Sunday, October 02, 2016
Taking Bartnicki for a drive
The working assumption is that Donald Trump's old tax forms were released unlawfully, but that The Times was not involved in any leak. If so, the publication is protected by Bartnicki v. Vopper and Florida Star v. BJF as publication of truthful, lawfully obtained information on a matter of public significance. Even Justice Breyer, who concurred in Bartnicki but was hesitant to grant a broader constitutional immunity to the press, would agree that a candidate's tax returns are of "unusual public concern," outweighing any privacy interest Trump may have in these forms.
Of course, that assumes the source of the forms is not Marla Maples, Trump's former wife and co-signer on the returns.
Update: Ron Collins writes about the First Amendment protections The Times enjoys here, including comments from leading First Amendment attorneys and scholars, who uniformly agree that Trump has no chance of prevailing in a lawsuit, not only under Bartnicki, but also under The Pentagon Papers (which, while a prior-restraint case, reinforces the right to publish truthful, lawfully obtained information on a matter of public concern).
Friday, September 30, 2016
Roy Moore suspended for remainder of term
The Alabama Court of the Judiciary suspended Chief Justice Roy Moore for the remainder of his term in office. The focus of the charges was a January 2016 administrative order, in which Moore advised the state's probate judges that the court's March 2015 (pre-Obergefell) mandamus order prohibiting issuance of marriage licenses to same-sex couples remained in effect. In part, Moore stated that the judgment in Obergefell bound only the parties and only declared unconstitutional the marriage-equality bans in four states, thus it did not undermine SCoAL's earlier orders.
The judiciary court rejected those arguments, relying on long quotations from Cooper v. Aaron and the view that a SCOTUS declaration of constitutional meaning is, without more, binding on everyone everywhere. So Moore's order/advice regarding conduct by probate judges in conflict with the holding of Obergefell violates various judicial canons. The court's analysis of Cooper is inconsistent with the model of judicial departmentalism I have been urging--holdings judicial opinions do not formally bind anyone beyond the parties, including lawyers and public officials, until they are reduced to judgments against those individuals, which they will be because the holdings bind lower courts. The decision also overreads Cooper by forgetting what the Court really was upholding against state resistance--not Brown, but a Brown-based lower-court injunction. Plus, it was unnecessary in this case--Moore's real violation here was ordering/advising probate judges to violate not Obergefell, but a federal district-court order to which every probate judge was party and unquestionably bound that was made enforceable in light of Obergefell. That judgment gets passing reference, but the real focus was how Moore disregarded Obergefell.
Oh well. It is tempting to say Moore's judicial career is over. But I have no doubt he could win reelection to the court if he tried.
Further Update: This is among the most inaccurate things I have read by someone with a law degree. Writing about Moore trial:
This is the heart of the issue. According to Moore and Staver, the decisions of Alabama’s highest court are not subservient to those of a federal district judge. This goes against 200-plus years of constitutional interpretation that does put state courts below federal ones, of course.
“The state courts and the federal courts have co-equal authority,” Staver argued in a phone interview before the trial. “And one does not have to follow the other if they are making a decision on the U.S. Constitution.” This is not how the Supremacy Clause of the U.S. Constitution works, though.
Just, no. State courts are not "below" lower federal courts; they are co-equal courts that are all inferior tribunals to SCOTUS. Lower-federal court precedent is not binding on state courts or state judges (unless the state court chooses to be bound by that precedent). State courts and lower federal courts do have co-equal authority as to federal law. Congress was not obligated to even create lower federal courts; had it not done so, state courts would have been the only courts interpreting federal law other than SCOTUS.
We can debate departmentalism and the binding effect of SCOTUS precedent (as opposed to judgments) on non-judicial actors. But to say that state courts are inferior to lower federal courts reflects a complete misunderstanding of the judicial structure in the United States.
Donald Trump . . .
is not Hitler; he is Woody Allen's character in Bananas.
Designated Survivor, S1E2
I think I am out.
In part, as one reviewer said, it is a network drama--everything is on the nose and explained, in a way that comes across as stilted and unrealistic. For example, when the President reveals that he had lied about undercover agents to get the governor of Michigan to order the state police to stop rounding up Muslims, his aide announced "he was bluffing." Thanks for that. In part, it takes a craven and unrealistic view of the media and the public and how they are likely to react to, and report on, this story. A lot has changed in our political and media culture since 2001, to say nothing of earlier. But I would expect that, at least during the first 48 hours, someone in Kirkman's position would get a great benefit of the doubt from the press and the public, much as Lyndon Johnson did.
Still, the show followed some interesting threads this week. Unfortunately, I am just not sure the interesting threads overcome the other, less enjoyable pieces of the show.The relevant story line (ignoring the whodunnit investigation and the drug-dealing teenage son, neither of which interests me) is that the Governor of Michigan ordered State Police to roundup Muslims in Dearborn, resulting in many arrests and the beating death of one teenager by a police officer (captured, of course, on video). The Governor explicitly rejects Kirkman's presidential authority, insisting Kirkman is not "his" President and that the Governor is the highest authority in the state.
This presents an interesting continuity-of-government problem--what if the governor of a State, an independent sovereign, declines to recognize the authority of the acting president. I believe the non-craven view of politics would prevail, at least in the early hours.
But the show goes off the rails when Kirkman looks for a solution. He speaks with two people from the Attorney General's office (or maybe two possible candidates for AG), who give absolute gobbledygook for advice. Thing 1 suggests the President can "invoke the Supremacy Clause" (a phrase which is meaningless) and issue an Executive Order requiring the governor to force his police to stand down (something for which there is no legal authority). Thing 2 says an executive order can be perceived as "hostile," instead recommending a presidential proclamation; when Thing 1 responds that would be a weak, symbolic, empty gesture (it is), Thing 2 reminds that President Bush used proclamations to secure disaster areas after Hurricane Katrina--which might have been effective because FEMA was in charge of the area, but has nothing to do with the current problem. Naturally, the lawyers both come across as useless schmucks. Later, the President's wife (also a lawyer) reminds her husband of Kennedy calling out the National Guard against George Wallace, but Kirkman rejects that as a "nuclear option."
Missing in all of this, of course, is that the President cannot simply order--via national guard, proclamation, executive order, or video phone call--states and state officials to do or not do anything. Even if the state is acting unconstitutionally, the federal government cannot simply tell the state what to do (or it can, but cannot expect the order alone to have any legal effect). The correct answer to the problem is for the US to sue Michigan for this massive constitutional violation, while perhaps bringing a § 242 prosecution against the officer who beat the kid to death. Or the US could support the private lawsuits that the ACLU (which is described as denouncing the round-ups, but nothing more) would be sprinting to the courthouse to file. And when the court orders the state to stop rounding up every Muslim in the city, either a) the governor complies with the order (because they usually do) or b) Kirkman calls in the National Guard (the show, like everyone else, forgets that Kennedy could call in the National Guard only after a federal court had enjoined Wallace from interfering with integration of the university--Kennedy did not simply annouce that Wallace had to stop interfering and then send in troops).
And even if a lawsuit takes time, the threat of a lawsuit and its enforcement might have been enough to get the governor to stand down. In fact, it might have been a good way to show Kirkman's power: "You may not regard me as 'your president,' but vested in me is the executive Power of the United States and I can still bring it down on you and your State if you do not fall in line." That would have been a better show of legal force; instead, the show went for Kirkman's cleverness (he lied that the sweep had caught up undercover federal agents, so the governor was obstructing justice) in an unrealistic maneuver.
Of course, a lawsuit would be more "hostile" than an executive order (especially because it actually would be valid in law, so it would have, you know, actual force). But here is a different narrative problem. During a public appearance at the bomb site, the public and press begin shouting at Kirkman about the civil rights violations in Michigan (interrupting his Bush-esque speech on a bullhorn), accusing him of not being concerned about such violations and of allowing Americans to be beaten. But if that is the public mood (that the Muslims being arrested are "Americans" deserving of protection), then the lawsuit and enforcement of the resulting injunction would be quite popular, or at least not seen as hostile. In which case, this ceases to be a "nuclear" or "hostile" option of which Kirkman should be afraid. The show wants to have it both ways narratively--Kirkman is under attack for not doing anything about civil rights violations, but he would be pilloried if he did something because the nation is again afraid of, and hostile to, Muslims.
Finally, we get talk of reconstituting the government. Kirkman insists on putting together a cabinet and sends his HUD aide and the WH Deputy Chief of Staff (the two clearly have had sex in the past) to come up with names. There is no mention of states either appointing Senators or calling for House elections. This raises one interesting, although unexplored, point: With no Senate (and again, no mention of appointments), no one can be confirmed as a cabinet officer; they only could be acting secretaries. Given that, would an acting president seek out new appointees to these posts? Or would he just elevate the # 2 in each department to acting secretary, to maintain some continuity within the department?
As I said, I think I am out. Because although the show has teased some interesting threads, it is not playing them in a way I find interesting or enjoyable.
Thanks to our September guests, who may be sticking around for a few extra days.
For October, we are going to try something different with our guest slate. With the election looming, we decided to do a month-long symposium, with expert guests writing about the election, election law, and related issues, such as what might happen after the election and in the new administration. I am happy to introduce Josh Douglas (Kentucky), Ned Foley (Ohio State-Moritz), Lisa Manheim (Washington), Michael Morley (Barry), Bertrall Ross (Berkeley) and Franita Tolson (Florida State). They will be with us for October and perhaps through to the election in early November.
