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Tuesday, October 31, 2017

Sponsored Post: Practicing Environmental Law

The following post is by Todd Aagaard, Vice Dean & Professor of Law at Villanova; David Owen, Professor of Law at UC Hastings; and Justin Pidot, Associate Professor at University of Denver, and is sponsored by West Academic.

A month or so into a typical environmental law course, something bad can happen. Students encounter the Clean Air Act. Statutory interpretation can be tough in any circumstance, but the Clean Air Act is a particularly daunting beast, with hundreds of partially overlapping and somewhat intertwined provisions and no simple organizing principles or themes. Many students approach environmental law with the notion that the subject matter is going to be inspiring and fun. Now, instead, they are slogging through statutory provisions that seem, in Justice Rehnquist’s memorable words, to “swim before one’s eyes.

After that initial shock, things don’t get much easier. The authors of the Clean Water Act, CERCLA, and RCRA accomplished many wonderful things, but they won no prizes for the accessibility of their prose. The appellate court decisions interpreting those provisions often aren’t much better. And reading those decisions offers only a glimpse into the world of environmental lawyers, who often rely more heavily on guidance documents and administrative decisions than the rulings of judges. By the end of the semester, more than a few students are wondering if environmental law is really what they want to do.

As law students, each of the three of us had this experience. But we still practiced environmental law, and it was intellectually engaging and inspiring and even sometimes fun. So, when we became professors, we wondered how we might bring the excitement of environmental law practice into environmental law pedagogy.

A new casebook, Practicing Environmental Law, published by Foundation Press®, is our response to that dilemma. Our basic premise is that the way to make students’ learning experiences more enjoyable— and deeper and more lastingis to bring environmental law practice into the classroom. We did that by building the book around a series of case studies. Over the course of the semester, students will advise a community group on an environmental justice advocacy strategy, help clients determine whether they have standing to bring an environmental case, negotiate a RCRA enforcement settlement and a regional- scale habitat conservation plan, design a litigation strategy to address changes to air quality standards, and testify at a hearing on water pollution reductionamong many other exercises. As this list implies, applying law to new facts, doing some teamwork, and engaging in oral and (if the professor chooses) written advocacy all will be part of an environmental law course taught out of our book. And the range of materials goes well beyond the federal appellate decisions that dominate a typical casebook.

So, will it work? We, the three authors, have each taught much of the book several times in our own classes, and students really appreciate the new format. And if you’re interested in reviews from professors who didn’t actually write the book, we’d be happy to put you in touch with one of the many professors who is testing the book out this semester.

Posted by Howard Wasserman on October 31, 2017 at 02:54 PM in Sponsored Announcements | Permalink | Comments (0)

Monday, October 30, 2017

Your Crim Pro Final


Posted by Howard Wasserman on October 30, 2017 at 08:06 PM in Criminal Law, Howard Wasserman | Permalink | Comments (3)

New ACS Brief on Local Voting Rights

The ACS has just published my new issue brief -- a condensed version of a longer GW Law Review article -- on local expansions of the right to vote. Here is the abstract:

The right to vote is a fundamental right inherent in the U.S. Constitution and all state constitutions. Most scholarship on this right focuses on only federal or state law and omits discussion about how local law may also confer this right. In his new Issue Brief, “Expanding Voting Rights Through Local Law,” Professor Joshua A. Douglas of the University of Kentucky explores how cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. He argues that municipalities can serve as “test tubes of democracy” that may experiment with different voting rules, and these expansions can then spread to other municipalities and even up to states or Congress. Douglas concludes that when examining these local laws, courts should defer to those that expand the franchise, while training a more skeptical eye on laws that restrict voter access.

If for no other reason, you should read it because it starts with a reference to The West Wing! (Ah, if only Jed Barlet was our president...)


Posted by Josh Douglas on October 30, 2017 at 03:35 PM in Article Spotlight, Law and Politics | Permalink | Comments (2)

JOTWELL: Erbsen on Lahav on Procedural Design

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Alexandra Lahav, Procedural Design. This is a great paper and it and the review are good reads.

Posted by Howard Wasserman on October 30, 2017 at 02:18 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Still more from the police misconduct archives

This post continues my efforts to highlight underused archives that show the history of police misconduct in Chicago....

The research that culminated in Secret Detention by the Chicago Police in 1959 was part of a larger, decades long investigation into police misconduct conducted by the Illinois ACLU. The investigation began by exploring coerced confessions and ended with Calvin v. Conlisk in 1972. Special Collections at the University of Chicago Library has the Illinois ACLU files, which contain notes, correspondence, and pleadings relating to Calvin and some other cases that were part of this investigation. Those materials offer important background on the work done by the ACLU, the Afro American Patrolman’s League, and the Metcalfe Blue Ribbon Panel.

Several items are of interest to lawyers, activists, and scholars interested in police misconduct in Chicago:

The first is the merest hint found in a folder labelled “Illegal Police Procedures, 1952-1958,” in Box 508, Folder 5. The folder contains notes relating to Mallory v. U.S., 354 U.S. 449 (1957), which dealt with the legal limits on the use of confessions in federal court.  In Mallory, the Court found that when a suspect was held in custody and interrogated for several hours (from “Early afternoon” to 9:30 at night, when he confessed) without being advised of his right to counsel or being taken before a magistrate was denied the protections of Rule 5(a0 of the Federal Rules of Civil Procedure. Much of the material in the folder relate to efforts to oppose legislation that might undermine Mallory, and research relating to coerced confession cases in Illinois.

That folder contains a brief handwritten note, undated, that reads “Nuremberg Trials, vol. 6, reference to electric prodding” (emphasis in original). Then, after a scribbled-out part, the note reads: “Electric Prodder file” (I have been unable to locate such a file).

Claims that the Chicago police used electric prods on suspects were made in relation to the Jon Burge cases. The general consensus, following the major study of the Burge torture claims by John Conroy, is that Jon Burge learned to use electo-shock torture during his tour of duty in Vietnam and brought the practice back to the Chicago when he joined the police department in March 1970. My own research into police torture claims from Chicago between 1871-1971, has turned up a claim of electro-shock torture from 1970 (which did not, so far as I can tell, involve Burge), but none before that. So this brief entry in the ACLU file, which suggests that electro-shock torture was used in the 1950s, raises some important questions for future research.

The second section of this file that is of note relates to the incredible story of Emil Reck. Reck (who was white) was arrested with three other teens in 1936 and charged with the murder of a Chicago physician. Two of the defendants pled guilty, Reck and a fourth defendant went to trial. At trial, both defendants claimed that they were tortured by the Chicago police. Each claimed that officers (at different stations) hung them by their handcuffed wrists as part of their effort to get them to confess. Reck offered evidence of other physical torture, and the record showed that he was hospitalized twice while he was in police custody, once after he began to vomit blood.

Notwithstanding that evidence, the two were convicted. Reck was sentenced to prison for 199 years.

Reck was unable to afford to buy the transcript of his trial, and so the initial appeal of his case raised a dubious procedural claim based simply on materials in the public court files (People v. Reck 392 Ill. 311). Many years later, Reck filed a post-conviction petition contesting his conviction, arguing that he was coerced into confessing through the use of torture. At the post-conviction proceeding, the judge determined that Reck’s conviction should not be overturned. Various habeas claims followed.

Finally, in 1961, the United States Supreme Court agreed to hear his case and reversed on the ground that his confession had been coerced. Unfortunately, the Court refused to examine his claims of physical torture and instead rested its decision on the evidence that he spent eight days in the custody of the Chicago police without access to a lawyer or family members. The Court also noted that Reck was only nineteen-years-old at the time, and had been repeatedly diagnosed as being “of subnormal intelligence.”

Finally, the Illinois ACLU files (Box 555, Folder 5) contain transcripts from various hearings in Reck’s long trek through the criminal justice system, pleadings, briefs, and research notes.

The ACLU files (Box 555, Folder 5) also contain materials relating to the police misconduct claims that formed the basis of Calvin v. Conlisk. The materials support the nearly contemporaneous work done by the Metcalfe Committee, and suggest patterns of abusive and harassing arrests that particularly targeted people of color in Chicago between the 1950s and early 1970s.

Posted by Elizabeth Dale on October 30, 2017 at 10:28 AM | Permalink | Comments (0)

Sunday, October 29, 2017

Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility

The winner has been selected for the eight annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility: Robert W. Gordon, The Return of the Lawyer-Statesman?, 69 Stan. L. Rev. 1731 (2017).

The Prize will be awarded at the AALS Annual Meeting in San Diego in January.

Posted by Rick Garnett on October 29, 2017 at 03:05 PM in Rick Garnett | Permalink | Comments (0)

Wednesday, October 25, 2017

Jews and the 2017 World Series

Some off-the-cuff baseball history.

The 2017 World Series features Jewish players on both teams--Alex Bregman for the Astros and Joc Pederson for the Dodgers. According to Bob Wechsler, author of The Jewish Baseball Card Book, this is the first two-Jew Series since 2004 (Gabe Kapler for the Red Sox and Jason Marquis for the Cardinals); the second since 1959 (when Sandy Koufax played for the Dodgers); and the fifth in history (the other two involved Hank Greenberg in 1945 and 1940).

In Game 2 this evening, Bregman is the Astros regular third baseman, while Pederson will start in left for the Dodgers. This is, as far as I can tell, the first time that both teams have started a Jewish player in a World Series game. Kapler did not start against Marquis in Game 4 in 2004, nor did the Jewish players playing against Koufax and Greenberg.

Bregman homered last night for the Astros' only run. I am trying to figure out who was the last Jewish player to homer in a Series. Greenberg hit 2 in 1945. I cannot find any homers since then. Who am I missing and when?

[Update: Naturally, we need a Halachic ruling on the last point: Steve Yeager, the Dodgers catcher in the '70s and early '80s, hit 2 homers in the '77 Series and 2 in the '81 Series (in which he won MVP), but converted to Judaism only after he retired. So he is Jewish, but was not when he hit those 4 homers. Do these count as World Series homers by a Jewish player?]

[Further Update: Pederson homered for the Dodgers’ first run of Game 2, making this the first Series with home runs by multiple Jewish players.]

[One More Update: According to Ron Kaplan, the only Jewish player to homer in the Series between Greenberg in 1945 and Bregman and Pederson this year (if you do not count Yeager) was Ken Holtzman, a pitcher for the A's, who homered in Game 2 of the '74 Series (in researching this by going through a list of Jewish players and their career stats, I did not think to look at any pitchers).]

Posted by Howard Wasserman on October 25, 2017 at 05:11 PM in Howard Wasserman, Sports | Permalink | Comments (5)

Monday, October 23, 2017

Abel reviews Espeland & Sauder's "Engines of Anxiety: Academic Rankings, Reputation, and Accountability."

Prof. Abel's review is in the Journal of Legal Education and can be downloaded here.  A bit:

Student choice of a law school is complicated and facilitated by a combination of ignorance and indifference. Few harbor a passionate desire to be a lawyer. . . .  They do not know what
kind of law they will practice or which schools prepare better for various specializations. . . .  If they have any image of lawyers, it probably is drawn from the media . . . , which depict (inaccurately) a practice few will enter[.]

If few applicants have intrinsic reasons for choosing among law schools (or even for becoming lawyers), they do share a common trait: ambition. They have been socialized from an early age to distinguish themselves through achievement: academic, athletic, cultural, social, political. Most can compare the status of their high school with that of its local competitors. They strove to get into the “best” college—for which they had a metric—and build a resumé there and in the subsequent gap year(s) to get them into the “best” law school.  They have been accumulating cultural capital the way earlier generations accumulated land (in feudal society) and capital (in bourgeois society). All they need is a marker of the best, preferably one that also will distinguish them in the eyes of prospective employers.

The[] changes in legal education and the legal profession since 1970 created an opening, indeed an imperative need, for information to guide aspiring law students in choosing a school. . . .

Posted by Rick Garnett on October 23, 2017 at 02:03 PM in Rick Garnett | Permalink | Comments (0)

A Conference of Possible Interest: "Here I Stand: Conscience, Reformation, and Religious Freedom Across the Centuries"

This event, sponsored by the Religious Freedom Research Project at Georgetown's Berkley Center, looks to be really good.  If you're in Washington, D.C. on Nov. 1 . . . check it out! (RSVP required.)  Here's the blurb:

On October 31, 1517, Martin Luther published his Ninety-Five Theses urging sweeping religious reforms and catalyzing the Protestant Reformation. The Reformation unleashed an intensified focus on freedom of conscience, with dramatic social and political consequences. It fostered new notions of religious liberty as well as new frameworks for civic life. At the same time, the Reformation built upon centuries of Roman Catholic and Eastern Orthodox theologies of conscience, dignity, and freedom in ways that are not always understood.

This symposium will explore these dynamics, but also examine how Christianity per se has unleashed distinctive and powerful principles of conscience and freedom across its 2,000-year history, even in the face of what Pope Francis has called the “ecumenism of blood”—the severe religious persecution affecting numerous Christian and non-Christian communities around the world.

The line-up of speakers and presenters is really impressive, and the keynote address is by the great Robert Louis Wilken.

Posted by Rick Garnett on October 23, 2017 at 01:44 PM in Rick Garnett | Permalink | Comments (0)

Friday, October 20, 2017

Supreme Court Fellows Program – Call for Applications

The Supreme Court Fellows Commission is accepting applications through November 3, 2017, for one-year fellowships to begin in August or September 2018.  The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission.  Fellows gain practical exposure to judicial administration, policy development, and education.  In each of the four placements, the Fellow will be expected to produce a publishable paper and will have unique access to federal judges, and to officers and staff of the federal judiciary, in connection with the research project. 

The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service.  Fellows will receive compensation equivalent to the GS-13/1 grade and step of the government pay scale (currently $94,796) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary.  Appointments are full-time and based in Washington, D.C.  A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2018, and finalists will be contacted on selection decisions within one to two weeks after interviews.

Further information and the online application are available on the Supreme Court’s website.

Posted by Howard Wasserman on October 20, 2017 at 05:34 PM in Teaching Law | Permalink | Comments (0)

More from the archives

To continue my previous posts on the lost history of police misconduct in Chicago….

In 1959, the Illinois ACLU published a small pamphlet—Secret Detention by the Chicago Police. The report studied (and condemned) a specific Chicago police department practice: secretly holding arrestees for extended periods of time without charging them or taking them before a judge. In the process, it linked that practice to systemic mistreatment of minority and poor arrestees (p. 5) and confessions coerced by physical or psychological means.

Although brief, the Report combines quantitative and qualitative analysis. Its statistical analysis concluded that about 20,000 defendants were held incommunicado for 17 or more hours before being brought before a magistrate in 1956.  Nearly ten percent of those 20,000 were held in custody for more than 48 hours without being brought before a magistrate (pp. 5-6, for more detailed discussion of the data, see pp. 22-29). Often, these people were not merely in custody for an extended period, but were in custody and denied access to friends, family, or legal counsel (p. 11).

