Sunday, February 08, 2015
More from Alabama
This article lays out the competing sides of the dispute pretty well. And it shows how complicated this may be getting and how confused many people are by this area of the law.
First, the article talks about Alabama probate judges being jailed for contempt. This would be utterly impossible--Judge Granade cannot hold in contempt anyone who was not party to the federal action, which is only the state AG. But the story then clarifies that contempt would be for violating a future order against a probate judge sued on Monday for refusing to issue a license, not for violating Judge Granade's original order. Which is right, although unlikely--at least Judge Bowden has stated that he will comply with any injunction that may issue should he be sued.
Second, someone mentions the possibility of "sanctions" against the judges, including attorney's fees. This is one of the things Judge Granade mentioned in her "clarification" order, which block-quotes from Judge Hinkle's similar clarifying order in the Florida case
Calling this a "sanction" is wrong, in that it suggests wrongdoing by the non-issuing judge for which he would be punished. Instead, fees would be a routine part of the injunction action. Under § 1988(b), a prevailing party can recover attorney's fees; this would cover a same-sex couple that sues and obtains an injunction ordering the judge to issue the license because the state SSM ban violates the Fourteenth Amendment.
But the attorney's fee question gets another layer because Alabama has vested the licensing power in judicial officers. Section 1988(b) has an exception--"in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction." This was added in 1996, along with an amendment to § 1983 which limits the availability of injunctions against a "judicial officer for an act or omission taken in such officer’s judicial capacity." The amendments together were intended to limit the effect of the Court's 1984 decision in Pulliam v. Allen, which held that absolute judicial immunity does not extend to injunctions or attorney's fees. The effect is to grant judges absolute immunity from attorney's fees to the same extent they enjoy absoulute immunity from damages--whenever they acted in a judicial capacity or performe a judicial function and did not act in the complete absence of jurisdiction.
It seems pretty clear that issuing a marriage license lacks the hallmarks of a judicial function (adversary proceedings, appellate review, formal processes) and lacks the exercise of the learned judgment that characterizes judicial decisionmaking and justifies judicial immunity. This is a purely ministerial function, such that a judge acts in an executive capacity in performing it. As such, a probate judge refusing to issue a license would not enjoy judicial immunity from an action for damages,* would not fall within the exception to § 1983 regarding injunctions against judges, and would not fall within the exception to § 1988(b) regarding attorney's fees against judges.
* A judge performing an executive function still can claim qualified immunity. And since it is not clearly established in Alabama that a ban on same-sex marriage is unconstitutional, any Alabama probate judge sued next week almost certainly would enjoy qualified immunity.
Attorney's fees play an interesting and unexpected function in a situation like this--they act as a deterrent to recalcitrant state officials. While formally not bound by the district court decision invalidating the SSM, the threat of attorney's fees puts these officials to a choice: 1) Force plaintiffs to go through the additional step of another lawsuit to obtain an (almost-certain-to-issue) injunction at the risk of having to pay fees or 2) Go along with the district court, even if not legally obligated to do so, to avoid fees. Neither option is right or wrong, but § 1988(b) puts a thumb on the scales in favor of the latter.
Saturday, February 07, 2015
Ben Bowden, a probate judge in Covington County, AL, announced on Friday that, on his reading of the law, he will not issue marriage licenses to same-sex couples on Monday, when the stay of a district court injunction expires. Bowden concluded that he the district court decision and injunction invalidating the state's marriage-equality ban is not binding on him, thus he will continue to follow the state-law ban until an appropriate court directs him otherwise.
So the issue now is queued up. A couple wanting a license in Covington County can now sue Judge Bowden for an injunction compelling him to issue the license; the issue is ripe, given Bowden's announcement, and the couple will have standing. Covington County is located in the Southern District, so the case likely will be assigned to Judge Granade (most districts have a rule sending "related cases," often broadly defined, to the same judge); she will quickly issue an order reaffirming her earlier opinion that the marriage-equality ban is unconstitutional, ordering Bowden to issue the license, and refusing to stay the order. And Bowden recognized that he will be sued and insisted that he would "fully comply" with an order in a case to which he is a party.
Obviously, this is not the most efficient way of doing things. But the point is that couples will be able to get their licenses, probably on Monday, in fairly short order.
Thursday, February 05, 2015
Roy Moore gets it right
And without bigoted or anti-federal rhetoric.
Moore sent a memo on Tuesday to all state Probate Judges, explaining why probate judges are not bound by two recent district court decisions invalidating state marriage-equality bans. (Ed Whelan analyzes the memo at NRO). Moore makes two points, both correct: 1) The attorney general, the only defendant in both Alabama cases, is part of the executive branch while probate judges (who issue marriage licenses) are part of the judicial branch, thus the AG exercises no supervisory authority over them; and 2) federal lower-court precedent is not binding on state courts.* The memo includes an appendix analyzing how the Alabama AG came to be the sole defendant in the two Alabama cases and why he is not, in fact, the appropriate defendant in cases challenging the refusal to issue marriage licenses when (as in Alabama) that task rests with judges or court clerks.
Tuesday, February 03, 2015
Julian Zelizer, a historian at Princeton, has a new book titled The Fierce Urgency of Now: Lyndon Johnson, Congress, and the Battle for the Great Society; he did a talk on it at Politics & Prose. Zelizer's thesis is that LBJ was not the all-powerful "Master of the Senate" who could push through whatever legislation he wanted--and that LBJ recognized that fact. His period of great legislative achievement was really just the two-year period from 1964-66, when he had overwhelming majorities in both houses and power had shifted away from conservative Southern Democrats. That ended with the 1966 mid-terms, when Southern Democrats returned to power, Republicans gained seats and were less likely to cooperate with him, making it far more difficult for him to achieve as much in the final two years of his presidency (including appoint a replacement for Warren).
This illustrates the broader point that what we think of as eras of particular legal and political achievements often are a product of a much smaller window within that broader era. So, Zelizer argues, the "Great Society" was created largely in two years of Johnson's five-year presidency, when the numbers and personnel lined up. Much less was happening during the other three years.
This matches Lucas Powe's argument about the small window for what we regard as "The Warren Court" and Justice Brennan's power as the intellectual engine of the Warren Court. While Warren was Chief for 15 years, "The Warren Court" really was a seven-year period from 1962-69, when the appointment of Goldberg provided five solid votes (Warren, Black, Douglas, Brennan, Goldberg) for most liberal or civil libertarian positions on speech, civil rights, and criminal procedure. Or, even more narrowly, it might be limited to only the two-year period beginning with Marshall's appointment in 1967, in which there were six liberal Justices and the bloc could afford one defection (by that point, it often was Black) and still maintain a majority.
Thinking About Prosecutors
Thank you to Prawfs for having me back to guest-blog again this month. I want to use my time here to (publicly) work through some very-early thoughts on what motivates the most important, yet most under-examined, actor in criminal justice: the prosecutor. Prosecutors have certainly been in the news a lot lately, but by and large we have very little empirical information on what motivates them or shapes their decisions—in no small part because we have almost no data on what they are doing.
There are two question in particular I want to think about here. The first, which is the more high-profile these days but arguably the less important, is about how to resolve the clear agency problem that arises when prosecutors are asked to prosecute members of their local police departments. In the wake of Ferguson and Staten Island, numerous proposals have been floated, from Wisconsin’s policy of referring police-related killings to outside district attorneys to appointing special prosecutors housed inside state attorneys general offices to handle such cases.But most of these proposals note the incentive problems faced by local prosecutors without really confronting the incentives of the replacement. Why would we expect a prosecutor from Buffalo to anger the BPD by aggressively going after the NYPD? As for special prosecutors, unless there is some clear referral rule (“all killings go to the AG”—and are killings the only things that should be handled by the AG?), what are the AG’s (or DAG's) incentives for choosing cases? And given these incentives, whatever they are, will they choose cases that align with what “matters”? And who decides what matters in the first place: the heavily-policed community in which the victim is more likely to reside, the broader community protected by that police force, the state-wide electorate that votes for the AG, etc….?
Obviously, the current system cannot stand, but how to design an optimal alternative strikes me as actually quite tricky.
The second question concerns a recent change in prosecutorial behavior that has had a profound impact on punishment in the United States over the past twenty years (and one I have raised in earlier posts as well). Since the early 1990s, prison populations have continued to soar even as crime rates steadily dropped. Why? Well, before asking “why,” we need to ask “who”—whose actions are most responsible for the change.
The basic facts are straightforward: since the 1990s, crime has fallen, and so too have arrests. The likelihood that a felony case results in a prison admission has been flat. The time that admitted person spends in prison has been flat too (I swear—though contrary to conventional wisdom, this is in fact the case). Only one thing has increased: the probability that an arrest results in a felony charge.
The change has been dramatic: over the course of the 1990s and 2000s, the probably that an arrest resulted in a felony case soared, from about 1-in-3 to 2-in-3, and this appears to be the primary engine of prison growth during the crime decline. Thus the story of post-crime decline prison growth is a story of increased prosecutorial aggressiveness.
So what caused prosecutors to become more aggressive? Sadly, no one knows. I thus want to start talking through some of the possibilities, such as other political incentives, changing budgets, improved policing, tougher sentencing laws (which do not necessarily result in longer sentences, but may facilitate plea bargains), etc. Any real reform of criminal justice outcomes in the US will require some change in prosecutorial behavior.
But that’s a tricky thing to accomplish. Not only do we not really understand what motivates or shapes prosecutorial outcomes, but DAs are very hard to regulate: directly elected at local levels, generally unchallenged and politically popular. Any effort to modify prosecutorial behavior will thus likely have to operate indirectly and by persuasion, which of course requires us to know what is persuasive.
So those are the topics for the time ahead. Like I said, my thoughts here are raw and green—and, in many places, likely wrong—and I’m tossing them out in an effort to get real, substantive feedback. I’m looking forward to what everyone has to say.
Monday, February 02, 2015
Cameras at SCOTUS, again
Lots of new stuff on cameras in SCOTUS. Dahlia Lithwick's Amicus podcast discusses them this week, interviewing Sonja West (Georgia) and RonNell Andersen Jones (BYU), who together do a great job pretty much destroying the anti-cameras arguments. The only thing they did not mention was what I think is the key response to the "people will only hear snippets" argument--people already only hear snippets, but now they read the text and hear it in Nina Totenberg's voice, rather than in Scalia's or Kagan's. John Oliver pretty well demonstrated this in his Supreme Court Dogs segment (after the jump).
