Wednesday, November 20, 2013
Stay in Texas clinic litigation remains in place
By a 5-4 vote (divided along predictable lines), SCOTUS let stand the Fifth Circuit stay of the district court injunction prohibiting enforcement of the restrictions on reproduction health clinics. The law remains in effect and enforceable, and clinics must comply with the law, pending resolution of the appeal. The Fifth Circuit has expedited briefing and set oral argument for January. The main order was unsigned. Justice Scalia (to whom the original application was directed) wrote an opinion concurring in the denial of the application, joined by Justices Thomas and Alito. Justice Breyer wrote a dissent for four.
The dissent focused, properly I believe, on preserving the status quo and properly balancing the harms. By enjoining enforcement of the law, the district court changed the status quo from what it would have been were the laws in effect and returned to the status quo before the law was enacted. The stay thus disrupts that status quo by putting the state laws into immediate effect, thereby forcing many clinics (advocates insist as many as 1/3 of the clinics in the state) to close and many women to have to travel hundreds of miles to obtain reproductive health services. And many of those clinics may be unable to reopen even if the district court is ultimately affirmed. The balance of harms is thus between the state being unable to enforce its laws for a few months against the permanent harm to women unable to exercise their constitutional rights without undue burden (which the district court found was imposed by these laws).
The dissent also found no public interest considerations that warranted a stay. Justice Scalia responded by insisting that "[m]any citizens of Texas, whose elected representatives voted for the law, surely feel otherwise." But this goes to the related point about harm to the state if it is barred from enforcing its laws and linking (as the Fifth Circuit and Justice Scalia both did) the public interest to harm to the state--it proves too much. The state always has an interest in enforcing its duly enacted laws and the public in the enforcement of the laws duly enacted in its name. If those two truly predominate and always run together, then injunctions should always be stayed pending appeal to preserve that interest in enforcing the law until any law is finally determined to be unconstitutional.
But not every negative injunction is stayed pending appeal; I would imagine that most aren't (this might be a nice empirical question to explore). And, if we focus on maintaining a status quo, most shouldn't be. Which suggests that what is really going on is a tip of the hand on the merits--that five-justice majority is convinced the Texas law is constitutionally valid and sees no reason to delay enforcement. And so we have a pretty good sense of what will happen if/when the case comes back to SCOTUS for full merits consideration.
Monday, October 21, 2013
Courts and Law Reviews
To pile-on the posts by Jack and Matt: Regardless of whether courts (particularly SCOTUS) are citing to law review articles, they are listening to and relying on the arguments of legal scholars. While these arguments are coming to them in amicus briefs rather than articles, that is a matter of format rather than substance. And many an amicus brief begins as, or eventually becomes, a law review article.
Take this month as an example. In argument in Madigan v. Levin, the justices asked several questions about an amicus brief authored by Steve Vladeck and signed by a number of Fed Courts scholars, including me. Steve made those same arguments in an article in Green Bag last winter. And in Atlantic Marine Construction Co. v. District Court, the Court expressly ordered the parties to discuss an amicus brief by Duke's Stephen Sachs and asked numerous questions about the brief during argument. Depending on how the Court decides Atlantic Marine, perhaps Stephen will turn those arguments into an article.
Wednesday, October 16, 2013
Law schools and the shutdown
Courtesy of Andrew Ferguson (UDC) is this story (registration required) on the effect of the shutdown on law schools, faculty, and students, including at UDC, the only public law school in DC. The story indicates that the school's clinics have been deemed essential. But the faculty has been talking about whether to continue teaching if/when the money runs out--are there ethical, legal, or other concerns by teaching during the shutdown?
Probably a moot point, as it appears this all will end with a whimper tonight (just in time for everyone to gather in DC for the meat market). But an thought game.
Monday, October 07, 2013
Cert. denied in Duke lacrosse
SCOTUS this morning denied cert. in Evans v. Durham, the § 1983 action by the three indicted-but-exonerated members of the 2005 Duke men's lacrosse team. The Fourth Circuit rejected (which I discussed here) claims against the city and the investigating police officers involved; the plainitffs tried to get to SCOTUS on the issue of whether the prosecutor's conduct (which enjoys prosecutorial immunity) breaks the causal chain and cleanses the officers' misconduct when they conspired together. Interestingly, they did not seek cert on the "stigma-plus" theory of liability for other officer misconduct (on which the causal chain was not broken).
The plaintiffs still have state-law malicious prosecution claims pending. The next question may be whether the district court declines supplemental jurisdiction over those claims or decides to keep them, seeing as how this litigation is now 6+ years old.
Monday, September 30, 2013
What just happened at the Naval Academy?
I have been following the military prosecution of several Naval Academy midshipmen for sexual assault, partly because news stories seem to reflect a yawning gulf between this case and our general understanding of the federal rape shield statute (which I just taught last week). I turned to my colleague Eric Carpenter, who writes on sexual assault in the military and had a long career in the Army JAG Corp.
The military just concluded a hearing at the Naval Academy into whether three midshipmen committed criminal sexual offenses against a female midshipman. According to the government, the woman attended a party and became drunk to the point of blackout and possibly passed out. Later, she heard rumors and saw social-media that led her to believe that these three men has sexually assaulted her while she was too drunk to be capable of consenting. The defense claims she was capable and did consent.
While the facts as reported by the media are disturbing, lawyers who read reports of the hearing should find something else alarming – the female midshipman was questioned by three defense counsel for over twenty hours, and the questioning went into areas that would often be off-limits due to rape shield rules. Reports are that she was cross-examined on whether she wore a bra or underwear, “felt like a ho” afterward, and how wide she opened her mouth during oral sex.
What’s going on here? What was that hearing and do rape shield rules apply to it? Why is a sexual assault victim testifying and subject to cross-examination in the first place?
What happened was something unique to the military – a hearing called an “Article 32.” This article of the Uniform Code of Military Justice (UCMJ) requires that before charges can go to a general court-martial (the rough equivalent of a felony-level court), an officer must investigate the truth of those charges (reasonable grounds that the accused committee the offense, or roughly the same thing as probable cause) and make a recommendation to the convening authority (usually a two-star general) on how she should act on the charges.
Your first reaction to that might be, “That hearing sounds like a grand jury proceeding.” My answer would be, “Yes, but mostly no.”
An accused at an Article 32 has rights that a defendant at a grand jury doesn’t. The accused can be present; has a right to a military defense counsel; can cross-examine witnesses; and has full opportunity to present evidence to rebut the charges or to seek a lower disposition.
There is no jury – just an investigating officer, and that officer usually has no legal training (she gets her legal advice from a neutral judge advocate). In the most serious or high-profile cases, like capital cases, judge advocates and sometimes military judges serve as the investigating officer. In the Naval Academy case, the media reports that a military judge served as the investigating officer.
Unlike a grand jury’s finding, the investigating officer’s conclusions and recommendations are not binding: the convening authority can still make her own decision about the case.
Evidentiary rules apply. Not the full-blown Military Rules of Evidence (which are very similar to the federal rules), but rules nonetheless. Generally, if a military witness is within 100 miles, she needs to show up, and even if the witness cannot show up in person, she usually testifies over the phone. You can’t simply turn in the victim’s sworn statement. In the Naval Academy case, that is why the victim had to testify.
Contrary to what some of the news reports imply, the rape shield rule applies. The military’s rape shield rule is essentially the same as the federal rule, and the President made this rule apply to these hearings with Rule for Court-Martial 405(i). In the Naval Academy case, I would assume that the parties argued about what the defense was allowed to ask in cross examination, and I assume the investigating officer (in this case, a lawyer) found an exception—but that may be a faulty assumption.
If the investigating officer decided that this evidence fit one of the written exceptions to the rape shield rule, that conclusion may be suspect. Generally, evidence of past sexual behavior or sexual disposition is inadmissible in inadmissible except to show that someone other than the accused was the source of physical evidence; to prove current consent with the accused if the past sexual behavior was with that accused; or the exclusion would violate the accused’s constitutional rights. The attorney for one of the accused asked her the questions about oral sex because “This is an act that cannot be performed while someone is passed out.” According to reports, the lawyer further argued that “her client could not have had oral sex performed without the woman’s consent.” Most people would disagree with that. The victim had a prior sexual relationship with one accused, but his attorney asked her about what she was or was not wearing and whether she felt like a ho on this occasion. The rule is limited to evidence of past experiences between the two. The defense counsel could have argued that this evidence was constitutionally required because the accused were mistaken as to whether she consented. But from the news reports, it appears that their defense is that was capable of and did in fact consent, not that she didn’t consent and they misread the situation.
Again, I was not at the hearing and don’t know how the investigating officer analyzed the facts. If he was right, the cross examination she faced at this hearing may have been allowed at trial. A very real issue is that he may have been wrong, and if he was wrong, there is no remedy for his mistake. With few exceptions, none of the testimony at an Article 32 is admissible at the later trial, and even if the government closed down all of the exceptions, the victim has already gone through the experience.
So it appears that Article 32 is ripe for criticism. To understand why Article 32 is the way it is and to properly frame criticism of it, we need to understand its history and original function.
As Oliver Wendell Holmes said, “The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains.” That is what happened here.
Service members don’t have a constitutional right to a grand jury, and what has developed was not because the military was trying to replicate one. Rather, the original purpose of the Article 32 was to conduct an investigation when it was very likely the only investigation that happened prior to trial. That function has now been subsumed by other features of the modern court-martial system but the investigative features of Article 32 still remain.
Prior to 1917, most charges were not investigated prior to going to trial. A commander would send charges to a court-martial, which would very often be held within a day. The accused had very few rights. There were no defense lawyers or judges or professional law enforcement investigators or appellate courts. This was quick trial before a board of officers. If you have seen the movies Breaker Morant or Paths of Glory, you will have a sense of how courts-martial worked back then.
The few cases that were investigated (because an officer demanded it) were sent to Courts of Inquiry. These courts were used to investigate a wide range of issues (the conduct of generals in combat, or to resolve allegations against character). These boards were used to resolve disputes and the procedures that developed for them reflected that purpose: the service member was present, the Court could compel witnesses, and the service member could cross-examine them.
Starting in 1917, in response to criticism that commanders had too much power and could push meritless cases through the system, commanders were required to conduct an investigation prior to sending the case to court-martial. The investigation would ensure that probable cause existed and would recommend an appropriate level of discipline. With this new requirement, commanders looked around for something familiar to model for this task and found the Courts of Inquiry.
Additional rights followed. In 1949, the accused gained the right to counsel. In 1951, Congress passed Article 32 as part of the new UCMJ, adding the right for the accused to make a statement and present evidence. In 1968, Congress required that the accused’s counsel be a real lawyer.
At the time, the rules were necessary because they provided a measure of due process that a service member did not find in the rest of the court-martial process. Since 1951, however, the court-martial process has steadily “civilianized,” with statutory requirements for independent military judges and legally qualified counsel who operate under the nation’s most liberal discovery laws (and so can marshal evidence for trial). The military’s law enforcement also became a professional, fully-functioning investigative community, complete with independent forensic laboratories.
The reasons to have an Article 32 investigation no longer exist, but the rule remains. That, I think, means it is time for change. Otherwise, we risk what we just saw.
Returning to the Naval Academy case, probably nothing new was learned at this Article 32 that could not have been learned by otherwise investigating the case, interviewing the witnesses, and conducting discovery under the military’s liberal rules. But while pursuing this now obsolete investigative function, we managed to take a service member through 20 hours of invasive testimony – which she may have to do again at trial. Twenty hours is more than enough. Forty hours is senseless.
We could have come to a probable cause determination without having this type of hearing. In a recent Op-Ed, Gene Fidell argued that it is time to get rid of this “trial before a trial” and instead have “a bare bones preliminary hearing” to determine probable cause.
A more measured response would be to modify the Article 32 so that it serves the functions that we want it to serve. We no longer need a formal investigation. Get rid of the investigative features – no more calling live witnesses, no more presentation of a defense case. This also takes care of the rape shield issue, because the defense is the party that presents that evidence.
We do need a probable cause hearing, and we can use the hearing as a discovery tool at no additional cost by allowing the accused and counsel to be present and to examine all materials presented. Make the probable cause determination binding on the convening authority (to protect the accused), but to do that, we need to make the Article 32 look more like a grand jury. Have a panel rather than one officer; have a judge advocate serve as a presiding officer. This won’t be a bare-bones hearing – knowing that the panel might kill the case should provide incentive enough to the government to produce a significant amount of information.
So what is next? Most of the current debate between Senators Gillibrand and Levin turns on who should make the disposition decision in a court-martial – the commander or the staff judge advocate. The Article 32 problem is on the radar, though. The 2013 National Defense Authorization Act mandated that the Secretary of Defense establish a panel (called the Response System Panel) to work on many of the difficult issues related to the military’s sexual assault problem. One of the mandates is to “[r]eview and assess those instances in which prior sexual conduct of the alleged victim was considered in a proceeding under [Article 32] and any instances in which prior sexual conduct was determined to be inadmissible.”
This is a good opportunity to decide what the modern functions of Article 32 should be and to revise it to promote those functions and only those functions. And I expect the Naval Academy case will be front in center in that debate.
(With thanks to Major Mike Kenna for shaping my perspective).
Monday, September 23, 2013
The post-hoc First Amendment
At some point in the future, I hope to write an article on the problems with enforcing First Amendment liberties through § 1983. One problem (not unique to free speech claims) is qualified immunity. Case in point is this recent Fourth Circuit decision involving sheriff's deputies in North Carolina allegedly fired for supporting the opposing sheriff candidate.
The case has drawn praise for recognizing that clicking "Like" on Facebook constitutes protected speech. And this certainly is a good thing from a court of appeals. Of course, the district court decision on this point reflected such a lack of understanding of how people can express themselves (quite apart from how technology works) that this was almost too easy. But lost in the celebration of a court getting technology right (for once) is that the deputies largely lost. The divided court held that the sheriff was entitled to qualified immunity from damages for the firings. The judges wranged over the scope and meaning of a particular divided en banc decision from a few years earlier; for the the majority, their wrangling shows precisely why the right was not clearly established, on the old "if three federal judges can't agree on the state of the law, then how can we expect a layperson to understand?" rationale. So it all ends up looking like a giant advisory opinion. Especially since this looks like a case in which it was entirely unnecessary to reach the merits--an obvious dispute about the meaning of circuit precedent made it obvious this was not clearly established. So why bother with the merits?
Interestingly, the plaintiffs' claims for reinstatement survive; that is prospective/equitable relief, to which qualified immunity does not apply and to which for Ex Parte Young does. This raises an interesting question--what if the plaintiffs sought front pay in lieu of reinstatement? Lower courts have all held that this is not available, because it is monetary relief paid for out of the state treasury. But this seems like it would fall within the Eleventh Amendment's prospective compliance exception, which provides that there is no sovereign-immunity bar to the state paying (out of the treasury) the ordinary costs of complying with prospective relief. If the plaintiffs prevail, the state has to pay them the same amount of money either way--either for actually working or for the work they would have done were reinstatement a viable option. And the latter will be paid out for less time. It seems incoherent to label identical payments in identical amounts for identical purposes differently.
Saturday, September 21, 2013
Defining public law
What is public law, as distinct from private law? Has anyone come up (or can anyone offer) a good defintiion of the distinction, where the line is, and falls in which category? A student asked a question the other day, which rested on the premise that the Constitution (and constitutional claims against the government) was public law and everything else was private law (the issue was a plaintiff bringing claims under both § 1983 and Title IX or Title VII). But that doesn't reflect convention, where we typically speak of statutory anti-discrimination law (Title VII, Title IX, et al.) as public law, even when it involves claims against private entities.
