Tuesday, March 24, 2015
"The Theocracy Brief"?
At the Crime and Consequences blog, which is a project of the Criminal Justice Legal Foundation, there is a post by Kent Scheidegger called "The Theocracy Brief," which takes issue with the amicus brief filed by the National Catholic Reporter in Glossip v. Gross (the SCOTUS case involving Oklahoma's lethal-injection procedures). Here's the primary part of the post:
Some briefs are just downright weird. In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus briefpurporting to explain the teachings of the Catholic Church on the subject. I have no opinion on whether what they say is correct. I know nothing about it. I do have an opinion on whether what they say has any relevance. It does not.
Last time I checked, the United States of America was not a theocracy. Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.
If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment? Of course not. So why would the teachings of the Catholic Church have any greater relevance? Because five of the current Justices of the Supreme Court happen to be Catholic? I am quite sure all five have the integrity not to let such an argument influence them.
* I don't know if they do, and truth of the "if" is not necessary to the point being made.
As it happens, the amicus brief has an entire section dedicated to explaining why the teachings of the Catholic Church with respect to capital punishment are, or at least could be, relevant to the particular question presented in this case. It seems to me that Mr. Scheidegger's "theocracy" charge is misplaced.
Obviously, the Church's teachings as such are not binding or authoritative on the Court when it answers legal questions and, generally speaking, whether or not the Church approves of this or that has nothing to do with questions about what the Constitution says (or doesn't) about this or that. But, in this particular context, the Court's own precedents and doctrines seem to make relevant "the evolving standards of decency that mark the progress of a maturing society" and so there seems to be nothing particularly strange -- and certainly nothing "theocratic" -- about an amicus brief that says, in effect, "given that you have told us you are interested in what people think about the matter, here's what a whole lot of us think about the matter, and here's why. Just FYI."
Monday, March 23, 2015
A few posts ago, I discussed one of the teaching models that the Army uses: crawl, walk, run. Within that model, at each level, the Army uses another model: talk-show-do-test. The basic idea is that you talk to the students about the skill (these can be manual skills or thinking skills); you then show them how to do what it is that you want them to do; you then have them do it; and then you test them on it.
This year, I am teaching a "foundational" course (criminal law) for the first time. As I thought through how I wanted to evaluate my students using the talk-show-do-test model, I was struck by the disconnect between the skills that we tend to focus on in foundational classes and the skills that we actually test.
A Texas bill that is both stupid and unconstitutional
There are stupid laws, there are unconstitutional laws, and then there is this bill introduced in the Texas House by Rep. Jason Villalba. The bill would define "interruption,disruption, impediment, or interference" with police (already a crime) to include a person "filming, recording, photographing, or documenting the officer within 25 feet of the officer," 100 feet if the person is carrying a handgun. The bill includes an exception for mainstream news media (defined in the bill). Breitbart Texas has a story, including reactions from various advocacy groups and Rep. Villalba's efforts to defend his creation on Twitter by insisting that it protects police without prohibiting recording or efforts to hold police accountable.
Assuming that recording public events is protected First Amendment activity (the Fifth Circuit has yet to decide the issue), this law would be in an immense amount of trouble. Where to begin?
Upcoming Conference on Gang Injunctions, Enhancements, and Databases
The Center for Juvenile Law and Policy at Loyola Law School, Los Angeles, where I teach, is holding a 2-day conference about gangs on April 24-25 that may be of interest to Prawfs readers. The conference plans sessions on California's Street Terrorism Enforcement and Prevention Act (STEP Act), which is a sentencing enhancement law, the use of gang experts at trial, anti-gang injunctions, gang prevention and outreach, and gang databases. The conference registration page is here
The topic of gang databases is one I cover in my forthcoming article Databasing Delinquency. The article describes the vast extent of modern data collection about juveniles by the criminal justice system (gang databases, sex offender registration for juveniles, DNA databases, schools as informants, and more) and the debilitating short and long-term harms it inflicts on youth. Data collection by itself is not the main problem (though there are harms caused by its mere collection). It’s the retention and sharing of the information that raise concerns. Much of the information collected by law enforcement (which goes far beyond charges and convictions) is retained indefinitely and shared beyond law enforcement, finds its way to the internet and the databases of private commercial background check vendors, and comes back to haunt individuals as they make the important transition to adulthood and seek employment, higher education, and housing.
I argue that, consistent with developmental science, a separate juvenile justice system, Supreme Court jurisprudence, and the purpose and meaning of childhood, there should be limits on the amount of information that the criminal justice system can gather, store and share about juveniles. This would add appropriate restraints so that public safety gains from databasing do not come at the expense of juvenile privacy, juveniles’ life chances, or childhood itself. I’m not arguing for an automatic clean slate at 18 or any other age, but even Santa Claus, who keeps one of the most important lists of who has been naughty and nice, only looks back 12 months.
Two Interesting SCOTUS Cert Grants Today
Today’s order list from the Supreme Court includes grants of certiorari in two cases.
DIRECTV v. Imburgia (No. 14-462) will ask the Court once more to address arbitration agreements and the Federal Arbitration Act. The question presented is:
Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.
Montgomery v. Louisiana (14-280) involves the retroactivity of the Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment forbids sentencing schemes that mandate life-without-possibility-of-parole sentences for juvenile homicide offenders. The question presented in the cert. petition is:
Whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?
But the Court also asked the parties to address whether it even has jurisdiction:
Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller?
[Cross-posted at the Civil Procedure & Federal Courts Blog]
The First Amendment and the Redskins trademark, Part I: Government speech
The following post is by Robert L. Tsai and Christine Haight Farley (both of American); it is the first several guest posts on the Washington Professional Football Team trademark case. It is cross-posted at the Sports Law Blog
The ACLU recently filed an amicus brief in the Washington Redskins trademark case, arguing that the Patent and Trademark Office’s (PTO) cancellation of Redskins registrations constitutes viewpoint discrimination contrary to the First Amendment, and urging the federal court to strike down those portions of Section 2(a) of the Lanham Act that prohibit the registration of “immoral,” “scandalous,” or “disparage[ing]” marks. We are deeply concerned with the ACLU’s position. Its proposal to thrust First Amendment law into an area of commercial regulation in unprecedented ways would wreak havoc with trademark law’s careful balance of concerns for property rights, economic exchange, and consumer protection. We believe that the ACLU’s fundamental misunderstanding of trademark law has caused it to misapply First Amendment doctrine.
In this first post, we wish to focus on the ACLU’s invocation of two First Amendment doctrines: viewpoint discrimination and unconstitutional conditions (we leave for a separate post whether the commercial speech doctrine might be appropriate). The ACLU’s position erroneously elides the various forms of government regulation and their contexts, treating trademark law like criminal law, municipal ordinances dealing with protests, laws creating public fora, and public subsidies. But the strongest First Amendment doctrines designed to ensure robust public debate simply don’t map on to trademark regulation without creating a major upheaval in trademark law. First Amendment doctrine requires strict scrutiny whenever there is a direct, content-based regulation of private speech. The federal trademark registry, however, does not operate like a direct regulation of private speech, nor does it create a forum for the expression of private speech.
The emergence of political hate
An interesting take on hyper-partisanship and deeper political commitments from Keith Humphreys at RBC. But is he right about this being a new phenomenon? I am not so sure.
People hated Lincoln so much they tried to leave the country. Some of the rhetoric directed against, say, Jefferson or Andrew Jackson or FDR was as hateful and hate-filled as anything directed at Clinton, GWB, or Obama, or that will be directed at Hillary. And as for the niche press, the image of the impartial press dates, at the earliest, to the mid-19th century. If we go back to the Founding, there was a Federalist press and an Anti-Federalist press and the lines between them were clear and the rhetoric emerging from them was hostile much in the way Keith describes--that is why John Adams wanted the Alien and Sedition Acts.
