PrawfsBlawg

Law meets entertainment news

A fun confluence. In April, a divided Ninth Circuit panel held that a state law limiting honking of car horns to warnings did not violate the First Amendment as applied to a person honking in support of a political protest. The court declined rehearing last week.

The issue, and thus the decision, has merged with the day's leading pop-culture story--the WGA strike. Burbank police have placed signs near Disney and Warner Bros. studies announcing that "excessive horn use" violates the vehicle code, in response to neighbor complaints about passing drivers honking in support of picketing writers. Applying the law in this context illustrates why Judge Berzon's dissent had it right. In this context, the government interest is less traffic safety than noise--and there is no difference in the noise from car horns as from the other noisemaking associated with the pickets.

Preemption Procedure: A Comment on the Shugerman-Kovarsky Debate in People v. Trump

Is People v. Donald J. Trump, No. 71543-23 (N.Y. Co. Sup. Ct.) preempted? This question has generated much debate, but is unlikely derail the ongoing state prosecution, at least procedurally.

The defendant is charged with 34 counts of falsifying business records. The offense is raised to the level of a felony, the indictment charges, because the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” The issue is that underlying facts may involve a federal election offense. Prof. Jed Shugerman has pointed out that the federal election law has an express preemption provision, and New York State election law has a separate provision acknowledging the primacy of federal law. Accordingly, there is a potential preemption problem which, according to Prof. Shugerman, might mean that “the case is headed to federal court for a year.” Prof. Lee Kovarsky responded with a persuasive argument that states can sometimes use even preempted federal offenses for their own purposes. No one questions, for example, that a New York attorney convicted of an offense within exclusive federal jurisdiction could nevertheless be disbarred. Prof. Kovarsky writes: “To my knowledge, in no case has a court even suggested that a federal crime can't be an element of a different state offense just because the federal crime falls within the scope of preemptive federal authority.” This seems a hard question. If I were in the NY Co. DA's Office, I would strive mightily to elide it and find safe, state crime.

Nevertheless, whatever the ultimate merits, I do not see how the defendant gets an injunction. True, earlier proceedings related to this very matter, namely, a New York grand jury subpoena, were subject to a prolonged stay as the Supreme Court considered the case. On the merits, the Court ultimately allowed the subpoena. Critically, the stay was based on a circumstance no longer present: Trump was then President. The Court explained: “The Supremacy Clause prohibits state judges and prosecutors from interfering with a President's official duties. . . . federal law allows a President to challenge any allegedly unconstitutional influence in a federal forum, as the President has done here.” Trump v. Vance, 140 S. Ct. 2412, 2428–29 (2020). Vance is not precedent for an injunction to protect a private citizen. There was also the stay of enforcement of a House of Representatives subpoena. But there, the question was not preemption, but “whether the subpoenas exceed the authority of the House under the Constitution.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2029 (2020).

Instead, the case now seemingly presents an ordinary claim of preemption in a state prosecution of a private citizen. In that context, 28 U.S.C. § 2283 provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”

The possibility that a state prosecution is preempted, standing alone, is not a ticket to federal court:

[A] federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area pre-empted by federal law, even when the interference is unmistakably clear. Rather, when a state proceeding presents a federal issue, even a preemption issue, the proper course is to seek resolution of that issue by the state court.

Bess v. Spitzer, 459 F. Supp. 2d 191, 201–02 (E.D.N.Y. 2006), as amended (Jan. 30, 2007) (quoting Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 149–50 (1988)). 

Another judicially recognized exception exists where the defendant proves that a prosecution was “brought in bad faith or is only one of a series of repeated prosecutions,” or that there is otherwise “irreparable injury, above and beyond that associated with the defense of a single prosecution brought in good faith.” Schlagler v. Phillips, 166 F.3d 439, 442 (2d Cir. 1999) (citations omitted). See also Jordan v. Bailey, 570 F. App'x 42, 44 (2d Cir. 2014). “Bad faith” in in this context means “without hope of obtaining a valid conviction.” Perez v. Ledesma, 401 U.S. 82, 85 (1971).

No exception seems to exist. There appears to be no act of Congress providing for federal judicial intervention, and no past or present litigation of these facts for a federal court to protect. Although there is debate about what is required to convict of the offense of falsifying business records, and even more mystery about what the People plan to prove, there is no indication that the prosecution has no chance of success, or is the latest in a series of failed, harassing prosecutions. Accordingly, any preemption issue should be addressed “by the state court.” State rulings would be "subject, of course, to review by . . . [the Supreme] Court or, in a proper case, on federal habeas corpus." 401 U.S. at 85.

One circumstance which neither constitutes bad faith nor tends to support a separate defense is the selective prosecution argument which may be in the offing. Federal constitutional law precedents allow selection of prominent individuals for prosecution. As Wesley Snipes learned to his dismay in a tax case, “[s]ince the government lacks the means to investigate and prosecute every suspected violation of the tax laws, it makes good sense to prosecute those who will receive, or are likely to receive, the attention of the media.” United States v. Snipes, No. 5:06-CR-22-OC-10GRJ, 2007 WL 2572198, at *3 (M.D. Fla. Sept. 5, 2007) (quoting United States v. Catlett, 584 F.2d 864, 868 (8th Cir.1978)). See also United States v. Edenfield, 995 F.2d 197, 200 (11th Cir. 1993) (“For law enforcement officers to choose to investigate prominent offenders is nothing unusual or evil.”)

The limited New York authority on prosecuting celebrities I could find is to the same effect: “assuming the decision to prosecute was based on the fact that the defendants were prominent and newsworthy, this is also not an impermissible basis for selection . . . Publication of the proceedings may enhance the deterrent effect of the prosecution and maintain public faith in the precept that [others] are not above the law.” People v. DiLorenzo, 153 Misc. 2d 1021, 1029–30, 585 N.Y.S.2d 670, 675 (Crim. Ct. Bx. Co.1992) (citing People v. Barnwell, 143 Misc.2d 922, 541 N.Y.S.2d 664 (Crim. Ct. N.Y. Co. 1989)). There is also one lower court case more or less endorsing the the proposition that it is permissible to target individuals for enforcement because they are suspected of other crimes. See People v. Mantel, 88 Misc. 2d 439, 443, 388 N.Y.S.2d 565, 569 (Crim. Ct. N.Y. Co. 1976) (citing United States v. Sacco, 428 F.2d 264, 271 (9th Cir. 1970) (“selection of this defendant for intensive investigation was based on his suspected role in organized crime”) Stuart Green has written thoughtfully about whether prosecuting celebrities and the prominent is consistent with criminal law principles, but the doctrine seems to allow it. Stuart P. Green, Uncovering the Cover-Up Crimes, 42 Am. Crim. L. Rev. 9, 42 (2005).

If the defendant could show that other, similarly-situated offenders who were members of different political parties were not prosecuted by the same office, then that would raise a substantial issue. United States v. Hastings, 126 F.3d 310, 313 (4th Cir. 1997) (citing, inter alia, United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974)). But such claims have historically proved difficult to establish. United States v. Lazzaro, No. 21-CR-0173 (PJS/DTS), 2022 WL 16948157 (D. Minn. Nov. 15, 2022); United States v. Woods, 319 F. Supp. 3d 1124, 1141 (W.D. Ark. 2018), aff'd sub nom. United States v. Paris, 954 F.3d 1069 (8th Cir. 2020), and aff'd, 978 F.3d 554 (8th Cir. 2020); United States v. Young, 231 F. Supp. 3d 33, 43 (M.D. La. 2017); United States v. Cameron, 658 F. Supp. 2d 241, 243 (D. Me. 2009).

Crowd-Litigating The People v. Donald J. Trump (N.Y. Sup. Ct.)

Correct me if I am wrong. But it appears that People v. Donald J. Trump, No. 71543-23 (N.Y. Co. Sup. Ct), will be the first major case in U.S. legal history to be crowd-litigated. Interventions of law professors and litigators with something to say are not coming on appeal. Instead amicus briefs are being filed now, complete with citation to cases and statutes, and factual analysis, on Twitter, blogs, and op-eds. Major examples are the series on JustSecurity, Prof. Lee Kovarsky’s Lawfare post on preemption, and Prof. Jed Shugerman’s New York Times oped to which Prof. Kovarsky is responding. Eric Columbus maintains an indispensable running list on Twitter. It is reasonably apparent that these writings are not only intended to educate the public, but to communicate with the prosecutors and defense attorneys involved in the case. This is entirely appropriate; if the prosecution is defective, it should end promptly; if it is righteous, the best case for it should be made.

This is a case where, as it happens, there is no shortage of genuine expertise. Defender organizations and prosecutor’s offices who work in the state courts in New York are unusually productive of legal scholars. A quick Google search shows that among many others, alumni of the Criminal Defense Division or Criminal Appeals Bureau of Legal Aid Society of New York include Barry Scheck, Sheri Lynn Johnson, and JaneAnne Murray; veterans of the New York County DA’s Office include Deborah Tuerkheimer, Jeannie Suk Gersen, and Sandra Guerra Thompson. Alan Michaels seems to have been a prosecutor in a now-important New York County decision invlolving the statute at issue in the prosecution.

While none of the above are necessarily following the Trump case, for this crowd litigation to occur, it is necessary for there to be a body of lawyers who are expert in New York practice. Although the criminal laws of no two states are identical, New York law is unusually distinctive. Unlike many states, it does not model its laws on the Federal Rules of Evidence or Criminal Procedure, but instead has its own complicated amalgam of evidence and criminal procedure statutes and rules, along, of course, with caselaw.  The New York Penal Law is an early version of the Model Penal Code, but, to keep things interesting, New York courts regularly find dispositive cases decided under the repealed and supplanted codes. Without a background in New York criminal practice, general smartness or criminal law experience elsewhere may well be unhelpful—inaccurate--in commenting on a New York prosecution, unless it is preceded by full research.

I suspect this continuous workshopping of the case will primarily aid the defense. The prosecution had years to prepare the case, and if they did not think hard about the potential roadblocks and defenses, then their reputations will justifiably be marred. For that reason, given their resources, I assume the case was carefully prepared and war-gamed.  The lead defense attorney, Todd Blanche, is richly experienced, but his website suggests he is now a sole practitioner after years of working with large firms and the U.S. Attorney’s Office in the Southern District of New York.  The scrum of lawyers seen at counsel table at the arraignment may be more in the vein of too-many-cooks rather than a coordinated team.

As a game-theoretic question, I assume the actual prosecutors and defenders will at least glance at these materials. Conceivably, every lawyer or professor comment will be something already spotted and evaluated.  But it would be embarrassing to be surprised, or to lose, on a point which had already been addressed and discussed in the legal community.

Prosecutorial Discretion and the Indictment of Donald Trump

After many days of leaks from the grand jury and anxious speculation, the news broke last night that a Manhattan grand jury indicted Donald Trump.  The indictment remains sealed, and so we do not yet know the precise charges, but the many leaks from the grand jury indicate that the case revolves around payments to Stormy Daniels.

News of the indictment has sparked an outpouring of intense and diametrically different reactions.  On the left, people are delighted that Trump will face criminal charges; they think Trump has been engaged in years of criminal misconduct, and they see this as a moment of reckoning.  On the right, people are outraged by the charges, insisting that they are politically motivated and legally suspect.  Both of these reactions have something in common—they both touch, to some extent on the topic of prosecutorial discretion.  The delight from the left rests on the premise that law enforcement had for years looked the other way, and failed to hold Trump (like other powerful people) accountable.  The outrage on the right is based on the assumption that the Democratic Manhattan DA targeted Trump because he is a popular Republican politician.

I don’t want to wade into the merits and demerits of these opposing views.  Instead, I want to point out that, to the extent that they talk about prosecutorial discretion, both are likely correct.  People on the left are correct that powerful people often do not face consequences for acting illegally.  Prosecutors are loathe to bring charges against wealthy and powerful people because those people have the resources to fight back and because the prosecutor will look bad if the case falls apart.  Examples of such cases publicly falling apart abound—from Cy Vance’s failed prosecution of DSK, to Mike Nifong’s pursuit of the Duke Lacrosse team, and Marilyn Mosby’s repeated failed prosecutions of Baltimore police officers in the death of Freddie Gray.  Examples of prosecutors deciding that the hassle isn’t worth it are more difficult to come by because the public usually doesn’t find out about cases that aren’t brought.  But Alex Acosta’s decision not to bring any federal charges against Jeffrey Epstein gave us a rare public glimpse into that dynamic.

People on the right are correct that prosecutors often make decisions for political reasons.  The failed cases above were likely brought with the expectation that a successful prosecution would be helpful in the DA’s next election.  But even when local prosecutors aren’t thinking about their own political future, they will pursue cases to “send a message” to the public.  Thus, if you are a celebrity whose criminal conduct was very public, you may find yourself treated worse than the average defendant so that the prosecutor can appear tough on crime.  Just ask Martha Stewart and Plaxico Burress. 

As the above paragraphs explain, prosecutorial discretion—like all forms of discretion—inexorably leads to similarly situated people being treated differently.  Although equal treatment is the ideal, our legal system often relies on discretion because it is too difficult to specify ex ante what all of the relevant considerations ought to be.  This is one reason that the Supreme Court has given in stating that judicial review of prosecutors’ charging discretion is inappropriate. 

Because we cannot ensure equal treatment through ex ante rules, one might think that we could attempt to do so ex post.  This is what Jim Comey sought to do when he explained why criminal charges against Hillary Clinton were inappropriate.  He explained that DOJ had combed through the previous cases involving mishandling of classified information, identified the enforcement criteria that were used in those cases, confirmed that those criteria were not present in Clinton’s case, and thus determined charges were not warranted.  (If I recall correctly, the enforcement criteria were large quantities of material and/or dishonesty or obstruction on the part of the defendant.  Fun fact:  While neither of those criteria were present for Clinton, both are present in the Mar-a-Lago documents investigation against Trump.)

It might be possible to conduct the same sort of ex post inquiry in the Manhattan case against Trump.  The folks at Just Security have pulled together a document with a helpful spreadsheet of business records cases, which could allow readers to compare the Trump case to previous cases that have been pursued.  Unfortunately, documents like this are limited—they identify only cases that were pursued; they do not and cannot identify similar cases that the Manhattan DA’s office decided not to pursue.

Ultimately, that illustrates why modern prosecutorial discretion sits uneasily with our commitment to the principle of equal treatment under the law.  As a country, we have enacted broadly written criminal statutes, which delegate enormous enforcement authority to prosecutors.  And we have not created any mechanisms to provide transparency into how that authority is exercised.  We know that prosecutors routinely decline to bring charges when they have probable cause that a crime has been committed, and yet we do not know much of anything about how they use that power.

The indictment of a former president (and current candidate for the office) was always going to be a political firestorm.  But our failure to grapple with the black box of prosecutorial discretion only adds fuel to the fire.

I Fought the Law (the IRS) and the Law Won

Perhaps you've read about the legislation to provide an additional $80 billion in funding for the IRS so that it can hire more agents to go after high income and corporate tax avoiders and evaders.  The first-world story you are about to read might not have occurred if I had been able to get in touch with one of those agents.

It is also a story that suggests perhaps, in my phase-out from full-time teaching, I have too much time on my hands.

The story is about a $311.82 issue I've had with the Internal Revenue Service since this past June.  Here is the punch line.  If the IRS penalizes you $311.82, you try to reach a live person via their 800 number.  But you cannot do so because there is no live person available at the other end. You write letters and get computer generated responses.  You contact the Taxpayer Advocate Office, and it declines to advocate for you.  

At that point, your only recourse is judicial and it turns out, as a practical matter, you have none.  Now that is probably an "access to justice" issue that affects millions of other cases - the legal system simply does not accommodate small matters very well.  And, as I just explained to my wife, there is no small claims court in the federal judicial system.  So even though I have cases indicating (if you keep reading, you can judge for yourself), that I have an open-and-shut winner against the IRS, unless I'm prepared to foot $640, more than double the amount at issue, to pursue it, I've reached the end of the line.  Hence, this cri de coeur.

And, to spare those of you who couldn't care less, it all comes after the break.

The story begins last April.  We have a CPA who does our taxes for us.  We are relatively old, so we've saved some money and it's invested in the markets.  2021 was a good year, but the first quarter of 2022 sucked, so the irony was that we had to pay a lot of money in federal income tax in April 2022 for investment gains that had long since disappeared.  (As I said, first world problem, but whatever....)  Our CPA e-filed four documents for which we were going to have write checks - 2021 income tax to the U.S. and Massachusetts and 2022 estimated taxes to the U.S. and Massachusetts.  On April 14, my wife wrote out four consecutive checks.  I put them in four correctly addressed envelopes and stamped them.  I walked down to the U.S. Post Office mailbox on the corner of Richdale Avenue and Walden Street in Cambridge and deposited all the envelopes.

Let's say that the four checks in the check register were numbered as follows:  1552 - Commonwealth of Massachusetts; 1553 - U.S. Treasury; 1554 - U.S. Treasury; 1555 - Commonwealth of Massachusetts.   When I looked at our bank statement two weeks later, I could see that checks 1552, 1554, and 1555 had cleared (including one of the checks to the U.S.).  Check 1553, the big one for 2021 income tax, had not.  

There is an 800 number to call the IRS about questions like this.  I tried it on several occasions.  One goes through a whole series of prompts before getting the following message and a hang-up: "We are sorry but due to volume we cannot take your call now."  I tried looking at my account in the IRS's online system and found that it was only current as of the end of 2020.

Now I felt like I was between a rock and a hard place.  I called our CPA. He told me the IRS was extremely slow because of COVID and its lack of staff.  The IRS website itself has a form for getting reimbursement for stopped check fees because it is so likely to have lost it.  But I didn't want to stop the check and pay again on the likely chance that the IRS was just ... slow ... and was ready to cash the check.

So I waited.

On June 6, the IRS issued us a CP14 notice for the unpaid taxes (i.e., the amount of check 1553), a late penalty of $311.82, and interest of $178.19.  I immediately stopped payment on the check, and paid via an electronic bank transfer the amount of check 1553.  I declined to pay the penalty and interest.  I looked up on the IRS website how to dispute a penalty.  It said that to dispute a penalty one should call the toll-free number in the upper-right hand corner of the notice.  The only problem was that the CP14 notice had no toll-free number.  And I called the general toll-free number (see above), which resulted in the same "sorry, too much volume" hang-up.  

Hence, on June 13, I wrote a long letter to the IRS office in New York that issued the notice (this time sending it certified mail).  It laid out all the facts and requested cancellation of the penalty and interest.  

There was no response until mid-August when I got a computerized form letter from somebody in the Memphis, Tennessee office of the IRS, acknowledging receipt of the June 13 letter, completely ignoring what it said, and stating that I now owed the penalty of $311.82 plus additional interest.  There was no phone number or any other instruction about how to dispute the finding.

I called my CPA.  It turns out there is a double-ultra secret practitioner phone number to the IRS.  We called it, and ended up with the same "sorry, too much volume" hang-up.

Then it occurred to me to contact my congressperson.  A real (and helpful) person in her office got back to me promptly and said he would contact the Taxpayer Advocate Office of the IRS on my behalf.  When I figured out what that was, I told him "thanks" but I could do it myself.  He told me it was already done and he'd get back to me with the answer.  

A few days later, the Taxpayer Advocate's response turned out to be: (a) I could submit evidence that I had sent the check (e.g. a certified or registered mail receipt), or (b) throw myself on the mercy of the IRS by filing the one-time in a lifetime request for waiver of a penalty for not having paid one's taxes.  I objected to (b) on the grounds that I had paid my taxes, and to (a), after a brief bit of research, on the grounds that (i) 26 U.S.C. §7502(a)(1) states that the date of postmark of something mailed to the IRS is the date of filing or payment, (ii) if the USPS or the IRS loses the envelope then there is no way to see the postmark, (iii) there is no requirement of mailing by certified or registered mail, (iv) in the normal course, the envelope should have been postmarked on the date I dropped it in the mailbox, and (v) there was evidence of mailing, i.e., my testimony that I had in fact mailed it.  That didn't get a rise out of the Taxpayer Advocate Office.

At this point, I was fed up and didn't want interest to keep piling up, so I paid the outstanding claim for penalty and interest with an electronic transfer.

But being, as I am, slightly obsessive about stuff like this, and a lawyer to boot,  I did some research. I quickly found several cases in which petitioners won against the IRS on the basis of their oral testimony that they had deposited the filing or the payment in the US mail.  (See Jones v. U.S., 226 F.2d 24, 28 (1955) ("We take judicial notice of the fact that the overwhelming majority of taxpayers who live elsewhere than in the centers where the offices of collectors are located make their returns and present their claims for refund, and the like, through the mails. Even great numbers of those living in the immediate neighborhood of a collector's office doubtless follow the same practice; and the procedure is encouraged by the collectors since it tends to conserve the time of those officials and their staffs. Reliance upon the mails as the medium through which such deliveries for filing are made may be said to be all but universal."; Wells v. C.I.R., 22 T.C.M. (CCH) 169 (1963); Walter M. Ferguson, Jr., 14 T.C. 846 (1950) ("The final issue has to do with the penalty determined for the alleged failure ... to file a return for 1945. The Commissioner makes and could make no sound argument in light of the evidence. It is unnecessary to decide whether there was a ‘filing.’ This would not be the first time that a collector had lost a return. Even if no return was filed, the failure was due to reasonable cause (failure of the mails) and not to willful neglect ..., so in no event would the penalty be proper.")

A miscarriage of justice and the law is on my side! Now I was prepared to do something I had never done in forty-three years of being a lawyer - file a lawsuit against someone on my own behalf. (The congressperson's office noted that, once I was litigating, House of Representative rules prohibited its further involvement.)

What I discovered is that filing a claim in the US Tax Court, particularly in the small cases division, is really easy.  You can do it in pro per even though I signed as the lawyer for my wife and me.  You can file electronically.  I checked off that I was filing in regard to a disputed notice of deficiency, put together a short but thorough statement.  The $60 filing fee seemed like a reasonable bet against my chances of winning this case.  On August 30,  I filed in the U.S. Tax Court, requesting trial in Boston, seeking reimbursement of the $311.82 penalty and the interest.  (I wasn't sure if the filing fee would be a taxable cost when I won, but I threw that in too.)

Let me note, at this point, that I understood I probably didn't have a good case on the interest.  It was set statutorily at five percent, and that seemed excessive to me versus what I would have earned on the money, but the government would have a reasonable position that I, and not it, had the use of the money for the couple months.  But I was prepared to go to the mat on the penalty.  Millions for defense but not a penny for tribute!

On October 4, I received an email notice that there was a new filing in my case.  I eagerly logged went into Dawson, the Tax Court case management system, expecting to see the government's groveling response.  What I found instead was a motion to dismiss my case for lack of jurisdiction in the U.S. Tax Court.  More quick research.  Well, it turns out I assumed (and we know what that stands for) that the August letter was a notice of deficiency for failure to pay the penalty and interest.  It was not.  Penalties are not deficiencies.  And the U.S. Tax Court has no jurisdiction over disputes about penalties.  I spoke to the lawyer for the IRS, agreed that he was right and that I would concur in the motion and a dismissal without prejudice, and vented to his sympathetic but powerless ear about the injustice of it all.

To be fair, even the Taxpayer Advocate Office within the IRS recognizes this particular unfairness, and have said so in a legislative recommendation recommending that the Tax Court be given jurisdiction over penalty disputes.

Nevertheless, where we stand now is this.  I recognize that I really only have a good case for recovering the $311.82 penalty.  There are courts with concurrent jurisdiction over this claim:  the US Court of Federal Claims and the US District Court for the District of Massachusetts.  The fee for filing a claim in either one of them is $402.  To use the electronic filing system in either one, I would need to become a member of the bar of that court (which I could do) at a cost of $238.  

I have thought about whether making the point is worth $640 and the burden of drafting and filing pleadings for a federal court, as well as burdening the dockets of already overburdened courts.  I decline to do that.  Rather, its value to me is as a story I can now use when telling others with relatively trivial claims that sometimes there's just no justice in the world, and the law can't do everything.

