Monday, September 29, 2014
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]
Friday, September 26, 2014
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.
Monday, September 22, 2014
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.
Stone on sex discrimination and professional sports
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?
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.
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.
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.
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.
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.
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.
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?
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.
Tuesday, September 09, 2014
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.
Friday, September 05, 2014
Destroying marriage to save it
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.
Wednesday, September 03, 2014
The myth of body cams
This Slate piece by two criminology professors who have studied the issues. They doubt cameras will prevent another Ferguson shooting, which is almost certainly true. But they also found (from studies of police in Mesa, AZ) found changes in police behavior--officers with cameras conducted fewer stop-and-frisks and arrests, although they wrote more citations. They also initiated more contacts with citizens, perhaps after observing behavior for longer to ensure themselves they were seeing wrongdoing before initiating contact.
Tuesday, September 02, 2014
A jurisdictional tragedy
Forget taxes. What is really important about Burger King's deal with Tim Horton's are the jurisdictional implications. Has Florida (and Miami in particular) lost its greatest contribution to the civil procedure canon? Might this set-up a final exam question in which a plaintiff tries to use BK's "home" in Florida to get general jurisdiction over the Canada-based parent company in Florida that will be birthed by the deal? Would BK now prefer to litigate in eastern Michigan (where Rudziewicz wanted to be), which is closer to Ontario?
As we indicated, one of our big goals in keeping Prawfs going is to continue Dan's tradition of having a wide range of guests from a wide range of schools and disciplines pass through this forum.
As September rolls in, Irina Manta (Hofstra) will continue with her visit from August. We welcome returning visitor Jennifer Bard (Texas Tech) and first-timers Richard Chen (Pepperdine) and Seema Mohapatra (Barry). In addition, Richard Re (UCLA) continues his extended guest stint.
And, again, we are always looking for visitors, new and old. So email Paul or me if you are interested in joining the conversation.
Friday, August 29, 2014
Video Chutzpah, defined
Stories have begun circulating about an incident in Minneapolis in January, in which officers seemed to escalate a situation in which a man was sitting in a restricted area near a public space, then used a TASER when he refused to give his name and attempted to walk away. Charges (trespass and "obstruction of the legal process") were dropped in July. Yesterday, the chief of the St. Paul Police defended the officers, beginning with: "As is often the case, the video does not show the totality of the circumstances."
He is right, of course. But that is certainly not going to be his line or the officers' line when they inevitably move for summary judgment in the inevitable § 1983 action.
Another SCOTUS counter-factual: Justice Posner?
Many sites are talking about Wednesday's Seventh Circuit arguments in challenges to same-sex marriage bans in Indiana and Wisconsin. Judge Posner was in rare form in shredding the states' arguments in support of the bans, particularly in the Wisconsin case (several of the links have either the full audio or audio clips). As usual, there is the debate about whether this is Posner being a bully (Josh Blackman says yes) or Posner being Posner and attacking bad legal arguments and bad lawyering (in fairness to Josh's viewpoint, Posner does not give the lawyers room to answer in real detail).
But the argument highlights Posner's uniqueness as a conservative-but-iconoclastic judge. And sparks this question: What if Posner had been the nominee for the late Reagan/Bush I openings--Scalia, Kennedy (after Bork and Ginsburg both went down), or Souter (replacing Brennan, a fitting seat, since Posner famously clerked for Brennan)? Was he ever truly in the running for any of those seats? Would his academic writings have done him in (thus, making the term "Posnered")? Alternatively, assuming Posner has become more iconoclastic over the years, would he have gone the other direction had he reached the pinnacle (as some say Scalia has gone)?
More importantly, would things be different? And, if so, how? Replace Scalia or Kennedy with Posner and Carhart (upholding Nebraska's ban on D&X abortions) Gonzales v. Carhart (upholding the federal ban on D&X abortions) comes out the other way. In spring/summer 1998, while still living in Chicago, I attended arguments in the challenge to Wisconsin's D&X ban; it sounded an awful lot lot like Wednesday's arguments. Not sure what Posner would have done on Bush v. Gore had he actually been there on the ground and not writing about it ex post. On the other hand, replace the speech-protective Kennedy with Posner and the First Amendment might look somewhat different.
Wednesday, August 27, 2014
Two from Dorf on policing and body cameras
Two posts from Mike Dorf--one supporting use of body cams and one considering the effect and future of broken-windows policing, which necessarily increases the number of police-citizen law-enforcement encounters, which necessarily means increasing recording of those encounters. Mike share my view that cameras are a good idea but not a panacea.
Saturday, August 23, 2014
NPR on police body cams
I was interviewed for an NPR Weekend Edition story on police body cameras and whether they represent any sort of great solution to the problem of figuring out what happens in police-public encounters. As expected, I provide the "no, video is not some all-showing neutral observer" perspective.
