Monday, November 10, 2014

Flag burning?

Is a flag-burning amendment on the Republican congressional agenda? I have not heard anyone talking about it, but recent history suggests it is inevitable. The last time the Republicans controlled both houses, in the 109th Congress (2005-07), a proposal passed the House and failed the Senate by one vote. [Ed: A proposal was introduced in one house or the other every Congress from the Gingrich Revolution until the Democrats regained control in 2009]. Republicans will hold around 244 seats in the House and 52 or 53 (depending on the Louisiana run-off) in the Senate. With likely defections from Democrats who do not want to vote against such an amendment, the numbers would seem to be there.

Is this something that Republicans are going to expend time and energy on? Is it likely to pass?

Posted by Howard Wasserman on November 10, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Sunday, November 09, 2014

Sunday question

A former student just sent me the Columbia Law Revue video of a civ pro parody of Truly, Madly, Deeply. It's two years old at this point and I had not watched in awhile. One of the lines in it was "I'll play Neff's lawyer, fuck you like Pennoyer." This is a great line, because beyond the double entendre is the fact that Neff's lawyer, Mitchell, did fuck Pennoyer--Mitchell got the property off the default judgment against Neff and sold it to Pennoyer, who of course had to give it back to Neff. Now Pennoyer turned out ok--two-term governor of Oregon and mayor of Portland--but he did get screwed.

So here is the question for a weekend: Who in the entire 1L canon was screwed the worst? My sympathies are with Pennoyer and with Sister Antillico.

Others?

Posted by Howard Wasserman on November 9, 2014 at 10:42 AM in Howard Wasserman, Life of Law Schools | Permalink | Comments (17)

Friday, November 07, 2014

Bad Judge

No, not Judge Sutton (although, timing).

NBC canceled the show Bad Judge last week, because, by all reports no one was watching and the show was, well, worse than the judge. I never watched it because I could tell from previews that it was going to depict thoroughly illegal, improper, and unethical behavior as "heroic" and it would just drive me nuts.

But the Florida Association for Women Lawyers found the show even more objectionable; the group had sent a letter to NBC last month calling on it to cancel the show. It argued that the show "depicts a female judge as unethical, lazy, crude, hyper-sexualized, and unfit to hold such an esteemed position of power" and thus is "damaging to women in the legal profession." Fair enough, I suppose, although there have been shows and movies showing judges behaving similarly badly (if not necessarily sexually).

Unfortunately, the letter completely loses it near the end, arguing that the show is

dangerous to the extent those who hold preconceived notions about women judges will find their sexist beliefs reaffirmed. A misogynist who believes that women in power cannot control their sexuality, their bodies and their professional or personal conduct would have their views endorsed by this show.

It compared the show to All in the Family* for similarly having a leading character exhibit and express hateful views that confirm the beliefs of viewers holding similar hateful attitudes. Of course, this show is hyperbole (poorly done, but nonetheless) and Archie Bunker was the butt of the joke, not the heroic model to be emulated. So the letter is relying on the old "people are too stupid to get it" argument, a uniquely bad basis for restricting speech.

* Which, needless to say, will be the first, last, and only time anyone ever will compare these two programs.

But don't worry. Better Call Saul is coming soon.

Posted by Howard Wasserman on November 7, 2014 at 09:01 AM in Culture, First Amendment, Howard Wasserman | Permalink | Comments (3)

Thursday, November 06, 2014

Here's your circuit split on marriage equality

A 2-1 decision from the Sixth Circuit, authored by Judge Sutton, with Judge Daughtrey in dissent. Media reports indicate the focus is on respecting the will of the voters and the state power to define marriage.

The Sixth Circuit remains majority Republican appointees (all by one of the Bushes), to the extent such crude measures tell us anything. So en banc seems unlikely, unless even Republican-appointed judges do not want to be on the wrong side of this. Still, it appears this is now teed-up for SCOTUS to resolve later this term.

Perhaps more later. Update: Well, the media reports are correct. Sutton's lengthy introduction, before the analysis: "And all come down to the same question: Who decides? Is this a matter that the National Constitution commits to resolution by the federal courts or leaves to the less expedient, but usually reliable, work of the state democratic processes?"

Sutton did make two cute rhetorical moves with Loving. First, he insisted that the Court assumed marriage only encompassed opposite-sex unions, since the Court did not say differently and because the couple in Loving where not same-sex. Second is this: "Loving addressed, and rightly corrected, an unconstitutional eligibility requirement for marriage; it did not create a new definition of marriage." But this seems too clever by a half--all definitions of a thing are based on eligibility requirements for the definition of that thing. Is Sutton really suggesting that Loving would have come out differently if, instead of the law saying "If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony," it said "marriage shall only be between two white persons or two black persons"?

Say this: Sutton hit every possible argument and issue surrounding marriage equality (although he soft-pedaled his discussion of the "marriage is for men and the women they accidentally knock-up" argument). So the opinion presents a good vehicle for thorough consideration (and reversal).

Finally, a question: Judge Daughtrey in her dissent described at length the facts underlying the claim by the Michigan plaintiffs. Under Michigan law, unmarried couples cannot jointly adopt, which means only one parent is the legal parent of the child and there is no guarantee that, if the legal parent dies, the child will be allowed to stay with the other, non-legal parent. But that imposes huge financial costs on the state, if it has to bring that child into the foster care system, not to mention the human and social cost to the child and the entire system. But if the ban on same-sex marriage imposes such costs, doesn't that render it irrational, if not based on animus?

 

Posted by Howard Wasserman on November 6, 2014 at 04:55 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Seeeking balance in uncontested elections

It seems I am not alone in my confusion and concern about states not placing unopposed candidates on the ballots, as this list of stories suggests (H/T: My colleague Tom Baker). In Oregon two years ago, people were angry about having to pay to print GOP primary ballots with only one name. And there was an interesting controversy in Indiana about three years ago. In 2010, the state passed a law removing unopposed candidates for municipal office from the ballot. In 2011, several local bodies insisted on printing ballots that included unopposed candidates, even though it then required that two additional polling places be opened, at public cost. In early 2012, a bill to repeal the 2010 law unanimously passed the state Senate, although I have not been able to find out what happened after that.

Weighing against those cost considerations include the risk of voter enthusiasm, the dampening of interest (and thus willingness to vote) of supporters of the unopposed candidate, and possible down-ballot effects. On the other hand, the cost-saving concerns disappear when the ballots also contain candidates for national and statewide office and all those polling places are open anyway. For example, Miami-Dade County had to print ballots containing all the statewide offices, plus US House candidates, for the other districts that are within the county (for example, Joe Garcia's district) and the polling places within the district had to be opened. Similarly, the polling places within my district were all open and people within my district had to have ballots with all those statewide offices. Would it have really cost that much more money to include the US House race on those ballots?

None of these is of constitutional magnitude, of course, just of policy wisdom.

Posted by Howard Wasserman on November 6, 2014 at 02:04 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, November 03, 2014

Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"

The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015.  

The conference seeks to address the following topics:

  • Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
  • The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
  • Legal obligations and accommodations of religious health care organizations
  • Protection (or not) of health professional conscience
  • Health care decision-making for minors with religious parents
  • Religious objection v. discriminatory behavior
  • Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
  • “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
  • Abortion policy, including clinic protests and protections, and its relationship to religion
  • Embryonic stem cell policy and its relationship to religion
  • End-of-life care, including assisted suicide, and its relationship to religion
  • Complicity as both a legal and religious concept
  • Comparative analysis, e.g., between professions, health care practices, countries, etc.

Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.

For a full conference description, including the call for abstracts and registration information, please visit our website.

