Thursday, June 25, 2015
Singletons in film
Much deserved praise is being heaped on the new Pixar film Inside Out, which is setting all sorts of box-office records and gaining all sorts of critical acclaim. It has earned praise for (finally) featuring a lead female character (arguably 3 of them) who is not a princess, who likes sports, and who seems like a typical kid. It is a comprehensible visualization of how emotions and the brain genuinely work--the producers consulted with neuroscientists, psychologists, and other smart people, who have talked about what the film captures. And it makes parents cry about their children (especially daughters) growing up.
I want to mention one side point, which is not central to the story or its consequences, but still worth noting: Riley, the 11-year-old lead character, in whose head the action takes place, has no siblings (I hate the term "only child" and find "singleton" better, if essentializing). And this is presented in the film without remark or commentary. This is a story about a "typical" preadolescent girl who is happy, good natured, well-adjusted, close with her parents, has friends--all traits not associated with the stereotype of the spoiled or lonely singleton (all of which have been debunked, but which still carry cultural resonance). What she experiences in the film--as she becomes moody and isolated--is depicted as the ordinary work of ordinary emotions and growing up. And I was happy to see that the filmmakers did not feel the need to throw in an annoying younger brother, either for comic relief or to create a "complete" family.
Parents and one child can a family, with a happy child, make. I just like to see pop culture catch up with that idea. Or better yet--not even have to mention it.
Strange Bedfellows #10: Why So Tense?
This post is part of the Strange Bedfellows series.
A few blockbuster cases remain for SCOTUS to decide this term, and given the current make-up of the Court, this means a high likelihood of fire-breathing dissents. Teachers—and particularly casebook authors—need to decide which lessons, if any, to draw from these dissenting opinions. For myself, I always like to spend some time on at least a few throughout the semester, for what they teach us about the substance of the law and about the art of advocacy.
The substantive lesson comes in large part from considering which cases provoke verbal fireworks and which do not. At the outset, constitutional law is more likely than other legal subjects to provoke heat, and within the Con Law canon some topics provoke more flame wars than others. The flamer is trying to signal that something important is happening, so a suitable question for the class can be “why are they so upset?” This is especially valuable when a case that seemingly involves low stakes provokes what seems like a rhetorical overreaction, as in Caperton v. Massey Coal (2010) (judicial recusal) or BMW of North America v. Gore (1996) (punitive damages).
The advocacy lesson is equally important. The rhetoric in court opinions is worth teaching to law students not as literary criticism for its own sake, but as a model of lawyerly writing. Since we tend not to assign actual briefs to our students written by lawyers, their main exposure to persuasive legal writing takes the form of opinions written by the lawyers on the bench we call judges. When an opinion exhibits a style that deviates from the mean, it can be a good opportunity to discuss whether it was effective, and whether students should pursue a similar tone in their own submissions. My students may just be telling me what I want to hear, but they usually say that bluster turns them off—even though really good bluster can be pretty exciting. Good opinions for this kind of discussion include Justice Scalia’s dissents in Planned Parenthood v. Casey (1993) and US v. Virginia (1996), and Justice Blackmun’s self-involved hand-wringing in Casey and DeShaney v. Winnebago County (1989).
As a casebook author, I faced the question is how much to leave in. For Caperton (discussed in an earlier post in this series), I retained almost all of the dissents of Chief Justice Roberts and Justice Scalia, largely because both strive for Biblical stature in way that skeptics might consider borderline clownish. To demonstrate that the majority's constitutional rule (mandating judicial recusal when there is an objectively perceivable probability of bias) would be unworkable, Chief Justice Roberts posed a list of forty questions that would need to be resolved in future cases. Think forty days and forty nights, or forty years in the wilderness. Most casebooks seem to edit down the list; you get the point pretty quickly. But I decided to keep the whole thing (four pages worth)—because it is revealing to ask students during class how many of them actually read all forty. The honest ones will admit they skipped it, just as I did the first several times I read the opinion. The overblown Roberts dissent presents a good opportunity to discuss when less is more.
As for Justice Scalia’s Talmud-quoting dissent in Caperton, I kept it largely for his last sentences, which were these: “The relevant question, however, is whether we do more good than harm by seeking to correct [state courts] through expansion of our constitutional mandate in a manner ungoverned by any discernable rule. The answer is obvious.” (emphasis added) Anytime somebody tells you the answer to a contested legal question is obvious, or that a question answers itself (as in the inexplicable Goesaert v. Cleary (1948), discussed in an earlier post), it’s time to reach for your revolver.
Wednesday, June 24, 2015
In Anticipation of Glossip
I’m excited. Not like Harry Potter World excited, but excited in that geeky, purely academic way that sometimes feels inappropriate in the death penalty context. The Supreme Court will issue its ruling in Glossip any day now, and certainly within the next 7 days. What will the Justices do?
I posted a comment earlier titled why is Glossip hard? so yeah, you could say I have a point of view. In this post, I’ll pick up where I left off, and think a bit more about what seems to be making this easy case hard, at least for the Court’s conservatives: abolitionist sentiment.
The reason the Court is stuck considering the constitutionality of midazolam in lethal injection protocols is that the states are stuck using it. More effective drugs—sodium thiopental, pentobarbital (of the uncompounded variety), and propofol—have all been taken off the market, or at least out of executioners’ hands, by the companies that make the drugs.
Why? In part it’s because abolitionists have played the ‘name and shame’ game, calling out drug companies whose mottos include “advancing wellness” for selling their drugs to put people to death. And in part it’s because European governments, which have long been abolitionist, have tightened their export controls. So yeah, it’s fair to say abolition sentiment of one variety or another is behind the current shortage of death dealing drugs.
Los Angeles v. Patel: A Successful Fourth Amendment Facial Attack
The Fourth Amendment protects "people, not places", but in applying it the courts seem to care quite a bit about places, too. As Jason Miller's explains in his useful note in the Seton Hall Circuit Review, while the Fourth Amendment principles behind hotel room searches are the same as behind any search (reasonable expectation of privacy awards standing for overnight guests), but hotels pose special fact-sensitive challenges, including registration under an alias, registration for a third party, paying with a fradulent credit card, exceeding checkout time, and the classic from Minnesota v. Carter--booking a room solely for the purpose of bagging cocaine.
But this week's decision in Los Angeles v. Patel required the Supreme Court to examine hotel searches via a different prism. This was not a motion to dismiss evidence or a §1983 lawsuit, but rather a facial challenge brought by motel owners against a Los Angeles city ordinance that requires them to maintain a careful registration of hotel guests' names, makes of cars, photo ID for cash payers, and sometimes credit card information. The information needs to be kept for 90 days and--which is the provision at issue in Patel--made "available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the operation of the business.” Failure to comply, a misdemeanor, is punishable by up to six months in jail and a$1,000 fine.
The reasoning for the ordinance are fairly obvious: in his dissent, Justice Scalia explains that "The purpose of this recordkeeping requirement is to deter criminal conduct, on the theory that criminals will be unwilling to carry on illicit activities in motel rooms if they must provide identifying information at check-in. Because this deterrent effect will only be accomplished if motels actually do require guests to provide the required information, the ordinance also authorizes police to conduct random spot checks of motels’ guest registers to ensure that they are properly maintained." But it is also understandable that motels are well aware of other reasons why their clientele might not wish to be exposed in the registry, and see the ordinance as an interference with their business model (apparently, there's a whole line of hotels called "Mr. and Mrs. Smith"!).
Can they successfully challenge the Fourth Amendment, even though in any individual guest's case the police might be able to search a room with a warrant or a recognized exception? By a 5:4 majority, the Supreme Court answers this question in the affirmative.
Policing False Speech in Political Campaigns
I'm working on the update memo for my Mass Media Law casebook while simultaneously working on a new edition, which means I'm coming across some interesting cases I missed when they came out. One of these is Eighth Circuit's decision in 281 Care Committee et. al. v. Arneson, No. 13-1229 (Feb. 13, 2014), which strikes down a Minnesota law attempting to assign administrative law judges and county attorneys the job of policing the truth of statements partisans make for or against ballot initiatives. Arneson involved a challenge by advocacy organizations to the constitutionality of a Minnesota law making it a gross misdemeanor for a person to prepare or publish a political advertisement or campaign materials supporting or criticizing “a ballot question, that is false, and that the person knows is false or communicates to others with reckless disregard of whether it is false.” Minn.Stat. sec.211B.06, subd. 1. Under the statute, any person can trigger an investigation by an administrative law judge to determine whether probable cause supports the complaint. Upon such a finding, the ALJ may refer the case to a panel of three ALJs for further determination or may refer the matter to a county attorney to prosecute.
A district court held that the statute served a compelling interest in preserving fair elections and preventing frauds on the electorate. The U.S. Court of Appeals for the Eighth Circuit reversed. The Eighth Circuit held that the advocacy organizations had standing to challenge the statute and that the statute was a content-based regulation of political speech that violated the First Amendment. The district court, citing the plurality and concurrences in United States v. Alvarez (striking down the Stolen Valor Act), determined that the appropriate constitutional standard was intermediate scrutiny, but the Eighth Circuit distinguished Alvarez because it did not involve core political speech; moreover, the court noted that the false assertion criminalized by the Stolen Valor Act--that one received a military honor one did not receive--is verifiable objectively. In contrast, the Minnesota law targeted "false" political speech that was likely to include opinion or other unverifiable political speech. The court therefore concluded that strict scrutiny was the appropriate standard to judge the Minnesota law.
