Tuesday, December 16, 2014

But can I wear my "Fuck the Draft" jacket?

From Judge Susan E. Gash, presiding over the trial of NFL player Aaron Hernandez:

No person wearing clothing, or a button or other object attached to clothing, or carrying an object that displays any Patriots or other NFL team logo, football-related insignia, or words and/or a photograph that relate in any way to this case will be permitted entry to the Fall River Justice Center during any phase of the trial.

Does this seem excessive, especially as it applies not only to the courtroom, but within the entire building? And is it necessary to ban everything related to all of football, not just the Patriots or even just the NFL? Is it really that problematic for jurors to see any and all football-related things?

Posted by Howard Wasserman on December 16, 2014 at 04:48 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

Monday, December 15, 2014

Pfander on Dart

SCOTUS on Monday decided Dart Cherokee Basin Operative Co. v. Owens; the Court held that a notice of removal need only contain a short and plain statement of the amount in controversy and evidence is necessary only if the plaintiff contests the amount. It was a 5-4 decision, with Justice Scalia, joined by Justices Kennedy and Kagan and in part by Justice Thomas, in dissent, arguing that the Court lacked authority to review a court of appeals summary denial of discretionary review of a remand order. Justice Thomas also filed a separate dissent.

James Pfander and Daniel D. Birk (Northwestern) have a piece called Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisidction (Yale L.J., forthcoming); Dart fits with some of what they wrote there (see, especially, pp. 27-28 and 79-80). Jim emailed the following (posted with his permission):

Dart serves as a nice illustration of the work that a construct of non-contentious jurisdiction can do in simplifying the exercise of jurisdiction over some uncontested matters.  As you know, the problem in Dart arose from the one-sided and discretionary application for appellate review of the remand decision.  Justice Thomas, echoing a position first articulated by Justice Scalia in Hohn v. United States, argued that the petition in Dart was not a “case” in the appellate court and was therefore not a matter within the Court’s cert jurisdiction.  There were no adverse parties joined and nothing was contested.

It’s here that the construct of non-contentious jurisdiction can help.  If one recognizes that federal courts have long presided over uncontested applications for the certification or recognition of a claim of right, so long as they require the exercise of judicial judgment (as Brandeis explained in the leading case, Tutun v. United States), then the treatment of ex parte applications for discretionary review (as in Hohn and Dart) presents no real mystery.

Posted by Howard Wasserman on December 15, 2014 at 08:22 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

(Mis)trusting States To Run Elections

The Supreme Court is probably going to hear another voter ID case within the next year or so -- from Wisconsin or Texas -- or different case involving a state's administration of an election, such as one about North Carolina's very restrictive voting law.  I bet the Court will largely defer to a state in its election-related processes and will probably uphold whatever law it reviews.  But that is unfortunate, because it is both doctrinally wrong and practically dangerous. 

As I recount in a new article, forthcoming next month in the Washington University Law Review, the Court too readily defers to a generic state interest in "election integrity" when reviewing the constitutionality of a state's election practice.  Previously, a state had to provide a specific rationale for the law, especially under a higher level of scrutiny.  Now, however, so long as a state says "election integrity," the Court does not question that justification, taking it at face value as an important governmental interest.  But often the state is not really trying to achieve election integrity, at least not principally.  There are often partisan motivations behind an election regulation.  How else can one explain a law, such as North Carolina's, that is passed on a party-line vote and will effect only the minority party's supporters?  Contrary to the approach to state election rules, the Court has closely scrutinized Congress's rationale for an election regulation, refusing to defer to legislative judgment.

Moreover, the Court has said that election litigation should proceed only through as-applied challenges, which requires piecemeal adjudication, yet it has invalidated several federal election laws on their face.  Requiring only as-applied litigation provides a procedural mechanism to defer to a state's election processes.

After the jump I explain the problems with this approach. 

Defering to states substantitively on their interests in an election law and procedurally through as-applied challenges is constitutionally suspect, especially because the Court does not analyze federal election rules in the same manner.  This mode of analysis ignores the fact that the U.S. Constitution, through the Elections Clause (Art. I, Sec. 4), gives Congress an explicit oversight role in state election rules.  In addition, the various amendments relating to voting provide that Congress may "enforce" those constitutional mandates.

The deference is also dangerous.  States know that their laws will not receive meaningful scrutiny and that they need only tie a new rule to "election integrity" in the abstract to pass the first prong of the constitutional test (the state interest prong).  This emboldens state legislatures to enact laws with partisan gains in mind because they can gloss over that point by raising the "election integrity" mantra.  But partisan motiviations should play no role in how we structure our elections.

The Court should not defer so readily to a state's election process.  Instead, the Court should apply a meaningful form of strict scrutiny review to laws that infringe upon the constitutional right to vote and require both Congress and legislatures to justify their laws with a stronger rationale than just election integrity, especially if there is an inference that the legislature really had partisanship in mind.

Here is the abstract of the article, for those who want more on this argument:

Current Supreme Court doctrine defers too readily to states’ voting systems. In the process, the Court has removed Congress from the elections business. The Court has done so not explicitly but through two judicial maneuvers, one substantive and the other procedural, that place tremendous trust in states: lowering the bar for the state interest prong of the constitutional analysis, and forbidding facial challenges to state rules on election administration. The Court has credited any state assertion of “election integrity,” even if that is not the actual impetus for the law under review. It also will reject a facial challenge to a state voting rule, thereby leaving the law in place until a plaintiff has gathered actual evidence of the law’s impact on particular voters. The Court has not treated Congress the same, demonstrating its willingness to invalidate a federal voting rule on its face even when Congress has asserted a more detailed rationale for the law. This Article uncovers this approach to constitutional challenges to voting regulations. It also explains why this current jurisprudence is both wrong and dangerous. It is wrong because the U.S. Constitution gives the federal government significant scope to promulgate election regulations, and states are subordinate to Congress under our constitutional structure. It is dangerous because the current deferential approach emboldens states to pass partisan-based laws with an eye toward affecting elections, and all a state needs to say to justify a new law is that it is seeking to ensure “election integrity.” The Court should reverse this current jurisprudence by requiring states to provide a more detailed justification for an election law and by allowing broader use of facial challenges to invalidate state voting laws, when necessary, before they are implemented. Voting, as a fundamental right, deserves robust protection from the courts. Scrutinizing state election laws more closely will help to achieve this worthy goal.

Comments are welcome! 

Posted by Josh Douglas on December 15, 2014 at 02:10 PM in Article Spotlight, Constitutional thoughts, Law and Politics | Permalink | Comments (1)

Sunday, December 14, 2014

Promissory estoppel in emotionally charged contexts

In searching for a line on controversial or emotionally charged exam questions, it may help to think about three distinct ways those contexts can tie into and affect a question:

1) Testing on a legal topic that is part of the course curriculum and is inherently emotionally charged, regardless of the factual context in which you place it. This includes pretty much all of the "what about this" examples that Eugene and I (in comments to my earlier post) offered--testing on the validity of same sex marriage bans or affirmative action or circumcision bans, questions involving sexual or racial harassment in employment, rape shields, campus sexual assault, hate speech, limiting immigration, etc.

2) Testing on a legal topic that is part of the course curriculum where the question arises in some emotionally charged context and the context affects the analysis of the topic. The Ferguson/Incitement question falls here. Incitement is obviously a core part of a First Amendment class; the context and the details of Ferguson are essential to the First Amendment analysis. Asking in my Civil Rights class whether NYPD Officer Daniel Pantaleo is entitled to qualified immunity in a § 1983 lawsuit by Eric Wilson's widow also would fall here.

3) Testing on a legal topic that is part of the course curriculum where the question arises in some cemotionally charged context but the context is more-or-less irrelevant to the analysis of the topic. In this category would be a promissory estoppel question based on the Steven Salaita case (discussed here, here, here, and elsewhere). The emotional charge here comes from competing views over whether Salaita is a victim of an academic-freedom-violative witchhunt for having the wrong views on Israel and Palestine or is instead an unreconstructed anti-Semite whose tweets are undeserving of academic freedom. But none of that has anything (or little) to do with his promissory estoppel claim.

So where does this framework leave us? Category # 1 presents the easiest case--students must be able to grapple with and analyze these questions and we have to be able to test on them. And that does not change if we put the question into a real-world factual context or not. So, for example, if I want to test on hate speech regulation, I should be able to put it in the context of nooses displayed on a a real college campus.

Category # 3 presents the hardest case, because the controversial context can seem most like a provocation. It thus is especially susceptible to the arguments that either a) it is unfair, unnecessary, and too hard for some  students to fight through the offense or distraction to get at the legal question or b) if you insist on using Salaita, you can bowdlerize his "crime" to somethinions are beneficial in g other than tweets and views that may be seen as anti-Semitic or that may anger people on one side or the other of the Israel/Palestine question. I would suggest that Category # 3 questions are important to showing the legal side to current events and in making a subject relevant to the real world. But this category also leaves us the most flexibility, as we can give a Salaita question without quoting his texts or detailing his viewpoints (which, again, have nothing to do with the estoppel claim).

Category # 2 is obviously somewhere in the middle, coming closer to # 1 or # 3 depending on the question, the subject, and the circumstances. For example, the Salaita case may demand a different answer in an Education Law or First Amendment class testing on academic freedom.

I still believe all three should be fair game for both class discussion and for exams/essays. Lawyers must not only "get their lawyer on" (as a commenter on a prior post put it) as to the topic, but also as to its application. But for those who want to try to draw some distinctions and workable lines, this may be a place to start the conversation.

