Tuesday, November 19, 2019

I'm old

I taught Hicks v. Miranda in Civil Rights today. A student was explaining Miranda's close connection to and interest in the state in rem civil forfeiture action as a basis for Younger abstention. The following exchange occurred:

Student: They were his DVDs.

Me: It was 1975.

Student: They were his videotapes.

Me: It was 1975.

[Student stares blankly]

Posted by Howard Wasserman on November 19, 2019 at 12:37 AM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (5)

Saturday, November 16, 2019

All that is wrong with Twitter, in one story

In 2017, an undergraduate at a college in South Dakota joined the selection committee for the schools' Common Read program because she did not want a certain YA author's book included, because YA is not what college students should be studying, and preferred one of several books on social justice. Last week, the local paper runs a story about the Common Read program (2019 is its 10-year anniversary), including a quotation from that undergrad (who is now in grad school) about joining the committee.

The following ensues:

• The criticized author took to Twitter to say "I’m having a really hard time right now and this is just mean and cruel. I hope it made you feel good."

• The author's YA-author friends took to Twitter with such incisive comments as "Fuck that fucking bitch" and "fuck that RAGGEDY ASS fucking bitch." Another author friend suggested the student's comment reflected the same idea that allowed Larry Nasser to prey on women athletes.

• The university publicly apologized to the author for its former student having a negative opinion about her work. The school explained that it was afraid of harming its relationship with a different author in the wake of the graduate's pointed comments. That tweet is not being received well; apologies for the apology no doubt in short order.

• The grad student has been harassed off social media and is worried about career backlash.

• Starting sometime Friday, everyone began deleting many of these tweets.

• The original author apologized on Friday afternoon. But her apology used a first-person pronoun 11 times and never explained what she had done or who she had hurt and how. (Judging by the Twitter responses, the apology did not work).

• One of her author-friends apologized, explaining that she "didn't read the article" that had started the controversy (uniquely ironic from authors who consistently fight criticism from people who have not read their works).

• A third author--the one who compared this to MeToo and Larry Nasser and had on Friday insisted she had "zero regrets" about calling the student out--apologized late Friday. She did slightly better, including promising to reach out to the student (whom she had named in various online comments). But she did not acknowledge the problem with her Larry Nasser rhetoric. Nor did she acknowledge doubling down and having "zero regrets" two days earlier.

• A fourth author-friend apologized and explained that she had tweeted what she meant to DM.

Two more followed on Saturday, although only with the generic "to all who have been hurt" for "my part" and with such bad-apology disclaimers as "I didn't know the person involved was a college student" and "it upsets me."

The last set of apologists capture why Twitter sucks. Authors used to gather or correspond privately) and, among themselves, complain about critics and call critics names; over a bottle of wine, they felt better. Twitter allows (nay, encourages and incentivizes) them to complain and call-out critics in public. But they use the same language they had used in private. And that language reaches hundreds of thousands of people, who have no qualms, given the distance and anonymity of Twitter, of going after the original critic in a personal and aggressive manner. The two from Saturday insisted they were trying to support a friend and do not encourage or condone targeting and harassment. But what did they think was going to happen when they said things like "fuck that bitch" and "you are as bad for women as Larry Nasser"? Did they not think people would run with that?

Finally, note that no one apologized until beginning Friday afternoon and continuing to today. What happened? Beginning Friday morning, The Guardian, Washington Post, Slate, and New York Magazine picked up the story, moving it from the Abderdeen News to the national scene. Unlikely to be a coincidence.

Posted by Howard Wasserman on November 16, 2019 at 01:32 PM in Culture, Howard Wasserman | Permalink | Comments (0)

Saturday, November 02, 2019

Leavenworth, Ep. 2: Casualties, part 2

The following is by my FIU colleague Eric Carpenter, who is blogging this show. Episode 3, airing Sunday, features talking-head interviews with Eric and footage of his Military Justice class mooting the case.

The Lorance fact pattern isn’t a classic “following orders” case. Lorance was not following any orders when he ordered the shooting. The fact pattern does set up interesting issues with the soldiers in his platoon, though. Some followed illegal orders (like shooting harassing fire at the village) and some refused illegal orders (like reporting false information to the higher headquarters). It looks like the soldiers were granted immunity for those actions so that they would testify, and I expect that the defense will tie this into the idea that the whole platoon had a motive to lie. By saying Lorance was 100% at fault, they could get the immunity they needed.

Here is the basic quandary. We want soldiers to follow orders immediately. If they don’t, they can be prosecuted for failing to follow an order. However, if they do follow the order, and it turns out that the underlying action is unlawful, they can be prosecuted for doing that unlawful action. When put in a sketchy circumstance, it looks like they are damned if they do, damned if they don’t. Should they risk being prosecuted for refusing the order, or risk being prosecuted for doing something that might be illegal?

In 1621, Gustavus Adolphus included a section in his Code that dealt with this problem. Article 46 says that no officers may order anyone to do anything unlawful. Article 45 tells soldiers to follow orders, but if an order is unlawful, to disobey the order and report the problem to higher.

Current American military law is not too far off from that. The law is weighted toward having the service member follow the order. Service members should infer that the order is lawful and they assume the risk of not following the order. They should only refuse patently illegal orders. Usually, this issue comes up when soldiers refuse to follow an order to deploy somewhere, arguing that the war is illegal. This issue is litigated before trial, where the military judge decides whether the order was lawful or not. If lawful, then the soldier has a tough case ahead (it is pretty clear that they did not follow an order). If the military judge says that the order was unlawful, then the government has failed to state an offense (it is not against the law to refuse to do something illegal).

If service members do follow the order, and it turns out that the underlying action was illegal, then they can raise the defense of following orders. Under that defense, they are excused unless they know or should have known that the order was illegal (which is the same thing as the order being patently illegal). Once raised, the government must disprove the defense beyond a reasonable doubt.

Returning to the Lorance facts, the soldiers who fired the harassing fire into the village followed an order, it turns out that underlying action was unlawful, and if they had been prosecuted, they could have raised a defense. They would likely lose on that defense, though, because everyone knows you can’t shoot harassing fire. The order was patently illegal.

The soldiers who refused to make false reports could have been prosecuted for that (that would be very unlikely). They would have argued before trial that the order was unlawful, and a military judge would certainly agree with that.

How about the soldiers who shot at the men on the motorcycle? Again, they followed orders. If they were prosecuted, they could raise the defense of following orders. I think they would win on that. They had no idea what Lorance might have known. Lorance could have received intelligence from higher that the men were about to threaten the unit, for example. Further, the soldier in the gun truck was separated from the rest of the unit. He didn’t know what Lorance might have seen that he did not. The government would have to prove beyond a reasonable doubt that they knew or should have known that the order was illegal, and I don’t think the government would be able to meet that burden.

These issues should come up in the next episode, but with more of a focus on the granting of immunity. The soldiers who fired the harassing shots needed immunity and maybe they would have the potential for bias. I don’t think anyone else needed immunity so I can’t see why they would be biased.

Posted by Howard Wasserman on November 2, 2019 at 02:03 PM in Criminal Law, Culture, Howard Wasserman | Permalink | Comments (1)

Friday, October 25, 2019

Aaron Sorkin wrote Donald Trump, Example No. 31

I have argued before that Aaron's Sorkin's The West Wing reflects and lauds the politics practiced in the Trump White House, albeit in service of different substantive policy ends. The latest example is the announcement that the White House would cancel subscriptions to The New York Times and Washington Post and was ordering agencies and departments to cancel their subscriptions.

In one episode of The West Wing, President Bartlet and C.J. Cregg are mad about coverage of the administration by reporter Danny Concannon and his paper (I do not remember if it was the Post or a fictional paper). In a meeting among the three, Bartlet announces that he is canceling "our" subscription to Danny's paper. C.J. applauds the move as a way to damage the paper financially. Bartlet then reveals that he was speaking only of his personal subscription, not the governmental subscription, which disappoints C.J.

The point is that Sorkin liked the sort of politics in which the government punishes critics financially, in a way that would worsen the effectiveness of government (if we believe that staying abreast of the news is important for government officials). C.J. is the POV character in that scene and she is incensed that Bartlet will not do more to sanction and financially injure the paper and his critics.

Nor does this explanation cut it:

The difference is that Bartlet was a good president, who was prone to being occasionally snitty. In contrast, Donald Trump is an awful president who routinely displays the immaturity of an infant.

That cannot be right. Either it is ok for a President to lash at his critics in this way or it isn't. Either it is ok to call political adversaries names or it isn't; either it is ok to strip press credentials from critical reporters or it isn't. Neither the political position nor perceived quality of the President and administration should make a difference.

Posted by Howard Wasserman on October 25, 2019 at 03:27 PM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, September 10, 2019

I am not alone

Here.

I would add that, based on Ferguson's description of the examples Gladwell uses in the book, he is again trying to squeeze widely disparate examples into a single category. The issue with Chamberlain/Hitler, Madoff, Sandusky, and Cuban spies is that they successfully lied to people about their actions or intentions. The problem with Bland was--at best--a racially charged, power-imbalanced confrontation between a police officer and a person of color--the kind that happens too frequently.

Posted by Howard Wasserman on September 10, 2019 at 10:06 AM in Culture, Howard Wasserman | Permalink | Comments (1)

Sunday, August 18, 2019

Malcolm Gladwell has chutzpah (too bad he does not know what it means)

You would think that after the first seven episodes of this season of Malcolm Gladwell's podcast, I would have learned my lesson. But the eighth episode was titled Chutzpah v. Chutzpah, so my interest in all things Jewish got the better of me.

The episode is about . . . I am not entirely sure.

Points of discussion include:

    • The difference between chutzpah as we use it "in America" (pronounced KHUTS-puh) and chutzpah as used in Israel (pronounced khoots-PAH). He says, interviewing his Israeli-born neighbor, that the former means audacity or nerve or guts, while the latter indicates a lowness or shamelessness.

    • Lots of anecdotes: 1) The creator of "Hogan's Heroes," Al Ruddy, walking into a meeting with CBS chair William Paley with no prior experience or qualifications, pitching a comedy about Nazi soldiers by acting out the roles and casting Jewish actors as Nazis; 2) Mafia boss Joseph Colombo founding the Italian-American Civil Rights League to counter stereotypes of Italians as criminals, extorting NBC to broadcast the Columbus Day Parade by threatening a hit on Johnny Carson (Carson had hit on Colombo's wife), and attempting to derail "The Godfather" until the producer, Ruddy, agreed to remove the word "mafia" from the script (which appeared only once in the original script, in any event).

    • Israel is a low-hierarchy, in-your-face society. This explains Abraham bargaining with Hashem over Sodom and Gomorrah, the Hebrew word "nu" as a conversation-rusher (a kind of "go on" or "get to the point already"), and Gladwell's neighbor confronting school administrators about closing the school because of snow (having the kids at home on these days made her life difficult).

    • Oral argument in the appeal of the Flores litigation, in which the DOJ lawyer argued that toothbrushes, soap, and decent sleeping conditions are not within the ordinary meaning of "safe and sanitary."

It does seem worth deconstructing how much is wrong here.

1) Gladwell never mentions that chutzpah originates in Yiddish; he repeatedly talks about how the word is used "in America," as if it is an American concept. American English absorbed the word and concept into Yinglish. That explains the different pronunciations. Yiddish places the emphasis  on the next-to-last syllable of words (SHA-bos); Hebrew places the emphasis on the last syllable of words ("sha-BAHT). English also places the emphasis on the next-to-last syllable, which is why Yiddish words slide into English so well. It makes sense that modern Hebrew (a language that did not exist until the late 19th century) would incorporate the Yiddish word, but with Hebrew pronunciation. So we are dealing with the same word, but in different languages having different pronunciation rules.

2) The bigger problem: I am not sure Gladwell understands what chutzpah means. Gladwell's premise is that the Al Ruddy story illustrates what we "in America" call KHUTS-puh, but would not be what Israelis call khoots-PAH; only the Joe Colombo stories qualify as the latter.

But would a Yiddish speaker call what Ruddy did chutzpah? Leo Rosten's "The Joys of Yiddish" offers several illustrations of chutzpah--the boy who kills his parents and pleads for mercy because he is an orphan; the man who shouts for help while beating you up; and the beggar who, given a choice between free challah and free black bread, chooses challah, and when told that it is more expensive, says "it's worth it." All reveal not simple audacity or guts, but shamelessness and self-servingness, perhaps with a touch of irony thrown in (what Gladwell says is khoots-PAH but not KHUTS-puh).

None of Rosten's examples is analogous to what Ruddy did. He was ballsy and audacious, because he had no business being in that room pitching a TV show. It also was potentially offensive for its time (this was a different era of comedy two years before "The Producers"), even though everyone in the room was Jewish. But it lacked that irony. Colombo, on the other hand, was a chutzpanik. Rosten would have been happy to include "Italian criminal forms group to protest media portrayal of Italians as criminals" in his definition.

In other words, KHUTS-puh (Yiddish) and khoots-PAH (Hebrew pronunciation) are the same: Neither would include Ruddy, both would include Colombo. Now some might disagree with this and argue that both do qualify. Fine. Then we are debating the meaning of one word (however pronounced), not the difference in meaning between two words.

3) Suppose Gladwell's premise is right: English-speakers in the U.S. would talk about Ruddy as chutzpah (even if Rosten would not), while Hebrew speakers in Israel would not. But that suggests that the Yinglish chutzpah has evolved and broadened to cover all instances of audacity or nerve or guts, without the shamelessness. Then, as my wife pointed out, we have a nice illustration of cultural appropriation, how a culture or language alters a word or concept by absorbing it. The lesson is not that Israel has a different word than we have "in America;" the lesson might be that American English altered or expanded the meaning of a word taken from a different language, while Israeli Hebrew maintained the original meaning. So talk about that. Or at least acknowledge a different explanation for the phenomenon.

4) The discussion of nu has the same problem. Gladwell describes it as a uniquely Israeli verbal push to move a conversation along. But, again, the word was part of Yiddish, was spoken in Eastern Europe, and was brought to America by millions of Yiddish-speaking immigrants a century ago. What is interesting (but not mentioned in the podcast) is that nu has not been absorbed into Yinglish as has, for example, oy vey. It thus died off as people stopped speaking Yiddish. Meanwhile, Hebrew has maintained the word.

5) As for his neighbor's tangles with the school administration over the inconvenience of snow days: I would describe them as obnoxious, inconsiderate, and selfish, to say nothing of clueless as to how broader institutions and the social compact operate. I can imagine the "are you kidding me" conversations school administrators had about her phone calls.

But not chutzpah. However pronounced.

I promise this will be my final Gladwell-related post. I think I am hate-listening at this point.

Posted by Howard Wasserman on August 18, 2019 at 09:32 AM in Culture, Howard Wasserman | Permalink | Comments (7)

Friday, August 02, 2019

Confusion of the Inverse??

At JOTWELL, Omri Ben-Shahar has a review of a forthcoming article in the Stanford Law Review claiming to have shown in a study that consumers are cowed by a consumer contract's fine print even if they believe they have been defrauded by the seller - i.e., have been expressed guaranteed A and learn later that (i) they aren't getting A, and (ii) the fine print says they have no legal right to A. (The reviewed piece is Meirav Furth-Matzin & Roseanna Sommers, Consumer Psychology and the Problem of Fine Print Fraud, 72 Stan. L. Rev ___ (2020)).

I've been blogging with outtakes from the not-quite-ready-for-prime time Unsure at Any Speed . Here the outtake intersects with another subject on which I have gotten involved recently: how to deal with the spread of detailed and unread consumer contract fine print, particularly given the ease by which it can appear to be made binding via internet click-throughs.

The question is not whether the conclusions Furth-Matzin and Sommers draw from their laboratory experiments are correct.  First, I don't know enough about qualitative research methods to assess their hypotheticals and questions to test subjects. Second, from what I can tell, they have given enough detail about the methodology to allow the tests to be repeated and therefore falsified. So I accept them for what they seem to say: people seem to take the fine print seriously even when they know they have gotten screwed.

My question is rather about empirical statements that underlie the study to begin with. Is it the case that widespread non-readership of fine print leaves consumers open to exploitation by unscrupulous firms? Is it true that sellers can outright lie about their products and services and then contradict the lie in the fine print?  The Stanford article takes the answer "yes" to those questions as a given, and then proceeds to assess the impact of fine print, given that there was fraud.  I cannot find, however, at least in the footnotes on the first six pages of the article anything other than a couple of anecdotes in support of the proposition that unscrupulous firms are a widespread problem.  I'm not saying they aren't; I just don't see any evidence one way or the other.

Is this an example of "confusion of the inverse," the subject of my outtake?

What I mean by "confusion of the inverse"

I cut from Unsure a detailed explanation of the "confusion of the inverse." It is, along with things like availability heuristic, the law of small numbers, hindsight bias, and confirmation bias, an example of the predictable divergences from actual probabilities to which Kahneman, Tversky, and others demonstrated humans are prone. My particular heuristic/bias peeve has to do with academic assumptions about the morality and competence of corporate oversight (Caremark doctrine for you governance nerds), exacerbated perhaps when, my having recently been been a corporate executive, a colleague blithely characterized corporate executives as "turnips" at a workshop shortly after I joined the faculty.

