not just what happens to the Clippers. He benefitted from Warriors fans who attended the game in Oakland on Sunday, since visiting teams receive a percentage of gate. He benefitted from every basketball fan of every team who watched any playoff game on television, because teams share revenue earned from the league's massive broadcast deals--that includes not only the Clippers-Warriors game, but all three games played yesterday. It is not enough to target the Clippers, in other words; it would take a massive fan movement against the NBA as a whole.
A second problem is the emotional connection and loyalty that fans feel to their teams. Clippers fans do not want to entirely abandon the team, because they want to see "their" team succeed. And that is not fungible--I can get a chicken sandwich from a lot of places, but I cannot just shift my team loyalties overnight. Moreover, fan loyalty runs to the players who represent them on the court, not to the owner in the background. And it still is about the league as a whole, not one team. Fans of the Warriors are not going to abandon their loyalties to their players and teams, and their desire to celebrate a championship, because the owner of the opposing team is a racist. Nor are the fans of the other playoff teams not currently playing the Clippers, who similarly want their teams to win and do not care about the racist owner of a team other than their beloved franchise. Even fans without another rooting interest are in a bind; the easy move is to root against the Clippers so Sterling does not enjoy a championship and to stop watching games. But that means rooting against the players who also want that success, which somehow seems unfair.
A third problem is that the players are unable to vote with their feet by seeking employment elsewhere, at least not right now. They want to win a championship right now--it is bound up in who they are and what they do, and the opportunity does not come around very often. To walk away from that opportunity in protest hurts them more than it hurts Sterling (who still profits from being part of the NBA money-printing aparatus). It is why Clippers players reportedly only briefly considered, then rejected, forfeiting Sunday's game. Again, it would take league-wide action--every team refusing to play until the NBA takes action against Sterling. And while the NBAPA is trying to get involved in the matter, I see no way that such a collective walkout is in the offing (not to mention whether it is even legal under the NLRA)--again, players must jump at the opportunity to win a championship, because it may not come around again.
Update: I forgot the most important point in all of this, so I'll add it here: The most obvious way for Clippers fans to express their anti-Sterling viewpoints without having to stop supporting their team is to show up with signs and clothes and chants doing just that. This doesn't change the team's ownership or anything, but it is the best outlet for fan expression. But this raises an important issue: Will the Clippers and/or the NBA try to control what fans say about Sterling or how they say it? On one hand, I believe Staples Center (where the Clippers play) is privately owned, so the First Amendment is not in play and fans are at the mercy of the arena's owners. Most pro teams are look to stop speech criticial of ownership when they can. On the other hand, both would take an overwhelming PR hit for censoring anti-Sterling speech at this point, so they might actually allow fans to get away with more than they ordinarily would in a situation that had not so boiled over.
Sunday, April 27, 2014
Why I have spent so much time arguing about fan speech and stadiums as public forums--because it allows expression such as this. But I wonder two things: 1) Did ABC show this or did the NBAorder them not to? 2) Would the Warriors/the arena have taken the signs were the wave of public opinion not running so overwhelmingly against Sterling?