We look forward to a great, and unique, month of posts, from our guests and our regular bloggers.
Monday, September 26, 2016
Random thoughts on a Monday morning
Because none was worth its own post:
1) Having now watched the pilot of Designated Survivor, I still cannot decide whether to stay with it. As I said before, some of the exposition about succession and about Kirkman's position--designed to show his resolve and the Kal Penn character coming to believe in him--would never be uttered by anyone working in the White House. (Although I did like that the Penn-Kirkman conversation began through the wall of a bathroom stall, so Penn had no idea who he was talking to). Otherwise, the show looks like a story of 1) hero FBI agent who wasn't even supposed to be on the scene shows up, convinces boss to let her stay rather than to do what she is supposed to, and immediately starts ordering everyone around as if no one beside her had any clue about how to do an investigation and 2) evil deputy chief of staff and evil warmongering Chair of Joint Chiefs plot to seize power away from the only lawfully authorized executive (hint: That is more than "close to" treason). And neither of those types of shows interests me (your mileage may vary, obviously). I will watch again next week, but I am not sure how long I will stick around.2) Sandy Levinson hypothesizes a 269-all tie (or faithless Republican electors worried about President Trump) producing Acting President Kaine, followed by Acting President Kaine being displaced by President Romney or Ryan soon thereafter. Of course, what Sandy describes is, in part, the last season of Veep, confirming my point that such events would produce a genuine constitutional and political crisis, not the calm, happy, celebratory (for everyone but Selina) inauguration the show depicts in the final episode. Sandy's further point is that it would fly in the face of any conception of how a rationally democratic electoral system should work.
3) I will not watch the debate this evening. I already know the outcome: Trump will be deemed to have "won" the debate because he "seemed Presidential" by standing behind a podium and speaking without behaving like a raving lunatic or explicitly calling for the arrest or assassination of his debate opponent (implicit calls will, of course, be fine). And that will be true even though the words spilling from his mouth will be 1) provably false (but unchallenged), 2) incoherent word salad betraying a complete lack of understanding beyond the simplest of ideas and slogans, and 3) provably false. Nothing Clinton can do--no matter her policy expertise and ability to debate ideas--will overcome media comments about her demeanor and appearance and the lowered expectations for Trump, under which he wins by looking a normal human being, regardless of what he actually says. And that will carry the "conventional wisdom" day.
4) I have shut-out all election news for the past few days (in particular, no peaking at poll forecasters). Count me among the anxious. I, as an unabashed Democrat, rooted for Trump to win the GOP primary because I believed he would be the easiest opponent to beat--I simply did not conceive of a world in which someone so obviously unqualified and ill-suited for high office could capture sufficient votes. What I did not realize until the past few weeks is that the institutional mechanisms for checking Trump's worst abuses--lies, media manipulations, inability to control himself, appeals to some subset of voters attracted to bigoted ideas and policies, economic ties to a frisky foreign rival, policies that are constitutionally suspect, lack of basic understanding, incompetence, and more lies about all of it--did not exist, at least not in the robust fashion I imagined. Either the press is not talking about it. Or, to the extent they are, no one who matters is listening. I do not know if it is possible to float through this as ignorant as possible and be surprised (one way or another) on November 9. But I may try.
5) To the extent anyone is talking about Merrick Garland anymore, the comment is often made that this would be the first time since 1968 the Court had a Democratic majority. But to the extent that is code for it being the first time since 1968 there has been a liberal majority, the two do not overlap. The 1968 Democratic majority was Black, Douglas, White, Fortas, and Marshall. But the liberal voting bloc was comprised of Warren and Brennan, not White, who was not a consistent judicial liberal on many issues The distinction matters and should be highlighted, because it illustrates the shift in who gets appointed to the Court by both parties. As has been the case since Sotomayor and Kagan replaced Souter and Stevens, judicial ideology perfectly aligns with party affiliation.
Sunday, September 25, 2016
Submitting to online journals
Saturday, September 24, 2016
JOTWELL: Erbsen on Gilles on arbitration and doctrine
The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Myriam Gilles, The Day Doctrine Died: Private Arbitration and the End of Law (U. Ill. L. Rev.), exploring how the use of private dispute resolution, especially arbitration, affects the evolution of legal doctrine.
Monday, September 19, 2016
Aargh, avast yee, ATS plaintiffs
Today is International Talk Like a Pirate Day. Unfortunately, I did not find that out until late today. Because this morning in Fed Courts, I taught the Alien Tort Statute and Sosa, which identified piracy as one of the acts that could be the basis for an ATS claim. The confluence would have been perfect. And, like Thanksgivukkah, the opportunity will not come around again for years.
Supreme Court Fellows Program – Call for Applications
The Supreme Court Fellows Commission is accepting applications through November 4, 2016, for one-year fellowships to begin in August or September 2017. The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission. Fellows gain practical exposure to judicial administration, policy development, and education. In each of the four placements, the Fellow will be expected to produce a publishable paper and will have unique access to federal judges, and to officers and staff of the federal judiciary, in connection with the research project.
The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service. Fellows will receive compensation equivalent to the GS-13/1 grade and step of the government pay scale (currently $92,145) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary. Appointments are full-time and based in Washington, D.C. A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2017, and finalists will be contacted on selection decisions within one to two weeks after interviews.
Thursday, September 15, 2016
I think I agree with this
From David Wasserman (no relation) at Cook Political Report: "Beginning to think beyond-pale Trump statements are the oxygen Clinton needs to sustain large polling leads. Last few weeks, been in a lull." We can debate whether there has been a lull in beyond-the-pale statements or whether the press has stopped reporting on them because they have become so commonplace and the press would rather write about emails. But I think the basic idea is correct.
Tuesday, September 13, 2016
House subcommittee hearing on complete diversity
The House Judiciary Committee/Subcommittee on the Constitution and Civil Justice held a hearing (includes video) Tuesday on whether to eliminate the requirement of complete diversity in the basic jurisdiction statute. Witnesses were attorney Charles Cooper, Joanna Shepherd (Emory), and Ronald Welch (Dean, Baltimore). (H/T: Jim Pfander and Patricia Moore). Both Cooper and Shepherd argued for adopting minimal diversity as the statutory standard, Cooper for constitutional reasons (that do not hold up to the prevailing doctrine or theory) and Shepherd because it would have only a minimal effect on the federal docket that could be minimized by filling judicial vacancies or ratcheting up the amount-in-controversy requirement (which has not moved in more than 20 years).
The paradox of expanding the jurisdiction of the federal courts in this way (largely for defendants seeking to remove) is that the goal is to take advantage of the merits-based and procedural narrowing of access to the federal courts (via Twiqbal, limits on discovery, etc.) against the plaintiffs. In other, moving to minimal diversity would open the courthouse doors in order to slam them shut.
The proposal will not go anywhere, not least of all because federal district judges, who were not heard from here, hate diversity jurisdiction. Nevertheless, it is interesting to see how the shifting political positions with respect to federal jurisdiction, particularly in these state-law cases, in which the supposed Republican commitment to federalism would require deference to state power and state institutions.
Two additional points, as I think of them. First, Cooper's testimony recasts diversity as a measure for protecting interstate commerce generally, as opposed to protecting outsiders who cross state lines. So recast, diversity becomes about anti-corporate bias writ large, since corporations are the ones seeking to "be" everywhere at once. Second, I wonder what Cooper would make of the Hulk Hogan/Gawker case, where the big conservative money was Peter Thiel and Hogan, but minimal diversity would have allowed Gawker to remove and likely to win before a smarter federal judge more willing to respect the First Amendment.
Sunday, September 11, 2016
I am intrigued by the new ABC show Designated Survivor (long trailer after the jump, premiere on Wednesday, 9/21), which shows the HUD Secretary (played by Keifer Sutherland, wearing a Cornell hoodie and glasses to show that he is an egghead and no Jack Bauer) becoming acting president (not president) when the Capitol is destroyed by a terrorist attack during the State of the Union address.
I am curious where the show goes. It would be interesting to see the process of reconstituting a government, especially Congress. It also would be interesting to see the process of the executive trying to do anything without a legislature (as opposed to a legislature that just will not do its job). I am not particularly interested watching a revenge fantasy a la 24 (this gut-reaction preview suggests it feints in the latter direction at times). Nor The West Wing without political legitimacy, a basic political drama.
Instead, I hope the show recognizes, and plays, the uniqueness of the premise. This is more than a political drama or even a political drama about an individual thrust into circumstances for which he may not be prepared and having to grow into the job (think Harry Truman). This is that, but in a last-gasp, no-alternative situation, in which our basic governmental structure is gone or has to be recreated on the fly. I hope the show embraces that.
Around the 1:35 mark in the trailer, Sutherland is talking with a speechwriter played by Kal Penn. As the scene is shown here, Sutherland asks whether Penn thinks he should step down, Penn says "I do," and Sutherland responds that he may be right, but for the moment he is all they have. It is a good line, designed to show Sutherland's steely resolve to rise to the occasion. But the conversation undermines the show's premise or the intelligence of its characters. That is a conversation you have when there is a choice ("Sorry, A, but B would be a better president). Who does Penn want Sutherland to step down in favor of? Or who does Penn believe Sutherland could step down in favor of? He is literally the only person on the planet legally authorized to wield the executive Power of the United States. Anyone else acting as president would do so contrary to law (put aside whether we would accept and retroactively ratify such actions). Sutherland's "For now, I'm all you've got" drives the point home. But the head WH speechwriter, someone who presumably knows something about how the government works, already should know that.