Friday, August 22, 2014
Talking about free speech or talking about racial justice?
The focus of public and media conversation on Ferguson has shfted. We are talking less about the triggering events--the possible murder/possible unconstitutionally excessive police shooting of Michael Brown,(*) the underlying racial atmosphere that made that shooting more likely, and systematic constitutional problems within the Ferguson Police Department--than about the First Amendment problems with how police have responded (and continue to respond) to peaceful protests in a public forum.(**) This has become a miniature of the Civil Rights Movement. When protesters hit the streets in the South and Bull Connor, et al., responded as they did, the legal conversation, at least in the courts, turned to the First Amendment and away from the underlying racial problems and racist policies that the protesters were attacking and seeking to change. The cases that reached SCOTUS arising from the events on the ground largely dealt with First Amendment rights to protest, sit in, crticize, organize, and advocate against the racist and discriminatory policies and practices in the South, without real discussion or resolution about their legality, constitutionality, or morality. Certainly these all were important victories for the movement and its members (as well as for society as a whole), but they can feel sterile when the underlying injustices are forgotten or pushed below the surface. The Court itself never directly tackled the underlying constitutional validity of most pieces of Jim Crow (primarily because Congress did it for them).
(*) Although the competence and commitment of the county prosecutor to vigorously prosecute a police officer has moved to the front of the line for the moment. Since the grand jury might take two months, this will go away soon, unless the governor preemptively appoints a special prosecutor.
(**) While somewhat overstated, Dahlia Lithwick makes some good points comparing police responses to these protests (which, unfortunately, likely will not be successfully litigated after the fact) with what the Supreme Court said in McCullen v. Coakley was constitutionally required, particularly about potential distinctions between protest and counseling.
On one hand, this is appropriate for the First Amendment. The whole point of free speech is that constitutional protection for protest, advocacy, and criticism of government should not turn on the subject of that protest, advocacy, or criticism or its underlying morality. It does not matter whether protesters are complaining about racism, police misconduct, the minimum wage, or United States's tolerance of homosexuality bringing about God's wrath--what matters is that their peaceful protest enjoys First Amendment protection. On the other hand, as Harry Kalven and Burt Neuborne both have argued, the concerns about ending discrimination silently informed the free speech jurisprudence of the early '60s--without necessarily saying so, the Court protected free speech precisely so the underlying system of racism and segregation could be attacked and, hopefully, changed.
But that leaves a nice question whether we (courts, the law, and the public) miss something by not talking more explicitly about the underlying issues leading to the protests and the First Amendment violations. And, more cynically, whether the national outrage over Ferguson that has latched onto the First Amendment concerns (because everyone feels and cares about "their" First Amendment rights personally) frees us to ignore the underlying racial injustice (which is personally disconnected from most people).
Thursday, August 21, 2014
Police body cameras are often seen as a panacea in police-public relations and in controlling police misconduct. Judge Scheindlin endorsed them during closing arguments in the New York stop-and-frisk trial. As I have written before, I support the idea, although I doubt it is an ultimate answer, since video is not as certain as many proponents make it out to be.
But events in Ferguson show a different reason that body cameras are not alone sufficient--we need to see all the actors in the exchange; it is not enough to see who the officer is looking at and perhaps hear what the officer is saying, we also need to see the officer. I was reminded of this by looking at the video after the jump. All of which may be to say that body cams are great, but they do not obviate a rigorous First Amendment right of citizens to video their interactions with police, wherever and however they occur. The effect would not be the same if we only heard the officer's voice, without seeing him pointing a rifle at unarmed civilians who do not appear to be committing any crime. (Reports indicate the officer has been removed from duty).
On a different video-related point: Will Baude tries to find good arguments against the right to record, but finds all lacking. I agree, but would add an additional spin: Whatever their attitudes towards public recording (Will says police unions generally oppose it), police generally seem supportive of bodycams, dashcams, and other recording technology that they use and control. But that means recording is not the real concern, police control over it is. But obviously the government cannot be the sole actor with the power to record public events.
Wednesday, August 20, 2014
More on police "pattern or practice" in Ferguson
Andrew Ferguson (UDC) has an essay at HuffPost discussing the potential for mapping and predictive technologies to look not only at where crime occurs (its primary current use), but also where police officers are at given times and what they are doing. We thus can identify and map "problematic" police-citizen interactions, thereby showing where individual officers may be acting improperly (e.g., making a high volume of stops without recovering any wrongdoing) and showing patterns of misconduct. The technology also would provide policymakers the notice necessary to establish municipal liability.
Tuesday, August 19, 2014
Reforming the Ferguson Police Department
This Slate piece discusses the potential use of 42 U.S.C. § 14141 against the Ferguson Police Department in the wake of recent events. That section authorizes DOJ to investigate and bring civil litigation against a "pattern or practice" by law enforcement organizations that violates the Constitution; DOJ can seek an injunction or consent decree or, more likely, enter into a Memorandum of Agreement about reforms to be made by the agency.