So where is the line and why?One possibility is that anti-discrimination are like the Constitution, in that Congress was attempting to enforce the Fourteenth Amendment. But that doesn't work because these statutes were actually enacted pursuant to either the Commerce or Spending powers, not § 5. It reflects the values of the Fourteenth Amendment, but it is not really enforcing that provision. Plus, a lot of other statutory areas (labor law comes to mind), though not touching on the Fourteenth Amendment or discrimination at all, are labeled public.
Another is to include all constitutional and statutory issues as public. But a lot of stuff that often gets called private (say, corporations, business formation, and business deals) involves statutes and statutory issues. Even contracts (which a Roman Law expert might call the quintessential private law issue) is somewhat displaced by the UCC in many areas.
Friday, September 06, 2013
What is the civil justice system for?
The general view seems to be that the NFL won and the players lost with the $ 765 million settlement of the head-trauma class action. An illustrative missive comes from Charles Pierce, who speaks of the NFL "buy[ing] silence," essentially copping a "nolo [contendere] plea" that should not happen in a just world, and having "bought itself out from under its responsibilities." I have not decided what I think about the settlement, largely because I do not know enough about the merits of the NFL's labor preemption arguments. But Pierce's article fundamentally misunderstands the purposes and operation of the civil justice system.
Settlement is part of the civil justice system, particularly in damages actions. The pressure to settle comes from multiple sources, often including the presiding judge (as was the case here, where Judge Brody ordered the parties to mediation and set a deadline for settling). The plaintiffs, who know more about the case than anyone sitting on the outside commenting, agreed to the settlement. There was a professional mediator involved, who worked to bring everyone to an ultimately mutually agreeable solution. And the judge still must sign-off on the agreement (and presumably will). So the ire at the NFL and the suggestion that it somehow has escaped justice by paying money seems misplaced, when the league did not settle unilaterally or in a vacuum, but only with the agreement of several other actors. And Pierce's comparison of the NFL to Texas fertilizer plants that uniltaerally refuse (presumably in violation of law) to allow inspections is, to say the least, overwrought. The NFL did nothing wrong in the context of litigation other than availing itself of its procedural rights and the settlement mechanism; it is troubling to tar an entity for doing that.
Even if we accept that too many cases settle and that "truth" is lost by over-settlement, Pierce still ignores what litigation is all about and how it functions. It is not some public auto-da-fe in which the NFL would have confessed its sins and had punishment imposed. Discovery, particularly depositions of present and former NFL officials, would have been conducted in private and likely placed under seal (as determined by the court, not the league acting unilaterally). At best, discovery might have driven-up the settlement value. But Pierce is angry about the fact of settlement, not the amount; the mythical $ 10 billion settlement that some predicted would still entail "buying silence." The only public component would have been trial. But trial occurs in so few cases (again, not the NFL's fault), and in this case might not have happened for years (followed by even more years of appeals). So the notion that settling short-circuited some immediate public accounting seems far-fetched.
Further, the NFL asserted several potentially meritorious legal defenses about assumption of risk, preemption by workers' compensation schemes, and, especially, arbitrability under the CBA. It was possible that, had the parties not settled last month, the complaint would have been dismissed as to many players. According to recent reports, Judge Brody hinted to the parties that she was inclned to find many of the claims subject to arbitration, which explains why the case settled when it and for the unexpectedly lesser amount. It also is possible that, even at trial on the ultimate merits of the tort claims, the league still would have won. Pierce's response, I imagine, would have been that the NFL somehow acts nefariously in asserting those legal rights or in demanding the plaintiffs prove their case. But again, this is not some public confession ritual; it is a judicial proceeding in which the court must apply controlling law (including legal defenses such as arbitrability) and the complaining party is put to its burden of persuasion.
Pierce sees this as a public-health issue, demanding that the truth about the inherent risks of football and what the NFL knows of those risks be aired so decisions about the game's future can be made. He is right about the public-health part. But damages litigation--designed to compensate injured players and perhaps impose a monetary punishment on the league--can only indirectly provide public-health solutions. What Pierce wants, really, is not litigation, but something like a congressional hearing--a free-standing inquisition supported by subpoena power into a public problem or issue, disassociated from particular legal rules, claims of right, defenses, or legal remedies. Of course, it is highly unlikely that Congress or any executive agency ever will undertake such an investigation, which probably is why Pierce sees litigation as the only hope.
Finally, not all change happens through formal legal and political processes. We also should not overlook the value of journalistic and scientific investigations into the problem. The upcoming documentary from PBS' Frontline, which is going to attract a larger audience after ESPN's sudden decision to take its name off the project, may do a lot to drive the conversation forward. Journalism, not litigation, moved the ball on the meat-packing industry a century ago. Perhaps that also will be the case here.
Which is not to say there is not value in Pierce's essay. It is hard to find good, short readings for the few minutes we spend on settlement in Civ Pro. This actually may be good for that, if only to move students into a more lawyerly understanding of how settlement fits in civil litigation.
Sunday, September 01, 2013
Seeking views on important under-appreciated lessons from US history with alcohol Prohibition
Hoping to generate many more comments in reaction to this recent post at my new Marijuana Law, Policy and Reform, and because I consider the PrawfBlawg readership to be especially insightful and astute, I am reprinting below parts of the above-referenced post:As I explained via this prior PrawfBlawg post a few month ago, I thought it wise to devote at least a few early weeks in my Fall 2013 seminar on "Marijuana Law, Policy & Reform" to a review of the legal and social history of alcohol Prohibition. I am doing so because (1) public health scholars tell me that that use, abuse and addiction surrounding the drug of marijuana has more parallels to alcohol than to tobacco, and (2) there are many legal and social themes and lessons from the US temperance movement and the years during and surrounding the Prohibition era that merit significant coverage in my new class before we jump into modern marijuana law and policy.
I have kicked of my class activites by urging all my seminar students to watch with me the full wonderful 2011 Ken Burns' PBS documentary on Prohibition, as well as cruise around this terrific website from the History Department at Ohio State (which includes this especially interesting account with visuals concerning campaigns by the "drys" in Ohio). I also have urged students to read parts of the terrific 1970 article by Richard Bonnie & Whitebread, Forbidden Fruit and the Tree of Knowledge - An Inquiry Into the Legal History of American Marijuana Prohibition, 56 Virginia L. Rev. 971 (1970) (available here) (Hat tip to Prof Orin Kerr and others).
There are, of course, lots of important obvious lessons to take away from US history with temperance movements and alcohol Prohibition, and I suspect my students and others are quick to take away from the US history here that we should seek to avoid governmental cures that are worse than the disease and also avoid too much constitutional experimentation. But, as the title of this post suggests, I am eager to explore what might be deemed important under-appreciated (or at least under-discussed) lessons from not just Prohibition itself, but also from the broader alcohol temperance movements that stretch back many centuries and arguably still have some enduring echoes and impacts today.
A few related prior posts (here and eslewhere):
- Starting a summer series on the upper-level law school canon and my marijuana seminar
- How can/should I cover drug markets — black, gray, and white — in my marijuana seminar?
- Guest blogging on "Controlled Substances: Crime, Regulation, and Policy" by Professor Alex Kreit
- Seeking suggestions for "must-reads" for my Marijuana Law, Policy & Reform seminar
Saturday, August 31, 2013
Tragic cases and Fed Courts
Dahlia Lithwick wrote last week about two cases--one in Montana, one in Massachusetts--demonstrating how unseriously many judges take rape and the tendency to blame even teen-age victims or to place victim and perpetrator on similar moral footing.
The Massachusetts case has lead to a § 1983 action in federal court. According to the complaint, a 14-year-old girl, identified as "H.T.", became pregnant as a result of her rape by a 20-year-old. The man pled guilty in 2011 and was sentenced to 16 years probation. He also was ordered to initiate proceedings in family court, declare paternity, and comply with the family court's orders regarding child support, visitation, etc. The victim opposed this, not wanting to have any sort of relationship or contact with her attacker; she attempted to challenge that order, but the SJC of Massachusetts held that she lacked standing. The family court ordered him to pay child support, whereupon he sought visitation, then offered to withdraw that request in exchange for not having to pay child support. The complaint seeks to enjoin the criminal-court order as violating a host of constitutionl rights, including substantive due process, procedural due process, First Amendment, and Equal Protection.
The case demonstrates that, for better or worse, within every horrific and gut-wrenching tale of wrong lies a course of legal doctrines to be navigated. No matter the tragedy, process remains part of the system for seeking justice. And for anyone looking for a Federal Courts/Civil Rights question or discussion topic, this case has a semester's worth of stuff.
• The named defendant is the Commonwealth of Pennsylvania Massachusetts (sorry--got my commonwealths mixed up), which is not permissible, since a state is not a person for § 1983 purposes (and state sovereign immunity lurks in any event, much as I wish it didn't). This is an overlooked aspect of the Court's 11th Amendment doctrine--it is not that states cannot be sued for damages, states cannot be sued by name for any relief. The case must run against the responsible state official, under Ex Parte Young. It is not clear who the plaintiff should sue her. One possibility is the state criminal-court judge who entered the order being challenged. But then the extra clause of § 1983 (added in 1996) kicks in; this requires a plaintiff suing a judge to first seek a declaratory judgment, only able to get an injunction if declaratory relief is either unavailable or ignored. Another possibility is the executive office responsible for enforcing court orders, such as the county sheriff. But a blanket suit of the state qua state (unfortunately, in my view) will not work. Although query whether the state will bother raising this issue, as the plaintiff would simply find the proper defendant and amend, so the issue only delays things.
• The obvious problem for the plaintiff is Rooker-Feldman, since the federal lawsuit is alleging a consitutional violation caused by the state-court judgment. The complaint anticipates this, insisting that RF does not apply because this is not a case in which a "losing-party [sic] seeks review of a judgment entered in state court." It is true that H.T. is not a state-court loser (the term used in these cases), since she was not a party to that litigation. But she is adversely affected by a state-court judgment, so this strikes me as quibbling semantics. The idea behind Rooker-Feldman is that the appellate process, not federal civil litigation, should be used for correcting erroneous or unconstitutional state-court judgments, regardless of whether we call the person challenging it a state-court loser or an adversely affected party. The obvious and proper move in light of Rooker-Feldman should have been to seek cert to SCOTUS from the SJC decision.
• But the SJC resolved the case on purely state-law grounds--that H.T. lacked state-law standing to challenge the order. So perhaps SCOTUS would not have jurisdiction here because the state-court decision rests on an independent-and-adequate state grounds (state-law standing is not the same as Article III standing). On the other hand, the complaint explicitly challenges the standing component as part of the basic order, alleging that the refusal to let her challenge the criminal-court order violates due process and the First Amendment. That argument would be available in a cert petition. Independent-and-adequate should not preclude review where the supposed I-and-A ground itself (lack of standing) is unconstitutional in this case. The cert. path seems to remain open.
• There is a potential argument that this case is not ripe. The injury to H.T. is the forced relationship with her attacker. But that forced relationship comes from the family court proceedings, and presumes that the family court orders or permits some relationship. But we do not know how that litigation will play out. Perhaps the family court would reject the man's efforts to establish a relationship with the child or with H.T., in which case the constitutional harm will not arise. H.T. also is worried about the rapist playing games in family court (such as threatening to seek visitation), although the family court might be equipped to handle any such abusive efforts. The point is that the harm results from what the family court does, not the criminal-court order. So we may just have to wait to see what the family court does. In addtion, publicity over the case also triggered introduction of legislation in Massachusetts that would prohibit rapists from having any contact with children resulting from the rape. The possibility of future legislation does not alone render a case unripe. But it does demonstrate that there are a lot of uncertainties about what will happen in family court.
• Of course, once the family court does make a ruling (such as the one ordering child support), Rooker-Feldman kicks back in and the family court order is challengeable only through the appellate process. And we are back where we started.
• H.T. also alleges a constitutional injury from the threat of potential family-court litigation, which requires time, money (to hire an attorney), and stress for the next 16 years. She is concerned that she will be running in and out of family court for the next 16 years to deal with his games. And this injury is caused by the criminal-court order. But is avoiding potential future litigation a cognizable constitutional right?
None of this is to minimize the harm H.T. has suffered and may continue to suffer. Nor do I doubt the sheer lunacy of a court ordering (much less allowing) a convicted rapist to potentially be involved with his victim and the child produced by the rape. But the case shows that the seemingly esoteric and theoretical issues floating around a standard Fed Courts or Civil Rights course actually have some teeth. And law students (as future lawyers) must know how to navigate them. And in a set of facts this disturbing, it helps us to remind students that they cannot get caught up in emotion, but often must keep their eyes on the procedural ball.
Thursday, August 29, 2013
Settlement in NFL concussion lawsuit
The class action against the NFL by more than 4000 former players, alleging that the league knew and failed to disclose the risks of head trauma associated with the game, has tentatively settled. Players will receive $ 765 million (plus court-approved attorneys' fees to be determined later) for individual compensation (reportedly about $ 110,000 per plaintiff), plus funding for research and medical examinations. The settlement was reached following court-ordered mediation, although the agreement still must be approved by the court.
Much is being made in some sports-media circles about the size of the settlement relative to the NFL's wealth, but, of course, civil damages are tied to the harm to the plaintiffs, not to the defendant's ability to play. We might question whether the settlement figure provides sufficient deterrence that the NFL will take real steps (as opposed to the cosmetic ones it has been taking) to make the game safer--assuming such a thing is actually possible (I have my doubts).
Like many other cases, this one also highlights the question whether settlement, especially in money cases, furthers the civil justice system's goals of discovering the truth. There was no discovery, so we never really learned what the NFL knows and has known about the game's risks or about what those risks actually might be (the answer to both is "a lot," according to a forthcoming documentary). We also have not heard the plaintiffs' stories told in a judicial forum (although we might not have). Of course, discovery in a case like this almost certainly would have been sealed, a regular practice that presents a different problem in modern litigation. And the plaintiffs' willingness to settle this early makes sense, because this case would have been a ripe target for a Twiqbal-based 12(b)(6) and a motion to send the entire issue to arbitration under the CBA.
Update: The prevailing view among sports columnists is that the NFL won huge, although this seems to be because legal experts predicted settlements of between $ 5 and $ 10 billion, so a figure of less than $ 1 billion is so paltry that plaintiffs' attorneys must have caved. So did they cave? Or does this just show the limited ability of "legal experts" to predict anything?
Wednesday, August 21, 2013
Seriously? quote of the day
From a public statement by the Fairfield County (OH) School District, announcing it would allow a 12-year-old girl to play football rather than defend its ban (which it never explained) in litigation that the ACLU threatened to bring on the girl's behalf:
"We have no intent of competing with the deep pockets of the ACLU in any litigation situation in order to secure a favorable judgment," the district said in a statement. "Therefore, we will allow female participation in contact sports."
Really? The ACLU has deep pockets? The ACLU's pockets for litigation are lined with the money it recovers from idiotic governments--like Franklin Fairfield County--when it successfully challenges pointless-but-unconstitutional like this one. Still, it's a nice piece of demagoguery that might play well with the public. And the school district is not necessarily alone--Justice Scalia expressed similar beliefs about public-interest groups wielding superior financial resources to overwhelm governments in § 1983 litigation.
I do agree with one commentator, who noted that such a statement indicates the district still does not support the girl's efforts, is not convinced she is legally entitled to play, and potentially not willing to give her the backing she needs (that is, the same backing as all other players get). We may not be done with this story.
Washington's letter and the American-Jewish experience
This is a few days old, but I still wanted to write about it. On Sunday, Justice Kagan gave the keynote at Touro Synagogue in Newport, R.I. for the reading of George Washington's 1790 letter to the Hebrew Congregation of Newport. In the letter, written just after an official visit to Newport, Washington presented a vision of religious freedom in which "the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens." Whether the nation does or has lived up to those principles, they are stirring words, especially giving the (rather negative) Jewish experience as a separate community within a host country.