So I give up.

Presidents and Prosecutorial Discretion

News that the Justice Department had obtained a search warrant and seized several boxes of materials from Mar-a-Lago, the residence of former President Donald Trump, shocked the nation last week.  Details about the reason for the search and what was found have slowly trickled out, thanks in part to DOJ’s motion to unseal the warrant, various reports from news outlets, and several public statements from Trump himself.  Although the factual basis for the search is not entirely known, commentary about the search and its implications have dominated the media landscape.

Much of the commentary surrounding the search has focused on whether the search was justified.  The justification commentary hasn’t been confined to whether the search was legally justified—that is, whether there was probable cause to support the search warrant—but rather whether the search can meet some heightened standard given that the target of the search was a former president. 

At it’s core, those arguing for heightened scrutiny (rather than the ordinary legal standard for when a search warrant is justified) seem to be making a political argument—namely, that because the current resident of the White House ran against Trump in 2020 and because Trump might run for president again in 2024, any search warrant needed to be based on more than just probable cause to believe that evidence of a crime would be found in Mar-a-Lago.  Implicit in this argument is the idea the ordinary legal standards do not provide enough protection against politically motivated prosecutions, and so the legitimacy of any criminal investigation or prosecution of President Trump must be judged by a different standard.

As someone who studies criminal justice and politics, I think that there are analytical shortcomings and unappreciated implications that flow from this heightened scrutiny argument, and I want to lay them out here in the hope that they can help shape the discussion about the Mar-a-Lago search within the legal community.

First, it is important to note that the “heightened scrutiny” argument is often made without much information about what such a standard would look like.  Qualitative standards, including probable cause, are notoriously difficult to articulate with any specificity.  But in order for the argument about heightened scrutiny to make any sense, it needs to provide some sort of guidance; otherwise it is useless as an actual yardstick against which to assess DOJ’s actions.  A call for a heightened standard without actually articulating such a standard operates only as a way to criticize DOJ (“this wasn’t enough”) rather than as a standard that DOJ officials could attempt to meet.

How could we go about articulating a “heightened scrutiny” standard?  For one thing, we should be clear about whether this is a question about the amount of evidence that DOJ had to support the warrant application, whether this is a question about the type of crime that Trump is suspected of committing, whether it is some combination of the two, or whether the standard is about some extra-legal consideration.

The idea that DOJ should have a larger amount of evidence than what would amount to probable cause before seeking a search warrant of a former president doesn’t seem like a particularly radical argument to me.  Probable cause is not a difficult threshold to meet.  There is reason to believe that prosecutors and law enforcement already tend to require more than just probable cause in order to search or arrest a high-profile subject; instead, they want overwhelming evidence that a crime was committed or that evidence of that crime is likely to be found.  To be clear, law enforcement likely use this heightened evidentiary standard in cases involving high-profile subjects because they know such cases will garner more public attention, and they don’t want a case to fall apart when the public is paying attention. 

For what it is worth, I don't think that those calling for a heightened standard are saying that a higher evidentiary threshold is needed because the news accounts suggest that the FBI had ample evidence that they would find the documents they sought in the search warrant, and the inventory from the search indicates that they did find such documents.

So that means the call for heightened scrutiny is likely an argument that not all crimes should give rise to an investigation or a search of a former president.  The idea that someone should essentially be immune when it comes to some crimes may seem controversial—at least until people are made aware of how much relatively innocuous behavior is actually criminal.  Congress and state legislatures pass dozens of new criminal laws every year, some of which contain sweeping language.  (If you are curious about how silly some of those laws are, you should check out Crime a Day.)  To the extent that the “heightened scrutiny” argument is merely an objection to overcriminalization in specific circumstances, then it seems unremarkable.  But again, the argument needs to be spelled out in more detail because specifying which crimes should remain unenforced is necessary to assess the argument. Should former presidents be exempt from prosecutions for mishandling classified information?  Tax fraud?  Burglary?  Shooting someone on Fifth Avenue?

The biggest flaw with both the type of crime argument and the amount of evidence argument is that they don't just apply to former presidents:  Why should these heightened standards apply only to Donald Trump and not the rest of us?  Probable cause is an incredibly low standard to meet. So why is that a good enough standard for searching or arresting ordinary citizens?  And why isn’t the overcriminalization critique an argument for stopping all prosecutions of such crimes, not just prosecutions of those who were elected to national office?

Some of the commentators arguing for heightened scrutiny have suggested that their argument is based on a perceived danger that former presidents will be targeted for illegitimate reasons—specifically, they will be targeted in order to help the political fortunes of those who are currently in office.  But personal and political grievances are not limited to former presidents; they exist in communities across the country.  For example, when I was doing research for my book on plea bargaining, I reached out to the lawyers of a man who had been pressured into pleading guilty for a crime he hadn’t committed.  The lawyers told me that their client was scared to talk to me:  Even though he had been exonerated and his conviction reversed, local police had made it known that they still thought him guilty, and so the man was worried about doing anything that would draw their attention and encourage them to use their power to harass him.

You would think that judges could stop police and prosecutors who use silly laws or low evidentiary threshholds to harass people.  But when faced with evidence that law enforcement used their powers to arrest and search as a pretext, or have used the powers to punish individuals for extralegal reasons (like exercising their right to free speech), courts have refused to intervene.  But those pushing for heightened scrutiny either don’t know or don’t care that overcriminalization and weak evidentiary thresholds allow abuse of ordinary citizens.  They only seem concerned that people who have held positions of immense power are shielded from possible abuse of the criminal justice system.

Of course, the people who are arguing for heightened scrutiny don’t frame their argument in those normative terms.  Indeed, some don’t even say that former presidents should have additional protection.  Instead, they suggest that such protections are necessary for political reasons—e.g., that without heightened standards the political allies of former president Trump will see DOJ's actions as illegitimate political persecution, and they may even resort to violence.

I’m not sure that it is wrong to say that public officials must think about politics when it comes to criminal investigations and prosecutions.  After all, our criminal justice system gives enormous amounts of discretion to law enforcement and to prosecutors, and it largely regulates that discretion through direct elections or political appointments and removals.  In other words, despite repeated claims to the contrary, investigations and prosecutions are—on some fundamental level—political.

But I don’t think that the people who are making the heightened scrutiny argument fully appreciate the implications of adopting an explicitly political approach to investigations and prosecutions.  Specifically, I don’t think they appreciate that this principle—that political considerations should drive the exercise of criminal justice powers—also legitimates efforts by progressive prosecutors to stop enforcing low-level crimes, to stop cycling people of color and people from low-income communities through jails and prisons, and to refuse to enforce highly-politicized offenses such as abortion-related laws.  The prosecutors who have pursued such policies have done so with significant political support from within their communities, but with great pushback from outside of those communities.  For example, earlier this month, Ron DeSantis removed a local prosecutor from office on the basis of statements that the prosecutor wouldn’t prosecute people for abortion-related crimes.  DeSantis claims that these statements are evidence of neglect of duty and malfeasance.  Would an explicit policy of eschewing criminal investigations and prosecutions of former presidents also be neglect of duty or malfeasance?  And if not, why not?

I also don’t think it is a good idea for those arguing in favor of heightened scrutiny to focus on the violence that President Trump’s followers might wreak on this country.  For one thing, I think that some Trump supporters will resort to violence no matter what happens (e.g., if their candidate loses a fair election).  In addition, I think that argument tells people that being seen as unpredictably violent is the way to get preferential treatment from law enforcement. Think, for example, about the violence and property damage that occurred during the racial justice protests of 2020.  The logical conclusion of the heightened scrutiny argument is that, if there is enough violence of that sort, then police and prosecutors will have to change their practices and stop relying on low evidentiary thresholds and bloated criminal codes when policing poor communities of color.  Maybe the people who are arguing for a heightened standard for former presidents would also endorse a public and explicit change to what crimes are enforced and the evidentiary thresholds being used in poor communities out of fear that more violence or property damage could occur—but I’d like to see them say so if it is true.

The truth is, the search at Mar-a-Lago has forced people who usually think about politics and presidential power to grapple with the fact that we don’t require much from law enforcement before they can search and arrest members of the public.  The former is the stuff of nationally syndicated pundits and constitutional law professors; the latter is the territory of criminal justice practitioners, advocates, and crim law professors.  Now that the country is paying attention to how much power and discretion is given to officials in the criminal justice system, perhaps it is time to address that enormous and largely unchecked power on its own terms rather than just worrying about whether that power will be directed at a former president.

Parler v. Amazon Web Services: Defamation & the Promotion of Violence in Social Media

Parler v. Amazon Web Services presents some intriguing issues concerning the role of social media in fomenting violence, the market power of Amazon and its web services to suppress speech businesses, and the continued controversy over who is and who is not a public figure. See Parler v. Amazon, Complaint, CASE #: 21-2-02856-6 SEA (Sup. Ct. Wash., Mar. 2, 2021); Parler v. Amazon Web Services, CASE NO. 2:21-cv-0031-BJR, Order Denying Motion for Preliminary Injunction (W.D. Wash. Jan 21, 2021).

Amazon Web Services indefinitely suspended the social media company Parler from its site a few days after the riots at the U.S. Capitol on January 6, contending that “Parler was used to incite, organize, and coordinate the Janary 6 attack on the U.S. Capitol.”

Shortly after being suspended, Parler sought an injunction against AWS in federal district court in the state of Washington. Parler, which describes itself as a “conservative microblogging alternative and competitor to Twitter” and Facebook, asserted that AWS was using its market power to disable a potential competitor and claimed that AWS had engaged in conspiracy in restraint of trade, breach of contract, and tortious interference with business expectancy. AWS countered that Parler’s inadequate moderation of its site violated AWS’s Acceptable Use Policy, which prohibits “illegal, harmful, or offensive” use or content. AWS also contended that Parler was in breach of its Customer Service Agreement, which justified AWS in suspending Parler. The federal district court denied Parler’s motion, finding that Parler had failed to show a likelihood of success on the merits of its claim. The judge concluded that Parler supplied no evidence of any conspiracy in restraint of trade, and Parler’s breach of its agreement with AWS and the Acceptable Use Policy made Parler’s breach of contract suit unlikely to succeed. Similarly, Parler’s breach also made its tortious interference claim weak. Evaluating the balance of hardships in the case, the court stated: “AWS has convincingly argued that forcing it to host Parler’s users’ violent content would interfere with AWS’s ability to prevent its services from being used to promote—and, as the events of January 6, 2021 have demonstrated, even cause—violence.” The court further held that the public interest did not support granting an injunction forcing AWS to host the incendiary speech that some of Parler’s users engaged in, opining that the riots at the Capitol “was a tragic reminder that inflammatory rhetoric can—more swiftly and easily than many of us would have hoped—turn a lawful protest into a violent insurrection.”

Parler was off the internet for more than a month while it tried to find replacement web services. On March 2nd, 2021 Parler filed suit against Amazon Web Services and Amazon.com in state court in Washington. In its complaint, Parler insisted that AWS’s suspension was motivated by a desire to eliminate the threat Parler poses to “surveillance capitalism” because it does not sell user data. The complaint recounts instances of violence-promoting content appearing on Amazon, Twitter and other social media sites, suggesting that AWS’s suspension of Parler with less than 30 hours’ notice was based on concerns other than its content moderation. Further, Parler alleges, implausibly and without support, that AWS directed hackers to Parler’s backup datacenters and began secretly selling Parler’s user data.

Parler brought various claims against AWS, including deceptive trade practices, defamation, breach of contract, breach of fiduciary duty, tortious interference with contract or business expectancy, unfair competition, negligence, and other claims (for a total of fourteen claims). The suit seeks trebled and exemplary damages and attorneys’ fees.
The basis for the defamation claim was an email AWS allegedly leaked to BuzzFeed that stated that AWS was indefinitely suspending Parler because it was unable or unwilling “to remove content that encourages or incites violence against others.” Parler asserts that AWS made this claim, despite being aware that Parler had a history of removing problematic content and was testing a new artificial intelligence system to moderate problematic content. Parler asserts that it is not public figure and its content moderation policies were not a matter of public concern, but even if it were, AWS acted with knowledge or reckless disregard of the falsity of its allegations that Parler had been lax in moderating troubling content. AWS complained that this defamation cost it millions in lost business.

Is Parler a public figure? While it is true that a defendant cannot bootstrap a plaintiff into becoming a public figure by virtue of the defendant’s defamatory allegation, Parler was in the public eye based on its business practices before AWS leaked the email. Indeed, a Washington Post article published the day before the Capitol riots on January 6 stated that “[t]alk of guns and potential violence is rife on . . . the conservative social media site Parler.” Parler suggests that it is no more responsible than other social media for allowing violent content on its site linked to the events of January 6th. If this allegation its true, it would lend credence to Parler’s claim that the blame for the riots has been falsely pinned on its site; however, Parler did not sue the media linking its site to the riots but instead sued AWS. AWS may assert that the leaked email about Parler is technically true: Parler was unable to keep up with moderating violence-promoting content. Moreover, if AWS relied on credible news sources to conclude that Parler was being used to foment violence, it would be hard for Parler to prove that AWS knew or recklessly disregarded the falsity of AWS’s attribution of inadequate moderation to Parler. On a side note, it seems at least as likely that AWS booted Parler for damaging AWS’s own reputation as it does that AWS booted Parler for anti-competitive reasons. Regardless, if this defamation action helps uncover whether Parler’s lax content moderation was more responsible than that of other social media for the riots of January 6, it will be doing a public service.

Lawyering and Responsibility

Somehow I have managed to retain my back door into Prawfs, and with Howard's permission, I am sharing what follows.  It is my note today to my Contracts students who just finished their first two credit hours segment and will return for the remaining three credit hours in the spring semester.  I thought it might be of some interest to other law professors.

 Lawyering and Responsibility

I know that you will be consumed over the next hours and days with exams and grades, but I decided I wanted to pass along some thoughts about current events and their relationship to what we do together.  Somebody who hasn’t endured the first two credits of my Contract Law course might not understand the connection between the substance of the class and the political and social events of the last several months. 

My students, past and present, know that contract law is a logical model used to translate real-world narratives of desired outcomes into legal binding commitments.  Before the fact of disputes, lawyers use contracts to model, in fewer bits and bytes of information, an underlying analog reality, and do so in a way that permits parties to act together in the face of risk and uncertainty.  After the fact of disputes, lawyering is weaponized reason, sublimating (to repeat a reprehensible bit of recent incitement) trial by combat into an intellectual and non-violent game of winners and losers.  The rule of law is a cultural norm that says the loser of that game accepts the loss without resort to trial by combat.

I have spent my academic career trying to articulate the difference between the nature and logic of legal systems, on one hand, and moral imperatives, on the other, in situations far more mundane than we have been witnessing.  It began with the observation, in the wake of the Enron-WorldCom corporate scandals of the early 2000s, that there were significant limitations to the legislation of “good governance.” Courage, independence, integrity, humility, all essential characteristics of good CEOs, board members, Presidents, and Senators, resist being captured in the language of a statute or a contract.  Statutes and contracts embody fundamental characteristic of positive law: if antecedent conditions exist, rules of law establish inferences that particular legal consequences must ensue.  Both the thrill and the dark side of lawyering arise from the complexity of the real world narrative – we don’t always agree that the antecedent conditions exist, and even if they do, we don’t always agree on the particular rules that get triggered. 

Many business decisions (like many family or personal decisions) are not easy – closing an unprofitable plant, for example, creates distress but is necessary if the business as a whole is to survive.  Personally, I don’t love every professional decision I’ve ever made. Nor can I be sure my belief that I was appropriately reflective was not a rationalization.  But if I can’t recognize the clear cases of the clash between logic and moral imperatives, then the nuanced cases are hopeless. 

In the days since we last were together as a class, I have thought about saying something about lawyering that has gone beyond the pale, specifically the specious litigation undertaken by Rudy Giuliani, Sidney Powell, Jenna Ellis and other lawyers around the country.  Several weeks ago, I signed the Lawyers Defending Democracy letter calling for bar associations to pursue sanctions against those lawyers.  The license to employ the logical model to translate narratives into legal consequences is not a license to write fiction or spew fantasy.  The result of the litigation demonstrates that it was fiction and fantasy.  And the spewing of fantasy by lawyers who should know better – incompetents like Powell and accomplished lawyers like Cruz and Hawley – contributed to the violence.

You will get licensed as a lawyer for the same reason you get licensed to drive a car or carry a firearm.  You will have been entrusted with the weapon that I have now spent two credit hours teaching you to use.  How you use the weapon, if at all, is ultimately not a matter of legality (except in the most egregious cases), but one of conscience.  As we have seen in class, the challenge usually won’t be to differentiate between clear cases of good and evil – but rather to decide in close cases of the Venn diagram overlap how, if at all, to employ the intellectual gifts you brought to class and the professional tools that have been entrusted to you. 

I will never be able to give you a transcript grade on this particular lesson.  But it’s what I hope you remember long after you have forgotten the two old drunks who contracted on a napkin to sell the Ferguson farm for $50,000, title satisfactory to buyer.

I look forward to seeing you (via Zoom) on January 25.

Best,

JML

How to Cover Protests and Crime (*slightly updated)

I just finished reading this thought-provoking article from Arc Digital about media coverage of protests and political implications.  It is a good reminder that media have to make substantive decisions about which stories to cover.   But it also is basically a microcosm of a lot of coverage that I've seen about how the lawlessness at protests and crime more generally is likely to play out in the presidential election.

Implicit (and sometime explicit) in this article is the idea that, although the political arguments about crime and the protests that are being leveled against the Biden/Harris ticket are wrong a a matter of fact and as a matter of logic, the arguments might still succeed.  The author notes that conservative media outlets and prominent Republicans keep saying that Biden and Harris haven't condemned looting and violence at the protests.  But of course they both have.  The author also seems to acknowledge that it's illogical to blame Joe Biden for things that are happening while Trump is president or to say that crime will get worse if Biden is elected.  Even if we think presidents are responsible for crime--which is a silly thing to assume--crime rates dropped when Biden was vice president, and similar protests and violence in Ferguson were handled much more effectively when Obama was president.  Yet this author is quick to tell Biden and Harris that they need to do more to reassure voters that they don't support violence, and that they have to be careful not to be more forceful in condemning vigilantes than antifa because that might give voters the wrong impression.

In short, the article adds to the pile of commentary that seems to assume the current violence in American cities will hurt Democrats, and thus focuses on how the Biden/Harris response could be *better* while largely ignoring that the Trump/Pence response has been pretty awful. 

That same double standard appears in the discussion of media coverage.  The article notes how the mainstream media has ignored some stories that gained traction in the conservative media.  And it argues that these omissions could make people think that Democrats support rioting.  But there’s no similar critique of the conservative media.  There is no detailed catalogue of what stories didn’t get coverage on Fox News or in the National Review.  There’s no concern about stories from these outlets that seem to support vigilantism or turn a blind eye to police violence.  Nor is there an explanation about why alienating voters is only something for mainstream media or left-leaning outlets to worry about.

Don't get me wrong.  I think that the concern and the critique offered in this article are based in good faith.  The author seems to support Biden/Harris and I suspect she wrote this story because she is worried that they might lose.  But I worry about the cumulative effect of stories such as this on criminal justice politics in this country—stories that focus on whether law & order issues will hurt Democrats and that assume they will help Republicans.  This country has only recently started to recover from decades of the two parties trying to out-do each other as tough on crime.  Framing "law & order" as something that Democrats always need to be afraid of could undermine the small reforms that have been made.

My biggest criticism of this reporting and lots of other commentary that I’ve seen is that it doesn’t attempt to put questions about crime and disorder at the protests into a larger context that includes actual empirical evidence about what’s happening (rather than just anecdotes).  For example, I’ve seen dozens of commenters talk about the “sense” or “perception” that the protests are not peaceful, but are instead riots filled with lawlessness and violence.  Isn’t that something that could actually be tested?  How many protests do we see across the country every day where there is no looting or burning of buildings?  A political commentor who is tempted to write another "crime is bad for Biden/Harris" story could do some independent research to provide additional factual context to whatever "there's a sense" conjecture that she wants to write.

For example, I haven't seen very much in-depth reporting about what arrests police are making at these protests.  A quick glance at the Portland Sheriff’s booking database showed me that law enforcement in Portland are still arresting a significant number of people for not following police orders.  That information about arrests in Portland is especially newsworthy given the wide spread coverage about the Portland DA refusing to prosecute people arrested at protests unless they were looting or engaged in violent behavior.  It’s fair to ask why the police are continuing to arrest these people who are literally protesting police aggression.  Similarly, a sheriff from just outside Portland* recently released a statement saying that judges are contributing to the lawlessness in Portland by releasing protestors on their own recognizance, claiming that police are arresting the same people over and over again.  This statement is gaining tons of traction on Twitter, but local reporting makes clear that the statement is factually incorrect:  "Court and jail records show that few people have been arrested multiple times at protests and that the majority of arrests have been for non-violent crimes."**

Finally, it would be nice if critiques of media coverage about crime during these protests seemed to have some appreciation about the ordinary problems associated with media coverage of crime—the disproportionate coverage of serious crime, the uncritical repetition of law enforcement statements, the effects of the availability heuristic on the public.  This article, for example, chides the media for not giving complete accounts of the criminal history of Jacob Blake.  Is that really what we want the media to do?  Do we really think that the fact a person has been accused of a crime makes it more likely that they were violent towards the police? And if so, where is the outrage that the media doesn’t have access to the disciplinary records of the officer who shot Blake?  Or do we assume prior bad acts are only relevant for people who police are shooting and not for the police themselves.

In any event, the article is worth reading because it does a good job highlighting questions about content decisions that those in the media have to make.  But this author had to make similar decisions for this very article, and it’s far from clear that her decisions are more evenhanded or less biased than the decisions she is criticizing.

* Previous version of this post mistakenly said that it was the sheriff of the country that includes Portland.

** This paragraph has been updated to include the information from local media contradicting the sheriff's statement

After the Golden Age: The Fragility of the Fourth Estate

The period between 1964 and 1984 was the Golden Age of press cases in the United States Supreme Court. In that twenty-year span, the Court decided more landmark press cases than ever before or since. The press cases decided during this Golden Age contain some of the US Supreme Court’s loftiest rhetoric about the role the press plays in our democracy, and when read as a whole, the cases evince a strong commitment to the idea that the press serves as the Fourth Estate—the unofficial branch of government tasked with checking the other three. Though the Court never wholly embraces the terminology of the Fourth Estate, its foundational decisions contemplate the press playing a vital role in our constitutional scheme of separation of powers. This role makes the press the watchdog that informs us what the legislative, executive, and judicial branches of government are up to and continually replenishes the stock of news – real news – that enables informed public discussion and rational public policy. 

As I hope to show in an article I've been working on for some time now, the Court during the Golden Age implicitly recognized that the press was a powerful institution that could protect its role in fostering democratic discourse between government and its citizens. Although the Court recognized in dicta the special role played by the press in democracies, the Court was reluctant to grant special privileges to an institution that could leverage its power and resources to fight against incursions by the official branches of government. Thus, the Court granted the press (and often simultaneously individual speakers) strong constitutional protection from direct government censorship, such as prior restraints or compelled publication, but was reluctant to grant affirmative rights such as access to information in government hands (with press and public access to criminal trials being a notable exception).

At the time, the Court had before it impressive examples of the press performing its role of checking government abuse of power and informing citizens without any assistance from the government. The press had the resources and will to deploy investigative expertise, leverage public opinion, and pursue legal challenges to fend off attempts by the legislature or executive branches to limit press power. Moreover, the press of the day played a critical role as an intermediary, facilitating communications between and among the legislative, executive and judicial branches with the public.  In light of this, the Court's reluctance to grant "special rights" or exemptions from generally applicable laws to the media is understandable. It explains how the Court could lionize the press in its rhetoric but still reiterate that the First Amendment provided the press no rights beyond those granted to the public: the press of the Golden Age simply didn't need government assistance to fulfill its democratic functions. Just as the official branches of government must leverage their political power to win battles in the public arena, so, too, did the Court expect the press to leverage its power and resources to protect its ability to function as the Fourth Estate. 