Here is the confusion of the inverse applied to my peeve.  Conditional probability is the quantification of the following question: given the probability that A is true (P(A)), what is the probability of B given A (P(B/A))?  The formula for deriving the answer is:

P(B/A) = [P(A/B) x P(A)]/P(B)

What we are trying to derive is the probability that we have a corrupt/incompetent board given that we have observed material corporate wrongdoing.

The probability of MW among the set of all corporations is P(A).

The probability of MW given CIB is P(A/B).

The probability of CIB is P(B).  Note that you can have a CIB even if you don't have MW, and you can have MW even if you don't have CIB.

Our formula now looks like this: P(CIB/MW) = [P(MW/CIB) x P(MW)]/P(CIB)

So...

Let's assume the following.  It turns out MW among all corporations is very rare.  Say P(MW) = .01 (one in a hundred).

The probability of material wrongdoing, however, is very high, IF you have a corrupt/incompetent board.  Say P(MW/CIB) = .95

The formula gives us the following numerator:  .95 (the probability of MW given that we have a CIB) x .10 (the probability we have MW).

But remember you can have a CIB even if you don't have MW, and you can have MW even if you don't have CIB.  So the denominator P (CIB) has to take all possibilities into account.

Hence, P(CIB) = [the probability that there is MW given CIB times the probability of MW] plus [the probability that there is MW with no CIB times the probability of no CIB].

So... P(CIB/MW) = (.95 x .01) /[(.95 x .01) + (.05 x .99)]

P(CIB/MW) = .16

So given that you observe material wrongdoing, the probability of also encountering a corrupt or incompetent board P(CIB/MW) is .16.  The confusion of the inverse is to believe P(CIB/MW) is .95.  It is not to say that you can't have corrupt or incompetent boards. It is to say instead that it is wrong to assume board members are turnips just because you observed material wrongdoing.

There are even more malignant examples of the confusion of the inverse.  When a police officer pulls over a car, what is the probability that there are drugs in the car, given that the driver is African-American?  When TSA does a search, what is the probability that the individual is a terrorist, given that he/she appears to be Middle Eastern?  When you are tested for a rare disease, what is the probability you have it, given that the test is positive?

Confusion of the inverse and contract fine print issues

As I said, I express no view on the study in the Stanford Law Review article.  I just don't see any evidence about the prevalence of out-and-out fraud. My intuition is there is probably less of it than the article seems to suggest.

That isn't to say there aren't real fairness issues with fine print. I have engaged with Rob Kar on his Harvard Law Review article with Margaret Radin, the thesis of which is to ground an attack on over-reaching boilerplate on a demarcation of the "true" agreement between the contract drafter and the consumer by way of Grice's "conversational maxims" and an actual shared meaning.  (Theirs is Pseudo-Contract and Shared Meaning Analysis; my response, just published in the Australasian Journal of Legal Philosophy (Vol. 43, pp. 90-105) is Conversation, Cooperation, or Convention? A Response to Kar and Radin.)

What I take from the Stanford Law Review study is that consumers aren't completely led down the primrose path by the fact of "fine print" - they expect there to be terms and conditions even if they don't read them.  The study seems to bear that out, even in the extreme where the consumer really does believe he/she/they got screwed. The real question is to what extent should the fine print be binding.  I agree with Omri that disclosure is not likely to be helpful - oy, more fine print disclaiming the fine print. Nor do I think trying to find the actual agreement or shared meaning is going to be fruitful.  Rather, there is a convention about what is and is not fair, and that probably ought to be reflected in regulation.

Posted by Jeff Lipshaw on August 2, 2019 at 11:45 AM in Article Spotlight, Corporate, Culture, Law Review Review, Legal Theory, Lipshaw | Permalink | Comments (2)

Tuesday, June 25, 2019

Questioning "Yesterday" (non-law)

The movie Yesterday is about a world in which a power-outage causes everyone but one person to forget that Coca-Cola and the Beatles existed, so that person (an otherwise-unsuccessful singer-songwriter) becomes a world-famous star by "writing" the Beatles songs.

This review questions the musical premise, arguing that what makes the Beatles music special was their evolution. "She Loves You" was a sensation because the world had not yet heard "Hey Jude" or "Let It Be"--or better still, "A Day in the Life," which everyone seems to rank as their greatest song (not sure if it appears in the film). And it is musically impossible for those songs to be released simultaneously--and for the earlier song to catch on against the later song.

I question the premise from a different point: The movie assumes the Beatles songs sang themselves. The songs made the Beatles great, not how well the band played them. So any schmuck could perform a Beatles song (if no one had ever heard the Beatles sing it) and become as big as the Beatles were.

For more, here is a conversation at the Ringer on the broader implications of the film's idea.

Posted by Howard Wasserman on June 25, 2019 at 04:38 PM in Culture, Howard Wasserman | Permalink | Comments (10)

Wednesday, June 19, 2019

On professional decline (Update)

This Atlantic essay from Arthur C. Brooks, until this week the president of the AEI, is fascinating. I am the age (51) that Brooks was when he overheard the conversation that launched him on this project four years ago.

I was especially interested in the mid-essay discussion of fluid v. crystallized intelligence and its connection to scholarship as opposed to teaching for academics (Brooks spent about seven years as a professor of public policy). Creative and scholarly highs (which rely on fluid intelligence) top-out about 20 years into our careers, because fluid intelligence diminishes in our 30s and 40s. Teaching effectiveness relies on the knowledge gained in the past and our ability to share that knowledge and can last much longer into a career and a life (Brooks uses the example of J.S. Bach, who moved from composing to teaching late in life). This lends a new angle on the discussion over how schools should treat faculty who are effective teachers but not productive scholars--it may be a product of age and time in the academy that, Brooks suggests, schools could use to their advantage.

Brooks offers one point that, given my age and career choice, I take as a source of optimism from the piece: "No matter what mix of intelligence your field requires, you can always endeavor to weight your career away from innovation and toward the strengths that persist, or even increase, later in life."

Update: One academic-specific thought that occurred to me after I hit "publish": One must care about teaching, enjoy teaching, and want to be a good teacher early in a career, during that creative heyday. Because I imagine the transition is easier when teaching is something a prof enjoys and can be proud of--the loss of "prestige" will be felt less.

Posted by Howard Wasserman on June 19, 2019 at 11:35 AM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Thursday, June 13, 2019

The first thing we do, let's fire all the lawyers

The fallout from When They See Us, the Netflix series on the Central Park Five, continues.

Linda Fairstein, the attorney who led the DA's sex crimes unit, was dropped by her publisher and forced to resign from several boards, including the Board of Trustees of Vassar College. Elizabeth Lederer, the attorney and lead prosecutor, will not return as an adjunct at Columbia Law School, amid student protests and calls from the Black Law Students Association not to renew her contract. On the other hand, none of the police officers who engaged in the coercive questioning has been sanctioned in any way--none has been fired or lost current non-policing gigs. Nor have other top city or DA officials (if any are alive--former DA Robert Morganthau is still active at 99). And the prominent NYC citizen who took out a full-page ad calling for their execution? Well, we know where he is.

One conclusion is that, as lawyers, Fairstein and Lederer must be held to a higher standard. We expect cops to do whatever it takes to get a confession to clear a case. But we expect lawyers to be justice-seeking "Men for  All Seasons," stepping back from the heat and passion of the moment to cast a thoughtful and rational eye and to slam on the brakes when they spy injustice, such as improper police questioning. So when prosecutors barrel forward and do their best to represent their client, they are excoriated, and must be sanctioned, for being part of the problem in the criminal-justice machine barreling over communities of color. Of course, had either stood up at the time, they would have been excoriated for not supporting law enforcement, creating further rifts in an already-tenuous relationship between police and prosecutors.

Is there anything either could have done to avoid the fallout? Would it have been enough had each apologized and acknowledged that they had the wrong person but that they went forward with what they had in 1989? (Fairstein has dug in her heels, I am not sure what Lederer has said about the case or the exoneration). Is it enough to acknowledge mistakes? Or are both tainted by association with a racially charged wrongful conviction, such that neither she be allowed to continue in polite society or in the business of teaching law? To the extent any scorn might be heaped on Morganthau for allowing the prosecution to go forward, he says he his proud of the exoneration.

The obvious analogy is with the recent controversy over Harvard dismissing Ronald Sullivan as a res college dean (although not as a member of the HLS faculty) following student protests over his involvement in representing Harvey Weinstein. Those who defended Sullivan and criticized Harvard (and the students who pushed for Sullivan's dismissal) emphasized the Sixth Amendment and the need for lawyers to zealously represent the worst of the accused. The possible distinction is that prosecutors are supposed to have a different obligation--not to a client who enjoys certain constitutional rights, but to doing justice. But once prosecutors decide, in their best justice-directed judgment, that they have the right defendants, they are supposed to just as zealously represent their clients (in this case, the People of the State of New York). It seems perverse to punish a prosecutor, who considered justice but reached a good-faith conclusion, for being too good a lawyer. I am curious how people reconcile opposition to what Harvard did to Sullivan with what Columbia did with Lederer--is it the lack of contrition?

Finally, we should not overlook that the only people involved in the case from the government's side suffering any adverse professional or personal consequences are women. Not the man who supervised them or the men who mistreated the kids and coerced their confessions. And not the man who called for their execution. Make what you will of that.

Posted by Howard Wasserman on June 13, 2019 at 10:13 AM in Culture, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Tuesday, June 04, 2019

Reacting to "Chernobyl"

I finished watching HBO's wonderful mini-series Chernobyl. It is interesting to see the distinct messages drawn from opposing political sides--the same show being watched in different universes.

For many conservatives, the message is "Soviet Union/Communism/Socialism is bad." The insight of the series is how bad things are when the state owns things like nuclear power plants, as well as the scientific institutes that investigate accidents. The current relevance is how much better we are because there is no Soviet Union and how bad it would be if one of those socialists became President.

For many liberals (and for the producers of the series), the message is "the cost of lies," the line with which the lead scientists begins and ends the series. The insight is the lies (or false denials) surrounding the fact and severity of the accident and the lies surrounding the cause of the accident. The current relevance is that we have similar problems of governmental lies and secrecy and willingness of people to lie to protect the government or its leaders. People will lie on behalf of many leaders, not only a communist state.

For what it is worth, showrunner Craig Mazin says it is both: "It’s anti­–Soviet government, and it is anti-lie, and it is pro–human being."

Posted by Howard Wasserman on June 4, 2019 at 02:51 PM in Culture, Howard Wasserman, Law and Politics, Television | Permalink | Comments (8)

Sunday, March 24, 2019

Inclusive forests and racist-insult trees

The history podcast Backstory did an episode on the history of profanity. The fourth piece is an interview with Smith College history professor Elizabeth Pryor, who is the daughter of comedian Richard Pryor. (You can listen and read the full transcript of the story at the link).

Pryor begins with a story about a lecture on citizenship and the Civil War, in which a white student repeats the following joke from Blazing Saddles (which Richard Pryor co-wrote with Mel Brooks):

The joke is relevant to a lecture on 19th-century citizenship, a time in which Irish people did face discrimination.

But Pryor describes the class encounter as follows: "And she said, 'We don’t want the CH’s and the N words, but we will take the Irish,' but she said all the words."

Pryor got the joke backwards. The difference between the joke and how Pryor describes the joke gives it an extra layer, especially as it relates to that lecture. The people of Rock Ridge use racist epithets to describe Black and Chinese people but are willing to accept them in their community; they do not use epithets to describe the Irish people but are unwilling to accept them in their community. This presents some nice questions to explore: Which is worse--being excluded or being described in disparaging terms? How much do the epithets show that Black and Chinese people are not accepted in the community, even if allowed to live among them, because identified in disparaging terms? Does the sole focus on words obscure actions?

Posted by Howard Wasserman on March 24, 2019 at 01:52 PM in Culture, First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (3)

Thursday, March 21, 2019

Game of Papers/Game of Thrones

This McSweeney's piece suggested quotations from The Princess Bride that double as comments on paper (I have used "I do not think it means what you think it means"). I wondered: What quotations from Game of Thrones might serve a similar function? The obvious one is "You know nothing, Jon Snow."

What else can serve this function?

Posted by Howard Wasserman on March 21, 2019 at 04:17 PM in Culture, Teaching Law, Television | Permalink | Comments (5)

Monday, November 12, 2018

C.J. Cregg = Sarah Sanders (Updated)

Attorney David Lurie argues in Slate that CNN should sue the Secret Service over revocation of reporter Jim Acosta's press credentials. He argues that CNN has a good case. D.C. Circuit precedent holds that reporters must receive process in the denial or revocation of credentials and that the basis for revocation cannot be that the reporter criticized the President or anyone else in the White House. And the President admitted that Acosta's credentials were revoked because he did not treat the presidency with "respect" and that he might do the same to other reporters.

Update: CNN and Acosta, represented by Gibson Dunn, has filed suit, claiming violations of the First and Fifth Amendments and the APA; named defendants are Trump, Kelly, Sanders, William Shine (Deputy Chief of Staff, the Secret Service, and the head of the Secret Service.

The incident brought to mind S3E4 of The West Wing, titled "On the Day Before." Press secretary C.J. Cregg gets pissed at a reporter who inaccurately reported on something that C.J. had done. C.J. tells the reporter that she is having the reporter's credentials revoked and that the reporter must call C.J.'s office every day so C.J. can decide if the reporter will be allowed into the press room. And this was played with C.J. as the hero, standing up and justly sanctioning the vapid, dishonest, and unethical reporter.

This is another illustration of Aaron Sorkin writing the Trump Administration in the Bartlet Administration,  with much of the behavior and norm-breaking that we have seen the past two years; the difference is that Sorkin's characters did it in service of a liberal Democratic agenda, while the Trump Administration has done it in service of a very different agenda. There is no difference between Trump and Sarah Sanders stripping Acosta of his credential and C.J. doing the same to that fictional reporter--both are mad because the reporter treated them unfairly.

Posted by Howard Wasserman on November 12, 2018 at 08:44 PM in Culture, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)

Monday, October 08, 2018

Better Call Saul does legal-academic fundraising

In the Better Call Saul season finale, Jimmy donates $23,000 to an area law school to name the library Reading Room after his brother. Just how unrealistic was that? What is the going rate for naming rights for a room in a law school?

Posted by Howard Wasserman on October 8, 2018 at 11:17 PM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Thursday, October 04, 2018

Most lawyery "Better Call Saul"

This week's Better Call Saul, titled "Wiedersehen" (the penultimate episode of Season 4), may have been the most lawyery episode. Consider:

• Shout out to Justice Stewart. Jimmy and Kim discuss when the situation will again be right to pull the scams that make them both feel alive. Kim insists they will know the right situation when they see it.

• Appearing before the committee considering whether to reinstate him, Jimmy talks about attending the University of American Somoa, although he would have preferred to attend Georgetown or Northwestern (my alma mater).

• At the same hearing, Jimmy is asked  whether he has kept abreast of changes in the law. He talks at length about Crawford v. Washington and the Confrontation Clause.

Posted by Howard Wasserman on October 4, 2018 at 10:46 PM in Culture, Howard Wasserman, Television | Permalink | Comments (1)

Friday, September 14, 2018

The Deuce '77

I just watched the season two premiere of The Deuce, which time-jumps to 1977 and depicts the late-'70s New York City of Ed Koch that I remember as a I kid. After the jump, one thought and one question:

Question: Does anyone know if actor Luke Kirby is Jewish? I have seen him in three shows--Rectify, in which he played Jewish lawyer Jon Stern; Fabulous Mrs. Maisel, in which he plays Lenny Bruce; and now the new season of The Deuce, in which he plays a Koch aide named Gene Goodman. Just curious.

Thought: One character on the show is a porn producer named Harvey Wasserman. Early in the episode, during a disagreement between Harvey and Maggie Gyllenhall's Eileen about a movie clip, Eileen says "Fuck you, Wasserman." While perhaps many a student thinks it, I don't hear that said on TV very often.

Posted by Howard Wasserman on September 14, 2018 at 03:27 PM in Culture, Howard Wasserman, Television | Permalink | Comments (0)

Saturday, September 08, 2018

Bad TV presentation of law (a weekly series?)

This is my weekly post on how some TV show messed up something law-related.This week: Ozark.

A character is arrested after getting into a car accident while under the influence of drugs She is arrested and charged with DUI, possession, and reckless endangerment. An officer trying to get the character to become a CI tells her that she is subject the three-strikes law because she was charged with three crimes and will go to jail for life.

That is not how three-strikes laws works. If it were, every defendant would be subject to a life sentence, because a prosecutor can always find three criminal statutes violated in one conduct, transaction, or occurrence.

It was  throwaway, but it reflected uninformed, lazy writing. Of course, I thought the entire character arc was lazy, having out-of-character behavior to serve the needs of the plot. Getting a bit of law wrong in service of a stupid character development is the lesser-included offense.