The ACLU report argued that those extended detentions led to instances of the third degree, or police torture. While some of that torture was “mild” (though still illegal), a hard slap, a blow from a blackjack or telephone book, a punch in the gut (p. 13), the ACLU charged that extended detention also provided an opportunity for more extreme acts. “It has been repeatedly charged, and on one occasions it apparently was proved, that the police have shackled a prisoner’s hands behind him, looped a rope through the handcuffs and over a door top, and hoisted the victim until his feet dangled, his toes barely touching the floor (p. 14). The report cited two cases where suspects complained they were subject to that practice: Emil Reck and Michael Livingston in 1936, and the case of Hector Verburgh in 1946 (p. 14). Reck, whose case finally made it to the United States Supreme Court in 1961, had his conviction overturned because he was held incommunicado for so long (the United States Supreme Court refused to examine his claims of physical torture). Verburgh, who was arrested during the investigation into the Susan Degnan murder, received a settlement from the city of Chicago after filing suit in the 1940s. My own research uncovered several other cases where suspects made similar claims.

The ACLU report described the arrest, detention, and mistreatment of Leslie Wakat, who was arrested by the Chicago police in 1946. Wakat claimed, ultimately successfully, that he falsely confessed to burglaries after being held for six days, during which time he was beaten repeatedly (pp. 15-17) In the end, Wakat’s claim was successful because he had obviously physical evidence to support his claims of mistreatment at the hands of the police. He was, as the ACLU report described it, “suffering from broken bones in his right hand, multiple bruises on his chest, arms, buttocks, shins and shoulders, and from injuries to his left leg and knee so serious as to require eight months’ treatment” (p. 16). In an all too familiar maneuver, police witnesses claimed that those injuries were a result of Wakat’s attempt to escape custody. According to one of the police witnesses “he grabbed my revolver and we both tangled and feel down the stairs about 25 or 30 feet” (p. 17). Other evidence undermined those claims.

The ACLU report argued that its data proved that Wakat’s case was an exception that demonstrated that greater protections for suspects and arrestees were needed. Many of those recommendations, stricter laws relating to detention, prosecution of officers who violate the civil rights of prisoners, and an independent bureau to investigate complaints against police officers (pp. 32-33), sound all too familiar.

Posted by Elizabeth Dale on October 20, 2017 at 10:37 AM | Permalink | Comments (0)

Thursday, October 19, 2017

Direct Republican Democracy?

A recent article in Slate explains that Camilo Casas is running for Boulder City Council on a unique platform: he will use an app to allow the city's voters to tell him how to vote "on any issue up for a vote before the council."   The app will enable voters to express their preferences on each council vote, and he will vote however the majority dictates.  The article discusses some of the practical implementation problems his idea faces; for example, low-income people or senior citizens may not have access to the app, and Russians seeking to infiltrate Boulder politics might hack it.  In this post, however, I want to analyze the conceptual underpinnings of his idea. 

Most basically, Casas' proposal challenges the admittedly oversimplified dichotomy between (direct) democracies and republics.  In a direct democracy, citizens gather together to debate and ultimately vote on public issues.  New England town meetings are perhaps the quintessential example of direct democracy in the modern world.  Public initiatives and referenda also allow citizens to participate directly in determining government policy, albeit without as much personal interaction.  In a republic, in contrast, citizens elect representatives to craft laws and resolve other matters of public importance.  Though the public is expected to generally monitor representatives' actions, representatives -- at least in theory -- are elected for their judgment and wisdom (and ideology), precisely because they will be making so many decisions on the public's behalf.  A republican government is based upon a division of labor: citizens delegate to government officials the hard work of learning policy issues, reviewing the details of legislation, and managing the government's affairs, so that citizens can spend most of their time focusing primarily on their private lives.  Citizens may even delegate to private groups (such as the NRDC or NRA) or political parties primary responsibility for monitoring government officials' efficacy, relying on endorsements or party nominations as a basis for casting their votes on Election Day.   

Direct democracies ostensibly require much more time, knowledge, and effort on the part of citizens than republican forms of government.  Citizens in a direct democracy have the opportunity to vote on myriad issues; in a republic, they are limited to choosing from among a limited number of candidates in a set number of elections.  On the other hand, direct democracy limits agency costs because the principals -- citizens -- directly make decisions for themselves.  In a republic, the principals delegate power to agents -- elected representatives -- who face strong incentives to act in self-interested ways against the principals' best interests.  In other words, elected representatives are often tempted to favor special interests or their large contributors over the general public. 

Casas' proposal arguably merges direct democracy and republican government (call it "Direct Republican Democracy"?) because he faces election as a city council member, yet he promises to do exactly what the public tells him via the app on each council vote.  Viewed from a slightly different perspective, of course, Casas is instead reducing himself to a stand-in, simply providing a convenient means for citizens to engage in direct democracy .  (Of course, the effects of this transition are limited since Casas is only one member on the city council, but if he is successful, one could imagine numerous candidates adopting such policies).  His proposal is intriguing because it is aimed at entirely eliminating agency costs by giving the electorate exactly what it wants on each issue that arises before the council, without allowing him to pursue his self-interest instead.  It is also consistent with the Supreme Court's embrace of direct democracy in Arizona State Legislature v. Arizona Independent Redistricting Commission

Casas' proposal also implicates another dichotomy: between the "delegate" theory of representation and the "trustee" theory.  A representative who views herself as a "delegate" believes her primary responsibility is to faithfully represent, communicate, and advance her constituents' views (or at least the views of a majority of her constituents) before the legislative body to which she belongs.  A representative who sees herself as a "trustee," in contrast, will listen carefully to her constituents' views, but ultimately apply her own best judgment in voting on issues.  Edmund Burke is well-known for forcefully defending the trustee view of representation to the Electors of Bristol in 1774.  Of course, the trustee theory may have inherent limits, since a representative who consistently strays too far from her electorate's wishes is likely to be voted out of office, whether in a primary or general election.  Casas is campaigning on a promise to be the ultimate delegate, one who completely sets aside his own beliefs and blindly follows his constituents' wishes. 

I have three initial reactions to his proposal.  First, it requires citizens to engage in politics full-time to achieve their desired policy outcomes.  Under our current model, even a publicly-minded citizen is free to focus on politics around election time, learn about the candidates, vote for the one whose views she most supports, and then spend most of the rest of the year primarily on her own pursuits.  Under Casas' model, citizens are forced to be constantly engaged in politics because, unless they follow local council proceedings and submit votes on his app, opponents may outvote their policy preferences.  Despite persistent calls for greater public involvement in politics, I think many citizens would resent and oppose such a persistent, significant drain on their time.  They would likely prefer that periodic elections for representatives carry some foreseeable policy consequences for the following year or two.  In other words, a vote for Casas is literally a vote for nothing except the need to fight to have your views voted into law for the duration of his term.  A vote for a competitor who supports your policy views, in contrast, gives you the best of both worlds -- a chance to have your views be adopted into law without having to devote the next few years of your life to continuous monitoring of the city council and casting votes via an app. Of course, under our current system, voters sometimes must pressure elected representatives to vote a certain way through protests or phone call campaigns, but that tends to be the exception, not the rule.  Moreover, voters often can rely on interest groups or local community groups to monitor and lobby elected representatives on their behalf.  In Casas' system, in contrast, outcomes unavoidably depend on voters' persistent personal participation. 

Second, in theory, Casas' proposal should lead to lower-quality governmental decisions, although crowdsourcing advocates would likely disagree.  Currently, substantive decisions on how to vote on issues are made by an elected representative who has chosen to specialize in politics and -- at least in theory -- take the time to learn about the details of various policy alternatives.  Under Casas' approach, his vote on every question will be determined by the general public, which may be far less informed on the pertinent issues and the likely consequences of different approaches.  Indeed, to the extent that participants in his app-based polls change from week to week or even minute to minute, Casas may find himself taking internally inconsistent positions and voting incoherently.  In other words, because the "real" decisionmakers in Casas' system are subject to change, their collective policy preferences are subject to change much more than any elected official's preferences.  While this may not be an insurmountable problem when elections occur years apart, it could lead to terrible consequences when numerous related decisions are being made minutes apart over the course of a meeting or weeks apart over the course of a few meetings. 

Third, it's not clear that Casas' system would accurately measure public sentiment, to the extent such a concept exists.  Rather, the final tally on any particular issue on his app is more likely to reflect public whipping operations, propaganda campaigns, and mobilization efforts than an "objective" nose count of the population.  Groups that feel intensely about an issue, would benefit greatly from a particular policy, or face substantial costs as a result of it would have substantial incentive to use social media and other means to generate as much support on the app for their position as possible.  When the costs or benefits of a policy are diffuse, however, there will not be as much incentive for interested parties to mobilize.  Consequently, Casas' system could lead to even more rent seeking and socially inefficient policies.  While public choice theory teaches that policy is already distorted by such incentive structures, Casas' proposal would intensify their consequences by removing an elected official's independent judgment as an ultimate "check" on interest groups' advocacy.   With Casas' app, the better organized, more motivated group wins automatically. 

In short, Casas' proposal provides much to think about.  It invites us to reexamine our rationales for self-government and the limits we believe our necessary for such a system to function smoothly.  It forces us to reassess whether our elected representatives add value to government, or instead are imperfect, potentially extraneous intermediaries who, with sufficient technological developments, can one day be eliminated from the system.  And it forces us to consider whether, even aside from issues involving fundamental rights where countermajoritarian structures are usually deemed most justified, the majority should truly get exactly what it wants.  Though I applaud Casas' creativity, I think I'd vote against him. 

Posted by Michael T. Morley on October 19, 2017 at 09:29 PM | Permalink | Comments (3)

Wednesday, October 18, 2017

Morrissey v. U.S. and the IRS's Hostility to Reproductive Choice

Paraphrasing the Eleventh Circuit in its September opinion in Morrissey v. U.S.: “This is a tax post. Fear not, keep reading.” The tendency of the opinion to make light of tax law aside (of course a tax case can be “interesting”), the case is an important one for reproductive rights. At issue was the deductibility of assisted reproductive technologies (ARTs) used by Joseph Morrissey that enabled him and his now-husband to become parents.

Section 213 of the Internal Revenue Code permits a deduction for certain medical expenses. To qualify as deductible, amounts paid for medical care must be “for the diagnosis, cure, mitigation, treatment, or prevention of disease” or “for the purpose of affecting any structure or function of the body.” Thus there are two ways a taxpayer may qualify for the medical expense deduction: paying for medical care (1) arising from a “disease” or (2) affecting a person’s bodily “structure or function.” Morrissey argued that the egg donation, in vitro fertilization, and surrogacy costs he paid qualified as medical care because they affected his “reproductive function.” Mr. Morrissey also argued that denial of the deduction was a violation of his equal protection rights. The court of appeals rejected both arguments, affirming the district court’s grant of summary judgment in favor of the IRS.

I’ll begin with what the court of appeals got right. First, the court did not read a “disease” requirement into the “structure or function” route to a medical expense deduction. Second, the court did not summarily reason that ARTs are unrelated to a “function of the body.” The court of appeals thus avoided two errors that plagued the earlier Magdalin v. Comm’r case (a Tax Court memorandum opinion summarily affirmed by the First Circuit, and which I’ve written about here).

Unfortunately, the court of appeals got just about everything else wrong. For one, the court took a stinting view of the definition of “function of the body.” It parsed dictionary definitions to conclude that Mr. Morrissey’s reproductive function was limited to the provision of sperm: “The male body’s necessary function within the reproductive process is simply stated: it must produce and provide healthy sperm . . . .”. Though the court recognized that “function” might not be limited to the provision of sperm, it concluded that the “limiting modifier” of §213(d)—that medical care must affect a structure or function “of the body”—required its narrower view.

            The court took a similarly narrow view of Mr. Morrissey’s fundamental right to reproduce. Morrissey argued that the denial of the deduction would infringe upon his fundamental right to reproduce under Skinner. The court of appeals dismissed that argument, concluding that no fundamental right was at stake. In the court’s view, there is no fundamental right to “to procreate via an IVF process that necessarily entails the participation of an unrelated third-party egg donor and a gestational surrogate.” But, for Morrissey, exercising his fundamental right to reproduce meant seeking out a surrogate and some form of ART.

The Eleventh Circuit thus lent its imprimatur to the IRS’s ongoing resistance to recognizing the reproductive rights of same-sex parents and it did so robustly, providing a much thorough discussion of its reasoning than did the Tax Court in Magdalin.   I, along with others, have explored the IRS’s approach to §213 and ARTs in earlier work, but the landscape has changed since those earlier decisions (see that work here, here, here, here, and here).

With Windsor and Obergefell came a more robust recognition of the history of discrimination on the basis of sexuality and its import for the law. In the shadow of these cases, the Eleventh Circuit had the opportunity to interpret §213 more broadly to encompass greater reproductive choice and limit discriminatory implementation of §213.

Tax law is not only interesting, but it matters. The problem with the Eleventh Circuit’s opinion is not that it’s untenable but that it’s wrong. It’s wrong in that it provides significant precedent that reifies the heteronormativity and gender bias at the intersection of §213 and reproduction. In an article now in development, I will explore the impacts of Morrissey and possible solutions. In the immediate wake of the opinion however, I am left troubled by the missed opportunity to address the persistent biases of the Code that the Morrissey case represents.

Posted by Tessa Davis on October 18, 2017 at 06:38 PM | Permalink | Comments (13)

My Student Guide to Judicial Clerkships

Around this time of the semester I meet with a lot of students who are interested in post-graduation judicial clerkships. UK Law does quite well at placing our students in federal clerkships, so I am happy that there is a buzz among our students about this career path. 

Because my individual meetings with students tend to be quite similar, in that they often have very similar questions, I prepared a guide for them to read before they come to meet with me. It answers some of the most frequent questions I receive. Because I bet that others could also benefit from this guide, I am reproducing it below.

A few caveats: first, some of the advice is specific to Kentucky. Second, these are just my views, so as the kids say, YMMV. Third, I frequently update this guide, so what is below is simply the current version.

With that said, feel free to share with those who may be interested.

Professor Douglas’s Handy-Dandy Guide to Federal Judicial Clerkships

            I am so glad you are considering applying for a federal judicial clerkship! Post-graduation clerkships are amazing jobs. They offer an inside look at judicial decision making, which will help your career no matter what you decide to do. You’ll work side-by-side with a judge who will serve as your guide and mentor. Your writing will improve dramatically. Some people say that a clerkship was the best job they ever had. All in all, if you have the opportunity for a judicial clerkship, then you should go for it!

            Many students ask to meet with me to discuss clerking. I am more than happy to meet, but I ask you read this guide first, as it will likely answer many of your questions. This guide should not serve as a substitute for a meeting; I definitely want to meet with you! But it will hopefully answer some of your initial questions so that we can focus on your specific situation when we meet.

What follows is simply my advice, based on my own clerkship experience and several years of advising students. Others may have different views, and I encourage you to talk to other professors and the Career Development Office for their perspective.

  1. Why should I clerk?

            See above. Clerking is an incredible experience. I use what I learned during my clerkship (for a 5th Circuit judge in Texas) almost every day. And I talk to my judge at least once a month. By clerking you become part of a “clerk family” (notice how I wrote “my judge”). Your co-clerks will become lifelong friends. Clerking can help no matter your ultimate career goals. It will open doors. It will improve your writing. It gives you an instant credibility boost in the eyes of employers. And it will stick with you for your entire career. Notice how every time someone is nominated to the Supreme Court, the media mentions where the person clerked. From a long-range perspective, clerking is an excellent way to begin your career. I have never talked to someone who regretted clerking before starting at a law firm, public interest organization, or other legal employer.