Plus, the situation allows for depictions of genuine political intrigue that at least merit discussion, rather than ginned-up stories of Machiavellian chiefs of staff. Suppose one member of the House (not the Speaker) survived the attack, declared himself elected as Speaker by a majority vote of one member, and tried to argue that he had prior authority to act as president (raising some quorum concerns that have never been resolved). Or suppose the duly elected Speaker of a reconstituted House insists he has prior entitlement. Section 19(d)(2) (providing, in a convoluted fashion, that a cabinet member acting as president cannot be supplanted by a legislative officer acting as president) seems to resolve that, but this is all new ground and arguments always can be made. The show also could depict the holes commentators and advocates (including me) have identified in the succession statute, especially post-9/11: The absence of a mechanism to quickly reconstitute the House; the need for a special presidential election when an unknown, inexperienced, lower-level cabinet secretary (who may have been fired that morning) takes the executive power. But I doubt this creates enough drama compared with Jack-Bauer-in-glasses-and-a-Cornell-hoodie.
Finally, I never looked into the designated survivor practices when I was writing about this, so I was not aware of a paradox, in terms of political legitimacy. The highest cabinet officer ever to be the designated survivor has been the Attorney General on three occasions (John Ashcroft, Alberto Gonzales, and Eric Holder), which is fourth on the cabinet list. Secretaries of State, Treasury, and Defense are never designated, even though they are the highest-profile and most likely to have political, and even presidential, experience (of the last four Secretaries of State, two had run for president and one was a top military official who everyone had wanted to run for president) that would be important in the event of a catastrophe.
Anyway, I look forward to beginning to watch this. I hope they do something good with it.
Friday, September 09, 2016
Commitment to furthering social change
A friend at another law school shared the following (the story is made anonymous, and non-gender-specific, for the benefit of all parties):
My friend wrote an empirical article, concluding that the data did not support removing military commanders from the courts-martial system in sexual assault cases. She/he submitted it to a law-and-social-policy/social-change journal at a t20 school. The journal rejected it, writing the following: "Our editors felt that your piece provided interesting data analysis; however, we do not feel that your framing of the issue and your ultimate conclusion align with our journal's commitment to furthering social change."
This is a staggering thing for an academic journal to say out loud, even if many people believe such biases exist in publication decisions, in law and other disciplines. It is more staggering for an empirical article. If editors disagree with an author's conclusions in a normative or theoretical piece and reject it on that basis, that is troubling, although separating evaluations of quality from agreement with the conclusion is a difficult intellectual exercise. To reject an article because the conclusions from the empirical data do not "align" with a commitment to "furthering social change"--while not questioning or challenging either the data or the data analysis--is nakedly anti-intellectual. Not to mention counter-productive: If you are committed to furthering social change in the area of military sexual assault, wouldn't you want to rely on data that helps identify the best solution to the problem and directs you away from solutions (pulling commanders from the process) that will not resolve the problem? (This problem is not limited to law, but extends to the hard sciences).
JOTWELL: Thornburg on Gilles on class actions and low-income litigants
The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Myriam Gilles' Class Warafre: The Disappearance of Low-Income Litigants from the Civil Docket (Emory L.J.), which explores the disparate effects of restrictions on aggregate litigation on low-income litigants.
Tuesday, September 06, 2016
Too politically charged?
The Second Circuit last week decided Sokolow v. PLO, holding that a federal court in the United States lacked personal jurisdiction over the PLO and Palestinian Authority in an action brought by a number of U.S. citizens and their family members, arising from some terrorist attacks in Israel. The case contains good analysis of both the new general-jurisdiction analysis after Daimler and the new effects test after Walden.
This would be the type of case I would use for a subject essay on personal jurisdiction in Civ Pro. But is the underlying subject matter too hot and too controversial? Will people who feel strongly about either (or both) sides of this debate find the subject too painful, hurtful, etc.? Will I be seen as insensitive to one (or both sides)? Is this likely to get a reaction similar to the First Amendment exam question about whether Michael Brown's stepfather could be successfully prosecuted for incitement?
As I think I have written before, I like using real-world cases/problems for exams and essays. And I like questions that force students to look past their political preferences to see and explore the legal issues in a case--one's political views about Israel and the Israel-Palestine conflict should be irrelevant to whether the PLO is "essentially at home" in New York. But in this case, am I asking for trouble?
Thursday, September 01, 2016
Thanks to our August guests, who may be sticking around for a few more days.
And welcome to our September guests--Matthew Bruckner (Howard), Jennifer Bard (Dean at Cincinnati), Jeffrey Lipshaw (Suffolk), Jack Preis (Richmond), and Ari Waldman (New York Law).
Wednesday, August 31, 2016
Bard Signing In
Let me start my third visit to Prawfs Blog with warm thanks to Howard Wasserman and to my fellow bloggers for the work they have done keeping this forum going. As the public information about Professor Markel’s murder becomes increasingly lurid, I’d rather focus on his work than on the circumstances of his tragic death. And from the beginning his work on this blog was to provide legal academics a forum to talk to each-other about matters of interest to them—whether it was highlighting a new study, commenting on a case or talking about legal academe.
As a brief self introduction, I’m starting my second year as the very proud dean of the absolutely amazing University of Cincinnati College of Law. Every day I hear something about what one of our faculty, alumni, staff or students are doing and I’m proud to have a role in sustaining the framework that allows these things to happen at our historic law school. So I’m going to talk about legal education. But as an engaged health law academic specializing in ethical issues in public health, the unchecked spread of Zika in the United States is also going to be a topic of discussion. Thank you for having me. It is a real honor to be included.
Posted by Jennifer Bard on August 31, 2016 at 09:37 PM in Article Spotlight, Blogging, Culture, Current Affairs, Dan Markel, Howard Wasserman, Information and Technology, Life of Law Schools, Lipshaw | Permalink
Tuesday, August 30, 2016
Now we know where John Roberts got the umpire analogy
Go to the 2:15 mark (start of the second chorus)
I do not have much to say about NFL (non-starting) quarterback Colin Kaepernick's decision to not stand for the national anthem, since those who read this space know that I support his right to do this, without equivocation. I am heartened to see the NFL and the 49ers are, thus far, allowing his protests--although see the parenthetical in the first sentence. We have come some distance from 1968 and even 1996, when the NBA suspended Mahmoud Abdul-Rauf for one game for refusing to stand.
As for the criticisms, it is more of the same--"you're rich and successful athlete, so you have nothing to complain about." (so one can engage in political expression only when it furthers one's own self-interest?); "the flag is special and you disrespect those who served in the military" (considered and rejected twice by SCOTUS, including by the sainted Justice Scalia); "find another way to do it" (why should someone be forced to sacrifice their best forum?)
Finally, it is beyond laughable that Donald Trump is running for President on an explicit platform that the country is circling the drain, especially for African-Americans, but that an African-American who protests because of the same belief should leave the country. So does that mean that if America does suck, your choices are 1) run for President, 2) leave, or 3) shut up and vote for Donald Trump? That is an odd vision of free speech. But not a surprising one, given the source.
The Night of Conclusion
I was a guest on New York Magazine's Vulture TV Podcast (begins at 30:00 mark) discussing the finale of The Night Of. Some additional comments (with spoilers) after the jump.1) I like the ambiguity of the ending, in which we do not really know who killed Andrea. Naz is not acquitted--it is an evenly split jury--but we do not see the end result of the investigation of Ray Halle, the suspect the show throws at us, for the first time, about midway through the finale. The truth is we never know what happened in many cases; the system makes its best guess using procedures designed to produce accurate results (albeit in an efficient and fair way).
2) I do not think the decision to continue the prosecution of Naz, even after learning about Halle, was wrong. And it certainly was not unethical. There was more evidence against Naz. The evidence against Halle was that he had motive, opportunity, and a connection to the victim--the same evidence as against the step-father and Duane Reade, although of a different nature and perhaps somewhat strong. The unforgivable sin was the prosecutor not disclosing that evidence, an obvious Brady violation. It is interesting that the show gives the prosecutor a heroic ending of sorts--she tanks the closing argument while having second thoughts, she declines to reprosecute, and she enlists Box to help her make a case against Halle. But her failure to disclose reflects a cardinal sin for a prosecutor, the most common type of prosecutorial misconduct and the source of many wrongful convictions. I wish the show had not downplayed that. And, as I said in the podcast discussion, she picked the worst of all possible ways to express her doubts--she did not dismiss the charges (a precipitous move, since I imagine jeopardy had attached, so if Halle turned out to be a dead-end, she was stuck) or disclose and let the jury hear the new evidence (and perhaps acquit). Her choice actually left Naz permanently in limbo.
3) Rule 404 does not exist in TV Land; there was more character and other-acts evidence flying around this week. Interestingly, however, some of it would have been admissible, although not for the reasons the show depicts. Some good exam hypos.