Applying strict scrutiny the court determined that, regardless of whether Minnesota’s interests in passing the statute were compelling, the statute was neither necessary nor narrowly tailored but instead was “simultaneously overbroad and underinclusive, and [was] not the least restrictive means of achieving any stated goal.” The court bolstered this conclusion by observing that the State had failed to show “an actual, serious threat of individuals disseminating knowingly false statements concerning ballot initiatives.” Furthermore, and more central to the court’s analysis, was its determination that the statute “tends to perpetuate the very fraud it is allegedly designed to prohibit.” As the court cannily deduced, the Minnesota statute lends itself to use by political adversaries seeking to undermine the message of their opponents. Filing a complaint against one’s opponent can be used as a political tool to undermine the opponent’s message and force the opponent to “’to devote time, resources, and energy defending themselves.’” All of these strategic political goals can be accomplished by a complainant whether or not his or her complaint is meritorious. The filing of the complaint itself becomes a news item and casts doubt on the credibility of the speaker, and the investigation takes up time and money even if the investigation ultimately terminates in one’s favor.
Strange Bedfellows #9: The Frame Game
This post is part of the Strange Bedfellows series.
The Con Law canon contains many opportunities to teach how the choice of frame greatly can affect the outcome of a case. In many cases, an advocate’s first and most important task is to convince the judge properly fill in the blank in the following sentence: “This is a case about ____.”
My favorite example is Johnson v California (2005), where a prisoner objected to a state department of corrections policy to house inmates with cellmates of the same race. The majority filled in the blank by concluding that “This is a case about race,” which meant that strict scrutiny applied. The dissenters filled in the blank by concluding that “This is a case about prisons,” which meant that a standard much more deferential to governmental decisions would apply. Nothing in existing law forced the court to choose one frame or the other, making Johnson a great opportunity to explore methods of persuasion with students. What would you say to convince the judge to use your frame instead of your opponent's?
The frame game inevitably reveals itself in many canonical substantive due process cases, but it can also be woven into discussions of cases arising under many different doctrines.
Fifty Years of Criminal Procedure – the Subject and the Casebook
The following guest post comes from regular reader and commenter Orin Kerr (GW and The Volokh Conspiracy) and is sponsored by West Academic.
Fifty years ago, in 1965, a young professor named Yale Kamisar paired with a more established professor named Livingston Hall to publish a new casebook that introduced a new academic field. That casebook, Modern Criminal Procedure, was the first casebook about a then-new field of criminal procedure. When the first edition was published, the Warren Court was in the midst of its so-called “criminal procedure revolution.” Mapp v. Ohio was four years old, and Gideon v. Wainright was two. Massiah v. United States and Escobedo v. Illinois were hot off the presses (literally). Miranda v. Arizona would follow the next year, with Katz v. United States the year after that and Terry v. Ohio the year after that.
Tuesday, June 23, 2015
Thomas More's advice for bloggers
Yesterday, for some, was the feast day of St. Thomas More (patron saint of lawyers and statespersons). It turns out, he was also pretty prescient w/r/t social media. Here is some advice from him for bloggers!
An excerpt from a letter of St. Thomas More to Erasmus, written on the 14th of June, 1532:
Congratulations, then, my dear Erasmus, on your outstanding virtuous qualities; however, if on occasion some good person is unsettled and disturbed by some point, even without making a sufficiently serious reason, still do not be chagrined at making accommodations for the pious dispositions of such men. But as for those snapping, growling, malicious fellows, ignore them, and, without faltering, quietly continue to devote yourself to the promotion of intellectual things and the advancement of virtue.
(HT: Ryan Patrico).
Openness to Discuss Prison Conditions: Will SCOTUS Deliver on its Promise?
Yesterday marks the second time in a week in which Supreme Court opinions that did not directly involve incarceration conditions included dicta that signaled readiness to hear and discuss them.
The first one was Justice Kennedy's concurring opinion in Davis v. Ayala, which I discussed in a previous post. There, Justice Kennedy offers a reminder that the respondent spent a quarter century under solitary confinement, and discusses the evils of these prison conditions.
The second one came yesterday, in Kingsley v. Hendrickson, which did not involve an inmate, but rather a pretrial detainee who sued jail officials for excessive use of force. Given the Bell v. Wolfish determination that pretrial detention did not count as "punishment", Kingsley could not recur to the Eighth Amendment, and instead made a Fourteenth Amendment due process claim. In a 5:4 decision split along predictable lines, Justice Breyer sided with Kingsley, finding that the appropriate test for use of force situations in pretrial detention is an objective test.
We acknowledge that our view that an objective standard is appropriate in the context of excessive force claims brought by pretrial detainees pursuant to the Fourteenth Amendment may raise questions about the use of a subjective standard in the context of excessive force claims brought by convicted prisoners. We are not confronted with such a claim, however, so we need not address that issue today.
Could the proximity of these two posts be contributions to Jonathan Simon's "dignity cascade"? The real test, I expect, will be when claims about prison conditions are brought directly, rather than acknowledged in passing in other contexts.
To Start a Race War: Dylann Roof and White Supremacy
The mass murder of parishioners at the historic Emmanuel African Methodist Episcopal church in Charleston, South Carolina law week, by a young white supremacist intensified the already profound national conversation about racism and violence that has been building since the killing of unarmed teenager Trayvon Martin in 2012. There are more topics in play around Charleston than any single post (even an over long one like this) can address. So a couple of brief points before an extended discussion of one question, already taken up here on Prawfsblawg by Rick Hill (but I come out a bit different). whether to categorize the act as one of terrorism or as an example of a mentally deranged or ill person taking an otherwise unthinkable action. My answer, we its an act of terrorism that calls for a political response, but we need a more complicated framework to think about how mental illness and acts rooted in diseased ideation can parallel acts of terrorism.
Monday, June 22, 2015
Strange Bedfellows #8: Precedential Floors and Ceilings
This post is part of the Strange Bedfellows series.
The strange bedfellows presented so far in the series have been pairings of cases that reveal something interesting or unexpected about the substance of constitutional law. But as we all know, courses in Constitutional Law are required at most schools only in part for their substance. Since the substance is subject to (comparatively rapid) change, much of the value in the course is in how it can teach the set of legal skills necessary when dealing with a controlling text that where “majestic generalities” predominate. The next few posts looks at cases that could be taught together (or at the very least, linked together orally if not taught the same day) for their similarities of legal reasoning.
A recurring issue in any young area of law—and US Constitutional Law is young when compared to the common law topics like contracts and property—is how to reason from sparse precedents. Specifically, in an area with only a handful of decisions on point, do those precedents represent a ceiling or a floor?
The question is presented unusually cleanly in Caperton v. Massey Coal (2012), which asked whether an elected judge violated procedural due process by failing to recuse himself from a case where one of the litigants had spent millions on advertising to put that judge into office. Two earlier SCOTUS decisions involved the due process ramifications of judicial recusal. Tumey v. Ohio (1927) found that it violated due process for a judge sitting without a jury to decide cases under a system where his compensation would be greater if he convicted than if he acquitted. (As it happens, this structure was also part of the federal Fugitive Slave Act of 1850, but the due process implications were not explored at the time.) In re Murchison (1955) found that a due process violation where a judge tried a criminal contempt charge that occurred before him during an atypical grand jury proceeding. For the Caperton majority, these two cases represented a floor: due process might require recusal in other settings as well. For the Caperton dissenters, the two cases were a ceiling: “Until today,” wrote Chief Justice Roberts, “we have recognized exactly two situations in which the Federal Due Process Clause requires disqualification of a judge.”
Query: In choosing a casebook for your class, to what extent is the book's cost (to the students, of course) a consideration for you?
Walker meets Wooley
In last week's Walker v. Sons of Confederate Veterans, SCOTUS held that specialty license plates constitute government speech, meaning the state can exclude or include whatever groups or messages it wishes, regardless of how viewpoint discriminatory it is being. This basically resolves controversies currently pending in several states over pro-choice/anti-choice license plates--the state can do what it wants. It can allow for both messages, exclude both messages (albeit for different reasons than the Second Circuit relied on in upholding New York's blanket exclusion of messages relating to controversial political subjects, such as abortion), or exclude one and include the other. The Fourth Circuit is currently considering a challenge to North Carolina's program, which offers a "Choose Life" plate but rejected a plate in support of reproductive freedom. Walker ends that dispute and requires that the state's program be upheld The Fourth Circuit last year held invalidated North Carolina's program allowing for a "Choose Life" plate but not a corresponding plate in favor of reproductive freedom; a cert petition is pending.
