Tuesday, August 19, 2014
JOTWELL: Understanding Prophylactic Supreme Court Decisions
William Baude at JOTWELL has a review of my colleague John Stinneford's article, The Illusory Eight Amendment. Baude writes, "It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford's recent article . . . . " Professor Stinneford's article critiques Miranda v. Arizona, and contends, contrary to popular wisdom, that it did not truly create a prophylactic rule to prevent compelled confessions. Indeed, Professor Stinneford notes that "the Supreme Court in Miranda did not particularly care what the term 'compelled' means," and because of the Court's failure to address this issue directly, "many of the practices disliked by the Miranda court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession." Both Stinneford's perceptive article and Baude's review explore the implications of this analysis.
Summary judgment and the infield fly rule
No, not together, sadly.
The final version of An Empirical Analysis of the Infield Fly Rule is now on-line at the Journal of Legal Metrics/Journal of Law (the book will be out in a month or so). The article presents the results of a four-year study of all infield fly calls in Major League Baseball. I am extending the study for the 2014 and 2015 seasons, as well as trying to apply some advanced baseball metrics to measure the effect of the rule (or, more precisely, what the effect might be if we did not have the rule and infielders were free to intentionally not catch the ball in search of cost-benefit advantages).
And, completely unrelatedly, Mixed Signals on Summary Judgment is now posted to SSRN, and hopefully coming to a law review near you. Here is the abstract:
This essay examines three cases from the Supreme Court’s October Term 2013 that addressed the standards for summary judgment. In one, the Court affirmed summary judgment against a civil rights plaintiff; in two others the Court rejected the grant of summary judgment against civil rights plaintiffs, arguably for the first time in quite awhile, but in procedurally confounding ways. The essay unpacks the substance and procedure of all three decisions, and considers their likely effect and what signals they send to lower courts and litigants about the proper approach to summary judgment.
Monday, August 18, 2014
Can Standing Immunize Surveillance Programs From Judicial Review?
One of the abiding issues in standing doctrine is whether federal courts should care when legal violations seem to produce no viable plaintiffs. This issue has been particularly salient in debates about secret government surveillance. In recent weeks, yet another surveillance program has started to come into view, and commentators are again wondering whether anyone can challenge the program in court. What’s perhaps most interesting about this latest round of the controversy is that both sides can plausibly rely on the Court’s most recent decision on the issue.
Dean Frank Wu on Rethinking Law School
There has not been, in the recollection of anyone now living, a similar set of challenges for law schools. As with all such situations, however, leaders must spot the issues. We are in danger. We should not deny that.
I welcome the opportunity. We must cooperate -- bench, bar, teachers, students -- to take apart the system and put it back together again better.
Among other things, Dean Wu suggests that legal education should be re-worked to look and function more like medical education (a point that others, including my former colleague, Vincent Rougeau, now dean at Boston College, have also made).
I think that Dean Wu is right to underscore and emphasize what he calls the "maldistribution of lawyers" and also the "cost structure of legal education" and the crisis of "student loan debt." I do regret, though, what seemed to me to be his endorsement of a criticism that, in my view, is (for the most part) a straw man. After noting that the "century-old case method is transitioning towards skills training," he says "[t]he analysis of appellate decisions remains integral to the first year courses, but it would amount to an incomplete education at best" and contends critically that "some law school graduates" -- unlike medical-school graduates -- have engaged in "book learning alone."
The "transition" Dean Wu describes is clearly underway, but it seems to me that it has been for decades (and it has involved adding lots of enriching things -- not only skills training and clinical work -- to the "century old case method"). It's been a long time, I think, since anyone thought "the analysis of appellate decisions" alone could make for a "complete" legal education or since more than a handful of law-school graduates were trained through "book learning alone." The "law schools teach nothing of practical relevance or worth" charge is out there, I realize, but I continue to think it is significantly overstated. (And, to be clear, to say this is not to say anything about the extent to which "skills training" should be emphasized or incorporated more than it is at present.)
JOTWELL: Walker on the effect of teaching procedure
The new Courts Law essay comes from Janet Walker (York--Osgoode Hall) reviewing A Community of Procedure Scholars: Teaching Procedure in the Legal Academy, a piece by authors from four different systems (including Elizabeth Thornburg of SMU) comparing how civil procedure is taught in their law schools and the effect that has on procedure scholarship and procedural systems.
To the man who taught me the infield fly rule
I originally planned to post this last month, but obvious events made it feel inappropriate.
My father, Lawrence Wasserman, passed away July 10, at age 85. A friend once told me that losing a parent is when you really become an adult; I kind of believe that. Dan, being Dan, was one of the first people to reach out and extend condolences from afar--in fact, it was one of our last text exchanges. To tie this back to an earlier post, I just ended shloshim, the 30-day period of mourning in the Jewish faith, so this seemed a good time to write.
Judging Similarity (Part 1)
This post is by GuestPrawf Irina Manta.
I thought I would kick things off by talking a bit about the empirical intellectual property work in which I have been and continue to be engaged. Empirical work in this subject matter has been increasing in popularity in recent years after some pioneers like Barton Beebe and other scholars led the way. The relationship between social science and IP issues has fascinated me for years, so it is a much welcome trend in my eyes. Most recently, I collaborated on my own first project in that area with co-authors Shyam Balganesh and Tess Wilkinson-Ryan. The paper that resulted, Judging Similarity, will appear in the Iowa Law Review later this year, and I would like to offer a sneak peek here into some of the issues we examined.
The test for copyright infringement asks in part that fact-finders determine whether the original work and the allegedly infringing work are “substantially similar” to one another. Put differently, fact-finders—usually jurors—have to decide whether a “reasonable observer” would believe that the similarities between two works were of such a high degree as to involve wrongful appropriation. Further, fact-finders have to establish that actual copying took place, and similarity often plays a role to meet that prong as well when there is no admission of copying. While different circuits each have their own version of the copyright infringement test, they all require a showing of substantial similarity in some form or another. I expressed the concern in my earlier article “Reasonable Copyright”, 53 Boston College Law Review 1303 (2012), that the seemingly simple matter of determining similarity may create an inquiry that is particularly open to numerous cognitive biases. These biases, I argued, would distort the judicial process in a way that would likely generally benefit plaintiffs. My empirical work with Shyam and Tess allowed me to test some of these earlier intuitions I generated.
The first issue in the context of substantial similarity is that by the time the question of similarity reaches a jury, its members have already heard a great deal of evidence about the plaintiff, the defendant, the creativity involved, the process through which the work was created, the reasons for which the work was produced, the defendant’s own creative efforts and behavior, and, on occasion, the market effects of the defendant’s copying. Although the similarity finding is meant to involve no more than a comparison of the two works to assess whether they are sufficiently similar to render the copying problematic (i.e., improper), that judgment may be affected by the availability of this other evidence. The fact-finder is required to answer the question of substantial similarity through a mere comparison of the two works, which will often involve actively ignoring instinctively relevant and highly salient information. Copyright law thus seems to assume that the inquiry into substantial similarity can serve as a simple comparison of the two works, even in the face of extensive factual evidence that bears directly on the dispute in question. The fact-finder is presumed to be able to cabin and exclude from the analysis all of the evidence with which the court has been presented in the lead-up to the issue of substantial similarity.