Posted by Howard Wasserman on December 14, 2014 at 09:31 AM in Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (1)

Friday, December 12, 2014

Where's John McCain?

Much of the debate over the so-called "Crominbus" (a combination Continuing Resolution and Omnibus spending bill), which the House passed late last night, surrounds the last-minute insertion of a campaign finance provision that would raise the limits on individuals donating to political parties.  The provision would gut the main portion of the McCain-Feingold law that is still standing after Supreme Court review: the ban on "soft money."  Political parties used to raise unlimited amounts of "soft money," in return giving their wealthy donors access to legislators.  The 2002 McCain-Feingold law largely put an end to this practice, and the Court upheld the provision in McConnell v. FEC.

The current spending bill would allow an individual to give over $1.5 million, and a couple over $3.1 million, to the Democratic or Republican party during a two-year election cycle.  This is more than three times the current limit.  The provision was slipped in at the last minute without any public debate.  The new rule would fundamentally alter the scope of campaign finance by re-inserting the political parties into the fundraising business, potentially opening the doors to undue access once again.

Rep. Nancy Pelosi, as well as various campaign finance watchdog groups, have been vocally opposed to the measure.  But what about John McCain?

Campaign finance reform used to be McCain's signature policy initiative.  Partnering with Democrat Russ Feingold, his bill, which he worked on for years, in essence thwarted political parties from providing undue access to legislators in exchange for campaign donations.  (The bill also strenghtened the ban on corporations and unions from making independent expenditures, which the Supreme Court struck down in Citizens United.)

As far I as can tell, McCain has been fairly mute on this aspect of the Cromnibus.  He apparently said, before it was unveiled, that it would be "disgraceful" and "jammed full of shit."  But I haven't found any statements from him since the campaign finance provision was made public.

One might imagine that McCain would be outraged.  And his outrage could potentially influence other Republicans to vote against the Cromnibus package, although that of course would lead to the possibility of a government shutdown.  Either way, it's curious that McCain has been relatively silent so far on this provision, which would severely gut the major piece of the McCain-Feingold law that is still standing.  McCain has been one of the few legislators to understand the problem of entrenchment: the concern of legislators passing laws to help keep themselves in power.  The current provision would help both of the two major parties.  It is a pro-establishment rule.  But it would mostly help wealthy donors and already-wealthy politicians.  

Will McCain stick to his morals and speak out against this provision?  Or has he become just another Washington insider?

Posted by Josh Douglas on December 12, 2014 at 11:19 AM in Current Affairs, Law and Politics | Permalink | Comments (3)

Procedure week at SCOTUS

I have recaps at SCOTUSBlog of this week's oral arguments in Gelboim v. Bank of America on finality in MDL cases and in United States v. Wong/United States v. June on the jurisdictionality of the FTCA's limitations periods.

I do not predict an outcome in either recap and I usually am bad at predicting these things. But I will go out on a limb: The Court reverses in Gelboim and holds that a judgment disposing of all claims in one action within an MDL is a final judgment. The Court affirms in both Wong and June and holds that the FTCA limitations periods are non-jurisdictional and subject to equitable tolling. (Apologies in advance to all three attorneys if I just jinxed your cases).

Posted by Howard Wasserman on December 12, 2014 at 10:56 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Much ado?

[Update: Eugene Volokh, Golstein's UCLA colleague, weighs in. He and I are in lockstep agreement (as always, he says it better than I did) about the need for law students to learn how to push through emotional investment and the seemingly boundless scope of the objections being leveled here. He adds two important points: 1) He gives the full question, which was much more detailed and provided students with the relevant facts and 2) Goldstein was not pressured by the administration to discard the question.]

Prof. Robert Goldstein at UCLA asked the following question on his First Amendment exam:

Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision.

And outrage has resulted. Elis Mystal at ATL says Goldstein was asking students "to advocate for an extremist point that is shared by only the worst people in an exam setting," akin to making students "defend Holocaust deniers or ISIS terrorists." Goldstein apologized (Mystal has the text of his note to students) and is disregarding the question, saying the subject is "too raw" to be useful as an evaluative tool.

But what is really wrong with the question? I already have argued that Louis Head (Brown's stepfather) did not commit incitement as understood in Brandenburg, Hess, and Claiborne Hardware. Nevertheless, this seems like a legitimate question to ask a First Amendment class, one that ties legal education into the current world. One of the things I tell my students is that having a legal education means you inevitably look at everything through a legal lens. So why not use significant current event that raises a legitimate legal issue as a way to teach the issue? And the question did not require anyone to take or defend any particular position, much less one equivalent to Holocaust denial; it said to write a memo on the constitutional merits, which plainly leaves room to argue that a prosecution could not constitutionally be brought (which, again, I believe is the "correct" First Amendment answer).*

* If there is a defect in the question, it is that it assumes a detailed level of knowledge of what happened on the night of the grand jury announcement and when Head made his statements, all necessary for the Brandenburg analysis.

Does that much turn on requiring the memo to the DA? (Mystal seems to think so, hightlighted in his responses to commenters on his ATL post.) Does advising the DA mean the student only can say that the First Amendment would not be violated and that a prosecution is permissible--couldn't they also write  "no, you will be violating the First Amendment if you try to bring this prosecution, remember your obligations to do justice"? Would we not be having this conversation if students had been asked to write a memo for a criminal defense lawyer or for the ACLU figuring out whether they have a meritorious constitutional defense against any prosecution?

I did not use any Ferguson questions on my Evidence exam this semester, mainly because I used the events (especially the convenience-store video and the alleged theft) in class discussions to illustrate character and other acts. But I never would have thought twice about asking such a question, or about putting the students in the position of having to argue that such evidence is admissible in any prosecution (which, ironically, would have put them in the position of the defendant in that case).

Posted by Howard Wasserman on December 12, 2014 at 08:31 AM in First Amendment, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (24)

Thursday, December 11, 2014

Video and public opinion

William Saletan at Slate reports on a recent study showing that more whites believe the Michael Brown grand jury was right but the Eric Garner grand jury was wrong. Saletan argues it is evidence, not race, that explains the difference--the "quantity, quality, and clarity of evidence differed between the two cases," namely the presence of "unflinching" video of Garner's death.

This is an important aspect of video evidence. It is not only what video can do in criminal and civil litigation. Video also plays a role in the public conversation over a particular incident or event, which in turn may affect more official responses, both in and out of court. Certainly that video will provide the key push if DOJ decides to pursue a civil rights prosecution in the Garner case.

Posted by Howard Wasserman on December 11, 2014 at 09:10 PM in Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, December 10, 2014

Happy Birthday to My Wife, and Happy Wyoming Day!

Not really law related, but I wanted to take this opportunity to wish my wife, Bari, a happy birthday.  She's not a law prawf--she's an elementary school teacher, which is a much harder job!  If you have 10 seconds, I'm sure she would love happy birthday emails from random prawfs around the country--it will sure make her chuckle.  Her email address is baridouglas [at] gmail [dot] com.

In looking for a quasi-legal hook, I learned that the Nobel Peace Prize is always awarded on December 10, which is the anniversary of Alfred Nobel's death.  

More up my alley, on December 10, 1869, Wyoming's governor approved the first law in U.S. history granting women the right to vote.  To celebrate, every year December 10 is officially "Wyoming Day" in that state.  Wyoming is also a pioneer in having elected the first woman Governor, in 1924.  Way to go Wyoming!  Another reason to go there (it's one of six states I've never visited).

Posted by Josh Douglas on December 10, 2014 at 09:59 AM in Law and Politics | Permalink | Comments (1)

Tuesday, December 09, 2014

SCOTUSBlog Preview: Jurisdictionality and the FTCA

I have a SCOTUSBlog preview of tomorrow's arguments in United States v. Wong and United States v. June, which jointly consider whether the timing requirements for filing claims under the Federal Tort Claims Act are jurisdictional or procedural and whether they are subject to equitable tolling.

Posted by Howard Wasserman on December 9, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Monday, December 08, 2014

Body cameras and and predictive analysis

Andrew Ferguson (UDC) argues at HuffPost that police body cameras can be used to track smaller, more routine police-citizen interactions that might be predictive of future, more severe wrongdoing by some officers. Worth a read.

Posted by Howard Wasserman on December 8, 2014 at 06:43 PM in Article Spotlight, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (0)

The Scope of Voting Rights Under Article I: Understanding the Problem

My current project, Protecting Political Participation Through the Voter Qualifications Clause of Article I, tries to determine the scope of the voting rights that are protected by Article I, Section 2 of the Constitution, which provides that “The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.”  I find this particular clause fascinating because the Supreme Court once relied on it to ground some of its one person, one vote and constitutional voting rights jurisprudence, but this provision has since fallen into obscurity because of mistakes that the Court made in the same cases that initially looked to Article I to protect the right to vote.   

In Wesberry v. Sanders (the lesser-known companion case to Reynolds v. Sims), the Court held that the states’ failure to reapportion their congressional districts violated Article I, Section 2.  Similarly, in Harper v. Virginia Board of Elections, the Court read Article I, Section 2 to create a fundamental right to vote in federal elections.  Problems arose, however, when the Court tried to determine which provision of the Constitution protects the right to vote in state elections.  Thus, in Reynolds v. Sims, the Court held that the states’ failure to reapportion their state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment (rather than Article I, Section 2).  Harper likewise found the right to vote in state elections to be protected by the Equal Protection Clause.     