So is there any way for a person in North Carolina to use a license plate to display a message in support of reproductive rights when the state refuses to allow that specialty plate? How about this: Pay for the "Choose Life" plate, then make a conspicuous show of placing tape or something else to cover the anti-choice logo. The First Amendment allows a driver to cover the state-speech motto on the plate, as the state cannot compel a driver to serve as a "'mobile billboard'" for the State's ideological message." Under Walker, "Choose Life" is the state's ideological message for Wooley purposes, which a driver cannot be compelled to display. The obvious way not to display the state's message is to not purchase the "Choose Life" plate, which the state does not compel (unlike New Hampshire's general "Live Free or Die" plate). On the other hand, if the state did compel that as its sole license plate, a person unquestionably could cover the logo.
It follows that First Amendment should also protect a person who combines those options: Pay the extra money for the specialty plate specifically so she can cover the state's message.* Covering a state-sponsored message with which a person disagrees involves a protected message that is different from declining to purchase and display that message in the first instance. Additional meaning flows from the person not just counter-speaking to the state message, but using the state message as the vehicle for the counter-speech. For a stark comparison, an individual is not obligated to purchase or display an American flag, although she may choose to purchase it so she can set it on fire. Each presents a different message that a speaker is entitled to put forward. Given that difference, the state should not be able to successfully argue that the driver lost her right to cover the slogan, a la Wooley, because she willingly paid extra for the plate with that slogan.
[*] There is a separate question of whether anyone would want to do this. My understanding is that in some states, a portion of the money for some specialty plates goes to the cause reflected on the plate. So a supporter of reproductive freedom will not buy the "Choose Life" plate, even to make the statement of covering the logo, if the money is going to anti-choice causes.
Sunday, June 21, 2015
In Memoriam, Roderick M. Hills, Sr.: Fathers' Day Thoughts on Work-Family Balance
My Dad died last Fall. I have always admired how he lived his life, and, on this Father’s Day, I would like to share some thoughts about one important aspect of his personality that might have special interest for young lawyers and law students: Dad’s arguably irrational exuberance about his work. His boundless optimism and excitement about his professional life (as a lawyer, government official, anti-corruption crusader, among other things) had its costs – most obviously as a distraction from his four kids. But it had benefits for us kids as well. After the jump, I’ll offer some reasons for why a father’s love of his work can be an important part of what it means to a good father.
Friday, June 19, 2015
Is Honesty about American Racism Really the Best Policy? Some Thoughts on the Charleston Church Massacre and the Ambiguous Value of Candor
It is completely predictable in our polarized nation that there are two competing narratives about the Charleston Church massacre. One narrative is that the actions of Dylann Roof, the young murderer, reflects and is inspired by a toxic and pervasive brew of wistfully nostalgic white supremacy and racist paranoia that swills around the internet and spills out into the open in Freudian slips and occasional acts of terror. Such murders are not the random, inexplicable acts of lone lunatics. They are instead a disturbed individual’s taking literally the day-to-day racist fantasies and nostalgia of millions of white Americans, attitudes that foster websites like Stormfront.org and practices like the flying of the Confederate flag outside public buildings. This narrative is best captured by Jon Stewart’s passionate denunciation of the widespread tendency to treat Roof’s act of racial terrorism as a merely tragic outburst of individual lunacy rather than an all-too-predictable product of widespread American racism. Key to Stewart's eloquent appeal was his tying white Southern fondness for the Confederate flag and for naming streets after Confederate war heroes to racism generally and Roof's racist attack in particular.
The second narrative, mostly from conservative sources, is that pervasive contemporary racism had nothing to do with the Charleston massacre. In one version, that attack is said to be the product of anti-clerical bias requiring churches to arm their parishioners to protect the faithful. (Such a spin was nicely captured by Fox New’s interview of E.W. Jackson, a black pastor at a church in Virginia). The less implausible version of this narrative is that Dylann Roof was indeed a vicious racist but that his racism is an atavistic expression of a long-extinct ideology rather than a reflection of widespread contemporary attitudes and fears. (This version of the Roof-does-not-reflect-America response is well captured by the Wall Street Journal’s op-ed, which attributed Roof’s murders to some “problem that defies explanation beyond the reality that evil still stalks humanity”).
As a matter of common honesty, Stewart’s interpretation of the massacre strikes me as far more accurate than Fox’s or the Wall Street Journal’s spin. Roof’s rhetoric – fear of black rapists’ attacking white women, for instance -- is not only as American as apple pie but as contemporary as Stormfront.org or talk radio. The numbers of Americans who endorse Roof’s attitudes, if not his violence, can be numerically tracked at racist websites and measured through simple social science experiments. That alienated individuals (Dylann Roof, Anders Breivik, etc.) would take such widespread attitudes and rhetoric as inspiration for a mass killing is no more surprising than that (for instance) alienated young Muslim men would draw inspiration for murder from anti-semitic pamphlets in Middle Eastern bookstores and anti-semitic sermons at extremist mosques. Conservatives’ stance that they are shocked, shocked, by Roof’s “inexplicable” attack strikes me as just as implausible as the analogous claim by moderate Muslims that “extremist” Islamic violence bears no connection to Friday sermons at major mosques comparing to Jews to pigs and apes.
Nonetheless, if I were to judge these competing narratives by their utility rather than their honesty, I confess that I prefer the Fox News spin. My reason, elaborated after the jump, is that Fox News’ approach has a prayer of creating a cross-racial rural coalition rooted in church and guns. By contrast, Stewart’s Naming & Shaming strategy seems not only futile but dangerous to me: Convince “mainstream” Southerners that their condemnation of racist violence is inconsistent with their embrace of Stonewall Jackson and the Confederate flag, and you might find that they dump the former rather than the latter.
Unpacking the "White Supremacist"/"Mentally Ill" dichotomy in the Charleston Mass Murder
[originally posted in California Correctional Crisis, with a lay audience in mind. I figured it might be helpful to those of us teaching criminal law, whose 1L students grapple with their emotional approach to affirmative defenses]
As we were all still reeling from the horrific mass murder in Charleston, still too shocked to properly mourn the nine innocent victims--priests, coaches, students, parents, sons, daughters, siblings, spouses, coworkers, and friends, who got together to worship and were viciously attacked for no other reason than the color of their skin--the nomenclature debate began: what shall we call their killer? A terrorist? A mentally-ill person? A mass murderer?
Thursday, June 18, 2015
Hittson, the Slightly Superfluous Signal?
This is definitely not the biggest story coming out of the mound of opinions that the Court released today, but I wanted to briefly close the loop on my post from a few days ago on Justice Ginsburg's concurrence in the denial of certiorari in Hittson v. Chatman. In the post, I suggested that Ginsburg's Hittson opinion was a signal that Ylst v. Nunnemaker is still good law. But now, just three days later, the Court issued a majority opinion in Brumfield v. Cain that cites and applies Ylst, thereby making fairly clear the point that Ginsburg wrote to make. So, why did Justice Ginsburg write her concurrence?
Gender and Legal Scholarship
In the spring, I had the pleasure of participating in a roundtable on Increasing Author Diversity in Legal Scholarship: Individual and Institutional Strategies, which was sponsored by the University of Maryland School of Law and the Maryland Law Review. The roundtable explored a number of topics, including how law students are selected for journal membership, and how those students select articles to publish in their journals. We spent considerable time discussing Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege in the "Top Ten" Law Reviews, in which Minna Kotkin found that only 20% of articles in top law journals were written by women even though women make up 31% of the tenured/tenure-track faculty at law schools across the country. Kotkin's article received attention in the blogosphere, here and here, when she first posted a draft back in 2009.
Chris Cotropia (Richmond) and Lee Petherbridge (Loyola--LA) have written a more recent article, Gender Disparity in Law Review Citation Rates, that raises some interesting questions. Cotropia and Petherbridge studied the impact of gender on citation rates for articles published in top 100 law journals between 1990 and 2010. Cotropia and Petherbridge were surprised to find that, unlike in other disciplines, law review articles written by women are cited more than those written by men. While there has been some discussion of the authors' methodology, I'd like to focus on the question they pose toward the end of the article: why?
Cotropia and Petherbridge indicate that an explanation would require further research, but wonder whether legal scholars are less inclined to bias citation by gender, or perhaps women legal scholars are more likely to cite themselves than women in other fields. Naomi Cahn (George Washington), who also participated in the roundtable, said that one possible explanation is that women's articles are simply better than men's. Or maybe female-authored articles are more memorable--and thus more likely to be cited--because they are so much rarer than articles written by men. Indeed, of the 19,259 articles in Cotropia and Petherbridge's study, only 5,189 of them were written by women (4,123 were solo-authored by women; 1,066 were co-authored and included at least one female author).
In a world of overworked judges, tight budgets, and crowded dockets--or "process scarcity"--do some people deserve to participate in hearings more than others? According to Matthew Lawrence's provocative and thoughtful new article Procedural Triage, 84 Fordham L. Rev. (forthcoming 2015), the answer to that question is "yes."