Second, Justice Kagan did a Q&A appearance at University of Chicago last weekend, in which she admitted to being "very conflicted" about the issue. The same article indicates that Justice Sotomayor is hardening her position against cameras (despite saying in her confirmation hearing that she had "positive experiences" with cameras while a lower-court judge).
Kagan being "conflicted" about this will not move the needle at all, for a reason that West and Jones discuss in their Amicus interview--the collegiality norms on the Court mean that, as long as one Justice remains strongly opposed to cameras, the rest of the Justices are never going to push the issue.
First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this. It’s wonderful to see how what Dan started continues to grow and thrive.
Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.
As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland. My focus will be on legal issues, but lets start with an overview. As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here. Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home. This is a very helpful graphic. In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States. But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time. Globally, 400 (mostly) children die of measles every day, 16 die every hour. Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.
The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated. It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.
Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old. There are also counter-indications (more about them later) about who shouldn’t get the vaccine. Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before. Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection. And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.
The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state. Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation. Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.
To be continued.
Posted by Jennifer Bard on February 2, 2015 at 03:10 PM in Constitutional thoughts, Current Affairs, First Amendment, International Law, Law and Politics, Religion, Science, Teaching Law | Permalink | Comments (0)
Friday, January 30, 2015
LBJ and the Supreme Court
This is a couple days old, but I will second Gerard Magliocca's recommendation of KC Johnson's post on LBJ's conversations about the nomination of Abe Fortas as Chief Justice; the post includes audio links to excerpts of the Johnson White House tapes along with transcripts and some commentary. The conversations touch both on Fortas's elevation and on who should replace him as Associate Justice (Homer Thornberry was nominated, but the nomination was withdrawn when Fortas was rejected as Chief). KC argues that Fortas represents the tipping point on judicial nominations, the point at which it became contentious and partisan and at which a nominee might realistically be filibustered or rejected. (I will leave that debate to others).
Beyond the general enjoyment of listening to the conversations and, in Gerard's words getting to "hear LBJ . . . well . . . being LBJ," I found a couple of individual points of interest.
First, Johnson mentions the possibility of bringing Arthur Goldberg back to the Court (Goldberg had resigned in 1965, at Johnson's urging, to become UN Ambassador and to allow Johnson to put Fortas on the Court), but rejected that idea because "I oughtn’t to have two Jews." (I have written before about how jarring it is to hear "Jews" as opposed to "Jewish people." It sounds worse with a Texas drawl).
Second, Johnson specifically talks about the states represented by the different possible nominees and how "seats" for each state is a consideration. This brings to mind Nancy Leong's JOTWELL essay reviewing Sharon Rush's article on geographic diversity on the federal bench, particularly on a non-regional court such as SCOTUS.
Third, it raises some cute historical counter-factuals. What if Johnson had not pushed Goldberg to resign in 1965? Johnson basically conned Goldberg into believing that 1) Goldberg could make a difference with Vietnam from the UN and 2) It might put him in position to run for President. Neither of those things is remotely true.
So what happens if Johnson leaves Goldberg alone? Johnson got to make (or at least try to make) two more nominations after 1965--1967, when he appointed Thurgood Marshall to replace Tom Clark, and 1968, when Warren indicated his intent to retire. Johnson wants Fortas and Marshall on the Court and also wants to make Fortas Chief when Warren steps down. So consider:
1) Johnson still appoints Marshall in 1967 because "it's time," then nominates Fortas as Chief from outside the Court in 1968 (back then a Chief without judicial experience was not uncommon). If Fortas has not been on the Court for three years when nominated, does that change the Senate's reaction to him? Certainly some of the problems that killed his nomination go away--he no longer is tagged with what many viewed as the "excesses" of the late Warren Court on criminal procedure and obscenity; there no longer is anything untoward in his having recently advised Johnson on matters; it is at least less untoward that he took money for giving various speeches. On the other hand, as KC describes in his post, by June 1968, everyone expected that Nixon would win the White House, so Republicans (and others) in the Senate wanted to leave the nomination for the new president rather than the lame duck. This concern does not go away.* So which way do things go?
* In the tapes, Johnson several times mentions the age and failing health of Black, Douglas, and Harlan, by way of showing Republicans that Nixon would get to make several appointments fairly quickly even if Johnson got to appoint the Chief in 1968. And, indeed, Nixon got to replace both Black and Harlan by the end of his first term. And but for Watergate, he would have appointed Douglas's replacement in 1975, towards the end of his second term.
2) Johnson appoints Fortas in 1967 to get his friend on the Court, then tries the same move in 1968 of trying to elevate Fortas, this time nominating Marshall as Associate. Does Fortas fare any better with two fewer terms (and decisions) on the Court? Does Marshall draw too much opposition to make the two-fer work (one of Thornberry's virtues was that it was unlikely anyone in the Senate would oppose him)? Does Johnson not nominate Marshall at all because of that opposition? In which case, when does the Court get its first African-American Justice?
Wednesday, January 28, 2015
If you say so
Judge Callie Granade of the Southern District of Alabama has clarified her order holding that Alabama's marriage-equality ban violates the Fourteenth Amendment. She block-quotes Judge Hinkle's position--which I previously labeled "unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four"--that the injunction does not apply to anyone other than the Alabama A/G (the only named defendant), but that the Constitution does apply and the Constitution requires the probate judges to issue marriage licenses.
On reading it this time around, these seems a framed example of an advisory opinion. A court is telling someone what to do or not to do, but that person is not a party to a case within the court's jurisdiction and not subject to any valid order of the court. Judge Granade can insist all she wants that the Constitution requires the state's probate judges to issue marriage licenses--if they disagree, no one can do anything about it (unless and until new litigation is brought and a court with jurisdiction--perhaps Judge Granade--directly compels them to do so).
Of course, the news is not all normal, because Alabama Supreme Court Justice Roy Moore is back in the news, insisting that state law remains in place, that he will continue to follow state law, and that the probate judges should continue to do so, as well. This, in turn, prompted the Southern Poverty Law Center to file an ethics complaint against Moore, alleging he violated judicial ethics rules in commenting on a matter that will be coming before him in the coming weeks.*
* Although I am not sure why. I would expect the move for anyone denied a license would be to sue the probate judge in federal court, so I do not see how this is going to make its way through the Alabama courts.
(H/T for all of this: Josh Blackman and Howard Bashman)
#Not all convictions
Sadly, the only lessons anyone will learn about campus sexual assault from the convictions of two former Vanderbilt football players is 1) Don't be so stupid (or arrogant) as to record and share your criminal activity and 2) You cannot get away with as much when you are not the star quarterback at a championship-contending football factory. More sadly, I am not sure what would happen if you have a star quarterback who is stupid enough to record. Still more sadly, we already know what happens if the non-star is smart enough not to record.
Monday, January 26, 2015
Epilogue: Moral Panics and Body Cameras
Almost immediately after my essay on body cameras was published in Wash. U. L. Rev. Commentaries in November, stuff blew up--the Michael Brown non-indictment, the Ferguson and national protests, the Eric Garner non-indictment, and the protests from that. The editors were kind enough to publish an Epilogue, now available on Commentaries, discussing those subsequent events and how they further illustrate my points about video, body cameras, and moral panics.
Sunday, January 25, 2015
The process of marriage equality, once again
This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses. The plaintiffs asked the district court for a "clarification" of her ruling and its scope, although it is unlikely that her clarification will announce that these non-party probate judges are subject to the injunction, since, just as in Florida, they cannot be. The district court has issued a 14-day stay, so the race to figure this all out by Monday has become moot--the district judge gave the state a chance to ask the Eleventh Circuit for a stay.
Comparing this to George Wallace standing in the doorway at the University of Alabama is incredibly overstated and flat wrong. And at some level, this is on the plaintiff's lawyers--they framed the case, only sued the Attorney General in a state in which the AG does not have the power to issue licenses or to control or advise those who do, and did not include any "responsible" executive officers in the action. The AG is ordinarily the proper defendant in an Ex Parte Young action (notably where the challenged law is a criminal provision); but not here and not for the issuance of marriage licenses. And the failure to recognize that is creating these procedural complications, at least until SCOTUS or the Eleventh Circuit weighs in.
With all that, calling everyone a bigot in a legal document is not particularly helpful.
Wednesday, January 21, 2015
MDL consolidation and appealability
SCOTUS on Wednesday decided Gelboim v. Bank of America, holding that a district court order dismissing the sole claim in a single-claim action, consolidated with other actions for pretrial proceedings in multidistrict litigation, was a final and appealable order, even if claims remained in other actions included in the MDL. I have an opinion analysis at SCOTUSBlog. And I am happy to say I called this one.
Tuesday, January 20, 2015
Joachim Prinz, American Jews, and the Civil Rights Movement
This article is a few years old, but I came across it, appropriately, on MLK Day. It is about Joachim Prinz, the most prominent Jewish leader in the Civil Rights Movement and the only Jewish leader to speak at the March on Washington (he spoke just before King). I was personally interested in the story because Prinz performed my Bar Mitzvah in 1981 at B'nai Abraham in Livingston, N.J., where he was Rabbi Emeritus. As students at the Hebrew School, we sort of knew about his involvement with King. But my friends and I were more interested in being outside playing baseball.
Monday, January 19, 2015
Thurgood Marshall and the limits of the judicial role
Mike Dorf poses an interesting question: Why is Thurgood Marshall never in the conversation about civil rights icon--it is only MLK, with Macolm X as the only possible alternative. Mike offers three reasons, which all seem plausible.
I want to consider a fourth option--the limits of the judicial role. Marshall spent the last thirty years of his career on the bench (with a two-year break as SG, an unusual government-attorney position that is part advocate, part court advisor, part administrative official). As such, he was less of an "advocate" for civil rights than King was or than Marshall had been earlier in his career. While he was a great liberal voice from the Court, he was no longer an advocate. And he was deciding not only civil rights cases, but cases on many other subjects--some of which were at least indirectly about civil rights and racial equality (criminal procedure), others having nothing to do with them (for example, he wrote Shaffer v. Heitner). And even in that role, Marshall was hampered by the fact that by 1971 and certainly by about 1981, he was no longer regularly in the majority on many of these issues; he was a strong voice in dissent, but he, unfortunately, was not directly shaping the law.