What about now? The press of today bears little resemblance to the press of the Golden Age, and the assumptions about press power underlying the Supreme Court's Golden Age press cases deserve renewed scrutiny.

The institutional press is no longer the powerful juggernaut of the Watergate era, united by a set of professional norms and capable of uncovering corruption at the highest levels of government by deploying sustained and expensive investigative expertise. Instead, the institutional press has been beset by devastating competitive and economic forces. Advertisers have fled. Just since 2008, newsrooms lost half their employees--and that was BEFORE the pandemic, which promises further newsroom carnage. Traditional media continue to face a crisis of legitimacy, with public opinion about their performance split along partisan lines. The public increasingly turns to social media speakers rather than traditional media for information, further eroding traditional media’s roles as gatekeepers and translators of news and information. At the same time, the President of the United States has conducted a sustained campaign to undermine the credibility of traditional news media, branding them "fake news" and the "enemy of the people" in over 1,900 anti-press tweets between 2015 and 2019. He has also sued journalists for libel, has tried to bar critical reporters from White House press briefings, and has issued executive orders designed to silence other critics. (To be fair, the prior President wasn't great for the press, either). Meanwhile, money to hire media lawyers to litigate these issues is in short supply.

What seems clear is that traditional media's ability to play the role of Fourth Estate is declining, and there is no obvious successor stepping into the breach. Instead, we are faced with a diminishing supply of reliable information about what our government is up to, with serious consequences for our democracy.

In my new article, I expect to argue that at a minimum, this decline should lead us to reexamine the assumptions underlying the Golden Age press freedom cases. If the press is less able to use "self-help" to maintain the separation of powers”\ between itself and the official branches of government, than perhaps it is time to impose more affirmative constitutional obligations on government officials to enable an institution or individuals to play a watchdog role. Perhaps some "special rights" must be accorded to those willing and able scrutinize our officials and provide reliable information about what they're up to. Even though dicta in Roberts Court decisions suggests skepticism of, if not outright hostility to, the press, our democracy depends on an informed citizenry armed with facts and not just opinions about those who govern them.  From that perspective, analysis of whether the First Amendment might play a role in shoring up today's Fourth Estate seems overdue. 

Hate Speech Returns to Campus

Students are returning to campus soon, and with them they are sure to bring more controversies over where the lines are drawn between free speech and speech that may be censured and censored.

Just last week, a controversy broke out at Princeton about a student's use of the n-word in social media. A white Princeton student responded on Facebook to a Black Fordham graduate who posted "We know you hate n---s" by saying that the Black graduate had gone to prep school and could not "speak for the n---s." This incident followed publication by a Princeton classics professor of an op-ed questioning some of the racial justice proposals made in a faculty petition to Princeton administrators; in that op-ed, the Professor called one Black student group a "terrorist organization."

Inevitably, Princeton administrators issued statements deploring the speech used in both incidents. With regard to the white student's use of the n-word, administrators branded it “contrary to Princeton’s commitment to stand for inclusivity and against racism” but said that the speech nonetheless did not violate university policy. Similarly, the President of Princeton condemned the classics professor's labeling of the student group as a terrorist organization, calling it "irresponsible and offensive," but the President said the speech was nonetheless protected by university policy.  

Many students rejected these conclusions on the grounds that a university committed to inclusion cannot tolerate hate speech. Their views seem to mirror those found in a recent survey:  81 percent of students on college campuses said that colleges should not punish offensive speech, but when asked whether colleges should restrict racial slurs, 78 percent said yes.  Moreover, seventy-one percent of students surveyed believed colleges should be able to restrict the wearing of costumes that involve racial or ethnic stereotypes. 

Unlike other campus free speech controversies, Princeton's are not governed by the First Amendment, because Princeton is a private university. State universities like mine are forbidden by the First Amendment from punishing protected speech, but Princeton is not. Nonetheless, Princeton seems to have adopted policies that protect free speech on its campus to the same extent the First Amendment does.

In my experience, many students and faculty, among others, are often surprised to discover the First Amendment protects a great deal of deeply offensive and even hateful speech. Indeed, the Supreme Court has stated: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Though many countries criminalize hate speech—that is, speech that demeans or dehumanizes a person or group based on their race, religion, ethnicity, sex, or sexual orientation—hate speech simply is not a legal category in the United States. Hate speech uttered within a classroom can be punished because it substantially disrupts the learning environment, but hate speech uttered by students speaking as citizens in public spaces—including online spaces--usually cannot. In that situation, state universities can only punish a student’s hate speech if it happens to fall into a recognized category of speech that is unprotected by the First Amendment. These categories include incitement, threats, defamation, discrimination against an individual, or fighting words.  The Princeton student’s Facebook post occurred in an online conversation about a public issue and did not fall into any of these categories. Had he been a public university student, the First Amendment would tie the hands of administrators seeking to censor or discipline him, leaving them to resort to counterspeech asserting that his speech did not comport with their values.

To many students today, the First Amendment's recommended response to hate speech is no longer satisfactory. Throughout our history, the First Amendment has asked us to put up with speech that evokes strong emotions based on a belief in the protective and healing power of discourse and the ability and willingness of citizens to come together and speak out against hate. What’s happening now in our country—with engaged students and other citizens speaking out and marching against racist violence, racist policies, and racist iconography—is exactly what our First Amendment envisions. In the long run, counterspeech is supposed to drown out hateful voices and sweep away repugnant ideas through the process of public discourse. 

Yet, to many critics, the victory of counterspeech over hate speech seems uncertain and counterspeech seems an insufficient remedy for the emotional wounds that hate speech causes. What they would prefer is an authoritative declaration that some speech, and some thoughts, are outside the bounds of civilized discourse and need not be tolerated. They take little solace from the arguments that I find compelling: that we have chosen this path because the power to censor is more often used to protect the powerful than the powerless, and we trust citizens more than we trust our governments to decide which ideas will prevail in the competition for adherents. Moreover, consensus formed through public discourse lends legitimacy to policy outcomes. Critics of the counterspeech cure would seemingly reject the lofty rhetoric of Justice Louis Brandeis, who once wrote that the First Amendment presumes “that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.” From their perspective, "evil counsels" have for too long drowned out good ones, and government power should be used to drive out the evil counsel of racists for good. The problem with this stance is that it depends on the benevolence and good faith of our government leaders or administrators in deciding whose views are so far out of bounds they can't be tolerated. Such benevolence or wisdom or restraint is certainly not something I take for granted, especially not now. 

Nevertheless, I know that in the war of generations, the younger always wins.  I just wonder what victory looks like.

Sandmann: Bringing the Dream

Nicholas Sandmann settled his defamation action against the Washington Post this week, and he is not done yet.

Sandmann's defamation suits arose after several media outlets caricatured him as a smirking racist based on a video clip of him wearing a Make America Great Again hat and watching a Native American man beating a drum amidst a chaotic crowd at the Lincoln Memorial. The video clip went viral after it was posted by someone at the scene, and the media picked it up for repetition and commentary. Their spin on Sandman's supposed smirk was supported by statements from Nathan Phillips, the Native American man at the scene. The viral video spurred viral outrage. The problem was that the video as a whole, which was readily available, tended to dispel the narrative gleaned from the clip of Sandmann and Phillips. Viewing the video as a whole, Sandmann did not appear to be in a confrontational posture vis-a-vis the Native American man or others at the scene but instead seemed to be in the posture of an awkward teenager watching a curious scene with his peers as a group of Black Hebrew Israelites hurled insults and invective at them. 

Sandmann was fortunate to procure the counsel of famed attorney L. Lin Wood, who filed defamation suits against ABC News,  NBC News, CBS News, the New York Times, Gannett, Twitter, and Rolling Stone; having already settled with CNN and the Washington Post, Sandmann is still seeking damages in the aggregate of over $750 million, and he has threatened additional lawsuits. 

As a lawyer, I hesitate to put too much significance on any case before it has made its way into a published appellate opinion. Until then, it may very well be an anomaly. This case has drawn extensive publicity and partisan commentary because it has come to represent a strike against the perceived arrogance and bias of the mainstream media and the slipshod investigative habits old and new media actors employ in the digital era.  On its face, the video clip of Sandmann, together with statements made by the Native American man at the scene, seemed to confirm what many liberal partisans seem to believe: Anyone who wears a MAGA hat must be a heartless white supremacist. It is clear that many media outlets took the clip on its face and republished it and drew conclusions from it without watching the whole video, which became readily available at a rarely early juncture in the whole controversy. Conservative partisans have attributed the media's rush to judgment to bias at a minimum and possibly malice, but it is just as likely to be a result of laziness and a desire not to fall behind digital competitors. Regardless, Sandmann's settlements have led some to call for more defamation lawsuits to hold media accountable (and may be part of a larger trend of plaintiffs using defamation suits strategically as vehicles for political messages, but that's a story for another day, Devin Nunes).  

The partisan lenses through which the Sandmann cases are being refracted obscure the interesting legal questions the cases raise. One important question is about what's required to prove actual malice in this case, but another is this: under what conditions does a person who "goes viral" by being in the wrong place at the wrong time become a public figure for purposes of defamation law, and does it matter if that person is a child? The distinction between public figures and private figures is crucial in defamation law, because private figures can recover for defamation by proving the defendant published a defamatory falsehood about them negligently, but public figures must prove actual malice, that is, that the defendant published the defamatory falsehood knowingly or with reckless disregard of the truth. (Actual malice is a term of art not to be confused with common law malice). Sandmann's cases become much harder to win if he is a public figure and must prove actual malice, although he may choose to prove actual malice even if he is deemed a private figure, because doing so gives him access to larger damages awards. 

Some commentators have suggested that Sandmann should be treated as a limited-purpose public figure because he became embroiled in an event that was clearly of public concern at the site of the Lincoln Memorial. The Supreme Court's cases defining the category of limited-purpose public figures predate social media, but they do involve people who were thrust into larger controversies by the press or partisans; in general, they suggest that becoming a limited-purpose public figure requires a plaintiff to do something more than being in the wrong place at the wrong time and thus becoming fodder for public controversy. For example, in Time Inc. v. Firestone, five Supreme Court justices concluded that a woman married into a prominent family did not become a public figure simply by seeking a divorce through the judicial process. In Wolston v. Reader's Digest Ass'n, the Court held that a man who had previously been convicted of contempt for refusing to respond to a grand jury investigation on mental health grounds was not a public figure. And in Hutchinson v. Proxmire, a research scientist applying for a federal grant was not public figure, either.  Extrapolating from the Supreme Court cases, plaintiff should not be treated as a limited-purpose public figure because others embroil him in a public controversy of their creation: his entrance into the controversy must involve some degree of volition. The absence of meaningful volition is bolstered by the fact he was a minor on a school field trip standing on the steps of a public monument when he went viral.  Even examining Sandmann's actions through the lens of the multiple factors indicating limited-purpose public figure status elucidated by lower courts, Sandmann arguably did not do "enough" to be treated as a limited-purpose public figure. The factors lower courts look to often include whether (1) the plaintiff has access to channels of effective communication; (2) the plaintiff voluntarily assumed a role of special prominence in the public controversy; (3) the plaintiff sought to influence the resolution or outcome of the controversy; (4) the controversy existed prior to the publication of the defamatory statement; and (5) the plaintiff retained public figure status at the time of the alleged defamation. Sandmann apparently did nothing to ask for the infamy that attached to him based on the publication and misinterpretation of the viral video clip (and likely spurred at least in part by his hat). He did, however, gain access to the media after the fact to rebut any allegedly defamatory falsehoods. For some courts, this might be enough to tip Sandmann into the limited-purpose public figure category (see, for example, Gilmore v. Jones, 370 F. Supp. 3d 630 (E.D. Va. 2019), though that conclusion would not be faithful to the parameters of the category defined by the Supreme Court. 

A better, though still problematic, argument is that Sandmann and other "victims" of viral videos like him are involuntary public figures. This category comes from dicta in the Supreme Court's 1974 case, Gertz v.Robert Welch, in which the Supreme Court speculated: "Hypothetically it may be possible for someone to become a public figure through no purposeful action of his own."  The Supreme Court has left the definition of the category to the lower courts, which have not reached consensus on how to define involuntary public figures and, indeed, whether the category even continues to exist.  (Cf., e.g., Clyburn v. News World Communications, Inc., 1990; Marcone v. Penthouse Int’l Magazine, 1985; Schultz v. Readers Digest Ass’n, 1979)  One approach is represented by Dameron v. Washington Magazine, Inc, 779 F.2d 736 (D.C. Cir. 1985).  A plane crashed when Dameron was the sole air-traffic controller on duty, although subsequent investigations absolved him of any blame for the crash.  Eight years later, however, a magazine article attributed the crash to controller error.  The District of Columbia Circuit Court of Appeals held that Dameron was an involuntary public figure for purposes of discussion of the crash, and therefore his libel action failed for lack of proof of actual malice on the part of the magazine. The D.C. Circuit concluded that even though Dameron had taken no voluntary actions,  "[t]here was indisputably a public controversy" in which "Dameron played a central role."  Thus, the court concluded that a person may become an public figure simply by being in the wrong place at the wrong time.

The US Court of Appeals for the Fourth Circuit took issue with this approach in Wells v. Liddy on the grounds that it "rest[s] involuntary public figure status upon ‘sheer bad luck.’"  According to the Fourth Circuit, the relevant factors in determining involuntary public figure status are (1) whether the allegedly defamatory statement arose in the context of a discussion of a "significant public controversy" in which the plaintiff was a "central figure," and (2) whether the plaintiff "assumed the risk of publicity."  A plaintiff assumes the risk of publicity by "pursu[ing] a course of conduct from which it was reasonably foreseeable, at the time of the conduct, that public interest would arise."  The court also demanded that, as in the case of limited-purpose public figures, the controversy must pre-exist the defamation, and the plaintiff must "retain[ ] public figure status at the time of the alleged defamation."  The Liddy court was thus much more careful than the Dameron court not to conflate public interest in an individual with that individual’s involvement in a public controversy.  

Sandmann's attorney Lin Wood is familiar with these categories. Lin Wood famously represented Richard Jewell, the security guard at the 1996 Olympics who was falsely reported in the media to have planted the bomb that killed two and injured 110.  Jewell, far from being the culprit, was actually a hero: he spotted the bomb and prevented more people from being injured.  Nonetheless, the mere fact that he was in the wrong place at the wrong time and thus his actions became newsworthy led a Georgia court to label him an involuntary public figure when he sued the media for publishing defamatory falsehoods about him. 

Although Sandmann still has many defamation battles left to fight, they may never result in a precedent-setting legal opinion guiding the development of defamation doctrine in the digital era. In the meantime, though, these cases give those of us who love defamation law plenty to talk about. 

Adapting to the New Normal - Passover Version

Howard and Orly have graciously allowed me to re-appear on PrawfsBlawg to share a series of news reports I have been receiving over the last week or so.

URJ AND HEBREW UNION COLLEGE ANNOUNCE HAGGADAH FOR ZOOM SEDERS

By Amy Plotz, Special to the Chronicle of Higher Education

The Union for Reform Judaism (URJ), formerly known as the Union of American Hebrew Congregations, and the Hebrew Union College (HUC) in Cincinnati, its affiliated seminary, today announced it would be releasing a special Passover Haggadah for use in seders conducted via Zoom.

“We are dealing both with the substance of the seder as well as procedural changes necessitated by social distancing,” said Rabbi Aaron Moskowitz, Chair of URJ’s Ritual Committee. The Passover seder commemorates the exodus of the Hebrew slaves from bondage in ancient Egypt. It is still one of the most widely observed Jewish rituals, even among Jews who put up “Hanukah bushes” or eat Wonder Bread and mayonnaise.

“It’s not bad,” said Deborah Goldman, a Chicago nurse-practitioner who received a beta-test copy of the document. “My dad used to be ‘Leader’ and now he’s the ‘Host.’ My daughter plans on using the polling function for the Four Questions.”

“The best is being able to deal with Uncle Oscar,” said Ms. Goldman’s husband, Jerry Nelson. “Every year he does the multiplication of the Ten Plagues in the voice of Sean Connery and every year we tell him to cut it out. This year we just put him on mute.”

Changes to the text of the traditional service include insuring that the Lord’s mighty hand first uses Purell, and that His outstretched arm stays six feet away from any live participants. The washing of the hands, traditionally undertaken just before parsley is dipped into saltwater and without a blessing, now requires recitation of two chapters of Deuteronomy to ensure that the job gets done thoroughly.

Rabbi Moskowitz reported that HUC’s computer science department was working on a plug-in that would appear to make the wine in the kiddush cup move when Elijah was drinking it. “But we drew the line at changing Moses’s demand to ‘Let My People Go Outside.’”

When contacted, Bennie Rothschild, a wicked child, said, “Fine with me; I didn’t want to be included anyway.”

The Administrative Law Dispute at the Heart of the Census and DACA Cases

It is an exciting time to study administrative law. The pillars of this field — cases such as Chevron, Humphrey’s Executor, and Whitman v. American Trucking — seem likely to be up for grabs at the Supreme Court. And the Court’s resolution of the controversial census and DACA cases has turned (or will likely turn) on applications of the Administrative Procedure Act’s “arbitrary and capricious” standard of review. Both cases involve decisions of enormous importance to the Trump Administration. What you may not know is that the arbitrary and capricious standard of review is also up for grabs. As explained in my recent paper (written with Barry Sullivan and forthcoming in the Connecticut Law Review), the Supreme Court has never formed a stable majority on the question of how much deference courts owe the executive branch under this standard of review. Should courts find a decision arbitrary and capricious where an officer implements the president’s preferred policies but omits expert analysis of relevant data? Or should courts ease up on analytical requirements and provide greater latitude for policies implemented at the behest of an elected president?

Unfortunately, the Court’s 2019 decision in Department of Commerce v. New York sends mixed messages on these questions. The Secretary of Commerce (Wilbur Ross)’s controversial decision to add a citizenship question to the 2020 census drew shifting coalitions of five Justices. Chief Justice Roberts provided the deciding vote and wrote the opinion for each coalition, and Justices Alito, Gorsuch, Kavanaugh, and Thomas joined the part of the Chief Justice’s opinion that approved the Secretary’s general analysis. The Chief Justice granted great deference when he determined that the Secretary’s explanation need only lie “within the bounds of reasoned decisionmaking.” It was reasonable for Secretary Ross to conclude “that reinstating a citizenship question was worth the risk of a potentially lower response rate,” even though the Secretary bypassed routine testing designed to provide additional empirical evidence about response rates.

Had the Court resolved the case on this first issue alone, its decision may have signaled a shift to a more deferential version of arbitrary and capricious review. However, procedural irregularities led the Chief Justice to switch sides and invalidate the Secretary’s decision on grounds of pretext. Justices Breyer, Ginsburg, Kagan, and Sotomayor joined the Chief Justice’s opinion on this issue. Roberts’s disapproval focused on the “significant mismatch between the decision the Secretary made and the rationale he provided.” While the finding of pretext turned on “unusual circumstances,” none of the opinions expressly discussed late-breaking evidence of a clandestine study conducted by Dr. Thomas Hofeller, a redistricting specialist. This evidence raises the possibility that Secretary Ross was aware of Hofeller’s findings (that a citizenship question would benefit “Republicans and Non-Hispanic Whites”) and that the Secretary declined routine testing to avoid collecting public evidence on these points. The Chief Justice’s finding of pretext implicitly addressed this concern, but it failed to articulate a manageable standard for future cases.  

The Court missed an important opportunity to mitigate similar concerns in future cases. Rather than a finding of pretext “good for this day” only, the Court might have achieved the same result by finding the Secretary’s analytical shortcuts arbitrary and capricious. The initial and more deferential standard of review applied by Chief Justice Roberts glossed over the fact that the Secretary chose to base his official decision on limited evidence about response rates when he bypassed testing routinely employed for new census questions. A less deferential approach would reflect Justice Scalia’s earlier suggestion, in FCC v. Fox I, that “failure to adduce empirical data that can readily be obtained” might render a policy change arbitrary and capricious. It would also align with Justice Kennedy’s concurrence in the same case. Justice Kennedy emphasized the importance of agency decisions that are “explained in light of available data,” “informed by the agency’s experience and expertise,” and “justified by neutral principles and a reasoned explanation.”

It is unclear whether the Court will have a chance to clarify the arbitrary and capricious standard of review when ruling on the Trump Administration’s decision to rescind the DACA (or Deferred Action for Childhood Arrivals) program. While this case is extremely important, it involves a distinct set of humanitarian policy concerns, including reliance interests. Broader questions about the arbitrary and capricious standard of review seem likely to remain unanswered in 2020.

Notice, Vagueness, and Trump’s Anti-Impeachment Argument

On Monday, the President’s lawyers filed a memorandum with the Senate that lays out his response to the House’s impeachment case. One argument in the memo stood out to me—the idea that President Trump cannot be impeached because he did not violate a specific criminal law.  The President’s lawyers are making this argument in response to the first article of impeachment—the one that alleges an abuse of power. 

This argument has gotten a lot of attention because Alan Dershowitz, who recently joined the President’s legal team, has argued that, as a historical matter, impeachment and removal are only constitutionally permitted if Congress proves the President committed a crime.  There is ample evidence that contradicts Dershowitz’s historical argument—evidence that constitutional experts across the country have been quick to identify. 

Importantly, the President’s lawyers have framed the argument in terms that are not purely historical.  They have also argued that, as a substantive legal matter, a President may only be impeached and removed for conduct that is clearly forbidden by law.  That substantive argument is not receiving the same level of attention as Dershowitz’s historical argument. (Though I do recommend this great essay from Ilya Somin over at the Volokh Conspiracy.)  Because the substantive argument is intuitively appealing, I think that it is important to highlight what is wrong with it.

The President’s substantive argument, in a nutshell, is that he cannot be impeached for abuse of power because there is no clear, legal definition of “abuse of power.”  In the absence of a clear definition, the argument goes, it would be unfair to impeach the President because, at the time he acted, President Trump did not know that conduct was forbidden.  It would also give Congress too much power because Congress could use the nebulous charge of “abuse of power” to impeach and remove future presidents based on legitimate policy disagreements.  If these sound familiar to you, it may be because they are similar to an argument that Josh Blackman made several weeks ago.

These may also seem like familiar arguments because they are based on due process principles.  In particular, they rely on arguments that justify the rule of lenity and the void-for-vagueness doctrine—due process limitations that many of us learned about in our first year criminal law classes.  Personally, I love teaching these topics to my students, and I have also used those principles in my scholarship to repeatedly argue for more narrow and more specific criminal laws.  But here is the rub:  I make these arguments because this is not the current law in this country.  We routinely punish people without making clear beforehand what people can and cannot do.  We have done so since this country was founded nearly 250 years ago.  We do this despite the fact that it isn’t fair to the people we punish.  And we do it despite the fact that it gives police and prosecutors enormous amounts of power.

For example, we routinely criminalize certain conduct only if it is “unreasonable.”  That term appears in literally hundreds of criminal laws in all fifty states.  What distinguishes reasonable conduct from unreasonable conduct?  The answer to that question probably changes from person to person.  And so criminal laws that forbid “unreasonable” conduct require people to guess whether prosecutors or jurors will think that their actions were reasonable or unreasonable.  Yet, the Supreme Court confirmed as recently as 2015 that those laws are constitutional.  We’ve used that same malleable standard for literally centuries.  As Supreme Court Justice Oliver Wendell Holmes once said: “[T]he  law  is  full  of  instances  where  a  man’s  fate  depends  on  his estimating  rightly,  that  is,  as  the  jury  subsequently  estimates  it,  some matter of degree.  If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death.”