Treating the right to vote in state elections as a fundamental interest protected by the Equal Protection Clause has led to several problems in the Court’s jurisprudence.  Notably, neither Harper nor Reynolds stand for the proposition that the right to vote in state elections has to exist, even if the corresponding right to vote in federal elections must exist.  Grounding the right to vote in state elections in the Equal Protection Clause, according to the Court, permits states to choose whether to extend the right to vote to its citizens, but once available, has to be offered on equal terms.  This notion of the right to vote as optional, rather than mandatory, is contrary to the traditional conception of the right to vote as a fundamental right that is “preservative of all other rights.”  In addition, the equal protection framework, modified in decisions subsequent to Harper to be more deferential to state authority, has come to dominate the assessment of all regulations governing the right to vote, regardless if the law applies to state elections, federal elections, or both.  Thus, the importance of the right to vote in federal elections, as originally protected by Article I, has gotten lost in the evolution of the Court’s standard of review from one that strictly scrutinizes state voter qualification standards to a balancing test that is extremely deferential to state authority.   

I find this state of affairs to be completely perplexing given that the Voter Qualifications Clause provides that, with respect to voter qualifications for federal elections, “the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.”  Because this provision makes federal voting rights dependent upon participation in state elections, this framework suggests that the right to vote in state elections is not optional (as an Equal Protection analysis would suggest) and it has to broadly available in order to protect the fundamental right to vote in federal elections.  In my next post, I will provide more evidence to show why this reading of Article I is the correct one.  

Posted by Franita Tolson on December 8, 2014 at 10:28 AM in Constitutional thoughts, Law and Politics | Permalink | Comments (2)

State Judges and the Right to Vote

If you follow elections, you probably heard about the Supreme Court's last-minute decisions in the Wisconsin and Texas voter ID cases, stopping Wisconsin from implementing its ID law but allowing Texas to move forward with its law for the 2014 election.  But unless you study election law, I bet you didn't notice the Arkansas Supreme Court decision invalidating that state's voter ID law, or the myriad other election cases state courts decide that affect the voting process.

But state courts are intimately involved in regulating elections, especially given that, unlike the U.S. Constitution, all state constitutions explicitly confer the right to vote.  Indeed, to understand the meaning and scope of the right to vote, we need to study how state judicial decisions impact the way in which we run our elections.  Below the fold I provide some details of my study of state judges and the right to vote.

This inquiry reveals some interesting trends.  

First, state courts decide lots of cases on issues of importance, such as voter ID, felon disenfranchisement, the legality of voting machines, whether to keep polls open late, whether to count absentee ballots, and others.  State court activity on voting rights is much more robust than federal court decision making in this area.  Yet as legal scholars and as a society at large we tend to pay much less attention to state cases than to federal court decisions.  Second, not surprisingly, "liberal" judges tend to construe the constititutional right to vote more broadly than "conservative" judges.  Third, appointed judges are better than elected judges at ruling more broadly toward voting rights, especially for political minorities.

These gems--and others--fill up the pages of my new draft, State Judges and the Right to Vote.  I'd be delighted for comments and thoughts on the piece.  Here is the abstract:

State courts are paramount in defining the constitutional right to vote. This is in part because the right to vote is, in many ways, a state-based right protected under state constitutions. Yet our focus on state courts and on how state judges interpret the right to vote is sorely lacking. This article remedies that deficiency. It examines numerous state court cases involving voter ID, felon disenfranchisement, and the voting process, demonstrating that state courts vary in whether they rule broadly or narrowly toward voting rights. When state courts issue rulings broadly defining the constitutional right to vote, they best protect the most fundamental right in our democracy. On the other hand, state decisions that constrain voting to a narrower scope do harm to that ideal. Further, a preliminary analysis shows that liberal judges, as well as those who earn their seats through merit selection, are more likely to define the right to vote robustly as compared to their conservative and elected counterparts. Given that state judges impact our election system in significant ways through broad or narrow rulings on voting rights, we should advocate in favor of state courts and state judges who will broadly construe and protect the state-based constitutional right to vote.

Posted by Josh Douglas on December 8, 2014 at 09:51 AM in Article Spotlight, Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (0)

SCOTUSBlog Preview: Finality and MDL

I have a SCOTUSBlog preview of tomorrow's arguments in Gelboim v. Bank of America, which considers whether a decision dismissing all the claims in one action, where that action has been consolidated for pre-trial purposes with other still-pending actions through multi-district litigation, is a final and appealable order.

Posted by Howard Wasserman on December 8, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, December 04, 2014

Prosecuting police--the role of the grand-jury pool

Alexi Lahav (U Conn) shares this op-ed by Ilaan Maazel suggesting reforms in policing police misconduct, including body cams (while recognizing they are not a panacea) and having all prosecutions handled by an independent special prosecutor rather than the local DA. In a Slate piece in September, Kate Levine suggested something similar (she specifically wanted to turn all cases over to federal prosecutors), which I questioned.

But in light of recent events, I am beginning to come around to the idea that Maazel and Levine are pushing. Moreover, I am coming around not only to the idea of requiring a special state prosecutor or the State AG, which Levine suggested and which I thought might work, but to the idea of making everything federal.

The focus in both the Brown and Garner cases has been on the respective local prosecutors and their supposed failures to be sufficiently aggressive. And the argument generally is that local prosecutors, by necessity, are always too close to the police.

But perhaps we also should consider the effect of the composition of a state as opposed to federal grand jury. Maybe part of the problem involves the likely decisions or actions of body drawn entirely from people in St. Louis County or Staten Island/Richmond County who are immersed in the local passions and politics; maybe a federal body drawn from the entire Eastern District of New York or Eastern District of Missouri, less immersed in those local passions and politics, can process things differently. Of course, it may not matter given modern media--everyone knows the details of high-profile cases such as these. But perhaps someone from Montauk or Cape Girardeau has a bit more distance from the events, a bit more distance from the local police, and thus a greater willingness to find a basis to pursue a criminal case.

Posted by Howard Wasserman on December 4, 2014 at 05:41 PM in Constitutional thoughts, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Wednesday, December 03, 2014

Yung on police, lethal force, and video

Corey Yung weighs in at CoOp with six other instances in which police officers were not prosecuted (or otherwise sanctioned) for using lethal force against unarmed minority men, even when events were captured on video. Go watch.

Posted by Howard Wasserman on December 3, 2014 at 06:44 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Video does not prevent "another Ferguson"

A grand jury has decided not to indict a NYPD officer in the choking death of Eric Garner--an event captured on a cell phone video. Apparently the video "said" something to the grand jurors quite different than what it said to many other people who have seen it. That the chokehold maneuver is forbidden by department regs did not change anything. Nor did the fact that the officer used physical force against someone for selling loose cigarettes.

To the extent we hope video will create greater accountability, this result suggests maybe not--it obviously does not make an indictment more likely (it also is further proof that video would not have made a difference in the Michael Brown case). Nor is it likely to produce deterrence--police can respond with force to even the most petty misconduct. So bring on those body cameras; just do not expect them to change much.

Meanwhile, NYPD is preparing for the "potential contingency" of public protest, which of course means mass arrests and forcefully moving people off the streets.

Update: Nia-Malika Henderson at WaPo suggests the non-indictment hurts Obama's body-camera arguments. But she comes around to the right point--cameras are good, but they are not the solution and they will not alone achieve significant change.

Update II: This NPR story describes a lot of the developments over the course of the afternoon, including a "die-in" at Grand Central Station and the mayor canceling his planned appearance at the Rockefeller Center tree-lighting ceremony tonight, which may be a target for protesters.

Posted by Howard Wasserman on December 3, 2014 at 03:13 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (15)

Tuesday, December 02, 2014

Michael Brown and the return of Brandenburg

A colleague asks a question:

Did Louis Head, Michael Brown's stepfather, commit incitement within the meaning of Brandenburg? Law enforcement apparently is investigating possible charges. Immediately following the announcement of the grand jury decision, Head was captured on video (embedded-go to 2:30 mark) shouting "Burn this motherfucker down" and "Burn this bitch down" (as people around him tried to calm him down).

Brandenburg requires that incitement be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Brandenburg paradigm is a torches-and-pitchforks mob outside a poorly guarded jail and the leader saying "let's get that guy in there." We definitely have a mob here (although hardly in a poorly guarded area, since there were police in riot gear across the barricade and the National Guard was in the area). But I do not see how the state could show intent. There also is Hess v. Indiana, in which the Court overturned a conviction where the defendant was not addressing any persons or group and he was no louder than anyone else in the group. Certainly Head was at the center of crowd and he can be seen asking for a microphone or bullhorn, as if trying to address the crowd above the noise. But he also just appears to be one of many people shouting into the sky in a show of anger, in his case, immediately after embracing his wife, who had just broken down.* He just happened to be caught on camera, which raises an interesting question--if his words reached millions watching TV but not the people who did the actual rioting, can he be said to have incited the crowd?

* Yes, I acknowledge that this perception may be influenced by my views of the case and the First Amendment and that mileage may vary.

I have been kicking around an idea that the legal change to come out of Ferguson may be all about the First Amendment--militarized police responding to public gatherings, negotiations on rules of public protest, citizen video, unconstitutional move-along policies. A good old-fashioned incitement/advocacy of unlawful conduct argument would top that off.

Posted by Howard Wasserman on December 2, 2014 at 06:04 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Media, Op-Eds, and the Value of the "Extra" Things We Do as Law Professors

Today CNN published an article quoting me about the Kentucky law that prohibits Rand Paul from appearing on the ballot for both President and U.S. Senate at the same time.  During the election season I published a few Op-Eds on various issues involving the electoral process.  Beyond the shameless self-promotion, in this post I want to explore the value of law professors appearing in the "popular press."  Why do some professors welcome media inquiries or write Op-Eds?  And what value should our schools give to that activity?

