Monday, December 14, 2015
And just like that, a Bergdahl update
Breaking news in Bergdahl -- the convening authority referred his case to a general court-martial. A general court-martial is the highest level of court-martial and can adjudge the full penalties authorized by the punitive statutes. Here is the Washington Post report.
According to Bergdahl's lawyer, the preliminary hearing officer recommended that the convening authority refer the case to a special court martial, which is roughly equivalent to a misdemeanor court. One of the unusual features of the military's preliminary hearing is that the hearing officer's findings and recommendations are not binding on the convening authority. The convening authority can take it or leave it, and here, the convening authority left it. This feature has been criticized but was not reformed in the latest revisions of the preliminary hearing -- partly because members of Congress thought hearing officers were often biased against victims in sexual assault cases and Congress did not want their "mistakes" to be binding.
Serial, Season 2
Serial is back, this season covering the story of former-POW/current court-martial defendant Bowe Bergdahl. My colleague Eric Carpenter will blog the season here, posting weekly commentaries on each episode. Eric served in the Army for twenty years, both in JAG and as a combat officer, and he teaches military justice, so he can write about both the military and legal angles to the story.
Serial Season 2
Thank you to Howard for giving me another guest blogger opportunity, this time to comment on the current season of Serial. This season, Sarah Koenig and crew have turned their attention to the Bergdahl case. For those hoping for another murder mystery, this season won’t be that. Rather, it appears that Koenig’s goal is to explain why Bergdahl left his post and what the conditions of his captivity were like. In the first season, the ultimate question was factual: did Adnan commit the murder? In this season, I expect the ultimate question will be normative: should Bergdahl be prosecuted?
This will be the first time we have heard Bergdahl's side of the story. We don’t have much information about that because the government has issued a protective order on the investigative report that contains these details. If the government had just released that report, as I discussed here, there probably wouldn’t be much story left for Serial to tell and I’m not sure the Serial team would have even picked up the case. Because of that decision to close the report, the government now gets to deal with this publicity, and I am not sure that it will be good.
One reason why I am excited that Serial picked up the story is that it will focus some public attention on the military justice system. I teach a class on military justice where we spend a lot of the semester being critical of certain aspects of the system. My punch line for the course, though, is that the military justice system is probably the fairest system in the country. Sure, there are some strange rules that might seem unfair, but the system does something great – it fully funds its public defenders, and every accused gets one.
What the NFL Can Learn from Administrative Law
Problems with off field behavior have long plagued the National Football League (NFL). A study of player arrests since 2000 shows 713 reported incidents where players had run ins with the law as reported by the media. As these incidents have become more high profile, the NFL Commissioner's power over player misconduct has come under scrutiny. The case involving Minnesota Vikings running back Adrian Peterson was upheld by an arbitrator. However, other cases involving Greg Hardy, Tom Brady, and Ray Rice were overturned or penalties reduced in Federal court or by an arbitrator. While prior to the current Collective Bargaining Agreement (CBA), the Bountygate sanctions (as applied to the players, not the coaches) were overturned.
Recently, in Hewitt v. Kerr, the Missouri Supreme Court questioned the impartiality of an arbitration process where the Commissioner directly appoints the arbitrators. The Court stated:
"Our recognition of the potential for very real bias is not intended to impugn the integrity of the Commissioner or his appointee. However, the very nature of bias is often subtle and unseen to the person or persons holding such bias. For that reason, it is imperative that an arbitration proceeding be overseen by an arbitrator selected in an objectively impartial and unbiased manner."
Pete Rose remains banned from Major League Baseball
MLB Commissioner Rob Manfred announced today that it would not reinstate Pete Rose, concluding that Rose had not presented credible evidence that, if reinstated, he would not again violate the prohibition on gambling on baseball games and on his own team. Manfred emphasized both that Rose continues to bet on baseball and that he has not fully owned up to the full scope of the gambling activities that lead to the ban in the first place (for example, he continues to deny betting on Reds games as a player in 1985-86, despite records indicating that he did, and he continues to insist that he did not selectively bet on the Reds, which is contradicted by documentary evidence). There also is an interesting discussion of how the commissioner should reconcile the mandatory lifetime ban imposed for gambling under Rule 21 with the broad discretion vested in the commissioner under Rule 15 to reinstate a suspended player; Manfred's solution was to say that reinstatement was warranted under Rule 15 only with "objective evidence" that there was no risk of a repeat violation of Rule 21.
Manfred also took a short detour to emphasize that he was not making any determination about Rose's eligibility for the Hall of Fame and that any debate over his eligibility or qualifications "must take place in a different forum" and turn on different questions and policy considerations. This is only partially right, of course. Rose is not in the Hall almost almost entirely because of Rule 3E of the Baseball Writers Association of America Election Rules, which provides that "Any player on Baseball's ineligible list shall not be an eligible candidate;" that rule was passed in 1991 (two years after Rose accepted his lifetime ban) specifically to eliminate any chance that Rose (and, to a lesser extent, Joe Jackson) would slip into the Hall. So while Manfred was not deciding whether Rose is eligible, his decision here basically dictates the outcome of the Hall vote.*
* Hall criteria include integrity and sportsmanship, so there is a chance that sportswriters might decline to vote Rose in because of his gambling misconduct, even if he were not on the ineligible list, just as they have kept out suspected PED users (Clemens, Bonds, etc.) who remain on the eligible list and thus eligible for the Hall.
Tuttle in the Balance reviewed by Above the Law
Hi there. Me again. If you read my post of about 20 minutes ago closely, you may have realized that it was surprisingly mostly free of obnoxious self promotion. Also it did not mention my pet hedgehog in any way.
Therefore, I would like to now add a dash of obnoxious self-promotion by linking to Above the Law's review of my new novel Tuttle in the Balance, in which the reviewer said that the book "is a cross between American Beauty and the works of Christopher Buckley." This review is notably better than the recent one on Amazon which called the book "complete and utter trash."
Also, tonight (Monday) at 6 pm I'll be reading from and discussing the novel at Teaism Penn Quarter, 8th & D in Washington DC, in an event sponsored by the American Constitution Society. Tomorrow (Tuesday), I'll be doing the same thing, along with special guest hilarious former Prawfer Brian J. Foley, at the Ethical Society of Philadelphia (1906 Rittenhouse Square) at 7 pm. There will be after-parties. Won't you come? It will be fun.
Finally, here is a video of my pet hedgehog trying to eat my wife's hand.
Publishing with a Trade Press
Because I've chosen to publish with trade presses rather than university presses (even the book I'm working on for Stanford University Press is probably going to be published by the press's new trade imprint Redwood Press), scholars who are thinking about going that route sometimes ask me what they should do--do they need an agent, how do you find one, etc. So I thought I'd share some of the things I usually say when I'm asked. I'm sure others who have published with trade presses will have their own thoughts on the issue, and I hope they'll share their advice as well.
First, trade presses buy books on the basis of proposals, rather than full manuscripts (this is for non-fiction; for fiction the whole book needs to be done). The proposal generally consists of a short overview section which describes what the book will be about, a short bio, an annotated table of contents, a short "publication specification" section that says when the book will be done, how long it will be, and whether it will have any special features like maps or charts or paintings of fruit saying weird things, a "marketing analysis," which is where the author tries to describe who might buy the book (trade presses are very interested in who the audience for the book is going to be), and a section that lists "comparable titles," which is not a literature review but rather a list of what books are out there that are like your book and how your book is different from them. Finally, you usually need to include a sample chapter, which should not be the first chapter. Of course, through the sample chapter and the overview, you need to communicate that you can write for the general public. For goodness sakes, do not include footnotes. There's a great book called "Thinking Like Your Editor" which describes the proposal-writing process really well. I highly recommend it.
Once you have a proposal, you have to decide whether to try and get an agent. To sell to the big trade publishers, you absolutely need one. But there are some awesome smaller trade presses which will accept non-agented submissions. My thrice-publisher Beacon Press is one of them, and the trade imprints of university presses will also take submissions directly from authors. Just go to their websites and find the right editor and send him or her a catchy query email asking if they would like to read your proposal (see below).
Apparently, crowdfunding can rely on the adage, "the way to a man's heart is through his stomach." A Baltimore crab house has offered Orioles star Chris Davis free crab cakes for his life and for the next two generations of his family for re-signing with the Orioles. It reminds me that we might have underemphasized the purely symbolic value and benefit to fanfunding. It need not be about raising significant amounts of money or outbidding competing fans, but about expressing support for the player in any way, including unique ways that reflect a connection to the particular city.
