Friday, December 05, 2014
SCOTUS takes license plate case
SCOTUS (finally) granted cert to decide whether the slogans and messages on license plates ("Live Free or Die", "Choose Life", "Save the Manatee") constitute government speech or a forum for private speech (thus subject to limits on viewpoint discrimination). Although I never got around to writing about it, these cases have been percolating since I was still clerking. The case comes out of the Fifth Circuit and involves Texas denying a specialty plate to the Sons of Confederate Veterans, which would have included a Confederate flag. I always have viewed the slogans as government speech and the plate number as the speech of the vehicle owner. But this will give everyone a chance to discuss Wooley, one of the Court's underrated First Amendment decisions.
Teaching Crim Pro I and II
I recently finished compiling the grades for my fall semester's Crim Pro I class. The components included two motions to suppress (one physical evidence and one incriminating statements) during the semester, each worth 20% of the grade, a final exam with 25 multiple choice questions, worth 50% of the grade, and 10% for preparation in class (not "participation," mind you, but preparation). I think it turned out really well in that the students' knowledge of the material was tested, they were able to practice and improve their legal writing, and they were rewarded substantively for being prepared, and not just saying any old thing they thought of to get the "participation" points.
I'm planning my spring Crim Pro II class now, which, of course, deals with grand juries, and thus must deal with Ferguson and NYC. I plan to repeat Crim Pro I's grading scheme, but I'm wondering what assignments I can assign that will be practical, educational, and not too much work. I can't, for example, make my students read all of the Ferguson grand jury material and do an assignment off of that, and having them read only a portion probably wouldn't be helpful.
As for the topic of bail, I have another case, on which I was defense counsel, and I'm thinking of having them read the proffer for detention and motion for bail, and write a memo to their fictional judge about how to rule. But the proffer and motion are each at least 100 pages. So that might also be much too.
Does anyone have suggestions/observations?
LSAC numbers, law school closings, and macabre wagers
Al Brophy reports that law school applications are down almost 10 percent from last year's numbers, bringing the anticipated number of applicants to under 50,000 for the year. That would be about 5,000 fewer than last year. Over at Slate's Moneybox, Jordan Weissman has announced a bet with Berkeley's Steven Davidoff Solomon that at least one ABA-accredited law school will close in the next four years. He's encouraging side wagers. (I used the word "macabre" in the title because the bet involves the "death" of a law school.)
So I'm wondering, to the extent that folks are willing to talk about it, what the buzz is on law school closings around the country. If you work at or attend a law school, are there any rumors of closure? Is it a faint rumor, discussed obliquely, or are there actual conversations about staving it off? Who is bringing it up -- other faculty, deans, the university or board? If you are an entry level candidate, is it something you are considering in your search? Please -- no mention of a specific school unless you are willing to put your name down.
Thursday, December 04, 2014
Speciesism in Chimpanzee Habeas Case
A New York appellate court has ruled that a chimpanzee is not a "person" entitled to state habeas corpus protections. Hence the Nonhuman Rights Project cannot get an order to show cause to commence a habeas proceeding to challenge the confinement of Tommy the chimpanzee (who is apparently being kept in accordance with state and federal animal welfare laws).
The court reasoned that there is no precedent for treating chimps as persons and that personhood ought not be extended because the rights associated with the writ have "historically been connected with the imposition of societal obligations and duties" (emphasis added). "Under this view, society extends rights in exchange for an express or implied agreement from its members to submit to social responsibilities." Since chimps do not accept legal responsibilities, they ought not have the rights of persons.
As to why humans that are too young or too intellectually disabled to have legal duties are still persons, the court states in a footnote: "To be sure, some humans are less able to bear legal duties or responsibilities than others. These differences do not alter our analysis, as it is undeniable that, collectively, human beings possess the unique ability to bear legal responsibility. Accordingly, nothing in this decision should be read as limiting the rights of human beings in the context of habeas corpus proceedings or otherwise."
The court's position exemplifies what Peter Singer and others call speciesism. What entitles a being to protection, according to the court, is not something about the creature itself but about its membership in a particular group--namely, the species homo sapiens. If sexism is an irrational prejudice in favor of one gender and racism is an irrational prejudice in favor of one race over another, to many animal rights advocates, specisism is an irrational prejudice in favor of one species over another. So how one feels about the decision likely turns on how seriously one takes the charge of speciesism.
In this case, there is apparently no allegation that Tommy was being mistreated in the sense protected by current animal welfare laws. Often, however, even when animal welfare laws are being violated, private parties lack standing to bring suit. So questions of personhood for great apes and other animals both raise fundamental questions about the nature of personhood and less fundamental, but still important issues, about how expansively animal welfare protections apply.
(Hat tip: Eugene Volokh)
Prosecuting police--the role of the grand-jury pool
Alexi Lahav (U Conn) shares this op-ed by Ilaan Maazel suggesting reforms in policing police misconduct, including body cams (while recognizing they are not a panacea) and having all prosecutions handled by an independent special prosecutor rather than the local DA. In a Slate piece in September, Kate Levine suggested something similar (she specifically wanted to turn all cases over to federal prosecutors), which I questioned.
But in light of recent events, I am beginning to come around to the idea that Maazel and Levine are pushing. Moreover, I am coming around not only to the idea of requiring a special state prosecutor or the State AG, which Levine suggested and which I thought might work, but to the idea of making everything federal.
The focus in both the Brown and Garner cases has been on the respective local prosecutors and their supposed failures to be sufficiently aggressive. And the argument generally is that local prosecutors, by necessity, are always too close to the police.