Posted by Howard Wasserman on November 3, 2014 at 03:41 PM in Article Spotlight, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

Saturday, November 01, 2014

Rotations

Thanks to our October visitors, who may be sticking around a few more days to say good-bye.

For November, we welcome back Michael Helfand (Pepperdine), Adam Kolber (Brooklyn), Jake Linford (Florida State), Kirsten Nussbaumer (Stanford), and Margaret Ryznar (Indiana-Bloomington). And Richard Re (UCLA) continues his semester with us.

Posted by Howard Wasserman on November 1, 2014 at 09:31 AM in Blogging, Housekeeping, Howard Wasserman | Permalink | Comments (0)

Friday, October 31, 2014

Popular votes

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States. But I just cast a ballot in Florida that did not have a slot for U.S. House on it. The representative for my district is Ileana Ros-Lehtinen, who ran unopposed with no pre-qualified possible write-in candidates. Under Florida Statutes § 101.151(b)(7), "[e]xcept for justices or judges seeking retention, the names of unopposed candidates shall not appear on the general election ballot. Each unopposed candidate shall be deemed to have voted for himself or herself."

Administratively, this makes sense, I suppose. Why print hundreds of thousands of ballots when it is only going to take one ballot to elect the candidate? And the states do control the time, place, and manner of holding House elections, so Florida can pursue such administrative choices and conveniences when the outcome is determined. Nevertheless, there seems something odd about the state essentially declaring as the winner of a popular election someone who never actually stood before her constituency for consideration at the relevant moment, which is when they are casting ballots. It also strips voters (inclduing me, I will confess) of the opportunity to use the ballot for expressive purposes, perhaps by leaving that space blank. While leaving the spot blank means I still would not have cast a vote in this contest, it would have been my choice not to cast that vote, not the state's.* And if other people did the same thing, there might be meaning to the difference between the votes Ros-Lehtinen received and the total votes cast by people in this district.

* I recognize, of course, that the Supreme Court has made clear that ballots are not intended to serve expressive purposes.

Finally, I presume that, while Florida is a strange place with strange laws, it is not alone in this practice.

Posted by Howard Wasserman on October 31, 2014 at 03:01 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Tenure standards and recruiting

A new question for this ongoing exchange: If a school (not Harvard/Yale/Stanford) were to take the lead and up its tenure standard to 5-6 articles in five years (from its current 2-3 in the same period), how would that affect entry-level recruiting? Would people be scared off? Would it send a signal of scholarly commitment? Would it make absolutely no difference? Some other option?

Posted by Howard Wasserman on October 31, 2014 at 10:46 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (10)

Thursday, October 30, 2014

Scholarly productivity, generational change, and empirical data

Following on my earlier post and Orin's follow-up: A colleague* shares this 1998 article by Deborah Merritt (Ohio State). The focus of the study is the connection between excellence in scholarship and in teaching.** But the piece studied faculty hired between 1986-90 and that cohort's scholarly productivity from the time of hiring until Summer 1996. The tables are worth a look. For example, she found that 30 % of that cohort had published two or fewer articles, while 11 % had published ten articles or more. The largest (a total of 47 %) was clustered around 2-4 articles.

    * Who also chides me for not bringing data to bear in my original post.

    ** For what it is worth, she did not find them inversely correlated.

But building on Orin's theme of generational change, the study seems dated. The interesting question is how much has changed if we were to run a similar study of people who began teaching in the last 10-15 years. My pure speculation is that we would see a slight upward shift, with that 30 % mark around six-seven articles or fewer.

I think of the late '80s as an important transition point, when a broader number and type of law schools began shifting to a focus on scholarship and began hiring faculty with an interest in publishing and imposing an obligation to do so. But the past 10-15 years have seen a second generational change, expanding on the broad scholarly commitment that took shape in the period that Merritt studied. In this latter period, we have seen the rise of VAPs and fellowships, the rise of PhDs, and the rise of people writing while clerking knowing they need it to get a teaching job --all of which contribute to a greater quantity of scholarship at the outset by people trying to get a job, which, for some percentage of people, will carry on throughout their careers.

Update: A reader points me to this study by Tracey George and Albert Yoon on the hiring process (before the bottom fell out of the market) and candidate details and qualifications, including pre-hiring pubs.

Posted by Howard Wasserman on October 30, 2014 at 09:31 AM in Howard Wasserman, Life of Law Schools, Teaching Law | Permalink | Comments (0)

Wednesday, October 29, 2014

Kentucky Law Journal: Exclusive Submission Window

The following was forwarded by Josh Douglas at Kentucky. If you have an August piece that did not place or you want to get a head start on February:
 
The Kentucky Law Journal is opening an exclusive submission window for articles until November 14, 2014, at 5:00 PM EDT. All papers submitted during this window will be reviewed for publication in Volume 103, Issue 4, set for publication in Spring 2015. By submitting your article during this window, you agree to accept a publication offer, should one be extended. This window is available for articles on all topics, including articles previously submitted to the Kentucky Law Journal, though resubmission will be required. Submissions should be between 15,000 and 25,000 words with citations meeting the requirements of The Bluebook.
 
Submissions should be sent via email to chrisheld.klj@gmail.com. Please include your article, a copy of your C.V. and a short abstract or cover letter.

Posted by Howard Wasserman on October 29, 2014 at 01:03 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Tenure's "New Normal"

Building on the recent conversations about productivity and tenure standards: An untenured emailer asks: What is the "new normal" for tenure, whether as a matter of written standards or the "common law" of tenure? And, as I asked in Marcia's post, are schools upping the numbers, either in writing or in common law? Are we increasing the pressure on pre-tenured faculty, both by raising the bar and through the uncertainty? Relatedly, if you were writing tenure standards from scratch in the current writing and publishing environment, in the current scholarly environment, what would you adopt as the tenure standard?

The standard at FIU is three substantial scholarly works either published or accepted for publication at the beginning of the sixth year. That standard was adopted before I got here, although I imagine it was consistent with other schools at the time. As for creating a new standard, it seems to me that one article per year (and I agree with Orin that a new prawf should try to send something out in February of Year One) is more than reasonable, meaning a more approrpiate statutory minimum might be five pieces and a productive tenure applicant would be be in the 5-10 range. I would add that, to the extent coming in off a VAP is the new normal, many faculty would "count" anything written during the VAP but published after starting on the tenure track.*

    * So going Orin one better, someone coming off a VAP might be encouraged to hold that final VAP piece for the August cycle, which allows her to begin at her new school by immediately placing a piece.

Thoughts?

Posted by Howard Wasserman on October 29, 2014 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (21)

Tuesday, October 28, 2014

JOTWELL: Vladeck on Richman & Reynolds on the appellate court crisis

The new JOTWELL Courts Law essay comes from our own Steven Vladeck, reviewing William M. Richman & Willliam L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (Oxford 2013).

Posted by Howard Wasserman on October 28, 2014 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Friday, October 24, 2014

The Eleventh Amendment is a pain

This lawsuit, filed today, alleges that the NCAA violates the Fair Labor Standards Act by not paying student-athletes (who, it alleges, are akin to work-study students). Named defendants are the NCAA and every Division I school, many of which are state schools; the suit seeks unpaid wages and an injunction requiring the schools to stop violating the FLSA (meaning that students be paid wages going forward). The problem: States cannot be sued by name under the FLSA, which is a Commerce Clause enactment on which Congress cannot abrogate sovereign immunity. And Ex Parte Young is not available for recovering the unpaid wages, so the plaintiff cannot retrench and sue the president of each state university.

Without even getting into the FLSA merits, this is a case in which the Eleventh Amendment is genuinely a barrier to relief. The plaintiffs' best move is to try to proceed with their claims against the private schools, then hope the Department of Labor will be persuaded by the arguments and will jump into the case.