4) Trevor should have been able to plead the Fifth when asked about lying about being with Duane Reade. Wasn't he confessing to lying to police, which is a crime?
5) I did not think the decision to have Naz testify was wrong. It was poorly executed. He was unprepared for cross. And most of what came out on cross should have been presented on direct. The show presented an interesting divide over having the defendant testify. I imagine defense lawyers will say that the popular view is that an innocent defendant would take the stand and explain his side of the story and that the failure to testify is suspicious, despite the judge's charge. As presented through John, the show's theory is that, without testifying, the jury understands the defendant as wearing the "cloak of the presumption of innocence," but that if he testifies, his testimony must be strong enough to "prove his innocence." Meaning, presumably, that a defendant should never testify. In any event, his testimony is a disaster, which leads to . . .
6) I again cannot express strongly enough how turned off I was by the portrayal of women lawyers. The show destroyed Chandra's character--as always, in the service of enabling the male lawyer to emerge as the hero--in the most ludicrous ways. Several reviews have suggested the show reverse-engineered it--it needed John to be the hero, then just found the most ridiculous way to get there. Worse still, I am not sure its machinations were legally accurate. While unethical and grounds for bar discipline, I am not sure that kissing a client is grounds either for a mistrial, removal of the attorney, or forcing the attorney to yield her role as first chair. And all without asking the defendant his preferences, which should control. There is a case down here in which a defense attorney was accused of having full-on sex with her client in the interview room; she was temporarily barred from the jail, but she represented the client at trial.
There is a lot of talk about the awful portrayal of women on TV (think of some of the criticisms of Season One of True Detective). This show should be included in the discussion. Which is unfortunate, because it undermines an otherwise-good story.
Saturday, August 27, 2016
Defining terms and the U of C letter
Some of the problem surrounding the U of C letter is that we do not or cannot agree on terms. A commenter on my prior post on this argues that we are conflating content warnings with trigger warnings, because much of what we warn about is not actually "triggering" for trauma victims. An interesting point. Although i wonder if, at some level, we are quibbling semantics--the point comes to whether we must warn about something and whether that warning comes with some form of opt-out.
At Balkinization, Mark Graber posts a letter from a music professor at the University of Georgia (who happens to share his last name) arguing that intellectual safe spaces are essential to allow students to "speak, write, listen, challenge, and learn." But the letter defines safe spaces as ones in which students can present their ideas--even wrong or half-baked ones--without fear of reprisal from colleagues or professors. I agree with this conception. Of course, that is not what "safe space" has come to mean on campus and, at least I do not believe, it was not the conception the U of C letter was challenging or the conception that has been at the heart of most campus speech disputes.
Thursday, August 25, 2016
More on the University Chicago letter
First, as I said in a comment on Rick's post, I always have understood trigger warnings as featuring an opt-out on top of the warning: "This is what this material is like and if you need to absent yourself from this material, you may." Consider this example of a content warning, from Angus Johnston, a history prof CUNY who took to Twitter to criticize UC:
At times this semester we will be discussing historical events that may be disturbing, even traumatizing, to some students. If you suspect that specific material is likely to be emotionally challenging for you, I’d be happy to discuss any concerns you may have before the subject comes up in class. Likewise, if you ever wish to discuss your personal reactions to course material with the class or with me individually afterwards, I welcome such discussions as an appropriate part of our classwork.
If you ever feel the need to step outside during a class discussion you may always do so without academic penalty. You will, however, be responsible for any material you miss. If you do leave the room for a significant time, please make arrangements to get notes from another student or see me individually to discuss the situation.
Like Rick, I have on occasion included a light heads-up on assignments (e.g., "This is a sexual harassment case and involves sexually explicit conduct"). I have never considered offering an opt-out. Interestingly, Johnston explains that he originally drafted the warning in reverse--the opt-out first and invitation to discuss second; he switched to lead with the discussion because it "centers dialogue — before, during, or after class — as central to the academic project."
Second, Johnston and The New Republic argued that the letter violates the academic freedom of those professors who wish to provide trigger warnings. This seems to me to over-read the letter. I read it as stating that the university would not provide official trigger warnings in its own programs and activities (e.g., no trigger warning when a controversial speaker comes to campus); that it would not officially designate campus spaces as "safe spaces" (e.g., the dorm is not a space where you are free of offense from what someone else says or has in his dorm room) (Kevin Drum agrees); and that it would not make trigger warnings official university policy. But the letter said nothing about what individual professors could, could not, or must do. A university spokesperson confirmed that "professors maintain broad latitude to engage in teaching practices as they see fit or to accommodate student requests."
This was not good enough for TNR; it insisted that the fact that trigger warnings are not banned "doesn’t get at the problem: the University administration is clearly making a stance on a pedagogical decision that has traditionally been left up to professors. That in itself constitutes a chilling effect and breach of academic freedom." But that is nonsense. A university can--and arguably should or even must--take a stance on many things, including pedagogy, without offending academic freedom. Academic freedom only demands that the university not prohibit or punish any professors who disagree or reject that stance. So academic freedom means the university should not fire the professor who writes a book denying the Shoah; it does not mean the university cannot make public statements that the professor is an idiot. Similarly, academic freedom means the university should not fire a professor for giving his students trigger warnings and opt-outs; it does not mean the university cannot make public statements rejecting trigger warnings as inconsistent with robust, free, and mature debate.
Wednesday, August 24, 2016
Hear, hear--Blogging Edition
Update: One more on where blogs have gone over their fifteen years of life.
Tuesday, August 23, 2016
Inside the agency class action
A quick flag for a new article from Michael Sant’Ambrogio (Michigan State) & past-guest Adam Zimmerman (Loyola-LA), Inside the Agency Class Action. This piece builds on some posts Adam wrote here, as well as some reports by the Administrative Conference of the US that Sergio Campos wrote about for JOTWELL.
The Night Of (Updated)
I have been enjoying HBO's The Night Of, despite my general distaste for legal fiction. The acting and writing have been great and the show has presented a unique tone.
Some comments (with spoilers, for those of you who are not caught up) after the jump.Two big evidentiary issues came up in the last episode: Naz's assaults of two high school classmates and his selling Adderall to college classmates. The first seems impermissible--we have not seen any indication that the defense has offered evidence of Naz as a non-violent person or that he was acting in self-defense, so the door has not been opened for the prosecution to offer character evidence, nor do these incidents have any non-character connection to the murder at issue. The second seemed impermissible while I was watching it, just more evidence to show he is a bad person (and through specific instances of conduct on direct, no less). But I think this could come in as preparation or plan--that the drugs they took (which explains why he blacked out or cannot remember his actions) were provided by him, not the victim.
Financial advisers may want to protect their client's confidentiality, but the law does not accord them a privilege akin to that between an attorney and her client. Just subpoena the guy.
Finally, and unfortunately, the show again falls into the trap described by Paul Bergman and Michael Asimow in their book Reel Justice: "Almost without exception, trial movies present women lawyers in viciously stereotypical terms. It's almost as if filmmakers are scared stiff of powerful, successful women." The show fell down this hole on Sunday by having Chandra, the young female lawyer, make-out with Naz--on surveillance camera, no less, and for no discernible reason. The show had shown her as a competent and serious, if new and overwhelmed, lawyer rising (somewhat) to the occasion. Why would she throw that all away and what is served by undermining the character like that? Narratively, I suppose the goal is to force John Stone to step-in as first chair, completing his redemption story and, perhaps, getting Naz off the hook?. But why must it be at the cost of the female attorney destroying her career? And, come to think of it, Chandra is not the only example in the show. Allison Crowe, Naz's second lawyer, is shown as a media hound who behaves unethically in a number of ways--in stealing Naz as a client (without speaking to Naz himself), in insulting John in open court, in jacking up her price (from pro bono to costly) when he did not do what she wanted, and then in dropping Naz as a client (without informing the court) by telling him, basically, "fuck off." I overlooked it at the time because she was supposed to be the bad guy in that part of the story, an antagonist to John. But now, in light of the development with Chandra, it seems to be a broader problem in how women lawyers are presented--another example of Bergman and Asimow's thesis.
Update: I should say something about the female prosecutor, who been no great shakes, including telling a witness what to say. Interestingly, though, the attitude towards her seems to be that she is a world-weary part of a machine that continues of its own force once it gets rolling. Mostly, she is depicted as a typical prosecutor, putting the most-favorable spin on ambiguous evidence. This is how the adversary system is supposed to work.
Wednesday, August 17, 2016
JOTWELL: Steinberg on lawyers and strategic expertise
The new Courts Law essay comes from guest contributor Jessica Steinberg (George Washington), reviewing Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise (Denv. L. Rev.) (forthcoming), an empirical study of when and why having counsel matters in civil litigation.
More sports rules and perverse incentives
Good stories in Slate and NY Mag about the zero-tolerance false-start rules in Olympic track, under which a racer is disqualified if he false-starts. This is the third version of the Olympic rule. Pre-2003, each runner was allowed one false start and was disqualified only on the second. In 2003, the rule was changed to give the entire field one false start, with a DQ imposed on whoever does the second false start. The current rule was enacted in 2010, making this the second Olympic games under that rule; we have seen two DQs this week, although not by any favorites. Usain Bolt wass DQ'd under the rule at the 2011 World Championships, the only Olympic or world championship final he has lost since 2008. French hurdler Wilhem Belocian was DQd earlier this week and was seen falling to the track in tears, but he had qualified seventh out of eight runners.