But perhaps we also should consider the effect of the composition of a state as opposed to federal grand jury. Maybe part of the problem involves the likely decisions or actions of body drawn entirely from people in St. Louis County or Staten Island/Richmond County who are immersed in the local passions and politics; maybe a federal body drawn from the entire Eastern District of New York or Eastern District of Missouri, less immersed in those local passions and politics, can process things differently. Of course, it may not matter given modern media--everyone knows the details of high-profile cases such as these. But perhaps someone from Montauk or Cape Girardeau has a bit more distance from the events, a bit more distance from the local police, and thus a greater willingness to find a basis to pursue a criminal case.
The New Republic, 1914-2014. R.I.P.
I was only in journalism for a year or so before attending law school, but I have always retained a strong loyalty to that profession. So, despite not having blogged much lately, I'm moved to write by the news that one of my favorite magazines, The New Republic, has died--and on its hundredth anniversary, no less.
Although the news is sad, it should have been foreseeable. The magazine had gone through plenty of cycles of changes in owners and editors and weathered most of them. But, like most longtime fans of the magazine, I found it apparent that the magazine had been getting increasingly bad since its purchase in 2012 by Chris Hughes. The content got ever shorter and ever dumber, as one would expect of a property owned by a former Facebook executive. And, as one would expect of a property owned by the former "coordinator of online organizing" for a presidential campaign, the magazine also went from being liberal-centrist in politics but contrarian in spirit, to engaging in pure political hackery without any governing philosophy--or ideas--at all. The print magazine was thin and jumbled, and the online site was an insult to itself and its readers alike. It was tragic to watch--like watching a patient get sicker and sicker every day. And now it is finally dead, alas.
Well, not technically dead. But the last decent, responsible people have left the building. I can't help but think today of our friend Dan, who was also a longtime friend and fan of the magazine. When I lamented what was happening to the magazine, he would remind me that the magazine at least had its "back of the book" section, run by Leon Wieseltier. The back section was always an excellent source of essays and book reviews, including pieces by legal academic luminaries such as Richard Posner, Cass Sunstein, Justin Driver, and many others. Now, apparently, Wieseltier is gone. With him goes Franklin Foer, the magazine's editor, who certainly contributed to the magazine's decline but at least provided a link to adult journalism. What remains is Hughes, who has said of his property, "I don’t call it a magazine at all. I think we’re a digital media company," and Brian Beutler, a Salon veteran whose online work first made me realize just how bad TNR was getting, and whose work has only gotten worse since then.
If Dan were still with us, I think he would now agree with me that the last reasons to look at the magazine have vanished and that it is effectively dead. I am so sorry to see it go. I can't but help but wonder if there are any good magazines of its sort left.
Tone Deaf (or Deft)?
I wonder if fledgling law students still watch films like “The Paper Chase” to see what to expect from the law school experience. Certainly, there are more modern examples, but all tend to include frightening faculty who, these days, might be viewed as uncivil, particularly with respect to their tones, mannerisms, and treatment of students. Sometimes, these images have their very real counterparts. I have known of actual professors who prided themselves on mirroring Professor Kingsfield. To be sure, the Soccratic method has its place, but I sometimes wonder whether students learn to treat words and questions as weapons in law school, or, conversely, whether law school may attract those who like to argue.
With recent discussions of the importance of civility within the practice of law, just where (if anywhere) can anything but the sweetest of tones be inserted? Are lawyers allowed to raise their voices and argue fervently anymore, or are we instead expected to immerse all professional disagreements in a bath of saccharine pleasantry that appears insincere in spite of its veiled civility? Where is the balance between civility and healthy (but heated) debate?
More Supreme Court Signals
A couple weeks ago, I discussed “Supreme Court Signals.” The main vehicles for signaling that I identified were certiorari denials and Justices’ statements during oral argument. This week, Justices sent what look like two more signals, this time in statements respecting denial.
Repost: First Annual Civil Procedure Workshop
Repost: Please note that the deadline for submissions is Monday, December 15.
We are pleased to announce the First Annual Civil Procedure Workshop, to be co-hosted by Seattle University School of Law, the University of Washington School of Law, and the University of Arizona Rogers College of Law. The Workshop will be held at Seattle University on July 16-17, 2015. Future conferences will take place at the University of Washington and the University of Arizona.
Wednesday, December 03, 2014
Yung on police, lethal force, and video
Corey Yung weighs in at CoOp with six other instances in which police officers were not prosecuted (or otherwise sanctioned) for using lethal force against unarmed minority men, even when events were captured on video. Go watch.
Video does not prevent "another Ferguson"
A grand jury has decided not to indict a NYPD officer in the choking death of Eric Garner--an event captured on a cell phone video. Apparently the video "said" something to the grand jurors quite different than what it said to many other people who have seen it. That the chokehold maneuver is forbidden by department regs did not change anything. Nor did the fact that the officer used physical force against someone for selling loose cigarettes.
To the extent we hope video will create greater accountability, this result suggests maybe not--it obviously does not make an indictment more likely (it also is further proof that video would not have made a difference in the Michael Brown case). Nor is it likely to produce deterrence--police can respond with force to even the most petty misconduct. So bring on those body cameras; just do not expect them to change much.
Meanwhile, NYPD is preparing for the "potential contingency" of public protest, which of course means mass arrests and forcefully moving people off the streets.
Update: Nia-Malika Henderson at WaPo suggests the non-indictment hurts Obama's body-camera arguments. But she comes around to the right point--cameras are good, but they are not the solution and they will not alone achieve significant change.