Section 14141 was seen as a big step when it was enacted as part of the Violent Crime Control and Law Enforcement Act of 1993, a way to make-up for the perceived under-use of criminal civil rights prosecutions under § 242. Actual practice has been disappointing to many commentators, as Rachel Harmon (U VA) and Kami Chavis Simmons (Wake Forest) have discussed. In particular, they note that the focus of investigations has been on smaller cities, such as Pittsburgh, rather than large cities such as New York and Chicago (although the Slate article discusses an agreement--not sure if it was a consent decree or MOA--with Los Angeles that has been found effective). Certainly, this is the type of high-profile situation that would overcome federal inertia and prompt a response.
One problem is whether there can be a finding of a "pattern or practice" in Ferguson. Certainly the past week has demonstrated some potential misconduct and abuse of power by individual officers. And the department as a whole has handled the entire fallout badly (for example, of 78 people arrested last night, 75 were for failing to disperse when ordered, which brings us back to the problem of how police do (and are allowed) to respond to lawful assembly and protest whenever they also can point to the slightest risk of violence). And the militarized response certainly reflects department policies and practices, although typical of what many police departments are now doing. But there is a nice question whether awful response in a single situation, even one as high-profile as this, is sufficient to warrant federal intervention or whether it necessarily indicates broader problems.
The best hope may be that DOJ goes to Ferguson in a cooperative stance, looking not to pursue litigation, but to convince the department to accept an MOA, particularly in light of the awful optics of the past week. When my current dean headed the Civil Rights Division, he favored this approach, believing it created buy-in from the local government without an adversarial posture or the need to establish pattern or practice.
Summary judgment and the infield fly rule
No, not together, sadly.
The final version of An Empirical Analysis of the Infield Fly Rule is now on-line at the Journal of Legal Metrics/Journal of Law (the book will be out in a month or so). The article presents the results of a four-year study of all infield fly calls in Major League Baseball. I am extending the study for the 2014 and 2015 seasons, as well as trying to apply some advanced baseball metrics to measure the effect of the rule (or, more precisely, what the effect might be if we did not have the rule and infielders were free to intentionally not catch the ball in search of cost-benefit advantages).
And, completely unrelatedly, Mixed Signals on Summary Judgment is now posted to SSRN, and hopefully coming to a law review near you. Here is the abstract:
This essay examines three cases from the Supreme Court’s October Term 2013 that addressed the standards for summary judgment. In one, the Court affirmed summary judgment against a civil rights plaintiff; in two others the Court rejected the grant of summary judgment against civil rights plaintiffs, arguably for the first time in quite awhile, but in procedurally confounding ways. The essay unpacks the substance and procedure of all three decisions, and considers their likely effect and what signals they send to lower courts and litigants about the proper approach to summary judgment.
Monday, August 18, 2014
To the man who taught me the infield fly rule
I originally planned to post this last month, but obvious events made it feel inappropriate.
My father, Lawrence Wasserman, passed away July 10, at age 85. A friend once told me that losing a parent is when you really become an adult; I kind of believe that. Dan, being Dan, was one of the first people to reach out and extend condolences from afar--in fact, it was one of our last text exchanges. To tie this back to an earlier post, I just ended shloshim, the 30-day period of mourning in the Jewish faith, so this seemed a good time to write.My dad was a huge baseball fan. He somehow became a Yankees fan in 1930s/1940s Brooklyn, an interesting choice that probably subjected him to some abuse (although his consolation was that the Yankees always won and the Dodgers always lost). He passed that love of the game down to me (even if I traded the Yankees for the Cubs as an adult--don't ask). I still cry at the end of Field of Dreams ("Dad, you wanna have a catch?"), because, who doesn't?
More importantly, though he certainly could not have imagined it at the time, he set me down the path of my two-plus-year (and counting) scholarly obsession with the Infield Fly Rule.
Crazy as it sounds, one of my vivid snapshot memories of childhood is that moment when I first learned about this crazy rule. I was about eight years old and my dad and I were watching a Yankee game on TV. One of the announcers said "Infield Fly Rule is in effect" (standard baseball broadcaster lingo on IFR plays, for reasons I have not yet been able to uncover); I asked what that meant and he explained. And he obviously did it in very clear terms, because I immediately understood both the rule and its logic and his explanation stuck with me going forward. If, as I have argued, to understand the infield fly rule is to understand baseball, then my dad understood baseball. And he made sure I did, as well.
One of the last times I visited him in New Jersey in the spring, I brought along two of my infield fly articles. He flipped through them while we were sitting together talking and he read them after I left. And I am quite certain it is the only thing I have written as a prawf that he read or understood. So that alone made this whole project worthwhile.
