PrawfsBlawg

What's next?

As people react, seemingly peacefully, to the George Zimmerman verdict, it is worth considering what happens next.

The NAACP and other groups are urging the Obama Administration and DOJ to file federal civil right charges against Zimmerman, which has right-wing sites abuzz and screaming about double jeopardy. But what law could he be charged under? Not § 242, because Zimmerman did not act under color of state law (thus depriving the right wing of its most obvious demagogic analogue--the LAPD officers who beat up Rodney King). Also not § 241, because Zimmerman acted alone (and I'm not sure a purely private conspriracy still is possible under current understandings of § 5 of the Fourteenth Amendment). The only possibility is the federal Hate Crimes statute, which prohibits anyone, even if not acting under color of law, from willfully causing bodily injury because of the victim's race. If so, was that statute violated here? Assume Zimmerman followed and shot Trayvon Martin because Martin seemed "threatening" or "dangerous" and that Martin seemed "threatening" because of his race. Is that the same as following him "because of [his] actual or preceived race"? Also, how does federal law treat self-defense?

The other likely development is a civil lawsuit by Martin's family, which is being considered and was mentioned in the comments to Dan's first post. A civil action is, of course, governed by a lower standard of proof, involves more extensive discovery, and required testimony (deposition and trial) from Zimmerman himself. It also brings the state Stand Your Ground Law, and the pre-trial immunity it provides, back to the forefront. (By the way, if the civil suit were brought in federal court, this would be an interesting Erie hypo).

Some more thoughts on self-defense, Stand Your Ground, and Zimmerman

The point of this post is to extend some reflections of ambivalence on some difficult questions regarding self-defense. First, Stand Your Ground (SYG) laws are found in over 20 states including Florida. So, although Florida's getting a lot of heat in my FB thread, I'm not sure it's right to castigate FL as uniquely bizarre in its embrace of SYG. More importantly, it's worth noting that, although the SYG instruction was given here, it wasn't a critical part of the overall case. GZ wasn't claiming a right to deadly force at a moment when he had avenues of retreat. GZ's claim of self-defense was invoked when he (putatively) was on the bottom and shot upward at TM. Might it have framed the defense nonetheless? Perhaps. But given that the forensics were completely consistent with GZ's claim that he shot while he was on the bottom, I'm not sure we should think SYG (in place of a duty to retreat instruction) polluted the jury's decision-making here.

One way in which the FL law did play a role is by shifting the relevant burden regarding self-defense to the gov't. Specifically, the gov't bore the burden of showing beyond a reasonable doubt that GZ did not act in self-defense. In Ohio some states, and historically, self-defense is an affirmative defense, meaning that the defendant shoulders that burden.* Professor Joshua Dressler notes that FL has the burden of disproving SD BRD in the WSJ, but apparently he lumps this burden-shifting point with SYG, which seems mistaken.  In other words, a legislature could make the defendant bear the burden of self-defense while still allowing SYG or requiring a duty to retreat and a state could still have the burden of disproving self-defense claims while allowing SYG or requiring a duty to retreat. (In fact, since 49 of the 50 states, including Florida, make the government bear the burden of disproving SD if the Def't is able to produce some evidence supporting SD, it's probably misleading to suggest that FL's law here is an outlier regarding who bears the burden. I don't think Dressler directly said that, but it's possible some might infer that from his comments.) 

The verdict unsurprisingly seems to be renewing hostility to SYG. There are some powerful reasons to welcome this hostility.

One of the reasons cops don't like it is that it makes it harder to prosecute drug dealers who kill rivals and claim self defense because they were the last ones standing. Some have stressed that SYG hurts minorities. Here the response is typical: it depends. Inasmuch as SYG is a general boon to defendants, and most crime occurs intra-racially, it's not obviously racially biased against minorities in terms of its impact on defendants. That said, analogous to the McCleskey dynamic in the death penalty, there is cause for concern based on the racial impact on victims in inter-racial crimes, and this is what seems to be raising lots of people's hackles, for good reason. But according to the study that I've seen getting circulated for trumpeting this effect, the inference of bias is unproven for two reasons:

The disparity is clear. But the figures don’t yet prove bias. As Roman points out, the data doesn’t show the circumstances behind the killings, for example whether the people who were shot were involved in home invasions or in a confrontation on the street. Additionally, there are far fewer white-on-black shootings in the FBI data — only 25 total in both the Stand Your Ground and non-Stand Your Ground states. 

One last point about SYG's apparent vices. The SYG notion stands in tension with the common law duty to retreat when safe avenues of avoidance are available because we don't want the streets and floors piled with dead bodies on the ground. As mentioned before, I have a lot of sympathy for the common law rule of requiring retreat when feasible. But a principled commitment to the duty to retreat would require revision to the laws allowing the equivalent of SYG in the home. There's a pretty deep sociological commitment to the castle doctrine that works as an exception to the duty to retreat, and thus allows you to prevent being dispossessed of your home. I'm not sure the castle doctrine is net-net justified if there really are safe avenues of avoidance for everyone in the home, but regardless of whether I'm right about that, I do think it's a tough issue. Accordingly, one must bear in mind that self-defense law has to be drawn in a way that takes into account a cluster of complicated moral commitments: do we want to maximally protect home-owners? do we want to make S-D easier for battered women? do we want to maximize lives saved? do we want to maximize only non-culpable lives saved? Do we want to facilitate people feeling safe wherever they have a lawful right to be? Those who proclaim in righteous thunder against SYG have to be confident of their views in at least a couple troubling situations: domestic violence and racist intimidation.  Here's a hypo from Dressler's casebook that I've altered somewhat to make the salience of SYG a little more obvious, despite my concerns about it.

One day Arthur, the resident racist homophobe, informs Dina that if she brings her "trashy gay black ass" that way again he will kill her. Dina could just as conveniently walk along another street, but believing that ‘‘I have every right to walk where I choose,’’ she decides the next day to arm herself with a licensed gun and walk along the now fraught route with her weapon visible to onlookers, as she is permitted to do. Arthur appears and, because of a bum leg, he hobbles toward her, but menacingly, raising his fists and says, "I'm going to get you now." Dina is an olympic class runner, however, and she knows she could run away without problem. Arthur hobbles toward her and is about to punch her. So Dina shoots him because she fears that if she doesn't run, Arthur's strength will overpower her completely.  

Notice that here Dina has several avenues of avoidance: she could have walked along a different road altogether that day, she could have called the cops after receiving the menacing threat, and, ex hypothesis, she could have run away to safety even at the moment prior to Arthur's instigating the violence. Duty to retreat laws would require Dina to avoid this conflict and SYG laws allow her to shoot. I'm inclined to believe that she should have retreated, but I'm also not sure I want to argue that when my fellow citizens vote these laws in place that they are committing some form of moral reasoning malpractice. Anyway, I want to stress, before I close, that I'm not saying Dina and GZ are similarly situated at all.  We have precious little information about the beginning of violence between TM and GZ. My point is simply that there might be a case for SYG that appeals to some "progressives" at least in some cases. 

I'll close with one link to a very interesting recent article on self-defense by Larry Alexander; it is intellectually rich with examples that will stimulate and challenge most people's intuitions. 

*Eugene Volokh notes here that 49 of the 50 states (all but Ohio) put the burden of disproving S-D beyond a reasonable doubt on the state once the defendant has put forth some evidence.

Zimmerman's Not Guilty

The jury just returned an acquittal on all counts in the George Zimmerman case. I have been expecting this verdict from before the trial when I looked at the evidence that had been produced in the state's discovery. Martin's death is an unfortunate loss, but this case had close to zero evidence to support the goverment's charge of murder and only a bit more evidence to support a finding of manslaughter under a standard of beyond a reasonable doubt. As an ethical matter, the government should be ashamed to have even brought the murder charge, even though over-charging is routine. It's an ethical problem hiding in plain sight.

When I peruse some of my friends' Facebook reactions expressing dismay, they seem not to understand that beyond a reasonable doubt is a standard that precludes finding guilt when there is a plausible explanation that is consistent with the defendant's innocence. In this case, there was very strong evidence supporting the defendant's innocence, so much so that Zimmerman's lawyer expressed a desire for something approximating the Scottish verdict for the jury: guilty, not guilty, and innocent.  That confidence was one that he exhibited early on in the process since Zimmerman decided to press for a trial instead of go to a pre-trial self-defense immunity hearing.  He wanted to show his innocence. I'm not sure he could show his moral innocence, but for reasons Jack explained the other day, there was nothing provably unlawful about Zimmerman's following Martin, and there's also no evidence about who was the aggressor, which is a distinct and critical aspect to whether one forfeits one's privilege of self-defense. Being a provacateur is distinct from being an aggressor. 

I will note, hastily, and in closing, since I have to go catch my flight, that I fear that if the races had been turned around, we might have a different verdict. Inasmuch as that is true, it is an indictment of sociological realities, not a prescription for what should have been done in this case, under the BRD standards afforded to defendants in our criminal justice system. And for what it's worth, I am optimistic that the public will get this, and that predictions of violence or mob justice will prove to be mistaken.

P.S. I will be moderating comments on this thread carefully. Signed, specific, and substantive comments will usually get a response.

 

Problems with Shelby County

After my post defending aspects of the Court's opinion in Shelby County v. Holder, I thought that before I left I should add a few words about some aspects of the opinion I find more problematic.

1:  Bail-in and bail-out.  Solicitor General Verilli's closing point at oral argument was:

The facial challenge can't succeed ... because there is a tailoring mechanism in the statute. And if the tailoring mechanism doesn't work, then jurisdictions that could make such a claim may well have an as-applied challenge.

Given that the Court relies so heavily on the irrationality of the coverage formula, it would have been better for it to directly address the government's arguments that the bail-in and bail-out portions of the statute cured any problems with the formula.

Ultimately, this is more of a point about craft than substance, since I do think the Court had good potential answers to this argument.  (The bail-out provision is so stringent that large jurisdictions can't get out unless the Department of Justice and the courts refuse to apply the statute as written, and in any event is sufficiently strict that it does little to cure any overbreadth in the coverage formula.  The bail-in provision can cure some underbreadth, but that does little about overbreadth; in any event the bail-in provision may yet get its day in the sun.)  But it would have been better to say something about it.

2:  The state-equality principle. The Court relied prominently on "the principle that all States enjoy equal sovereignty."  (Indeed, the words "equal" or "equality" appear nine times in the majority opinion, and always in reference to states, never to people or their voting power.)  There is reason to doubt, however, that the Constitution forbids discrimination between states.  More importantly, the Court does not explain what constitutional provision would forbid such discrimination.

Now one can tell a slightly complicated story to explain the Court's invocation of the state-equality principle here:  While there's no per se rule against interstate discrimination, the Constitution does require that enforcement legislation be "appropriate," and "appropriate" should be understood in light of McCulloch's gloss on the Necessary and Proper Clause, which should in turn be understood to incorporate various background principles of structure and rights; one such structural principle could be a principle of equal sovereignty.  Under this theory, unjustified unequal treatment of the states would heighten the scrutiny for necessity and propriety under the Reconstruction Amendments.

(The Court may be hinting at this theory when it says: "Coyle concerned the admission of new States, and Katzenbach rejected the notion that the [equality] principle operated as a bar on differential treatment outside that context.  At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treatment of States.") 

But this is a pretty complicated story, it has several non-obvious moving parts, and one would expect an explanation along these lines.  To be sure, it is certainly true (as the Court notes) that the principle was endorsed in Northwest Austin with no criticism from the Shelby County dissenters. But as with bail-in and bail-out, it would have been better for the Court to explain what is going on here.

3:  This isn't really a point, just a final comment.  I think this was a hard case, and I think much of the criticism of the Court's opinion is misdirected.  Ultimately, though, I think the Court should probably have upheld the statute because of the burden of proof.  I mention this not because I have a great deal of confidence in this conclusion, but only because there's a strong temptation not to do so, since I think many of the criticisms of Shelby County are worse than the opinion they criticize.

You MUST Own a Gun!

The Washington Post today reported that a small Georgia town recently passed an ordinance requiring most heads of household to own a gun and ammunition.  More recently, the Brady Campaign filed a lawsuit challenging the ordinance.  http://www.washingtonpost.com/national/tiny-georgia-city-faces-off-against-national-gun-control-group-over-mandatory-gun-ownership/2013/07/12/6770e4ba-eb0e-11e2-818e-aa29e855f3ab_story.html

I think requiring everyone to own a gun would likely cost more lives in accidents and suicides than it would save.  But that’s almost beside the point.  This is pure symbolism on both sides.  This serious issue deserves better.  The Post states:  “City leaders and the police chief, who’s the only police officer in town, said during the meeting when the ordinance was passed that they had no intention of enforcing it.”

That will probably scuttle the Brady Campaign’s lawsuit: it is not justiciable.  “When plaintiffs do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible, they do not allege a dispute susceptible to resolution by a federal court.” Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298-99 (1979). I suppose prosecution is possible if the police chief changes his mind or is replaced.  To my mind, that should be enough to confer standing, but my guess is that it won’t be.

Fracking Fatigue

You are a legal scholar, law student, or associate ghostwriting your boss's next thought piece. Your vague topic is the "energy revolution" or "America: the next Saudi Arabia?" You spend time on Westlaw. At some point, you feel the onset of "fracking fatigue." The symptoms are easy to spot. You bristle at the puns and plays on words ("shale we" this, "why the frack" that). Anxiety sets in as you read what seems to be the same geomechanical lecture over and over again. Now you're skipping text, confident in the abridged arc of the story - alternative fuel production tax credit, exemptions, something is wrong, study, LEAF, 11th Circuit, study, exemption, study, abandoned study - but unsettled by your work habits. Property was never your bag, so you only glance at articles that ponder ferae naturae and ad coelum, although compulsory pooling sounds scary. Opposing truths are repeated with a straight face and a footnote: hydraulic fracturing ("fracking") is nothing new; fracking is novel. You question your senses. The enormity of the literature is apparent. You count and sort to calm yourself: 500 papers in the last ten years, nearly 300 in the last two years, like so many drilling wells. This is followed by avoidance: each time you find a back-of-the-envelope "should we frack" piece, you vanish the window from your screen.

What you have is a relatively minor condition. Fracking fatigue should not be confused with the bone-tiredness of the evacuee, lessor, operator, resident, shift worker, state employee, or citizen-turned-alleged-insurgent. And the legal literature on fracking does have its redeeming moments. But for now, trust your instincts and log out of Westlaw. If we're going to advance our understanding of fracking, we need to spend time elsewhere. Hit the archives. Find the peer-reviewed studies. Read the trade literature. Make a FOIA request, or read documents obtained under threat of litigation. Seek inspiration in a coffee table book. Then return to the task at hand, armed with new questions. Here are hints of what you will find.

As you broaden your reading, chaos gives way to complex systems: "unconventional" energy production, its infrastructure, and its novel and systemic risks. Conventional oil and gas cede their dominance to oil shale, bitumen, tight gas, shale gas, and coal bed methane. Each has its own production technologies. Fracking is one of them. It is a novel mix of horizontal drilling, controlled explosions in the well shaft, and high-volume, high-pressure applications of water, sand, and chemicals to break open fissures in rock through which gas can flow. Unconventional production marks an eerie shift of manufacturing from aboveground (e.g., cracking) to deep below the surface (e.g., pyrolysis, fracking), as fuels are more difficult to wrestle from the earth. Reading the trade literature, you grasp the experimental nature of these modes of production. Operators test and refine drilling techniques and chemical mixtures as they move from one well, or one well stage, to another. The adaptive learning process of extraction varies by location and resource. Thus, it is important to read the literature with care. Is the "energy extraction" enforcement initiative, the MOU between EPA and industry, the reporting requirement, the endangerment order, or the greenhouse gas footprint estimate for shale gas or coal bed methane? Does it concern all phases of production (drilling, completion, workovers, etc.) or only some of them? Do the combinations of techniques and fuels present different contamination and other risks?

Teasing apart these differences, we also arrive at common concerns. Among them are matters of scale and infrastructure. Shale gas requires a "greater number of wells drilled more closely together compared with conventional fields" - a "greater surface footprint over a wider area" and along with it, more water, equipment, and waste. The facts differ by well and shale play, but the scale is always vast. For example, a shale gas well in the Barnett formation in Texas requires a quarter of a million gallons to drill, and 3.8 million gallons to fracture. Around each five-acre well pad, there is a regional infrastructure of pipelines, gathering systems, processing plants, compressor stations, storage facilities, deep-injection or surface water disposal sites, heavy machinery, flare stacks, concrete water depots, and hundreds of truck trips. Add to this a shadow infrastructure of abandoned pipelines and orphaned gas wells. Then consider the impacts of this infrastructure both onsite and further afield - the fugitive emissions, the fragmented forest, the price of water in Texas, the one hundred new sand mines in Wisconsin. The production models are now available for export, through the State Department's Unconventional Gas Technical Engagement Program. A similar picture can be painted for other unconventional energy sources. Tar sands development in Alberta has been likened to "an enterprise of epic proportions, akin to the building of the pyramids...Only bigger." Its waste ponds are the new sprawl in Canada, soon to cover 250 square miles.

It's hard to hold all of this in your head. Start with Richard Misrach and Kate Orff's Petrochemical America (2012), a meditation on the infrastructure that surrounds conventional oil and gas. It is a subversive book, a collaboration between a photographer and a landscape architect. It may strike you at first as a voyeuristic account of River Road along a stretch of the Mississippi River. This is a striking landscape, punctuated by cypress swamps, old statues, and cinder block buildings. Hints of industry are everywhere, even miles from the region's many industrial plants. Much of it is abandoned, leaking, or flooded. Midway through, the book abruptly shifts gears. A new introduction appears: "This book is about how oil and petrochemicals have transformed the physical form and social dynamics of the American landscape." At this point, the book blends earlier photographs with illustrations in what the authors call "narrative cartography." These sketches allow you to grasp the complexity of the infrastructure. The story of "Cancer Alley" is told as never before, from detailed maps of displaced towns to the networks of underground pipes and salt domes. One of the more chilling maps reveals 25,000 miles of underground pipeline in the Gulf of Mexico. The book is a vital resource, pioneering methods that could be used to overcome our inability to imagine the scale of extreme energy production.  