Biased Police Dogs
One surprising revelation of the Justice Department's report on Ferguson's police department was that:
"[C]anine officers use dogs out of proportion to the threat posed by the people they encounter, leaving serious puncture wounds to nonviolent offenders, some of them children. Furthermore, in every canine bite incident for which racial information is available, the subject was African American."
The obvious takeaway from this startling information is the one drawn by the Justice Department, that "race may play an impermissible role in officers’ decisions to deploy canines." But a short and interesting article in the New Yorker suggests another, equally upsetting, reason that these dogs may have attacked only African American suspects: they are affected by "the hidden racial prejudices of the police officers who deploy them." It is hard to draw this conclusion from the Ferguson case alone but the article's author cites several other examples of how a trainer's biases can impact their canine charges.
The author also questions the received wisdom that dogs are particularly useful aids to law enforcement more generally. This is not an area I have looked into but am now curious about the police's use of dogs, when it is appropriate, and whether the resources spent on their training and care is the best way to spend limited police budgets.
Sunday, March 22, 2015
NYU's Fight Against Isolationism in Shanghai: The Analogy to Iran
Recently, I engaged in a (I hope) good-natured fight with Steve Diamond over whether NYU’s presence in Shanghai is beneficial or harmful to the cause of Chinese civil liberties. You can read the points and counterpoints in the comments on my blog post. There is, however, one question that I did not ask Steve and the rest of the critics of “NYU-Shanghai,” NYU’s partnership with East China Normal University to provide a NYU-style education to Chinese students in China. Does it worry them just a little bit that their most vociferous allies in China are the Left Maoist enemies of “western values”?
Although Steve and others claim to speak on behalf of workers, feminists, farmers, and others abused by the Chinese Communist Party, they have yet (to my knowledge) been able to cite a single Chinese victim of the CCP who wants NYU to leave China. My own conversations with Beida academics who are also civil rights advocates in China suggest, indeed, that the people in China standing up for liberty are happy that NYU is in China. By contrast, Chinese nationalists denounce the presence of western academics in China, treating even on-line college courses from western sources as a dangerous virus. Like Steve, they seem to want us to leave. I would think that this neo-Maoist endorsement of the idea that westerners should get out of the business of educating Chinese would make people like Steve a bit uneasy. If NYU’s program here in Shanghai makes no contribution to liberty, as Steve asserted, then why do the enemies of liberty dislike it so much? They want to throw us out, Steve want us to leave: Should he not feel just a bit uncomfortable at having such strange bedfellows?
That last question can also be directed against my fellow Republicans who want to scuttle the Obama Administration's negotiations with Iran. When the result you hope to obtain is fervently desired by the people you claim to oppose, then does not this coincidence of aims suggest reason to doubt the goal?
Friday, March 20, 2015
Unusual SCOTUS Line-ups
When it comes to civil procedure, the Supreme Court has had its share of sharply divided 5-4 decisions. In many cases, we get the voting alignment attitudinalists would expect: Iqbal, Wal-Mart, Concepcion, Comcast, Clapper v. Amnesty Int’l, Genesis v. Symczyk, to name some recent examples.
Sometimes, though, the Justices split in surprising ways. This Term’s decision in Dart Cherokee divided 5-4 over the whether (and by what standard) the Supreme Court could review a Court of Appeals’ refusal to hear a discretionary appeal under the Class Action Fairness Act. The majority—Roberts, Ginsburg, Breyer, Alito, and Sotomayor—concluded that review was proper. Scalia, Kennedy, Thomas, and Kagan dissented.
Another intriguing 5-4 split was Shady Grove. After analyzing Erie, FRCP 23, and the Rules Enabling Act, the majority concluded that federal courts were not bound by a state-law prohibition on certain kinds of class actions, even though Shady Grove was a diversity case arising under state law. In the majority were Roberts, Stevens, Scalia, Thomas, and Sotomayor. The dissenters were Kennedy, Ginsburg, Breyer, and Alito.
I’ve written elsewhere about why a case like Shady Grove might have generated such an unusual line-up. But the Shady Grove split also has a fascinating (if trivial) feature that I don’t recall seeing in any other Supreme Court decision. All of the Justices whose last names were in the second half of the alphabet were on one side, and all of the Justices whose last names were in the first half of the alphabet were on the other. I can’t think of an easy way to confirm whether this sort of voting pattern has ever happened before, so I figured I’d take advantage of my time on PrawfsBlawg to crowd-source it. Are readers aware of any other cases where the Court has split 5-4 along alphabetical lines?
Justice Alito on the Constitutional Oath in American Railroads
Last week the Court decided Department of Transportation v. Association of American Railroads, which asked whether Amtrak runs afoul of the separation of powers. Of special note, Justice Alito’s concurring opinion offered some brief but thoughtful remarks on the constitutional oath of office. In Alito’s view, the oath plays an important role in identifying officers, installing them, and (most interestingly) ensuring their accountability. This is a welcome discussion, as the oath’s legal role is (in my view) seriously underrated. Below, I question and expand on Alito’s various points.
Is it legitimate to compromise on academic freedom abroad? The case of NYU in Shanghai and Abu Dhabi
Is it legitimate for an academic institution or individual to compromise academic freedom in order to gain access to a population otherwise controlled by an authoritarian regime? The question is posed not only by my own personal situation of teaching at NYU-Shanghai during this Spring Term but also by NYU’s public relations fiasco with Professor Andrew Ross, a sociologist who was barred by the United Arab Emirates from entering UAE to do research while on Spring Break at NYU-Abu Dhabi. NYU’s critics predictably used the UAE’s exclusion of Ross as a reason to castigate NYU for maintaining a campus in the territory of a regime that severely limits freedom of expression. (For Ross' views, see the Baffler. For an interview with Ross, see NY Magazine).
In my own view, however, the question of whether or not to compromise on academic freedom for the sake of a physical presence in authoritarian turf does not have any categorically correct answer. It all depends on what one must give up and what one gains. Insisting on academic purity unsullied by any compromise with repressive governments is like Pontius Pilates’ hand-washing: It may give its adherents a pleasantly self-righteous feeling, but the withdrawal from engagement with the real world may leave the world less free in the name of freedom. Indeed, if taken seriously, such zealous purism would bar NYU from doing business in any regime that protects freedom of expression less rigorously than the USA -- excluding NYU from launching a campus in (for instance) the UK or Canada.
In particular, it seems to me that NYU would be right to accept an “inside-outside” deal from the Chinese Communist Party in Shanghai. Under such a deal, NYU’s faculty and students would be free to teach and learn whatever they please inside the classroom but they cannot lobby, kibitz, incite, persuade, organize, or otherwise participate in local politics outside on the street or in cyberspace. (Not being privy to the internal negotiations between the university and the Chinese authorities, I am not saying that NYU expressly struck any such a deal but only that this seems to me, based on my own experience, to be the actual ground rules practically governing students and faculty at NYU-Shanghai).
Why accept such a pact with the devil? Because such an agreement can enlarge the total amount of freedom above that which faculty and students would otherwise enjoy in the absence of compromise.
Wednesday, March 18, 2015
Youth and Miranda Invocation
I mentioned previously that advocates and courts are considering how far the Supreme Court's "children are different in a way that matters" criminal justice jurisprudence should extend. One of the Supreme Court cases was J.D.B., which held that a suspect's age is relevant to determining whether an individual is in custody for purposes of Miranda. That is so even though the custody analysis is an objective inquiry. So long as the youth's age was known or would have been objectively apparent to a reasonable officer, his age (and the developmental vulnerabilities that accompany it) must be considered.