Friday, August 15, 2014
First Amendment repealed in Ferguson, MO
Ronald K.L. Collins suggests (hopes?) we are about to enter a New York Times v. Sullivan moment in response to events in Ferguson, MO--broad free speech principles forged from public and media outrage and exposure of racial abuse by police and government officials. I am less sanguine, because I do not see either the government or individual officers being held to account or sanctioned in any way (legally or politically) for the massive restrictions on free expression that have been imposed in the last week. Collins may be correct that this may present an opportunity for the "admirably defiant spirit" of New York Times to "find its way back into the hearts and minds" of the public and for the public to demand that local government show greater respect for First Amendment rights. But these these events are not going to end with a resounding judicial affirmation of the First Amendment that will impose those obligations on government or sanction it for its past disregard.
Courts almost certainly will accept the government's assertions of public safety concerns and recent memories of rioting as justifying officers responding to seemingly peaceful, if angry, protests with riot gear and rubber bullets--these events illustrate Timothy Zick's thesis that public spaces are no longer for collective speech by large groups (My favorite detail: Police ordering people to return to their homes, then saying "Your right to assembly is not being denied"--oh, if you so say). The Eighth Circuit has never held that citizens or the media have a First Amendment right to record police in public spaces, so individual officers will enjoy qualified immunity for various incidents in which they have ordered citizens and journalists to stop recording, confiscated video equipment, or arrested people for recording. There is no evidence the city or county itself ordered officers to target people filming police--at best, municipal policy is silent. The federal government has already backed the local power play by declaring a no-fly zone over Ferguson, thus preventing television helicopters from recording activity from the air. DOJ has promised to conduct an investigation to see that justice is done, but that seems more about the original shooting; otherwise, DOJ assistance has been with "crowd control" and urging citizens not to "antagonize" police. But that "antagonism" has, in large part, consisted of attempting to assemble and protest and to video police massively over-reacting to those attempts--so DOJ's advice is for people not to do the things they should have a constitutional right to do. And like southern officials 50 years ago, Ferguson and St. Louis County officials do not seem affected or shamed by public outrage over their conduct, do not seem to acknowledge having done anything wrong, and do not seem inclined to make any changes on their own accord.
Again, the public takeaway from this may be a reaffirmation of free speech ideals. But is that enough without some official declaration and application of those ideals?
Update: According to this story, things played out much differently Thursday night, under the leadership of Missouri Highway Patrol Captain Ronald S. Johnson, a Ferguson native. There was no massive militarized police response to demonstrators and people were allowed to march and gather. And police officers were ordered to remove their gas masks. Missouri Governor Jay Nixon "vowed that officers would take a different approach to handling the massive crowds that have taken to Ferguson’s streets each night." (For those of you who teach Evidence, this would be an example of an inadmissible subsequent remedial measure).
Wednesday, August 13, 2014
Even football coaches are banning laptops
Tuesday, August 12, 2014
Leiter on FAR forms
Brian Leiter offers six thoughts/pieces of advice on completing FAR forms. I agree with all six of his points, especially these two: 1) In listing courses, "be who you are, and not someone else," and do not try to game the system, and 2) Do not use the Comments, especially for something vacuous, like "I'm committed to being an excellent classroom teacher."
Jurisdictional elements and merits
Here is a Ninth Circuit decision properly analyzing jurisdictionality in a Lanham Act case. The court held that the requirement that a trademark be "use[d] in commerce" is an element of the trademark claim and does not go to the court's jurisdiction over the claim. Relying on Arbaugh, the court held that the substantive provisions of the Lanham Act do not contain jurisdictional language and the actual jurisdictional grants for trademark cases (§ 1331 and 15 U.S.C. § 1121(a), along with 28 U.S.C. § 1338, which the court did not mention) do not use this language. Thus, "use in commerce" goes to the merits, not jurisdiction. This is spot-on analysis and the court made relatively light work of the arguments.
The court did not discuss it in these terms, but this case demonstrates the confusion created by so-called jurisdictional elements. The "use in commerce" element hooks the Lanham Act into Congress' Commerce power--Congress lacks the power (the jurisdiction) under that clause to regulate trademarks not used in interstate commerce. The "jurisdiction" here is Congress' prescriptive or legislative jurisdiction, its authority to prescribe legal rules to regulate real-world conduct. An internal limitation on congressional legislative power--like an external limitation such as the First Amendment ministerial exemption--constitutionally limits the scope of the legal rule and thus the rights granted and duties imposed under that rule.
