Tuesday, June 10, 2014
Book club on "Making the Modern American Fiscal State"
Our book club for "Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929" begins today. Our club-goers will be:
- Reuven Avi-Yonah, University of Michigan Law School
- Steven Bank, UCLA School of Law
- Matthew Lindsay, University of Baltimore School of Law
- Susan Morse, University of Texas School of Law
- Julia Ott, The New School
- Nicholas Parrillo, Yale Law School, and
- Ajay Mehrotra, Indiana University Maurer School of Law
Looking forward to a great club!
Monday, June 09, 2014
Limits on the Court's Revision Power
A few weeks ago, Professor Richard Lazarus posted a fascinating and much-discussed draft article documenting the Supreme Court's practice of revising its opinions after their initial publication. These often overlooked revisions, Lazarus shows, can extend to important points of law. Partly for that reason, Lazarus proposes various reforms to promote transparency, such as public notice of any post-publication changes.
In reading Lazarus's paper, I found myself wondering whether there are any limits on the Court's revision power. I think that there are. In particular, the Court probably has authority to modify the substance of a precedential opinion only when the relevant case is before the Court. Revisions at other times, such as long after the judgment and mandate have issued, seem like advisory opinions.
Anxiety and Ambition in the Trenches
A benefit of my temporary role as AALS president is the opportunity to meet with faculty and administrators at their law schools, mainly in order to listen to their concerns and advice and hopefully draw upon this wisdom to improve the service of the organization in this time of disruptive change.
The atmosphere of these visits reveals a high level of concern (of course) with the impact of the changing admissions structure and what it portends for law school benefits generally and faculty well-being particularly. Yet, what is remarkably encouraging, when taking these high-anxiety conversations as a whole, is this:
First, faculty members truly get that the core dilemma is how best to provide a high-quality education to the group of students, even as they come in often at smaller numbers, and, moreover, how to inculcate in them the value of a manifestly comprehensive, creative set of skills -- theoretical and experiential -- in a fluid marketplace, the future contours of which none of us can predict exactly. That the infrastructure of student learning is at the heart of what we do as faculty members comes up in these discussions reliably and eloquently. And, further, that the key threat from the war on law schools is that directed at the students who are investing, and the young alumni who have invested, in legal education is very much on the minds of our member school faculties.
Second, there is a deep confidence, some might call it hubris, that the doing and disseminating of legal scholarship will continue largely unabated. This is not to minimize the impact of challenged budgets on how law profs do their work. However, no one I have visited with on behalf of AALS regards the scholarly enterprise as a luxury or an imposition and no one sees the current pressures as a beginning of a crowding out of scholarly discourse and creative engagement with ideas and efforts at tackling urgent matters of legal reform. The self-selection that draws significant numbers of talented lawyers to the legal academy will preserve, so long as law schools survive in the basic form that they exist presently, the good, ambitious work that our faculties pursue in their research, writing, and speaking.
Decline of Lawyers? Law schools quo vadis?
My Northwestern colleague, John McGinnis, has written a fascinating essay in City Journal on "Machines v. Lawyers." An essential claim in the article is that the decline of traditional lawyers will impact the business model of law schools -- and, indeed, will put largely out of business those schools who aspire to become junior-varsity Yales, that is, who don't prepare their students for a marketplace in which machine learning and big data pushes traditional legal services to the curb and, with it, thousands of newly-minted lawyers.
Bracketing the enormously complex predictions about the restructuring of the legal market in the shadow of Moore's Law and the rise of computational power, let's focus on the connection between these developments and the modern law school.
The matter of what law schools will do raises equally complex -- and intriguing -- questions. Here is just one: What sorts of students will attracted to these new and improved law schools? Under John's description of our techno-centered future, the answer is this: students who possess an eager appreciation for the prevalence and impact of technology and big data on modern legal practice. This was presumably include, but not be limited to, students whose pre-law experience gives them solid grounding in quantitative skills. In addition, these students will have an entrepreneurial cast of mind and, with it, some real-world experience -- ideally, experience in sectors of the economy which are already being impacted by this computational revolution. Finally, these will be students who have the capacity and resolve to use their legal curriculum (whether in two or three years, depending upon what the future brings) to define the right questions, to make an informed assessment of risk and reward in a world of complex regulatory and structural systems, and, in short, to add value to folks who are looking principally at the business or engineering components of the problem.
Chief Justice Goldberg? A SCOTUS counterfactual
I am reading Lee Levine's and Stephen Wermiel's The Progeny, which traces the history of New York Times v. Sullivan and subsequent cases and Justice Brennan's efforts to control development of that area of First Amendment law. Arthur Goldberg makes a brief cameo in Sullivan and Garrison v. Louisiana as a third voice on the Court (along with Justices Black and Douglas) pushing for absolute First Amendment protection for all criticism of government and public officials, before resigning (at LBJ's urging) in summer 1965 to become UN Ambassador and to allow LBJ to appoint Abe Fortas to the Court.
So a counterfactual (and maybe this has been written about): What if Arthur Goldberg had not resigned from the Court?
Short term, The Progeny shows that the early path of post-Sullivan defamation cases might have been different. Goldberg aligned t with Black and Douglas for the broadest First Amendment protection (beyond Brennan's actual malice), while Fortas went in the other direction, on one occasion all by himself. Certainly football coach Wally Butts does not keep his defamation judgment if Goldberg rather than Fortas is occupying what at the time was called "the Jewish seat."
What about longer term? Chief Justice Warren supposedly wanted Goldberg to succeed him as Chief. We probably do not get the insanity of the failed nomination of Fortas to be Chief. We definitely do not get Fortas' subsequent pressured resignation from the Court. Do we get a Democratic Chief in 1968 (Goldberg? Brennan? Someone else, and if so, who?), instead of Warren Burger two years later? Would Goldberg have been filibustered the way Fortas was? And if Goldberg becomes Chief, we get someone other than Harry Blackmun in that associate justice seat, another LBJ nomine in 1968 (likedly Homer Thornberry of the Fifth Circuit, who was nominated to Fortas's seat when Fortas was nominated as Chief). In either event, Goldberg lived until 1990; does he become a 20+-year Justice? (or was too otherwise-ambitious and distracted, believing he could be Governor of New York or President).
If nothinge else, does Flood v. Kuhn come out differently? Goldberg likely would have been a third for Flood on the Court, which might have moved other people. More importantly, Goldberg no longer can represent Flood, so he no longer can deliver one of the worst arguments in the Court's history.
Friday, June 06, 2014
Did the Martinez Sum Rev Apply or Change the Law?
Last week, the Supreme Court issued an unusual pro-criminal defendant summary reversal in the Double Jeopardy case Martinez v. Illinois. According to the Court, summary treatment was appropriate in part because the Illinois courts had failed to adhere to "what we have consistently treated as a bright-line rule." Ironically, however, Martinez's main long-term effect may be to increase uncertainty as to whether the rule in question is actually that bright after all. Martinez is an illustration of the marginal legal changes that often accompany what appear or purport to be simple applications of law.