 

Posted by Howard Wasserman on September 8, 2018 at 11:07 AM in Culture, Howard Wasserman | Permalink | Comments (2)

Monday, September 03, 2018

Two free expression stories for Labor Day

First, Nike is celebrating the 30th anniversary of its Just Do It campaign. Here is the opening image, with the tag line "Believe in Something. Even if it means sacrificing everything." Good for Nike, which has always mixed its product advertising with political messages. I assume the company calculated the lost sales from the more than half the country that seems to oppose the player protests. Or it has more corporate courage than the NFL. DmMfV2QV4AAF11z

 

Second, a group called USA Latinx raised almost $ 10,000 in one day to rent this billboard for about $6000. The fundraising effort was helped by Parkland survivor David Hogg, who tweeted about the campaign. The billboard is a response to President Trump's announced plan to come to Texas to hold a rally in a big stadium in support of Ted Cruz's re-election campaign. Several contributors to the GoFundMe campaign urged the group to raise more money to put these ads all over the state.

32614890_1535818206259214_rI presume USA Latinx believes that money is not speech, that corporations have no speech rights, and that Citizens United is the fourth-worst SCOTUS decision ever. Do its leaders realize that this is a campaign expenditure and that they are a corporation or other entity? Do they realize that if money were not speech, there would be no limit on government halting such expenditures? Do they realize that a $ 5000 expenditure limit or a bar on expenditures within 90 days of an election (all perfectly lawful if money is not speech) renders this unlawful?

Posted by Howard Wasserman on September 3, 2018 at 05:48 PM in Culture, First Amendment, Law and Politics, Sports | Permalink | Comments (5)

Friday, August 31, 2018

Interdisciplinary Projects

I have enjoyed my time here blogging, and many thanks again to Rick and Howard for having me.  In my last post, I thought I would discuss an interdisciplinary project I have been working on. 

Last year, I applied for a large, internal university grant to try out some interdisciplinary projects.  The goal was to spend a year investigating a significant corporate scandal with colleagues from around the university in an effort to come up with a “super solution.”  When I wrote the grant proposal, I used the General Motors ignition switch scandal as an example of what one might investigate.  The original grant proposal envisioned a three-year project, which would have allowed three areas of study. 

I was instead offered a more modest grant to test out the idea.  By the time the award was provided, the #MeToo movement was in full swing, so I changed the topic of inquiry to sexual harassment within organizations.  Ultimately, we had participants from law, management, economics, philosophy, and journalism.  Each participant wrote a small three to five page paper addressing the sexual harassment crisis within organizations from their scholarly discipline and expertise.  We then had a one-day conference where we presented our solutions, and we had two senior external scholars attend to comment and provide additional input.  Ultimately, we walked away with two potential theses, and a few of us are currently working on a paper. 

One of the proposed uses of the grant award in the original proposal was to provide research funding for contributors as an incentive to participate.  Every department at Notre Dame has its own publication expectations, so I worried that people might need an incentive to participate in interdisciplinary work.  When I received the more modest grant, however, I dropped the attempt to provide the incentive.  As it turned out, each person I approached agreed to participate except for one, and the one person who declined instead provided some additional funding for the project. 

For the those of us working on a writing project together, we have determined that we may be able to publish three articles—one each in a management, law, and economics journal—related to one of the theses we identified.  We would of course emphasize different points in each publication.  I think this is in actuality a better incentive than research funding would have been.  We identified a thesis that hasn’t been written about in our respective disciplines, and we have identified related projects that we can tackle for the purpose of publishing pieces in those disciplines.  This provides us each a publication opportunity that “counts” in our departments, but it also broadens the potential impact of our work.  This is still very much an experiment, but it does seem as if it is an experiment worth attempting as the potential upside is quite high. 

With that, I close my stint here at Prawfs.  I had some more half-written blog posts, but my 1Ls are happy, eager, and love sitting in my office.  Until next time! 

Posted by Veronica Root on August 31, 2018 at 07:09 AM in Corporate, Culture, Employment and Labor Law, Workplace Law | Permalink | Comments (2)

Wednesday, August 22, 2018

Big Little Lies--Crim Law Question

GMy wife and I just finished Season One of Big Little Lies. We enjoyed the show. But we were not fans of how it ended, specifically how the police resolved the investigation and why, why the women told the story they did, and what criminal law has to say about it.

SPOILERS after the jump. Substantive crim law people, please help us out.

Assuming what was shown on the screen is accurate, here is what happened:

Perry, Celeste's abusive husband, begins attacking and beating her on the patio, in front of a stairwell that has caution tape across it. Celeste's three friends try to pull him off and beats them off. Celeste is on the ground and Perry stands over her and kicks her multiple times. The other three women are helpless to stop the attack, which appears that it could continue and result in serious injuries. A fifth woman, Bonnie, runs from the far end of the patio towards Perry and shoves him with two hands towards the open stairwell; he breaks through the tape and falls down the steps, dying in the fall.

The woman all agree to tell the story that as Perry was kicking her, he fell backwards through the tape and down the stairs. One detective dismisses that as bullshit, because the women's stories and language line up too perfectly. Her partner asks why they would lie. He suggests that this clearly was self-defense, that the pusher (the police do not know who that was, although the partner assumes it was Celeste) would be guilty of at most involuntary manslaughter, and would get at most a year of community service, likely cut in half. (Put aside that community service does not work that way).

Here are my questions:

• Is that right under the law? What we see on-screen looks like defense-of-others and was a two-hand shove to stop a large man from severely beating a smaller and prone woman. It was a tame physical act, calculated to try to stop the ongoing assault. Does his falling down the stairs, in a defense-of-other situation, turn that into a crime? Would any prosecutor charge that, in these circumstances?

• If it is a crime, then having the police be confused over the women lying is stupid. They are lying because the truth would result in someone being convicted of a violent felony for coming to an abused woman's aide. Even if her sentence is relatively light, it is still a conviction for a violent crime and still a felony with all the collateral consequences that follow. Given the choice between the truth and a conviction or a lie that cannot be proven otherwise, of course they will choose the lie.

• Perhaps the story is trying to set-up the impossible situation for abused women, that attempting to fight back costs more. And perhaps that will be the theme of Season Two. But I did not see the groundwork laid for that.

Posted by Howard Wasserman on August 22, 2018 at 11:11 AM in Criminal Law, Culture, Howard Wasserman, Television | Permalink | Comments (8)

Friday, August 10, 2018

Boardroom scene in "Succession"

A question for the Corp/Bus Orgs folks out there: What did people think of the boardroom scene in Episode 6 of Succession, showing a motion for a vote of no confidence against the CEO* and the rules of order and machinations going before and after it. Worth showing in class as an example of corporate governance and democracy?

[*] Purportedly based on the real-life move against Michael Eisner at Disney.

Posted by Howard Wasserman on August 10, 2018 at 02:53 PM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Tuesday, July 17, 2018

Alternative Facts from Court, the Anti-Vaccine Edition

In a very real sense, the anti-vaccine movement lives in an alternative reality. It’s a dark, frightening realitywhere there is a global conspiracy run by pharmaceutical companies that, apparently, controls most of the doctors, scientists, and health officials in the world, and every government. Where vaccines are poison and diseases are benign, and all that is bad in the world – or most of it – can be blamed on vaccines.

 

I want to use a recent FOIA stipulation to demonstrate how this is formed, how anti-vaccine  groups interpret reality to make it more sinister. This might also give some insight into the phenomenon of alternative facts more generally.

 

On July 9, 2018 a stipulation resolving a Freedom of Information Act (FOIA) case between an anti-vaccine group, Informed Consent Action Network (ICAN), and the Department of Health and Human Services (DHHS), was filed. ICAN requested from HHS “reports transmitted to the Committee on Energy and Commerce of the House of Representatives and the Committee on Labor and Human Resources of the Senate by the Secretary of HHS Pursuant to 42 U.S.C.  §300aa-27.” That section requires DHHS to work to improve vaccine safety and report on its efforts to the two congressional committees every two years.

 

The stipulation included DHHS’ statement that it conducted thorough searches and did not find any such documents. The natural implication is that such reports were never filed. Why they were never filed, I don’t know. It certainly may be a failure on the part of the DHHS – and on the part of the Congressional Committees that did not follow up – and the natural result would be for DHHS to start filing such reports. There may be more to it.

 

The interesting story is how the stipulation was described on anti-vaccine pages. To protect individual privacy and not shame private people, I will refer only to public pages and leading figures.

 

In a discussion of the case on an anti-vaccine web broadcast, anti-vaccine activist Robert F. Kennedy Jr. – who was the lawyer signing the stipulation for ICAN - said: “what HHS has admitted here is that there is no scrutiny; there is no vigilance.And of course, the gravamen of their strategy has been to make sure that vaccines are never safety tested.” Kennedy did not quite say there are no studies, but he suggested there is no monitoring of safety.

 

The show includes a caption that says: Government concedes: There are no safety studies on vaccines...”

 

Del Bigtree No Safety Studies

 

 

In a discussion on a popular anti-vaccine page, the same heading was used: “HHS concedes no afety studies on vaccines.”

 

Many other anti-vaccine pages followed through. To give one example, the page Oregonians for Vaccine Choice said:

“[DHHS] DID NOT DO ONE SINGLE SAFETY STUDY IN THE LAST 30 YEARS OR AT LEAST THEY STATE THEY HAVE NO RECORD OF ANYTHING!!”

 

To be fair, a few sites have tried to pull back and be more accurate – The World Mercury Project, an anti-vaccine outfit created by, among others, Robert F. Kennedy – explained that this is about not filing reports. Though it did it in a post connecting to the inaccurate statements by Mr. Kennedy and the inaccurate caption I described above, so the nuance may be lost. Similarly, Oklahomans for Vaccine Choice, after initially saying HHS did not do one safety study, corrected it to saying they did not file reports. But the general message was “no safety studies!”

 

That is, of course, not what the FOIA request was about at all. It is also incorrect.

 

The CDC provides a useful central page with links to various collections of vaccines safety studies by itself and other parts of HHS. While not part of HHS, at HHS’s request the National Academy of Medicine – formerly the Institute of Medicine – created several reports on vaccines safety, reviewing abundant literature and synthesizing it. In 2014, the HHS commissioned another large report on vaccines safety by another group. There are several federal committees overseeing vaccines safety, and four monitoring systems looking at vaccines safety, all connected to HHS.

 

Saying HHS did not do safety studies or did not work on vaccines safety for 30 years is simply untrue, or, in today’s parlance, alternative facts. But this is how this simple, straightforward court decision has been read on anti-vaccine sites, and that is the message being distributed. Again, I do not want to shame or target individuals, including leaders of the anti-vaccine movement, so have limited this to public pages.

 

This is how fake news are born, even in the face of a simple three-page court document. It is likely, at least, to widen the gap between firm believers in the anti-vaccine reality and the rest of society that realizes this is untrue, creating even more mistrust. Whether it will go beyond that is unclear. It is relatively easily disproven, so it might actually help demonstrate how unreliable anti-vaccine claims generally are. We will have to see. 

Posted by Dorit Reiss on July 17, 2018 at 09:13 AM in Culture, Current Affairs, Law and Politics | Permalink | Comments (4)

Friday, July 13, 2018

A Professor's Modest Dream

My undergraduate alma mater, the University of Michigan, holds an annual summer event up here in northern Michigan, generally highlighting an achievement of somebody affiliated with the university.  This year it was an interview with Hendrik Meijer, the CEO of the Meijer super-grocery store chain, but also something of a scholar, who just published a biography of Senator Arthur Vandenberg. (Michael Barr, long-time Michigan law professor and recently appointed dean of the Gerald R. Ford School of Public Policy, ably conducted the interview.)

Image.1531193713927But I digress slightly.  Absolutely my favorite course at Michigan was the fall 1973 edition of "Introduction to Film," taught by Professor Frank Beaver (left), only three years out from having received his Ph.D.  I remember that course chapter and verse, from conceptual montage to the shocking "gun" scene in Edwin S. Porter's The Great Train Robbery to the assessment of that neat new film, American Graffiti, to Professor Beaver's admiration of Haskell Wechsler's Medium Cool. (I wrote my paper for the course on Deliverance.)

A couple years ago, I recognized Professor Beaver at one of these events, introduced myself, and began spouting back to him chunks of lectures he had delivered more than forty years before.  Since then we catch up annually, as we did last night, on new movies.  Professor Beaver still writes on film for Michigan Today, the alumni publication.

I think I took his course in his fourth year of teaching.  I "accosted" him roughly forty years later.  Because of my late entry into academia, the equivalent for me would be a former student approaching me in roughly 2051, when I will be a spry 97 years old.  I can only hope.

Posted by Jeff Lipshaw on July 13, 2018 at 08:53 AM in Books, Culture, Film, Lipshaw | Permalink | Comments (0)

Friday, July 06, 2018

Compliance & Diversity

All of the Supreme Court speculation circulating this week took my mind to places that I suppose are pretty atypical.  When I was a law student, I really wanted to clerk, but the University of Chicago had guidelines requiring each student to limit their clerkship applications to fifty judges or less.  As a result, I poured over my list of judges meticulously and asked many people advice about who should be on the list.  One of the people who looked at my list said quite bluntly – “Most black clerks are hired by black judges; keep all of the black, appellate court judges on your list.”  So I basically did.  As it turns out, I had two judges (a white woman and a black man) call me for interviews, and I did ultimately clerk for a judge who is amazing, kind, smart, organized, generous, and also black.  When I went for the circuit-wide clerkship training, I did note that the only two black people in attendance were one of my co-clerks and me.  And a black classmate emailed me shortly after his circuit-wide clerkship training to comment on the fact that he was the only black clerk in attendance. 

Thus, while all the interests groups are lining up to make their pitches about what the important qualities are in a Supreme Court Justice, my mind has turned to the fact that the small number of black appellate court clerks leads to a paucity of black, Supreme Court clerks (how many black, appellate feeder judges are there?), which narrows the field of those persons of color who might one day be on one of these lists.  Clearly, I digress and in doing so have skipped some pertinent intellectual and factual steps in the interest of writing a short-ish post.

My digression, nonetheless, has some relevance in that it may help to connect my interest in diversity to my interest in compliance.  I think sometimes people read my work and feel like the articles I have written on diversity in the profession are unrelated to my compliance work.  They are not.  Individuals attempting to create diverse organizational cultures and those attempting to create compliant organizational cultures and those attempting to create ethical organizational cultures are all addressing the same basic question. One could state the question in a few ways, but here is one:  How does one create a culture that promotes a particular set of values—diversity, compliance, ethics—and actually get buy-in of the organizational members in an effort to achieve the culture one has set out to create?  The question has no easy or simple answer.  Instead, the question requires step by step consideration of the external and internal forces that contribute to the creation of organizational cultures.  When one considers the questions as related, it opens up a number of scholarly approaches.  For instance, in a forthcoming article discussing antidiscrimination efforts within the bar, I rely on literature about the damaging effects created when an employee feels like s/he must remain silent.  I could just as easily use that same literature when talking about sexual harassment at Fox News or internal whistleblowers at Wells Fargo. 

There are certainly very good reasons to think about diversity, compliance, and ethics on their own, but there are upsides to approaching the concepts as if they are one, although perhaps not in the same law review article.  Happy weekend! 

Posted by Veronica Root on July 6, 2018 at 07:58 AM in Corporate, Culture, Judicial Process, Workplace Law | Permalink | Comments (1)

Monday, March 12, 2018

Write Drunk, Edit Sober

That's Hemingway and its the quote I've had on my office door for the past eight years. I don't drink, but I do write drunk. And I edit both drunk and sober - until something great floats to the surface (which is tricky because, well, shit floats, gold sinks, as we say in Hebrew). This week I am speaking to my students in my two writing seminars about good article writing. They've all selected promising research topics and now they need to turn in first drafts (also per Hemingway: all first drafts are shitty). In preparation for what we'll be talking about, in addition to assigning them as always Eugene Volokh's Legal Academic Writing as a reference book, I pulled up some note files of mine which I had prepared for past years. I found a list of 22 pieces of advice from writers I admire which I gave the students as handouts - and which I might print out again this week. I thought I'd post them here as well. My favorites are #3, #5, #8, #9, #13, and #21. And all this advice does generally translate to legal writing, including #22. Of course, #2 makes me laugh because law review writing is especially prone. 