But jurisdictional elements write that prescriptive-jurisdictional limitation into the statute, and the statutory claim, itself. Rather than absence of "use in commerce" rendering the statute unconstitutional as applied (as with a minister's ADA claim against a church), the failure of the jurisdictional element means the statute by its terms does not "reach" the conduct at issue. A Lanham Act plaintiff must prove "use in commerce" just as it must prove "reproduction, counterfeit, copy, or colorable imitation of a registered mark;" both go to whether there is an existing legal rule imposing liability on these defendants on the real-world facts at issue and thus whether the plaintiff's infringement claim has merit. In that regard, a jurisdictional element functions the same as an ordinary element of a statute. The jurisdictional element is there for a different reason than an ordinary element, but its role is the same--it controls the "reach" of the statute, which is uniformly understood as a merits concern. And it has nothing to do with whether the court has adjudicative jurisdiction to hear and resolve a claim because it is "arising under" that statute.
Monday, August 11, 2014
Informal survey time (I raised this on some listservs last week and wanted to try a different audience):
If you were to make a short list of five (5) of the most important free speech opinions (majority, concurrence, or dissent), what would they be? I want to drop a footnote in the intro of an article, so I welcome input. I am looking for both rhetorical and practical power, as well as rhetorical and practical effect in the development of modern, speech-protective free speech jurisprudence. Note that since I am focusing on the development of the broad free speech protection we have in the U.S., I am primarily looking for opinions that sided with the speech claimant.
My tentative list (in no particular order): 1) Holmes dissent in Abrams; 2) Brandeis concurrence in Whitney; 3) Barnette; 4) Sullivan; 5) Cohen v. California (I originally had Texas v. Johnson or Reno v. ACLU here, but people convinced me that Cohen is more significant).
Have at it.
Wednesday, August 06, 2014
SEALS v. AALS
At the Law Deans on Legal Education Blog, Richard Gershon (Mississippi) compares SEALS and AALS as conferences, identifying the pros and cons of each. Speaking as someone who regularly attends SEALS and has not attended AALS in seven years (mostly because of timing), I agree with pretty much everything he says. I do think his criticism about lost networking opportunities at SEALS because of its length are overstated--many people stay the full week (on their own dime, obviously) and many stay at least four days.
SEALS always has had the air of a boondoggle--professors and their kids playing at a beach resort for a week while purporting to be at an academic conference. But most folks balance time with family and time in the conference. There are some great panels and discussions every year and many of them are as well-attended as AALS panels I've seen (there were about 50 people at a panel on Bickel last year). In reality, people do not go to these conferences for the panels, anyway. So the real difference between SEALS and AALS may be this: When people skip SEALS panels on Amelia Island in August, they do it to play golf or jump in the pool; when they skip AALS panels in New Orleans in January, they do it to get drinks and good food. Make of that what you will.
Tuesday, August 05, 2014
Submission angsting thread, Fall 2014
It has been a semi-annual Prawfs tradition to provide a space for questions, answers, comments, complaints, and general angst about the article submission windows. (Dan spoke, and Matt still speaks, reverently of this as the time of Redyip's semi-annual return).
Either way, the "Fall" submission window is open and angsting may commence.
So, if you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.
Update: the last page of comments is here.
Guest prawfs, unite
An email and Kelly's comment on my prior post raised two administrative issues.
First, Dan undoubtedly extended guest invitations to people for the coming months (not sure how far in advance he went, but I imagine he had people lined up for this month and next, at the very least). So if you had already agreed to guest-blog at anytime in the remainder of 2014, please email Paul Horwitz and me; we will happily continue with Dan's schedule.
Second, if you are a past guest-prawf and would like to do so again--or even simply write a single post in Dan's honor-- please email Paul and me.
Return to blogging
We remain saddened and stunned by Dan’s tragic death, although buoyed by the overwhelming outpouring of love, respect, and appreciation for everything he achieved in his career and life, including establishing PrawfsBlawg. With that in mind, we wanted to let everyone know that we plan to move forward with PrawfsBlawg and to continue the conversation and community that Dan created. Beginning this week, the remaining permanent bloggers, along with new permanent blogger Sarah Lawsky and the July holdover guests, will resume posting. Thanks to all of you for your support.
As we move forward, we also want to think about the future of PrawfsBlawg and how to both carry forward and build on Dan’s legacy. So we welcome your thoughts, comments, and ideas on how best to continue this community and this dialogue, even in the face of our loss. I should add that you can leave remarks in the comments or email any of the perma bloggers.
Friday, August 01, 2014
The first MarkelFest!, co-sponsored by PrawfsBlawg and CoOp, on Saturday, August 2, from 8:30-? in the Seaglass Lounge (located directly off the lobby of the Omni). Beer and other drinks are $ 1 off and lounge food is on the menu. Come continue Dan's tradition of blog-sponsored conference gatherings.
Florida State College of Law will sponsor a formal memorial for Dan on Monday August 4, from 6:15-7:15 in Magnolia D. Approximately 50 people already have expressed interest in attending and/or speaking; Wayne Logan (FSU) will be reaching out with more details. If you have not responded and are interested in attending, please fill out this form.
