Thursday, February 19, 2015
A Preview of Henderson v. United States
Over at SCOTUSBlog, I have a preview of Henderson v. United States. Here's the opening:
Next Tuesday, the Court will hear argument in Henderson v. United States, a complex case that offers a blend of criminal law, property, and remedies, with soft accents of constitutionalism. The basic question is this: when an arrested individual surrenders his firearms to the government, and his subsequent felony conviction renders him legally ineligible to possess those weapons, what happens to the guns?
Crime, Incarceration, and Crack
In my first post on the new Brennan Center report on prison’s impact on incarceration, I examined its problematic treatment of endogeneity bias. Today I want to look at how it addresses another tricky empirical morass, namely omitted variable bias.*
To the report’s credit, the authors think through a long list of possible causal factors. In the end, they come up with fourteen:
Omitted Variable Bias: A Quick Primer
The next potentially serious issue with the Brennan Center report that I want to consider is one that arises in pretty much every empirical social science paper, namely the always-present threat of omitted variable bias. I actually want to spend a few posts on this issue, so I thought it could be helpful to start with a brief, nontechnical overview of why and when this is problem for the more non-statistical readers of this blog. That way I can refer back to this in future posts, rather than “see the middle of a longer, more substantive post.” And those already familiar with OVB can just skip this one.
Here’s a simple example to demonstrate how—and when, and to what extent—OVB throws off a model’s results. Let’s say we are trying to understand what causes an individual to engage in crime, and we think those with more education are less likely to commit crime. So we include education as an explanatory variable. However, due to a lack of data, we can’t include any information on whether someone is using drugs. Does this omitted variable matter, and to what extent?
It’s easy to show how it matters. I mean, how much clearer could this be?
Wednesday, February 18, 2015
A Few Words on Why E-Cigarettes Are Still Being Marketed to Children-Even though they are just as addictive as other Tobacco products.
It’s likely that everyone reading this will have heard of e-cigarettes (and vaping) and has at least a vague impression of claims made that they are less dangerous than regular ones. It’s possible that impression comes from the fact that they are advertised heavily in a way that cigarettes are not—at sporting events, through free coupons in the mail, on the radio. They are also available in a multitude of flavors. That wouldn’t be possible unless the FDA had decided that they posed less of a threat to children’s health than other tobacco products would it?
But in fact the FDA has made no such determination. Quite the opposite. Under its authority to protect children from tobacco, the only authority it has to regulate cigarettes at all, the FDA has already proposed a “deeming rule” to put e-cigarettes in the same category as other tobacco products. That is, perfectly legal for adults to purchase and enjoy, but not allowed to be marketed in ways attractive to children. And it’s children who are being targeted here. Kids who have heard anti-smoking warnings all their lives, but are led to believe that e-cigarettes are different. A recent poll out of Utah found that “nearly one-third of teens who used e-cigarettes in the past 30 days have never tried a cigarette.”
So far, the rules are on hold because Congress is concerned that this form of regulation is the first step towards “banning” them, even though that has yet to come anywhere close to happening with regular cigarettes. At the close of its call for comments last July, the FDA had received 70,000 of them.
I haven't read all the comments quite yet, but it's a safe bet that none of them suggest that it's safe for kids to become addicted to nicotine. Or that e-cigarettes are any less addictive. Because they are not. The nicotine in e-cigarettes is the same nicotine as in any other tobacco product. Rather, the claims are about the relative dangers of e-cigarettes as opposed to tobacco ones for people who already smoke. But this post is about people who don't already smoke and aren't yet addicted. And those people are very young. Almost everyone who becomes addicted started well before their 18th birthday. The "peak years" for starting to smoke are between sixth and seventh grade. And the next biggest group is young adults (our students) to whom e-cigarettes are being marketed heavily. Look around your town for the vaping parlors, billboards, and advertisements.
I blogged about this last spring as a gateway to teaching administrative law and will have an article out soon in the Saint Louis University Journal of Health Law & Policy (hi Rachel) in a few months, but the regulatory struggle going on now to prevent the FDA from treating e-cigarettes as it does all other nicotine delivery devices deserves attention as a paradigm of how closely tied our public health system is to politics and how difficult that makes it to protect children.
Collins on Terrorist's Veto
Great post from Ron Collins at CoOp on the need for democratic society's to stand firm in the face of the terrorist veto, which he calls the "savage cousin of the heckler's veto."
Tuesday, February 17, 2015
And more crazy in Alabama
With briefing moving forward in the state mandamus action, the plaintiffs in Strawser have filed an Emergency Motion to Enforce the federal injunction, specifically by ordering Alabama Attorney General Luther Strange to assume control over the mandamus action and dismiss it; the government has responded. (H/T: Reader Edward Still, a civil rights attorney in Alabama). The gist of the plaintiffs' argument is that the Attorney General controls all litigation brought by or on behalf of the state, including through private relators; in order to comply with the injunction, which prohibits him from enforcing the state ban on same-sex marriage, he must end the state litigation.
The state's response is interesting for what it acknowledges about the mandamus action, confirming that it is largely symbolic and annoying.
First, the state acknowledges that the mandamus, if issued, cannot run against Probate Judge Don Davis of Alabama, who is a party in Strawser and is enjoined from denying licenses to same-sex couples. The state also acknowledges that, even if the mandamus issues, a couple denied a license could sue the denying probate judge in federal court and obtain an injunction, and that judge would be compelled to comply with that injunction. In other words, the state mandamus action does not set-up any conflict with the federal court or federal court orders, which the state acknowledges would trump the mandamus, whether existing orders or future orders. Thus, the sole effect of the mandamus would be to prevent non-party probate judges from being persuaded by Judge Granade's order or from issuing licenses so as to avoid suit and an award of attorney's fees. The only way they could issue licenses is if sued and ordered by a federal court to do so, which in turn has the effect of forcing every couple to sue every probate judge in the state. This is annoying and time-consuming. But, again, it does not reflect state defiance so much as state legal obstinacy.