Finally, consider Richard Posner's suggestion that Marshall's great strength was as a trial lawyer, not as an appellate judge/justice or as SG. In other, Marshall spent the last half of a sixty-year career playing to less than his stengths, thus weakening his influence. Perhaps had Marshall remained in a different role--while continuing to have the same success in that role (and admittedly huge if)--he might have been in an even-more exalted space in the civil rights pantheon.
Tuesday, January 13, 2015
Guaranteed salary and understanding the Supremacy Clause
Bills have been introduced in Texas and South Carolina attempting to prevent courts from recognizing same-sex marriages, in part by controlling salaries and funding. The Texas bill prohibits any state or local government employee from recognizing, granting, or enforcing a same-sex marriage license, with anyone who does losing her salary; a separate provision extends this to state judges. The bill also requires the court to dismiss any constitutional challenge to the law and to require plaintiffs to pay fees. The South Carolina bill is similar--no recognizing, granting, or enforcing same-sex marriage licenses, no public funds or salaries spent for doing so, required dismissal of any challenges to the law, while also specifically prohibting the use of any public funds to enforce any court order (including, presumably, a federal court order) to issue a same-sex marriage license.
Obviously, neither bill has a remote chance of passing; trying to stop marriage equality is simply a fool's errand at this point. And there are too many constitutional defects to count. But I want to highlight a couple.
First, a shout-out to the unsung Article III protection--judges "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office." Everyone focuses on life tenure as the great bulwark of judicial independence (or as a bad idea whose time has passed); there is less focus on guaranteed salary, even though, as these crazy bills show, it otherwise would be a prime target for a legislature angling to control constitutional adjudication.
Second, I have questioned Slate's Mark Joseph Stern before for the legal errors in his articles (I have no idea if he has a J.D.). Today, he argues that these bills are in "clear violation" of the Supremacy Clause by imposing a sanction on a judge who is just following federal law as declared by the Fourth Circuit (which includes South Carolina) and many, many federal district courts. But neither a federal court of appeals nor a federal district court binds a state court. A state court is free to ignore these decisions. And, at least as a matter of the Supremacy Clause, a state legislature is free to compel its courts to ignore those decisions (there may be other reasons the legislature cannot do this). So why make up reasons that are simply wrong.
Third, what would the Constitution of either state have to say, specifically about the provisions requiring state courts to dismiss challenges to these laws. During the Theresa Schiavo Controversy, the Florida Supreme Court adopted a principle very much like United States v. Klein as a matter of state separation of powers. These bills run afoul of Klein's idea that legislatures cannot tell courts how to decide cases, to the extent that principle applies to state governmental structures.
Monday, January 12, 2015
More on rotating Chief Justices
At CoOp last week, Gerard Magliocca asked whether it would be constitutional to shift away from the current system of a separately appointed Chief Justice in favor of a system of rotating Chiefs, either based on seniority (as on the Federal Districts and Circuits) or based on selection by thesitting Justices (as happens on some state supreme courts). I have used this question in Fed Courts, in the last days of the class when we discuss the theoretical stuff on congressional control over the courts. Edward Swaine (GW) considered the question in a 2006 piece in Penn Law Review, concluding that the present scheme of appointing/confirming one person to the position of Chief Justice of the United States was not constitutionally required and that Congress could change the manner of selecting a Chief Justice (the Constitution requires that there be a Chief Justice). I agree with Swaine on the constitutional point.
But is it a good idea? Gerard argues that a rotating system distributes the powers to preside and to assign opinions, which otherwise remain exclusively with the Chief or with the senior-most Associate Justice in the majority, possibly for quite awhile. And if the Chief and the senior-most Associate often disagree, the assignment power remains firmly in two sets of hands for a significant number of cases.* How might deliberations and decisionmaking change if there were more variance over time in the assignment power? How might oral arguments change if the presiding Justice changed more often?
(*) This would make an interesting empirical question, actually. In the past 40 years, we have had two such lengthy periods--1975-90 (Burger/Rehnquist as Chief, Brennan as seniormost Associate) and 1994-2005 2010 (Rehnquist/Roberts as Chief, Stevens as seniormost Associate). [Ed: I cut Stevens short, forgetting that he spent five additional years as senior associate after Rehnquist's death, with Roberts, a Justice with whom he often disagreed, as Chief. This 2011 article explores how and how often Stevens exercised the assignment power as senior associate justice]
The counter-argument attaches to the idea that the Chief carries a unique connection, allegiance, and obligation to the "Supreme Court as an institution." This affects how the Chief performs administrative functions as the head of the entire federal judiciary--for example, by chastising Congress for insufficient funding and failure to fill vacancies, regardless of which party is in control. And it may carry into decisionmaking. Chiefs have cast surprising votes in cases that are atttributed, rightly or wrongly, to that loyalty and to an interest in protecting the Court's institutional legitimacy, even at the expense of their own jurisprudential preferences--people often point (again, rightly or wrongly) to Roberts upholding the individual mandate in NFIB or Rehnquist affirming the constitutional basis of Miranda in Dickerson. The concern is that someone serving only 6-8 years as Chief (the typical term for a lower-court Chief Judge) as part of longer service as a Justice will not feel that same institutional obligation, potentially at some cost to the Court as a body. Moreover, there is a sense that someone must "grow" into the Chief Justiceship and learn to perform well the various administrative and institutional functions, which takes more time than a rotating term would allow; the longer, permanent chiefdom is necessary to allow for that leaning curve.
Monday, January 05, 2015
Merging systems in the wrong direction
I have written before that I have come to prefer a UK-style parliamentary system, in which the executive is guaranteed legislative majorities and we are open about the partisan connections between the executive and the legislature. But Keith Humphreys, blogging at the Reality-Based Community, discusses how the UK (where an election is coming in May) is, unfortunately, looking more like the US than the other way around.
First, the focus of the election is now on the prime minister candidates and their personalities and views, ignoring the connection between the party leader and the party-in-the-legislature. Second, there is an increasing preference for divided government, with voters moving towards divided government and coalition governments, in which mutliple parties have enough seats to be at the negotiating table and the major party is unable to govern as it wishes; Humphreys sees this as a departure from Britain's historic preference for "giving the other fellow a chance."
Saturday, January 03, 2015
The process of marriage equality, redux
I do not have the energy to provide background; SCOTUSBlog offers a nice analysis of what is happening in Florida, as an opinion by U.S. District Judge Robert Hinkle (N.D. Fla.) invalidating Florida's ban on marriage equality is due to take effect next Monday evening. I am simply going to link to a bunch of documents and ask whether anyone in the State of Florida has a clue about procedure, remedies, or jurisdiction.
First is a December memorandum from the attorney for the Florida Association of Clerks and Comptrollers stating, correctly, that Hinkle's a decision and injunction is binding only on the Washington County Clerk of Courts (named as defendant) and only as to the named plaintiff; all other clerks are not legally obligated to issue licenses and may, in fact, be prohibited by state law from doing so and subject to criminal penalties. (Slate's Mark Joseph Stern, somewhat losing it, labels the memo "bogus," "deceptive and borderline unethical," and "willfully misleading").
Judge Hinkle responded on Thursday with this order acknowledging that his injunction is as limited as the FACC lawyers suggested. But he then goes on to insist that "the Constitution requires the Clerk to issue" (italics in original) licesnes to other couples. Implicitly, that means the Constitution require all other clerks to issue licenses. And it reminds all clerks that other litigation may follow his ruling and that they may be subject to suit, injunction, and attorney's fees if they do not follow his ruling.
The FACC's lawyer responded that, in light of the new order (which it also interprets as threatening money damages, although the order says no such thing), all "clerks should follow the judge's ruling for all marriage-license applications or face the consequences identified by Judge Hinkle." Florida Attorney General Pam Biondi similarly responded: "This office has sought to minimize confusion and uncertainty, and we are glad the Court provided additional guidance. My office will not stand in the way as clerks of court determine how to proceed."
Finally, the Orange County Clerk of Courts sought and received a state declaratory judgment; the state judge agreed that the state prohibition on SSM violates the Constitution (essentially adopting and incorporating by reference Judge Hinkle's opinion), that the clerk could rely on the federal decision, and would not be violating state law or be subject to criminal penalties if she issues licenses to same-sex couples once the Hinkle order becomes effective next Monday.
My coments on why this all is so insane after the jump.
The original memo from the FACC's lawyer had it right. The district court's injunction only requires the named defendant clerk to issue a license to the named plaintiff. There was no class of plaintiffs or defendants before the district court. There was no statewide officer enjoined to issue, or order the issuance, of licenses across the state. The district court's declaration that the SSM ban violates the Fourteenth Amendment is not binding or preclusive as to any non-party and is not binding on any other federal or state court. The memo is a bit overwrought in suggesting that a clerk is going to be prosecuted for issuing a license. But the basic point--the district court decision is nothing more than persuasive authority to all other couples and all other clerks--is correct.
None of this is new, of course. We have been discussing procedure underlying marriage equality since last summer, when, post-Hollingsworth, we were left with an incredibly (and possibly unlawfully) overbroad injunction in California and procedural wrangling about what happens next. But Judge Hinkle's original injunction is not so broad, as he acknowledges. So any non-party clerk remains free to deny a license in light of state law on the books; it then is on any couple wanting a license to sue and challenge the constitutionality of the denial and the state SSM ban, likely winning on the strength of the persuasiveness of Hinkle's opinion. This is all messy and inefficient, but that is how constitutional litigation works, at least short of a decision by SCOTUS or a class action.
So what to make of Judge Hinkle's supplemental order? It is either unnecessary, ineffectual, arrogant, or extra-jurisdictional--likely some combination of all four. That everyone seems to be praising this order for "clarifying" things shows how just confused everyone is.
The italicized insistence that the Constitution requires the issuance of licenses by all clerks to all same-sex couples is nonsense. Yes, licenses are required by the Constitution, as interpreted by Judge Hinkle. But that interpretation is not the only one and it does not bind (or even necessarily influence) anyone not a party to that case. There is controversy enough over whether SCOTUS does/should get the last word on constitutional meaning and what the Constitution requires; there is no way that a single district judge could possibly have the last word, even within one state. But the supplemental order insists that is the effect of the original decision--in essence, "I have announced what the Constitution means with respect to the Fourteenth Amendment and marriage equality and every clerk in the State of Florida is bound by that meaning I have identified (even if not subject to the injunction)." One district court opinion cannot be read to have that much binding effect, particularly on people outside of that judicial district and not subject to the court's jurisdiction or venue.