Monday, July 28, 2014
Bay Area Memorial
Jonathan Simon, Malcolm Feeley, and Ashley Rubin have organized a small Bay Area gathering for Dan's friends at 4:30 p.m., this Wednesday, July 30, at Berkeley Law. You can email Jonathan (email@example.com) or Malcolm (firstname.lastname@example.org) for more details.
First MarkelFest! at SEALS
The first MarkelFest! will be at SEALS this Saturday, August 2, from 8:30-?, in Seaglass Lounge at the Omni Amelia Island Plantation. Drinks and lounge food are available. Continuing Dan's tradition of blog-sponsored conference get-togethers and now under a new moniker, this is co-sponsored by PrawfsBlawg and Concurring Opinions. Seaglass is located directly off the lobby of the hotel.
Come remember Dan with your best tales and stories and continue his beloved tradition of blog-sponsored gatherings. Hope to see everyone there.
FSU Memoral at SEALS
Florida State will sponsor a formal memorial program on Monday August 4, from 6:15-7:15 in Magnolia D. Approximately 50 people already have expressed interest in attending and/or speaking; Wayne Logan (FSU) will be reaching out with more details. If you have not responded and are interested in attending, please fill out this form.
Tuesday, July 22, 2014
Memorials for Dan Markel (Updated)
So much outpouring of affection for our friend.
1) At Brooklyn Law School as we speak (it began around 5:30). It is on the 22d floor of Feil Hall, 205 State Street (building # 3 on this map). Sorry for the late notice; get there if you can.
2) Correction: The informal gathering at Harvard Hillel happened on Wednesday (yesterday). aplogies for the confusion. You can email Jill Goldenziel at "Jill underscore Goldenziel at hks dot harvard dot edu" for further information. Apparently, HLS Dean Martha Minow and the director of Hillel both indicated a desire to do something more formal in the future. Stay tuned.
3) Funeral and shiva in Toronto on Thursday. You can email any of the perma-Prawfs for more details and information on these events and on memorial tributes.
4) Florida State will sponsor a memorial at the upcoming SEALS Conference at Amelia Island on Monday August 4 from 6:15-7:15, right after a discussion group in which Dan was to participate. Precise location will be announced soon. If you plan to attend, please fill out this form.
5) Also at SEALS, will be the first-ever MarkelFest! on Saturday evening, August 2 (Time and Location T/B/D). As you know, blog-sponsored happy hours have been a regular feature at the major prawf conferences, thanks to Dan's energy and organizational skills. Steve Vladeck suggested that all such gatherings should henceforth be known as MarkelFest!(s) and we agreed.
6) Law and Society's Collaborative Research Network # 27 (Punishment and Social Control), will host a panel in Dan's memory on retribution at the 2015 Law & Society Association Annual Meeting in Seattle, May 28-31, 2015. Regular Guestprawf Hadar Aviram is co-chairing the group. Anyone whose work corresponds with Dan's or retributivism and is interested in participating on that panel can send an abstract to Hadar.
We will post information about other local gatherings and memorial efforts as we receive them.
Saturday, July 19, 2014
Chokeholds and clearly established rights
This is a tragic story and has all the trappings of yet another racially polarized split involving police, city government, and the public. Plus, we have video, with all the confusion and false certainty that goes along with visual images of police-public encounters gone bad. The NYPD, the City, and the DA all are investigating, and I would not be surprised if DOJ jumped into the mix at some point (likely depending on what the City and DA do).
I want to skip ahead to several interesting issues that likely will arise in the inevitable § 1983 action:
1) What will the court do with the video on summary judgment? As I wrote in a draft paper for a SEALS discussion group, the Court last term in Plumhoff v. Rickard, just as in Scott v. Harris, was all too willing to interpret the video for itself and identify its single meaning (in favor of the defendant officer) as a basis for granting summary judgment. Will courts be similarly bold with potentially more damning video or will they be less willing to find a single message and leave it all to the jury? On that note, check out the lede of The Times article describing the officer "holding him in what appears, in a video, to be a chokehold." (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see. But it is veery different than what everyone (press, government officials, and courts) has done in, for example, describing video of high-speed chases.
2) According to The Times, chokeholds are expressly prohibited by NYPD regulations. How will that affect the qualified immunity analysis? In Hope v. Pelzer and Wilson v. Layne, the Court looked at department regulations and whether they endorsed or prohibited some conduct as indications of whether theright at issue is clearly established. While not conclusive, administrative regs can support a doctrinal consensus or demonstrate the absence of that consensus. Absent case law holding that chokeholds always violate the Fourth Amendment or violate the Fourth Amendment when in furtherance of arresting non-violent offenders, what will the court do with this officer violating clear departments regulations in dealing with a non-violent offender (they were trying to arrest the victim for selling loose cigarettes on the street).