The 2010 rule change was designed, at least in part, to eliminate perverse incentives. Slower runners would intentionally false start, using up the "freebie" for the field. This forced faster starters and runners to be a bit more cautious, and thus to hesitate just a bit off the blocks, lest they pick up that second false start that would disqualify them. The new rule eliminates the intentional false start by eliminating the benefit, and thus the incentive, for the slower runner to do this.
This sounds a bit like the logic behind the Infield Fly Rule: 1) Runners were gaining a potentially big advantage (slowing down the fast starters/runners) through the intentional false start; 2) The faster runners could not really counter this move, except perhaps by not false-starting following the intentional freebie; 3) slow runners were intentionally acting contrary to expectations (you do not want to false start); and 4) the advantage offered a perverse incentive to the slower runners to intentionally false-start (although not a great one--the trick did not work very often). The second prong is weak--the faster runners could counter the strategy by not false-starting, something they could do more easily than runners can avoid a double play on an uncaught infield fly. But this is an interesting comparable situation that is worth including in my discussion of similarly justified rules in other sports. [Update: On further thought, that second prong is not weak and this is precisely the same as the I/F/R situation. The only way to counter the intentional false start was for the faster runner to slow down his start--but that is precisely what the false-starter wants]
This situation shows the role that aesthetics play in creating sports rules. Rulemakers could have disincentived intentional false starts by returning to the old rule of giving every runner one freebie. But that old rule created problems of multiple false starts by multiple runners, causing long delays, fan boredom, and television overruns. So the new rule, while harsher, is aesthetically favorable to the sport.
Finally, runners and rulemakers have minimized the effect of the harsh rule. All runners slow down their starts a bit to avoid the risk--Bolt, never a fast starter, has slowed his start even more, relying on his remarkable ability to dominate the last 30-40 meters (as he did in winning gold in the 100m this week). And the rulemakers narrowed what qualifies as a false start to exclude flinches and twitches, so a runner false-starts only if his feet leave the starting blocks or his hands leave the track.
Tuesday, August 16, 2016
A call to action for civil justice reform
The following is by Linda Sandstrom Simard (Suffolk Law), who was a member of the Civil Justice Improvements Committee discussed in the post. These comments represent her own thoughts and opinions, not those of the Committee.
This summer the Conference of Chief Justices (“CCJ”), an association comprised of the chief justices of all of the state supreme courts, strongly endorsed the Call to Action and Recommendations of the Civil Justice Improvements Committee. Talk of civil justice reform is ubiquitous, but the CCJ endorsement of these Recommendations offers more than a glimmer of hope that key stakeholders in state courts around the country are ready to take serious action. The Report offers a comprehensive view of civil litigation in state courts and concludes that our legal system is too often not living up to the promise of a just, speedy, and inexpensive resolution of civil cases. The Report makes a series of evidence-based recommendations that seek to protect access to justice and restore faith in the civil justice system.
Following is a brief description of the Report and my thoughts on the likelihood that the Report will engender reform.
In 2013, the CCJ established the Civil Justice Improvements Committee. The Committee, comprised of state court leaders from the bench, bar and academia, undertook two years of intensive deliberations, reviewing data from pilot projects around the country, implemented rule changes, empirical research, and stakeholder input. Based upon this research, the Committee found that: (1) over the last several decades there has been a dramatic rise in self represented litigants, with more 75% of civil cases involving at least one party who is self-represented; (2) high-value tort and commercial contract disputes comprise a small proportion of civil caseloads; (3) the vast majority of civil cases are debt collection, landlord/tenant, mortgage foreclosures, and small claims cases involving relatively modest monetary claims; (4) in many instances, the cost of litigating a case through trial exceeds the monetary value of the case; (5) the vast majority of civil cases are disposed of without adjudication on the merits; and (6) some litigants with meritorious claims and defenses are effectively denied access to justice because they cannot afford to engage in litigation, and those litigants with adequate resources frequently opt for private alternative dispute resolution. If action is not taken, these findings suggest that our civil justice system is in serious jeopardy.
The CJI Committee’s Recommendations are premised upon the notion that transsubstantive procedure, or “one size fits all,” is not a sustainable model for the future. Complex cases involving an abundance of disputed issues of law and fact require more procedure than streamlined cases involving few contested issues. The Committee’s Recommendations suggest that courts must manage civil cases by assigning each case to a case management pathway that provides the amount of judicial attention needed to resolve the disputed issues in a just, timely, and cost-effective manner. The responsibility for effective case management must be shouldered by the entire court staff, not just the trial judge, along with cooperative lawyers and parties. Innovative uses of technology are highly encouraged as a means to meet the enhanced demands of “right sized” case management. The Report makes special reference to recommendations that address the unique demands of cases that involve asymmetrical legal expertise. Overall, these Recommendations seek to restore faith in the civil justice system by reducing cost and enhancing fairness and efficiency.
I believe there is reason to be optimistic about these Recommendations. At its core, the CJI Report endorses the concept of proportionality. Unlike the Federal Rules of Civil Procedure that require judges to make individualized determinations of proportionality for every discovery dispute, the CJI Report identifies procedural pathways that help courts to know which cases are likely to require substantial focused judicial attention and which cases are likely to need less judicial attention. Since state civil case loads are much larger than their federal counterparts, this modified version of proportionality is pragmatic and efficient. The Recommendations also recognize the need for flexibility in pathway assignments and encourage courts to reassign cases if presented with reasons why a pathway is inappropriate. The fact that these Recommendations coincide with the tenor of the recent amendments to the Federal Rules of Civil Procedure suggests that momentum may be growing for significant civil justice reform to take hold.
Of course, this is not to say that change will be easy. Implementing the Recommendations will require substantial judicial resources. Court personnel will need training to meet the enhanced demands of case management, and judicial training programs will be necessary for newly appointed judges as well as experienced judges who may need to change deeply rooted habits. Structural changes may also need to be considered. For example, judicial rotations, short terms of office and frequent elections are likely to complicate case management efforts and hinder efficiency. Finally, cultural change will be crucial. Litigation strategies that rely upon expertise and judgment, as opposed to routine reliance upon boilerplate discovery requests or vague and meaningless discovery responses, will enable lawyers to resolve disputed issues of law and fact efficiently. If we can meet these challenges, I believe implementation of the CJI Recommendations will be a significant step forward for civil justice in this country.
Saturday, August 13, 2016
More on names
Shima sparked a conversation over how prawfs and students should address one another. I want to explore a different issue of student names.
At SEALS last week, a co-panelist told a story relayed of a female law professor who had twice been the subject of formal administrative complaints by students whose (first) names the prof had mispronounced in class. In the discussion that followed, some panelists recognized the concern that mispronouncing the name can send a message of exclusion or otherness, while others suggested that this provided another good reason to use last names in class (hence the connection to Shima's post).
This story unnerved me, although I recognize that there may be more to it. I am troubled that students are so suspicious and so ready to assume the worst of what was presumptively an innocent mistake that the professor (hopefully) handled with some tact. I am troubled because, if mispronouncing a name does send a message of exclusion, there is not much I can do about it; any attempt to avoid mispronouncing would send that same message of "you have a funny name." Ask the student if I am not sure? "You did not ask Jim how to pronounce his name." Ask for phonetic spellings? "You didn't need Jim's phonetic spelling." Get phonetic spellings in advance? That does not help me during the first class. Use last names? I am not sure they are so much easier to pronounce (I began using first names in part because I thought it would minimize pronunciation problems).
As I said, I hope there is more to this story than the sparse details I heard.
Wednesday, August 10, 2016
Florida congresswoman is anti-Trump, does not know Florida law
Florida congresswoman Ileana Ros-Lehtinen said yesterday that she would not vote for Donald Trump for President, but instead would likely write-in Jeb Bush (since she also cannot support Hillary Clinton).
But it will not be that easy. Florida law does not automatically provide a write-in space for an office, but only if one or more people qualify as write-in candidates. And then a voter only can write-in the name of that qualified candidate, not some random person; writing in a random name results in an invalid vote. I do not know whether anyone has qualified as a write-in in Florida, but presumably Jeb! has not bothered. So Ros-Lehtinen's planned move would result in an invalid vote for President (which she may not mind, if he goal is just to make a point by not voting for either of the main named candidates).
How do I know all this? Because four years ago, I wanted to use a write-in so I could vote against Ileana Ros-Lehtinen for Congress. She ran unopposed, so there was no named candidate to vote for. But since no write-in candidate had qualified, I did not have that option, either. In fact, the office did not appear on the ballot at all, also depriving me of the option of a symbolic non-vote).
Tuesday, August 09, 2016
Attorney advertising as jury tampering
While at Amelia Island for SEALS over the weekend, we caught a TV ad for a personal-injury lawyer. The entire ad focused on the legal rule prohibiting juries in personal injury cases (the ad focused on automobile accidents) from learning that the defendant has liability insurance. This is a common law rule in Florida, codified in the Federal Rules. The ad argues that juries are too sympathetic to, and thus unwilling to find against, defendants in these cases, erroneously believing, because they lack this one piece of information, that finding for the plaintiff will impose crippling liability on a powerless individual. The ad announces that almost all drivers have insurance and will not bear the cost of civil judgment, which instead will be borne by the big, bad insurance company. And it urges viewers to "spread the word" about the state of the law. Presumably, although only implicitly, these are cases in which the evidence otherwise shows that the defendant should be liable, and the plaintiff loses because of this misplaces sympathy. Of course, it ignores the flipside concern--a jury imposing liability against a defendant despite the evidence, believing an adverse verdict is "costless" to the insured defendant.