Kagan spoke about her family history and her experiences growing up as a Jew in the United States, which I appreciated because, as I wrote at the time of her nomination, we are on the same basic point in the curve of American Jewry. My family comes from the same area of Eastern Europe, which was sometimes in Russia and sometimes in Poland. Like hers, my grandparents primarily spoke Yiddish, worked laboring jobs (they owned a fruit stand in Brooklyn), and made sure their children got an education (usually at one of the schools in New York City, such as Hunter or City College), and broke into professions. By the time their grandchildren came around and moved into adulthood, there were no avenues that were closed off to Jews because they were Jews and little or no formal or institutional anti-Semitism. As Kagan said, all that is possible because of the commitment to religious and political liberty (even if purely rhetorical) reflected in Washington's letter.
Friday, August 16, 2013
For men only
A few weeks ago, I passed a highway billboard for a divorce law firm that was "men only," meaning they only represented the man in divorce and other family law proceedings. Quick googling shows that this is quite common. Some genuine questions from someone who knows nothing about family law:
1) Is this legal (or could there be an argument that it might violate a public accommodations law and, if so, is there a First Amendment response)? 2) Is this ethical? 3) Does this make sense? On this last point: Are men still treated so uniformly and identically in divorce/custody/family proceedings that one can develop a genuine expertise representing "the man," just as one develops expertise representing plaintiffs in slip-and-fall or employment discrimination cases? Is "the man" side genuinely the same in every family proceeding? Is representing "the man" in these proceedings a political position, in the way that representing the pro-speech position is for the ACLU or the pro-religion position is for the ACLJ?
And what happens when marriage equality comes to Florida? Does the firm's potential client base double?
Tuesday, August 13, 2013
Jurisdiction, merits, and Dodd-Frank
A couple of years ago, tipped off by a partner at Wachtell and Prawfs reader, I wrote about a potential jurisdiction/merits confusion with respect to § 929P(b) of the Dodd-Frank Act. That provision sought to overturn Morrison v. National Australia Bank and expand the extraterritorial reach of the Securities Acts, but did so in jurisdictional terms by identifying two situations in which district courts "shall have jurisdiction over an action or proceeding brought or instituted by the [SEC]."
We now have a decision from the Northern District of Illinois wrestling with these issues, although ultimately declining to resolve them. The defendants filed a 12(b)(6), arguing that the SEC failed to allege sufficient facts to meet the Morrison standard and that § 929P(b), being solely jurisdictional, did not expand the law's substantive reach. Ultimately, the court denied the motion, finding that the complaint stated a claim, regardless of whether the controlling substantive standard came from Morrison or from § 929P(b) understood as a merits statute controlled.
Nevertheless, the court engaged on the jurisdiction/merits question and at least hinted that the better view is that § 929P is jurisdictional. On one hand, the plain language suggests § 929P is jurisdictional; it speaks in expressly jurisdictional terms and appears in the statute's jurisdictional section. On the other hand, the court acknowledged several competing considerations: 1) avoiding interpretations that render a provision superfluous--since the Securities Act already has a jurisdictional provision and since Morrison itself acknowledged that the district court had jurisdiction over that claim, § 929P serves no purpose if it is solely jurisdictional; 2) legislative history, particularly statements by a sponsor indicating a desire to expand extraterritoriality; 3) avoiding absurd results, namely the conclusion that Congress granted district court jurisdiction (jurisdiction they already had) over a class of claims that were going to be dismissed for failure to state a claim. But the court at least seemed inclined to give the benefit of the doubt to the plain language.
Stay tuned. Perhaps a better case, one that actually will have to decide the question, is somewhere in the pipe.
Friday, August 09, 2013
State of public discourseFrom TV blogger Ken Levine.
Wednesday, August 07, 2013
It's the jurors, stupid (or it's the stupid jurors)
Jack quotes Prof. Andrew Ferguson, discussing the Zimmerman verdict: ". . . really the government tried a terrible case. I don’t know why there is not more focus on the prosecutors rather than the jurors."
But it seems to me that captures the frequent response to most high-profile, controversial acquittals: The jurors were stupid or didn't know what they were doing. People never (or rarely) fault the state for simply doing a bad job. Think of OJ, think of Casey Anthony--the prosecutors write books and go on TV, but the conversation is never about how badly they did their job or the mistakes they made.
Friday, August 02, 2013
Words and actions
Two mostly unrelated items about differences between words and conduct and about what we, as a public, do and should get outraged about.
1) The Republican strategy heading into the August recess is to counter the notion that the GOP is hostile to women (as indicated by the rash of state-level legislation designed to curtail all exercises of female reproductive freedom) by arguing that the Democrats are hostile to women because they are not denouncing Anthony Wiener for sexting or San Diego Mayor Bob Filner for alleged sexual harassment, nor calling for either one to resign/drop out of the race. This, the Republicans argue, is hypocisy, given Democrats' reaction to the statements about rape by Todd Akin and Richard Mourdock during the 2012 election cycle. To absolutely no one's surprise, the lazy intellectual lightweights who constitute much of the political press have taken the bait. Worse, the AP suggests--while Akin and Mourdock were attacked for their words, the Democrats are not calling out Weiner and Fillner for their actions.First, I'm not sure the distinction is so clear here. Weiner's conduct, at least, involves words (or words and some pictures). On the other hand, while Akin and Mourdock were criticized for their words, they were words spoken in an electoral campaign, words that reflected or predicted actions--how they had voted or would vote in the future on matters such as Planned Parenthood funding and the scope of rape exceptions in abortion laws. In any event, it seems to me the important distinction is not between conduct and action, but between public and private behavior and between lawful and unlawful behavior. As David Weigel argues in Slate, the press (again, no surprise) proceeds as if sex scandals (especially those involving lawful-but-sleazy behavior) are more important than (or at least as equaly important as) actual laws that actual elected officials actually introduce and vote for. Perhaps Democrats should call on Fillner to resign. But that has no bearing on Democrats calling public attention to the words of a candidate for office, where those words lend insight to the beliefs that this candidate would attempt to enact into law.
2) Riley Cooper, a member of the Philadelphia Eagles, is in deep trouble because he was video-recorded using a racial epithet in talking about who he was ready to get into a fight with. Cooper apologized all over the place (and not the typical celebrity non-apology apology) and was fined (but not suspended) by the team. Cooper today left the team to seek counseling and at least one Philadelphia commentator has suggested that this will cost him his job (and, implicitly, that no team ever will touch him).
But the NFL (all big-time sports, actually) are notorious for giving players second (and third and fourth and fifth) chances for off-field misconduct. Players who have engaged in domestic violence, sexual violence, sexual harassment, drunk driving, and other misconduct (again, involving action) are routinely welcomed back and allowed to continue playing for their teams, perhaps following a short suspension or fine. Without condoning, excusing, or minimizing what Cooper said, is dropping a racial epithet (in a context, by the way, where it was unquestionably lawful) really more unforgiveable than all of those things?
Saturday, July 20, 2013
Procedure of marriage equality, ctd.
If the wrangling over Prop 8 teaches us anything, it is that more students need to take Federal Courts and Remedies. In addition to the action filed by Prop 8 supporters in the California Supreme Court seeking clarification of the continued legal status of Prop 8, in light of another provision of state law requiring that state officials enforce state laws until there is a "definitive" decision invalidating the to-be-enforced law. Meanwhile, yesterday, the clerk-registrar of San Diego County filed his own petition seeking clarification, also arguing that, as an independently elected official, he is not bound by AG Kamala Harris' interpretation. (H/T: A commenter to my earlier Prop 8 post). The clerk asked the state court to stop the issuance of licenses to same-sex couples until a final determination (although the Supreme Court denied a similar request from Prop 8 supporters last week, so don't expect this one to have any more success). And the state's argument is that the Supreme Court should stay out of this altogether to avoid conflict with the federal court.
Has the state gone to the district court seeking to enjoin the state-court action under the "protect or effectuate its judgments" exception of the Anti-Injunction Act? And if not, why not? The state-court action, in part, functionally asks the court to interpret the scope and effect of the federal injunction (does it protect all couples? Does it apply to all officials in all counties)?, which seems like the district court's job. County officials (who have been working closely with Prop 8 supporters and similar organizations) have been very careful not to simply refuse to issue licenses, thus risking either a contempt citation in Hollingsworth or a new § 1983 action in which Hollingsworth might have either stare decisis or even (although less likely) preclusive effect. Clearly, they want to keep interpretation of the injuntion out of federal court, especially in light of the sense among many (including me) that the injunction is overbroad.
Of course, state-wide application depends on state officials (who were named as defendants) controlling unnamed county officials; faced with a motion under § 2283, might the district court have to certify that question back to the state supreme court? Or worse, abstain on a matter of ambiguous or complex state law?
Update: Kaimi Wenger (who was quoted in the linked article) expands on those comments. Kaimi discusses something I wanted to get into--whether the petition really is a request for procedural clarification or an act of conservative political theatre. He points out that the county clerk worked with a conservative religious organization and that the filing contains "broad social policy and political-usurpation language that seems extraneous to the procedural issues.' Actually, that complaint can be applied to the newspaper story itself, which intersperses discussions of the filing with heated rhetoric about the substance of marriage equality from both sides of the debate.
Wednesday, July 17, 2013
Let them wear towels
Last night, ESPN premiered Let Them Wear Towels, the third in its Nine for IX documentary series (nine films, all by female directors, marking the 40th anniversary of Title IX). Directed by Annie Sundberg and Ricki Stern, the film examines the experiences of the first generation of female sportswriters and their efforts to get equal access to lockerrooms and to post-game interviews with players. This one has a lot of law to it. For one thing, many of the early women sportswriters got those jobs because many of the major news outlets (including The New York Times, Washington Post, and Newsday) had been sued for employment discrimination and were looking to hire female sportswriters. The film also discusses Melissa Ludtke's successful 1978 lawsuit challenging Major League Baseball's exclusion of women from clubhouses as applied to Yankee Stadium,* which somewhat started the slow move toward league-wide equal-access policies in all four major sports.
* The district court found that MLB and the Yankees acted under color of law, because New York City owned the old Yankee Stadium. This decision is a big part of my arguments about the First Amendment rights of fans at publicly financed ballparks.
The film closes with the story of Lisa Olson, who in 1990 was sexually harassed by several players in the New England Patriots lockerroom, then suffered public harassment and vilification that pushed her to move out of the country for six years. The film's presentation of the Olson case illustrates something about the evolution of social movements. [ED: One TV critic argued that they should have built the film around Olson]. The early cohort of women reporters, who are the main subjects of the film, talk about turning a blind eye and deaf ear to offensive behavior. For them and their period of the mid-'70s to mid-'80s, the goal was simply access and getting inside the lockerroom so they could do their jobs; lewd comments and actions were the cost of that access. Olson's story is the second wave of the movement--having been granted access (a given by 1990), the demand was for a certain minimum level of behavior and treatment when they were there.
The one other thing I would have liked to have seen was some update on the views of the men who strongly opposed women's access back in the day--do they still hold to what they said 30 years ago or are they embarassed by it? Several of them are dead (former baseball commissioner Bowie Kuhn, former Patriots owner Robert Kraft Victor Kiam, whose public comments exacerbated the Olson situation). ESPN does have a short companion film in which male journalists and athletes of that era talk about the past and come across as largely supportive.
Tuesday, July 16, 2013
Much Worse than Making Sausages
When I first moved to North Carolina nine years ago, I remember being shocked when I learned that juvenile court jurisdiction ended at age 16 for all purposes and with no exceptions. This means that if your 16-year-old son or daughter were to intentionally push another kid in the hallway of a public school with a zero tolerance policy, the school resource officer (SRO) could bring assault charges against them in adult criminal court. I know because I have represented young people facing this very scenario.
It also means that the collateral consequences of a criminal charge and conviction are potentially borne by every 16 and 17 year old alleged to have violated a criminal offense -- misdemeanor or felony -- regardless of their criminal history, the nature of the injury or harm (if any), personal circumstances, etc. As you know, a criminal record makes it harder to get a job, to get accepted into college, to receive financial aid, to be licenced in such professions as nursing, and to become a naturalized citizen of the United States. 16 and 17 year olds held in adult prisons are more likely to be raped, assaulted, and to commit suicide than are adult offenders.
North Carolina is the only state in the country to have such harsh jurisdictional age caps. One other state ends juvenile court jurisdiction at age 16 -- New York -- which, unlike North Carolina, has mechanisms for "reverse waiver" or removal of a case from criminal court to juvenile court under specified circumstances. About ten states cap jurisdiction at 17, and the remainder -- the vast majority -- end it at 18. The numbers of teenagers impacted are significant -- over 65K 16 and 17 year olds are processed in the criminal courts of North Carolina each year, about 26K of whom are only 16. Stats show that only four percent of this cohort are convicted annually of felonies against people, with the remainder being property crimes or misdemeanors.I thought about all of this the other day when reading that Illinois raised the cap on its juvenile court jurisdiction from 17 to 18, thereby joining the majority. The governor and the bipartisan contingent that supported the bill recognized its value -- that by giving original jurisdiction over all minors to the juvenile court, those who are amenable to its rehabilitative offerings will not be saddled with the burdens of criminal convictions and imprisonment with adults. Lawmakers also acknowledged that the change would bring significant cost savings in the long run, no small factor given the broken state of the economy and the overflowing numbers of those incarcerated.
The bill's passage is the second step in a reform process in Illinois that began in 2010 when 17-year-olds charged with misdemeanors were moved from adult to juvenile courts. Earlier this year, the Illinois Juvenile Justice Commission released a 2-year study of the impact of the misdemeanor change that found a decrease in the recidivism rate, and it recommended that Illinois join the other states that place 17-year-olds charged with felonies in juvenile court. Of course, this does not mean that those minors charged with serious offenses cannot be transferred to adult criminal court -- only that all criminal cases against minors must originate in the juvenile forum. Connecticut has successfully raised the juvenile court age cap from 16 to 18 in recent years as well, also reducing recidivism rates.
Five years ago, I wrote an article on the history of the movement to raise the age of juvenile court jurisdiction in North Carolina. I researched the legislative history, looked at reams of old newspaper accounts, studies on adolescent development, commission reports and committee minutes from the various periods during the past century when attempts to raise the age had failed. The pattern was clear -- with the powerful opposition of the sheriffs' lobby and the backing of state prosecutors, few bills had ever made it out of committee. The arguments that the cost was too much, that the juvenile court system was already overloaded, and that the result would be a mere "slap on the wrist" to young offenders consistently prevailed in the General Assembly.
Yet, I was naively optimistic that progress would soon be made in my state. I joined other advocates in writing op-eds, appearing before state legislative commissions, serving on task-forces, and protesting at rallies. With each step forward, however, we've had at least two steps back. During the past year, I was heartened that even when our General Assembly is in the grips of conservatives bent on tearing down the little that's left of the social safety net, there are still Republicans willing to sponsor yet another bill to raise the age -- incrementally, of course, but even just moving 16 year old first-offenders charged with misdemeanors into the juvenile system would be a victory. Now the bill has "run out of steam," and those in the know have shared that it doesn't look like anything will happen with it during this legislative session. In other words, the pattern continues, and this time I'm a (small) part of the narrative of failure.
So, what have I learned? Making sausages is, apparently, nothing like making laws. In sausage making, there is generally only one person -- the wurstmeister -- who's in charge of the business and makes all the decisions. Sausages are made according to a recipe that specifies the exact amount of pork, while the inedible parts are discarded. Everyone at the factory is committed to producing a good product, and they strive for uniformity. The bottom line? If I were a sausage maker, I'd be insulted by the comparison. As an advocate trying to bring about change, it only saddens me.
Your thoughts? Experiences with legislative reform (or with making sausages)? Please share in the comments.