3) What happens when the plaintiff tries to make his Monell claim against the city? On one hand, the express prohibition on chokeholds in department regs would seem to weigh against any argument that the city had a policy of allowing its officers to utilize such holds, since the very opposite is true--he really is the "bad apple" expressly disobeying how we told him to behave. On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. (Note that many of those complaints never go anywhere or are unsubstantiated--the point is that many citizens are talking about officers using chokeholds).
Thursday, July 17, 2014
Marriage equality in Florida
Judge Luis Garcia of the 16th Judicial Circuit of Florida (the higher-level trial court covering the Keys) has invalidated Florida's prohibition on same-sex marriage, finding that marriage is a fundamental right for Due Process purposes and that there is no rational basis for prohibiting same-sex marriage. The ruling does not take effect until next Tuesday, July 22. This is one of three actions in Florida challenging the anti-equality constitutional amendment passed in 2008--the other two are in state court in Miami-Dade County and in federal court in the Northern District of Florida.
Several quick thoughts:
1) Judge Garcia is up for non-partisan election this fall; let's see what happens in that race.
2) I genuinely expected Florida to be one of the stragglers that would get marriage equality only when SCOTUS finally spoke after 40 other states had eliminated SSM bans.
3) At this point, we need to stop reporting on trial-court decisions, since they are all going in one direction, but their coverage is so limited. It really will matter when federal courts of appeals and state supreme courts begin speaking out.
4) Is it even remotely possible that these lower courts are all getting it wrong? Is there any chance that appeals courts will split or go in different directions or that SCOTUS will ignore the singular position of these lower courts and hold that SSM bans do not violate the Constitution?
Tuesday, July 15, 2014
Weird Al teaches English
And Slate evaluates the rules he espouses in the song. Someone said this could be the new generation's "Conjunction Junction."
JOTWELL: Levy on Bray on declaratory judgments
The new essay for JOTWELL's Courts Law comes from Marin Levy (Duke), reviewing Samuel Bray's The Myth of the Mild Declaratory Judgment (Duke L.J.). Sam's article is terrific and both it and the review essay are worth a read.
Sunday, July 13, 2014
The risk to catalyzed fans
As everyone in the Free World now knows, LeBron James chose not to re-sign with the Miami Heat and is on his way back to Cleveland to play for the Cavs, the team he abandoned (to angry rants and burned jerseys) four years ago. So it appears the efforts of two Miami sports-radio hosts to use charitable fan contributions to help keep James did not work.
This demonstrates the risk in Dan, Mike McCann, and my idea about fan action committees--it might not work and if it might not work, fans might not want to participate (I have not been able to find out how much money was donated to Boys & Girls Club or how many fans contributed). One way around that is to utilize a trigger, as many kickstarter campaigns do--the contribution remains only a pledge until and unless the player signs; this one did not have a trigger, and I imagine most charities will not allow triggers when the program is set up directly through the organization (as this one was). Alternatively, organizers hope fans still contribute despite the risk. Perhaps fans continue to donate as a way of engaging in the purely expressive act of showing their support for team and player; fans spend money on many things to support their team--why not charity? Alternatively, fans may be willing to participate because contributing to the charity is a social good (note the non-political nature of the chosen charity) and worth the donation, even if not achieving the alternative goal of convincing James to stay.
Tuesday, July 08, 2014
Determining the effect of video
Just coincidentally, three stories are simultaneously in the news involving potential police misconduct caught on video. The recordings are after the jump (these are partial, although fuller recordings of some are available):
1) A California Highway Patrol officer (Erik Estrada never did this) takes a woman to the ground on the side of the highway.and repeatedly punches her, including in the head. The video was taken by a passing driver. The matter is under investigation.
2) A South Carolina state trooper arrests Sam Montgomery, an NFL player, for driving more than 25 m.p.h. over the speed limit. The officer threatens to TASE Montgomery for not cooperating. This is dashcam video. The trooper was suspended for failing to treat Montgomery with the expected courtesy.
3) A Lafayette, Indiana police officer shoves a man in a wheelchair with two hands, causing the chair to tip over and the man to go sprawling on the sidewalk. The shove occurred after the man rode over the officer's foot while departing an encounter with the officers, who had been called to the scene when the man allegedly told officials at a school that he had a gun. The department sought to fire the officer, but a civil service board reduced the punishment to a 30-day suspension without pay, demotion, and probation. This is dashcam video.
These three stories tell us a few things about video and its role in parsing events.
First, it should call into doubt the argument that allowing citizens free-range to video police in action will change officer behavior, making them over-cautious because of how things will "appear" on the video and the snap judgments people might reach. But video in two of these cases came from the officers themselves and, even knowing they were being filmed, they still engaged in some, at least, questionable behavior. So if officers are threatening and shoving people knowing they are being filmed by their own cars, there is no reason to believe that thei behavior will change by the possibility of being filmed or recorded by someone else. And that is before any argument that we want the chilling effect that the threat of video might have on officers.