In my view, there are several benefits to using the popular press to share our expertise.  Of course, there's the inherent "wow" factor in seeing one's name in a major publication.  But that's purely self-serving.  I think there more signfiicant instutitional and prudential considerations for being quoted or writing an Op-Ed.

First, it brings publicity to one's law school.  Especially given that I teach at a public institution, I believe it is my duty to explain complex election law problems to the general public.  It provides institutional goodwill, giving the state's taxpayers some additional value for employing me.

Second, it helps expose more people to my work.  In an age when judges and others question the value of legal scholarship, using the popular press shows the world how scholarship relates to the "real world" and can have an actual impact.

Third, I think it makes me a better scholar.  When I have to distill a concept from a law review article into a quote or Op-Ed, it inherently makes me refine and shape the overall argument.  

Fourth, it assists my teaching.  Law students are generally not "experts," and one goal of classroom instruction is to explain complex topics in easy-to-understand ways.  The more we practice this technique, whether in the classroom or in the media, the better we are at what is often a very difficult task.

But this discussion raising an intriguing question: what value should this kind of activity have in our assessments?  It's not obviously teaching, scholarship, or service, although it fits in with all three activities.  Should law schools value this activity more?  Or is the inherent excitement of being known publicly as an "expert" enough?

I'm not sure.  I engage in these activities because, as noted above, I believe it is my public duty, and because I think it makes me a better scholar and teacher.  Plus, I have tenure now, so does it matter anyway?!

Posted by Josh Douglas on December 2, 2014 at 01:45 PM in Current Affairs, Law and Politics, Teaching Law | Permalink | Comments (7)

Wednesday, November 26, 2014

When "protests" become "riots"

Tim's final post talks about Monday's protests turning violent and destructive (and the process being repeated on Tuesday) as a tipping point, in which public (and media) support and attention shifts away from the protesters. I do not know if we have hit that point. There is still much to sort out about what has been happening on the ground the past few nights. And it appears that many of the unlawful mistakes we saw in July (mass arrests of even peaceful protesters, arresting people for recording) are being repeated. And the number of sympathy protests across the country (many far more peaceful) may suggest a deeper level of support.

Nevertheless, Tim's point about public sympathy reminded me of Walker v. City of Birmingham (which I wrote about last week) and what it indicates about the connection between public speech and public support. The events in Walker occurred during Easter Week 1963, four months before the March on Washington, when the violent response to peaceful were entering living rooms--arguably at or near the height of public support for the movement. But the case did not reach SCOTUS until 1967 (argued in March, decided in June). By that point, we had seen the same shift in public support and sympathy away from civil rights protesters and the movement, given the increasing militancy in the movement, as well as public concern about riots (on race, the war, etc.) throughout the country.

Brennan suspected that the changed social circumstances had influenced the majority in rejecting the protesters' First Amendment arguments. He closed his opinion with a sharp reminder that public fears about riots should not override the right to peaceful public protest. The first part remains applicable to current events:

We cannot permit fears of "riots" and "civil disobedience" generated by slogans like "Black Power" to divert our attention from what is here at stake -- not violence or the right of the State to control its streets and sidewalks, but the insulation from attack of ex parte orders and legislation upon which they are based even when patently impermissible prior restraints on the exercise of First Amendment rights.

Tim is correct that public sympathy wanes. The right of public protest should not wane with it.

Posted by Howard Wasserman on November 26, 2014 at 10:31 AM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Ferguson – What Now? (guest post)

 This is the final post on Ferguson from Timothy Zick:

Monday night, peaceful vigils and other protected forms of protest were largely overshadowed by acts of violence and destruction.  As headlines attest, the Ferguson “protests” have already been displaced in the news cycle by the Ferguson “riots.”  The facts are still coming in, but by most accounts police were not the instigators.  The commercial and other costs must be laid at the feet of the lawless, who engaged not in legitimate protest or demonstration but in petty and more serious criminal activities.  While their frustration may be understandable, their actions were obviously neither wise nor constructive.  The violence was not, as some have suggested, inevitable.  Whatever their underlying causes or motivations, the riots were a choice. 

There will be additional protests and demonstrations in Ferguson and elsewhere.  Hopefully they will be vocal, but peaceful, events.  The issues are worth demonstrating about.  But as I wrote in my previous post, public sympathy will not be with the protesters forever.  Last night may have been a tipping point.  The media will focus on Ferguson for a bit longer, but the news cycle will inevitably find other conflicts and the press will move on.  Many left behind will have expressed their outrage, or have been affected by the actions of those who did so.  What will be the legacy of the Ferguson protests (past, present, and future)? 

In the wake of last night’s events, hopelessness seems to be pervasive – particularly among many Ferguson residents, who have been witnesses to the conflict from the beginning.  The protests and demonstrations have not been empty or meaningless events. They have pricked the public conscience, highlighted grievances, jump-started conversations about social and political issues, and demanded attention from public officials.  It would be unfortunate if rioters tarnished or diminished some or all of these important accomplishments. What happens next depends on forces that lie beyond public streets and other public forums.  Too often, protesters do not follow action in the streets with concrete social and political activity.  Protests and demonstrations are not ends in themselves.  They can be catalysts for change, but only if organizations and associations work to channel their outrage and energy.  Expressions of outrage from civil rights leaders are fine.  But Ferguson desperately needs an organization, preferably a local group, to take the lead.  Other elements of the community can also work toward policy changes.  Rioters can trade bricks for ballots, residents can work toward rebuilding or strengthening community ties, and officials can follow through on promises made in the heat of the moment – or be held accountable by higher authorities.  What’s next for Ferguson is not at all certain.  The protests and demonstrations have created an opportunity and suggested an agenda that includes criminal justice reform and protection for civil rights.  For the sake of Ferguson itself, let’s hope that peaceful activists seize that opportunity.

Posted by Howard Wasserman on November 26, 2014 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Osofsky on tax nonenforcement (guest post)

The following is by Leigh Osofsky (Miami)
 
President Obama's recent immigration nonenforcement announcements have caused scholars to go searching for an appropriate lens through which to judge executive nonenforcement.  The problem is that each of the potential lenses relies on distinctions that are not coherent, or are almost impossible to apply.  
For instance, many constitutional scholars have suggested that categorical nonenforcement is impermissible, whereas merely setting priorities (or, some would say, case-by-case discretion) is permissible.  The President and the OLC have implicitly adopted this distinction, by taking pains to state that case-by-case discretion has been maintained in this case. However, the distinction between categorical nonenforcement and setting priorities (or case-by-case discretion) is more illusory than real.  Is a nonenforcement policy, like President Obama's recent immigration policies, really not categorical if it preserves some case-by-case discretion in a manner that nonetheless assures millions of people that the threat of deportation has, for all intents and purposes, been lifted? If it is so easy to disguise what is in reality a categorical policy as a case-by-case policy should the legitimacy of the action really turn on such a distinction? Another distinction that constitutional scholars often make is the distinction between nonenforcement motivated by enforcement resource limitations (widely believed to be legitimate) and nonenforcement motivated by policy (widely suggested to be illegitimate).  The OLC notes that it is not relying on this distinction alone in opining about President Obama's nonenforcement policies, and for good reason.  How it is possible to make this distinction in an intellectually coherent way when thinking about an agency that is perpetually resource-strapped?  While many instances of nonenforcement will save resources, there is inevitably going to be some policy reason why a particular nonenforcement strategy is chosen.  Should the legitimacy of nonenforcement rest on the distinction between policy and enforcement resource limitations when they are so often going to be intertwined?  Finally, the OLC introduces a new, and quite interesting test in its recent opinion.  The OLC looks to whether nonenforcement is consistent with Congress's intent, as expressed through the relevant statutory scheme. However, as Cristina Rodriguez and Adam Cox have suggested recently on Balkinization, making this determination in the context of a vast and complex statute is going to be exceedingly difficult.  

So how should we judge nonenforcement given the difficulties of the existing lenses?  I am not sure I have the final answer but I do believe that something important has been left out of the analysis thus far.  When an agency does not enforce the law, it is substantially affecting rights and obligations.  A long line of literature regarding administrative legitimacy has contemplated how an agency can have a substantial impact on rights and obligations under the law in a legitimate way.  Three hallmarks of agency legitimacy are: accountability (under political accountability theories of the legitimacy of the administrative state), deliberation (under civic republican theories of the legitimacy of the administrative state), and nonarbitrariness (under nonarbitrariness theories of the legitimacy of the administrative state).  

 
In a recent (working) Article http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2513349 , I argue that in certain circumstances categorical nonenforcement of the law can increase the accountability, deliberation, and nonarbitrariness of inevitable agency nonenforcement of the law.  The Article is intentionally rooted in agency nonenforcement (and in the tax law in particular), rather than an examination of the recent, highly-charged presidential nonenforcement of the law, but it nonetheless may have much to offer to the current debate.  In short, the Article suggests that the existing distinctions for analyzing nonenforcement may be insufficient, and that we should at the least integrate the lens of agency legitimacy into the analysis.

Posted by Howard Wasserman on November 26, 2014 at 09:01 AM in Law and Politics, Tax | Permalink | Comments (0)

Monday, November 24, 2014

Ferguson, again

Following the grand jury declining to indict Officer Wilson in the shooting death of Michael Brown, the Brown family released a statement specifically calling for a "campaign to ensure that every police officer working the streets in this country wears a body camera." Yes, give everyone a camera--but do not expect it to have as conclusive an effect as you think it will. Video likely would not have changed the grand jury's decision. Perhaps it would have made him less likely to shoot, but I think the deterrent argument is open to debate right now.