One dominant idea in American procedure is that every person deserves a "day in court" before the state can impose a particularized, binding judgment on that person. We compromise that goal sometimes--skimping on some procedures, while providing at least "some kind of hearing." But when we do so, we usually treat every claimant alike. Procedural Triage argues that we shouldn't. This is because, in some cases, individuals derive more personal benefit from a full hearing than would-be corporate claimants--particularly in backlogged courts that simultaneously serve both large numbers of unsophisticated, aggrieved claimants and very sophisticated business interests. Lawrence observes:
For example, in Medicare, an individualized hearing to reconsider a denial of coverage for a motorized wheelchair has significant inherent value when it gives the satisfaction of having been heard to a frustrated beneficiary, win or lose. But it has much less inherent value, if any, when provided to a wheelchair manufacturer that routinely appeals hundreds of denied claims each year simply in order to maximize revenue. Yet provider appeals make up 87% of Medicare’s appeals workload.
Accordingly, Procedural Triage recommends that court systems give different plaintiffs the option (or in extreme cases, a mandate) to go down different procedural roads: full blown hearings for some and something-short-of-that for others. In so doing, Lawrence highlights Medicare's new "trial by statistics" program as a case study. Under this system--which I describe here--medical contractors, hospitals and other businesses with large numbers of identical Medicare claims may try those cases using statistical tools, while individuals retain their right to a full and expedited "day in court." Lawrence argues that this kind of "procedural triage" may enhance, rather than undermine, due process values for the entire system.
Brumfield v. Cain: Tinkering with the Intellectual Competence for Death
This morning, the Supreme Court decided Brumfield v. Cain, a Louisiana case that raised the question how to determine intellectual disability for death penalty purposes.
The facts are as follows: In 1993, Brumfield murdered off-duty police officer Betty Smothers. The crime, as recounted in Justice Thomas' dissent, was a random, heartless shooting into a car in the process of a "hustle", and can only be explained by Brumfield's antisocial personality--he showed no remorse for it. Moreover, it was the culmination of a horrific two-week-long crime spree.
At the time of Brumfield's trial, there were no constitutional limitations on executing mentally disabled inmates. At the sentencing phase of Brumfield's trial, the Baton Rouge court heard mitigating evidence on Brumfield's behalf: his mom, a social worker who compiled his personal history; and a neuropsychologist who examined him. The court psychologist examined him as well, but did not testify. The evidence, at the time, demonstrated that Brumfield had registered an IQ score of 75, had a fourth-grade reading level, had been prescribed numerous medications and treated at psychiatric hospitals as a child, had been identified as having some form of learning disability, and had been placed in special education classes.
Davis v. Ayala: Post-conviction review of Batson, Harmless Error, and a Surprising Dignity Opinion from Justice Kennedy
[cross-posted at California Correctional Crisis]
The Sixth Amendment requires that defendants be tried by a jury of their peers; this raises serious questions when partisan interests bring racial considerations into the choice. Batson v. Kentucky, decided by the Supreme Court in 1986, limited the ability to use peremptory challenges (which allow each party to disqualify jurors without providing an explanation) when the pattern of challenges indicates racial (or, as later decided, gender) bias. The procedure under Batson requires three steps: the other party (typically the defense) points to a systematic pattern of racial exclusion; the excluding party (typically the prosecution) provides race-neutral explanations for the exclusion; and the court decides, based on totality of the circumstances, whether the challenges can stand.
Shortly after Batson, in 1989, Hector Ayala was convicted of a triple murder in the context of a robbery in San Diego. At the voir dire stage of his capital punishment trial, his attorney objected three times to repeated use of peremptory challenges by the prosecution against black and latino prospective jurors. Each time, the prosecution asked that the defense leave the room, arguing that they didn't want to expose trial tactics to the defense. Their actual race-neutral explanations for the peremptory challenges were concerns about criminal record, concerns about unwillingness to apply the death penalty, and personal history in following and being involved in controversial trials. The judge agreed to let the peremptory challenges stand. Ayala was convicted and sentenced to death.
Today, the Supreme Court decided Davis v. Ayala, siding 5:4 against Ayala.
SCOTUS Decides the Confederate Plates Case (5-4)
The US Supreme Court today held that the Texas Department of Motor Vehicles did not violate the First Amendment when it rejected a proposed license plate featuring the confederate battle flag. The majority opinion, authored by Justice Breyer and joined by Justices Thomas, Ginsburg, Sotomayor, and Kagan, reached this conclusion by deploying the relatively newly minted government speech doctrine to allow Texas to pick and choose what messages its drivers can display on their specialty license plates based on whether others might find those messages offensive. Justices Roberts, Scalia, Alito, and Kennedy dissented.
Like many other states, Texas has a specialty license plate program through which it raises funds by allowing a variety of groups to create specialty plates. Justice Breyer's majority opinion notes, for example, that Texas has approved plates "featuring the words 'The Gator Nation,' together with the Florida Gators logo." [As a UF professor, I appreciate the SCOTUS shout-out!] Justice Breyer also notes that Texas has approved plates with slogans offered by private companies, such as "Get it Sold with RE/MAX." Writing for the majority, Justice Breyer nonetheless concludes that these messages are government speech, branded with the "imprimatur" of Texas.
The case began in 2009, when the Sons of Confederate Veterans (SCV) first submitted to Texas a plate with their name, their organizational logo, and the Confederate battle flag. After public comment and an open meeting to consider the plate, the Texas Department of Motor Vehicles Board rejected the plate on the grounds that "many members of the general public find the design offensive." The Board further deemed such comments by the public to be "reasonable." (emphasis mine) [Cf. Snyder v. Phelps!] The SCV sought an injunction to force the Board to approve the plate on the ground that the denial violated the First Amendment. A federal district court entered judgment for the Board, but a panel of the US Court of Appeals for the Fifth Circuit reversed, holding that the Board's viewpoint discrimination against the SCV plate was unconstitutional.
Today, the Supreme Court held that Texas is the speaker when it chooses the contents of specialty license plates. In other words, the contents of the specialty plates are government speech, and Texas is therefore free to engage in viewpoint discrimination in choosing which plates to approve, subject to the constraints of the "democratic electoral process." The majority posited that the "government would not work" were it not free to convey its messages in the way it sees fit: "as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out duties on their behalf."
A reasonable observer could be forgiven for assuming that a Texas plate that favors The Gator Nation represents the views of the driver of the automobile rather than the views of the State of Texas. But the Court concluded that the plate messages are government speech based on the following. First, license plates historically have been used to convey state messages. "Second, Texas license plate designs 'are often closely identified in the public mind with the [State]." [The majority's process of discerning the "public mind' is a little unclear.] Third, Texas controls messages on its license plates by requiring Board approval of every plate design, a process which grants "final approval authority [that] allows Texas to choose how to present itself and its constituency."
The Court further concluded that license plates do not constitute forums for the speech of private individuals (such as the drivers who choose the plates). The Court emphasized that license plates, unlike public parks, are not traditional public forums [but then again neither are teacher mailboxes, as in Perry Education Ass'n]. More controversially, the Court asserted that the license plates are not designated public forums because the policies and practices of the state of Texas manifest its intent to maintain control of them. The opinion placed great weight on the fact that Texas has "final authority" to approve content, and it also emphasized the traditional role of license plates as "primarily . . . a form of government ID [that] bear[s] the State's name." In doing so, the opinion seems to ignore the conversion of the "traditional" license plate system into a revenue-raising scheme for the state.
Finally, the majority rejected the notion that the plates are a non-public forum that can be used by private speakers, reasoning that the plates are predominantly used by Texas for its own "expressive conduct." As the opinion states, "we reach this conclusion based on the historical context, observers' reasonable interpretation of the messages conveyed by Texas specialty plates, and the effective control that the State exerts over the design selection process."
This 5-4 decision highlights a flaw in First Amendment doctrine that I've previously discussed in an article on public forum doctrine and government speech in social media. That flaw is that current doctrine "does not contemplate the possibility that [a forum for speech] might involve both government speech and a public forum." Supreme Court precedent left the majority with a Boolean choice: either the plates were a public forum or they were government speech. If the plates were a public forum, Texas's rejection of any imaginable plates on the grounds of offensiveness would constitute content-based and viewpoint-based discrimination in violation of the First Amendment. The result would be that Texas, and perhaps most states, would eliminate specialty license plate programs even if it meant giving up the extra revenues they bring. [Not that this result would be so terrible.] On the other hand, if the plates were deemed government speech, Texas could maintain the program while blocking the most objectionable types of plates. Reality, however, is more complicated than current free speech doctrine. The reality is that Texas specialty plates contain both government speech and private speech on one small square of metal. This case just points out the absurdity of having to choose inflexible doctrinal categories to get to a desired outcome.
Justice Alito's dissent rightly observed that the case sets a dangerous precedent, allowing the government to regulate any offensive speech on government property simply by retaining final approval authority over that speech. Justice Alito refocused the historical analysis of licenses plates on the point AFTER the development of specialty plate programs, concluding that "history here does not suggest that the messages at issue are government speech." He also examined how the Texas license plate approval process actually worked: Texas accepts all private messages submitted "except those, like the SCV plate, that would offend some who viewed them." The mere fact that Texas has given its "blessing" to the private speech on most plates does not make those plates government speech. Instead, "Texas, in effect, sells [license plate] space to those who wish to use it to express a personal message," and by doing so, creates a limited public forum. Texas' decision to reject the SCV plate, or indeed to reject any plate on grounds of offensiveness, was therefore unconstitutional viewpoint discrimination.