Saturday, December 12, 2015
A Funny Thing Happened on My Way to the Academy
In my introduction, I mentioned that I planned to post on my nexus to academia. While I am an Administrative Judge, I feel like an academic in my heart. I still enjoy writing law review articles, working on the projects of the American Law Institute, and reading PrawfsBlawg.
I went on the market twice. The first time I received many screening interviews and call backs. I found that I was not a good closer when it came to the second round. I could have chosen a better topic for my job talk, and sought more academically oriented references. The second time, I received an offer. It was from a wonderful law school with a great faculty. To this day, I still think it was a dream job. So, why am I not there?
Friday, December 11, 2015
Crowdfunding college sports
The New York Times tells of a Clemson fan who has launched UBooster, a site designed to allow college sports fans to pledge money to help attract high school athletes to the donors' preferred schools--in other words, exactly what Dan, Mike McCann, and I proposed. (H/T: Gregg Polsky). According to the story, fans pledge money to a particular recruit, with a note urging him (or her) to choose a particular school; no more money can be contributed once the athlete commits to a school and the money is held in trust until after the player finishes college. The money is not funneled through the university and there is no direct contact between UBooster and either the athlete or any particular school. For that reason, the founder, Dr. Rob Morgan, believes this does not violate NCAA rules and, in fact, offers a way to allow fan involvement while easing the financial burden on universities to do more to help athletes.
The former head of the NCAA's Committee on Infractions calls this "far more sophisticated than the hundred-dollar handshake," but I am not sure it is a meaningful difference in kind. Student-athletes are still receiving money because they are student-athletes and because of their athletic ability, and the lack of a direct connection among student-athlete, school, and donor does not change that; in fact, the NCAA's point is specifically to keep "strangers" from giving student-athletes money, regardless of connection to the school. Nor does the four-year delay in getting the money change much--it is still money for playing a sport, whether the benefit is received immediately or in a few years. I also do not believe the absence of an express quid pro quo (the student-athlete gets the money, regardless of where he ultimately plays) makes a difference; the NCAA regs are designed to avoid bidding wars and allowing the athlete to keep everything is not going to alleviate (or necessarily disincentivize) such bidding wars.
Mind you, I am not speaking in support of the NCAA's regs or the current model of college sports. I am only saying that, under those rules, any student-athlete who participates in this (and any school for which he plays) is in for some problems.
Sinatra's Mug and Postmortem Publicity Rights
Yesterday I listened to an entertaining and fairly illuminating Planet Money podcast about Frank Sinatra's publicity rights and his estate's (officially, Frank Sinatra Enterprises') control over the commercial use of his image. Aside from a light-hearted, music-filled history of California's right of publicity statute--which Sinatra helped spearhead in the wake of Elvis Presley's death--I was particularly taken by the journalist's interview with his daughter, Tina, who heads FSE. The interview raises important questions about children serving as stewards for their parents' cultural legacies.
Publicity rights are often justified via an analogy to patent and copyright; they incentivize investment in celebrity persona and/or ensure that celebrity laborers reap the commercial value of their efforts. At times in the podcast, both the producers and Tina Sinatra speak in these terms and emphasize Frank's financial legacy to his children and the concern with others free-riding--"ripping him off"--after he died. Although Frank did not leave his children much in the way of cash, he left lots in the way of valuable IP, which FSE has used to develop an "upscale luxury brand" around Frank's image, e.g. lounges, restaurants, special edition whiskeys.
Historians Take On New Originalism
I highly recommend the Fordham Law Review’s recent forum issue, in which several prominent historians offer their critiques of “New Originalism.” This forum follows a 2013 symposium of constitutional theorists and philosophers of language, which explored the interpretive methodology espoused (most prominently) by Larry Solum, Randy Barnett, and Keith Whittington. If you want a primer, probably the best place to start is Solum’s “Reader’s Digest” version of his “Semantic Originalism,” but I’ll attempt a very quick and dirty (and undoubtedly flawed) summary here.
Per the New Originalists, sound constitutional explication take place in two distinct phases: (1) Interpretation—in which we discover the text’s “semantic meaning” or “communicative content”; and (2) Construction—in which we construe the text’s “legal meaning” vis a vis some modern controversy. In the first phase, we discover communicative content by looking to the language conventions that existed when the text was ratified. This “original public meaning” can then be “fixed” or frozen at a discrete historical moment. We then carry that fixed meaning into the construction phase, where it constrains—absent weighty countervailing reasons—our conclusions about the text’s legal content.
Cert Granted in Universal Health Services v. United States ex rel. Escobar regarding the Meaning of Fraud in the FCA
On December 4, the Supreme Court granted cert in a False Claims Act case, Universal Health Services v. United States ex rel. Escobar, that may help clarify confusion as to when knowing failure to comply with the law constitutes fraud against the government. The DOJ recovered $1.9 billion in healthcare fraud in FY2015, but the complex regulations surrounding healthcare make it difficult for courts to determine when a known regulatory violation legally constitutes fraud.
This case began in tragedy. In 2009, Julio Escobar and Carmen Correa lost their daughter, Yarushka Rivera, to a drug-related seizure while she was under the psychiatric care of Universal Health Services, Inc. They were outraged to discover that the staff prescribing medication to Yarushka were not licensed, certified, or even eligible for certification. Escobar and Correa filed a whistleblower complaint under the False Claims Act, alleging that Universal Health had defrauded the federal government, which had paid for Yarushka’s medical care through the MassHealth system. While all parties agree that the treating staff should have been licensed and certified, federal courts have been unsure whether Universal Health’s behavior legally constitutes fraud under the False Claims Act. The circuits are split as to whether fraud first requires Universal Health to explicitly certify continued compliance with “thousands of pages of federal statutes and regulations,” or whether Universal Health might have impliedly certified under certain conditions. Some circuits have held that knowingly specifying the wrong physician could constitute fraud, but knowingly identifying the wrong supervising physician would not constitute fraud. The resulting circuit decisions have created confusion and uncertainty as to the circumstances for which fraud liability attaches. This case should help clarify these issues.
David Kwok at the University of Houston has a different take on the analysis: he proposes using fair competition as the basis for determining fraud liability. If a competitor could comply with the regulatory scheme, then a company’s knowing failure to comply with the regulation should constitute fraud under the False Claims Act. This proposal makes it easier for companies to predict potential liability and for whistleblowers to understand which cases to bring forward. Given the Supreme Court's interest in these issues, Professor Kwok's work is extraordinarily timely and important. You can read his Article, A Fair Competition Theory of the Civil False Claims Act, which was recently published in the Nebraska Law Review, here.
Wednesday, December 09, 2015
Does it matter?
Last week, Dana Milbank insisted that Donald Trump is a bigot and racist. His point is that Trump had crossed some line: "[A]t some point, you’re not merely saying things that could be construed as bigoted: You are a bigot." Put differently, "the large number of instances over an extended period add up to a pattern of bigotry." It is a label he will not place on any other candidate, not even Ben Carson, who has said similarly stupid things, just less often.
But does it really matter whether Trump is a bigot or just says bigoted things? Does the label really mean that much? Does it make him any less qualified for the presidency? Isn't it enough that he says anti-X things and proposes anti-X policies; do we need the next step of saying he hates X to make the point? Is it that eighth instance of saying bigoted things--what pushes him over the line to "a bigot"--that makes the difference? Or can I know that I will not vote for him (and that no right-thinking person could vote for him) based on the first seven?
Space Mining Legislation
My husband is a ufologist. You read that right. He's a UFO guy. He investigates aliens and the paranormal. I have to say, if I weren't a law prof, I'd be envious of his pretty incredible job. (As a law prof, I am envious of my own job. Who else gets paid as well as we do to write, teach, and think creatively about the law?)
Although my husband and I have very interesting dinner-time discussions (as you might imagine, we tend to talk about his work rather than mine), there is little rigorous substantive overlap. But not today. Today, he blogged about new space mining legislation, signed into law on November 25, which allows the commercial exploitation of minerals and water from asteroids and the moon. As the ever faithful and loving wife, let me momentarily direct you to his blog post here. Then, of course, you should redirect yourself back to PrawfsBlawg to continue reading the posts on this website.
And Some, I Assume, Are Good People . . .