I am being tongue-in-cheek about calling the ad jury tampering. I believe it paints with too broad a brush, unconnected to any case, geographic, or potential juror (although I welcome the correction if jury tampering can be defined more broadly). Nevertheless, we can wonder about the ethics of an attorney "spreading the word" to the public about something they are not supposed to know as jurors and encouraging them (even if not explicitly) to use something they are not supposed to use as jurors.
This reminds me of a controversy that cropped up in the '90s, where people in parking lot or sidewalks outside courthouses gave potential and actual jurors information about the power of nullification.
Practice your talks--with dogs
One of the worst parts of attending conferences, workshops, etc., is sitting through the obviously unprepared presentation. Speakers meander, repeat themselves, run over time, race through the final points because they wasted too much time getting started, etc.* There is a tough balance to strike. You do not want to sound overly rehearsed or as if you are reading the paper (although that is the norm in many fields, such as English). But you want to be coherent and stay within the time limits. And that requires that you practice the talk with a timer and tweak as you must.**
[*] Not for nothing, I find these problems--especially the last two--exacerbated when the speaker uses PowerPoint.
[**] This is especially true for job talks, but it applies to any presentation.
So I liked this story about a program at American University's Kogod Center for Business Communications, which provides dogs as an audience for students (especially those anxious about public speaking) to practice presentations. The dogs have a calming influence; the students practice before a non-judgmental audience; and the students have to work a bit to keep the audience attention (the director of the study says a dog is no more distracted than the typical college student, which might not be untrue). The accompanying video is after the jump.
My dog better be ready to sit through some talks in the coming years.
Thursday, August 04, 2016
What type of voter fraud?
In setting up his pre-narrative of a stolen election, Donald Trump has decried recent lower-court decisions declaring invalid voting laws in North Carolina, Wisconsin, Kansas, Texas, and North Dakota, including voter ID requirements. These laws were designed to prevent impersonation fraud--someone voting as John Smith who is not, in fact, John Smith.
But note that Trump has not been complaining about impersonation fraud, but about repeat-voter fraud--"If you don’t have voter ID, you can just keep voting and voting and voting." (Chicago's old "Vote early, vote often"). But voter ID laws do nothing to eliminate repeat-voter fraud and do not seem designed to do so. The defense against that practice is the voter list; the poll worker does not allow someone to vote if she is not on the list (or allows only a provisional ballot) and she crosses the voter's name off the list once that person appears. Repeat voting is possible only if: 1) the poll worker fails to cross the name off or 2) the voter goes to other precincts, where she is not on the list, to vote. But requiring ID does not stop that practice. If the poll workers are not vigilant, I can repeat-vote to me heart's content with an ID, just as I could without an ID. That is, if I show an ID proving I am John Smith but the poll worker does not cross my name off the first time, I can come back again and again and vote as John Smith, showing my ID each time. Similarly, if I then drive to the wrong precinct with an ID proving I am John Smith but the poll worker allows me to vote despite my name not being on the list, I can cast that repeat vote as John Smith, showing my ID.
Unfortunately, most of the news reports of Trump's comments have repeated the (true) line that there is virtually no evidence of in-person voter fraud, without specifying that the fraud Trump is talking about is not even the type that ID laws are designed to redress. Which, also unfortunately, means the news reports are missing the fact that Trump is not aware enough to understand his own conspiracy theories.
Monday, August 01, 2016
He has no right . . .
Presumably because he cannot resist, Donald Trump is fighting back against Khzir Khan over his speech at the DNC. In response to Khan's move of asking Trump whether he had read the Constitution, displaying his pocket copy, and offering to lend it to him, Trump tweeted "Mr. Khan who has never met me, has no right to stand in front of millions of people and claim I have never read the Constitution, which is false."
People are having fun with the circularity of this--Trump asserts that Khan has no right to stand in front of millions of people and criticize him, but that right quite clearly is in the Constitution, thereby confirming Khan's point about Trump reading the Constitution. But I want to give Trump the benefit of the doubt. The key is the last clause--"which is false." Trump is not saying Khan has no right to criticize him, only that that Khan has no right to make a false statement about him, or, really, no right to defame him.
So let's break this out and see if Trump is right that Khan had no right to say what he did in front of millions of people.For starters, this is why I have thought the "pulling out the Constitution" move (historically pulled by Libertarians, but now seemingly fair game) is nonsense as part of a political discussion. The language in the Constitution does not answer most specific questions. For our purposes, Khan does not have a right to stand in front of millions of people and engage in unprotected speech. But the First Amendment's reference to "the freedom of speech" does not tell us anything about what is or is not protected
Diving deeper shows how disturbingly ignorant Trump is about the meaning (beyond the simple words) of the First Amendment.* First, Khan did not say that Trump had never read the Constitution; he asked whether he had and offered him a copy to read. Second, even if Khan's rhetorical question contained an assertion and that implied statement was false, that alone does not mean he did not have the right to say it in front of millions of people, since false statements are not per se unconstitutional.
[*] This is not news, of course. Just another illustration of the obvious point.
The real question is whether, if false, Khan's statement was unprotected defamation that Khan had no right to make. That depends on what Khan was asserting.
In context, the best understanding of Khan's statement is that Trump proposes policies and makes statements that violate, ignore, or disrespect the Constitution, suggesting a lack of understanding of what the Constitution protects (recall that, after pulling out his pocket copy, Khan pointed to liberty and equal protection, although, curiously, not free exercise, as concepts within it). Whether Trump has actually, literally "read" the Constitution is beside the point that Khan was making--someone could read the Constitution and still act contrary to it. So saying Trump has not read the Constitution is rhetorcal hyperbole, not meant literally or as a provable fact, but only as overstatement to make a larger point. The assertion that Trump's policies are contrary to the Constitution should be protected as an opinion, an expression of the speaker's own constitutional views, that is not provably false and that cannot form the basis for defamation liability. Finally, even if Khan was asserting as fact that Trump has not read the Constitution, I am not sure that is defamatory. Most people have not read the entire Constitution and there is nothing negative about not reading the whole thing; the harm comes from the negative implication that someone who has not read the Constitution lacks knowledge or respect for it, which, again, is protected opinion.
So while it is not as simple as those on Twitter and Reddit are saying, the point is accurate--Khan had a clear constitutional right to say what he did and the suggestion from a presidential candidate to the contrary is wrong as a matter of established First Amendment law.
By the way, am I the only one imagining Trump, sitting in a gold-plated bunker, doing this:
As July turns into August (and the end of my writing summer looms), we bid thanks to our July visitors, some of whom might be sticking around for some extra days. And we welcome our August visitors--Shima Baughman (Utah), Benjamin Edwards (Barry), and Jake Linford (FSU).
Welcome and enjoy the month.
Tuesday, July 26, 2016
Philadelphia police and public protest
Interesting discussion of how the Philadelphia police are responding to public protest during the current DNC (as well as how they have responded to more recent Occupy and Black Lives Matter events). And he contrasts it with the city's absurd overreaction to the 2000 RNC, which produced 400 arrests in four days, few or no convictions, and unknown amounts in civil settlements. I was clerking in Philly during the 2000 convention and it was walking around a police state, in the pre-9/11 days, when that was not the norm.
Monday, July 25, 2016
JOTWELL: Campos on aggregating administrative action
The new Courts Law essay comes from Sergio Campos (Miami), reviewing a recent report of the Administrative Conference of the United States on using aggregate adjudication in administrative proceedings.
Saturday, July 23, 2016
Dudziak on Trump on Turkey (Updated)
Mary Dudziak (Emory) critiques Donald Trump's comments about not lecturing Turkey about civil liberties in light of our problems at home. A legal historian, Dudziak describes how this argument--that the United States could not exercise moral authority abroad because of problems at home--was made by the Soviet Union, not Presidents of the United States. Instead, those Presidents responded by seeking to remedy domestic injustice (she points to Eisenhower sending troops to Little Rock and Kennedy's response to Birmingham), expressly to bolster international standing.
But as I argued, Trump is not making the same argument that the Soviets made during the Cold War, that we cannot exercise moral standing on matters of justice because we have not corrected racial injustices at home. He is not arguing that we are estopped to exercise moral leadership because of our own failings, failings these other Presidents then tried to correct. He is arguing we should not care about exercising moral leadership until we get our house in order. And getting our house in order means not eliminating barriers to racial equality, but eliminating barriers to police maintaining law and order. Trump does not want to convince Turkey to be more like us; he wants to make us more like Turkey.
More on athlete speech in the WNBA (Second Update)
Second Update (Saturday evening): The WNBA, about to enter a month-long break for the Olympics, has rescinded the fines against several teams and players and will use the break to negotiate with the players' union about rules for player protests.