"Write drunk; edit sober." -Ernest Hemingway [1920x1080]

  1. The first draft of everything is shit. -Ernest Hemingway
  2. Never use jargon words like reconceptualize, demassification, attitudinally, judgmentally. They are hallmarks of a pretentious ass. -David Ogilvy
3. Notice how many of the Olympic athletes effusively thanked their mothers for their success? “She drove me to my practice at four in the morning,” etc. Writing is not figure skating or skiing. Your mother will not make you a writer. My advice to any young person who wants to write is: leave home. -Paul Theroux

4.I would advise anyone who aspires to a writing career that before developing his talent he would be wise to develop a thick hide. — Harper Lee

5. You can’t wait for inspiration. You have to go after it with a club. ― Jack London

6. Writing a book is a horrible, exhausting struggle, like a long bout with some painful illness. One would never undertake such a thing if one were not driven on by some demon whom one can neither resist nor understand. — George Orwell

7.There are three rules for writing a novel. Unfortunately, no one knows what they are. ― W. Somerset Maugham

8. If you don’t have time to read, you don’t have the time — or the tools — to write. Simple as that. – Stephen King

9. Remember: when people tell you something’s wrong or doesn’t work for them, they are almost always right. When they tell you exactly what they think is wrong and how to fix it, they are almost always wrong. – Neil Gaiman

10. Imagine that you are dying. If you had a terminal disease would you finish this book? Why not? The thing that annoys this 10-weeks-to-live self is the thing that is wrong with the book. So change it. Stop arguing with yourself. Change it. See? Easy. And no one had to die. – Anne Enright

11. If writing seems hard, it’s because it is hard. It’s one of the hardest things people do. – William Zinsser

12. Here is a lesson in creative writing. First rule: Do not use semicolons. They are transvestite hermaphrodites representing absolutely nothing. All they do is show you’ve been to college. – Kurt Vonnegut

13. Prose is architecture, not interior decoration. – Ernest Hemingway

14. Get through a draft as quickly as possible. Hard to know the shape of the thing until you have a draft.  The old writer’s rule applies: Have the courage to write badly. – Joshua Wolf Shenk

15. Substitute ‘damn’ every time you’re inclined to write ‘very;’ your editor will delete it and the writing will be just as it should be. – Mark Twain

16. Start telling the stories that only you can tell, because there’ll always be better writers than you and there’ll always be smarter writers than you. There will always be people who are much better at doing this or doing that — but you are the only you. ― Neil Gaiman

17. Consistency is the last refuge of the unimaginative. – Oscar Wilde

18. The difference between the right word and the almost right word is the difference between lightning and a lightning bug. -- Mark Twain

19. “Read, read, read. Read everything – trash, classics, good and bad, and see how they do it. Just like a carpenter who works as an apprentice and studies the master. Read! You'll absorb it. Then write. If it's good, you'll find out. If it's not, throw it out of the window.” - William Faulkner

20. If you have any young friends who aspire to become writers, the second greatest favor you can do them is to present them with copies of The Elements of Style. The first greatest, of course, is to shoot them now, while they’re happy. – Dorothy Parker

21. "It's a luxury being a writer, because all you ever think about is life." -Amy Tanh

22. Don’t take anyone’s writing advice too seriously. – Lev Grossman

Posted by Orly Lobel on March 12, 2018 at 01:11 AM in Books, Culture, Life of Law Schools, Orly Lobel | Permalink | Comments (12)

Thursday, January 04, 2018

(Guest Post): Prosecute the First Order for War Crimes

The following is by Jill Goldenziel (Marine Corps University and other affiliations), former GuestPrawf and friend of Dan. I have not see "Last Jedi," so I could not have written this if I had wanted to.

The Jedi order is gone. The Resistance has been decimated. Given their military weakness, the Resistance needs innovative tools to fight and win against the brutal, genocidal First Order. Skilled use of Lawfare, law as a weapon of war, can bolster the Resistance and bring the First Order to its knees. The Resistance must call for the Interplanetary Criminal Court (ICC) to issue immediate arrest warrants for Supreme Leader Kylo Ren and General Armitage Hux for their heinous war crimes against the creatures of the galaxy.

While the Geneva Conventions did not exist a long time ago, in a galaxy far, far away, both parties are bound by customary international law (CIL). CIL developed according to the practices of respected planets over the centuries, most notably the Old Republic. It is unclear whether the current conflict qualifies as an Interplanetary Armed Conflict (IAC) or a Non-Interplanetary Armed Conflict (NIAC). The First Order rose from the ashes of the Empire, and the Resistance fights to defend the Republic, although it is never identified as the Republic’s military. However, whether this particular conflict involves state actors or counterinsurgents, the same principles of the Law of Armed Conflict apply—and the First Order has flagrantly violated them.

Whether state or non-state actors, the First Order and the Resistance both qualify as combatants under customary international law, and are therefore entitled to combatant’s privilege and protections as prisoners of war (POWs). Both groups wear distinctive insignia recognizable from a distance and known throughout the galaxy, even to small children. Both parties have a continuous combat function and carry arms openly. Both are organized groups that participate in a command structure responsible for its actions toward belligerents. This holds true even given confusion within their commands. The First Order’s Stormtroopers report alternately to General Hux and Supreme Leader Kylo Ren, depending on whose voice sounds eviler at the time. The command structure of the Resistance makes no apparent sense. For example, a vice-admiral reports to a general, and few others seem to hold a rank. Unlike the First Order, however, the Resistance appears to follow customary Laws of Armed Conflict. Indeed, the Resistance is so concerned with minimizing casualties that they recently sent a single ship to distract the entire First Order space fleet, and a single man with a laser sword to confront the entire First Order ground force. Somehow, this crazy plan ensured that no civilian lives were lost in the Battle of Crait.

The First Order has repeatedly committed genocide against the creatures of the Republic. Starkiller Base destroyed the entire Republic Capital Star System, extinguishing entire humanoid and alien species in the process. The First Order’s wanton destruction also violated the four core principles of the Law of Armed Conflict: Necessity, Proportionality, Distinction and Humanity. Its actions were not necessary to achieve a lawful military objective. They were excessive in proportion to the concrete and direct military advantage gained, showed complete disregard for civilian life, and caused tremendous human suffering. The First Order again attempted genocide when it aimed to destroy the entire planet of D’Qar to defeat the Resistance. The First Order must be brought to justice for these unspeakable war crimes.

The First Order also committed egregious offenses against POWs. After then-Special Operator Kylo Ren captured the target known simply as “Rey,” he strapped her down and tortured her using mind tricks. When Captain Phasma captured Rose Tico and Finn, she was in complete control of the Stormtroopers who announced their intention to “make this hurt” and began to torture the prisoners with electric forks. Torture of prisoners is a flagrant violation of the customary Law of Armed Conflict that warrants immediate prosecution.  

Finally, the First Order used disproportionate force on Luke Skywalker. Supreme Leader Kylo Ren ordered every one of the First Order’s weapons to be fired on Skywalker—force that was clearly disproportionate to the desired military objective of killing a single human target. Even General Hux was appalled by the amount of force applied. After Skywalker refused to use his lightsaber and effectively surrendered, Ren struck him down, in violation of customary Law of Armed Conflict.  Although the target was actually an astral projection, Ren’s actions undeniably contributed to Skywalker’s untimely death, and must be punished by law.

Critics will argue that prosecuting Supreme Leader Kylo Ren and General Hux could put the ICC in immense danger of destruction by the First Order. However, the ICC’s failure to prosecute First Order leaders would be suicide. The ICC is facing a crisis of legitimacy, with several planets recently having withdrawn from the Coruscant Statute that created it. If the ICC fails to act in the face of genocide and obvious war crimes, the entire galaxy will lose faith in the institution, destroying its legitimacy forever. Moreover, at a time of little hope for the Resistance, the ICC’s action is vital for keeping the movement alive. ICC prosecution of the First Order would be a clarion call of “Never Again” that would rally allies to join the Resistance. “Never Again” is even easier to pronounce than “Luke Skywalker,” “and is a cry that even small children can understand.

Posted by Howard Wasserman on January 4, 2018 at 11:08 AM in Culture | Permalink | Comments (3)

Thursday, December 07, 2017

Casablanca and the greatest heckler's veto in cinema history (Updated Twice)

(New Update: The film turns 75 this year and the New York Post tells the backstory of the movie's travails and unexpected success).

Steve Lubet at Faculty Lounge links to a 2015 essay calling the "Le Marseillaise" scene from Casablana the greatest in movie history and the turning point in the film.

 

But this scene involves what some now label as a heckler's veto. Major Strasser and the Nazis are Milo Yiannopoulos or Ann Coulter or Charles Murray; everyone else in the bar are angry campus liberals or SJWs; and the latter spoke so loudly over the former as to drown-out its speech, make it impossible to be heard, and cause them to stop speaking. If, as some say, this is a heckler's veto, the government could have stopped the house band from playing or, as happened in the film, shut down the forum (although only after collecting its winnings). And so we lose the turning-point moment that galvanized what everyone regards as the "good guys" in the story.

Mark Tushnet and Erwin Chemerinsky/Howard Gillman have argued that it may depend on the nature of the space. In an open space, the Nazis did not have a superseding right of access compared with the supporters of France, so they did not have a superseding right to speak and be heard. But others insist that government can stop one speaker from being so loud as to make it impossible for another to be heard--that this is disruption, not counter-speech. Perhaps the Allies in the bar should have allowed the Nazis to finish their song and then sung their own. Or they should have gone to another space. Or they should have listened to the ideas in the Nazi song and given them a chance to persuade.

I do not have the answer to this problem and I am still turning it over for a future article. But I like this scene because it illustrates the complexity of the balance.

Update: Lubet offers an interesting take in response to my original post. He hits one point that I have heard from several people on these issues--the Allies were not singing to drown out their rivals, but to inspire the audience with their own message and their is a difference between presenting your message, loudly, and presenting a message with the intent of drowning out. I do not think intent matters, because it is difficult to separate--inspiring the Allies in the bar required that their voices down out those of the Nazi--even if the  Nazis do not stop singing, they could not be heard, which was the point.

Posted by Howard Wasserman on December 7, 2017 at 05:12 PM in Culture, First Amendment, Howard Wasserman | Permalink | Comments (24)

Wednesday, November 22, 2017

Things I think about other people's thoughts

Kevin Drum is absolutely correct that Roy Moore and Donald Trump survive sexual-misconduct allegations while Al Franken is going down. And the difference is that Franken owned it and apologized, while Moore and Trump dig-in and deny. Even Drum's counter-example, Harvey Weinstein, is explicable along the same lines--Weinstein was a prominent Democratic donor and supporter, so the left disowns (because he is an asshole predator) and the right disowns (because he is a Democrat). But Bill O'Reilly received a massive buyout and is still influential in Republican circles.

Neil Buchanan is absolutely correct about how modern eyes view old movies, including Dead Men Don't Wear Plaid and Pretty in Pink. Of course, many John Hughes' movies do not hold-up well.  Sixteen Candles is obviously problematic for Long Duck Dong. But the sexual politics are abhorent. The male hero (Jake) both announces that he could sexually assault his passed-out-drunk girlfriend, is encouraged to do so by the other male lead (Geek), then sets the Geek up to do it himself. And I have long thought about The Breakfast Club, in which a one-day detention was imposed for bringing a gun to school (brain) and for bullying and assaulting another student on campus (jock)--both of which would merit suspension, if not expulsion, in these zero-tolerance times. And Bender (the burnout) threatens to rape and later sexually assaults Claire (the princess) when he is hiding under the table. All of this is presented as an elaborate courting ritual.

Posted by Howard Wasserman on November 22, 2017 at 11:27 AM in Culture, Howard Wasserman | Permalink | Comments (19)

Tuesday, November 14, 2017

Bernie Bernstein

I guess stupid acts of ignorant dog-whistle anti-Semitism grounded on stereotypes are preferable to Nazis marching with torches and pitchforks. My favorite comment came from Ariel Edwards-Levy, who reminded us that Bernie Bernstein's reporting partner for the Washington Post must be Woody Woodward. This story includes the audio of the robocall, which features a fake New York accent turned up to 11, although with a momentary "remaahks" that sounded more Boston than New York.

Posted by Howard Wasserman on November 14, 2017 at 08:38 PM in Culture, Howard Wasserman | Permalink | Comments (1)

Tuesday, August 22, 2017

"Revisionist History," power, and Alabama v. Tom Robinson

Malcolm Gladwell has a podcast called Revisionist History, which finished its second 10-episode season. Four of the episodes in Season 2 dealt with civil rights and the Civil Rights Movement, including episodes 7 & 8, which are about Donald Hollowell, an African-American attorney in Georgia, and Vernon Jordan, who assisted him. The podcast is great (unless you are predisposed against Malcolm Gladwell, then it likely confirms what you do not like about him) and these two stories were highlights.

Episode 7 focuses on the story of Nathaniel Johnson, an African-American man executed for raping a white woman (with whom he claimed to be having an affair) in 1959 Georgia. Gladwell compares this case to Tom Robinson in To Kill a Mockingbird, where a white woman's romantic interest in an African-American was turned into rape. Gladwell focuses on some bits from the book not included in the movie: Robinson's testimony that Mayella Ewell said she had never kissed a man before and that what her father did to her didn't count and that Bob Ewell's first words when he saw them through the window were "you dirty whore".

Gladwell's theme in these two episodes is power. And he argues that, with that bit of testimony, Atticus' defense became clear: To ask the jury not to be racist against Tom but to be sexist against Mayella (a different type of powerless person), who is portrayed as (Gladwell's words) a participant in incest. (So Atticus was a sexist, on top of the reveal in Go Set A Watchman that Atticus was, even in his time, a racist--it's been a rough couple of years).

But I thought this missed the mark in three respects.

First, even as an 11-year-old, I did not read Mayella as a participant in incest but as a victim of sexual abuse at the hands of her father. I also read him as forcing her to testify untruthfully. Perhaps that interpretation is unreasonably favorable to Mayella or against her father. And perhaps an all-male jury in 1930s Alabama would have seen it the same way as Gladwell. But I read it as Atticus trying to put Bob on trial, not Mayella. Consider the evidence (more of a focus in the movie) designed to show that Bob beat Mayella, whereas Tom (who did not have use of one of his arms) could not have done so.

Second, even if Bob was Atticus' real alternate target, Gladwell missed another power dynamic involving class and education. The Ewell's were "poor white trash" within that society. All the evidence that Atticus presented against Bob Ewell was designed to play to what the jury, the judge, the prosecutor, and the sheriff already believed about him.

Third, it shows race as the overwhelming power dynamic. No matter how badly the jury and every other institutional player disliked and disbelieved Bob Ewell, he had more credibility than an African-American. At the end, everyone was willing to bury how Ewell was killed because he had it coming, but not before allowing an African-American to be sacrificed for Bob's misconduct.

Posted by Howard Wasserman on August 22, 2017 at 12:00 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (0)

Saturday, June 17, 2017

Ideological Diversity and Party Affiliation

Like many law professors that I know, I have long sought to advance ideological diversity in law faculty hiring.  I think that law schools flourish when academics come at problems from different vantage points.  Law professors improve our thinking and our work product when we have to contend with smart people who disagree with us.

In discussions about ideological diversity, I sometimes see people equate ideological diversity with political party affiliation.  Law schools cannot achieve ideological diversity, so the argument goes, unless there are a certain number of law professors who are members of each major political party.  And given that most (though certainly not all) law schools have more Democratic than Republican professors, the only way to achieve ideological diversity is to hire more Republican faculty.

I do not think that party affiliation is a useful metric for ideological diversity.  In order to explain why, let me first clarify what I mean when I use the term “ideological diversity.”  I use that term to mean people who approach legal problems differently.  Ideally, colleagues should use different methodologies, they should not always think that the same arguments are persuasive, and they should not necessarily think that the same outcomes are desirable.  In such environments, I think faculty are most likely to question their own assumptions, push themselves to consider different points of view, and as a result produce better scholarship.  Party affiliation is, at best, an imperfect proxy for these traits.

For example, I think it is a good idea for each faculty to have at least one faculty member who takes the law and economics methodology seriously.  And conventional wisdom tells us that L&E folks tend to be politically conservative.  But not all Republicans are L&E devotees, and not all L&E folks are Republican.  And while ensuring that a faculty has an L&E faculty member is (in my opinion) important for ideological diversity, if the L&E professor that a law school hires doesn’t self-identify as a Republican or donate to Republican candidates, then the school won’t get “credit” for increasing ideological diversity.

Or let’s take a different example.  Imagine that a law school faculty takes seriously the need to increase ideological diversity, and it decides to hire a criminal law professor who self-identifies as Republican and who donates only to Republican candidates.  This hypothetical Republican criminal law professor is a devout Catholic who is morally opposed to the death penalty, and she spends her career writing about how capital punishment cannot be morally justified.  Given the state of criminal law scholarship today, that hypothetical law professor would not increase the ideological diversity of the field, but rather would add to an already-overwhelming imbalance.  And yet the school would get “credit” for increasing ideological diversity.

I also think that it is important to distinguish someone’s personal policy preferences from their legal views.  I can, for example, think that juvenile criminal defendants should be treated differently than adult defendants as a matter of policy. I can donate money to political candidates who agree with that policy view.  And at the same time, I can think that there is no credible constitutional argument that juveniles must be treated differently, and I can criticize the Supreme Court decisions that say otherwise.  For ideological diversity purposes, the second set of views ought to matter, not the first.  It is my views on law that form the backbone of my discussions with colleagues and my scholarship.

Now, you might say that ideological diversity matters for things other than legal scholarship.  Some have said that they think ideological diversity matters so that conservative students feel as though they have someone that they can talk to who shares their political views or to help them secure jobs with conservative groups or politicians.  I’m highly skeptical of these arguments.  The “feeling comfortable” argument assumes not only that our students know our party affiliations, but also that we have created an environment that is only open and welcoming to those who share our politics.  I know that not all faculty agree with me that it is inappropriate to share your political views with students.  But I hope that we can all agree that it is incumbent on us to make sure that students don’t feel as though they can’t talk to us because of our political views.  As for the jobs point, again I think that party affiliation is a poor proxy for these sorts of professional connections.  Some conservatives don’t have any good job connections for students, and some liberals have great Republican connections.  So if it is these connections that we care about for hiring, then that should be the criteria, rather than party affiliation. (And we should, in my view, all try to cultivate relationships with people on both sides of the political spectrum so that we can help our students make these connections.)