America is, almost entirely, a nation of immigrants. And every immigrant family has a story. The rise of Donald Trump and his ugly nativism made me think a lot about my family’s story. My Great Grandparents, Marie and Julius, were Flemish and French-speaking Belgians. Like many others, they fled the ashen remnants of the First World War for the U.S., in 1920. Many like to romanticize Ellis Island, and early twentieth century U.S. as a welcoming place. But the America Marie and Julius faced was a hostile place for new arrivals — particularly Catholics (like them) and Jews. As Martha Minnow recently noted “in the first part of the twentieth century, nativist anxieties about waves of immigrants and Bolshevism fueled movements to ‘Americanize’ the children of newcomers.” Nativist groups — particularly “the KKK, Federated Patriotic Societies, and Masons” — “sounded white supremacist, anti-Catholic, and anti-Semitic tones while pushing assimilation of immigrants into ‘American’ culture — meaning white Protestantism.” Marie and Julius faced this racism. If a religious litmus test were in place then, they surely would have been turned away.
Mr. Trump also likes to distinguish families like mine from many of today’s refugees by casting immigrants into two lots: “legal” and “illegal.” But you see, by this metric too, my family fails. As they disembarked on Ellis Island, arrivals were examined by doctors with the goal of excluding those deemed medically unfit for entry. During this process, Marie, then eight-months pregnant, became separated from her husband. Julius, a decorated veteran of the Belgian Army had punctured his stomach fighting in WWI. The physician who initially examined him identified this malady. He gave Julius a card that would instruct another physician to more closely examine this wound. As he stood in line, worrying about his wife, Julius struck up a conversation with another French-speaking immigrant. The other man held a card that said “Heart.” Inspiration struck. On Julius’s suggestion, the two traded cards. A few hours later, a second physician whisked my Great Grandfather into the country, quickly concluding that he had a strong heart. Later, he found my Great Grandmother among the waiting throng on the New Jersey waterfront. They made their way to Ohio where they would eventually acquire a farm, which they lost during the Depression, but later reacquired. They raised five children.
According to Mr. Trump’s understanding of citizenship, Julius might be viewed as “illegal” and my own Grandfather, the bravest man I ever knew, an “anchor baby.”
I didn’t know Julius. He died young. But my Great Grandmother lived a long life. She told me this story. Our family’s story.
I chose to share it in the hope that it might move some of Mr. Trump’s supporters to see the faces of their own loved ones in the Syrian and Central American refugees they wish to turn away. I also hope — remembering my Great Grandmother’s admonition that no one is beyond redemption — that it might still be possible to win over Mr. Trump’s own heart and mind. Though judging by his antics, I doubt he has much use for either.
Tuesday, December 08, 2015
Essays and Objectivity
It’s been a little bit hard to keep up with my posting obligations over the last week because we are in the midst of exams, which means test drafting and lots and lots (and lots) of harried, last minute student visits. All of which has led me to this perhaps fluffy post with a question about exam essay grading.
I began my teaching career in the high school context, where I taught, among other things, American Government to seniors. In that capacity, I graded a lot more student research paper projects than I generally do now. In the early going, I didn’t have much in the way of grading methodology—I would read the papers, make some comments in the margins, wrap up my thoughts in a final paragraph, and assign a number grade (usually between 65 and 100). I didn’t have to worry about curves or anything like that, and all was well. Then one day a funny thing happened.
Bell v. Hood lives
I am beginning to think of Bell v. Hood the way Justice Scalia thinks about about the Lemon Test: "Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried." The Court's recent turn to a broader and sharper awareness of what is merits should require the interment of Bell, which strips courts of jurisdiction over federal claims that are "wholly insubstantial and frivolous." After all, if the question of whether the conduct challenged is reached (and thus prohibited by) a law (or, as I like to say, "who can sue whom for what conduct and what remedy") is a merits question, it should always be a merits question, regardless of the strength of the claim of right.
There were some questions during argument in Shapiro v. McManus hinting that Bell might be on the table, especially given recent jurisdictionality cases that did not even cite Bell. Alas, it was not to be. A unanimous Court, per Justice Scalia, held that any case challenging the constitutional of congressional apportionment must be referred to a three-judge district court and cannot be dismissed by the single district judge. (I wrote about the case for SCOTUSblog). The limited exception, for "insubstantial" constitutional claims, incorporates Bell for "wholly insubstantial and frivolous" claims only, while "[a]bsent such frivolity," failure to state a claim for relief remains a judgment on the merits.
Bell thus survives and is now explicitly incorporated into the three-judge court analysis. In other words, some weak-on-the-merits claims, if the merits are weak enough, still can be dismissed for lack of jurisdiction. And so we continue to be haunted by unwarranted and unnecessary jurisdiction/merits overlap.
Trump and Religious Exclusion from the US: The Mormon Precedent
Commenting on Donald Trump's proposal to exclude all prospective Muslim immigrants from the United States, Nancy Morawetz of NYU, one of the nation's leading scholars and practitioners of immigration law, was quoted in the NY Times as saying she could not "recall any historical precedent for denying immigration based on religion." There is at least one historical example, the 1891 federal exclusion of polygamists, which, in the Immigration Act of 1917, was revised to make clear that it applied to those "who practice polygamy, or believe in or advocate the practice of polygamy." 39 Stat. 874, 875 sec. 3. The law's targeting of pure belief, independent of conduct, is paralleled by Davis v. Beason, 133 U.S. 333 (1890), in which the Court upheld the Idaho Territory's disenfranchisement of polygamists, or those who belonged to an organization which advocated or believed in polygamy. The Court explained:
Technically . . .
I have no interest in wading into the morass over Judge Posner and Eric Segall's NYT op-ed suggesting that Justice Scalia believes that majoritarian religious preferences can trump minority rights--here is Corey Yung's effort, which began on Twitter. Segall responded to criticisms from NRO's Ed Whelan and Northwestern's John McGinnis. The esponse references Scalia's purported comments at Princeton that Obergefell is not directly binding on non-party public officials, to which Segall says "That sentiment is technically correct, but as expressed by a Supreme Court Justice could be considered an invitation to a form of civil disobedience."
This is why I forbid my students from using the word "technically." (Imagine Yoda voice: "There is no technically; only correct or incorrect."). And in this case, Scalia is correct, full stop. Judgments themselves are not binding on non-parties and precedent is only binding on courts in future litigation, not on executive or legislative officials. Scalia's statement is incomplete, as it does not finish the point that the subsequent litigation against recalcitrant officials is binding on those officials (note that Scalia did not suggest that lower courts are not bound by Obergefell) and may impose other costs on them, such as attorney's fees, sanctions for non-compliance, and perhaps some limits on the arguments one can offer in litigation.
It is similarly problematic to suggest that a Supreme Court Justice should not express this legally correct and accurate proposition. If Justices should not explain how constitutional litigation actually operates, who should?
Monday, December 07, 2015
Franchise Tax Bd. v. Hyatt: State Sovereign Immunity, Our Federalism, and Jerry Springer, by Jessica Berch and Chad DeVeaux
Today the Supreme Court heard oral arguments in a case that tackles fundamental aspects of Our Federalism, while addressing a set of facts seemingly torn from a Jerry Springer episode.
The case, Franchise Tax Bd. v. Hyatt, involves a tort suit brought by Gilbert Hyatt, a Nevada resident, who became the target of an audit by California’s Franchise Tax Board (FTB) alleging that he failed to report income earned in California. Hyatt alleges (in his brief) that the FTB auditor assigned to his case became “obsessed” with it. She allegedly went to Hyatt’s “Nevada home, peer[ed] through his window, examin[ed] his mail and trash,” and later “returned to his home to take trophy-like pictures.” The suit also alleges that she breached confidentiality rules by discussing “personal information” about Hyatt with her coworkers and that she unlawfully “enlisted [Hyatt’s] ex-wife and estranged members of [his] family.” Hyatt filed his suit in Nevada state court. California moved for summary judgment because California law immunizes the FTB from liability.
Interestingly, the case involves a role-reversal of the Court’s seminal opinion in Nevada v. Hall, 440 U.S. 410 (1979). Hall (as I explained in a prior article) “involved a tort action brought by California plaintiffs against the state of Nevada. A Nevada employee who had entered California on state business caused a traffic accident, which severely injured the plaintiffs. Nevada law strictly limited the state’s financial liability in negligence actions brought against it. Conversely, California law dictated that state actors enjoyed no greater protection from judgments than ordinary litigants. California’s Supreme Court affirmed a judgment against Nevada that exceeded the liability limits of Nevada law.”