Sunday, August 17, 2014
Kar on Contract Theory: The Sequel ... And Putting Spectacles on the View from Nowhere?
Robin Bradley Kar has now posted the sequel to Contract as Empowerment: A New Theory of Contract. The second piece is Contract as Empowerment II: Harmonizing the Case Law. I did a quick review of the first piece in an earlier post.
I need to say first that the length and depth of this post is a reflection of the quality of Rob's work. I heartily recommend both articles, taken together, as an incredibly ambitious, if not promising (no pun intended), approach, particularly for those of us (like me) who were so significantly unsatisfied with seeing either the doctrine or the practice of entering into contracts as wholly explained by rational actor economics. So like most reviews, this is perhaps not as much about what Rob is arguing as much as a chance for me to pontificate. In short, don't take my characterizations as gospel; if you have any interest, download the articles while they're hot!
The context here is the longstanding philosophical debate about why and how courts go about using the resources of state power to resolve matters that originate wholly in private ordering. Over the last thirty or so years, those inclined to answer that question have tended to see the rationale for state involvement on two philosophical poles, one consequential and one deontological. From my standpoint, Rob's work (likely in contrast to my own) is firmly within that debate, in that he is searching for a philosophical resolution - one that harmonizes both explanation (i.e. what does contract law do?) and understanding (i.e. what does contract law mean?). Spoiler alert (yawn!): I don't think that kind of complete harmonization is possible, although I tip my hat to Rob's rigor in linking philosophical justification and discrete portions of the doctrine, such as consideration, expectation damages, interpretation, performance, and so on.
Does Ferguson show that Fischel's Homevoter Hypothesis undermines minority power?
One of the oddest aspects of the racial strife in Ferguson, MO is that the state government is providing more racially representative leadership than the municipality. Although Ferguson's population is two-thirds black, its municipal leadership is overwhelmingly white. The (black) chief of the state highway patrol turns out to enjoy more popularity with Ferguson's own (white) municipal police chief.
The idea that state government would protect the interests of a local majority of African-American residents from their own municipal government seems bizarre in light of Southern history. Southern white supremacists seeking to "redeem" government from black power during the 1890s and early 1900s stripped municipalities of power, concentrating decision-making at the state level, in order to prevent local majorities of black voters from controlling taxation of real property. (For a description of the white supremacists' "general hostility to home rule" in Alabama, see Knight v. Alabama, 458 F.Supp.2d 1273, 1284-85 (N.D.Ala.2004)). Moreover, the research of the late Elinor Ostrom and her colleagues in Indiana U.'s Workshop on Political Theory from the early 1970s suggested that black voters in small municipalities within St. Louis County trust their police forces more than black residents in the central city.
Why, then, has not Ferguson's local voters taken control of their own municipal government, electing a mayor and council that creates a police force that the majority can trust? The question has relevance beyond Ferguson's particular situation: The whole point of jurisdictional fragmentation of counties among many small local governments is to give voice to groups that otherwise would be drowned out at the county and state level. If small local governments like Ferguson cannot represent the preferences of two-thirds of their residents, then what good are they? At least one commentator has used Ferguson as a fable of the follies of local decentralization. To academics for myself who have a fondness for decentralization as a vehicle for protecting local voters' power, Ferguson presents a troubling data point. Is there any explanation for how localism seems to have gone awry in Ferguson?
Saturday, August 16, 2014
Why do big cities strangle themselves with zoning? (And will voting with your feet solve the problem?)
Mayor de Blasio is trying to create 200,000 new units of affordable housing in New York City over the next decade. An essential element of his strategy is to increase floor-area ratios (FARs) in return for developers’ leasing some percentage of the new units for rents below market rates. The entire strategy depends on the mayor’s persuading City Council to “up-zone” land – that is, increase the densities permissible under the NYC Zoning Resolution.
The obvious obstacle to this plan is that New Yorkers – like everyone else – tend to oppose new construction in their neighborhood. The wagons are already circling: Just blocks away from where I live, the neighbors are rallying against a couple of new towers with affordable units, ostensibly because they are too close to the new Brooklyn Bridge Park. But these neighbors’ politics ought to favor de Blasio’s plan, right? After all, de Blasio is standing up for affordable housing, a left-liberal goal, and the NIMBY neighbors are liberal brownstone types who allegedly support such goals. So de Blasio and his housing team (including NYU Law’s own Vicki Been, de Blasio’s new housing chief) ought to be able to talk the NIMBY folks out of their opposition, right?
Wrong. It is not just that neighbors’ fear for their condo down payment tend to trump their liberal sympathies for the poor. As David Schleicher and I argue in City Replanning, the less obvious obstacle is that the political economy of NYC’s legislative process tends to favor NIMBY ism, by placing neighbors from different parts of NYC into a collective action quandary. Even if each neighborhood were willing to take their fair share of affordable housing, there is no mechanism for inter-neighborhood bargains assuring that every other neighborhood will be equally accommodating to new construction. Moreover, the parcel-by-parcel bargaining typical of NYC land-use politics so raises the opacity and uncertainty of re-zoning that many developers will be driven out of the market.
After the jump, I’ll explain why contrary to vote-with-your-feet optimists like Ilya Somin, competition from other cities for NYC’s residents is not a great remedy for the NIMBY problem. Instead, David and I suggest a paradox: Command-and-control, centralized, comprehensive planning is actually libertarian. By getting rid of parcel-by-parcel bargaining and reassuring each neighborhood that they will not be left holding the affordable housing bag when they relent in their NIMBYism, the comprehensive plan can diminish the ferocity of the NIMBYs.
UPDATE: Ilya has a response to my post here. I agree wholeheartedly with his statement that foot-voting "makes the situation [of restrictive zoning] significantly better than it would be otherwise." But I think that Ilya errs in stating that "NYC and many other cities with restrictive zoning policies already have 'comprehensive' land use planning." In fact, New York courts (like courts in most states) have long construed the statutory requirement that zoning be "consistent with a comprehensive plan" to mean nothing more than that zoning amendments have a rational basis -- a test that places no practical limit on ad hoc deal-making.
Friday, August 15, 2014
First Amendment repealed in Ferguson, MO
Ronald K.L. Collins suggests (hopes?) we are about to enter a New York Times v. Sullivan moment in response to events in Ferguson, MO--broad free speech principles forged from public and media outrage and exposure of racial abuse by police and government officials. I am less sanguine, because I do not see either the government or individual officers being held to account or sanctioned in any way (legally or politically) for the massive restrictions on free expression that have been imposed in the last week. Collins may be correct that this may present an opportunity for the "admirably defiant spirit" of New York Times to "find its way back into the hearts and minds" of the public and for the public to demand that local government show greater respect for First Amendment rights. But these these events are not going to end with a resounding judicial affirmation of the First Amendment that will impose those obligations on government or sanction it for its past disregard.