Some might also say that something is lost at faculty meetings or in personal interactions among faculty if there are no faculty that take the other side of controversial issues.  If all faculty members are Democrats, for example, then the faculty might adopt an affirmative action policy without considering arguments on the other side.  Even assuming that affirmative action breaks down along party lines (in my experience, it doesn’t), the idea that a faculty can’t or won’t consider views that conflict with their own policy preferences strikes me as wrong.  To the contrary, I find many faculty members eager to play devil’s advocate on faculty governance issues at faculty meetings.  Being a contrarian skeptic is one trait that crosses party lines on law faculties.

Not only do I think that party affiliation is a poor proxy for ideological diversity, but I also think that there are serious downsides in equating the two.  When we say that we can have ideological diversity only by hiring people who belong to different political parties, then we are implicitly endorsing the view that law and politics are equivalent.  Law is not politics.  When law and politics are seen as indistinguishable, then the legal arguments of law professors can be dismissed as nothing more than fig leaves for preferred political outcomes.  I’ve seen far too much of that recently, and I think law professors should do all that they can to resist that view.

Different people are obviously free to use terms in whatever way that they see fit.  But I hope that I’ve convinced at least some of you that ideological diversity should not be defined in terms of party affiliation.

Posted by Carissa Byrne Hessick on June 17, 2017 at 04:11 PM in Carissa Byrne Hessick, Culture, Law and Politics, Life of Law Schools | Permalink | Comments (12)

Saturday, June 10, 2017

Ranking Beatles songs (a non-law post)

In honor of the 50th anniversary of Sgt. Pepper's come two lists ranking all the Beatles songs: From Bill Wyman in New York Magazine and from Charles Curtis in USA Today. Both put A Day in the Life at the top. Otherwise, they are all over the map in interesting ways (that may say more about making lists than about the Beatles).

After the jump, I list each author's Top 20; in parens is where the other author placed that song. Draw your own conclusions and decide which list you prefer.

Wyman:

20) Hey Jude (4)

19) Lovely Rita (78)

18) Ticket to Ride (19)

17) Nowhere Man (36)

16) Here Comes the Sun (9)

15) Let It Be (10)

14) Money (That's What I Want) (unranked)

13) Something (3)

12) Tomorrow Never Knows (7)

11) She Said, She Said (44)

10) Rain (75)

9) Eleanor Rigby (12)

8) Norwegian Wood (11)

7) Here, There, and Everywhere (54)

6) Dear Prudence (50)

5) Please Please Me (28)

4) She Loves You (60)

3) Penny Lane (23)

2) Strawberry Fields Forever (22)

1) A Day in the Life (1)

 

Curtis:

20) The End (mid-20s. Wyman ranks Abbey Road medley at 22-29, songs listed in order)

19) Ticket to Ride (18)

18) I Want to Hold Your Hand (49)

17) I Saw Her Standing There (21)

16) Blackbird (31)

15) A Hard Day's Night (41)

14) Can’t Buy Me Love (55)

13) While My Guitar Gently Weeps (32)

12) Eleanor Rigby (9)

11) Norwegian Wood (8)

10) Let It Be (15)

9) Here Comes the Sun (16)

8) Help! (36)

7) Tomorrow  Never Knows(12)

6) Yesterday (39)

5) Revolution (56)

4) Hey, Jude (20)

3) Something (13)

2) In My Life (42)

1) A Day in the Life (1)

They agree on nine songs, but there is huge variance within that agreement, other than Day in the Life. No other song makes both Top-10s, although Rigby and Norwegian are close (9/8 for Wyman, justt outside it for Curtis at 12/11). Four of Wyman's Top-5 did not make Curtis' Top-20, while three of Curtis's Top-5 did not make Wyman's Top-20 (Hey Jude, which Wyman had at 20).

And just to show that they do not agree on the lower end, here is each one's bottom five:

Wyman:

Good Day Sunshine

Dig It

Little Child

Tell Me What You See

Dig A Pony

Curtis:

You Know My Name (Look Up the Number)

Good Night

Flying

Blue Jay Way

Octopus's Garden

For broad disagreement, Wyman had She's Leaving Home at 204 (10th-worst); Curtis had it at 61.

One other bit of Beatles trivia: The most recent Hit Parade Podcast explores the story of the week in April 1964 when the Beatles held the entire Billboard Top-5, a tale of how many people in the music industry whiffed on the Beatles. Worth a listen.

Okay, now back to SCOTUS and non-impeachment.

Posted by Howard Wasserman on June 10, 2017 at 06:41 AM in Culture, Howard Wasserman | Permalink | Comments (6)

Wednesday, May 10, 2017

Comments on the attorney disciplinary hearing on Better Call Saul

Better Call Saul moved to Jimmy's bar disciplinary proceeding this week. Spoilers and discussion after the jump.

It played as a standard courtroom drama (which I generally do not like)--lots of testimony and argument masquerading as questions from the attorney, lots of long speeches and monologues by witnesses discussing irrelevant and inadmissible stuff, an unsworn potential witness in the gallery offering "testimony." In the end, Jimmy induced Chuck into showing that his allergy to electricity is psychosomatic (in part by planting a cell-phone batter in his suit jacket, courtesy of light-fingered Huell, who becomes Saul Goodman's fixer) and that Chuck's efforts against Jimmy are part of a lifetime of fraternal resentment and a desire to end Jimmy's legal career. The episode ended with Chuck sitting on the witness stand, having come undone; we must wait until next week to see what happens to either Jimmy or Chuck at the hands of the Bar.

The charges read at the beginning of the hearing were (they got the Code provisions right): 1) § 16-102(D): Engaging in conduct the lawyer knows to be criminal (breaking into the house); 2) § 16-804(b): Committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer (assaulting another lawyer, Chuck, in his home); 3) § 16-304(a): Unlawfully altering, destroying, or concealing a document or other material having potential evidentiary value (the tape recording as evidence in an ongoing legal case).

So several questions and comments.

First, two of the provisions do not seem to apply to this situation. Section 16-304 is titled "Fairness to Opposing Party and Counsel" and sits within a series of provisions under the heading "Advocate." The whole portion of the code speaks to attorneys' obligations and prohibitions when acting as lawyers in any judicial or quasi-judicial proceeding before a tribunal. Section 16-304 is about an attorney's discovery, pre-trial, and trial obligations to the other side in a proceeding; sub-section (a) prohibits an attorney from destroying, altering, or obstructing the opposing party's access to evidence--implicitly, evidenceis in the lawyer's (or her client's) control and that the other side may want or need in the course of formal proceedings.  Jimmy and Chuck were not opposing counsel in any ongoing proceeding before a tribunal and Jimmy did not destroy evidence in his control to keep Chuck, as opposing counsel, from having access to it. And that language does not seem to contemplate one lawyer breaking into another's house to destroy evidence the other side has in its control, especially outside formal adversary and representative contexts.

Similarly, § 16-102 is about the  the attorney-client relationship and the scope of representation, prohibiting criminal conduct within that relationship (as well as counseling or assisting a client in criminal conduct). Again, not this--whatever criminal conduct Jimmy engaged in had nothing to do with his representation of anyone.

That leaves § 16-804, which defines prohibited misconduct in a section on maintaining the integrity of the profession. This is what should be in play here--regulations that govern someone not when acting as a lawyer or in his representative relationship, but as a person with a law degree whose extra-curricular activities reflect badly on the profession.  And this section is broad enough to capture Jimmy's three criminal acts--breaking and entering, assault, and destruction of property. It is only for dramatic purposes (more below) that the show had to go beyond this provision. (Not so different than in Season One, when a legal-research request included pulling every case on every provisions of RICO).

Second, I do not understand why the tape was admissible and played during the hearing. Jimmy was not charged with tampering with the bank documents, which is what he confessed to on the tape. And the whole premise of Chuck's elaborate plan to get Jimmy to break into the house and destroy the tape, rather than using the tape as evidence of misconduct in altering the documents, was that the tape was not admissible.

So why did the tape come in? The theory, it appears, was that it was necessary for the Bar to prove that the tape was evidence of misconduct to prove that Jimmy destroyed or intended to destroy something with potential evidentiary value. If the tape did not contain a confession of wrongdoing, it did not have potential evidentiary value, thus destroying it would not violate § 16-302(a). And that explains why Kim made what amounted to a 403 objection, arguing that the tape's probative value was substantially outweighed by the danger of unfair prejudice--the tape's relevance to show that the thing destroyed had evidentiary value is outweighed by the risk that the committee would use it to conclude that Jimmy committed the uncharged, but arguably more serious, act of altering legal documents.

But (putting aside whether § 16-302(a) reaches this sort of destruction of someone else's evidence outside of relations with opposing counsel) if the tape is not admissible in any proceeding, is it still "potential evidence" that can be destroyed? Can something be "potential" evidence if it is obviously not admissible in any formal proceeding? Is it enough that the respondent "reasonably believes" what he destroyed was potential evidence and that this is why he destroyed it? Does it matter that there is no ongoing proceeding in which the tape could have been submitted (even if it would have been admissible when that proceeding began)?

Third, Chuck's mental state should not matter. It does not change that Jimmy did everything the Bar accused him of doing--he did break into the house, he did destroy personal property (potential evidentiary value or otherwise), and he did assault Chuck. I am not sure why Chuck's mental illness, Chuck's resentment of Jimmy, or the overall state of their relationship matters. If those are Bar-punishable offenses (whether by disbarment or some lesser sanction), they remain so.

The theory must be something like this: If Chuck is mentally ill and/or convinced of Jimmy's wrongdoing, Jimmy was (out of love) telling his ill brother what he wanted to hear in a moment of crisis, rather than confessing to actual misconduct. Chuck was so distraught in his delusion that Jimmy altered the documents that Jimmy admitted doing so only to help Chuck feel better. And if not a confession to actual misconduct but a white lie to ease his brother's troubled mind, the tape is not evidence. But, again, why does it matter that Chuck is mentally ill?  Jimmy could make the "telling him what he wanted to hear" argument even if Chuck was healthy but having a crisis of confidence in his legal abilities or even if his physical condition were real--Jimmy might falsely confess to ease his brother's discomfort, regardless of the cause of that discomfort.

This point seems a victim of plot. To create a narrative of the brothers working elaborate cons on one another, the legal theory in the story also had to be convoluted.

Fourth, Jimmy should still be in trouble. He did break-and-enter and he did commit assault and those do reflect adversely on his fitness. And that does not change because Chuck is mentally ill or vengeful. Both actions could warrant bar discipline, although perhaps not disbarment. Of course, I am not convinced that destroying potential evidence (even if it is admissible) would warrant disbarment, the ultimate sanction that seems reserved for the most extreme and repeated conduct.

Posted by Howard Wasserman on May 10, 2017 at 09:31 AM in Culture, Howard Wasserman, Television | Permalink | Comments (6)

Wednesday, April 26, 2017

Better Call Saul does professional responsibility

If Season 1 of Better Call Saul brought us impact civil litigation, and Season 2 brought us competition for clients, Season 3 is poised to bring us the attorney-disciplinary process. As things stand entering Episode 3-04, Chuck baited Jimmy into first confessing to tampering with some documents, then to committing a series of crimes, including felony breaking-and-entering. And the plea deal the prosecution offers Jimmy (at Chuck's manipulative suggestion) is pretrial diversion in exchange for a confession, which will be presented to the State Ba. The premise is that confession of a felony would mean disbarment. So we seem to be gearing up to see Jimmy litigating an attorney-disciplinary proceeding in the coming weeks.

Is confession to a felony per se, unaccompanied by jail time, grounds for disbarment (as opposed to suspension or reprimand)? And if the goal is to get Jimmy disbarred, wouldn't tampering with documents in a legal proceeding be stronger grounds than criminal charges resulting from a dispute between two brothers?

I look forward to seeing it play out, although we know the outcome--Jimmy will continue practicing law, just not as Jimmy McGill.

Posted by Howard Wasserman on April 26, 2017 at 09:31 AM in Culture, Howard Wasserman, Television | Permalink | Comments (8)

Sunday, February 26, 2017

Bachelawyers

The Ringer looks at the many, many lawyers who have gone on the Bachelor/Bachelorette, including the upcoming bachelorette.

Posted by Howard Wasserman on February 26, 2017 at 09:31 AM in Culture, Howard Wasserman, Television | Permalink | Comments (1)

Thursday, November 17, 2016

Designated Survivor trailers

As promised, I have not gone back to Designated Survivor, despite it being a hit and haled by many critics. Last night, I caught the trailer for the upcoming episode, which confirmed that decision. Based on the snippets I saw, it appears the plot has turned to Kirkman seeking to nominate a Vice President (who, naturally, seems creepy and possibly linked to terrorists).

But this is constitutionally and legally wrong. An acting president under § 19 cannot appoint a Vice President under the 25th Amendment. For one thing, § 1 says "the President" shall nominate a Vice President. But an Acting President is not a President for this Amendment, which expressly distinguishes the two titles and the two offices. Textually, therefore, an Acting President cannot perform this function. For another, any appointed Vice President arguably would have a greater statutory claim to the presidency. A cabinet official acts as President until "a qualified and prior-entitled individual is able to act." That would seem to include a newly constitutionally nominated and confirmed Vice President. So by nominating and having a restored Congress confirm the creepy guy, Kirkman puts himself out of a job.

If I misunderstand the plot, please let me know. Or maybe Keifer Sutherland isn't supposed to be the star of this show after all.

Update: I just realized that acting-president-selects-VP is a common mistake when television depicts presidential succession--Veep did the same thing in its storyline of a plot to have a deadlocked House making the VP (selected by the Senate) Tom James acting president, then having James select Selina Meyer, the Presidential candidate, as his VP. The problem there was that the vice presidency was not vacant; James had been elected VP and become acting president when the president failed to qualify, but he never would have resigned the vice presidency (which is the source of his power to act as president until the disability is removed). But my reading of the 25th Amendment adds an additional layer to this show's mistake.

Posted by Howard Wasserman on November 17, 2016 at 05:42 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (3)

Tuesday, November 15, 2016

Three Neutral Principles for Civil Political Discourse

As the recent election illustrated, Americans disagree foundationally on many substantive issues. I’d like to think though that while there may be profound divisions on core political values, one thing we may be able to agree on is that it would be helpful to our democracy to improve our public discourse about these matters.

But what does it mean to have a truly democratic, and perhaps even productive, public discourse? This aim may seem like a lost cause after over a year of toxic mudslinging, disingenuous character assassination, and an increasing unwillingness to tolerate opposing viewpoints—all of which were amply in evidence from supporters on both sides of the aisle.

I was given some sense of hope on this issue, though, during an incident shortly before the election in which President Obama was interrupted by a Trump-supporting protester during Obama’s speech at a political rally. The crowd immediately began to boo in order to shout down the protester, but Obama pushed back in his defense, and his reasons for doing so, I’ll argue below, may be taken as three core, nonpartisan principles that we may all be able to agree on as baselines for engaging in civil political discourse.


I enumerate these three principles after the break.

“First of all, we live in a country that respects free speech.” That platitude is obvious. But what Obama said before this was more meaningful. His lead-in to this statement was: “You’ve got an older gentleman supporting his candidate. He’s not doing nothing. You don’t have to worry about him.”

“He’s not doing nothing.” The idea that others’ political expression does not harm us should be obvious too (it’s really just a version of the old schoolyard rhyme about sticks and stones not breaking bones), but in modern America, it’s not. Expressing a point of view that others disagree with is increasingly more likely to get you shouted down than heard out. It might even get you suspended on a liberal college campus or beat up at a conservative political rally.

The empirical point behind the informally phrased “He’s not doing nothing” is that the expression of others’ viewpoints are nothing more than what they are: Descriptive claims about another person’s state of mind. Another person’s claim about their own beliefs does not make those beliefs true, and it certainly does not compel us to agree with or even respond to it, or do us any harm.

This attitude is easier to describe than to adopt. Hearing someone express an opinion that you consider wrong or even profoundly harmful can be infuriating, as the level of public discourse in this past election season illustrates. But this is why adopting the “he’s not doing nothing” perspective is so important. The notion that others’ political opinions are nothing more than data indicating their viewpoint (rather than traumatizing or treasonous) not only facilitates core constitutional speech rights, it also enables a psychological freedom from others' expression that makes us free to form our own opinions as well.

Because like it or not, we're a nation that is committed to honoring free speech. This principle means something only if it requires tolerating respectfully even speech with which we profoundly disagree. And that toleration becomes much easier when we regard such speech as nothing more than information about someone else’s state of mind, rather than a threat or a harm being inflicted on us.

Second of all, it looks like maybe he might have served in our military and we got to respect that. Third of all, he was elderly and we got to respect our elders.” These next two points can be collapsed into one very simple principle: See others generously, including and even especially those with whom you disagree. When this Trump supporter popped up at the rally the other week, the attendees may well have dismissed him as a threatening, unstable crank bent on shouting down the President, possibly even for racist reasons—hence their desire to shout him down in turn.

But these kind of uncharitable assumptions are as baseless as they are unhelpful. Maybe the protester lost his job to outsourcing and was trying to express support for protectionist trade policies that he felt were critical to having a job and being able to support his family. Maybe he was unhappy with the direction of the country under a Democratic administration and expressing his passionate support for going in a different direction.