When One Case Becomes About Another: Kerry v. Din and the Same-Sex Marriage Litigation
ImmigrationProf Blog is hosting an interesting symposium on Kerry v. Din, a case about judicial review of visa denials. The government denied a visa to a U.S. citizen's husband for reasons that remain obscure but have something to do with the government's claim he participated in terrorist activities. The U.S. citizen sued to force the government to be more specific. In Din, a fractured Court held that the government didn't need to be. I'm particularly interested in Rachel Rosenbloom's contribution to the symposium, which, citing Kevin Johnson's recent SCOTUSblog post, explains that the case "ended up mostly being a forum for the justices to argue about the scope of due process protections related to marriage." Given the "Court's current preoccupation with the question of same-sex marriage," the Court's treatment of Din isn't surprising. But should it be troubling?
I'm not sure, but I think the question's an interesting one. Rosenbloom, who focuses upon Justice Breyer's dissenting opinion in Din, writes, "It would be a shame if Justice Breyer's heavy reliance on marriage," which Justice Scalia's plurality opinion shared, "exerts too strong a force on the future litigation of consular review cases." And so I wonder whether the Justices may have warped the doctrine in consular review cases by thinking about Din through the lens of the same-sex marriage litigation in Obergefell v. Hodges.
It's not hard to rattle off reasons we'd want the Supreme Court to think about Obergefell when deciding Din. If nothing else, it makes forecasting more fun. (See, for example, Mark Joseph Stern's piece in Slate and Garrett Epps's piece for The Atlantic.) Still, I can't shake the sense that there are real risks when one case becomes about another. If I were Fauzia Din, I'd wonder whether I really got my day in court. And if I were an immigration lawyer, I'd be frustrated with the Court's mangling (or, you might think, simply not answering) the question of consular non-reviewability before it. Given the Court's law declaration function, it's probably inevitable that a controversial and high profile case like Obergefell will influence how the Justices think about other cases that seem unrelated. But given the Court's law declaration function, we might hope for judicial resistance to the impulse to debate in one case what the law's going to be in another.
First Amendment Day at SCOTUS
SCOTUS on Thursday decided the final free speech cases of the Term.
In Walker, the Court held that the messages on specialty license plates constitute government speech rather than private speech is a government-created public forum. The Court split 5-4; Breyer wrote for Thomas, Ginsburg, Sotomayor, and Kagan, while Alito dissented joined by the Chief, Scalia, and Kennedy.
When this issue first began bubbling up in the '90s, my quick conclusion (even before Summum, the case at the heart of the dispute between the majority and the dissent) was that specialty plates were government speech. Governments used these plates for their own messages ("Live Free or Die" "Famous Potatoes" "The Lone Star State") and the specialty-plate programs simply expanded the range of message government would adopt and present as its own.* And a viewer can understand that a driver with one of those plates agrees with that message.
[*] By contrast, I believed--and still do--that alpha-numeric codes used in vanity plates constitute individual speech in a limited public forum that should be subjected to closer First Amendment scrutiny.
But Alito's dissenting opinion was quite convincing, particularly in that it was an excellent and very accessible read. I was particularly moved by the two hypotheticals he presented--1) an electronic highway billboard containing some government messages, but on which government opens space for private speakers to rent space for their own messages and 2) a public-university campus bulletin board or listserv which includes some government messages and is open to private messages. Alito's point is that, under the majority's analysis, these speech locations could as easily be called government speech and government "adoption" of certain paid-for private messages.
Oklahoma’s Latest Invention: Execution by Nitrogen Gas
In 1977, Oklahoma started a national trend when it adopted lethal injection as a new method of execution. This year, maybe it will do the same in adopting death by “nitrogen hypoxia” as a statutorily authorized alternative to lethal injection.
Oklahoma Governor Mary Fallon said she signed the bill to give the state “another death penalty option,” and if there’s one thing the state of Oklahoma likes about its death penalty (besides secrecy), it’s options. Whereas most death penalty states have one lethal injection protocol, maybe two, Oklahoma has five. And whereas most states have one method of execution, maybe two, Oklahoma has four. If for some reason lethal injection and nitrogen gas don’t work out, the state has the electric chair and firing squad also waiting in the wings. Little wonder Oklahoma has in the last several years edged out Virginia as the second most executing state since the revival of the death penalty in 1976—it’s nothing if not committed to the death penalty.
Oklahoma’s statute doesn’t say exactly how death by nitrogen hypoxia will be carried out, and it’s brand new so we’re all just guessing here, but the assumption appears to be that some sort of mask would be affixed to the condemned inmate’s head, which would then be used to pump in pure nitrogen. Nitrogen is already in the air we breathe so it’s not inherently toxic; it’s the lack of oxygen that does a person in, and that’s apparently painless. “You just sit there and a few minutes later, you’re dead,” the bill’s sponsor said. Rather than imposing death, nitrogen hypoxia “withholds life.” Sounds kinda brilliant when you put it that way.
But there’s always a hitch. Execution by nitrogen hypoxia is a one-off of Jack Kevorkian’s “exit bags” and similar techniques advocated by right-to-die advocacy groups. The problem is that its only use has been on people who wanted to die, so they weren’t trying to break the seal, or refusing to breathe, or doing whatever else one might do to gum up the works. “It requires the total cooperation of the person who is dying,” one euthanasia spokesman said of the process.
The other difference—and maybe this doesn’t matter—is that those groups use helium rather than nitrogen to get the job done, and that was off the table from the start. Indeed, even with nitrogen as the designated gas, some legislators worried that death by hypoxia would be accompanied by a brief moment of euphoria rather than pain.
In the end, we really don’t know how all this will work out, which I suppose is the case with most any innovation in execution methods. “I assume somebody must have done some research,” one state senator said—and that’s true, to an extent.
What data we have on forced inhalation of pure nitrogen comes from veterinary science, and in that experiment, the cats and dogs howled and convulsed. The American Veterinary Medical Association has taken the position that nitrogen asphyxiation is not appropriate for animal euthanasia, but that doesn’t seem to matter much. The AVMA has said the same thing about using paralytics during animal euthanasia by lethal injection, and we’ve done that to humans for decades.
All that brings me back to what the Oklahoma legislator who wrote the bill said about nitrogen hypoxia—“It’s foolproof.” I say maybe it will work, maybe it won’t. But if we think know the answer to that on the front side, we’re fooling ourselves.
Wednesday, June 17, 2015
Strange Bedfellows #7: Liberty Lists
This post is part of the Strange Bedfellows series.
To enumerate rights or not to enumerate them? Federalist Noah Webster, arguing against the need to include a Bill of Rights in the proposed constitution, asserted that a person sleeping on his right side has a natural law right to roll over and sleep on his left side, but we aren’t going to write such minutiae into the Constitution. Moreover, if that right was constitutionally enumerated, it would imply that those not enumerated—say, the right to wear a hat—were not protected. The latter problem was supposed to be put to bed by the Ninth Amendment (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) Enumerate away!
The story’s not quite that simple, as the disagreement between plurality and dissent in this week’s Kerry v. Din shows. But as a teaching tool, it can be useful to compare and contrast the decision to enumerate rights in the constitution with the decision to enumerate rights in court opinions. In a selection of cases, the Supreme Court has sought to provide sample enumerations of unenumerated rights as a way of indicating the scope of American freedom. These "liberty lists" have arisen most prominently in the 20th and 21st centuries with regard to the Due Process Clause, but decisions from before the ratification of the Fourteenth Amendment offered other lists that were claimed to flow from the Privileges And Immunities Clause of Art. IV and the structural meaning of citizenship itself.
Issues worth studying when comparing these various liberty lists are how their contents have (or have not) changed over time; when they are used as opposed to when they are not; and whether the amount of detail in the list correlates to a win for the individual claiming an unenumerated liberty. The punch line at the end of a capacious list is most often “We protect a huge range of liberties, including yours” (as in Meyer v. Nebraska) but it can also be “We protect a huge range of liberties, but not yours” (as in Board of Regents v. Roth).
If Not Lethal Injection, Then What?
With lethal injection on its heels (as a practical matter, maybe constitutional matter too), one question that’s on many a mind is—if not lethal injection, then what?
The electric chair is pretty gruesome—you’re stuck with the sound and smell of burning flesh and it occasionally catches the condemned person’s head on fire.
Hanging is pretty hard to get right—it’s supposed to kill by breaking the condemned person’s neck, but if the measurements are off (which is often the case), the person ends up either slowly strangling to death or getting decapitated.
And the gas chamber is reminiscent of Nazi death camps and pretty grisly in its own right—the cyanide pumped into the chamber causes the condemned to die by asphyxiation, but not before a significant amount of gasping, drooling, and retching first. Arizona got rid of its gas chamber in 1992 when an execution made the state attorney general vomit and the warden threaten to resign if he ever had to use it again. In 1999, the Ninth Circuit declared it a violation of the Eighth Amendment’s “cruel and unusual punishments” clause.