Courts almost certainly will accept the government's assertions of public safety concerns and recent memories of rioting as justifying officers responding to seemingly peaceful, if angry, protests with riot gear and rubber bullets--these events illustrate Timothy Zick's thesis that public spaces are no longer for collective speech by large groups (My favorite detail: Police ordering people to return to their homes, then saying "Your right to assembly is not being denied"--oh, if you so say). The Eighth Circuit has never held that citizens or the media have a First Amendment right to record police in public spaces, so individual officers will enjoy qualified immunity for various incidents in which they have ordered citizens and journalists to stop recording, confiscated video equipment, or arrested people for recording. There is no evidence the city or county itself ordered officers to target people filming police--at best, municipal policy is silent. The federal government has already backed the local power play by declaring a no-fly zone over Ferguson, thus preventing television helicopters from recording activity from the air. DOJ has promised to conduct an investigation to see that justice is done, but that seems more about the original shooting; otherwise, DOJ assistance has been with "crowd control" and urging citizens not to "antagonize" police. But that "antagonism" has, in large part, consisted of attempting to assemble and protest and to video police massively over-reacting to those attempts--so DOJ's advice is for people not to do the things they should have a constitutional right to do. And like southern officials 50 years ago, Ferguson and St. Louis County officials do not seem affected or shamed by public outrage over their conduct, do not seem to acknowledge having done anything wrong, and do not seem inclined to make any changes on their own accord.
Again, the public takeaway from this may be a reaffirmation of free speech ideals. But is that enough without some official declaration and application of those ideals?
Update: According to this story, things played out much differently Thursday night, under the leadership of Missouri Highway Patrol Captain Ronald S. Johnson, a Ferguson native. There was no massive militarized police response to demonstrators and people were allowed to march and gather. And police officers were ordered to remove their gas masks. Missouri Governor Jay Nixon "vowed that officers would take a different approach to handling the massive crowds that have taken to Ferguson’s streets each night." (For those of you who teach Evidence, this would be an example of an inadmissible subsequent remedial measure).
Introduction: Irina Manta
The following is by Irina Manta, who will be guest-blogging with us for the rest of August and all of September.
My last exchange with Dan was on the topic of my guest-blogging here, and I hope to honor his memory by contributing to the wonderful community that he started and ran in the form of PrawfsBlawg. I will mainly be talking about my work in the area of intellectual property over the next month and look forward to the exchanges that will follow. My faculty profile is available here.
Thursday, August 14, 2014
Lubet on Academics, Law, and Politics
Steve Lubet published an op-ed in the Chicago Tribune today regarding the recent controversial non-hiring at Illinois. Seems to me he got it just about right.
The link will lead you (I believe) to a pay wall; the Tribune's editors have graciously allowed us to reprint - which you can find below the fold.
UPDATE: I have opened the comments. My concern originally was the fact that this is about the bounds of civil discourse (apart from the legitimately debatable issues of academic freedom and law), and because all the comments get e-mailed to me even when unmoderated, I didn't want to be a potential adjudicator of civil discourse. There's even a legitimate debate about what constitutes civil discourse, which is the part of Steve's essay that resonated with me. But there IS a line, albeit not always clear where it is, and I agree with Steve that this person crossed it. With that reservation now express, go to it.
Wednesday, August 13, 2014
Social and Legal Prejudice in Runyon v. United States
Runyon v. United States is a pending capital case in which the defendant has filed for cert and the United States sought eleven extensions of time before filing its brief in opposition earlier this month. As Amy Howe observed on SCOTUSBlog, the government’s highly unusual series of extensions delayed the Court’s consideration for almost a year.
Runyon is notable in part because it involves the interaction of prejudice in two senses—social and legal. In other words, Runyon asks whether prejudice in the sense of legal injury resulted from the government’s use of prejudice in the sense of social stereotypes.
Death Penalty Update
Dan Markel's last post here addressed the decision in Jones v. Chappell, in which US District Court Judge Cormac Carney declared the death penalty unconstitutional by reason of delay. He would probably have had a field day with the recent developments in the case.
A day after the decision, I started a petition on Change.org, calling on Gov. Brown and Attorney General Harris not to appeal the decision. It started as a small plea on Facebook, and without any pushing or prompting from me found its way to the Daily Kos and to the Daily Journal. By the time I submitted the petition, it was 2,198 signatures strong.
There are still 12 days left for the Attorney General to appeal the decision, and as I explained here, if her office does not do so, it doesn't mean the death penalty in California is effectively abolished, but it would be a great start of a series of legal and political moves that could spell its demise. I'm beginning to think that the death penalty can't be executed; rather, it has to die a slow death from a chronic disease (delays, costs, malfunctions)--much like the vast majority of the inmates on death row.
I think everyone understands this, even if they don't like it, and that includes death penalty proponents, who seem to be freaking out about the prospect of $130 million annually in savings and folks being put in general population serving life without parole (which they do anyway, just without the expenditure.) And it seems that death row supporters in California are beginning to freak out at the not-unlikely possibility that the Attorney General is going to leave this decision alone. First was this post on Crime and Consequences, inviting district attorneys to risk their jobs and eat up their lives by appealing a decision their boss might not appeal against her officer's discretion (really?). But then, the decision was actually appealed. Yesterday. Not by the Attorney General. By a private citizen by the name of Robert Justice.
Don't believe it? Here's the notice of appeal.
Conversion from Bluebook to Chicago Manual of Style
I was advised that there will be a book incorporating the Kelsen conference papers, so I just spent the better part of a full workday converting this essay from Bluebook to Chicago Manual of Style, using the publisher's template for headings, footnotes, references, and so on.
It's been a long time since I used the Chicago Manual. As with all languages, it takes a while to get fluent. But if you don't work a lot with court cases, statutes, and the other usual stuff of legal writing, it actually makes more sense, contains more information, and results in a shorter piece. The big pains in the patoot are that you have to show beginning and end pages for journal articles as well as publisher information for books. For law review articles, you can get the page ranges pretty quickly by clicking the "print/download" button on Hein Online, and Amazon is pretty good about publisher information, although it doesn't list the city of the publisher.
Normal people would have a research assistant do this but (a) I don't have one, (b) I probably wouldn't trust him or her to be as anal about it as I am anyway, and (c) I get a kind of sick pleasure out of it.
I am now available for consultation on these weighty matters as a service to the community.
Reviving the Research Canons: What Every Law Prof Needs to Have Read
Mike Madison has a really nice piece out entitled "Lost Classics of Intellectual Property Law." In it, he chides legal scholarship for failing to pay enough attention to older pieces that have come before and have laid the foundation for the discipline. His essay seeks to address this problem by setting out those "classics" that need to read, understood, and cited to provide "better and more consistent acknowledgement of earlier work." The article is actually a compilation of his earlier blog posts, including a 2007 self-described "rant" against the failure of IP scholars to understand the background literature in their field. Talking about presentations at a working-papers conference, Madison said: "By far the biggest flaw in presentations and papers by junior IP scholars (and sometimes by more senior IP scholars) was and is their evident ignorance of earlier work. And not just or even work published within the last year or last five years; I’m thinking of the fact that a lot of foundational work published ten years ago or earlier remains significant today."