Moreover, since Article III courts cannot issue advisory opinions, it is logically impossible to separate the Constitution (as interpreted) from the injunction or to have the former apply more broadly than the latter. The only people who can be bound by the court's interpretation are those bound by its remedial order. And Hinkle concedes the narrowness of the original injunction.
Beyond that, the supplemental order does not tell us anything we did not already know (or should have already known). Any same-sex couple could have sued any county clerk (beside Washington County) at any time to invalidate the ban and, if successful, could have gotten an injunction and attorney's fees; Judge Hinkle's original decision would have been important binding precedent in that lawsuit, but nothing more. But the right of other couples to bring that suit does not emanate from Judge Hinkle or his order. And the threat of injunction and attorney's fees against a non-compliant clerk is a consequence of basic rules of constitutional litigation of which everyone should have been aware even without the supplemental order.
Nor should it be news that any clerk may (italics again Judge Hinkle's) follow that original ruling that the ban violates the Fourteenth Amendment. Of course a clerk may follow the ruling, for the same reason she could ignore it--absent injunction, preclusion, or binding precedent, every clerk retains the authority to decide her legal and constitutional obligations, unless and until her interpetation is overruled by a higher state official or a binding court decision. Otherwise, note the internal contradiction of the supplemental order--a clerk who agrees with him may follow the ruling, but a clerk who disagrees must follow the ruling.
Everyone is also reading the supplemental order to threaten money damages for any clerk who does not issue a license. I do not read the order as suggesting damages as a consequence. But even if Hinkle did threaten that, I do not see how any damages action could overcome qualified immunity--that it was clearly established that the Fourteenth Amendment required clerks to issue licenses to same-sex couples. There is no binding precedent on this in Florida; neither SCOTUS nor the Eleventh Circuit has spoken. We have a circuit split nationally (even if it is largely one-sided) and decisions from one federal and two state trial judges within Florida. I believe that banning same-sex marriage violates the Fourteenth Amendment. But no way is that conclusion clearly established, as that concept is currently understood. So damages are not remotely possible.
The only appropriate procedural move was by the Orange County Clerk of Courts, who got that state-court declaratory judgment. In essence, the state court established a state-court order that the SSM ban is unconstitutional and that the Orange County Clerk, as a party to the state-court action,is not bound by the state prohibition, is free to issue licenses to same-sex couples, and is now protected by an order of a court that actully had jurisdiction over her (which Judge Hinkle did not).
As a policy matter, I like where we end up: every clerk in the state is likely to issue marriage licenses to same-sex couples and the attorney general is not going to stop them. A mass ceremony is planned for just after midnight Tuesday in Broward County. And I am surprised that Florida, which hardly the leading edge on SSM, is not going to be one of the recalcitrant states dragged kicking and screaming to marriage equality by SCOTUS. Still, it would have been nice if everyone involved, including the federal judge, had a better sense of the underlying processes.
Friday, January 02, 2015
It's Been Real!
I think they're going to take away the keys soon, so while I still have access I wanted to say thanks for a great month on Prawfs. I touted my current scholarship, talked about teaching, wrote a post that generated over 35 comments, and even seemed to annoy some of the so-called "scambloggers" in the process! That sounds like a success!
I plan to head to the Markelfest tomorrow night at AALS, so I hope you'll stop by and say hello.
Thursday, January 01, 2015
Sunday is Election Law Day at AALS
I'm declaring Sunday to be "Election Law Day" at this year's AALS Annual Meeting. I don't think there has ever been as much programming on election law at a prior meeting. This is in part due to the fact that the brand-new Section on Election Law is hosting its first substantive panel, focusing on the 50th Anniversity of the Voting Rights Act. The Section on Civil Rights is holding a panel on voter suppression in the morning, and there is a hot topics panel on campaign finance in the afternoon.
All three panels contain an all-star list of scholars in the field (putting me in awe as to how I was included!). After the jump I've pasted the details of each of these panels. I hope you'll join us!
Section on Civil Rights: Voter Suppression, the 2014 Elections and Beyond
Sunday, January 4, 2015, 8:30-10:15
In the last two years, numerous laws targeting underprivileged voters were enacted. The concrete effects and application of these laws in their respective states have yet to be measured. The 2014 midterm elections provide the first opportunity to document these effects. It is crucial, particularly in light of the Shelby County decision, to monitor these dynamics. Grassroots solutions to help counter their detrimental impact are also needed. In light of the current legal landscape, it is important to craft these grassroots solutions in tandem with any proposed legal reform. This year’s panel will discuss manifestations and application of these voting rights laws around the country. In addition, panelists will offer insight and suggestions regarding legal and grassroots processes that could help alleviate recent setbacks in the voting rights context.
Business meeting at program conclusion.
This panel will feature legal academics who are also advocates, candidates, legislators and lobbyists. One of our panelists ran for Governor of New York on an anti-corruption platform, another launched a Super PAC to promote campaign finance reform, and another has introduced a bill in his capacity as a state legislator to require corporations to have majority assent from shareholders before backing political candidates. In this program, panelists will begin by evaluating the fallout from the recent defeat of the 28th Amendment and consider non-constitutional strategies to regulate money in politics in the face of judicial and political barriers. Panelists will subsequently explore how the law teaching profession has been involved in theorizing, developing, advocating and campaigning for new strategies to reform electoral campaign finance.
Wednesday, December 31, 2014
A shandeh fer der politsey
There is a Yiddish phrase, "a shonder shandeh* fer der goyem," which colloquially means that when a Jew misbehaves, it confirms all the worst beliefs that the non-Jewish world has about the Jewish people, and thus is "bad for the Jews." The title of this post is a riff (not linguistically quite accurate, admittedly, but it sounds good when you can bring the Yiddish) on that. One theme to emerge from recent controversies over police abuses is that the public position of the police is to not experience or aknowledge that feeling of shame when one of their own does something wrong. The "thin blue line" remains forever unified and will not criticize even the worst behavior; there is no public sense that good cops do (or should) despise cops who do wrong.
(*) Several readers questioned my original transliteration; in deference, I have changed it to the more common one.
And that has further manifested in a sense that any criticism of even a misbhaving cop is an attack on all cops; any failure to support all cops is necessarily anti-cop; any criticism of some police or police tactics is necessarily anti-cop; and any suggestion that systemic problems affect police-public relations (especially as to African-Americans) and that the police are in any way responsible for those problems is necessarily anti-cop. Look no further than the Mendocino H.S. basketball controversy,** where some have suggested that "I Can't Breathe" t-shirts, criticizing NYPD Officer Pantaleo and the Staten Island grand jury, are insensitive to the family of a Mendocino County sheriff's deputy who was killed in the line of duty, although I cannot imagine what one has to do with the other. Or the suggestion by the Cleveland police officers' union that such t-shirts insult all cops everywhere.
(**) Which got more complicated. After the host school backed down on its t-shirt ban, the Mendocino coach prohibited his players from wearing the shirts in warm-ups for Tuesday's game. When the Mendocino superintendent overruled that decision, the coach refused to coach. The players (including the one player who did not play on Monday under the host school's prohibition) did not wear the shirts on Tuesday. Members of the Mendocino girls' team, who were not playing in the tournament, sat in the stands wearing the shirts.
Anyway, maybe this is another example of the militarization of police departments--you can't criticize the military without being labeled a traitor, either.
A Checklist Manifesto for Election Day: How to Prevent Mistakes at the Polls
About a year and a half ago, during my last guest stint on Prawfs, I blogged about Atul Gawande's book "A Checklist Manifesto," which I had just finished. During those 18 months, in addition to my two other projects, I've drafted a new article, titled A Checklist Manifesto for Election Day: How to Prevent Mistakes at the Polls. It's not quite ready for the primetime of SSRN, but it will be soon, and I am targeting it for law review submission this February. If you'd like to take a look before I post it (especially if you're an Articles Editor at a highly-ranked journal!) just send me an email (joshuadouglas [at] uky [dot] edu) and I'll be happy to pass it along.
Here is the abstract:
Sometimes the simplest solutions are the best, even for complex problems. This certainly rings true for Election Day. The voting process involves a complicated web of rules and regulations, run largely by poll workers who are not professional election administrators. Poll workers are faced with myriad situations in which voting can go awry, and voters must comply with various requirements to ensure their votes count. But poll workers and voters generally are not given simple tools to help them through the process. Instead, the training guides poll workers receive from states and localities are lengthy, wordy, overly comprehensive, and difficult to use. They include anything and everything that might happen on Election Day, thereby making them essentially unusable as a reference in the heat of the moment when an issue actually arises. Instructions for voters are also often too complex. It is no wonder that poll workers and voters make mistakes in every election, which results in long lines, lost votes, and even post-election litigation. A simple and well-designed checklist can supplement these materials and help to avoid the humor errors that occur in many elections. This article shows how -- in a time in which policymakers are searching for how to remedy the voting woes in our country -- checklists provide a simple, non-partisan, and low-cost idea to improve election administration.
As always, comments are welcome!
Tuesday, December 23, 2014
"I've got a lot of problems with you people...!"
Today is one of my favorite made-up holidays: festivus (for the rest of us!) Somewhat amazingly, Festivus, the Seinfeld-inspired "holiday," has become a real thing in some places. According to that most-reliable source, both Wisconsin and Florida have displayed Festivus poles as part of their official winter holiday displays. Former Representative Eric Cantor apparently once held a Festivus fundraiser (although we can now see how that fared). This year, prominent politicians, such as Rand Paul, are finding their Festivus spirit, with Paul even hinting at a 2016 presidential run during his #festivus themed Twitter activity this morning.
So..air your grievances; engage in the feats of strength; and hope for a Festivus miracle!
Tuesday, December 16, 2014
But can I wear my "Fuck the Draft" jacket?
From Judge Susan E. Gash, presiding over the trial of NFL player Aaron Hernandez:
No person wearing clothing, or a button or other object attached to clothing, or carrying an object that displays any Patriots or other NFL team logo, football-related insignia, or words and/or a photograph that relate in any way to this case will be permitted entry to the Fall River Justice Center during any phase of the trial.