Seeing the protester in a generous light—an elderly man with possible military service—is a key step in having a decent conversation. Stereotyping political opponents makes them easy to demonize and dismiss them without engaging. Regarding a Trump supporter as a fanatic foaming at the mouth with irrational race-hate makes it easy to conclude that he does not merit respect or deserve to be heard out. But seeing that same person as an older gentleman who fought in Vietnam and cares deeply about the fate of the country yields a different result.

Much the same is true in reverse. An effete urbanite reflexively supporting Obama and Hillary out of a sense of liberal guilt amounts renders the speaker a mere stereotype that can be categorized and ignored with ease. But if you regard the same person as someone who is partaking in a tradition of dissent that dates to the Revolution in the interest of protecting values like racial and social justice that are embedded in our Constitution you’re more likely to take them and their ideas more seriously.

Regardless of political valence, the choice to see someone in a more generous light is thus a prerequisite for having the kind of decent discussion about issues that has a better chance of producing mutual understanding rather than descending into a pointless shouting match.

“Fourth of all, don’t boo. Vote.” At first glance, this one may appear a bit more complicated. “Don’t boo”? Isn’t cheering and booing what people do at rallies? It certainly is, and I don’t think the point is that people should sit quietly and clap only on cue when they are attending these kinds of events. Rather, I think the general idea expressed by this statement goes something like this: If you hear an opinion you disagree with, it’s better to create a positive dialogue that expresses your own point of view rather than spending your efforts attacking the speaker or trying to eliminate their speech from the public sphere.

Because while I said above (and still believe) that others’ opinions need not lead us to want to shut them out or shout them down, democracy also cannot function if people do nothing more than engage in calm observation when they hear ideas they think are wrong or dangerous. The problem is that increasingly the immediate reaction to opposing viewpoints is to personally direct animus or worse toward the speaker. The suggestion of “don’t boo, vote” is that there are more and less effective responses to speech you disagree with. Silencing speech tends to be ineffective and harmful. By contrast, using one’s disagreement as a call to democratic engagement in the interest of your own beliefs, whether that action is the simple act of voting or a deeper commitment to a movement or cause, is the more productive alternative.

Let me be clear about the limits of my claim: I have no idea if Obama was intentionally trying to propound core principles for engaging in civil political discourse in his brief interaction with the protester at the rally, but regardless I think at least a few of those principles (first, you are not harmed by others’ speech; second, see others in a generous light; third, add your voice rather than squelching others’) are immanent in his response.

Finally, I should emphasize that while I think these are constructive principles for civil political discourse, this does not mean they are easy to practice. On the contrary, we’re hardwired to do pretty much the opposite in all of these instances. Hearing opposing viewpoints tends to engage the fight-or-flight response, which helps explain both the rancor of this election and the growing polarization of our nation as people increasingly surround themselves with other like-minded people to avoid the discomfort of regularly facing disagreement.

But nothing truly valuable is easy. And restraining our immediate instincts—tolerating speech we dislike, accepting a President we didn’t vote for—is in many respects what defines democracy, and distinguishes it from its many inferior alternatives. It is this kind of restraint in the interest of the greater good of our country and the maintenance of our system of government that represents the “better angels of our nature” that Lincoln described in his first inaugural address, and that I hope may still prevail even after a dispiritingly ugly election season.

Posted by Dave_Fagundes on November 15, 2016 at 12:45 PM in Constitutional thoughts, Culture, Current Affairs, Deliberation and voices, Law and Politics | Permalink | Comments (1)

Wednesday, November 02, 2016

But first, let me take a ballot selfie!

Social Media has been playing a huge (or is that “yuuuge”?) role in Election 2016: Twitter attacks, Facebook op-eds, youtube campaign videos, and now, Instagram and Snapchat ballot selfies. And although both candidates and constituents have and continue to use social media to express themselves, state law in nearly half of the country criminalizes this last type of “Freedom of Speech” – namely, taking a photograph of your completed ballot and posting it online.

Purported Risk of "Vote Buying" Schemes

Prevention of vote buying is the cited rationale behind ballot selfie bans. The concept being that exhibiting a photograph of a completed ballot would be the only method to cash-in on an offer to sell one's vote.   I don't find this reasoning very compelling. It seems that if someone really wanted to take a photograph of a completed ballot for a secret reason such as an illegal vote-buying transaction, it would be ridiculously easy to do so, even with the “no photographing” rule on the books. Cameras aren’t the awkward and obvious contraptions that they were in prior generations. Cameras today can be part of your phone, your watch, and, who knows, maybe even disguised as a flash drive or pen (the possibilities are limitless).  Furthermore, if the vote being bought was cast as a mail-in ballot, as are absentee votes and basically all voting in the Pacific Northwest, then ballot selfies are even easier to do. The one thing that you would probably not do - if you were taking a photograph simply in order to cash in on an illegal vote-buying scheme - would be to post that incriminating evidence on social media.

Freedom of Speech (er... Freedom to Snap & Post)

Even if there is a remote possibility that such photographs could be part of nefarious vote-purchasing schemes, ballot selfie bans also raise serious free-speech issues, and upon examination, federal courts in two jurisdictions have already declared such bans unconstitutional. An Indiana law that banned ballot selfies was struck down last year when Federal Judge Sarah Evans Barker of the state's Southern District found that the law could not survive strict scrutiny because the state "entirely failed to identify any such problem in Indiana relating to or evidencing vote buying, voter fraud, voter coercion, involuntary ballot disclosures, or an existing threat to the integrity of the electoral process" (Indiana Civil Liberties Union v. Indiana Sec'y of State, 2015 WL 12030168).  On September 28, 2016, the 1st Circuit ruled that a similar ban in New Hampshire also impermissibly impinged on freedom of speech. The 1st Circuit went so far as to call ballot selfie bans “antithetical to democratic values.” (Rideout v. Gardner, 2016 WL 5403593).

On Friday (October 28, 2016), the 6th Circuit bucked the trend by reversing the district court-issued injunction that prevented the enforcement of Michigan’s ballot selfie ban with respect to the coming election. (Crookston v. Johnson, 2016 WL 6311623.) Judge Jeffrey Sutton, writing for a divided court, held that although the “interesting First Amendment issues” would eventually be adjudicated, for the purposes of November 8th, the Michigan ban on ballot selfies would stand.  The Michigan ballot selfie ban operates to disqualify a ballot that has been photographed. The plaintiff in this case, Joel Crookston, actually had his vote invalidated in 2012 after he snapped and posted a photo of his completed ballot. The majority of the 6th Circuit seemed insufficiently concerned that Crookston’s free speech would be impermissibly curtailed in the coming week by virtue of a ballot selfie ban. “A picture may be worth a thousand words,” wrote the court, “but social media users can (and do) post thousands of words about whom they vote for and why.” Although admitting that “lingering issues remain” with respect to the First Amendment effects of the selfie ban, the 6th Circuit concluded that “there will be time for due deliberation” after the election. 

Chief Judge Cole dissented, holding that because the penalty for taking and posting a ballot selfie was nullification of the vote, the majority had effectively caused voters to choose “between their freedom of expression and their right to vote.” Cole explained that restrictions on speech must serve a significant government interest and be narrowly tailored, and the Michigan ballot selfie ban fails to meet either requirement. Judge Cole was not convinced by the three alleged “important government interests,” namely (1) discouraging vote-buying and coercion,” (2) ensuring “that the polling place is a sanctuary for all,” and (3) preventing delays. “While all of these may be government interests in the abstract, there is disproportionality between the interests stated and the ballot selfie prohibition created by these laws and instructions,” wrote Judge Cole. Yesterday (October 31, 2016), citing the dissent, Crookston’s attorney filed an emergency motion for rehearing in the hopes that the issue can, in fact be definitively addressed prior to the election.

Ballot Selfie Bans - A Constitutional Open Question

The law regarding ballot selfie bans is inconsistent and in flux. On October 23, the Associated Press reported on the state of the law, state-by-state, but this listing is already outdated because of the recent Michigan ruling.  A brief glimpse at the AP's 50-state survey shows how widely varying state laws on this issue. Some states (like Hawaii, Utah, and Nebraska) have laws specifically protecting a voter’s right to take a ballot selfie. Many states neither prohibit nor explicitly allow photographs of ballots. Some states have recently repealed laws that prohibited ballot selfies (for example, California – although this change will not take effect until January), and similar legislative measures are pending in other jurisdictions (for example, New Jersey).  A few states allow photographs of mail-in ballots, but do not allow photographs at polling places in general (for example, Iowa, Maryland, Texas, and Tennessee).  

At least 18 states, however, explicitly outlaw the practice of photographing and showing one’s own ballot, whether at the polling place or (for a mail-in ballot) at home. Although a few state spokesmen (Alaka, Massachusetts) have stated that a state law ban on ballot selfies could not be practically enforced, other states lay out clear penalties for violation of the rule. In Michigan, a ballot selfie will lead to invalidation of the ballot. In several states, a ballot selfie is a misdemeanor that could carry a fine. In Illinois, knowingly showing your completed ballot to another person is a felony that carries a prison sentence of one to three years.

Infographic from NBC News:

50 state ballot selfie ban

 

 

It will be interesting to see if a national consensus develops over the next several months as the ACLU, Snapchat, and various individuals continue to challenge these laws. The next expected opinion pertains to the New York law, and Judge Castel (S.D.N.Y.) says he’ll issue his opinion by the end of this week.  

Meanwhile, the ACLU just sued in Northern California seeking a restraining order that would prohibit enforcement of the selfie ban law, even though a bill repealing that ban has already been signed into law.   The ACLU points out, however, that the new law’s effective date in early 2017 comes too late to matter for Election 2016. “This is an incredibly contentious election. Thousands of our members want to engage in this core political speech, and not just show people how they are voting but try to encourage others to vote the same way," Michael Risher, an attorney with the ACLU of Northern California, said in a statement. "On November 9, it will be too late for them to do that.” Risher called ballot selfies "core political speech at the heart of the First Amendment," however the sought-after injunction seems more symbolic than pragmatic.  “In its 125-year history, California's ban on sharing one's marked ballot has not been enforced.” The California hearing is set for November 2nd.  On that same date a thousand miles to the east, another federal judge will hear near-identical arguments in a federal case challenging the Colorado ballot selfie ban.   

Outdated or Necessary Protections?

Are ballot photograph bans anachronisms? Or is do these laws serve a valid purpose? Colorado Deputy Secretary of State Suzanne Staiert argues that selfie bans are still needed. “We believe the current law protects the integrity of the election and protects voters from intimidation or inducement,” said Staiert. “In fact, given Colorado’s unique election system and rise of social networking, the prohibition may be more important in Colorado than in other states and may be more timely today than ever.” 

Another argument against repealing the bans is that prohibitions on ballot selfies do not really stifle free speech in any substantive way. The lawyer representing New Hampshire in the 1st Circuit case argued that that under that state’s law (pre-invalidation), “You're free to go out into the community and scream at the top of your lungs how you voted and who you support in the election. You just can't use your marked ballot to do so."  

I suppose that those who are concerned with the practice of taking and posting ballot selfies worry about the social pressure involved and are concerned that the expectation of proving your vote publicly can create peer pressure to vote a particular way.  If ballot selfies become socially expected, it could remove the protection from retribution (social as well as political) that complete anonymity offers. For Snapchat-happy millenials, the social pressure to post a ballot might make it difficult to vote one’s conscience rather than what is most acceptable in one’s social circle. I’m not too worried about vote buying being enabled by photos of ballots posted on social media, but perhaps there are other legitimate reasons to step back from free speech in the name of protecting the right to anonymously cast one’s vote.

Posted by Andrea Boyack on November 2, 2016 at 12:48 AM in Constitutional thoughts, Culture, Current Affairs, Deliberation and voices, First Amendment, Law and Politics | Permalink | Comments (12)

Wednesday, October 19, 2016

Designated Survivor, The End

I just got around to watching Episode 4, which will be my final one (and this my final post). The idea seems so good, but the execution is horrible, even allowing for the relatively low bar on these things. Nothing changed from my assessment of Episode 2--It is just too simplistic, craven, and heavy-handed.

The show returned to the controversy with the governor of Michigan and mass arrests of Muslim citizens, culminating in the federal arrest of the governor, although I could not figure out what the charges were. Nor could I figure out why it was necessary to fraudulently induce the governor to fly to Washington to arrest him, rather than arresting him in Michigan--were there no FBI agents anywhere in the state? There were more comparisons of Kennedy and sending people to "watch" what was going on, without any discussion of the civil lawsuits in functioning courts*that gave the Kennedy watchers (and the calling of the National Guard) its force and that would have been the obvious solution here.

[*] One whopper I forgot to mention from Episode 2 was the governor, in explaining why he was free to do what he was doing, pointing out that there was no longer a Supreme Court. Of course, there is a Sixth Circuit and there is still an Eastern and Western District of Michigan, all of which are fully capable of issuing injunctions and bringing the governor and state police of Michigan to heel.

If anyone keeps watching and it gets better, please let me know.

Posted by Howard Wasserman on October 19, 2016 at 01:27 PM in Culture, Howard Wasserman | Permalink | Comments (2)

Tuesday, October 11, 2016

Greenberg, Koufax, and Yom Kippur

I have an essay today in Tablet Magazine, When They Were Kings: Greenberg and Koufax Sit on Yom Kippur. The piece compares Sandy Koufax and Hank Greenberg in their respective decisions not to play on Yom Kippur 31 years apart. I argue that Greenberg's decision was especially significant given the different, and more precarious, position of Jews in America and the world in 1934 compared with 1965. The essay elaborates on what I wrote here last Yom Kippur, on the fiftieth anniversary of Koufax sitting out.

Posted by Howard Wasserman on October 11, 2016 at 12:54 PM in Culture, Howard Wasserman, Religion, Sports | Permalink | Comments (0)

Friday, September 30, 2016

Designated Survivor, S1E2

I think I am out.

In part, as one reviewer said, it is a network drama--everything is on the nose and explained, in a way that comes across as stilted and unrealistic. For example, when the President reveals that he had lied about undercover agents to get the governor of Michigan to order the state police to stop rounding up Muslims, his aide announced "he was bluffing." Thanks for that. In part, it takes a craven and unrealistic view of the media and the public and how they are likely to react to, and report on, this story. A lot has changed in our political and media culture since 2001, to say nothing of earlier. But I would expect that, at least during the first 48 hours, someone in Kirkman's position would get a great benefit of the doubt from the press and the public, much as Lyndon Johnson did.

Still, the show followed some interesting threads this week. Unfortunately, I am just not sure the interesting threads overcome the other, less enjoyable pieces of the show.

The relevant story line (ignoring the whodunnit investigation and the drug-dealing teenage son, neither of which interests me) is that the Governor of Michigan ordered State Police to roundup Muslims in Dearborn, resulting in many arrests and the beating death of one teenager by a police officer (captured, of course, on video). The Governor explicitly rejects Kirkman's presidential authority, insisting Kirkman is not "his" President and that the Governor is the highest authority in the state.

This presents an interesting continuity-of-government problem--what if the governor of a State, an independent sovereign, declines to recognize the authority of the acting president. I believe the non-craven view of politics would prevail, at least in the early hours.

But the show goes off the rails when Kirkman looks for a solution. He speaks with two people from the Attorney General's office (or maybe two possible candidates for AG), who give absolute gobbledygook for advice. Thing 1 suggests the President can "invoke the Supremacy Clause" (a phrase which is meaningless) and issue an Executive Order requiring the governor to force his police to stand down (something for which there is no legal authority). Thing 2 says an executive order can be perceived as "hostile," instead recommending a presidential proclamation; when Thing 1 responds that would be a weak, symbolic, empty gesture (it is), Thing 2 reminds that President Bush used proclamations to secure disaster areas after Hurricane Katrina--which might have been effective because FEMA was in charge of the area, but has nothing to do with the current problem. Naturally, the lawyers both come across as useless schmucks. Later, the President's wife (also a lawyer) reminds her husband of Kennedy calling out the National Guard against George Wallace, but Kirkman rejects that as a "nuclear option."

Missing in all of this, of course, is that the President cannot simply order--via national guard, proclamation, executive order, or video phone call--states and state officials to do or not do anything. Even if the state is acting unconstitutionally, the federal government cannot simply tell the state what to do (or it can, but cannot expect the order alone to have any legal effect). The correct answer to the problem is for the US to sue Michigan for this massive constitutional violation, while perhaps bringing a § 242 prosecution against the officer who beat the kid to death. Or the US could support the private lawsuits that the ACLU (which is described as denouncing the round-ups, but nothing more) would be sprinting to the courthouse to file. And when the court orders the state to stop rounding up every Muslim in the city, either a) the governor complies with the order (because they usually do) or b) Kirkman calls in the National Guard (the show, like everyone else, forgets that Kennedy could call in the National Guard only after a federal court had enjoined Wallace from interfering with integration of the university--Kennedy did not simply annouce that Wallace had to stop interfering and then send in troops).