Just last month, a California Court of Appeal held that the same applies when deciding whether a juvenile has made an unequivocal request for an attorney after waiving Miranda. The case involved a 13-year-old eighth grader who was suspected in a shooting. Thirty pages into the transcript of the videotaped custodial interrogation, and after being shown a surveillance video of the shooting, the 13 year-old said "Could I have an attorney? Because that's not me." The police said no and continued the interrogation. Relying on J.D.B., the court held that the police should have considered the suspect's age in deciding whether that statement was an unequivocal request for an attorney. Moreover, it found that the youth's lack of maturity and sophistication were objectively apparent to a reasonable officer, and that the statement by the 13 year-old was an unequivocal request for an attorney, as opposed to a mere inquiry.
Sweet Briar a Victim of Predatory Lending?
As the Sweet Briar situation continues to unfold, a policy analyst from the Roosevelt Institute digs deeper into the school's financial statements, and discovers troubling information:
"[P]redatory banking practices and bad financial deals played an important and nearly invisible role in precipitating the school’s budget crisis. . . . A single swap on a bond issued in June 2008 cost Sweet Briar more then a million dollars in payments to Wachovia before the school exited the swap in September 2011. While it is unclear exactly why they chose 2011 to pay off the remainder of the bond early, they paid a $730,119 termination fee. . . .
Just how big a deal are these numbers? The school has a relatively small endowment even among small liberal arts colleges: currently valued at about $88 million, with less then a quarter of that total completely unrestricted and free to spend. But in 2014, the financial year that appears to have been the final straw for Sweet Briar, total operating revenues were $34.8 million and total operating expenditures were $35.4 million, which means that the deficit the school is running is actually smaller than the cost of any of the bad deals it’s gotten itself into with banks."
Unlike most victims of predatory lending, however, Sweet Briar would have had access to high-level legal and financial advisors. If the financial deals were as bad as the report suggests, something went very wrong in the college's decision-making process.
Floyd Abrams responds
In this February post, I posited that one reason the ACLU's 2015 Workplan had no First Amendment issues among its 11 "major civil liberties battles" was that, in the ACLU's view, there were no major systematic threats to free speech. In a speech at Temple Law School on Monday, Floyd Abrams responded, identifying two such areas--campus speech and the political left's abandonment of the First Amendment.
First, I am obviously flattered to be on his radar, especially for a blog post. Second, I fear that I was not clear enough in my original post that I was not endorsing the "we won" position, but only proferring one explanation/justification that the ACLU might have been thinking about; on re-reading the post, I do not think that came across as well as it should have or as well as I would have liked.
Third, I agree as to both areas Abrams identifies as systematic problems (I mentioned campus speech codes as one problem area in my post--and that was before Oklahoma and UCLA). Note that they sort of overlap, to the extent many on-campus censorship efforts are directed by the left against right-leaning speech.* And to bring it back to the ACLU Workplan: They share the common feature that the national ACLU and local affiliates may be quite at odds internally and with one another over both issues. And neither are issues that the ACLU is going to use to spearhead its fundraising efforts.
Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)
I was glad to see Dave get the Twombly/Iqbal train rolling this month. Whatever the debate surrounding the empirical impact of Twombly and Iqbal, federal courts are continuing to struggle with what those decisions mean for how judges should decide Rule 12(b)(6) motions. A particularly difficult question has been the vitality of pre-Twombly Supreme Court precedents like Conley v. Gibson and Swierkiewicz v. Sorema.
These issues were on display last Friday (the 13th, by the way) as a divided Fourth Circuit panel affirmed the dismissal of an employment discrimination claim in McCleary-Evans v. Maryland Department of Transportation (No. 13-2488). The majority opinion by Judge Niemeyer rejected the plaintiff’s reliance on Swierkiewicz, emphasizing that the Supreme Court in Swierkiewicz had “applied a pleading standard more relaxed than the plausible-claim standard required by Iqbal and Twombly.” In dissent, Judge Wynn argued that the majority had improperly “ignore[d] the factual underpinnings of the Swierkiewicz holding, looking solely to the Supreme Court’s 2009 decision in Iqbal to guide its decision,” and noted that lower federal courts “have no authority to overrule a Supreme Court decision no matter how out of touch with the Supreme Court’s current thinking the decision seems.”
Twombly and Iqbal are problematic decisions in many respects, and diagnosing their flaws is important. Even more important, though, is the question of how courts should be applying Twombly and Iqbal, especially in relation to pre-Twombly Supreme Court case law. Properly understood, Twombly and Iqbal can and should be read to preserve the notice-pleading approach that the Supreme Court repeatedly employed during the half-century before Twombly. I’ve laid out this argument here and here, and explained how the basic framework Iqbal articulated can be applied in a way that is consistent with notice pleading and pre-Twombly precedent. This understanding of Twombly and Iqbal is confirmed by more recent Supreme Court pleading decisions—especially the 2014 decision in Johnson v. City of Shelby—which cast doubt on the presumption that the Court’s pre-Twombly case law even is “out of touch with the Supreme Court’s current thinking.”
I may have more posts on pleading as March marches on, but for now I wanted to address the one—and only—instance where the Twombly and Iqbal opinions directly call into question any aspect of pre-Twombly case law. That, of course, was Twombly’s “retirement” of Conley’s statement that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Contextualizing Civil Procedure: Teaching Through a Semester-Long Simulation, With a Twist
The following guest post is by David Oppenheimer (Berkeley) and is sponsored by West Academic.
Civil Procedure is the first-year course that most lacks a familiar context. Our students arrive with some understanding, however faulty, of the role of contracts, the existence of property, the problem of crime, and the phenomenon of personal injury. But Civil Procedure is a great mystery to them, and pleading and motion practice are at the heart of the mystery.
My response is to provide context by organizing the course around a semester-long simulation, with a twist.
Tuesday, March 17, 2015
JOTWELL: Tidmarsh on Zimmerman on presidential settlements
The new Courts Law essay comes from Jay Tidmarsh (Notre Dame) reviewing Adam Zimmerman's Presidential Settlements, which explores the power of the President to resolve large-scale disputes, even at the expense of the rights of individual claimants.
Scope of injunctions
A recurring problem in the marriage-equality litigation--not only in Alabama, although it has obviously reared its head there--is confusion about the scope of a civil rights injunction and declaratory judgment. The constant refrain from me and many others is that any injunction applies only as to the named defendant(s) and as to the named plaintiffs. The injunction--as opposed to the court's reasoning and the power of precedent--does not legally compel anyone else to do anything or for the defendant to do anything as to any person not named as a plaintiff. But there has been pushback (particularly in a Con Law prof listserv conversation), particularly over the lack of SCOTUS precedent explicitly establishing this point.
One Last Post on Omitted Variables: CompStat, Politics, and Immigration
I’d like to return now the Brennan Center report on incarceration and crime. In my previous string of posts, I’ve looked at the problems that could arise from its failure to include variables the writers themselves described as potentially important. I’d like to draw attention to one more glaring OVB problem with the city-level model which sadly renders it basically unusable, and then look at some terms that could matter which the report does not even touch on.
First, the city-level regression. The goal of the city-level regression was to gain some insight into whether CompStat matters. I talked a bit about the problems with this variable before, but reading the report more closely, I noticed another major flaw with the city-level regressions. This is their model:
CityCrime = b0 + b1CompStat + b2NumberPolice + e
In other words, the paper regresses city crime on whether the city has CompStat and the number of police. That’s it. As far as I can tell—see p. 107 and tell me if I am missing something (that’s not sarcasm: I genuinely feel like I must be missing something)—there are no other terms in the model.