To be sure, the Supreme Court has, on a small number of occasions, said that a criminal law can be so vague that it violates the Constitution’s guarantee of due process.  But those decisions have either involved laws that appeared to impinge on other important constitutional rights, like the right to free speech, or they have come in the wake of repeated unsuccessful attempts by courts to make sense of confusing or conflicting statutory language. 

But “abuse of power” doesn’t fit into either of those categories.  Instead, it looks quite similar to other phrases that the Court has allowed stand, relying on courts to give meaning to them over time.  The Sherman Act’s prohibition on any “contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce” provides an example.  The cases decided since the passage of the statute have confirmed that Congress essentially delegated to the federal courts the task of creating a criminal common law of antitrust.  When it comes to “abuse of power,” it isn’t as though there is no guidance about what the phrase means.  As Harvard Law Professor Niko Bowie recently pointed out, abuse of power was considered a common law crime in this country, which means that there are cases and treatises that give real content to the concept.  It is precisely this sort of case law that has insulated similar legal phrases against vagueness attacks in the past.

President Trump’s own administration houses some of the strongest advocates for imposing punishment for violations of vague laws. Lawyers in Trump’s Justice Department have argued that statutes with vague language should be enforced against individual Americans.  This doesn’t really distinguish President Trump from the presidents that proceeded him—the Department of Justice has historically defended federal laws against vagueness challenges.  But it does seem ironic that Trump’s lawyers would claim constitutional protections in an impeachment trial while his administration works to deny those same protections to people in criminal trials. 

To the extent that people want to see more robust protections against imprecise criminal laws—and I assure you that I do—it makes no sense that we would first adopt those protections in a legal proceeding involving the most powerful person in the country where the only consequence he’d suffer is removal from office.  In fact, it would stand due process on its head to say that the President would be entitled to more protections in an impeachment trial than we are willing to give to criminal defendants who are facing the possibility of lengthy sentences of imprisonment.

It is also worth noting that the President’s substantive argument—even if it is appealing in the abstract—doesn’t make any sense in this particular factual situation.  The vast majority of Americans disapprove of the President’s decision to withhold military funding from Ukraine in order to get a public announcement about an investigation into a political rival.  So even if people might disagree about how, precisely, to define a presidential abuse of power, there is a lot of agreement that these particular actions qualify.  It is also incredibly difficult to argue that President Trump didn’t know that it was an illegal abuse of power to withhold military funding from Ukraine when he made the decision to do so.  As President Trump was refusing to release the money that Congress had appropriated, career officials were sending the message to him and his advisors that this course of action was not legally permissible. 

Finally, it is hard to ignore how President’s own actions.  He has previously said that Article II gives him unlimited power.  And since his actions became public, President Trump has insisted that he did nothing wrong and that his phone call with the Ukrainian president was “perfect.”  This behavior is hardly what we would expect from someone who is merely uncertain about the limits of his power.  To the contrary, President Trump appears to believe that his presidential powers include the ability to put this sort of pressure on a foreign nation.  And he likely will see an acquittal in the Senate of a confirmation of such sweeping power.

Impeachment and the Direct Election of U.S. Senators

My thanks to Prawfsblawg for permitting me this guest writing stint. As a long-time reader, I have enjoyed others’ insights and now hope to contribute a few worthwhile nuggets during the next few weeks.

What type of impeachment trial can we reasonably expect in a Senate constituted by directly elected senators? As other commentators have observed (e.g. Jonathan Adler and Carissa Byrne Hessick), Alexander Hamilton anticipated the possibility that the House process could degenerate into a partisan food fight where House members, laying all merits aside, rush to defend or rise to oppose, a President along party lines. Nonetheless, Hamilton thought the Senate, constituted as a court of impeachment, would act as "a tribunal sufficiently dignified, or sufficiently independent" to save the process from a crassly partisan fate ruled by political bosses.

The impeachment of a President entails different political calculations than impeachment of a judicial officer, and the case of presidential impeachment probably more sorely tests the procedure's limits than the relatively lower stakes of a U.S. district court judge. It's unsurprising that many judicial impeachments, say, of an Alcee Hastings, a Walter Nixon, or a Thomas Porteous, occasion little partisan fanfare.

In contrast to lower court impeachments, we are about to witness a presidential impeachment trial where the Senate majority leader has publicly pledged “total coordination” with the White House Counsel’s office to kill the Trump impeachment. And House leadership, recognizing that reality, stalled transmitting the articles and attempted to secure an agreement on how the trial should proceed in the Senate. Political prognosticators regularly consult the Cook Senate Race report to guess which senators might be peeled away from the GOP majority and which Democratic senators might feel pragmatically obliged to side with Republicans due to close races. Notwithstanding oaths, senators today have strong structural incentives to behave as partisans, disappointing Hamilton's expectation of a sufficiently dignified, sufficiently independent process.

When Hamilton wrote Federalist No. 65, he didn't know that in the late 19th century, Oregon and other states would informally adopt popular direct election of U.S. senators by straw poll popular elections or that in 1913 we would formalize and lock in direct senatorial election with the 17th Amendment. As Todd Zywicki has explained (Hein online subscription required), this change had important consequences for bicameralism by making both chambers subject to direct election.

Importantly, direct election means the relevant voting audience is no longer a body of roughly 120 state legislators, conveniently gathered in a single location for a senatorial vote. Instead, voting is done by (rationally) politically ignorant voters who only variably show up to vote. Moreover, successful direct election campaigns now must reach millions of dispersed voters through costly campaigns. And these campaigns facilitate contributors gaining significant influence over their senatorial candidates. Of course, several indirect election pathologies, including corruption, were offered to justify direct election, but the direct election remedy entailed substantial tradeoffs.

My posts, while acknowledging a range of views about the 17th Amendment and its probable effects, will question skeptically whether the benefits were really worth the changes in how the Senate today discharges its constitutional functions.

Oaths, Impeachment, and Questions of Degree

Senator Lindsey Graham caused quite a stir last week when he said, regarding the impeachment of Donald Trump “I’m not trying to pretend to be a fair juror here.”  Soon after, Senator Mitch McConnell said “I'm not an impartial juror . . . I'm not impartial about this at all.”  While we might all suspect that Graham and McConnell were never going to vote against President Trump in the upcoming impeachment trial, these statements are nonetheless controversial because they seem entirely at odds with the oath that both Graham and McConnell will have to swear at the beginning of the impeachment trial.

The U.S. Constitution states: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation.”  The oath itself is not written into the text of the Constitution, but the current Senate rules contain the following oath: ““I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of [name], now pending, I will do impartial justice according to the Constitution and laws: So help me God.’’  Similar language about impartial justice has been used in the oath for a very long time, at least dating back to the impeachment trial of Andrew Johnson.

While the text of the Constitution does not say anything about impartiality, it seems pretty clear why impartiality is included in the oath.  In Federalist 65, for example, Alexander Hamilton stated that the Senate was the optimal body to try impeachments because they were independent and thus more likely to be impartial:

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

In other words, Hamilton wanted the Senate to make these decisions precisely because it was more insulated from political pressures.

Others have noted that the statements by Graham and McConnell are, on their face, inconsistent with the oath.  I agree.  But I wanted to write this post in response to a counterargument that I’ve seen—namely, that because impeachment is necessarily a political process, we cannot expect the Senators to actually be impartial.  Perhaps the oath is outdated, some say, and in a post-Seventeenth Amendment world,* we must expect that Senators will make their decisions solely on the basis of partisan considerations.  In other words, some are arguing that, the oath notwithstanding, we cannot expect political actors to behave impartially.

I am no impeachment expert, but I think that this issue raises a deeper question that is worth talking about.  The question is whether we can acknowledge that impeachment will necessarily include political considerations, while, at the same time, insist that it be something other than an exercise in rank partisanship. That politics will play a role in impeachment is, of course, inevitable because the task was assigned to Congress.   But even if politics has some role to play--or at least will play some role--in impeachment, that doesn’t mean we should throw away the idea of the oath or the principle of impartiality.  I think we can acknowledge some role for politics without saying that politics is the only thing that will or should matter. 

I see an analogy here to judges and the role of personal values and judgment calls. I know a number of people who insist that judges must adopt a methodology such as textualism or originalism in order to constrain them from making decisions based on their own values or policy preferences.**  Their argument seems to be that, if we acknowledge that a judge’s values should sometimes guide their decisions, then there is no stopping point—judges can simply substitute their preferences for all policy decisions by the political branches.

This argument about judges ignores hundreds of years of history during which judges routinely decided cases on the basis of their intuitions about right and wrong.  The common law process—in which judges would make modest decisions, and then later attempt to identify broader principles—required judges to consider policy outcomes.  And although the system was hardly perfect, it rarely (if ever) resulted in the parade of horribles recounted by those who counsel judicial restraint above all else.

In fact, I have sometimes wondered whether judges tended to issue modest decisions precisely because everyone understood that it was the judges themselves who were making important decisions.  Maybe it is easier for modern judges to make sweeping countermajoritarian decisions when they can say that the text or the history of the Constitution demands such a decision.  If judges today had to say they were making a decision because they personally believe it to be the correct outcome, would they, perhaps, make more narrow decisions?

Similarly, we could acknowledge that Senators are likely to be swayed by political considerations, but also expect them to observe certain norms of impartiality.  For example, what if the Senators openly tried to grapple with the inevitable pull of partisan politics? What if they were to say something like “I know that, as a Republican (or Democrat), people might worry that I am going to vote against (or in favor of) removal based only on politics, but here is why I think it is the correct decision . . .”?  In other words, Senators could embrace the idea that politics inevitably shape important decisions, but also try to explain the substantive, non-political reasons for their decisions.

In any event, the path that Graham and McConnell have taken seems untenable to me. I don’t see how either of them can say these things and then swear an oath to do “impartial justice.”  Whatever the phrase “impartial justice” means, it does not mean loudly declaring that you refuse to be fair.

 

* I find the role of the Seventeenth Amendment in all of this to be fascinating.  If anyone knows of some good writing on the Seventeenth Amendment and impeachment, please let me know!

** There are, of course, other reasons to adopt such methodologies. But a number of smart people I know have said that they prefer such methodologies because they constrain judges.

Judging Lawyers Based On Their Clients

Yesterday the New York Times published a lengthy story on external work that Elizabeth Warren did while she was still a law professor.  The story, which is titled “Elizabeth Warren’s Days Defending Big Corporations” focuses on a few different themes—the amount of money that Warren made off of these external gigs, the fact that her campaign’s summaries of these representations is overly simplified, and the identity of the clients she represented. 

As I explained last spring, when the Washington Post wrote about the fees that Warren collected for this work, the amount of money that Warren made for these representations seems to be within the range of what other professors with comparable experience and profiles charge.  And while I think that we could have a fruitful and worthwhile conversation about the desirability of law professors taking on this paid external work, that doesn’t seem to be the upshot of the Times or WaPo stories. 

The Times does point out that the summaries that the Warren campaign put out of these representations are overly simplified.  And as someone who generally expects candor and nuance from other law professors (even former law professors), I was sorry to see that Warren’s campaign isn’t holding themselves to that standard.  But the Twitter horde’s response to the story seems to be one of outrage: How dare Warren have any corporate clients? Corporations are, by definition, evil!!  In light of this weird, kneejerk response, I understand the campaign’s decision—even if I don’t approve of it—to oversimplify in order to push back against this lack of nuance in public opinion.  And the Times headline suggests that the editors at the paper at least know about this rabidly anti-corporate viewpoint (and perhaps share it themselves).

I won’t rehash here the argument that I made on Twitter – which is that even a non-simplified description of Warren’s work for corporations shows that she was, in all of these, cases pushing for a robust bankruptcy system in which the bankruptcy process fully and finally discharges all debts and liabilities.  (In other words, according to the Times’ own reporting, Warren’s work for corporate clients was consistent with her academic principles—principles, which she undoubtedly believes are important to protecting ordinary people.)  Instead, I’d rather talk about why it’s newsworthy to talk about the identity of Warren’s clients.  Because there is no denying that it is the identity of Warren’s clients—i.e., that they are corporations—that folks who support other candidates in the Democratic primary seem to be most worked up about.

I think this is a topic worth talking about because it is part of a larger question—namely whether to judge lawyers based on the identity of their clients.

 

Whether to judge lawyers based on their clients is, of course, hardly a new issue.  The issue is even mentioned in the ABA Rules of Professional Responsibility, which say that “A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.” I’d always assumed that this rule represented the conventional wisdom within the legal community, but I’m no longer so sure.

My doubts started when I saw a number of lawyers and law professors that I know criticize Jamie Gorelick for her decision to represent Jared Kushner.  Gorelick is a long-time Democrat who served in Bill Clinton’s DOJ.  My doubts grew as Harvard Law School’s Ron Sullivan faced heavy criticism by other lawyers for representing Harvey Weinstein.  Some people defended Sullivan (and criticized Harvard’s actions), but other lawyers and law professors who I admire joined the chorus of Sullivan’s critics.

The criticisms about Gorelick and Sullivan seemed to fall into two related but different categories:  The first was about the professional choices that the lawyers were making.  Specifically, the argument was that high-profile lawyers can pick and choose among their clients.  Every client that a lawyer represents comes with opportunity costs—if you represent client A, then you may not have the time to represent client B.  Because lawyers must choose between clients, so the argument goes, their choices should account for whether clients or causes are worthy of their time.

The second argument was about the fact that these clients could choose between lawyers.  Because Kushner and Weinstein could afford to pay for an attorney, the ordinary arguments about how everyone needs a lawyer didn’t apply.  Their wealth was going to buy them a lawyer, the critics argued, and so people like Gorelick and Sullivan didn’t have to take the case in order to ensure that justice was done.  In some ways I think that this argument was made defensively.  If the argument is about whether clients can pay, then it distinguishes the Kushners and Weinsteins of the world from the indigent criminal defendants who are accused of horrific crimes.  Those indigent clients can’t pay, the critics argued, and so the access to justice argument still has force.

I raised the question of judging lawyers for their clients in my Professional Responsibility class earlier this semester.  The students were pretty split.  Those who students who see lawyering as a way to bring about change in the world seemed more open to criticizing those who choose to represent the Kushners and Weinsteins.  But others argued that the distinction between clients who can pay and those who can’t is unable to take the weight of the argument—they seemed to think that the worldview that endorsed judging lawyers for their paying clients is all too likely to bleed over into judging lawyers for their non-paying clients.

Personally, I’m not really sure what to think.  My inclination is that we should judge lawyers by the quality of their arguments, rather than the deeds of their clients.  But I am hardly confident about that view, and I’d be interested to hear from others.

As for law professors in particular, I think that the issue is probably more complicated than we’d like to think about.  It’s tempting to say that this external work is entirely discretionary, and so we ought to feel more comfortable judging law professors for their clients.  But for some law professors—especially those who live in expensive cities or who don’t come from family money—I’m sure that they take on this work, at least in part, because they are trying to pay their mortgage or pay their kids’ tuition bills.  And, in any event, if a law professor is using external representation or consulting as a way to change the law—especially to change the law in a way that is consistent with her scholarship—I’m not really sure that it matters who the client is.  The law is, after all, generally applicable. And the fact that a change in the law might benefit people or companies that we don’t like hardly seems like a good reason not to improve the law itself.

The Corporate "Trolley" Problem

I'm amused by some of the reactions to a front page news story from the corporate world, the announcement a couple days ago by the Business Roundtable (signed by 200 CEOs) to the effect that it was amending its Principles of Corporate Governance to eliminate the statement that the "primary purpose" of a corporation was to serve its shareholders.  The CEOs want to reconcile the statement of principles to what they feel they actually do - namely, balance the interests of a number of corporate stakeholders, including customers, employees, suppliers, and communities.

This has stirred up some strong feeling, from Steve Bainbridge (aghast), the Council of Institutional Investors (also aghast), the Wall Street Journal (it's Elizabeth Warren's fault), and Andrew Ross Sorkin in the New York Times (it's about time).

I've spent a lot of time at the corporate C-level, and my amusement stems from the reality that any statement of principle like this one, like most mission statements, is so broad as to be meaningless when it comes down to the vast majority of real world decisions.  To fight about it, you need a zero-sum hypothetical, like the one Steve is marketing, posing the corporate equivalent of the decision to pull the lever and let either one person die or six people die from the onrushing trolley.  

Those are nice academic problems to ponder in an ethics class or in Corporation Law 101, but the reality is that the zero-sum choice between the shareholders and some other constituency rarely presents itself as in the hypothetical, just as people are rarely asked to choose between diverting the trolley or not.

To propose a metaphor here, a business that creates value is a goose.  If it's a really big capital intensive business, chances are it needed a lot of capital, and investors don't invest without the prospect of a competitive return - i.e. a piece of the goose.  But everybody wants a piece of the goose.  Customers want lower prices, and if the business has a unique value proposition, they won't get them.  Employees want higher wages.  Communities want taxes and support of local institutions.  Suppliers want higher prices.  Managing the business is the process of making the goose as big as you can so that there's something worth fighting over.

And here's the reality: management can rationalize almost any decision to favor any stakeholder in terms of the long-term return to the shareholders.  Nobody (except maybe old Chainsaw Al Dunlap, and he was disgraced) operates in the Bainbridge Hypothetical.  "Let's see here.  The Topeka Art Museum would like a $100,000 corporate contribution, but if we do that we can't use the cash to buy back shares or issue a dividend."

No, management looks at the dashboard with all dials measuring the value going out to customers, employees, communities, suppliers, and shareholders, and adjusts them. For example, we have that request from the museum. To return value to the shareholders, we need good employees.  Hence we might conclude, "It's hard to recruit to Topeka.  It will help if we have first-rate cultural institutions. To whom do we make out the check?"

I agree that the Business Roundtable release was good politics.  But it didn't change anything, except to lay bare the meaninglessness of principles like "primarily serving the shareholders." Anybody who has ever drafted an organizational mission statement knows that dynamic.  By the time you get past the short term tactics, long term strategies, and multiple goals of any dynamic organization, you end with pap like:  "XYZ Corporation will provide stellar returns to investors by focusing on innovative products, incomparable service to customers, and employees who are vested in the success of the organization."  Right.  WTF does that mean?

Since the original Business Roundtable governance principle was close to meaningless anyway (outside of the thought experiments that are the law professor's stock in trade), and this new statement doesn't change what was happening in the board room or the management suite, the CEOs who signed it really did offer up the sleeves from their collective vests.

Mueller Report: The Play (Updated)

What started as a joke and emerged as parody was done as a serious piece of theater , titled The Investigation: A Search for the Truth in Ten Acts. It features A-list actors including John Lithgow, Joel Grey,* Annette Benning, Kevin Kline and Justin Long; it was written by award-winning playwright Robert Schenkkan. A video of the show (running about 1:15) is embedded in the LawFare piece and at the Law Works site.

[*] "Willkommen! Dobro Pozhalovat! Welcome!"

The author of the LawFare piece (Mikhaila Fogel) explains how dramatization shows how members of Congress should (and should not) approach next week's hearing. In short: Do ask "deliberate, narrative-driven questions about the text of the report [that] will tell a powerful and credible story;" do not rely on "[s]entiment, indignation and pontification." In other words, act like trial lawyers or judges, not grandstanding politicians.

Update: Having watched watched the performance (from late June), I see Fogel's point about melodrama. But if House Dems see themselves as speaking to the American People--specifically those portions of the American People who are neither convinced of Trump's culpability nor unpersuadable that Trump did anything wrong--there is a nice legal question of how to understand that audience. Is it a jury or a panel of judges? And does that affect how you ask the questions to present the case? And should it?

Also: If a similar reading  of the Starr Report had been staged in 1998, imagine the accompanying soundtrack.

Declination Decisions and Privacy

In response to my post from yesterday about the Special Counsel’s decision not to prosecute Don Jr. a few people have remarked that the need to protect individual privacy counsels against publicizing nonprosecution decisions. If prosecutors were to declare that someone committed a crime but not actually bring charges, so the argument goes, then the defendant would be unable to clear her name through the adversarial process. 

This argument has been around for quite some time.  Courts have used a variation on this argument to state that prosecutors may not identify unindicted coconspirators by name in indictments.  And it was famously part of the reason that Rod Rosenstein offered in his infamous letter suggesting that James Comey ought to be fired as Director of the FBI. 

I want to take the argument seriously, but I have some reservations about the argument, not only in this particular case, but also more generally.  First, to the extent that Don Jr.’s privacy needed to be protected in the Special Counsel’s report, I’d note that the relevant facts to support a CFAA prosecution were *not* redacted from the report---all that was redacted was the reasoning behind the decision not to prosecute.  I find it difficult to see how the redaction of the analysis, but not the facts, protects Don Jr.’s privacy.  I can think of at least two responses to this point: (a) that the factual discussion also should have been redacted, and (b) that a declaration by prosecutors that Don Jr.’s conduct constituted a crime is far more damaging than the recitation of facts, most of which had been previously reported in the media.  I don’t really have a rebuttal to counterargument (a).  But I’m not thoroughly persuaded by (b).  If nothing else, the harm to Don Jr. at that point seems to be one of reputation, not privacy.  Also, if we were truly committed to the idea that we need to protect individual privacy in all cases that do not result in formal charges, we would have to seriously alter how police publicize arrests of suspects before prosecutors have decided whether to file charges. 

In any event, if the real concern with nonprosecution decisions is that they might invade the privacy or harm the reputation of a particular individual, it seems to me that prosecutors could articulate their decisions in a way that minimized the privacy and reputational harms.  For example, in the Special Counsel’s report, Don Jr.’s name and identifying information could have been redacted, but the substantive analysis on which the declination decision was based could have been left in.  That would allow the public to have more information about when DOJ pursues charges under overly broad statutes---information that, as I’ll explain in more detail below, is extremely important for the public to have.

But before turning to that argument, I wanted to address a comment by Orin Kerr, namely that he didn’t think that the Mueller report needed to “offer a broader explanation when to enforce the law” because “DOJ policy docs already have that for those interested.”

Assuming that Orin is correct that DOJ policies offer sufficient detail on this issue for those who seek it out, I think it is important to note that the general public knows very little about nonprosecution decisions.  I have seen many nonlawyers (and some noncriminal lawyers) repeatedly express the view that prosecutors must bring charges in cases where the defendant has broken the law.  It is not only that these criminal justice outsiders think that prosecutors *should not* decline to prosecute for policy reasons, but rather that they are *entirely unaware* of how often prosecutors decline to prosecute on policy grounds.  This ignorance is understandable because even those of us who know that nonprosecution is common have a hard time obtaining information about how frequently it occurs and under what circumstances.  Put differently, even if Orin is correct that interested parties could learn more about DOJ nonprosecution policies, a great number of Americans don’t even know that such things happen, so they are unlikely to seek out additional information on the topic.

But even assuming everyone knew about nonprosecution as a policy, how much could we learn from reading DOJ public policies? In my opinion, not very much.  Let’s look at the full list of factors listed in 9-27.230, the section cited in the CFAA analysis in the Mueller report:

In determining whether a prosecution would serve a substantial federal interest, the attorney for the government should weigh all relevant considerations, including:

1. 1. Federal law enforcement priorities, including any federal law enforcement initiatives or operations aimed at accomplishing those priorities;
   2. The nature and seriousness of the offense;
   3. The deterrent effect of prosecution;
   4. The person's culpability in connection with the offense;
   5. The person's history with respect to criminal activity;
   6. The person's willingness to cooperate in the investigation or prosecution of others;
   7. The person’s personal circumstances;
   8. The interests of any victims; and
   9. The probable sentence or other consequences if the person is convicted.

I don’t know about you, but I don’t think that this list allows me to make any educated predictions about when prosecutors will pursue charges and when they will not.  For example, the list does not include the aggravating factors that James Comey identified as necessary in order for DOJ to bring charges for mishandling classified information.  Nor am I able to determine based on this list whether the decision not to charge Don Jr. was made because of some unique facts in his case or because DOJ, as a general matter, does not bring CFAA charges for unauthorized password sharing unless there are other aggravating circumstances present.  (There is commentary to this policy, but it also does not provide that sort of substantive information.)