Does this seem excessive, especially as it applies not only to the courtroom, but within the entire building? And is it necessary to ban everything related to all of football, not just the Patriots or even just the NFL? Is it really that problematic for jurors to see any and all football-related things?
Monday, December 15, 2014
Pfander on Dart
SCOTUS on Monday decided Dart Cherokee Basin Operative Co. v. Owens; the Court held that a notice of removal need only contain a short and plain statement of the amount in controversy and evidence is necessary only if the plaintiff contests the amount. It was a 5-4 decision, with Justice Scalia, joined by Justices Kennedy and Kagan and in part by Justice Thomas, in dissent, arguing that the Court lacked authority to review a court of appeals summary denial of discretionary review of a remand order. Justice Thomas also filed a separate dissent.
James Pfander and Daniel D. Birk (Northwestern) have a piece called Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisidction (Yale L.J., forthcoming); Dart fits with some of what they wrote there (see, especially, pp. 27-28 and 79-80). Jim emailed the following (posted with his permission):
Dart serves as a nice illustration of the work that a construct of non-contentious jurisdiction can do in simplifying the exercise of jurisdiction over some uncontested matters. As you know, the problem in Dart arose from the one-sided and discretionary application for appellate review of the remand decision. Justice Thomas, echoing a position first articulated by Justice Scalia in Hohn v. United States, argued that the petition in Dart was not a “case” in the appellate court and was therefore not a matter within the Court’s cert jurisdiction. There were no adverse parties joined and nothing was contested.
It’s here that the construct of non-contentious jurisdiction can help. If one recognizes that federal courts have long presided over uncontested applications for the certification or recognition of a claim of right, so long as they require the exercise of judicial judgment (as Brandeis explained in the leading case, Tutun v. United States), then the treatment of ex parte applications for discretionary review (as in Hohn and Dart) presents no real mystery.
(Mis)trusting States To Run Elections
The Supreme Court is probably going to hear another voter ID case within the next year or so -- from Wisconsin or Texas -- or different case involving a state's administration of an election, such as one about North Carolina's very restrictive voting law. I bet the Court will largely defer to a state in its election-related processes and will probably uphold whatever law it reviews. But that is unfortunate, because it is both doctrinally wrong and practically dangerous.
As I recount in a new article, forthcoming next month in the Washington University Law Review, the Court too readily defers to a generic state interest in "election integrity" when reviewing the constitutionality of a state's election practice. Previously, a state had to provide a specific rationale for the law, especially under a higher level of scrutiny. Now, however, so long as a state says "election integrity," the Court does not question that justification, taking it at face value as an important governmental interest. But often the state is not really trying to achieve election integrity, at least not principally. There are often partisan motivations behind an election regulation. How else can one explain a law, such as North Carolina's, that is passed on a party-line vote and will effect only the minority party's supporters? Contrary to the approach to state election rules, the Court has closely scrutinized Congress's rationale for an election regulation, refusing to defer to legislative judgment.
Moreover, the Court has said that election litigation should proceed only through as-applied challenges, which requires piecemeal adjudication, yet it has invalidated several federal election laws on their face. Requiring only as-applied litigation provides a procedural mechanism to defer to a state's election processes.
After the jump I explain the problems with this approach.
Defering to states substantitively on their interests in an election law and procedurally through as-applied challenges is constitutionally suspect, especially because the Court does not analyze federal election rules in the same manner. This mode of analysis ignores the fact that the U.S. Constitution, through the Elections Clause (Art. I, Sec. 4), gives Congress an explicit oversight role in state election rules. In addition, the various amendments relating to voting provide that Congress may "enforce" those constitutional mandates.
The deference is also dangerous. States know that their laws will not receive meaningful scrutiny and that they need only tie a new rule to "election integrity" in the abstract to pass the first prong of the constitutional test (the state interest prong). This emboldens state legislatures to enact laws with partisan gains in mind because they can gloss over that point by raising the "election integrity" mantra. But partisan motiviations should play no role in how we structure our elections.
The Court should not defer so readily to a state's election process. Instead, the Court should apply a meaningful form of strict scrutiny review to laws that infringe upon the constitutional right to vote and require both Congress and legislatures to justify their laws with a stronger rationale than just election integrity, especially if there is an inference that the legislature really had partisanship in mind.
Here is the abstract of the article, for those who want more on this argument:
Comments are welcome!
Sunday, December 14, 2014
Promissory estoppel in emotionally charged contexts
1) Testing on a legal topic that is part of the course curriculum and is inherently emotionally charged, regardless of the factual context in which you place it. This includes pretty much all of the "what about this" examples that Eugene and I (in comments to my earlier post) offered--testing on the validity of same sex marriage bans or affirmative action or circumcision bans, questions involving sexual or racial harassment in employment, rape shields, campus sexual assault, hate speech, limiting immigration, etc.
2) Testing on a legal topic that is part of the course curriculum where the question arises in some emotionally charged context and the context affects the analysis of the topic. The Ferguson/Incitement question falls here. Incitement is obviously a core part of a First Amendment class; the context and the details of Ferguson are essential to the First Amendment analysis. Asking in my Civil Rights class whether NYPD Officer Daniel Pantaleo is entitled to qualified immunity in a § 1983 lawsuit by Eric Wilson's widow also would fall here.
3) Testing on a legal topic that is part of the course curriculum where the question arises in some cemotionally charged context but the context is more-or-less irrelevant to the analysis of the topic. In this category would be a promissory estoppel question based on the Steven Salaita case (discussed here, here, here, and elsewhere). The emotional charge here comes from competing views over whether Salaita is a victim of an academic-freedom-violative witchhunt for having the wrong views on Israel and Palestine or is instead an unreconstructed anti-Semite whose tweets are undeserving of academic freedom. But none of that has anything (or little) to do with his promissory estoppel claim.
So where does this framework leave us? Category # 1 presents the easiest case--students must be able to grapple with and analyze these questions and we have to be able to test on them. And that does not change if we put the question into a real-world factual context or not. So, for example, if I want to test on hate speech regulation, I should be able to put it in the context of nooses displayed on a a real college campus.
Category # 3 presents the hardest case, because the controversial context can seem most like a provocation. It thus is especially susceptible to the arguments that either a) it is unfair, unnecessary, and too hard for some students to fight through the offense or distraction to get at the legal question or b) if you insist on using Salaita, you can bowdlerize his "crime" to somethinions are beneficial in g other than tweets and views that may be seen as anti-Semitic or that may anger people on one side or the other of the Israel/Palestine question. I would suggest that Category # 3 questions are important to showing the legal side to current events and in making a subject relevant to the real world. But this category also leaves us the most flexibility, as we can give a Salaita question without quoting his texts or detailing his viewpoints (which, again, have nothing to do with the estoppel claim).
Category # 2 is obviously somewhere in the middle, coming closer to # 1 or # 3 depending on the question, the subject, and the circumstances. For example, the Salaita case may demand a different answer in an Education Law or First Amendment class testing on academic freedom.
I still believe all three should be fair game for both class discussion and for exams/essays. Lawyers must not only "get their lawyer on" (as a commenter on a prior post put it) as to the topic, but also as to its application. But for those who want to try to draw some distinctions and workable lines, this may be a place to start the conversation.
Friday, December 12, 2014
Where's John McCain?
Much of the debate over the so-called "Crominbus" (a combination Continuing Resolution and Omnibus spending bill), which the House passed late last night, surrounds the last-minute insertion of a campaign finance provision that would raise the limits on individuals donating to political parties. The provision would gut the main portion of the McCain-Feingold law that is still standing after Supreme Court review: the ban on "soft money." Political parties used to raise unlimited amounts of "soft money," in return giving their wealthy donors access to legislators. The 2002 McCain-Feingold law largely put an end to this practice, and the Court upheld the provision in McConnell v. FEC.
The current spending bill would allow an individual to give over $1.5 million, and a couple over $3.1 million, to the Democratic or Republican party during a two-year election cycle. This is more than three times the current limit. The provision was slipped in at the last minute without any public debate. The new rule would fundamentally alter the scope of campaign finance by re-inserting the political parties into the fundraising business, potentially opening the doors to undue access once again.
Rep. Nancy Pelosi, as well as various campaign finance watchdog groups, have been vocally opposed to the measure. But what about John McCain?
Campaign finance reform used to be McCain's signature policy initiative. Partnering with Democrat Russ Feingold, his bill, which he worked on for years, in essence thwarted political parties from providing undue access to legislators in exchange for campaign donations. (The bill also strenghtened the ban on corporations and unions from making independent expenditures, which the Supreme Court struck down in Citizens United.)
As far I as can tell, McCain has been fairly mute on this aspect of the Cromnibus. He apparently said, before it was unveiled, that it would be "disgraceful" and "jammed full of shit." But I haven't found any statements from him since the campaign finance provision was made public.
One might imagine that McCain would be outraged. And his outrage could potentially influence other Republicans to vote against the Cromnibus package, although that of course would lead to the possibility of a government shutdown. Either way, it's curious that McCain has been relatively silent so far on this provision, which would severely gut the major piece of the McCain-Feingold law that is still standing. McCain has been one of the few legislators to understand the problem of entrenchment: the concern of legislators passing laws to help keep themselves in power. The current provision would help both of the two major parties. It is a pro-establishment rule. But it would mostly help wealthy donors and already-wealthy politicians.
Will McCain stick to his morals and speak out against this provision? Or has he become just another Washington insider?
Procedure week at SCOTUS
I have recaps at SCOTUSBlog of this week's oral arguments in Gelboim v. Bank of America on finality in MDL cases and in United States v. Wong/United States v. June on the jurisdictionality of the FTCA's limitations periods.
I do not predict an outcome in either recap and I usually am bad at predicting these things. But I will go out on a limb: The Court reverses in Gelboim and holds that a judgment disposing of all claims in one action within an MDL is a final judgment. The Court affirms in both Wong and June and holds that the FTCA limitations periods are non-jurisdictional and subject to equitable tolling. (Apologies in advance to all three attorneys if I just jinxed your cases).
[Update: Eugene Volokh, Golstein's UCLA colleague, weighs in. He and I are in lockstep agreement (as always, he says it better than I did) about the need for law students to learn how to push through emotional investment and the seemingly boundless scope of the objections being leveled here. He adds two important points: 1) He gives the full question, which was much more detailed and provided students with the relevant facts and 2) Goldstein was not pressured by the administration to discard the question.]