Judge Granade refused to stay the preliminary injunction against Probate Judge Don Davis ordering him not to enforce the state SSM ban in deciding on marriage licenses. The linked story insists that this now creates a conflict for Davis, as he remains under both the state mandamus declaring the SSM ban constitutionally valid and prohibiting him from issuing licenses to same-sex couples and a federal injunction declaring the ban invalid and ordering him to issue licenses.
But is there actually a conflict? Granade has not yet acted on the plaintiffs' motion to amend and certify a class action. Without that, what we have against him is a federal declaratory judgment of constitutional invalidity that is persuasive-only and an injunction that he already has satisfied as to the currently named plaintiffs (there are four or five at this point, all of whom have been granted licenses). So Davis is under no current federal obligation to issue a license to anyone who does not already have one, thus he faces no conflict with the mandamus prohibiting him from issuing licenses to same-sex couples. Judge Granade's opinion by itself imposes no obligation on him to do anything, so it alone does not create conflicting obligations. That is the fundamental mistake everyone is making.
Fortuitously, here is Will Baude (Chicago) making a similar argument in The Times,* not as to marriage but as to the Affordable Care Act. Baude argues that, if the plaintiffs prevail in King, the administration can comply with the Court's judgment as to the four named plaintiffs, but continue granting subsidies to everyone else, since the Court's order does not apply to them and nothing requires the government to extend the reasoning of an opinion to other people. (H/T: My colleague Tom Baker, who refers to this as the "Dred Scott Move"). In essence, the state mandamus is forcing Davis to do the same--not extend Judge Granade's reasoning to other couples.
If the administration can legally (even if not politically) do this with a Supreme Court opinion, then certainly Don Davis can legally do this with an opinion from Judge Granade.
* On a different note: The headline on Will's op-ed--Could Obama Bypass the Supreme Court--perfectly captures the media's fundamental confusion about how judicial decisionmaking operates. Will's very point is that Obama would not be bypassing the Supreme Court at all in doing this, that he would be complying with the Court's order but not extending its reasoning, which typically is done only as a matter of convenience (to avoid getting sued again and again), not legal obligation. So in no way would this be "bypassing" anything. The headline writer clearly missed that point.
Fiduciary Duty, Higher Education, and the Zone of Insolvency
Questions continue to emerge about the situation at Sweet Briar and the decision-making process that led to its closure, and the situation seems destined for litigation. One of the issues that seems to run through the discourse, though, is one I’ve been thinking about for a few years: to whom do the college decision-makers owe a fiduciary duty?
A letter from Virginia State Senator J. Chapman "Chap" Petersen to Attorney General Mark Herring raises the question explicitly. The letter questions the legality of the announced closure, asks for an opinion on the legal status of restricted donations, and asks “Does the Board have a fiduciary duty to protect the interests of donors and students, as well as the mission of the College?”
The issue of fiduciary duty presents an interesting question, and I would add a follow-up: does that fiduciary duty change (or should it) when a nonprofit institution is operating in the so-called “zone of insolvency”?
Monday, March 16, 2015
The Step-Ahead Scholar
I am a birder. I regularly go outside, with a pair of binoculars, and look for birds. Many birders keep a list of all the bird species they've seen. The internet has enabled birders to announce sightings of birds instantaneously, which leads to chases from those who have never seen the reported species. Sometimes you find it, sometimes you don't. Sometimes you go looking over and over again, and don't see it. Those birds becomes your "nemesis birds." They aren't rare, but every time you go look for one, you can't find it.
There's an opposite experience I have sometimes when it comes to scholarship. I'll get an idea, play with it for a couple of days, and then hit Westlaw. But instead of going to look for something and not being able to find it, I go out hoping not to find something that I suspect is probably out there. Several times, I've found that something I didn't want to find, and more than once it's been the same scholar who not only had already had the idea, but had already written a paper.
One could think of these people as nemesis scholars, but that's the wrong connotation for me. These are scholars who are reliably productive and thoughtful, with their fingers on the pulse of their fields. They don't foreclose our writing, but instead they provoke us with their ideas and challenge us to keep up. I prefer to call them Step-Ahead scholars.
Recently a call for nominations came out on the civil procedure listserv: what's the worst civil procedure case ever. Nominations poured in--even as Pepperdine's excellent symposium on this worst topic was all-but-ignored. Sadly, recency bias trumped careful thought, and a plurality of respondents focused on Twiqbal. In some ways this is an unsurprising result. Twiqbal hit a sweet spot for modern scholars. The decisions together appear to be politically conservative (fitting modern progressives' newfound suspicion of the Supreme Court); they cry out for empirical examination (fitting modern scholars' newfound love of counting things); and they produce a test whose indeterminacy makes socratic dissection easy.
But here's the thing: dozens of scholars have spent enormous effort on these problems, and have found essentially no observable effects on party and judge behavior, whether in or out of Court. In that way, Twiqbal is a black hole for scholarship -- its sucks in quants and non-quants alike in, but nothing comes out.
Consider two recent papers -- one by Jonah Gelbach, forthcoming in Stanford, and one by Roger Michalski and Abby Wood, under review. As a part of a dazzling empirical & game-theoretic analysis, Gelbach points out that "a reasonable observer could conclude that the heated debates over the empirical evidence on Rule 12(b)(6) motion grant rates haven’t—couldn’t—shed any light at all on the actual effects of Twombly and Iqbal." (Emphasis added.) Michalski and Wood, studying state adoption of Twiqbal, conclude that whether "at the federal or state level, attorneys and judges are either not as attuned to procedural changes as many commentators think they are, or plaintiffs were already pleading with factual specificity so as to negotiate earlier and more favorable settlements." And yet, as they point out, "many academics, practitioners, and commentators simply refuse to believe that the switch from notice pleading to plausibility pleading would not have an empirical effect."
What's going on? Is this motivated cognition by progressive proceduralists, who can't admit that the worst cases of their generation (or any!) had no measurable effects? (That's not to say that Twiqbal hasn't had an effect in the world - just not one that is observable.) Because their priors are so strong, later evidence is discounted. As such, Twiqbal is quickly becoming a progressive proceduralist's shibboleth: to belong to the academy community (and to be welcome at conferences), one has to agree that plausible pleading is implausible, evil, and otherwise wrongheaded. Defending the decision is like defending Lochner. It can be done, but you really ought to teach at Mason.
Or is it something else? Maybe Twiqbal has attracted attention not because it actually represents a change in practice today (after all, no one was truly engaging in notice pleading) but rather because the cases represent a watershed in procedure - the beginning of a return to a pre-1938 code or fact pleading regime. Like Dole or Printz, it's a signal of a revolution that's coming. My colleague Craig Green has worked over the last several years to identify certain cases as iconic, particularly retrospectively -- will Twiqbal be such an icon in another few generations?
Defending the barely defensible
This weekend, I published two guest commentaries for JURIST defending some reprehensible folks. First, I argue that Oklahoma's expulsion of the SAE members over the racist chant on the bus probably violates the First Amendment. Second, I try to bring some procedural sanity to the discussion of same-sex marriage in Alabama (this puts together everything I have been writing here for the past month or so).
The Chief Justice Reads Law Reviews
Several years ago, Chief Justice Roberts offered some thoughtful remarks on the substance of law review articles. Some have pointed to the Chief's comments as evidence that law reviews are generally worthless. In the past, I’ve questioned that conclusion by noting that the justices regularly cite scholarly work. In this post, I approach this issue in a somewhat different way by showing that the Chief Justice himself regularly cites law review articles in his judicial opinions.