Posted by Howard Wasserman on October 24, 2014 at 08:36 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)

Thursday, October 23, 2014

More scholarly outlets?

Zak started a conversation and Bridget Crawford asks a follow-up: When did it become the case that one post-law school is not sufficient to make one a viable candidate and that 2-3 post-school pieces are the norm? One possibility (raised by Bridget and Glenn Cohen in the comments to Zak's post) is the rise of the VAP and the time and writing expectations it provides.

I want to connect it several changes in scholarly publishing (which may be complementary to the VAP explanation):

   1) There are more outlets for scholarship. Most schools have several journals and the number seems to be rising. The number of speciality journals has increased, including "law-and-policy" journals that publish the same type of public-law stuff that already plays well in general law reviews.

   2) The "typical" article is shorter than it was 10-15 years ago, prompted by the guidelines adopted by several of the t14 reviews. The typical piece is 15-20k words, as opposed to 25-30k. This means, I suppose, that you can write two articles in roughly the time you used to be able to write one.

   3) The rise of on-line supplements and similar outlets for shorter scholarship provides an incentive and opportunity to publish one big piece and one small piece in a year.

I am not looking at FAR forms this year, so I do not know if any of these explanations is empirically supported. But I do know that all 3 have affected how and what I write. So it makes sense that they also might affect what VAPs and others planning for the market do (especially if they are getting advice from people in roughly the same position as me).

Posted by Howard Wasserman on October 23, 2014 at 11:13 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Tuesday, October 21, 2014

Another voice on classroom technology

From Clay Shirky, a professor media studies at NYU. I especially appreciate the point that student distraction by technology is a biological inevitably; as he writes, "[h]umans are incapable of ignoring surprising new information in our visual field, an effect that is strongest when the visual cue is slightly above and beside the area we’re focusing on." This is important on two levels--one personal, one professial First, it gives lie to the "if you'd be more interesting in the classroom, they'd pay more attention" trope. Second, I can use it to explain to my wife why my eyes always move to watch sports on a tv screen in a restaurant.

Posted by Howard Wasserman on October 21, 2014 at 03:47 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Subject matter jurisdiction crossword

From Spencer Weber Waller (Loyola-Chicago): The Subject Matter Jurisdiction crossword puzzle.

The answer to 12-Down is "thetutor" (Spencer's TA); the answer to 15-Down is "Locke" (that section's torts professor). New York Times rules apply, so an answer can be more than one word. Have at it.

Posted by Howard Wasserman on October 21, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, October 20, 2014

Misunderstanding Rule 11

Via Slate, the lame-duck attorney general of Arizona cited FRCP 11 sanctions as a basis for no longer defending (or appealing, although that would be covered by FRAP 38) same-sex marriage bans. The argument, it seems, is that defending the bans (or appealing) would be seen as imposing unnecessary delay or expense or as a frivolous argument not warranted by existing law. Mark Stern at Slate and Josh Blackman both see this more as a political move. I want to suggest it must be, because the argument is wrong legally.

First, FRCP 11(b)(1) only prohibits actions done for the purpose of causing delay or expense. It is surely a legitimate purpose for government to obtain a definitive and binding Supreme Court ruling on an issue of constitutional import.

Second, since SCOTUS has not spoken on the issue, it cannot be said that Arizona's constitutional arguments, even if a clear loser in the Ninth Circuit, are frivolous before SCOTUS. As Josh points out, neither SCOTUS's undoing of stays or cert. denials are binding precedent. And the state always can pose an argument for "modifying, or reversing existing law," perhaps by seeking en banc Ninth Circuit review. Or the state can skip unfriendly Ninth Circuit law by seeking cert before the court of appeals judgment. But any of those options requires that the state first defend and appeal to the Ninth Circuit. Surely FRCP 11 cannot be read to cut-off such litigation strategies.

Finally, let's be serious. When was the last time the government was sanctioned for defending the constitutional validity of one of its laws?

Posted by Howard Wasserman on October 20, 2014 at 06:07 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (3)

Whose job is it, FRE edition

I finally got around to reading the argument in Warger v. Schauers, dealing with whether FRE 606(b) prohibits inquiry into jury deliberations in trying to show that a juror was untruthful during voir dire. During the argument, counsel for respondent (the defendant, who won at trial) repeatedly argued that, if the Court believes it would be better to allow juror testimony on such claims, then it is a job for Congress to change the rule. Counsel repeated this point several times, always mentioning Congress as the source of any change.

But it is not Congress's job, at least not primarily--it is the Court's job, under the Rules Enabling Act. It is true that the original 606(b) from 1973 (it was amended once, in 2006) was affirmatively enacted by Congress as part of the original Federal Rules of Evidence. But since then, changes to the FRE follow the same procedure as changes to the FRCP or FRCrP, with the advisory committees and the Court taking the lead and Congress merely exercising a power to disapprove a submitted rule. And while Congress can always amend the rules through ordinary legislation, that is not the primary or presumptive way to make a change. When litigants talk about the meaning of the FRCP or the need for amendment, it is always discussed primarily in terms of the Court and the committees. I am wondering why it should be different with the FRE.

Posted by Howard Wasserman on October 20, 2014 at 01:56 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Sunday, October 19, 2014

Audio at Oyez

Does anyone know why Oyez no longer offers audio of SCOTUS arguments with the transcript embedded into the audio (Compare this audio from last term with one from this term)? It was a great feature that made reviewing arguments easier and more engaging. True, you get the same effect by reading the transcript while listening to the recording. But I am curious why the site has stopped using a truly unique and beneficial feature.

Posted by Howard Wasserman on October 19, 2014 at 10:31 AM in Howard Wasserman | Permalink | Comments (2)

Friday, October 17, 2014

Giving reasons

Richard's post on the problems created in Dart Cherokee by the court of appeals failure to explain its reasoning and Gerard Magliocca's CoOp post on recent examples of SCOTUS issuing procedural orders affecting constitutional litigation without explanation share a common theme--to what extent do courts, particularly reviewing courts, have an obligation to explain themselves. That obligation might be to reviewing courts, lower courts, current litigants, future litigants, or the public at large.

The problem is that the desire to provide explanation potentially butts against case-management concerns and the difficulty (if not impossibility) of providing reasoned explanations for every decision, including procedural decisions such as declination of discretionary review (the issue in Dart), cert. denials, and stays (or releases of stays) pending review. Courts do not have the time or resources to provide full-on reasons for every decision, particularly where reasons require consensus on a multi-member court. Then we have to figure out whether less-than-complete reasoning is better or worse than no reasoning at all. And we potentially fall back into the debates of the late '90s and early '00s about non-precedential opinions and the problems they create.

Importantly, neither Richard nor Gerard argues that courts should do this in every case, but only special cases--where failing to explain wuld effectively insulate a decision from review or the issues are signficant enough that special guidance is needed. I would reiterate that the decisions prompting the discussion involve particular procedural concerns rather than the ultimate merits.

Posted by Howard Wasserman on October 17, 2014 at 11:48 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (2)

Tuesday, October 14, 2014

Supremacy and uniformity

I generally have been understanding, if not sympathetic, to the Court's odd behavior with respect to marriage equality of late. I understood the underlying idea that the Court need not act if the circuits are taking care of business. And I am ok with the Court dropping hints in one direction (as it arguably did in denying the five cases at the beginning of the term). But two things give me some pause.