Update II: This NPR story describes a lot of the developments over the course of the afternoon, including a "die-in" at Grand Central Station and the mayor canceling his planned appearance at the Rockefeller Center tree-lighting ceremony tonight, which may be a target for protesters.
Two More Reasons the Law May Concretize
In my last post, I raised the admittedly speculative possibility that advances in artificial intelligence will lead the law to concretize (by which I mean that it will become more clearly expressed and more transparently applied). I gave the example of autonomous cars which may lead manufacturers to push for more concretized speed limits (unlike the ones we have now in which it's unlikely you'll get ticketed if you travel a little above the speed limit). Superficial appearances aside, actual speed limits are neither clearly expressed nor transparently applied.
Let me offer two more reasons why the law may concretize. First, the law may become more concrete as computers play a larger role in making legally relevant decisions. For example, a group of German researchers is working to develop a computer system “to make automatic decisions on child benefit claims to the country’s Federal Employment Agency . . . probably with some human auditing of its decisions behind the scenes” and is in talks with the agency about how to deploy it. One researcher “hopes that one day, new laws will be drafted with machines in mind from the start, so that each is built as a structured database containing all of the law’s concepts, and information on how the concepts relate to one another.” In other words, when legally relevant tasks are performed by computers, legislation may itself be crafted more algorithmically to facilitate processing. That is a kind of concretization although whether or not such laws are clearer than current laws may be a matter of taste (and of whether you’re a human or a computer).
Is Fisher v. University of Texas a Precedent on Jurisdiction?
As Lyle Denniston recently explained over at SCOTUSBlog, the important affirmative action case Fisher v. University of Texas may soon be headed back to the Supreme Court. This possibility raises an interesting issue of precedent and jurisdiction. The last time that the Court heard Fisher, its published decision ignored certain jurisdictional concerns and remanded for a new merits determination. Could these concerns prove decisive in a sequel decision, or did the Court silently settle the question of jurisdiction in Fisher?
Tuesday, December 02, 2014
Michael Brown and the return of Brandenburg
A colleague asks a question:
Did Louis Head, Michael Brown's stepfather, commit incitement within the meaning of Brandenburg? Law enforcement apparently is investigating possible charges. Immediately following the announcement of the grand jury decision, Head was captured on video (embedded-go to 2:30 mark) shouting "Burn this motherfucker down" and "Burn this bitch down" (as people around him tried to calm him down).
Brandenburg requires that incitement be "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The Brandenburg paradigm is a torches-and-pitchforks mob outside a poorly guarded jail and the leader saying "let's get that guy in there." We definitely have a mob here (although hardly in a poorly guarded area, since there were police in riot gear across the barricade and the National Guard was in the area). But I do not see how the state could show intent. There also is Hess v. Indiana, in which the Court overturned a conviction where the defendant was not addressing any persons or group and he was no louder than anyone else in the group. Certainly Head was at the center of crowd and he can be seen asking for a microphone or bullhorn, as if trying to address the crowd above the noise. But he also just appears to be one of many people shouting into the sky in a show of anger, in his case, immediately after embracing his wife, who had just broken down.* He just happened to be caught on camera, which raises an interesting question--if his words reached millions watching TV but not the people who did the actual rioting, can he be said to have incited the crowd?
* Yes, I acknowledge that this perception may be influenced by my views of the case and the First Amendment and that mileage may vary.
I have been kicking around an idea that the legal change to come out of Ferguson may be all about the First Amendment--militarized police responding to public gatherings, negotiations on rules of public protest, citizen video, unconstitutional move-along policies. A good old-fashioned incitement/advocacy of unlawful conduct argument would top that off.
Media, Op-Eds, and the Value of the "Extra" Things We Do as Law Professors
Today CNN published an article quoting me about the Kentucky law that prohibits Rand Paul from appearing on the ballot for both President and U.S. Senate at the same time. During the election season I published a few Op-Eds on various issues involving the electoral process. Beyond the shameless self-promotion, in this post I want to explore the value of law professors appearing in the "popular press." Why do some professors welcome media inquiries or write Op-Eds? And what value should our schools give to that activity?
Elonis v. United States, Part 2
Oral argument in Elonis v. United States was yesterday, and props to the Notorious RBG for getting back into it after crushing it at the gym and, later, the hospital. But Justice Roberts quoting Eminem really takes the rap cake (see below for more on that!).
The People’s Law School (Revisited)
Back in 2012, I posed a question about what a law school for “the people” would look like, and I specifically asked how it might compare to schools already in existence. This question produced a fruitful discussion. Since then, there have been many discussions throughout the legal academy about the need for law schools to produce “practice-ready lawyers,” with many recommendations for improvement that focus on nut-and-bolts skills training (as opposed to doctrinal topics). My question today is, how far have we come since 2012, and what will it take to reach the goal of either creating law schools for the people or practice-ready lawyers, or both?
Changing up the First Year Classroom
I mentioned in a previous blog post that I assigned research memos the last two times I taught my upper-level Copyright course. I've also experimented with memo writing in my first-year Contracts class. I anticipate doing something similar this spring. I find that my students benefit from feedback on their writing and legal analysis during the semester. This year, I hope to incorporate a bit of contract drafting as well. The next time I swing around to the 'blawg, I'll let you know how it went.
In the meantime, for those of you lucky enough to teach first year students, tell us what you have done to change up your 1L class. Or, in the alternative, feel free to make a case for why the Langdellian / Paper Chase model is the correct model for the 21st-century legal classroom. If you are a former law student, feel free to share unique methods used by one (or more) of your professors that you found particularly effective, especially if you feel that the change was helpful in preparing you for the reality of legal practice. I eagerly await your responses.