And even if a lawsuit takes time, the threat of a lawsuit and its enforcement might have been enough to get the governor to stand down. In fact, it might have been a good way to show Kirkman's power: "You may not regard me as 'your president,' but vested in me is the executive Power of the United States and I can still bring it down on you and your State if you do not fall in line." That would have been a better show of legal force; instead, the show went for Kirkman's cleverness (he lied that the sweep had caught up undercover federal agents, so the governor was obstructing justice) in an unrealistic maneuver.

Of course, a lawsuit would be more "hostile" than an executive order (especially because it actually would be valid in law, so it would have, you know, actual force). But here is a different narrative problem. During a public appearance at the bomb site, the public and press begin shouting at Kirkman about the civil rights violations in Michigan (interrupting his Bush-esque speech on a bullhorn), accusing him of not being concerned about such violations and of allowing Americans to be beaten. But if that is the public mood (that the Muslims being arrested are "Americans" deserving of protection), then the lawsuit and enforcement of the resulting injunction would be quite popular, or at least not seen as hostile. In which case, this ceases to be a "nuclear" or "hostile" option of which Kirkman should be afraid. The show wants to have it both ways narratively--Kirkman is under attack for not doing anything about civil rights violations, but he would be pilloried if he did something because the nation is again afraid of, and hostile to, Muslims.

Finally, we get talk of reconstituting the government. Kirkman insists on putting together a cabinet and sends his HUD aide and the WH Deputy Chief of Staff (the two clearly have had sex in the past) to come up with names. There is no mention of states either appointing Senators or calling for House elections. This raises one interesting, although unexplored, point: With no Senate (and again, no mention of appointments), no one can be confirmed as a cabinet officer; they only could be acting secretaries. Given that, would an acting president seek out new appointees to these posts? Or would he just elevate the # 2 in each department to acting secretary, to maintain some continuity within the department?

As I said, I think I am out. Because although the show has teased some interesting threads, it is not playing them in a way I find interesting or enjoyable.

Posted by Howard Wasserman on September 30, 2016 at 09:53 AM in Culture, Howard Wasserman, Television | Permalink | Comments (12)

Wednesday, September 21, 2016

State v. Dharun Ravi: Invading the Sexual Privacy of LGBTQ Persons

*This post is based on a contribution to the Boston University Law Review symposium on Danielle Citron's Hate Crimes in Cyberspace.

Invading the sexual privacy of LGBTQ persons is particularly devastating. In a world characterized by homophobia, exposing someone as gay, publicizing his or her sexual activities to others, and transforming him or her into a sexual object means that LGBTQ victims of sexual privacy invasions face stigma and discrimination.

Cyberharassment devastates its victims. Anxiety, panic attacks, and fear are common effects; post-traumatic stress disorder, anorexia and bulimia, and clinical depression are common diagnoses. Targets of online hate and abuse have gone into hiding, changed schools, and quit jobs to prevent further abuse. Some lives are devastated in adolescence and are never able to recover. Some lives come to tragic, premature ends. According to one study, almost three-quarters of cyberharassment reports come from women. Nearly half of all lesbian, gay, bisexual, and transgender (LGBT) youth experience cyberharassment each year, and LGBT teens are three times more likely than heterosexual teens to be harassed online and twice as likely to receive threatening or harassing text messages. As a gendered and sexualized phenomenon, cyberharassment plays a role in the continued subjugation of women and members of the LGBT community.

For sexual minorities, institutional discrimination amplifies cyberharassment’s horrors. This is not to say that heterosexual victims are crying wolf; to the contrary, cyberabuse is an equal opportunity offender. But LGBTQ victims face three additional hurdles. First, the personal psychological effects of cyberharassment are likely worse when victims live in jurisdictions with laws that discriminate against them. And despite some notable advances, anti-gay discrimination is still more the norm than exception. Second, when patterns of cyberharassment also involve “outing” the victim as gay, rampant discrimination and lost opportunity can follow. And third, for those LGBT and questioning youth who, by virtue of their families’ geographic and cultural isolation, lack local LGBT friends and role models, cyberharassment transforms the internet, ostensibly a door to a wider digital world of opportunity, into a danger zone. This enhances a no-where-to-turn sense of hopelessness that, although experienced by many victims of cyberharassment, is felt by none more acutely than LGBT youth.

Institutional discrimination faced by LGBT victims of cyberharassment metastasizes psychological effects because, as Mark Hatzenbuehler has shown, institutional discrimination enhances all mood, anxiety, and psychological disorders. In a 2010 study, Hatzenbuehler found that institutional discrimination can have a statistically significant negative effect on the mental health of LGB persons: lesbians, gay men, and bisexual individuals who lived in states that banned gay couples from marrying experienced mood, anxiety, and psychiatric disorders at higher rates than LGB persons living in equality states. It makes sense, then, that LGBT victims of bullying and harassment rival only homeless LGBT youth in the frequency and severity of psychological injury in the community.

As a means of “outing” gay persons, cyberharassment also triggers an onslaught of potential discrimination in employment, housing, and the provision of health care. “Outing,” or the revelation of another’s identity, is a frequent element of cyberharassment targeting members of the LGBT community. It is a central reason why antigay cyberharassment is an invasion of an LGBT person’s privacy. Though emotionally harmful, the closet may be a necessary evil in a discriminatory world: in 29 states, you can be fired, denied a home, and denied public accommodation just for being gay. Consider the story of Mark C., one of the many LGBT victims of cyberharassment with whom I have spoken in the course of my research.

Many LGBT youth, in particular, also experience acute effects of cyberharassment because of their unique dependence on online social networks. Often faced with geographic isolation from fellow LGBT individuals, gay youth rely on online social networks to replace non-existent face-to-face communities because they allow roughly anonymous virtual interaction with like-minded individuals. Therefore, these adolescents are not only frequent internet users, but also completely reliant on the virtual community they create for social support, information about their sexuality, and answers to any questions they have about being gay. Empirical data bears this out. As early as 2001, more than eighty-five percent of LGB adolescents reported that the internet had been the most “important resource for them to connect with LGB peers.” Destruction of that online social support network through cyberharassment is, therefore, particularly harmful because it turns what might have been a gay student’s safe space into a danger zone. Gay and lesbian adolescents’ dependence on online media makes them more susceptible to those who would use it as a sword against them.

None of this is to say that cyberharassment does not devastate all its victims. But while it is clear that cyberharassment is a modern weapon used to subjugate sexual minorities, it also makes institutional discrimination worse. Cyberharassment turns second-class citizens into third-class denizens by ballooning psychological harms and triggering discrimination in employment, housing, and the provision of benefits. And it takes away a virtual world of great opportunity from those who need it most.

Tyler Clementi may not have been a victim of cyberharassment. But he was "outed" by his roommate's invasion of his privacy. That Mr. Ravi acted with such disregard for Tyler's humanity makes this story reek of injustice. The criminal law, as written by New Jersey's legislature, may not have been the best tool for addressing the problem. In my next post, I will discuss a few options--beyond the criminal law--for making the internet safer for us all.

 

Posted by Ari Ezra Waldman on September 21, 2016 at 09:00 AM in Criminal Law, Culture, Current Affairs, Information and Technology, Web/Tech | Permalink | Comments (0)

"Like Pulling Teeth": Lessons for law schools from the 1980s dental school crisis

Eric Chiappinelli (Texas Tech) recently posted a new article on SSRN that analyzes the dental school crisis of the 1980s to draw lessons for currently struggling law schools. It is a very interesting article.  Highlights and my thoughts after the jump.

While readers of the blog are surely familiar with many of the issues facing law schools, I assume that most are less familiar with the dental education crisis of the 1980s. As Chiappinelli explains, an influx of federal spending (through research grants and federal student loans) encouraged the proliferation of dental schools (from 39 in 1943 to 60 in 1980). And students flocked to these dental schools, with the number of dental school students increasing from ~12,000 in 1950 to ~23,000 in 1980. However, like with law schools, darker days were ahead.

Although the inflection point for law schools appears to have been the 2008 financial crisis, fluoride was the game-changer in the dentistry world.  By the late 1970s, enough people had grown up drinking fluorinated water that demand for dentistry's bread and butter services--filling cavities, pulling teeth and creating dentures--flattened. Around the same time, Congress grew concerned that it was contributing to the build-up of excess dentists and dramatically pared back its financial support for dental schools. In 1981, dental schools found that their revenue had suddenly declined by one-third, but their expenses continued to steadily increase. In short, dental schools were in a crisis that appears remarkably similar to the law school crisis.

Like other financially strained post-secondary education institutions, dental schools sought to balance their budgets by shifting away from tenure-track faculty and toward adjunct and other untenured faculty. Dental schools sought additional support from state governments, but state governments had their own financial troubles. Chiappinelli reports that many dental schools were able to shift some costs to students by significantly raising tuition. As a result, dental student debt increased by over 50% from 1978-1981 and doubled by 1990. However, rising debt combined with a lack of good dental jobs resulted in "a rapid and severe reduction in the number of people applying to dental school." Applicant quality, measured by their incoming credentials, dropped simultaneously. Again, echoes of the law school crisis.

Eventually, 12% of all U.S. dental schools closed. While every closed school operated at a loss, Chiappinelli notes that many that were operating at a loss did not close. Clearly, finances were only part of the story. In Part IV of his article, Chiappinelli works to identify other factors that were relevant to determining whether to close a dental school and to apply those lessons to struggling law schools. Rather than finances or operational aspects of dental schools, Chiappinelli concludes that a "school's intentional focus on mission and engagement . . . are particularly important . . ." Thus, law schools should--in Chiappinelli's view--do the following: (i) "ensure that their actions are aligned with the university's mission", (ii) "engage with their university and their relevant professional and lay communities", (iii) use clinics to demonstrate that the law school is aligned and engaged with the university's mission, and (iv) hire deans who can highlight for the university that the law school's mission is aligned with the university's, including how the law school brings prestige to the larger university.

I think that Chiappinelli's broadest point is clearly correct. In times of retrenchment, every enterprise needs to (re)consider its value proposition. Any law school that finds itself out-of-step with its affiliated university risks finding its support dry up. And I think the analogy from dental schools to law schools is a valid one, which is why I've also been working on a piece comparing distressed dental schools to other distressed colleges and universities. There are important lessons that can be learned. Nevertheless, there are at least two reasons to question the comparison.

First, it is my sense that many universities see their law schools as a "crown jewel" of the university system. As such, law schools may simply be viewed differently than dental schools, which apparently were often (but not always) perceived to lack prestige and quality compared to the rest of the university. Second, dental schools were never profitable, "as nearly every dental school loses money from continuing operations, if for no other reason than the clinical aspects of dental education cost more than they produce in revenue." By contrast, law schools were long seen as profit centers for their universities. As such, a university might be willing to subsidize losses for a longer period of time if university officials can be convinced that the law school crisis will eventually abate.

Glad to share more thoughts, but this post is already too long. It's my view that 3-4 paragraphs is the ideal blog post length. But if you're still with me, thanks for reading the whole thing.

Posted by Matthew Bruckner on September 21, 2016 at 07:37 AM in Article Spotlight, Culture, Current Affairs | Permalink | Comments (12)

Tuesday, September 20, 2016

Nonconsensual Pornography and the "Gay Bachelor"

Logo TV, an LGBTQ-themed television network, is running a sort-of reality show called "Finding Prince Charming." I hear it's absolutely terrible. It looks a lot like ABC's "The Bachelor," except Logo's version is about gay men. Its star is a statuesque man named Robert Sepulveda Jr., a model, interior designer, and, apparently, a former escort. Because Mr. Sepulveda is on television trying to become famous, a celebrity gossip website thought it was "newsworthy" to publish explicit photos of him from his escort days without his consent. The photos have now been "unpublished."  As far as we can tell, Mr. Sepulveda used those photos during his days as an escort. He didn't publish them online for everyone to see. Posting graphic or explicit photos of another without his or her consent is called "nonconsensual pornography" (NCP), more commonly known as "revenge porn." And it is a crime in 35 jurisdictions and counting.

Most NCP victims are women. But gay men are frequent victims, as well. Lokies Khan, a gay Singaporean man, had a sex tape posted online without consent. Speaking on the YouTube channel, Dear Straight People, Mr. Khan said he felt "violated," "scared," and undermined by the incident: “Things that I post on Instagram are things that are within my control, are things I want people to see, [that] I’m comfortable with people to look at. But these gifs of me on Tumblr are not within my control. I did not give consent. I did not know it was there.”

In my own research, I have spoken to more than 20 gay male victims of NCP. It usually happens in one of two contexts:

  1. As with many cases of NCP, generally, ex-boyfriends sometimes post nude or graphic images of their former partners on Craigslist, pornography websites, or use them to impersonate victims on social networking sites.
  2. Some gay male NCP victims participate in gay social networking apps. Those apps require their users to post a profile photograph, but social norms on the platforms often make sharing more intimate photos a de facto requirement of participation.

One person I spoke to was a victim of NCP at the hands of a photographer who enticed the victim with promises of free professional headshots for casting calls. Many victims felt "vulnerable"; others felt angry about a person stealing their photographs. Almost all of them found different ways to express how NCP is a devastating erosion of trust.

Victims sent intimate photos to their former partners when they were apart, as kind of a modern day love letter. And many victims were indignant when their friends, acquaintances, or online commenters blamed them for taking and sending the not-suitable-for-work photos in the first place. On gay social networking apps, in particular, a background trust exists. As one man said to me, "We're all gay on here. We're all part of the same tribe, looking for community and companionship in a tough world. You are expected to share photos, with your face and your body. If you don't, people don't talk to you. To have that thrown back in your face is really devastating."

NCP can destroy its victims, as Danielle Citron and Mary Anne Franks have described at multiple points in their work. The fact that photos may be "unpublished" does not make the situation any better. The original publisher may have changed his mind, but the photos, once available online, could have been downloaded, uploaded, and reposted thousands of time. Nor is it a publisher's First Amendment right to publish anything he wants about others. Even celebrities enjoy a right to privacy, which, in fact, fosters more, better, and diverse speech.

Despite having his private photos published online, Robert Sepulveda may be doing fine; he hasn't, as far as we know, experienced the kind of professional, personal, physical, and emotional abuse faced by many NCP victims. But he has been the subject of repeated ridicule online for his past as an escort. The attacks have been a combination of different types of shaming (those who both look down on male escorts and those who think he is a poor role model for the LGBTQ community). Whatever we think about escorting or "sex work" or his absolutely excruciating show, no one deserves to have his or her privacy invaded by transforming them into the subject of the prurient interests of others without consent.

Posted by Ari Ezra Waldman on September 20, 2016 at 04:19 PM in Criminal Law, Culture, Current Affairs, Television, Web/Tech | Permalink | Comments (2)

Monday, September 19, 2016

State v. Dharun Ravi: A Culture of Homophobia

Dharun Ravi existed in and contributed to a suffocating culture of homophobia. It helped keep Tyler Clementi in the closet and devalued Tyler's life to the point where Mr. Ravi and his friends consciously or subconsciously felt that Tyler did not deserve a right to privacy. This is the context in which LGBTQ individuals (and many women and other marginalized groups) live: they are seen as "less than" and less deserving of equal rights. For many, it is easy to harass them, assault them, ignore their protests, and invade their privacy because their second-class status means they don't really exist as fully realized humans. The cavalier way in which Mr. Ravi and his friends approached invading Tyler's privacy contrasts with the particularly grave consequences of "outing": openly gay individuals face latent and overt discrimination in society that could make coming out terrifying and dangerous.

There were several pieces of evidence to show that Mr. Ravi himself was explicitly uncomfortable with gay people. When he heard that his roommate might be gay, he texted to a friend, "Fuck my life. He's gay" (8). He tweeted a sarcastic "yay" after seeing Tyler make out with another man on September 19 (12). His sent a dismissive tweet--"they're at it again"--on September 21. He was "shocked" at what he saw when he spied on Tyler on September 19 (20) and did not want to go back to the room afterward, suggesting he was creeped out or that there was something dirty about what Tyler did (20).

Mr. Ravi also participated in a particularly nasty homophobic exchange with a high school friend.

M.H.: hahahahha your gay roomie that. . . did you really see him make out with some guy lmao

DEFENDANT: Yeahh omg [M.W.] saw it too. He was older and creepy and def from the internet

M.H.: that's so nastyyy ew watch out he might come for you when you're sleeping! hahaha jk

DEFENDANT: Omg everyone keeps telling me that. I haven't seen him since then

M.H.: hahaha good luck with thatt

DEFENDANT: He just texted me asking when I was coming home omg.

M.H.: maybe his gay friend is in your Ed bed*

DEFENDANT: I set my computer to alert me if anyone is in it when I'm not there LOL

M.H.: really?? how lmao that's so cool

DEFENDANT: My webcam checks my bed hahaha. I got so creeped out after sunday

M.H.: hahaha that's so crazy

DEFENDANT: Yeah keep the gays away

M.H.: I saw a lesbian Asian couple today but they were like nerdy fobby asian and it was gross

DEFENDANT: Ewwww. When we were in ny we saw two guys making out on a stoop

M.H.: NY that's pretty normal though hahha one of my friends is this gay Asian guy who has his ear pierced lol I mean bellybutton pierced*

In addition to this evidence suggesting that Mr. Ravi looked down on gays and contributed to the culture of homophobia at Rutgers, there is even more evidence that Mr. Ravi knew that antigay stigma permeated his group of friends. His friends said they were "shocked" and that it was "scandalous" two men would make out with each other (11, 14). One called it "weird" (11). Everyone was gossiping and laughing about it (14). There were at least 6 people who were gossiping and whispering and pointing to the man with whom Tyler hooked up (26). One student tried to brag that being told Tyler was gay "should have fazed" her (18).