Hail to the Chief
Congrats to Penn Law for choosing Ted Ruger as the new dean of the school. Ted was president of Volume 108 of the HLR (you may recognize the baton), and he had almost mythic status at the school. In fact, that year's parody ("The Cocky Lawyer Picture Show," I believe) had a character named "Rugerman" -- essentially a mild-mannered student turned superhero. The character captured Ted's humble nature as well as his otherworldly abilities. Penn Law is fortunate to have not only Ted but also fellow vol. 108 editorial board member Cathie Struve, seated to Ted's left. (And you may notice a certain senator also named Ted in the picture, seated down the row to the right.)
Crime, Incarceration, and Difficult Empirical Questions: Some Initial Thoughts on the Brennan Center Report
For the past few days, I’ve been struggling with what I think about the Brennan Center’s new report on the effect of incarceration on crime. What has me torn is this:
1. On the one hand, I think the report’s basic claim is likely more or less correct. The report’s central argument is that incarceration’s impact on crime exhibits diminishing returns. As we lock up more and more people in a time of falling crime, that seems like a reasonable claim.
2. On the other hand, the methods the paper uses are simply wrong, and their invalidity has been well documented for nearly two decades. Moreover, while the report’s basic claim is likely true, its estimates of the exact size of incarceration’s impact on crime are almost certainly too low.
Now that second claim might initially seem like the clearly less-important one. So what if they say that prison contributed to 10% of crime’s decline when it should have been 15%? People only care about the general trend. In fact, policy can only really be based on the general trend—social science isn’t like putting a man on the moon. We operate by rough estimates, not fractions of an inch.
Right? Well… no.
Monday, February 16, 2015
Happy Mardi Gras everyone! In honor of the holiday, I thought I’d direct your attention to Chapter 34 of the New Orleans Code of Ordinances, which sets forth most of the rules and regulations governing Carnival in the Crescent City. If you want to know whether you can throw things from floats (generally yes, but not “marine life”—see the section on “prohibited throws”), whether you can throw things at floats (categorical no), whether you can “fasten two or more ladders together” while watching a parade (no), or whether you can you can bring your pet reptile to the festivities (not within 200 yards), you can find your answers here.
Sunday, February 15, 2015
If possible, Alabama could get more confusing
Al Jolson said it best. Two anti-marriage-equality groups have filed a Petition for Writ of Mandamus in the Alabama Supreme Court's original jurisdiction, seeking an order preventing probate judges from issuing licenses on the strength of Judge Granade's decision and ordering them to wait until a "court of competent jurisdiction"--which petitioners define as only SCOTUS--decides the matter. The court ordered briefing on the petition, with two justices dissenting; Chief Justice Moore apparently took no part in the decision.
So how will this play out and what effect will it have?
Friday, February 13, 2015
People have been wondering when law schools would close in the new reality. Here comes a sort-of closure: William Mitchell College of Law and Hamline University School of Law are merging, forming Mitchell/Hamline School of Law as stand-alone not-for-profit with a "strong and long-lasting affiliation to Hamline University." The joint announcement from the associate deans at both schools is reprinted after the jump.
Thursday, February 12, 2015
You say potato . . .
Does anyone know how the federal judge at the center of the Alabama craziness pronounces her name? I have lived in South Florida for too long, so my instinct is to pronounce it Grah-nah'-day. The non-Spanish version (which I have heard some reporters use) would be grah-nayd'.
If the latter, then recent events have earned her a place on the Mount Rushmore of Appropriate Judicial Names, alongside Learned Hand, John Minor Wisdom, and William Wayne Justice.
Lower federal courts and state administrative actions
Thanks to Amanda for her post about her article and the effect of lower-federal-court precedent on state courts. I look forward to reading it and using it in a larger article on the procedural insanity we are seeing between Windsor and the decision this June.
But I wonder if this issue is just a distraction here, partly triggered by Moore's memo and order, which focused heavily on it. Probate judges are not acting in a judicial capacity or deciding cases in issuing (or declining to issue) marriage licenses. They are acting in an executive or administrative capacity, such that there is no such thing as "binding" or "persuasive" precedent. Absent a federal judgment against him, precedent does not act directly on any executive or administrative actor; its force is in the fact that, if sued, the precedent will bind the court hearing the case and the executive will almost certainly be enjoined.
So the non-binding nature of Judge Granade's original decision is in play here. But not because it is not binding on state courts; rather, because it is not binding on other federal district courts. Thus, the possibility of a different district judge disagreeing with Judge Granade justifies a probate judge, acting in an administrative capacity and performing an administrative function, in not immediately following that decision.
Now we have a meaningful federal order
The New York Times reports that Judge Granade has enjoined Mobile County Probate Judge Don Davis from denying marriage licenses to same-sex couples. The injunction comes in Strawser v. Strange, an action by a male couple to obtain a license. In January, Judge Granade enjoined the attorney general from enforcing the ban on same-sex marriage, an injunction that, as we have seen, has no real effect on the issuance of marriage licenses. On Tuesday, the plaintiffs amended their complaint to add Judge Davis as a defendant.
So, since even the Times article linked above does not have it quite right, let's be clear on where we are now:
1) Judge Davis is legally obligated to issue a marriage license to Strawser and his future husband; if he fails to do so, he can (and probably will) be held in contempt.
2) Judge Davis probably is not obligated by the injunction to grant anyone else a license, since there are no other couples joined as plaintiffs, this was not brought as a class action, and Judge Davis does not exercise supervisory authority or control over other probate judges. But anyone in Mobile denied a license will be able to intervene or join as a plaintiff in Stawser and Judge Granade will immediately extend the injunction to cover the new plaintiffs. So Judge Davis should pretty well understand that he should issue licenses to everyone who requests one.
3) No other probate judge in the Southern District of Alabama is obligated by the injunction to grant anyone a license. But they all should be on notice that, if they fail to do so, they will end up before Judge Granade (either because a new action goes to her or because the new plaintiff jumps into Strawser and adds the next probate judge as defendant) and she will enjoin them.
4) No probate judge in the Middle or Northern District is obligated by the injunction to do anything, nor are they bound by the precedent of her opinion. Formally, it will take a new lawsuit by a different couple and a new opinion and injunction by a judge in each district. But as I wrote earlier in the week, I believe that, once one probate judge in the state had been enjoined, everyone else would fall in line, even if not yet legally obligated to do so. So while Roy Moore may continue to shout at the rain, I would be very surprised if any other probate judge bothers denying anyone else a license; it just is not worth the effort, as I cannot see a federal judge in either district reaching a different conclusion about the constitutionality of same-sex marriage bans.