Prof. Robert Goldstein at UCLA asked the following question on his First Amendment exam:
Write a memorandum for District Attorney Robert McCulloch on the constitutional merits of indicting Michael Brown's stepfather for advocating illegal activity when he yelled 'Burn this bitch down,' after McCulloch announced the grand jury's decision.
And outrage has resulted. Elis Mystal at ATL says Goldstein was asking students "to advocate for an extremist point that is shared by only the worst people in an exam setting," akin to making students "defend Holocaust deniers or ISIS terrorists." Goldstein apologized (Mystal has the text of his note to students) and is disregarding the question, saying the subject is "too raw" to be useful as an evaluative tool.
But what is really wrong with the question? I already have argued that Louis Head (Brown's stepfather) did not commit incitement as understood in Brandenburg, Hess, and Claiborne Hardware. Nevertheless, this seems like a legitimate question to ask a First Amendment class, one that ties legal education into the current world. One of the things I tell my students is that having a legal education means you inevitably look at everything through a legal lens. So why not use significant current event that raises a legitimate legal issue as a way to teach the issue? And the question did not require anyone to take or defend any particular position, much less one equivalent to Holocaust denial; it said to write a memo on the constitutional merits, which plainly leaves room to argue that a prosecution could not constitutionally be brought (which, again, I believe is the "correct" First Amendment answer).*
* If there is a defect in the question, it is that it assumes a detailed level of knowledge of what happened on the night of the grand jury announcement and when Head made his statements, all necessary for the Brandenburg analysis.
Does that much turn on requiring the memo to the DA? (Mystal seems to think so, hightlighted in his responses to commenters on his ATL post.) Does advising the DA mean the student only can say that the First Amendment would not be violated and that a prosecution is permissible--couldn't they also write "no, you will be violating the First Amendment if you try to bring this prosecution, remember your obligations to do justice"? Would we not be having this conversation if students had been asked to write a memo for a criminal defense lawyer or for the ACLU figuring out whether they have a meritorious constitutional defense against any prosecution?
I did not use any Ferguson questions on my Evidence exam this semester, mainly because I used the events (especially the convenience-store video and the alleged theft) in class discussions to illustrate character and other acts. But I never would have thought twice about asking such a question, or about putting the students in the position of having to argue that such evidence is admissible in any prosecution (which, ironically, would have put them in the position of the defendant in that case).
Thursday, December 11, 2014
Video and public opinion
William Saletan at Slate reports on a recent study showing that more whites believe the Michael Brown grand jury was right but the Eric Garner grand jury was wrong. Saletan argues it is evidence, not race, that explains the difference--the "quantity, quality, and clarity of evidence differed between the two cases," namely the presence of "unflinching" video of Garner's death.
This is an important aspect of video evidence. It is not only what video can do in criminal and civil litigation. Video also plays a role in the public conversation over a particular incident or event, which in turn may affect more official responses, both in and out of court. Certainly that video will provide the key push if DOJ decides to pursue a civil rights prosecution in the Garner case.
Wednesday, December 10, 2014
Happy Birthday to My Wife, and Happy Wyoming Day!
Not really law related, but I wanted to take this opportunity to wish my wife, Bari, a happy birthday. She's not a law prawf--she's an elementary school teacher, which is a much harder job! If you have 10 seconds, I'm sure she would love happy birthday emails from random prawfs around the country--it will sure make her chuckle. Her email address is baridouglas [at] gmail [dot] com.
In looking for a quasi-legal hook, I learned that the Nobel Peace Prize is always awarded on December 10, which is the anniversary of Alfred Nobel's death.
More up my alley, on December 10, 1869, Wyoming's governor approved the first law in U.S. history granting women the right to vote. To celebrate, every year December 10 is officially "Wyoming Day" in that state. Wyoming is also a pioneer in having elected the first woman Governor, in 1924. Way to go Wyoming! Another reason to go there (it's one of six states I've never visited).
Tuesday, December 09, 2014
SCOTUSBlog Preview: Jurisdictionality and the FTCA
I have a SCOTUSBlog preview of tomorrow's arguments in United States v. Wong and United States v. June, which jointly consider whether the timing requirements for filing claims under the Federal Tort Claims Act are jurisdictional or procedural and whether they are subject to equitable tolling.
Monday, December 08, 2014
Body cameras and and predictive analysis
Andrew Ferguson (UDC) argues at HuffPost that police body cameras can be used to track smaller, more routine police-citizen interactions that might be predictive of future, more severe wrongdoing by some officers. Worth a read.
The Scope of Voting Rights Under Article I: Understanding the Problem
My current project, Protecting Political Participation Through the Voter Qualifications Clause of Article I, tries to determine the scope of the voting rights that are protected by Article I, Section 2 of the Constitution, which provides that “The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.” I find this particular clause fascinating because the Supreme Court once relied on it to ground some of its one person, one vote and constitutional voting rights jurisprudence, but this provision has since fallen into obscurity because of mistakes that the Court made in the same cases that initially looked to Article I to protect the right to vote.
In Wesberry v. Sanders (the lesser-known companion case to Reynolds v. Sims), the Court held that the states’ failure to reapportion their congressional districts violated Article I, Section 2. Similarly, in Harper v. Virginia Board of Elections, the Court read Article I, Section 2 to create a fundamental right to vote in federal elections. Problems arose, however, when the Court tried to determine which provision of the Constitution protects the right to vote in state elections. Thus, in Reynolds v. Sims, the Court held that the states’ failure to reapportion their state legislative districts violated the Equal Protection Clause of the Fourteenth Amendment (rather than Article I, Section 2). Harper likewise found the right to vote in state elections to be protected by the Equal Protection Clause.
Treating the right to vote in state elections as a fundamental interest protected by the Equal Protection Clause has led to several problems in the Court’s jurisprudence. Notably, neither Harper nor Reynolds stand for the proposition that the right to vote in state elections has to exist, even if the corresponding right to vote in federal elections must exist. Grounding the right to vote in state elections in the Equal Protection Clause, according to the Court, permits states to choose whether to extend the right to vote to its citizens, but once available, has to be offered on equal terms. This notion of the right to vote as optional, rather than mandatory, is contrary to the traditional conception of the right to vote as a fundamental right that is “preservative of all other rights.” In addition, the equal protection framework, modified in decisions subsequent to Harper to be more deferential to state authority, has come to dominate the assessment of all regulations governing the right to vote, regardless if the law applies to state elections, federal elections, or both. Thus, the importance of the right to vote in federal elections, as originally protected by Article I, has gotten lost in the evolution of the Court’s standard of review from one that strictly scrutinizes state voter qualification standards to a balancing test that is extremely deferential to state authority.
I find this state of affairs to be completely perplexing given that the Voter Qualifications Clause provides that, with respect to voter qualifications for federal elections, “the electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislature.” Because this provision makes federal voting rights dependent upon participation in state elections, this framework suggests that the right to vote in state elections is not optional (as an Equal Protection analysis would suggest) and it has to broadly available in order to protect the fundamental right to vote in federal elections. In my next post, I will provide more evidence to show why this reading of Article I is the correct one.
State Judges and the Right to Vote
If you follow elections, you probably heard about the Supreme Court's last-minute decisions in the Wisconsin and Texas voter ID cases, stopping Wisconsin from implementing its ID law but allowing Texas to move forward with its law for the 2014 election. But unless you study election law, I bet you didn't notice the Arkansas Supreme Court decision invalidating that state's voter ID law, or the myriad other election cases state courts decide that affect the voting process.
But state courts are intimately involved in regulating elections, especially given that, unlike the U.S. Constitution, all state constitutions explicitly confer the right to vote. Indeed, to understand the meaning and scope of the right to vote, we need to study how state judicial decisions impact the way in which we run our elections. Below the fold I provide some details of my study of state judges and the right to vote.
This inquiry reveals some interesting trends.
First, state courts decide lots of cases on issues of importance, such as voter ID, felon disenfranchisement, the legality of voting machines, whether to keep polls open late, whether to count absentee ballots, and others. State court activity on voting rights is much more robust than federal court decision making in this area. Yet as legal scholars and as a society at large we tend to pay much less attention to state cases than to federal court decisions. Second, not surprisingly, "liberal" judges tend to construe the constititutional right to vote more broadly than "conservative" judges. Third, appointed judges are better than elected judges at ruling more broadly toward voting rights, especially for political minorities.
These gems--and others--fill up the pages of my new draft, State Judges and the Right to Vote. I'd be delighted for comments and thoughts on the piece. Here is the abstract:
State courts are paramount in defining the constitutional right to vote. This is in part because the right to vote is, in many ways, a state-based right protected under state constitutions. Yet our focus on state courts and on how state judges interpret the right to vote is sorely lacking. This article remedies that deficiency. It examines numerous state court cases involving voter ID, felon disenfranchisement, and the voting process, demonstrating that state courts vary in whether they rule broadly or narrowly toward voting rights. When state courts issue rulings broadly defining the constitutional right to vote, they best protect the most fundamental right in our democracy. On the other hand, state decisions that constrain voting to a narrower scope do harm to that ideal. Further, a preliminary analysis shows that liberal judges, as well as those who earn their seats through merit selection, are more likely to define the right to vote robustly as compared to their conservative and elected counterparts. Given that state judges impact our election system in significant ways through broad or narrow rulings on voting rights, we should advocate in favor of state courts and state judges who will broadly construe and protect the state-based constitutional right to vote.
SCOTUSBlog Preview: Finality and MDL
I have a SCOTUSBlog preview of tomorrow's arguments in Gelboim v. Bank of America, which considers whether a decision dismissing all the claims in one action, where that action has been consolidated for pre-trial purposes with other still-pending actions through multi-district litigation, is a final and appealable order.
Thursday, December 04, 2014
Prosecuting police--the role of the grand-jury pool
Alexi Lahav (U Conn) shares this op-ed by Ilaan Maazel suggesting reforms in policing police misconduct, including body cams (while recognizing they are not a panacea) and having all prosecutions handled by an independent special prosecutor rather than the local DA. In a Slate piece in September, Kate Levine suggested something similar (she specifically wanted to turn all cases over to federal prosecutors), which I questioned.
But in light of recent events, I am beginning to come around to the idea that Maazel and Levine are pushing. Moreover, I am coming around not only to the idea of requiring a special state prosecutor or the State AG, which Levine suggested and which I thought might work, but to the idea of making everything federal.