That leaves the guillotine (not a chance), the firing squad, and Oklahoma’s newest innovation: death by nitrogen gas. Today I’ll consider the firing squad. Tomorrow, nitrogen gas.
Terrific Piece on Identitarianism by Adolph Reed
I have been thinking for a few days on a proper response to the Dolezal/Jenner brouhaha that would capture my dismay at the enthusiasm of my friends in the left for eating their own via identitarian distinctions that made no logical sense. And look, Adolph Reed wrote it up way better than I could have. Enjoy.
Marriage Equality -- and Marriage Abolitionism
I have an op-ed in today's LA Times on the forthcoming marriage equality decision -- and how some states' efforts to disestablish marriage as a result could be a welcome development. Massive resistance could be ironically progressive.
Tuesday, June 16, 2015
The Chevron Shuffle and Legislative History
This post's about a puzzling opinion from the D.C. Circuit. The puzzle has to do with the Chevron two step and legislative history. This puzzle's important, and not just for King v. Burwell.
In Council for Urological Interests v. Burwell (CUI), published last week and available here, the D.C. Circuit shuffled between one view and another of legislative history's role in the Chevron analysis. On the first step, the court of appeals held that a Conference Report didn't foreclose an agency's rule. On the second step, however, the court held the same Conference Report required a remand of the rulemaking. (For those unfamiliar with the Chevron two step, check out this discussion or this much more entertaining video.) The flaw, the court held, was not in the agency's reading of the statute's text but rather in its "tortured reading" of the Conference Report. There's something in the case for everyone who has debated whether Chevron has one step or two and what role, if any, legislative history should play in those steps.
Veep does the Constitution
Veep is a hilarious show, described by one former Obama adviser as the most accurate depiction of Washington and definitely the most hilariously profane (reflecting the sensibilities of creator, and departing showrunner, Armando Iannucci). The season finale, which aired on Sunday, takes place on Election Night and ends on a constitutional cliffhanger related to presidential elections and presidential succession, a common theme for political TV shows.
More (with spoilers) after the jump.
Is Criticism of Lethal Injection Just a Front For Opposing the Death Penalty?
I had planned to follow last week’s post on lethal injection with a post about the firing squad as a method of execution. But I’m saving that for tomorrow in light of the numerous emails and conversations that have come my way about the relationship between one’s position on lethal injection and one’s position on the death penalty itself. Is criticism of lethal injection just a front for criticizing the death penalty?
My own experience over the past week suggests that most people think the answer is yes—if you have a problem with lethal injection, it’s because you must have a problem with capital punishment, so let’s be real about where the façade actually lies.
But the two don’t necessarily, or even logically, go together. There are plenty of people who support the death penalty on retributivist grounds (indeed, retribution is by far the most popular reason people support the death penalty today) who have a problem with lethal injection for the very reasons I mentioned in last week’s post. Law Professor Robert Blecker, an outspoken retributivist, is a prime example. Here’s what he had to say:
Lethal injection conflates punishment with medicine. The condemned dies in a gurney, wrapped in white sheets with an IV in his veins, surrounded by his closest kin, monitored by sophisticated medical devices. Haphazardly conceived and hastily designed, lethal injection appears, feels, and seems medical, although its sole purpose is to kill.
Witnessing an execution in Florida, I shuddered. It felt too much like a hospital or hospice. We almost never look to medicine to tell us whom to execute. Medicine should no more tell us how. How we kill those we rightly detest should in no way resemble how we end the suffering of those we love.
Monday, June 15, 2015
Strange Bedfellows #6: Streams of Commerce
This post is part of the Strange Bedfellows series.
Those of us who also teach Civil Procedure are familiar with the “stream of commerce” concept within the constitutional law of personal jurisdiction. Under circumstances that the Supreme Court has notoriously failed to make clear, an entity that manufactures and sells a product in one state may be subject to personal jurisdiction to the courts of another if the product causes injury after traveling there through “the stream of commerce.” Less well remembered is that the “stream of commerce” once had a significant role to play in the law of the Commerce Clause.
These two streams of commerce are taught under different pedagogical silos, but may have something to say to each other.
Are Administrative Law Judges Unconstitutional?
According to this decision last week, the answer may be “yes”—at least for administrative law judges who decide cases for the SEC. That is because a federal judge in Atlanta found that ALJs are “inferior officers” under the Constitution, who under Article II, must be appointed by the President, the Judiciary, or "heads of departments." (SEC ALJs are instead appointed by a chief ALJ).
As Kent Barnett argued last week, and whose excellent paper on the subject is cited in the opinion, there’s an easy fix for the SEC because the SEC is already considered a “department” and has authority to appoint ALJs itself. But the opinion raises new concerns for other ALJs in the administrative state, who together hear over 250,000 cases a year. That’s because many agencies are not freestanding departments--like the Consumer Financial Protection Bureau, which operates inside of the Federal Reserve. Two more thoughts after the jump.
Judges Should Volunteer for Cognitive Testing
Lifetime tenure has allowed some of this country’s most venerated jurists to serve well into advanced years. Oliver Wendell Holmes, Jr. and John Minor Wisdom both stayed on the bench into their 90s. Judges who have elected to take senior status, all of whom are 65 or older, handle roughly 15% of the federal courts’ workload on a volunteer basis.[i] About 12% of the nation's 1,200 sitting federal district and circuit judges are 80 years or older.[ii]
But lifetime tenure has a potential downside. Roughly one quarter of individuals in their 80s (and 5% of those in their 70s) suffers from dementia.[iii] One might hope that federal judges who begin experiencing signs of dementia would retire before adversely impacting litigants. But dementia typically lasts years and 92-93% of district and circuit court judges die within one year of their retirement.[iv] Subjective self-policing is doomed to failure because many people with cognitive deficits are unaware of them.[v]
A doctor assessing cognitive impairment relies on second-hand observations in addition to first-hand examination of the patient. In the judicial context, there is a structural impediment to using second-hand observations. As one chief judge recently observed, “lawyers (who are in the best position to observe judicial behavior) are reluctant to point an accusatory finger at judges before whom they appear.”[vi] Colleagues may not recognize problems because symptoms can vary. For example, personality changes, poor judgment, or slowed processing speed can manifest years before the onset of memory impairment in some people with early dementia.
Clinical examinations are therefore essential. At least one federal district judge, Jack Weinstein (aged 93), has volunteered to undergo annual neurological evaluations.[vii] Frequent, focused expert capacity assessment is needed to make sure judges do not stay on the bench too long. The current system relies on ineffectual self-policing, complaints by lawyers naturally reluctant to lodge them, and limited oversight by chief judges. The stakes are too high for such a flawed and informal approach. All federal judges of advanced age should follow Judge Weinstein’s example and voluntarily submit to regular cognitive testing.
Why Indeed?: A Few Words in Favor of Per Curiams
At the CoOp blog, Gerard Magliocca has an interesting post, with even more interesting comments, on the use of per curiam opinions by lower courts. I am not terribly interested in the occasion that drove it: a per curiam opinion of the Fifth Circuit upholding Texas abortion regulations. The case is substantively important, of course. But the concerns evoked by the issuance of the opinion per curiam--in effect, how do we know how to blame for such an important opinion?--are, like recent concerns about the possibility that the Supreme Court might hear appeals from three-judge district courts that are actually composed of conservatives, arguably too driven by present concerns and thus too subject to inconsistencies and short-term thinking. Still, I think this is an instance in which a discussion evoked by transient political matters eventually ends up raising more interesting, and perhaps more deeply political, questions than it was intended to. The question is raises for me is this: Why shouldn't all panel decisions, except for those few in which no one else joins the opinion itself, be per curiam?
In his post, Gerard asks bluntly "whether per curiam decisions should still exist," arguing that "[w]e deserve to know who wrote a published opinion" and that, except in cases of true shared authorship, the per curiam opinion is the product of "fear [of] public scrutiny and accountability."
In the comments, Orin Kerr, in that way he has, asked of the statement that we deserve to know who wrote a published opinion, "Why?" The responses were to be expected and had to do with transparency and accountability. In particular, for present purposes, Magliocca argued that it is sometimes helpful to know who wrote a particular opinion, and--probably the major motivating factor for most general discussions of this kind--that "knowing authorship matters when a circuit judge is nominated to the Supreme Court." He received interesting pushback--including a comment by regular Prawfs commenter "Joe," who wrote, as I will here, "Query the reasoning in having the author's name there at all. It is not really obligatory when you think about it." Finally, Magliocca ended the thread with what felt distinctly like an expostulation: "If knowing authorship of majority opinions is unhelpful or unnecessary, then why ever say who the author is?"
Why indeed? Why not insist, or prefer, that American federal appellate court majority opinions be per curiam as a general rule? Magliocca seems to take it as obvious that the present practice of generally signing such opinions is correct and that we would be worse off if the practice changed. I'm not so sure about that. I wonder whether a more systemic cost-benefit analysis does not favor moving to a practice where appellate court opinion authorship is generally not noted.