Monday, December 01, 2014
Did You Hear the One About the Lawyer…
…who brought home a shoplifter for Christmas? This is the premise for one of my favorite “lawyer” holiday films – “Remember the Night” (1940) – and one that almost made the final cut for my book (please pardon the plug) that employs classic films to demonstrate important lawyering skills. What’s interesting is that, despite its warm and gentle premise, this film likely never would have been made today – or, conversely, it would now be made much differently. This film is airing on TCM later this week. For those who show film clips in their classes, there are many here to consider using, especially the trial scenes.
Speaking of films, I plan to spend my visit this month focusing on classic films and professionalism in the law. I am honored to visit again in our shared effort to keep this wonderful Blog thriving in Dan’s memory.
The Concretization of Law
In recent decades, progress in artificial intelligence has been widely considered disappointing. The tide may have changed, however. Reasonably good voice recognition software is now widely available. Websites like Facebook and Google can translate a snippet from a foreign language, at least in a pinch. And facial recognition is surprisingly accurate. Now, increasingly autonomous vehicles appear to be on the horizon.
In an admittedly speculative portion of a recent paper, I argue that such technologies, especially autonomous vehicles, may lead law to "concretize" by which I mean that it will become more clearly expressed and more transparently applied. The law might concretize because rules for autonomous entities have to be described with some precision. We cannot so easily rely on the ability of computers to understand human attitudes and conventions. But if we can develop self-driving cars that recognize pedestrians, road debris, and traffic signs, the cars can surely recognize that it is generally permissible to drive a few miles-per-hour above the posted speed limit.
A more significant push to concretize may emerge from corporations that design self-driving cars. They will fear the accident liability from even de minimis vehicle infractions, like driving a little bit above the speed limit. So the law may concretize as corporations push for convergence between laws on the books and the laws that we are expected to follow. More concretized speed limits, for example, may be somewhat faster than those we have now but with more strict enforcement around the limit.
After my article was published, Google announced that it has programmed the autonomous vehicles it is testing to go up to ten miles-per-hour above the speed limit. I can certainly believe that it is sometimes safer to exceed the speed limit, but it is still surprising that a corporate juggernaut would program its cars to so easily break the law. We'll see, though, what happens when autonomous vehicles become more mainstream. I suspect that there will still be a push to make speed limits more transparent to facilitate compliance by autonomous vehicles.
(This post is adapted from "Will There Be a Neurolaw Revolution?".)
"Trusted Readers of the Dump Draft"
Dan. Nuff said.
Well, maybe not. I remember a SEALS panel from a few years ago when Danny mentioned that he will not send out an article to law reviews for publication until he has presented it at least 10 times and received substantive comments from at least 50 scholars. (At least those are the numbers I remember he said--whatever it was, the number of presentations and commenters were quite high and seemed impossible to reach for any one article before I'd want to send it out and move on to the next project.)
In that spirit, I want to dedicate my month blogging at Prawfs on increasing the collaborative effort among this scholarly community.
Elonis v. United States
I'm looking forward to the Supreme Court's ruling in Elonis v. United States, though I suspect that the Court will not address my primary raison d'excitation.
Elonis was convicted of threatening his wife by posting repulsive texts on his Facebook page. While I'm not convinced that there was sufficient evidence to convict (the posts were ambiguous as to the threat), let's assume there was. The issue for the Court is whether the First Amendment requires proof of a defendant's subjective intent to threaten or whether it is enough that a "reasonable person" would feel threatened. I suspect that the First Amendment requires subjective intent, but I digress. More after the jump . . .
Confessions of the Newly Tenured
It’s great to be back at Prawfs. One of the last email communications I had with Danny involved an invitation to guest blog; knowing that makes this visit particularly poignant. This month, I hope to talk about some of my research on election law, which I usually write about through the lens of federalism. My scholarship involves the more obscure election-related clauses in the Constitution including the Voter Qualifications Clause of Article I, Section 2; section 2 of the Fourteenth Amendment; and the Elections Clause (which was obscure until recently). I have quite a few projects in progress, so I look forward to reading your comments on any of these topics.
For my first post, I want to talk about something that is non-election law related. This is my first year as a tenured law professor (insert fist pump), and I am curious as to what changed for other people once they gained tenure. Did tenure make you more driven? Did it make you think about taking a bigger role in your school's administration? Did tenure free you to write projects that you otherwise would not have written pre-tenure? Did tenure give you the confidence to evolve in the classroom? Or alternatively, did tenure make you say yes to every invitation, some of which you probably should have declined?
Honestly, I don't "feel" any different post-tenure. Don't get me wrong - I wouldn't trade my tenure for the world. But I thought the earth would shift or something once I joined the ranks of the tenured. Instead, here are the two universal truths I discovered once I gained tenure: 1) Post-tenure, people still care about their teaching - if you cared about teaching before tenure, you will still care after tenure; and 2) Post-tenure, people will still care about their writing - if you loved writing before tenure, you will need to do it after tenure. That doesn't change. So what changed for folks? For me, tenure triggered a compulsive urge to direct my energies towards a book project, even though now is not the best time for that (did I mention I have a few projects in progress already?). Since I had thought about this book project pre-tenure, I don't really consider that a significant change.
For others, did tenure signify a significant change in your scholarly/teaching/administrative approach to being a law professor?