Saturday, March 14, 2015
NYPD and Social Media
On Wednesday, I remarked that I was pleased to see technology included as a major feature of the President's Policing Task Force Report. Today, a follow up on the police's use of social media. Two interesting items have come to my attention in the past couple of days involving the NYPD's use of social media, one unofficial and ugly, one official and promising.
First, many readers have probably seen the article in Capital New York discussing the edits made from IP addresses at One Police Plaza (NYPD headquarters) to Eric Garner's, Sean Bell's, and Amadou Diallo's Wikipedia pages. An example of an edit from Garner's entry: “ 'Garner raised both his arms in the air' was changed to 'Garner flailed his arms about as he spoke.' ” Quite a different story.
Such partisan editing is not only problematic from a truth-seeking perspective, but also violates Wikipedia's policy of discouraging users from making edits that promote their own self interest.
The second, less reported, but equally interesting use of social media was a tweet from the official NYPD Twitter account. The tweet linked to an official response put out by the NYPD to an op-ed in the New York Post, usually a bastion of police support. The op-ed claimed that Commissioner Bill Bratton has blamed a rise in New York homicides on marijuana-related violence. It also implied that decreased arrests for marijuana sales may be to blame for the uptick in murders. The NYPD's response made clear that it did not believe the two were causally linked. This rapid, fact-based response to a speculative op-ed in a widely read New York newspaper is a great example of the way social media can be used by police departments to get ahead of unfounded stories and to disseminate information to the public quickly.
Friday, March 13, 2015
More categories: training v. teaching, and profession v. trade
In this post, I gave a quick overview of Linda Edwards' recent article in which she discusses various categorical approaches to the doctrine-skills debate, advancing a "foundational, bridge, and capstone" model. This discussion is important because we can't start talking about the proper allocation of resources to each category (a controversial question) until we understand the categories themselves.
I thought I would discuss a couple of more categories that she didn't cover but which I often heard discussed in the halls at the Army's law school.
There, the "are we a trade school or a law school" debate regularly came up. The school offers an LL.M. but also hosts a lot of CLE courses. Within the LL.M., when "skills" (or things that looked more like CLE) encroached upon the traditional "doctrine" ground, the debate would flare up. Variations of the debate included, "are we teaching or are we training?" My general response was, "Well, that depends on what those labels mean."
Would the Alabama Supreme Court prefer no marriage at all?
There’s an interesting paragraph in this week’s order from the Alabama Supreme Court, which confirmed that Mobile County probate judge Don Davis is subject to its earlier mandamus ruling even though he is also the subject of a federal-court injunction. In trying to make sense of this situation, Judge Davis had stopped issuing marriage licenses altogether (as a commenter on my last post noted).
Here’s what the Alabama Supreme Court said (emphasis mine) on p.9:
Section 30-1-9, Ala. Code 1975, provides that Judge Davis "may" issue “marriage licenses." To the extent he exercises this authority, he must issue those licenses in accordance with the meaning of the term "marriage" in that Code section and in accordance with other provisions of Alabama law, as discussed in our March 3 opinion.
Is the implication here that Judge Davis has no obligation to issue marriage licenses to anyone? That he can refuse to issue them across the board, just as long as no marriage licenses are issued to same-sex couples?
Meanwhile, expect some more activity in federal court next week. Judge Granade has ordered Judge Davis to file a response to the Strawser plaintiffs’ motion for class certification by Tuesday, March 17.
[Cross-posted at the Civil Procedure & Federal Courts Blog]
Stacking the rhetorical deck
I think we can agree on the following two propositions: 1) It is a bad thing when someone shoots a police officer. 2) It is a bad thing when a police officer shoots an unarmed 11-year-old or chokes to death a man selling loose cigarettes.
But only the critics/reformers/protesters of police abuse are forced to fall all over themselves to condemn a shooting that has nothing to do with them. There is no similar pressure on police or police officials to disavow an absurd pattern of abuse by their fellow officers. In fact, police (quite literally) turn on any public official who dares to criticize one of their own.
So the story is now going to be that President Obama did not quickly or forcefully enough condemn a shooting that no rational thinks was right and that has nothing to do with efforts to reform police pratices, but not a documented pattern of police abuses that some people are still defending.
SEALS: Prospective Law Professors Workshop
The Southeastern Association of Law Schools (SEALS) is pleased to once again offer its Prospective Law Professors Workshop as part of its annual meeting. This two-day workshop is for those seeking law teaching jobs in Fall 2015. The Prospective Law Professors Workshop will run on Tuesday, July 28, and Wednesday, July 29, at the Boca Raton Resort & Club. The workshop will include practice interviews, practice jobtalks, guidance on drafting CVs and FAR forms, and several panel discussions geared toward prospective law professors. There is no supplemental fee to participate. Participants in the workshop need only pay the standard SEALS registration fee. The number of participants will be limited.
For more information on the program, including how to apply, please visit our website at http://sealslawschools.org/seals-prospective-law-professors-workshop/
Thursday, March 12, 2015
Maybe the ACLU has given up on free speech
Via Ron Collins at CoOp, here are two statements from the leadership of the Oklahoma ACLU, applauding the president's decision to punish the students, but calling on him to ensure that the students receive due process. No mention of the First Amendment.
The challenge of demarcating adolescence from childhood and adulthood comes mainly from figuring out when it ends. 18 has been the traditional end point, but many experts increasingly view adolescence as a period that lasts into the mid-twenties. But extending adolescence beyond 18 is probably less pressing than ensuring that those under 18 receive the protections long reserved for childhood (or adolescence, or “not yet adulthood”).
Advocates have been fighting that fight for decades, and the flourishing of knowledge about adolescent brain developmental and psychosocial research on youth has armed reformers with empirical findings that seemed to have aided their efforts. For example, after upholding the death penalty for 16 and 17 year olds in 1989, the Supreme Court reversed course in 2005 in Roper, striking down the death penalty for those who committed crimes under 18. In Roper, as well as the juvenile justice decisions to follow (Graham, J.D.B., and Miller), the empirics of adolescence played a prominent role. Spurred by these findings, the Supreme Court has repeatedly averred that the law cannot proceed against youth “as though they were not children.”
This has appeal, and works, as a general proposition. But as I’ve noted before, perceptions matter. And there is evidence that some youth are not seen, despite their age, as youth, and thus lose the protections of childhood. This happens in 2 primary ways: (1) racial perceptions, by which minority youth are seen as older than their actual age, and more culpable for their acts, and (2) the forfeiture theory, by which youth who break the law are seen as having forfeited the protections that childhood typically offers.
Crawl, walk, run
I recently read Linda Edwards' article, "The Trouble with Categories: What Theory Can Teach Us about the Doctrine-Skills Divide", 64 J. Legal Educ. 181 (2014). There, she argues that the label "doctrine" (and related labels like casebook, normal, podium, traditional, Socratic, theoretical, substantive) and the label "skills" (also, experiential, lawyering, practice) do not reflect characteristics that are useful for defining category memberships.
She offers a different set of labels: foundation, bridge, and capstone. The distinction between the categories "is not the particular doctrine to be taught but rather the teaching methods and goals to be used." Foundation courses include those we traditionally think of as first-year courses (to include legal writing) but could also include other "foundational" upper-division courses. Bridge courses build on the foundational courses, or are on more complex areas of law, or introduce new legal skills (trial advocacy, negotiations, etc.). These courses also prepare students for capstone courses, like seminars, clinics, field placements, or specialty classes.