Pregnancy and information overload
A non-law (although sort of policy) post: Yesterday's Times published "The T.M.I. Pregnancy", on the drawbacks of the wealth of available pre-natal information. The author's daughter-in-law went through a tense pregnancy in which various tests suggested possible problems (including small size, low birthweight, and a short longbone). While obviously beneficial, the extra information that is now available makes the whole experience nerve-racking.
Nine years later, I can sympathize.
Like the author's children, we did the series of genetic tests targeted for Ashkenazi Jews (our O.B. called it the "Jewish Panel") and waited anxiously for the results. The first ultrasound detected an ecogenic focus, a calcium deposit on the developing heart and a soft possible indicator of Down Syndrome; more anxiety and a long weekend waiting for the results of other tests for Down (all were negative--and the focus ultimately disappeared, although not for awhile, so my wife still was slightly worried). Then the doctors were concerned about fetal size (my mother-in-law and sister-in-law both carried very small), which meant weekly ultrasounds for the final six weeks of the pregnancy. At the last ultrasound, 2 1/2 weeks before the due date, they became concerned about size and amniotic fluid and recommended immediate delivery (I made the mistake of reading the report as we drove back to the O.B.). While in the hospital and hooked to the fetal heart-rate monitor (the machine that goes ping), the fetal heart rate tumbled, prompting the doctor to recommend--and us quickly to accept (my precise words were "Get her out of there")--an immediate C-Section (the doctor insisted it was not emergent, but a non-emergency C-Section is like minor surgery--it is what happens to somone else). Our daughter was small but within range and just fine.
It's a bad combination, really--lots of scientific and medical information, but nothing you can know in the moment and nothing you can do if the information is negative, other than wait, hope, and pray.
St. John's Law School: Home of the Prediction Theory of Law
For the second year in a row, St. John's Law School is dominating Bloomberg Law and SCOTUSblog's Supreme Court Challenge. Two of my former Constitutional Law students (who ended up coming in first and third last year) are sitting pretty in the fifth and sixth spots. And a new group of SJU competitors, auspiciously named "The Federalists," are poised to strike at number seven. Right now, nobody's beating the great Goldstein...but there's still a lot more game to play.
Thursday, June 05, 2014
'Bring Back Our Girls' - Failure to Enforce the Rule of Law as a Crime Against Humanity
The media has been saturated with stories of violence against children and women in developing countries and the lack of meaningful action by government officials. As a recent example, hundreds of girls in Nigeria were kidnapped from a boarding school and Nigerians have criticized the government for failure to sufficiently act. In India, two girls were raped and hung from a mango tree while, villagers allege, the police stood by. In Pakistan, a pregnant woman, while literally standing on the courthouse steps of a high court, was stoned to death by relatives even though such "honor killings" are illegal.
Many developing countries have well-written laws dealing with such issues as violence against women and children, bonded labor, property grabbing, and the general administration of justice, but a large swath of the most vulnerable part of the population (the poorest, the women, and the children) fail to receive protection or justice. No doubt, there is a rule of law problem.
Rule of law issues are complex. Developing countries do not have the funds to enforce laws. Citizens of developing countries are often unaware of their rights and protection under the law. Corruption is a problem throughout law enforcement agencies and the justice system, from the police to the prosecutors and the judges. The international community needs to do more to help battle this corruption (of course, this is not to say that we don't have our own major corruption problems on the domestic front). The rule of law problem is so pervasive in some of these countries that all the good NGOs do by providing food, education and health care is overshadowed by the violence that the most vulnerable populations face daily. Focus (and funds) should be shifted away from simply providing material aid, and instead more attention should be given to establishing the rule of law.
It doesn't matter how healthy or educated a young girl is if she is raped without any recourse or murdered without any justice. This is the subject of my current research project where I argue that the failure by high ranking government officials to enforce their countries' laws could establish a crime against humanity under the Rome Statute. A systematic failure to protect a large portion of the population (i.e., women and children) from murder, rape and other inhumane acts fits the definition of a crime against humanity. There are some potential problems with this analysis, though.
Correcting the Crack/Powder Cocaine Sentencing Disparity
Yesterday, SB 1010 passed in the California Senate, and it is on its way to the Assembly. The purpose of the bill is to eliminate all disparity between the sentences for possession with intent to sell of crack and powder cocaine, by reducing the sentence for the former from 3, 4, or 5 years, to 2, 3, or 4 years. It also eliminates the differences in quantities (a 1:2 ratio in California) between the two drugs for a variety of manufacturing offenses and mandatory prison sentences.
For those unfamiliar with California sentencing, we do not have a sentencing commission. Our sentences are meted out by the legislature, and felony sentencing follows a "triad" of offenses. After Cunningham v. California (part of the Apprendi line of cases), the judge can pick any of the three sentences (but nothing above, below, or in between).
The passage of SB 1010 is a reminder of how much the zeitgeist has changed. Four District Attorneys--in Los Angeles, Santa Barbara, Santa Clara, and San Francisco--are supporting the proposition. In a few short years, the crack/cocaine disparity has lost favor fairly dramatically.
That the disparity is proxy for racial discrimination is now a commonly held perspective (see here and here), but it is not a wall-to-wall consensus. There are still commentators who believe that the addictive power per molecule justifies a disparity, and others who attribute the rise in urban crime in the 1990s to the crack epidemic. As many readers know, the Obama administration reduced the federal disparity from 100:1 to 18:1. With public climate about crack sentencing considerably altered since the 1990s, I think we can expect SB 1010 to pass in the Assembly in August and reach Governor Brown's desk soon.
cross-posted to California Correctional Crisis.
Wednesday, June 04, 2014
Ashker v. Brown Receives Class-Action Status
The struggle against solitary confinement in CA continues. This week, U.S. District Court Judge Claudia Wilken awarded Ashker v. Brown class action status, enabling the inmates to challenge long-term solitary confinement beyond their particular circumstances.
A bit of background (for more than a bit, go here): California has been building and using supermax prisons with SHU units since the 1980s. There are two main ways to find oneself in solitary: either you are disciplined for an infraction of prison regulation, or you are suspected of an association with a gang. In the former case, your stay will be limited; in the latter case, you could be placed in solitary confinement indefinitely, with your only options of departure being "parole, snitch, or die." The second of these consists of a process called "gang validation", in which the person provides information on other gang members--a process that yields a lot of inaccuracy because of the unhealthy incentives. The result is that people have spent years, and sometimes decades, in regimes that cause untold medical and mental health hardships, without human contact, with limited access to books, and sometimes, double-celled in very close quarters (which sort of defies the purpose and is, in Keramet Reiter's words, "differently horrible.")