Free speech in the NFL
It will be interesting to see how this plays out. Five St. Louis Rams players walked onto the field in the "Hands Up, Don't Shoot" gesture; the St. Louis Police Officers Association is demanding that the players be disciplined and that the team issue a public apology. The full statement from the association is angry and unprofessional (not to mention loaded with really stupid football puns); it quotes extensively from the organization's business manager, a fired police officer now serving in the state legislature who has been one of the few voices opposing body cameras.
NFL Commissioner Roger Goodell is a coward and a liar. But will be really punish players for core political speech about a local and ongoing matter of public import? (Note: Yes, I know he can punish them; the question is will he and, if he does, how does he explain it away).
One last note: In the statement, the association refers to Darren Wilson (not by name) as the "now-exonerated officer." Is that an appropriate description of the process that was used?
Sunday, November 30, 2014
December is almost here, ending my guest blogging stint. Many thanks for reading and commenting this month. I’m looking forward to AALS in DC this year, my old stomping grounds. Hope to see many of you there. Otherwise, you can find me on Family Law Prof Blog. Happy Holidays, and until next time,
Guns and the V.I.P. Lounge
Thanks to the Prawfs for inviting me to blog once again. There's lots to talk about this month. For a soft opening, consider the recent New York Times article about the new country club-style shooting ranges, with membership fees in the thousands, rich mahagony, and many leather bound books. I've always thought of myself as moderate on the gun control-gun rights debate, so shooting ranges per se don't bother me. Done correctly, they probably make everyone safer.
These V.I.P. ranges, however, concern me because they increase the divide between the rich and the poor, and gun owners and non-gun owners (see also first class vs. coach on airplanes). This private property rights/capitalism-driven segregation is bad for democracy, and the gun debate in this country could use some good-faith dialog. It makes me appreciate my little YMCA in Grand Forks, North Dakota, where the men's locker room is a dingy, tight space where liberals, conservatives, and libertarians, and farmers, lawyers, and grocery store clerks all congregate, talk, and bicker about, inter alia, politics and religion.
As we roll into a new month, we roll into a new set of visiting Prawfs.
Thanks to our November visitors--Michael Helfand (Pepperdine), Adam Kolber (Brooklyn), Jake Linford (Florida State), Kirsten Nussbaumer (Stanford), and Margaret Ryznar (Indiana-Bloomington); they may be sticking around for some final posts this week. Thanks also to Timothy Zick (William & Mary) and Leigh Osofsky (Miami) for their individual solicited posts.
And welcome to our December visitors--Kelly Anders (The Organized Lawyer); Miriam Cherry (Saint Louis); Josh Douglas (Kentucky); Franita Tolson (Florida State); and Steven Morrison (North Dakota). And Richard Re (UCLA) continues his semester-long stay.
And remember that we are always looking for voices to join the Prawfs conversation. If you are interested in joining us for a month in the coming year, please email me (email@example.com) or Paul (firstname.lastname@example.org).
The Dangers of Sloppy Brain Imaging Studies
Here is xkcd on the dangers of sloppy brain imaging studies:
(Cross-posted to the Neuroethics & Law Blog)
Saturday, November 29, 2014
Shampoo for Damaged Hair and…Damaged Marriages
I have seen many unhappy family law cases, but never in a shampoo ad…until now. This Leo Burnett Hong Kong ad, which follows a couple on the brink of divorce, is also a message against divorce in China, where apparently 100,000 couples reconciled last year out of 3 million divorces.
Friday, November 28, 2014
JOTWELL: Steinman on Larson on factual precedent
The latest JOTWELL Courts Law essay comes from co-Section Editor Adam Steinman (now at Alabama), reviewing Allison Orr Larson Factual Precedents (U. Pa. L. Rev. 2013), which explores the extent to which factual conclusions in SCOTUS decisions should be binding on lower courts.
Cosby and Temple University
The University of Massachusetts and other colleges and universities have cut ties with Bill Cosby based on the rape allegations against him. However, his alma mater Temple University, for the moment, is standing by their man, notwithstanding alum Kerry McCormick's petition to dismiss him from the board. Of course, in a metaphysical sense, possibly the allegations are false; remember the person who never met David Letterman, yet got a restraining order against him based on the psychic waves he sent through the TV? But so many allegations, from so many people, who actually knew Mr. Cosby, have the distinct ring of truth; I can't think of an example where adult, competent people, not influenced by the police and not acting together, falsely made these sorts of charges. One of the reported victims was a Temple employee; particularly for a university under investigation for its handling of sex assault cases, there is more than enough here for Temple to act.
But what should Temple do? I think they should take Mr. Cosby's claims of innocence seriously.
Prof. Robert E. Rodes, Jr., R.I.P.
My friend and colleague, Bob Rodes -- who taught at Notre Dame Law School for nearly 60 years and who published in seven different decades -- died on Tuesday morning. During his career, he wrote about the history of the Church of England, courtly love, workman's compensation, maritime insurance, liberation theology, symbolic logic, legal ethics, jurisprudence, and more. Even at the end, he was working on (yet) another book, a collection of his articles on church-state relations. Here is a very nice announcement and collection of reflections. And, for an insightful and warm introduction and overview to Bob's work, check out this piece, written by his colleague and friend, Tom Shaffer. In the announcement, our colleague Judge Kenneth Ripple puts it well:
His junior and senior colleagues relate remarkably similar stories about his deep and lasting impact on their lives. U.S. Seventh Circuit Judge and Professor Kenneth F. Ripple provided an apt metaphor in describing Bob’s impact on the Law School: “Every great institution has, as Scripture describes them, ‘living stones’ —individuals who, sometimes at great personal sacrifice, become the foundation of all the accomplishments that come afterward. At Notre Dame Law School, Professor Bob Rodes will always be a supporting part of the foundation of this very special law school. He loved his students; he loved his colleagues; and he loved what he called the ‘legal enterprise’ in which we all work together. He was the voice of the Spirit, always reminding us of our better selves.” . . .