Fracking's infrastructure is poised to engulf large stretches of the country. It will challenge legal scholars to refine their analytic tools to address novel and systemic risks. A few of these risks include: (1) Rural gas field ozone (because of fracking, ground-level ozone is no longer strictly an urban concern, as VOCs, fugitive methane, and nitrogen oxides mix and spread up to 200 miles); (2) Urban gas fields (Fort Worth will be the first, with around 6,000 wells drilled in the area and infrastructure within steps of homes); (3) Evaporation pits and other toxic chemical storage as future Superfund sites (the literature suggests that these have "rarely been examined to ascertain their chemical contents"); (4) Orphaned infrastructure that must be plugged, reclaimed, or otherwise addressed (a good percentage of abandoned wells leak, often due to poor cementing or corrosion); (5) Communication events (where fractures from one well reach another and threaten its integrity); (6) Exponential decay in well productivity and the investment practices that may increase the number of wells drilled to offset declines; and (7) Regional and global impacts such as water shortages, climate-forcing from methane leakage, and rapid change in rural landscapes. New species and scales of risk will strain environmental federalism arguments, which David Spence and Michael Burger applied to fracking and Robin Craig expanded to address links between water and energy policy. We need to account for the broader infrastructure of fracking in these debates. We also need to grapple with the fact that state agencies are ill-equipped to handle its expansion, and the halting pace of diffusion of best practices to counter its risks.

Then there is the matter of human health. Claims that water supplies are completely safe from fracking are just not true. For example, letters from the Pennsylvania Department of Environmental Protection, released under court order, included 161 impacted water supplies from 2008 to 2012. Impacts included "methane contamination, sediment, and frack water spills from the surface. Methane migration is the leading cause of damage." Well blowouts and spilled fracking fluids are easy to find. This is to say nothing of air quality. I'm working with a research team on air sampling near fracking sites in several states. We agreed not to disclose the data in advance of publication, but I can say that some of the results show levels that are immediately dangerous to life or health. Most recently, a peer-reviewed study from Duke compared samples from water wells within one kilometer of active drilling to samples from areas with no active drilling. Methane concentrations were several times higher in the active drilling areas. The study took pains to distinguish between naturally occurring methane near the surface and deeper shale gas disturbed by drilling. 

While these studies are critically important, a broader issue does not get enough attention in law reviews: the kinds of data that simply do not exist about fracking. A previous Duke study pointed out some of them, including the mechanisms of methane contamination and its health effects. There are many others, as debates over fugitive methane leakage rates and their impact on climate change suggest. There are little or no data on soil contamination near fracking sites. Water monitoring systems are sparse or nonexistent. Comprehensive data on spills are unavailable, or have to be pieced together. Health effects cannot be gleaned from Material Safety Data Sheets (MSDSs) alone, even for chemicals in fracking fluids that are not protected as trade secrets. One study had to combine MSDSs, toxicity data from several databases, Tier II reports filed under EPCRA, accident and spill reports, and studies in the broader literature to identify 944 products used in fracking fluids. It noted that "pathways that could deliver chemicals in toxic concentrations at less than 1 part per million are not well-studied, and many of the chemicals on the list should not be ingested at any concentration." States often do not gather data on water sources or water quality before fracking. Baseline data are woefully inadequate. Social scientists study the root causes of this "undone science," the distortion of research fields over time. Abby Kinchy and Simona Perry were the first to apply this literature to fracking, as part of an excellent workshop held at the Nicholas School of the Environment. Research on the legal drivers of undone science is desperately needed. Its importance is underscored by EPA's decision not to seek peer review of its water study in Pavillion, Wyoming.

If a detour through unconventional energy, the landscape of fracking, and novel and systemic risks does not cure your fracking fatigue, the Duke study and EPA's decision in Wyoming offer a disquieting juxtaposition. The Duke study shows that it is not easy to measure and track groundwater contamination from fracking. EPA spent a considerable amount of money to do just that, finding chemicals in test wells that were "the result of direct mixing of hydraulic fracturing fluids with groundwater in the Pavillion gas field." In the absence of peer review, the state will look into the matter. Meanwhile, ATSDR tells residents not to drink, cook with, or bathe in tap water. A similar turn of events in Pennsylvania and Texas should motivate you to get back to work.

The Voting Bonus During Jim Crow, Part I: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth

Over at Concurring Opinions, Gerard Magliocca has a very interesting post on the 3/5ths Clause, which, he points out, gave slave states increased representation in Congress and the Electoral College above what they would have had enslaved persons, who after all, could not vote, not been counted at all.    He observes that after abolition following the Civil War, the former Confederate states would be rewarded with an increase in federal power, because there would no longer be any people who counted only 3/5ths for purposes of apportionment.  The initial constitutional response was Section 2 of the Fourteenth Amendment, which reduced the representation in Congress of any state disenfranchising African American men.  In the long lawless decades of suppression of Africam American suffrage, no disenfranchising state lost a seat.  One problem was that the entire federal government was shaped, directly or indirectly, by the illegality. 

Ten years ago, I wrote a paper proposing that the mystery of the desuetude of Section 2 of the Fourteenth Amendment was explained by its repeal by the Fifteenth Amendment. 

The basic argument is simple.   In, say, majority-African American South Carolina, in, say, 1872, if the conservative minority refused to let African Americans vote, a U.S. District Court or the U.S. Congress choosing to scrupulously apply the Constitution could not apply Section 2 in lieu of actual enfranchisement, that is, they could not legitimately apply Section 2 and ignore the 15th Amendment.  Nor would it make sense, on a permanent basis, to apply both, to allow African Americans to vote, but to reduce South Carolina's representation.  First, once African Americans were voting, the textual and policy rationale for reduced representation would no longer exist.  Second, once African Americans were voting, to reduce the number of house seats might well result in taking away a seat from an African American.   In short, in a regime where the Constitution is enforced and contains an actual right to vote, a provision encouraging but not requiring enfranchisement is obsolete and superseded. 

Judges with Dementia

In Deere v. Cullen, a death row inmate argued in a habeas petition that the sentencing judge was senile.  The district court denied an evidentiary hearing.  A panel of the Ninth Circuit affirmed last month.  A dissenting judge wrote: “The majority holds that a judge suffering from dementia may sentence a man to death.” http://cdn.ca9.uscourts.gov/datastore/opinions/2013/06/03/10-99013.pdf

On the face of the opinion alone, the dissent seems to have the stronger argument (at least for a hearing), but either way the numbers suggest that judges with dementia are often presiding in death penalty and other cases.  Many states have no mandatory retirement age and the prevalence of dementia among persons 71 years or older is 13.9%. http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2705925/

The majority in Deere dismissed affidavits from three attorneys who had practiced in front of the sentencing judge on the ground that none of them sought disqualification for incompetency.  But the pressure against doing so is obvious.  Is there a better solution?

Most states do have mandatory retirement ages.  However, those no doubt oust many good judges and do not affect judges with early onset problems. Should judges or candidates for judgeships be screened for cognitive capacity?

Will Baude: Cited in the Supreme Court

This is the third in a series of posts about scholars cited this term in the U.S. Supreme Court.

Will Baude is a fellow at Stanford Law School and will join the University of Chicago Law School this year.  After graduating from Yale Law School, he clerked for Judge Michael McConnell and Chief Justice John Roberts.

Congratulations on being cited in the Supreme Court.  What was the work and how was it used?

My article is Beyond DOMA: State Choice of Law in Federal Statutes, recently published in the Stanford Law Review.  It argues that striking down the Defense of Marriage Act (as the Court ultimately did in Windsor) would prompt a serious choice of law problem-- when a couple's same-sex marriage is lawful in one state but not another, does the federal government treat them as married?  Justice Scalia cited the article in his dissent, arguing that the choice of law problems I had identified provided a rational basis for upholding the statute.

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

Both, but it also depends on the particular project.  I wrote the DOMA paper in part because I was surprised that so many people thinking about the DOMA challenges either didn't understand the choice of law problem, or thought the answer was obvious (although not always the *same* "obvious" answer).

Do you do anything in particular to share your work with practitioners?

Not systematically.  I like to see my work mentioned on Twitter and blogs that practitioners may read, and I mentioned the article to practitioners I knew, but I didn't really have an outreach campaign.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

First, I think it's true (though of course not all of it is trying to be useful). 

Second, I don't think it matters.  As Judge Frank Easterbrook once put it: "A free mind is apt to err-- most mutations in thought, as well as in genes, are neutral or harmful-- but because intellectual growth flows from the best of today standing on the shoulders of the tallest of yesterday, the failure or most scholars and their ideas is unimportant. High risk probably is an essential ingredient of high gain."

Third, it would be nice if judges who complained about the uselessness of legal scholarship told us what specifically they would like scholars to address instead.

Are you happy with the way your work was used?

Mostly.  I didn't write the article with a strong view of DOMA's constitutionality either way, but I'm happy to see somebody on the Court thinking seriously about the choice-of-law consequences.

Clinical Legal Education and the Future of the Academy

I may be naive, but it's mystifying to me that there's still serious debate over the value and import of clinical legal education.  I admit that I'm not an objective observer -- participating in a clinic as a law student was the most valuable thing I did during those three years, and I've spent the past decade happily teaching in a clinical setting.  Yet, given the dramatic drop in law school applications combined with the collapsing job market and escalating student debt, I'm surprised that more law school deans aren't promoting clinical and experiential education, as it may be one of the best strategies for keeping American law schools afloat.  

Although this reality is slowly dawning on some law school administrators (and development officers) at places like Washington & Lee, UC-Irvine, and CUNY, it's those who regulate admission to the bar along with leaders of the practicing bar who are taking the lead.  In recent months, rule changes in New York, Arizona, and California and important reports issued in New York and Illinois reflect the shifting landscape.  In New York, a report by the state bar called for an expansion on the cap on clinical credits, leading the NY Court of Appeals to acknowledge that supervision by law school clinics was the "gold standard" and to amend its bar admission rules so that as many as 30 of 83 law school credits may come from clinical courses.  The NY court also allowed work done in clinics to apply to the new 50 hour pro bono bar admission requirement.  

Meanwhile, in California the state bar is considering a bar admission requirement that applicants complete at least 15 academic credits of practice-based, competency skills courses during law school or participate in an internship or clerkship; 50 hours of legal services devoted to pro bono or modest means clients, either before or after admission; and 10 extra hours of Minimum Continuing Legal Education (MCLE) after admission, specifically focused on competency skills training.  The State Bar's Task Force on Admissions Regulation Reform unanimously approved the draft proposal in June; the proposal needs only approval from the full Board of Trustees and California Supreme Court.  Given that California is the largest bar in the country, any change in their admission requirements will be closely followed by others. 

Arizona has taken a different approach, amending its bar admission rules to allow law students to take the bar exam in February of their third year, provided they have no fewer than 8 credits left to complete.  At the University of Arizona, third year law students will spend the first two months of that year studying for the bar exam and participating in an 8-10 week "theory to practice" residency that is "designed to explore real-world, practical topics relevant to legal professionals, such as applied ethics and professionalism, economics of modern law practice, cutting-edge issues in policy and law and how to better serve client needs."  

Perhaps most dramatic, the Illinois State Bar Association has issued a report urging law schools to transform the second and third years "to help students transition to practice through apprenticeships in practice settings, practical courses, and teaching assistantships, rather than more traditional doctrinal courses."  The report also called for the full inclusion of clinical and legal writing faculty in law school governance.  

On the national level, members of the Clinical Legal Education Association (CLEA) have petitioned the ABA Task Force on the Future of Legal Education and the ABA Section for Legal Education and Admissions to the Bar to require at least 15 credits of professional skills instruction.

Having served for several years on the admissions committee at UNC, including this past year as chair, I can attest to the fact that prospective students are consistently heartened to hear about clinical and experiential opportunities in our law school curriculum.  I can also share from my own teaching evaluations as well as those of my clinic colleagues (which I now review as interim clinic director) that our third year students repeatedly say the clinic was their best course/experience in law school.  Likewise, my experience practicing among the bar and alongside Carolina alumni has confirmed that prospective employers and donors are also strongly supportive of "transition to practice" type courses, externships as well as clinical course offerings.  They recognize that otherwise, the responsibility and cost of training and preparation for practice falls to employers, clients, and the graduates themselves -- something that the down economy can no longer subsidize.  In addition and of particular importance to me, when law schools fail to endorse skills and professional training in their curricula, this disproportionately disadvantages students who are unable to afford/independently finance alternative opportunities for training.    

Yet, the legal academy has continued to drag its proverbial feet, a fact acknowledged by the California task force, which disapprovingly noted "the persistent, unresolved debate in the legal academy about whether clinical legal education ought to be a mandatory part of the standard legal education curriculum."  More than twenty years after the dissemination of foundational studies recognizing the import of experiential legal education, including the MacCrate Report and the more recent Carnegie Report by my colleague Judith Wegner et al. and Best Practices for Legal Education by Roy Stuckey et al., students can graduate from an ABA-accredited law school and sit for the bar having met only the minimum ABA accreditation requirement of a single credit (out of an average of 89 academic credits) of professional skills, meaning that they can be deemed ready to practice law without ever handling a client's legal problem.  In contrast, other professions -- including medicine, veterinary medicine, architecture, social work, dentistry and pharmacy -- require at least one quarter, and up to more than one half, of a student's pre-licencing education be fulfilled by in-role supervised professional practice.  

So, why the academy's reluctance to mandate that professional skills training and experiential learning be a foundational part of the curriculum -- and that faculty who teach in these areas receive comparable pay and voting rights?   As for the first part of the equation, the usual retorts that such courses are too expensive and too difficult to implement are losing their teeth, as more than a dozen law schools -- both public and private, rural and urban -- have worked hard to provide cost-effective ways to mandate clinical education, and many more now guarantee a clinical experience for every student (see Karen Tokarz et al., "Clinic Requirements, Clinic Guarantees, and the Case for Experiential Pluralism: The New, Improved American Law School Curriculum," 43 WASH. U. J.L. & POL’Y (forthcoming fall 2013)).  As for the issue of faculty status, my personal feeling is that until the schools at the top dismantle the hierarchy in which clinicians are second or third class citizens, the majority will not follow.  

Your thoughts?  Please share in the comments.   

This Post is Full of Argle Bargle

At the end of June the legal community was aflutter with Justice Scalia's use of the term "argle bargle" in his Windsor dissent.  Indeed, it was the first time the U.S. Supreme Court had uttered the phrase.

But it was not the first time "argle bargle" has appeared in a judicial opinion.  That distinction goes to Judge Edward Weant of the Court of Special Appeals of Maryland, who used the term in 1979 to begin his decision in a family law case, noting "The basis for this argle-bargle was laid with the filing of a decree of divorce...."  See Antonelli v. Antonelli, 408 A.2d 773 (Md. App. 1979).  According to an obituary for Judge Weant, "A stickler for courtroom procedure, Judge Weant earned a reputation for his strict adherence to decorum and for not suffering unprepared or ill-dressed attorneys."  In other words, courtroom argle bargle.

Judge Weant used the phrase again in 1985 in a personal injury case, starting the opinion again with "This argle-bargle was precipitated by these facts."  See Mech v. Hearst Corp., 496 A.2d 1099 (Md. App. 1985).  Curiously, the Court of Special Appeals of Maryland used the term once again in 1994, without any reference to the prior cases; Judge Weant had retired by then so obviously was not on the panel.  See Oakhampton Ass'n, Inc. v. Reeve, 637 A.2d 879 (Md. App. 1994).  The Maryland appellate court apparently had a monopoly on "argle bargle."  Until Justice Scalia in Windsor.

We now seem to be at the height of argle bargle-ness in judicial opinions, as yet another court has recently used the phrase.  On July 1, the U.S. Court of International Trade stated, "The first determination as to whether this argument has merit, or is merely argle-bargle, is a determination entrusted by Congress to the Department of Commerce, and the Court will refrain from considering it."  See Foshan Nanhai Jiujiang Quan Li Spring Hardware Factory v. United States, 2013 WL 3306410 (C.I.T. 2013).

Two argle bargles in one year!  What's next?  "Mumbo-jumbo?"  (245 hits on Westlaw, most recently just yesterday from the D.C. Circuit, albeit quoting from a prior case).  "Fancy-schmancy?" (3 hits).  "Gobbledygook?" (amazingly, 128 hits!).

I've now realized my greatest regret while clerking for a 5th Circuit Judge:  I never snuck "argle bargle" into a judicial opinion!  Sure, I once began a proposed draft of an opinion involving the Ford Motor Company with "A contract dispute drives this case."  But that's nothing compared to the ingenuity of "argle bargle!" Avast!  Do I have argle-bargle envy?

Sneak and Peek Statistics

How (and how often) are sneak and peek searches being conducted today?  We have good data from fiscal years 2007-2011, based on annual reports by the Administrative Office of the US Courts—reports required by Congress in the 2006 USA Patriot Act re-authorization. 

So far the trendline is consistent:  up, up, up.  To repeat a chart from my first post:

(This chart, and the ones below, are from my forthcoming article, The Rapid Rise of “Sneak and Peak” Searches, and the Fourth Amendment “Rule Requiring Notice,” 41 Pepperdine Law Review __ (2014), Figure 1, draft available here; see the article for details.)

In an earlier post, Orin Kerr suggested in the comments that some of these numbers may be coming from warrants used to obtain e-mails or to use GPS tracking devices.  The data from the Administrative Office do not break this down.  The reporting requirement in section 3103a(d) applies to any “warrant authorizing delayed notice . . . under this section,” so that could include delayed notice warrants used for e-mail or GPS tracking rather than physical entry.  So now I have a new research project . . . . 

In what sorts of cases are delayed notice search warrants being used?  Delayed notice search warrants (and section 3103a) have been criticized on the grounds that they were authorized to fight terrorism, yet they are being used in very few terrorism investigations (a few per year) and many, many drug investigations as well as other seemingly run-of-the-mine investigations:

Here’s the same data presented in pie chart form for one year, FY 2010, which is a bit easier to digest:

There is some merit to the criticism stated above—the USA Patriot Act as a whole was clearly sold to the public, and to legislators, as a tool to combat terrorism; yet section 3103a is far more commonly used in drug and other investigations.  That said, the DOJ was always clear that section 3103a would authorize delayed notice warrants in any type of criminal investigation, not only terrorism cases, and legislators (at least some of them) understood this (and some complained about it):

-Representative Jerry Nadler (D-NY-10), whose district includes the site of the World Trade Center, in October 2001:  “There may be justification for delaying notification of a search warrant sometimes, but in all criminal investigations?  What does that have to do with terrorism?”