Perhaps those law professors who served as federal prosecutors think that DOJ policies gave enough guidance about when nonprosecution was appropriate---I’d be interested to hear from them.  But as a member of the public, I don’t think that these policies give us enough information about how prosecutors choose to enforce overly broad laws.  In my opinion, that is a serious problem because it means that the public doesn’t have sufficient notice about what will be treated as illegal.  It can also allow for arbitrary and discriminatory enforcement.  And it doesn’t allow the public to serve as a democratic check on prosecutorial decisionmaking.  (I discuss the problem in some detail in Part III of this forthcoming article.)

The ability of the public to serve as a democratic check on prosecutorial discretion may seem less important in the federal system, where the Attorney General and the U.S. Attorneys are appointed by the President.  After all, criminal justice issues likely play a very small role in who people vote for in presidential elections.  But the vast majority of state prosecutors are elected.  How elected prosecutors choose to exercise their discretion—including when they decide not to prosecute--is probably the most important information that voters need (and almost never get).

Anyway, these are just some preliminary thoughts.  I definitely need to reflect further on how to balance these concerns that I’ve identified against the need to protect individual privacy and reputations.  Nonprosecution decisions raise complicated questions, which a number of law profs address in various very thoughtful articles.

As for the topic of democratic accountability and prosecutors, that’s an area where I hope to spend more time and effort. 

The Special Counsel’s Decision Not To Prosecute Donald Trump Jr.

Since Robert Mueller’s report was released on April 18, a number of people have commented on the Special Counsel’s decision not to make a “traditional prosecutorial judgment” about whether President Trump obstructed justice and thus committed a crime.  But the Mueller Report contains other decisions not to prosecute.  And I’d like to focus on one of them here.

Mueller decided not to prosecute a person who violated 18 U.S.C. 1030, a section of the Computer Fraud and Abuse Act.  Although the person’s name has been redacted for “personal privacy,” it seems obvious to me that the person in question is the President’s son, Donald Trump, Jr.  The portion of the report that describes Don Jr.’s conduct is not redacted (it is described on page 60 of the Mueller Report), and Orin Kerr published this helpful article over at LawFare last year explaining how Don Jr.’s conduct falls within the criminal prohibition in section 1030(a)(2).  The partially redacted declination decision appears at pages 179-80.

I assume that the decision to redact Don Jr.’s name from the declination analysis is grounded in the same “fairness concerns” that prompted Mueller not to reach a judgment on whether the President obstructed justice:

The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

It isn’t immediately clear to me why those fairness considerations would shield only a legal determination of guilt and not a recounting of underlying facts.  But that appears to be what happened here.  (Those who are interested in the law and norms surrounding decisions not to identify people who aren’t being charged might be interested in this essay by Ryan Goodman on unindicted coconspirators.)

I am less interested in the decision to redact than I am the decision not to prosecute.  Although much of the text is redacted, it appears that the decision not to bring charges against Don Jr. was not a decision about weak facts or uncertain law.  Instead it appears to have been a policy decision—specifically a decision that the crime was not serious enough to warrant prosecution.  Here is the key passage:

Applying the Principles of Federal Prosecution, however, the Office determined that prosecution of this potential violation was not warranted. Those Principles instruct prosecutors to consider, among other things, the nature and seriousness of the offense, the person's culpability in connection with the offense, and the probable sentence to be imposed if the prosecution is successful. Justice Manual 9-27.230.

I don’t disagree with the decision not to prosecute Don Jr.  The Computer Fraud and Abuse Act is, in my opinion, an overly broad statute.  That is to say, I believe that the text of the statute sweeps in far more conduct than it ought to.  In particular, it includes unauthorized password sharing.  So if, for example, I were to allow my friend to use my Netflix password so that she did not have to pay for her own, separate account, I have likely committed a crime under the Computer Fraud and Abuse Act.

The CFAA is far from the only overly broad criminal statute on the books.  There are plenty of overly broad federal and state crimes.  We allow our representatives to pass these laws because we rely on the good judgment of prosecutors not to bring charges in all cases that fit within the language of these statutes.  But there are many problems with this state of affairs.  For one thing, we rarely know what criteria prosecutors use in deciding when not to bring charges.  So long as we do not know what criteria prosecutors are using, we do not know the real content of the criminal law.  For another thing, there is no requirement that prosecutors adopt generally applicable criteria to decline prosecutions or that they use the same criteria in all cases.  To the extent that declination decisions are made on an ad hoc basis, people are not getting equal treatment, and prosecutors may make prosecution decisions for arbitrary or discriminatory reasons.

Finally, the fact that we allow prosecutors to decline prosecution under overly broad statutes doesn’t mean that they are under any obligation not to bring charges in trivial cases.  There are plenty of cases in which prosecutors have decided to file charges against defendants whose conduct does not resemble harm that the legislature was trying to prevent when it enacted a criminal law.  But, as I argue in a forthcoming paper, the modern embrace of textualism leaves defendants with essentially no recourse if their behavior fits within the incredibly broad statutory language.

While I agree with the decision not to charge Don Jr., I wish that the report had redacted less of the analysis associated with the declination decision.  We do not know whether the Department of Justice has adopted an internal policy not to charge all defendants in these sorts of cases, or whether this was a one-off decision based on the unique facts and circumstances surrounding this case.  What is more, because most of the analysis is redacted, we do not have a statement from a respected group of federal lawyers – including not only Robert Mueller, but also Deputy Solicitor General Michael Dreeben – explaining why such a case is so trivial that it does not warrant prosecution.  Such a statement could have potentially helped defendants who have been threatened with charges for similar conduct.  It also could have prompted a national conversation about whether we should rewrite the Computer Fraud and Abuse Act.

The Metrics Tide and the Law

Thanks Howard for having me (and for Michael Helfand for making the connection). Most of my posts this month will focus on the question of metrics and rankings and their increasing influence on the legal academia. I will draw in that context on a new article – ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ which I have co-authored with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber (all from Bar-Ilan University) and forthcoming in Modern Law Review.

Research evaluation is increasingly being influenced by quantitative data. Journal impact factor (JIF) (the mean citation counts of items published in journals in the preceding two years) has become particularly salient in this context, leading to “impact factor obsession”. There has been widespread opposition to this trend in the scientific community. The DORA declaration for example recommends that journal-based metrics, such as JIF, should not be used “as a surrogate measure of the quality of individual research articles, to assess an individual scientist’s contributions, or in hiring, promotion, or funding decisions”. However, despite the opposition these metrics continue to flourish.

The legal field has not escaped this ‘metrics’ wave. Law schools and legal journals are being ranked by multiple global rankings. The key rankings for law schools are the Times Higher Education and Shanghai University subject rankings for law and SSRN Ranking for U.S. and International law schools. These global rankings are accompanied by local ones such as the influential U.S. News Ranking in the U.S., the UK law schools ranking by the Guardian and the University Magazine ranking of Best Canadian law schools. Law Journals are measured by four different rankings: Clarivate Analytics Web of Science Journal Citation Reports (JCR), CiteScore from Elsevier, Scimago and Washington and Lee. Despite their quantitative appearance, the pretense of these metrics for objectivity is merely illusory. Because of the increasing influence of these metrics, and the bodies that produce them, on research evaluation, it is important to closely scrutinize their structure and methodology. In our paper we examine one particular metric - the influential ranking of law journals in Journal Citation Reports and critically assess its structure and methodology.   I will discuss our findings in the next post.

Dr. Richard Pan Sued for Blocking Users on Twitter

In early 2015, in response to the Disneyland measles outbreak in California, Dr. Richard Pan, along with other legislators,  sponsored SB277, which removed California’s Personal Belief Exemption. While Dr. Pan was not alone in authoring the law – Senator Ben Allen was the other Senate author, Assembly Woman Lorena Gonzales on the assembly side, and there were quite a few sponsors – he was a lead figure, and as a doctor, his views carried weight with many of his colleagues. He became a special target for anti-vaccine activists angry at him.

Dr. Pan was the subject of many attacks, including racial slurs, death threats, and other varieties of personal harassment. Part of his reaction was aggressive blocking of anti-vaccine activists on his social media, twitter and facebook.

On July 27, 2018 Dr. Pan was sued by two anti-vaccine activists – Suzanne Rummel and Marlene Burkitt - for blocking them on Twitter. The activists, echoing the arguments in Knight First Amendment  Institute v. Donald Trump, claimed that Dr. Pan’s twitter account is a public forum and that he discriminated against them based on his viewpoints.

As far as being blocked for being anti-vaccine, the suit likely has merit under Knight.While Knight is only a district court decision and is currently under appeal, it is thoughtful, and carries quite a bit of persuasive force. Dr. Pan is a public official, and should not block users based on content, even if he disagrees with them.

A counter argument is that there is a difference between political disagreement and scientific misinformation, but this is very murky grounds when it comes to public officials: most are not scientists, and at any rate, their twitter account is not where scientific truths are determined, and they should not be able to block users according to whether they see their views as truthful.

Dr. Pan does have a potential alternative argument, if the reason for blocking is not the plaintiffs’ anti-vaccine views. I have not seen the plaintiffs’ tweet: I have Ms. Rummel muted, and do not remember interacting with Ms. Burkitt on twitter. I have, however, seen Ms. Burkitt’s posts to Dr. Pan on Facebook, and they are often not only abusive, but actually threatening. Here are two examples:

 

And:

While a public official should not be able to silence an opponent in a public forum for a different viewpoint, there may be differences when someone is threatening the official. Even here, we need to be cautious. Public officials, by the nature of their role, should expect – and are expected to endure – a certain amount of abuse and attacks. But it’s not clear they need to interact with people who threaten them on Twitter. And there is a risk that preventing public officials from blocking those who harass and threaten can deter public officials from taking positions where the opposition is aggressive, and/or encourage direct harassment as a means of making public officials give up unpopular positions. That, too, can have negative implications for the public discourse.

At any rate, the lawsuit is worth following. Dr. Pan can, of course, solve the problem by unblocking the plaintiffs and muting them instead, something that Knight  suggested was acceptable, since it allows users to interact with an account’s followers and participate in the discussion without the public official having to interact. Whether Dr. Pan decides to do that, or litigate on the grounds of harassment, the lawsuit can have important and general implications for public discourse.

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...”

 

 

 

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. 

There Is Nothing New Under the Sun - Xenophobia Edition

Part of this is recycled from something I posted (can it be?) on Christmas Day, 2007 over on Legal Profession Blog.  At the time it was a tribute to my wife Alene's grandfather, Nathan Milstein, one of the longest serving lawyers in the history of the Michigan bar.  (That is him on the left, Alene on the right, and our niece, Paris Franklin, in the middle.) The last couple paragraphs in that post prompt me to reprise much of it.

Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929.  Nathan passed away in 2003, having continued to practice until his late eighties.

Nathan's practice in the 1930s included, among other things, immigration.  That came up in a conversation Alene had with my colleague, Prof. Ragini Shah, who founded Suffolk's Immigration Clinic.

I am burying the lede here, so bear with me.

What prompted the post over ten years ago was the renewed interest in Diego Rivera and Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude:  their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.  We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to Nathan, who represented and befriended Rivera and Kahlo during their stay in Detroit.  (Family legend has it that Kahlo made a pass at Nathan, but this is unconfirmed.)  

After Nathan passed away (at 96), Alene and I spent many hours going through his voluminous files.  One truly appreciates the historian's and the biographer's art of distilling the story from the data when looking at records like these.  The documents are tantalizing. 

For example, Nathan was a bachelor until 1946, when he married Alene's grandmother, who was a widow with two children.  Before that, he was supporting his mother and sisters.  When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.)  Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick.  I have framed in my office my personal favorite:  the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan's being Jewish while taking it.

Back in 2007, the interest in Rivera inspired me to go back through some of Nathan's files. What became clear was that it was likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of "undesirables," and espoused public positions to which the FBI director of long memory must have objected.  (I like to think that Hoover's two issues with Nathan were related to each other.)

For example, there was a file of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer.  The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party.  Bojer himself described it to a reporter as follows:  "They tell me that I'm a Communist. . .It so happens that I'm a member of the Communist Party Opposition, whose headquarters is in New York.  Members of that Party, though glad to take Moscow's advice, refuse to take Moscow's dictation.  There are other differences, such as our belief that the worker's solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England.  Also, we disbelieve in Moscow's theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units."

The American Civil Liberties Union attempted to intervene on Bojer's behalf.  (I couldn't tell if Nathan was already representing Bojer or if the ACLU retained him on Bojer's behalf.)  On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case.  Baldwin stated:  "The issue is far more than personal to him.  This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership.  It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party."  Nathan met with Bojer in the Wayne County jail, where Bojer, "a very affable and highly cultured young man," advised that he had no desire to appeal the deportation, and was willing to return to Norway.  He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an "East bound deportation party" on December 29, 1932.

There was an interesting postscript to that story.  Bojer's son or grandson (I don't remember which) in Norway somehow saw the blog post, got in touch with me, and I ended up sending him copies of all the papers.

So finally here is the lede, which was something of an afterthought in the 2007 post, but which in the past two years takes on relevance if not prescience.  The files contained an excerpt from Nathan's tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:

Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country.  In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred.  Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered.  The ever oppressed alien is again victimized.  The term alien becomes synonymous with undesirable.  Deportation "drives" and "spectacular raids" then become common occurrences.  Wholesale deportation follows as a panacea for what ails the nation.  This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws.  Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions.  To espouse the cause of the under-privileged requires great courage.  Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis.  So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.

And here's more.

The recent resignation of Judge Arthur C. Denison of the United States Circuit Court of Appeals for the Sixth Circuit is such a loss.  As a student of social conditions, he has clearly recognized a festering condition to which the Congress of the United States has closed its eyes.  Dwelling above the sound of passing shibboleths, he has refused to harken to the murmur of the moment.  Recognizing that immigration statutes are very drastic and deal arbitrarily with human liberty, he has found it necessary to remind Immigration Authorities that aliens are human beings and as such have rights in any country in which they are domiciled, not under the principles of natural justice, but under the Constitution itself.  Aliens help to create the wealth of our nation; they are subject to its laws and must comply with all its demands of taxation.  Aliens, therefore, who have become part of our household and who have cast their lot permanently with ours, must be accorded the protection of law that is granted our citizens.

 Oh, and by the way, Nathan insisted to me many years ago that he was a Republican.

Vaccines Mandates Win in Court

Thank you, Howard, for letting me contribute as a guest blogger this month. For the past five years, I have been involved in the vaccine wars.

Vaccines have tremendous benefits. In the United States, vaccines prevent tens of thousands of deaths and millions of hospitalizations each year. Their risks, while real, are very small. And yet, a misguided minority rejects vaccines, and in some communities, their numbers are disturbingly high. One place they made little headway in are courts - as this state example, mirroring the national jurisprudence, demonstrates.

In 2015, after a measles outbreak centered on Disneyland, California, in a contentious, high intensity legal process, passed Senate Bill 277 (SB277), a bill removing the personal belief exemption from California’s immunization law. SB277 became law on June 30, 2015 when Governor Jerry Brown signed it. Since California did not have a separate religious exemption, the effect of the law was to almost completely remove non-medical exemptions to California’s school immunization law. Unsurprisingly, opponents turned to the courts. After losing in three federal district courts and two state superior courts, two groups of plaintiffs appealed. On July 2, 2018, a California Court of Appeal released the first appellate decision upholding the law. This case was brought by eight plaintiffs seeking to send their children to school unvaccinated, represented by a lawyer who was openly anti-vaccine.

There is a large literature showing  that states with easier to get exemptions have lower vaccination rates and that higher rates of exemptions are associated with more outbreaks of preventable diseases. School immunization requirements work: they increase vaccine rates, and they reduce rates of outbreaks, sometimes completely eliminating them (other things that may lead to outbreaks even when vaccine rates are high. For example, we need a better pertussis vaccine. But even there, non-vaccinating increases the risk and makes things worse).

Opponents’ strongest arguments were that the mandate violated California’s constitutional right to education, violated the First Amendment’s freedom of religion guarantee, and impermissibly interfered with parental rights. Even these, as the Court of Appeals – correctly – pointed out, were not convincing.

The Freedom of Religion arguments runs into two related precedents - Employment Division v. Smith, under which generally applicable, neutral on their face laws do not have to provide religious exemptions, and Prince v. Massachusetts, which in a statement that is not part of the ruling but still persuasive found that religious freedoms do not exempt parents from vaccine requirements, because “[t]he right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”In a line of Federal Circuit courts mandates without religious exemptions were also upheld. There’s a question on how the recent religious freedom decisions by the Supreme Court will affect this jurisprudence, but that deserves a separate discussion (hint: right now, likely not at all, but it may be a warning for future).

Parental rights are not, and never have been, absolute. Even if they extend to the right not to vaccinate a child against a preventable, potentially fatal disease, they likely do not extend to a right to send that child to school unvaccinated and risk others.

I will address the right to education separately, but in short, the appellate court, following a previous federal district court decision, found that the leading case on the right to education in California – Serrano v. Priest– did not apply in this context, since it looked at a combination of the right to education and a suspect classification – wealth – and there was no such classification involved here. Even if strict scrutiny applied, the Court of Appeal said, the mandate would survive, since preventing diseases is a compelling interest and school mandates are the right means to serve it.

To repeat some of the language:

“…compulsory immunization has long been recognized as the gold standard for preventing the spread of contagious diseases. As is noted in the legislative history, studies have found that “when belief exemptions to vaccination guidelines are permitted, vaccination rates decrease,” and community immunity wanes if large numbers of children do not receive required vaccinations.”…. We agree with Whitlow’s conclusion: “The right of education, fundamental as it may be, is no more sacred than any of the other fundamental rights that have readily given way to a State’s interest in protecting the health and safety of its citizens, and particularly, school children[.]”

 

Indeed.

At least in this area, so far, the courts stand solidly behind science and the public health.

Truth, Trust, and the First Amendment in the Digital Age

The University of Missouri Schools of Law and Journalism co-sponsored a symposium last week at the National Press Club in D.C. entitled Truth, Trust, and the First Amendment in the Digital Age. C-Span carried the symposium, including the keynote by the inestimably fabulous First Amendment attorney Floyd Abrams.

If you're interested, the panels and keynote are available to watch on C-Span at this LINK: 

Barbara Cochran of the School of Journalism moderated the journalism panel, which included remarks by:

Peter Baker, The New York Times
Dan Balz, The Washington Post
Major Garrett, CBS News
Hadas Gold, CNN
Clarence Page, Chicago Tribune
Chris Buskirk, American Greatness
Margaret Talev, Bloomberg News

I moderated the media law scholars and media lawyers panel, which included remarks by:

Amy Gajda, Tulane University School of Law
Ronnell Andersen Jones, University of Utah College of Law
Mary-Rose Papandrea, University of North Carolina School of Law
Charles Tobin, Ballard Spahr LLP
Sonja West, University of Georgia School of Law
Kurt Wimmer, Covington & Burling LLP

 

 

Judicial Impartiality at Sentencing

The internet is awash in disagreement over some comments made by Michigan Judge Rosemarie Aquilina, who presided over the Larry Nassar case.  Nassar, a doctor who treated gymnasts for the U.S. Olympic team and at Michigan State University, pleaded guilty to sexually assaulting seven young gymnasts, and it is apparent that he assaulted many more. The judge ultimately imposed a 175-year sentence on Nassar, who had already been sentenced to 60 years on federal child pornography charges.

Judge Aquilina made some very strong statements about Nassar when she announced his sentence. But it is a comment that she made on a previous day—one of the days when Nassar’s many victims spoke at his sentencing hearing—that has led to a heated debate:

“Our Constitution does not allow for cruel and unusual punishment," she said. "If it did, I have to say, I might allow what he did to all of these beautiful souls -- these young women in their childhood -- I would allow someone or many people to do to him what he did to others."

This is a remarkable statement by a judge, but this is also a remarkable case. And so a number of people are saying that the judge should not have made this statement, while others are saying they are glad the judge said this.

First, let me say that I haven't seen a transcript of the judge's entire remarks, and so I can't say whether the comment might seem to have a different meaning in context. But, at least out of context, the judge is suggesting that prison is not a severe enough penalty for Nassar, and that the judge would be tempted, if she could, to sentence Nassar to be sexually assaulted.  I both understand the feeling that a prison sentence doesn't seem to acknowledge the enormity of what Nassar did (especially given how cavalierly those sentences are handed out nowadays) and think that the judge should not have given voice to her personal revulsion here.

To illustrate why, let me tell you about another judge. My friend used to be a criminal defense attorney in Tennessee. One Tennessee judge he practiced in front of used to always give the maximum sentences in drug cases.  When imposing those sentences, the judge would also give a speech saying that he would give the death penalty for drug dealers if he could.  My friend used to tell the story as a colorful anecdote about Tennessee that would outrage his new Northeaster friends.  We were all outraged by that speech because of course drug dealers shouldn't get the death penalty. And the judge's speech suggests that the maximum sentences he was imposing were based on his idiosyncratically harsh views about drugs.

Now, the difference between that judge and the judge in Nassar's case is that many people actually agree with the idea that prison is too light of a sentence for those who molest kids.  In fact, not too long ago, there was a movement in this country to make child rape a capital crime--a popular movement that was succeeding until the Supreme Court declared it unconstitutional in Kennedy v. Louisiana (2008).

But even though we, as members of the public are free to indulge our disgust and anger at Nassar for the awful things he did, his sentencing judge isn't. She is supposed to be a neutral arbiter who can weigh the awful things Nassar did against any mitigating evidence.  This comment suggests Judge Aquilina can't be that neutral arbiter. And that's a problem in every case, including the cases where we couldn't imagine being such an arbiter ourselves.

Now, I’ve made this point about being a “neutral arbiter” on Twitter (in fact, this blog post is drawn from a number of tweets from earlier today), and a number of people disagree.  They’ve noted that, when announcing a sentence, a judge’s role is different than her role at trial; and that at sentencing, a judge is supposed to explain the reasons for her sentence, and that it is completely appropriate for that explanation of sentence to reflect the magnitude and awfulness of a defendant’s crime.  Both of these statements are true, but they don’t necessarily justify Judge Aquilina’s statements here. Just because judges can act differently at sentencing than at trial does not mean that there are no constraints on their sentencing behavior.  This statement happened before all of the sentencing evidence had been submitted, and it goes beyond merely explaining a harsh sentence.

Some have gone even further to say judges are not expected to be impartial overseers at sentencing; instead the judge represents “the people” at sentencing, and it is appropriate for the judge to give voice to “the people’s outrage.”  I disagree. The judge never represents the people in a criminal case; the prosecutor does.  A judge’s duty to act fairly and impartially applies to “all duties of judicial office.”  And, at least taken out of context, I think that Judge Aquilina’s statement fails to be sufficiently impartial.

So, assuming that Judge Aquilina’s statements were insufficiently impartial, what does that mean? It probably does not mean that Nassar will have his sentence reversed on appeal.  Michigan courts have not been particularly hospitable to such claims in the past. And appellate courts are generally loathe to overturn trial judges’ sentencing decisions unless they violated a relevant statute, imposed a sentence based on materially false information, or if the judge based the sentence on the defendant’s race or gender.

It *could* mean that Judge Aquilina will be subject to professional discipline for violating her duty of impartiality.  There are several examples of judge being disciplined on that basis when their sentencing comments were critical of victims or minimized the harm victims suffered.  But I’m not sure that judicial disciplinary committees will have the stomach to impose discipline where the judge’s impartiality favored victims and disadvantaged the defendant. Our current moment seems to be one where judicial leniency prompts backlash, but judicial harshness does not. And I think that asymmetry is troubling.  Impartiality requires fair treatment for both sides, not merely for victims—even victims in a case as horrifying as this one.

Uberizing Nonemergency Medical Transportation

I suppose you know you are well on your way to becoming a cultural icon when others invoke your brand as the avatar of a kind of disruptive force needed in other industries, hence all the declarations of the need for an Uber for health care.  At this point, I think health care services that connect patients/consumers via gig-economy style apps for the provision of on-demand health care are interesting but not as immediately interesting as the development and application of Uber's transportation revolution principals to non-emergency health care transportation.  Actually, it is Lyft that has been more fashion forward in this area, though I've yet to find the assertion that we need to "Lyftize" non-emergency health care transportation.