Following on my post about protests by WNBA players: Claire McNear at The Ringer wonders when the WNBA became apolitical, given the league's reactions to previous tragedies such as the Orlando shooting (when the league gave the players official memorial t-shirts), to say nothing of the league's general promotion of LGBTQ and women's issues. It also departs from the NBA's response both to the Lynx protest (NBA Commissioner Adam Silver praised their efforts) and to individual NBA players who have spoken out in similar ways the past few seasons (notably in wearing "I Can't Breathe" shirts during warm-ups). McNear questions whether the line really can be about who made and distributed the t-shirts.
Unfortunately, I fear a different explanation. The recent deaths of police officers has made them untouchable in the realm of public debate. You no longer can criticize or protest police officers, as by memorializing the victims of police-involved shootings (even as part of a general statement against all violence by memorializing everyone). The Orlando memorials no longer work as analogue, because the shooter there was a terrorist, not to mention an "other," so honoring those victims does not implicate police. We may be entering a time in which athletes can speak through the game, but only to express certain messages or certain positions on an issue.
As I said in the prior post, this is playing out on a smaller stage. The question is whether the same limitations are imposed on NBA or NFL players.
Update (Saturday afternoon): In my prior post, I argued that the key question is the extent to which athletes should be able to use the game, on the field/court, as a platform for their expression. The answer from the WNBA, according to this ESPN story, is that the players should keep their activism off the court. The league and the union have been trying to negotiate some arrangements, such as allowing players to wear what they want during early warmups (until, say ten minutes before the game), then change into official shirts for the national anthem; so far, they have been unable to reach an agreement.
The story includes comments from USA Coach Geno Auriemma, who seems to expect some players to attempt to speak out during the Olympics, which would become a matter for Olympic and basketball authorities. I hope we have come far enough in 48 years that the USOC would not respond as it did to Tommie Smith and John Carlos, by kicking them out of the Olympic Village.
I am more surprised by the following from Auriemma:
"I respect Tina (Charles) and the players in the WNBA for their concern and their voices and the passion that they have and for their beliefs. I really do," he said, citing the former UConn player and Liberty star for wearing her warmup shirt inside-out before Thursday's game. "I'm really proud of some of my former players and the way they've stepped forward and spoken their conscience and express their feelings."
This is a change in tone from Auriemma. In 2003, a small-college basketball player named Toni Smith began protesting the Iraq War by turning her back on the flag during the pre-game playing of the national anthem (what I described as "symbolic counter-speech"). Her coaches and teammates accepted her protest. But coaches and commentators criticized her actions, if only for distracting from the team. Auriemma, among others, insisted that whatever a player's right to speak, she did not have right to be part of the UConn women's basketball team (or to speak through her participation in the UConn women's basketball team). I am happy to see he has come around on this.
Clinton's VP and the Senate
I do not pretend to know anything about Hillary Clinton's political calculations in choosing Tim Kaine (forever a/k/a, "The Boring Choice") as her running mate. There was a lot of media discussion about the effects on the Senate. Four of Clinton's choices were sitting Senators--Kaine, Cory Booker (NJ), Sherrod Brown (OH), and Elizabeth Warren (MA)--who would resign their seats if elected VP. All but Kaine would be replaced by a temporary appointee appointed by a Republican governor, possibly costing the Democrats control of the Senate, which might come in at 50-50. In theory, that was a factor in his favor.
But this also means the Democrats will have to defend that seat in a special election in a purple state, a low-turnout situation in which Democrats tend not to fare well. Which means if the Senate is 50-50 beginning in January 2017, Clinton may have her majority only for a year. By contrast, at least with Brown Booker and Warren, Democrats would have had the opposite problem--a lost or weakened majority at the beginning of the term (because those seats would be filled by Republican governors), but a greater chance to win the special election in a deep-blue state (Booker won his seat in a 2013 special election), giving or increasing that majority for the second year of Clinton's term. Moreover, the calculus likely assumes that Democrats will lose the Senate in 2018, when they have to defend 25 seats, including a number of people in Republican states who won on the strength of Obama turnout in 2012. So is it better to have the bigger majority in the first year or the second year? Probably the first, since by 2018, the Republicans will be gearing up for a landslide mid-term.
Advocates for selecting Warren had been pushing a way to make the appointee term even shorter. Massachusetts requires a special election 145-160 days after a vacancy occurs (in the other states, the special election would be in November 2017). So if Warren had resigned on January 20, the election would have been in June; if she resigned November 8 (or whatever date it became clear she and Clinton had won and that she would be VP absent some catastrophe), the special election would have been in April. The Democrats likely would have won that seat (having learned the lesson of Scott Brown), so Clinton would have gotten her majority 3-6 months into the first year of her term.
Friday, July 22, 2016
But if you try sometime
The Rolling Stones' "You Can't Always Get What You Want" has become a staple at Donald Trump rallies, including following last night's acceptance speech (the band objected months ago, but the campaign has not relented). Some questioned the choice, that it seems odd for a political candidate to adopt a theme of settling because you could not get what you wanted to get.
But the theme of last night's speech-- "I alone can fix it"--suggests that the key phrase is what comes later in the chorus--"if you try sometime, you might find you get what you need." Trump is positioning himself as the essential person, the only person to save the nation from, apparently, a dystopian hellscape. The American people need Donald Trump, and only Donald Trump, to be President. By electing him, the American people will find they got what they need.
Or am I giving them too much credit?
Thursday, July 21, 2016
Athlete speech and team dynamics
Last week, NBA stars Carmelo Anthony, Chris Paul, LeBron James, and and Dwyane Wade kicked off the ESPY Award telecast with a call for athletes to become politically engaged, particularly around the issues of violence by and against police. Players on the Minnesota Lynx wore black warmup shirts with white lettering commemorating Alton Sterling, Philando Castile, and Dallas shootings, which prompted four off-duty police officers to walk-off their security jobs there. Several other teams followed suit by wearing plain black warmup shirts, which prompted the league to fine each team $ 5000 and each player $ 500, citing its uniform policy. The league president praising and expressed pride in the players' "engagement and passionate advocacy for non-violent solutions to difficult social issues," while demanding that they "comply with the league's uniform guidelines." This, of course, is a classic example of how neutral policies can be used to restrain speech, while allowing those doing the restraining to claim to support the speech. Players responded today with a media blackout, refusing to answer basketball-related questions and only talking about the political issues at the heart of their protests. Since the league no doubt has rules about speaking with the media, expect the WNBA to follow with more praise for the players' political courage, more citation to "neutral" rules, and more fines for that political courage.
This is playing out on a smaller stage than if it were male athletes in football, basketball, and baseball. But this story illustrates important issues about athlete speech for team, as opposed to individual, sports. The athletes we remember as being most politically engaged played individual sports--Muhammad Ali, Arthur Ashe, John Carlos, Billie Jean King, Jesse Owens, Tommie Smith. A lot of the activism from Jackie Robinson and Jim Brown came after each had retired and, in any event, rarely came out on the field (except to the extent Robinson's very presence on the field was political). All athletes risk their standing with the public and fans who may object to their speech (recall Michael Jordan's apocryphal "Republicans buy shoes, too"). But team-sport athletes face another hurdle--their expression implicates the financial, business, and other concerns of teams and leagues, who have their own incentives to limit this speech. Neutral rules designed to promote the sport (speaking to the media) or to promote team unity (uniform rules) provide the perfect weapon of control, allowing leagues or teams to shut the players down without appearing to be stopping them because of their message.
The question then becomes the extent to which "athlete speech" includes (or should include) the liberty to speak through the game itself and the platform the game provides. In other words, the extent to which LeBron James not only should be able to rely on his fame to get his message out, but also the platform of the game itself to do so.
Trump, Turkey, and the "problem" of civil liberties
Donald Trump's interview with The New York Times would be the story of the day, but for Ted Cruz's act of political courage/political suicide. Trump was asked about the situation in Turkey, where President Recep Endrogan survived a coup attempt and is consolidating power, declaring a three-month state of emergency, purging political rivals, and imposing restrictions on speech and press. Trump's short answer was that the US has too many problems at home and has no right to lecture other countries about civil liberties.
Some have read that as Trump saying that we have issues with limits on civil liberties here, so we cannot speak to anyone else about their own limits. That is what people usually mean by "no right to X"--we don't have the right to lecture anyone about X, because we do X ourselves. It is an argument about hypocrisy and inconsistency between word and deed.
But a closer look at Trump's remarks reveals the opposite. Trump is arguing that we have anarchy here, implicitly because we have too many civil liberties. So we need to restore order (which fits with his new Nixonian Law-and-Order theme) before worrying about urging other countries to be less repressive on their own people. It is an odd use of the "no right to" argument, but it better fits with his views of dissent and speech he does not like.Here is the exchange (from the transcript, which The Times released when--stop me if you heard this one before--the campaign denied Trump had said what the newspaper reported).
SANGER: Erdogan put nearly 50,000 people in jail or suspend them, suspended thousands of teachers, he imprisoned many in the military and the police, he dismissed a lot of the judiciary. Does this worry you? And would you rather deal with a strongman who’s also been a strong ally, or with somebody that’s got a greater appreciation of civil liberties than Mr. Erdogan has? Would you press him to make sure the rule of law applies?