I agree with her, but my readiness to agree may come from my Army background. In the Army, this is called, "crawl, walk, run," and most teaching is organized based on this model. This model is also consistent with Bloom's taxonomy.
Decarceration and Violent Offenders
Perhaps the single biggest topic in criminal justice circles these days is the drive to decarcerate. We imprison too many people, the argument goes, and we need to cut back.
And this is surely right. We are home to 5% of the world’s population but 25% of its prisoners. It’s hard to imagine that we are that uniquely criminogenic a society. I’m generally distrustful of “American Exceptionalism” in either the good or bad direction.
But the decarceration argument often then takes a slightly wrong turn. Who comprises these offenders? So often we hear about how our prisons are packed with non-violent property and drug offenders.
Wrong. If we want to decarcerate—and we should—any sort of meaningful change is going to require a very, very difficult discussion about exactly how many, and what sort, of violent criminals we need to either not lock up in the first place, or lock up for much shorter periods of time.
Bankruptcy and Higher Education
Futurist Clayton Christensen predicted that half the nation's colleges will be in bankruptcy within fifteen years. I have doubts about both his predicted number and his predicted timeline, but there is no doubt that many colleges and universities are struggling, and that current financial models in higher education--especially the high-tuition, high-discount model--may well be unsustainable.
The more immediate question, for some of those institutions, is whether bankruptcy is even a viable option. Most people know that student loans are largely nondischargeable in bankruptcy. What is less well known is that universities face their own bankruptcy restrictions that make them unable to benefit from Chapter 11 restructuring opportunities. When a college or university files for bankruptcy, it immediately loses eligibility to participate in the federal government's Title IV aid program (which includes Pell grants, Stafford loans, and Plus loans), so its students cannot get federal loans or grants. Because the vast majority of students rely on federal aid to pay for school, it is effectively impossible for an institution to maintain enrollment while restructuring its finances.
Wednesday, March 11, 2015
President's Policing Task Force Report -- Digging Deeper
Last week, I posted a high level summary of the President's Task Force on Policing's recommendations for reform. As I mentioned, the report contains a lot of innovative and progressive suggestions for reform. Today, I dig a bit deeper into the report to flag a few particularly salient recommendations and a couple of places where I wish the task force had made different suggestions or gone further in their recommendations.
First, the good. In the wake of the unindicted police killings of Eric Garner and Michael Brown, many commentators, have highlighted the problematic relationship between local district attorneys and police defendants (full disclosure, I wrote about this issue in Slate and have an article on the same subject coming out in The Iowa Law Review). Both Howard and John have posted about the problem and its potential solutions, so I won't rehash the arguments for and against removing such cases from local district attorneys. But I was very happy to see that the task force recommended not only independent investigations into police killings (Action Item 2.2.2) but also independent prosecutors to bring charges where necessary (Action Item 2.2.3). Unfortunately, police killings are a problem that we will continue to face as evidenced by three shootings in the past few weeks (see here, here, and here), so addressing how best to proceed against these officers is a worthy goal.
Teaching the importance of independent problem solving
A few days ago, I wrote about my starting point for teaching professionalism, which is to cover the definition of "profession." Having decided to teach some aspect of professionalism in my courses, the next issue was what to cover and how to do it without being preachy or coming off as Rita Delvecchio-esque, "I'm keeping this ball now! Have your mother come get it!".
As these Prawfs posts by Robin Effron, Kerri Stone, and Bill Araiza show, there is a lot to cover. I decided to focus on the one aspect of professional behavior that I looked for most in the attorneys (and other officers) that worked for me. That aspect?
New developments in the Alabama same-sex marriage litigation
The litigation over Alabama’s ban on same-sex marriage has taken many twists and turns in these early months of 2015, but the main action has been in two arenas: the Alabama Supreme Court and U.S. District Judge Callie Granade’s courtroom in the Southern District of Alabama. Of course, everyone will be watching the U.S. Supreme Court as well, where Obergefell v. Hodges will be argued next month. And it was the Supreme Court’s February order refusing to stay Judge Granade’s initial injunction that began the latest round of activity. Here’s where things stand:
The Alabama Supreme Court said its piece last week, granting a writ of mandamus ordering all Alabama probate judges to stop granting marriage licenses. The merits of that ruling are certainly open to debate—both on the key constitutional issue and the standing/jurisdiction issue—but there are a few things to keep in mind going forward. First, the mandamus action was brought by two groups opposing same-sex marriage (acting as “relators” for the State of Alabama) against the Alabama probate judges. No individuals or couples who might wish to challenge Alabama’s same-sex marriage ban were parties to that proceeding, so as a matter of preclusion the ruling by the Alabama Supreme Court does not prevent them from seeking relief in federal court.
Second, the court ordered Alabama probate judges not to issue new same-sex marriage licenses (and it seems to have had that effect), but it ignored the relators request to order Alabama probate judges “not to recognize any marriage licenses issued to same sex couples.” In doing so, the court avoided one potential direct conflict with the federal judiciary, insofar as Judge Granade had previously ordered Mobile County probate judge Don Davis to issue marriage licenses to four same-sex couples in the Strawser case. Indeed, the Alabama Supreme Court’s order asked Davis to “advise” it “as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.” His deadline was last Thursday (3/5), but he’s asked for more time to respond. [Update: Today the Alabama Supreme Court posted on its website an order confirming that Judge Davis was also subject to its mandamus ruling, but only after determining for itself (whether correctly or not) that Judge Granade’s injunction did not extend beyond those four licenses.]
Prosecutor Compensation and Moral Hazard: What Happens in Oregon
I will return to my thoughts on the Brennan Center report shortly, but today I wanted to talk a bit more about prosecutors, though not about prosecutors and police-involved shootings like before. In this post, I want to look at the much less exciting, but quite likely more important, issue of how we pay DAs and fund their offices.
Until recently, almost no one has paid much attention to a giant moral hazard problem that sits at the heart of our criminal justice system: district attorneys are elected by the counties, but the prisons they send felons to are paid for by the state. The standard story, then, is this: DAs will be much more sensitive to county budgets than to state ones, which encourages them to send people to prison (a state expense) rather than jail or probation (both county expenses). Thus one challenge with reining in prison growth: the person most responsible for sending people to prison has no incentive to pay attention to the (state-level) costs of doing so.
Tuesday, March 10, 2015
Equitable Vacatur as a Response to Bowles
Over at the ABA's website, Jones Day partner Hashim M. Mooppan has posted a short and extremely interesting piece entitled "A Possible Lifeline for Jurisdictionally Untimely Federal Appeals." Here is the opening:
What should an appellate lawyer do when he or she has missed the deadline for filing a civil appeal in federal court but with reasonable justification for the error? Most people think that there is only one answer to that question—call the malpractice insurer—because courts have held that the deadline is jurisdictional and thus not subject to any equitable exceptions.
This article proposes that appellate courts and practitioners have overlooked another potential answer: A court lacking jurisdiction to decide the merits of an appeal nevertheless has the equitable discretion to dispose of the appeal by vacating the judgment below with instructions to reenter a fresh judgment and thereby restart the clock for filing a new timely appeal. This appellate remedy of equitable vacatur is a settled practice of the Supreme Court in the narrow context of its direct-appeal jurisdiction. And there is no reason in law or logic why the practice cannot be more broadly employed by the circuit courts of appeals.
First Amendment suspended at Oklahoma?
The two Oklahoma University students leading the racist chant aboard an SAE party bus have been expelled, according to a statement by the university's president, because they created a hostile learning environment for others. The president emphasized that the speech "impacted the entire university community as it was also distributed on social media."