Update: Important addition: If a probate judge in situations ## 3-4 did decline to issue a license to anyone, they would not be acting in disregard or defiance of Judge Granade's order, which still does not bind them or compel them to do anything. And I feel pretty confident that Judge Davis would not be acting in defiance of the order in situation # 2. In other words, today's order likely will have the practical effect of getting probate judges statewide to fall in line; it does not have that legal effect.
Amanda Frost on Chief Justice Moore and the "Inferior" Federal Courts
[The following guest post is by my friend and WCL colleague Amanda Frost:]
Alabama Chief Justice Roy Moore is making news again. As reported on this blog by Howard Wasserman, he has advised Alabama probate judges to ignore an Alabama federal district court’s ruling that Alabama’s ban on same sex marriage is unconstitutional. In a fascinating memo laying out his position, Moore argues that state courts are not obligated to follow lower federal courts’ decisions. I’m very interested in this question, and I recently wrote an article examining the constitutional relationship between state courts and the lower federal courts. (My article was cited by an Alabama Supreme Court Justice Bolin, who concurred in that Court’s decision on Monday refusing to “clarify” the question for the probate judges.)
Thinking Further About Cognitive Effort: Some Additional Thoughts on the "Simms Postulate"
My previous post explored the connection between the “closeness” of a legal issue and the level of cognitive effort that goes into its resolution. In particular, I introduced an idea called the “Simms Postulate.” Named in honor of a dubious but thought-provoking assertion that Phil Simms once made about the NFL’s “indisputable video evidence” rule, the Simms Postulate posits a positive correlation between cognitive effort and the closeness of an issue (or “issue-closeness” for short), holding that the harder a decision-maker works to resolve an issue, the more plausible it becomes to characterize the issue as “close,” “disputable,” “on the borderline,” etc. The goal of the post (football pun intended) was to suggest that the Simms Postulate might be and indeed has been used when judges conduct doctrinal inquiries that turn on the closeness of an issue that has already been decided on its merits.
I have thus far reserved judgment both as to the validity of the Simms Postulate itself and as to its utility as a tool of legal analysis. But let’s now open that door. Specifically, this post identifies and discusses five questions that strike me as potentially relevant to the overall value of the Simms Postulate. To those of you expecting a comprehensive and definitive normative conclusion, I must apologize in advance: What follows is tentative and conjectural, aimed more at beginning an evaluation of the subject rather than completing it. To those of you who like to read short blog posts, I should also apologize. I really didn't intend for this one to go on for so long, but, alas, it may now be eligible for the so-called “tl;dr” treatment. With those caveats offered, however, let me share some highly preliminary thoughts:
LSAC Report on Best Practices
A report recommending to LSAC best practices on accommodating LSAT test-takers with disabilities has issued from a panel convened pursuant to a consent decree between LSAC and DOJ. Here are the Executive Summary and the full report. (H/T: Ruth Colker (Ohio State), the sole lawyer on the panel).
Bazelon sort-of defends Roy Moore
Emily Bazelon makes a sort-of defense of Roy Moore in The New York Times Magazine, turning out many of the arguments I have been making here.
Zoning in baseline hell: How landowners get a sense of entitlement to their neighbor's land
Zoning is an area of law stuck in a conceptual space that I call "baseline hell," a space in which, because social norms about entitlement are contested, any change in the status quo can be painted as either the exercise or invasion of private rights. In zoning disputes, for instance, residential land users assume that they have a quasi-property easements over neighboring landowners' lots, even when the very existence of the easement is the result of the burdened landowner's exercise of their own property rights.
Take, for instance, the Brooklyn Heights neighbors of the Pierhouse, a luxury apartment building now being erected next to Pier 1 by the Toll Brothers in the Brooklyn Bridge Park. The development is providing hefty funding for the park next door: The combined ground lease and payments in lieu of taxes (both dedicated to the upkeep of the park) add roughly a $1.50 per square foot to the common charges paid by owners.
The new structure also imposes costs on the neighbors in Brooklyn Heights: It blocks their view of the Brooklyn Bridge. On one view of the baseline of entitlement, the developer appears to have harmed the neighbors with a nuisance-like cost. But appearances can be deceptive in baseline hell: The view that the neighbors seek to preserve was actually created by Toll Brothers when they demolished an old warehouse that stood on the site now being developed for apartments. The view to which the neighbors now claim they are entitled existed only from 2010 (when the developer broke ground) to 2014 (when the Pierhouse reared its stories next to Squibb Park. In effect, the Brooklyn Heights homeowners want a scenic easement that would not exist but for the very development that they want to stop.
At various public hearings, the neighbors are vociferous with righteous wrath about Toll Brothers' blocking the view that Toll Brothers created, apparently on the theory that, sometime between the the time that the dust settled on the old warehouse rubble and the moment that an "I" beam blocked the resulting view, they developed a vested right to the unobstructed vista. But is there some less partial way to determine who is invading the rights of whom? Are the neighbors trying to confiscate Toll Brothers' investment with zoning restrictions, or is Toll Brothers imposing a nuisance on the neighbors?
As I explain after the jump (with a little help from a paper by my colleague Adam Samaha), there is no easy way to answer this question. Welcome to baseline hell.
Wednesday, February 11, 2015
The wrong vehicle?
Judge Granade has scheduled a hearing for Thursday to decide whether to add Alabama Probate Judge Don Davis back into the case as a defendant and whether to enjoin him from enforcing the state ban on same-sex marriage. That injunction is all-but-certain to issue. Believe it or not, however, it may not end the controversy. We still have a scope-of-the-injunction problem. Since Searcey and her wife remain the only plaintiffs, the injunction would only compel Davis to allow Searcey to adopt her wife's child. That's it. Even as to Davis, the effect of the opinion as to anyone else's rights would be merely persuasive.
The problem is that Searcey may be the wrong litigation vehicle for getting probate judges to issue licenses, since it is not a marriage-license case but an adoption case. And it seems to me that it is impossible to turn it into a license case by adding new plaintiffs (through joinder or intervention) who are looking for licenses rather than to adopt, since they are seeking entirely different relief. Perhaps the fact that the same-sex marriage ban (and whether the plaintiffs are or can be married) is a common question of law or fact. But the questions are arising in such wildly different contexts and settings.