The U.S. Supreme Court affirmed the California court’s judgment, concluding that the State’s courts were not obligated to apply Nevada’s liability limits: “If a federal court were to hold, by inference from the structure of our Constitution and nothing else, that California is not free in this case to enforce its policy of full compensation, that holding would constitute [a] real intrusion on the sovereignty of the States — and the power of the people — in our Union.”
The Hyatt case calls for the Court to reassess (and potentially overrule) Hall. Stephen Vladeck coauthored an amicus brief for Professors of Federal Jurisdiction contending that Hall should be reaffirmed. Professor Vladeck argues that the sovereign-immunity doctrine does not prevent a State “from being haled into the courts of another State.”
Jessica and I agree with Professor Vladeck, but Hyatt sparked our interest for another reason. It could have some (admittedly tangential) ramifications for our ongoing debate over horizontal federalism and the power of states to regulate conduct beyond their borders.
While Jessica and I reach the same conclusion — Hall should not be overruled — we (of course) wish to spin the case to support own views of state extraterritorial power.
50 Years Ago Today: The Declaration on Religious Freedom
On Dec. 7, 1965, Pope Paul VI promulgated Dignitatis Humanae, the Second Vatican Council's Declaration on Religious Freedom, "on the right of the person and of communities to social and civil freedom in matters religious." Here're the opening lines:
A sense of the dignity of the human person has been impressing itself more and more deeply on the consciousness of contemporary man,and the demand is increasingly made that men should act on their own judgment, enjoying and making use of a responsible freedom, not driven by coercion but motivated by a sense of duty. The demand is likewise made that constitutional limits should be set to the powers of government, in order that there may be no encroachment on the rightful freedom of the person and of associations.
The Declaration and its anniversary were the subject of a really good conference, organized and hosted by the Notre Dame Law Review, a few weeks ago. John Garvey, the President of the Catholic University of America (and the former dean of the Boston College Law School) gave the keynote.
My wife and I have been enjoying the tv show 'black-ish since it premiered last year. The show started as an exploration of an African-American from a hardscabble background who has "made it" (living in a wealthy, mostly white neighborhood, sending his kids to a mostly white private school, working in a mostly white ad agency) and how to maintain the family's connection to black culture. It has evolved to the story of an upper-middle-class black family, depicting and taking on (directly or indirectly) racial and cultural issues in a unique way from a unique perspective (see, e.g., this episode), usually through humor and satire. I cannot say how much the African-American perspective has been watered down for a broader audience, but the show seems to retain something of a special voice and context.
We also just started binge-watching The Goldbergs, which is similarly fantastic. It is a semi-autobiographical show about producer Adam F. Goldberg's childhood in suburban Philadelphia in the '80s. The characters are based on Goldberg's real family and friends and he intercuts photos and home movies of the real-life counterparts. The show never reveals what year it takes place (the narrator begins each episode by saying "it was [date], 1980-something"), instead combining pieces from all over the decade into a single pastiche (the kids are seeing Return of the Jedi and listening to New Kids on the Block at around the same time).
Tuttle, Taoism, and my Tour
As someone who studies law and religion, I've long been interested in the question, debated by many legal scholars and philosophers over the years, of whether public officials, including judges, should be able to consult their religious views when deciding difficult, controversial, and indeterminate legal questions. Usually this means Christianity of some sort, but as someone who is more partial to Asian religions, I've always wondered what would happen if a judge became a Taoist of the Lao Tzu/Chuang Tzu sort. If a Christian judge can consult his or her Christian views on, say, abortion, wouldn't it be interesting to know what a Taoist judge might do if she consulted her Taoist views in, say, a death penalty case? For a while I thought I would try my hand at writing a law review article called "The Tao of Law" about this, but when I got down to really considering what I might say, it took about two seconds to realize that the law review genre, magnificent though it may be, was not up to the task of exploring this issue. So instead I wrote a novel.
Today is the official pub date of "Tuttle in the Balance." The novel is about a Supreme Court justice having a mid-life crisis in the middle of one of the biggest terms in recent years. Now, it's true that a recent Amazon review described the book as "complete and utter trash," and it's also true that an agent who rejected the book once said that "the notion of a sixtyish man in that important a position suffering like a 14-year-old girl is probably more true to life than I might wish, but it makes me so uncomfortable that I just cannot enjoy the story," but when you're thinking about buying it, I hope you'll instead put more stock in the opinions of Larry Tribe, who said that, "for a painless lesson in constitutional theory for the layman, underscoring the 'lay,' you’ve got to read this book," or Chuck Klosterman, who wrote that "this is the best — and, I must admit, only— novel I’ve ever read that deftly utilizes the possible reversal of a decision by the Third Circuit Court of Appeals regarding the Establishment Clause as a plot device within a light romantic comedy."
For anyone living in Boston, NY, DC, or Philly, I hope you'll consider coming out to one of my upcoming reading events. I'll be at the Harvard Bookstore on Dec. 8 at 7pm, at Cardozo Law on Dec. 10 at 7pm ("in conversation with" the awesome and hilarious Judge Paul Oetken), at Teaism in Penn Quarter (in DC) on Dec 14 at 6, and the Ethical Society of Philadelphia on Dec. 15 at 7 (w/ special guest, stand up comic, and former Prawf-er Brian Foley) at the Ethical Society of Philly. More details on these events are here. Oh, and over here is a video my son made of our hedgehog trying to eat a blueberry.
Justice Kagan on Textualism’s Success
Justice Elena Kagan recently gave the “Scalia Lecture” at Harvard Law School. The event, which is visible online, consisted of a conversation between Kagan and Professor John Manning. For those interested in interpretive trends at the Court, this video is worth watching. As a scholar-jurist, Kagan speaks both broadly and specifically about her approach to text. And besides being erudite and accessible, the conversation manages to be charming, too.
Kagan’s lecture reinforces a conventional wisdom on textualism’s recent success. Early on (9:10), Kagan beautifully describes the Scalian turn in statutory interpretation while acknowledging its incompleteness. Over time, anti-textualist views have fallen away, so that the center of gravity has moved toward Scalia. Yet Scalia still lies near one end of a spectrum. Both Kagan and Manning adduced evidence of this shift. But the most powerful proof of this claim is the lecture itself. When Kagan, a recent democratic appointee to the Supreme Court, gives a “Scalia Lecture” at Harvard Law School and says (8:25) that “we’re all textualists now,” she has already gone a long way toward proving that point.
But even Kagan’s nuanced lecture, like the conventional wisdom, may give an exaggerated impression of textualism’s ascendance. While certain strong versions of purposivism are all but vanquished, the Court’s most recent term and even Kagan’s own comments suggest that a more moderate, evolved form of purposive reasoning is alive and well.
Benjamin Berger, Law's Religion: Religious Difference and the Claims of Constitutionalism
Benjamin Berger is a terrific scholar of law and religion at Osgoode Hall Law School in Toronto. I'm delighted to note that he recently published a book, Law's Religion: Religious Difference and the Claims of Constitutionalism. I always gain insight from his work and look forward to reading this. Congratulations! Here's the book description and endorsements:
Prevailing stories about law and religion place great faith in the capacity of legal multiculturalism, rights-based toleration, and conceptions of the secular to manage issues raised by religious difference. Yet the relationship between law and religion consistently proves more fraught than such accounts suggest. In Law’s Religion, Benjamin L. Berger knocks law from its perch above culture, arguing that liberal constitutionalism is an aspect of, not an answer to, the challenges of cultural pluralism. Berger urges an approach to the study of law and religion that focuses on the experience of law as a potent cultural force.
Based on a close reading of Canadian jurisprudence, but relevant to all liberal legal orders, this book explores the nature and limits of legal tolerance and shows how constitutional law’s understanding of religion shapes religious freedom. Rather than calling for legal reform, Law’s Religion invites us to rethink the ethics, virtues, and practices of adjudication in matters of religious difference.
“Law’s Religion takes us beyond the familiar liberal legal subject of rights and duties and into a different experience of the law from the edges and the margins. Berger is at his best in conveying the force and significance of what it means to be subjected to and shaped by the culture of law’s rule. An extraordinary achievement.”
(Elizabeth Shakman Hurd, Department of Political Science, Northwestern University)
“Law’s Religion makes an original and important argument as it helps us see the ways in which law shapes the meaning of religion. Situating both law and religion as part of culture, Berger shows us the significance of disputes in which the legal framework defines the religious issues at stake. Both the case analysis and the broader theoretical discussion of the relationship of law and religion are rich, insightful, and carefully argued.”