The struggle against solitary confinement has led CA inmates to conduct three hunger strikes, the last of which was fairly recent and claimed at lesat one death that I know of. The background to the hunger strike is best explained in this fascinating read. The strike ended with a legislative promise to conduct hearings about the effects of solitary and the humanitarian implications. Said hearings were, indeed, conducted, and yielded a bill that, if enacted, would limit the correctional authorities' ability to inflict indefinite solitary confinement.
At the same time, litigation proceeded, with today's decision to grant class action marking one more step toward a public debate about the value of this punitive, cruel regime.
Setting traps in a deposition
A while ago, I linked to a New York Times Verbatim video, in which actors recreate depositions, based on the transcripts. In this one, a lawyer gets increasingly agitated as he goes round and round with the deponent about the meaning of "photocopier." At the time, I missed this feature on the lawyer taking the deposition, David Marrburger, a partner at Cleveland's Baker-Hostetler. Marburger states that in reality he was not angry or agitated during the deposition; he actually enjoyed stringing along the deponent (the exchange goes on for 10 pages), who clearly had been prepped by his lawyer to obfuscate, in a way that was going to make him and the defendant look bad. Watching the reenactment, it was pretty obvious what the deponent was doing and pretty easy to guess why. While the video is funny, the background story provides a nice lesson both for lawyers defending depositions against doing this and for lawyers taking depositions about how to handle it.
Personal Precedent in Bay Mills
Justice Scalia recently went out of his way to acknowledge that he'd made a mistake. No, I'm not talking about his much ballyhooed factual error from last month. Instead, I'm talking about last week's decision in Michigan v. Bay Mills Indian Community, where Scalia's separate dissent drew attention to a substantive change in his views on tribal sovereign immunity. Meanwhile, Justice Ginsburg dissented separately in Bay Mills in order to underscore her persistent opposition to several strands of sovereign immunity doctrine.
These dissenting opinions in Bay Mills showcase an underappreciated aspect of Supreme Court decisionmaking -- namely, each justice's special attention to his or her own past decisions, as distinguished from the decisions of the Court. This parallel and sometimes disruptive system of individualized stare decisis might be termed "personal precedent."
Constitutional Legitimacy and Constitutional Interpretation
This is the fourth summer in which I am teaching a summer seminar on constitutional theory (which I like to bill as “the most fun one can possibly have in a law school at 7:30 on a Friday morning”). One of the things I’ve picked up along the way is that my students find themselves much more comfortable assessing the array of competing approaches to constitutional interpretation if we spend some time at the outset discussing the question of what it is that legitimates the Constitution in the first place.
The question of constitutional legitimacy and its connection to interpretation is something that, to my way of thinking, assumes much less prominence in con law scholarship and teaching materials than it should. I’ll focus on teaching. Constitutional law is frustrating for a good chunk of students due to its lack of firm footholds. In pretty much everything else in the first-year curriculum there’s at least rough agreement on the aims of the body of law under study, and thus there are accepted premises from which to argue. In Con Law, in contrast, almost everything is up for grabs. Gerhardt, Griffin, Rowe, and Solum (whose Constitutional Theory book I use) capture this nicely in their opening sentences: “A colleague likes to say that ‘the trouble with constitutional law is that nobody knows what counts as an argument.’ It may be more accurate to say that plenty of people think they know what does or should count, and that they often disagree.”
Stress and Dissent: Reading Geithner and Warren
If you’ve read the books and academic articles or even watched the movies about the financial crisis, you’ve mostly heard a unified and compelling narrative. On the cynical end, Geithner, Paulson, and Bernanke were Wall Street cronies in bed with the largest banks, the vampire squids like Goldman Sachs, and they used taxpayer money to bail them out. The more generous and nuanced view is that they made unprecedented moves to bail out TBTF banks because the big banks had too much power and sway over them.
Geithner’s cleverly-named “Stress Test” is the Treasury Secretary’s attempt to convince us that everything we believed was wrong. (You can feel the struggle of Geithner trying to pull at the dominant narrative by watching the painful and uncharacteristically not-funny 45-minute interview with Jon Stewart .) Geithner sat at the very center of the storm from beginning to end. First as head of the New York Federal Reserve, the regulator most entwined with the Wall Street firms, he oversaw the early rumblings of crisis as well as the rescue of Bear Stearns and the failure of Lehman Brothers. Then, as Treasury Secretary, he oversaw TARP, the auto bailout, Dodd-Frank and every other aspect of the financial rescue. Geithner knows what we think happened and he addresses each of our facts with other facts, each opinion with an insider’s take and each objection with a “reality check.” He did not want to bail out banks for the bank’s sake. He expresses disdain for their excess, stupidity, and herd behavior. He wants us to know that his team bailed them out to save the economy and the public from their collapse. The fear that drove him was not Wall Street failure, but America’s demise. He and his team were convinced that “there would have been shantytowns again” if they mishandled the crisis. And once the war was started, it was necessary to use "overwhelming force."
The Flawed NRC Report: What Incentivizes Prosecutors?
(This is Part 8 in my criticism of the recent National Research Council report on incarceration. Here are Part 1 (drug war), Part 2 and Part 3 (longer sentences), and Part 4, Part 5, Part 6, and Part 7 (admissions and prosecutors).)
As my earlier posts have made clear, that the NRC report does not really focus on prosecutors is disappointing, given the apparently outsized role they have played in driving up prison populations. As a result, the report’s policy recommendations do not target the real causes of prison growth. Given how generally understudied and under-regulated prosecutors are, this represents a truly lost opportunity.
Compounding this error is the fact that when the report does talk about prosecutors, it does so poorly. In this post, I want to examine the report’s analysis of the political incentives of prosecutors. The motivations it highlights are likely not the core ones driving prosecutor behavior, and it worth considering both why those factors aren’t so important and what some important ones could be.
The Future of Polyamorous Marriage
Last summer, as the LGBT community rejoiced over the Windsor and Perry decisions, polyamorous activists spoke out to remind us that true marriage equality has not been achieved yet (here and here are some articulate posts about this.) The Bay Area polyamorous community has held a couple of political summits since the decisions, and in both of them several activists expressed their bitterness about how the LGBT community, who they vocally and actively supported in their struggle for marriage, "threw them under the bus" and distanced itself from them as part of its legal strategy.
Indeed, you may remember that this actually came up in the oral argument in Perry. Justice Sotomayor asked Ted Olson:
If you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restrictions with respect to the number of people, with respect to -- that could get married -- the incest laws, the mother and child, assuming that they are the age -- I can -- I can accept that the State has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left?
Mr. Olson responded:
Well, you've said -- you've said in the cases decided by this Court that the polygamy issue, multiple marriages raises questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it's prohibiting conduct. If it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.
It's selecting them as a class, as you described in the Romer case and as you described in the Lawrence case and in other cases, you're picking out a group of individuals to deny them the freedom that you've said is fundamental, important and vital in this society, and it has status and stature, as you pointed out in the VMI case. There's a -- there's a different --
Olson’s response is problematic on various levels.