Another Supreme Court Signal: Hittson v. Chatman
Today’s orders list provided an especially clear instance of an attempted Supreme Court signal. In Hittson v. Chatman, Justice Ginsburg, joined by Justice Kagan, concurred in the Court’s denial of certiorari in a habeas matter. In effect, Ginsburg told the Eleventh Circuit how to rule in a pending case. But as with many other potential signals, Ginsburg's message should perhaps be taken with a grain of salt.
First Annual Civil Procedure Workshop
The First Annual Civil Procedure Workshop, jointly hosted by Seattle University School of Law, the University of Washington School of Law, and the University of Arizona Rogers College of Law, will take place July 16-17 at Seattle University. Details can be found in the link; it sounds like a great program. Contact Brooke Coleman (firstname.lastname@example.org) with any questions.
Joseph Vining on the thought of John Noonan
Joseph Vining has posted (here) a short paper called "Reading John Noonan," which is forthcoming in the Villanova Law Review. The abstract is short-and-sweet:
John Noonan is a giant in American law and legal practice -- a distinguished legal historian and a true judge. His reflections on the nature of law have a special importance. This essay is a comment on basic elements in his thought.
And, check out the keywords:
jurisprudence, slavery, universality of value, development and change, morality, history, person, legal person, individual, equity practice, human rights, utilitarianism, positivism, humanism
Sunday, June 14, 2015
Is Heller Being Narrowed From Below?
Last week, Justice Thomas dissented from the Court’s denial of certiorari in the Second Amendment case Jackson v. San Francisco. Joined only by Justice Scalia, Thomas argued that San Francisco had adopted a firearm regulation substantially identical to the one struck down in Heller v. District of Columbia. The most interesting feature of the case was Thomas’s allegation that the decision below is an example of a much broader pattern. According to Thomas, “lower courts, including the ones here, have failed to protect” the right to bear arms and so have drained Heller of practical effect. If Thomas is right, then Jackson provides an important example of what I’ve called “narrowing from below”—that is, of lower courts narrowing higher-court precedent.
“Generative Avoidance” and King v. Burwell - Guest Post by Mila Sohoni
Somewhat improbably, the topic of avoidance of novel constitutional questions seems to be in the air once again! Neal Kumar Katyal and Thomas Schmidt just published an article in the Harvard Law Review criticizing the Roberts Court for, among other things, using the constitutional avoidance canon to articulate new constitutional norms, a use of the canon that they call “generative avoidance” (p. 2112). In an essay in response, Caleb Nelson argues that “the canon about avoiding unconstitutionality should focus on the constitutional doctrines that were familiar when the relevant statute was enacted” (p. 339). If courts applied the “classical” version of the canon to avoid only actual unconstitutionality as judged by reference to prevailing doctrine at the time of enactment, Nelson explains, then “the canon would not invite ‘generative avoidance’”(p. 340). He adds that new constitutional rules can, however, serve as “tiebreakers” that permit a court to adopt a constitutional interpretation of a statute rather than hold the statute unconstitutional under the newly articulated rule (p. 338 n.32).
My take on avoiding novel questions, which was published earlier this week in the Yale Journal on Regulation Online, is much the same as Nelson’s. As I argued, “[a]voiding novel constitutional doubts should be a highly disfavored way of resolving a case, a method of last resort, to be used only once one has exhausted other techniques of statutory interpretation, and if one is prepared to hold that the novel constitutional problem is an actualbarrier to the statute” (p.13). At that extreme, when the novel constitutional issue poses an actual obstacle, not merely a “doubt,” it is appropriate for a court to use classical avoidance to “save” as much of the statute as possible from actual nullification, whether by old law or new. This is a good approach to novel constitutional doubts, I argued, because it will ensure that “when the justices first confront truly novel constitutional questions, they will address them with the caution and carefulness of a court creating law, not dictum” (p. 13).
Saturday, June 13, 2015
Aggregate Agency Adjudication
At Yale's Journal on Regulation, Chris Walker highlights our project on Aggregate Agency Adjudication with the Administrative Conference for the United States. Michael Sant’Ambrogio and I are studying agencies that experiment with class actions, trials by statistics, and other aggregate litigation techniques to resolves lots of cases in their own courts. As we discuss in The Agency Class Action, 112 Colum. L. Rev. 1992 (2012), agencies don't do this very often. And there are lots of reasons why. But, we want to see if agencies can use aggregate adjudication along with other tools -- rulemaking, informal guidance, stare decisis and ADR -- to resolve cases more effectively.
I've already described Medicare's new pilot plan to use "trials by statistics" to alleviate its 500,000+ case backlog. So, here's another example: the National Vaccine Injury Compensation Program. Congress created this program in the 1980s to provide people injured by vaccines with a no-fault alternative to lawsuits in federal court. In theory, an "Office of Special Master" must decide whether to compensate someone in 240 days based on a showing that the vaccine caused the injury. But see Nora Freeman Engstrom, A Dose of Reality for Specialized Courts: Lessons from the VICP, 163 U. Pa. L. Rev. _ (forthcoming 2015) (finding, among other things, that it takes longer than that). Many claims proceed one at a time, like most benefit programs. But when over 5,000 parents claimed that a vaccine additive, called Thimerosal, caused autism in children, the Vaccine Program used three “omnibus proceedings" to pool together all the individual claims that raised the same highly contested scientific questions in front of just three adjudicators. As it happens, the Vaccine Program has used coordinated proceedings like this for more than 20 years.
Even though the Act that created the vaccine program contains no provision for class action suits or anything like it, the program developed the concept of the omnibus proceeding on its own because the "same vaccine and injury often involve the same body of medical expertise." Counsel representing large groups of individual claimants often use an omnibus proceeding to answer questions of "general causation," like whether a particular vaccine is capable of causing a specific injury. The issue of whether it did so in a specific case can then be resolved more expeditiously. I'll provide a few more details about this process below, but can you think of other agencies that assign large groups of individual similar cases to the same adjudicator for similar reasons? What are strengths and weaknesses of this kind of approach?
Friday, June 12, 2015
Three-judge district courts in constitutional reform litigation
At Balkinization, David Gans discusses the use of three-judge district courts in conservative-leaning impact litigation challenging campaign-finance reform and voting rights rules. Gans argues it reflects "a long term conservative strategy for getting blockbuster campaign finance and voting rights cases to the Supreme Court. It is a strategy that has paid off time and again as John Roberts and his conservative colleagues have made it easier for corporations and the wealthy to spend unlimited sums of money on elections, and harder for Americans to vote in them."
I do not buy the argument that the three-judge district court procedure is in any way relevant or to blame for the doctrinal trends Gans is decrying. First, as Gans notes, the most significant recent case--Shelby County--did not come from a three-judge court, but SCOTUS took the case anyway and a narrow majority gutted the Voting Rights Act. Second, and more importantly, the three-judge district court does not benefit conservatives or liberals as much as it benefits whoever happens to be bringing the legal challenges. As Gans himself acknowledges, three-judge district courts were a central feature in litigation challenging Jim Crow and other discriminatory policies during the Civil Rights Era, with the NAACP and other litigators designing legal strategy specifically to get into a three-judge court; this enabled plaintiffs to avoid hostile individual district judges in favor of a broader panel and to get cases to SCOTUS more quickly. But that current challenges are being brought by conservatives and creating constitutional doctrine that Gans obviously dislikes does not reflect anything about the wisdom (or lack thereof) of the three-judge process. If we accept constitutional impact litigation as a legitimate use of the courts, it cannot matter who is bringing the challenge or the positions they are urging; the complaint can only be about the doctrine, not the process that got us there.
For the best history of the three-judge process, including its role during the Civil Rights Era and its restriction in the '70s (based on the perception that they no longer were necessary), see Michael Solimine's 2008 article.
Thursday, June 11, 2015
Judicial Specialization, Patent Cases, and Juries
Judicial specialization has long been a topic of debate among patent lawyers and scholars. In recent years, critics (including Seventh Circuit Judges Diane Wood and Richard Posner) have questioned the wisdom of granting the U.S. Court of Appeals for the Federal Circuit exclusive jurisdiction over patent cases. Yet, judicial specialization in patent cases is not limited to the Federal Circuit. Over the past decade or so, certain federal district courts--particularly, the Eastern District of Texas and the District of Delaware--have become patent litigation "hot spots," and the judges in those districts have developed substantial patent expertise. Moreover, Congress established the Patent Pilot Program in 2011 "to encourage enhancement of expertise in patent cases among district judges" by funneling patent cases in certain districts to designated judges.
Proponents of judicial specialization argue that it promotes efficiency, uniformity, and predictability for litigants, while opponents claim that specialized courts are subject to bias, capture, and tunnel vision. Recent scholarship also addresses the question whether specialized courts are more likely to compete for lawsuits, or participate in "forum selling," as discussed here and here.
I am currently working on a paper, Influencing Juries in Litigation Hot Spots, that explores a different problem with specialized trial courts: the potential to improperly influence the jury pool. The situation with patent cases in the Eastern District of Texas, recently highlighted on John Oliver's show, provides a prime example. In the Eastern District of Texas, repeat litigants like Samsung have attempted to generate goodwill with the citizens of Marshall and Tyler (i.e., potential jurors) by sponsoring an ice skating rink outside the courthouse, granting college scholarships to Marshall and Tyler students, and donating television monitors to the local high school. While the small towns of Marshall and Tyler have no doubt benefitted from Samsung's public relations campaign, the cost to our justice system--where juries are supposed to be impartial--is arguably too high.