Monday, July 15, 2013
Commenting on the merits
Andy Koppelman argues at Salon that by joining the Chief's majority in Hollingsworth, Justice Scalia functionally cast the deciding vote to allow same-sex marriage throughout California. Koppelman games out the internal workings of the Court to figure out why the Court did not comment on the (arguably erroneous) overbreadth of the district court's injunction. He writes the following:
Koppelman then wonders why Scalia did not insist on such language. He concludes that Scalia and Roberts both recognized it might have split the five-justice majority, since Ginsburg, Breyer, and Kagan might have gone off with a separate opinion, perhaps one reaching the merits and recognizing a broad right of marriage equality that might even have garnered five votes. It's an interesting theory on how the justices negotiate opinion drafting.
Roberts’ opinion could easily have included some language casually noting in passing that the district court’s decision properly applies only to the two couples who brought the suit, and that the more general question was not within the district court’s jurisdiction. (Even if there was no standing to appeal, Roberts was not obligated to describe without comment an overbroad injunction.) He could then direct further proceedings in the 9th Circuit consistent with this opinion. That would have forced the lower courts to refashion the injunction to have nearly no effect.
The problem, I think, is with Koppelman's underlying premise. Roberts could not have compelled the lower courts to refashion the injunction, while also finding no standing to appeal. The propriety and scope of the injunction was never properly before either SCOTUS or the Ninth Circuit because there was no party to properly present that issue to either court. So the Court could not make any comment that would be anything more than dicta or would in any way have compelled the district court to rethink the scope of the injunction. I would add the Scalia would be particularly attuned to this point, as he wrote the opinion in Steel Co. rejecting the doctrine of "hypothetical jurisdiction" and the notion that a court can have anything meaningful to say on the merits in the absence of standing.
So one additional reason Scalia did not insist on the language Koppelman suggests may be that, believing (whether genuinely or strategically) that standing was lacking, Scalia also recognized that the Court lacked any power to meaningfully comment on or alter the injunction.
Sunday, July 14, 2013
The NAACP and other groups are urging the Obama Administration and DOJ to file federal civil right charges against Zimmerman, which has right-wing sites abuzz and screaming about double jeopardy. But what law could he be charged under? Not § 242, because Zimmerman did not act under color of state law (thus depriving the right wing of its most obvious demagogic analogue--the LAPD officers who beat up Rodney King). Also not § 241, because Zimmerman acted alone (and I'm not sure a purely private conspriracy still is possible under current understandings of § 5 of the Fourteenth Amendment). The only possibility is the federal Hate Crimes statute, which prohibits anyone, even if not acting under color of law, from willfully causing bodily injury because of the victim's race. If so, was that statute violated here? Assume Zimmerman followed and shot Trayvon Martin because Martin seemed "threatening" or "dangerous" and that Martin seemed "threatening" because of his race. Is that the same as following him "because of [his] actual or preceived race"? Also, how does federal law treat self-defense?
The other likely development is a civil lawsuit by Martin's family, which is being considered and was mentioned in the comments to Dan's first post. A civil action is, of course, governed by a lower standard of proof, involves more extensive discovery, and required testimony (deposition and trial) from Zimmerman himself. It also brings the state Stand Your Ground Law, and the pre-trial immunity it provides, back to the forefront. (By the way, if the civil suit were brought in federal court, this would be an interesting Erie hypo).
Wednesday, July 10, 2013
Procedure in constitutional challenges, ctd.
Last week, I wrote about courts (arguably) misapplying Twiqbal in constitutional injunction action, using plausibility to avoid addressing questions of law head-on on a 12(b)(6) motion. The en banc Fourth Circuit gives us another example, in Greater Baltimore Center for Pregnancy v. Mayor of Baltimore, one of two cases (the other decision, involving a similar regulation from Montgomery County, MD, is here) challenging local regulations requiring church-affiliated crisis pregnancy centers to post signs in their lobbies stating that they do not provide abortion or comprehensive birth control referrals, services, or counseling.
The district court in Baltimore Center granted a permanent injunction on summary judgment without giving the City an opportunity to take certain discovery. Without reaching the First Amendment merits, the majority (written by Judge King, who wrote an outraged dissent from the original panel decision) held that summary judgment was improper and the city should have been given an opportunity for discovery on a number of issues, primarily the status of the centers as commercial enterprises (which determines whether this is compelled commercial speech, which in turn affects the standard of First Amendment scruriny). Judge Niemeyer (who wrote the panel opinion affirming the district court and invalidating the regulations) dissented, insisting that all of this involved questions of law for which discovery is unnecessary and inappropriate. Whether speech is commercial or involves commercial and non-commercial speech inextricably intertwined is a question of law and, in this case, obvious, such that discovery should not enter the picture. As with 12(b)(6), this all illustrates of how procedures developed to handle fact-intensive cases apply to more law-intensive ones. And how should courts treat facts such as the legislative record for procedural purposes?
Political valences are nakedly obvious in this decision. Both dissents accuse the majority of using procedure to undermine the plaintiffs' rights and accuse the city of abusing discovery as a way to deny plaintiffs justice. This is, of course, a switch from the ordinary viewpoint (especially for judges such as these dissenters), where it is plaintiffs abusing discovery and judges protecting defendants from that abuse. Of course, the (likely) competing substantive views of reproductive freedom continually bubble to the service; this is prevalent in Judge Wilkinson's solo dissent, which accuses the majority of twisting in all directions to aid the choice movement and warns that compelled speech can be used against both sides in this debate. This is true, although again, attitudes about the topic seem to affect First Amendment analysis on all sides.The last noteworthy point is the disagreement about the effect of a preliminary injunction. In response to the abusive-discovery-denying-liberty point, the majority offered that the district court could have granted a preliminary injunction, thereby protecting the center against having to post the signs until discovery could work itself out. At the same time, the judges crossed swords over how much effect to give a preliminary injunction. The dissents both cited to the Montgomery County case (which involved a preliminary injunction) as establishing that the centers engaged in non-commercial speech to which strict scrutiny applied. But the majority insisted that a preliminary injunction is just that--preliminary--meaning it is subject to abuse-of-discretion review and does not firmly establishing constitutional principles. This is questionable; because the grant and denial of a preliminary injunction is immediately appealable as of right, much constitutional litigation (including appellate and SCOTUS review) occurs at the preliminary injunction stage.
I had thought these cases might be ripe for SCOTUS review (there are four First Amendment cases on tap for next year, one only indirectly--more than this past term, but less than in past terms). But the cases are so bound up in procedure, I wonder if either is the right vehicle, at least right now.
Tuesday, July 09, 2013
Settlement in the curriculumOne of the sample complaints I give my Civ Pro students is from Mort v. Lawrence County Children & Youth Servs., a § 1983 action brought by a woman whose newborn was taken away by the County after a false-positive drug test (the result of the woman eating an "everything" bagel from Dunkin' Donuts). It's a well-drafted complaint, so very good for illustrating joinder, pleading structure, jurisdiction, and Twiqbal. A student shared with me this report that the case settled for $ 143,000. This is a pretty good sum for a non-physical injury due process claim. And a good reminder to civ pro students that most monetary cases, at least those with well-structured complaints, settle.
Wednesday, July 03, 2013
Cohen on what's next for SSMApropos of my query last week about where the marriage equality movement goes next after Windsor and Hollingsworth, David Cohen at Faculty Lounge suggests "everyone just sue the bastards"--flood the courts with lawsuits challenging marriage bans (and other anti-gay laws), highlighting the already-strong arguments in favor of marriage equality, now helped by the language of Windsor. Unlike when Massachusetts legalized SSM in 2004 and the ACLU urged caution, Cohen argues, the legal and political terrain has shifted, such that victories are more likely in the lower courts (putting SCOTUS to one side). Interesting take.
Tuesday, July 02, 2013
Legal plausibility v. Factual plausibility
In her essay on Conley v. Gibson for Civil Procedure Stories, Emily Sherwin calls Conley "precedent by accident." In the (in)famous "no set of facts" language, the Court was describing a standard for legal insufficiency, referring to a situation in which the legal right asserted did not exist as law. But lower courts ran with it as a standard for factual insufficiency and it soon came to mean that a plaintiff need not allege any particular facts, so long as some facts might come up later in the case.
Ironically, the new plausibility standard from Iqbal and Twombly is now presenting this problem in reverse. Twiqbal established a new standard for factual insufficiency and the quantity and quality of the facts the plaintiff must plead--the plaintiff must allege non-conclusory facts that, taken as true, plausibily show a violation of rights and the opportunity to recover. But lower courts have begun using plausibility for legal sufficiency--whether the plaintiff's legal arguments, as applied to seemingly undisputed facts, are plausible. Courts are denying 12(b)(6) motions where law is in dispute.
This is particularly prominent in constitutional litigation. The Tenth Circuit recently did this in a First Amendment case. And Judge Bernard Friedman of the Eastern District of Michigan did the same yesterday, holding that a challenge to the validity of state prohibitions on same-sex marriage and on unmarried couples adopting survives a 12(b)(6) motion. After pointing out that both parties cite Windsor in support of their claims, the court states that "construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court's current statement of the law, this Court cannot say that plaintiffs' claims for relief are without plausibility."This is just wrong. Plausibility has no role to play with respect to the validity of the plaintiffs' legal arguments. A ccannot be legally plausible--it is either legally valid or legally invalid, at least when the facts alleged are uncontested, as in the Michigan case.
The only facts that matter are these and they are not in dispute--plaintiffs are an unmarried same-sex couple, want to adopt children together, cannot marry because of state law, and cannot adopt children together because of state law. The only issue on the motion is whether these provisions of state law violate equal protection and due process, as interpreted in Windsor. That is purely a question of law for the court to decide, which is precisely what 12(b)(6) was designed for. There is no reason for the case to proceed further. No discovery is necessary, there is no fact-finding for the court to do, and no need for further factual development; the case is teed up for resolution right now, depending entirely on the legal issue of how the district court interprets Windsor. And resolving the legal dispute is the court's ultimate job. It thus makes no sense for the court to refuse to resolve the legal question now because the the plaintiff's claim is "plausible," then decide the exact same legal question six months from now, when nothing will have changed on the record before the court other than the parties repeating the same legal arguments that they could make right now. If Windsor invalidates state law, the court should deny the motion (and the plaintiffs should be making their own motion); if Windsor does not affect state law, the court should grant the motion.
The district court exacerbates its error with this closing line: "Plaintiffs are entitled to their day in court and they shall have it." This is nonsense. What does it mean to have one's day in court with respect to a legal question? It means you get a judge to resolve that question. But that is what Judge Friedman just refused, to do, at least for the moment.
Monday, July 01, 2013
Apolitical sports leagues? No
Beginning October 1, people will be able to shop for the expanded insurance coverage made possible by ACA. As part of its publicity effort, the Department of Health and Human Services is seeking to partner with the NFL and other sports leagues in publicity efforts. This does not sit well with GOP Sens. Mitch McConnell and John Cornyn, who sent this letter to Commissioner Roger Goodell.
The letter chastises the league for risking its "inclusive and apolitical" brand, expressing surprise that a pro sports league would take "public sides in such a highly polarized public debate." But I would reject the suggestion that the NFL, or any other sports league, is or ever has been apolitical. Putting aside the way leagues regularly engage in politics for their own direct benefit--antitrust, labor law, stadium funding. Leagues and teams regularly get involved in public issues--gay rights, women's rights, racial equality, war and the military. At least some of these are at least as contentious as ACA. In fact, as the letter acknowledges, the Boston Red Sox in 2007 participated in efforts to encourage enrollment in Massachusetts' program (which was the basic model for ACA). The reason for this being different, they argue, is that ACA passed on a party-line vote using "legislative gimmicks" and "ridiculed political favors." Stated differently, ACA passed through the ordinary legislative process, but the process worked to our disadvantage and produced a law we don't like. Thus, the law is illegitimate, so you, as an apolitical entity, should stay out of it.
There also is a hint of the paranoid. They express concern for "the Obama Administration's record of using the threat of policy retaliation to solicit support for its policies or to silence its critics" and helpfully tell the NFL to come to them if they are feeling threatened or coerced so the Senate GOP can protect them from the big, bad President. Of course, in emphasizing how unheard-of and wrong-headed the NFL's involvement would be , the letter could be read as its own threat designed to solicit support for the McConnell/Cornyn side in this debate. It actually is the classic bully trick--you better come to us for protection from that other guy who is threatening you.
Sunday, June 30, 2013
SSM ongoing in CaliforniaSo reports Lyle Denniston at SCOTUSBlog. On Friday, the Ninth Circuit lifted the stay on the district court injunction and California began performing same-sex marriages across the state (so far, I have heard no reports of recalcitrant county officials). Prop 8's proponents petitioned Justice Kennedy (the circuit justice for the Ninth Circuit) to reinstate the stay, arguing that because SCOTUS' mandate had not yet issued (that does not happen for 25 days, pursuant to SCOTUS rules), the Ninth Circuit still lacked jurisdiction over the case and thus could not lift the stay.
Lyle notes that Kennedy did not explain his decision. It might have been that the petitioners, lacking standing to appeal, also lacked standing to challenge what the Ninth Circuit did with the stay. It might have been that the Ninth Circuit retained jurisdiction over its own stay of the district court order, even if it no longer had jurisdiction to rule on the merits of the case.
Adoptive Couple v. Baby Girl (2 of 4): 3/256th Cherokee?
This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (part 1 is here), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. This post address race, tribal enrollment, and Indian authenticity.
Baby Veronica’s mother is “predominantly Hispanic” and her father has only a small fraction of Cherokee ancestry. Legally, his fraction of ancestry doesn’t matter; only his tribal enrollment does. But the very first sentence of Justice Alito’s opinion describes Veronica as “1.2% (3/256) Cherokee,” underscoring the anxiety about race that has pervaded the case. The father has only a distant Cherokee ancestor - isn’t he more white than Indian? Sure, he is enrolled in the tribe, but how can “one drop of blood . . . trigger all these extraordinary rights?” (asked Justice Roberts during the argument). Why should the child’s ties to her Cherokee heritage be privileged over her Hispanic heritage, especially if she is fractionally more Hispanic than Cherokee? It is these racial anxieties, rather than the law itself, that seem to drive the majority opinion as well as the media coverage of the case. As Will Baude points out, neither the majority nor the concurrence has much in the way of express discussion of equal protection concerns. But the briefs, the oral arguments, and the references to fractional ancestry that peppered the majority opinion suggest these kinds of questions lurked just below the surface.
The short answer is that Indianness, especially in the form of formal enrollment in a tribe, is a political classification, not just a designation of race, heritage, or culture. I have written elsewhere about how to make sense of the “racial v. political” dichotomy that that seems to trouble many people about Indian law. In my view, it makes no sense to claim that Indianness has nothing at all to do with race and racism, but it is equally a mistake to suggest that the specter of race renders it less of a political status in the sense that the term is used to denote a particular legal history in which the federal government has treated Indian tribes as separate nations and has assumed unique powers to legislate with respect to tribes and indigenous people. (Bethany Berger and Sarah Krakoff have also written about this interplay.) Indian tribes have a different relationship with the federal government than any other group, a relationship based largely on treaties and recognition of nationhood. That is why Veronica’s Cherokee-ness matters in a way that her Hispanic-ness does not.