TRUMP: I think right now when it comes to civil liberties, our country has a lot of problems, and I think it’s very hard for us to get involved in other countries when we don’t know what we are doing and we can’t see straight in our own country. We have tremendous problems when you have policemen being shot in the streets, when you have riots, when you have Ferguson. When you have Baltimore. When you have all of the things that are happening in this country — we have other problems, and I think we have to focus on those problems. When the world looks at how bad the United States is, and then we go and talk about civil liberties, I don’t think we’re a very good messenger.
SANGER: So that suggests that you would not, as, say, President Bush did, the last President Bush, make the spread of democracy and liberty sort of a core of your foreign policy. You would say, “We need allies, we’re not going to lecture them about what they do inside their borders.”
TRUMP: We need allies.
SANGER: And lecture inside their borders?
TRUMP: I don’t know that we have a right to lecture. Just look about what’s happening with our country. How are we going to lecture when people are shooting our policemen in cold blood. How are we going to lecture when you see the riots and the horror going on in our own country. We have so many difficulties in our country right now that I don’t think we should be, and there may be a time when we can get much more aggressive on that subject, and it will be a wonderful thing to be more aggressive. We’re not in a position to be more aggressive. We have to fix our own mess.
His point is that we should not be worried about civil liberties elsewhere. But implicitly he is arguing that we also should not be worried about civil liberties at home, but instead about the government gaining control against the "riots and the horror"and "our own mess."*
[*] The party flip between optimism and pessimism and how great America is right now is fascinating. It will be interesting to see how and if the Democrats strike at this theme next week.
Also interesting is Trump's reference to "Ferguson" as a single word with an understood meaning. But what is that meaning? To Trump, Ferguson means riots and destruction of property. To others, however, Ferguson means a police officer shooting an unarmed Black person with impunity, generally abusive police practices, and a massive overreaction to peaceful-if-angry public assembly speech, and protest. Trump obviously hopes that substantial numbers of people adopt his meaning of the single word. On the other hand, there is a consent decree in the Eastern District of Missouri--explicitly requiring changes in policy and training with respect to responding to public expression, handling of encounters with suspects, and the operation of fine offensives in municipal courts--that suggests the former may be the better narrative. So is the problem of Ferguson too much speech (or at least too much speech critical of police)?
Similarly, what does Trump understand "Baltimore" to represent? Wrongfully prosecuted police officers? Is outrage at the death of a person in policy custody part of the riots, horror, and mess in this country?
He Who Must Not Be Named
Wednesday, July 20, 2016
In defense of Paul Ryan (no, really)
Paul Ryan is taking heat, from right and left, for his speech last night and his general decision to support Trump's presidency. But Ryan's decision is defensible, in terms of his political and policy goals.
He wants to enact a particular conservative agenda, which he only can do with a Republican in the White House. Ryan may sincerely believe that Trump is not Mussolini or David Duke [or other non-Hitler authoritarian], but Warren Harding with verbal diarrhea--someone who lacks the ability or interest to govern and will turn things over to those around him. So Trump will travel the world and the country talking (sometimes stupidly, perhaps, but never to any real effect), leaving the business of governing to others. Ryan must believe that he will be that other (although it could be Mike Pence), with Trump coming back to sign the bills that Ryan passes. In a sense, Ryan is trying to make himself something like a Prime Minister--the head of government to Trump's figurehead head of state. It is telling that his speech last night spoke less of electing Trump than of establishing a "conservative majority" that could enact the conservative legislative agenda. Trump is necessary for that only in that he is more likely to sign that agenda into law than Hillary Clinton.
Ryan could be wrong about what Trump is and would be as President, of course, and this could blow up in his face. But if he genuinely believes Trump is not dangerous, then this move is the logical extension of the recent trend toward a system that only works if there is party unity between the legislative and executive branches. It no longer matters who is President, only his party affiliation.
Note that Mitch McConnell is making the same calculation in the Senate (with the added bonus that he is more likely to keep his job as Majority Leader if Trump wins, since a Clinton win may flip the Senate), although without taking the same heat. That must be because no one had any illusions that McConnell was anything other than a political hack.
Saturday, July 16, 2016
Free assembly at the Cleveland RNC
Tabatha Abu El-Haj (Drexel) writes at Slate about the looming First Amendment disaster at next week's Republican Convention in Cleveland, given the severe restrictions on public assembly and speech the city has imposed and the current desiccated state of this area of the First Amendment. And this will be an improvement over what the city attempted; stricter regulations (for example, pushing protesters more than three miles away from the site of the Convention) were declared invalid by a federal district court.
Part of Tabatha's argument is the following:
While policing the line between constitutionally protected protest and unlawful assembly is unquestionably difficult, the fact is that cities hosting party conventions tend to do a poor job of distinguishing between the violent and the merely angry elements of assemblies. Nonviolent protesters are frequently charged with various misdemeanors from disorderly conduct and breach of the peace to trespass and disobeying lawful police orders for any minor breach of the public order. Denver police charged some Occupy participants with improperly honking car horns. Even if those charges are subsequently dropped, as with those in Denver, it will not matter much to the individual who was removed from the scene while attempting to exercise her First Amendment rights.
I will add a procedural hook to this. This individual could sue for damages for the improper arrest or for removing her from the scene. But the arresting officers likely have qualified immunity. And any damages (against non-immunized officers or the city) will be limited, if not solely nominal, damages the city already has worked into the cost of doing business. The real financial risk to the city is attorneys' fees for prevailing plaintiffs, which similarly can be worked into the cost of doing municipal business (although they might be more substantial than the plaintiff's damages),* and, in any event, do nothing for the person whose rights were violated. These procedural realities also incentivize cities to do what Cleveland did here. Enact extreme restrictions (even ones officials believe cannot survive constitutional scrutiny) on the eve of the event, knowing there will not be enough time to redraft better (or substantially better) regulations. Even if, as happened here, a court steps in to declare invalid the extreme violations, a court, aware of time constraints, is unlikely to do the same for the entire plan and make the city start over. To the extent those regulations produce First Amendment violations during the Convention, the city can deal with the limited costs (nominal damages and attorney's fees) in ex post litigation.
[*] I have been arguing that attorneys' fees represent the greatest incentive for departmentalist states and executives to fall into line with judicial precedent.
Friday, July 15, 2016
SSRN postings and copyright
The following was sent by Stephen Henderson (Oklahoma) to the Law Prof Listserv; it is reposted here with his permission. It is one experience and could be unique, but it presents something to watch for.
It appears that the corporate takeover of SSRN is already having a real impact.
When I posted a final PDF of an article for which not only do my co-author and I retain the copyright, but for which the contract also includes _explicit_ permission to post on SSRN, I received the typical happy “SSRN Revision Email” saying all was well. Only when I went to take a look, I found there was no longer any PDF to download at all—merely the abstract. So, download counts are gone, and no article. Not the former working version nor the final version. And then in the revision comments, I found this:
It appears that you do not retain copyright to the paper, and the PDF has been removed from public view. Please provide us with the copyright holder's written permission to post. Alternatively, you may replace this version with a working paper or preprint version, if you so desire. Questions and/or written permissions may be emailed to email@example.com, or call 1-877-SSRNHELP (877-777-6435 toll free) or 1-585-442-8170 outside the US.So, not only have they completely changed their model, but—at least to me—they gave no effective notice, and they pull papers without asking. Nobody bothered to _ask_ whether I had permission; they simply took down every version of the article and said nothing. Alas. And when I called customer support and someone called back, I pointed out that some profs have hundreds of articles posted for which SSRN doesn’t hold the copyright agreements. “Are you going to take all those down too?,” I asked. The answer, in essence, “Those were posted in error.” Unbelievable.
Of course, for years they have insisted on maintaining “citation counts” for legal papers despite knowing their algorithms don’t work for papers with footnotes as opposed to endnotes. So, I suppose one should not expect much. But this is new and much worse. So, be wary, and long live Bepress Digital Commons!
Thursday, July 14, 2016
As if on cue . . .
The ACLU and several other organizations have sued Baton Rouge, citing, among other events, the incident described in this story and this post. The requested TRO goes after several specific practices, including too readily declaring an assembly unlawful, arresting protesters for stepping into the street in the absence of any obstruction of traffic, and dispersing protesters off the sidewalks and into the street and then arresting them for being in the street. The suit also names the DA and seeks to enjoin continued prosecution of those previously arrested.
Note that there is no individual plaintiff named in the action. Plaintiffs are the local ACLU, local National Lawyers Guild, and three Louisiana advocacy groups.
Wednesday, July 13, 2016
Violence and the future of public assembly
Since the Dallas shootings, I have been concerned about the possible effect on public protest. Local governments already cite vague concerns for public safety and risks of violence as grounds for restricting public assemblies, marches, and protests, and courts already accept those concerns too easily. An event such as the Dallas shooting makes those concerns more than abstract and allows government to argue for greater restrictions (if not for closing the streets entirely) with a "it-could-happen-here" argument. Reports of a link between a Baton Rouge burglary and a plot to shoot police (which the tiny conspiracy theorist in my brain finds a bit too convenient) have been used to justify police breaking up protests there.
See, then, this post from Michael Dorf, arguing that the threat of violence is unavoidably baked into the idea of public assembly and protest. This means government efforts to maintain order and safety, while legitimate, cannot be allowed to render hollow or meaningless the rights to assemble, speak, and petition. The balance to be struck must account for the risk inherent in the very nature of the First Amendment enterprise.