Thursday, November 27, 2014
Black Friday, Blue Laws (and Happy Thanksgiving)
November is a great month: NaNoWriMo, National Adoption Month, and, of course, Thanksgiving. Cue the Christmas music, thanks to holiday creep.
Holiday creep is also responsible for the Black Friday shopping frenzy that now starts on Thanksgiving Day. But a tiny minority of states, such as Massachusetts, kept blue laws on their books: retailers must be closed on Thanksgiving and Christmas. These blue laws date back to the colonial era of the Puritans, and intended to encourage people to go to church instead of work. They now encourage families to stay together for Thanksgiving by keeping stores closed, but there is some thought that they just make people cross state borders to shop (or shop online?).
Whether you are shopping today, watching football, or eating all day, Happy Thanksgiving.
Wednesday, November 26, 2014
Collateral Consequences Resource Center Launches
I am pleased to announce that I and the other founding members of the Collateral Consequences Resource Center have launched a website. We hope the site will become a central resource for people with convictions, scholars, lawyers and policymakers who are interested in the effects of criminal convictions on civil rights, public benefits, family rights and opportunities for employment. If you come across a scholarly article, news story, case, or statutory or regulatory development related to collateral consequences that we should publicize, please send it to email@example.com.
When "protests" become "riots"
Tim's final post talks about Monday's protests turning violent and destructive (and the process being repeated on Tuesday) as a tipping point, in which public (and media) support and attention shifts away from the protesters. I do not know if we have hit that point. There is still much to sort out about what has been happening on the ground the past few nights. And it appears that many of the unlawful mistakes we saw in July (mass arrests of even peaceful protesters, arresting people for recording) are being repeated. And the number of sympathy protests across the country (many far more peaceful) may suggest a deeper level of support.
Nevertheless, Tim's point about public sympathy reminded me of Walker v. City of Birmingham (which I wrote about last week) and what it indicates about the connection between public speech and public support. The events in Walker occurred during Easter Week 1963, four months before the March on Washington, when the violent response to peaceful were entering living rooms--arguably at or near the height of public support for the movement. But the case did not reach SCOTUS until 1967 (argued in March, decided in June). By that point, we had seen the same shift in public support and sympathy away from civil rights protesters and the movement, given the increasing militancy in the movement, as well as public concern about riots (on race, the war, etc.) throughout the country.
Ferguson – What Now? (guest post)
This is the final post on Ferguson from Timothy Zick:
Monday night, peaceful vigils and other protected forms of protest were largely overshadowed by acts of violence and destruction. As headlines attest, the Ferguson “protests” have already been displaced in the news cycle by the Ferguson “riots.” The facts are still coming in, but by most accounts police were not the instigators. The commercial and other costs must be laid at the feet of the lawless, who engaged not in legitimate protest or demonstration but in petty and more serious criminal activities. While their frustration may be understandable, their actions were obviously neither wise nor constructive. The violence was not, as some have suggested, inevitable. Whatever their underlying causes or motivations, the riots were a choice.
There will be additional protests and demonstrations in Ferguson and elsewhere. Hopefully they will be vocal, but peaceful, events. The issues are worth demonstrating about. But as I wrote in my previous post, public sympathy will not be with the protesters forever. Last night may have been a tipping point. The media will focus on Ferguson for a bit longer, but the news cycle will inevitably find other conflicts and the press will move on. Many left behind will have expressed their outrage, or have been affected by the actions of those who did so. What will be the legacy of the Ferguson protests (past, present, and future)?
Osofsky on tax nonenforcement (guest post)
Tuesday, November 25, 2014
Heartbalm Torts Not for Kids
Depending on the state, there are several heartbalm torts that allow the brokenhearted to recover for their romantic troubles. Lovers--whether married or not--can sue in tort each other or a third party who caused a romance to go sour.
In a case of first impression in Mississippi, the minor children of a marriage invoked the tort of alienation of affection against their mother’s neck doctor, who engaged in an extra-marital affair with her that led to her divorce. Earlier this month, the Mississippi Supreme Court decided that children do not have a colorable interest in the alienation of one parent’s affections toward the other. But maybe they do, in light of the endless studies showing that two-parent households are better for children than one-parent households? Should there be a tort for ruining a child's happy household?
One Way Neuroscience Will Eventually Affect the Law
In two prior posts, I argued that the jury is still out as to whether neuroscience will radically alter our notions of criminal responsibility. I do, however, believe that technological advances in neuroscience will eventually have major effects on the law.
One promising area concerns the use of brain imaging to assess whether or not a person is genuinely in pain. A 2011 study from Sean Mackey's lab at Stanford used brain imaging to predict with about 80% accuracy whether subjects were in a state of pain or not. A 2013 study from Tor Wager and colleagues in the New England Journal of Medicine suggests that the technology has only become more accurate and versatile. More study is certainly necessary: I know of no studies yet on people who are deliberately trying to fool examiners; most studies focus on acute pain (from a hot piece of metal) and not chronic pain; and measuring amounts of pain is much harder than assessing whether a claim of pain is entirely malingered.