Update: Thanks to the commenter below for correcting me. The events are happening in Strawser, an action brought by a male couple in January, originally against Attorney General Luther Strange and which produced a (largely meaningless) injunction against him; Davis has been added as a defendant and a hearing on a preliminary injunction against Davis is scheduled for Thursday. In addition, according to this story, there is a second action in the Southern District by several couples, naming Davis and Moore as defendants.
Now we are beginning to see some progress. Once Davis is directly enjoined to issue licenses, expect everyone else to fall in line.
JOTWELL: Walsh on Re on Narrowing Precedent
Introducing Skills Training in the Doctrinal Classroom: An Overview and a New Coursebook
For several years—decades now!—there have been clarion calls for changes to law school pedagogy. Buzzwords like experiential education, practical learning, skill building, problem solving, and others have been thrown around with increasing frequency. These calls have only grown louder as the market for legal services has experienced both cyclical and structural changes.
Many law school professors want to answer these calls and to include skill-building in the doctrinal classroom. Sessions devoted to this topic at annual law conferences (like SEALS) are typically among the best-attended; the topic comes up repeatedly in chatter on blogs and listservs; and faculty members are constantly sharing notes and ideas. Yes, it is clear: the demand for appropriate teaching materials is high.
Unfortunately, until the past couple of years, professors have not been able to find much, as authors and legal publishers have been unsure of how to meet the demand for this new pedagogy. In the absence of published solutions, some professors developed their own materials, much to the benefit of their students.
Dorf on Roy Moore and Alabama
Mike Dorf's take on Roy Moore and the events in Alabama. Mike concludes "that while Chief Justice Moore's memo was a lawyerly piece of work, it ultimately does not advance his (distasteful) cause. It's at best a cover for his Faubusian agenda." He argues that Moore ultimately was playing a losing hand because couples always could sue the probate judges in federal court (because, as I have argued, issuing the licenses is not a judicial function). In playing it, therefore, Moore was simply trying to play Orval Faubus (or George Wallace, to keep it in the same retrograde state).
I agree that Moore likely is doing all this for bigoted reasons. But that is not necessarily established by the fact that the probate judges could be sued and enjoined. I never read Moore as denying that or denying that this would change the analysis and their obligations (certainly some probate judges recognized as much). Moreover, what difference should it make that Moore's position will ultimately prove a loser? The question is whether it is wrong to force the plaintiffs go through the process of establishing their legal rights and of not departing your preferred position (non-issuance) unless formally compelled to do so, even when you know exactly how it will play out (and even when it likely will cost the taxpayers attorney's fees).
There is an obvious comparison between Alabama and Florida. In both states, officials charged with issuing licenses (county clerks in Florida, probate judges in Alabama) took the position that they were not bound by the initial district court order or opinion invalidating the state ban. And in both, the federal court issued a "clarification" that the earlier injunction did not compel any non-parties to issue licenses, but the Constitution did (whatever that means). But then they part ways. In Florida, the county clerks folded their tents following the clarifying order and began issuing licenses across the state,* although I they were not legally compelled to do so by that clarification and did so only as a strategic choice of avoiding being sued. But the Alabama probate judges, and Moore, have not done the same; unlike the Florida clerks, they seem intent on making the plaintiffs take the steps of obtaining those individualized federal injunctions.
* Mostly. Clerks in several counties avoided having to issue licenses to same-sex couples by ceasing issuing licenses at all.
So two questions: 1) Why is Alabama playing out differently. Is it Moore and other officials playing Wallace/Faubus by demanding formal legal processes? 2) Is it wrong of them to demand those processes be followed (and by that I mean not merely less preferable or more expensive, but morally or legally wrong)?
Tuesday, February 10, 2015
Brian Williams, Eye Witness Testimony and the Permeability of Memory
I have no idea after reading this article in the New York Times if Brian Williams does or does not believe that he witnessed the helicopter crash when he was actually nowhere near it, but I do believe, based on scientific evidence discussed in this post, that our memories are highly permeable. Things that we see and hear later can become part of what we think are events we actually experienced. In other words, our memory is not like a hard-drive or a camera where events are recorded. Instead, they are a creation of our imagination that recreates themselves every time we think of them. See this article in Scientific America for the details. In an article I’m preparing for the current submission season, I start with reference to the charming Lerner & Lowe song from Gigi where Maurice Chevalier and Hermione Ginglold compare conflicting versions of the first time they met—each equally sure they are right. And that’s the problem—our mind gives us memories as a seamless whole, we cannot perceive cracks or seams.
But what does this have to do with law? Well, Brian Williams will be fine whatever happens. However, the millions of people in the United States who have been convicted based on inaccurate eye-witness testimony are far less fortunate. Here at Texas Tech University we recently honored the memory of Tim Cole, a student at the university, who died in prison after being wrongly convicted of a rape based on now recanted eye-witness testimony.
Elizabeth Loftus, the research psychologist who did the most to make this phenomena known in the criminal justice community, describes here research in this TED Talk and her website at the UC Irving School of Law will lead you to her substantial body of work. My very favorite study showing how false memories can be created involves individuals who were convinced that they shook hands with Bugs Bunny at Disneyland (an intellectual property impossibility). Other legal scholars to check out are Mark Godsey at the University Of Cincinnati College of Law School, Sandra Guerra Thompson at the University Of Houston Law Center, Professor Brandon Garrett at the University of Virginia School of Law, Patricia J. Williams at Columbia Law School. For a compilation of materials see these collections put together by the Huffington Post and The Innocence Project including this piece by Barry Scheck highlighting a recent National Academy of Sciences report.
The irony of trying to have it both ways
Much of what is happening with same-sex marriage in Alabama right now is a product of a hierarchical and geographically dispersed judiciary. The district courts hear cases first and may decide quickly, but the decision (beyond the parties themselves) has limited precedential value. The courts of appeals and SCOTUS create sweeping binding precedent, but it takes longer to get those decisions.