  1. What should I do if I already have an offer at a law firm or other organization?

            Speak with them about your desire to clerk. Most law firms highly value the experience and will hold your spot, at least for a year or two. If you explain your long-term dedication to the firm, they will not think poorly of you for at least exploring the opportunity to clerk. And some firms (though typically not the ones in Kentucky) will even pay a clerkship bonus.

            In addition, more opportunities are likely to arise because you have a clerkship on your resume. A clerkship, then, can improve your future employment prospects.

            That said, the salary of a judicial clerk is nowhere near as high as that of an associate at a law firm, and financial issues are important to consider. Just remember that there’s a long-term payoff, in terms of your overall career, to foregoing the law firm salary for a year if you are able to do so.

  1. Where should I clerk?

            My advice is to apply as broad geographically as you are willing to go for a year or two. If you don’t apply, then there’s a zero percent chance of landing the position (that’s just math!). When I went through the process I applied to about 200 judges all across the country. I really wanted a federal appellate clerkship, so I took a list of all federal appellate judges and deleted those in places where I could not see myself ever moving, even for a year or two. I then added some district court judges in certain geographic locations.

            I would start by thinking about where you have a geographic connection. Did you go to school in another state? Does your best friend live in Wyoming? Do you have a long-lost cousin in South Carolina? Any of these geographic connections can give you a leg up when you are applying. Of course, if you want to stay in Kentucky, then by all means focus on the Kentucky judges. But don’t discount going out of state for a year or two, especially if you can create a geographic connection to the area.

            Another question you may have is what level of judge to target. Generally speaking, federal circuit court clerkships are harder to obtain than federal district court clerkships, which are slightly harder than magistrate and bankruptcy court clerkships. All offer great experiences. Circuit court clerkships tend to be a little more isolated, where you will spend most of your time in chambers, but you can sometimes travel to cool cities for oral argument. These clerkships allow you to dive deeply into tough legal issues. District court and magistrate clerkships tend to have more interaction with lawyers and more time in court, and you’ll learn all about managing a docket. Any of these clerkships will provide tons of interaction with your judge. Come chat with me if you want to discuss this more.

  1. When should I apply?

            Many (but not all) Kentucky federal judges want to see at least three semesters’ worth of grades, which means they will start taking applications after the first semester of your second year. But many out-of-state judges hire even earlier! The best time to begin thinking about clerkships is during the first semester of your second year. You may want to send out some applications in October or November if judges you are targeting are open, while you can send the bulk of the applications after your 2L first semester grades are in.

            Look on Oscar to see which judges are accepting applications now. It’s also ok to call the chambers of a particular judge to see when that judge will start reviewing applications. You’ll most likely speak with the judicial assistant, who is used to receiving these calls.

            It is fine to apply early and then update your application with new information, such as grades, a new writing sample, etc. It is best to have your materials into the chambers as soon as the judge plans to consider applications.

            By the way, state court clerkships are also really great positions. State judges tend to hire later in the process, however, so it is generally ok to apply to federal judges first, and if it does not work out, you can then use your same materials (after updating them) to apply to state court judges.

  1. What should go in my application?
  • A cover letter (letter of transmittal)
  • Resume (one page, unless there are extraordinary circumstances for why you should go onto a second page)
  • Grade sheet (unofficial transcript)
  • Writing sample (your best possible writing)
  • 3 letters of recommendation
  1. What do you mean by “letter of transmittal”?

            Your cover letter should generally do nothing beyond introducing yourself and saying that your application materials are attached. This is not the place to make a case for yourself, explain that you are a strong writer, etc. Almost everyone applying has those same attributes. Ask me sometime to tell you about the ridiculous “Campbell’s Soup” cover letter I once saw. You don’t want to have that letter!

            The one exception here is that your cover letter should explain any geographic connection (or other connection) you may have with that judge. Essentially, you can use 1-3 sentences to explain why specifically you are applying to that judge. If you don’t have a particular reason for targeting that judge, then you do not need to add anything else.

  1. What should I use as a writing sample?

            Your writing sample should be your absolute best writing. What it is is far less important that how good it is. Many judges prefer a student Note, so if that’s ready, you can use it. But you may want to send some applications before it is done. That’s fine. You can use your appellate brief from 1L year, something you wrote over the summer (if your employer gives you permission), etc. The key here is that the writing sample should be flawless – especially on the first few pages and the last page (often judges won’t read beyond that). In terms of length, 10-15 pages is about right, so if your writing sample is longer it is ok to provide an excerpt with a cover letter explaining what it is and saying that the full version is available upon request.

  1. Who should write my letters of recommendation?

            You need at least three letters of recommendation. At least two should be from law professors who had you in class. The third also can be from a law professor (and in most cases that is best), but it is ok to ask someone else if that person is going to write you a glowing letter.

            Generally, you want someone who will write at least two pages about how great of a student you are and how you will be an amazing law clerk. Think about who knows you well, both inside and outside of the classroom. A letter that discusses various aspects of your performance, while also diving into strong personal attributes, is much better than a letter that simply says “this person was in my class and did really well.”

            I ask students who want me to write them a letter to prepare a 1-2 page memo telling me about them: Why did you go to law school? Why do you want to clerk? What are your ultimate career goals? What are your interests? What are some meaningful interactions we have had?

            Professor Chris Walker at Ohio State tweeted some advice for students seeking letters of recommendation. I wholeheartedly agree with his thoughts, which I reproduce in full here:

(1) When reaching out, please include resume, transcript, and talking points.

(2) Talking points should tell me what you want me to cover substantively and bonus points if in a format I could cut and paste into letter.

(3) Talking points are even better if they situate my letter within the context of any other letters, personal statement, etc.

(4) Talking points should include as much detail of our substantive interactions as possible, as that detail really makes the letter.

(5) Don’t assume I'll remember the highlights of our interactions. Remind me. Even when I do remember, your framing is often much better.

(6) Make very clear the deadline, and don’t hesitate to remind me as the date approaches.

(7) Also, if possible, give me the email and phone number of the Judge/partner/etc., so that it makes it easier for me to put in a good word.

(8) Once app submitted, keep your whole team posted on any developments.

(9) If you get an interview or make it to next round, email me again and include email/phone of employer to make it easy to reach out.

(10) Send thank you note once application is submitted. It means a lot for us old fashioned folks, esp hard copy under door makes my day.

(11) Finally, add your references to your holiday card list and let them know of any big life events or achievements over the years. I still let my college and grad school mentors know of life events, and they keep helping me advance in my career. /end

  1. Should I use Oscar or send paper applications?

            Oscar makes it really easy to submit applications to many judges at once. But is also allows judges, on their end, to filter out applications so they see only applicants from certain schools, of a certain GPA, etc. My advice, then, is to send paper applications if the judge accepts both Oscar and paper applications. That way you know that someone in the chambers will actually look at your application.

            That said, paper applications take time and money. You have to compile all of your materials, stuff envelopes, and mail them out. You can assume that you’ll need to spend $2-3 per application, and that can add up! You’ll therefore need to use your judgment on which ones to submit via mail and when to use Oscar.

            As for your recommendations, your professors will receive an email notice for Oscar applications, and we can take care of it from there. You should send us a spreadsheet with judges and addresses for any paper applications. If the letters are ready in time, we can seal them in envelopes and give them to you to put into the packet to mail out. But don’t wait for recommendations if the rest of your application is ready to go; we can send them separately.

  1. What’s next?

            You first task should be to identify who you want to ask for letters of recommendation and contact those people. That’s the only part of the application that you cannot control yourself. It’s ok to give your professors a deadline for the recommendation letter, so long as it is reasonable (a few weeks is about right).

            Your second task should be to decide what you will use as a writing sample and to clean it up to make it as perfect as possible.

            Your third task is to start creating a judge list.

            By this point you’ll be well on your way to applying for clerkships!

            Please come see me if this guide did not answer your question, if you have additional questions, or if you just want to chat about the process.

            Then, please let me know once you’ve applied to judges. And once you receive interview requests, come see me and we can chat about the interview process.

            Good luck!

Posted by Josh Douglas on October 18, 2017 at 10:49 AM in Life of Law Schools, Teaching Law | Permalink | Comments (2)

Tuesday, October 17, 2017

NFLPA victim of drive-by jurisdictional ruling

The Fifth Circuit last week reversed a district court order enjoining the NFL from carrying out the six-game suspension of Dallas Cowboy running back Ezekiel Elliott because of a domestic-violence incident. I saw the story, but assumed that the court of appeals had reversed for the usual reasons that courts of appeals reverse in these sports cases--the district court had been insufficiently deferential to the arbitrator decision (see, e.g., Tom Brady and Deflategate). And because I do not write on those issues and because I do not like or watch football anymore (and my antipathy for the sport and the league grows), I did not write anything on it.

But a reaction paper from one of my Fed Courts students revealed that the Fifth Circuit issued the dreaded drive-by jurisdictional ruling. A 2-1 divided court held that the district court lacked jurisdiction because the Elliott and the NFLPA had not exhausted CBA grievance processes, which placed a claim for relief "beyond 'judicial review.'" The court stated that Arbaugh, Henderson, and other recent jurisdictionality decisions did not change SCOTUS or Fifth Circuit precedent treating exhaustion as jurisdictional in the labor context. Judge Graves dissented, arguing that jurisdiction was established when a plaintiff claims a violation of a contract between an employer and a labor organization and that the grievance procedures appeared in the CBA, not the LMRA.

Under Scott Dodson's theory (and I think Scott cracked the problem of defining jurisdiction in a principled way),exhaustion is jurisdictional, because it measures when a case can enter a court or move to a court from another body (such as an arbitration panel). But the Fifth Circuit is descriptively wrong under recent decisions and the direction of the doctrine. Very little is jurisdictional anymore, especially when it does not appear in a statute. The "beyond judicial review" language (drawn from a 1967 SCOTUS case) is the sort of loose, figurative language that SCOTUS had used and attached jurisdictional labels, without thinking through the logic or consequences of the label; this is the language Justice Ginsburg had in mind when she introduced, and argued for limiting the effect of, drive-by jurisdictional rulings. And statutory exhaustion (as under Title VII) is not jurisdictional; it seems inconceivable that a statutory requirement would not limit the court's jurisdiction, but a private contractual obligation, not required by any statute, could strip a court of its structural adjudicative authority.

The question is what happens next. Elliott's first game of the suspension is next Sunday. The NFLPA has asked the Fifth Circuit for en banc review and also sought its own TRO in the Southern District of New York (where the NFL offices are located). The jurisdictional basis for the ruling was wrong, but that does not mean that the court of appeals was wrong that Elliott failed to exhaust his contractual remedies and that the injunction should not have issued. Elliott and the NFLPA may have properly lost, just on 12(b)(6) rather than 12(b)(1) grounds.

Posted by Howard Wasserman on October 17, 2017 at 01:10 PM in Civil Procedure, Howard Wasserman, Sports | Permalink | Comments (1)

Sunday, October 15, 2017

An overbroad defense of universal injunctions

Judge Leinenweber of the Northern District of Illinois denied a stay pending appeal of a universal (he called it nationwide) preliminary injunction barring enforcement of certain funding conditions against sanctuary cities. This is the first extended defense of universal injunctions (more than in the original order granting the injunction).  (H/T: Josh Blackman)

The gist of Judge Leinenweber's defense is that the attorney general's authority does not vary by jurisdiction. And similar universal jurisdictions have been upheld, in which relief inured to non-parties as well as parties. The court also finds support from the per curiam in Trump v. IRAP, where the Court allowed the injunction to stand as to those "similarly situated" to the plaintiffs, which matches the injunction here applying to cities and states similarly situated to Chicago. Most tellingly, the court rejected the argument that similarly situated plaintiffs can file their own lawsuits and use the first decision as precedent because "judicial economy counsels against requiring all these jurisdictions (and potentially others) to file their own lawsuits to decide the same legal question." The court recognized reasons to be "cautious" before entering such injunctions and that they should not be the "default," citing the recent work of Bray, October guest Michael Morley, and UCLA's Michigan's Maureen Carroll. He pointed to concerns for forum shopping, conflicting injunctions, and interference with law development within a circuit, then explained (in a sentence or two) why those "not insignificant concerns" do not overcome the benefits of a universal injunction in this case.

The problem remains that the argument prove too much. As Sam Bray argues, it logically requires (or at least permits and encourages) a district court to issue a universal injunction in every constitutional challenge to federal law. Because the proposed funding conditions challenged here do not differ from any federal law.  The authority of federal officials to enforce every federal law does not vary by jurisdiction. Judicial economy always favors one lawsuit over many lawsuits. There would be a flood of similar lawsuits by everyone affected by every federal law.* Federal uniformity and the unfairness of disparate application of federal are present with respect to every federal law. Despite the court's rhetorical attempt to limit such injunctions to "extraordinary" cases, every case is extraordinary as he defines it; the reasoning applies to federal immigration laws, federal regulations of immigration attorneys, and federal law regulating any conduct.

[*] The solution is supposed to be FRCP 23(b)(2) class actions. But the growth of universal injunctions makes that rule superfluous.

Leinenweber closes with a paean to the rule of law and the role of the courts in ensuring the rule of law is enforced, which is undermined (in reality or in perception) if the attorney general can enforce "likely invalid" laws against other persons even while under an injunction as to some. Several responses. That is true of every federal law, making such injunctions the norm. The rule of law also includes limitations on the scope of a district court's lawmaking and remedial authority as compared with a court of appeals or SCOTUS; it therefore is as undermined by one district judge barring enforcement of federal law as to everyone in the world in all circumstances everywhere in the world. And without saying so, it also rests on a model of pure judicial supremacy--the Article III judge has spoken and the attorney general's authority to disagree, outside of that litigation, ceases to exist.

Posted by Howard Wasserman on October 15, 2017 at 03:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (12)

Police Misconduct in Chicago: The Forgotten Past

To return to the topic of the DOJ Report on Chicago policing, I wanted to write a bit in this post and some later ones about other investigations into policing in Chicago that the DOJ ignored in its report. These other investigations are less well-known than the Kerner and Walker commission reports, so it’s worthwhile giving them attention for a moment or two. They are historically interesting on their own. At the same time, as my summaries suggest, they are evidence of the longstanding patterns and practices of police misconduct are in Chicago.

The first investigation, conducted in the summer of 1972, resulted in a report titled “The Misuse of Police Authority in Chicago,” prepared after a four-day blue-ribbon panel on police misconduct organized by Ralph Metcalfe. It was prompted by the grassroots efforts of the Third Ward Committee on Crime Prevention, which was concerned with the rise of crime in Chicago’s majority black neighborhoods and increasing instances of police misconduct.