The term “Indian” has various definitions in different areas of federal law. In general, though, legal Indianness requires indigenous ancestry (descent from a group indigenous to what is now the United States) and some kind of political recognition. There are certainly areas of Indian law that spur debates about what qualifies as political recognition, but this is not one of them. As noted above, the definition of Indian here is clear, and it is clearly tied to tribal enrollment. Of all the possible indicia of Indianness, formal enrollment in a tribe is the most clearly “political” because it refers to national citizenship. Yet even enrollment-based distinctions raise concerns because most tribal enrollment rules require a demonstration of ancestry. Ancestry in tribal enrollment rules serves a different function than simply being “a proxy for race,” though. It is a nod to the kinship relations that form the basis of most tribes, and it is an indicator of indigeneity. As Justice Sotomayor points out in her dissent, the majority’s frequent references to the tribe’s reliance on descent and its “second-guess[ing]” of the tribe’s membership requirements are ironic in light of the fact that federal regulations require that all members demonstrate “descent from a historical Indian tribe” as a condition for tribal acknowledgement.
But the anxiety runs even deeper. The Cherokee Nation is one of a handful of tribes that require only lineal descendancy to enroll. Many tribes require a certain degree of ancestry (called “blood quantum”), and some impose additional requirements (the most recent study of enrollment rules is here). Most often, tribes are criticized for this use of blood quantum in their enrollment criteria. The criticism is both external (by requiring that members possess a certain percentage of “Indian blood,” tribes are injecting race into their citizenship criteria) and internal (minimum blood quantum requirements are partly the product of federal influence and reflect a campaign to ensure that “real” Indians will eventually disappear). (For more about the history of blood quantum, I suggest starting with Paul Spruhan and J. Kehaulani Kauanui.) The Cherokee Nation does not require members to have any specific blood quantum; members must instead demonstrate descent from a person on the historical tribal rolls. Instead of being cheered for removing race from its enrollment criteria, however, it is chided for relying on nothing but race - and only an “insignificant” fraction at that. (Similar concerns surrounded the use of ancestry in Rice v. Cayetano. Ironically, Justice Roberts argued that case for the state - the party relying on ancestry - yet he may be the current Justice most concerned with the use of ancestry in Indian law.)
Tribes can’t win here. If they require a specific percentage of Indian blood, they are relying on race. If they require only descent, their members aren’t really Indians (see Alex Pearl’s recent post). If they do not require descent, they are no longer indigenous. At the oral argument, Justice Roberts was also concerned about the possibility that ICWA could apply based on only enrollment, but not ancestry. He asked about a “hypothetical tribe” with a “zero percent blood quantum” that is “open for, you know, people who want to apply, who think culturally they’re a Cherokee or - and number of fundamentally accepted conversions.” And if you are paying close attention, you know that the Cherokee Nation is the same tribe being sued for removing freedmen from its rolls because - according to the tribe - they lack indigenous ancestry. (Of course, it is far more complicated, but this isn’t a post about the Cherokee freedmen.) I chose the term “racial anxieties” carefully because that is exactly what plagues Indian law. The problem is that the Justices (and the public) don’t know how to think about race and Indian law. Is it too racial? Is it not racial at all? Is it not racial enough? And what is race anyway?
That the law itself remains intact is no small victory. The brief for the guardian ad litem in this case advocated a reinterpretation of ICWA that would demand some additional “non-biological” demonstration of Indianness (presumably besides tribal enrollment), arguing that the law is unconstitutional otherwise (see here for a discussion of how this argument has surfaced in other ICWA cases). The attorney for the GAL, Paul Clement, recently attacked the constitutionality of Indian legislation in another area. Given Clement’s track record before the Court, tribes are rightly concerned that these lingering racial anxieties could damage tribal rights even more than they did here.
Posted by Addie Rolnick on June 30, 2013 at 03:17 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (4) | TrackBack
Saturday, June 29, 2013
Adoptive Couple v. Baby Girl (1 of 4): Why the Court’s ICWA Ruling Matters
I’ve been a quiet guest this month, but this post (part 1 in a 4-part series) has been germinating a long time. Indian country issues get very little press (academic or otherwise), but when the occasional case is more widely followed, it can surface misunderstandings about Indian law and history and deep-seated anxieties about how Indian rights mesh with other areas of law. During my last guest stint here, I addressed this phenomenon in posts about the widely-debated Santa Clara Pueblo v. Martinez case and the Supreme Court’s 2012 holding in Ramah Navajo Chapter v. Salazar. I’m particularly concerned with how these crossover cases make their way into law school classes and legal scholarship not typically focused on Indian law, and I hope professors who incorporate these cases will find some of my observations and links useful.
Adoptive Couple v. Baby Girl, a major Indian law decision that has been nearly buried among the responses to Shelby, Fisher and Windsor, is one of those cases. It is a case about the language, history, and intent of the Indian Child Welfare Act, but the statutory issues have been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series, co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the posts are a product of our collective views. Here, we address the holding and its immediate significance. In later posts, we will address the lurking issues.
What Exactly Is the Indian Child Welfare Act?
The Indian Child Welfare Act is a federal law that sets particular procedural rules that must be followed before parental rights can be terminated over a child who qualifies as “Indian.” The law was passed in 1978 to counter generations of forced removal of Indian children from their homes and communities, first via federally-sponsored assimilationist boarding schools and later via state child welfare systems, which removed Indian children from their homes at alarmingly high rates and placed them with white families, which were perceived to be better than their home communities. (This history is described in detail in an Indian law professor amicus brief filed by Stuart Banner and Angela Riley at UCLA.) The law does many things, but most important in this case are the procedures that state courts must follow if an Indian child (defined as as one who is “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe”) comes before them in a foster care, parental termination, or adoption proceeding. These include notifying the parent and the child’s tribe, giving the tribe the opportunity to intervene or to assume jurisdiction over the case, setting a high evidentiary and procedural bar before parental rights can be terminated, and, in the event of removal, placing the child with a relative, a family from the same tribe, or another Indian family if at all possible.
In the only other ICWA case it has ever heard, the Court recognized that the law is primarily concerned with connecting tribes and children by strengthening tribal governments’ control over the placement of their children and by recognizing that the “best interests” of Indian children include maintenance of their tribal ties. (On the issue of what is “best” for adoptee children, read the amicus brief filed by pre-ICWA adoptees. The common complaint that the child’s best interests are “overridden” by the tribe or by federal law misses this aspect of ICWA; it recognizes that protecting the relationship between tribe and child is in line with, not antithetical to, the best interests analysis). That case, Mississippi Band of Choctaw Indians v. Holyfield, also involved a voluntary adoption in which the birth parents intentionally left the reservation in order to have their children adopted through state court to a white couple. The Court held that the statute required that the tribe have jurisdiction over the case, effectively refusing to allow individual Indian parents to circumvent the larger purposes of the law. Justice Scalia was in the majority in Holyfield, and he later described the decision to “turn that child over to the tribal council” as “very hard” but clearly mandated by the law. Justice Scalia’s characterization makes it sound as if the children were cruelly ripped from their adoptive home and returned to an opaque pit of corruption. What most people don’t know is that the Mississippi Choctaw tribe, after accepting jurisdiction and considering the best interests of the Holyfield children, eventually placed them with the adoptive family the parents had chosen, but required the parents to maintain contact with the children’s extended family and tribal culture. One lesson of that case, then, is that following federal law and respecting tribal jurisdiction doesn’t mean children won’t be properly placed in loving homes.
Baby Veronica, as she is known, is the child of a non-Indian mother and a Cherokee father, Dusten Brown. (Indian Country Today has a nice 4-part series on the family involved in the case. The first article is here and the last article, with links to the earlier ones, is here.) Her mother placed her up for adoption through a private agency and chose the Capiobiancos, a white couple with professional careers and advanced degrees, who have been referred to in most of the media coverage as “ideal” parents. As the court noted in the first footnote of its opinion, there was never any question that Veronica was an “Indian child” involved in a “child custody proceeding” - exactly the situation that would normally trigger ICWA’s requirements. The mother knew Brown was Cherokee, but she and/or her attorneys made several misstatements along the way (requesting information about enrollment using the wrong name and date of birth for Brown, listing the baby’s ethnicity as Hispanic on interstate transfer forms), and so the tribe was not involved. But the petitioners argued that because Brown failed to pay child support and did not have custody of Veronica, he had essentially abandoned her and therefore was no longer a “parent” under the law. With no Indian parent, they argued, there was no basis for applying ICWA.
This, of course, is precisely why ICWA matters: under state law in South Carolina, a father who has not actively parented (i.e., paid support, been actively involved in child’s life) has no right to object to an adoption, but ICWA superseded state laws to institute a uniform, more stringent standard in cases involving Indian children: parental rights cannot be terminated and Indian families cannot be broken up unless active efforts have been made to keep them intact and the parent has been deemed beyond a reasonable doubt to be unfit. (Voluntary relinquishment under ICWA requires a written order entered before a judge, which did not happen here.) Both the state family court and the supreme court denied the adoption, finding that ICWA’s standards for involuntary termination of parental rights (stricter than state law) had not been met. The question before the Court was whether ICWA should apply at all.
How the Court Narrowed ICWA
It is important to say here that the Court did not invalidate any part of the statute. It simply held that a non-custodial father cannot invoke ICWA’s protections. (Justice Thomas’ concurrence, on the other hand, inexplicably asserts that Congress has no power to supersede state law where Indian children are involved.) The majority (Alito, Roberts, Kennedy, Thomas and Breyer, whose concurrence is more limited) read the law as concerned primarily with involuntary termination proceedings in which state social workers come into Indian families and remove children. A non-custodial Indian father invoking the statute to counter the voluntary adoption initiated by a non-Indian mother seemed to the majority to be outside of the law’s scope. In the majority’s view, this case was not about “the breakup of the Indian family” because the only Indian parent was not actively parenting the child at the time. In other words, there was no Indian family to break up. The Court remanded the case to state court after holding that ICWA does not apply, but it did not order that Veronica be returned to the Capiobiancos. The state court must now decide, applying state law, where to place her.
(The majority also held that ICWA’s placement preferences did not apply because no other prospective adoptive parent was put forward by the tribe. This is disingenuous; no other placement was suggested because Brown’s extended family and the tribe supported Brown’s efforts to retain custody. The dissenting opinion points out - correctly, in my view - that the Court cannot rule on the placement question preference question before it has arisen, leaving room for the possibility that a relative could seek custody on remand. Justice Breyer, in his concurrence, suggested that Brown could be considered as a prospective adoptive placement if his rights were terminated.)
The blow struck by this case is significant. As the Court recognized in Holyfield, ICWA is about preserving the relationship between an Indian child and her tribe. The tribe has an interest in its children that may be separate from the interests of the Indian parents. The child’s interests are likewise served by maintaining a connection to her tribe and her extended family, even if she no longer has a relationship with her parents. In this case, the Cherokee Nation supported Dusten Brown’s effort to regain custody, but tribal intervention does not always (or even usually) mean returning the child to her Indian parent. By focusing so much on the father’s actions in the case, the Court has allowed tribal rights to be subsumed by an individual parent’s lack of responsibility. This is precisely the opposite of its holding in Holyfield, and it significantly undermines the spirit of the law.
For what it’s worth, I am a non-Indian mother of Indian children. Were we to consider giving our children up for adoption, or if they removed from our care, the ICWA’s procedures would come into play, possibly limiting our preferences about where we would want the children placed. I don’t consider ICWA’s recognition of a relationship between child and tribe to be an unfair burden or a barrier to pursuing my children’s best interests. As the Court recognized in Holyfield, but completely failed to acknowledge in Adoptive Couple, the two are closely linked.
Posted by Addie Rolnick on June 29, 2013 at 03:12 AM in Constitutional thoughts, Culture, Current Affairs, Gender, Law and Politics, Things You Oughta Know if You Teach X | Permalink | Comments (2) | TrackBack
Thursday, June 27, 2013
Where does the marriage equality movement go next?
Supporters of marriage equality are rightly ecstatic over yesterday's events and it might have been the best they could have hoped from this Court in a single term. But when the ecstacy recedes, the movement is faced with a fundamental question--what do we do now, since the one thing SCOTUS did not do was end the discussion once and for all.
As Marty Lederman notes, on August 2, there will be marriage equality in D.C. and 13 states--California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota (where a new law takes effect August 1), New Hampshire, New York, Rhode Island, Vermont, and Washington. If the theory is that SCOTUS wants a critical mass of states to adopt marriage equality before (a la Loving) it pulls the outliers along via the Fourteenth Amendment, more states probably are needed. So what states should the movement target? Presumably, if pursuing popular means (legislation or ballot proposals), you look to "blue" states. But where? Illinois, is an obvious choice (Democratic governor, large Democratic majorities in both houses, Obama's home state), but a bill to give same-sex couples the right to marry was recently held back because it did not have the votes. New Jersey is also blue, although it has a Republican governor, as do Pennsylvania and Wisconsin. Plus, those states, like Michigan, have a bit too much of a conservative streak. Oregon? Colorado?And should the focus be on the legislatures and voters or on the courts? As the Slate piece cited above notes, the popular momentum from last November seems to have slowed a bit (perhaps because there are no states that are obvious candidates). And maybe yesterday's events signal that federal litigation is now a better strategy than it was a few years ago, helped by the district court opinion in Perry and strong language in Windsor? If so, in what states and in what circuits? Do you target Illinois or Wisconsin and hope you get Posner on the panel? Do you target Pennsylvania or New Jersey hoping, where the Third Circuit has more Democratic appointees and something of a right-friendly reputation? A judge in the District of Nevada upheld that state's voter-approved (twice) prohibition; when the plaintiffs appealed, the ballot proponents then tried to get SCOTUS to hear the case directly. Yesterday, SCOTUS declined. So that case goes back to the Ninth Circuit, where I imagine (hope?) the Ninth Circuit to invalidate the prohibition. Does SCOTUS immediately take that case for next term (as Justice Scalia predicted in his Windsor dissent)?
Remedial effects of procedure
A colleague proposes the following: The overly broad language of Judge Walker's injunction, and thus the confusion about its scope, is a product of the state's refusal to defend in the district court and turning defense over to the sponsors.
I think there might be something to this. Kamala Harris' letter states that the state officials litigated on the belief (which they undoubtedly preferred) that any injunction should apply statewide as to all county clerks and registrars and as to all persons, not only the named plaintiffs. So they were not going to object to the overbroad injunction or bring the problem to the district court's attention, as an ordinary defendant, who actually defends, would have done. On the other hand, the sponsors likely were not thinking in remedial terms, since they were not the ones who would be subject to any injunction; they therefore had less incentive to really be on guard with respect to this ssue.
Wednesday, June 26, 2013
What's next in California?
Right or wrong (I believe wrong), Hollingsworth finds no standing to appeal to either to the court of appeals or SCOTUS, vacates the Ninth Circuit decision invalidating Prop 8, and reinstates (or at least sets the stage for reinstating) the broad injunction issues by Judge Walker in the Northern District of California.
So what happens now?
The first step is for the Ninth Circuit to lift the stay on the district court injunction, which it will do when the case is back in its jurisdiction, as part of an order dismissing the appeal for lack of appellate jurisdiction. California Attorney General Kamala Harris announced that she would immediately ask the court of appeals to lift the stay.
But then we must figure out what, exactly, the injunction does. Judge Walker wrote: "Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official [state and county] defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8."The case was not brought as a class action, but only on behalf of two couples who sought marriage licenses in two counties (Los Angeles and Alameda). So the most appropriate injunction would prohibit enforcement of Prop 8 (i.e., would require issuing licenses) only as to those two couples and only by the two county clerks and the state officials named as defendants. On the other hand, Walker's injunction is written to be much broader, prohibiting all enforcement by the named defendants, and those subject to the named defendants control or supervision, against all persons. Indeed, Justice Kennedy described the injunction as "statewide" (hard to know if he was happy or unhappy with that).
Even if the injunction is erroneously overbroad, it is not clear what could be done about that. An overbroad injunction could be the basis for an FRCP 60(b)(6) Motion to Modify, as"any other reason" justifying relief from the injunction. But who could or would make that motion? The logic of Hollingsworth is that the initiative proponents lost all standing once the district court entered judgment (a judgment which does not bind or compel the proponents to do or not do anything). And it is unlikely the named defendants would do so (since they wanted to lose the case and be subject to the injunction in the first place).