Had the Eleventh Circuit or SCOTUS ruled that the Fourteenth Amendment prohibits same-sex marriage bans, the obligations of state officials would be clearer. It would be certain that any district court would order them to issue the license because the precedent would be binding and that to not issue licenses would subject them to contempt. It also would be certain they would be on the hook for attorney's fees. And they may even be on the hook for damages, because the law would be clearly established. But we are still early in the process in Alabama, so we only have a persuasive-but-not-binding opinion from a district court. And we see what we would expect--it is persuading some actors, not persuading others; when lawsuits start coming, it may persuade some district courts and not persuade others.
In the short term, of course, this may give us Swiss cheese--one report this morning said 16 out of 67 counties are issuing licenses. Uniformity within the state comes with that binding precedent from the reviewing court. But it takes time.
There is a way to avoid Swiss cheese, of course: Have the district court decision and order stayed pending appeal. Then everyone will be able to marry at the same time--once the reviewing court provides binding precedent that same-sex marriage bans are invalid, after which everyone is bound. Of course, no one on the pro-marriage equality side wants to wait. I would guess everyone would strongly prefer marriages in 16 counties to marriages in none.
But that is the choice. You can have marriages begin without binding precedent, but not every official or court will go along with the precedent, so not everyone will gain the benefit of it. Or you can get uniformity from the eventual binding precedent so that everyone will be bound and everyone will benefit, but you have to wait. You cannot get both. And while frustrating, it is wrong to attribute this procedural reality to malfeasance by state officials.
Public Defenders as Prosecutors?
I want to continue to think about how we should handle criminal cases involving police misconduct, particularly (though not only) police-involved killings. The core problem, obviously, is that local DAs need the cooperation of local police, making it hard for the DAs to vigorously prosecute office misconduct. The failure to secure indictments in the Michael Brown and Eric Garner cases highlighted this problem.
In my previous two posts, I considered some of the limitations with Wisconsin’s solution, namely relying on outside investigators to provide local DAs with a report, and with what New York’s AG wants, namely a special police-focused prosecutorial unit in the state AG’s office.
But criticism is easy. If I have problems with the Wisconsin and New York plans, what would I recommend?
I want to suggest something fairly radical, which I haven’t seen anywhere in the debate. There could be a host of reasons why this is impractical politically, or why implementation could never work, etc. etc. But that’s the great thing about a blog: you can float a trial balloon and see if it is filled with helium or lead.
What if we created a special police-misconduct prosecutors office in the public defender’s office?
And the media does not help
Most counties in Alabama were not issuing licenses as of yesterday, not improperly so as a matter of process. But you would not know it from the media, with headlines such as Most Alabama Counties Defy Feds by Blocking Gay Marriage (ABC News, complete with video of George Wallace in the doorway) and Judicial Defiance in Alabama: Same-sex marriage begins, but most counties refuse (Wash. Post); The Supreme Court Refused to Stop Gay Marriage in Alabama, But the State's Governor and Chief Justice Are Refusing to Listen (TNR); and Alabama's Roy Moore Defies Federal Order, Refuses to Allow Gay Marriage (Slate's Mark Joseph Stern, who can't help himself, calling it a "stunning display of defiance against the judiciary").
Getting Rid of NYC's Zoning Bazaar: Let's Not Make a Deal.
In last Tuesday’s State of the City Speech, Mayor de Blasio made housing affordability the centerpiece of his Administration. He has promised to create 240,000 new units of housing, including 80,000 “affordable” units as antidotes to NYC’s rising rents. But is this a promise he can keep?
The economics of housing affordability are a lot easier than the politics. Economically speaking, it is a familiar point that big cities like New York have excessive zoning restrictions that reduce the supply of land and thereby drive up rents without producing any commensurate environmental benefit for the city. These zoning walls exclude lower-income workers from economic opportunity, but they often add little value to local residents – for instance, keeping land locked in districts reserved for manufacturing when such industry is better pursued in jurisdictions with better access to rail transit.
Neighbors in big cities, however, love their zoning as much as any suburbanite loves the gates of their gated community. Therein lies the tricky politics. Backed by “aldermanic privilege,” each city council person excludes new housing from their own district to placate their vociferous NIMBY residents, creating a housing shortage for the city as a whole.
There are two ways to overcome this perverse political dynamic towards urban exclusion. First, developers bargain individually with each neighborhood and its council member, crafting a special land-use deal in which the neighbors relent in their opposition, bought off by new schools, parks, plazas, or affordable housing. Call this the “zoning bazaar” method. Second, the mayor could promulgate a binding and general plan ahead of time, specifying the conditions under which floor-area ratio can be added to lots in different parts of the City. Call this the “posted price” policy. The latter seems rigid and unwieldy, but, as David Schleicher and I argue elsewhere and as I explain after the jump, it may actually be a more libertarian approach than the seemingly more flexible lot-by-lot bargaining.
Monday, February 09, 2015
Comments working again
We have found a temporary fix for the problem with Comments, so readers should be able to resume commenting. Thanks for your patience.
Measels--An Update and Some Constitutional Issues
So things are moving fast on the Measles front. Today I’m going to do a quick overview of mandatory vaccination for childhood disease and later this week what it tells us about our efforts to prepare for a bioterrorism event (spoiler, nothing good).
The measles outbreak has spread now to 17 states and the District of Columbia. And things are worse than they seem. The current “outbreak” (the number of cases that can be traced back to the original Disneyland exposure) signals how many people in the U.S. lack immunity not just to measles, but most likely to the other two deadly diseases which the MMR vaccine protects against—Mumps and Rubella (German Measles). For an overview of the damage done by Andrew Wakefield’s now discredited article see here. See how Megyn Kelly explains it here. Last year I gathered some resources specific to young adults, and they are here.
Rubella poses a serious risk to developing fetuses. According to the CDC A pregnant woman has “at least a 20% chance of damage to the fetus if….infected early in pregnancy.” This damage is called CRS-congenital rubella syndrome. Warning-you may want to take my word that this potential damage is serious rather than read this very descriptive CDC report . Mumps is also quite serious. Again a warning, it may be enough to know that the virus causes swelling in various body parts and can be a contributing factor to infertility or low fertility in a small but real percentage of men who become infected.
Moreover, it seems unlikely that MMR is the only vaccine these children lack. They are also at risk for polio, diphtheria, tetanus, whooping cough, chickenpox, hepatitis B(and no, it’s not just a sexually transmitted disease),meningococcal disease , and something really unpleasant for which there is now a vaccine—rotavirus. Here’s the list.