What is NEMT? Well, it is a roughly $2.7 billion a year industry. Historically, this has meant the ride share van or voucherized taxi ride for the government funded health insurance beneficiary who needs, for example, periodic and regular transportation to a dialysis clinic or an infusion center.  Eligibility for this program  was targeted toward those without a driver's license or a car or access to a family member or friend who might provide this service and who was deemed too low income to buy needed nonemergency medical transportation in the open market. This targets a demographic that is older, low income, and  chronically ill. The system was famously creaky for the same reason all taxi services, before the scramble to try to adopt Uber-Style booking, were so creaky.  A fair number of rides booked in advance never occurred.  Wait times in excess of an hour at both ends of the transport were not uncommon.  Missed dialysis or infusion appointments, as a result, were also not uncommon for NEMT eligible patients.

Interestingly, it was provider restlessness with the status quo ante as much as patient/consumer activation that prompted attempts to Uberize nonemergency medical transportation. A missed medical appointment represents lost reimbursement for a provider and, essentially, dead time in a daily appointment calendar.  The provider desire to wean its NEMT population away from van and taxi vouchers required acknowledging that the targeted patient/consumer population was not overwhelmed with smart phone access or use.  Making the Uber/Lyft business model work for this population required modifying the business model: organizing ways that individuals could call for a ride; setting up a system for third parties to schedule rides; developing highly visible placards for the summoned cars; training drivers to offer assistance in and out of the vehicle, etc.  

Lyft's precedent setting contract to provide medical appointment transportation to CareMore Health System, in two locations including one in California,  was a natural fit. CareMore's target demographic is older individuals.  Uber has not been far behind with its partnership with Boston-based Circulation.  Interestingly, Uber is also piloting transportation for older individuals to Gainesville Florida's senior centers under a program called Freedom in Motion.  This might also be seen as health care transportation Uberization, given what we are learning about some of the health care implications of social isolation. 

All of this is so interesting and potentially so promising for improving health care access and outcomes for low income non-drivers going to nonemergency medical appointments, I have to wonder if it might also help to relieve some of the financial pressure on older individuals who, desiring urgent care for something like a sprained or broken finger, and not understanding Medicare's stringent general emergency medical care reimbursement rules, call 911 and are whisked away for that care in an ambulance that may be overkill for their needs.  They will think about it more at their leisure when, weeks or months later, Medicare denies emergency medical transport coverage and they are presented with an out of pocket bill for anywhere from several hundred to several thousand dollars.  Surprise ambulance bills, at present, are endemic to Medicare. 

 

 

 

 

Cy Vance, Campaign Contributions, and Decisions Not to Prosecute

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

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

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

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

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

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

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

Opinions About Giving Legal Opinions

Nowadays, news reports resemble the sorts of crazy hypotheticals that law professors love (and law students loathe).  And since we love far-fetched hypotheticals, many law professors have taken to giving our legal opinions about the political news item of the day.

In addition to having our own opinions about the latest news, law professors are often confronted by the opinions of their colleagues.  Newspapers, blogs, and Twitter are full of divergent opinions on these topics, and many of us end up having strong opinions about our colleagues’ opinions. 

Given the ubiquity of legal opinions (and opinions about those legal opinions), I’d like to offer five opinions about how I think law professors ought to share their legal opinions with the public.

First, be careful when you offer opinions that are available to the general public.  It used to be that law professors had to wait for a media call or have an op ed accepted in order to share their views on the legal topic of the day.  Not so anymore.  Blogs and Twitter allow us to give our opinions easily – perhaps too easily at times.  And although these platforms might seem like social media, it is important to remember that the opinions you give in these fora are public statements.  Even if you have only 70 followers, and most of those are your family and college friends, something that you tweet could be shared and read by total strangers with no background in the law and no sense of who you are.

I say “be careful,” not only because you are stuck with whatever reputational fall out might occur from a publicly expressed opinion, but also because your public statements come with an implicit aura of authority.  When we identify ourselves as law professors, that signals that we are experts whose opinions ought to be taken seriously. We should remind ourselves about that explicit claim of expertise when offering a public opinion.  And if you aren’t actually claiming that expertise—say if you are offering an opinion outside of your field—make sure to offer that qualification, and seriously consider whether you ought to share the opinion publicly at all.

Second, certainty when expressing a legal opinion is rarely warranted.  Just as we often respond to student questions by saying “it depends,” we should also acknowledge the same uncertainty in our public statements.  I’ve found it useful, for example, to remind myself that a legal opinion is no more than a prediction about how a court will rule in a given situation.  I don’t mean to suggest that legal opinions should be nothing more than psychological predictions about how certain judges will rule.  (I personally find those sorts of opinions a little tedious and somewhat presumptuous.)  But most legal opinions are offered in circumstances that are not identical to prevailing Supreme Court case law, and so all that we are offering is a guess about how courts will decide a case using existing statutes and case law.

There is real temptation to project certainty.  It may make us feel more confident to sound certain. Or we may want to impress the journalist who has called us.  Sometimes reporters are just looking for a sound bite to drop into their article, and at least some of them want you to speak definitively in that sound bite.  But a journalist’s job is to inform the public; and if we make it seem as though the law is clear in areas where it isn’t, then we are misleading the reporter (and in turn, the public) rather than informing them.

Third, be willing to rethink your opinions and to admit your mistakes.  The law professors that I admire the most are those who have changed their minds.  For what it is worth, this is easier to do if you don’t initially express your opinions with too much certainty. If you couch your opinion in terms of “here is what I think at this point,” you leave your ego plenty of room to walk away from that opinion after further reflection or after new information comes to light.

Fourth, be measured and thoughtful when you disagree with the legal opinions expressed by others.  Law professors are human, and they are more likely to engage with you on the substance of an issue if you are respectful in your disagreement.   I don’t just mean avoid being a jerk. I mean you should go out of your way to frame your disagreement terms that couldn’t possibly be mistaken as hostile or aggressive.  It is easy to mistake tone online, so you are better off saying “I really enjoyed this interesting post.  Do you have any thoughts on X?” where X is a piece of information that contradicts a factual point the other professor made, or where X is an opinion by someone else that goes the other way.  A less conciliatory tone is likely to get the other professor’s hackles up, and if someone’s hackles are up, then he or she is less likely to engage your substantive concerns.

Fifth, don’t assume that people are acting in bad faith when they give legal opinions.  In particular, please stop accusing people of giving legal opinions only because those opinions happen to align with their political preferences.  This sort of finger pointing gives further ammunition to non-lawyers who insist that law and politics are indistinguishable.  That isn’t true, and it is extremely corrosive to the legal academy when those legal naysayers can point to law professors accusing each other of partisan hackery in their expert opinions. 

We should, of course, all be careful to push ourselves on our own opinions to ensure that those opinions are impartial predictions of legal outcomes rather than partisan preferences. (There is evidence suggesting that confronting our biases can lessen or eliminate their influence.)  But we should assume that our colleagues are smart enough and honest enough to have done this themselves.  And if you are genuinely worried that someone’s opinion can’t be supported as anything other than political wishful thinking, I recommend trying to have that exchange with him or her in a non-public forum.

There you have it – my five opinions about how to give legal opinions.  I’m interested to hear your opinions on legal opinions. And I am quite open to being convinced that my own opinions are wrong. (Except for number four --- I feel quite certain about that one.)

Constitutional Powers and Crimes

For obvious reasons, people have been talking recently about whether it can ever be a crime for the President to instruct a subordinate to end a criminal investigation.  The possible crime here is obstruction of justice.  And the major argument why it cannot be a crime is that the power to enforce laws is assigned to the Executive by the Constitution.  Because deciding whether to investigate and prosecute individuals is solely within the purview of the Executive, and because there are no limits on the reasons why a President can decline to prosecute, some argue that it can never be a crime for a President to end an investigation. 

Without offering any thoughts on whether certain actions actually rise to the level of obstruction of justice, I want to offer a brief explanation why I don’t think this constitutional powers argument is particularly persuasive. 

It is well established that government actors can be convicted for inappropriately exercising their governmental powers.  Any government official who performs an official act in exchange for money, for example, has committed bribery, even if it would have been perfectly legal for her to have taken the same official act under other circumstances.

Unlike bribery, an obstruction of justice charge doesn’t require a separate criminal act; there is no quid pro quo.  And so some might think that, because Presidents are allowed to make non-prosecution decisions for any reason, the simple decision not to prosecution can’t be criminal, no matter what the reason.  But this argument goes too far. 

In a number of situations, the courts have recognized that otherwise unlimited discretion can’t be exercised for certain, forbidden reasons.  That is why, for example, the courts are willing to reverse sentences in discretionary sentencing systems if the sentence is based on race or national origin.  The Supreme Court has also repeatedly said that executive decisions whether to prosecute cannot be made for discriminatory reasons, even if charges are otherwise supported by probable cause.

Now, one might respond that obstruction of justice is different than these other examples because it is a legislative limit on executive power, rather than a constitutional limit.  But I’m not sure that’s a particularly good response.  For one thing, no one disputes that Congress has the most obvious constraint on executive power to prosecute: the power to define crimes.  For another, obstruction of justice is one of many laws that place limits on what the President may or may not do.  Bribery is also a legislative limitation, rather than a constitutional limitation.  Maybe there is some clever constitutional argument to be made about limits on Congress’s ability to restrict the executive’s prosecutorial power.  But obstruction of justice isn’t that sort of limit; it is a generally applicable law that forbids all individuals from taking certain actions for certain reasons.

In short, the simple fact that the Constitution assigns a particular power to an individual does not mean that power is unlimited.  To be clear, I am not saying that a sitting President can be prosecuted (though I may offer thoughts on another day on the weaknesses of that OLC memo on the topic).  Nor am I making a statutory claim about whether this President has obstructed justice.  I am simply saying that otherwise unfettered discretion may not be exercised for particular reasons, which leads me to conclude that a sitting President, like any other individual, can obstruct justice.

Why Is It So Hard For the (Federal) Courts To Innovate?

Earlier this week, the House Judiciary Committee held a hearing which touched on a wide range of court transparency issues.  Of particular interest to me was the testimony of Mickey Osterriecher, the general counsel of the National Press Photographers Association, who renewed the push for broadcast access to federal court proceedings.  He noted that the recent live audio stream of the Ninth Circuit’s telephonic hearing on President Trump’s travel ban garnered more than a 137,000 connections on YouTube, with millions more tuning on cable TV news.

Given that the other branches of the federal government have long broadcast many of their proceedings (CSPAN has been on the air for nearly 40 years), and that courtrooms are traditionally open to the public anyway, there is no obvious reason reason why the federal court system would not provide video and audio access to their proceedings on a much more regular basis.  Yet the Judicial Conference of the United States and the Supreme Court have repeatedly blocked efforts to do just that.  Indeed, two years ago the Judicial Conference let lapse a nationwide pilot program that allowed volunteer district courts to record selected civil proceedings and make those recordings available to the public. (Only three district courts in the Ninth Circuit have been permitted to continue the project.)  That pilot, whose success I documented here, and carried significant benefits for the legal profession and the public. 

So why did the Judicial Conference end it?

The U.S. Courts website offers little guidance, only noting dryly that the "Committee on Court Administration and Case Management ... agreed not to recommend any changes" to the general policy of prohibiting cameras.  The real reason for ending the cameras program--left unstated by the Judicial Conference--is that the introduction of cameras on a regular basis is seen as too risky.   To understand why, it is helpful once again to think about the federal court system as a large organization.

Courtroom broadcasts would be an innovation, and organizations do not naturally innovate.  Innovation is disruptive and places the organization's resources at risk.  Therefore, innovation is typically justified only if: (1) the change will distinguish the organization from its competitors in the field (thereby allowing it to attract more resources), or (2) the change will conform the organization’s practices to those in the field (thereby allowing it to look more legitimate).  The distinction incentive is more prominent in the private sector, where introducing a new product or new marketing campaign could garner new customers or new investors.  The conformity (or isomorphism) incentive is more prominent in the nonprofit and public sector, where legitimacy is often tied to looking and acting like other respected organizations in the field.

The distinctiveness  incentive is not very strong here.  Broadcasting courtroom proceedings does not distinguish the federal courts from other court systems (where cameras are already allowed), and likely does not distinguish them positively from arbitrators or other private ADR providers.

The incentive to conform might seem more promising because it is so closely tied to an organization's legitimacy.  As I noted in a previous post, legitimacy is perhaps the single most important resource to the federal courts. If the courts are not perceived as legitimate, they risk losing other key resources: funding, jurisdiction, a steady flow of disputes needing resolution, and goodwill.  We might expect, therefore, that isomorphic pressures might push the federal courts toward conformity with other branches of the federal government, and many state courts, by allowing cameras to broadcast hearings in a regular basis. If isomorphic pressures are powerful enough, the courts would gain legitimacy from permitting cameras in the courtroom, and would lose legitimacy by resisting them.

Isomorphic pressures come in three forms.  Coercive pressures come from the state, usually in the form of legislation or regulation.  (A federal law requiring broadcasts of court proceedings would be an example.)  Mimetic pressures are pressures to copy peer organizations, on the theory that a behavior signals legitimacy just because everyone else is doing it.  Normative pressures derive from the culture and expectations of the professions associated with the organization.  (For example, in making policy the federal courts often consult with the ABA, the American College of Trial Lawyers, and similar prominent bar groups.)

Here, however, the isomorphic pressures are not sufficiently powerful to induce change--at least, not yet.  The coercive pressures on the courts are moderate at best: Congress has introduced a Sunshine in the Courts Act in almost every recent session, but they have never picked up serious steam. The mimetic pressures are also weak: state courts may use (and benefit from) cameras, but at least in this field the federal courts do not seem to view the state courts as peers worthy of imitation. And the normative pressures are too scattered: the arguments touting the benefits of broadcast proceedings come not from the organized bar, but rather from the media, politicians, and academics. It’s not accurate to say that courts find these views meaningless, but it is certainly safe to say that they do not find them powerful enough to move from a stable level of public legitimacy.

Conditions and external pressures can change.  I hope that the federal courts will eventually come to recognize that the benefits of the cameras program outweigh the risks, and will adopt a full program on their own.  In the meantime, friends of the court might want to rally the normative forces that counsel for such a change.

Teaching and Writing About Marijuana Law

Greetings, y’all, and thanks for having me! In the coming weeks, I’ll be blogging about one of my core areas of interest: marijuana law. In this first post, I want to share just a couple of the reasons why I find this is such a fascinating and worthwhile field of study.

For one thing, state marijuana reforms and the federal response to them have sparked some of the most challenging and interesting legal controversies of our day. May the states legalize a drug while Congress forbids it? Even so, are state regulations governing marijuana preempted by federal law? Does anyone (besides the DOJ) have a cause of action to challenge them as such? Can the President suspend enforcement of the federal ban? Do state restrictions on marijuana industry advertising violate the First Amendment? These are just a handful of the intriguing questions that are now being confronted in this field.

Just as importantly, there is a large and growing number of people who care about the answers to such questions. Forty-three (43) states and the District of Columbia have legalized possession and use of some form of marijuana by at least some people. These reforms – not to mention the prohibitions that remain in place at the federal level – affect a staggering number of people. Roughly 40% of adults in the U.S. have tried marijuana, and more than 22 million people use the drug regularly. To supply this demand, thousands of people are growing and selling marijuana. In Colorado alone, for example, there are more than 600 state licensed marijuana suppliers. There are also countless third parties who regularly deal with these users and suppliers, including physicians who recommend marijuana to patients, banks that provide payment services to the marijuana industry, firms that employ marijuana users, and lawyers who advise all of the above.

All of these people need help navigating a thicket of complicated and oftentimes conflicting laws governing marijuana. Colorado, for example, has promulgated more than 200 pages of regulations to govern its $1 billion a year licensed marijuana industry. Among many other things, Colorado’s regulations require suppliers to carefully track their inventories, test and label their products, and limit where and how they advertise. These regulations are complicated enough but doubts about their enforceability (highlighted in the questions above) only add to the confusion and the need for informed legal advice.

This short intro should give you a sense of why I now regularly teach a course on Marijuana Law and Policy at Vanderbilt, and why I have spent a large part of the last two years completing a first-of-its-kind textbook with Aspen on Marijuana Law, Policy, and Authority. The link provides more details on the casebook, which will be published in May of this year—i.e., in plenty of time for summer or fall 2017 classes! And if you are interested in teaching a course in any aspect of marijuana law, contact me – robert<dot>mikos<at>vanderbilt<dot>edu -- I would be happy to chat.

That’s it for now. In the coming days, I’ll write about several of the questions posed above.

In Praise of Geographic Diversity on the Supreme Court

Much ink will be spilled in the coming days, I am sure, on President Trump’s nomination of Tenth Circuit Judge Neil Gorsuch to the Supreme Court.  Here I want to weigh in on one oft-neglected but important part of Judge Gorsuch's resume: the geographic diversity he would bring to the Court.  Gorsuch is a Colorado native, and his address last night repeatedly invoked those western roots.  By contrast, most of the current Justices hail from within the so-called Acela Corridor, stretching from Boston to Washington, D.C. 

It was not always this way.  Twenty-five years ago, the nine members of the Court had spent their formative years in locales all across the country: California (Kennedy), Arizona (O’Connor), Colorado (White), Illinois (Stevens), Wisconsin (Rehnquist), Minnesota (Blackmun), Massachusetts/New Hampshire (Souter), New York (Scalia), and Georgia (Thomas).  The distribution was a bit heavy on the Great Lakes states, perhaps, and a bit light on the south-central part of the country, but widely representative nonetheless.

There are several reasons to believe that geographic diversity on the Court makes a positive difference.  More after the jump.

First, geographic diversity can raise the Court’s legitimacy with the public by increasing regional buy-in. The November election made clear that much of the country believes that federal institutions are dominated by coastal elites.  Appointing a Justice from far outside the range of the Delta/American shuttle can strengthen public belief that the Court has a national perspective.  Regional pride plays a role as well: the left-leaning Denver Post strongly endorsed Judge Gorsuch for the Supreme Court opening last week, despite his conservative credentials, noting among other things that “we like his ties to Colorado.” Just as the gender, race, religion, and philosophy of a Supreme Court nominee can drive acceptance among certain segments of the public, so too can geography create the sense that “one of our own is looking out for us.”

Second, Supreme Court appointees from different parts of the country are likely to bring specialized knowledge of certain areas of law.  The Tenth Circuit, for example, encompasses states in which the law concerning water rights, oil and gas, minerals and natural resources, skiing and winter recreation, the management of federal lands, and the state-federal relationship is both prominent and very strongly developed.  Many of these issues are likely to come before the Supreme Court at least sporadically in the coming years.  Assuming no basis for recusal, a Justice with familiarity in these areas would be a welcome addition.  The same would obviously apply for other areas of the country.

Finally, childhood and adolescent experiences—and the location of those experiences—can matter to adult decision-making.  No less than any other cultural influence, childhood geography can instill certain understandings about the world that remain with you as an adult.  As the 2007 Scott v. Harris case notoriously demonstrated, perspectives on what constitutes reckless driving may be influenced by whether one grew up in a community reliant on subways and buses or pickup trucks and rural roads.  Similarly, one’s perspective on issues related to labor, immigration, business and financial regulation, criminal justice, and so on might be affected by whether one grew up in view of factories or farms, skyscrapers or suburban malls.  Or just go ask a westerner about water – water rights, water use, water conservation.  While we would never expect or demand a Justice to vote a certain way based solely on geographic background, the ability to add a different perspective at least increases the chance that the Court will take it into account.

The geographic background of a Supreme Court nominee should not be the primary basis for his or her appointment to the Court, any more than the candidate’s gender, race or religion should be.  But it does carry both symbolic and practical value, and it’s good to see geographic balance coming back into play.

I do solemnly swear

Maybe this time the Chief, not wanting Trump to wield executive power, will intentionally screw-up the Oath.

The Blue Inhaler

I carry an albuterol inhaler as my  quick relief medication for asthma. I use it infrequently, which is good news for me and good news for my asthma. Known in many other countries as the blue inhaler or the blue puffer, albuterol/salbutemol is a tremendously popular and effective relief inhaler.  First brought to market in the 1980's, sales of the blue inhaler have grown as have rates of asthma diagnosis.  

Traveling recently in the E.U., my albuterol inhaler stopped working short of its full number of available measured doses. And so I was off to my neighborhood pharmacy in  Ponta Delgada, hoping that a licensed pharmacist might be able to prescribe inhaled albuterol over the counter and spare me the quest for the Centro de Saude on New Year's Day.  Frequent travelers are no doubt aware that certain prescription only medications in the United States may be sold over the counter in other countries or dispensed at the discretion of a licensed pharmacist, even in the absence of a prescription, in still  other countries.

One glance at the Pharmacia Moderna receipt found above will tell you I was successful. I was seen quickly by a licensed pharmacist who discussed my symptoms, examined my current inhaler (stunned, it seemed, that the United States would allow a relief inhaler to be packaged in bright red or anything other than the blue that is the color coded signal to asthmatics the world over that a rescue inhaler is at hand), and sold me a full size blue salbutemol inhaler for just under 3.75 Euros.   I paid for it with pocket coins.

Today, I will not discuss drug pricing in the Açores beyond mentioning that Portugal (the Açores are an Autonomous Region of Portugal) uses a reference drug pricing system to set prescription drug prices.  The reference involved is to drug pricing in several other countries (varying  yearly, but often including Spain).  Portugal, in short, is not interested in being an outlier in prescription drug acquisition cost nor an outlier in prescription drug cost to consumers. For some years, in fact, Portugal's citizens paid less than other reference countries for certain pharmaceuticals, something that has been increasingly altered by a Memorandum of Understanding relating to drug costs, promoted by the E.U. after the latest financial crisis. 

The price to me was a remarkable ten percent of my U.S.  commercially health insured co-pay cost for the differently-named albuterol inhaler. The contents, however, were the same, though the color of the casing on my damaged inhaler disturbed my Açorean pharmacist and the lack of a dose meter mechanism on the blue inhaler sold to me in Ponta Delgada disturbed me. I have written elsewhere about the problems of relief or rescue inhalers without dose meters.

What was equally stunning, however, was the ease of the entire encounter.  I had a new relief inhaler in hand inside of ten minutes. No visit to the the clinic, no transferral of the prescription from the clinic to the pharmacia, no complicated health insurance negotiations over whether a new inhaler would be covered (it was broken) or not covered (my request for a new inhaler was untimely by calendar standards).

This made me want to know if the blue inhaler is an over the counter drug in other countries.  Sure enough, the blue puffer can be bought in a U.K. supermarket, in a drug store without prescription in Australia and Spain, and elsewhere all for about the price I paid at Pharmacia Moderna.  Tracking backward to check if a push had ever been made to allow Albuterol inhalers to be sold over the counter in the U.S., I learned of a relatively recent effort by the FDA to generate discussion about the possible creation of a third class of medicines: over the counter, over the counter with conditions of safe use, and prescription.  

Last widely discussed in 2012, the FDA held hearings on the OTC/SCU category's appropriateness for formerly prescription only items like steroidal asthma inhalers. Multiple days of hearing on the idea produced varied positions, including  AMA opposition to the encroachment on physician scope of practice. One AMA spokesperson supported pharmacist supervision of OTC/SCU prescribing, as soon as the relevant pharmacist had gone to medical school. The FDA proposal went nowhere.

I know of no place in the U.S. where OTC/SCU prescribing involving steroid inhalers has gained any traction after the 2012 blowup at 
the FDA, though pharmacist prescribing is developing a bit of a track record in Canada and in the U.K. Our own state-based experiments with pharmacist prescribing authority are a mixed bag of programs based on  dependent authority (collaborative practice with licensed physicians) and independent authority (think Oregon, Washington,  and California's hormonal contraceptives statutes) but they have proven extremely limited in scope.