The first is this post by Mike Dorf arguing that the Court's refusal to get involved is not a problem at the inter-circuit level, but at intra-state level, where a federal court of appeals and state high court might disagree, creating some confusion. He offers an interesting example: A federal circuit court recognizes the right to marriage equality and the executive responds by ordering clerks to issue marriage licenses to same-sex couples. But then a spousal privilege dispute arises in a state proceeding and the state supreme court refuses to recognize the privilege because, in its view, same-sex marriages are not constitutionally required. (The case has an added wrinkle--the state supreme court also disregarding the state executive's decision to issue the marriage license, which ought to be controlling). Nevertheless, it illustrates the multiple contexts and postures in which these issues arise.

The second was re-reading the justiciability discussion in Windsor in preparation for it (and Hollingsworth) in Fed Courts this week. I had forgotten how much Kennedy emphasized "the Supreme Court's primary role in determining the constitutionality of a law" and the Court's duty to address its constitutionality (what Scalia in dissent rejected as a "jaw-dropping . . . assertion of judicial supremacy"). Despite that rhetoric, the Court now seems in far less of a rush to perform that role.

Posted by Howard Wasserman on October 14, 2014 at 05:17 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

JOTWELL: Epstein on Black & Spriggs on precedent

The new JOTWELL Courts Law essay comes from Lee Epstein (Wash. U.), reviewing Ryan C. Black & James F. Spriggs II, The Citation and Depreciation of U.S. Supreme Court Precedent (J. Empirical Legal Stud.), which examines how the use of precedent changes and depreciates over time.

Posted by Howard Wasserman on October 14, 2014 at 10:11 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, October 13, 2014

First Annual Civil Procedure Workshop

We are pleased to announce the First Annual Civil Procedure Workshop, to be co-hosted by Seattle University School of Law, the University of Washington School of Law, and the University of Arizona Rogers College of Law. The Workshop will be held at Seattle University on July 16-17, 2015. Future conferences will take place at the University of Washington and the University of Arizona.

The Workshop will give both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. We hope the Workshop will strengthen the study of procedure as an academic discipline. By assembling annually, colleagues will have regular opportunities to meet to exchange ideas, to collaborate, and to participate in a national conversation on civil procedure scholarship.

Scholars whose papers are selected will present their work in small panel sessions. A senior scholar will moderate each panel and lead the commentary. Confirmed participants for 2015 include Stephen Burbank, Scott Dodson, Myriam Gilles, Suzette Malveaux, Judith Resnik, Suja Thomas, and Tobias Barrington Wolff.
We welcome all civil procedure scholars to attend this Workshop. Those wishing to present a paper for discussion in the Workshop should submit a two-page abstract by December 15, 2014. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for ten years or fewer. Workshop organizers will select papers to be presented by January 31, 2015. Please send all submissions or related questions to Brooke Coleman.

The Workshop will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.

Feel free to contact us with questions:

Brooke Coleman (Seattle), colemanb@seattleu.edu
Liz Porter (UW), egporter@uw.edu
Dave Marcus (Arizona), dmarcus@email.arizona.edu

Posted by Howard Wasserman on October 13, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Sunday, October 12, 2014

Too old to root?

My wife grew up in Baltimore, so our family is rooting for the Orioles in the ongoing American League Championship Series--as I told a student, I now am an Orioles Fan-in-Law. And it is utterly exhausting to care this much about a team and to so badly want it to win.

So my question: Does there come a point when we are old to root passionately for a team? Mind you, I am not talkng about caring about sports--I regularly watch (and obviously write about) baseball and other sports and it always will remain a pleasure.* I am talking about living and dying with a particular team, the way I did as a kid or even a younger adult. I was catatonic for days after the Cubs blew the 2003 NLCS and my wife understood. But 11 years later, in a series that it does not even really involve "my team," I cannot work up the energy to be sad or worried about losing. And it even is hard for me to watch, because it feels like too much work to care.

    * Although the NFL and I are on a break right now, my response to domestic violence and the gladiatorial nature of the game.

Worse: Maybe the dirty secret is that I am glad and take relief that the Cubs (and, to a lesser extent, Northwestern, my college rooting interest) regularly stink, because it saves me the pain of disappointment when they (inevitably) lose.

Now get off my lawn.

Posted by Howard Wasserman on October 12, 2014 at 11:56 AM in Howard Wasserman, Sports | Permalink | Comments (5)

Friday, October 10, 2014

More on prosyletizing police

On Wednesday, I discussed a lawsuit brought by an Indiana woman who alleges that a police officer, at the end of a traffic stop, asked her about accepting Jesus as her lord and savior and gave her literature about an area Baptist ministry.

In my Civil Rights class on Thursday, we had an extended discussion of the case (the timing of the suit was perfect--we were finishing Qualified Immunity) that drove home for me the real chance that the officer will be able to successfully argue that the right was not clearly established. There probably is no case law on factual point--a police officer distributing religious material during a traffic stop without an explicit threat or punishment. Cases about proselytizing teachers are analogous (the complaint repeatedly alleges that the plaintiff did not feel free to leave, setting up a similar captive-audience situation combined with an implicit threat of punishment), but perhaps distinguishable in context. While there likely were department regs setting out proper conduct during a traffic stop, there likely was not an express prohibition on proselytizing. And there is a question of whether the stop was still ongoing. Is this the equivalent of selling foster children into slavery (Judge Posner's favorite example), so obvious that general anti-establishment principles are sufficient to clearly establish? Can we say the officer was "plainly incompetent" in believing it was constitutionally permissible to do this?

Update: On speaking with a colleague, I may be slightly more optimistic, as he points to two more avenues through which this right might be clearly established. First, officers are trained and should know that they cannot exceed the scope of a traffic stop in a way that is explicitly or implicitly coercive--to ask the driver on a date, to ask the driver for money, to sell their daughter's girl scout cookies, or to discuss who the driver is going to vote for in the next sheriff election; what the officer did here is not different in any meaningful way. Second, officers should know generally that they cannot stand in the public square and proselytize while in uniform and on-duty; that should put them on notice that they cannot do it during a traffic stop. Again, it all involves moving from general principles, so much depends on how willing the court is to see those general principles as establishing broad obligations of which a reasonable officer should have been aware.

Ultimately, it may not matter, as my guess is the officer (indemnified and represented by the city) will settle, as the case is not worth much money. But it reflects just how difficult life can be for § 1983 plaintiffs.

Posted by Howard Wasserman on October 10, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, October 08, 2014

More fan crowd-funding

Fans of Ole Miss stormed the field following the team's win over Alabama (sorry, Paul) last weekend; the acts cost the school about $ 75,000--a $50,000 fine by the conference and about $ 25,000 to replace the goalposts and other damage to the field. Fans crowd-funded the total amount and more in a matter of hours. In our Catalyzing Fans paper, we considered fans raising money to pay an athlete's fine. 

This is an interesting move, although with two important distinctions. First, the fines/costs were the result of the fans' own conduct, so it makes sense for them to pay it. It does not raise the moral hazard problem of fans essentially indemnifying player misconduct; here, they were paying for their own misconduct. Second, the school was involved--fans contacted the athletic department about contributing and the school set-up a special site. But since Ole Miss (as opposed to the Cleveland Cavaliers) is a not-for-profit entity, the direct giving makes sense.

Posted by Howard Wasserman on October 8, 2014 at 03:04 PM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (0)

Clearly established?

Back in June, we learned that at least the Eighth Circuit believes the right to burn a flag is clearly established. I wonder what the Seventh Circuit will think of the right not to have a police officer proselytize and hand-out information about a church in the course of a traffic stop.