Tuesday, June 03, 2014
A Sponsored Announcement from West Academic
The following guest post is authored by Prof. Michael Vitiello of McGeorge.
Finding bad news about legal education is easy. And some of the bad news is deeply troubling. No one in legal education can be insensitive to the slowly recovering employment market and to concerns about student debt. But some of the gloom and doom about law schools is just wrong.
In 2011, David Segal wrote a series of articles that appeared on the front page of the New York Times. His articles did not say anything new about legal education. But the appearance of his views on the front page of the Times made Segal’s voice important.
Some of Segal’s criticisms are legitimate. But one aspect of his critique was galling. In one article, after observing that young lawyers have spent over $150,000 for their legal educations, Segal commented, “What they did not get, for all that time and money, was much practical training.” Segal also contended that the law school curriculum has changed little since the days of Dean Langdell. Segal’s portrayal of legal education was stereotypical and one dimensional.
When I graduated from law school 40 years ago, the statement about limited practical training was true. Even then, law schools were putting in place legal clinics and volunteer programs to give students on-hands experience. To continue to insist that little has changed in the past three decades demonstrates a lack of awareness of what goes on in law schools around the country.
Start with changes in skills based courses like legal writing and moot court.
The Internet and Violence on Campus
I want to thank Dan Markel and everyone at PrawfsBlawg for the opportunity to guest blog this month. As a regular reader, I am honored to officially join the conversation.
Because of the recent tragedy at the University of California, Santa Barbara, where Elliot Rodger murdered six students, I have been thinking a lot about violence in school. Although Rodger wasn't a current student and didn't use the internet to threaten one specific individual, his video messages posted on YouTube were clearly directed at students at the school. I have written about the intersection of the internet and school violence, but my focus was on K-12 public schools, not public universities. These cases raise complex First Amendment and due process challenges. When does a public school have the authority (or the requirement) to regulate off-campus speech that bullies or threatens other students or school officials? As for K-12 public schools, the courts are all over the board in their decisions and the U.S. Supreme Court has yet to rule on the issue. Because the pedagogical goals are different in college than in K-12 school, these issues become even more complex in the public university setting.
In a recent case, Tatro v. University of Minnesota, the Minnesota Supreme Court held that a public university could discipline a student enrolled in a professional program for posting inappropriate comments on Facebook that violated her academic program rules without impinging on her free speech rights. The University disciplined Tatro, who was enrolled in the undergraduate mortuary science program, for posting off-colored remarks about a cadaver in an embalming lab. The Court only sided with the University because the University's rules were narrowly tailored and directly related to the professional conduct standards of the student's program. Although this case did not raise issues about violent comments created off-campus, it does bring to the forefront issues that desperately need resolution.
Bond and the Doctrine of One Last Chance
Yesterday's decision in Bond v. United States provides the latest example of perhaps the most salient methodological theme of the Roberts Court. Faced with an attractive first-principles argument that threatened immediate doctrinal and real-world disruptions, the Court punted. Instead of resolving the constitutional issue presented, the Court found a barely tenable way to avoid resolving the issue altogether, thereby creating the possibility of a more secure opportunity to rule at a later date. In a recent Green Bag essay, I called this phenomenon "the doctrine of one last chance." If Bond really does fit that description, then the Court wouldn't simply have engaged in conventional avoidance, which is constant over time. Instead, the Court would have engaged in super-strong but strictly time-limited avoidance. If the issue arose again, the Court's hesitancy would evaporate.
From Reproductive Crimes to the Prison Industrial Complex
This coming October, the Hastings Women's Law Journal will hold a special symposium on family and reproduction in prison, which is incredibly timely. Several important stories from the last few years have raised serious concerns about the correctional authorities' responsibility for women's health, pregnancy, and birth in prison.
First, as you may recall, there were efforts to restrict the notorious and common practice of having incarcerated women give birth while shackled. It's fairly obvious why this is an extremely barbaric practice, and this ACLU report adds some important details.
And just a couple of days ago, this was in the news. Nicole Guerrero, a pregnant inmate in Texas' custody, was placed in a solitary cell, repeatedly begging for help as her water broke and she was in labor, her cries for care ignored by the guards. Guerrero's baby died, and the chronology that led to this horrific tragedy includes a nurse who works for a private healthcare contractor. Guerrero is pursuing a §1983 lawsuit against the prison.
There's hardly anything I can say about this truly horrible incident and the cruelty that led to it that won't trivialize it, and the basic facts behind it do not seem to be in dispute.
Wow, there is a right that is clearly established
According to the Eighth Circuit, it is the right to destroy an American flag for expressive purposes. And an officer who does not know that is the plainly incompetent officer who does not warrant qualified immunity and should be liable for damages.
A police officer in Gape Girardeau, MO arrested Snider--pursuant to a warrant obtained from a county judge on an application from the county prosecutor--for violating the state's flag desecration law. According to the case, neither the officer nor the prosecutor (nor, we must assume, the judge) knew about Texas v. Johnson; the charges were dismissed and Snider was released when a reporter called the prosecutor and told him about the case. Snider then filed a § 1983 action, claiming the arrest violated the First and Fourteent Amendments.
The Eight Circuit agreed that the officer (who conceded that Snider's rights were violated) lacked qualified immunity. Johnson and United States v. Eichman established in 1989-1990 that someone could not be punished for using the American flag to express an opinion and a reasonably competent officer in 2009 (the time of Snider's arrest) would have known that. The officer was not saved by the judge issuing a warrant; while a warrant typically indicates the officer acted in an objectively reasonable manner in effecting an arrest, this case fell within the exception where no reasonably competent officer would have concluded that the warrant was valid, given the clearly established state of the law.
There is some other good § 1983 stuff in this case, including the unexplained intervention of the State of Missouri, attorney's fees (imposed in part on the State, even though it could not have been liable in the case), and the rejection of a failure-to-train claim against the city (one could argue that an officer who does not know something as basic as Johnson has not been constitutionally trained) because the State, not the local government, is responsible for training local police officers.
Monday, June 02, 2014
Prosecutorial Discretion in Bond
Who would have thought that Bond v. United States -- today's much-awaited decision involving the Chemical Weapons Convention -- would have so much to do with prosecutorial discretion? Yet prosecutorial discretion appeared repeatedly in the Court's consideration of the case, serving different purposes each time.
Please stop, Chief
From Bond v. United States:
"[T]he global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard." (in fairness, the kitchen cupboard language was in the Third Circuit's opinion). Earlier, Roberts posed a hypothetical about "[a]ny parent . . . when, exasperated by the children’s repeated failure to clean the goldfish tank, he considers poisoning the fish with a few drops of vinegar." (Seriously? Seems like extreme parenting).