And the blue inhaler? Google it, if you like, and read all the apparently U.S. based articles and  chat board discussions on how to survive an asthma attack without a relief inhaler. 

 

Dialysis Care's Tangled Web

Thank you to PrawfsBlawg for the opportunity to guest blog this month. 

Christmas Day was the perfect day for the New York Times to publish its article on interesting goings on at The American Kidney Fund, one of the largest charities in the United States. Why? Well, Christmas Day is usually a slow news day and even trying to understand how dialysis care is funded for Americans is a slow read. It may be that all health insurance topics that span government-funded insurance as well as commercial insurance in the U.S. are a slow read. This is because our health insurance systems are complex but also because our health insurance systems are under-discussed.

Here, I am aiming for the fast read on the issues underlying  reports of recently issued subpoenas from the Justice Department to our two largest dialysis chains, Fresenius and DaVita. 

Renal failure patients have been  a special disease group under Medicare since 1972, when Congress extended Medicare coverage  to people of any age with kidney failure. The "kidney entitlement" (as it is sometimes known)  is distinctive in this regard. The story of the movement of dialysis from experimental to medical treatment, the rise of the dialysis industry,  and the sympathetic face of end stage renal failure patients all played a role in the dance of this legislation.  Indeed, a dialysis machine was reportedly brought to a Congressional hearing, though the account that a patient was actually dialyzed before members of Congress may be the stuff of urban legend. The early 1970's was also a time of  hope for comprehensive national health care reform, with the kidney entitlement seen by some as a stop-gap measure, not as an exercise in exceptionalism.   For all these reasons -- and more -- we saw the development of the extension of Medicare  coverage for dialysis to a disease group that included many who would formerly have been outside of the Medicare tent.

Dialysis evolved as did the dialysis industry. The nonprofit American Kidney Fund, from modest beginnings as a fundraising drive for a bankrupt dialysis patient, grew into a reportedly  majority dialysis industry funded charity whose premium support program allowed the American Kidney Fund, federal health care fraud and abuse law notwithstanding, to expand the relationship between the dialysis industry and the charity through collection and distribution of funds in the form of health insurance premium payment, including Medicare and commercial insurance premium payment for end renal failure patients. 

In health care delivery, payer mix is all. A health care delivery entity's business model necessarily revolves around a favorable payer mix. Fresnius and DaVita, for example,  were reported to receive $300,000 per patient per year from the Oregon state insurance pool for a year of dialysis treatment in 2011 as compared with the $82,000 they were reportedly able to bill Medicare in the same year. Now, allegations have been made that the American Kidney Fund excludes applicants from health care entities that do not contribute to the Fund, though this would be an apparent violation of the terms under which the premium support program was found not to violate health care fraud and abuse law.

In addition, litigation by United Health tips us off to the fact that the dialysis industry may  -- in light of the extraordinary reimbursement differentials -- have decided that the best use of premium support funds was to enroll  renal failure patients in commercial insurance. In addition, it has historically been the policy of the American Kidney Fund to terminate all premium support if a patient pursues transplant and dialysis terminates.

 

In this tangled story of dialysis treatment we have the larger American health care system's incentives written on a grain of sand: each insurer determined to push risk and cost on its competitors; each provider entity determined to retain its market share and maximize reimbursement rates; and a charity program perhaps operating as a demand-enhancement reimbursement maintenance control center.  

 

 

 

Why We Need to Talk about Trump & Press Freedom

On Wednesday, January 5, AALS2017 kicks off with a panel on Trump & Freedom of the Press in the Plaza Room Lobby Level of the Hilton Union Square at 8:30 am.

RonNell Andersen Jones (Utah), Amy Gajda (Tulane), Sonja West (Georgia), Erwin Chemerinsky (UCI), John Diaz of the San Francisco Chronicle, and I will be discussing what the Trump presidency might bode for press freedom. In preparation for the panel, I thought I'd share with you the research I've done suggesting why this discussion is necessary and timely. In short, here are the reasons that the media (and those of us who value the role they play in our democracy) have legitimate causes for concern that press freedom might be curtailed during the Trump Administration. 

First, Donald Trump has shown himself to be remarkably thin-skinned about unflattering press coverage. Throughout his campaign and after, he has publicly berated  Saturday Night Live, the New York Times,  and many, many other news organizations and individual journalists (too many to enumerate here, as is evident from this list compiled by MediaMatters.org) for criticizing him or simply for covering him.  Shortly after the election, he called television news anchors and executives to Trump Tower  to browbeat them for their "dishonest" and "short sighted" and "outrageous" election coverage. He singled out CNN and NBC as the "worst," calling CNN "liars." All of this seems a bit churlish from a candidate who got at least $2 billion worth of free air time from these same media actors and did not hold a press conference from July 2016 until the end of December.  Nonetheless, it suggests that the relationship between this President and the press will not be a smooth one. 

However, more alarming than Trump's propensity to take offense at even the most innocuous press criticisms was his propensity to incite supporters against the press during his campain. Certainly other elected officials have villified and will doubtlessly continue to villify the press to score political points (think VP Spiro Agnew's "nattering nabobs of negativism").  However, Trump turned up the heat beyond anything previously seen. As Margaret Sullivan wrote in The Washington Post, "Donald Trump made hatred of the media the centerpiece of his campaign. Journalists were just cogs in a corporate machine, part of the rigged system." During his campaign events, he restricted press to a "pen" and then inflamed his supporters by calling them dishonest and accusing them of rigging the election and inventing stories to discredit him. His supporters often responded with boos, ugly gestures, and chants of "liars", "assholes," "CNN sucks!," and worse, causing some reporters to fear for their safety.

Trump further displayed a lack of appreciation (or perhaps contempt?) for pool reporters by denying them traditional avenues of access. Unlike previous candidates, Trump never allowed the press on his plane. He also revoked credentials  or denied credentials of those who garnered his special ire.  Although Trump has promised to have a "normal" press pool as president, he's shown a willingness since being elected to deny pool coverage of important meetings and to ditch his press pool at will. He's also stated he may change the format of press briefings, in an as yet unspecified way.  On a somewhat more positive note, he has  granted interviews to several outlets since his election, including The Today Show, 60 Minutes, The New York Times, The Wall Street Journal, and Time Magazine, though his anti-media rhetoric and disrespect for traditional channels of access cast doubt on whether this trend will continue once he's in office.

Other causes for concern about Trump's respect for press freedom abound. During the campaign, he promised, if elected, to "open up libel laws" to make it easier for public figures to sue the press, a threat that betrays a fundamental misunderstanding of libel law and constitutional constraints on the President. More alarmingly, Trump has shown a propensity to threaten lawsuits against journalists or actually sue over both innocuous criticisms and normal news coverage. As an ABA report revealed, "Trump and his companies have been involved in a mind-boggling 4,000 lawsuits over the last 30 years and sent countless threatening cease-and-desist letters to journalists and critics. But the GOP presidential nominee and his companies have never won a single speech-related case filed in a public court." Defending libel suits is expensive, even if one ultimately wins; thus, the mere prospect of being sued for libel can have a chilling effect on reporting. In fact, there's evidence that Trump's reputation as a "libel bully' has already chilled some speakers and is likely to chill others.  

Beyond that, Trump has praised ruthless dictators who have trampled press freedoms and targeted journalists for assassination. In fact, when asked if his praise of Vladimir Putin was tempered by Russia's killing of journalists, Trump said no:  “He’s running his country, and at least he’s a leader, unlike what we have in this country.” Such rhetoric would be chilling, even in isolation, but of course it is not in isolation.

Meanwhile, Trump comes into office on the heels of a President who has already eroded the press's ability to perform its watchdog role by aggressively pursuing leaks investigation against government employees, subpoenaing reporters to reveal confidential sources, and monitoring telephone and email records of journalists in service of leaks investigation. As Dana Priest of the Washington Post stated: “Obama’s attorney general repeatedly allowed the F.B.I. to use intrusive measures against reporters more often than any time in recent memory. The moral obstacles have been cleared for Trump’s attorney general to go even further, to forget that it’s a free press that has distinguished us from other countries, and to try to silence dissent by silencing an institution whose job is to give voice to dissent.” President-Elect Trump has not signaled whether he will continue such practices, but the fact that his former campaign manager  said that the executive editor of the New York Times should be in jail for publishing Trump's tax returns doesn't exactly inspire confidence. Trump also has not signaled how executive agencies within his administration will be directed to handle Freedom of Information Act requests, and although an RNC spokesman has praised the transparency of the Trump transition, Trump's previous treatment of the press, together with his refusal to release his tax returns, certainly gives reason for doubt on this score as well.

In addition to these causes for concern, the media have their own issues that may hamper their ability to perform their watchdog role during the Trump presidency. Trump is a genius at newsjacking. He is able to set the agenda of the media with his tweets and drown out negative coverage. Trump's "Hamilton" tweet, for example, garnered more eyeballs than the $25 million settlement of a fraud suit against Trump University. Meanwhile, the struggle to maintain press freedoms comes at a time when the public's views toward the media are increasingly hostile, many segments of the media face revenue challenges, and fake news undermines the role of legitimate journalism in furthering democratic self-governance. [Not to mention that "post-truth" was the OED's 2016 word of the year.] These issues, and many more, will give the Trump & Press Freedom panel ample fodder for discussion. I hope you can join us. 

Pedagogy and the Election

With my last post this election cycle, I wanted to do two things: first, to say thank you to Howard for the invitation and to my fellow contributors for their insights; and, second, to describe one important step that my colleagues at the University of Washington have taken in response to the presidential election and the questions it has raised.

My colleagues have designed a new course, entitled “Executive Power and Its Limits.” This course explores the boundaries of the presidency and the regulatory state. As designed by two of our administrative law experts, Sanne Knudsen and Kathryn Watts, the course is part overview, with discussions of the President’s relationship with the three branches of government, and part case study, with days devoted to a range of substantive areas, including immigration, health care, and the environment. Each of these areas of study will draw on expertise here at the law school, with most class sessions run not by Sanne or Kathryn, but rather by others on the faculty. One of the most innovative and important aspects of this course involves the way the students will be assessed. Rather take a final exam, each must draft one of the following: a regulatory comment in an ongoing rulemaking; a citizen petition for rulemaking; or an amicus brief in a pending case. The students decide on their own what position to take in their projects and whether, ultimately, to file the documents they have composed.

The creation of this class makes me proud to be a member of this faculty, and it helps me better to understand the wide range of roles that we can play as professors and members of the legal community. My colleagues’ response to the election has been to design a forward thinking, practically empowering, substantively rich, and ideologically neutral course that will benefit the students—and by extension, the wider community—enormously. It’s a course that, in my mind, should be taught every year, and one that is particularly important during times of presidential transition. I hope others are also finding ways to commit creativity and energy to figure out how best to respond to what we are, in all likelihood, now facing: an extended period of significant legal change.

Who Will Be Inaugurated on January 20? (Almost Certainly Donald Trump)

Recent days have seen a surge in efforts to change the 2016 presidential results. Jill Stein is spearheading calls for recounts. Democratic-affiliated electors are joining attempts to convince their Republican-affiliated counterparts to vote faithlessly on December 19. In response to questions about these post-election developments, I thought I would provide a few quick thoughts. The punchline is straightforward: none of this activity is likely to change who will become the 45th president. The following discussion provides more context.

First, for those trying to understand the recounts, state law is what governs. As a result, the rules governing recounts vary, and the answers to legal questions—including when and how to demand a recount and which standards govern the proceedings themselves—depend on whether one is seeking to recount votes in Wisconsin, or Michigan, or Pennsylvania. Despite such variation in the rules, the ultimate outcomes of these recounts are likely to be the same. Because taken either together or individually, they are very unlikely to make a difference in the 2016 presidential race.

By my count, the outcome of the 2016 presidential race changes only if recounts flip the results in all three of these states. This is because Donald Trump’s current elector total is 306, which means he has 36 more than he needs. In other words, Trump would need to lose the votes of 37 electors in order to drop below 270. Wisconsin provides 10, Michigan provides 16, and Pennsylvania provides 20. (There is, of course, the possibility that some of the Trump electors—that is, some of the electors who were selected based on Trump’s statewide victories—will prove to be “faithless,” thereby dropping Trump’s totals under 270 without all three of these states necessarily being flipped. See below for why this is unlikely to occur and why, even if it did occur, it is unlikely to change the result.)

What are the odds that recounts will change the outcomes in all three of these states? Based on historical evidence, the odds are minuscule.

In recount terms, the apparent margins of victory in the 2016 election are huge. As a result, there is not a single modern precedent for even one of these states to experience a reversal. Supporting the conclusion that there is “essentially zero chance” that recounts in these states will reverse Trump’s lead, Josh Douglas observes that, in the last 15 years, a statewide recount has flipped the outcome of an election only three times. Each of these reversals occurred in a really close race. According to FairVote, the first of these unicorns was spotted in 2004, where a recount in Washington State swung the margin by 390 votes, which translated into 0.014% of the votes cast. The second emerged in Vermont in 2006, where the recount swung the margin by 239, or 0.107% of the votes cast. The third could be found in Minnesota in 2008, where the recount swung the margin by 440 votes, or 0.018% of the votes cast. As FairVote concluded, based on its comprehensive analysis of all the recounts (consequential or otherwise) over a ten-year period, recounts tend to “change the margin by insignificant numbers.”

The problem for Stein and others hoping for game-changing recounts? The 2016 presidential vote totals do not turn on insignificant numbers. Current estimates indicate that in Wisconsin, Donald Trump is ahead by over 20,000 votes (equaling approximately 0.8% of the total votes cast); that in Michigan he is ahead by over 10,000 votes (approximately 0.3% of the total); and in Pennsylvania he is ahead by over 65,000 votes (approximately 1.2% of the total). The idea that standard-issue recount proceedings would flip the outcome not only in one of these states, but in all three, seems beyond the realm of possibility. This reality might help to explain why Marc Elias, the lead attorney for the Clinton campaign, has repeatedly insisted that “Hillary Clinton’s campaign didn’t want this recount and doesn’t think it will change anything.”

Some nevertheless have suggested that illegal hacking—rather than innocuous errors—might explain Donald Trump’s leads. Under this theory, the prior recount precedents are not on point. The trouble with this theory is that there appears to be no compelling evidence to back up the hacking claims—and under any of the states’ election laws, unsubstantiated theories about the possibility of hacking (or other forms of fraud) are far from enough to overturn the results. This is, incidentally, a very good thing; the democratic process is threatened by baseless accusations of election malfeasance.

In short, it seems close to certain that recounts in Wisconsin, Michigan, and/or Pennsylvania will fail to change the outcome of the 2016 presidential race. In making this assertion, it’s appropriate to acknowledge that many observers of the 2016 elections placed far too much faith in historical precedent and various forms of statistical analysis when predicting how the election itself would turn out. And it’s important not to do the same here. Still, given the wide margins in these three states (and the fact that a “recount” is, at core, simply a reconsideration and re-tallying of an already analyzed set of ballots), it really is hard to understand how the ultimate outcome of the presidential race possibly could be flipped.

This, finally, leads to the question of whether a separate effort—that is, the effort to convince sufficient electors, among those who were selected based on Trump’s statewide victories, to go rogue and vote for someone other than their candidate—has any chance of changing the result. Again, the magic number is 37; anything less than that, and Trump still has the 270 votes he needs. (And, to be clear, the 37 electors need to come from states that went for Trump; it doesn’t change anything if, for example, a Washington State elector carries through with his loudly proclaimed promise not to vote for Hillary Clinton.) Among the 306 Republican-affiliated electors who have signed up to vote for the Republican candidate, is it possible that over 10 percent of them will refuse, in the face of clear election results, to cast a vote in favor of their state's preferred candidate?

Such a development is not literally impossible, and it is true that at least one such elector (from Texas) already is refusing to vote for Trump. But this outcome again seems exceedingly unlikely. Remember that these electors are not random voters or dispassionate observers; quite to the contrary, these are people selected through Republican party apparatuses to be entrusted to vote on December 19 for the candidate selected by the party. Moreover, refusing to vote for Trump would not be the same as deciding, in a vacuum, which candidate happens to be the elector's preferred choice. Rather, it would require each of these political operatives to disregard the will of their own states’ voters, who just a few weeks ago voted not for Hillary Clinton, and not for some third party candidate, but for Donald Trump. To this end, it is telling that the Trump-averse elector from Texas will not be voting for another candidate on December 19; rather, he has resigned his position as elector, thereby allowing someone who is willing to vote for Donald Trump to replace him.

And here’s the kicker to all this: even if dozens of Republican-affiliated electors were indeed to refuse to vote for Trump, thereby reducing his total to under 270 electoral votes, even that likely would not stop him from taking office. Rather, the 12th Amendment requires that, in the absence of any candidate receiving 270 votes, the decision then go to the House of Representatives. Which will be Republican controlled. And which therefore, in all likelihood, would then vote for (you guessed it): Donald Trump.

What's more, as Ned Foley has pointed out, a bizarre and convoluted statute—the Electoral Count Act of 1887—very well may empower Congress to reject rogue electors’ votes even without the 12th Amendment backstop. Without getting too much into the (deep, disorienting) weeds, the Electoral Count Act seems to empower Congress to choose between competing claims over electors. In the face of Trump challenging votes cast by faithless electors, and with Republicans set to control both the Senate and the House, it seems highly likely that Congress would avail itself of this option.

Assuming (notwithstanding all indications to the contrary) that Congress would not take such a step, it is true that there does exist a route for avoiding a Trump presidency. In this scenario, at least 38 Republican-affiliated electors (note that an additional elector, in this scenario, would be necessary) would need to cast their votes for Hillary Clinton, rather than for Donald Trump, or for some other candidate, or for no one. At that point—again, assuming Congress simply were to accept such an unprecedented and controversial result rather than to resist it via the Electoral Count Act—that would bring Clinton’s electoral vote total to 270, and she would be entitled to the Presidency. A similar outcome would adhere if at least 270 (!) electors collectively broke ranks and voted for what faithless-elector advocates are referring to as a "compromise candidate." It is an understatement to say that neither of these developments seems practically or politically realistic, particularly when their success would require the tacit acquiescence of a Republican-controlled Congress.

I have one final point concerning the idea that sufficient electors might break ranks to change the outcome. In the exceedingly unlikely case that the scenario somehow were to come to pass, it is hard for me to imagine what the reaction might be from the approximately 62 million people who voted for Trump—that is, from the approximately 62 million people who voted for the candidate who seemed to have won the election but, as a result of faithlessness on the part of a handful of political insiders, suddenly lost the presidency. For those who suggest that this development could garner legitimacy—for reasons that purportedly are candidate-neutral—I would invite them to consider what their own reactions might be if the shoe were on the other foot. If an Election Night victory for Hillary Clinton, when set against the faithlessness of a relatively small number of electors, turned into a Donald Trump presidency, would they accept such a result? Do they really predict that Trump voters would?

All of this is not to say that these post-election efforts have no value. To the contrary, they constitute a protest of sorts by those who are deeply concerned about the results of the 2016 presidential election. Still, for various practical, political, and legal reasons, these efforts remain exceedingly unlikely to change which candidate, come late January, will be facing the Chief Justice with one hand in the air.

What the what? Ben Carson to head HUD!

(And the real story of segregation, Detroit, AFFH, and busing)

Far be it for me to try to make rhyme or reason of Trump's cabinet picks(!), but while I wondered and worried last week about who he'd tag for HUD, Ben Carson's name didn't even come to mind. I hoped for someone like Pamela Patenaude or even former Senator Scott Brown, who instead now seems headed to be secretary of Veterans Affairs. And I worried that Trump would, instead, name someone like Robert Astorino, Westchester County Executive who has been long been fighting HUD on fair housing issues in suburban NY. Instead, we have Dr. Ben Carson, whose only experience with fair/affordable housing issues seems to be that he grew up in center-city Detroit. Carson is not a housing expert, but he has made a few discouraging (and fairly incomprehensible) statements on housing policy, for example in his 2015 op-ed in the Washington Times.

In his Washington Times op-ed, Carson calls HUD's AFFH rule "another failed socialist experiment" and draws parallels with mandated busing to de-segregate schools.  In his op-ed, Carson says that busing was a failure because (1) it did not improve school integration (the percentage of blacks attending majority black schools stayed essentially the same), and (2) was "unpopular among both blacks and whites."  Carson then states that mandated busing led to white flight because anyone with the means to do so moved to the suburbs "to escape mandated busing" which "contributed to a blighted inner cities in which poverty and school segregation became even more concentrated."  

What the what?

First of all, I'm pretty sure that Carson means "social experiment" not "socialist experiment" (and yes, Mr. Brain Surgeon, there is a big difference).  

As far as Carson's bizarre description of school busing and white flight, let's do a brief history lesson about segregation and busing in Carson's home town, Detroit.

Housing Segregation - and why we have it: Detroit is, and has long been, one of the most racially segregated cities in America (if not THE most segregated). As in other cities, segregation in Detroit was not just a naturally occurring social phenomenon. Rather, it is product of decades of deliberate governmental policies:  

• The Federal Housing Administration actually created maps that disallowed lending in minority neighborhoods and then created a handbook to help neighborhoods keep their communities white (ahem..."financeable") by creating racial restrictive covenants.
• At the same time as the federal government was teaching real estate professionals how to best discriminate, it was subsidizing white home-buying in white communities into the suburbs.
• And local governments got into the discrimination game with use-based zoning laws designed to keep poorer populations "in their place" away from the more affluent, white communities.

White flight: Carson's decried "white flight" actually really started when the FHA (remember - the agency that would only lend to whites) established all sorts of policies and procedures to promote homeownership as "The American Dream," and then eased the burden of buying a home in the new, white suburbs. This is what started the trend of massive flight of whites from inner cities. So, yes, white flight was, in fact, caused by a social engineering funded and directed by the federal government, but the social experiment that caused this was the FHA policies of the 1930s-60s, not busing in the 1970s (to which Carson refers). (And since the federal gov't broke it, it has to buy it!)

During Carson's youth in Detroit (and in the decade before he was born), the demographics of the city profoundly shifted as whites fled to, but blacks were kept out of, new suburbs.  This all started with post-war industrialization, when black workers migrated into the city, much to the alarm of its white residents. White residents moved into white-only suburbs when blacks moved into the city, this move aided by federal funds with segregation provided by the FHA and local zoning boards.  Although it is true that banks, landlords, realtors, and wealthy homeowners had joined in a strong unholy alliance to keep minority households concentrated in high-poverty areas, it was the federal government who legally and financially established and enabled these efforts and for decades turned a blind eye to the horrific inequalities that resulted. 

Race Riots and Fair Housing:  When Carson was 16 years old, (1967), the Michigan Civil Rights Commission (the “CRC”) determined that 90% of the state’s nonwhite population lived in residentially segregated areas, having been “forced to live apart in urban ghettos.” (Note - This was BEFORE the busing that Carson mentioned in his op-ed.)  This was not a separate-but-equal situation: minority neighborhoods had vastly inferior and higher-rent housing.  The huge disparity in opportunity and quality of life that this intense segregation and inequity caused is what exploded in the deadly 1967 Detroit race riots (which, surely, Carson remembers since he was there and a teenager at the time). Michigan's fair housing legislation, enacted in 1968 just before the federal Fair Housing Act, was pushed through under the leadership of Governor George Romney (Republican) and attempted to address the huge social consequences of government (and private) housing discrimination. 

Fractionalization of Detroit and Busing Schemes: Detroit is cut up into small political subdivisions - the city proper and numerous small white suburban enclaves. This reflected the white-flight development patterns of the 1940s, 50s, and 60s, and was enabled by the home-rule political approach to municipal authority in Michigan.  Once the Fair Housing Act and Brown v. Board of Education became the law of the land, the Detroit region was legally required to affirmatively further fair housing AND integrate schools "with all deliberate speed." But if each small suburban enclave was its own school district, there would be no diversity in the schools at all. Furthermore, the predominantly minority areas would have far less resources (property tax revenues) to spend on schools (as well as more municipal fiscal demands). So the Detroit Board of Education passed an integration and decentralization plan that redrew school district boundaries in order to increase school population diversity, but a group of white citizens lobbied to recall the board members and got the Michigan State Legislature to pass legislation voiding the redistricting plan. This legislation also localized school districts and further fractionalized the metro area. 