The difference affects how the next couples would proceed. If the injunction does not apply statewide or to all couples, the next couple denied a license would have to file a new federal lawsuit. In LA or Alameda, they probably could use the Perry injunction for preclusive effect; in other counties, Any couple could use the injunction as persuasive authority [ed: corrected]. On the other hand, if the injunction applies statewide, any couple denied a license enjoys the benefit of the existing injunction; they could go straight to Judge Walker (or whichever other judge is supervising the injunction, since Judge Walker retired) and obtain the license through a Motion to Enforce and a threat of sanctions against the state or county officials who refused to grant the license.
AG Harris potentially mooted that issue, concluding in an opinion letter to the governor (dated June 3 and written in anticipation of this ruling) that the injunction does apply statewide. Because the plaintiffs brought a facial challenge to Prop 8, its invalidation means there is no possible constitutional application of the law for the named defendants as to any applicants (although this reasoning does not seem quite right to me). Further, she concludes that all county registrars and clerks are under the control and supervision of the Director and Deputy Director of the Department of Public Health (both named defendants) and therefore qualifiy as "other persons in active concert or participation" with parties who are bound by the injunction under FRCP 65(d)(2)(C). She insists that all clerks be given notice of the injunction and of her conclusion that they are subject to it, which a DPH official did today (although telling clerks to wait until the Ninth Circuit lifts the stay). In other words, high-ranking state officials insist that, as soon as the Ninth Circuit lifts the stay, California is back where it was in the four months in 2008 prior to the passage of Prop 8, when same-sex marriage was legal throughout California.
But what happens if a county clerk who was not a named defendant continues to believe that Prop 8 is constitutionally valid (e.g., the Clerk in Imperial County, who tried unsuccessfully to intervene in the district court) and disagrees with Harris' determination that he is subject to the injunction? One possibility is that this unknown clerk, being bound by the injunction, could now make that FRCP 60 motion to modify the overbroad injunction. Another is he could refuse to grant a license to a couple, then oppose the subsequent motion to enforce by challenging the scope of the injunction (as to him and as to the new license applicants) and whether he is subject to control or supervision of DPH. Of course, because the scope of DPH's control or supervision is a state law issue, the district court may have to certify that question to the California Supreme Court. Another possibility is that DPH has the power to remove a recalcitrant county clerk or to directly intervene to override the actions of a county clerk who fails to follow commands (akin to the power some state attorneys general have to supersede the actions of county-level prosecutors); whether DPH has such power is also a question of California law.
All of which is to say that SCOTUS's decision leaves in place a broad Fourteenth Amendment ruling on the constitutionality of Prop 8. But it also leaves all sorts of procedural issues, federal and state, for the lower courts to work out.
Update: Marty Lederman gives his views of what happens next, closing on several additional practical points worth highlighting. First, if a couple did have to litigate anew, they'd almost certainly win, having not only the Walker injunction as authority, but also the language in Windsor. Second, Marty doubted any clerk would bother refusing to issue licenses, because it simply will not be worth the bother or effort and ultimately will fail. Third, as a result, once the Minnesota law takes effect on August 1 and once the stay is lifted, same-sex marriage will be legal in 13 states and D.C.
What is Scalia talking about?
Justice Scalia spends the last part of his standing discussion in Windsor criticizing Justice Alito's separate dissent arguing that BLAG (although not the United States) had standing to appeal to the Second Circuit and to SCOTUS. Scalia argues that this opens the door to Congress suing the executive in federal court for declining to enforce federal law (or for enforcing it inadequately). Alito certainly does not say this or even imply it (at least on my reading of that part of his opinion, which I've now done five times). Does it necessarily follow from allowing Congress to defend a law when the President declines to do so? Scalia's vision is appealing: only the executive enforces and defends federal law and if he fails to do so, the law goes unenforced/undefended and Congress is left to non-litigation means (impeachment, cutting off funds, etc.) to persuade/cajole the President to act.
True, there administrative problems that could result if Congress can trump executive litigation/enforcement decisions with which it disagrees. But it seems to me that Alito's theory of standing is, at the federal level, precisely what the majority in Hollingsworth (written by Roberts, joined by Scalia) demands when the state executive declines to enforce or defend: BLAG is part of an elected body, part of the government, and subject to the popular and electoral check of The People. That same theory should work the same way at the federal level.
Sex, morality, and relationships
Cynthia highlights Justice Kennedy's emphasis on DOMA's effect on children, particularly a sentence emphasizing how DOMA "humiliates" children of same-sex couples. But look at the immediately preceding sentence on p. 23: "The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify."
So the Constitution protects moral and sexual choices, but the State protects the relationship. Even though the relationship logically arises from those constitutionally protected moral and sexual choices. Is it logically possible to not take the next step to conclude that the Constitution also protects the relationship?
3/256The following is by my FIU colleague Alex Pearl, an Indian Law scholar and an enrolled member of the Chickasaw Nation of Oklahoma.
There are a lot of very good assessments of the Adoptive Couple v. Baby Girl decision, and I will not attempt to add to that thoughtful analysis of the holding. Instead, I’d like to focus on a different aspect of the Court’s opinion, which is its misplaced and worrisome obsession with whether Veronica is Indian enough. While not the stated basis for the Court’s decision, the repeated references to Veronica’s percentage of Cherokee ancestry display a misunderstanding of tribal citizenship laws and (ironically, given the Court’s color-blind bent) reinforce an inchoate racialization of Native people. The Court’s message seems to be: if children like Veronica lack sufficient “Indian blood,” they do not warrant the legal protections that their political status as American Indian tribal members otherwise affords.
What’s in a number? More than you would think. Justice Alito began his majority opinion with this statement: “[t]his case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.” Thankfully, the Court references Baby Veronica’s blood quantum by BOTH fraction and percentile for those math challenged readers. This has the effect of attempting to reiterate that Baby Veronica really isn’t that much of an Indian, so this isn’t really that big of a deal. Under Cherokee membership requirements, Veronica’s so-called blood quantum is irrelevant, however. The only thing that matters is whether she descends from an ancestor on the Cherokee Nation’s Dawes Roles. Justice Alito later acknowledges this, referencing Baby Veronica’s “remote ancestor” which, again, attempts to delegitimize her Indian-ness.
However, Baby Veronica’s actual quantum of blood is simply irrelevant, which Justice Sotomayor points out in her vigorous dissent. (slip op. at 23-24). The plain fact, which the Majority gets wrong, is that Baby Veronica is a Cherokee Indian—no matter the extent to which this fact challenges their own personal notions of who an Indian is and what an Indian looks like. She is a citizen of the Cherokee Nation. Her citizenship in the Cherokee Nation is not up for debate, diminution, or question. Indeed, this is one of the many purposes of the Indian Child Welfare Act, to prevent non-Indians from making these types of judgments about who is/isn’t/might be/looks like an Indian.The Majority’s statement about the “low” percentage of blood attempts to make more palatable the idea of this Cherokee girl facing a likely increased difficulty in connecting with her tribal culture and tribal family. I say “likely” because my sincere hope is that wherever Baby Veronica is, she be given the opportunity to connect with her Cherokee community and engage with Cherokee culture. But, this is difficult because engaging with one’s tribal community culture, I’ll generalize briefly here, entails interaction with family. The presumptive adoptive parents may not be inclined to encourage Baby Veronica’s connection to her biological father’s family. This, I might add, was a fundamental purpose of the Indian Child Welfare Act—to protect tribal culture. This is perhaps another benefit of the Majority’s use of “3/256,” to try and differentiate the statute’s purpose—protecting Indian children and tribal culture—from the facts of the current case, i.e. Baby Veronica isn’t really an Indian.
Baby Veronica is, or is eligible for, enrollment as a citizen of the Cherokee Nation of Oklahoma. By the way, the Cherokee Nation isn’t like your local public library—not just anyone can join. It’s like the United States. Not everyone can join us here—the U.S. has citizenship requirements. It would be unintelligible to say that someone is 3/256 American, right? You either are or are not a citizen of a nation. The usage of blood quantum in this way by the Majority conflates Indian identity and tribal citizenship. Scholars of all types (legal, humanities, and social sciences) continue to grapple with these concepts and recognize the entanglement of the racial and political. An example might help.
Some individuals may have a parent enrolled as a tribal citizen but the Tribe’s citizenship criteria may be such that the child is not eligible for citizenship. Nonetheless, the non-citizen child lives in the tribal community, participates in cultural activity, and is by all accounts a member of the tribal community. The child identifies as an Indian, but is not a tribal citizen. This is not that radical of an idea. There are thousands of people in this country that recognize their underlying national heritage (speak the language, celebrate the national holidays, etc) but are not eligible for citizenship in that country. I fully concede that this is an easy error to make. Furthermore, Indian identity politics, tribal enrollment (and disenrollment) issues, and indigenous citizenship are extraordinarily complex and extremely sensitive. Professor Sarah Krakoff has an excellent article out that gives these concepts far better treatment than I have done here. These complexities, however, provide all the more reason for the Court to avoid becoming (needlessly) embroiled in them while perpetuating misconceptions about Indians.I make these observations to point out that there remains a fundamental and likely widespread misunderstanding, or innocent ignorance, of Indian-ness.
As I said above, there are racial and political components to current conceptions of Indian tribes and tribal member. This problem will continue to impair tribal performance in the courts on issues like this in the future. Until people stop conjuring up images of Johnny Depp as Tonto (opens July 3rd!) or the Washington Redskins when they hear the word “Indian,” this isn’t going to change. I promise--this is not an anti-Indian mascot post. But I do believe that the recent attention given to the Washington Redskins logo and trademark illustrates the larger problem regarding misconceptions about Indian identity and tribal communities. The issues with the imagery of Tonto, the Redskins, and the Majority’s emphasis of Baby Veronica’s blood quantum are all manifestations of these misconceptions and continue to harm Native people.
I’ll end on this brief personal note. I’m an enrolled member of the Chickasaw Nation of Oklahoma, and grew up in Oklahoma. I have two young children and my hope is that they encounter the statement, “you don’t look Indian,” less than I did. That statement questions a person’s Indian-ness in the exact same way the Majority utilizes Baby Veronica’s blood quantum to delegitimize her status as an Indian. If they hear that less, it means we are moving in the right direction. The continuing misconceptions about Indian-ness are not going to go away anytime soon. But, I think that open discussions about the issues are essential to reform—even if we don’t have the right answers yet. Such a process yields benefits to everyone, Indians and non-Indians alike.
Initial Hollingsworth question
Many people are going to be talking about the line-up in Hollingsworth: The Chief was joined by Scalia, Ginsburg, Breyer, and Kagan in saying no standing. Justice Kennedy, joined by Thomas, Alito, and Sotomayor, argued the proponents had standing, although without subsequently discussing the merits, which seems highly unusual. (Does anyone know how often that happens, that in a case dismissed on jurisdictional grounds, the dissent will insist there is jurisdiction, but then not reach the merits?)
Update: Some readers suggested past standing cases to look at and it appears that it is common practice for the dissenters not to reach the merits, even if they would have found standing. One exception is Justice Stevens' dissent in Raines v. Byrd, although he announced his view of the merits in one sentence that largely tied the merits to standing. In a separate dissent in that case, Justice Breyer espressly declined to discuss the merits because the majority had not discussed the merits and he chose to "reserve" his views for future argument. I still believe there is a nice normative question of whether that is how dissenters should approach cases, but I will reserve that for future days.
So what happened internally? Assuming that Ginsburg, Breyer, Sotomayor, and Kagan all would find marriage equality required by the Fourteenth Amendment and since Kennedy agreed there was standing, why wouldn't those five join to invalidate Prop 8 on the merits? Was Kennedy not willing or ready to go along? Could they not agree on a rationale? Am I falling into the trap of making every justice results-oriented and not giving Ginsburg, Breyer, and Kagan credit for genuinely being troubled by the Article III concerns?
DOMA violates Fifth AmendmentWindsor (Kennedy for 5; Roberts, Scalia, Thomas, Alito dissent). Waiting on Hollingsworth, although language from the Roberts dissent in Windsor indicates that case dismissed on standing grounds.
Update: Yep--Petitioners in Hollingsworth lacked standing to appeal the district court decision. Roberts for five; Kennedy dissents, joined by Thomas, Alito, and Sotomayor.
Monday, June 24, 2013
The procedure of Title VII
Given my limited knowledge of the details of Title VII, I will not delve too deep into the details of either Vance v. Ball State University (only those with hiring/firing authority qualify as supervisors) or Univ. of Texas Southwestern Med. Ctr. v. Nassar (but-for cause required for retaliation claims). Instead, I wanted to note the role that procedure plays in both decisions.
Justice Alito's majority opinion in Vance insists that the Court's (seemingly) simpler definition of superviso will be more readily applied to resolve disputes prior to trial--primarily on summary judgment, although it hard not to see this trickling back into Twiqbal-tinged 12(b)(6) decisions. Similarly, Justice Kennedy in Nassar insists that a lesser causation standard makes it "far more difficult" to "dismiss dubious claims at the summary judgment stage" (emphasis addd--is it any wonder our students confuse those terms?). It is not sufficient that the employer could "escape judgment after trial."
The logic here calls to mind Harlow v. Fitzgerald, in which the Court adopted a purely objective standard for qualified immunity in § 1983/Bivens actions precisely because it would allow more claims to be resolved at summary judgment. But qualified immunity is an affirmative defense vesting in defendant officers a right not to litigate, purely for instrumental reasons--freeing them to focus on serving the public interest without having to deal with the distraction or chilling effect on governmental conduct. One can disagree with that doctrinal logic. But even accepting that, this is vastly different than saying that every defendant has a right to avoid liability prior to trial and that the substantive claim-creating legal rules (as opposed to an affirmative defense) should be interpreted in such a way explicitly to preserve that right. It no longer is enough that the "correct" party prevail--they now must prevail at the right point in litigation.
The other thing flowing through both opinions is concern for juror confusion and the need to make cases easier to grasp and decide. In particular, Alito emphasizes the need for "reasonably clear jury instructions in employment discrimination cases." Of course, the need to make jury instructions more comprehensible does not mean the need to simplify (if not "dumb-down") the substantve law itself. Jurors are capable of understanding and applying difficult legal concepts; the call from scholars has been to present and explain those concepts to the jury in a clearer way.
Alito also insists that "the danger of juror confusion is particularly high where the jury is faced with instructions on alternative theories of liability under which different parties bear the burden of proof." But on that logic, we should never have jurors deal with affirmative defenses or counterclaims, which necessarily involve different parties carry different burdens of proof. In any event Nassar itself presents the very problem by imposing different causation standards for substantive claims and retaliation claims; as Justice Ginsburg argues in dissent, those types of claims often (as in Nassar itself) are regularly brought together. In other words, contrary to what Vance suggests should happen, Nassar means jurors will have to deal with different theories of causation fairly regularly (unless, of course, the new but-for standard succeeds in keeping retaliation cases from ever reaching trial).
Thursday, June 20, 2013
Judicial rhetoric in AID
SCOTUS today decided Agency for Int'l Development v. Alliance for Open Society In'tl, holding 6-2 (per the Chief; Scalia dissenting, joined by Thomas; Kagan recused) that requiring a recipient of federal HIV/AIDS funds to adopt a policy opposing prostitution violates the First Amendment. I don't have a lot to say about the opinion, other than it is interesting to see Rust v. Sullivan once again discussed as a funding case and not a government-speech case (which it had sort of morphed into). Instead, I just want to draw attention to the language and rhetoric flying around both the majority and dissenting opinions.