The new essay called to mind a project we had at Prawfs eight (!) years ago called the "Research Canons" project. The effort was similar to Madison's -- to compile lists of the foundational works in the legal sub-fields for use by scholars in the area, particularly junior ones. At the completion of our two-month run, thanks to help from a lot of folks, we ended up with entries for 42 subject areas. We had 220 comments and links from 18 fellow bloggers supporting the endeavor. You can find a list of the subject areas, with links to the individual posts, here.
At the end of the Canons run, I expressed hope that the canons could serve as a continuing resource. However, I also recognized that "[a] weakness of blogs posts is that they seem to have a short shelf-life: once a post is more than a day old, it can be forgotten." I don't know whether folks continue to check out the Canons, but I suspect that they have been largely forgotten. So it seems like a good time to revive the project, eight years down the road, and think again about those books, articles, and chapters that are canonical -- that everyone in the discipline should have read.
So this post is intended as an announcement for the project and a request for feedback. What's the best way to proceed? I'm planning on having individual posts for individual subjects, as before. But this time, I'm thinking of asking for the following:
- Classic Canons. The pieces that form the foundation for the discipline.
- Forgotten Canons. The pieces that have not gotten the attention they deserve.
- New Canons. The pieces from the last decade that deserve canonical status.
Let me know what you think of the project, whether the old one was helpful, and what we can do this time to make it better.
Even football coaches are banning laptops
Tuesday, August 12, 2014
They in Their Humanity
In The Prince, Machiavelli describes the pleasure he derives from studying. “When evening has come, I return to my house and go into my study. At the door…I enter the ancient courts of ancient men…There I am not ashamed to speak with them and to ask them the reason for their actions; and they in their humanity reply to me. And for the space of four hours I feel no boredom, I forget every pain, I do not fear poverty, death does not frighten me. I deliver myself entirely to them.”
I had cause to think a lot about this, one of my favorite quotes, recently. An underrated pleasure of academic life, it seems to me, is getting "into our study," and the form of conversation it brings with it. It's a way in which to connect (albeit at a geeky level) with folks that (on a personal level) I might know quite well, or not at all. Some of these connections go beyond the rather impersonal academic interrogation implicit in asking the reasons behind another's work, and become the more personal collaborations in which ideas are directly exchanged, and the process of learning and growing becomes accelerated and fun. In the internet age, these connections are often made, and maintained, online as much as in person, but are not the less personal for that.
In a couple of short pieces, appropriately inspired by a short Prawfsblawg piece he posted, and my comments upon it, I was lucky enough to collaborate with Dan Markel. Through that process, I got to know him a little better than I did before. He was ticked off at some weird conditions a judge had demanded a defendant satisfy to be released on bail. I was taken with his righteous indignation, and then by his fastidious argument-checking. I enjoyed meeting his family and friends online, and catching up at conferences, and reading and re-reading his work, both finished and unfinished. I learned a lot from Dan, and still study and still learn.
Leiter on FAR forms
Brian Leiter offers six thoughts/pieces of advice on completing FAR forms. I agree with all six of his points, especially these two: 1) In listing courses, "be who you are, and not someone else," and do not try to game the system, and 2) Do not use the Comments, especially for something vacuous, like "I'm committed to being an excellent classroom teacher."
Robin Williams in Context
Robin Williams’ apparent suicide is tragic, but should not be surprising. An American is more likely to die from suicide than from a car accident. 38,285 people committed suicide in 2011, the most recent year for which data are available.
Many of these deaths were preventable. The suicidal impulse is very often fleeting. Ninety percent of individuals who survive a suicide attempt go on to die of something other than suicide. Reducing access to lethal means like firearms has been proven to prevent suicide. I have a law review article currently under submission that would allow for a new way to self-restrict firearm access. It may not have helped Williams, but it has the potential to help many others.
If you are thinking about hurting yourself, call 1-800-273-TALK (8255).
Jurisdictional elements and merits
Here is a Ninth Circuit decision properly analyzing jurisdictionality in a Lanham Act case. The court held that the requirement that a trademark be "use[d] in commerce" is an element of the trademark claim and does not go to the court's jurisdiction over the claim. Relying on Arbaugh, the court held that the substantive provisions of the Lanham Act do not contain jurisdictional language and the actual jurisdictional grants for trademark cases (§ 1331 and 15 U.S.C. § 1121(a), along with 28 U.S.C. § 1338, which the court did not mention) do not use this language. Thus, "use in commerce" goes to the merits, not jurisdiction. This is spot-on analysis and the court made relatively light work of the arguments.
The court did not discuss it in these terms, but this case demonstrates the confusion created by so-called jurisdictional elements. The "use in commerce" element hooks the Lanham Act into Congress' Commerce power--Congress lacks the power (the jurisdiction) under that clause to regulate trademarks not used in interstate commerce. The "jurisdiction" here is Congress' prescriptive or legislative jurisdiction, its authority to prescribe legal rules to regulate real-world conduct. An internal limitation on congressional legislative power--like an external limitation such as the First Amendment ministerial exemption--constitutionally limits the scope of the legal rule and thus the rights granted and duties imposed under that rule.
But jurisdictional elements write that prescriptive-jurisdictional limitation into the statute, and the statutory claim, itself. Rather than absence of "use in commerce" rendering the statute unconstitutional as applied (as with a minister's ADA claim against a church), the failure of the jurisdictional element means the statute by its terms does not "reach" the conduct at issue. A Lanham Act plaintiff must prove "use in commerce" just as it must prove "reproduction, counterfeit, copy, or colorable imitation of a registered mark;" both go to whether there is an existing legal rule imposing liability on these defendants on the real-world facts at issue and thus whether the plaintiff's infringement claim has merit. In that regard, a jurisdictional element functions the same as an ordinary element of a statute. The jurisdictional element is there for a different reason than an ordinary element, but its role is the same--it controls the "reach" of the statute, which is uniformly understood as a merits concern. And it has nothing to do with whether the court has adjudicative jurisdiction to hear and resolve a claim because it is "arising under" that statute.
Welcome Permaprawf Sarah Lawsky
All of us at Prawfsblawg are delighted to welcome our frequent and current guest-blogger, Sarah Lawsky, as a full, permanent blogger here at Prawfsblawg. We've come to know well and appreciate her contributions on this blog, which include many of our most popular, avidly read items, on matters such as hiring, along with surely our best data-crunching. Sarah will continue with these popular features, as well as, like all of us here, writing on any issue that grabs her interest. Sarah is a Professor of Law and Senior Associate Dean for Academic Affairs at UC-Irvine's law school and a noted expert in tax law. Welcome to the family, Sarah!
Monday, August 11, 2014
Hiring Posts - Update
The hiring threads will continue.
Ongoing, I am compiling a list of hiring committees and areas of interest. Please submit that information if you have not already, either in the comments in that post or via email to me (as described in the post).
An approximate schedule of other posts follows, based off the dates of the first FAR submission (Thursday, August 21) and the AALS conference (October 16-18).
Thursday, August 28: Law School Hiring, Thread One (reporting interview requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.
Thursday, August 28: Clearinghouse for Questions (last year's thread here).
Wednesday, October 22: Law School Hiring, Thread Two (reporting callback requests; last year's thread here). As usual, I will be looking for someone to volunteer to aggregate the information reported on this thread.
Wednesday, November 12: VAP thread (last year's thread here).