Posted by Howard Wasserman on October 8, 2014 at 01:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law Review Review | Permalink | Comments (0)

Tuesday, October 07, 2014

The politics of sports

Here is (somewhat lengthy) video of a Ferguson protest outside Busch Stadium in St. Lousi before last night's National League Division Series game between the Cardinals and Dodgers. One fan wears a Cardinals jersey with "I am Darren Wilson" on the back; many fans engage the protesters with some not-unexpected-but-unfortunate racist vitriol.

But this highlights my long-held point that sports and politics are inextricably mixed. The protesters picked an ideal forum: Millions of people watching, thousands of people milling about, and an event that touched on civic pride and heart--all to protest conditions and issues that call some of that pride into question, prompting some reactions that illustrate precisely why that pride should be questioned.

Posted by Howard Wasserman on October 7, 2014 at 12:10 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Sports | Permalink | Comments (0)

Monday, October 06, 2014

Is it unseemly for SCOTUS to wait? (Updated)

Calvin Massey tries to figure out why SCOTUS declined to take a marriage-equality case. One possibility he offered is that "the Court is just avoiding the issue, hoping that the circuit courts will do the job for them," a possibility Massey calls "unseemly."

But is it unseemly and, if so, why? One reason to have "One Supreme Court" is to ensure uniformity of federal law. But if that uniformity comes anyway, is it really necessary that SCOTUS speak (or, as Dahlia Lithwick put it, lead) on any particular issue? Is there anything inherently wrong with SCOTUS waiting for a circuit split or for a circuit to get it "wrong"? Especially when the denial of cert. drops such a big hint to lower courts (particularly the Sixth Circuit, which seemed, based on oral argument, to be most inclined to uphold a state ban) to fall in line or risk being reversed later in the term?

Update: Neil Siegel frames the denials in line with the halfway decision in Windsor, as a Bickelian Court deciding as little as possible while dropping hints to direct the further conversation. Pivoting off that, it shows that our understanding of Bickel and passive virtues must be court-specific. Whereas Bickel likely imagined leaving the national conversation to the political branches and outside the Article III judiciary, here, it is unlikely any states will be suddenly motivated to legislate marriage equality. Instead, the conversation that SCOTUS is encouraging is in the lower federal courts, tasked with reading tea leaves (in Windsor and now in the cert. denials) and moving the discussion forward.

But is that what Bickel had in mind? Certainly multiple regional districts and circuits allow more "national conversation" and evolution than one final-and-thus-infallible decision of one Supreme Court. But these decisions still are being made by the same body of unelected-and-unaccountable life-tenured federal judges, drawn from the same pool and sharing the same orientation as the members of SCOTUS. That seems a very different conversation from the one Bickel imagined in promoting, for example, standing (which applies to all federal courts).

Posted by Howard Wasserman on October 6, 2014 at 05:27 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

The many (too short) lives of Dan Markel

The just-completed Yom Kippur Holy Day is, in part, a day for thinking about death--our own and those of our friends and loved-ones who have passed away. So it was inevitable to think about Dan's before-his-time death. But the rabbi's sermon at Friday evening's Kol Nidre drove home the incredibly broad range of people and lives Dan touched and the serendipity of those often-intersecting lives. The rabbi and her husband were friends with Dan--all three had been Dorot Fellows in Israel and met several years ago at a Fellows reunion. So the rabbi spoke from the heart about the tragedy of losing their close friend in such a tragic way. And it just so happened that I was in the audience, someone who knew Dan from a different phase of his life.

Posted by Howard Wasserman on October 6, 2014 at 09:31 AM in Howard Wasserman | Permalink | Comments (0)

Thursday, October 02, 2014

The drawbacks of heightened expectations

The NFL has been raked over the coals recently for its (mis)handling several incidents of domestic violence by players. In some ways, this seems unfair, in that we seem to be asking the NFL to do more and do better with domestic violence than anyone else. Domestic abuse is a society-wide problem and no other institution--not the judiciary, not universities, not law enforcement--has not shown much more skill in understanding or handling the problem. In any event, why should professional sports leagues play any role (much less a special one) on the subject. It is not clear that there is a higher rate of domestic violence among professional athletes (it may depend on what the comparison is). And one could argue that teams and leagues should not care about players' off-field conduct, just as most employers don't care about what their employees do outside of work.

At another level, though, I wonder if it is fair to hold sports to a higher standard because of their history--a history that sports, leagues, and teams readily promote. Baseball regularly touts that it was ahead of society on integration--Jackie Robinson joined the Dodgers six years before Brown and two months before President Truman desegregated the military. The NBA has financially propped up the WNBA for almost twenty years, allowing for the longest-running professional teams-sports league. Creating athletic opportunities for women and girls is Title IX's most-visible achievement and what makes possible genuinely popular women's sporting events--University of Connecticut basketball, the US Women's National Soccer Team, etc.). NFL Commissioner Roger Goodell has made noise about the NFL being a moral leader; this is laughable (especially with Goodell as its head), but we should be able to take him at his word as to his intent, which means he bears the burden of figuring it out ahead of the curve.

So if sports and leagues have taken the lead in the past on some social issues and if they get much PR mileage out of that past, is it unreasonable to expect them to take the lead on this issue, when they clearly want to be involved? And if they fail so spectacularly, is it unreasonable to criticize them for that failure?

Posted by Howard Wasserman on October 2, 2014 at 09:31 AM in Current Affairs, Howard Wasserman, Sports | Permalink | Comments (1)

Tuesday, September 30, 2014

Balance of video

This piece in Sunday's Times offers a different perspective on the race to equip police officers with body cameras--they are law enforcement's response to increasingly ubiquitous amateur citizen videos, which the piece describes as "hav[ing] become part of the fabric of urban democracy." This turns the narrative somewhat on its head. Supporters of the right to record (including me) have generally argued that the citizen's right is essential in response to increasing police-controlled recording (through dash cams, street cameras, recorded station-house interviews, and other surveillance). As I put it once, citizen recording produces "a balance of power in which all sides can record most police-public encounters occurring on the street and in the stationhouse. Big Brother is watching the people, but the people are watching him."

But articles such as this one suggest that police see that balance as having shifted too far towards the public. Body cams--the latest technology--now are seen as a way for the government to restore that balance.

Posted by Howard Wasserman on September 30, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (0)

Monday, September 29, 2014

JOTWELL: Wasserman on Redish & Aronoff on judicial retention

I have the new Courts Law essay, reviewing Martin Redish (Northwestern) and Jennifer Aronoff's The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism. They argue that judicial life tenure is required as a matter of Due Process, where any other form of retention risks judges being influenced in their decisionmaking by concerns of how to keep their seats on the bench. I have taught for years that retention is the bigger deal than selection in terms of judicial independence (something my daughter also decided to ask about at dinner last night); they finally made the argument.

Posted by Howard Wasserman on September 29, 2014 at 10:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"

The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2014.  

The conference seeks to address the following topics:

  • Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
  • The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
  • Legal obligations and accommodations of religious health care organizations
  • Protection (or not) of health professional conscience
  • Health care decision-making for minors with religious parents
  • Religious objection v. discriminatory behavior
  • Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
  • “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
  • Abortion policy, including clinic protests and protections, and its relationship to religion
  • Embryonic stem cell policy and its relationship to religion
  • End-of-life care, including assisted suicide, and its relationship to religion
  • Complicity as both a legal and religious concept
  • Comparative analysis, e.g., between professions, health care practices, countries, etc.

Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.

For a full conference description, including the call for abstracts and registration information, please visit our website.

Posted by Howard Wasserman on September 29, 2014 at 09:31 AM in Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

Rotations

As September turns to October, our thanks to our September visitors--Seema, Irina, Richard, and Jennifer--for helping kick-off the new school year.