(Jennifer Nedelsky, Faculty of Law, University of Toronto)
Sunday, December 06, 2015
Remembering Law and Letters
My first blogging experience was as a guest blogger with the Law and Letters blog by Belle Lettre. Belle was an aspiring law professor with a scholarly focus on employment law. I discovered her blog through a link from PrawfsBlawg. We struck up a correspondence, which lead to my short stint on her site. I posted under the pseudonym Zorba after Zorba the Greek, which was an inside joke between us based on one of her posts. The pseudonym was more of an online persona than any concern with what I was writing. It was a lot of fun.
My favorite post was a commentary on working with non-lawyers. I found that many of the programs I supported at the FAA were comprised of individuals with no connection to the legal profession. They tended to view lawyers as popularized on television or books. Whenever I breached the stereotype, I'd receive comments like, "You're the first lawyer I ever liked."
It is nice to come full circle in a manner of speaking with PrawfsBlawg.
State action puzzle
Video captured (link contains multiple videos) numerous incidents of security getting very physical with University of Houston fans attempting to run onto the field following UH's victory in the American Athletic Conference Football Championship. The game was played at the stadium on UH's campus and security was provided by CSC, a private contractor. The most telling images are GIFs of one officer throwing roundhouse punches at a fan lying on the ground and video of another officer body-slamming a fan, only to be loudly called out by two officials in different-colored shirts. UH announced that it is terminating its contract with CSC and looking into any appropriate legal action.
First, it seems pretty clear that CSC and its employees acted under color of state law for any coming § 1983 actions. They were contracted by a state agency to perform the government function of providing security at a public event in a publicly owned stadium. Some might depend on the terms of the contract with CSC and how much control or supervision UH wielded.
Second, I cannot help but notice that most of the student-trespassers (and make no mistake, they are not allowed on the field) shown being tackled are white and many of the security officers are black. It is difficult to not read something into the swift and angry university (i.e., government) reaction, especially compared to the typical response when the victims of police violence are black. This is not to say I am disappointed but UH's response, only that I wonder if it would have been different if the student-trespassers were black and the authority figures white.
Saturday, December 05, 2015
Not a threat, still a problem
Like Paul, I lean towards the less charitable reading of the statement by the producers of Hunting Ground. But I did not read it as a threat to any action. Rather, I read it as a normative position--anyone who publicly disagrees with our position is irresponsible, shows public bias, and contributes to a hostile educational environment. This disagreement makes little practical difference, since my reading of their position still renders discussion or debate about the film impossible--why should they be expected to be debate anyone putting forth such an irresponsible and hostile position? But it is of a piece with some of what we have heard in the recent blow-ups at Mizzou, Yale, etc.--the very utterance of the contrary position deprives me of my safe space, inflicts harm, and violates my rights, thereby giving me a reason not to engage with it.
A Brief Update on the "Movie Night" Post
A few days ago I posted about the AALS's upcoming screening and discussion of the movie "Hunting Ground," which deals with campus sexual assault. I noted the seriousness of the issue and my expectation that discussion after the screening would be varied and useful. But I also noted that the movie has received a number of strong criticisms, some of them related to an incident involving a law school that receives prominent play in the movie. I linked to some of those, and to the filmmakers' detailed defenses of the film (while noting that some of their general statements in defense of the movie are "heated but weak"). I concluded:
Given that one of the filmmakers will be present for the screening and discussion, I assume those points will be fully aired. At the same time, given that [writer/director Kirby] Dick describes himself as "both an activist and a filmmaker" (a common feature of many current documentaries and one that raises important concerns, particularly for those of us with more conventional views on journalism), and that one of the film's producers wrote to . . . [a representative of] a potential interview subject, "We don’t operate the same way as journalists — this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side," I thought that people thinking of attending the screening might want to be aware of these criticisms, and better able to explore them during the discussion.
In light of the hope for full and useful discussion--why else screen a movie by activists, one that has been sharply criticized for bending its narrative toward its goals?--I should note this recent story in the Harvard Crimson, in which the filmmakers, inter alia, double down on their attack on critics. Here's the key paragraph from the story:
In an emailed statement, “The Hunting Ground” director Kirby Dick and producer Amy Ziering . . . criticized the Law School professors, many of whom have been vocal critics of Harvard’s recently overhauled approach to handling sexual harassment cases, for their letter critiquing the film.
“The Harvard Law professors’ letter is irresponsible and raises an important question about whether the very public bias these professors have shown in favor of an assailant contributes to a hostile climate at Harvard Law,” Dick and Ziering wrote.
This places the possibility of useful discussion after the screening, and hence, perhaps, the value of the AALS's choice to screen the film at all, in a somewhat new light. (Given how recent the statement is, I of course don't hold the AALS responsible for not anticipating it, although it is probably true that the filmmakers themselves turn out to have been less than ideal panelists.) There are surely more charitable ways to read that statement. A less charitable, but still reasonable, reading is that the filmmakers are, in effect, threatening any academics who publicly criticize the film, attempting to cow them into silence by warning that any statements will trigger efforts to encourage a Title IX investigation of their institution.
Although I doubt they have a leg to stand on, it's an unfortunate approach, to say the least. I hope that AALS members attending the screening will nevertheless feel free to ask any questions they like, positive or negative, and will press the filmmaker on this particular statement itself. I also hope the screening's moderator will make note of this statement before the discussion starts, both out of fair notice to any would-be questioners in the audience, and to make clear the AALS's view that attempting to pre-emptively chill discussion is no way to address an important and pressing issue.
Friday, December 04, 2015
Not A Traditional Prawf
I want to thank Howard for letting me guest blog this month. I have been a fan and reader of PrawfsBlawg since the beginning in 2005. For me, this is the legal equivalent of being cast as an extra in a Star Wars movie. It really is a dream come true.
As my title suggests, I am not your average Prawf. I am not a Prawf at all. I'm an Administrative Judge with the Federal Aviation Administration. As a general disclaimer, all of the opinions expressed in my posts are my own, and do not represent those of the FAA. Although, I do not plan to write about aviation law.
As for my scholarly background, I am an Elected Member of the American Law Institute, I've published several law review articles over the years, and I have been on the teaching market including receiving an offer. My next post will be about the latter, and my decision to take my current job. It's going to be a great month.
The Johnson Retroactivity Circuit Split Plot Thickens...
A few weeks ago, I wrote a rather lengthy post about the circuit split over whether the Supreme Court's June 2015 decision in Johnson v. United States both (1) is "substantive" (and therefore retroactively enforceable by federal prisoners filing their initial claims for collateral post-conviction relief); and (2) has been "made retroactive" by the Supreme Court (and can therefore provide the basis for a second-or-successive application for collateral post-conviction relief). As I explained then, unlike the typical circuit split, a combination of the jurisdictional limitations imposed by AEDPA and the government's litigating position (that the answer to both questions is "yes") has seemed, at least to date, to deprive the Supreme Court of a "normal" way to resolve this circuit split, suggesting instead that the matter be resolved through the Court's seldom-utilized authority to issue extraordinary writs, including an "original" writ of habeas corpus. As importantly, the clock is running; it's widely believed that AEDPA's one-year statute of limitations will require all Johnson-based claims to be filed by June 26, 2016, no matter when the Supreme Court clarifies its retroactive application.
Well, the plots, such as they are, are thickening...
The CIA Learned From the Master
I'm grateful to Rick for posting an excerpt from that CIA document on organizational sabotage. I was surprised, when vast numbers of people started posting it on my Facebook feed, to find that the Slate article talked in general terms about "toxic workplaces" and that my 'friends' who were posting it--most of them academics--did not immediately relate it to university governance. For, as a commenter on Rick's post notes, it is academic governance to the life. It used to be even more so; when academics actually governed universities, and university governance also involved coordination among and between colleges, it could not more closely have resembled the CIA's pamphlet. Now university governance has been centralized and leadership has been assumed by, essentially, professional managers who may happen to have doctorates in some subject. (On the whole, and for all its costs and losses, flaws and absurdities, I think that is both inevitable and a probable improvement.) But it still very much characterizes the governance of individual faculties and departments.