A couple things for crim law experts:

1) Is it the grand jury's role to weigh and select between conflicting evidence in deciding whether to indict? The DA made much of the conflict between the physical evidence and the testimony of witnesses, as well as the inconsistency between different witnesses and between statements by particular witnesses. But is that the issue for a grand jury determining probable cause? Or is that supposed to be left for an open trial on culpability? Is it typical for the prosecutor to point out those inconsistencies now? Or is that for defense counsel at trial? Here are two arguments on that, noting that the DA spoke of the grand jury's job as to "separate fact from fiction." Is that wrong?

Now, I know prosecutors often will not seek an indictment if they believe they have enough for probable cause but not to convict, in light of possible witness-credibility problems. But does witness credibility often suggest the absence of probable cause?

2) It seems to me the question is what evidence the grand jury heard showing that Brown posed a continued threat to Wilson. The rule seems to be that a police officer is entitled to keep shooting until the threat is over. It appears that Wilson fired ten shots at a distance (following two fired at close range). The question must be whether any of those initial shots incapacitated Brown.

3) How common is it for the target to testify before a grand jury? How common is it for defense counsel to allow a client to do so?

Posted by Howard Wasserman on November 24, 2014 at 11:53 PM in Howard Wasserman, Law and Politics | Permalink | Comments (13)

Sunday, November 23, 2014

Judicial Elections and Historical Irony

Last week I was privileged to participate in a conference in New Mexico on the judiciary.  The debates and assigned readings focused especially on judicial elections (a new issue-area for me).   There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).  

“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states.  This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).  

 With many judicial elections now under the shock of increasing party polarization, interest-group mobilization, and campaign spending, it seems likely that these calls to end judicial elections for the sake of judicial independence will only intensify.  Yet one of the historical ironies I learned from the conference readings is that “judicial independence” was also the primary value that was put forward as the rationale for creating elected judges in the first place.  

 In the mid-nineteenth-century campaigns for an elected judiciary, however, the sort of judicial dependence that was especially targeted by reformers was judges’ dependence on state legislatures and associated party machines that had become corrupt or spendthrift (especially in economic development projects).  It was hoped that a switch to elected judges would empower judges to reign in discredited legislatures, policing them for their fidelity to the state constitutions (“the people’s law”) while keeping judges accountable to the people through elections (and later, recalls).  

 The longer history of elected judges in the United States offers many other enlightening contrasts with today’s premises. (The stance of the professional bar towards the desirability of elected judges flipped over time.  The dominant presumption about whether appointed or elected judges are the ones more likely to lean conservative or liberal also flipped over time…)  For now, however, I only want to ask one question of this rich history—whether it makes plausible the possibility that, in some states, contemporary reform movements to eliminate elected judges will have unintended adverse consequences for democratic responsiveness and the separation (or balance) of powers between the judiciary and other branches of government.

 My question is prompted--not by a preference for elective over appointive judiciaries--but by the historical scholarship that shows that the nineteenth-century push for elected judges was often packaged with—and used as a justification for—very substantial expansions of judicial power and very substantial curtailments of legislative power.  Making state judges electorally accountable was supposed to make it safe to greatly expand the role of judicial review of legislation, and to give judges much more independence from the other branches in the terms and conditions of their appointments.  

 This new form of judicial accountability to the electorate even justified a judicial role in which judges were tasked to police procedural constraints on the legislatures, including rules that had previously been considered essentially internal to the legislature (perhaps—I wonder—starting to unravel some of the Anglo-American tradition of legislative autonomy and privileges that had taken centuries to develop).  Meanwhile, this change in the role of judges may also have coincided with the decline of juries.

 If much of the nineteenth-century judicial empowerment and legislative disempowerment was enacted on the premise of it being bundled with judicial elections, then I ask—if some states now revert to appointed judiciaries without also considering the larger package—do they risk an institutional imbalance or loss of democratic accountability in the legislature and executive?  (Perhaps this question is already asked and answered somewhere in current policy debates or scholarship?)

 It would be nice to think these structural matters of constitutional development tend towards equilibrium in some organic fashion.  At the least, we can expect that state legislatures and executives will long retain the cruder sorts of tools for reining in abuses of appointed judges.  Depending on the particular state, these might include decisions about judicial budgets, impeachment or removal of a judge upon legislative address, jurisdiction-stripping, court packing, or informal control of judges through the influence of political parties and the professional bar.  Nonetheless, I find it just as easy to imagine that judicial empowerment at the expense of legislatures might be ‘sticky’, if never a one-way ratchet.  Here I am influenced by the social science accounts that suggest that, around the world today, judicial power has been much expanding at the expense of legislatures.  I am also thinking about the possibility that there may be institutional biases in some states against structural adjustments (like ’single subject rules’).

In theory, the public should have the capacity to ensure that one branch of government never gets too big or unaccountable.  In the many states that are characterized by constitutions relatively easy to amend, constitutional change is, after all, supposed to occur more through formal amendment processes than through judicial interpretation.  Even so, query whether such large structural questions lend themselves to retrospective scrutiny and popular oversight.  (This is a real, not rhetorical, question for someone who has a lot more knowledge about the states and judicial reform movements than I now have.)

 John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006)

 John Ferejohn, “Judicializing politics, politicizing law,” Law and Contemporary Problems 65 (3): 41–68 (2002).

 Jack P. Greene, The Quest for Power: The Lower House of Assembly in the Southern Royal Colonies (Norton, 1972)

 Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard Univ. Press 2012)

 G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (Stanford Univ. Press 2012)

Posted by Kirsten Nussbaumer on November 23, 2014 at 10:34 PM in Constitutional thoughts, Current Affairs, Judicial Process, Law and Politics, Legal Theory | Permalink | Comments (7)

Thursday, November 20, 2014

Zick on public protest and Ferguson

The following post is by Timothy Zick (William & Mary), the author of Speech Out of Doors and the leading expert on public protest and the First Amendment.

Many thanks to Howard for inviting me to weigh in on the events in Ferguson, Missouri.  I’ll probably add just a few posts to his excellent commentary, depending on how things develop.

The conflict in Ferguson has presented a free speech moment – or series of moments. In addition to the much-discussed protests (more on that below), there have been several other First Amendment issues and concerns:  advocacy of civil disobedience by some protesters, arrests for unlawful assembly, allegations that prior restraints have been used, arrests and abuse of the press, occupation of public places, use of “free speech zones,” and concerns about the propriety of Ferguson police officers wearing bracelets that express support for Officer Wilson.  In short, there has been no shortage of First Amendment controversies following Michael Brown’s death.

Of course, the protests themselves have occupied center stage.  The media are attracted to conflict, and the conflict is important.  Once again, we have seen the delicate balancing of tolerance and respect for public assembly and speech with the need for order and public safety playing out in real time.  And once again, the results have been disappointing - or worse.  As I argue in my book, Speech Out of Doors, a variety of legal and non-legal forces have combined to challenge traditional protests and other public modes of contention and dissent.  Howard has thoughtfully posted on some of the problems associated with the militarization of public places and escalated force protest policing (e.g., here and here).  Chapter 7 of my book examines militarization at various public events, including national party conventions, presidential inaugurals, and world summits.  Militarization has been on the rise, in part owing to post-9/11 federal dollars flowing to local police departments.  As Ferguson shows, local police forces across the nation are now equipped with the tools of militarization.  Some have used surveillance, shows of force, and other military tactics in policing local events. 

Of course, the possession of military-style equipment does not guarantee the use of escalated force.  Police forces can and do act with appropriate restraint.  Some of Howard’s commenters have asked about evidence for the link between militarization and protester responses.  Social scientists have carefully studied protest policing, and they have argued in favor of a “negotiated management” style in part owing to the costs of escalated force policing.  Of course, there is historical evidence that escalated force leads to violent confrontations – the 1968 Democratic National Convention in Chicago, the WTO debacle in Seattle in 1999, and recent national party conventions in Boston, New York, and elsewhere. Sure, some protesters at these events were looking for violence.  And sure, sometimes police need to respond with force.  But as Howard’s posts suggest, one of the problems with militarization is the attitude it sends about public protests and public places.  As a mindset, militarization can exacerbate and even invite conflict.  This was one reason many police departments abandoned escalated force policing.  It’s come back, in the form of militarization.  I’m skeptical that we can keep arming police to the hilt while expecting them to exercise restraint in the face of angry and emotional crowds. When officers divide streets into military-style grids and gird for battle, even peaceful protesters and reporters are at risk.  To be clear, there is no excuse for lawless behavior by protesters.  Nor is criticism of militarization meant to suggest “anything goes” protest policing.  Balance, proportionality, and forbearance are required.  But too frequently of late, these things have been in short supply at public events. 

To their credit, Ferguson officials have tried everything from personnel changes to personal apologies in an effort to calm the public and preserve rights to peacefully protest and assemble.  Nevertheless, today there is a sense of foreboding in the press and on the blogs (including this one) about what will happen next.  Last night’s arrests of protesters outside a barricaded police station may be a harbinger of things to come, in Ferguson and elsewhere.       

Posted by Howard Wasserman on November 20, 2014 at 05:18 PM in Constitutional thoughts, First Amendment, Law and Politics | Permalink | Comments (4)

Rules of engagement, ctd.

In looking at the rules of engagement offered by leaders of potential Ferguson protests (calling themselves the "Don't Shoot Coalition") as a whole, the central question becomes one of defaults. The default, they argue, must be that this is a peaceful assembly and expressive event that police should allow to go forward without interference unless there is genuine indication of significant threats to public safety. And even then, the default should be that those threats are from individual lawbreakers, who should be dealt with, and not the demonstration itself or the great mass of lawful speakers and speech.