Perhaps most indicative of the fact that a culture of homophobia contributes to a devaluing of gays lives is that everyone thought what Tyler was doing in his dorm room was their business. Mr. Ravi's friends wanted to "grab a glimpse" (19). They were "curious" (14). Mr. Ravi thought nothing of purposely positioning his webcam to focus on Tyler's bed (10, 19) and tweeting out invitations to his friends to watch the sexual encounter (18, 20). And his only response to a friend asking if Mr. Ravi actually spied on Tyler was "LOL" (23).

By the end of this story, more than 18 people knew that Tyler was gay and that Mr. Ravi could spy on him. This number included Ravi's friends from high school (7-8, 21), a young woman across the hall (9), her boyfriend at another school (12), her roommate (13), a friend from class (13-14), friends of the young woman's roommate (14), other friends from college (17, 19), and the members of Mr. Ravi's ultimate frisbee team (20, 21). When Tyler found out that Mr. Ravi had been spying on him, it would be hard for him to deny that his secret was out. He decided to commit suicide shortly thereafter.

Mr. Ravi cannot be directly blamed for Tyler's suicide. But the homophobic context in which he acted and to which he contributed should be relevant when considering both the gravity of the invasion of privacy and Mr. Ravi's state of mind. Mr. Ravi remained willfully blind to the consequences of his actions.

Should willful ignorance of the effects of invading the sexual privacy of a closeted gay person should be enough for sentence enhancement? That is clearly not the way the New Jersey statute invalidated in Pomianek was written; that statute made the state of mind of the defendant irrelevant. But could a re-written statute include both intentional targeting and willful ignorance of the effects of such targeting? Antigay bias is not just using antigay rhetoric--"I hate gays" or "Gays deserve to die"--and then purposefully acting on those impulses. Antigay bias includes contributing to a culture of homophobia that devalues the lives of gay persons. 

What do you think about an antibias sentence enhancement provision that gets triggered either when someone purposely acts to discriminate on someone's identity or when someone acts with reckless disregard for the discriminatory consequences of his or her actions?

Posted by Ari Ezra Waldman on September 19, 2016 at 09:00 AM in Criminal Law, Culture, Current Affairs, Information and Technology, Web/Tech | Permalink | Comments (5)

Monday, September 12, 2016

State v. Dharun Ravi: What Happened?

On September 9, the Appellate Division of the Superior Court of New Jersey released its opinion in State v. Dharun Ravi. Dharun Ravi, of course, was the roommate of Tyler Clementi, a young Rutgers student who, after Mr. Ravi and his friends spied on him during an intimate encounter with another man, committed suicide on September 22, 2010. The court overturned all of Mr. Ravi's convictions.

To refresh our memories, here's what happened. (All numbers in parentheses refer to the page numbers in the Appellate Division's decision).

Tyler and Mr. Ravi were roommates at Rutgers University. Shortly after being notified that Tyler would be Mr. Ravi's roommate, one of Mr. Ravi's friends found out that someone using Tyler's email address had posted on a forum for gay people (7). So, Mr. Ravi came into college with at least an inkling that his roommate was gay. Tyler, however, was not open about his sexuality. Tyler was still in the closet.

On two occasions in September 2010, Tyler asked for some time in the room by himself (10). He had met a man using a gay social networking platform and invited him to his room (24). Mr. Ravi left. On the first occasion, which took place on Sept. 19, Mr. Ravi actually came back into the room within a few minutes and appeared to "shuffle some papers" on his desk. It turned out he was also adjusting the position of his webcam to face Tyler's bed. Mr. Ravi then used his technical skills to have his video chat platform automatically accept all calls. This allowed anyone who called him to see through his webcam. On both Sept. 19 and Sept. 21, Mr. Ravi tweeted out several comments about Tyler being gay, that he asked to be alone in their room, and that he was hooking up with another man (12). He encouraged others to call his account and watch (18). Mr. Ravi and quite a few of his friends watched live video of Tyler and another man "making out" on Sept. 19 (11). They tried to do so again on Sept. 21.

By reading some of Mr. Ravi's public tweets, Tyler found out that Mr. Ravi had invaded his privacy and made him the subject of others' prying eyes without his consent. Tyler then complained to his resident advisor and asked for either a private room or a different roommate (26-27). On Sept. 22, Tyler's RA notified Mr. Ravi about Tyler's request for a new room and explained Tyler's allegation that Mr. Ravi had invaded his privacy (29). At 8:46 PM that evening, Mr. Ravi wrote Tyler a text that (sort of) apologized (29-30). Shortly thereafter, Tyler, who had already left campus, used his cellphone to write on his Facebook page: "I'm going to jump off the GW Bridge. Sorry." Moments later, he did so (30).

On April 20, 2011, a grand jury returned indictments against Mr. Ravi for invasion of privacy, bias intimidation, witness tampering, and hindering apprehension or prosecution. On March 16, 2012, the jury convicted Mr. Ravi on all counts. After denying a motion for a new trial, the trial judge sentenced Mr. Ravi to 3 years probation, dependent on serving 30 days in jail (4). Mr. Ravi also had to complete 300 hours of community service, attend counseling on cyberbullying and diversity, and pay $10,000 (which was to be dedicated to helping victims of bias crimes) (5).

September 2010 was a difficult month for the LGBT community. Tyler was just one of 10 gay adolescent boys to commit suicide. Billy Lucas, 15, died on Sept. 9. Cody Barker, 17, died on Sept. 13. Seth Walsh, 13, died on Sept. 19. Asher Brown, 13, died on Sept. 23. Harrison Brown, 15, died on Sept. 25. Raymond Chase, 19, died on Sept. 29. Felix Sacco, 17, died on Sept. 29. And Caleb Nolt, 14, died on Sept. 30.

Tyler's death brought extensive media attention to the problems of suicide in the LGBTQ communities and antigay bullying. Celebrities, including Ellen Degeneres and Anderson Cooper, spoke out about both issues. Antigay bullying is indeed an epidemic facing our schools and our communities. But it is worth asking: Was Tyler a victim of "cyberbullying"? In one sense, it doesn't matter. Tyler's story brought much needed attention to a problem that needs to be addressed, and his parents have joined the fight against bullying and cyberbullying in the years since his death. 

But definitions are important. There are a host of definitions of “cyberharassment” or “cyberbullying” milling around. And imprecise and inconsistent definitions frustrate our ability to understand, talk about, and solve the problem. Danielle Keats Citron, author of Hate Crimes in Cyberspace and the leading cyberharassment scholar, defines cyberharassment generally as repeated online expression that intentionally targets a particular person and causes the targeted individual substantial emotional distress and/or the fear of bodily harm. There are five core elements to that definition: repetition, use of digital technology, intent to target, targeting, and substantiality of harm.

Cyberbullying is a subcategory of cyberharassment that includes all five of those elements but is focused squarely on youth-to-youth behavior. It can be understood as repeated online expression that is intended to cause substantial harm by one youth or group of youths targeting another with an observed or perceived power imbalance. This definition retains those five factors and adds two important elements: youth and power imbalance, the latter of which is actually common in many forms of cyberharassment. The asymmetry of power, which could be based on identity (i.e., a member of the majority attacking a member of a traditionally marginalized and discriminated minority), draws the line between schoolyard teasing and bullying. It should come as no surprise, then, that young members of the LGBTQ community are uniquely susceptible to bullying and its tragic consequences. They are bullied because they deviate from the norm and because antigay bullying is either tacitly or explicitly condoned by antigay bigotry and homophobia in society at large. This definition of cyberbullying captures the worst online aggressive behavior while excluding the otherwise mean, hateful, and distasteful speech that free speech norms tend to tolerate. Cyberbullying is, at bottom, cyberharassment involving youth. And it is an epidemic affecting our schools.

Although Tyler was targeted because of his sexual orientation and Mr. Ravi's behavior caused Tyler to experience substantial emotional distress, it is not clear that what happened to Tyler involved repeated behavior that rises to the level of a course of conduct. However, I am not sure that matters at all. Mr. Ravi was not accused of violating an anti-bullying law; he was accused of invading Tyler's privacy, which is exactly what he did.

With this background, I would like to use several forthcoming posts to explore several theories and questions about the Appellate Division's decision in State v. Dharun Ravi. Stay tuned for the next post!

Posted by Ari Ezra Waldman on September 12, 2016 at 09:00 AM in Criminal Law, Culture, Current Affairs, Information and Technology, Web/Tech | Permalink | Comments (2)

Sunday, September 11, 2016

Designated Survivor

I am intrigued by the new ABC show Designated Survivor (long trailer after the jump, premiere on Wednesday, 9/21), which shows the HUD Secretary (played by Keifer Sutherland, wearing a Cornell hoodie and glasses to show that he is an egghead and no Jack Bauer) becoming acting president (not president) when the Capitol is destroyed by a terrorist attack during the State of the Union address.

I am curious where the show goes. It would be interesting to see the process of reconstituting a government, especially Congress. It also would be interesting to see the process of the executive trying to do anything without a legislature (as opposed to a legislature that just will not do its job). I am not particularly interested watching a revenge fantasy a la 24 (this gut-reaction preview suggests it feints in the latter direction at times). Nor The West Wing without political legitimacy, a basic political drama.

Instead, I hope the show recognizes, and plays, the uniqueness of the premise. This is more than a political drama or even a political drama about an individual thrust into circumstances for which he may not be prepared and having to grow into the job (think Harry Truman). This is that, but in a last-gasp, no-alternative situation, in which our basic governmental structure is gone or has to be recreated on the fly. I hope the show embraces that.

Around the 1:35 mark in the trailer, Sutherland is talking with a speechwriter played by Kal Penn. As the scene is shown here, Sutherland asks whether Penn thinks he should step down, Penn says "I do," and Sutherland responds that he may be right, but for the moment he is all they have. It is a good line, designed to show Sutherland's steely resolve to rise to the occasion. But the conversation undermines the show's premise or the intelligence of its characters. That is a conversation you have when there is a choice ("Sorry, A, but B would be a better president).  Who does Penn want Sutherland to step down in favor of? Or who does Penn believe Sutherland could step down in favor of? He is literally the only person on the planet legally authorized to wield the executive Power of the United States. Anyone else acting as president would do so contrary to law (put aside whether we would accept and retroactively ratify such actions). Sutherland's "For now, I'm all you've got" drives the point home. But the head WH speechwriter, someone who presumably knows something about how the government works, already should know that.

Plus, the situation allows for depictions of genuine political intrigue that at least merit discussion, rather than ginned-up stories of Machiavellian chiefs of staff. Suppose one member of the House (not the Speaker) survived the attack, declared himself elected as Speaker by a majority vote of one member, and tried to argue that he had prior authority to act as president (raising some quorum concerns that have never been resolved). Or suppose the duly elected Speaker of a reconstituted House insists he has prior entitlement. Section 19(d)(2) (providing, in a convoluted fashion, that a cabinet member acting as president cannot be supplanted by a legislative officer acting as president) seems to resolve that, but this is all new ground and arguments always can be made. The show also could depict the holes commentators and advocates (including me) have identified in the succession statute, especially post-9/11: The absence of a mechanism to quickly reconstitute the House; the need for a special presidential election when an unknown, inexperienced, lower-level cabinet secretary (who may have been fired that morning) takes the executive power. But I doubt this creates enough drama compared with Jack-Bauer-in-glasses-and-a-Cornell-hoodie.

Finally, I never looked into the designated survivor practices when I was writing about this, so I was not aware of a paradox, in terms of political legitimacy. The highest cabinet officer ever to be the designated survivor has been the Attorney General on three occasions (John Ashcroft, Alberto Gonzales, and Eric Holder), which is fourth on the cabinet list. Secretaries of State, Treasury, and Defense are never designated, even though they are the highest-profile and most likely to have political, and even presidential, experience (of the last four Secretaries of State, two had run for president and one was a top military official who everyone had wanted to run for president) that would be important in the event of a catastrophe.

Anyway, I look  forward to beginning to watch this. I hope they do something good with it.

 

Posted by Howard Wasserman on September 11, 2016 at 07:39 AM in Culture, Howard Wasserman, Law and Politics, Television | Permalink | Comments (17)

Wednesday, August 31, 2016

Bard Signing In

Let me start my third visit to Prawfs Blog with warm thanks to Howard Wasserman and to my fellow bloggers for the work they have done keeping this forum going. As the public information about Professor Markel’s murder becomes increasingly lurid, I’d rather focus on his work than on the circumstances of his tragic death. And from the beginning his work on this blog was to provide legal academics a forum to talk to each-other about matters of interest to them—whether it was highlighting a new study, commenting on a case or talking about legal academe.  

As a brief self introduction, I’m starting my second year as the very proud dean of the absolutely amazing University of Cincinnati College of Law. Every day I hear something about what one of our faculty, alumni, staff or students are doing and I’m proud to have a role in sustaining the framework that allows these things to happen at our historic law school. So I’m going to talk about legal education. But as an engaged health law academic specializing in ethical issues in public health, the unchecked spread of Zika in the United States is also going to be a topic of discussion. Thank you for having me. It is a real honor to be included.

Posted by Jennifer Bard on August 31, 2016 at 09:37 PM in Article Spotlight, Blogging, Culture, Current Affairs, Dan Markel, Howard Wasserman, Information and Technology, Life of Law Schools, Lipshaw | Permalink

Tuesday, August 30, 2016

The Night of Conclusion

I was a guest on New York Magazine's Vulture TV Podcast (begins at 30:00 mark) discussing the finale of The Night Of. Some additional comments (with spoilers) after the jump.

1) I like the ambiguity of the ending, in which we do not really know who killed Andrea. Naz is not acquitted--it is an evenly split jury--but we do not see the end result of the investigation of Ray Halle, the suspect the show throws at us, for the first time, about midway through the finale. The truth is we never know what happened in many cases; the system makes its best guess using procedures designed to produce accurate results (albeit in an efficient and fair way).

2) I do not think the decision to continue the prosecution of Naz, even after learning about Halle, was wrong. And it certainly was not unethical. There was more evidence against Naz. The evidence against Halle was that he had motive, opportunity, and a connection to the victim--the same evidence as against the step-father and Duane Reade, although of a different nature and perhaps somewhat strong. The unforgivable sin was the prosecutor not disclosing that evidence, an obvious Brady violation. It is interesting that the show gives the prosecutor a heroic ending of sorts--she tanks the closing argument while having second thoughts, she declines to reprosecute, and she enlists Box to help her make a case against Halle. But her failure to disclose reflects a cardinal sin for a prosecutor, the most common type of prosecutorial misconduct and the source of many wrongful convictions. I wish the show had not downplayed that. And, as I said in the podcast discussion, she picked the worst of all possible ways to express her doubts--she did not dismiss the charges (a precipitous move, since I imagine jeopardy had attached, so if Halle turned out to be a dead-end, she was stuck) or disclose and let the jury hear the new evidence (and perhaps acquit). Her choice actually left Naz permanently in limbo.

3) Rule 404 does not exist in TV Land; there was more character and other-acts evidence flying around this week. Interestingly, however, some of it would have been admissible, although not for the reasons the show depicts. Some good exam hypos.

4) Trevor should have been able to plead the Fifth when asked about lying about being with Duane Reade. Wasn't he confessing to lying to police, which is a crime?

5) I did not think the decision to have Naz testify was wrong. It was poorly executed. He was unprepared for cross. And most of what came out on cross should have been presented on direct. The show presented an interesting divide over having the defendant testify. I imagine defense lawyers will say that the popular view is that an innocent defendant would take the stand and explain his side of the story and that the failure to testify is suspicious, despite the judge's charge. As presented through John, the show's theory is that, without testifying, the jury understands the defendant as wearing the "cloak of the presumption of innocence," but that if he testifies, his testimony must be strong enough to "prove his innocence." Meaning, presumably, that a defendant should never testify. In any event, his testimony is a disaster, which leads to . . .

6) I again cannot express strongly enough how turned off I was by the portrayal of women lawyers. The show destroyed Chandra's character--as always, in the service of enabling the male lawyer to emerge as the hero--in the most ludicrous ways. Several reviews have suggested the show reverse-engineered it--it needed John to be the hero, then just found the most ridiculous way to get there. Worse still, I am not sure its machinations were legally accurate. While unethical and grounds for bar discipline, I am not sure that kissing a client is grounds either for a mistrial, removal of the attorney, or forcing the attorney to yield her role as first chair. And all without asking the defendant his preferences, which should control. There is a case down here in which a defense attorney was accused of having full-on sex with her client in the interview room; she was temporarily barred from the jail, but she represented the client at trial.

There is a lot of talk about the awful portrayal of women on TV (think of some of the criticisms of Season One of True Detective). This show should be included in the discussion. Which is unfortunate, because it undermines an otherwise-good story.

Posted by Howard Wasserman on August 30, 2016 at 09:12 AM in Culture, Howard Wasserman, Television | Permalink | Comments (3)