I offer all this by way of pointing out that the much-shared CIA document bears a great similarity to a classic satirical work on academic politics, the Cambridge classicist Francis Cornford's Microcosmographia Academica. Indeed, I wouldn't be surprised if the author of the CIA pamphlet was aware of and cribbed from Cornford's essay. Every denizen, friend, or frenemy of the academy ought to read that short, hilarious, instructive work. I would add that it's short enough to print out and bring along to faculty meetings--mostly to have something to read, but also as a field guide and useful source of advice. (There is also a nice published edition with a historical and explanatory essay--makes a fine Chanukah gift!) Of course it applies more broadly than its original context of academic politics at Cambridge in the late 19th and early 20th centuries--if Wikipedia is to be credited, pieces of it pop up as dialogue in Yes Minister--but the university was its inspiration and it still applies there, at least within individual schools and departments. The CIA pamphlet is fun, but clearly some donnish young analyst recognized that for instruction in such matters, one must learn from the best.
Incidentally, it reminds me of a wonderful quote from the newest volume of letters by Isaiah Berlin. In it, Berlin is describing his friend John Sparrow, the long-serving Warden of All Souls College:
In College, to which he was in a sense devoted, his principal achievement was blocking--with the greatest ingenuity, style and brilliance--the slightest change in its arrangements. He did not always succeed, of course, but his efforts in that direction were wonderful to behold . . . . [Despite occasional opposition on Berlin's part,] I cannot deny that I watched his manoeuvres to outwit and stymie his colleagues with the most fascinated, if somewhat disapproving, admiration. His virtuosity in that respect was, in my experience, unparalleled.
Thursday, December 03, 2015
"Joint" Post on Pot Federalism, by Jessica Berch and Chad DeVeaux
We’re glad that we lived to post another day and that our budding thesis has not yet gone up in smoke. This week Chad and I are writing together to lay out the potential responses a prohibitionist state may deploy to deal with spillover from a pot-friendly neighbor. Until recently, prohibitionist states had two obvious and unsatisfying options — sue their neighbors (as Nebraska and Oklahoma have done), or step up the already draconian penalties for pot possession. The Tenth Circuit recently accepted the scholarly consensus that a state may regulate out-of-state conduct if that conduct affects a substantial number of in-state residents — at least so long as “the burden imposed” on interstate commerce is not “clearly excessive in relation to the putative local benefits.” If this holding stands, it opens a wealth of other options (in my view) or a Pandora’s Box (in Chad’s).
On one end of the spectrum, scholars argue that States can (and should) enact laws punishing their citizens (both civilly and criminally) for getting high while visiting a pot-friendly state. At the other end of the spectrum, other scholars believe that state lines demark absolute regulatory barriers.
The CIA's Guide to Creating Organizational Dysfunction (with possible implications for law-school administration and committees?)
The folks at Slate (sorry, Paul) posted the other day the Office of Strategic Services-prepared Simple Sabotage Field Manual (1944) (here), "for use by operatives in Europe who were trying to recruit civilians living in occupied countries to commit sabotage." Here's a shot of a few choice sections:
"I am an Artisanal Attorney"
Are you tired of large corporate law firms making the same cookie cutter litigation? Do you fondly remember a time when quality mattered in law suits, when there was art and craftsmanship in every court motion filed, when company records were drafted using the traditional methods and tools? If you have become dissatisfied with mass-produced legal representation, stop by my scriveners shop; for I am an artisanal attorney. . .
Second Circuit Sides with the "Cannibal Cop"
Today, the Second Circuit (2-1) issued its long-awaited opinion in United States v. Valle--the so-called "Cannibal Cop" case. The court upholds the lower court's judgment of acquittal on Valle's kidnapping conspiracy charge and, joining the Fourth and Ninth Circuits, reverses his conviction under the Computer Fraud and Abuse Act.
A brief recap of the case: Gilberto Valle was convicted of a conspiracy to kidnap, kill, and eat several women based largely upon a set of 40 conversations he had via the website DarkFetishNet. He was convicted under the CFAA for accessing a police database to look up one of the women he had discussed with his alleged co-conspirators (obviously not for NYPD-related purposes). A year after his conviction, Judge Gardephe granted a Rule 29 motion solely on the kidnapping charge on the basis that the government had not sufficiently shown that Valle's online conversations were anything more than fantasy--Valle had thousands of conversations with at least 24 different people on DarkFetishNet, and the government failed to provide any reasonable basis for plucking out 40 "real" conversations from the thousands it conceded were "fantasy." All the conversations involved the same gruesome kidnapping and cannibalism scenarios, and if the prosecution's theory was true, he was planning on kidnapping three different women in three locations (in two different continents) on the same day. Moreover, the alleged conspiracies were contingent upon a number of elements--e.g., a human-sized oven, a secluded cabin in the woods--that didn't exist, and Valle repeatedly lied about and avoided giving any actually identifying information about the victims.
The Second Circuit largely adopts Judge Gardephe's reasoning and as well as the concerns (without citing) that Thea Johnson and I raise in a recent essay: "We are loathe to give the government the power to punish us for our thoughts and not our actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). That includes the power to criminalize an individual’s expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime."
JOTWELL: Leong on Nielson & Walker on qualified immunity
The new Courts Law essay comes from Nancy Leong (Denver), reviewing Nielson and Walker's The New Qualified Immunity (forthcoming S. Cal. L. Rev.), which explores how lower courts are and should apply the discretionary two-step approach to qualified immunity under Pearson. Both the article and Nancy's review essay are worth a read.
My Trip to the Town of Greece
In the book I'm writing now (and by "writing" I mean I've signed a contract for something I should be writing but actually haven't written a word of) for Stanford University Press, I'm looking at how non-Christians--Wiccans, Hindus, Atheists/Humanists, Satanists, the Summum, etc.--are increasingly trying to participate in public life by, for instance, giving legislative prayers and invocations, putting up displays on government property, and using public voucher funds for their schools, etc. I'm calling the book, tentatively, "Our Non-Christian Nation: How Atheists, Wiccans, Satanists, and Other Non-Christians are Demanding Their Rightful Place in American Public Life."
Like in two of my other books about religion, this too will be a book where I travel places to observe actual events and to talk to people involved in the controversies I'm writing about. My first trip was to the Town of Greece back in October. You may remember that a couple of years ago, plaintiffs successfully challenged in the Second Circuit the town's policy of beginning each of its town hall meetings with a prayer because almost all of the prayers were given by a Christian, and they were usually extremely sectarian in nature (meaning they expressly invoked Jesus and the like). The Supreme Court, in a 5-4 decision, reversed the Second Circuit and held that sectarian prayers were okay so long as towns like Greece don't prohibit other groups from also giving invocations and/or prayers.
One of the plaintiffs in that case was Linda Stephens, a wonderful lady who has lived in Greece for many years and who happens to be an atheist. Following the Supreme Court's decision, she asked the town council if she could give a secular invocation, and the council agreed. Somehow I came across the schedule for the town's prayers/invocations online, and when I saw that Linda was giving the invocation, I decided to take a plane to Rochester and check it out myself.
Wednesday, December 02, 2015
Don't Fear, the 2015 Amendments to the FRCP will be Tested on on the July 2016 MBE and MEE
Last month, Howard Wasserman's post on PrawfsBlawg about the lagging bar exam (see post here) created a lot of controversy -- and roiled up some ire about the bar exam process in general. It seems our angst was misplaced. Today, the National Conference of Bar Examiners posted this note, which you may review on their website (here), if you prefer:
Amendments to Federal Rules of Civil Procedure will be reflected on the July 2016 MBE and MEE
Amendments to the Federal Rules of Civil Procedure are effective December 1, 2015. The earliest these amendments may be reflected in the content of the MBE or MEE is July 2016. This is noted on the revised 2016 MBE Subject Matter Outline and MEE Subject Matter Outline.
I hope that this allays concerns.
Posner, Porn, and Prison
Decision here. The Seventh Circuit, via Judge Posner, upholds warden's interception and confiscation of a number of pornographic magazines, but in extended dicta questions the wisdom of the prison's pornography ban. Judge Posner points to a number of studies showing little (or even inverse) correlation between violence and pornography in prison. Now, I have no idea what the prison's past experiences with inmate pornography have been, but I do think the nudge towards empirics and social science is an improvement over the "common sense" fears that tend to drive regulation of sexual content. For a good overview of this tendency, I highly recommend Allegra McLeod's California Law Review article from last year.
Of Federal Lands and Presidential Politics
Hello Prawfs. Nice to be back, and thanks to all.