I have wondered before whether Robert's penchant for these flourishes makes for good writing or whether it is incredibly distracting. I am still wondering.
The Flawed NRC Report: Why The Mystery of the Missing Prosecutor is So Damn Important
(This is Part 7 in my criticism of the recent National Research Council report on incarceration. Here are Part 1 (drug war), Part 2 and Part 3 (longer sentences), and Part 4, Part 5 and Part 6 (admissions and prosecutors).)
I’ve already written three posts on the NRC report’s failure to think about the prosecutor, and I have a few more to come. But I thought it could be helpful to pause for a moment, take a step back, and make it crystal clear why this oversight represents such a profound and disappointing failure.
Obviously, if the goal of a report is to explain how x happened, and it misses the major cause of x, that is in and of itself an important point to make. But my frustration goes much deeper than that, and it is rooted in the fact that this is not just a paper published in a leading journal, but a National Research Council report: these are the sorts of reports that can really change policy, and as I will make clear here, publishing a report with so glaring a blind spot is a tragically missed opportunity.
Law and Society, Minneapolis 2014
Hi, Everyone, and thank you, Dan, for the gracious invitation for a recidivist visit.
I'm just back from the Law and Society Association's Annual Meeting in Minneapolis, where I had the great pleasure to co-chair CRN 27, Punishment and Social Control. Terrific meeting. The panels were great, people's work was of truly high quality, and commentary was incisive, constructive, and elegant. We also had some great social times.
Several interesting threads of thought came up at the meeting. First, there is a growing interest in misdemeanors, street policing, and quality-of-life offenses, both through quantitative and qualitative eyes. People are increasingly seeing cops, prosecutors, and jail officials acting as "valves" distinguishing these folks from the "real" criminals. I read this trend as part of the general contraction of the recession-era punishment mechanism that John Pfaff discussed here last month - but with the introduction of more mechanisms to punish only as many people as we can afford comes a retrenchment of the system's idea of who the "real" criminals are.
A Little Help Here, Supreme Court?
I want to first thank Dan and the PrawfsBlawg folks for letting me holdover through June. May went by much too quickly (and without any patent law excitement from the Supreme Court). Hopefully the month of June will be a little more laidback, albeit filled with good stuff to blog about.
Perhaps as a good omen, or at least a positive start to the month, the Supreme Court issued two patent opinions this morning: Limelight Networks v. Akamai Technologies and Nautilus v. Biosig Instruments.
I have some thoughts on Limelight (which came out as I had hoped), but I want to talk about the Nautilus case and a possible pattern that concerns me, especially given the Supreme Court's ever-growing interest in taking patent law cases. Concisely, but cynically, I think the best way to describe a number of the recent Supreme Court patent cases is "Thanks for nothing."
Rotations and Sundry
Greetings and Happy June!
This month I'm delighted to welcome back Dean Dan Rodriguez from NW, Hadar Aviram (Hastings), and Chad Oldfather from Marquette. I'm also excited to introduce Naomi Goodno from Pepperdine, who's with us for the first time. Our May guest Kristen Osenga from Richmond will stay on for another month too. Many thanks to you all from May and earlier for joining us (again). Belated thanks also are due to Richard Re, who's joining the UCLA faculty and is going to be one of our designated Court-watchers for a while. Next, although he himself abjures all moral relevance of desert, John Pfaff from Fordham warrants our gratitude for his important (and intermittent) series on the failings of the conventional narrative of prison growth. My hope is that John's continued platform here will shift the national conversation on criminal justice matters more productively. Finally, as SCOTUS winds down its term, I imagine Jack Chin will chime in with his excellent series on the legal academy and its influence on the Roberts Court.
It's an auspicious time to be part of the conversation. Prawfs celebrated its 9th anniversary in April and now had (according to Sitemeter) the highest traffic in terms of page views that we've ever had: over 279,000 in May. We're slated to have another great book club later this month thanks to Matt Bodie's efforts. And I'm happy to report that West Academic has invested some confidence in this site with sponsorship efforts that I hope will continue and strengthen over time. Please check out their coursebook catalog through the button ad and consider getting in touch with them (Pam Siege Chandler) if you're thinking of working on a casebook!
That's all for now.
Oops, one last reminder. Carissa Hessick (a regular contributor to Prawfs) and I are going to be locking down registration for the CrimFest 14 Conference at Rutgers this week, so if you've not already registered please do so today or tomorrow. You can find the relevant information at this link. Carissa recently had a baby, so what better way to celebrate the new addition to the Hessick family than saying: Hey, I'll come hang out with that baby's mama in Newark in July!
Bad day for the Federal Circuit
Today was a pretty bad day for the Federal Circuit, as it was unanimously reversed twice in decisions from the April sitting (meaning it took less than two months for the Court to do the reversing). While we should not expect SCOTUS to simply rubber stamp the Federal Circuit because of that court's patent expertise, the Court has now unanimously reversed the Federal Circuit three times this term alone. Anyway, this seems a good excuse to highlight the work of Paul Gugliuzza of Boston University, who combines expertise in IP and Fed Courts and has written extensively on the Federal Circuit and its expansion (for good and ill) of its power.
The Flawed NRC Report: The Mysterious Case of the Missing Prosecutor, Part 2
(This is Part 6 in my criticism of the recent National Research Council report on incarceration. Here are Part 1 (drug war), Part 2 and Part 3 (longer sentences), and Part 4 and Part 5 (admissions and prosecutors).)
As I showed in a previous post, to the extent that the NRC report focuses on admissions as driving prison growth, it focuses on a measure (“admissions per arrest”) that is too broad to be useful: it is not so much “admissions per arrest” that are driving growth as it is “filings per admission.” Prison growth, at least since the 1990s, is specifically a story of increased prosecutorial punitiveness.
In other words, prisons are run by the state, but prisoners come from the county. To understand prison growth, you must understand what is happening across counties. Yet the NRC report, like almost all academic work, focuses almost exclusively on state- (or, even more often, and even less usefully, national-) level factors.
Most academic work, but not all. Consider the following results:
Saturday, May 31, 2014
The month of May has come quickly to an end. Much thanks to Dan and the PrawfsBlawg team for letting me visit this month. Thanks also my very supportive colleagues at Texas Tech including reader extrordinaire, Professor Eric Chiappinelli, to everyone who read the pieces, who commented on-line, and who contacted me directly. For those interested in thoughtful commentary on legal education, the place to be in addition PrawfsBlawg and TaxProf blog this summer is a third member of the family, Law Deans on Legal Education edited by I. Richard Gershon, Dean and Professor University of Mississippi School of Law, Paul E. McGreal Dean and Professor of Law University of Dayton School of Law, and Cynthia L. Fountaine, Dean and Professor of Law, Southern Illinois University School of Law
I look forward to visiting again in September.