Late February/early March: Begin entry level hiring report data collection.
The Supreme Court Needs to Pick Up The PACER
The Supreme Court is in recess, so it seems like a good time to raise a boring but important point of judicial administration: the need for public access to court filings.
I think that everyone whose work involves the Court—and there are a lot of us—has at one time or another struggled to understand why the Court doesn’t have a system like PACER. For those who don’t know, PACER has for many years allowed the public to access filings made in the federal district courts and courts of appeals. True, PACER is imperfect in many ways, including because it charges fees for most services. Still, PACER is clearly much better than nothing. Yet no such system exists in the highest court in the land.
Tips for New Law Teachers
If you are teaching law for the first time, you may be interested in this list of tips for new law professors. Best of luck!
Fair Use and News Reporting
The US Court of Appeals for the Ninth Circuit has stated that "[w]aving the news reporting flag is not a get out of jail free card in the copyright arena." In Swatch Group Mgmt. Services v. Bloomberg L.P., __ F.3d __, 2014 WL 2219162 (2014), however, the Second Circuit took a charitable view of such flag waving and interpreted fair use broadly to protect a news organization's dissemination of a highly newsworthy recording. The Second Circuit's broad interpretation of fair use to accommodate news reporting is especially noteworthy in an era in which news organizations are often faced with difficult questions about whether they may legally reproduce "user-generated content."
In Swatch Group Management Services v. Bloomberg, Swatch Group sued for copyright infringement because Bloomberg disseminated a sound recording of a conference call between Swatch and investment analysts to discuss the company's earnings report. Swatch did not admit the press to the conference call, but Bloomberg nonetheless obtained and disseminated a recording of the call to its paid subscribers. A district court granted summary judgment for Bloomberg on fair use grounds, and the Second Circuit affirmed.
Informal survey time (I raised this on some listservs last week and wanted to try a different audience):
If you were to make a short list of five (5) of the most important free speech opinions (majority, concurrence, or dissent), what would they be? I want to drop a footnote in the intro of an article, so I welcome input. I am looking for both rhetorical and practical power, as well as rhetorical and practical effect in the development of modern, speech-protective free speech jurisprudence. Note that since I am focusing on the development of the broad free speech protection we have in the U.S., I am primarily looking for opinions that sided with the speech claimant.
My tentative list (in no particular order): 1) Holmes dissent in Abrams; 2) Brandeis concurrence in Whitney; 3) Barnette; 4) Sullivan; 5) Cohen v. California (I originally had Texas v. Johnson or Reno v. ACLU here, but people convinced me that Cohen is more significant).
Have at it.
Epstein and Bagenstos on Title II
I have been reading a great deal this summer on and around the Hobby Lobby case and its longer-term implications. I want to spotlight, in particular, two articles in the most recent issue of the Stanford Law Review, which features a symposium on the fiftieth anniversary of the Civil Rights Act of 1964.
The first is by Sam Bagenstos. Titled "The Unrelenting Libertarian Challenge to Public Accommodations Law," its abstract reads:
There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in places of public accommodation, was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Essay begins by discussing the controversy in the Reconstruction and civil rights eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the controversy was discussed in the earlier era in terms of civil versus social rights, and in the later era in terms of property, contract, and association, the same fundamental concerns motivated objections to public accommodations laws in both periods. The Essay then turns to the current controversy. It begins by discussing Rand Paul’s 2010 comments questioning whether public accommodations laws are consistent with libertarian principles as well as the harsh response those comments drew from prominent libertarian commentators. It shows that Paul’s libertarian opponents disagreed with him only on pragmatic—not principled—grounds. The Essay then turns to an analysis of Boy Scouts of America v. Dale and of recent developments that promise to undermine the expressive-commercial distinction that has kept Dale from threatening the core of public accommodations law.
The second is by Richard Epstein, titled "Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right." Epstein's abstract reads:
On its fiftieth anniversary, Title II of the Civil Rights Act of 1964 enjoys widespread social support on all sides of the political spectrum. That support is fully deserved to the extent that the nondiscrimination in public accommodations provisions offset the monopoly power of common carriers and public utilities, or neutralize the abusive application of public power and private violence to suppress the free entry of firms that would otherwise target minority customers in competitive markets.
The subsequent expansion of Title II’s nondiscrimination principle becomes much more difficult to justify, however, when applied to normal businesses when segregationist forces no longer hold sway. In particular, these principles are suspect when applied to membership organizations that care about their joint governance and common objectives. In these cases, the principles of freedom of association should constitutionally protect all groups, even those that do not fall under the uncertain rubric of expressive associations.
The application of the modern antidiscrimination rules for public accommodations to Christian groups who are opposed to gay marriage on moral principle represents a regrettable inversion of the original purpose of Title II, using state power to force these groups to the unpalatable choice of exiting the market or complying with these modern human rights laws that prohibit any discrimination on grounds of sexual orientation. These rules should be struck down even if the other antidiscrimination prohibitions represent a group of settled expectations that no one today wishes to overturn.
Both articles are excellent and, as their authors recognize, highly relevant to the issues raised and presaged by Hobby Lobby. I do question the framing. I don't think all questioning of the expansion of the number and reach of public accommodation laws, or all views that hold that there must be some room within those laws for religious accommodation, can be described--or labeled, and having been labeled, dismissed--as libertarian. For various reasons, however, some sincere and some more strategic, those who reject this framing, and whose accommodationist leanings in this area are distinctly a minority view at present, have either held back or not fully thought through their own views. I think the time in which they could hold back has passed. If they don't want the entire discussion to be framed in terms of libertarianism vs. anti-libertarianism, they are going to have to speak up. When they do, they will have to engage with both of these fine articles.
Sunday, August 10, 2014
Kar on Contract Theory ... And A Question About "Unified" Theories of Law (Contract, at Least)
My friend Rob Kar (Illinois, left) has posted an article (the first in a series), Contract as Empowerment, a major take on contract theory that has this morning rightly earned "Download of the Week" status from Larry Solum. Rather than re-post the abstract (available from either of the above links), I'm going to excerpt Rob's own blackletter capsule of the theory:
Contract as Empowerment: All other things being equal, contract law rules should be set up to empower people to use promises as tools to meet a range of human needs and interests by inducing others to action. The law should therefore enforce contracts when two basic conditions are met: first, when a particular party has entered into a particular contract with the specific purpose of inducing another to act; and, second, when meeting this purpose depends on granting another contracting party the legal authority to demand compliance. All other things being equal, the law should not—on the other hand—enforce promises in other circumstances.
As I'm still weaning myself here from the last month's awfulness, I confess that what came to mind as I read Rob's introduction was Dan Markel's observation to me that I was often "orthogonal" to existing issues. In that spirit, then, let me be orthogonal to Rob's project, not for a minute taking away from its scholarly creativity, lucidity, thoroughness, and, as discussed below, its admirable persistence in pursuit of theory in the face of a countervailing sense of theoretical nihilism or, as Bob Scott put it at our "Contract as Promise" symposium a few years back, "lazy thinking masquerading as theory." (I really should include an emoji right there.)