Of the 19 proposed rules, consider: # 16 (allow "every latitude" for free assembly and expression); # 15 (tolerate minor lawbreaking); # 14 (tolerate an expansion of the scope, size, or duration of the protest); # 13 (figure out alternate routes for foot and street traffic); ## 7-8 (not military gear or equipment--this is one the police flatly rejected); # 18 (no attempts to preemptively or pretextually stop protesters from organizing and beginning). This is not to mention more common-sense rules, such as be professional and don't use excessive force (# 17--we  really need to state that rule?)

We can disagree over particulars. But the tenor seems right to me: Start from the presumption that this is lawful and deal with it when it isn't, rather than the other way around.

Posted by Howard Wasserman on November 20, 2014 at 09:40 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Wednesday, November 19, 2014

Rules of engagement

One of the commentators on my earlier post asked what I would suggest as an alternative to calling out the National Guard. This is a start: Negotiations between law enforcement and protest leaders about "rules of engagement" in any upcoming protests following the grand jury decision. As Tim Zick described in his book, such negotiations have become a significant aspect of public protest, especially large, planned gatherings targeting specific times, places, and events. And while one would think that the First Amendment should be the only necessary rule of engagement, past events in Ferguson (and elsewhere) suggest that a clear body of rules, agreed upon and understood by all involved, might be a way to ease tensions from the start.

Unfortunately, one sticking point seems to be whether police will forego riot gear, armored vehicles, and tear gas in the first instance--in other words, police not working from a presumption that the gathering is a riot and protesters are combatants.

Posted by Howard Wasserman on November 19, 2014 at 10:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Tuesday, November 18, 2014

Prior restraint: How far have we really come?

In a comment to my earlier post on the preemptive state of emergency in Ferguson, Steven Morrison asks whether an advance state of emergency and deployment of troops amounts imposes such an extraordinary chill on speech as to amount to a de facto prior restraint. I think the answer is no. But the point made me think.

In a current work-in-progress, I discuss Walker v. City of Birmingham, in which the Court held that the Collateral Bar Doctrine applied even to the First Amendment and even as to a blatantly unconstitutional injunction. Anticipating civil rights marches during Easter week 1963, officials in Birmingham got a state judge to issue an injunction that repeated, word-for-word, the text of the city's unquestionably unconstitutional permitting ordinance* and prohibited movement leaders from leading or encouraging marches without a permit. When the marches went ahead anyway, the leaders were jailed for contempt of court for violating the injunction. A 5-4 Court upheld the convictions, insisting that the long-held obligation with an injunction is to challenge the injunction directly or obey it (in this case by getting a permit).

* In dissent, Justice Brennan derided this process of converting an ordinance to an injunction as "inscrutable legerdemain."

So my answer to the question in the title of the post is that we actually are moving backward where public assembly and expression are concerned. As corrupt as the events and officials in 1963 Birmingham were, they at least went through the pretense of judicial process. Here, with the stroke of a single executive's pen, the possibility of protest--even without any genuine threat of unlawful behavior--has been declared an emergency and a threat to civil society, justifying deploying military force and turning Ferguson into a battle zone.

Can we really say this is more respectful of First Amendment ideals than what happened fifty years ago?

Posted by Howard Wasserman on November 18, 2014 at 06:44 PM in Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Moral Panics and Body Cameras

That is the title of my new essay in Wash. U. L. Rev. Commentaries (and forthcoming in Wash. U. L. Rev.). The abstract is after the jump.

Obviously, I have been thinking about Ferguson quite a bit of late.

This Commentary uses the lens of "moral panics" to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence and the difficult questions of implementing any body camera program. In overstating the case, the rhetoric of body cameras becomes indistinguishable from rhetoric surrounding responses to past moral panics. 

Posted by Howard Wasserman on November 18, 2014 at 09:31 AM in Article Spotlight, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, November 12, 2014

District court invalidates South Carolina SSM ban

And spend a lot of time talking about Fed Courts stuff. Of course, the discussion mostly demonstrates that, quite often, neither parties nor courts fully understand this stuff.

1) The suit named three defendants: A probate judge (authorized under state law to issue licenses); the attorney general; and the governor. The court held that the judge and the AG were proper defendants because both were responsible for enforcing the state ban--the judge by issuing (or refusing to issue) licenses and the AG by initiating state-court litigation and by defending the ban in court. But the court held that the governor was not a proper defendant, because other than a generalized power as the chief executive, she is not responsible for enforcing these laws. The court thus dismissed that claim under the Eleventh Amendment.

The Eleventh Amendment dismissal makes no sense (to the extent any of this makes sense). The state is not a named defendant, nor is the state the "real and substantial party in interest" in an action nominally against the individual officer that would require payment from the state treasury. This was a purely equitable action against a named officer; that she is not the correct officer does not convert it back into an action against the state.

Most courts facing the "wrong Ex Parte Young defendant" rely on standing as the basis for dismissal, on the theory that the plaintiff's injury is not "fairly traceable" to that defendant's conduct. I am still not a fan of that, as I think this is all about substantive merits. But it makes at least a bit more sense than saying that suing the wrong individual creates an action against a state.

2) The AG instituted an original jurisdiction action against the probate judge in the State Supreme Court, seeking to enjoin him from issuing licenses in accordance with the Fourth Circuit's decision invalidating Virginia's ban. The supreme court stayed that action, pending resolution of an already-pending action in federal district court. The AG tried to argue that Rooker-Feldman barred jurisdiction over this action, because the issues were involved in the pending supreme court action. But the court easily swept that aside, finding 1) the state supreme court had stayed its action in deference to the federal proceedings, and 2) RF would not apply here, because the plaintiffs are not state-court losers challenging the validity of a court order or seeking to enjoin that order.

I must say, though--that the AG even brought this up reflects a misunderstanding of the recent direction of that doctrine.

3) The AG also tries to argue Younger abstention. Again, easily swept aside, since mere parallel litigation is not a basis for Younger abstention. Again, the plaintiffs want to enjoin enforcement of the SSM ban, not the state court proceedings. Again, the AG needs a Fed Courts class.

Posted by Howard Wasserman on November 12, 2014 at 01:51 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Thursday, November 06, 2014

Here's your circuit split on marriage equality

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

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

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

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

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

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

 

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

The "Anti-Foreign Law" Craze--Bills, Amendments and Decisions

In the weeks leading up to Election Day, Alabama's "Amendment One" drew a nice chunk of attention.  Amendment One was yet another "anti-foreign law" initiative prohibiting state courts from applying foreign law or from enforcing any contractual provision that would require foreign law to govern its interpretation "if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States."  Critics of the Alabama amendment include Prawf's own Paul Horwitz as well as Faisal Kutty.  At its very best, the law is unnecessary; at worst, the law represents a persistent anti-Muslim agenda that has animated the continued push in state legislatures around the United States to consider similar provisions (I've expressed my strong antipathy for these bills in an op-eds here and here).  

Unfortunately, the bill passed on Tuesday.  But while I'm amazed that these bills keep on passing, I've become increasingly worried that courts might be drinking the anti-Sharia Kool-Aid as well.  As an example consider Sarooie v. Foster Wheeler--a recent decision from the California Superior Court that Eugene Volokh broght to my attention last week (Eugene has blogged about the case here).  In a nutshell, the case raised the following question: what law should apply to an action brought in California court over injuries suffered primarily in Iran by a then-resident of Iran at the hands of an oil refinery owned by Iran?  California typically uses the government interest analysis for deciding choice-of-law questions; however, instead of employing this standard methodlogy, the court instead concluded that it could not apply Iranian law to the dispute for the following reason:

"In Alkhas, this Court held: 'The Court has no confidence that Plaintiffs will receive a fair trial or an adequate opportunity to obtain a remedy under Iranian law. In the forum non conveniens context, the rule in California is that Iran is not a suitable alternative forum, the reason being that Iranian law effectively provides 'no remedy at all' since Iran is run by mullahs and lacks an independent judiciary and due process of law. The Court is persuaded that this rationale should be extended to the choice-of-law context. In the Court's view, application of Iranian law does not constitute a permissible option under the governmental interest test where, as here, mullahs administer the law, and, by Moving Defendants' own admission, Shi'ite Islamic law may be used to decide the case.' (Taylor Decl., Ex. K, p. 7 [footnotes and citations omitted].)"

The deep problem with the court's decision is it fails to explain why Iranian law in this context poses a public policy problem.  There isn't any discussion of Iranian substantive law that would apply to the facts of this case--and how applying such law would raise public policy issues.  Instead, the court seems to simply conclude that the fact that Iranian law incorporates Sharia Law is in and of itself sufficient to reject application Iranian law and short-circuit the typicaly government interest analysis (more from the decision: "Moreover, the declaration of Plaintiffs' expert, Boozari . . . opines--with extensive detail--that the entire Iranian legal system is based on and must comply with Islamic law, including Shari'ah, which the declaration defines as 'Divine Law.'").  It's possible, of course, that there are substantive provisions of Iranian law that might raise significant issues; and it is also possible that applying Iranian law poses church-state worries sufficient to raise public policy concerns (I'm deeply skeptical of such claims--in fact, I've argued here that courts have constitutional authority to address a wide range of religious questions).  But one way or another, the court's analysis is, at its best, inadequate.   