The public focus has turned very quickly to law and ending vaccination exemptions, see here and here, —so these are some resources if this comes up. Top legal experts like Professor Lawrence O. Gostin are making clear, there is no Constitutional requirement to exempt anyone from mandatory vaccination in the face of a credible threat to the public’s health. The Supreme Court in held Jacobson v. Massachusetts that the individual states have full authority to pass mandatory vaccination laws and that they are not obligated to give exemptions for reasons of philosophy or preference. For more background on the Constitutional issues see Prof. Parmet here, here, and here and Professor Edward P. Richards. The situation is a closer call when it comes to religion, but not much. As Justice Ginsberg points out in her dissenting opinion in Burwell v. Hobby Lobby, “Religious objections to immunization programs are not hypothetical.” 134 S.Ct. 2751, 2805, n. 31 (2014). And in terms of an adult’s right to claim a religious exemption from medical care for a minor, the law is if anything clearer. Even when making a “martyr” of oneself doesn’t pose a threat to others, a state still has the power to intervene when the religious belief is claimed on behalf of a minor. Here’s a helpful overview by the Congressional Research Service about vaccination laws in the US and here's one that looks at laws overseas.
No contempt for you
Motion for Contempt denied--as expected and as appropriate. Judge Granade emphasized that Judge Davis is not a party. And she pointed out that her clarification order "noted that actions against Judge Davis or others who fail to follow the Constitution could be initiated by persons who are harmed by their failure to follow the law." In other words, plaintiffs' lawyers, pay attention to what the judge tells you.
Justice Thomas on Signaling in SSM Cases
In a few posts, I’ve discussed Supreme Court “signals,” defined as instances when “the Justices undertake official actions that don’t establish conventional precedent or resolve ultimate merits issues, but nonetheless suggest, perhaps deliberately, some aspect of how lower courts should decide cases.” One of my examples had to do with the Court’s unusual cert orders in same-sex marriage cases, which seemed like a signal that the challengers had very strong cases indeed. Today, the idea of a "signal" in this area became quite salient, as Justice Thomas expressly referred to signals in criticizing the Court’s latest same-sex marriage order.
Same-sex marriage comes to Alabama
Read the whole thing for reports and photos of same-sex marriages in Alabama (my favorite is the two African-American women posing with the white male judge who married them in Birmingham--maybe we have come some ways.. Roy Moore's Sunday gambit had mixed results; marriages are taking place throughout the state, although not in particular counties. Lawyers are preparing to file an action in federal court against the probate judge in Mobile asking for an injunction--exactly how this should play out.
[Update: Or not. The lawyers for a couple actually filed a Motion for Contempt and Immediate Relief against Judge Don Davis, probate judge in Mobile. But since Davis is not a party to the original action or subject to the original injunction, he cannot be held in contempt by this judge. All they had to do was file a new action, which would have been assigned to Judge Granade for a new preliminary injunction. This is insane.]
[One More: Marty Lederman reminds me that Judge Davis was originally a party to the case, but was dismissed with prejudice for reasons I cannot fathom, beyond, again, no one knows what they're doing here. But it is even less possible to hold in contempt a person who was explicitly dismissed from the case.]
SCOTUS this morning denied a stay in Searcy, from which Justices Thomas and Scalia dissented. In response, AG Luther Strange clarified that, while he is barred from enforcing Alabama's ban, he has no power to issue license, and that probate judges should consult their attorneys and associations.
Josh Blackman has some thoughts on Thomas's dissent. I may have more to say later.
Cognitive Effort as a Proxy for Closeness
Phil Simms, former quarterback for the New York Giants and current NFL commentator for CBS, once made a comment about instant replay review that has stuck with me over the years. I can’t remember the precise context of the remark, but the situation was something like this: The referee was “in the booth” deciding whether or not to affirm or reverse the call on the field, and he had been re-watching the relevant video evidence for a significant amount of time. Simms then proceeded to suggest that this fact in and of itself conclusively demonstrated that the call on the field should be upheld. Reciting the applicable standard of review, which permits reversal only on the basis of “indisputable video evidence,” Simms asked how it could be possible for the video evidence to be “indisputable” when the referee himself was struggling with the question of whether to affirm or reverse the call. In other words, Simms didn’t even need to look at the replay to know that the call should be reversed; the referee’s failure to render a quick determination was itself sufficient to demonstrate that the video evidence did not “indisputably” support reversal.
Simms's reasoning on this point struck me as unpersuasive. The referee was not asking whether the video evidence supported reversal; rather, the referee was trying to decide whether the evidence did so in an indisputable manner. In other words, the referee was applying the very same standard that Simms himself had invoked. So, while the length of the referee’s deliberations might well have indicated the existence of a close question, that question itself went to the indisputability of the evidence—not to the objective rightness or wrongness of the original call. In other words, while it may have been right for Simms to draw a connection between the length of the referee’s deliberations and the disputability of the question that referee was asking, it was wrong to infer further that the evidence was in fact disputable: What was disputable was not the video evidence itself, but rather the question of its indisputability.
Ever looking to escalate, Alabama's Chief Justice Roy Moore has issued an Administrative Order stating:
Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with [Alabama's constitutional and statutory prohibitions on same-sex marriage].
Moore seems to be relying on the fact that no probate judge is subject to Judge Granade's order. So we probably need to read this as implicitly applying "as of Sunday, February 8," but no longer effective when probate judges start getting enjoined by federal district courts on Monday morning.
But Moore's move now has me thinking that commenters to my earlier posts had it right--Moore is the statewide officer who should be named as defendant, with an injunction ordering him to order the state's probate judges to issue licenses. Moore clearly has set himself up as the official with the power to control the enforcement of this particular state law by controlling what state probate judges do, much as California's AG could control county clerks and order them all to issue licenses. Moore concedes he is acting in an administrative capacity. And since this is not a decision arising from actual litigation, neither Younger nor Rooker-Feldman should come into play.
Sunday, February 08, 2015
Taxonomy of sleazy lawyers
More from Alabama
This article lays out the competing sides of the dispute pretty well. And it shows how complicated this may be getting and how confused many people are by this area of the law.