Thursday, August 07, 2014
"Freedom of Religion and the Freedom of the Church"
Over at the "Liberty Law Forum," I have posted a short essay called "Freedom of Religion and the Freedom of the Church." (It's about what's probably my hobby-horse issue, and is adapted from this piece, which came out a little while ago in the Journal of Contemporary Legal Issues.) Critical responses will be added in the coming days from some leading law-and-religion scholars -- I'm looking forward to them (nervously). Here's a bit:
Michael McConnell observed a little while ago that although “‘freedom of the church’ was the first kind of religious freedom to appear in the western world, [it] got short shrift from the Court for decades.” However, he continued, “it has again taken center stage.” It seems that it has. Indeed, Chief Justice Roberts, in his opinion in the Hosanna-Tabor case (2012), gestured toward its place in Magna Carta on the way to concluding for a unanimous court that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”
But, what is this “great idea”? Berman and others have discussed at length and in depth what it meant during, around, and after the Investiture Crisis of the 11th century. What, though, does and should it mean today?
Wednesday, August 06, 2014
SEALS v. AALS
At the Law Deans on Legal Education Blog, Richard Gershon (Mississippi) compares SEALS and AALS as conferences, identifying the pros and cons of each. Speaking as someone who regularly attends SEALS and has not attended AALS in seven years (mostly because of timing), I agree with pretty much everything he says. I do think his criticism about lost networking opportunities at SEALS because of its length are overstated--many people stay the full week (on their own dime, obviously) and many stay at least four days.
SEALS always has had the air of a boondoggle--professors and their kids playing at a beach resort for a week while purporting to be at an academic conference. But most folks balance time with family and time in the conference. There are some great panels and discussions every year and many of them are as well-attended as AALS panels I've seen (there were about 50 people at a panel on Bickel last year). In reality, people do not go to these conferences for the panels, anyway. So the real difference between SEALS and AALS may be this: When people skip SEALS panels on Amelia Island in August, they do it to play golf or jump in the pool; when they skip AALS panels in New Orleans in January, they do it to get drinks and good food. Make of that what you will.
Posthumous naming rights
Having ended our blogging shiva, I was struck by the question of what to write about to start. It seems odd to go right back to complaining about courts conflating jurisdiction and merits or fans being tossed out of ballparks. I will write a tribute, hopefully as part of a broader on-line celebration. Fortunately, I found something that combines academics, memorials, a bit of humor, and a lot of WTF.
My wife's father was a well-known academic oncologist, who spent his career on the faculty of Johns Hopkins Med School and headed the oncology center there. The tributes that have followed Dan's tragic death echo those that we heard when my father-in-law died in 2007: passionate, energetic, committed, humble, effective leader, supportive and encouraging of junior colleagues.
Last weekend, while whiling time at SEALS, Jen googled her dad. And she discovered the Martin D. Abeloff Laboratory Cancer Research Center in Tbilisi, Georgia (if you read Georgian, let me know what it says). Who knew? It seemed like a nice honor, and JHU did enough internationally that it made some sense; we figured Jen's mother just never mentioned it. Well, it turns out my mother-in-law knew nothing about it, so she called someone at Hopkins. And that person called lawyers, pointing out that no one authorized this or knows anything about this place or what they do--so neither JHU nor the family should want his name attached without knowing more. We will have to keep checking in on these sites and see if/when they remove his name.
And to bring it around to the present: Let this serve as a lesson to any law school that tries to call itself the Dan Markel College of Law.
Tuesday, August 05, 2014
Submission angsting thread, Fall 2014
It has been a semi-annual Prawfs tradition to provide a space for questions, answers, comments, complaints, and general angst about the article submission windows. (Dan spoke, and Matt still speaks, reverently of this as the time of Redyip's semi-annual return).
Either way, the "Fall" submission window is open and angsting may commence.
So, if you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.
Update: the last page of comments is here.
Shiva and Separation
My month of guest blogging in July started with a series of e-mails between Dan and me in which I warned him I was going to be teasing him about his Canadian niceness in the context of certainty. It ended (before Howard's kind offer to stick around for a while) coincidentally with the end of a shiva, the seven days of mourning following a funeral.
If this hasn't been a month of deep reflection, there will never be one. Nothing provokes my most unsettling contemplation more than the loss of someone close to me. (I wasn't an intimate friend, but close enough that I could banter publicly and privately with him, and I am indeed the person who dubbed him the "Johnny Carson of law professors" in a published article that popped up on his Google Scholar alert, and which he called the strangest citation he had ever received.) He was a nuanced and unpredictable thinker, i.e., not one of those people for whom you can expect views on issues X, Y, and Z as a result of a view of issue A. And being Jewish was something central to Dan's life, his personality, and his outlook. So I offer here some reflections (stored up over the last few weeks and provoked by the most dichotomous thing we experience as human beings - life and death) about being smart, being reasoned, being Jewish, and being sufficiently humble, epistemically speaking, to reconsider over and over during the course of one's life those things about which one is certain and one is not.
And as one more tribute to Dan, and consistent with a theme of this post, I'm going place the page separator after this third paragraph. This is something about which those who blogged here knew Dan was unyielding. You may have noticed from time to time that somebody (even Paul Horwitz) would post something very, very long, and shortly thereafter a page break would appear. That was Dan's intervention, and I learned way back in 2006 to control my own destiny by putting it there myself. Hence, continue below the break, and think of Dan when you do.
Guest prawfs, unite
An email and Kelly's comment on my prior post raised two administrative issues.
First, Dan undoubtedly extended guest invitations to people for the coming months (not sure how far in advance he went, but I imagine he had people lined up for this month and next, at the very least). So if you had already agreed to guest-blog at anytime in the remainder of 2014, please email Paul Horwitz and me; we will happily continue with Dan's schedule.
Second, if you are a past guest-prawf and would like to do so again--or even simply write a single post in Dan's honor-- please email Paul and me.
Return to blogging
We remain saddened and stunned by Dan’s tragic death, although buoyed by the overwhelming outpouring of love, respect, and appreciation for everything he achieved in his career and life, including establishing PrawfsBlawg. With that in mind, we wanted to let everyone know that we plan to move forward with PrawfsBlawg and to continue the conversation and community that Dan created. Beginning this week, the remaining permanent bloggers, along with new permanent blogger Sarah Lawsky and the July holdover guests, will resume posting. Thanks to all of you for your support.
As we move forward, we also want to think about the future of PrawfsBlawg and how to both carry forward and build on Dan’s legacy. So we welcome your thoughts, comments, and ideas on how best to continue this community and this dialogue, even in the face of our loss. I should add that you can leave remarks in the comments or email any of the perma bloggers.
Friday, August 01, 2014
The first MarkelFest!, co-sponsored by PrawfsBlawg and CoOp, on Saturday, August 2, from 8:30-? in the Seaglass Lounge (located directly off the lobby of the Omni). Beer and other drinks are $ 1 off and lounge food is on the menu. Come continue Dan's tradition of blog-sponsored conference gatherings.
Florida State College of Law will sponsor a formal memorial for Dan on Monday August 4, from 6:15-7:15 in Magnolia D. Approximately 50 people already have expressed interest in attending and/or speaking; Wayne Logan (FSU) will be reaching out with more details. If you have not responded and are interested in attending, please fill out this form.