The Third Ward Committee might have been as concerned with crime as it was with policing, but the blue-ribbon panel was only interested in the latter. In June and July 1972, Metcalfe, then a congressman representing the part of Chicago’s south side that included the third ward, and his multi-racial panel took testimony from Black, Latino, and white witnesses about instances of police brutality on the city’s predominantly black and brown south and west sides. The complaints ran an all too familiar gamut: a dentist complained about a police encounter following a routine traffic stop (he was missing a light over his license plate) that resulted in injuries to his wrists that prevented him from working for several days (Report, p. 2). A mother recounted how her son was shot to death by a police officer at a local public high school; her account that included claims that suggested the officer planted a gun near her son to justify the shooting (Report, p. 4). A gym teacher described a beating at the hands of twelve to fifteen white police officers (Report, p. 10). Many of the witnesses testified that police officers called them names (from n***r to “Black m**** f****” to “dirty Puerto Rican”). Most of the witnesses also testified that their complaints about their mistreatment to the Internal Affairs Division (IAD), the section of the police department assigned to handle police misconduct claims, were ignored.

The panel treated the problem of misconduct as a failure of policing, specifically the related failures to hire minority officers, train those officers who were hired, or investigate or discipline officers who were accused of abuse. Although high-ranking police officials ignored Metcalfe’s invitation to appear before the panel, the panel did hear from several experts on police hiring and training, and reviewed materials gathered by the Chicago Bar Association and the Law Enforcement Study Group. In addition, the panel considered the documentation gathered by the Afro-American Patrolmen’s League and lawyers affiliated with the ACLU of Illinois for Calvin v. Conlisk (72 C 3230), a civil rights case that charged that Chicago failed to properly train and discipline police officers.

The recommendations of the report echoed those discussed in Locking Up Our Own (esp. ch. 3);  they also sound uncomfortably similar to some of the police reform efforts discussed in Chicago today. The report called for increased public oversight and police accountability to the public (Report, pp. 60-61).  Among other things, it recommended that the department’s hiring and promotion practices (which it characterized as discriminatory) be reformed (Report, p. 62), and it recommended the creation of an independent (of the police department) investigative agency that would be charged with hearing claims of police misconduct and abuse (Report, pp. 65-59). And it called for an immediate end to an immediate end to aggressive patrol policies and a halt to the practice of stopping “Brown persons …by policemen for the sole purpose of investigating residency status” (Report, p. 74).


Posted by Elizabeth Dale on October 15, 2017 at 01:46 PM | Permalink | Comments (0)

Saturday, October 14, 2017

Argument on ATS in Jesner v. Arab Bank

SCOTUS heard argument on Wednesday in Jesner v. Arab Bank, considering whether a corporation can be sued under the  common law cause of action under the Alien Tort Statute. I listened to the audio and have a few thoughts on the procedure, without getting into the substantive question of corporate liability.

The Court a good job (certainly better than four years ago in Kiobel) talking about the issues without conflating jurisdiction and merits. Everyone spoke about causes of action and the scope of the norms that are part of federal common law and can be enforced through that cause of action, without speaking about jurisdiction in a sloppy way.

Justice Gorsuch asked petitioner/plaintiff counsel what the continued point of the ATS is, given that § 1331 grants jurisdiction over claims grounded in federal common law incorporating international law. Counsel explained that the ATS is like the maritime-jurisdiction grant, a more specific grant in the Judiciary Act of 1789 through which Congress could make absolutely clear that such cases could be brought in federal court. What neither mentioned (and what you would expect Gorsuch to remember, given his Originalist obsession) is that the 1789 Act did not include general "arising under" federal-question jurisdiction, necessitating these subject-specific grants. To the extent § 1350 is vestigial or superfluous with modern § 1331, it is not alone.

Posted by Howard Wasserman on October 14, 2017 at 10:31 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Friday, October 13, 2017

Zarda and the Trump Administration's Surprising (and Largely Unrecognized) Approach to Anti-Discrimination Principles

The Trump Administration's Justice Department ("DOJ") attracted substantial public criticism for its decision to file an amicus brief before the en banc U.S. Court of Appeals for the Second Circuit in Zarda v. Altitude Express.  The main issue in the case whether Title VII of the Civil Rights Act's prohibition against sex-based discrimination prevents employers from discriminating based on sexual orientation.  DOJ argued that Title VII should not be interpreted to prohibit employment discrimination against homosexuals.  It contends, in part, that "sex discrimination" necessarily involves the belief that one sex is inferior to the other.  Because discrimination against homosexuals does not involve or arise from a belief that either males or females are superior to the other sex, it does not constitute "sex discrimination."  Many commentators have assailed DOJ's decision to get involved in the case at such a late stage to argue against gay rights, particularly since the EEOC is already a party litigant and urging the exact opposite interpretation of Title VII.  Putting aside the merits of DOJ's position for a moment, I wanted to point out an overlooked -- and potentially significant -- implication of DOJ's argument that might have escaped the notice of the Trump Administration's political appointees (who were the only people to sign the brief).

One of the most basic distinctions in Equal Protection caselaw (which applies equally to employment law) is between the "anti-classification" theory and the "anti-subordination" theory of the Fourteenth Amendment.  Modern Republicans generally prefer the anti-classification, or color-blind, theory of Equal Protection.  Under this approach, the Constitution and anti-discrimination laws forbid the Government or employers from drawing classifications on suspect grounds such as race, sex, or religion.  This anti-classification theory renders affirmative action programs, single-race "cultural" housing in public colleges, and single-sex public schools highly problematic because they all condition the availability of particular benefits on a person's race or other suspect classification (even if those programs are adopted to benefit traditionally marginalized communities that continue to suffer from widespread societal discrimination or implicit bias). 

Progressives and liberals generally advocate the anti-subordination theory of Equal Protection.  Under this approach, the purpose and role of the Equal Protection Clause is to prevent racial and other social hierarchies, particularly white supremacy.  Consequently, a racial, gender-based, or other distinction is suspect, and likely illegal/unconstitutional, only if it was enacted to perpetuate an unjust social hierarchy or caste system.  For example, under an anti-subordination view, the fact that affirmative action programs are not enacted out of animus to perpetuate the social positioning of one race "above" another means they are generally constitutionally valid.  (The anti-subordination theory, incidentally, is consistent with the notion embraced by some progressives that it is impossible for white people to be victims of racial discrimination, since they occupy a privileged racial caste in society.  Discrimination, in this sense, is seen as a reflection and incident of social power dynamics, rather than merely taking a person's race or gender into account.).  A recurring debate over Brown v. Board of Education is whether it is best read as an anti-classification or anti-subordination opinion; at different points, the opinion seems to integrate strands of both modes of analysis. 

DOJ's argument in Zarda is a classic example of anti-subordination theory -- whether or not the Government realized it or intended it that way.  DOJ contends, in part, that discriminating against gays is not sex discrimination because it does not target one particular sex or disadvantage one sex for the benefit of the other.  In other words, because such discrimination does not relegate women to a lesser position in society than men, or reinforce a lower social status for them, it is permissible.  That argument seems to advance a classic anti-subordination approach to sex discrimination.  One of the most remarkable, and seemingly overlooked, things about this argument is that the Trump DOJ would be unlikely to advocate such an anti-subordination interpretation of the Equal Protection Clause or employment laws in any other context; as mentioned earlier, most Republicans generally embrace Chief Justice Roberts' color-blind anti-classification approach.  If the DOJ were to win under this theory, it could have substantial ramifications across Equal Protection and anti-discrimination caselaw in a wide range of other situations having nothing to do with gay rights.  Although the brief was signed only by political appointees, I suspect it might not have been vetted carefully by the department's political leadership.  As a result, we have the ultimate irony:  the Trump Administration is mounting an uncharacteristically ultra-progressive argument to try to ensure that federal law continues to allow discrimination against gays and lesbians. 



Posted by Michael T. Morley on October 13, 2017 at 06:01 PM | Permalink | Comments (9)

Thursday, October 12, 2017

Unconstitutional Intent and the Executive

A central focus of the ongoing Travel Ban cases is whether the restrictions they impose are invalid because they were motivated by invidiously discriminatory intent on the part of the President.  Broadly speaking, a government action which is otherwise constitutionally permissible violates Equal Protection principles (whether under the Fourteenth Amendment or the Fifth Amendment's Due Process Clause as construed in Bolling v. Sharpe) if the official who adopts, approves, or takes that action did so based on racial considerations -- which for brevity should be understood as including ethnicity and national origin as well -- or religious considerations.  This Equal Protection principle applies even more forcefully when the government official acts based on stereotypical views about, or animus toward, people of a particular race or religion.  The foundations of this principle trace back to the Supreme Court's post-Civil War Era ruling in Yick Wo v. Hopkins.  (I would like to refer to Yick Wo as a Reconstruction Era case, but it was decided a decade after Reconstruction ended).  The Free Exercise and Establishment Clauses reinforce, complement, and establish Equal Protection-type safeguards prohibiting intentional religion-based discrimination.  This posting considers some of the implications of focusing on the President's personal, subjective intent and motivation to identify such discrimination in determining the constitutionality of official action. 

Courts are accustomed to scrutinizing legislative history to root out unconstitutional intent.  For example, the Supreme Court invalidated a felon disenfranchisement provision in Hunter v. Underwood, 471 U.S. 222 (1985), on the grounds it was enacted with the express purpose of disenfranchising African-Americans, yet upheld the validity of felon disenfranchisement provisions adopted for other, non-racial purposes in Richardson v. Ramirez, 418 U.S. 24 (1974).  More recently, several redistricting schemes and changes in voting laws have been invalidated based on courts' determinations that state legislators acted with racially discriminatory motives.  Courts likewise have frequently been called upon to determine whether police officers or prosecutors acted with discriminatory intent in the context of racial profiling and selective prosecution suits.  Although the nature of the relevant evidence is typically different across these various types of cases, the underlying inquiry remains the same. 

There does not appear to be such a well-established convention or body of precedent concerning the search for unconstitutional intent on the part of the President himself.  President Donald Trump has opened himself up to an unusual degree of such scrutiny as a result of the sheer number of his direct statements to the public (often through Twitter), as well as the phrasing and content of some of his public speeches.  The application of these equal protection principles directly to the President raises numerous important issues that warrant careful consideration.  In asking these questions, I am inquiring about the bounds of judicial review of executive decisions in general, and am not attempting to either assume or contest unconstitutional intent in the Travel Ban case itself. 

First, most basically, does this principle limit the exercise of all presidential powers, or are there powers that are exempt from such Equal Protection scrutiny and relegated to pure, unreviewable executive discretion?  For example, may a litigant challenge the constitutionality of a presidential veto of a law, if the President's public statements and surrounding circumstances suggested the veto was racially or religiously motivated?  Does this mean that a vetoed statute could, on Equal Protection grounds, nevertheless enter into law?  Notice these are two separate issues: whether a litigant could prove a constitutional violation, and what the proper remedy for any such violation would be.  Similar questions arise concerning the pardon power -- if a defendant's pardon were denied, could she seek judicial review if there were a basis for claiming the denial were impermissibly influenced by racial or religious considerations? 

Second, do these Equal Protection principles apply with full force in the context of foreign affairs and national security?  Foreign nations, by definition, are inhabited largely by foreign nationals, and within many nations, there often exists a numerically predominant race or ethnicity.  If courts are willing to scrutinize the President's treatment of different nations (and citizens of different nations) in the context of the Travel Ban, the range of potential applications across American foreign policy is broad.  It's not clear that federal courts should be scrutinizing foreign policy or especially military decisions to decide whether they were influenced by constitutionally impermissible considerations relating to the race or religion of other nations' citizens.  Allowing foreign policy decisions to be challenged on the grounds that they were rooted in animus toward foreign nations or their citizens seems to give foreign nations a perpetual opportunity to challenge and undermine our foreign policy in unpredictable ways.   Moreover, in Reid v. Covert, the Supreme Court held that treaties may not violate constitutional rights; it would seem that a broad ruling in the Travel Ban cases could expand courts' power to review the President's decision to sign or refuse treaties or executive agreements with foreign nations.  The Travel Ban, after all, could have been adopted as part of a reciprocal agreement with allies (i.e., Canada) to expand its reach.

Third, under what circumstances is the President's discriminatory intent sufficient to require invalidation of a federal statute?  The Travel Ban presents a relatively uncomplicated case since the ban originated with the President and he was exclusively responsible for signing it into effect.  The situation is more complicated with legislation.  If Congress enacts a statute without discriminatory intent, but the President either signs the statute or allows it to enter into effect automatically due to unconstitutionally discriminatory motives, is the President's involvement enough to render the statute unconstitutional?  Does the analysis change if the statute originated with the White House rather than Congress (even though Congress still enacted it for wholly valid reasons)?  Serious constitutional questions seem to be implicated if an impermissible intent or motive on the part of the President could nullify otherwise constitutionally valid action that Congress had the power to undertake. 

Fourth, what is the "vertical" extent of the consequences of a President's or Attorney General's unconstitutional intent?  For example, the Justice Department recently decided to expand its war on drugs by directing more resources to drug arrests and prosecutions and directing U.S. Attorneys to take stronger stances on plea bargaining and sentencing, especially mandatory minimums.  If, hypothetically, a court were to decide that a President or Attorney General approved such an action as the result of unconstitutional animus, what would the consequences of such a decision be?  Would any particular defendants be entitled to relief, and how would they be identified?  Would every U.S. Attorney and FBI/DEA agent be subject to interrogation about whether they acted differently than they would have, absent such a policy change?  How much of what the bureaucracy and line officials of the Government do must be deemed tainted or unconstitutional by purportedly impermissible motives or animus by a President or cabinet official? 

Fifth, the procedural implications of basing judicial rulings on a President's subjective motivations appear tremendous.  In cases involving subjective intentions of police officers, local government officials, and even state legislators, courts frequently allow plaintiffs to take discovery to bolster their cases.  When it comes to the President, however, courts seldom if ever would allow Plaintiffs to depose him/her or even provide written interrogatories to be answered by him/her personally.  Of course, that might be seen as simply a limitation on plaintiffs' ability to prove their animus-based challenges.  Even without such discovery, a plaintiff may attempt to raise doubts about a President's subjective intentions or motivations based on public statements, speeches, campaign materials, Tweets, comments by other government officials, and other such sources.  The Government, then, is left in something of a quandary.  The single most important source of information about the President's actual intentions, of course, is the testimony of the President.  If courts claim the power to invalidate executive action based on the President's subjective motivations and intentions, they unavoidably put his/her mental state at the center of every such constitutional challenge.  Adjudicating such cases without direct evidence of that mental state from the President him/herself seems artificial and unsatisfactory, yet putting the President under pressure to provide such evidence is unworkable and raises separation powers concerns.  To the extent the Court allows these types of challenges to executive action to proceed, it should likely require a very high threshold showing by plaintiffs before putting the Government in the position of either having an executive action invalidated or requiring the President to personally provide evidence and likely become subject to discovery.  

Finally, I wonder whether the existence of Executive Privilege and Deliberative Process Privilege suggest that courts should not attempt to pierce the Oval Office to uncover the "true" motivations behind Presidential actions, but rather should defer to the official rationales.  Some FOIA cases concerning deliberative process privilege suggest that all that matters is the official rationale the government decides to officially adopt, but of course they usually do not involve constitutional issues of this nature. 

As a law student well over a decade ago, I would often be dissatisfied when the notes following a case in a casebook were comprised primarily of questions that the book failed to answer (or at least offer substantial guidance about).  As a law professor, I now understand -- and am indulging a bit -- in the temptations of such an approach.  I remain sincerely interested to hear what people on different sides of the issue think about the scope and possible implications of this aspect of the Travel Ban plaintiffs' arguments.   