-Representative Spencer Bachus (R-AL-6), in September 2001:  the delayed notice search warrant provision “doesn’t just involve terrorist activities.  This involves all Americans.”

-Senator Russ Feingold (D-WI), in October 2001: “the bill contains some very significant changes in criminal procedure that will apply to every federal criminal investigation in this country, not just those involving terrorism.  One provision would greatly expand the circumstances in which law enforcement agencies can search homes and offices without notifying the owner prior to the search.”    

The critics were outvoted.  Welcome to the legislative process.

Another issue:  how long can police wait until they notify the occupant that they searched her home or business?  With “black bag” jobs, the answer was, “Let’s never tell.”  The DOJ originally sought authorization for a 90-day delay, subject to extensions.  Congress rejected that request and instead initially required notice to be given “within a reasonable time” after executing the warrant.  Senator Patrick Leahy stated his hope that this would ordinarily be within seven days.  In 2005, the statute was amended to provide for delay of up to 30 days, subject to extension. 

The action is in those final three words.  What the DOJ failed to get written into the law they have nonetheless succeeded in getting in practice.  From 2007-2011, the most common period of delay authorized by issuing courts (including extensions) is 90 days.

Next post:  What does the Fourth Amendment have to say about all this?  (Preview:  “The Fourth Amendment does not deal with notice of any kind.”  United States v. Pangburn, 983 F.2d 449, 453-54 (2d Cir. 1993).)

Quote of the Day: Baseball, Law, and-Religion Edition

Slate's John Dickerson on baseball: "The Catholic Church has no papal decree so complicated and misapplied as the infield fly rule."

Maybe I can pitch my recent (and ongoing) scholarly agenda to the law-and-religion folks.

Procedure in constitutional challenges, ctd.

Last week, I wrote about courts (arguably) misapplying Twiqbal in constitutional injunction action, using plausibility to avoid addressing questions of law head-on on a 12(b)(6) motion. The en banc Fourth Circuit gives us another example, in Greater Baltimore Center for Pregnancy v. Mayor of Baltimore, one of two cases (the other decision, involving a similar regulation from Montgomery County, MD, is here) challenging local regulations requiring church-affiliated crisis pregnancy centers to post signs in their lobbies stating that they do not provide abortion or comprehensive birth control referrals, services, or counseling.

The district court in Baltimore Center granted a permanent injunction on summary judgment without giving the City an opportunity to take certain discovery. Without reaching the First Amendment merits, the majority (written by Judge King, who wrote an outraged dissent from the original panel decision) held that summary judgment was improper and the city should have been given an opportunity for discovery on a number of issues, primarily the status of the centers as commercial enterprises (which determines whether this is compelled commercial speech, which in turn affects the standard of First Amendment scruriny). Judge Niemeyer (who wrote the panel opinion affirming the district court and invalidating the regulations) dissented, insisting that all of this involved questions of law for which discovery is unnecessary and inappropriate. Whether speech is commercial or involves commercial and non-commercial speech inextricably intertwined is a question of law and, in this case, obvious, such that discovery should not enter the picture. As with 12(b)(6), this all illustrates of how procedures developed to handle fact-intensive cases apply to more law-intensive ones. And how should courts treat facts such as the legislative record for procedural purposes?

Political valences are nakedly obvious in this decision. Both dissents accuse the majority of using procedure to undermine the plaintiffs' rights and accuse the city of abusing discovery as a way to deny plaintiffs justice. This is, of course, a switch from the ordinary viewpoint (especially for judges such as these dissenters), where it is plaintiffs abusing discovery and judges protecting defendants from that abuse. Of course, the (likely) competing substantive views of reproductive freedom continually bubble to the service; this is prevalent in Judge Wilkinson's solo dissent, which accuses the majority of twisting in all directions to aid the choice movement and warns that compelled speech can be used against both sides in this debate. This is true, although again, attitudes about the topic seem to affect First Amendment analysis on all sides.

The last noteworthy point is the disagreement about the effect of a preliminary injunction. In response to the abusive-discovery-denying-liberty point, the majority offered that the district court could have granted a preliminary injunction, thereby protecting the center against having to post the signs until discovery could work itself out. At the same time, the judges crossed swords over how much effect to give a preliminary injunction. The dissents both cited to the Montgomery County case (which involved a preliminary injunction) as establishing that the centers engaged in non-commercial speech to which strict scrutiny applied. But the majority insisted that a preliminary injunction is just that--preliminary--meaning it is subject to abuse-of-discretion review and does not firmly establishing constitutional principles. This is questionable; because the grant and denial of a preliminary injunction is immediately appealable as of right, much constitutional litigation (including appellate and SCOTUS review) occurs at the preliminary injunction stage.

I had thought these cases might be ripe for SCOTUS review (there are four First Amendment cases on tap for next year, one only indirectly--more than this past term, but less than in past terms). But the cases are so bound up in procedure, I wonder if either is the right vehicle, at least right now.

A Missed Opportunity: Cert. Grant in Air Wisconsin v. Hoeper

In June the Roberts Court granted certiorari in its first libel case, Air Wisconsin Airlines
Corp. v. Hoeper, __P.3d__, 2012 WL 907764 (Colo. 2012), cert. granted __U.S__
(June 17, 2013). For a media lawyer, this development should be exciting. Unfortunately the Supreme Court granted certiorari limited to a narrow question of relatively little relevance to the media. Here's the story. 

In Hoeper an employee of Air Wisconsin Airlines informed the Transportation Safety Administration that an Air Wisconsin pilot was a possible threat and might be unstable. Earlier in the day, the pilot had failed a flight simulation test and had lost his temper, shouting and cursing at Air Wisconsin employees conducting the test. Air Wisconsin previously had stated it would fire the pilot if he failed the test. After the pilot’s outburst, employees of Air Wisconsin discussed his behavior and the fact that a TSA program allowed him to carry a weapon on an aircraft. An employee then reported the pilot to TSA as mentally unstable, potentially armed, and disgruntled over having been fired that day. The pilot sued for defamation.

Air Wisconsin moved for summary judgment based on the ATSA immunity provisions, but the trial judge denied the motion on the grounds that “the jury was entitled to resolve disputed issues of fact that controlled the determination of immunity.” After rejecting the airline’s claim of immunity, the jury found its statements to TSA were defamatory and made with actual malice. The trial judge entered the jury’s verdict of $1.4 million, and the airline appealed. A Colorado court of appeals affirmed, holding that the jury’s finding of actual malice was supported by clear and convincing evidence, and that statements at issue were neither opinion nor substantially true.

The Supreme Court of Colorado affirmed. Although the trial court erred in “submitting the immunity question to the jury” rather than determining the question as a matter of law before trial, the Colorado Supreme Court held that the error was harmless because Air Wisconsin’s statements were not entitled to immunity. Under the ATSA, an air carrier is not entitled to immunity for reporting a security threat to TSA if the report is made with knowledge or reckless disregard of its falsity. The Colorado Supreme Court determined “based on the record evidence” that Air Wisconsin’s defamatory statements were made with reckless disregard as to their falsity. Indeed, the court found that clear and convincing evidence supported the jury’s finding of actual malice. The court also determined that the statement that the pilot was “mentally unstable” and thus a threat to airline security was not a protected opinion but instead implied a false assertion of fact. The court found “substantial and sufficient” evidence to support the jury’s determination that the statements were false.

Three justices, dissenting in part, contended that the court’s opinion “threatens to undermine the federal system for reporting flight risks.” The dissent contended that the air carrier’s statements about the pilot were substantially true, because the pilot had indeed had an angry outburst during a training session and was facing termination at the time Air Wisconsin employees reported him to TSA. According to the dissent, Air Wisconsin thus was entitled to immunity as a matter of law.

Obviously the scope of air carrier immunity under the ATSA is an important question, and a narrow interpretation of that immunity might deter air carriers from reporting employees who pose threats to air safety to the TSA. From a media lawyer's perspective, the case raises another important question, and one with which lower courts have struggled: Must courts engage in independent appellate review of jury determinations of falsity in defamation cases involving matters of public concern?  The Supreme Court long ago held that courts must engage in independent appellate review of the jury's actual malice determinations, and actual malice must be established with "convincing clarity." See Bose; Sullivan. "Actual malice," of course, is a term of art meaning knowledge or reckless disregard of falsity. Because the actual malice determination is so closely linked with the falsity issue, some but obviously not all lower courts have assumed that they must independently review jury determinations for "clear and convincing evidence" of falsity. Indeed, the Reporter's Committee for Freedom of the Press filed an amicus brief in support of Air Wisconsin's petition for certiorari, urging the Court to take the case to resolve the uncertainty among lower courts regarding whether independent appellate review of falsity determinations is required.

Alas, the Supreme Court granted cert limited to the question whether a court may deny an air carrier statutory immunity under ATSA for reporting an employee as a threat, without first determining that the air carrier's report was materially false. As documented here, the Roberts Court has shown little interest in addressing the concerns of the Fourth Estate, and its limited grant in Hoeper arguably continues that trend.

 

Wayne Logan: Cited in the Supreme Court

This is the second in a series of posts about scholars cited this term in the U.S. Supreme Court.

Wayne Logan is the Gary & Sallyn Pajcic Professor of Law at the Florida State University College of Law.   A graduate of the University of Wisconsin School of Law, he clerked for Justice Louis B. Meyer of the N.C. Supreme Court and Robert R. Merhige, Jr. of the U.S. District Court for the Eastern District of Virginia.

Congratulations on being cited in the Supreme Court.  What was the work and how was it used?

Knowledge as Power:  Criminal Registration and Community Notification Laws in America (Stanford Univ. Press 2009).

The majority [in United States v. Kebodeaux, 2013 WL 3155231 (U.S. 2013)] cited the book's history-related chapters to establish the longevity of state registration laws.

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

As a general matter, I hope that both audiences find my work useful. With Knowledge as Power, however, I did my best to write in an accessible style, which would appeal to lay readers as well as scholars and courts, given the broader interest and timeliness of the subject matter.

Do you do anything in particular to share your work with practitioners?

When doing CLEs and the like, I make a point of discussing my work whenever possible. It is often the case that members of the bench and bar are rather interested in the work of law professors, especially if it ties into issues they see at work and think about. 

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

I think the view does not gibe with reality. Of course, some scholarship does not directly bear on the work of courts and practitioners. However, much of the work of academic lawyers does have direct (or indirect) impact. This is especialy so in my area, criminal justice.

Are you happy with the way your work was used?

Yes.

What advice do you have for scholars who want their work to be influential in the courts?

While I certainly do not think court citations should drive one's scholarly focus, I would say that empirical and doctrinal work, synthesizing and analyzing the law's operation, and historical accounts (such as in my case), are the likely forms of scholarship to attract judicial attention.

Did your family or colleagues do anything for you when the opinion case out?

Nope.

Settlement in the curriculum

One of the sample complaints I give my Civ Pro students is from Mort v. Lawrence County Children & Youth Servs., a § 1983 action brought by a woman whose newborn was taken away by the County after a false-positive drug test (the result of the woman eating an "everything" bagel from Dunkin' Donuts). It's a well-drafted complaint, so very good for illustrating joinder, pleading structure, jurisdiction, and Twiqbal. A student shared with me this report that the case settled for $ 143,000. This is a pretty good sum for a non-physical injury due process claim. And a good reminder to civ pro students that most monetary cases, at least those with well-structured complaints, settle.

Expenditures, Tuition, and U.S. News

Back in November I argued that reformers should be working to get one of the big drivers of tuition increases -- the U.S. News rankings -- to include tuition as a factor.  If folks want tuition to go down, it helps if there's a reputational incentive, and right now the U.S. News rankings incentivize higher and higher tuition rates.  Now comes word from Brian Leiter that the ABA will no longer ask schools (on an annual basis) for information about their expenditures per student.  I agree with Paul Caron that this is a very big deal.  But it may not have any real effect if U.S. News does not take the cue and stop using expenditures as a factor.

And I think there are good reasons for Robert Morse to pause and consider a moment before eliminating expenditures from the formula.  Expeditures per student reflect the amount of money that the institution is actually spending towards the education it provides.  Yes, it provides a perverse incentive to spend, spend, spend.  But on some level, as a consumer I want a law school to spend its money on my education.  The expenditures-per-student factor is a type of consumer protection mechanism -- it makes sure that law schools use the monies they take in on legal education, rather than diverting them to other uses.  In non-profit schools, that money could be diverted to other schools or programs; in for-profit schools, it could go back to the shareholders.

So if U.S. News simply eliminated expenditures as a factor, that would only mean that schools would no longer be incentivized to spend money on students.  Would tuition automatically go down? 

Not necessarily -- it depends on the price sensitivity of the consumers.  It could, in fact, lead to a worse result for students -- tuition levels remain steady, but spending on students goes down.  A worse education at the same price!

[As a sidenote, I have the same response to those who think a two-year J.D. would be a great way to help students.  Law school tuition has climbed rapidly over the last decade without any real changes in legal education.  This is based in part on historically weak price discrimination by students.  Why would law schools charge less for two years than for three, if they could charge the same rate?  Sure, tuition might drop initially, but over time it could and likely would rise to the same level as it was before.  That's a great deal for students -- a third less education at the same price!] 

If U.S. News follows the ABA's lead and takes out expenditures, it needs to add in a factor for tuition.  It could choose either list price or "real" tuition (as discounted by scholarships); both have their pros and cons.  But adding in tuition is necessary to keep the rankings's consumer-protection focus.  If U.S. News wants to encourage schools to trim back or even eviscerate their educational spending, then eliminating expenditures would be sufficient.  But I don't see how that alone would help students.

Prosecutors and Prison Admissions: The Main Story

In my last post, I briefly stated that prosecutorial filings have driven prison growth, at least since 1994. Here, I’ll demonstrate more carefully the impact of filings on admissions—and do so almost entirely in pictures, so no real reading required! My next few posts will then explain why longer sentences have not mattered that much. Taken together, these results imply that prosecutorial filings drive overall prison population growth.

In a criminological/graphical version of “Name That Tune,” I can show that prosecutorial filings are at the heart of prison admissions growth nationwide¹ since crime began falling in five pictures.

First, crime has dropped steadily since 1991: violent crime by 48%, property crime by 43%. So for the period starting in 1994, crime only declines.

Note though—and I’ll come back to this important-but-often-overlooked point in a future post—that crime is still high by historical standards. Between 1960 and 1991, violent crime soared by 371% and property crime by 198%. Crime is at life-time lows only for those under about 42 years old. For Boomers, the country remains substantially more violent than when they were young, and much of the crime drop they have experienced has come about from self-protective measures—not going out at night, car alarms, etc.—that don't make us feel safer. There's a reason crime has been such a powerfully salient issue for so long. 

But for our purposes here, the pool of violent and property offenders has declined since 1991.

Second, clearance rates for index crimes have been flat. Huge changes in police strategy and technology, no real change in clearance rates. Except for declines for murder, aggravated assault, and rape. This is puzzle beyond the scope of this post, but it’s a fascinating one.

Ah, you say, what about drug arrests? Those are more discretionary. Fair question. But even if we add in non-marijuana drug arrests,² we see that total arrests decline by about 8.5% in my sample of 34 states (and by slightly more in all 50 states). There is an increase in total arrests after 2000 due to increased drug arrests, but nowhere near enough to offset the general decline in all arrests.

So total inputs into the criminal justice system have declined, whether you start with “crime” or “arrests.” Yet between 1994 and 2010, prison admissions in my sample rose by 40%. How?

The next graph plots total felony filings and total admissions. The former grows by 37%, the latter by 40%. This certainly suggests that filings are playing a major role.

We can make the point even more clearly. The next graph plots filings per arrest and admissions per filing. (Recall that convictions are hard to see in the data.) The results are striking: filings per arrest soar, while admissions per filing remain flat.

The basic lesson: once you commit a crime, you are no more likely to get arrested than before (except for some increased risk for drug offenders). Once arrested, though, you are much, much more likely to face a felony charge: the probability an arrest results in a felony filing rose from 0.375 to 0.573 over the period. Once charged, though, a defendant is no more likely to go to prison—the probability hovers at around 0.26 the whole time.

So these results, combined with those I’ll post soon showing the stability in time served, add up to a surprisingly simple story: the post-1991 prison growth is due to one actor—sort of ³—and more specifically to one choice by that actor. The policy implications of this are significant, and I will discuss them in more detail after my posts on sentence length.

 

¹A note before we begin. These results, which come from this paper, and which are summarized here, draw on a sample of thirty-four states. As the map below indicates, these states are a fair cross-section of US states in terms of geography, industrialization, politics, etc. (Ignore the colors: if a state is any shade of blue, I use it here.) Moreover, when I’ve compared some of the numbers from my sample to nation-wide numbers, they all track fairly closely. I’m not counting this as one of my graphs, though—it’s background info.

²It's very hard to go to prison on a marijuana charge. A short jail term, perhaps. But prison is unlikely.

³While the ultimate decision to file charges rests with the prosecutor, he may get substantial assistance from other actors. Police can bring better or worse cases, making the prosecutor’s job easier or harder, and legislators can provide prosecutors with more or fewer crimes to use as leverage to extract more and better pleas.

The Poor are Still Losing: Gideon's Empty Promise

This past weekend I spent some time thinking about the future of indigent public defense and what role, if any, defense lawyers can play in a system beset by racism and classism.  First, I read a provocative essay by Paul Butler, "Poor People Lose: Gideon and the Critique of Rights," in the Yale Law Journal's most recent issue, which contains over twenty articles (all available for free download) by law professors and lawyers reflecting on the 50th anniversary of Gideon v. Wainwright.  