Berkeley Memorial to Dan Markel
Yesterday, a few of us got together in Berkeley to remember Dan and share stories about how he touched our lives. Some of us knew him from the Harvard days and some of us later, as a professor, a thinker, and mostly--an amazing organizer and community builder.
We spoke fondly on Dan's immense capacity to befriend and connect people, not out of self-interest, but simply because that's who he was. Several of us mentioned his enthusiasm for Jewish gatherings and his commitment to religious tradition. And we spoke fondly of the way he connected his scholarship with his commitment to values.
Some of us told stories of being new or lost in a new environment and having Dan invite them for a meal, introduce them to friends, network to help them.
Some of us spoke of Dan's openness, honesty and vulnerability, and his ability to find a spark and a connection with anyone he met based on real connection from the heart; and of his willingness to share with his many friendsa nd colleagues not only the successful and shiny moments, but also the dark teatime of the soul.
And some of us spoke of hearing Dan lecture and debating scholarship and current events with him, of his intellectual integrity and commitment to values, his ideas, and his elegant and articulate verbal skills.
Like everyone else who knew Dan, we are shocked and horrified by his violent death, and can scarcely believe someone we knew as a colleague and friend met such a terrible end. But we spoke of wanting to remember the Dan we worked with, collaborated with, and joked around with. To remember Dan in life, and to have that overshadow whatever revelations emerge in the aftermath of his death.
Because, if anything, Dan was very, very much alive. And what is remembered, lives.
Much love and many hugs to all of you.
Monday, July 28, 2014
Bay Area Memorial
Jonathan Simon, Malcolm Feeley, and Ashley Rubin have organized a small Bay Area gathering for Dan's friends at 4:30 p.m., this Wednesday, July 30, at Berkeley Law. You can email Jonathan (firstname.lastname@example.org) or Malcolm (email@example.com) for more details.
First MarkelFest! at SEALS
The first MarkelFest! will be at SEALS this Saturday, August 2, from 8:30-?, in Seaglass Lounge at the Omni Amelia Island Plantation. Drinks and lounge food are available. Continuing Dan's tradition of blog-sponsored conference get-togethers and now under a new moniker, this is co-sponsored by PrawfsBlawg and Concurring Opinions. Seaglass is located directly off the lobby of the hotel.
Come remember Dan with your best tales and stories and continue his beloved tradition of blog-sponsored gatherings. Hope to see everyone there.
FSU Memoral at SEALS
Florida State will sponsor a formal memorial program on Monday August 4, from 6:15-7:15 in Magnolia D. Approximately 50 people already have expressed interest in attending and/or speaking; Wayne Logan (FSU) will be reaching out with more details. If you have not responded and are interested in attending, please fill out this form.
Thursday, July 24, 2014
Rest in Peace, Dan
Our dear friend Dan was to be laid to rest today. All of us here, and so many others elsewhere, send our love to him, and our deepest condolences to his family and loved ones.
As his family has noted, memorial donations may be made to the Crohn's and Colitis Foundation of Canada; to Canadian Magen David Adom; to Shomrei Torah Synagogue; and to Harvard Hillel. If and when further information about donations becomes available to us, we will attempt to provide it in due course. Please be patient with us.
Tuesday, July 22, 2014
Memorials for Dan Markel (Updated)
So much outpouring of affection for our friend.
1) At Brooklyn Law School as we speak (it began around 5:30). It is on the 22d floor of Feil Hall, 205 State Street (building # 3 on this map). Sorry for the late notice; get there if you can.
2) Correction: The informal gathering at Harvard Hillel happened on Wednesday (yesterday). aplogies for the confusion. You can email Jill Goldenziel at "Jill underscore Goldenziel at hks dot harvard dot edu" for further information. Apparently, HLS Dean Martha Minow and the director of Hillel both indicated a desire to do something more formal in the future. Stay tuned.
3) Funeral and shiva in Toronto on Thursday. You can email any of the perma-Prawfs for more details and information on these events and on memorial tributes.
4) Florida State will sponsor a memorial at the upcoming SEALS Conference at Amelia Island on Monday August 4 from 6:15-7:15, right after a discussion group in which Dan was to participate. Precise location will be announced soon. If you plan to attend, please fill out this form.
5) Also at SEALS, will be the first-ever MarkelFest! on Saturday evening, August 2 (Time and Location T/B/D). As you know, blog-sponsored happy hours have been a regular feature at the major prawf conferences, thanks to Dan's energy and organizational skills. Steve Vladeck suggested that all such gatherings should henceforth be known as MarkelFest!(s) and we agreed.
6) Law and Society's Collaborative Research Network # 27 (Punishment and Social Control), will host a panel in Dan's memory on retribution at the 2015 Law & Society Association Annual Meeting in Seattle, May 28-31, 2015. Regular Guestprawf Hadar Aviram is co-chairing the group. Anyone whose work corresponds with Dan's or retributivism and is interested in participating on that panel can send an abstract to Hadar.
We will post information about other local gatherings and memorial efforts as we receive them.
Saturday, July 19, 2014
We Have Lost Our Beloved Friend, Dan Markel
We write this together, all of us, as a community. Our friend Dan Markel has been taken from us, suddenly and terribly. His law school, the Florida State University College of Law, will issue an announcement in due time. We do not have all the details, but our understanding is that Dan was shot and killed. Painful as it is to say that, and as little as we know, the early news reports left enough room for speculation that it seemed necessary to say that much. The terrible, senseless nature of his loss makes it all the harder to bear.
All of us here on Prawfsblawg live in different places and come from different backgrounds. What we have in common, with many others, is Dan. His network of friends and loved ones--and he had a great deal of love for all his many friends, as we did and do for him--is enormous. His boundless energy was at the center of this community; it made it run, it gave it life. We are stunned and bereaved by his loss, and our thoughts go to his two little boys, who were precious to him, and to his family. Many, many people loved him and are grieving today. Baruch dayan emet.
Chokeholds and clearly established rights
This is a tragic story and has all the trappings of yet another racially polarized split involving police, city government, and the public. Plus, we have video, with all the confusion and false certainty that goes along with visual images of police-public encounters gone bad. The NYPD, the City, and the DA all are investigating, and I would not be surprised if DOJ jumped into the mix at some point (likely depending on what the City and DA do).
I want to skip ahead to several interesting issues that likely will arise in the inevitable § 1983 action:
1) What will the court do with the video on summary judgment? As I wrote in a draft paper for a SEALS discussion group, the Court last term in Plumhoff v. Rickard, just as in Scott v. Harris, was all too willing to interpret the video for itself and identify its single meaning (in favor of the defendant officer) as a basis for granting summary judgment. Will courts be similarly bold with potentially more damning video or will they be less willing to find a single message and leave it all to the jury? On that note, check out the lede of The Times article describing the officer "holding him in what appears, in a video, to be a chokehold." (emphasis added). That is the proper way to report on video, since it is about appearances and what different viewers will or might see. But it is veery different than what everyone (press, government officials, and courts) has done in, for example, describing video of high-speed chases.