For the new month, we welcome a slate of returning GuestPrawfs: Mark Kende (Drake), Geoffrey Rapp (Toledo), Marcia McCormick (Saint Louis), Zak Kramer (Arizona State), Orin Kerr (GW), and David Orentlicher (Indiana-Indianapolis). [Update: And Richard Re (UCLA) will continue his extended visit with us]

Posted by Howard Wasserman on September 29, 2014 at 08:01 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Friday, September 26, 2014

Ah, censorship

Shudder to think how different Western Civilization would have been. (H/T: The Big Lead).

 

Python-Letter

Posted by Howard Wasserman on September 26, 2014 at 10:18 AM in Culture, Howard Wasserman | Permalink | Comments (0)

Tuesday, September 23, 2014

Teaching current events

Interesting piece in the Chronicle of Higher Ed. At my school, one of the categories on student evals is how we work current events into the discussion. I have used things from Ferguson in Evidence, notably in discussing character evidence and other acts. And I think the controversy around the non-hiring of Steven Salaita at Illinois may lend itself to some discussions of promissory estoppel (there have been some interesting on-line debates about whether he might have a good P/E/ claim). But I think that is as far as a law school class can go with current events, at least before things play out legally and outside of a small, niche seminar.

On a related note, we are working to start a program of monthly faculty talks/panels to discuss ongoing and current events with students and student organizations. Something different than a series of "teach-ins," it will be more a chance for faculty to share their work and to engage with students on hot topics.

Posted by Howard Wasserman on September 23, 2014 at 04:40 PM in Current Affairs, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Monday, September 22, 2014

Markel Memorial

Last Tuesday, Florida State University College of Law hosted a memorial service for Dan. Here is the program from the event, which included some very touching remarks from several colleagues from FSU and elsewhere, as well as one former and one current student. There is video of the event; I will provide the link as soon as I can.

Posted by Howard Wasserman on September 22, 2014 at 11:18 PM in Howard Wasserman | Permalink | Comments (0)

Stone on sex discrimination and professional sports

The following is by my colleague (and past GuestPrawf) Kerri Stone, responding to my post on how professional sports teams and leagues respond to sex discrimination.

The internet has most recently been ablaze with news of a lawsuit filed against the New York Mets by an ex-employee who claims that she was chastised and then fired due to her status as an unmarried pregnant woman. On the heels of other notorious stories of discrimination to come out of the sports world this past year, like Donald Sterling’s racist comments, Richie Incognito’s racially tinged bullying of a teammate, and the Atlanta Hawks’ general manager Danny Ferry taking an indefinite leave of absence after coming under fire for his racially-stereotyped comments about a player, this latest story has many clamoring for justice—whatever that will mean in this scenario.

Recently, my colleague, Howard Wasserman, blogged about various incidents of discrimination in the sports world, taking note of their wildly varying upshots and reactions generated. He asked whether we could “find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices,” and posited that factors that might be in play could include, among others, whether formal, legal action had been initiated, whether it is sexism or racism that is alleged, and whether video or audio recordings of the discriminatory sentiments exist. These observations are astute. I would add that the role of shame in these incidents has become central. Some years ago, I blogged about the role of shame in accomplishing the eradication of discrimination in a way that even the law could not, but I pointed out that the shame has to be public, even viral, in order to move most employers to act. From what we have seen in the sports world as of late, the ability of those involved or even of those who know about the discriminatory sentiments expressed by sports players, managers, and executives to stir up outrage on the part of the public appears to be central to whether or not those in a position to discipline or dismiss these individuals will act.

Title VII prohibits racial, sex-based, and other discrimination in the workplace. It is clear that while the statute’s goal is to eradicate the erosion of individuals’ terms, conditions, or privileges of employment because of discrimination, it is not supposed to function as a general civility code, requiring anyone to change the way they think, feel, or express themselves when that expression is not anchored to workplace-based harassment or deprivation. In other words, as the Supreme Court has put it, “discrimination in the air,” unmoored from some adverse action or campaign of workplace harassment, is not actionable; it is only when discrimination is “brought to the ground and visited upon an employee,” that it becomes something for which we permit legal recovery.

It is interesting, then, that there has been such pressure on sports teams and leagues to undertake voluntarily to do what the law does not require them to do—to distance themselves from those who espouse racist, sexist, or other offensive views. To be sure, if the Mets executive who alleges that she was taunted and fired for being an unwed mom-to-be persuades a trier that these things did, indeed, happen, she will prevail in court. But what about the rest of the outrage? The offenses unaccompanied by legal harm? What if the executive had not been fired and her teasing had not risen to the rather high threshold of intolerability and consistency needed to render it actionable harassment as opposed to mere, permissible incivility? The public needs to understand that the law does not necessarily comport with public sentiment on these issues. “Discrimination in the air” is not actionable.

Moreover, the public needs to appreciate the fact that while high-profile shaming and pressure on professional sports organizations may effectuate the kind of personnel and cultural changes that the law cannot, discrimination—both in the air and grounded upon employees—is rife in all kinds of workplaces. There are no high profile campaigns of shame at a typical truckstop diner or even in a big box store chain. But the same sense of “humor” that allegedly compelled the Mets higher-up to continually joke about the morality of single motherhood or fuels racially stereotyped depictions, contempt, or observations in the upper echelons of the NBA or Major League Baseball also pervades everyday workplaces. And often, employees are either not believed when they report it, or even if they are, it does not matter because the hostility or microaggressions, as they have been termed, are not anchored to an adverse action or part and parcel of actionable harassment. The difference is that in these lower-profile cases, no one cares. The highers-up who harbor these views are often high up enough on the ladder to be valued and thus retained, unscathed, by employers, but anonymous and uncared-about enough to elude public shaming or outcry. The law’s gaps and holes allow us to be selective about how and when we, as a society, can demand justice in the form of the censure or termination of those who express discriminatory, stereotyped, or just plain hateful beliefs, and that selectivity breeds inconsistency and randomness even more dramatic across workplaces than that decried by Professor Wasserman in his sports blog.

Is it time for the law to come into line with the wishes and expectations of society as evinced by the decrying of “discrimination in the air” that we have seen in the media in response to what is going on in professional sports? Or is it the case that if all of those who demand the firing of high profile racists or sexists wouldn't really want the law to require what they are demanding if they thought it through? It is wholly inconsistent for us to say that we demand the ouster of a team coach or manager on the basis of his sentiments unmoored from action, but that we wish for less glamorous, less known, but perhaps as well compensated bosses in the private sector to retain an absolute right to their private dealings and expressions, with no job consequences?

Posted by Howard Wasserman on September 22, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Thursday, September 18, 2014

Cameras and unintended consequences

In the rush to video record everything so we always know for sure "what happened," it is important not to lose sight of the risk of unintended consequences. Two studies, not directly involving police and body cams, illustrate the point.

In The Atlantic, Derek Thompson argues that one major cause of the drop in offense and scoring over the past 5+ years is introduction in 2006 of video systems to review and evaluate umpire performance in calling balls and strikes. The intended effect was to teach umpires the "correct" strike zone and produce more accurate umpiring (indeed, several umpires were fired when video showed their ball/strike calls to be inadequate). But that accurate strike zone was a lower strike zone, with more pitches around the batter's knees now being called strikes, causing pitchers to learn to throw low in the strike zone. Low pitches are harder to hit, especially with power, so they produce more ground balls and more strikeouts (Thompson says the increase in strikeouts since 2008--called and swinging--is entirely on pitches lower in the zone). As a result, this more-accurate zone produces less scoring. The problem is that this lower-scoring game is not as popular nationally (based on game-of-the-week ratings and national fan recognition of star players) as the power-driven game of the late '90s and early '00s. And there is your unintended consequence--MLB used video to successfully increase accuracy, but accuracy fundamentally changed the game. And arguably made it less popular.