With best wishes,
How do we know that the version of any case, statute or regulation we read is an accurate one
The recent kurfuffle about Supreme Court Justices changing the text of already released opinions raises the larger question of how we can ever know whether the version of any statute or case or regulation we are reading is the “final one.” It also highlights the problem of of linkrot that is also affecting the reliability of judicial opinions.
Given how important a problem it can be if the text we rely on is wrong, its interesting that authenticating information places no role in the legal curriculum. I never gave it a thought until one of my dissertation advisors asked me to write a methodology section that explained to lay readers “where statues and opinions come from” and “how do we know they are reliable.” Here's a highly abbreviated version with some helpful links (reliable as of posting, May 31, 2014).
For statutes, all roads led to the National Archives and the Government Printing Office which operates the FDYS. The National Archives operates the Office of the Federal Register (OFR), which receives laws directly from the White House after they are signed by the U.S. President..” The accuracy of these texts is assured by “[t]he secure transfer of files to GPO from the AOUSC [that] maintains the chain of custody, allowing GPO to authenticate the files with digital signatures.”
The GPO assures us that it “uses a digital certificate to apply digital signatures to PDF documents. In order for users to validate the certificate that was used by GPO to apply a digital signature to document, a chain of certificates or a certification path between the certificate and an established point of trust must be established, and every certificate within that path must be checked." Good news.
The GPO has developed a system of “Validation Icons”--explained further on the Authentication FAQ page.
Editors at the OFR then prepare a document called a “slip law,” which “is an official publication of the law and is admissible as ‘legal evidence.’” It is the OFR that assigns the permanent law number and legal statutory citation of each law and prepares marginal notes, citations, and the legislative history (a brief description of the Congressional action taken on each public bill), which also contains dates of related Presidential remarks or statements.” Slip laws are made available to the public by the GPO online.
The system is more complicated when it comes to judicial opinions. Each of the Eleven Circuit Courts of Appeal issues its own opinions. For example, this is the website of the Fifth Circuit Court of Appeals, The GPO has joined with the Administrative Office of the United States Courts (AOUSC) “to provide public access to opinions from selected United States appellate, district, and bankruptcy United States Courts Opinions (USCOURTS). Currently the collection has cases only as far back as 2004As indicated by the term “selected,” this database only contains some of the federal courts.
The official source for the opinions of the U.S. Supreme Court of the United States is the U.S. Supreme court itself. Pursuant to 28 U.S.C. § 673(c), an employee of the U.S. Supreme Court is designated the “Reporter of Opinions” and he or she is responsible for working with the U.S. Government Printing Office (GPO) to publish official opinions “in a set of case books called the United States Reports.”
According to the Court, “[p]age proofs prepared by the Court’s Publications Unit are reproduced, printed, and bound by private firms under contract with the U.S. Government Printing Office (GPO). The Court’s Publications Officer acts as liaison between the Court and the GPO.” Moreover, “the pagination of these reports is the official pagination of the case. There are four official publishers of the U.S. Reports but the court warns on its website that “[i]n the case of any variance between versions of opinions published in the official United States Reports and any other source, whether print or electronic, the United States Reports controls.”
To some exent this latest information suggesting that there may be different versions of opinions at different times fits in well with the history of the court. As most of us know, the Supreme Court did not have an official reporter until the mid-nineteenth century and did not produce a written opinion for every decision. Moreover, it has only been recording oral arguments since 1955 and although now issues same day transcripts this was hardly always the case. Also now available are the remarks that the Justices make when reading their opinions. But, and no link is missing, I don't have one, in hearing Nina Totenberg give a key note presentation at ALI in 2012 about her days at the court, she pointed out that when she began covering the Court this was not available. And that it was not unusual for notes to differ on exactly what the Justices said.
Donald Sterling v. NBA: Your new Civ Pro exam
Donald Sterling sued the NBA to stop his league-imposed punishment and the forced sale of his team. A $ 2 billion offer from Steve Ballmar was accepted by Sterling's wife, Shelly on behalf of the trust that owns the team, having had Donald declared mentally incompetent; the NBA has approved that deal and canceled a planned hearing of the Board of Governors (the other 29 owners) to strip Donald of ownership. The lawsuit, with Sterling and the trust as plaintiffs against the NBA, asserts claims for a violation of the state constitution, federal antitrust, and various breach of contract claims; it seeks damages and an injunction halting the NBA-imposed punishments (a $ 2.5 million fine and lifetime suspension from the NBA) and the hearing to terminate his ownership.
Friday, May 30, 2014
The Flawed NRC Report: No Mention of Realignment!
In my previous post, I pointed out that the NRC report overlooked the centrality of prosecutors to prison growth, and thus ignored the importance of counties. In my next few posts, I will expand on the signficance of this oversight. But in the meantime, I wanted to write a short post to highlight just how badly the NRC over-emphasizes national and state factors over county-level ones.
At no point--nowhere, not a single time--does the report discuss Realignment in California.
It talks briefly about Plata v Brown, the Supreme Court case that upheld the 9th Circuit's decree that California's prison system was constitutionally deficient. It talks briefly about the fact that following Plata the state has been releasing numerous prisoners. But that's it.
I searched the entire pdf for the word "realignment" and got nothing relevant. To be careful, I then checked every time the word "California" appeared. Nothing.
For those not up on California penal policy, Realignment is potentially one of the biggest penal policy changes in recent history. In my next post, I will discuss in more detail how a potentially major cause of prison growth is that sending an inmate to prison is basically "free" to a DA: as a county official, the DA doesn't care about the cost incurred by the state for the defendants he sends to prison. In fact, the problem is even worse: since jail and probation are county expenses, the DA likely prefers to send them to prison, since he looks tougher and pays less.
Realignment is California's effort to directly confront this moral hazard problem. Simplifying greatly, under Realignment, counties are required to detain "triple-nons" (non-violent, non-sexual, non-serious offenders), no matter how long the sentence. In other words, if a county DA wants to lock up a low-level offender, the county jail now has to pay for it.
Now, the details of how Realignment is playing out in practice are incredibly complex. But the fact that California has chosen to go this route to reduce its prison population indicates that the state with the largest state-level prison population feels that a major cause of prison growth is county-level budgetary moral hazard, and it has adopted a revolutionary process to try to correct it.
Yet in a twenty-five page chapter on the causes of prison growth, the NRC committee gives the moral hazard problem two sentences (almost in passing), and it never once talks about Realignment.
This is a shocking oversight, and it indicates that the report truly does not provide a viable explanation of where prison growth is coming from, and thus that it is in no position to recommend how to regulate it.
FSU Law VAP position available
Florida State University College of Law seeks applicants for a new Visiting Assistant Professor (VAP) in business/commercial law for the 2014-2015 academic year. The VAP will hold a one-year appointment which is designed to help and train future law professors. Candidates will be selected based on their prior work and educational experience, and teaching and scholarly potential. FSU is committed to achieving equal opportunity in all aspects of University life. Applications are encouraged from people of color, individuals of varied sexual orientations, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of the law school.