Professor Butler makes a strong case for the idea that the focus on rights discourse -- the right to counsel at trial, the right to counsel during plea negotiations, the right to Miranda, the right to a jury trial -- ultimately has little impact on a criminal justice [or juvenile justice] system in which poor people nearly always lose.  Why do they lose?  Because, as Butler explains, protecting defendants' rights is much different than protecting defendants:  "What poor people, and black people, need from criminal justice is to be stopped less, arrested less, prosecuted less, incarcerated less."  Providing a lawyer -- especially one who is underpaid, overworked, and under-resourced -- does little to change this calculus.  As Butler reminds us, the reason that being poor and African American substantially increases the risk of incarceration has more to do with class and race than with the quality -- or lack thereof -- of the indigent defense system.  

So, what do we do about it?  That, Butler acknowledges, is the hard part.  We certainly don't discourage law students from becoming public defenders, because on an individual level, they do help clients [more on this below].  But what is the alternative?  Michelle Alexander has urged defendants to take their cases to trial, putting a stop to the vicious plea mill that has subsumed the adversarial process, and to "crash the justice system."  Butler has called for "racially based" jury nullification for nonviolent, victimless crimes as well as decriminalizing or legalizing drugs.  I'm not convinced that these specific strategies in and of themselves will catalyze a social reform movement large enough to alter the system, but it's clear that nothing should be discounted, for the situation is dire.  

With all of this percolating in my mind, I happened to watch the new HBO documentary, "Gideon's Army," which follows three public defenders working in under-resourced counties in Georgia and Mississippi.  The film was engrossing and offered (what seemed to me, at least) a realistic portrayal of the challenging and gruelling nature of indigent defense.  The three young PDs -- two women and one man, all African-American -- were dedicated and driven, although one understandably walks away from the job when she can't pay her bills to support herself and her son.  The film concludes (perhaps for marketing purposes) with a happy ending -- an acquittal after a jury trial, which made me -- a total sap -- cry as the PD was hugged by her (young black male) client and his (low-income) single mother.  

But as the credits rolled, I didn't feel much like recruiting baby PDs for this "army" or donating to the organization that inspired the documentary -- the Southern Public Defender Training Center (SPDTC) (now called "Gideon's Promise"), led by the dynamic (white male) Jon Rapping.  Instead, I wanted to crash the system.  The film's explicit message is that there's a "battle" going on in which dedicated and hard-working PDs can win if only enough of them sign up, endure slave wages, and get down with representing one poor person of color (and the occasional white poor person) after another, as our prisons only continue to expand.

The director, Dawn Porter, draws clumsy parallels to the civil rights movement (and even offers a cameo by John Lewis who appears at a fund-raising event for SPDTC), but there's no acknowledgement that the lawyers who represented civil rights workers in the south had clear goals and objectives, while these PDs are fighting for...what exactly?  By acting as cogs in a broken machine, one that even Rapping admits is "hell,"  they are not bringing about systemic change.  Yes, they may make a difference to an individual defendant, but there is no talk of broader-based action -- such as a demand for a living wage, reasonable caseloads, or enough funding to perform basic investigative tasks and forensic testing.  Let's be real -- how could there be this sort of activism?  These lawyers are barely hanging on, working 15-16 hours/day and scrambling for change to buy enough gas to get them to the courthouse.    

Don't get me wrong -- I was a proud public defender for ten years, and as a clinical professor, I still represent the same client population; I am heartened whenever one of my students enters this field.  But I would never suggest that the work of the average PD, like the ones featured in the film and in most offices across the country, actually transforms the populations they serve or that the appointment of a lawyer -- the RIGHT to a lawyer -- helps dismantle the incarceral state.  

I would also be reluctant to recruit young lawyers for this work using the pitch championed in the film, because as romantic as it sounds, it will inevitably attract people for all the wrong reasons, such as one of the women who balks when a client feels no remorse for his heinous crime.  She thought she was on the "right" side of the war, only to find that the lines are not so easily drawn.  As Travis Williams, my favorite PD in the film said, "I don't see how you can do this job for any period of time and not love it.  Either this is your cause or this ain't."  He's the guy who has tattooed the names of his clients who have been convicted after trial on HIS OWN back.  He will be a career PD, and his clients will be truly blessed to have him on their side.  He also recognizes, however, that the work is thankless, that the conditions are unlikely ever to change, and that it's more of a marathon than a war.  A marathon with no end in sight.    

Your thoughts?  Please share in the comments.   

 

Matthew L.M. Fletcher: Cited in the Supreme Court

This is the first of a series of posts about scholars cited this term in the U.S. Supreme Court. 

Matthew L.M. Fletcher, a well known scholar of federal Indian law, is Professor of Law at the Michigan State University College of Law. A graduate of Michigan Law School where he was an editor of the Michigan Journal of Race and Law, he now runs Turtle Talk, a leading blog covering American Indian law and policy, and directs MSU's Indigenous Law Program.

Congratulations on being cited in the Supreme Court. What was the work and how was it used?

The work is The Supreme Court and Federal Indian Policy, 85 Neb. L. Rev. 121 (2006). Justice Thomas quoted me in his concurrence arguing in Adoptive Couple v. Baby Girl (No. 12-399) that Congress likely did not have authority to enact the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. The quote was in a parenthetical and read: "As a matter of federal constitutional law, the Indian Commerce Clause grants Congress the only explicit constitutional authority to deal with Indian tribes".

In your work, do you see the Supreme Court and other courts as the primary audience, are you writing for other scholars, or do you target both?

At the time I wrote this piece (summer of 2005), I was untenured and writing for second-year law students, hoping for the best placement possible. I guess that also means I was writing for other scholars in the field who focused on Indian law and the commerce clause. I am more cognizant of my audience now. I now focus particular papers on particular audiences -- tribal judges, Indian lawyers, and other scholars. Occasionally I do try to target national policymakers, including Congress and the courts. I was pretty successful, if I don't say so myself, with a paper I wrote on the Indian Gaming Regulatory Act, which has been cited by five different courts.

Do you do anything in particular to share your work with practitioners?

I operate a law blog (Turtle Talk) in which I distribute all of my work -- I believe that the large majority of regular readers are practitioners. I distribute an enormous amount of primary research material (court cases, briefs, etc.) that most interests practitioners. Turtle Talk, I am told, is required reading for the higher-ups at the Bureau of Indian Affairs, the Interior Solicitor's Office, and the OSG. We're also trying to reach federal and state court clerks. I also give talks to judicial conferences and practitioner-oriented Indian law conferences.

What’s your reaction to the view expressed by some jurists that much legal scholarship is useless to the legal system?

Inspiring. I wrote two papers on the influence of Indian law scholarship on the courts: here and here. Judges and their clerks often face a steep learning curve in Indian law cases, and they continue to rely upon Indian law scholarship quite a bit. I think the critique of legal scholarship overall, especially from someone like the Chief Justice, is made partially in jest. It is often true that much legal scholarship is more theoretical than a judge can use on a practical level to answer a hard question in particular case. I've written a couple pomo articles, and a few articles on law and literature, that I don't expect to cited by any court. But I know they have been consumed by an audience, no matter how small. Some judges do find legal scholarship to be badly done, or are overwhelmed by the sheer mass of law review articles from which to draw, and some of those judges are loudly critical. I even suspect without knowing that for some judges the source of the discontent may be the rise of speciality law journals, most especially those associated with social justice, race, and gender. While I think the critique is overblown, it is generating fascinating and fruitful interactions between scholars and judges.  

Are you happy with the way your work was used?

Well, not really, but I feel silly complaining about it. The quotation of my work was largely out of context, though it wasn't untrue. It is telling that the citations in the footnote to my quoted sentence were to a legal scholar that Justice Thomas also quoted in the same opinion that tends to agree with his view of federal power in Indian affairs, Sai Prakash, and to a Supreme Court opinion that Justice Thomas is rallying against, the lead opinion in United States v. Lara. In fact, I wrote the article as a response to Justice Thomas's separate opinion in Lara where he makes similar arguments to those he made in Adoptive Couple. Nevertheless, I'm thrilled to be cited by any court and in any brief, anywhere. I'm hoping the larger picture I'm trying to paint is being seen in chambers.

What advice do you have for scholars who want their work to be influential in the courts?

Balance and depth. And pay attention to subject matter. I say balance because there are always opposing arguments, and the better you recognize those arguments and respond to them, the more likely you'll be seen as a serious scholar. Depth, because you're going to get the attention of the judges and their clerks in their research by citing all the important cases and scholars. For example, I can imagine Justice Thomas's clerk came across my paper because I cited Prof. Prakash extensively, and also perhaps because another scholar whom Justice Thomas relied on (Rob Natelson) cited me so much. And finally, subject matter -- in Indian law, it appears the easiest way to be cited by a court is to write a paper on a particular statute, and cover that statute to death from legislative history to regulatory implementation to judicial construction. You focus on cases, the courts don't seem to pick up on it. The focus on statutes, I believe, helps the courts because they need the background material to understand the statute, and then hopefully they are more likely to digest the scholarship.

Did your family or colleagues do anything for you when the opinion case out?

I was at a fantastic Indian law workshop at UCLA hosted by Angela Riley that day, so I received a lot of good-natured ribbing there from the people who tended to disagree with Justice Thomas. Also, I received several emails from friends and colleagues around the country along the same lines. My wife and colleague, Wenona Singel, probably had the best response of all, but I won't describe it. It was too perfect for words.

The Checklist Manifesto: A Book that Altered How I View the World

Perhaps I am late to the party, as it came out in 2009, but I recently finished reading The Checklist Manifesto, by Atul Gawande, and it changed how I view the world.  Gawande is a surgeon, but he wrote this book for a general audience to probe how checklists can help to eradicate simple errors in the increasingly complicated things that we do.

As Gawande recounts, we live in a world of tremendously complex knowledge, yet we still make many harmful mistakes.  Surgeries cause infections.  Planes (unfortunately, as this past weekend's news reminded us) crash.  Investors make poor decisions.  How can we fix these problems?

The idea is quite simple:  use a checklist.  Well-constructed checklists, when employed at pause points in a complex process, help to ensure that we do not allow our huge array of knowledge to cloud the routine but essential steps we must perform in a given procedure.  Buildings do not generally collapse because engineers use checklists at each step in the building process.  Implementing a simple checklist in the operating room significantly reduces infections. Charles "Sully" Sullenberger used a checklist to successfully land his damaged plane in the Hudson River.  (It is not clear whether the Asiana Airlines pilots in this past weekend's crash used a checklist once they realized they were in danger.)

Yet we still do not use checklists on a routine basis in lots of things that we do.  

Indeed, at a instinctual level checklists are often anathema to many people.  Surgeons generally reject checklists because they believe they are the "experts" and know how to run their operating rooms.  I experienced a knee-jerk anti-checklist mentality myself without even realizing it:  The day after finishing the book I was on the telephone with an after-hours nurse hotline to ask a simple question about an allergy medicine, and I became very frustrated when the nurse kept asking me seemingly-unrelated questions about my symptoms.  She continued to probe me on an array of irrelevant matters that, I thought, had nothing to do with my issue.  Only after I hung up did I realize -- she was using a checklist!  Sure, I might actually have a simple question regarding a medicine, but someone else calling with that same issue could be experiencing a more serious health issue that required immediate attention.  Using a checklist could allow the nurse to catch the emergency situations.

Almost every endeavor we undertake could benefit from a checklist.  Law is no exception. Litigators could use checklists in a deposition or when questioning a witness on the stand.  Commercial lawyers can employ checklists at different stages of the dealmaking process.  Brief writers might look to a checklist to ensure they include all of the necessary elements in their written submissions.  We often tell law students to create checklists for their exams to make sure they are hitting all of the issues.  But although there are obvious benefits, checklists are generally underused.

This is certainly true in my own field of election law.  This all leads to one of my current research projects, an article tentatively titled "A Checklist Manifesto for Election Day."  My initial research shows that states and counties provide poll workers with long, detailed training materials but no easy-to-use checklist to which they can refer on Election Day.  Yet, as the continued flurry of post-election litigation demonstrates, we make election mistakes in every election.  Perhaps a checklist can help.

It is rare that a book I read for pleasure turns not only into a research agenda but also changes the way I view so many aspects of what we do as a society.  Faithful readers (hi Mom!), are there other books that have had same affect on you?  Do you use checklists?

Red, White, or Blue, but not Black

Black cats are less frequently rescued from shelters and therefore much more likely to be euthanized than cats of other colors.  http://www.huffingtonpost.com/2012/10/24/cats-face-discrimination-fur-color-survey_n_2006937.html.  I don’t much care for cats, and yet, when I recently learned about this bias, my heart immediately went out to the disadvantaged felines.  Why?

Until we do a better job spaying and neutering, a certain number of cats will have to be put down.  Why should I care about the color of those unfortunate cats?  A cat is a cat is a cat, to me, although apparently not to those doing the adopting.

Racial discrimination among people is objectionable at least in part because of history and the harm it produces on living human beings.  Cats, I suspect, have no such history and no awareness that they’re being discriminated against.

I think the cat case suggests that people’s intrinsic sense of fairness is violated by any arbitrary and baseless discrimination.  We depend on order in the world to successfully navigate it.  Arbitrariness is per se offensive.  If a rule applies to cats, it should apply equally to all cats, absent a better reason than fur color.

CFP: Micro-Symposium: Stanley Fish and the Meaning of Academic Freedom

Call for Papers: Micro-Symposium: Stanley Fish and the Meaning of Academic Freedom

FIU Law Review and the FIU College of Law invite contributions for a Micro-Symposium, Stanley Fish and the Meaning of Academic Freedom, to be published in FIU Law Review in 2014. Micro-symposium commentaries will accompany the papers and proceedings of a live roundtable discussion on academic freedom and Stanley Fish’s forthcoming book, Versions of Academic Freedom: From Professionalism to Revolution. Roundtable participants include Dean Robert Post (Yale), Frederick Schauer (Virginia), Fish, and several others. The program will be held at FIU College of Law on Friday, January 24, 2014.

In the book, Fish argues

The academy is the place where knowledge is advanced, where the truth about matters physical, conceptual and social is sought. That’s the job, and that’s also the aspirational norm—the advancement of knowledge and the search for truth. The values of advancing knowledge and discovering truth are not extrinsic to academic activity; they constitute it. . . . These goods and values are also self-justifying in the sense that no higher, supervening, authority undergirds them; they undergird and direct the job and serve as a regulative ideal in relation to which  current ways of doing things can be assessed and perhaps reformed. (The “it’s just a job” is not positivism; it does not reify what is on the books.)

It follows from this specification of the academy’s internal goods that the job can be properly done only if it is undistorted by the interests of outside constituencies, that is, of constituencies that have something other than the search for truth in mind. There are thus limits both on the influences academics can acknowledge and the concerns they can take into account when doing their work. . . . It must be conducted (to return to the l915 Declaration) in “in a scholar’s spirit”, that is with a view to determining what is in fact the case and not with a view to affirming a favored or convenient conclusion. If that is the spirit that animates your academic work, you should be left free to do it, although, with respect to other parts of the job (conforming to departmental protocols, showing up in class, teaching to the syllabus), you are constrained. 

Commentaries may discuss any and all legal, ethical, moral, social, practical, personal, and theoretical aspects of academic freedom, Stanley Fish's new book, or his extensive body of work on academic freedom or any other topic. Interested commenters will be provided manuscripts of Fish's book, on request.

Commentaries can be a maximum of 600 words, including text, footnotes, and title.

Contributions must be received by October 1, 2013. Submit to: [email protected]

Expressions of interest, requests for the manuscript, and other inquiries can be directed to Ben Crego, Law Review Editor-in-Chief, at [email protected] or to Prof. Ediberto Roman at [email protected]

The Philosophical Foundations of Fiduciary Law

I'm excited to be going to Chicago in about 10 days for this extraordinary conference, put together by Andrew Gold and Paul Miller.  The conference schedule is here -- and the papers will be collected in Oxford University Press's "Philosophical Foundations" series.  I feel fortunate to be part of the program and will get my draft chapter onto SSRN as soon as it gets ripped apart and put back together by the conference participants.

 

Come, if you are in town.

The Central Role of Prosecutors In Prison Growth

Having dismissed the War on Drugs as first-order cause of prison growth,¹ I now want to provide my explanation for the causes of prison growth. Focusing for now on prison growth during the crime decline that began in the early 1990s--partly due to limitations in available data, partly because the causal story for prison growth during the crime delcine surely differs from that during the crime boom--the story I want to tell is surprisingly simple.

Despite the complexity of criminal justice system and its relationship to crime and other social pressures, since 1994 prison growth appears to be driven primarily by a single factor: prosecutors' decisions to file felony charges.

I will spend the next several posts making my case for this claim, given that it runs so contrary to the Standard Story. In this post I'll just lay out the basic argument, with the support to come in future posts.

Let’s start by first noting where prison growth can occur. There are basically six sources of growth:

1. Increased crime
2. Increased arrests per crime
3. Increased felony filings per arrest
4. Increased convictions per felony filing
5. Increased admissions per conviction
6. Increased time served per admission

Note that each of these factors implicates different actors and different bureaucracies: hyperlocal criminals; city police or county sheriffs; county district attorneys (for the filings); county district attorneys, local defense attorneys, county jurors, county or state judges (for the convictions); district attorneys, state or county judges, and state legislators (for the admissions); and the same—albeit to different degrees and in different ways—for time served, along with state-level parole boards.

If nothing else, this list of actors should eliminate any faith we have in empirical models that use total admissions, total prison populations, admission rate, or incarceration rate as a dependent variable. What does it mean to regress, say, percent black on total prison population? Race surely has different effects on crimes, arrests, prosecutions, convictions, admissions, and time served. So the coefficient is some confusing weighted average of all these effects--but one for which we have no idea what the weights are and thus no idea how to use the result in any meaningful policy sense.²

So, to understand prison growth, we have to understand who is doing how much of the work. Only then can we figure out what causal factors matter where.

What, then, do we see in the data since 1994?

1. Crime has been falling.
2. Arrests per crime have been flat for violent and property crime. Non-marijuana drug arrests³ have risen slightly since the early 2000s, but total property, violent, and non-marijuana arrests dropped by about 10 percent between 1994 and 2010.
3. Filings per arrest have soared.
4. Convictions... well, I have to elide over those here. See the footnote.⁴
5. Admissions per filing (and yes, that's per-filing, not per-conviction) have been flat.
6. Time served has been relatively flat. It really has been. I’m going to back this one up, I promise.

Thus the only real change has been in filings per arrest, and it has been dramatic.