On the Harvard Business Review Blog, Ethan Bernstein (a professor in the B-school) argues that the increase in transparency that video brings may stifle worker creativity. He explains that "[k]nowing that their managers and others will closely evaluate and penalize any questionable recorded behavior, workers are likely to do only what is expected of them, slavishly adhering to even the most picayune protocols." In an article, Bernstein found such lack of creativity in assembly-line workers, who avoid potentially useful time-saving methods in favor of doing everything precisely by the book. And while supportive of body cams, Bernstein is concerned that they will have a similar effect on law enforcement.

With respect to public officials such as police (the people who will be wearing cameras), official immunity (especially qualified immunity) is driven by similar concerns for over-deterrence. Officials enjoy immunity so they can exercise their learned judgment and discretion vigorously; immunity also encourages creativity in job performance that may be beneficial. We do want officials to play it overly safe, avoiding any risk of liability by steering so far away from the constitutional line, where doing so may leave significant performance and enforcement gaps.* Perhaps we should at least be aware that, in equipping officers with cameras, we may be creating the same disincentives that immunity was designed to eliminate--officers will play always play it "safe" and steer clear of the line for fear that, even if not unconstitutional or unlawful, their behavior "looks bad" to the people who are going to see the video and reach conclusions based on nothing more than the video. Bernstein's solution is to promote video and transparency in the use of body cams, but to create some "zones of privacy," in which video is used for education and training rather than punishment, thereby providing officers the needed "breathing space."

    * I would argue that current qualified immunity strikes the wrong balance, too heavily weighting over-deterrence at the loss of accountability. But I recognize that both need to be taken into consideration.

The point is that police body cameras are as likely to produce unintended consequences as video in baseball or video monitoring of UPS drivers and assembly-line workers. Those unintended consequences must be considered and addressed by departments in establishing careful and clear rules and policies for camerause. And they should ring as another reason to treat cameras as one good idea, not as a complete solution.

Posted by Howard Wasserman on September 18, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, September 17, 2014

Fan speech, once again

The ejection of a fan from the park (at the insistence of the umpire) from Atlanta's Turner Field, apparently for profanely heckling an opposing player (the link contains video), could raise some First Amendment problems. The park is apparently owned by the Atlanta Fulton County Recreational Authority, a public entity, and leased to the Braves (no doubt on very favorable terms). Just like in the one case to directly address free speech at a publicly owned ballpark, involving old Yankee Stadium, which was owned by New York City and leased to the team. And as I have written previously, if "Fuck the Draft" is ok in a courthouse, then "You fucking suck" is ok at a publicly owned or operated ballpark. And it does not matter whether the order to remove the fan came from team officials or the umpire.

I hope a lawsuit is coming.

Posted by Howard Wasserman on September 17, 2014 at 04:59 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (11)

Tuesday, September 16, 2014

Scientific misconduct and the First Amendment

This proposal to make scientific misconduct a crime would seem to raise serious First Amendment problems, certainly under the Kennedy plurality in United States v. Alvarez. If false statements are not categorically unprotected, regulations must survive strict scrutiny, and counter-speech is always available, it seems to me that any attempt to regulate false scientific results are as vulnerable as the ban on false statements about military service. Interestingly, such a criminal prohibition might fare better under the squishier balancing proposed by Breyer's Alvarez concurrence, given the more tangible harms from false scientific research (Andrew Wakefield, anyone?). But I do not think receipt of salary from the university should matter; we do not prosecute people for not doing their jobs well, even intentionally. And to the extent a scientist receives grant money requiring honest research and produces false results, charges of fraud or false monetary claims already should be available.

Posted by Howard Wasserman on September 16, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (1)

Monday, September 15, 2014

Spot the differences, if you possibly can

Atlanta Hawks GM Danny Ferry used racist stereotypes in evaluating and describing player Luol Deng. The comments were unquestionably tasteless and offensive; they might form the basis for an employment-discrimination action, although Deng did not suffer any harm (he signed with another team and there is no indication he was dying to sign with the Hawks) and courts are often quick to dismiss remarks like these as "stray comments" (as my colleague Kerri Stone has written) The remarks were audio-recorded and written in a report. Ferry has been placed on indefinite leave of absence, basically meaning he's on his way to being fired (likely as part of an ownership change). The team published a public apology to its fans, basically confessing to multiple incidents of racist comments and actions by the team "over a period of years" and its failure to stop or punish them. The league is holding off on punishment, probably because the team took the matter off its hands.

Isiah Thomas engaged in a pattern of sex- and gender-based harassment of a Knicks executive named Anucha Browne Sanders, for which he was found personally liable by a jury; the case settled, following a jury verdict awarding more than $ 10 million in punitive damages. Thomas never lost his job and suffered no team- or league-imposed penalties. The league expressly said it does not get involved with "civil matters," not even civil matters directly affecting the team. The Knicks never publicly apologized for anything or even acknowledged having been found liable.

A former executive with the New York Mets has sued the team and the COO (the principal owner's son) for harassing and then firing her over becoming pregnant and having a child without being married and complaining about the harassment. So far, silence from MLB. The Mets blandly insist that they have policies against harassment and discrimination (which obviously means nothing if those policies are ignored by the owner's son, general counsel, and other team officials, as the complaint alleges).

So can we find anything resembling consistent and appropriate responses to possibly improper or unlawful employment practices? One answer is that mere accusations are insufficient and teams must wait for the civil litigation process to play out. But then neither the non-action by the Knicks against Thomas nor the action by the Hawks against Ferry makes sense. Worse, accepting the facts alleged in each case as true, the Hawks case is probably the least likely of the three to produce legal liability, yet that is the only one in which the team responded. A more cynical answer is teams/leagues will jump to act when it comes to race discrimination involving players, but do not care about sex-based discrimination against non-players. An intermediate explanation is Ferry was captured on audio and the Mets COO wasn't, which just brings us back to the problem that audio and video are overtaking our ability to judge evidence and proof. But that, in turn, says some troubling things about our ability or willingness to rely on judicial processes, not just recordings, to resolve disputes and determine legal rights and wrongs.

Posted by Howard Wasserman on September 15, 2014 at 09:31 AM in Howard Wasserman, Law and Politics, Sports | Permalink | Comments (0)

Saturday, September 13, 2014

Privacy v. Justice

William Saletan at Slate argues that the benefits of having video and audio in evaluating legal disputes (in court or out) outweigh the privacy concerns raised by the possibility of everyone and everything being recorded. As he says, "privacy, broadly interpreted, can shield injustice."

Saletan's big mistake is assuming the absolute certainty of video--"with video, everyone knows." Only after everyone had seen the Ray Rice video did the NFL "know" what happened. And because everyone else "knew," the NFL lost deniability and Rice lost what Saletan calls the "presumption of innocence." But, as I have written repeatedly, video is not that certain and we do not necessarily know in every case or with every video. Some video is clearer or easier than others. Rice seems especially obvious (although the video is grainy and one looking to see mutual aggression might see her moving towards him for reasons that cannot be known from the video). But not every video will be so clear and thus not every video case will be so easy.

Which is not to say that Saletan is wrong about the privacy/justice balance; I think he has it right. But the reason is that this provides additional evidence with which to evaluate (in court and out) disputes controversies--and more evidence is better than less. But it still is a mistake to rely on the idea that video is unquestionably, always, and in all cases conclusive.

Posted by Howard Wasserman on September 13, 2014 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, September 12, 2014

Kopald on health problems from WiFi

Deborah Kopald has a post at Public Citizen's Consumer Law and Policy Blog, discussing health problems associated with WiFi, namely showings of Microwave Sickness by people living/working/going to school too close to wireless hotspots. Worth a read, as she has been pushing this issue for some time.