The NAACP tried to fight back by filing a lawsuit claiming that the legislation was unconstitutional because it perpetuated historic segregation. The district judge agreed and struck it down. On appeal, the 6th circuit affirmed that holding and further held that since there was no longer a proposal on the table to redistrict in a way that increased diversity, Detroit metro area would have to engage in busing as the only possible way to fulfill Brown v. Board's mandate of school desegregation. (So the busing plan was NOT put into effect by HUD, Dr. Carson. Rather, it was the only option left to de-segregate schools after the housing de-segregation efforts flopped and local governments used home-rule to defeat school redistricting plans).  Not only was this busing plan unpopular (as Carson states), it was eventually rejected as not constitutionally required by the US Supreme Court in Milliken v. Bradley (1974).  It was the Supreme Court’s decision in Milliken v. Bradley that accelerated white flight, expanded the inner-city racial ghetto, and spelled the end of school desegregation in Detroit. 

FYI: Here's what I've said about busing and housing segregation (in an an upcoming law review article) "Admittedly, mandatory busing schemes are emotionally charged and politically difficult. So perhaps the problem could be better addressed directly, in terms of affirmatively desegregating housing. Instead of attempting to have a regional school desegregation occur through busing, integration of residential housing would achieve desegregated schools in a more natural way. Much like the issue of school segregation, the segregation problem in housing must be considered and addressed at the regional level, not individual by each small political subdivision. Localism in housing control must give way to fairness, sustainability, and fair housing (and fair schooling) constitutional mandates."

And now -- Back to Carson's Housing Op-Ed:

After his false statements and intimations re: busing and white flight, Carson criticizes the Affirmatively Furthering Fair Housing Rule of HUD as relying on a "tortured reading of the Fair Housing laws to empower HUD to “affirmatively promote” fair housing, even in the absence of explicit discrimination."  In fact, no tortured reading is required at all - the affirmatively further mandate has been there since 1968, in the original Fair Housing Act. 

The Fair Housing Act: The Fair Housing Act (and most state fair housing legislation) actually has two mandates. First, it outlaws overt discrimination based on a protected class (race, but also several other impermissible grounds). Second, it requires that local communities who receive HUD funding "affirmatively further fair housing." This second mandate was acknowledged and promoted by George Romney back when he became the Republican secretary of HUD (although he had to fight Pres. Nixon to do so).  Even now, affirmatively furthering fair housing remains not only the letter of the law but somewhat of a bipartisan issue in an era of party politics extraordinare. When some republicans (Sen. Mike Lee from Utah) tried to defund HUD after the most recent rule implementing the 1968 affirmatively furthering mandate, 13 Republicans crossed the aisle to vote down that measure.  

Carson, in his op-ed, characterizes the AFFH approach as a brand new approach, but of course that isn't true. This is a return to the actual mandate of the 1968 Act - a revival that took 50 years of struggle to achieve, sadly, because Washington hasn't shown too much concern with the intractability of racially segregated housing in our society - even though it is incredibly harmful. 

Housing segregation harms include, but are not limited to:

1. de facto school segregation & disparate educational opportunities & outcomes for children of different races
2. gap in achievement in school & graduation (high school) and college attendance
3. gap in labor force participation rates & earnings
4. high single parenthood in minority communities
5. racial wealth gap and homeownership gap
6. increased rates of infant and adult mortality in minority communities
7. lower civi participation in minority communities
8. increased incidence of predatory lending (and destabilized capital, housing, and financial markets )
9. neighborhood decline, failing urban cores, and distressed neighborhoods w/vacant homes and high crime
10. racial tensions and violence

etc. etc. etc. 

Detroit is the poster child for the public harm that housing segregation causes.  The city spun into an accelerating cycle of decline.  Loss of its wealthiest residents and their contributions to the city in which they worked (the city's per capita income fell 20% in the first decade of the 21st century and its population has fell by 25% during that time) ultimately led Detroit to declare bankruptcy in 2013 - the largest municipality to ever do so.   

Ben Carson to head HUD

Trump offered Carson the HUD position on Wednesday, and although Carson said that he wanted to ponder the offer over the long weekend, in a Facebook post today (and as reported on FoxNews and confirmed in online media late Thursday evening), it appears that Carson is set to accept the appointment. In his Facebook post (and can I just pause here to note how bizarre it is that we are quoting public figures' policy beliefs based on their social media postings nowadays), Carson states that "I feel that I can make a significant contribution particularly to making our inner cities great for everyone. We have much work to do in strengthening every aspect of our nation and ensuring that both our physical infrastructure and our spiritual infrastructure is solid."

Already many in the media have decried the selection of Carson for HUD.  (See this thoroughly articulated New York Times story, this snarky NY Magazine piece, this interesting piece from The Atlantic, and this Slate article suggesting that Carson will "lobotomize" HUD.)

It is hard to know what impact Carson's leadership will have on HUD. As I mentioned, he has zero experience in housing, and his sparse commentary on HUD and housing issues disclose a profound lack of understanding of history and the Fair Housing Act. Based on the cryptic statements in his Facebook post and his negative statements re: placement of affordable housing units in single-family suburbs, it may be that HUD under Carson will focus on repairing and improving inner cities (gentrification with an eye to desegregation, perhaps? We can hope), rather than efforts to integrate poorer minority housing aid recipients into white affluent suburbs. 

I nope that Ben Carson will not turn out to be a horrible choice for HUD. After all, he does have a personal background that should allow him to sympathize with and perhaps understand the challenges faced by declining urban cores - and it is hugely important to address inner cities in terms of infrastructure/community decline, rental affordability, and persistent segregation.  Maybe his anti-affirmatively furthering fair housing statements in that one op-ed merely are the result of his lack of knowledge of the issue and the Fair Housing Act. 

The New York Times article on Carson's appointment helpfully explains (to Carson, perhaps?) that the AFFH Rule actually is not some ill thought-out governmental meddling in local affairs. It states: 

"In practice, the rule provides those communities with detailed data on factors like racial demographics, poverty rates, school quality and housing voucher use to help them determine whether lower-income and minority families are isolated from good schools or segregated from opportunity. The rule requires communities to use that information to draft plans to reduce segregation where it exists. Those that habitually defy the requirements risk lose funding from the agency."

 

Our country is in the grips of a housing affordability crisis.  Fifty-year-old fair housing legislation has done little to de-segregate housing in the nation, and racial tensions continue to intensify.  At the same time, pockets of the nation (many city centers) are in steep decline. Even though under many Republican presidents, the HUD secretary was a throwaway appointment, Housing and Urban Development is actually a critically important Department in the government. I hope that Dr. Ben Carson is up to the job, I hope he studies and learns about both aspects of fair housing law as well as affordability and revitalization issues with an open mind. And I hope that in the next 4 years we can take a step forward when it comes to housing equity in this country, rather than take two steps back.

Housing Bubble (Toil & Trouble)

The 2008 Foreclosure Crisis seems like only yesterday.  Surely we must still remember the lessons learned from the crash and will not again allow real estate prices to inflate above a sustainable level... right?  But here's a little chart that sort of scares me - note that we're at the top of the second peak in this roller coaster ride called the housing market:

Yesterday the FHFA announced an increase to the loan limit for prime loans, with the new maximum home mortgage loan for one-unit properties set at $424,100 for 2017 (more in higher-priced markets). This is the first maximum loan dollar increase since 2006. Unless you follow real estate or are in the market for a large mortgage loan, you may not have recognized the significance of this increase. The Housing and Economic Recovery Act of 2008 prohibited any increase in the loan limit above $417,000 unless and until the average U.S. home price returned to its pre-decline level.  That hasn't happened until this year.  The FHFA just announced that "that average home prices are now above their level in the third quarter of 2007."  I guess we're back, baby.

In a way, it isn't that surprising that housing prices have been growing back toward their record peak levels, particularly in some parts of the country.  The government has done its utmost to help us "recover" from the market meltdown.  For one thing, the Federal Reserve has aggressively pushed down interest rates for the past several decades - and they keep setting a new record for "how low can you go?"   Such extremely low interest rates means very low cost of capital, and cheap capital makes it smart to borrow and stupid to save.  Is it any wonder that rational consumers borrow and borrow and borrow, and hardly ever save? (this chart shows interest rates over time - better version of it is here).

Now, some types of borrowing are more available than other types. There were times when anyone with a pulse could get a credit card, and for several years in the run-up to 2008, anyone who owned or wished to own a home could obtain a mortgage loan for nearly the entire sticker price or appraised value of the home. A little not-so-long-ago-history primer: easy mortgage credit fueled a buying and re-fi frenzy for homes that drove up prices, all premised on the idea that real estate values always go up. It couldn't last. It didn't last. 

While it has been popular during the past 8 years to blame lack of regulation for the Housing Crisis, I concluded back in 2010 that the low interest rates played a very key role (along with imaginary underwriting) in the out-of-control mortgage lending. Other analysts have agreed (see also here and here). The Economist is similarly skeptical that high housing prices indicate a booming economy, pointing out that "despite efforts to fix the plumbing of the American mortgage market, housing in the United States remains a dangerous menace to the world economy" and explaining that soaring property prices in America are "underpinned by low interest rates."

The "bubble" that we now find ourselves in is different. For one thing, mortgage credit has become more difficult to obtain, due in part to the (somewhat) more attentive FHFA underwriting approaches, the (slightly) more stringent requirements for loans to qualify as prime, and the (marginally helpful) disclosure obligations mandated by the CFPB.  But if you can get a home loan, it's cost is still very low because of low interest rates. Cheap capital enables rising prices.  Another thing that is arguably different this time around is that the supply of homes has not increased as quickly as previously, and in some parts of the country, shortage of supply may be helping to prop up property sale prices (see CNBC story here). 

The Trump win, analysts believe, will lead to multiple increases in these record-low interest rates, policy makers have indicated that this could happen in December 2016, and bank stocks have brightened at this news (after initially falling, Wall Street rallied after Trump's unexpected victory - see story here). Of course, the Fed had previously promised to raise interest rates this year, but that has not really happened (see NY Times story here).  If interest rates really do increase (and I tend to think they finally will, see Wall St. J article here), will this cause housing prices to drop in 2017? Would that necessarily be a bad thing?

For more stories re: Housing bubble 2.0, the 2016-17 edition, see here, here, here, here and here.  Some of these are major news outlets, others more fringe-y, but they raise issues that those of us who watch the housing market with baited breath should not ignore.

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.

The Divided States of America

The election map from last night and the depth of devastation and fear expressed by many people today shows clearly the disparity in opinion that exists in this country with respect to some key and emotionally charged issues.  This presidential election provided empirical evidence of how divided we remain as a nation.  We are divided urban and rural, rich and poor, black and white, native-born and immigrant, and even male and female.  Both Trump and Clinton have given speeches in the last 12 hours that recognize this deep divide and both have asked their followers to assist in bridging it.  In Trump's speech, he stated, "Now it’s time for America to bind the wounds of division; have to get together. To all Republicans and Democrats and independents across this nation, I say it is time for us to come together as one united people."  These are noble sentiments, and I hope that he is truly committed to "binding the wounds of division."  In Clinton's speech, she similarly told her distraught supporters, "We have seen that our nation is more deeply divided than we thought. But I still believe in America, and I always will. And if you do, then we must accept this result and then look to the future. Donald Trump is going to be our president. We owe him an open mind and the chance to lead."  Of course, Clinton did not say that accepting the election result and giving Trump a chance to lead means falling in line with particular policies. She urged people to "never stop believing that fighting for what's right is worth it."

It is high time that we as a nation take a long, hard look at our deep wounds of division and chart a path to healing them. The first step is honestly recognizing the fact we are very, very divided. For every person who thinks "X" on a particular issue, there is another who thinks "not X."  Fortunately, we are blessed with an inspired and inspiring Constitution that can preserve liberty and civil rights and establishes a framework for a balanced and checked government. It is abundantly clear why these checks and balances are so important, and it is imperative that we, as professors, lawyers, and citizens, work our hardest to preserve these systemic protections.  But we must do even more than that.  Lawyers are fundamentally society's problem solvers.  And we have a problem of disunity.  We each need to figure out a way that we can help the people of the United States live and work and function together as a nation in a mutually respectful way. Perhaps that means a return of more decision-making authority to individual states, as was initially intended by our Founding Fathers. Perhaps that means shoring up the division of powers among the branches of the federal government. It also means working to dismantle structures that create and perpetuate societal divisions in the many contexts in which these occur.  Because I write on Fair Housing,  making real strides to integrate neighborhoods is something that immediately leaps to my mind, but there are similar inequities and divisions in all areas of the law and our society.  Like Clinton, I believe that "we are stronger together." And like Trump, I too want "a better, brighter future" for myself, my family, and my country.  Therefore, we have to unite these Divided States.

It is time to do some soul searching and consider how we really can come together and make America not only "great" but unified, effective, respectful, and worthy of respect.  Let's take a deep breath, roll up our collective sleeves, and get to work.

Mickey Mouse for President? The Law of Write-In Voting

Many voters this year have expressed dissatisfaction with both major party candidates. My own politically precocious 12-year-old has grilled me about the viability of several third-party candidates (to which questions I replied with Socratic questions of my own until he gave up and did his own research that, incidentally, led to an article in his school paper giving a thumbnail sketch on Clinton, Trump, Johnson, Stein, and McMullin).  But even he did not profile the ubiquitous write-in protest vote (for a voter's favorite defeated primary candidate or a voter's mother or, as in one case, a voter's deceased dog).  Apparently, a few poll workers in Kansas were instructed to tell voters that "write-in votes don't count," but the actual rule varies by state.  It is worth considering the applicable rule before you write in anyone, however, because it very well may be that writing in a random name is, literally, throwing away your vote (meaning, it is actually thrown out).  There is a lot of misinformation about this out there, so I did a little bit of research this morning and here's what I came up with (this from a non-election law expert, so please be gentle).

States can (and many do) prohibit or limit a voter's ability to write in a candidate on the ballot. Kansas, for example, is one of the states that seems to limit one's ability to vote, restricting your choices to (a) the enumerated candidates or (b) those write-in candidates that have filed with the KS secretary of state an "affidavit of write-in candidacy for the offices of president and vice-president" before "12:00 noon on the 2nd Monday preceding the general election for those offices." For this election, that means that in order for a vote for a particular write-in candidate to be considered (and count) in Kansas, that write-in candidate must have filed this affidavit before October 24th. Kan. Stat. Ann. § 25-305 (West). This statute has been tested and upheld by the 10th circuit on the basis of a state's interest in voter education (Hagelin for President Comm. of Kansas v. Graves, 25 F.3d 956, 960 (10th Cir. 1994)). 

Limits on a voter's ability to write-in a candidate may seem unconstitutional to you (and to me), but it has been upheld by the Supreme Court (Burdick v. Takushi, 504 U.S. 428, 441 (1992)). The Supreme Court case upheld Hawai'i's ban on write-ins. Oklahoma's complete ban on write-in votes for presidential and vice-presidential elections was deemed constitutional in Coalition for Free and Open Elections, Prohibition Party v. McElderry, 48 F.3d 493 (10th Cir. 1995). The Supreme Court denied certiorari in that case. Other states have now and in the past completely banned write-ins as well, but the more common approach seems to be to require registration or to state that ballots that are not printed legibly won't be counted (well, duh!).

In Kansas, voters are not completely barred from writing in candidates in a presidential election, but only votes for registered candidates will count. (FYI, Kansans are also barred from writing in to indicate affiliation with a non-enumerated party in their voter registration. This rule was upheld by a federal court in 2011 and affirmed by the 10th circuit. Constitution Party of Kansas v. Biggs, 813 F. Supp. 2d 1274, 1276 (D. Kan. 2011), aff'd sub nom. Constitution Party of Kansas v. Kobach, 695 F.3d 1140 (10th Cir. 2012)).  

People are often confused about write-in rules, particularly since states apparently change them periodically and since they vary widely among jurisdictions. It doesn't help when poll workers are told that "write-ins are illegal," which of course they are not (what, are you going to be fined because you write a candidate in? I can't believe that ever would be the case!).   

All this raises a good question that a friend of mine articulated - Why on earth would anyone write in an unregistered candidate at all? Someone who hasn't announced he or she is running for President and who likely will get all of ONE vote (yours)? Well, in cases that have considered the question of legality of write-in bans from the point of view of the voter, rather than the candidate, the right to write-in is equated, once again, to a type of free speech.  The idea is, of course, that a vote for "Mickey Mouse" is a protest vote, a "none-of-the-above" vote, and that casting this sort of vote should have some sort of speech-related impact, something beyond staying home on Election Day.  This sort of speech could only have any actual effect if write-in protest votes were to be aggregated, tabulated, and announced.  If 10% of voters wrote in some random protest name at the polls, say, perhaps that fact in itself could be newsworthy and suggest a high level of dissatisfaction with the process and candidates.  If you have a write-in ban or limitation to registered (or real, live) people, however, then you lose the ability to be part of this sort of collaborative, grassroots protest voting speech.

Thus, even though I really, really want to write in Lin Manuel Miranda for President (because how awesome would that be!?), I guess I will have to restrain myself tomorrow. 

Happy Voting, everyone!

 

10th Circuit: Kansas' Documentary Proof of Citizenship Voter Registration Requirement Will Not Be Enforced

In Kansas, voters cannot simply wake up on election day and decide to vote.  There is no spur-of-the moment voting (and no mail-in ballots other than absentees).  Voting in Kansas requires forethought and planning through advance registration, and it takes showing up at the polls with a valid ID and having one's photo and signature confirmed to be a match to those on the registration -- but at least, thanks to the 10th Circuit's opinion on October 21st, it will not take documentary evidence of U.S. citizenship.

The terms of Kansas'  Secure and Fair Elections (SAFE) Act requires that "an applicant shall not be registered [to vote] until the applicant has provided satisfactory evidence of United States citizenship" according to enumerated documentation, such as a U.S. passport or a birth certificate.  Earlier this year, the League of Women Voters of Kansas, with the help of the ACLU, challenged this law as running afoul of the the National Voter Registration Act.  The District of Kansas granted a preliminary injunction against enforcement of the policy back in May, and this allowed 18,000 Kansans to vote in the state's presidential primary on August 2nd.  On appeal, the 10th Circuit, through Judge Jerome Holmes, held that the Kansas proof of citizenship voter registration law violated  the NVRA.  The NVRA protects American voters' right to vote with only supplying the "minimum amount of information necessary."  The 10th Circuit found that the minimum amount necessary does not include proof of citizenship. The court's opinion, issued on October 21, 2016, addressed the preliminary injunction only, not the merits of the case (although, of course, likelihood of success on the merits is a component of preliminary injunction oversight). (AP story on the case is here).

The court held that the Kansas government had been unable to show any significant problems with non-citizens attempting to vote, and that "it cannot be that, while intending to create a simplified form of registration for federal elections, Congress adopted such a malleable statutory principle (i.e., minimum information) that the states could effectively become the final arbiters of what is required under the NVRA by the simple expedient of claiming that one noncitizen managed to register to vote."

The 10th Circuit found adequate threat of irreparable harm (if the SAFE Act was enforced) because "over 18,000 Kansans stood to lose the right to vote in the coming general elections—elections that are less than one month away."  Of course, these 18,000 Kansas were those who had already registered to vote using the "federal form" rather than following the statutorily required proof of citizenship method.  Who knows how many people were dissuaded by the SAFE Act requirements from even attempting to register. The October 21st ruling came too late for anyone not already registered to vote: The Kansas voter registration deadline for the November 8th election was on October 18th.

The state voter information site now contains a statement (at the very bottom) explaining that "due to recent court rulings, if you have applied to register to vote at a Kansas Division of Motor Vehicles office or if you have applied to register to vote using the “Federal Form” voter registration application (as opposed to the standard ‘state form’) and have not yet provided proof of citizenship, you are registered to vote for the November 8, 2016, general election. Your name will appear on the poll book for your voting location and you will be given a standard ballot."  The online voter registration site, however, contains no reference to the 10th Circuit opinion (but, of course, it is too late for anyone not registered to become able to vote in Kansas anyway). 

(Toto, I think we're not in Washington state anymore!)

For more on this case and voting in Kansas, see here (local news story about the ruling), here (news story about one man's struggle to vote), and here (criticizing the 10th Circuit for "flipping state powers on its head and bastardizing a statute").    

How I Voted in Washington State

Every election, we hear stories about the crazy complications facing both voters and election administrators. Long lines. Voter intimidation. Poll-worker confusion. Ballot selfies. Here’s a story that’s much less exciting. It’s the story of how I voted in Washington State.

Around October 24, I received my ballot in the mail. It’s like an absentee ballot. But I didn’t receive this ballot because I had requested one; to the contrary, vote-by-mail is the default here in Washington. My own voting process began with a hunt for that most precious of spaces in my home (that is, a space prominent enough to be helpful, but sufficiently out-of-the-way for the kids not to have commandeered it), where I set the ballot aside until I had an evening free. Then, with a touch of dramatic flair, I spread my tools of democracy across the dining room table—my ballot, my voting guide, my laptop, and my chocolate—and I filled out the ballot as best I could, making notes on where I needed more information. (People voting in similarly initiative-happy states will understand.) Over the next few days, I took the time I needed to gather the missing information—including through civic-minded discussion with family and friends—and eventually completed the ballot. I signed it, sealed it, and by the end of last week, found a stamp for it and put it in the mail. That was the end of the matter until yesterday, when I decided to confirm that everything was fine. To that end, I Googled “confirm vote received washington state.” This slapdash search brought me to a website where I was able to type in my basic information and immediately receive an update on my ballot. Here’s the message I received:

• We have received your ballot, your signature has been verified, and your ballot will be counted.

• Thank you for voting.

You’re welcome! All done, so pleasant and straightforward, a week before the election. I encountered no lines, no intimidation, no poll-worker confusion, and no selfies. (Notwithstanding the fact that our Secretary of State has assured us that, in Washington, ballot selfies are “not directly prohibited.”)

Are there potential problems with voting in this way? Of course; no system is perfect. Whenever a jurisdiction creates the possibility that its voters won’t vote in private (i.e., whenever voting isn’t necessarily done in secret), there’s an increased chance of both vote buying and vote coercion. (To understand why, imagine what you’d need in order to effectively buy or coerce a vote. At the top of the list: some way of verifying that your co-conspirators/victims actually voted the way you wanted them to.) Moreover, while voter fraud is exceedingly rare in this country, the voter fraud that does exist is more likely to occur via absentee ballot than by in-person voting. So all else being equal, mail-in states would seem to have an increased susceptibility to fraudulent voting. An additional problem with mail-in ballots relates to voters (for example, people who are homeless) who have difficulty voting by mail—though this is less of a structural concern, given that there are ways for a mail-in jurisdiction to accommodate such individuals. The more intractable issues relate to the potential for voter fraud, vote coercion, and vote buying.

Yet Washington State does not suffer from widespread problems relating to fraud, coercion, or vote buying. (Before anyone posts a link purporting to contradict this assertion, please confirm that the link in question directs to a reliable source actually supporting a different conclusion; there’s a lot of misdirection out there.) And what Washington definitely does not suffer from is all the problems associated with trying to get millions of people to go to the same limited number of locations to do the same thing at more-or-less the same time—i.e., all the problems associated with in-person voting. From my perspective, mail-in ballots are great for voters. Unless or until I learn that the problems theoretically associated with this form of voting (including the aforementioned buying, coercing, and defrauding) actually materialize, I will continue to support the practice, and be grateful that my state has adopted it.

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 1^st 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 6^th 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 8^th, 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 6^th 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 6^th 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:

 

 

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 2^nd.  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 1^st 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.