While in Nevada last week, Ben Carson took the opportunity to play to the western conservative crowd. In a televised interview with the Las Vegas Review Journal, he argued that the federal government should “return” much publicly held land to the states, highlighting a controversy Cliven Bundy brought back into the national spotlight in 2014. Bundy and others point to the federal government’s substantial land ownership in western states (more than 80% of Nevada) as compelling evidence of Washington’s continuing efforts to trample on states’ rights, and they promise to make this newest incarnation of the Sagebrush Rebellion a divisive issue in the 2016 election—at least in western swing states.
In fact, the last year has seen a number of state legislatures, including Nevada’s, entertain bills that simply assert state ownership of these federal lands. Despite their obvious constitutional defects, these bills have recurred in various forms for years, and their proponents fervently believe that the Constitution is actually on their side. Carson, for his part, was not afraid to let the facts get in the way of scoring political points—he claimed, for example, that the federal government owns 2.4 billion acres of land, which is more than makes up the entire country—and much of the land he would have “returned” never belonged to the states in the first place. A little historical and constitutional context makes it clear that Bundy and his supporters have the law wrong, too.
Background reading for "Movie Night"
Yesterday the AALS made the following announcement about an event at its upcoming annual meeting:
The AALS Law and Film Series presents feature and documentary films chosen for their cinematic and legal value, identifying film resources for possible classroom instructional purposes, as well as for raising general awareness of law and film. For each of the two nights of film showings, we will present films chosen by the AALS Annual Meeting Film Advisory Committee. There will be brief discussions and commentary in connection with the films. . . .
Friday, January 8, 7:30 pm
The Hunting Ground is a 2015 documentary film about the epidemic of rape on American college campuses. The film follows several survivors of sexual assault as they encounter retaliation and pushback at every level of campus life. It details the lack of effective institutional response as the students discuss the failure of college administrators to support them and the toll reporting these crimes took on their lives. The film reunites writer and director Kirby Dick and producer Amy Ziering, the team behind the Oscar-nominated documentary The Invisible War. Join moderator Professor Jessica Silbey for a discussion after the film with Director Kirby Dick.
Speaker: Mr. Kirby Dick, Chain Camera Pictures Inc.
Moderator: Jessica Silbey, Northeastern University School of Law
I have not seen The Hunting Ground and cannot comment on its merits. It seems worth noting, though, both that the movie is prominently features a case involving Harvard Law School, and that a number of professors at the law school issued a public letter criticizing both the film and its treatment of that incident. They charge in the letter that the documentary "provides a seriously false picture both of the general sexual assault phenomenon at universities" and of the student accused in that specific incident and the process in that case. The Times article also links to this critique of the film, and specifically its treatment of that case, by Emily Yoffe in Slate.
None of this, of course, is meant to question or even to comment on the very serious issue of campus sexual assault, which has been a concern of mine at my home institution. I assume that critiques of the film, and open-ended discussions about how to address the larger issue, will be very much a part of the moderated discussion and that this has always been the AALS's intention. The filmmakers have a response to the professors' letter here and a response to Yoffe's piece here. They are more detailed, certainly, than the responses provided by the filmmakers in the Times story and in Yoffe's piece itself, or here, all of which are heated but weak.
Given that one of the filmmakers will be present for the screening and discussion, I assume those points will be fully aired. At the same time, given that Dick describes himself as "both an activist and a filmmaker" (a common feature of many current documentaries and one that raises important concerns, particularly for those of us with more conventional views on journalism), and that one of the film's producers wrote to the attorney/relative of a potential interview subject, "We don’t operate the same way as journalists — this is a film project very much in the corner of advocacy for victims, so there would be no insensitive questions or the need to get the perpetrator’s side," I thought that people thinking of attending the screening might want to be aware of these criticisms, and better able to explore them during the discussion.
Tuesday, December 01, 2015
World AIDS Day: Non-disclosure, Criminal Law, and Contracts
Many thanks to Prawfsblawg for hosting me this month! I look forward to discussing my scholarship and sharing some of my favorite cat videos in the coming weeks. I thought I'd start, however, on a more sober note:
Today is World AIDS Day, and I wanted to share two recent items about how the law handles--and mishandles--issues of HIV disclosure. The first is this excellent, yet disturbing, write-up of the trial of Michael Johnson, a black, gay, HIV-positive college wrestler given a 30 year sentence for not disclosing his HIV status to his sexual partners. Although Johnson maintains that he in fact disclosed his status, the article does a good job connecting his conviction to issues of racism, homophobia, and a widely held (and mistaken) belief that no one would have consensual sex with someone HIV-positive. Johnson's case highlights an increasingly wide schism between highly punitive non-disclosure laws and today's reality of HIV treatment and prevention. Current treatments allow HIV-positive people to have a life expectancy roughly comparable to the average US population and can reduce viral loads to undetectable, nontransmittable levels. The best way to prevent the spread of HIV is through testing and treatment, yet criminalizing non-disclosure can deter people from getting tested and taking on the legal obligations that might come with their results.
The other item concerns, perhaps unsurprisingly, Charlie Sheen. Much has been written about Sheen's potential legal issues in the wake of his HIV disclosure (see, e.g., here, here, and here), but I wanted to focus on one interesting detail. Sheen reportedly required his sexual partners to sign a non-disclosure agreement, with liquidated damages of $100,000, covering any personal or business information obtained during time spent with him. The NDA was exclusively leaked to the esteemed repository of legal research, InTouch Weekly. My initial reaction to the NDA was in line with with most others: forcing young women to sign a contract before sex seems sleazy and censorial, designed to insulate potentially humiliating, abusive, or exploitative behavior. After thinking some more about Sheen's circumstances, however, things may be a bit more complex and perhaps sympathetic. As highlighted in the previous paragraph, Sheen's HIV status put him in a rather difficult bind. If he complied with his legal obligation to disclose his status, he faced the high likelihood that his status would either be sold to the press or used as blackmail (which reportedly it was). And even though Sheen had an undetectable viral load--and thus posed minimal risk of infection to his partners--he was at the very least arguably under a moral obligation to disclose that risk. An NDA in these circumstances might thus be a way for Sheen to disclose his status while navigating the unique circumstance of being an HIV-positive celebrity. This is certainly not meant to beatify Sheen, but it highlights an effort to use contract law to organize intimate affairs in the face of continued fear, stigma, and misinformation about sex and HIV.
(By the way, aside from the bigger policy issues, Sheen's NDA is chock full of geekery: sexual consideration (see my student note!); arbitration clauses; copyright assignments (more here); and contracting for irreparable harm)
In the spirit of World AIDS Day, I hope this post will encourage a few more people to learn about the current state of HIV and AIDS, both in the US and abroad. Here are a few useful links I've come across in the past few weeks:
Out with the Old (FRCP), in with the New (FRCP)
What an auspicious day for a beginning civ pro prof to begin blogging, so much so that I can’t resist a brief second post about my second true love. In addition to marijuana (federalism), I love civil procedure, and today, about a dozen amendments to the Federal Rules of Civil Procedure went into effect. New rules on the horizon create some angst about what to teach (current rules or upcoming ones), particularly in light of Howard’s PrawfsBlawg post on November 19 that the Multistate Bar Exam will not incorporate these amendments until 2018. I opted to teach both sets of rules, where applicable — the old and the new — because I hoped to spark discussion with my students regarding reasons for the changes. I believe I was modestly successful, and I think my students have a more robust understanding of the dynamic nature of the law in general, and civ pro in particular.
A (very) brief primer on the more major FRCP amendments (in my opinion):
One Toke Too Far?
Thanks, Howard, for opportunity to guest blog this month. I’ve spent a lot of time lately thinking about marijuana — in a scholarly way, of course. In particular, I’m concerned about the horizontal-federalism implications of state-by-state pot decriminalization. I recently co-authored, with Anne Mostad-Jensen, an article in the Boston College Law Review arguing that states may invoke the Supreme Court’s original jurisdiction to challenge marijuana legalization in Colorado. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2540640. We distinguish our theory from the complaint lodged by Nebraska and Oklahoma with the Supreme Court. Nebraska and Oklahoma seek to enforce the Supremacy Clause, contending that Colorado’s venture violates the federal Controlled Substances Act. In contrast, we advocate a nuisance theory and assert that the Court should award damages to a prevailing state, using the Coase Theorem as its guide.
This article has led many to presume that I am anti-pot. Not so. Rather, I consider myself pro-federalist. This month I am going to (try to) rehabilitate my good name.