I’ll stop this post here. In the next post, I’ll show clearly why filings have at least been the key source of growth in admissions. The post after that will explain why I strongly believe, contrary to all the Standard-Story explanations I see every day, that time served has been relatively stable.

 

¹As I’ve stressed earlier, and as I will point out a few posts down the line, the War on Drugs may in fact play an important role in prison growth, but it is an indirect one, and one that is substantially more complicated to identify empirically and resolve normatively.

²That’s just one problem. I discuss a host more here. A big problem with using prison population or incarceration rate is that not only is the effect of, say, race averaged over all the stages, it is also averaged over many years: the prison population in 1990 is a function of crimes, arrests, …, admissions, and time served from cohorts admitted in 1990, 1989, 1988, 1987…. So the coefficient on race tells you about its average effect over all these admission cohorts as well. And since the effect of these factors vary over time--do we really think race plays the exact same role in shaping sentences today as it did in 1960?--these coefficients are basically useless.

Sadly, the papers that used this variable generally had even deeper methodological flaws that render their results uninformative even without this conceptual problem. The general shoddiness of empirical work on prison growth really is a black eye for criminology, a self-inflicted injury whose causes I can’t quite figure out.

³Too often we see claims casually linking marijuana arrests to prison populations. It is very hard to go to prison on a marijuana charge, especially a low-level possession charge.

⁴ The court data I use to look at this issue is primarily National Center on State Court’s annual tabulation of total felony filings in state court. This is an aggregate number, not case-level data, and it provides no information on outcomes of cases. As I explain the paper this work comes from, I tried to use a different dataset to look at convictions per filing and admissions per conviction, but the dataset is… a bit wonky, and the results are unclear.

"Stalking", George Zimmerman and Curry v. State

Many commentators, some in response to my earlier post, have suggested that GZ was "stalking" Trayvon Martin.  GZ admittedly was "observing," "monitoring" or "watching" Mr. Martin, at least for some period of time, but the implication of "stalking" is that, assuming GZ was following Mr. Martin as closely as he possibly could, he was doing something inappropriate or illegal.  This seems incorrect, because GZ's conduct was not unlawful. 

First, although I am not an expert in torts, it seems in the absence of stalking statutes, a person is free to follow any other in public in a non-threatening manner.  I invite correction if I am wrong.  (And, of course, in a state which allows the carrying of weapons by license, the lawful exercise of that privilege simpliciter cannot be a threat).  I get this from Prosser and Keeton, as quoted by the Alabama Court of Civil Appeals: “[o]n the public street, or in any other public place, the plaintiff has no legal right to be alone;  and it is no invasion of his privacy to do no more than follow him about and watch him there."  Similarly, the U.S. Supreme Court explained in United States v. Knotts, "When [defendant] travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property."  That is, it was not that the police could follow the defendant because they were the police and had special powers, it was that the police could follow the defendant because any private person could follow anyone in public.  Although Knotts involved a car, the principle is equally applicable to pedestrians.

This common-law tradition, of course, has been changed by stalking statutes; Florida's is Fla. Stat. Ann. 748.048.  It requires that the misconduct (which clearly can be conduct which would be legal in the absence of the stalking statute) be without a "legitimate purpose."  The key Florida case on "legitimate purpose" is Curry v. State, which reversed a conviction for aggravated stalking.   Not surprisingly, it involves a dispute among neighbors.  The Court found that "A report to an arm of government, concerning a matter within the purview of the agency's responsibilities, serves a "legitimate purpose" . . . , regardless of the subjective motivation of the reporter."  The Court also found that reporting to the government was constitutionally protected as a petition for redress of grievances.  Gathering information for use in a possible report to police seems covered by Curry and similar cases.

By a quirk of Florida law, arrests by on-duty police outside the officer's jurisdiction are treated as citizen's arrests.  Such officers, accordingly to the Florida Supreme Court, have no "greater power of arrest outside their jurisdiction than private citizens."   Yet, they may follow suspects, and, if probable cause develops, make arrests.  (However, under the "color of office" rule, if they use their police authority to investigate, i.e., show their shields to get statements or consent to search, the out-of-jurisdiction action is invalid).  It is clear, then, that citizens are not categorically prohibited from investigating crimes and making arrests in public.  Therefore, I see no per se illegality in GZ following Trayvon Martin even if he intended to investigate and, if warranted, make an arrest.  This puts in a different light the statement by the dispatcher to GZ that "we don't need you" to follow Mr. Martin. 

The wisdom of every legal doctrine affecting the case is debatable, including the permissibility of citizen's arrests and neighborhood watches, the liberal granting of concealed weapons permits, limited stalking statutes, and broad self defense doctrines.  Particularly in a former Confederate state, taken together, these doctrines have the whiff of the slave patrol.  But GZ's conduct must be evaluated given the law on the books at the time, which, in my view, quite favors him.

Oulde Fields, New Corn-cerns

I've been on the road this week with my family, so I apologize for not having said anything yet about the resignation of my dean, Ken Randall, or his new position at InfiLaw. I've seen a couple of comments elsewhere suggesting that this deserved more attention than it had gotten so far. I think that's quite right. (On both sides. I was surprised that the scamblog types didn't write more about it this week as well.) In any event, given that I teach at Alabama and have written some about law school issues, it seemed right that I should say something, at least. Some added reason for doing so certainly is supplied by Paul Campos's post about this, which I heard about at The Faculty Lounge. As usual, I think he makes a good and legitimate point among several weaker ones.

I view the two things--Ken's resignation and his new job--distinctly. My colleagues have already laid on the praise elsewhere. I'll try to give some particulars rather than offer another general encomium. On a professional level, Ken was a tremendously successful dean at Alabama, certainly by the conventional and contestable measures but also by most others. In particular, given that most of our graduates stay in the southeast and don't go to megafirms, I'm glad that tuition and class sizes have remained relatively low. He has also done great things in terms of personal contact with students, faculty hiring (obviously I have a bias here), fundraising in the face of declining state funding, relations with the larger university, attention to detail, and strongly improving the reputation (and ranking) of the law school. He's been innovative, resourceful, and entrepreneurial in a host of ways. Any innovation or entrepreneurial moves are always open to question and discussion, but I think he has done so in a way that respects both our students' needs and interests and our academic mission. In general I think it's fair to conclude that he's done as good or better a job than deans at his peer schools have, and I'm very grateful. On a personal level, I always found him to be very energetic, supportive of my work and needs, and kind to my family. I sincerely appreciate it.

Ken has been interested in entrepreneurship and venture capital for a while, and began teaching in that area a few years ago. (That's why I didn't set much store in any rumors about why he stepped down. He's been dean for a very long time, and has been interested in new challenges for a while.) I have no personal knowledge here, but I assume that the InfiLaw venture is a way of developing that interest while still getting the benefit of his considerable professional experience in legal education.

I hope and assume that in his new position he'll try to balance innovation with considerations of student needs and core educational mission. And, provided there's institutional diversity and a core of traditionally functioning schools out there, I'm not a purist about what higher education should look like or whether profit-seeking can or can't be a part of that. But, like everyone else, I worry, if I may put it gently, that the InfiLaw consortium schools educate too many at too much cost for too few prospects. I sincerely wish Ken the best in this and any other venture, but I still worry about these things a lot. Those concerns aren't unique to for-profit schools, but they're certainly highly pertinent in their case.

Like I said, I view the two things distinctly. All of us who have worked with Ken are grateful for our time with him and think he deserves praise for his deanship. I wish him well at InfiLaw. But I do harbor general concerns about that venture, concerns that have nothing to do with his own role in it. My hope if anything is that if anyone can, he will find better ways to balance student needs against investors' interests in such an enterprise. But I worry about how well those schools have done so thus far.

Given Ken's success at Alabama, and his move from a traditional public university to an unconventional venture, I think anyone who thought this move deserved more commentary--including expressions of doubt or criticism--was right. Whether it's good or bad, it is certainly noteworthy. I can't say whether it carries a deeper message for law schools or "law school crisis" issues in general. It may, but there's some reason to doubt it. Ken had a preexisting interest in entrepreneurial work and venture capital; this move may be more about developing his own interests than about anything systemic. But it's still noteworthy.

To that extent, I think Campos was quite right to call attention to it, and so were some recent commenters on The Faculty Lounge. We've now had enough time to commend Ken for his performance in his old job, and it's not untoward at this point to concern ourselves with his new one. And if such a move is worth noting, I certainly think there must be room for criticism--of the move, or of InfiLaw itself, or some combination.

On the other hand, most of us who worked with Ken were still processing his departure from Alabama, and expressing appreciation for his work there, before we'd had much of a chance to learn or say anything about the InfiLaw position. To the extent that Campos's post elides events, makes it seem as if the folks who were praising Ken were making a statement about his new job rather than giving him his due for two decades in his last job, and follows his custom of casting himself as Diogenes, it is misleading if not false. And I think those of us who worked with Ken and believe he did a great job as dean would feel awkward about trying to hit both notes at the same time: acknowledging our relationship with him and praising his work to date, but still registering our preexisting doubts about whether many law schools, emphatically including for-profit ones, are benefiting their students. It takes a long-winded Canadian to try to do both, diplomatically, in a single post. (Although I did try to keep my sentences shorter, for once.)

Still, I do think the two events are distinct. Praising Dean Randall for his work at Alabama doesn't require us to have no concerns about InfiLaw. Having doubts about InfiLaw doesn't require us to be silent about Ken's many accomplishments to date. That people who worked with him over two decades made our appreciation known this week shouldn't be cause for surprise or criticism. But the fact that he went from that job to this very different new venture is certainly noteworthy. It's fair if that includes concern or criticism.

Environmental Intermediaries

It seemed like a great idea. A refinery applies for a land use permit. The towns nearby are still reeling from an accident that should have led to immediate shutdown but was allowed to continue for days. The county conditions permit approval on what sounds like science fiction: "infrared or other state-of-the-art remote sensing technology." Nevertheless, an MOU is signed. It resolves all kinds of issues: What kinds of sensors? FTIR? TDLS? UV? Where should they be set up around the facility? What compounds can they detect? What detection limits should be used? Who is going to maintain the system? How to address rain and fog? What to do with data speed, transfer, and security? This was a storied moment in the annals of environmental monitoring. As expected, there were problems with implementation. But the goal was clear, and bold: reflect beams of light along the sides of a giant facility, detect dozens of compounds as they crossed the fenceline, and gather these data in the interest of right-to-know and emergency response. But here's the catch: the data were "view-only." A single person could watch as they streamed across his computer screen. These raw spectral data, gathered by one company in California, cleaned and converted by another in Texas, and then, weeks later, after they were dumped into dispersion models to estimate pollution concentrations downwind, sent to a homeowner near the refinery. I took an interest in the technology years after another resident, a camera specialist, taught himself environmental monitoring so that he could help negotiate the MOU. I drove a couple of hours to meet him, and found this treasure trove of monthly data, which was at the time some of the most advanced local air quality data available. It was stacked neatly on CDs in a barn in Oregon.

That was years ago. There is now a vast range of environmental monitors on the market, and the choices among them are not as painful, and not nearly as dichotomous - expensive, fixed equipment versus unreliable, time-limited handhelds - as they once were. We've witnessed the global diffusion of grab samplers in chemical corridors and the rise of the nanosensor. EPA employees can sit in an office in New Jersey and watch real-time air quality data stream from wireless networks at sites around the world. Citizen monitors can attach small devices to cars, or their clothing, and silently map the VOCs or sulfur compounds that invade their daily routines. We are, or soon will be, awash in these kinds of data, although relevant, actionable data will still be very much up for grabs. This will pose serious challenges, which I discuss in "The Architecture of Ignorance." For a future article, I hope to zero in on a related issue, one that is grounded in that pile of CDs that bear the logos of Terra Air Services and Petris Technology. To do so, let me introduce an organization that has yet to receive much attention in law reviews, with the exception of a piece by its founder in Environmental Law Reporter. The issue is the role of "environmental intermediaries." The organization is SkyTruth.

As attorneys, we grow accustomed to certain modes of argument: doctrinal, prudential, and the like. We make propositions and set out to show their truth. We spot logical fallacies and evaluate claims. Sometimes, the forms of argument conflict, and we bring out another set of interpretive tools to reconcile them or appeal to the primacy of one over the other. We carry this out across walls of words. But there are other forms of argument and interpretation. The remote sensing and related technologies that upend our image of life on Earth and now inform debates over climate change, natural resource management, and disaster response are brimming with them. What I have in mind are military and intelligence technologies that are repurposed for commercial use, such as digital mapping, the dual civilian and military use of GPS satellites that started in 1991, the spread of Geographic Information Systems to desktop use, and privatized surveillance satellites. These spatial tools, whether viewed as a system or in isolation, hide layers of implicit biases. Peter Galison would say that they leave us a bit untethered. Your location on a map is no longer fixed, but relative to an invisible grid held together by satellites that spin around the earth at 12,500 miles per hour. The maps that we use online no longer reveal an objective space - they represent and interpret that space. Laura Kurgan, in her excellent Close Up at a Distance (2013), describes Google Earth not as an application and a database but a "patchwork of archived aerial and satellite images of varying origins, sources, motivations, and resolutions...[the consumers of which] will never know who has tasked a satellite to take a picture." Classified satellite images were once gathered on film and ejected into the Pacific Ocean for retrieval. Now, private satellites gather digital images that are used by the government and Google alike, athough their operating licenses require a lower resolution for some customers. Since digital images do not exist until they are sorted and rendered, we are at the mercy of interpretive decisions that accumulate along the way. And when they are subjected to further statistical operations, layerings, corrections, and visualizations, with GIS and other tools, the interpretations mount, and are more difficult to retrace.

These layers of interpretation silently, and regularly, inform environmental policy. "Open data" efforts can paradoxically add layers of data practices and veiled choices that are over time taken for granted. Enter the environmental intermediary. For now, I'll use a very broad definition: entities (public, private, non-profit) that gather, process, merge, and present geospatial data to inform public debates over environmental quality. You find them everywhere these days. Take unconventional energy as an example. A town in West Texas runs out of water near a heavily fracked shale play. The Texas Railroad Commission has a limited sense of how much water is used to operate drilling wells in the area. So newspaper interns merge data from a private, industry-funded website and a groundwater conservation district to find out for themselves, and have their work checked by a nonprofit research institute. The proposed Keystone XL pipeline is intended for diluted bitumen, the impacts of which EPA claimed were not fully understood. Yet even more basic data must be gathered and processed from disparate public sources, including the pipeline's precise 1,700-mile route (e.g., its mile post markers and water crossings). In response, the Keystone Mapping Project uses state data and different mapping tools to piece the route together. The result is an interactive public square, "allowing communities, stakeholders, journalists, and non-profits to more easily evaluate the pipeline and its impacts." Other impacts simply cannot be appreciated in a spreadsheet or EIS appendix. They are engaged by other non-profits, whose data visualizations simulate the appearance of five-acre well pads in Colorado's Thompson Divide or lead a Google Earth tour across a Manhattan covered in 65 billion gallons of tainted water used in fracking operations.  

One of these non-profits is SkyTruth. Its founder, John Amos, is a geologist who started something exciting and essential: a civic-minded environmental intermediary. SkyTruth is a company "based in West Virginia that uses satellite and aerial images, digital mapping, data analysis and digital graphics to investigate and illustrate environmental issues and incidents." To get a sense of his team in action, read the organization's "Sky Truth Alerts." Some of them take incident reports from the National Response Center and add further analysis, such as latitude/longitude, sheen size, volume, and minimum estimates of hazardous materials released. The incidents range from large spills to slow-motion crises of the kind that Thomas Beamish theorized after years of fieldwork in the Guadalupe Dunes. One of them involves a Taylor Energy oil platform damaged by Hurricane Ivan. The rig once commanded 28 oil and gas wells in the Gulf of Mexico. Now its mangled remains sit hundreds of feet below the surface. Efforts to plug the wells were abandoned, and an international well control company created a proprietary plan to manage the oil flow instead. Some of the Sky Truth Alerts characterize this chronic spill, showing slicks that extend for miles from the site. SkyTruth teams up with the Gulf Monitoring Consortium to estimate the extent of the spill with the help of NOAA satellite data. This does not sit well with the Unified Command set up by the Coast Guard to coordinate response efforts. It publicly criticized SkyTruth's work, and the value of NOAA's own satellite images.

We often read about Internet, financial, healthcare, and other data intermediaries in law reviews. A lot has been done to chart everything from their aggregation and use of personal data to how they contribute to systemic risk. There is comparatively little research on environmental intermediaries such as SkyTruth, and the layers and styles of interpretation that represent digital, geospatial data for use in policymaking, monitoring, and enforcement. This is true even as the fruits of their labor, from Scorecard in the early days of TRI to the Louisiana Bucket Brigade's "Oil Spill Crisis Map," are given due attention. Other disciplines share this sense of urgency. A recent article in the American Journal of Public Health notes that we know very little about the research capacity of community-based organizations, which are key partners in the work of environmental intermediaries. I hope to build on the work of scholars such as Holly Doremus, who recognized the role of intermediaries in adaptive management, and Oren Perez, who argues that we should open up the technical choices that influence how raw data are shared. John Amos gave his own thoughts on the subject in recent testimony before Congress. His target was FracFocus. This is the online, voluntary registry that discloses chemical use in hydraulic fracturing. It is now a mandatory disclosure tool in some states. The Bureau of Land Management may follow suit for drilling on public lands. Amos sketches the many valuable uses of its data, the data aggregation and analysis that intermediaries would need to carry out, and how FracFocus undermines those tasks. His testimony and work offer brilliant examples of the opacity of disclosure and its hindrance of environmental protection.  

Justice Kagan for Emperor

If you're working today, then here's a brief respite: an awesome interview Elena Kagan did recently with Jeff Rosen at the Aspen Ideas Festival. (H/t: Garance.)

(She indicated that she reads Scotusblog, Volokh Conspiracy, and How Appealing, and some other things, including things law professors write. I take that as code for her devotion to reading Prawfsblawg too. So in case she's reading, hope you're enjoying your summer, Madame Justice.)

Yes, I heart Elena.