Second, these videos show why the Supreme Court was wrong in its treatment of video on summary judgment in Scott v. Harris and this past term in Plumhoff v. Rickard. The videos do not "speak for themselves," as demonstrated by the wide range of responses to them, responses that seemingly confirm the Kahan thesis about how personal characteristics and political preferences affect perception of video. There likely is more that each video does not show or fully contextualize. If we would not grant summary judgment in favor of the arrestees in any of these cases (and I doubt we would), then we should not grant it in favor of the police in other video cases.
Third, I have to admit to feeling some sympathy for the trooper in # 2. Reading press accounts, it sounded like the officer simply started out acting in an overbearing and overofficious manner. But in watching the video, Montgomery is not following the officer's instructions to put his hands behind his back with his palms up in the air, keep his feet apart, and face away from the officer. The reason appears to be not resistance but confusion about what the officer wanted and how to do several things at once (try putting your hands behind your back with palms up--it's not a natural position). So while the officer perhaps jumpted to the TASER pretty quickly, it sometimes is hard to distinguish confusion from disobedience. Of course, given my political and social views, my viewing the video in that way flies in the face of everything Kahan, et al. would have predicted.
And now the videos. Draw your own inferences as if you are a juror, think about inferences if you are a judge on a motion for summary judgment.
Thursday, July 03, 2014
Federalism, RFRA, and Free Exercise in the next Hobby Lobby
Someone please tell me if I am wrong on the following points in the potential next round of Hobby Lobby-type litigation.
A major concern after Hobby Lobby is that similar closely held corporations will raise similar objections to legal obligations to hire (and not create hostile environments for) women, racial minorities, pregnant women, religious non-believers and other-believers, LGBTQ people, etc., as well as obligations to serve and do business with those groups.
Here is the thing. Protections for LGBTQ employees and customers are, at this point, not federal; they exist only in some states and/or some municipalities. But RFRA and strict scrutiny does not apply to state or local laws under City of Boerne. So any such claims to avoid those state or local obligations must be brought under the Free Exercise Clause and are likely to fail under Smith, since laws prohibiting discrimination in employment or public accommodations appear to be neutral laws of general applicability. The only way around that is if the company can tie some other constitutional liberty in (such as Free Speech in the wedding photographer case). So, ironically, LGBTQ people may be better off in this realm than women, since the corporation can rely only on the First Amendment, not a statutory strict scrutiny, to avoid its non-discrimination obligations.
Pushing it a bit further: Every state has a prohibition on race, gender, etc., discrimination that parallels federal law. So even if a hypothetical company could claim an opt-out from Title VII's ban on sex discrimination in hiring based on RFRA, that company still must comply with the state ban on sex discrimination in hiring, which, if challenged, again would only receive Smith-level Free Exercise scrutiny and the challenge likely will fail.
On the other hand, many states have their own RFRAs, which would require strict scrutiny of state anti-discrimination laws and might require analysis similar to Hobby Lobby. But that case at least would be litigated in state court, with the state's highest court having the last word; that court would not be bound by Hobby Lobby, may be less solicitous of accommodation demands (depending on the state), and might adopt the Ginsburg view on the question. Such a case would not be reviewable to SCOTUS, because a decision applying state RFRC would be an independent and adequate state ground for the decision. So the future of Hobby Lobby may produce some interesting federalism angles.
Monday, June 30, 2014
Catalyzing Miami Heat fans
LeBron James has opted out of the final year of his contract with the Miami Heat and become a free agent (although he is generally expected to re-sign with the Heat for less money, allowing the team to sign better surrounding players). Just to be sure, the hosts of a show at a Miami sports radio station have announced LeBron-a-Thon, expressing support for James by raising money for Boys & Girls Clubs of Broward County. One of the hosts kicked things off with a $ 1000 donation.
This is an example of what we describe in the paper as a charitable FAC. James is a big supporter of Boys & Girls Club--"The Decision," the ESPN media circus in which James announced his intention to sign with the Heat in 2010, was designed to raise money for that organization. This also shows how easy it is to set something up, although we obviously will have to wait to see if it succeeds in 1) raising significant amounts of money or 2) helping keep James in Miami (causation will be impossible to show, of course). This is slightly different than what we discuss, as there is no trigger--money is donated to the charity regardless of what James does. But this highlights the purely expressive nature of such FAC contributions--fans are saying, in essence, "we appreciate you and so want you as part of our team that we will contribute to a worthy cause that is dear to you." Moreover, the monetary benefit to this reputable charity from fan donations likely represents a net public good, as charity presumptively does, regardless of what James chooses to do.
Now we wait to see what teams beside the Heat emerge as suitors for James and whether fans of those teams launch a similar campaign.