If interested, please email a Curriculum Vitae (including a research agenda) to Associate Dean Manuel Utset (mutset at law.fsu.edu).
The Flawed NRC Report: The Mysterious Case of the Missing Prosecutor, Part 1
As I argued yesterday, the claim that longer sentences drove prison growth in the 1990s is at worst wrong and at best an extreme oversimplification. Which means that prison growth must be driven by admission-side factors. In fact, I have a paper that points to one factor in particular: the prosecutor. Unfortunately, while the NRC report acknowledges that admissions droves growth in the 2000s, it reaches that conclusion in way that makes it miss the role of the prosecutor.
This is perhaps the single biggest error in the report’s analysis of the causes of prison growth, so I want to spend a few posts looking at how it makes this mistake, and how failing to identify the central role of the prosecutor poisons efforts to make meaningful policy recommendations more generally.
Thursday, May 29, 2014
Does History Support Investigative Searches Incident to Arrest?
Under Arizona v. Gant, police who have arrested the driver of a car have authority to search the car’s interior when it is “reasonable to believe” that the car contains evidence of the crime of arrest. This holding is anomalous, since it allows for warrantless searches that are purely investigative. Yet the rule established in Gant is poised to expand. In the pending cases United States v. Wurie and Riley v. California (which I discussed here), the governmental parties argued in the alternative for the adoption of a Gant-like rule in the cell phone context. Thus, the Court is now considering whether to allow purely investigative searches of cellphones incident to arrest.
In this post, I’d like to complicate the historical picture that underlies Gant‘s embrace of purely investigative searches incident to arrest. The basic difficulty with that historical picture is this: it derives an authorization for searches from historical cases that govern seizures.
On class supplements
I have written a supplement (available at your local supermarket checkout line). I assign supplements in every course I teach, including selecting one casebook that combines the best elements of a treaty treatise and a casebook. But the overuse of supplements and study aides, especially in 1L courses, feels as if it is getting out of control. Two related problems: 1) Students are using supplements and study guides in lieu of the class reading and 2) Students are using too many study guides and it is all getting confusing.
Some examples: 1) On Civ Pro, I gave question (from a recent 5th Circuit case) that basically lined up with Nicastro, yet a significant number of students never mentioned Nicastro, but discussed the competing opinions in Asahi (which is what a supplement written before 2011 would have discussed). 2) Several students meeting with me after grades came out told me how hard they worked in the class, always indicated by how many different supplements and study guides and audio recordings they used, never by how much they focused on the actual assigned cases, rules, and statutes.
Do others notice this problem? And is there a way to get it under control, to make students focus primarily on the primary sources and let the supplements be just that?
A Flawed NRC Report: Prison Populations and Sentence Length, Part 2
As I noted in my previous post, the NRC report's focus on longer sentence length failed to address multiple papers--admittedly written by me, so not exactly a neutral observer here--that provide at least credible empirical results that longer sentence length really isn't that important. Here I want to turn to problems with the results the NRC itself relies on. That the report ignored dissenting positions is made all the worse by the fact that its own analysis is quite weak.
A Flawed NRC Report: Prison Populations and Sentence Length, Part 1
Perhaps the most common explanation for prison growth is that sentences have simply gotten longer. It’s an understandable position, given the frequency with which we hear about long sentences for crimes that seem not to deserve them. And legislatures have spent years passing tough new laws, such as three-strike laws, truth-in-sentencing provisions, and just tough new punishments in general.
But for all its intuitive appeal, the connection between prison growth and sentence length is complicated and likely overstated. Unfortunately, the NRC report’s treatment of this issue is remarkably simplistic. The best that can be said of it is that it significantly and unacceptably understates the complexity of the issue; the worst is that it oversimplifies to the point of just being wrong.
More statutory interpretation from Donald Sterling
Sterling leads off by challenging the NBA's reliance on the secretly recorded conversations as evidence, which gets interesting. He points to California Penal Code § 632(a), which prohibits recording confidential communications without consent, and § 632(d), which excludes "evidence obtained as a result of eavesdropping upon or recording a confidential communication . . . in any judicial, administrative, legislative, or other proceeding." From this, Sterling insists he has a constitutional right not to have his private conversations recorded or having the evidence of his conversations used against him. That seems overstated--that the state offers a statutory protection against being recorded in furtherance of the constitutional right of privacy does not convert the right against being recorded into a constitutional right.
When To Reach The Merits In Qualified Immunity Cases
Yesterday’s decisions in Plumhoff v. Rickard and Wood v. Moss addressed different claims on the merits but shared an important procedural issue. In Plumhoff, the Court reviewed a violent car chase and an excessive force claim under the Fourth Amendment, while Wood involved an allegation that secret service agents engaged in viewpoint discrimination against anti-Bush protestors. Both cases involved findings of qualified immunity, but only one of the cases (Plumhoff) expressly went on to opine on the merits. This intriguing pair of decisions illustrates the Court’s varying and often unexplained willingness to reach the merits when finding qualified immunity.
Wednesday, May 28, 2014
Schemas, Shortcuts, and Software
We are constantly being provided with information -- whether we want it or not -- about what is going on in the world around us. Luckily our brains are equipped to handle the data (at least most of the time). In cognitive science, schemas are structures that help us to organize and interpret this information efficiently. We also use heuristics, or shortcuts, to process information quickly. And for the most part, these are good things. We may have a schema that organizes the data we need to drive safely and when faced with an unexpected obstacle, we have heuristics that help us to avoid that obstacle in time.
(NB - I'm still making sure I'm understanding the cognitive science terminology, etc. - see my earlier post on the subject...the point of this post isn't the precision of the cognitive terms but rather some implications in law.)
This raises at least two concerns for me. First - while it certainly is important to be able to process legal issues quickly, when considering questions about the law and its applications, should we always be focused on efficiency and speed or are there times when getting it right, even when it is slow or inefficient, should take precedence? Second - what happens when the schemas and heuristics we are working under are wrong?
The Problematic National Research Council's Report on Incarceration: Some Initial Thoughts
The National Research Council, the well-respected research arm of the National Academy of Sciences, recently released a putatively authoritative report on the causes and implications of US incarceration growth. Sadly, it appears to be a deeply, profoundly flawed report. It is, in short, a rehashing of the Standard Story that I have argued time and again lacks real empirical support.
Dangerously, this report gives the Standard Story the NRC’s seal of approval, which will only increase its hold on policy-makers’ perceptions. The New York Times has already written an editorial pushing the NRC’s Standard-Story arguments, and no doubt it will be cited widely in the months to come.
So in the posts ahead, I want to dig into the report more deeply. I will certainly acknowledge what it gets right, but my sense so far is that it is one rife with errors. Many of these points will be ones I have made before, but they are clearly points that need to be repeatedly. In this post, I want to point out (once again) the troubling ways in which drugs crimes are given too much weight.