Sports and patriotism

From ESPN's Howard Bryant. I'm not sure this is as new a phenomenon as he suggests or that sports used to be apolitical, but I agree that it has become more pervasive and, to some, obnoxious.  I particularly like the closing paragraph, where he points out the inconsistency (if not outright hypocrisy) of leagues and the media immersing games in compulsory politics, then criticizing players who speak out for their own causes and ideals, demanding that they "shut up and play."

When Police Question Young Suspects

Two years ago, Justice Sotomayor delivered the opinion of the Court in JDB v. North Carolina, an important decision and one to which I had a personal connection.  When I had been practicing in the juvenile delinquency courts of North Carolina for only a year, UNC's Juvenile Justice Clinic was appointed to represent a young man who was the co-defendant to JDB, a 13-year-old special education student at one of our local middle schools (the one my older daughter currently attends).  Weeks earlier, the Chapel Hill juvenile police investigator at the time, DiCostanzo, had been stymied from questioning JDB at his home about a string of neighborhood burglaries (JDB's grandmother, who was his legal guardian, had not allowed it), so DiCostanzo went to Smith Middle School to talk to the boy there.  DiCostanzo had the school resource officer (a uniformed cop on detail to the school) take JDB out of his social studies class and bring him to a small conference room where they were joined by the assistant principal (the school disciplinarian) and another adult who was an administrative intern.  

Long story short -- the adults closed the door and began questioning JDB who initially denied any involvement in the crimes, but after they told him to "do the right thing" and threatened to place him in juvenile detention, he confessed.  Because DiCostanzo et al. didn't consider the questioning to be custodial, JDB's grandmother was never contacted (which was required for custodial interrogation of juveniles under the NC Juvenile Code), and he wasn't given Miranda or told he could leave, make a phone call, etc.  At the motion to suppress hearing in the local juvenile court, I sat and watched JDB's public defender expertly cross-examine DiCostanzo, clearly showing that as a result of JDB's age/youth/student status, no one in his position would have felt free to leave the conference room -- or, for that matter, challenge two police officers and school administrators.  Although I was angry when the suppression motion was denied, I was hardly surprised, as I had become long resigned to the fact that common sense rarely prevailed in juvenile court.  

About six years later, I paid the fee to join the USSC bar, drove up to D.C., and sat several rows away from the justices when the case was argued.  At one point, Justice Breyer asked with no small degree of sarcasm, "And what is the terrible thing, the awful thing that has to happen if the officer isn't sure whether this individual thinks he's in custody or not?  Suppose the officer just isn't sure.  What terrible thing happens?"  He paused and then said, "The terrible thing that happens is you have to give them a Miranda warning."  To which Justice Scalia responded, ""We don't want Miranda warnings to be given where they are unnecessary because they are only necessary to prevent coercion, and where there's no coercion, we want confessions, don't we?" To emphasize his point, he added, "It's a good thing to have the bad guys confess that they're bad guys, right?"  Breyer, of course, recognized the irony -- that giving Miranda has a negligible effect on most interrogations, particularly if the suspect is a 13-year-old boy questioned at school.  In contrast, Scalia didn't want criminal suspects -- no matter their age -- to have any perceived advantage.

I was heartened when the decision came down several months later and the liberal justices -- joined by Justice Kennedy -- reversed the denial of JDB's suppression motion (which the NC appellate courts had affirmed) and remanded the case to address whether interrogation was custodial taking into account the boy's age at the time.  In relying on Roper v. Simmons (ending the juvenile death penalty) and Graham v. Florida (ending JLWOP for non-homicide offenses), the Court held that "officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult." As can happen with even Supreme Court decisions, no action in the North Carolina courts has yet to be taken, as JDB is no longer a juvenile and perhaps feels no great incentive to pursue the matter.

I've been thinking of all of this of late, as I learned from Josh Tepfer and Steve Drizin of Northwestern Law's Center on Wrongful Convictions of Youth (CWCY) about several recent instances of interrogations of teenagers in Tennessee and elsewhere in which confessions were given in homicide cases only after the police made extreme threats, including promises that the suspect would face the death penalty if he didn't confess (a legal impossibility given Roper) or that the suspect would be raped in prison on a daily basis if he didn't confess.  The cases have been resolved in a variety of ways; in two matters the motions to suppress were supported by strong amicus briefs from CWCY, which led to favorable plea deals for the juveniles; in the case of 17-year-old Codey Miller, the confession was suppressed by the judge who called the interrogation practices of the police "mind-boggling"; in the case of 14-year-old Jonathan Ray, the confession was also suppressed, though the case has not yet been resolved; in the case of 19-year-old Carlos Campbell, the motion to suppress the confession was denied and it's unclear whether there will be an appeal; and in a recent decision by the Kentucky Supreme Court, the conviction of 17-year-old Garrett Dye was reversed and a new trial ordered after holding that his confession was involuntary.  

Because the fact patterns in these cases are clearly different than JDB, as the parties agreed that police questioning was custodial and Miranda warnings were given, the legal issues raised are also somewhat different (Was the Miranda waiver involuntary?  Was the right to counsel invoked?  Was the confession coered?), but the critical questions remain the same:  should the rules that apply to the questioning of juveniles, and the standards by which courts review interrogations of kids, be different than those for adult suspects?  If so, what should be different?  The principle reform has been mandatory recording (either audio or video) of the interrogations of suspects, whether juveniles or adults, something that has been successfully adopted in 17 states and Washington, D.C., either by legislatures or courts.  Mandating that juveniles be given counsel prior to custodial interrogation is a proposal that has yet to gain much traction (likely for pragmatic as well as philosophical reasons), with states preferring to provide "parental notification" before police can question youth, which rarely helps as most parents are as unfamiliar with how best to handle these situations as their children.  Given that most police officers receive fewer than 10 hours of juvenile interview and interrogation training over their entire careers, another proposal is that law enforcement should be regularly trained consistent with the best practices established by the International Association of Chiefs of Police and be directed not to use aggressive or deceptive strategies when questioning minors.  

Your thoughts?  Please share in the comments. 

 

A Zimmerman Acquittal: Michael Jackson, not Rodney King

After the killing of Trayvon Martin, I was disturbed that George Zimmerman was not arrested, and was glad that charges were brought and would be resolved in court.  I was wrong; I did not understand how weak the evidence was.   As the trial has progressed, no one, not one witness, testified to facts strongly indicating a felonious killing.  Instead, the prosecution evidence has been about Zimmerman's personality, character, and education, ambiguous statements of eye- and ear-witnesses, inconclusive forensic evidence, and a focus on trivial differences between various voluntary statements that Zimmerman made.  The state has not quite rested yet, and maybe they've saved the good evidence for last.  But in a jurisdiction where self defense must be disproved beyond a reasonable doubt, so far I have not seen enough evidence to warrant a conviction for anything.

One category of prosecution evidence is insinuations that Zimmerman was profiling, to suggest that Zimmerman might have been the aggressor.  

But if all of us have implicit bias, in and of itself, the fact that Zimmerman noticed the race of another person is not particularly probative.  And the testimony showed that on the night he was killed, Trayvon Martin used racial terms to describe Zimmerman, the more polite of which was "creepy ass cracker." Prosecutors should not be allowed to use one-way arguments which, when applicable to a defendant, are evidence of guilt, but if applicable to someone on the prosecution side, suddenly become irrelevant.  If thin evidence of racial atttitudes suggests that the person with those attitudes was an aggressor, then this category of evidence is a wash at best because it suggests that both were aggressors. 

The prosecution has also focused on the discrepancies among the several voluntary statements that Zimmerman made to the police.  But discrepancies are normal when someone recounts events which occurred under stress. (Recall the famous cross-examination by Max Steuer in the Triangle Shirtwaist prosecution where a prosecution witness used virtually the same language to tell the story again and again, suggesting it had been memorized and the jury acquitted.)  Does anyone doubt that the prosecutors in this case--every experienced trial prosecutor--has sent many people to prison by assuring the jury that prosecution witnesses were reliable in spite of testimonial inconsistencies far more profound than these?

Do not misunderstand my point.  It may be that in fact George Zimmerman killed Trayvon Martin in cold blood with no justification.  But unfortunately, trials cannot magically discover actual historical truth when there is no solid evidence or reliable witnesses.  No person of any race deserves to be convicted of a serious crime solely because a terrible thing happened, and there's something about the defendant that the jury does not like. People of color are disproportionately caught up in the system.  If defendants can be convicted based on effective impeachment and insinuations about motive in the absence of meaningful evidence that they actually committed crime, that would be terrible for people of color.  Therefore, in my view, if Zimmerman is acquitted, it will not indicate, like the Rodney King travesty, that people of color are reated unjustly.  Instead, it will be a sign that even in high pressure cases involving terrible crimes, juries can acquit when there is a reasonable doubt. 

Romney-Christie?

According to this CBS story, Dan Balz's book on the 2012 election reports that Mitt Romney was seriously considering selecting New Jersey Governor Chris Christie as the Republican vice-presidential nominee, but was dissuaded by an SEC regulation governing campaign contributions:

In the end, it was money, not chemistry, that kept Christie off the GOP ticket. A "pay to play" regulation from the Securities and Exchange Commission prevented the country's largest banks from donating to candidates and elected officials from states in which big banks were located. If Christie, the governor of New Jersey, were added to the ticket, Romney's campaign would have been barred from accepting any campaign contributions from Wall Street - a critical source of cash for the GOP candidate, formerly a private equity manager.

I found this striking and was curious whether the reg was constitutional, but I can't actually figure out what rule the CBS story is referring to.  I did find this long discussion of the SEC pay-to-play reg, but I can't actually figure out what the story is referring to.  Readers -- any idea?  Is there a rule that stops banks from contributing to home-state candidates?  You were very resourceful about Guthrie.

Legal Futurism

I stumbled upon a copy of Alvin Toffler's Future Shock (1970) at the library as a young kid. To my mind, it had all the trappings of legitimacy. It was a "runaway" bestseller (how is that even possible?). It spoke with authority: "The symptoms of future shock are with us now. This book can help us survive our collision with tomorrow." Its author was an editor at Fortune, easily one of the eight or nine best business periodicals on sale at my local B. Dalton. The OCR-A-style font on its cover grabbed me by the collar. What sealed the deal was its gaze. In an arresting photo, Toffler peered through the camera and into the minds of a vast readership: listen to what I am about to tell you. I read the book not as musings or even informed speculation, but as gospel. It was terrifying. So much so that I grew concerned. Why hadn't anyone told us about this at school? Here was a vision at odds with the old black-and-white films screened in "shop" class about limitless (hint: nuclear) energy and leisure. Why were we still hiding under our desks from ballistic missiles when we could be learning how to adapt to "novelty in the environment"? Why did we express such loyalty toward a single public school instead of learning "insouciance toward the organization"? Why was everything still so hierarchical? And where was the lecture on "anticipatory democracy"?

Predicting the future is not easy. Forecasts from the late 60s and early 70s, arguably futurism's heyday, were remarkably accurate in some regards. Kahn and Wiener's The Year 2000 (1967) foretold ubiquitous computers, networked communication, and the capacity for pervasive surveillance. We continue to await the arrival of artificial moons and interstellar travel. Forecasts are even more scattered, and potentially inaccurate, when they venture from technological innovation to the social, economic, and legal institutional changes that happen in its wake. This is arguably (and thankfully) true of Toffler's world, even though he got some of it right (the throwaway society and cognitive limits in the face of "information overload" come to mind). The Economist's "The World in 2010," published in 2009, missed the Eurozone crisis and the Arab spring. Responsible books such as George Friedman's The Next 100 Years (2009) take pains to paint with only broad geopolitical brushstrokes, even as they occasionally pause to indulge in flights of fancy (for a mid-century war pitting Japan and Turkey against the United States and Poland, after the destruction of our "battle star management platforms," see page 193). And even when we know an event will almost certainly occur if given enough time, from the drowning of New Orleans (or Miami) to the impact of tsunami-induced, ten-meter waves on Fukushima Daiichi, we often lack the means, or the will, to act.

Thus it was with great relief that I learned of J.B. Ruhl's legal futurism blog, Law 2050. There is something for everyone on this site, which is organized around Ruhl's concern for the legal services industry over the course of his students' careers (hence the decision to use the mid-century cipher of 2050). Are you worried that data visualization services will eliminate some of the legal jobs that outsourcing overlooked? Ruhl offers intriguing new lines of work, from law firm R&D to legal process expertise, and likens our more irreplaceable skill sets to "quantum lawyering." Do you wonder how sea level rise will strain ancient common law concepts such as avulsion, or whether governments will "take" property when they fail to armor the coast? Ruhl reviews some of the case law that foretells the direction of public infrastructure liability. Are you wary of the "second economy," the "vast, silent, connected, unseen" and at times self-organizing computer servers that guide airport security, supply chain management, and billions of other digital transactions? Ruhl considers the need to wire this neural system for compliance. It's all very impressive, and measured, and decidedly lacking in utopian visions or doom and gloom. It's also necessary: notwithstanding high-profile non-profits such as the Club of Rome, most modern forecasting is done by private firms. There is a need for academics and the public to get more involved, in the interest of transparency and more open agenda-setting.

Professor Ruhl is the perfect person for this project, which aims to encourage the systematic study of "the future of substantive law and legal institutions as a discipline." Ruhl spent over a decade in practice working on endangered species protection and ESA compliance before delving into adaptive responses to climate change as an academic. Thus he shares an interest with earlier futurists in open systems and how they adapt to changes in their environment. Futurists of the 60s and 70s often followed this approach, known as cybernetics. They viewed systems, whether biological, social, or technical, as dynamic interactions governed by information flows according to feedback loops. The more cynical among them, such as the "limits to growth" crowd, focused on how those systems could be overwhelmed, leading them to collapse. But in general, the cybernetic approach eschewed determinism and linear extrapolation for change that was contingent and nonlinear. We find Ruhl's distrust of point predictions in his review of an old law review article on "The Future of the Law for Energy and the Environment," and in his embrace of concepts that describe systemic instability, such as positive feedback and turning points. The broader goal is to treat the law as a series of complex adaptive systems, identify scenarios that place pressure on those systems, and shore up points of local fragility, as he does in the case of deepwater drilling.

There is more work to be done. Ruhl makes clear the need to fine-tune the tools of legal futurism, some of which he helped pioneer (including his work with Jim Salzman on "stationarity assessment"), others that are fairly robust in legal scholarship (such as the concept of path dependence), and many that can be drawn from other fields (such as scenario planning, William Ogburn's idea of law-lag, the uneven development of science and law as cultural institutions, Sheila Jasanoff's work on co-production, and numerous open-systems-influenced theories of institutional change). Arriving at the most productive models of institutional change, and refining how they handle disruption and learning, is a vast interdisciplinary project that is already decades underway. The other side of legal futurism, the environment in which the law will respond, can be explored through scenario building. This will double as an exercise in prioritization. There is only so much attention that can be drawn to the impacts of emergent technologies among legal scholars. And as a recent report by the McKinsey Global Institute reveals, the relative scale of those technologies, from automation to fracking to the Internet of Things, can be surprising.

There is also the question of time horizons. The futurist's critique of legal scholarship is that its time horizons are limited, focused as it is on relatively recent regulatory shifts and court decisions. Cold War futurists were constrained by the lure of the year 2000 as an organizing principle, which naturally led to medium-range predictions. Ruhl's project has a similar span, given his interest in the legal services industry in the near term. But time horizons have a profound effect on the decisions we make. In the realm of climate change, warming temperatures are a grave concern. But paleoecologists point out that the vast majority of future generations, stretching out to 130,000 A.D. and beyond, "will live on the long cooling tail-off of atmospheric CO² recovery" and that "coping strategies that have been developed in response to warming will become obsolete, or even liabilities..." And while temperature and sea level rise may strike some as more amenable to adaptation than mitigation, the return of corrosive gases such as carbon dioxide to the oceans over the next many hundreds of years, and the irreversible devastation of species and ecosystems that will result from acidification, counsel decidedly in favor of drastic emissions cuts.

Legal futurism will in some respects prove an invitation to legal history, even archeology. Many of our most profound questions about large-scale change and the response of institutions have been asked before. Ted Nelson gave us an intriguing alternative to digital rights management back in the 1960s. Land use and spatial planning in an age of sea level rise and terrorist threats could learn from urbanism's obsession with radial patterns and entropy reduction in the 1950s. And the effects of heavy industry on vulnerable populations, which were mapped with increasing precision over thirty years by environmental justice scholars, may have benefited from earlier adoption of concepts such as agglomeration economies and spatial mismatch. We owe it to ourselves to mine the past, including the law's inflection points and some of its darkest hours, for the neglected institutional blueprint, the stifled agent of change, the hidden black swan.

Cohen on what's next for SSM

Apropos of my query last week about where the marriage equality movement goes next after Windsor and Hollingsworth, David Cohen at Faculty Lounge suggests "everyone just sue the bastards"--flood the courts with lawsuits challenging marriage bans (and other anti-gay laws), highlighting the already-strong arguments in favor of marriage equality, now helped by the language of Windsor. Unlike when Massachusetts legalized SSM in 2004 and the ACLU urged caution, Cohen argues, the legal and political terrain has shifted, such that victories are more likely in the lower courts (putting SCOTUS to one side). Interesting take.

Welcome: Obscure Footnotes

Obscure Footnotes is a new prose blog by the author of Supreme Court Haiku.

Delinquent by Reason of Poverty

Many thanks to Dan et al. for welcoming me into the fold.  By way of introduction, I've had a somewhat unorthodox route to legal academia, having practiced as a public defender for a decade (on both the state and federal levels), then starting on the clinical track here at the University of North Carolina at Chapel Hill in 2004, only to switch to tenure track and (gratefully) receive tenure last year.  I'm currently serving as interim director of clinical programs, adding a variety of administrative duties to my plate.  As a result, my perspectives on legal education, scholarship, and related matters may be different than some.  I hope to touch on these topics during the month, but mostly I'll be exploring the issues that I'm particularly passionate about -- juvenile justice policy and reform, indigent criminal defense, and the criminalization of poverty.  About a year ago I started my own blog focusing on these areas, which you may check out here.