Now Eugene has authored--and I've signed (along with others)--a very polite letter (text of letter is at the bottom of this link) to the California Court of Appeal explaining why this decision is mistaken.  But my broader worries are about whether courts have imbibed some element of this "anti-foreign law" craze where the mere possibility that a court will apply law that implicates Islamic law--even if required by standard legal doctrine--is per se beyond the legal pale.  It would be a sad day where not only are states passing "anti-foreign law" bills, but courts are enforcing similar rules in states that have thankfully resisted this craze.   

Posted by Michael Helfand on November 6, 2014 at 10:47 AM in Law and Politics, Religion | Permalink | Comments (5)

Tuesday, November 04, 2014

Election law as contextual: a universal truth? (And, happy election day to U.S. readers!)

I am grateful to Dan Markel for this chance to spend another month in conversation at Prawfsblawg.  As with my last go-around, my focus is on U.S. election law.  This time, however, I get to talk about election laws on an election day. 

 When the voting and vote counting unfold, we’re bound to see election laws and administrative practices in the news.  Even if the odds-makers are proven correct in their forecast of an election day that is characterized by relatively low voter turn-out and relatively few close contests, there will be questions or controversies about the effects of heightened voter identification requirements, the counting of provisional ballots, the scheduling and ballot design for a gubernatorial run-off, and the like.  Those of us who follow politics have come to instinctively associate some of these contested laws and practices with a particular effect (a tendency to expand or narrow the electorate), and with a particular political valence (a tendency to disenfranchise or dilute the votes of one or another party or racial or socioeconomic group).  

Of course, election rules, such as the new voter identification requirements in Texas, will, at times have their strongest bite in the lives of individuals (see, e.g., Eric Kennie’s story at  http://www.theguardian.com/us-news/2014/oct/27/texas-vote-id-proof-certificate-minority-law). But politicos and scholars usually train their attention more on election rules as they might tip a contest for a particular candidate or party.  To be sure, different political camps tend to have different empirical and normative premises about election rules’ operations.  Voter i.d. requirements are about culling the poor, the disabled, and racial minorities from the electorate.  They are a procedural tool for disenfranchising eligible voters.  Or, no, these requirements are about screening out fraud and low-information voters.  They are about protecting the eligible and informed voters from vote dilution.  All sides, however, can instinctively agree on a rule’s expected effect and valence:  Strict voter i.d. rules contract rather than expand the electorate, and they can be expected to do so to the benefit of Republicans.

 I now want to take many steps back from the immediacy of these voter i.d. rules and today’s election.  (It’s not like you have any election results to follow!)  I want to consider whether perceived regularities in the consequences of elections laws (large and small) may hold true across many different contexts.  

 Political scientists (one of my tribes) have often assumed that the answer is “yes”, and they have precisely defined their scholarly enterprise to be a search for the generalizations that will not be context-bound.  The successes of this research program have been real.  We have learned that election rules can exhibit regularities, sometimes ones that operate behind the backs of the political actors.  A particularly successful example is Duverger’s Law which states that legislative elections by single-member-district and ‘first-past-the-post’ rules (such as in the U.S., Canada, and Great Britain) are correlated with two-party systems while proportional-representation rules are correlated with multiparty systems.  

 This generalization is powerfully universal.  Except when it isn’t.  Many times, political scientists have found the need to qualify it.  It fails to hold true in a country where there is no widely shared information or expectations about the different parties’ electoral prospects, or in a political culture where voters do not mind ‘wasting’ their votes on a third-party candidate who can’t win (Powell 2013).  It fails to hold true in a federal system at the national level if the national parties are really sectional parties (Chhibber and Kollman 2004.)  And so on.

 If even Duverger’s Law is highly context-bound, then we may suspect that there are few, if any, (non-trivial) regularities in the consequences of election rules that are not similarly context-bound.  And in fact, G. Bingham Powell has used this example to make a (to me) compelling case that the proper study of the scientific ‘laws’ of election law can’t be (or, at least, it can’t be restricted to) a search for big universals.  Even when generalizations are prized over local knowledge, election laws need to be studied closer to the ground in order to unearth the local and temporal conditions that may limit an otherwise robust pattern, or that may set in motion a new one.  

 Duverger himself recognized that the consequences of election rules are mediated by context, and he classified some of these contextual factors as (1) “the mechanical” (the interaction between votes and election rules if the latter are properly administered—conditions that may depend on the strength of a country’s tradition of rule of law and technical competence)  and (2) “the strategic” (the effects of citizen or elite anticipations of these mechanical operations).  

 We might think about recent voter identification laws in a similar fashion:  Under current conditions, heightened documentation requirements can be expected, at least at the margins, to disproportionately shave the vote totals for some Democratic-leaning constituencies.  This effect may seem almost mechanical.  Yet, as we have apparently witnessed in recent years, some election reforms that raise the costs of voting for particular classes of voters (such as proof of citizenship requirements, or cut-backs in early voting days like ‘Souls to the Polls”) can occasionally result in an increase in the vote totals through the mechanism of ‘backlash’ mobilization against the reality or perception that the reform was an intentional form of disenfranchisement.  (On such backlash, see, e.g., Rick Hasen’s Voting Wars).  My (perhaps, not so social-scientific) spin on this example:  human agency and innovation matter.

 Powell offers his insights about the contextual nature of election law for the sake of a positive research program into election laws’ consequences.  I, however, want to use these insights to conclude with two simple points that are more normative in nature.  

 First, as citizens or election reformers, the contextual nature of election rules means that we should be wary of categorical judgments about particular election rules.  Changes in the environment, human behavior, or the law's internal design may flip expected realities.  (Just as, at one time, the secret ballot served to free humble tenant voters from the pressure of their landlords, so at another time and place, it worked to disenfranchise the humble illiterate…)  Voter documentation requirements, for example—if they are the responsibility of government, and not voters themselves—may have an entirely different effect and valence than what we’ve come to expect in the U.S.  

 To judge from the experience in some countries at least, it seems possible that voter documentation can operate to expand, not contract, the electorate, and that it can operate without benefit to a particular party (other than the ‘partisan’ benefit that is likely to accrue from fully documenting an eligible electorate).  If this is right, then—yes, of course—government-controlled voter i.d. will run into other objections (such as those of the civil libertarians worried about runaway uses of national i.d.).  But the point stands that our political (politicized?) instincts about the natural effect and valence of voter id would no longer hold.

 Second, if the consequences of most or all election rules are highly context-bound—meaning that an election law that is benign in one context can be malign in the next—then the quality of our processes and institutions for evaluating and changing election rules may be far more important than the static quality of any particular election rule.  I’ll say more about this latter point at another time.

 Now back to the immediacy of election results and (perhaps) election administration debacles.

 Sources:

 Pradeep Chhibber and Ken Kollman, The Formation of National Party Systems: Federalism and Party Competition in Canada, Great Britain, India, and the United States. Princeton: Princeton University Press, 2004.

 Maurice Duverger, Political Parties: Their Organization and Activity in the Modern State. New York: John Wiley, 1954.

 Richard L. Hasen, The Voting Wars: From Florida 2000 to the Next Election Meltdown. New Haven: Yale, 2012.

 G. Bingham Powell, Jr., “Representation in Context: Election Laws and Ideological Congruence Between Citizens and  Governments,” Perspectives on Politics, Vol. 11/No. 1, March 2013.

Posted by Kirsten Nussbaumer on November 4, 2014 at 04:22 PM in Constitutional thoughts, Law and Politics, Legal Theory | Permalink | Comments (0)

Sunday, November 02, 2014

A Republican Senate Majority and Partisan Conflict

As the New York Times editorial board observed recently, the prospect of a Republican Senate majority may make for even more gridlock in Washington. Other political observers think that we may see less obstruction, as Republicans assume greater responsibility for governmental decision making.

But whether or not Republicans in Congress should be held accountable, they likely will not be. Voters view the president as being in charge of the government and will reward or punish the president’s party accordingly. As Justice Robert Jackson wrote in Youngstown, the president is the “focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear.”

At any rate, we won’t solve our gridlock by condemning the radical right. We will suffer from high levels of partisan conflict as long as we have a winner-take-all electoral system. As long as Democrats and Republicans can hope to gain control of the levers of power, they will fight for control.

If we want a bipartisan spirit, we need reforms that encourage cooperation rather than conflict. And the best way to do that is to ensure that political power is shared—and always will be shared—by elected officials across the political spectrum. We’ve recognized the need for power sharing across social divides in Afghanistan and Iraq. We should do the same for our own country. For more discussion along these lines, see here

Posted by David Orentlicher on November 2, 2014 at 09:31 AM in Current Affairs, Law and Politics | Permalink | Comments (6)

Wednesday, October 29, 2014

Photo ID Laws and Voter Suppression

My colleague, Mike Pitts, has posted his latest analysis in a series on the impact of Indiana’s photo ID law, the law that was upheld by the U.S. Supreme Court in 2008. (The earlier papers also are posted on SSRN.) Pitts draws three major conclusions:

First, Indiana’s photo identification law has a relatively small (in relation to the total number of ballots cast) overall actual disfranchising impact on the electorate. Second, Indiana’s photo identification law’s actual disfranchising impact seems to be headed in a downward direction when one compares data from the 2012 general election to the 2008 general election. Third, Indiana’s photo identification law appears to have a disparate impact on women.

Of course, photo ID laws in some states have more stringent provisions, so may have a greater disenfranchising impact.

Posted by David Orentlicher on October 29, 2014 at 11:35 AM in Article Spotlight, Law and Politics | Permalink | Comments (0)

Tuesday, October 28, 2014

Elections and Gerrymanders

With Republicans poised to retain, and probably increase, their majority in the U.S. House of Representatives, expect political observers to criticize the partisan gerrymandering of House districts. The GOP likely will win a disproportionate number of seats because in many states, representation in Congress does not correlate well with the voting strengths of the parties. In Indiana, for example, Republican candidates for the U.S. House of Representatives outran Democratic candidates by a 53-45 percent margin statewide in 2012. Yet Republicans hold 78 percent and Democrats only 22 percent of Indiana’s House seats.