First, the article talks about Alabama probate judges being jailed for contempt. This would be utterly impossible--Judge Granade cannot hold in contempt anyone who was not party to the federal action, which is only the state AG. But the story then clarifies that contempt would be for violating a future order against a probate judge sued on Monday for refusing to issue a license, not for violating Judge Granade's original order. Which is right, although unlikely--at least Judge Bowden has stated that he will comply with any injunction that may issue should he be sued.
Saturday, February 07, 2015
Ben Bowden, a probate judge in Covington County, AL, announced on Friday that, on his reading of the law, he will not issue marriage licenses to same-sex couples on Monday, when the stay of a district court injunction expires. Bowden concluded that he the district court decision and injunction invalidating the state's marriage-equality ban is not binding on him, thus he will continue to follow the state-law ban until an appropriate court directs him otherwise.
So the issue now is queued up. A couple wanting a license in Covington County can now sue Judge Bowden for an injunction compelling him to issue the license; the issue is ripe, given Bowden's announcement, and the couple will have standing. Covington County is located in the Southern District, so the case likely will be assigned to Judge Granade (most districts have a rule sending "related cases," often broadly defined, to the same judge); she will quickly issue an order reaffirming her earlier opinion that the marriage-equality ban is unconstitutional, ordering Bowden to issue the license, and refusing to stay the order. And Bowden recognized that he will be sued and insisted that he would "fully comply" with an order in a case to which he is a party.
Obviously, this is not the most efficient way of doing things. But the point is that couples will be able to get their licenses, probably on Monday, in fairly short order.
Thursday, February 05, 2015
Roy Moore gets it right
And without bigoted or anti-federal rhetoric.
Moore sent a memo on Tuesday to all state Probate Judges, explaining why probate judges are not bound by two recent district court decisions invalidating state marriage-equality bans. (Ed Whelan analyzes the memo at NRO). Moore makes two points, both correct: 1) The attorney general, the only defendant in both Alabama cases, is part of the executive branch while probate judges (who issue marriage licenses) are part of the judicial branch, thus the AG exercises no supervisory authority over them; and 2) federal lower-court precedent is not binding on state courts.* The memo includes an appendix analyzing how the Alabama AG came to be the sole defendant in the two Alabama cases and why he is not, in fact, the appropriate defendant in cases challenging the refusal to issue marriage licenses when (as in Alabama) that task rests with judges or court clerks.
Plaut v. Spendthrift Farm and the Sequencing of Constitutional Claims
Plaut v. Spendthrift Farm is a separation-of-powers decision concerning Congress’s (lack of) power to mandate the reopening of final judgments in federal courts. Specifically, the Court in Plaut held that Congress had violated constitutional separation-of-powers requirements by requiring U.S. district courts to reinstate certain federal securities-fraud cases that they had previously dismissed as time-barred. The separation-of-powers issue is interesting in its own right, but I’ve lately found myself wondering about a separate aspect of the opinion—namely, the Court’s justification for its decision not to address an alternative argument concerning the defendants’ due process rights under the Fifth Amendment.
That the Court in Plaut prioritized resolution of one constitutional issue over another is hardly remarkable: Litigants in Supreme Court cases routinely assert alternative constitutional grounds for relief, and the Court very often chooses to focus on one such ground while leaving the resolution of the other constitutional claims for another day. But Plaut is unusual in that the Court offered some explanation as to why it had chosen to sequence one constitutional claim (i.e., the separation of powers claim) ahead of another (i.e., the due process claim). Specifically, as Justice Scalia observed for the Plaut majority, resolution of the separation-of-powers claim would affect only the powers of the federal government, whereas resolution of the due process claim “might dictate a similar result in a challenge to state legislation under the Fourteenth Amendment.” The separation-of-powers claim therefore presented the “narrower ground for adjudication of the constitutional questions in this case,” and that was enough to justify the Court’s decision to “consider it first.”
Better Call Saul
Despite my distaste for all depictions of law, lawyers, and the legal system in pop culture, I am in the anticipatory tank for Better Call Saul. Reviews are sounding pretty good. And the character is just so much fun that I probably can overlook even large mistakes. Some trailers after the jump.
So who else is in?
Wednesday, February 04, 2015
PrawfsBlawg on Twitter
PrawfsBlawg is now on twitter!
Follow @PrawfsBlawg to get headlines and links to all the posts of our PermaPrawfs and GuestPrawfs.
A Court of Review, or First View?
The Court often says that it is “a court of final review, not of first view.” But the truth is a good deal more complicated, as evidenced by Michael’s recent post. The crux of Michael’s post is an interesting question: why did Hobby Lobby first conclude that a potentially game-changing argument wasn’t presented, before going on to explain why the argument wasn’t persuasive in any event? The answer may be that the Court’s variable willingness to address unpresented issues and arguments reflects its more general prudential use of waiver and forfeiture. As I've suggested in an earlier post, normal principles of waiver and forfeiture sometimes operate differently at the Court because of its a unique role as an expositor of nationwide law.
Fewer law schools or fewer students per school?
As legal education shrinks, should we have fewer law schools or fewer students per school? Right now, I think the policies in place favor fewer students per law school: the ABA is a pretty weak filter, both for new schools and existing schools; U.S. News rankings favor smaller class sizes and better scores; and there's no real market for firm control and consolidation, as Stephen Bainbridge discussed. But there are exceptions -- the incentives to pull in transfer students, for example, favor the "fewer schools" approach, as does the growing trend toward a standard, national bar exam. I haven't seen much policy debate specifically on this question, but it comes up all over the place as we're dealing with the downsizing.
With Amici Like These...: A Response to Josh Blackman on Law Professor-Authored Amicus Briefs
Over at his eponymous blog, Josh Blackman wonders out loud about the ethical propriety of a law professor co-authoring an amicus brief when they are one of the listed amici--that is, of being both one of the parties to an amicus brief and one of its authors, hearkening back to the old line about the lawyer who represents himself having a fool for a client. As Josh writes,
The role of the scholar and that of the advocate is different. I don’t know that I can do both simultaneously. As a scholar, I go out of my way to charitably describe both sides of an argument (as best as I can). As an advocate, this tact would be foolish, and possibly unethical to the extent that it impaired my client’s case. As a professor, I would be hesitant to make an argument that hasn’t been completely thought through, as it may impact my scholarly reputation. As an advocate, especially in litigation that is moving quickly, a much more lax standard would apply to provide the tribunal with the best arguments counsel can muster. As an advocate there are certain arguments I would not be comfortable making as a scholar, and vice versa.