For now, I'll introduce a question that I've been struggling with ever since I first started practicing in juvenile delinquency court nearly ten years ago -- why is it that most of the children in the juvenile justice system are poor?  Why are they nearly all from families that are living at or below the poverty level?  As a parent of adolescents, I know that it is surely not because kids from low-income families are the only ones who violate the law, as my own (relatively well-behaved) daughters have committed many of the same types of very minor assaults, larcenies, and disorderly conduct offenses that have led to my young clients being criminally charged, ending up with delinquency records and (sometimes) detained.  I also have come to conclude, based both on my own practice experiences as well as longitudinal studies of children exposed to juvenile court, that when kids are processed through the system, the impact is not benign -- even when the disposition is arguably beneficial.  Instead, the research shows that these children have higher rates of recidivism and are stigmatized in the process.  In addition, potential negative consequences of juvenile delinquency adjudications may be seen in such areas as housing, employment, immigration and higher education as well as enhanced penalties for future offenses.   

Although much has been written (both in legal scholarship and the popular press) about the disproportionate representation of children of color in the juvenile and criminal justice systems, very little has been said about the disproportionate representation of poor children.  While few juvenile courts formally keep track of the income-level of a youth's family, jurisdictions that do have confirmed that nearly sixty percent were either on public assistance or had annual incomes of less than $20K.  Another twenty percent had incomes of less than $30K.  In my practice, I've had the opportunity to experience this first-hand, as one of the counties in which I practice has an overwhelming majority of children who are black and brown in its juvenile courtroom, while the other has a more significant population of white juveniles.  While the numbers show that children of color are disproportionately represented in both judicial districts, they also reveal that the common denominator across the board is socioeconomic status, not race or ethnicity.

In a law review article that came out in 2012 (and in several op-eds and other commentary I've published since then), I attempted to answer the question why.  Why is it that poor children are arrested, charged and prosecuted at higher rates than children of means?  Why are fewer poor children diverted from the juvenile court system than wealthy children?  Why does the standard of proof at trial often seem to depend on the socioeconomic level of the child's family?  Why do so many poor children violate the terms and conditions of their court-imposed probation?  Why are so few middle- and upper-class kids sent to detention?  The short answer is that the traditional focus of juvenile court on the needs of destitute youth (something I call, "needs-based delinquency") is a phenomenon that continues to be perpetuated through the structure and culture of the modern juvenile court and that the most common points of entry into the delinquency system (the child welfare system, public schools, retail stores, and neighborhood police) target poor children rather than ones of means.  The long answer is contained (at least in part) in this first article, which will be elaborated upon in subsequent work, including a new piece focusing on the juvenile court intake process that I'll discuss in another post. 

I welcome your comments.   

Terminology: Sneak and Peek, Delayed Notice Search Warrants, Covert Searches, and Black Bag Jobs

The most common term for government covert searching of homes is "sneak and peek" searches (this is not a law review article, so no supporting citation, just take my word for it).  Sounds a bit dastardly, and James Comey (in his speech I mentioned last post) tells us that the police "do not call them that."  (Actually they totally do, see FBI Agent Kevin Corr, Sneaky But Lawful: The Use of Sneak and Peek Search Warrants, 43 U. Kan. L. Rev. 1103 (1995).)

Among the many provisions of the USA Patriot Act, passed fall 2001, was express statutory authorization for what Congress titles "Delayed Notice Search Warrants" (codified at 18 U.S.C. § 3103a).  Comey likewise uses the term "delayed notification" when defending this provision.

We should resist this rhetorical move, as it obscures what is going on.  "Delayed notice search warrant" sounds pretty innocuous—it apparently involves a search warrant (which we like), and apparently there is some delay in giving notice.  Sounds pretty ministerial.

But the most salient feature of a delayed notice search warrant—a feature hidden by that name—is that the warrant authorizes a covert entry and search.  I suppose it is preferable that the police tell you, three months later, that they secretly searched your house, rather than never telling you at all.  But really, the most important feature here is that the police are conducting covert searches of people's homes.  So I tend to call them "covert searches"—since that's what they are.  "Sneak and peek" search also gets the point across well.

History gives us another colorful term:  black bag jobs.

In his defense of sneak and peek warrants, Comey reassured his audience that this type of search is nothing new:  “this delayed notification was around long before I was born.”  This is an interesting comment.  The first court decision discussing a delayed notice search warrant—that is to say, a covert search actually authorized in advance by a magistrate—is United States v. Frietas, 610 F. Supp. 1560 (N.D. Cal. 1985).  A DEA Agent in that case, when asked to explain this type of warrant to a federal judge who had never heard of such a thing, filed an affidavit stating "that he knew that there had at one time been issued a surreptitious entry warrant in Oakland."  If delayed notice warrants go back much earlier than 1985, they were clearly quite rare, and (one way or the other) were kept out of judicial decisions.

Of course covert searching does have an older pedigree—it’s just not one that the FBI is proud of.  

In the mid-1960s, FBI Deputy Director Cartha "Deke" DeLoach asked his inferiors "what authority we have for 'black bag' jobs and for the background of our policy and procedures in such matters."  "Black bag jobs" are covert searches—secretly breaking into a house or business and looking around, perhaps copying or taking records, sometimes installing wiretapping equipment, and never notifying the occupants. 

In an infamous memo dated July 19, 1966, FBI domestic intelligence head William Sullivan responded:

"We do not obtain authorization for 'black bag' jobs from outside the Bureau.  Such a technique involves trespass and is clearly illegal; therefore, it would be impossible to obtain any legal sanction for it.  Despite this, 'black bag' jobs have been used because they represent an invaluable technique in combating subversive activities of a clandestine nature aimed directly at undermining and destroying our nation."

The most infamous black bag jobs were conducted not by the FBI, but by the "special investigations unit," aka the Plumbers, authorized by President Nixon.  In the words of Nixon to Henry Kissenger, on April 28, 1973 (listen right near the end of the clip):  "You pick up the paper and it’s Watergate, Watergate, Dean charges this, and somebody charges that.  And who broke into the psychiatrist’s office—wasn't that the silliest goddamn thing?"

Sullivan was wrong about at least one thing:  it is possible to obtain legal sanction for this technique—Congress gave legal sanction in section 3103a. 

Thus today, "black bag" jobs have transitioned from the "clearly illegal" margins of FBI practice to the cleansing, wholesome light of "delayed notice search warrants," expressly authorized by Congress.  Of course Congress can call these whatever it wants.  But for the rest of us, let's keep calling them what they are:  covert searches, aka "sneak and peek" searches.  

More on Adoptive Couple v. Baby Girl (5 of 4)

In response to some of the comments received on our series about the Baby Girl case (posted on Prawfs earlier this week; the final post, with links to the others, is here), my co-author Kim Pearson addresses some of the family law issues:

Our original posts elided the issue of the mother’s rights to make decisions about the child, and several of the comments pointed out her invisibility.  Her role is as complicated as the father’s and subject to nearly the same level of media scrutiny, albeit in a much more positive light.  There are a few things that are worth mentioning about the media representations of the birth mother, Christina Maldonado.  Something that troubles me is that the media casts Maldonado as the smart, loving, heroic birth mother who willingly relinquished her child to a better life because she couldn’t afford to raise the child.  I have no idea if that was her actual thought process, but the media represents her choice as being a combination of love for Veronica and economic reality. 

This version represents the all too familiar narrative applied to many women of color and low-income women who relinquish their children to higher income “ideal” couples.  Many other feminist scholars have thought about this and cover it well, particularly when looking at the transfer of children worldwide in the aggregate, where poor women often believe that they can’t be good parents because of their income status.  If you want to know more about this work, a good place to start is with Laura Briggs’ book, Somebody’s Children, a critique of transracial and transnational adoption.  Kim Park Nelson, who did her dissertation on Korean American adoptees, discusses birth mothers here who don’t believe they’re worthy parents because they are poor. 

If a woman does not wish to raise a child, I completely support her decision to relinquish the child to the other biological parent or adoptive parent(s).  However, if she is relinquishing because she has internalized the belief that being a person of color, low income, single, or generally non-normative and thus an inferior parent regardless of how much she loves the child, then that’s much more problematic.  In the earlier post, I was trying to draw a connection between mothers who are in this second category and Brown’s situation, not trying to erase Maldonado altogether.  Imagine a terrifying future for poor women where they are offered the choice of paying for their children’s costs themselves or relinquishing them.  To be clear, I’m not commenting on Brown’s ability to pay support or not, but pointing out the dangerous possibilities when this choice completely defines the meaning of parenthood for men and women. 

Some comments also expressed concern about the possibility of a law that would allow dads (or any parents) to change their minds about adoption up until the last second. I agree that a cut off time makes sense.  But, I worry that the media representations of Brown as a deadbeat dad obscured the fact that he was trying to do the things required to establish that he wanted to parent Veronica well before the adoption was anywhere near being finalized.  We never know until terminations of parental rights are properly executed and adoptions are finalized if people will change their minds.  That happens, but there’s a very strong bar to disturbing final adoption decrees. But, I wasn’t arguing for giving time for a change of heart up to the last minute. It’s not as though Brown was bursting into the courtroom as the Capobianco’s were finalizing the adoption.  Veronica was a very young infant when he began trying to establish and exercise his rights.  I want to disrupt the idea that men and women both know at the same time that they are parents and receive the same treatment in regards to decisions about terminating rights.

In practice, messing up a termination is bad, bad business because doing so results in personal suffering and malpractice suits. So, lawyers will often take the belt and suspenders approach to parental rights terminations.  Some counsel birth parents and have them sign and initial paperwork attesting to the fact they understand the process and legal significance of termination in addition to the termination paperwork itself.  Some require birth parents to appear before a judge to prove up the termination so that there is a record that the process and meaning of termination has been explained and voluntarily executed.

My critique is really about state law and seeming approval the Court gave S. Carolina’s formulation of fatherhood.  If Brown weren’t subject to ICWA and he appeared in court with evidence that he changed his mind before the adoption was finalized, that he didn’t understand fully the ramifications of signing a questionably legal document to terminate his parental rights, that he made good faith efforts to support the child, tried to place the child with his parents while deployed, and wanted to raise the child now –  all this evidence could have been viewed as part of establishing paternity.  Rather than framing his actions as infringing on Maldonado’s sole legal and physical custody of the child, it could have been the usual division of rights when a fit, biological parent seeks to establish a legally recognized relationship with a child.  Their disagreement about whether to place the child for adoption or grant him sole legal and physical custody would have been like other kinds of disagreement between birth parents and the fate of their children.  Birth parents frequently disagree about their children, so the state has to balance parental rights and children’s best interests.  A birth mother wouldn’t be forced to parent against her will.  If she wished to place her child for adoption and believed she had sole custody, she could place the child with the prospective adoptive parents.  Once notice of the pending adoption is served and if the birth father contests it, then the court would weigh the rights of the birth father (does he have any?) against the rights of the birth mother (does she really have sole custody?) and the interests of the child who has formed an attachment to the prospective adoptive parents.  

In Brown’s case, we have the possibility of a fit father who needed some time to come to terms with his existing fatherhood while his intimate partnership was dissolving.  As I stated before, I’m not giving him a pass for failing to help support Maldonado during the pregnancy and first months of Veronica’s life – that can be a difficult time in the best circumstances and she was struggling with the dissolution of the relationship, too.  But, I’m concerned about the apparent ease with which courts diminish the possibilities for men to become legal and functioning fathers because of media representations, masculinity norms, and difficult legal standards. 

I don’t think taking an approach that gives men the possibility of acting before adoption proceedings are finalized would destabilize the entire process or infringe on women’s rights to make determinations about adoption. There are also processes in place to prevent women from being in limbo indefinitely if a birth father does not wish to sign a consent for termination; it’s not as if women have no recourse.  There are deadlines and standards in place for demonstrating an active interest in establishing paternity and custody of a child.  In response to the concerns about men without educational attainments, I agree that they are vulnerable. I worry about parents who do not understand the culture.  There are several accounts of international birth parents who thought adoption meant something more like foster care, and they signed away their rights to their child.   

 

Best Stadiums for the Law

Continuing on my baseball and law theme, let's talk about the best "stadiums" to watch the game of law:  courtrooms.  I was inspired by my recent trip to PNC Park in Pittsburgh; I've now been to 25 of the 30 active MLB stadiums!  (Anyone want to invite me to speak during the baseball season in Tampa, Miami, San Diego, Detroit, or New York?  I've been to old Yankee Stadium but have not seen a game at the new one.)

Out of the 25 stadiums I've seen, PNC Park may be the nicest.  It is right on the water and has beautiful views of the bridges, most seats are close to the action, the food options are good, and with the Pirates playing well, it has a great fan base.

What are the best places to watch the law?  Can we come up with a top 10 list of nicest courtrooms in the country?  Do people travel around the country to see courtrooms like they do for baseball stadiums?

I'll nominate two for the "best courtrooms" list:  the U.S. Supreme Court (for obvious reasons), and the en banc court room of the 5th Circuit in New Orleans, which is stunning.  Admittedly, I've been to far more baseball stadiums than courtrooms (I'm pretty sure this says a lot about me!).  But many that I have seen are pretty bland.  Which other courtrooms should be on my "bucket" list?

Legal plausibility v. Factual plausibility

In her essay on Conley v. Gibson for Civil Procedure Stories, Emily Sherwin calls Conley "precedent by accident." In the (in)famous "no set of facts" language, the Court was describing a standard for legal insufficiency, referring to a situation in which the legal right asserted did not exist as law. But lower courts ran with it as a standard for factual insufficiency and it soon came to mean that a plaintiff need not allege any particular facts, so long as some facts might come up later in the case.

Ironically, the new plausibility standard from Iqbal and Twombly is now presenting this problem in reverse. Twiqbal established a new standard for factual insufficiency and the quantity and quality of the facts the plaintiff must plead--the plaintiff must allege non-conclusory facts that, taken as true, plausibily show a violation of rights and the opportunity to recover. But lower courts have begun using plausibility for legal sufficiency--whether the plaintiff's legal arguments, as applied to seemingly undisputed facts, are plausible. Courts are denying 12(b)(6) motions where law is in dispute.

This is particularly prominent in constitutional litigation. The Tenth Circuit recently did this in a First Amendment case. And Judge Bernard Friedman of the Eastern District of Michigan did the same yesterday, holding that a challenge to the validity of  state prohibitions on same-sex marriage and on unmarried couples adopting survives a 12(b)(6) motion. After pointing out that both parties cite Windsor in support of their claims, the court states that "construing the facts in the light most favorable to plaintiffs, and in view of the Supreme Court's current statement of the law, this Court cannot say that plaintiffs' claims for relief are without plausibility."

This is just wrong. Plausibility has no role to play with respect to the validity of the plaintiffs' legal arguments. A ccannot be legally plausible--it is either legally valid or legally invalid, at least when the facts alleged are uncontested, as in the Michigan case.

The only facts that matter are these and they are not in dispute--plaintiffs are an unmarried same-sex couple, want to adopt children together, cannot marry because of state law, and cannot adopt children together because of state law. The only issue on the motion is whether these provisions of state law violate equal protection and due process, as interpreted in Windsor. That is purely a question of law for the court to decide, which is precisely what 12(b)(6) was designed for. There is no reason for the case to proceed further. No discovery is necessary, there is no fact-finding for the court to do, and no need for further factual development; the case is teed up for resolution right now, depending entirely on the legal issue of how the district court interprets Windsor. And resolving the legal dispute is the court's ultimate job. It thus makes no sense for the court to refuse to resolve the legal question now because the the plaintiff's claim is "plausible," then decide the exact same legal question six months from now, when nothing will have changed on the record before the court other than the parties repeating the same legal arguments that they could make right now. If Windsor invalidates state law, the court should deny the motion (and the plaintiffs should be making their own motion); if Windsor does not affect state law, the court should grant the motion.

The district court exacerbates its error with this closing line: "Plaintiffs are entitled to their day in court and they shall have it." This is nonsense. What does it mean to have one's day in court with respect to a legal question? It means you get a judge to resolve that question. But that is what Judge Friedman just refused, to do, at least for the moment.

Blackmun bobblehead news and Sherry micro-symp reminder

The Judicial Bobblehead

Soon — meaning sometime in the next week or two — some prawfs will receive a certificate from the Green Bag that might be redeemable (at the DC office of O’Melveny & Myers LLP) for a Justice Harry A. Blackmun bobblehead doll. In an effort to avoid answering the same question 1,000 times, we have included this statement on the certificate, and make it here (where it is more likely to be read) as well: “[Y]es, it is true that we originally produced the Justice Blackmun bobbleheads with an eye to making them available only to winners in our FantasyLaw game. But with FantasyLaw on hiatus — and with plans for different kinds of recognition when we re-start it — now seemed liked a good time to stop (at least for now) frustrating bobblehead enthusiasts who are not FantasyLaw enthusiasts or experts.” If you do end up with one of the Justice Blackmun dolls, be warned: (1) the baseball pictured with the doll is not included (the idea is that the doll can display you own favorite baseball or golf ball — there is a hole in the base that can accommodate a golf tee); and (2) the included baseball bat (a tiny Louisville Slugger legitimately licensed by the nice people at Hillerich & Bradsby) connects to the doll via magnets concealed in the Justice’s elbow and the bat’s handle, making it easy to lose (and probably impossible to replace).

The Judicial Activism

For those of you with judicial activism (or restraint) on the brain just now, the Green Bag’s upcoming micro-symposium on Suzanna Sherry’s “Why We Need More Judicial Activism” might be a good place to speak your mind. If you have 500 or so interesting words to say about what Professor Sherry has to say, please send them to [email protected] by July 4 (not the June 1 on the original CFP).

Another View on the Stand at the Schoolhouse Door

      Fifty years ago today, Vivian Malone Jones and James Hood, backed by threat of force from a federalized national guard, walked through the doors of Foster Auditorium and became the first African American students to register at the University of Alabama.  Governor George Wallace’s infamous stand at the schoolhouse door had failed.

      At that moment less than a mile away around 5,000 people were locked behind another door.  Bryce Hospital was one of the oldest and largest state-run inpatient psychiatric facilities in the country.  One journalist described it as a “hellhole.”  Photos showed patients strapped to rocking chairs.  There were only three psychiatrists: one for every 1,700 patients.  State expenditures per patient were at or near the lowest in the country.

      There are two types of institutions: ones people want to get into and ones people want to get out of.   In both cases equality can be achieved only by opening the door.  The struggles and successes of patients at Bryce are far less well known than the events across town, but connected to them in deeply important ways.