Posted by Michael T. Morley on October 12, 2017 at 09:33 PM | Permalink | Comments (7)

Laptops are loud

I banned laptops from my classroom beginning in January 2009 (the first semester following the faculty vote on my tenure) and my only regret was that I did not do so sooner. This was the early days of the anti-laptop push-back. A few professors (including David Cole of Georgetown) had begun identifying and arguing the negative effects, although we did yet have the empirical studies as support. In any event, it ha been about 20 semesters of teaching with no computers in the room.

In the past week, I have visited classrooms of three colleagues (as part of P&T review) who allow laptops. And boy do they make a lot of noise when 20+ students are all typing away at once. I noticed the quiet of no laptops almost immediately in January 2009. I forgot the loudness until this week.

 I know the students in the classes I observed either have in this semester and/or had in past semesters) professors who banned laptops. I remain struck and confused by how little voluntary change there has been. I keep expecting the no-laptop benefits to become so clear that students would recognize and never go back. But it has not happpened. Despite being prohibited from using laptops in Class A, more than half the students in both classes have gone back to using them when allowed to do so in Class B.

Posted by Howard Wasserman on October 12, 2017 at 10:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (39)

JOTWELL: Mullenix on Symeonides on forum-selection clauses

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Simeon Symeonides, What Law Governs Forum Selection Clauses?, ___ La. L. Rev. (forthcoming).

Posted by Howard Wasserman on October 12, 2017 at 09:58 AM in Article Spotlight | Permalink | Comments (0)

Wednesday, October 11, 2017

How far we have come, in the wrong direction (Updated)

Gyree Durante, a freshman backup quarterback at Albright College, a D-III school in Pennsylvania, was kicked off the team for kneeling during the national anthem. The team's "leadership council" had decided to kneel during the coin toss (because racial injustice is intimately associated with coin tosses) but stand for the anthem. Durante thus acted against the team decision that was an "expression of team unity and out of the mutual respect team members have for one another and the value they place on their differences."

[Updated: Upon further consideration, I must marvel at how so much anti-intellectualism and raw majoritarianism was packed into such a seemingly anodyne statement. Because the majority won, in a rout. The athlete inclined to do so was denied the opportunity to express a criticism of an aspect of American society in a meaningful way, unless kneeling or coin tosses per se mean something about racially disparate police violence. The majority deigned to allow him a small expressive token, but that token is meaningless as a message (or the message the athlete wanted to send), again unless kneeling or coin tosses say something about racism and police violence. Yet this is praised as  "mutual respect for differences."  There was no mutual respect at work here--the majority got what it wanted by prohibiting a protest around the symbol of what some people see as the social problem to be protested; Duarte got nothing of expressive consequence.]

In this article, I discussed Toni Smith, who in 2003 was a member of the women's basketball team at Manhattanville College, a D-III school in New York. During the ramp-up to the Iraq invasion (which was being sold to the public as a necessary national-security response to 9/11), Smith would turn her back to the flag during the anthem. She was not sanctioned and was supported by her teammates, coaches, and school administrators. Some fans booed or jeered and one person walked onto the court mid-game to get in her face. A Google search revealed that Smith (now Smith-Thompson) is an organizer with the NYCLU and wrote an open letter to Colin Kaepernick in 2016.

But it is striking that such protests (which I describe in the article as symbolic counter-speech, in that a person counter-speaks to a symbol through the symbol itself) draw more public anger and less support from teammates and those around the protester today than 15 years ago, on the eve of what at the time was a popular military action. That speaks depressing volumes to our willingness to protect political dissent (or at least certain forms of political dissent). Smith-Thompson suggested the difference is social media. Another difference is that President George W. Bush did not make a hobby of calling out dissenters as unpatriotic sons-of-bitches.

Posted by Howard Wasserman on October 11, 2017 at 10:39 PM in First Amendment, Howard Wasserman | Permalink | Comments (7)

Against unity

Unity is the enemy of the freedom of speech.

If unity is a primary value or principle, then free speech cannot exist.  If the goal is for society (or some segment of it) to be "unified," then speech that "divides"--that undermines unity or does something other than unify--cannot be tolerated. But another word for speech that "divides" is speech that anyone disagrees with, Holmes's "thought that we hate." If the goal is unity, then ideas and speech that divide-- ideas that anyone disagrees with--can be and must be suppressed or pushed out of sight. A society that values unity uber alles has no need to protect the freedom of speech and will not protect the freedom of speech. A "united" community will not seek to suppress speech that unites everyone in agreement, only speech that divides. But division undermines unity, so that society is justified in suppressing that dividing speech.

This means that "unity" is not a neutral or benign principle. A governing entity (the NFL, the President's spokesperson, whoever)  that argues about the need for unity is really arguing that it can and should be able to suppress speech. Because those who utter divisive--i.e., unpopular or dissenting--ideas divide, undermining that goal of unity.

Posted by Howard Wasserman on October 11, 2017 at 09:31 AM in First Amendment, Howard Wasserman | Permalink | Comments (23)

Tuesday, October 10, 2017

Argument: Hamer v. NHSC

Here is my SCOTUSBlog recap of Tuesday's argument Hamer v. NHSC. Justice Ginsburg was as engaged in this argument as I think I ever have seen her. She even had some love for the arguments of Scott Dodson (Hastings), who filed an amicus brief putting forward his theory that a jurisdictional rule is any rule, regardless of source, that places a case in one court and out of another. She asked petitioner's counsel about Scott's argument; his response was that Scott's formulation is "incorrect" because inconsistent with prior cases and the Rules of Civil Procedure, although without explaining whether or why that formulation is normatively wrong. No one else followed on Ginsburg's question.

Posted by Howard Wasserman on October 10, 2017 at 10:09 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Monday, October 09, 2017

"Thanks, Iowa Supreme Court!"

Today in my Election Law class we covered state regulation of false or misleading campaign advertisements. (The doctrine is generally that even blatantly false ads enjoy First Amendment protection.) It is one of my favorite class periods of the semester because I show some pretty incredible political ads. The one below is perhaps the most outlandish. It aired during the Iowa judicial retention election in 2010, just after the Iowa Supreme Court had issued a ruling that effectively legalized same-sex marriage. The ad is worth two minutes of your time. (All three justices up for retention lost.)

(Although I find the ad amusing, I also think it's offensive and harmful.)

The debate during this class is always spirited, with some students arguing that the government should be allowed to regulate patently false campaign speech -- especially if it is about the election itself (such as "Republicans should vote on Tuesday; Democrats should vote on Wednesday") -- while other students take a more absolutist First Amendment approach. The debate has perhaps become even more interesting these days given the current tenor of our political discourse.

Posted by Josh Douglas on October 9, 2017 at 02:17 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (2)

On Not Thinking Much About History

The Department of Justice’s January 2017 report on the Chicago police department prompted me to reflect on how policy makers often ignore the historical context that shapes the issues that they wish to engage. In this post, I want to talk a bit about how that sort of inattention was manifested in that particular report. In a latter post, I hope to explore the larger question.

I should begin by admitting that there is much to admire about the report, especially now that events and decisions in D.C. and Chicago have made it less likely it will have any actual impact.  Prepared in a little more than a year, the report rests on an extensive investigation that spanned 300 days of interviews in Chicago. DOJ researchers visited each of the city’s 22 police districts, interviewed officers and commanders, and went on ride-alongs with police officers. The researchers talked with officials of Chicago’s various police unions, met representatives of 90 community organizations, and held several community forums. They also reviewed training documents, reports on policing in the city, and Chicago’s police misconduct complaint database. Finally, the researchers met with local lawyers and activists working on police misconduct in Chicago, and consulted current and former law enforcement officers from around the country (Report, p. 2).

And all that evidence is arrayed to substantiate the report’s damning conclusion that a significant number of Chicago’s police officers engaged in unconstitutional or illegal use of lethal and nonlethal force, as part of a pattern of discriminatory or harassing interactions with people of color and members of Chicago’s LGBTQ communities. The report also provides ample support for the charge that Chicago’s police have a code of silence and culture of lying designed to undermine investigations into misconduct.

It is also the case that the analysis offered in the report is complex. It traces the use of lethal and nonlethal force from actual police practices, through the failures to train and mentor that helped establish those practices, to the lack of discipline that institutionalized the practices. Its treatment is evenhanded, exploring the impact police misconduct has on its most frequent victims, Chicago’s communities of color and LGBTQ population, while also considering the effect poor training and lack of discipline has on members of the police department. Indeed, the report’s discussion of the Independent Police Review Authority (IPRA)’s failures to investigate and discipline officers, makes it clear that just how related these problems are. Bad investigations by IPRA have destroyed citizen trust in the department, especially in the communities hardest hit by the police abuse. At the same time, the erratic discipline IPRA has meted out discouraged officers who tried to follow the rules, encouraged the creation of a department culture that favors silence, lies, and concealment (p. 8, 51-52), and sabotaged efforts to create standards of acceptable practice.

But ultimately the report fails. And it does so because it does not consider the larger context in which these problems have arisen. Its discussion of discipline ignores the work of scholars like Barry Friedman, whose recent work Unwarranted: Policing Without Permission, documented how decades of court decisions have made it harder for aggrieved individuals to bring police misconduct claims. Friedman’s study pointed out a trap created by the late Justice Scalia's jurisprudence on the Fourth Amendment. On one hand, the justice often voted against application of the exclusionary rule, on the theory that wrongful searches could be redressed by claims for money damages. On the other, Justice Scalia often voted against civil rights claimants who sought damages for wrongful searches and seizures (Friedman, 137). Victims of police misconduct in Chicago have found themselves caught in a similar bind. The legal retrenchment Friedman described have made it harder for them to press successful claims in court, while the failures of the review boards documented in the DOJ Report have meant they have little hope of obtaining administrative redress.

That failure, in turn, is exacerbated by another situation well-documented in another study by the Chicago Reporter. The Reporter’s investigation revealed that Chicago’s law department typically has settled police misconduct charges.  The consequence, as the Chicago Reporter put it, is that those “cases conclude as they occurred—outside the public glare.” Because settlement awards were typically confidential, Chicago residents are kept unaware of the scope and cost of police abuse. The secrecy also make it difficult to for individuals to establish persistent wrongdoing by individual officers. Again, none of that appears in the DOJ report.

These are not the only places where examining the recent problems tbe report described from a broader, historical perspective would have improved the report’s analysis. The discussion of abusive arrests in the report (p. 51), would have benefitted from consideration of Rights in Conflict, the report on the violence at the 1968 Democratic National Convention. Engagement with the Kerner Report on racial unrest in 1967 would have given depth to the DOJ discussion of tensions between Chicago’s police department and the city’s communities of color (p. 15). The discussion of the culture of silence and lies (p. 8) would have been strengthened by considered of Nicole Gonzales Van Cleve’s recent study of criminal justice in Cook County. And ultimately, the entire report would have been stronger if the DOJ had actively engaged the historic problem of racial and economic segregation in Chicago, since that enabled the police to treat residents of Chicago’s various communities in the very different ways the report describes.

The report’s narrow focus seems to have been deliberate. Prompted by the outrage that followed the city’s efforts to prevent investigation into the police shooting of Laquan McDonald, the Department of Justice chose to focus on lethal and nonlethal force, and the ways in which the Chicago police department dealt with that problem (p. 1). The narrow scope meant the report largely ignored the department’s long, tragic history of police torture and failed to explore whether the two problems were related. Yet as the Wickersham Commission pointed out in the 1930s (p. 127), and the United Nations Convention against Torture and Other Cruel, Inhuman, or Degrading Punishment has recognized more recently (Art. 1.1), torture can involve either physical or mental abuse used to obtain confessions or violence used to coerce or intimidate a person during an arrest. So too, the report’s discussion of community mistrust of police (pp. 4, 15) should have considered whether Chicago’s campaign to deny police torture contributed to the problem.

Posted by Elizabeth Dale on October 9, 2017 at 11:10 AM | Permalink | Comments (0)

Sunday, October 08, 2017

Police as prosecutors

A lawsuit in Manhattan civil court is challenging a program in which NYPD lawyers prosecute summons cases, pursuant to a delegation by the Manhattan DA. The apparent impetus for the move was that the DA generally does not send attorneys to summons court, resulting in many cases being dismissed, in turn forming the basis for constitutional claims arguing that officers lacked probable cause to issue the summons. The police department requested the delegation so it could litigate summons cases or offer a resolution would require the defendants to admit liability, barring a subsequent lawsuit. Plaintiffs claim this is a conflict of interest for the police, which violates due process, undermines the adversary system, and raises a hint of selective prosecution. Plaintiffs allege that the police are pursuing only claims against those cited while engaged in expressive activity (the plaintiffs were cited for actions during a police-reform march, and the charges against one of them were dismissed when the judge found the arresting officers' testimony contradicted by video of the events).

For you crim/crim pro/PR scholars in the audience: What is the problem here, as a legal or ethical matter? Because I do not see it. A lot seems to be about the intent of the delegation and the police lawyers' strategy--to protect officers from subsequent civil suits. But that seems like one, valid influence on prosecutorial discretion, whether the DA or its delegee is exercising that discretion. As for the focus on people cited for expressive conduct, that sounds in selective prosecution, a defense that is hard to prove and as much of a problem (or non-problem) with or without the delegation. What am I missing? 

Posted by Howard Wasserman on October 8, 2017 at 11:49 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Gill and Congressional Authority (A Response to Prof. Morley)

It's October, so that means two great things: baseball playoffs (go Nationals!) and continued commentary on election law.

Michael Morley starts us off with some interesting commentary on Gill v. Whitford, the partisan gerrymandering case that the Supreme Court just heard last week. His conclusion is basically that if the Court recognizes a standard for partisan gerrymandering under the Fourteenth Amendment's Equal Protection Clause, then that could open the door to substantial congressional intrusion into state and local redistricting, particularly allowing Congress "to attempt to influence and reshape the partisan outcomes of state and local races."

My response? Not bloody likely!

First, it is somewhat unlikely that Congress would even gain this extra power. Virtually everyone agrees that the case will come down to Justice Kennedy's vote, and he has indicated before -- and indicated again during the oral argument -- that a claim for partisan gerrymandering should rest within the First Amendment, not the Fourteenth Amendment. Congress does not have an explicit enforcement power under the First Amendment. If the plaintiffs win this case and the Court recognizes a judicially manageable standard to root out the most egregious gerrymanders, it is more likely to do so under the First Amendment's protection of free speech and free association. That would not give Congress any extra powers. [UPDATE: In the comments Howard correctly notes my error in not thinking about incorporation, in that Congress would have the power to enforce the First Amendment against the states via the Due Process Clause of the Fourteenth Amendment. (And geez, I even teach incorporation in Con Law II! How could I overlook it here?!) Perhaps the argument for Congressional authority would be, textually-speaking, stronger if the Court recognizes the harm under the Equal Protection Clause. Either way, this just shows why I shouldn't try to blog and watch baseball at the same time! My apologies for the mistake.]