Is Wood v. Moss generalizable?
Wood v. Moss turned entirely on the reasonable security rationale of keeping protesters out of "weapons range" of the President, even if that meant moving only certain speakers out of visual and audio range of their target. But does this rationale apply to all public officials who have security details? Is the President sui generis for security purposes? Or can the state troopers who protect, say, Gov. Chris Christie also claim a security interest in moving protesters out of weapons range? Certainly the President has a larger security apparatus and is more of an obvious target. But the security logic of Wood is not so obviously limited, especially since there was no evidence that anyone intended to harm the President here (other than the protesters' disagreement with him).
Tuesday, May 27, 2014
A Separate Concurrence on the Kinsley Review
There have been some heated reactions to Michael Kinsley's review of Glenn Greenwald's book. (I'm not sure there are anything other than heated reactions these days, given the nature of online commentary. I do not consider this an unqualified good.) The Times's public editor or ombudsperson, Margaret Sullivan, has written a somewhat silly commentary on the controversy, which the Times unwisely but understandably has given prominent coverage on its web site tonight. At the Volokh website, Will Baude argues that the Times was right to publish Kinsley's review, although as I read it he is saying more than that--is saying that Kinsley is substantially right.
Of course the Times had every right to run the review and should not, as Sullivan argues, have edited out the heart of its colorable argument because it might be wrong or because, as she intimates, it constituted an unpardonable assault on journalism's amour propre. But Kinsley's argument is also basically correct. In that I agree with Will. But because we take different positions on how to get there and they are relevant to a good deal of my work, I thought it was worth spelling this out. (By way of disclosure, I have not read all of Greenwald's book, but I have read the final chapter, which is the relevant chapter, and skimmed the remainder of the book.)
Whether you care much about the whole contretemps is of course your own affair. If you do or would like to, however, the key is this paragraph in Kinsley's review:
The question is who decides. It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald.
Mr. Kinsley’s central argument ignores important tenets of American governance. There clearly is a special role for the press in America’s democracy; the Founders explicitly intended the press to be a crucial check on the power of the federal government, and the United States courts have consistently backed up that role. It’s wrong to deny that role, and editors should not have allowed such a denial to stand. [I interrupt to say that this last clause is what leads me to call Sullivan's commentary silly, and to suggest that she intimates that the problem with the statement is its assault on the press's amour propre.] Mr. Kinsley’s argument is particularly strange to see advanced in the paper that heroically published the Pentagon Papers, and many of the Snowden revelations as well.
Will disagrees with Sullivan, and agrees with Kinsley, in that--like his fellow blogger Eugene Volokh--he believes that "journalists have the same constitutional rights (with the same limits) as other citizens," that the freedom of the press should be viewed in purely technological and not institutional or teleological terms. At least I think he does. He might simply mean to say that there are arguments to this effect, that they are reasonable and backed by good authority, and that it is therefore silly for Sullivan to suggest that Kinsley's argument was beyond the pale. If that's all he means, I join his opinion fully. (Although I wouldn't rely too much on the majority's discussion of the point in Citizens United, which was loosely constructed and weakly made. Eugene's article is much better than that. Still, I suppose the Supreme Court is an authority.) To the extent that he means to subscribe to this argument more fully, however, I part ways with him. And yet I come to the same conclusion he does.
The awfulness of Wood v. Moss
OK, if Town of Greece did not get me too worked up, Tuesday's decision in Wood v. Moss (summary here), while not surprising, is so bad as to have me going the other way. And this was a Ginsburg opinion for a unanimous Court, so I am all alone on the island on this one. The Court held that two Secret Service agents enjoyed qualified immunity because no case law had held that agents engaged in crowd control were obligated to ensure that competing groups are at comparable locations or given equal access at all times when reasonable security concerns are in play. Sounds simple enough, but inside the opinion is a lot of really bad stuff.
First, the Court makes explicit (it previously was implicit) that the absence of qualified immunity is an element of the claim, rather than qualified immunity being an affirmative defense. The Court stated that the plaintiff must plead facts, under the Twiqbal standard, showing that the defendants violated a constitutional right and that the right was clearly established. So this means qualified immunity is the default starting point--a plaintiff must carry the burden of persuasion both as to the facts on the ground and the state of the law.
Second, for the third time, the Court assumed without deciding that a Bivens could be used for First Amendment claims (the issue was not preserved below). Eventually some defendant will be smart enough to preserve this issue (the hints are there) and the Court will resolve it--and likely not in a good way.
Should "National Consensus" Matter?
We’ve seen this before. Today, in Hall v. Florida, the Court reached a controversial Eighth Amendment holding based on some combination of a perceived "national consensus" and the Court's own "independent judgment." This two-step approach has come in for criticism, as the Court's national consensus analysis seems carefully tailored in each case to suit the Court's independent judgment. Yet, despite the criticisms, national consensus arises anew in case after case after case.
In this post, I'd like to ask whether the national consensus analysis, as currently employed, is worth retaining. My answer is yes -- but not because a supportive consensus is a necessary feature of Eighth Amendment holdings. Rather, resort to public views can still play a useful role in preventing the Court from defying national consensuses in favor of certain punitive practices.
Book club on "Making the Modern American Fiscal State"
Just wanted to provide a heads-up that on Tuesday, June 10, we'll be hosting a book club on Ajay Mehrotra's new book, "Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877-1929." Joining us for the club will be:
- Reuven Avi-Yonah, University of Michigan Law School
- Steven Bank, UCLA School of Law
- Matthew Lindsay, University of Baltimore School of Law
- Susan Morse, University of Texas School of Law
- Julia Ott, The New School
- Nicholas Parrillo, Yale Law School
Hope you can join us.
Cornelia Kennedy, RIP
Cornelia Kennedy, a former judge on the United States Court of Appeals for the Sixth Circuit, died on May 12. Her obituary appeared in the New York Times a few days ago. Kennedy was, among other things, the first woman to serve as a law clerk for the DC Circuit, the first woman to serve as chief judge of a federal district court, the first woman to serve as a member of the Judicial Conference of the United States, one of the first women to be short-listed for a seat on the Supreme Court, and so on--a veritable crescendo of "firsts" and impressive achievements. A passage from the obituary reads:
Arriving at her new post in Cincinnati, Judge Kennedy was startled to be presented with a hot plate. The only previous female judge to have served on the Sixth Circuit had used it while male colleagues dined at the University Club of Cincinnati, which excluded women then.
Judge Kennedy was eventually the first woman to be admitted to the club, though she objected that it continued to refer to itself as a “gentlemen’s club” in a newsletter.
Well worth remembering. I must add that although the fault may be in my searching, I have been astounded by how little attention her death received, certainly prior to the Times obituary but since then as well, and most certainly including no mention on the many sites that I would have expected to give it at least a line of space. I hope this redresses the balance a little.