But there is good reason to believe that pain detection technology will continue to improve and eventually become at least a useful adjunct and perhaps someday a quite essential tool in court and administrative hearings. The technology will both help to filter out malingered claims (and perhaps highly exaggerated claims) and make it easier for people with genuine pain to provide more objective evidence. And unlike efforts to use brain imaging for lie detection, brain imaging for pain detection has more obvious medical uses, meaning that the technology might gain respect in the medical community in a manner that makes it more palatable for courtroom use.
If you're interested in learning more, I've written about the forensic use of brain imaging to assess physical pain here and to assess emotional pain here and here. Susannah Locke surveys some of the issues in this recent piece in Vox, and Amanda Pustilnik is exploring issues related to pain, law, and neuroscience here.
Narrowing Precedent and the Digital Fourth Amendment
My new paper, "Narrowing Precedent in the Supreme Court," is now posted online. (Thanks to LTB for publicizing it!) The basic idea is that the Supreme Court frequently narrows its precedents, including in "liberal" directions, and that doing so is often both legitimate and desirable. In this post, I'd like to make a prediction: in the near future, we are going to see a lot of narrowing in the area of digital surveillance and the Fourth Amendment.
Monday, November 24, 2014
Following the grand jury declining to indict Officer Wilson in the shooting death of Michael Brown, the Brown family released a statement specifically calling for a "campaign to ensure that every police officer working the streets in this country wears a body camera." Yes, give everyone a camera--but do not expect it to have as conclusive an effect as you think it will. Video likely would not have changed the grand jury's decision. Perhaps it would have made him less likely to shoot, but I think the deterrent argument is open to debate right now.
A couple things for crim law experts:
1) Is it the grand jury's role to weigh and select between conflicting evidence in deciding whether to indict? The DA made much of the conflict between the physical evidence and the testimony of witnesses, as well as the inconsistency between different witnesses and between statements by particular witnesses. But is that the issue for a grand jury determining probable cause? Or is that supposed to be left for an open trial on culpability? Is it typical for the prosecutor to point out those inconsistencies now? Or is that for defense counsel at trial? Here are two arguments on that, noting that the DA spoke of the grand jury's job as to "separate fact from fiction." Is that wrong?
Now, I know prosecutors often will not seek an indictment if they believe they have enough for probable cause but not to convict, in light of possible witness-credibility problems. But does witness credibility often suggest the absence of probable cause?
2) It seems to me the question is what evidence the grand jury heard showing that Brown posed a continued threat to Wilson. The rule seems to be that a police officer is entitled to keep shooting until the threat is over. It appears that Wilson fired ten shots at a distance (following two fired at close range). The question must be whether any of those initial shots incapacitated Brown.
3) How common is it for the target to testify before a grand jury? How common is it for defense counsel to allow a client to do so?
Three Ponies or Four?
Each state has child support guidelines that set a presumptively correct amount of child support when parents split. However, some states permit judicial discretion at the low- and high-income ends of the spectrum. I have previously written on the former, and next year I have a forthcoming Hofstra Law Review article on the latter. In it, I start to explore the extremely difficult question of what parents owe to their children when there is a lot of money on the table. One Kansas court has stated that three ponies are enough, even for the wealthiest of children. Others have argued that reasonable needs of the child are the limit, while yet others argue there is no limit. Some states use a percentage of income as a limit, which increases up to a certain income amount before decreasing. The child support guidelines, catalyzed by federal law, aimed to prevent these sorts of inconsistencies—but the question of fairness gets far grayer in high-income cases, leaving much room for debate.
The costs of public protest (guest post)
The following is another guest post from Timothy Zick (William & Mary).
Some of my First Amendment work has focused on highlighting the social, political, and constitutional benefits of public protests. Protests can also impose serious costs. Mass protests can be particularly invasive forms of contention. They disrupt routines, alter urban and other landscapes, and inconvenience entire communities. Some of these effects may actually make a protest more effective – unlike a pamphlet or this blog post, a mass protest cannot easily be ignored. Still, for those caught in its path, a public protest (or a prolonged series of them) can impose very real and significant costs.
Some of the costs of the Ferguson protests (past and anticipated), have received some media attention. Merchants are concerned that the prolonged state of unrest will harm their enterprises. Ferguson schools have been closed in anticipation of the grand jury’s decision. And there are the costs of policing the protests themselves, which can add up to millions (including the cost of any civil rights lawsuits and settlements, as New York City and other jurisdictions have learned). The psychological costs can also be significant. Living in an environment of daily conflict and protest policing can take its toll on communities. For example, many people seemed to lose patience with the Occupy protests – not just because of the tangible costs they imposed, but also owing to the emotional and psychological strain associated with long-term “occupation.”
Recognizing these costs does not diminish rights of free speech and peaceable assembly. Indeed, it places First Amendment rights in appropriate perspective. In general, we cherish and protect these rights despite their significant financial and other costs. We collectively accept these burdens as the price of expressive freedoms. We subsidize them, even when the distribution of costs sometimes seems unfair. (We also have the right to complain about this unfairness.) However, as protest organizers should know, there are limits to public tolerance. There is a point at which public support begins to wane and the effectiveness of public contention begins to diminish. Sooner or later, protesters will need to channel their outdoor energies to indoor political and other arenas. As Michael Brown’s father suggested in a video appeal to protesters, the time will come when protest will need to be translated into policy changes. To some degree, the mark of a successful protest movement is its ability to effect meaningful change. Protests have inherent worth. But the subsidies and sacrifices are all the more “worth it” insofar as they facilitate or produce something tangible, meaningful, and lasting.
Final Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"
Final Repost: The deadline is next Monday, December 1.
The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015.