Second, even if the Court recognizes the injury under the Fourteenth Amendment, it is highly unlikely that Congress would try to "enforce" this new standard to influence state and local elections, as Prof. Morley suggests. Joey Fishkin, in a comment to Prof. Morley's post, noted that Congress gained the power to "enforce" the one-person, one-vote standard after Baker v. Carr (1962) and Reynolds v. Sims (1964), and yet Congress has never tried to legislate under that standard. There is nothing to suggest that Congress would suddenly decide to use its newfound power to influence state and local elections when it has not done so in other contexts.

Moreover, Congress already has the power to dictate rules against partisan gerrymandering for congressional elections. Justice Scalia explicitly pointed to this power in his decision in Vieth, the 2004 case that split the Court, as one reason the Court should stay out of partisan gerrymandering claims. Congress certainly has the constitutional power to try to influence the outcome of federal elections by enacting rules about partisan gerrymandering, yet it has never done so. If it has not attempted to influence its own elections (such as by passing rules intending to protect incumbents), there is little reason to think that a newfound power after Gill would cause Congress to decide to use this power for state and local elections.

Third, as Prof. Morley acknowledges (and Asher Steinberg echoes in his comment), the Supreme Court is highly likely to apply City of Boerne's "congruent and proportional" test to any Congressional "enforcement" under Section 5 of the Fourteenth Amendment, tempering a partisan-based congressional action. Thus, there would be a high burden for Congress to justify any regulation of state and local elections in the name of enforcing a new rule about partisan gerrymandering. In fact, the Supreme Court has generally been less deferential to Congress, as compared to states, in its election rules. States have a much easier time justifying their election rules than does Congress, notwithstanding Congress's plenary power to override state rules under Article I, Section 4. Surely any federal laws that have the intent or effect of influencing the outcome of state and federal elections would face this same close judicial scrutiny.

Finally, even if Congress both had this power and used it to pass new election laws, would that be so terrible? The likelihood of a new law that has a clear partisan valence is highly unlikely given that, at least under current Senate rules, it takes 60 votes to pass legislation. A party would thus need a supermajority to engage in such blatant overreach. Moreover, most congressional regulation of the election process has been a net positive: from the Voting Rights Act to the Help America Vote Act, Congress has legislated to fix clear problems in the election system, not to engage in partisan warfare. The most likely use of congressional power, then, would be to eliminate the worst abuses of state and local partisan gerrymandering.

In sum, while Prof. Morley is theoretically correct that a decision recognizing a new test for egregious partisan gerrymanders could increase Congress's power, there is little reason to think that, practically speaking, Congress would ever actually use this power in the way that Prof. Morley fears.

(Full disclosure for me: I signed onto Pam Karlan's amicus brief in favor of the plaintiffs in this case.)

Posted by Josh Douglas on October 8, 2017 at 10:26 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (10)

The Overlooked Issue in Gill v. Whitford, the Supreme Court's Political Gerrymandering Case

This week, the Supreme Court heard oral arguments in Gill v. Whitford, the political gerrymandering case from Wisconsin.  The Court will decide whether "judicially manageable standards" exist for determining when a legislative map constitutes an unconstitutional political gerrymander and, if so, whether the lower court crafted the correct constitutional test.  In my next post, I will discuss some of the substantive considerations raised by the plaintiffs' claims and the lower court's ruling.  Here, however, I will bring attention to one of the most important issues in the case that has been almost entirely overlooked throughout the course of the litigation -- a Court ruling recognizing a broad right against political gerrymandering will expand the scope of Congress' power under Section 5 of the Fourteenth Amendment to regulate and attempt to influence the outcomes of state and local elections along partisan lines.  (Full disclosure:  I authored an amicus brief in support of the State of Wisconsin in Gill, but am writing here solely in my personal capacity).

The plaintiffs in Gill contend that political gerrymandering violates Section 1 of the Fourteenth Amendment, including the right of political association as incorporated against the states through the Due Process Clause, and the right to vote as protected by the Equal Protection Clause.  Section 5 of the Fourteenth Amendment provides that Congress may "enforce" the rights created by Section 1 through "appropriate legislation."  The Supreme Court has consistently held that Section 5 permits Congress to not only enact laws that prohibit state and local officials from violating constitutional rights, but to enact other, prophylactic legislation that prohibits other state actions which are not themselves unconstitutional, but should nevertheless be regulated to help deter or prevent violations of the underlying rights. 

The scope of Congress' power under Section 5 is important because that is the only constitutional provision that allows Congress to directly regulate state and local elections without states' consent.  Other constitutional provisions, of course, enable Congress to exercise virtually plenary power over Congressional and Presidential elections.  Apart from the Spending Clause, however--which permits Congress to grant states money on the condition they abide by certain federal restrictions--Congress' only power over state and local races comes from Section 5.  That is why most federal voting laws, other than the Voting Rights Act, apply only to federal elections; although states typically voluntarily choose to apply such laws to state and local races, as well, they do so only as a matter of convenience or to avoid additional administrative burdens or expense.  (For more on this topic, see Michael T. Morley, Dismantling the Unitary Electoral System? Uncooperative Federalism in State and Local Elections, 111 N.W. U. L. Rev. Online 103 (2017)).

Historically, Congress' power to protect voting rights under Section 5 of the Fourteenth Amendment was quite broad.  Katzenbach v. Morgan analogized Section 5 to the Necessary & Proper Clause, stating that Congress may enact any laws that it deems "appropriate" for protecting voting rights.  In City of Boerne v. Flores, which involved First Amendment Free Exercise rights, the Court rejected this sweeping interpretation, holding that Congress may enact prophylactic legislation under Section 5 only if it is "congruent" and "proportional" to preventing violations of Fourteenth Amendment rights.  The Court has never explicitly addressed whether Katzenbach or Boerne sets forth the modern scope of Congress' power to enforce voting rights.  Either way, however, it is undisputed that Congress may claim at least some authority to prohibit not only actual violations of the right to vote, but additional, constitutionally valid state actions in order to protect voting rights.

If the Court recognizes a constitutional right against political gerrymandering under Section 1 of the Fourteenth Amendment, Congress will gain new power under Section 5 to "enforce" that right.  As explained above, Congress will not only be empowered to pass laws prohibiting political gerrymandering, but also a range of other procedures, practices, and legislative maps that do not themselves violate the Constitution, yet are prophylactically prohibited to reinforce protection against political gerrymanders.  The broader the right against political gerrymandering, the broader the scope of Congress' power will be.  For example, if the Supreme Court holds that partisan maps which are intentionally drawn to confer extreme disproportionate benefits on one political party are unconstitutional, Congress could claim power under Section 5 to prophylactically prohibit any legislative maps that do not lead to proportionate representation, regardless of intent.

Increasing the scope of Congress' power to directly regulate the conduct and oversee the partisan outcomes of state and local races would tremendously alter the balance of power between the federal government and the states in our federal system.  Moreover, because a right against political gerrymandering is closely related to the political parties of the candidates who win elections, such a right would empower Congress to attempt to influence and reshape the partisan outcomes of state and local races.  The impulse to recognize a right against political gerrymandering stems from distrust of partisan political bodies such as legislatures; the irony of Gill is that recognizing a broad right against political gerrymandering would greatly expand the power of Congress to attempt to regulate the partisan outcomes of state and local races. 

One potential way of limiting the scope of Congress' Section 5 power would be for the Court to conclude that an actual gerrymander is an essential requirement of any political gerrymandering claim.  In other words, a legislative map cannot be deemed a political gerrymander unless, as a threshold matter, it contains bizarrely shaped districts drawn in disregard of traditional redistricting principles such as compactness, consistency with physical or geographic features, respect for pre-existing political subdivisions, and consolidation of communities of interest.  A map with regularly shaped districts that is consistent with such traditional redistricting principles, in contrast, cannot be deemed a gerrymander at all, and therefore cannot be considered a political gerrymander that would be either prohibited by Section 1 of the Fourteenth Amendment or subject to congressional regulation under Section 5.  (Such an approach would also help to distinguish political gerrymandering claims from racial gerrymandering claims, which are fundamentally different since race -- unlike political party -- is a suspect classification under the Fourteenth Amendment).

At the very least, most commentary concerning Gill and political gerrymandering has focused solely on Section 1 of the Fourteenth Amendment and the power of the courts to combat political gerrymandering.  In doing so, it overlooks the tremendous consequences that the Court's ruling is likely to have on Section 5 and the scope of Congressional power to regulate such gerrymanders.   








Posted by Michael T. Morley on October 8, 2017 at 12:51 PM | Permalink | Comments (10)

Saturday, October 07, 2017

University of Wisconsin bans counter-speech

An intentionally provocative headline, but not too far off. The Board of Regents adopted a policy that "students found to have twice engaged in violence or other disorderly conduct that disrupts others' free speech would be suspended. Students found to have disrupted others' free expression three times would be expelled." (H/T: Steven Lubet). The  linked article contains quotations capturing both sides of this: The regent who says the policy promotes listening and that "drowning out another speaker" does not qualify as freedom of speech, compared with the student who argues that the First Amendment is supposed to be messy and contentious.

The policy is glaringly vague (what is "disorderly conduct," what is "disruption"), etc.).  I expect the university to try to clear that up in its implementing regulations. Meanwhile, I wonder if a constitutional challenge now would be deemed unripe, since the policy is not yet at the point of implementation. In any event, I do not see how the university could write regulations that are clear enough to pass constitutional muster. If the counter-demonstrating, where the counter-demonstrators outnumber and outshout the original speakers, does that necessarily become disruption? Even if listening is a worthy goal to promote, can the state give people a choice between listening (which sounds compelled) or staying away, with talking back no longer an option?

Posted by Howard Wasserman on October 7, 2017 at 02:59 PM in First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (17)

Barnette and flag-related speech

Video in this post shows a female fan at last night's Lakers game (played in Ontario, CA) throwing a drink and swearing at two fans who knelt during the Star Spangled Banner. As John Q. Barrett pointed out last week, next year is the 75th anniversary of West Virginia Bd. of Educ. v. Barnette, a high point of First Amendment jurisprudence.

But Barnette's legacy has split in unfortunate ways. Barnette stands for the prohibition on compelled expression, an idea that is popular and thriving, expanding to all manner of expression and expressive conduct, such as baking cakes. But Barnette also stands for a prohibition on compelled participation in flag-related ceremonies, which carries with it the right to express one's own message through that non-participation. The actions described above and the general public reaction to and controversy over the anthem at sporting events shows broad public rejection of that piece of Barnette. The public seems less accepting and tolerant of flag counter-speech, derived from Barnette, now than it was 13 years ago, when I wrote this in the early days of Iraq War. And recall that several Justices changed their minds on this issue from Gobitis to Barnette in part because of the violence directed against Jehovah's Witnesses following the first decision; the shift to protecting the right to opt-out was designed to protect dissenters.

We are organizing a symposium at FIU on Barnette's 75th anniversary for next fall. The seeming demise of this part of Barnette could be an important point of discussion.

Posted by Howard Wasserman on October 7, 2017 at 12:00 PM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (1)

Friday, October 06, 2017

A brief hello

Hi everyone, it's nice to be back at PrawfsBlawg. I even have a first post, somewhere. So as soon as I figure out which folder I put it in, I will put it up and really get started.

Until then, I thought we could catch up briefly. Since I was last here, I've finished a very enjoyable stint as editor of Law and History Review. The last issue I edited (35.4) will be coming out later this semester, and Gautham Rao of American University will be starting his term as editor with issue 36.1 early in 2018.

I also published a book on the long history (1871-1971) of police torture claims in Chicago. It looks at claims of torture (and legal/popular responses to those claims) in the years before Jon Burge joined the CPD.

And now, I'm on sabbatical and trying to finish a book on criminal justice and the 1919 Chicago Race Riot. It's a fascinating story, though doing justice to it is more complicated than I initially anticipated. Books are like that.

My hope, assuming I find that first post!, is to spend some of my time here this month writing about using historical context to unpack the issues of the present. I might also spend a bit of time writing about police misconduct law and history. We'll see. 

Elizabeth Dale



Posted by Elizabeth Dale on October 6, 2017 at 11:51 AM | Permalink | Comments (0)

Cy Vance, Campaign Contributions, and Decisions Not to Prosecute

In the past few days, two stories have broken about Manhattan District Attorney Cy Vance and questionable campaign contributions.  In two separate cases—a case involving two of President Trump’s children and a case involving film studio executive Harvey Weinstein—Vance decided not to pursue criminal charges against high profile individuals, and he also accepted campaign contributions from lawyers associated with those individuals.

I do not know what will end up happening to Vance (some are calling on the NYS Attorney General to investigate him). But I wanted to sketch a few thoughts about the larger issues implicated by these stories.

First, contributions in prosecutorial campaigns are worthy of significant scrutiny.  We’ve seen a little bit of scrutiny in recent months—notably some sustained scrutiny over the donations of bail bondsmen in the Brooklyn DA race. But that scrutiny has been sporadic, and incomplete.  I recently began a project looking at prosecutorial campaign contributions across the country, and my preliminary results show that contributions from the bail industry are more the exception than the rule.  Of the races I’ve looked at so far, lawyers represent the largest class of donors.  This isn’t surprising—I imagine most candidates for local office rely on their personal network for campaign contributions, and because candidates for district attorney are necessarily lawyers, their personal network will contain a lot of lawyers.  But relying on lawyers for campaign contributions can be problematic because those lawyers may end up representing clients whose matters will come before the candidate if he or she becomes the DA.  Can we trust DAs to assess those cases fairly if the defense attorney is a past or potential future donor?

That brings me to my second thought—whether we can rely on campaign finance reporting laws to control these conflicts of interest.  Hypothetically, if a prosecutorial candidate takes a campaign contribution from a potential defendant or his attorney, then the press could write about it and voters could vote that prosecutor out of office.  But I’m not optimistic.  Although information about who has donated to a prosecutor’s campaign is ordinarily public, information about which cases a prosecutor decides not to prosecute often is not.  Unless an alleged crime is the subject of public attention—as Harvey Weinstein’s arrest was, or as Ivanka and Trump’s business dealings have become—it may be nearly impossible to identify cases in which a DA has declined to prosecute an individual who is suspected of criminal wrongdoing.  Unlike campaign contributions to elected judges—where the identity of all parties and attorneys appearing before the judge is public knowledge—the press and the public generally do not know (and often cannot find out) what cases a prosecutor decides not to pursue.

To be clear, there are very good reasons why prosecutors don’t ordinarily explain their reasons for not charging an individual.  Among other things, case-by-case explanations could be quite harmful to the individual in question.  As James Comey’s comments about his recommendation not to prosecute Hillary Clinton illustrate, such an explanation can include very damning information and commentary about an individual and her actions.  And if criminal charges are not filed, then the individual may not be able to clear her name (especially if the individual is not as prominent or as powerful as Clinton).  But when the public does not know that an individual has been under investigation, then the donor status of that person’s lawyer (or the person herself) may loom even larger in the decision not to prosecute.  DAs don’t have to worry about the appearance of impropriety if no one knows enough to pay attention. 

Now, in light of the Trump and Weinstein stories, more reporters may decide to dig into Cy Vance’s decisions.  The list of his campaign donors is publicly available and if line prosecutors in Vance’s office are willing to leak to the press, we may see more stories that link campaign contributions and decisions not to prosecute.  But I’d be surprised if we ever get all of the stories.  And we may never get any stories about prosecutors in cities that don’t have as many investigative reporters as NYC.