The focus in both the Brown and Garner cases has been on the respective local prosecutors and their supposed failures to be sufficiently aggressive. And the argument generally is that local prosecutors, by necessity, are always too close to the police.
But perhaps we also should consider the effect of the composition of a state as opposed to federal grand jury. Maybe part of the problem involves the likely decisions or actions of body drawn entirely from people in St. Louis County or Staten Island/Richmond County who are immersed in the local passions and politics; maybe a federal body drawn from the entire Eastern District of New York or Eastern District of Missouri, less immersed in those local passions and politics, can process things differently. Of course, it may not matter given modern media--everyone knows the details of high-profile cases such as these. But perhaps someone from Montauk or Cape Girardeau has a bit more distance from the events, a bit more distance from the local police, and thus a greater willingness to find a basis to pursue a criminal case.
Wednesday, December 03, 2014
Yung on police, lethal force, and video
Corey Yung weighs in at CoOp with six other instances in which police officers were not prosecuted (or otherwise sanctioned) for using lethal force against unarmed minority men, even when events were captured on video. Go watch.
Video does not prevent "another Ferguson"
A grand jury has decided not to indict a NYPD officer in the choking death of Eric Garner--an event captured on a cell phone video. Apparently the video "said" something to the grand jurors quite different than what it said to many other people who have seen it. That the chokehold maneuver is forbidden by department regs did not change anything. Nor did the fact that the officer used physical force against someone for selling loose cigarettes.
To the extent we hope video will create greater accountability, this result suggests maybe not--it obviously does not make an indictment more likely (it also is further proof that video would not have made a difference in the Michael Brown case). Nor is it likely to produce deterrence--police can respond with force to even the most petty misconduct. So bring on those body cameras; just do not expect them to change much.
Meanwhile, NYPD is preparing for the "potential contingency" of public protest, which of course means mass arrests and forcefully moving people off the streets.
Update: Nia-Malika Henderson at WaPo suggests the non-indictment hurts Obama's body-camera arguments. But she comes around to the right point--cameras are good, but they are not the solution and they will not alone achieve significant change.
Update II: This NPR story describes a lot of the developments over the course of the afternoon, including a "die-in" at Grand Central Station and the mayor canceling his planned appearance at the Rockefeller Center tree-lighting ceremony tonight, which may be a target for protesters.
Tuesday, December 02, 2014
Michael Brown and the return of Brandenburg
A colleague asks a question:
Did Louis Head, Michael Brown's stepfather, commit incitement within the meaning of Brandenburg? Law enforcement apparently is investigating possible charges. Immediately following the announcement of the grand jury decision, Head was captured on video (embedded-go to 2:30 mark) shouting "Burn this motherfucker down" and "Burn this bitch down" (as people around him tried to calm him down).
Brandenburg requires that incitement be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Brandenburg paradigm is a torches-and-pitchforks mob outside a poorly guarded jail and the leader saying "let's get that guy in there." We definitely have a mob here (although hardly in a poorly guarded area, since there were police in riot gear across the barricade and the National Guard was in the area). But I do not see how the state could show intent. There also is Hess v. Indiana, in which the Court overturned a conviction where the defendant was not addressing any persons or group and he was no louder than anyone else in the group. Certainly Head was at the center of crowd and he can be seen asking for a microphone or bullhorn, as if trying to address the crowd above the noise. But he also just appears to be one of many people shouting into the sky in a show of anger, in his case, immediately after embracing his wife, who had just broken down.* He just happened to be caught on camera, which raises an interesting question--if his words reached millions watching TV but not the people who did the actual rioting, can he be said to have incited the crowd?
* Yes, I acknowledge that this perception may be influenced by my views of the case and the First Amendment and that mileage may vary.
I have been kicking around an idea that the legal change to come out of Ferguson may be all about the First Amendment--militarized police responding to public gatherings, negotiations on rules of public protest, citizen video, unconstitutional move-along policies. A good old-fashioned incitement/advocacy of unlawful conduct argument would top that off.
Media, Op-Eds, and the Value of the "Extra" Things We Do as Law Professors
Today CNN published an article quoting me about the Kentucky law that prohibits Rand Paul from appearing on the ballot for both President and U.S. Senate at the same time. During the election season I published a few Op-Eds on various issues involving the electoral process. Beyond the shameless self-promotion, in this post I want to explore the value of law professors appearing in the "popular press." Why do some professors welcome media inquiries or write Op-Eds? And what value should our schools give to that activity?
In my view, there are several benefits to using the popular press to share our expertise. Of course, there's the inherent "wow" factor in seeing one's name in a major publication. But that's purely self-serving. I think there more signfiicant instutitional and prudential considerations for being quoted or writing an Op-Ed.
First, it brings publicity to one's law school. Especially given that I teach at a public institution, I believe it is my duty to explain complex election law problems to the general public. It provides institutional goodwill, giving the state's taxpayers some additional value for employing me.
Second, it helps expose more people to my work. In an age when judges and others question the value of legal scholarship, using the popular press shows the world how scholarship relates to the "real world" and can have an actual impact.
Third, I think it makes me a better scholar. When I have to distill a concept from a law review article into a quote or Op-Ed, it inherently makes me refine and shape the overall argument.
Fourth, it assists my teaching. Law students are generally not "experts," and one goal of classroom instruction is to explain complex topics in easy-to-understand ways. The more we practice this technique, whether in the classroom or in the media, the better we are at what is often a very difficult task.
But this discussion raising an intriguing question: what value should this kind of activity have in our assessments? It's not obviously teaching, scholarship, or service, although it fits in with all three activities. Should law schools value this activity more? Or is the inherent excitement of being known publicly as an "expert" enough?
I'm not sure. I engage in these activities because, as noted above, I believe it is my public duty, and because I think it makes me a better scholar and teacher. Plus, I have tenure now, so does it matter anyway?!
Wednesday, November 26, 2014
When "protests" become "riots"
Tim's final post talks about Monday's protests turning violent and destructive (and the process being repeated on Tuesday) as a tipping point, in which public (and media) support and attention shifts away from the protesters. I do not know if we have hit that point. There is still much to sort out about what has been happening on the ground the past few nights. And it appears that many of the unlawful mistakes we saw in July (mass arrests of even peaceful protesters, arresting people for recording) are being repeated. And the number of sympathy protests across the country (many far more peaceful) may suggest a deeper level of support.
Nevertheless, Tim's point about public sympathy reminded me of Walker v. City of Birmingham (which I wrote about last week) and what it indicates about the connection between public speech and public support. The events in Walker occurred during Easter Week 1963, four months before the March on Washington, when the violent response to peaceful were entering living rooms--arguably at or near the height of public support for the movement. But the case did not reach SCOTUS until 1967 (argued in March, decided in June). By that point, we had seen the same shift in public support and sympathy away from civil rights protesters and the movement, given the increasing militancy in the movement, as well as public concern about riots (on race, the war, etc.) throughout the country.
Brennan suspected that the changed social circumstances had influenced the majority in rejecting the protesters' First Amendment arguments. He closed his opinion with a sharp reminder that public fears about riots should not override the right to peaceful public protest. The first part remains applicable to current events:
We cannot permit fears of "riots" and "civil disobedience" generated by slogans like "Black Power" to divert our attention from what is here at stake -- not violence or the right of the State to control its streets and sidewalks, but the insulation from attack of ex parte orders and legislation upon which they are based even when patently impermissible prior restraints on the exercise of First Amendment rights.
Tim is correct that public sympathy wanes. The right of public protest should not wane with it.
Ferguson – What Now? (guest post)
This is the final post on Ferguson from Timothy Zick:
Monday night, peaceful vigils and other protected forms of protest were largely overshadowed by acts of violence and destruction. As headlines attest, the Ferguson “protests” have already been displaced in the news cycle by the Ferguson “riots.” The facts are still coming in, but by most accounts police were not the instigators. The commercial and other costs must be laid at the feet of the lawless, who engaged not in legitimate protest or demonstration but in petty and more serious criminal activities. While their frustration may be understandable, their actions were obviously neither wise nor constructive. The violence was not, as some have suggested, inevitable. Whatever their underlying causes or motivations, the riots were a choice.
There will be additional protests and demonstrations in Ferguson and elsewhere. Hopefully they will be vocal, but peaceful, events. The issues are worth demonstrating about. But as I wrote in my previous post, public sympathy will not be with the protesters forever. Last night may have been a tipping point. The media will focus on Ferguson for a bit longer, but the news cycle will inevitably find other conflicts and the press will move on. Many left behind will have expressed their outrage, or have been affected by the actions of those who did so. What will be the legacy of the Ferguson protests (past, present, and future)?
In the wake of last night’s events, hopelessness seems to be pervasive – particularly among many Ferguson residents, who have been witnesses to the conflict from the beginning. The protests and demonstrations have not been empty or meaningless events. They have pricked the public conscience, highlighted grievances, jump-started conversations about social and political issues, and demanded attention from public officials. It would be unfortunate if rioters tarnished or diminished some or all of these important accomplishments. What happens next depends on forces that lie beyond public streets and other public forums. Too often, protesters do not follow action in the streets with concrete social and political activity. Protests and demonstrations are not ends in themselves. They can be catalysts for change, but only if organizations and associations work to channel their outrage and energy. Expressions of outrage from civil rights leaders are fine. But Ferguson desperately needs an organization, preferably a local group, to take the lead. Other elements of the community can also work toward policy changes. Rioters can trade bricks for ballots, residents can work toward rebuilding or strengthening community ties, and officials can follow through on promises made in the heat of the moment – or be held accountable by higher authorities. What’s next for Ferguson is not at all certain. The protests and demonstrations have created an opportunity and suggested an agenda that includes criminal justice reform and protection for civil rights. For the sake of Ferguson itself, let’s hope that peaceful activists seize that opportunity.
Osofsky on tax nonenforcement (guest post)
So how should we judge nonenforcement given the difficulties of the existing lenses? I am not sure I have the final answer but I do believe that something important has been left out of the analysis thus far. When an agency does not enforce the law, it is substantially affecting rights and obligations. A long line of literature regarding administrative legitimacy has contemplated how an agency can have a substantial impact on rights and obligations under the law in a legitimate way. Three hallmarks of agency legitimacy are: accountability (under political accountability theories of the legitimacy of the administrative state), deliberation (under civic republican theories of the legitimacy of the administrative state), and nonarbitrariness (under nonarbitrariness theories of the legitimacy of the administrative state).