Justice Jackson and the 70-year-old Barnette get some love from the Chief. After saying that the program "requires [recipients] to pledge allegiance to the Government's policy," Roberts insists that "we cannot improve upon what Justice Jackson wrote for the Court 70 years ago," going into Jackson's "fixed star in our constitutional constellation" quotation.
The Chief also throws in his usual turns of phrase--"an offer that cannot be refused", funding activities "on its own time and dime", as well as the "pledge allegiance" line above. These are becoming quite common in Roberts opinions, especially his First Amendment cases. I still cannot decide if they are distracting or make for good judicial writing.Of course, Roberts cannot hold a candle to Justice Scalia in this respect, especially when Scalia is in dissent and is not trying to guide lower courts or hold a coalition together and can go with guns blazing. Thus, the majority "pussyfoots" around the issue of coercion (or lack thereof) in the funding program and it makes a "head-fake" at unconstitutional conditions. The idea behind the limitation--government enlisting the aid of those who support its ideas--is a "matter of the most common common sense." And the "elephant in the room" is that Government does not really force anyone to do anything by denying funding. (On that last one, I appreciate that Scalia did not mix his metaphors by either making the elephant pink or having it weigh 800 pounds).
Scalia is especially hot in creating hypotheticals. He uses Hamas as an example of an organization that is quite good at distributing public welfare, but reasonably could be excluded from a food-distribution program (even if Hamas were a U.S. organization). Or he insists that a "federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it." Or note the examples he uses to show that government funding of a particular viewpoint obviously discriminates against those who disagree--"Anti-smoking programs injure cigar aficionados, programs encouraging sexual abstinence injure free-love advocates." That last one was striking--the opposite of sexual abstinence is free love and not those who recognize sex as a part of any monogamous relationship? And does anyone even use the term "free love" anymore?
Also, recall that last week in Myriad Genetics, Justice Scalia refused to join the portions of the opinion discussing details of genetics and molecular biology, some of which seemed fairly anodyne. There has been some discussion about Scalia's apparent uncertainty about the science. Well, his AID dissent shows he has no such hesitation (humility?) about economics ("Money is fungible. The economic reality is . . . they can expend greater resrouces on [other] policies. . . . [T]his is a real and obvious risk.") or communicable diseases ("prostitution, by which HIV is transmitted").
Finally, a more substantive point. I quote Scalia's closing flourish because it does say something about his views of government programs and unconstitutional conditions:
Americans need not support the Constitution; they may be Communists or anarchists. But “[t]he Senators and Representatives . . . , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support [the] Constitution.” U. S. Const., Art. VI, cl. 3. The Framers saw the wisdom of imposing affirmative ideological commitments prerequisite to assisting in the government’s work. And so should we.
In other words, all who work on the government's behalf or support are just like government officials and can be subject to the same limitations as those who are, by virtue of their elected or appointed position, actually wielding government power. Is that right? And should it be? And, if taken literally, what does it mean for other sreas of the law? For example, should a recipient of federal funds now be treated as a state actor for 14th Amendment/§ 1983/Bivens purposes?
Wednesday, June 19, 2013
Can We Justify How Criminal Justice Authority is Allocated Across Jurisdictions?
Blogging, young kids, and flu season: apparently only two of the three can co-exist at one time, at least in my house. Anyway, in my last post, I asserted that the decentralized nature of our criminal justice system has played a major role in driving up prison populations. In this post, before looking at the problems with decentralization, I wanted to think about whether we can justify such a system, and ask whether the problematic decentralization seen in criminal law is prevalent elsewhere as well.
As an economist, the strongest justification I can see for federalism1 relates to externalities. At least as a starting point, issues should be dealt with by the smallest jurisdiction that completely contains the problem. Obviously, there are clear counterarguments—economies of scale, coordination problems, etc., etc.—against having too many levels of government. But since here I’m basically looking at city, county, and state governments, it seems like a reasonable place to start.
The division of labor we see is basically this: local communities such as cities are responsible for enforcement, counties are in charge of bringing cases and incarcerating misdemeanants, and the state is responsible for incarcerating felons and, via the state criminal code, defining the basic substantive and punitive rules.
Yet what is striking is how remarkably local and concentrated crime is.Nearly half of all crime in the United States takes place in just 75 counties (see the codebook here)—or just over 2% of the 3,143 counties in the country. Within these counties, crime is concentrated in the urban areas. And within these urban areas, crime is heavily concentrated at the block-by-block level. One study of Seattle, for example, revealed that over a fourteen year period, over 50% of all crime took place in just 4% to 5% of city blocks each year, and 100% of crime each year took place in just about half of all city blocks; over 22% of all city blocks never experienced a crime during the whole sample period. Similar results have been found in other cities as well.
Yet even the idea of “good” and “bad” neighborhoods understates the concentration of crime. As David Weisburd explains elsewhere:
In what are generally seen as good parts of town there are often streets with strong crime concentrations, and in what are often defined as bad neighborhoods, many places are relatively free of crime.
In fact, so concentrated is crime that Lawrence Sherman has argued that we should think more about “wheredunit” than “whodunit”: tell me that a mugging happened, and I am better able to guess where it happened than who did it.
Furthermore, not only is crime quite local, it seems to be fairly immobile: evidence suggests that for most crimes displacement is not a major concern. Weisburd and others have shown that even within a high-crime neighborhood, concentrated enforcement at a particular crime hot-spot does not appear to displace crime to other, nearby blocks. The hotspot is a hotspot for a reason: there is something about that block—its architecture, its lack of light, etc., etc.—that makes if favorable for, or even encourages, criminal conduct.
Of course, some crimes are more displaceable than others. The low-level drug dealer may not move a few neighborhoods over to sell more drugs, but cartels will reroute their distribution networks through entire new countries if need be. (This perhaps suggests why we see many regional drug enforcement task forces.) And the fact that a majority of violent crime victims know their attackers suggest that much violent crime is localized, while something like terrorism is perhaps much more likely to respond to changing enforcement patterns.2
But, in general, crime is a fairly local, stable (if destabilizing) problem.
Given this, it is hard to immediately justify the way in which we have allocated responsibility for criminal justice issues. Why should county officials decide which offenses deserve prosecutorial attention? Why should state officials decide what crimes deserve longer punishments—and should we even want such one-size-fits-all sanctions? Should crimes in Utica face the same sanctions as those in New York City? (Or is this a defense of plea bargaining, which allows local officials to craft local sanctions from state-level starting points?)
Even California, the one state to seriously rethink this allocation of powers via its Realignment program, does not seem to address these questions well. Realignment will require counties to incarcerate “triple-nons”—non-violent, non-serious, non-sex-offense-registered offenders—in county jails, even for long terms. But what exactly is the relationship between severity and externalities? I can see traces of complicated arguments that could provide some support, but nothing like a slam-dunk.3
There may be some normative arguments for our current system, but these do not feel all that appealing either. Maybe we think it would be offensive if Utica set a much lower punishment for, say, domestic abuse than New York City. But we let the various states set different punishments for such crime, so what is the difference between Utica/NYC and New York/New Jersey?
And it is hard to see a real efficiency argument, either. Perhaps criminal codes are expensive and difficult to write. But then why not have the state write the code and allow local communities to adopt and amend as they see fit, at least for those offenses that seem least displaceable?
But this is an issue that I have not given as much thought to as others, so I would love to hear about justifications that I’m missing. And I’m curious: how big a problem is misdesigned federalism (again, at the local-state level) in other areas of law? Is this a big concern in, say, environmental law (where the externalities seem more obvious and pervasive to me) or labor law? I’d love to hear from people who study other areas of law about whether similar concerns arise there, or if criminal law has a uniquely poorly allocated division of responsibility.
1I’ll use “federalism” here because it is easy. Given the central role of states in criminal justice policy, “statism” is probably more accurate, but more confusing as well. So the “federal” divides I’m looking at here are city/county and county/state far more than state/federal.
2For a cynical take on this, see Robert Wright’s 2002 column about the need for the US to keep its allies close in the wake of the September 11, 2001 attacks: the less our allies are associated with us, the more likely terrorist retaliations will be concentrated on US targets. His title says it all: “Friends as Flak Jackets.”
3And there could be a serious problem here. As David Ball’s work has shown, Californian counties differ greatly in their innate “punitiveness” towards all offenders, violent and otherwise. And as I’ve shown here, the incarceration of violent offenders has been the majority cause of prison growth. So Realignment appears to fail to realign costs and benefits for the very offender class most responsible for rising incarceration rates.
Making easy cases complicated
The Tenth Circuit last week decided Cressman v. Thompson, reversing the 12(b)(6) dismissal of a complaint challenging, on First Amendment grounds, the "Sacred Rain Arrow" image on Oklahoma's license plates. The decision, while correct, seems a lot more complcated than it needed to be on several lines, but also illustrates some interesting points.
1) The court spends some initial time on standing, not because there is any real doubt about an injury, but over whether the six state officials were the proper defendants, which the court squeezed into the traceability prong. In other words, the court treated as part of traceability (i.e., causation) whether each named officer defendant is responsible for enforcing the allegedly unconstitutional law that the plaintiff is challenging.
But this strikes me as another example of standing swallowing the entire analysis in anticipatory constitutional litigation. In damages actions, the suability/liability of the defendant under the applicable law is a merits issue; there is no reason for it to become an Article III issue in an Ex Parte Young equitable action such as this. The court does acknowledge the overlap between standing and Ex Parte Young/sovereign immunity, as the propriety of the named defendant is the "common denominator" of both inquiries. To me, however, that just shows that what should be a single merits inquiry--who is liable to the plaintiff--is being misconstrued in jurisdictional terms under multiple doctrines.2) There is a lot of discussion of Twiqbal plausibility over what should actually be legal issues and conclusion--whether the picture is symbolic speech (because it would be understood as stating a particularized message) and whether having to display the image (or pay extra money for a specialty plate) constitutes compelled speech under Wooley v. Maynard. None of these are facts subject to plausibility analysis. The court should not be concerned with the plausibility of the plaintiff's legal arguments, only the correctness of those legal arguments. All the plaintiff should have to plead is that he is being made to display the symbol or pay money to avoid displaying it (which really is unconstested); the rest is legal analysis.
3) This case does expose a few problems with various aspects of speech doctrine. One is how clear or articulable a drawing or symbol must be to constitute symbolic speech; there is a split as to the effect that Hurley (which held that speech need not contain a single clearly articulable message) has on Spence (which suggest that symbols must in order to be protected). Another is whether recent government speech cases undermine or overrule compelled speech cases such as Wooley. A third, which the court was more emphatic, is whether Wooley applies to all compelled messages or only ideological ones (the district court read Wooley to apply only to ideological messages, such as "Live Free or Die"). The court mostly avoided resolving these legal issues by falling back on the plausibility of the plaintiff's allegations.
This case really does not appear to be a close First Amendment cases--it is as close to being on all fours with Wooley as one can get and I frankly am surprised a state would still believe it could compel someone to display any message on a license plate. For whatever reason, both the district court and the court of appeals (even in reaching the right conclusion) made this case more difficult than it needed to be.
Tuesday, June 18, 2013
Repealing the Federal Eminent Domain Power
Ilya Somin notes the renewed House action on the Private Property Rights Protection Act, a federal bill that would eliminate funding for economic development takings like those that would be forbidden by the Kelo dissent. As Ilya also notes, the bill seems unlikely to become law, but the fact that there is any activity at all is a sign that at least some members of Congress would like to cast a symbolic vote for narrowing eminent domain authority, even if it's an authority that the judiciary has upheld.
If so, may I suggest a new way for members of Congress to do that? By repealing the federal eminent domain power. Since 1875, the Supreme Court has held that the federal government has the power to take land through eminent domain. But as I explain at length in the most recent issue of the Yale Law Journal, that decision was probably wrong as an original matter, and was certainly inconsistent with the very widespread understanding and tradition from the Founding until the Civil War. Congress repeatedly avoided using eminent domain (except in the District and territories); when it needed land, the states took it. Even the Supreme Court agreed.
The most that can be said for the modern understanding is that the Supreme Court has upheld it. But the supporters of the Private Property Rights Protection Act have shown that they're willing to pursue their own views of the proper scope of eminent domain, even if the judiciary would uphold a broader one. So perhaps
If that's too radical, there's an alternative. Current federal law doesn't require any specific Congressional authorization for a federal taking. Under 40 U.S.C. 3113:
At a minimum, the House could propose a bill repealing this statute, and requiring that exercises of constitutionally dubious federal eminent domain authority be specifically authorized by Congress.
An officer of the Federal Government authorized to acquire real estate for the erection of a public building or for other public uses may acquire the real estate for the Government by condemnation, under judicial process, when the officer believes that it is necessary or advantageous to the Government to do so.
Monday, June 17, 2013
I've noted a few of these points already on Twitter, but here are some items of minor interest to me in this morning's decisions from the Supreme Court. (For more thorough coverage, go to SCOTUSBlog; for my own more thorough thoughts, come visit here later.)
- Justice Thomas writes an opinion joined by the four "liberal" Justices. I can't think of a time this has happened since Atlantic Sounding v. Townsend and United States v. Bajakajian, and both of those were before Justices Sotomayor and Kagan joined the Court. If that's right, I'm pretty sure this is the first time Justice Thomas has assigned a majority opinion as the senior-most Justice. [UPDATE: As a commenter points out, not actually the first time for a CT assignment, or even for this lineup. But still unusual.]
- It's interesting that Justice Alito launches a full-on criticism of Apprendi in his dissent (including a citation to the brilliant Jonathan Mitchell, former GMU law professor and current SG of Texas); but it's also interesting that none of the other dissenters (including the Chief and Justice Kennedy) join in.
- Not for the first time, I despair of the Court having a coherent theory of stare decisis. Not that there aren't coherent theories, just that the Court doesn't have them.
- Justice Thomas's reiterated suggestion that Griffin v. California should be overruled reminds me of why I like Justice Thomas so much.
- Admin law scholars or ambitious students looking for a nice essay topic, see footnote 10: "The [Commission] currently lacks a quorum—indeed, the Commission has not a single active Commissioner. If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to 'compel agency action unlawfully withheld or unreasonably delayed.' 5 U. S. C. §706(1). It is a nice point, which we need not resolve here, whether a court can compel agency action that the agency itself, for lack of the statutorily required quorum, is incapable of taking."
- Justice Thomas's willingness to break the don't-cite-Bush-v.-Gore taboo is another reason I like Justice Thomas so much.
- That's a lot of citations to legal scholarship in the majority opinion. (I counted 18, but I was counting quickly, and there were a lot of repeat citations to Areeda and Hovenkamp.)
- I was skimming the opinion without noticing who was the author until I got to page 26: "The amount of damages sought in the complaint is based on the number of persons,over 30,000 individuals, whose personal and highly sensitive information was disclosed and who were solicited. Whether the civil damages provision in §2724, after a careful and proper interpretation, would permit an award in this amount, and if so whether principles of due process and other doctrines that protect against excessive awards would come into play, is not an issue argued or presented in this case." Must be Justice Kennedy! I thought.
- The fearsome foursome of Scalia, Ginsburg, Kagan, and Sotomayor are once again in dissent.
Thursday, June 13, 2013
Selling Made-To-Order Embryos and the Split on the Right
The New England Journal of Medicine will soon have in print an essay by Eli Adashi and I on the sale of "made-to-order" embryos. The article "Made-to-Order Embryos for Sale — A Brave New World?" has been online for a while already and concerns a recent development in the reproductive technology industry. As we put it:
The proliferation of commercial gamete sources (e.g., sperm and oocyte banks) has opened the door to a made-to-order embryo industry in which embryos are generated with a commercial transaction in mind. This prospect of a for-profit embryo bank is no longer theoretical. Indeed, as recently as November 2012, the Los Angeles Times reported on one such clinic that “sharply cuts costs by creating a single batch of embryos from one oocyte donor and one sperm donor, then divvying it up among several patients.” The report went on to state that “the clinic, not the customer, controls the embryos, typically making babies for three or four patients while paying just once for the donors and the laboratory work.”