Admittedly, I have a dog in this fight, as I have written a number of amicus briefs over the years, many (but not most) of which have been on behalf of groups of law professors that included me. So folks should take my (negative) reaction with a significant grain of salt. That said, I have two principal critiques of Josh's reaction--one that goes to how he frames the problem, and one that goes to the role of amicus briefs, more generally.
Prosecutors and Police Killings: The Limits to Wisconsin's Innovative Solution
Despite all the attention being paid in recent years to the problems of large-scale incarceration in the United States, no one really focused on the behavior and incentives of prosecutors; even the National Research Council’s giant report on incarceration ignored them. But that all changed with the killings of Michael Brown in Ferguson, Missouri, and Eric Garner on Staten Island, and the failure of the local prosecutors to indict Officers Darren Wilson and Daniel Pantaleo.
So at least one issue involving prosecutors is now receiving national attention: how to properly prosecute police-involved killings.
Tuesday, February 03, 2015
Julian Zelizer, a historian at Princeton, has a new book titled The Fierce Urgency of Now: Lyndon Johnson, Congress, and the Battle for the Great Society; he did a talk on it at Politics & Prose. Zelizer's thesis is that LBJ was not the all-powerful "Master of the Senate" who could push through whatever legislation he wanted--and that LBJ recognized that fact. His period of great legislative achievement was really just the two-year period from 1964-66, when he had overwhelming majorities in both houses and power had shifted away from conservative Southern Democrats. That ended with the 1966 mid-terms, when Southern Democrats returned to power, Republicans gained seats and were less likely to cooperate with him, making it far more difficult for him to achieve as much in the final two years of his presidency (including appoint a replacement for Warren).
This illustrates the broader point that what we think of as eras of particular legal and political achievements often are a product of a much smaller window within that broader era. So, Zelizer argues, the "Great Society" was created largely in two years of Johnson's five-year presidency, when the numbers and personnel lined up. Much less was happening during the other three years.
This matches Lucas Powe's argument about the small window for what we regard as "The Warren Court" and Justice Brennan's power as the intellectual engine of the Warren Court. While Warren was Chief for 15 years, "The Warren Court" really was a seven-year period from 1962-69, when the appointment of Goldberg provided five solid votes (Warren, Black, Douglas, Brennan, Goldberg) for most liberal or civil libertarian positions on speech, civil rights, and criminal procedure. Or, even more narrowly, it might be limited to only the two-year period beginning with Marshall's appointment in 1967, in which there were six liberal Justices and the bloc could afford one defection (by that point, it often was Black) and still maintain a majority.
Thinking About Prosecutors
Thank you to Prawfs for having me back to guest-blog again this month. I want to use my time here to (publicly) work through some very-early thoughts on what motivates the most important, yet most under-examined, actor in criminal justice: the prosecutor. Prosecutors have certainly been in the news a lot lately, but by and large we have very little empirical information on what motivates them or shapes their decisions—in no small part because we have almost no data on what they are doing.
There are two question in particular I want to think about here. The first, which is the more high-profile these days but arguably the less important, is about how to resolve the clear agency problem that arises when prosecutors are asked to prosecute members of their local police departments. In the wake of Ferguson and Staten Island, numerous proposals have been floated, from Wisconsin’s policy of referring police-related killings to outside district attorneys to appointing special prosecutors housed inside state attorneys general offices to handle such cases.
Help wanted for a seminar on "Prohibition"
Last Spring, as I was teaching my first-year Constitutional Law course, I was listening to Daniel Okrent's very engaging book, "Last Call: The Rise and Fall of Prohibition." In many ways -- some of which I'd appreciated before, and others I hadn't -- the book's subject connected interestingly with the big questions and themes of the first-year course (which, at Notre Dame, focuses on "structure"). I had so many occasions to refer to the book in class, I started to worry that my students were getting the idea that I am obsessed with alcohol and its regulation.
A few years ago, Eugene Volokh and others helped me to appreciate the ways in which the Second Amendment can serve as a "teaching tool" in Constitutional Law. It strikes me that the experience with Prohibition - how it came about, what it tells us about constitutional amendments and grassroots political movements, how it connects with questions about the census, redistricting, federalism, and the Fourth Amendment, etc. - could serve, similarly, as a teaching tool or vehicle. Have any Prawfsblawg readers or bloggers taught Prohibition, or used it as a lens through which to look at the Constitution and constitutional law? Any suggestions about how it could be done?
Well, because I am slow and prone to procrastination, I am just now (finally) getting around to thinking about putting together a seminar course on the topic. I continue to think there's a lot of really interesting ways that our experiment with Prohibition could serve as a vehicle for examining, and pulling together, a bunch of interesting questions, including questions about the subjects mentioned in my earlier post.
So, here's a bleg: Does anyone know of any similar courses that are being offered or that have been offered elsewhere? And, does anyone have any ideas for topics that might be covered in such a seminar? Much appreciated! (We will, of course, be home-brewing as part of our coursework.)
Monday, February 02, 2015
Cameras at SCOTUS, again
Lots of new stuff on cameras in SCOTUS. Dahlia Lithwick's Amicus podcast discusses them this week, interviewing Sonja West (Georgia) and RonNell Andersen Jones (BYU), who together do a great job pretty much destroying the anti-cameras arguments. The only thing they did not mention was what I think is the key response to the "people will only hear snippets" argument--people already only hear snippets, but now they read the text and hear it in Nina Totenberg's voice, rather than in Scalia's or Kagan's. John Oliver pretty well demonstrated this in his Supreme Court Dogs segment (after the jump).
Second, Justice Kagan did a Q&A appearance at University of Chicago last weekend, in which she admitted to being "very conflicted" about the issue. The same article indicates that Justice Sotomayor is hardening her position against cameras (despite saying in her confirmation hearing that she had "positive experiences" with cameras while a lower-court judge).
Kagan being "conflicted" about this will not move the needle at all, for a reason that West and Jones discuss in their Amicus interview--the collegiality norms on the Court mean that, as long as one Justice remains strongly opposed to cameras, the rest of the Justices are never going to push the issue.