Posted by Howard Wasserman on September 12, 2014 at 04:00 PM in Article Spotlight, Blogging, Howard Wasserman | Permalink | Comments (14)

Federal control of all police prosecutions?

Having St. Louis County Prosecutor Robert McCulloch decide whether to prosecute Darren Wilson in the shooting death of Michael Brown raises several concerns, notably related to his comments and actions during the Ferguson protests/riots (depending on your perspective) and a generally poor track record with such cases. But McCulloch and the question of a Wilson prosecution illustrate a general problem for even the  best-of-faith DAs having to prosecute local police officers. The relationship is too close and often too cozy. Alternatively, the decision to pursue charges against one officer may harm a prosecutor's relationship with the police going forward, with negative consequences to law enforcement.

But this seems like the wrong solution to the problem: Moving charging decisions exclusively into the hands of federal prosecutors, apparently even for state prosecutions in state court. The author extrapolates from the successful federal prosecution of Rodney King following his state-court acquittal; it "would have been more efficient and confidence-inspiring, however, if the federal lawyers had been in charge from the start."

First, the problem  in the King case was not with the county prosecutor's office, which brought and vigorously pursued state charges. The federal government (and federal lawyers) became involved only after the jury acquitted and only pursuant to specific policies governing successive prosecutions. The federal government never would have gotten involved (efficiently or not)  if the state jury had gotten the case "correct" (as that is commonly understood in that case). So to jump from an (arguably) erroneous acquittal in King (or in a lower-profile, non-death case such as this one, that just shows how hard it is to convict cops even in the most-vigorous prosecution) to a blanket condemnation of the ability or willingness of all state prosecutors to prosecute police seems extreme. Similarly, it is extreme to go from one arguably conflicted prosecutor in Ferguson to that same blanket condemnation.

Second, how are federal prosecutors competent or appropriate to make charging decisions under state law? I guess the argument is that they are smart lawyers who can figure it out. But federal prosecutors prosecute federal crimes, not state crimes, leaving them with no special knowledge of the law and procedure of that state (or even any knowledge the law of that state--an AUSA need not be a member of a local Bar). This will be exacerbated if the decision is taken on not by the US Attorney Office for that district, but by Main Justice. So in gaining "independence," we potentially lose expertise in the applicable law.

So this proposal makes sense only if the idea really is that police shootings  should be prosecuted exclusively as federal civil rights violations, never as state crimes (such as murder or attempted murder or aggravated assault). That certainly resolves the efficiency concerns--everything goes straight to federal prosecutors, federal substantive law, and federal court, and we need never wait around to see what state officials do or what happens in state court. But it comes at the expense of some federalism considerations. I am no big believer in federalism, but an across-the-board assumption that crimes should go automatically and exclusively to federal law--not an as one option but as the only choice--seems excessive. Which is not to say federal prosecution is n0t appropriate in many of these cases, including in the Brown shooting; only that it should not be the sole option.  I also wonder if § 242, which requires specific intent to deprive a person of their constitutional rights, can be proven in many of these shootings. Finally, there might be resource limitations preventing the federal government from investigating and prosecuting every single police shooting. All of which means the net result could actually be fewer prosecutions or convictions against police.

The federal-prosecutor proposal unfortunately distracts from some good ideas in the piece, namely requiring that police shootings be investigated by a special prosecutor brought in from another county. Better still, I would argue, bring in the state attorney general, which can better (not perfectly, perhaps) bring distance from all local passion and politics, while retaining expertise in state law and state prosecutions.

Oddly, Levine points to the George Zimmerman prosecution as a positive example in which a special prosecutor was brought in after the local prosecutor refused to charge. Of course, Zimmerman was acquitted, in part because the special prosecutor overcharged and generally put on a terrible case. Moreover, Zimmerman was not a police shooting. So it appears Levine really is arguing that no local prosecutor should ever handle a high-profile or controversial case. But if those cases also should be taken from them, then why have local prosecutors at all--just to handle cases no one cares about?

Posted by Howard Wasserman on September 12, 2014 at 09:31 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Thursday, September 11, 2014

The Video Effect?

A problem with the increasing ubiquitousness and (perceived) power and accuracy of video is that we (the public, judicial fact-finders, prosecutors making charging decisions, everyone) are no longer moved by testimony and descriptive evidence, by verbal descriptions of events. Only video will influence, persuade, or even trigger a response.

We got a sense of this during the Ferguson protests, where video, especially television reporting, was the topic of conversation. The Ray Rice story, as it has developed this week, is driving this point home.

The Ravens (who cut Rice) and the NFL (who suspended Rice indefinitely) did not act with any sense of seriousness (the original two-game suspension was a joke) until the video from inside the elevator was released on Monday. NFL Commissioner (for now) Roger Goodell said he felt compelled to act because"what we saw yesterday was extremely clear, it was extremely graphic, and it was sickening." But reports indicate that the story Rice told Ravens officials was consistent with what was shown on the video--he did not tell a story of self-defense or of her hitting him first or of both people throwing punches (Ravens officials seem very proud that Rice did not lie to them, although he apparently lied to his teammates). Goodell insists that Rice's story to them was more ambiguous, although we can ask why the NFL never compared notes with Ravens officials and draw conclusions from the inconsistency. [Update: According to this report, four people with knowledge of conversations state that Rice told Goodell in June that Rice had "hit"or "punched" his fiancee and that there was no "ambiguity" about what he said or what happened].

The point is that the video released Monday provided the Ravens with exactly no new information, and the NFL with little that it should not already have known. The "sickening" acts were known to everyone on the inside. Yet Goodell did not feel compelled to act until confronted with video images; a narrative would not do the trick. Of course, some of that can be blamed on the media and the public, which responded with renewed outrage only after seeing the video themselves, thus backing Goodell into a corner. Josh Lewin has a nice satirical take on this.

The old saw is that a picture is worth 1000 words and perhaps video is worth twice that. But the relative value of visual compared with verbal evidence should not be taken to render verbal evidence entirely worthless. I would be quite concerned if we begin to see--in court and in public debate--a video-evidence version of the CSI Effect.

Posted by Howard Wasserman on September 11, 2014 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, September 09, 2014

Remembering Danny

Remembering Danny has been set-up by Dan's family and loved ones as a place to collect stories, videos, photos, memories, and more, to share with Ben and Lincoln and let them know who their father was and the many lives he touched. Please click over and share.

Also, a reminder that Florida State College of Law will host a memorial service for Dan at 3 p.m. next Tuesday, September 16, 2014, at the College of Law.

Posted by Howard Wasserman on September 9, 2014 at 01:58 PM in Blogging, Howard Wasserman | Permalink | Comments (0)

Friday, September 05, 2014

Destroying marriage to save it

A thought, brought into relief by Judge Posner's opinion for the Seventh Circuit (go here for highlights):

Have efforts to defend marriage-equality bans crossed over into Ben Tre territory, where they are destroying the town to save it? States' legal efforts to "preserve" marriage as a heterosexual institution have denuded that institution. They no longer defend it as a sancrosanct and powerful institution reflecting long-term intimate arrangements by committed adults who love and care about one another; instead, it has become a metaphorical prison to place fornicators who unintentionally produce a pregnancy. As Posner put it: "Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure." Opponents of marriage equality insist, without evidence (a point Posner nailed Wisconsin on), that allowing same-sex couples to marry would cause heterosexuals not to marry. But speaking as a heterosexual, I am not sure I would really want to join the marriage club that most states claim to have established.

Posted by Howard Wasserman on September 5, 2014 at 03:30 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (8)