Our essay reviews the legal regime that governs it (short answer, in most states it is not illegal or even regulated) and then considers the ethical premissibility of this practice. We examine objections to the practice premised on crowding out of embryo donors, the exploitation or undue inducement of donors, the corruption of reproduction (this is sometimes called "commodification" thought I think that term represents a broader set of arguments, so I use "corruption" in my work to capture the value-denigrating objection specifically in its intrinsic or consequentialist form), and the furthering of eugenic objectives. Throughout the short essay our argumentative strategy is to press on whether this new practice is all that different from existing practices, epsecially the sale of sperm and egg which individuals can themselves put together to create embryos for reproductive use or to destroy in the generation of embryonic stem cells as well as the practice known as 'embryo adoption' or 'embryo donation.' The thing we think is newest here is actually issues related to lack of guidance on the parentage and ownership of embryos in the event of clinic bankruptcy, changes in minds by the donors, or dispositional conflicts (though John Robertson has suggested the law may be more certain than we posit).
The article is short, limited to 1500 words, so obviously we couldn't tackle everyhting. What has been most interesting to me has been a split of opinion on the article in the righter wings of the blogosphere.
The American Enterprise Institute published commentary on our article "'Walking the Ethical Edge: Made to Order Embryos Address Genuine Needs'" beginning with a view that we own our own bodies and pressing on justifications for prohibiting voluntary transactions, concludes our article "offer[s] a thoughtful guidance through the ethical thicket of embryo donation," and that "arping about or in some cases ignoring the failures of the current IVF system, seems the preferred choice for those opposed to even debating the benefits and challenges of a for-profit embryo market. Unless we as a society are determined to reserve the right of reproduction by infertile couples to the wealthy, we should welcome options."
By contrast, the National Review Online has an article "Made To Order Commodities Market" with a more negative reaction. The author claims we've engaged in "sophistry [that] has always been the anything goes in biotech crowd’s primary tool"and concluding ominously "Make no mistake: This means human cloning is coming closer, as selling embryos for use in IVF is just the front for selling cloned embryos for use in research." The author seems to agree with us for the most part that the distinction between existing practices and this new one is thin[fn1] , but would have us reverse those other practices. That is fair enough. We employ an argument from symmetry here and it can be resolved either way, and we don't actually take a position as to whether these technologies should all be permitted or all prohibited just that they are hard to distinguish (that said, anyone who knows my own work can suspect where I would come out, I can't speak for my coauthor on this!)
Both commentaries are interesting and worth reading. What is more interesting to me is the way in which debates on reproductive technology usage, much more so than abortion, really does cleave the right into two. The libertarian wing wants a strong justification for limiting reproductive choices like other choices about what to do with our bodies and likens the debate to that on organ sale. The more socially conservative wing sees this the beginning of slouching towards gommorah. On abortion this fissure is easier to solve, since the claim of fetal personhood allows more libertarian oriented thinkers to adopt Harm Principle type justifications of preventing harm to fetuses as persons . As I noted in blogging about personhood on my last visit, embryonic personhood claims may be harder to sustain, and thus the consensus more easily shattered. I am part of a project looking at the intersection of abortion and reproductive technology advocacy and scholarship, so this room for schism is something I may write more about soon.
[fn1]: The author does suggests that sperm and egg sale are different because there is no "nascent human being." I think he means "person" not "human being" and I've blogged about why that distinction might matters in my last visit and also why one might support certain theories of when personhood begins over others. In any event the theory of personhood the author implictly champions would seem not to distinguish the existing possibility of preembryo destruction, indefinite freezing, stem cell derivation, etc.
Wednesday, June 12, 2013
A tale of two pleadings
Two lawsuits have been filed (so far--expect more) challenging the NSA's "dragnet" surveillance program. The first is Klayman v. Obama, filed in the District of the District of Columbia; the lead plaintiffs are Larry Klayman, the head of judicial watch, and Charles and Mary Ann Strange, the parents of a Navy SEAL killed in Afghanistan, on behalf of all other Verizon customers. The second is ACLU v. Clapper, filed in the Southern District of New York; the plaintiffs are the ACLU and the NYCLU, for themselves as Verizon customers who communicate with members, clients, whistleblowers, and others.
It is worth comparing very different approaches to pleading and to this case. It might even be a worthwhile lesson for class.1) There is a ton of extraneous noise in the Klayman complaint. It spends time talking about how Klayman and the Stranges have criticized the President. There is a lot of rhetoric about "beyond an 'Orwellian regime of totalitarianism'" and how the "only purpose of this outrageous and illegal conduct is to intimidate American citizens and keep them from challenging a tyrannical administration and government presently controlled by the Defendants, a government which seeks to control virtually every aspect of Plaintiffs, members of the Class, and other American's lives, to further its own, and Defendants 'agendas'" and how this is part of a "pattern of egregious ongoing illegal, criminal activity." Obviously this is all intentional and strategic--an example of what Beth Thornburg has called "pleading as press release." That "tyrannical administration" stuff is going to make for great soundbite, which Klayman almost certainly wants. But it is all legally irrelevant and almost certainly will have no effect on the factfinder. Even the request for damages--in excess of $ 3 billion--seems more designed to get reported on conervative blogs than to actually form the basis for recovery.
This contrasts with the ACLU complaint, which is straightforward and low-key. But the contrast illustrates a genuine strategic and pedagogical question: Does such rhetoric have a legitimate place? And how should we teach students about this, both in teaching pleading in Civ Pro and, more so, in specifically teaching about constitutional litigation in Civil Rights or Fed Courts? Is it comparable to the rhetoric we see in judicial opinions, especially dissents? Or does the comparison fail because judicial opinions are directed outward (to the public, future courts, and future litigants) while pleadings are (or should be) directed only to this court and the parties? One criticism of legal education is that we beat the passion out of students. Should we teach and encourage the sort of empassioned and emotional rhetoric we see in the Klayman complaint? Or should we teach them that there is a time and place--and a complaint is not it.
My instinct is that a pleading is not the appropriate time and place. I always am bothered by the sort of over-the-top language you see in Klayman and would strongly encourage students against this type of thing. Were I the judge, the plaintiff would lose a great deal of credibility with me.
2) Klayman has a lot of legal mistakes (or at least defects), particularly with respect to the effort to get damages. It includes a Fifth Amendment due process claim, which should not be available; substantive due process yields when more specific rights are implicated, such as the First and Fourth Amendments (both of which are pled here). It seeks damages from all defendants, including President Obama, which is, of course, impossible. It asserts state tort claims against all the individual defendants, rather than against the United States, as required by the Federal Tort Claims Act. It asserts a claim against Judge Vinson, the judge FISA Court judge who approved the request, who should have judicial immunity. There are potentially the same problems of supervisory liability that we saw in Iqbal, although a policy is clearly at issue here.
And this one is admittedly nitpicky, but it repeatedly cites Bivens as Bivens v. VI Unknown Named Agents (emphasis added). Are we suddenly in Rome (insert dictatorship joke here)? Or is this the result of some bad "change all"? Obviously, this complaint was drafted in a fairly short time. Still, should we expect more from attorneys? Again, it is about credibility with the judge.
3) The ACLU complaint is as close to one of the Forms as you are likely to see in modern times. It is short--only 38 paragraphs. It doesn't separate into several individual causes of action, with incorporation-by-reference of prior allegations; instead, it simply lists, in separate paragraphs, the three legal rules violated by the program (First Amendment, Fourth Amendment, and a federal statute).
4) Can the plaintiffs in either case establish standing under Clapper? Both sets of plaintiffs should be able to survive the "certainly impending" requirement; because the very nature of the program was to look at all Verizon customers, so any Verizon customer should have standing (perhaps even any customer of Spring and AT&T, as well). But, again, is it that simple? And doesn't that mean that plaintiffs are only going to be able to challenge extraordinarily overbroad programs, but not a slightly narrower one?
Monday, June 10, 2013
Cert. denied in gruesome images case
SCOTUS today denied cert. in Scott v. Saint John's Church in the Wilderness, involving an injunction against "displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age" in an area near a church just before, during, and just after worship times. Jessie Hill wrote about the case last month.
In my recent article on the jurisdictional issues in New York Times v. Sullivan, I argued that SCOTUS has a less-than-stellar recent record of keeping an eye state courts adjudicating First Amendment defenses in state-law claims. Although a case such as Scott still would have been reviewable only on certiorari (and not subject to mandatory review) even prior to 1988, the Court in past years was more willing to hear cases such as this one. Particularly where the lower court decision seems to fly in the face of two recent decisions (Snyder and Brown). State courts also seem increasingly willing to issue anti-speech injunctions, with SCOTUS not inclined to monitor them closely.
This denial also shows the Court backing away in the First Amendment area. In its first few years, the Roberts Court seemed inclined to take a lot of cases in this area, particularly free speech, deciding 10 or 15 cases some terms. This past term has one free speech case (and we are still awaiting a decision); next term so far has one Establishment Clause case. I wonder why the change.
Monday, June 03, 2013
Three Reflections on the MOOC Debate
Maybe it is because I teach in close proximity to edx, but I have been having more and more conversations with other academics and with non-academics about Massive Open Online Courses, or MOOCs. I actually don't yet have strong views on the subject, which may make me part of a minority, but I have noticed a couple of pathologies in the way people discuss these MOOCs and the threat/promise they have. Here are three:
(1) A failure to disentangle distributive impact from merit of MOOCs:
Let's face it, a big piece of the MOOC debate is distributional. Most of us who entered academia did so because we liked it in its current incarnation. In a world where MOOCs took over in any substantial part, many of our jobs would cease to exist and/or would change dramatically. As status quo entitlement holders we can all certainly complain about that fact, as could our students. That may be a worthwhile debate to have, but it is quite different from the debate about whether MOOCs are a good idea independent of this retroactivity problem.
One way I often try to engage people on this subject is to ask them to imagine that we were at Time Zero, on a blank slate, and creating the first universities for our day and age. We would then ask: what elements of MOOCdom would be optimal with its attendant effects on cost. Only by doing so can one potentially trade off any negative distributional effects to current entitlement holders against potential benefits (or costs) of the system on its own merits, and evaluate whether a CHANGE is worthwhile. That's not rocket science as an analytical separation, and yet many of the people I talk with on this issue are unable to separate out the issues.
(2) A failure to recognize that much of what is at stake is the unbundling of the university and the cross-subsidization in the status quo arrangement.
The modern research university, in part, cross-subsidizes research through the payment for teaching by students. While students partially internalize the value of that research (both in terms of being taught by those doing the leading edge stuff and by the prestige it brings to the institution) there is no doubt that much of the value of that research is externalized, generating a kind of public good. MOOCs may threaten that by having fees pay for teaching much more directly without the research -- I say *might* because it is hypothetically possible, though unlikely in the current climate to be sure that MOOCs might free up more time for research by allowing professors to spend less time in the classroom by recording their lectures only once rather than constantly performing it (more on that in a moment), though in the current climate that is highly unlikely. The move to adjuncts, heavier teaching loads, more heavy TA usage, etc are much more direct moves in this direction. This kind of move has analogues in many other professions -- for example using nurses and physicians' assistants instead of doctors where possible, and as it was there it is aimed primarily at cost savings.
The only point I want to make is that the optimal amount of cross-subsidization of research through teaching -- again putting to one side the distributional question of what happens to status quo entitlements and instead starting at day zero -- is not altogether obvious. To the extent what is threatening about MOOCs is that they may reduce that cross-subsidization and thus lead to the generation of less research, then THAT is the debate to have.
(3) What is so great about the traditional live lecture?
I don't teach by lecture. In fact, portions of my civil procedure course that I would lecture through if forced to do so are ones I usually instead put on handouts for students to read on their own, since I think it is a better use of both of our times. Still, I am prepared to accept that in many instances a lecture may have pedagogical value, especially if it is delivered in an inspiring sort of way. What I don't understand, and have yet to get a good defense of, is why the value of those lectures requires it to be live?
Now as someone who loves the theater I can appreciate the difference between seeing Henry V live versus those wonderful 1970s-80s BBC Shakespeare versions. However, whatever "performance" value live lectures have of that sort strike me as a fairly light benefit if costs could be dramatically cut. Again, it may be that many academics who are most against MOOCs engage in just this kind of live lecture, and the possibility of recording it rather than doing it every year would have significant threats to their livelihood. Fair enough. But that is different from mounting the defense against MOOCs on the pedagogical advantage of such live lecturing.
If that defense is out there, I would like to see it. If not, then it seems to me that whether a MOOC is a step down pedagogically, and whether it is such a huge step to justify the increased cost, will depend on how much non-lecture content professors currently bring in. I use the Socratic method or teach classes that are very discussion oriented, things much harder to reproduce (or so I think!) in MOOC land and that have (or so I think, I've not run a randomized trial to find out!) pedagogical value above and beyond a straight lecture. So my defense of resisting MOOCs (again at time zero) would have to be that the pedagogical value added over a recorded lecture is great enough to justify the extra expense. Could I mount such a defense successfully? I'd need to know more about the cost vs. learning trade-offs, but I think this would be the right way to think about it.
* * *
None of this is to say yay to MOOCs. I think there are significant potential problems with the MOOC model, most interestingly the risk of homogenizing education. I have an Orwellian picture of every Civil Procedure class doing the same MOOC segment at exactly the same time around the U.S. year in and year out. But I think it is important to focus on these and other arguments clearly and this is my own (modest) attempt to sort argumentative wheat from chaff.
I am sure many will disagree and look forward to hearing your thoughts.
- I. Glenn Cohen
Tuesday, May 28, 2013
Two high-profile federal trials are currently challenging controversial law-enforcement practices. In Arizona, District Judge G. Murrary Snow enjoined Maricopa County Sheriff Joe Arpaio's programs aimed at stopping and detaining undocumented individuals, finding that the program involved racial profiling in violation of the Fourteenth Amendment and that the sheriff lacked authority to seize people on nothing more than reasonable suspicion of being in the country unlawfully. In New York, District Judge Shira Scheindlin is presiding over a trial challenging NYPD's stop-and-frisk policies and is widely expected to hold that the program is unconstitutional, also under both the Fourth Amendment and equal protection.
One question: How do the plaintiffs have standing in either case? Both cases are class actions, brought on behalf of all persons who will be subject to these various programs; for example, the Arizona action was on behalf of “[a]ll Latino persons who, since January 2007, have been or will be in the future stopped, detained, questioned or searched by MCSO agents while driving or sitting in a vehicle on a public roadway or parking area in Maricopa County Arizona.” The lead plaintiffs in both cases are individuals who have been subject to these unconstitutional law-enforcement programs in the past. No damages are sought in either case, only declaratory and injunctive relief.
But Clapper and Lyons seem to suggest that a plaintiff can obtain standing to challenge law-enforcement policies only by showing a certainty or high likelihood that they will be subject to enforcement efforts in the future. Even accepting the breadth of the challenged municipal policies, standing requires that this plaintiff show that he himself will be subject to enforcement efforts pursuant to those policies. And Lyons tells us that past harm is not sufficient to establish future harm; that someone was subject to unconstitutional enforcement efforts in the past (as was the plaintiff in Lyons, as well as the lead plaintiffs here) does not mean he will be subject to enforcement efforts in the future.
So how is either case different than those precedents for standing purposes? The only apparent difference is that both are class actions, while neither Clapper nor Lyons was. But should that be enough for Article III purposes? That seems to place a lot of substantive import on a procedural mechanism. I cannot imagine the five-justice majorities in either case would accept that the standing limits they imposed are overcome by nothing more than Rule 23. Are there any other differences that, in light of current doctrine, justify standing in these cases in light of Clapper and Lyons?