I have no idea if the students will sue, as they may just want to crawl back under their rock. But if they do go to court, no way the expulsion can withstand First Amendment scrutiny, right? "Hostile learning environment" is not a recognized category of unprotected speech, unless you can squeeze it into some pre-existing category such as fighting words, true threats, or incitement and this plainly is neither.
Wow, between Roy Moore and these schmucks, I'm on a roll this month.
Update: Eugene Volokh weighs in, reaching the same conclusion that this expulsion is improper. He focuses on several points, including that racist speech remains fully protected (outside of threats or fighting words), as do references to violence that are not immediately threatening.
Monday, March 09, 2015
I see your mandamus and raise you a class action
In response to last week's Writ of Mandamus by the Supreme Court of Alabama, the plaintiffs in Strawser have moved to amend the complaint to add some new plaintiffs and one new probate-judge defendant and to have the entire thing certified as a plaintiff and defendant class action. (H/T: Lyle Denniston). If successful, the move will allow Judge Granade to enjoin every probate judge to issue a license to every same-sex couple in the state.
It also seems to set-up a direct conflict between orders of a state supreme court and a lower federal court, although that may be more illusory than real. The arguments surrounding the mandamus recognize that the mandamus only controlled judges not under a federal injunction requiring them to issue licenses; recall that Judge Don Davis (at the time the only probate judge subject to an injunction) was ordered to show that he was under the injunction, presumably to be released from the mandamus. By those terms, if a class injunction issues, every probate judge should be given an opportunity to make that showing, after which the mandamus should give way.
25 year-old adolescents
Adolescents are neither children nor adults. But who falls within the category of adolescents? Given the great advantages of age-based distinctions in clarity and efficiency, when does adolescence start and when does it end?
Adolescence has typically referred to the period between puberty and social and economic independence. In the mid-1800s, that meant adolescence lasted about 5 years. But many things have changed since then. On the front end of adolescence, the age of puberty has declined for both boys and girls. At the back end, more young people than ever go off to college, delaying their entry into the full-time job market. They are getting married later. They’re living with parents longer.
As a result, leading adolescence psychologist Laurence Steinberg maintains that adolescence now covers the period from 10 to 25. That would mean that not only every teenager, but almost every college student, and many law students, are adolescents. In fact, Steinberg predicts that the lengthening of adolescence is likely to continue, and conceiving of adolescence as limited to the teen years will become “more outdated and harmful.” (Age of Opportunity: Lessons from the New Science of Adolescence).
Sunday, March 08, 2015
What is the Real Takeaway of this Fine Op-Ed on Free Speech and Selma?
My colleague Ron Krotoszynski has a fine op-ed today on the First Amendment and the Selma-to-Montgomery march. I have put some key excerpts after the jump. The basic message is that modern free speech doctrine would render such a march unlikely, because in the decades since then the Court has developed a proliferating public-forum doctrine that enables courts and governments to do less to protect and "advance[ ] the First Amendment's core values." (The op-ed uses "1st," not "First," but I consider that a dreadful editing choice on the part of the newspaper.)
Judging by, e.g., Facebook reactions, I assume the takeaway for most people reading this op-ed will be something fairly conventional, along the lines of "free speech is good," "public forum doctrine is bad," and "the courts have been less protective of free speech--real free speech--since the Warren Court era." I assume somewhere in the mental picture painted, many will think of Ferguson, which Ron discusses very powerfully in the full op-ed, but Citizens United too.
I'm not sure that's the right or fair takeaway. I like Ron's op-ed quite a lot, but I think the right message to take from it, and what he reports in it, is more technical and less sentimental than that. I would be more inclined to take something like the following messages from the op-ed:
1) Legal doctrine itself is problematic--necessary, perhaps, but problematic. Courts, being courts--that is, being an institution that exists to make and then rationalize and coordinate legal decisions in individual disputes--will insist on casting their rationales for decisions in judicially manageable form. Some judges, for various reasons, both good and bad, will insist on coming up with doctrinal rules and tests right away, before all the facts in a particular area of human conduct are in; that doctrine may or may not last, and may or may not cause major problems down the line. Others will do it only after some time has passed and a number of decisions are under the judges' belt. Inevitably, though, over time, a series of more or less mechanical rules, regimes, factors, and standards will be built up. In many respects, this is a good thing. But it will ultimately be harder for judges to make sustainable unmediated decisions in individual cases, or less likely that all but a few mavericks will do so. For the most part, that's just not who and what modern judges in such a regime are.
2) Thus, if you are going to rely on a judicially interpreted First Amendment to do most of the work in setting speech rules and governing public discourse, prepare to be disappointed or underwhelmed. The age of the heroic judge will pass, and the bureaucratic First Amendment will remain in its stead. Perhaps that is a good thing, on the whole! Perhaps we think of the "age of the heroic judge" because those judges stand out in history, and because Americans are incurably sentimental, ahistorical hero-worshippers. A better picture of that era, with its few heroic judges and its many average judges giving little or no First Amendment protection at all, would conclude that free speech is better protected on the whole by bureaucratic judges, and a bureaucratic First Amendment, than by a few sweeping and imprecise speech-protective decisions issued by a few eloquent judges. The bureaucratic First Amendment at least causes more judges to issue more speech-protective decisions more often, although those decisions will often be rhetorically underwhelming and mostly mechanical.
3) This is the regime we have had since the Warren Court. Despite the nostalgia we may feel for judges like Johnson (or Fortas, in Ron's op-ed--and Fortas is certainly a model of the judge who does much and speaks powerfully, but does little that can be used readily by other judges), this model has resulted in a net gain of free speech protection. More speech is protected more often and more routinely and predictably than in the earlier model--understandably, since there is now more mechanical doctrine, each case is not so novel, and the bureaucratic model does not rely as heavily on the heroism or politics of individual judges.
But it has achieved this net gain by making free speech law broader, more applicable to more instances of speech and expressive conduct, and more egalitarian, and that has costs of its own. It applies to everyone and everything! (Corporations included.) Naturally, given its breadth--given the managerial role it gives judges across a huge swath of speech and conduct, and the need to coordinate this role in a judicially manageable fashion--it has given rise to more doctrines like government speech doctrine or public forum doctrine. These doctrines often give government (and the courts) an escape hatch, in order to make the whole enterprise more manageable for both judges and government officials. We have thus achieved manageability at a cost. Modern free speech doctrine achieves breadth and generality of protection. But it is sometimes less protective on occasions involving what we used to think of as "core speech activities." We have gotten more speech protection in more places, but less protection when and where it "really counts." After all, deciding that something "really counts" is just not a manageable, mechanical, predictable task, and certainly not one for the average judge carrying out his or her function in a coordinated system of constitutional adjudication.
Thus, we have a modern free speech doctrine that is, perhaps, better for average cases and average judges, but not especially responsive to extraordinary cases or liberating for extraordinary judges. This is not a surprising consequence of assigning the whole machinery of free speech to the judicial institution. Whether it is ultimately a good thing or not is a genuine question, and the answer to that question is a difficult one and cannot simply be arrived at via moral or emotional sentiment.
I note briefly in conclusion that much of this story is almost certainly applicable to other areas of First Amendment doctrine, such as the doctrine of the Religion Clauses, which is increasingly egalitarian and increasingly uninterested in or unable to deal with extraordinary cases or ideas. It is probably applicable to other areas of constitutional law as well.
Why does the Chinese Communist Party Suppress Speech with which It Agrees?