It's That Time of Year
We're headed towards the end of semester--a time of year where I often find the first year students hitting the "rookie wall." On the plus side, it's around this time of year students will often put their creativity to work to spice up the classroom. Of course, my all-time favorite was this flash mob from the last day of my first year teaching Contracts. But this year provided some good fun as well.
As my students know well, I'm an obessive Giants fan (yes, I'm moping over tonight's loss). Last week, on the heel's of Eli Manning throwing five interceptions against the San Francisco 49ers, a student decided to push the envelope: he put up a sign on my classroom whiteboard that had a picture of the 49ers with the caption "Eli Manning's New Receivers." Well I responded as any good Giants fan would: I kept the student on call for about an hour, making him work through a wide range of hypotheticals involving complex contract damages calculations. Realizing his mistake, he found a creative way to ask for forgiveness (so creative that I told him I won't put him on call for the rest of the semester). The photographic evidence is above. And the video evidence is below. Enjoy!
Sunday, November 23, 2014
Judicial Elections and Historical Irony
Last week I was privileged to participate in a conference in New Mexico on the judiciary. The debates and assigned readings focused especially on judicial elections (a new issue-area for me). There, I learned that a little historical context can radically change the aspect of many current debates about the choice between an elected or appointed judiciary (and the many variants in between, including systems of merit selection and appointment with retention election).
“Judicial independence” is the rallying cry today for those who want to eliminate or at least tame judicial elections in the states. This “judicial independence” variously refers to judges’ freedom or willingness to take unpopular stances on policy and constitutional interpretation (think of same-sex marriage in Iowa), or judges’ impartiality and freedom from undue influence in particular disputes (think of business complaints that judges have become too thick with the plaintiffs’ bar, or of corporate efforts to use campaign contributions to buy case outcomes as suggested in Caperton v. Massey Coal).
An Underwood (But Not Frank or Claire)
Everyone who knows me in real life knows that I can’t stop talking about my “new” 1930’s Underwood typewriter. It’s being shipped to me in time for the holidays, and it’s the first typewriter I ever bought. Lots of writers working today still use a manual typewriter (e.g., the bestselling author alive, Danielle Steel, uses an Olympia), so it got me curious. And, it’s obviously got no connection to the internet—which I view as a plus. Sure, it won’t be efficient for very long writing projects, and it’s impossible for law review edits, but occasional use oddly appeals to me. I’m probably not the only one here with a thing for typewriters?
Saturday, November 22, 2014
Just watch the video
This article explains. I have nothing to add--skip to 22:38, when the respondent's argument begins. Somehow, law professors are to blame for this.
Friday, November 21, 2014
DOJ weighs in
Seeming to share my sense of where the burden should lie, Eric Holder released video urging law enforcement and protesters to collaborate on plans to keep the peace should protests occur in Ferguson. He reminded protesters that historically successful movements have relied on nonviolence, while calling on police to seek ways to keep order while respecting constitutional rights. In addition, DOJ officials spoke with Missouri Governor Jay Nixon about the decision to declare a preemptive state of emergency, calling that an escalation of the situation that "sent the wrong message." DOJ also released a resource guide for policies and training on community policing and handling public protest (although it seems a bit late in the day for that).
This is a good reminder of the unique role that DOJ and the Attorney General can, and sometimes do, play in these sorts of localized conflicts, remaining above the simplified law-enforcement fray.
Teaching Copyright Law - Blurred Lines
"Blurred Lines," the summer hit of 2013, is the subject of a copyright dispute. The estate of Marvin Gaye claims that the composers of the hit song (Pharrel Williams, Robin Thicke, and T.I.) appropriated the song from the Gaye hit, "Got to Give it Up." Williams et all filed a declaratory judgment action, and moved to dismiss the Gaye family's counterclaims alleging copyright infringement. Last month, Judge John A. Kronstadt denied a motion to dismiss. The order interests me for two reasons. Here I focus on the first.
I used the "Blurred Lines" case last year as the basis for a memo assignment on substantial similarity in my copyright class. For those of you who don't think often about copyright law, proving infringement requires evidence of copying, which is usually inferred from 1) access to the original work and 2) substantial similarity between the original and the alleged copy. In this case, Alan Thicke said in multiple interviews that he and Pharell meant to write an homage to the Gaye song, so I let the students assume access. I tasked the students with summarizing the state of the law in the Ninth Circuit on protectable elements of musical composition, i.e., which elements in a song can be copied without triggering liability, and which elements cannot. I then asked them to opine on a likely outcome in the case. At the time, the report from a musicologist hired by the Gaye family had leaked via Hollywood reporter. There was no competing report from the Williams camp available at the time, so I invited a musicologist from across campus, Brian Gaber, to walk the students through differences in the two works of music as if he were advising Williams and his co-writers about the similiarity of the musical elements.
The students were nervous about digging into the similarities and differences in the musical composition (what the song would look like if you wrote it up in standard notation) and the sound recording (what the song sounds like). Some students expressed concern that classmates who knew something about music would perform better on the assignment than those who knew little or nothing. But I invited them to think of the assignment as an opportunity to learn about substantial similiarity in a musical context, and to develop the ability to teach themselves about a complex issue in the course of preparing for a case. This is a challenge that will face lawyers providing legal advice in any substantial similarity case. Handling substantial similiarity requires familiarizing oneself with the norms of an industry, and how common elements or scènes à faire (unprotectable stock elements) manifest in a given genre.
Now expert reports are available on both sides, at least if you access to PACER. I commend the case to you as a fun one, if you want to help your students dig deeply into substantial similarity in copyright law as it manifests in musical composition