Observers are correct when they worry about the mismatch between voting strength and representation. But partisan gerrymandering is not the main culprit. Even if electoral mapmakers drew simple, compact districts without looking at voting data, representation would not correlate well with voting strength. Why is the conventional wisdom about partisan gerrymandering wrong? If partisan line drawing is not the main problem, what is?

Residential patterns are much more important than partisan gerrymandering as an explanation for the mismatch between voting strength and party representation in Congress. Republicans get more electoral bang for their votes because Democrats are bunched in urban areas and Republicans are scattered more evenly throughout suburban, rural, and other nonurban communities.

While gerrymandering is not the primary problem, it can be part of the solution. Electoral mapmakers can compensate for residential patterns by eschewing compact districts in favor of districts that combine urban and nonurban areas. That would bring party representation more in line with voting strength.

[Partisan line-drawing does have a bigger effect for state legislatures.]

Posted by David Orentlicher on October 28, 2014 at 11:14 AM in Current Affairs, Law and Politics | Permalink | Comments (5)

Saturday, October 25, 2014

The Ebola "Czar"

In the wake of Craig Spencer’s decision to go bowling in Brooklyn, governors of three major states—Illinois, New Jersey, and New York—have imposed new Ebola quarantine rules that are inconsistent with national public health policy, are not likely to protect Americans from Ebola, and may compromise the response to Ebola in Africa, as health care providers may find it too burdensome to volunteer where they are needed overseas. Don’t we have an Ebola czar who is supposed to ensure that our country has a coherent and coordinated response to the threat from Ebola?

Of course, the term “czar” was poorly chosen precisely because Ron Klain does not have the powers of a czar. He will oversee the federal response to Ebola, but he cannot control the Ebola policies of each state. Unfortunately, on an issue that demands a clear national policy that reflects medical understanding, public anxieties will give us something much less desirable.

[cross posted at Bill of Health and Health Law Profs]

Posted by David Orentlicher on October 25, 2014 at 05:33 PM in Current Affairs, Law and Politics, Science, Travel | Permalink | Comments (1)

Monday, October 20, 2014

Whose job is it, FRE edition

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

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

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

Tuesday, October 14, 2014

Supremacy and uniformity

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

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

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

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

SEALS

Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.

Posted by Marcia L. McCormick on October 14, 2014 at 11:00 AM in Civil Procedure, Corporate, Criminal Law, Employment and Labor Law, First Amendment, Gender, Immigration, Information and Technology, Intellectual Property, International Law, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Property, Religion, Tax, Teaching Law, Torts, Travel, Workplace Law | Permalink | Comments (0)

Friday, October 10, 2014

More on prosyletizing police

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

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

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

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

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

Monday, October 06, 2014

Is it unseemly for SCOTUS to wait? (Updated)

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

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

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

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

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

Thursday, October 02, 2014

Another Disappointing Sign of Our Political Times

As the campaign season heats up, demagogic appeals to the voters are starting to crowd the airways. So when NPR ran a story yesterday about the seemingly lax oversight by Federal Reserve officials over Goldman Sachs, it wasn’t surprising to hear a U.S. Senator condemn the cozy relationship between the Fed and financial institutions and  talk about the need for “regulators who understand that they work for the American people, not for the big banks.” Nor was it surprising that the senator did not offer any specific proposals to make the Federal Reserve work better.

But what was surprising is that the U.S. Senator was Elizabeth Warren, who has given much consideration to the ways in which we might make financial regulation more effective in this country. It would have been far more enlightening to have a discussion about what we should be doing.

As a former state representative, I understand the difference between academic discourse and political discourse, but Senator Warren was being interviewed on NPR, not delivering a stump speech at a county fair. The listening audience would likely have been quite receptive to a more nuanced discussion of the issue. Unfortunately, our political system drives even the most thoughtful elected officials to play politics as usual.

Posted by David Orentlicher on October 2, 2014 at 05:00 PM in Current Affairs, Law and Politics | Permalink | Comments (2)

Wednesday, October 01, 2014

The Electorate and Attorneys

Thanks to the PrawfsBlawg folks for letting me join in again.  Dan Markel's loss has been devastating, but I hope we can keep his mission alive here by going full speed ahead.  As an Iowa-based law professor (Director of the Drake Constitutional Law Center), we have one of the key U.S. Senate elections occurring between Republican Joni Ernst and Democrat Bruce Braley.  They are battling to replace Democrat Tom Harkin.  Some of you may know, from national new stories, that Braley got into trouble when he was filmed at an out of state fundraiser explaining, in part, that popular incumbent Senator Grassley is a farmer from Iowa who never went to law school.  Moreover, Braley elaborated that Grassley may become leader of the Senate Judiciary Committee.  Braley's statements were not good politics to say the least.  In addition, the fundraiser apparently involved trial lawyers and Braley himself is a trial lawyer.  Joni Ernst supporters have run that film clip often on television.  On the other hand, Ernst has at times advocated abolishing the Department of Education, privatizing social security, and has not opposed impeaching President Obama.  During a recent debate, she appeared to move to the center on some issues as would be expected.  Braley did a good job in the debate but did not press her hard on certain matters.

What's fascinating though is that the Braley team has made no effort on television to defend the view that lawyers can play valuable roles in society, even though his campaign Web site does just that.  The Web site mentions several instances of Braley helping the underdog against various powerful interests.  Certainly, former Presidential candidate John Edwards used his work as a plaintiff's attorney at times to promote his candidacy.  Presumably Braley's political consultants (who may know more than me) think the "attorney" word should go virtually unmentioned in television advertisements.  But that has handed over the issue of who is the better person to Joni Ernst, as her campaign has run effective ads about her leadership in the National Guard.  Moreover, she presents well on television.  The polls show Ernst with about a 6 point lead.  Whatever happens, it's sad to see the Braley team essentially abandon any defense of some of the good work that Braley likely did as an attorney, even if their strategy is not totally unexpected. 

Posted by Mark kende on October 1, 2014 at 03:08 PM in Culture, Current Affairs, Law and Politics, Web/Tech | Permalink | Comments (0)

Monday, September 22, 2014

Addressing the Unmet Need for Civil Legal Representation--and the Legal Employment Market

It’s my privilege to hang out with present and future health care providers almost every day through teaching at the Texas Tech University Health Sciences Center's  brand new Public Health School and being an adjunct faculty member at our terrific medical school and on the advisory board of our awesome nursing school.  One of the issues that always surprises them is how little access most individuals have to legal services as compared to medical services.  We are used to hearing the bad about access to health care—and there is still plenty of bad—but unless a person faces criminal charges, brought by the government, there is no right to legal representation for those who cannot afford it and very few public or private sources of insurance. 

   The primary source of federal funding for individuals involved with a civil dispute—child custody, divorce, land-lord tenant, employment, the  Legal Services Corporation (LSC), estimates that 80% of “low income Americans who need civil legal assistance to do not receive any, in part because legal aid offices in this country are so stretched that they routinely turn away qualified prospective clients.”  See report, Documenting the Justice Gap in America.   Individual states also have some subsidized civil aid programs.  Although the current president is about as sympathetic to LSC as any in recent history, demands for help still far outstrip demand

Risa Kauffman of Columbia Law School reported to a U.N. Human Rights Committee examining how the U.S. complies with the an international covenant on civil and political rights reported that:  "In the United States, millions of people are forced to go it alone when they're facing a crisis….It's a human rights crisis, and the United States is really losing ground with the rest of the world."

And if anyone is wondering why, given this size of this unmet need and given the existing federal investment in student loans for legal education and the downturn in legal employment opportunities, there hasn’t been federal action to increase staffing at LSC and other organizations—that’s a good question. 

If, however, your first reaction here is to laugh and tell a lawyer joke, browse through these state reports, complied by the National Legal Aid & Defender Association and usually commissioned by state courts and chief judges, documenting the unmet need for civil representation in our 50 states. The National Legal Aid and Defender Association has helpfully put together a 50 state survey of reports. The ABA has a Standing Committee on the Delivery of Legal Services that considers access as well as other issues. 

The “why” of this situation is interesting--it probably comes from a combination of factors including a lack of demand for legal insurance-perhaps because most people have little understanding of how much they might need a lawyer at crucial junctures in their life, let alone what such a lawyer would cost.  Here’s some history from Prof. Alan Housman at Penn.  Certainly at least one of those factors is the strong lobby of corporate interests who benefit from the often David and Goliath like disparity in disputes between individuals and corporate entities.  Although here’s an argument from the Brennan Center for Justice at NYU School of Law explaining why civil legal aid would be economically beneficial for the states providing it.  Here, too, is some very interesting work by Professor Victoria Shannon at Washington & Lee Law School about the emergency of “third-party funding” of civil law suits.

Posted by Jennifer Bard on September 22, 2014 at 03:46 PM in Current Affairs, Law and Politics | Permalink | Comments (0)

Stone on sex discrimination and professional sports

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

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

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

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

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

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

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

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

Thursday, September 18, 2014

Cameras and unintended consequences

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

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

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

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

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

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

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

Monday, September 15, 2014

Spot the differences, if you possibly can

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

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

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

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

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

Saturday, September 13, 2014

Privacy v. Justice

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

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

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

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

Friday, September 12, 2014

Federal control of all police prosecutions?

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

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

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

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

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

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

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

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