The Chinese Government celebrated International Women's Day today by detaining several Chinese feminists to prevent them from holding rallies to draw attention to the sexual harassment of women on public transportation. I am new here to China, having been teaching constitutional law in Shanghai for barely over a month now: It is not a big surprise, therefore, that I am baffled by the Communist Party's suppression of public speech with which the Party basically agrees and that is not directed against the Party itself.
The Party leadership, after all, holds no brief for sexual harassment. They have made suppression of domestic violence one of their regulatory goals. The campus where I now teach in Shanghai has brought in feminists like Catherine MacKinnon this term to speak to lecture halls crowded with their students about the evils of prostitution in China and elsewhere, without any murmur of discontent from any party official. Moreover, Li Maizi, one of the detained feminists, is not, to my knowledge, especially anti-Party: Her public demonstrations mostly focus on the bad behavior of private males, not governmental officials -- the same bad behavior, in fact, that those officials have tried to suppress. Why, then, detain Li rather than enlist her?
There are no shortage of hypotheses explaining this odd Party tendency to bite the hand that agrees with it. The problem is that every hypothesis seems no more plausible than its opposite, and data are scarce to falsify or confirm either. Perhaps Party leaders just do not like any unlicensed private speech from any NGO, regardless of its message, because such examples could encourage wider disorder. (But why not believe that speech can reduce social tensions just as well as inflame them?) Perhaps Party leaders look on any public protest about conditions in China as a threat to the CCP's collective "face" or reputation. (But what could be a worse blow to mianzi than the detention itself and the blowback that the detention invites?) Perhaps Xi Jinping's effort to tie the CCP to traditional Chinese values has made traditional patriarchy an unspoken norm of the Party.
As I say, I really have no idea, but I am interested in anyone else's thoughts -- especially if they have something better than the just-so stories that I (or anyone else) can easily invent but not really confirm.
Can Congress use threats of conditional preemption to "coerce" states into regulating private persons?
Ilya Somin has a typically well-written and closely reasoned response to my post suggesting that, as a supporter of federalism, he ought to defend a federalism-based reading of the Affordable Care Act. Ilya's reading of New York v. United States is, however, mistaken. According to Ilya, New York holds that Congress can commandeer states by threatening to impose regulatory or tax burdens on private parties, even when those burdens serve no purpose except to act as leverage by which to induce states to regulate private persons according to federal standards.
Ilya construes too broadly New York's imprimatur for conditional preemption of state laws. Of course, New York permits Congress to offer state officials the option of escaping federal preemption of state law by regulating according to federal standards. But New York makes perfectly clear that this choice cannot be compelled. In New York's words, "[w]here Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate's preferences in the state's place" (emphasis added). In short, contrary to Ilya's claim, New York is not a nonsensically formalistic opinion that carefully limits one sort of commandeering but gives carte blanche for another functionally identical variety.
The character of this limit on coercion is a complicated question that I addressed in my earlier post. My only point here is that Ilya cannot evade this question by citing New York.
Saturday, March 07, 2015
Fair-Weather Friends of Federalism (and Nationalism) in King v. Burwell? The dilemma of supporting principles that hurt one's cause
One of the only practical benefits for federalism to emerge out of NFIB v Sebelius was the 3-vote opinion’s strengthening of the limit against Congress’ placing “coercive” conditions on federal grants in Part IV(B). Conservatives immediately began giving Part IV(B)’s definition of “coercion” to good use (in my view, being a lover of federalism). Texas and other state governments, for instance, argued that the EPA “coerced” them by imposing more onerous regulations on private industry in located in states where the state governments do not submit an implementation plan controlling greenhouse gases. Put aside for the moment the fact-specific question of whether the EPA’s greenhouse gas rules for state SIPs should qualify as “coercion” under a broad reading of NFIB. I applaud without qualification this broad reading pressed by libertarian and conservative advocates of NFIB’s anti-coercion principle. Holding private industry hostage as leverage to force state governments to carry out the Clean Air Act would clearly violate NFIB’s anti-coercion – and, more important, would violate sound principles of state autonomy, whatever NFIB might mean.
Alas, I find that Ilya Somin over at Volokh’s is, in the context of King v. Burwell, back-pedaling furiously away from NFIB’s anti-coercion principle. As explained by Abby Moncrieff’s excellent amicus brief, that principle is relevant to King in the form of an “avoidance canon.” The Affordable Care Act, on Abby’s reading, should not be construed to put state governments to the choice of either setting up healthcare exchanges are having their citizens lose access to tax subsidies. Such a choice is precisely similar to forcing Texas to choose between either carrying out the feds’ greenhouse gas policy (on one hand) or having the feds impose extra-onerous burdens on Texas’ private industry (on the other).
As I explain after the jump, Abby is absolutely correct, at least if NFIB Part IV(B) is given a reasonably broad reading. Yet I find that Ilya Somin is dismissing these worries about coercion by offering a bizarrely narrow reading of NFIB’s anti-coercion principle.
Is Ilya just another fair-weather federalist who forgot his decentralizing principles as soon as his immediate political or ideological interests cut the other way? I think that the problem is better understood as a strategic rather than moral problem: Libertarians and conservatives do not want to sacrifice their litigation priorities for the sake of general principles of federalism until they get a credible commitment from liberals like Abby that the liberals will follow suit when liberal priorities are threatened by robust decentralization. After the jump, I’ll explain how King presents a golden opportunity for such a grand bargain.
Friday, March 06, 2015
The Arias holdout
Yesterday, the jury in the Jody Arias trial split 11-1 on whether she should receive the death penalty for killing Travis Alexander. Whatever your position might be on the death penalty, this result is interesting for social psychology reasons.
Research from the Capital Jury Project suggests that when the life votes in a capital jury are at 25% or below, those jurors will fold and vote for death. When the life votes are 33% or higher, those jurors will stick together and maintain their life votes. When the votes fall between 25-33%, anything goes. (For a great discussion of the social psychology and jury dynamics that is behind all of this, see Scott Sundby's War and Peace in the Jury Room.)
Initial reports state that the jury was first evenly split but within a day had polarized to eleven votes for death and just one for life. That goes against the CJP model -- we should have expected that those six life votes would have formed a block with sufficient strength to hold together, and I don't have any good explanation for that. The fact that the lone holdout held on to her life vote also goes against the CJP model. After it got down to just her, she should have folded. That may be explainable, though.
A Strikeout for ProPublica
I am a fan of the web site/operation ProPublica. It is a source of new investigative journalism in an age in which there is too little of it, and fewer resources for it, than I would like or than society needs. Certainly it has a political tilt, but I'm fine with that; it does good work on important issues.
But its piece this week on the Federalist Society is not its finest hour. Far from an investigative piece, it is just an interview with the author of a new book on the FedSoc. I look forward to reading the book, but the piece itself is not much of a contribution. Moreover, the framing of the interview is a little silly and a little overheated. And this line from the interviewer--"The Federalist Society doesn’t even make public its membership rosters"--is worse than silly; with its vaguely ominous tones, it ought to be an embarrassment to the good work done elsewhere by PP.
I will add that what I have seen virtually none of is "investigative" journalistic work on the newer, liberal American Constitution Society. Like the Federalist Society, it is not "secret" and not especially "secretive," although I assume it is not wholly transparent either. I assume plenty of the reporting could be done via publicly available sources, and of course I cannot say what more digging beneath and beyond those sources might reveal. Nor am I making any judgments about the relative power or influence of the ACS compared to the Federalist Society. But since the ACS's apparent goals at least appear to be roughly the same as the Federalist Society's apparent goals--to grow, replicate, have influence, and create networks of power--it certainly merits more serious and skeptical journalistic treatment than it has received so far, which seems to be none at all.