Because of this, I think that it is worth talking about reform in this area.  Some have suggested that private campaign contributions ought to be forbidden in prosecutorial elections.  And the Supreme Court’s decisions about campaign contributions to judicial campaigns tell us that there are due process limits on these issues.  If you have any other ideas, feel free to share them in the comments or to email me directly.  My study of prosecutors and campaign contributions is just getting underway, and so I’ll be thinking about these questions for a long time to come.

Posted by Carissa Byrne Hessick on October 6, 2017 at 10:23 AM in Carissa Byrne Hessick, Criminal Law, Current Affairs, Law and Politics | Permalink | Comments (14)

ACLU, free speech, and discrimination

The New York Times writes about soul-searching at the ACLU in the wake of Charlottesville. Two items of note.

First, Executive Director Anthony Romero discusses the new policy of not representing protesters who plan to march while armed. Romero ties this to early ACLU policies opposing permits for Nazi groups "drilling with arms." He argues that the ACLU has come full circle with respect to Nazi groups. The analogue to Charlottesville is not Skokie, where counter-protesters outnumbered Nazis 70-to-1, the Nazis were unarmed, and the danger was angry spectators attacking them. Charlottesville is more like the 1930s, when fascism was ascendant in Europe and sufficiently popular in the United States to draw large crowds.

Second, the article describes an open letter by around 200 staffers, arguing that the ACLU's "broader mission — which includes advancing the racial justice guarantees in the Constitution and elsewhere, not just the First Amendment — continues to be undermined by our rigid stance" on hate speech. It is easy to criticize the 200 (as some have) for not understanding what the ACLU is about, given its history, and to tell them to find a different advocacy group. But the signatories are onto something. The modern ACLU has made certain forms of equality part of its core mission. And absolutist protection for free speech does conflict with certain visions of racial justice that would not protect speech advocating for inequality or against equality. It is not the first time this potential conflict has caused the organization problems--in the early '90s, the organization was only lukewarm in its opposition to hate-speech laws and it supported sentence enhancement for racially motivated crimes. And recall the ACLU's 2015 Workplan of major civil-liberties issues, which did not say much about the First Amendment. The signatories have exposed an internal tension of the organization's own making. The usual response to the tension is that speech must be protected for all, lest government turn its censoriousness on equality-promoting groups (consider that the Supreme Court case declaring sentence-enhancement valid involved a prosecution of African-Americans for assaulting white victims). But many racial-justice advocates reject that idea.

The focus on this tension reminds me of the potential tension between "civil liberties" (commonly understood as individual rights as against government, such as free speech) and "civil rights" (commonly understood as equality--both in the face of government discrimination and government efforts to stop private discrimination by legislation). I recall the Harvard Civil Rights-Civil Liberties Law review publishing a symposium on whether its name is an oxymoron. The ACLU may be facing the same problem, as some of its staffers and supporters recognize that they signed up the equality rather than the speech.

Posted by Howard Wasserman on October 6, 2017 at 09:31 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (2)

Thursday, October 05, 2017


A belated welcome to our October guests--Deborah Ahrens (Seattle), Elizabeth Dale (Florida), Tessa Davis (South Carolina), Josh Douglas (Kentucky), and Michael Morley (Barry). And thanks to our September guests, who may stick around for a few final posts.

Posted by Howard Wasserman on October 5, 2017 at 02:33 AM in Blogging | Permalink | Comments (0)

Tuesday, October 03, 2017

NIJ Sentinel Event Review Opportunities

For law professors interested in criminal justice systems change, the National Institute of Justice just funded and partnered with the University of Pennsylvania Law School’s Quattrone Center for the Fair Administration of Justice to support community-based Sentinel Even Review projects in up to 25 local jurisdictions.  The formal announcement is here, https://nij.gov/topics/justice-system/Pages/sentinel-events-technical-assistance-provider.aspx.

Sentinel Event Reviews involve a multi-stakeholder process to identify the systemic causes for “bad” criminal justice outcomes.  As described in the announcement:

“When bad things happen in criminal justice systems, they are rarely the result of a single actor, action, or decision, and are often indicative of a system       weakness. However, most jurisdictions review errors solely through a lens of blame, looking for individual practitioners to punish. This blame-oriented        approach ignores the multiple system causes that contributed to the bad outcome and remain in place to contribute to another, similar event in the future.

NIJ believes that local jurisdictions should have the opportunity to learn from mistakes and “near miss” events, and prevent the recurrence of errors and bad        outcomes. To that end, NIJ’s Sentinel Events Initiative (SEI) is exploring the value of sentinel event reviews in which all individuals whose actions or        inactions may have contributed to an event are empowered to develop solutions to prevent future bad outcomes. Through these all-stakeholder, non-          blaming, forward-looking reviews, law enforcement officers, prosecutors, judges, forensic scientists, communities, persons harmed, and others come together        to conduct a review of a bad outcome and develop recommendations for improving criminal justice.”  

For law professors or law schools engaged in criminal justice systems change, this new NIJ focus/funding might provide an interesting opportunity to examine local justice problems.

In addition, NIJ launched a bibliography of close to 1,000 journal articles, news stories, and other resources relevant to the Sentinel Events Initiative. For scholars, this could be a very valuable resource.  Most of the citations include abstracts and links to complete publications and can be found here. https://nij.gov/topics/justice-system/pages/sentinel-events-bibliography.aspx.  For more information contact James Doyle @ 1jamesdoyle[at]gmail.com or join the sentinel events listserv at criminal-justice-sentinel-events[at]googlegroups.com.

Posted by Andrew Guthrie Ferguson on October 3, 2017 at 09:31 PM | Permalink | Comments (0)

A reflection on "the life issues" in the current moment, and going forward

My friends at Notre Dame Magazine (which is, notwithstanding what I'm about to say, an excellent magazine) asked me to contribute a reflection on the state of "the life issues" in the current moment.  I realize, of course, that these "issues" are ones about which we deeply and reasonably disagree, and I'll confess to having mixed feelings about imposing it on all of you.  It sprawls and wanders, I'm afraid and I suppose it's downright confused, politically.  In any event, here's a bit:

. . . The proposal, the claim, and the truth that grounds the comprehensive and integrated pro-life position is that every person matters and no one matters more than anyone else. This was the message of Pope Francis’ Installation Mass homily, and it is at the heart of the Catholic Church’s social and moral teaching. A human being is a human person, and to be a human person is to have great, inestimable worth. This is true when we are very small and vulnerable, when we are old and sick, when our life seems all potential and when it seems at its very end, when we are strong, beautiful and creative, and when we are weak, ugly and venal. Our ultimate, transcendent worth does not depend on what we accomplish, on what we are capable of doing, on what we can produce or contribute, on how much we are wanted, or on how much we cost. No one is worth less and no one is worthless.

Politico’s Timothy Alberta has called economist and think-tanker Arthur Brooks “the most interesting man in Washington.” At a recent forum at Harvard’s Kennedy School, Brooks was reflecting on the unedifying state of public culture and conversation in America, and he proposed that the problem with our politics is not disagreement, division, polarization or even anger. In a free society, strong disagreements about at least some things that matter are, this side of Heaven, inevitable. For Brooks, what is striking is not simply the “Big Sort” into red and blue enclaves or our increasingly tribal divisions that infect everything down to debates about the regulation of large sugary sodas. Our real problem, he suggested, is “contempt,” which he defined as the “conviction of the worthlessness of another human being.” Who can deny that “contempt” is pervasive and ubiquitous? Indeed, in many contexts it seems to be the currency of our discourse. Anger can be resolved, but contempt, Brooks warned, leads to permanent estrangement.

Brooks is on to something. During the campaign — recall the Access Hollywood tape or his imitation of Serge Kovaleski — and since his election, President Trump has not hesitated to mock, insult and degrade — to express “contempt.” On “the other side,” one of the turning points in the election was Clinton’s expression of dismissive disdain for those in the “basket of deplorables” to which she consigned so many of those who resisted the appeal of her candidacy. No one could spend much time at the rallies or following the Twitter feeds of either of the two candidates and their surrogates, fans and followers and not be struck by the vicious, deep contempt with which the two camps regarded each other. It was contempt, not “heritage” or “history,” that inspired and informed the marchers’ chants in Charlottesville.

Now, Brooks was not speaking directly to abortion or to the “life issues.” Still, his assessment is helpful. The pro-life position is not merely a package of negative prohibitions but is a thoroughgoing response to the call and challenge to solidarity and mercy. To stand in solidarity — in community — with other persons is to embrace these other persons’ dignity, value, worth and destiny, and to truly — despite differences in ability, strength, beauty, talent, advantages and prospects — regard and treat them as equally bearing the image of God. What could be more contrary to solidarity than, as Brooks says, the estrangement that contempt produces? “Life” isn’t really “winning” — it cannot, really — if the political community and conversation are saturated with contempt.

Pope Francis has forcefully condemned abortion as a symptom of and contributor to what he calls our “throwaway culture.” It is an arresting and illuminating image, and it resonates with Brooks’ diagnosis and definition of contempt. What is it, after all, that we throw away? We throw away what we think is worthless, that which we can no longer bother fixing, saving, nurturing, protecting, repairing, treasuring or loving. It is, the pope has said, “precisely the weakest and most fragile human beings — the unborn, the poorest, the sick and elderly, the seriously handicapped, et al. — who are in danger of being thrown away.” But not only are there no “worthless” people, there are, as C.S. Lewis remarked in his sermon The Weight of Glory, “no ordinary people.” Those “we joke with, work with, marry, snub, and exploit” — those we mock on Twitter, those at whom we direct contempt, those we “throw away” — are “immortals” and “everlasting splendours.”

Pope Francis has said much the same thing: “Even the weakest and most vulnerable, the sick, the old, the unborn and the poor, are masterpieces of God’s creation, made in his own image, destined to live forever, and deserving of the utmost reverence and respect.” Lewis’ essay concludes with a striking assertion: “Next to the Blessed Sacrament itself,” he wrote, “your neighbor is the holiest object presented to your senses.” And remember the answer that Jesus gave to the question, “who is my neighbor?” When we, in our laws and in our lives, give and act on the right answer, life will be winning.

Posted by Rick Garnett on October 3, 2017 at 04:08 PM in Rick Garnett | Permalink | Comments (0)

Hamer Time

I wrote a SCOTUSBlog preview of Hamer v. Neighborhood Housing Services of Chicago, to be argued next Tuesday; the case considers the jurisdictionality of FRAP 4(a)(5)(C), which limits extensions of time to appeal to 30 days beyond the original appeals period.

Although I did not discuss this in the preview, it bears watching how Justice Gorsuch approaches jurisdictionality. He demonstrated some iconoclastic views on procedural issues in his few cases from the April sitting last Term, often running counter to the rest of the Court, to the Court's recent doctrinal trends, and to recent precedent. Might he be inclined to return to drive-by jurisdictional rulings, counter to the Court's trend of the past decade?

Posted by Howard Wasserman on October 3, 2017 at 10:36 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

New Book on "The Rise of Big Data Policing"

As previewed on Prawfsblawg in May, The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement is now published and available.

The book addresses how predictive analytics, big data, and new surveillance technologies are changing the “who,” “where,” “when,” and “how” police do their jobs.   From predictive policing to social media surveillance to persistent aerial surveillance (among many other fascinating and terrifying technologies), the book exposes the problems of racial bias, transparency, and constitutional distortion that will bedevil law professors for years to come.  Buy, read, share, review, recommend to your librarians… (and thanks).

In addition, keep your eyes open for PreCrime the documentary also previewed in Prawfsblawg in May which has its US premiere October 19th in Chicago.  

Ferguson Twitter graphic

Posted by Andrew Guthrie Ferguson on October 3, 2017 at 09:30 AM | Permalink | Comments (9)

Monday, October 02, 2017

Thurman Arnold and Edward Corwin on the Supreme Court

As the United States Supreme Court gets ready to open another Term, I thought readers would enjoy this quote from Voltaire and the Cowboy: The Letters of Thurman Arnold. No special political or other message is intended here: It's just a terrific quote. It comes from a letter in which Arnold, then a Yale Law professor who had taken a leave of absence from his teaching job to go work for the Solicitor General's office, is describing his first oral argument in the Supreme Court. He is sitting with Edward Corwin, the well-known constitutional law scholar:

Professor Corwin of Princeton who is retained to consult with me on the social security case brief was with me when court opened the other day. He says that they ought to change the invocation from "God save the Government of the United States and this Honorable Court", to "God save the Government of the United States or this Honorable Court." He insists that God can't possibly do both, and he should not be asked even to try. He should be given his choice and let it go at that.

As a side note, Corwin gets the invocation wrong: It is actually "God save the United States and this Honorable Court." But we should not let a good, arguably insightful joke or anecdote get hung up on a technicality.  

Posted by Paul Horwitz on October 2, 2017 at 10:02 AM in Paul Horwitz | Permalink | Comments (0)

Selection Bias: The Character of Policing on the Street

Criminal procedure scholars tend to think of policing in terms of the way the Constitution permits or restricts certain police practices; and more narrowly, in terms of what rights may be asserted by criminal suspects against the police. But most of what counts as policing is low visibility: out of sight of the courts that could enforce these constitutional regulations. Of much more importance to policing are the laws and policy decisions about who gets to be a police officer, and what training they receive. The selection and training issue has become especially pressing with he “rise of the warrior cop,” and the ways in which the discussion of policing selection and police training has been insulated from public and political scrutiny.

The core case on police selection is Washington v. Davis, which is often thought of as a Title VII and civil rights case. Davis was, however, a police selection case seeking to diversify the police force of Washington, D.C. And hidden behind Davis is a story of who gets to control the standards used to train the D.C. Metropolitan Police Department. By 1976, African American police officers were making strides in admittance to the department; by 1978, the Chief of Police was African American, as were the majority of the officers. Nonetheless, just two years earlier, Davis had argued that the police test was having a discriminatory impact; the Court sided with the police in requiring a showing of discriminatory intent.

Some important features of the case are hidden behind the doctrinal emphasis on the result: the introduction of the intent requirement. At the district, appellate, and Supreme Court levels, the African American plaintiff sued, as name defendant, the African American mayor, Walter Washington. During the early 1970s, the D.C. Police Chief, Jerry V. Wilson, engaged in an aggressive, affirmative action outreach program to attract minority officers to apply to the force. So successful was Wilson that Time Magazine placed him on their July 13, 1970 cover, and heralded his efforts to recruit more African Americans to the force: a ten-percent increase in police on the beat by 1970 after one year on the job; fifty percent of D.C. Academy recruits were African Americans.

But the big issue for the plaintiffs was that the test didn’t really match what was required of officers on the beat. The claimed that Test 21, designed to test verbal ability, vocabulary, reading and comprehension, was not tailored to test police activity—a claim supported by the fact that the test was developed by the Civil Service Commission, not the Police Department.