The Changing Face of Federal Supremacy
By now, the observation's familiar, maybe banal: How law's enforced matters. It matters as much, maybe more, than what the law books say our rights and duties are. As long as it's not enforced, a law against eating fried chicken with a fork is funny. But more often than not the stakes for people's lives aren't merely academic or the least bit funny.
Take enforcement of federal law. The Supreme Court's made some important decisions about this topic recently. In Shelby County v. Holder, for example, the Court stopped preclearance under Section 5 of the Voting Rights Act by striking down Section 4, which identified the jurisdictions that had to preclear their election laws. Texas announced it would enforce a strict voter ID law the same day as the Court's decision, and a spate of states followed suit. In a more recent decision, Armstrong v. Exceptional Child Center, the Court held that the remedy for violations of Medicaid's "equal access" mandate is for the Secretary of Health and Human Services to withhold funding, not for beneficiaries to sue states. It's not clear that'll work, though Eloise Pasachoff has recently argued we need to rethink the merits of cutting off funding.
Shelby County and Armstrong don't seem to have anything to do with one another. One was about voting rights and the other Medicaid. One was about the states' "equal sovereignty" and the other about judicial remedies for federal rights. But I've been reading the two cases together recently. And, when read together, they suggest the Court's reinterpreting the Supremacy Clause to transform remedies against the states.
Strange Bedfellows #5: One-Off Decisions (or, Thoughts on Plyler, Windsor, and Shelley v. Kraemer)
This post is part of the Strange Bedfellows series.
Whatever the outcome later this month of Obergefell v. Hodges (state-level bans on same-sex marriage), the decision is certain to refer heavily to US v. Windsor (2013) (federal ban on same-sex marriage). For its part, however, Windsor struck me as a descendent of a precedent it nowhere cited or discussed: Plyler v. Doe (1982).
Plyler invalidated a Texas statute denying public education to non-citizen children residing in the US unlawfully. The statute’s classification was sort of, but not really, based on alienage, which made it sort of, but not really, suspect. Free public education for youth was sort of, but not really, a fundamental right. The law threatened to create an economic underclass, which is sort of, but not really, wealth discrimination (which is sort of, but not really, a suspect classification in any event). There was no explicit finding of legislative animus against a disfavored class, although it seemed to be in the mix. Adding all of these not-quite factors together, the majority concluded that the statute violated equal protection, because “the discrimination contained in [the statute] can hardly be considered rational unless it furthers some substantial goal of the State.” The dissent complained that “by patching together bits and pieces of what might be termed quasi-suspect-class and quasi-fundamental-rights analysis, the [majority] spins out a theory custom-tailored to the facts of these cases.”
When teaching Plyler, I present it as a glimpse into an alternate universe where the sliding-scale approach favored by Justices Marshall and Stevens had taken hold, so that without regard to rigid categories, the more important the right or the more questionable the classification, the stricter the scrutiny. But it’s only a glimpse. Plyler has had little impact outside its factual setting: it remains a controlling precedent for laws that target undocumented aliens, but has not had any broader influence on equal protection or fundamental rights methodologies. Yet upon reading Windsor, I felt as if I was reading Plyler 2.0.
The Chief, the First Amendment, and the assignment power
At CoOp, Ron Collins writes about Chief Justice Roberts' emergence as the Court's leading voice on the First Amendment, a voice that "is already towering over that of others on the Court." Collins emphasizes the number of free speech majority opinions Roberts has authored in his decade on the Court--13, far more than the next two Justices (Scalia and Kennedy) combined, usually (with several notable exceptions) upholding the free speech claim, whether for better or worse.
But as I wrote in a comment to Ron's post, counting majority opinions is confounded somewhat by the fact that, as Chief, Roberts wields the assignment power whenever he is in the majority. And one reason he writes so much more than any other Justice is that he keeps assigning these cases to himself. Obviously, Roberts must hold a generally highly speech-protective vision of the First Amendment (perhaps Collins is correct that it is the most protective on the Court) in order to be in the majority and thus in position to assign the opinion. But Chief Justice Warren also was consistently in the majority in free speech cases, also usually to uphold the constitutional claim. The difference is that Warren assigned many of these cases to Justice Brennan, which enabled Brennan to emerge as the Court's second great First Amendment voice.
Roberts could as easily have assigned some of these cases to, for example, Kennedy--who has joined most of Roberts' free speech opinions and thus shares a similar First Amendment vision--in the same way. That he has not done so could tell us many different things. It could be about Roberts' unique views of the First Amendment and his specific desire to carry the First Amendment mantle. But it also could be about Roberts' unique views of the assignment power.
Update: A reader shares this 2013 Judicature essay by Linda Greenhouse exploring Roberts' self-assignment practices, which notes the prevalence of First Amendment (including religion) cases that Roberts has kept for himself.
Wednesday, June 10, 2015
Gun Control Denial of Cert: Jackson v. City of San Francisco
A couple of days ago, the Supreme Court declined cert in Jackson v. City of San Francisco, a petition challenging my fair city's gun control ordinance in Section 4512 of the police code, according to which, "[n]o person shall keep a handgun within a residence owned or controlled by that person unless (1) the hand-gun is stored in a locked container or disabled with a trigger lock that has been approved by the California Department of Justice"; or "(2) the handgun is carried on the person of an individual over the age of 18” or “under the control of a person who is a peace officer under [California law].”
Jackson, five other gun owners, and (of course) the NRA thought this ordinance a violation of Heller. The city argued that the restrictions were reasonable (they did not apply to long guns; they allowed carrying on the person; the lockbox retrieval was not too onerous or slow) and protected an important interest of public safety (preventing accidents and suicides.) But I guess we won't know for a while, because there were only two dissenters--Scalia and Thomas--who wrote:
The decision of the Court of Appeals is in serious tension with Heller. We explained in Heller that the Second Amendment codified a right “ ‘inherited from our English ancestors,’” a key component of which is the right to keep and bear arms for the lawful purpose of self-defense. . . We therefore rejected as inconsistent with the Second Amendment a ban on possession of handguns in the home because “handguns are the most popular weapon chosen by Americans for self-defense in the home” and because a trigger-lock requirement prevented residents from rendering their firearms “operable for the purpose of immediate self-defense. . . San Francisco’s law allows residents to use their handguns for the purpose of self-defense, but it prohibits them from keeping those handguns “operable for the purpose of immediate self-defense” when not carried on their person.The law thus burdens their right to self-defense at the times they are most vulnerable—when they are sleeping, bathing, changing clothes, or otherwise indisposed."
Some commentators have thought that this might be picked up in the future, when there is a circuit split about similar ordinances, but there might be something else going on, according to the dissenters; they find the denial "difficult to account for in light of [the Court's] repeated willingness to review splitless decisions involving alleged violations of other constitutional rights."
Are most of the Justices sick of the unreasonable expansion of unregulated gun ownership under Heller? And if not, what do you think is going on?
Is Lethal Injection About Us or Them?
I’ve been thinking a bit lately about lethal injection, about the ways it is problematic regardless of what the Supreme Court holds in Glossip. I’m at the very early stages of a work-in-progress on the topic, and one of the things I’ve been quite drawn to is a passage from Chief Judge Alex Kozinski’s dissent from the denial of a rehearing en banc in Wood v. Ryan.
Here’s what he wrote:
Using drugs meant for individuals with medical needs to carry out executions is a misguided effort to mask the brutality of executions by making them look serene and peaceful—like something any one of us might experience in our final moments. . . . But executions are, in fact, nothing like that. They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it. If we as a society want to carry out executions, we should be willing to face the fact that the state is committing a horrendous brutality on our behalf.
It’s worth noting that Judge Kozinski supports the death penalty (his essay “Tinkering with Death” presents a thoughtful and remarkably personal account of his views on the subject) so his position here can’t be written off as just another abolitionist trying to muck things up. The pain inflicted on victims and their families is tremendous, he says, and society has a moral right to respond accordingly. The point here is that we should at least be honest about what the death penalty is: brutality for brutality. And if we’re not willing to accept that, we shouldn’t be doing it.
So here’s my question: is lethal injection about us or is it about them? That is, is it about masking the brutality of executions so we don’t have to deal with the violence inherent in taking another life? Or is it about providing the condemned with a relatively painless death, something they don’t deserve (at least by the measure of their own crimes) but can expect from a civilized society?
Barkes, Sheehan, and The Qualified-Immunity Docket
Last week, the Supreme Court summarily reversed a denial of qualified immunity in Taylor v. Barkes, a tragic case involving an alleged failure to implement adequate suicide prevention protocols in prison. As Howard has already noted, Barkes follows on the heels of the Court’s recent qualified-immunity decision in San Francisco v. Sheehan and offers further evidence of the Court’s growing determination to protect officials from civil liability. Of special note, Barkes seems like the latest application of a new and more general claim put forward in Sheehan: erroneous denials of qualified immunity are so important as to justify error correction by the Supreme Court.