      One surprising connection happened almost immediately.  The evening after the drama at the schoolhouse door, President John Kennedy delivered his famous address on civil rights.  The next morning, June 12, 1963, Medgar Evers, a black leader involved in desegregating the University of Mississippi, was assassinated.  On July 6, 1963, the patient-edited newsletter at Bryce reported that “[a]bout 175 persons did what was called a memorial march Sunday for the slain Negro [Medgar Evers].  It was all quiet and peaceful.”

      By the end of the decade, Bryce still had approximately 5,000 patients.  Conditions had deteriorated even further.  Admission criteria were lax and many patients did not belong there.  Ricky Wyatt had been institutionalized at Bryce at age fourteen.  His only diagnosis was delinquency.  Wyatt became the named plaintiff in a 1970 suit alleging constitutionally inadequate treatment.

      The court agreed and in a 1972 order set widely influential minimum standards, including requiring one psychiatrist for every 125 patients (down from 1,700). That order also inched closer to integration: “Patients have a right to the least restrictive conditions necessary to achieve the purposes of commitment.”  This may have been directed more toward conditions within Bryce---like physical restraints---but it need not be read so narrowly.  For example, if a patient can be trusted to return to Bryce as appropriate, then locking the front door is unnecessarily restrictive.

      This logic was extended in 1974 to the critical threshold question of who belonged at Bryce.  A patient, Jean Lynch, won a court challenge to the requirements for involuntary hospitalization.  Henceforth, no one could be locked away unless, in addition to being mentally ill, he posed a danger to himself or others.  Involuntary hospitalization also had to be “the least restrictive alternative necessary and available for the person’s illness.” 

      To be sure, the “dangerousness” and “least restrictive alternative” requirements were derived from the principle of liberty, not equality or integration.  But the result was that vast numbers of Bryce residents started to enjoy that liberty alongside the rest of us.  Over 1,200 patients were released just a year later.

      Bryce Hospital now has just 268 beds.  Thousands more people have made it out of that locked door.  Deinstitutionalization has obviously been controversial.  Too often support for released individuals in the community has been inadequate.  But allowing individuals with mental illness who are not dangerous to live free of unnecessary restraints is a profound recognition of both liberty and equality.

      In its 2004 order closing the Wyatt case, the federal court observed that the requirement for treatment in the “least restrictive setting” was “echoed” in the Americans with Disabilities Act of 1990 (the “ADA”).  This echo reverberates in the language of integration. Regulations under the ADA require “the most integrated setting appropriate.”  This means a setting that enables interaction between disabled and nondisabled persons to the fullest extent possible.

      Equality is achieved only when all people have access to public benefits and freedom from public restrictions without regard to race or disability.  It took decades, but an expansive notion of integration made the short walk from Foster Auditorium to Bryce Hospital.  And both buildings are now handicap-accessible.

Goodbye or "See ya out and about later"

Thanks again to Dan et al for the chance to guest blog, and to all of the great commenters. It has been an exciting month for a family/crim law person like me, but I am already looking forward to reading the posts of this month's lineup. 

And as another Canadian--yes we are lurking everywhere--it is a fitting time for me to move on as well. 

Hiring Committees 2013-2014

Please share in the comments the following information related to the 2013-2014 law school faculty hiring season:

(a) your school;

(b) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);

(c) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and

(d) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(e) your committee's feeling about packets/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 

(f) your committee's preferred way to be contacted (email, snail-mail, or phone); and/or

(g) the number of available faculty positions at your school.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

You can't make changes to the spreadsheet directly, so please post the information in the comments, or email me directly, slawsky *at* law *dot* uci *dot* edu.

Additionally, in 2011, someone very kindly submitted a spreadsheet of addresses of a subset of law schools, if folks want to create their own mail-merge. You can download it here. (If anyone wants to update or expand it and send me a new version, that would be awesome.)

Originally posted: July 1, 2013. I will bump this post periodically.

Sneak and Peek

Thanks to Dan & Co for having me.

My main topic for the month:  Sneak and Peek searches, aka Delayed Notice Search Warrants, aka Black Bag jobs.

What’s a sneak and peek search?  Simple:  the police conduct a covert search of a home or business when the occupant is away.  Sometime later, they give the occupant notice of the search—maybe days, weeks or months (today, 90 days is most common).

Covert government surveillance is all the rage these days, but most of the discussion focuses on high-tech surveillance that involves packet switching and $2 billion NSA data centers in the Utah desert.  Sneak and peek searching is old school—any fool with a crowbar can break into your house while you are gone and look through your stuff.  Even the smug Amish have to worry about the FBI secretly looking through their handcrafted cabinets. 

So check this out—the government has discovered that "breaking into people's homes while they are away" is a very useful tool.  There's been a (largely unnoticed) explosion in sneak and peek searches in the past 6+ years:

 

The chart is from my forthcoming article, Jonathan Witmer-Rich, The Rapid Rise of “Sneak and Peak” Searches, and the Fourth Amendment “Rule Requiring Notice,” 41 Pepperdine Law Review __ (2014), Figure 1, draft available here on SSRN.  (Data for FY 2012 will be available sometime this month; I'll share it with you when I have it; I'll bet anybody $37.33 that the number goes up not down.)

Back in 2005, in a speech at U. Richmond Law School, James Comey—President Obama’s nominee for FBI Director—said that “[w]e in law enforcement do not call them [sneak and peek warrants] . . . because it conveys this image that we are looking through your sock drawer while you are taking a nap.”  James Comey, Fighting Terrorism and Preserving Civil Liberties, 40 U. Rich. L. Rev. 403, 410 (2006). 

Ha ha!  What a ridiculous image!  Of course police do not do this while you are taking a nap.  You might wake up and discover them!  Otherwise, this is a pretty good description of a covert search—police secretly looking through your sock drawer, when you are away.  Police do not like that image.  It's alarming because it's accurate.

Here's what I will be doing in my posts this month:

1.  Giving a more detailed empirical description of the rapid rise of sneak and peek searching.

2.  Looking at the history of sneak and peek searching (aka "black bag" jobs).

3.  Arguing that notice is part of Fourth Amendment reasonableness, and so delayed notice warrants require serious Fourth Amendment scrutiny.  Most lower courts to date have rejected this proposition, at least in the context of delayed notice search warrants.

4.  Arguing that the current statutory regime is a total failure, and is facilitating the explosive growth in covert searching.

5.  Giving some solutions to limit the number of covert searches that can be done, while still preserving this tool for when it is really important.

 

Apolitical sports leagues? No

Beginning October 1, people will be able to shop for the expanded insurance coverage made possible by ACA. As part of its publicity effort, the Department of Health and Human Services is seeking to partner with the NFL and other sports leagues in publicity efforts. This does not sit well with GOP Sens. Mitch McConnell and John Cornyn, who sent this letter to Commissioner Roger Goodell.

The letter chastises the league for risking its "inclusive and apolitical" brand, expressing surprise that a pro sports league would take "public sides in such a highly polarized public debate." But I would reject the suggestion that the NFL, or any other sports league, is or ever has been apolitical. Putting aside the way leagues regularly engage in politics for their own direct benefit--antitrust, labor law, stadium funding. Leagues and teams regularly get involved in public issues--gay rights, women's rights, racial equality, war and the military. At least some of these are at least as contentious as ACA. In fact, as the letter acknowledges, the Boston Red Sox in 2007 participated in efforts to encourage enrollment in Massachusetts' program (which was the basic model for ACA). The reason for this being different, they argue, is that ACA passed on a party-line vote using "legislative gimmicks" and "ridiculed political favors." Stated differently, ACA passed through the ordinary legislative process, but the process worked to our disadvantage and produced a law we don't like. Thus, the law is illegitimate, so you, as an apolitical entity, should stay out of it.

There also is a hint of the paranoid. They express concern for "the Obama Administration's record of using the threat of policy retaliation to solicit support for its policies or to silence its critics" and helpfully tell the NFL to come to them if they are feeling threatened or coerced so the Senate GOP can protect them from the big, bad President. Of course, in emphasizing how unheard-of and wrong-headed the NFL's involvement would be , the letter could be read as its own threat designed to solicit support for the McConnell/Cornyn side in this debate. It actually is the classic bully trick--you better come to us for protection from that other guy who is threatening you.

What Proposition 7 Has to Say About the Proposition 8 Endgame

On November 5, 1974, California voters approved Proposition 7, which, among other things, repealed three California constitutional provisions which had been declared unconstitutional. The proposition responded to Griffin v. California, where the U.S. Supreme Court invalidated a provision allowing comment on failure of a defendant to testify; Sei Fujii v.  California, in which the California Supreme Court voided a law, authorized by the constitution, allowing racial discrimination in land ownership, and Reitman v. Mulkey, where the U.S. Supreme Court affirmed a California Supereme Court decision invalidating a provision designed to allow private parties to discriminate in housing sales and rental based on race.  In Alabama and other former Jim Crow states, prohibitions on integration and interracial marriage have gradually been removed from the books (but Mississippi Code Ann. 37-7-329 is a nice exception).

My guess is that millions of Californians will agree that repeal should be the fate of Article 1, Section 7.5, "[o]nly marriage between a man and a woman is valid or recognized in California."  Its text denigrates thousands of marriages in California, it remains on the books, and if written law has any expressive force, it should be gone, just as California repealed many discriminatory laws from the era when it was a Jim Crow state.  

There may be pragmatic reasons to wait to seek repeal; the apparently unlikely failure of a repeal initiative would be an embarassment.  And the Proposition 7 analogy is imprecise; if race and crime remained hot topics, the precise issues addressed in Proposition 7 had largely ceased to be legal or political controversies by 1974, and the underlying cases were 7 to 22 years old.  On the other hand, formal repeal would moot questions like whether some party not covered by the injunction could challenge the decision invalidating Proposition 8, or whether California same sex marriages can be collaterally attacked when their validity has some legal consequence.  It would also undermine the argument that Perry v. Hollingsworth was not democratically legitimate.  Since the majority of California voters apparently support same sex marriage, an electoral affirmation of that fact would be welcome.

Adoptive Couple v. Baby Girl (4 of 4): Whiteness and Ideal Parenthood

This case has been shadowed by concerns about Indian authenticity, equal protection, fatherhood and motherhood, dysfunctional child welfare systems, and “deserving” adoptive parents. The purpose of this series (see part 1, part 2, and part 3), co-authored with Kim Pearson, a family law professor who writes about transracial adoption and non-normative families, is to clarify what the case did and didn’t do and to untangle the impact of some of these shadow concerns. While the Indian law analysis is largely mine and the family law analysis largely hers, the post is a product of our collective views. In previous posts, we covered the statutory issues and the impact of racial anxieties about Indian law. In this final post, we focus on the way ideas about race, culture, and class can haunt adoption cases, both in the ICWA context and more generally. While we relate the issues in this case to issues that arise in non-ICWA transracial adoption cases, we do not mean to suggest that ICWA is a purely race-based statute (see post 1 and post 2). 

When race has been invoked in this case, it is said to operate unfairly in two ways. First, why should Brown get special rights (here, a second bite at the fatherhood apple) simply because of his ancestors? This special rights argument turns a blind eye to the fact the ICWA is a remedial statute. What are called special rights are actually part of Congress’ clear attempt to undo special harms directed at Indian families and tribes. The second is harder: why, in the words of the Court, should “certain vulnerable children [be put] at a great disadvantage”? Why should Veronica’s ancestry prevent her from getting the best home possible? 

Concepts like “best,” “loving,” and “ideal” are often deployed to mask privilege and the normative values that prospective adoptive parents embody in contrast to birth parents. According to the father’s brief, the guardian ad litem appointed to represent Veronica described the Capobiancos as “a well-educated couple with a beautiful home, [who] could afford to send Baby Girl to any private school that they chose and, when she was older, to any college she wanted; and that there was nothing that Baby Girl needed that [they] could not buy for her.” The state supreme court also described them as “ideal,” despite ruling against them, and most media descriptions of the case have repeated this description. By contrast, as we described in an earlier post, Brown has been portrayed in the media coverage as a worse father than the facts seem to reveal. 

The sloppy discussion of race and Indianness (see post 2) obscures the position of the majority of adoptive parents as white, middle and upper class, and in this case, adherents to a Christian religion. Laura Briggs critiques the Christian Right for its role in this case here. So much of the media emphasis is on the small amount of Cherokee ancestry that the child has, rather than the fact that the white parents are also members of a racial group who wish to define and raise the child as they deem appropriate. An ongoing problem that underpins a great deal of transracial/transcultural adoption is that adoption is too often formulated as a zero sum game where any introduction of another culture or race to “normal” or white families is seen as infringing on family privacy rights under Meyer v. Nebraska and Pierce v. Society of Sisters. The unexamined race and position of those commenting on a child’s race while undermining the parenting abilities of that child’s birth parents reinforces racial hierarchies by twining negative characterizations of race with rightful parenting (those Asian mothers don’t value girl babies or that Indian father was uninterested in his baby and lazy about establishing paternity). Thinking like this can only hurt the child in question, who may strongly identify with the very racial or cultural group that is devalued.

We don’t mean to denigrate the adoptive family, Matt and Melanie Capobianco, for their devotion to Veronica realized in the form of trying to adopt her, cherishing their time with her, and having a beautiful home in which to raise her. They didn’t deserve the pain of losing her because they mistakenly believed that they could adopt her. The media coverage of the case, however, has focused almost entirely on the possible unfairness visited on this couple. They did nothing wrong. They are ideal parents. They don’t deserve to lose a child they are attached to because of some legal loophole. Like Fisher, this is in some ways a story of white entitlement (and here). It depends on the belief that, as long as they follow the rules and do nothing intentionally wrong, whites should not lose out on opportunities to attend colleges, to get jobs, or to adopt children they love. This expectation obscures the ways that people of color often follow the rules and still lose opportunities. By focusing solely on the loss faced by the Capobiancos after they formed a relationship with Veronica, rather than on the preceding loss faced by Brown, the Cherokee Nation, and Veronica at the moment of the initial placement, the coverage ignores the very reality that the ICWA was enacted to counter: Indian children and tribal communities have suffered because of the widespread removal of children.

These removals were based on the default assumptions that Indian families and communities are deficient and that the tribe is less qualified than a state child welfare system to make a principled decision about what is best for a child, views that reiterate an unspoken racial hierarchy. Those seeking to dismantle ICWA use the argument that Indian children have worse outcomes than other children or that Indian children lose their chance to fare better than they would on the reservation when non-Indians are prevented from adopting them. These arguments ignore a shameful history of widespread Indian child removals and family disruption, the effects of which are still felt today. They also map mainstream norms onto childhood outcomes that are a result of a complex mixture of resource shortages, racism, and other forms of oppression. Obviously, if a child is in danger that child deserves to receive assistance and we should expect a tribe to take care of their moral and legal obligations to the child. But, starting from a wholesale assumption that tribes are less qualified to determine or assist their own children for no other reason than their outcomes as defined by non-Indians are not like mainstream children’s outcomes is problematic. This is another strike at the rightfulness of Indian parenting and tribal interests in their children.  

The media portrayal and the majority opinion cast ICWA, the tribe, and Brown as obstacles to the Capobiancos’ happiness. As the dissent notes, the characterization of tribes and ICWA as obstacles to the adoption of Indian children in a case about adoption of an Indian child by white family is “perplexing” given that ICWA was enacted to counter the high rates of such adoptions: “ICWA does not interfere with the adoption of Indian children except to the extent that it attempts to avert the necessity of adoptive placement and makes adoptions of Indian children by non-Indian families less likely.”

This portrayal is also reminiscent of the debates that rage(d) around transracial adoption. Solangel Maldonado’s excellent work comparing ICWA, transracial adoption, and more expansive views of fatherhood is available here. Justice Sotomayor’s dissent reminds us that the pain felt by the parties because of the mishandled situation is not unique to ICWA, “laws protecting biological fathers’ parental rights can lead - even outside the context of ICWA  - to outcomes that are painful and distressing for both would-be adoptive families … and children who must make a difficult transition” when biological fathers’ rights are protected – as they often are in lower courts.

What is best for Veronica can’t be assessed without consideration of her identity as a transracial adoptee (in multiple ways) and as a child who is growing and changing. The Child Rights Project filed an amicus brief, available here, arguing for the interests of the child. Veronica, like all infants, grew during the years of litigation, and she currently has a relationship with both biological and adoptive families. Should the Capobiancos retain custody, we hope they will be able to reach an agreement to facilitate Veronica’s contact with her Cherokee family (as they seem to have done with the birth mother’s Hispanic family via an open adoption). Unfortunately, there is reason to wonder whether state child welfare systems and non-Indian adoptive parents recognize the importance of these ties. For example, according to the father’s brief, the GAL stated at trial that Veronica’s Native American heritage meant “free lunches and free medical care,” “little get togethers,” and “little dances.” This, of course, is not surprising to anyone who has read the legislative history of ICWA. And it is not an issue confined to history, either, as demonstrated by the recent lawsuit filed by South Dakota tribes against the state alleging serious ICWA violations. This is why ICWA sets heightened requirements for terminating the rights of Indian parents and gives tribes the right to make decisions about placement. 

Ignoring Veronica’s interests, including her interest in maintaining contact with her tribe, would be a personal tragedy for her and her families. It would also be counter to the trend in family law towards open adoption and/or facilitation of meaningful contact with others in her racial and ethnic group(s). If the amicus filed by the Adult Pre-ICWA Indian Adoptees isn’t poignant enough to militate for exercising extreme caution when making transracial adoption orders, recent research, available here, here and here, on Asian children adopted transracially, usually to white parents who live in mostly white areas, shows that superficial cultural tourism-type exposure to help a child develop a racial and cultural identity is negatively correlated with self-esteem. By contrast, meaningful contact over time with positive role models who share membership in the same racial or ethnic group as the adopted child provide protective effects, i.e., positive self-identity, for the child.

 Last week’s other historic Supreme Court decisions are receiving more press coverage now, but this decision may have the greatest ripple effect, coloring future ICWA jurisprudence and bleeding into other areas of law. At minimum, the reasoning used in this case will likely slow the progress in developing a better framework for handling race, privilege, gender, and notions of good families.