The central question raised by the plaintiff's challenge was: what is police activity? If police activity is the sort of crime-fighting associated with the use coercive control on the streets—what Egon Bittner called “the distribution of situationally justified force in society”—then it turns out that very little of what the police do is actually crime-fighting. The overwhelming majority of a beat officer's time is spent waiting, wandering, dealing with public welfare issues (such as helping people who are lost or who need medical aid) or public order issues (such as breaking up minor fights or quieting noisy neighbors). And most of these public welfare and public order issues are best dealt with by articulate officers able to engage with the public and their fellow officers. Or as William Ker Muir put matters in his famous book, Police: Streetcorner Politicians, the police must "develop[] an enjoyment of talk. Eloquence enriches his repertoire of potential responses to violence and permits him to touch the citizenry’s souls—their hopes, their fears, their needs to be something worthwhile, their consciences."

The infamous Test 21 appears to promote these abilities. In fact, written tests, because objective, were vital to the promotion prospects of junior African American police officers. As James Forman in his excellent new book, Locking Up Our Own: Crime and Punishment in Black America, points out, the rankings that ensured promotion had both an objective and a subjective "fitness for promotion" component, so long as the African American officers could score extremely well on the written component, they could overwhelm the biased grades they received on the subjective component. So reading and comprehension was vital to promotion inside the force, as verbal skills were essential to interacting with the public in ways that would de-escalate the risk of violence.

Ironically, given the deserved reputation of the case as marking the beginning of the end of the Court's expansion of protections on the basis of race, the sort of written test challenged by Davis could have helped both the public and the African American officers admitted to the force. In particular, it could have helped the public by focusing a reconceptualization of the core functions and justifications of the police to focus on public welfare and public order, rather than crime fighting. The emphasis on verbal skills could have led the police to embrace their role as eloquent “street corner politicians,” members of the community who act as neighbors, rather than warriors or guardians. It could have encouraged the police to recognize that the manner in which they are trained and socialized to respond to the community is an important political and moral aspect of policing: one that must become high visibility rather than remaining hidden in the shadows. Only once the police recognize the common humanity and political standing of the individuals they police, only once they see the communities they police as places in which they can share a life in common with its residents, can the police hope to react proportionately and responsibly to the challenges they face.

Posted by Eric Miller on October 2, 2017 at 02:55 AM | Permalink | Comments (5)

Sunday, October 01, 2017

More from Bray on universal injunctions

Two weeks ago, the Northern District of Illinois imposed a universal/nationwide injunction against the new funding conditions imposed against "sanctuary cities." The court justified the scope because there was "no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction." In a WaPo op-ed, Sam Bray argues that this represents the next step in making the universal/nationwide injunction the new, unjustified, default in constitutional litigation against federal law. An injunction should be nationwide unless the challenged law and legal issues are limited to the plaintiff or to the jurisdiction in which the action is brought--which never will be true of federal law. Sam calls on someone--Congress, the Advisory Committee, or SCOTUS--to stop the "remedial irresponsibility." This injunction is of a piece with another low-profile universal injunction issued in May in the Western District of Washington in a challenge to federal regulations of attorneys in immigration proceedings--the government's stated desire to continue enforcing the regulation was sufficient to justify the expanded scope, a basis that similarly applies to all federal law.

Unfortunately, I am not sure who is going to put the brake on this practice.

Expecting Congress to do anything is beyond wishful thinking.

SCOTUS has, implicitly and probably unthinkingly, approved the practice by affirming the universal injunction in U.S. v. Texas (the DAPA case) and by leaving the injunction in place as to those "similarly situated" to the plaintiff in IRAP (the travel ban case). Both decisions were bound-up with other procedural concerns. Texas was affirmed by an Segall-ian evenly divided Court . In IRAP the Court was trying to figure out how to remold the substantive injunction in the guise of granting cert. and staying the injunction pending appeal; it did not have the time or attention to consider injunctive scope in terms of plaintiffs protected. And with the case likely moot, we start all over again.

The Advisory Committee is an interesting actor that I had not considered. But it would take too long to get anything done, given the committee process. And the Committee may be as surprised as everyone else that this practice has become so pervasive--the current language of Rule 65 combined with the existence of Rule 23(b)(2) injunctive class actions should tell district courts that they cannot issue an injunction protecting everyone in a class without a class.

Posted by Howard Wasserman on October 1, 2017 at 10:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

An Absurdly Long Twitter Discussion of the Laurie Goodstein/NYT Story on Amy Barrett, and its Defensive Defenses

The New York Times on Thursday published a piece by Laurie Goodstein about religion and the Amy Barrett nomination, with the awfully vague headline (not written by Goodstein, although it is a fair description of the piece) "Some Worry About Judicial Nominee's Ties to a Religious Group." The story is unclear on whether these "some people" suggested the piece to Goodstein, and if so which "some people" did so. It quotes two law professors, and perhaps one of them suggested the story to her, but reporters go to law professors all the time for the necessary ventriloquism once they have gotten the idea for a story. It also links to a report by the Alliance for Justice, which one assumes does try to feed the occasional story to a reporter and is a more likely suspect. Or perhaps it was a bank shot: interest group suggests story to congressional staffer, who then suggests story to reporter. Or maybe it was just an inspired piece of independent reportorial digging. The gist of the story is twofold: 1) Barrett belongs to a lay Christian group called People of Praise, whose ideas and practices are, to use the standard contemporary language of plausibly deniable accusation, "troubling." 2) Barrett didn't disclose her membership in the group to the Judiciary Committee, "though many nominees" have disclosed similar memberships "in the past."

I hesitated before writing critically about this story at first, despite my interest in these issues, because I thought that point number 2, if true, would indeed be "troubling." The rest of the story was, with respect, weak at best. It certainly did not say anything more about how Barrett would perform as a judge. It quoted one professor suggesting that "These groups can become so absorbing that it’s difficult for a person to retain individual judgment," but that is a rather general statement and not grounds enough for serious concern. (And I wonder how it applies to other groups in general.) Moreover, it treated as significant (and, I think, as a foundation for that law professor quote) the apparent fact that "Members of the group swear a lifelong oath of loyalty, called a covenant, to one another." As many students of religion pointed out after the story was published, oaths and vows of this sort are commonplace within all sorts of religious communities; there is nothing terribly unusual or ominous about that. And the story essentially swallowed whole the AFJ line about Barrett's co-authored piece, now some 20 years old, on Catholic judges and recusal in death penalty cases, a line that many law professors have already suggested misreads that article. It added the AFJ's description of Barrett as having "backed away from that position," which misreads both the piece and Barrett's testimony. The piece ended with a classic suspicion-raising question by another law professor: "I’m concerned that this was not sufficiently transparent . . . . We have to disclose everything from the Elks Club to the alumni associations we belong to — why didn’t she disclose this?" 

My hesitation was unwarranted. The story does not say that Barrett was required to disclose her association with the group, but is worded in such a way that the average reader might so conclude, a reading that is enforced by the professorial quote that closes the piece. But as Ed Whelan has pointed out, "[T]he Senate questionnaire, presumably because of concerns about improper inquiry into a nominee’s religious beliefs (or lack thereof), doesn’t ask about membership in religious organizations. . . . So the simple answer to the climactic question...—'why didn’t she disclose this [membership]?'—is that the questionnaire didn’t ask for it." So the one thing in the story that I thought gave grounds for concern turned out to be ungrounded. And the rest of the story, as I have already suggested, was deeply flawed. It makes it hard to read the story as anything other than a successful attempt, perhaps by an interest group, to plant a flawed critical story about a nominee in a widely read and influential newspaper. If there was a story here, it was probably that, and Goodstein could and should have written about who, if anyone, fed her the story, since that information would have given readers more information with which to judge the story and more of an education about the interplay between interest group tactics and the judicial confirmation process. As a general rule, however, reporters prefer not so say much about these mechanics in their pieces, not least because these groups are useful sources for stories and may insist as a condition of feeding the story that their fingerprints are kept off the story. Reporters should strenuously resist such conditions. 

My Prawfs co-blogger Rick has a Mirror of Justice post criticizing the story. But that's not the end of the matter. Lots of people criticized the story, including many law professors who are interested in religion or law and religion, and who have various positions on that subject and come from various places on the political spectrum. On Twitter, Goodstein defended the story, starting with the line, "Seems my piece struck a chord, given defensive reaction by the nominee's allies on Twitter." As I said, however, it wasn't just "the nominee's allies" who criticized the piece. And their reaction was not "defensive:" it was critical, because they thought it was a poor piece. "Striking a chord," of course, can mean a reporter got something right; but it can also mean that the piece provoked reactions because it was flawed--as her piece in fact was. And, rather oddly, a fellow religion reporter, Daniel Burke of CNN, rode to Goodstein's defense, writing, "Looks like a well-coordinated response" to the piece, naming the Federalist Society as the presumed coordinator. This being Twitter, debate ensued.

Both the piece and the defenses of the piece raised various serious concerns for me, both on the substance and on the general issue of how reporters should or shouldn't use their Twitter feeds. For my sins, I have become more active on Twitter lately. And here is a Storified and collection of my slightly lengthy thread of Twitter posts responding to the debate. It would be long even as a blog post; as a Twitter response, it's Proustian. Clearly, the ballyhooed impending move to a 280-character length for tweets wouldn't have done much to help in this case. But I had a number of thoughts on the debate, wanted to get things right, and wanted to do so in the medium in which the debate took place. The gist of my response is roughly this:

1) Given the nature of Twitter and of contemporary politics and public discourse, doubtless there were plenty of hostile and unbalanced responses to the story. But given the number and variety of people who offered serious and well-grounded critical responses to the piece--especially those interested in law, religion, and the complex relationship between nominees' faith and their fitness for the bench--it's not enough to characterize the critical response to Goodstein's piece as "defensive" or as being about support for Barrett. Many of us just thought it was a poor story--and for good reasons, as I have written above. In particular, once the only genuinely troubling charge raised by the story--the non-disclosure angle--is shown to be dubious, all that remains is a repetition of the errors that have already been made in coverage of this nomination, along with questions about the religious group grounded in suppositions--like the idea that there is something unusual or troubling about communal vows of fealty within religious groups--about which a religion reporter, of all people, should know better. I am not suggesting Goodstein had no right to report and publish the story, or even to have stories fed to her by interest groups (if this is what happened). But it could have been reported much better, shown more knowledge about religion itself, done more to describe the genesis of the story and any interest group involvement in it, and avoided the suggestive and ominous framing and language that suffuses the piece. 

2) Burke's defensive attack on criticisms of the piece was both poor in substance and odd as a general matter. It was odd because a religion reporter need not be defensive on behalf of a colleague or competitor, and should have examined the substance of the piece, which I have suggested was flawed, instead of engaging in blanket accusations about the story's critics. And it was doubly odd because, ideally, when writing on Twitter (or anywhere else), a reporter should either stick to his or her area of expertise or do enough serious reporting to justify any accusations outside that expertise. I can't speak for everything that everyone said in response to Goodstein's story--who could?--but it is clear that many of us who raised serious criticisms of the story were not engaging in a "coordinated" response, whether led by the Federalist Society or by anyone else. Burke's defense of his charge of a coordinated response is weak and in some cases erroneous. And despite its general knowing (and cliched) talk about the Federalist Society as "the real power players in DC" (emphasis added: "the?" Aren't there others?), it betrays little knowledge of how that group actually functions. It is true that there are executives within the Federalist Society who are playing a role in suggesting judicial nominees to this administration, just as other interest groups and "power players" do so in every administration, Democratic or Republican. And it is also true--unfortunately so, in my view--that there are some FedSoc executives who enjoy engaging in DC politics, and use their salaried positions at the Federalist Society as a useful and comfortable perch from which to do so. But, as with the American Constitution Society (which also has some executives who enjoy engaging in "power politics," again unfortunately as far as I am concerned), the ground-level experience of members of those groups, including law professors, is far more mundane than that. When I, for one, join either group (I have been a member of both groups at various times, depending on how I felt about paying dues in a given year; although I don't always do so, I prefer to join both groups or neither at any given time), it has more to do with wanting to receive the groups' publications than with their views. I don't get instructions or suggestions from either group, and if I did I would ignore them. Serious critics of the Federalist Society understand the difference between what a few of its executives in DC get up to and how the group as a whole operates, and the minimal influence it has on many or most of its members. There are things one may dislike or worry about with respect to either group--personally, I am not at all crazy about the elite networking aspects of either group, or about judges or hiring committees or anyone else using membership as a proxy or as a qualification or disqualification for clerkships, teaching jobs, judicial nominations, and such--but one ought to have some understanding of those groups rather than lazily treating them as bugaboos. Burke is a religion reporter; there's no reason for Burke to know any of this. But he should have done the work of reporting on it before launching accusations. Failing some serious reporting, he could and should have remained silent, or focused on the substance of Goodstein's story alone.

3) There is a broader question here that troubles me greatly: How, if at all, should non-opinion reporters (or reporters for partisan news outlets, or opinion columnists for that matter) use their Twitter feeds? I was a journalist, very briefly, and happily before the rise of social media and the current desperate straits of major and minor media institutions. I remain interested in the profession and its troubles. It seems clear to me, both from their conduct and from the various newsroom memos floating around and from media reporting on the subject, that reporters these days are positively encouraged to have Twitter feeds, and possibly encouraged to make those feeds exciting or controversial, rather than simply using them to link without commentary to their published work. Much of that pressure comes not just from editors, but from people on the other side of journalism's church-state divide: publishers, marketing departments, and various business-side news industry "consultants." It's clear that even many "straight" news reporters feel free to opine freely on Twitter, both within and beyond their actual expertise and with or without doing the reporting work to support their opinions. I can understand the "why" of the matter, which includes media institutions' desperate desire to survive in a fragmented, social-media-heavy environment, in part by seeking "eyeballs" and attention. But I think these tendencies encourage serious departures from journalistic professionalism and ethics and, for the sake of short-term gains, end up eroding trust in those institutions and imperiling them and their practices in the long run. I appreciate that my brief time in the profession came long before the rise of social media. But when I was doing things, the norms of the profession encouraged reporters to ignore or resist pressures coming from the non-editorial side of the business, to avoid public opining, and to stick to their knitting. If I had been told back then that in addition to reporting and writing for my paper, I would be expected to trawl for eyeballs by starting a Twitter feed and keeping it "interesting," and especially if that pressure came from someone on the non-editorial side of the organization, I would have ignored the instruction and possibly told that person to go to hell. Some of the most successful and prominent journalists on Twitter and other social media, including those whose positions at major media institutions mean they have some power to resist such pressures, have clearly chosen a different path. I think it's the wrong path. As I write in my collection of Twitter posts:

Individual journalists in non-opinion positions (and those with opinion positions as well) urgently need to seriously rethink the nature of their use of Twitter. They need to resist far more strenuously the temptations and seductions of having a social media "platform." They need to push back far more against editors, publishers, "consultants," marketing and business departments, newsroom memos, and peer pressure urging them to do and say more than they should on social media.

Read it all--if you have a couple of hours to spare. (I should note that whatever substantive problems it has, my collection of Tweets has one or two other errors. I refer "John Leo" rather than "Leonard Leo," for example. Mea culpa. I am duly aware that if I had written the screed on the blog rather than Twitter, I would have been able to correct such errors. And I'm aware that the piece's length violates every norm of Twitter, although I'm very happy to violate the norms of Twitter--a medium that I despise, despite my increasing use of it. That I use Twitter at all is, I hope, a matter of weakness, not hypocrisy.)  


Posted by Paul Horwitz on October 1, 2017 at 09:01 AM in Paul Horwitz | Permalink | Comments (0)