2) According to The Times, chokeholds are expressly prohibited by NYPD regulations. How will that affect the qualified immunity analysis? In Hope v. Pelzer and Wilson v. Layne, the Court looked at department regulations and whether they endorsed or prohibited some conduct as indications of whether theright at issue is clearly established. While not conclusive, administrative regs can support a doctrinal consensus or demonstrate the absence of that consensus. Absent case law holding that chokeholds always violate the Fourth Amendment or violate the Fourth Amendment when in furtherance of arresting non-violent offenders, what will the court do with this officer violating clear departments regulations in dealing with a non-violent offender (they were trying to arrest the victim for selling loose cigarettes on the street).
3) What happens when the plaintiff tries to make his Monell claim against the city? On one hand, the express prohibition on chokeholds in department regs would seem to weigh against any argument that the city had a policy of allowing its officers to utilize such holds, since the very opposite is true--he really is the "bad apple" expressly disobeying how we told him to behave. On the other hand, according to The Times, more than 4% of excessive-force complaints to the Civilian Complaint Review Board involve allegations of officers using chokeholds, a number that has gone up in the past decade; this could support an argument that the city is failing to train its officers on its own policies or that the city is being deliberately indifferent to the actual practices and actions of officers who are employing chokeholds despite department prohibitions. (Note that many of those complaints never go anywhere or are unsubstantiated--the point is that many citizens are talking about officers using chokeholds).
Friday, July 18, 2014
Green Bag Call for Papers: Scalia and Garner’s “Reading Law”
Theme: Reading Law: The Interpretation of Legal Texts (2012), by Antonin Scalia and Bryan Garner, was the subject of a notable review by Richard Posner: The Incoherence of Antonin Scalia, New Republic, Aug. 24, 2012. Since then, much commentary on Reading Law has focused on the clash of celebrity lawyers, rather than the content of the book, at the expense of substantive critiques of the sorts that usually appear in serious reviews of a new work. Critiques not only help consumers make choices about what to read, and what to rely on, but also help authors produce better second editions. And we do not doubt that Scalia and Garner will put out Reading Law 2d someday. So, we invite you to pick nits, and motes and beams, in Reading Law. Tell us what is and isn’t worthwhile in it, and tell Scalia and Garner how to do better next time. As part of this symposium, we will be printing the “Hirsch Report” – commissioned by Garner in response to the Posner review – in the Journal of Law, so commentary on Hirsch’s work is also welcome.
Invited topics: Any theoretical, empirical, or practical commentary that will help readers better understand the book – its correctness or incorrectness, the good or bad uses to which it might be put, or anything else useful or interesting. Please do not waste your time or ours on tiresome anti-Scalia/Garner or anti-Posner ax-grinding. Scalia and Garner will have the last word, if they want it.
Length limit: 1,000 words, including title, text, footnotes, and everything else.
Deadline: Finished works must be received at firstname.lastname@example.org by September 1, 2014. No extensions will be granted and no post-deadline tinkering will be permitted.
Selection criteria: We will select works for publication based on how original, interesting, well-researched, well-written, good-spirited, and potentially useful they are.
Marilyn Peters - Lawyer, Leader, Friend, Survivor, Hero
I just got off the phone with my friend (and former law partner) of some thirty-four years running, Marilyn Peters, a partner at Dykema LLC (Detroit, Bloomfield Hills, and the world). Marilyn is married to my friend since 7th grade at Norup Junior High School in Oak Park, Michigan and also Dykema law partner, Alan Greene. Marilyn has been a member of Dykema's management committee, manages its Bloomfield Hills office, and leads its Commercial Litigation Practice Group.
We worked and raised our kids (all about the same age) in parallel, in suburban Detroit houses a couple miles from each other (actually, a little irritating to my wife Alene who on vacations or when dining out had to listen to the other three of us going on and on about Dykema crap).
She was also diagnosed with stage IV stomach cancer earlier this spring and is doing her chemo now. Her blog, "EatChantChemo," is a narrative of friendship, hope, love, survival, and some helpful tips on healthy eating.
Not only is she one of the most alive people I know, she is personally responsible (let's get our priorities straight here) for Michigan's victory (and therefore ensuing national championship) in the 1998 Rose Bowl because she went into the bathroom at our house in Charlevoix just before Michigan started its final drive, Michigan got a first down, and we didn't want to jinx things, so we didn't let her out for something like seven consecutive first downs and the final punt.
Please read the blog and recall Deuteronomy 30:19: "I call heaven and earth to witness against you this day, that I have set before you life and death, the blessing and the curse; therefore choose life, that you may live, you and your seed." Seems to me this is one amazing person's narrative of choosing life.
Since Prof Nancy Leong's request for investigation by the bar of an anonymous lawyer received a good deal of attention on the front end, it's only fair, it seems to me, to note that the lawyer in question reports that the bar decided to "proceed no further" on the matter. I have not seen any formal materials, I should say, including either the request for investigation or the bar's communication; I'm passing on the report but can't verify it. (Except as a matter of custom, I don't think that lawyer has any "right" to anonymity, incidentally, although I think there can be value in online anonymity, in general though not in all cases. In any event, I'm otherwise occupied and not currently inclined to do any detective work.) At least based on what I had read online earlier, I tend to think this is the proper resolution, although I also think and have said that there is a difference between writing anonymously because you have cause for concern that even a fairly, if vehemently, offered opinion may have adverse employment consequences, and writing anonymously because you want to be vulgar, personal, intemperate, and sometimes worse without any professional consequences. As a practical matter, I think there are sometimes good reasons for anonymity, although almost never, if ever, for law professors writing about the law; as a matter of personal honor, I think those who opt for anonymity should be doubly insistent on not saying things they would be, or ought to be, ashamed of saying in their own name. Anonymity, such as it is, should be treated by the anonymous speaker as a protection, not a perverse incentive.
[NOTE: The post reflects a couple of updates, including: 1) referring to a request for investigation rather than a bar complaint; 2) noting that I have not seen the record; and 3) noting that my view is therefore tentative, and based on the rather extensive earlier writing on the subject, including by the principals.]
Thursday, July 17, 2014
Marriage equality in Florida
Judge Luis Garcia of the 16th Judicial Circuit of Florida (the higher-level trial court covering the Keys) has invalidated Florida's prohibition on same-sex marriage, finding that marriage is a fundamental right for Due Process purposes and that there is no rational basis for prohibiting same-sex marriage. The ruling does not take effect until next Tuesday, July 22. This is one of three actions in Florida challenging the anti-equality constitutional amendment passed in 2008--the other two are in state court in Miami-Dade County and in federal court in the Northern District of Florida.
Several quick thoughts:
1) Judge Garcia is up for non-partisan election this fall; let's see what happens in that race.
2) I genuinely expected Florida to be one of the stragglers that would get marriage equality only when SCOTUS finally spoke after 40 other states had eliminated SSM bans.
3) At this point, we need to stop reporting on trial-court decisions, since they are all going in one direction, but their coverage is so limited. It really will matter when federal courts of appeals and state supreme courts begin speaking out.
4) Is it even remotely possible that these lower courts are all getting it wrong? Is there any chance that appeals courts will split or go in different directions or that SCOTUS will ignore the singular position of these lower courts and hold that SSM bans do not violate the Constitution?