As my thesis adviser, Gerry Neuman, once observed “federalism permits the majority in each state to choose how far above the constitutional minimum the exercise of fundamental rights will extend locally. Some states will afford more freedom than the mean; others will afford less than the mean. All states, in making these choices, will be exercising the independently valued freedom of local self-determination within their respective spheres.” 135 U. PA. L. REV. at 314.
Outside the limited bounds of “fundamental rights” — which the Constitution insulate from government intrusion — states enjoy wide latitude to criminalize conduct that offends the moral sensibilities of their respective polities. As even the Ninth Circuit has noted, the Constitution “does not recognize a fundamental right to use marijuana.” Raich v. Gonzales, 500 F.3d at 866.
Reasonable minds can differ about whether marijuana’s negative externalities justify the costs of its prohibition. The recent trend toward decriminalization in several states has been hailed by many as an example of Brandeisian experimentation. But states cannot choose between decriminalization and prohibition in a vacuum. Marijuana is the most lucrative cash crop in the U.S. The resulting “high demand in the interstate market will draw” weed acquired in decriminalized states into the black markets of their prohibitionist neighbors. Gonzales v. Raich, 545 U.S. at 19. So how can states exercise their “freedom of local self-determination” to “afford more freedom than the mean” or “less than the mean” with regard to marijuana policy? A State, like Colorado, that chooses to decriminalize the drug implicitly imposes its choice upon its neighbors, inhibiting their “freedom of local self-determination.” Conversely, if a prohibitionist state, like Nebraska, is able to quell marijuana decriminalization in Colorado, then it interferes with the latter’s power to “afford more freedom than the mean.” Marijuana decriminalization presents “one of the most important federalism conflicts in a generation.” Erwin Chemerinsky, et al., 62 UCLA L. REV. at 77.
My colleague, Jessica Berch, and I will be blogging about these issues all month.
Mellow Out, Chad!
Thanks, Howard, for allowing me — and my no-good sidekick, Chad DeVeaux — to guest “blawg” this month. It will be a welcome reprieve from grading.
Unlike my colleague, Chad, who has “chronically” explored weed and marijuana federalism, I am a mere “budding” scholar (although my jokes are better than his, at least this post). But recent events have “toked” my interest in this area as well. While you will see Chad and me disagreeing often this month, I do agree with him (and Dean Chemerinsky) that marijuana decriminalization presents “one of the most important federalism conflicts in a generation.” Chemerinsky, et al., 62 UCLA L. REV. at 77.
Last July, in Energy & Environmental Legal Institute v. Epel, 793 F.3d 1169, the Tenth Circuit held that the Constitution permits a State to directly regulate extraterritorial activities that produce substantial effects within the state. The court ironically upheld Colorado’s purported direct regulation of coal-fired electrical production in Nebraska (and other states), concluding that Supreme Court precedents positing that the dormant Commerce Clause “precludes the application of a state statute to commerce that takes place wholly outside the State’s borders, whether or not the commerce has effects within the state,” have withered and died from nonuse. This holding presents significant ramifications for the pending weed wars. What is good for the goose is good for the gander. If Colorado can regulate coal-burning in Nebraska because it produces substantial effects in Colorado, can’t Nebraska regulate at least some marijuana transactions in Colorado because such transactions have substantial effects in the Husker State?
Chad was too humble to mention this (that’s a first), but he and I are participating in a symposium proposal regarding this topic. The panel tentatively includes several scholars: Lea Brilmayer, Erwin Chemerinsky, Jack Chin, Katherine Florey, Seth Kreimer, Mark Rosen, Chad, and me. As Chad and I blog this month, we will keep you apprised of any developments on this front as well.
Upcoming issues in the Bergdahl case
First, thank you to the Prawfs gang for letting me hang out this month. I'll close with a longer post on some issues that are coming up in the Bergdahl case.
For the last six weeks or so, Sergeant Bergdahl and various media organizations have been asking military appellate courts to order the release of the report from the Army’s administrative investigation into the case. Bergdahl has a copy of this report; the media does not. My sense is that the report includes mitigating information about his mental health and probably clears up whether any service members were killed searching for him.
At the recent Article 32 preliminary hearing, the lead administrative investigator testified in public and was subject to cross examination. The report was also received into evidence; however, the convening authority “closed” the report by issuing a protective order. According to Rule for Court-Martial (R.C.M.) 405(h)(3), the hearing should remain open whenever possible and can only be closed if a strict scrutiny test is satisfied (closure must be narrowly tailored to achieve an overriding government interest; no lessor means can be used to protect the overriding interest).
When Bergdahl asked the convening authority to “open” the report, the convening authority did something bizarre – he said he didn’t have the authority to do that even though he was the one that ordered it closed. (I don’t think Colonel Nathan Jessup is pulling the strings somewhere in the background. I couldn’t handle that truth. Rather, I think the convening authority was saying that he was not going to lift his protective order; that he was construing the request to be a request under the Freedom of Information Act; and that he did not have the authority to act on FOIA requests.)
Bergdahl and the media organizations then filed for a writ of mandamus with military appellate courts. This sets up some interesting issues in areas of the law that are still being developed, and the unique military context exposes some of the gaps and seams.
The basic issues are: whether Bergdahl has a right to have this report made public or the media has a right to see it; whether military appellate courts have subject matter jurisdiction to issue a writ; and if they do, whether they should.
Supreme Court [Laughter] Update
Much like Toni Basil of "Mickey" fame or the guys who sang the "Pac-Man Fever" song, I too plan on milking my one-hit wonder for all its worth. And that means talking about which Justices get the most [laughter] at oral argument. I'm not talking about the most laughs, mind you, much less which Justices are the funniest--simply which ones get the audience [laughing] enough for the Court Reporter to note [laughter] in the transcript. For those of you who do not follow me @SCOTUSHUMOR (why is that again?), you may not know that last year's results were much like all of the other years' results, meaning that Justice Scalia topped the charts, followed closely by Justice Breyer. Interestingly, however, Justice Kagan, by getting two [laughs] on the very last day of argument, tied the Chief Justice for third place in the standings. (The circumstances there were fascinating--the arguing lawyer called Justice Kagan "Scalia," to which she responded: "He's Scalia" which got one [laughter], bringing her within one of the Chief. But did she stop there, like someone who doesn't know how to bring the [laughter]? Oh, no. Instead, she followed up with, "We're not often confused," which is what got her the tying miracle [laughter] that sent us Court [laughter] watchers into what can only be described as a [frenzy]). In any event, the current standings, through yesterday's arguments, are as follows: Scalia 14, Breyer 11, the Chief 7, Kagan 3, Kennedy 2, Sotomayor 1, Alito 1, Ginsburg 0, Thomas 0. These results, of course, as always, are subject to the caveat that I perform my calculations in a haphazard and slipshod manner and therefore should not be relied upon by anyone for any purpose whatsoever.
Parting Is Such Sweet Sorrow
Thank you to the PrawfsBlawg crew for the opportunity to test my theories on remedies shaping rights, advance the import of varied remedial goals, as well as peddle my poetry. I’ve enjoyed being in dialogue with the PrawfsBlawg community.
I look forward to seeing many of you at AALS and SEALS. Also, I will be guest editing on Jotwell this February. Should you be thirsty in the in-between, check out my forthcoming work, Supreme Disgorgement, in which I argue for the principled advancement of gain-based remedies such as disgorgement for public and private breaches of contract. In Kansas v. Nebraska, Justice Kagan’s majority opinion endorses the remedy for breach of a water-rights compact and settlement agreement. This opinion will have rippling effects in public and private law. The import lies in the Court’s receptivity to a gain-based remedy (disgorging profits) that exceeds compensation to prevent unjust enrichment and deter conscious advantage-taking of another’s contractual interests. I predicted this extension of contract law in earlier works. Justices Thomas and Scalia, separately dissenting, cite my work to lament what I had previously described as a “novel extension.” The remedy, however, is ancient; my characterization addressed the tension with conventional contract wisdom regarding compensatory benefit-of-the-bargain goals and, in some quarters, the promotion of efficient breaches. The disgorgement remedy, as adopted by the Court, will push the boundaries of contract law to deter opportunism. This shift has support in other countries and, in American law, though often not expressly conceptualized as a restitution and unjust enrichment remedy. Disgorgement to deter unjust enrichment should be a welcomed addition to the stable of remedies for contract breaches under proper facts. The critical question is: Do we want to deter a deliberate, profitable breach that leaves plaintiff without an ability to obtain the full equivalent of the promised performance in a substitute transaction?
As always, please send me any interesting cases or contributions to the law of remedies or federal courts.