Monday, November 24, 2014
Following the grand jury declining to indict Officer Wilson in the shooting death of Michael Brown, the Brown family released a statement specifically calling for a "campaign to ensure that every police officer working the streets in this country wears a body camera." Yes, give everyone a camera--but do not expect it to have as conclusive an effect as you think it will. Video likely would not have changed the grand jury's decision. Perhaps it would have made him less likely to shoot, but I think the deterrent argument is open to debate right now.
A couple things for crim law experts:
1) Is it the grand jury's role to weigh and select between conflicting evidence in deciding whether to indict? The DA made much of the conflict between the physical evidence and the testimony of witnesses, as well as the inconsistency between different witnesses and between statements by particular witnesses. But is that the issue for a grand jury determining probable cause? Or is that supposed to be left for an open trial on culpability? Is it typical for the prosecutor to point out those inconsistencies now? Or is that for defense counsel at trial? Here are two arguments on that, noting that the DA spoke of the grand jury's job as to "separate fact from fiction." Is that wrong?
Now, I know prosecutors often will not seek an indictment if they believe they have enough for probable cause but not to convict, in light of possible witness-credibility problems. But does witness credibility often suggest the absence of probable cause?
2) It seems to me the question is what evidence the grand jury heard showing that Brown posed a continued threat to Wilson. The rule seems to be that a police officer is entitled to keep shooting until the threat is over. It appears that Wilson fired ten shots at a distance (following two fired at close range). The question must be whether any of those initial shots incapacitated Brown.
3) How common is it for the target to testify before a grand jury? How common is it for defense counsel to allow a client to do so?
Sunday, November 23, 2014
Judicial Elections and Historical Irony
Last week I was privileged to participate in a conference in New Mexico on the judiciary. The debates and assigned readings focused especially on judicial elections (a new issue-area for me). There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).
“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states. This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).
With many judicial elections now under the shock of increasing party polarization, interest-group mobilization, and campaign spending, it seems likely that these calls to end judicial elections for the sake of judicial independence will only intensify. Yet one of the historical ironies I learned from the conference readings is that “judicial independence” was also the primary value that was put forward as the rationale for creating elected judges in the first place.
In the mid-nineteenth-century campaigns for an elected judiciary, however, the sort of judicial dependence that was especially targeted by reformers was judges’ dependence on state legislatures and associated party machines that had become corrupt or spendthrift (especially in economic development projects). It was hoped that a switch to elected judges would empower judges to reign in discredited legislatures, policing them for their fidelity to the state constitutions (“the people’s law”) while keeping judges accountable to the people through elections (and later, recalls).
The longer history of elected judges in the United States offers many other enlightening contrasts with today’s premises. (The stance of the professional bar towards the desirability of elected judges flipped over time. The dominant presumption about whether appointed or elected judges are the ones more likely to lean conservative or liberal also flipped over time…) For now, however, I only want to ask one question of this rich history—whether it makes plausible the possibility that, in some states, contemporary reform movements to eliminate elected judges will have unintended adverse consequences for democratic responsiveness and the separation (or balance) of powers between the judiciary and other branches of government.
My question is prompted--not by a preference for elective over appointive judiciaries--but by the historical scholarship that shows that the nineteenth-century push for elected judges was often packaged with—and used as a justification for—very substantial expansions of judicial power and very substantial curtailments of legislative power. Making state judges electorally accountable was supposed to make it safe to greatly expand the role of judicial review of legislation, and to give judges much more independence from the other branches in the terms and conditions of their appointments.
This new form of judicial accountability to the electorate even justified a judicial role in which judges were tasked to police procedural constraints on the legislatures, including rules that had previously been considered essentially internal to the legislature (perhaps—I wonder—starting to unravel some of the Anglo-American tradition of legislative autonomy and privileges that had taken centuries to develop). Meanwhile, this change in the role of judges may also have coincided with the decline of juries.
If much of the nineteenth-century judicial empowerment and legislative disempowerment was enacted on the premise of it being bundled with judicial elections, then I ask—if some states now revert to appointed judiciaries without also considering the larger package—do they risk an institutional imbalance or loss of democratic accountability in the legislature and executive? (Perhaps this question is already asked and answered somewhere in current policy debates or scholarship?)
It would be nice to think these structural matters of constitutional development tend towards equilibrium in some organic fashion. At the least, we can expect that state legislatures and executives will long retain the cruder sorts of tools for reining in abuses of appointed judges. Depending on the particular state, these might include decisions about judicial budgets, impeachment or removal of a judge upon legislative address, jurisdiction-stripping, court packing, or informal control of judges through the influence of political parties and the professional bar. Nonetheless, I find it just as easy to imagine that judicial empowerment at the expense of legislatures might be ‘sticky’, if never a one-way ratchet. Here I am influenced by the social science accounts that suggest that, around the world today, judicial power has been much expanding at the expense of legislatures. I am also thinking about the possibility that there may be institutional biases in some states against structural adjustments (like ’single subject rules’).
In theory, the public should have the capacity to ensure that one branch of government never gets too big or unaccountable. In the many states that are characterized by constitutions relatively easy to amend, constitutional change is, after all, supposed to occur more through formal amendment processes than through judicial interpretation. Even so, query whether such large structural questions lend themselves to retrospective scrutiny and popular oversight. (This is a real, not rhetorical, question for someone who has a lot more knowledge about the states and judicial reform movements than I now have.)
John J. Dinan, The American State Constitutional Tradition (Univ. Press of Kansas, 2006)
John Ferejohn, “Judicializing politics, politicizing law,” Law and Contemporary Problems 65 (3): 41–68 (2002).
Jack P. Greene, The Quest for Power: The Lower House of Assembly in the Southern Royal Colonies (Norton, 1972)
Jed Handelsman Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Harvard Univ. Press 2012)
G. Alan Tarr, Without Fear or Favor: Judicial Independence and Judicial Accountability in the States (Stanford Univ. Press 2012)
Thursday, November 20, 2014
Zick on public protest and Ferguson
Many thanks to Howard for inviting me to weigh in on the events in Ferguson, Missouri. I’ll probably add just a few posts to his excellent commentary, depending on how things develop.
The conflict in Ferguson has presented a free speech moment – or series of moments. In addition to the much-discussed protests (more on that below), there have been several other First Amendment issues and concerns: advocacy of civil disobedience by some protesters, arrests for unlawful assembly, allegations that prior restraints have been used, arrests and abuse of the press, occupation of public places, use of “free speech zones,” and concerns about the propriety of Ferguson police officers wearing bracelets that express support for Officer Wilson. In short, there has been no shortage of First Amendment controversies following Michael Brown’s death.Of course, the protests themselves have occupied center stage. The media are attracted to conflict, and the conflict is important. Once again, we have seen the delicate balancing of tolerance and respect for public assembly and speech with the need for order and public safety playing out in real time. And once again, the results have been disappointing - or worse. As I argue in my book, Speech Out of Doors, a variety of legal and non-legal forces have combined to challenge traditional protests and other public modes of contention and dissent. Howard has thoughtfully posted on some of the problems associated with the militarization of public places and escalated force protest policing (e.g., here and here). Chapter 7 of my book examines militarization at various public events, including national party conventions, presidential inaugurals, and world summits. Militarization has been on the rise, in part owing to post-9/11 federal dollars flowing to local police departments. As Ferguson shows, local police forces across the nation are now equipped with the tools of militarization. Some have used surveillance, shows of force, and other military tactics in policing local events.
Of course, the possession of military-style equipment does not guarantee the use of escalated force. Police forces can and do act with appropriate restraint. Some of Howard’s commenters have asked about evidence for the link between militarization and protester responses. Social scientists have carefully studied protest policing, and they have argued in favor of a “negotiated management” style in part owing to the costs of escalated force policing. Of course, there is historical evidence that escalated force leads to violent confrontations – the 1968 Democratic National Convention in Chicago, the WTO debacle in Seattle in 1999, and recent national party conventions in Boston, New York, and elsewhere. Sure, some protesters at these events were looking for violence. And sure, sometimes police need to respond with force. But as Howard’s posts suggest, one of the problems with militarization is the attitude it sends about public protests and public places. As a mindset, militarization can exacerbate and even invite conflict. This was one reason many police departments abandoned escalated force policing. It’s come back, in the form of militarization. I’m skeptical that we can keep arming police to the hilt while expecting them to exercise restraint in the face of angry and emotional crowds. When officers divide streets into military-style grids and gird for battle, even peaceful protesters and reporters are at risk. To be clear, there is no excuse for lawless behavior by protesters. Nor is criticism of militarization meant to suggest “anything goes” protest policing. Balance, proportionality, and forbearance are required. But too frequently of late, these things have been in short supply at public events.
To their credit, Ferguson officials have tried everything from personnel changes to personal apologies in an effort to calm the public and preserve rights to peacefully protest and assemble. Nevertheless, today there is a sense of foreboding in the press and on the blogs (including this one) about what will happen next. Last night’s arrests of protesters outside a barricaded police station may be a harbinger of things to come, in Ferguson and elsewhere.
Rules of engagement, ctd.
In looking at the rules of engagement offered by leaders of potential Ferguson protests (calling themselves the "Don't Shoot Coalition") as a whole, the central question becomes one of defaults. The default, they argue, must be that this is a peaceful assembly and expressive event that police should allow to go forward without interference unless there is genuine indication of significant threats to public safety. And even then, the default should be that those threats are from individual lawbreakers, who should be dealt with, and not the demonstration itself or the great mass of lawful speakers and speech.
Of the 19 proposed rules, consider: # 16 (allow "every latitude" for free assembly and expression); # 15 (tolerate minor lawbreaking); # 14 (tolerate an expansion of the scope, size, or duration of the protest); # 13 (figure out alternate routes for foot and street traffic); ## 7-8 (not military gear or equipment--this is one the police flatly rejected); # 18 (no attempts to preemptively or pretextually stop protesters from organizing and beginning). This is not to mention more common-sense rules, such as be professional and don't use excessive force (# 17--we really need to state that rule?)
We can disagree over particulars. But the tenor seems right to me: Start from the presumption that this is lawful and deal with it when it isn't, rather than the other way around.