PrawfsBlawg

WARNING: THIS AREA IS BEING PATROLLED BY THE NATIONAL BALLOT SECURITY TASK FORCE

Just two days ago, this election cycle gave birth to (yet another) lawsuit. It’s an important one. And like so much in election law, it requires a dive into history.

In 1981, Republican organizations enlisted the help of supporters, including off-duty police officers, to patrol urban areas in New Jersey. The purpose of these efforts, according to critics, was to intimidate prospective voters. Members of the so-called “National Ballot Security Task Force” wore official-looking armbands, posted large “WARNING” signs directed at voters (which included the language I’ve used as the subject header for this post), and in some cases openly displayed firearms. Their activities prompted a lawsuit. To settle the claims, the Republican National Committee (RNC) entered into a consent decree (still in effect) whereby it agreed to, among other things, refrain from “undertaking any ballot security activities . . . where the racial or ethnic composition of such districts is a factor in the decision to conduct . . . such activities . . . and where a purpose or significant effect of such activities is to deter qualified voters from voting.”

After the 1986 elections in Louisiana, Republicans facilitated another voter-challenge program. As revealed in discovery, one Republican director predicted that the effort would “eliminate at least 60,000–80,000 folks from the rolls” and “[i]f it’s a close race . . . this could keep the black vote down considerably.” This led to a modification of the consent decree, which included the addition of a preclearance provision. More specifically, the decree was altered to prohibit the RNC from engaging in any “ballot security activities” unless it first received permission from a court. “Ballot security activities” were defined to include “any program aimed at combating voter fraud by preventing potential voters from . . . casting a ballot.”

In 1990, the court found that the RNC had violated the consent decree (based on a failure adequately to educate state parties, in matters related to alleged attempts to intimidate voters in North Carolina). In 2009, the court again modified the consent decree. Among the 2009 changes was an expiration date: absent any further violation, the decree would terminate on December 1, 2017. All of which brings us to today.

Donald Trump has been imploring his supporters to patrol urban areas. (“Watch Philadelphia. Watch St. Louis. Watch Chicago, watch Chicago. Watch so many other places.”) He’s been asking them to engage in this work in order to (to use the phrasing of the consent decree) “combat[] voter fraud by preventing potential voters from . . . casting a ballot.” (“So important that you watch other communities, because we don't want this election stolen from us.”) To take one (hopefully extreme) anecdote from the Boston Globe, one Trump supporter has described his reaction as follows:

“Trump said to watch your precincts. I’m going to go, for sure . . . . I’ll look for . . . well, it’s called racial profiling. Mexicans. Syrians. People who can’t speak American . . . .  I’m going to go right up behind them. I’ll do everything legally. I want to see if they are accountable. I’m not going to do anything illegal. I’m going to make them a little bit nervous.”

In response, the RNC is back in court, with the Democratic National Committee (DNC) accusing it of violating the consent decree. As a result of this alleged violation, the DNC argues, the RNC should be held in contempt; the court should issue relief to ensure enforcement of the decree; and it should extend the decree for another eight years.

I have a few reactions. First, the DNC appears to have a strong claim here. Of course, one expects such a reaction after having only read the briefing from one party. (I have not yet located a responsive filing by the RNC.) The biggest obstacle for the DNC may be convincing the court that the activities of individuals (such as Donald Trump and his supporters) can be attributed to the RNC. Yet the DNC’s filing already chronicles evidence in support of such an argument, and in the 1990 litigation discussed above, a District Court concluded that the RNC had violated the decree not through its own voter-directed activities, but rather by failing to provide adequate guidance to local parties about the prohibitions. (This 1990 precedent may help to explain why the RNC emailed its members last week insisting that “[a]dherence to the Consent Decree is of the utmost importance” and that anyone engaging in “‘ballot security’ activities” would be doing so “not [as] an agent of the RNC.”) This all leads to the second observation, which is that one legal response by the RNC might be to argue that Donald Trump is not sufficiently representative of the RNC to constitute its “agent” for purposes of the decree. That legal strategy may or may not have potential (it depends on, among other things, how the RNC articulates this argument and how much proof the party can produce), but recent efforts to distance itself from its presidential candidate have had troubling political consequences for the party.

Finally, it is interesting that the consent decree includes a preclearance provision. So did Section 5 of the Voting Rights Act, which the Supreme Court (effectively) invalidated in 2013. Preclearance is a profoundly effective mechanism to counteract abusive forms of election administration or activity. This is because while elections keep happening, whether or not litigation is unfolding (and by extension, whether or not that litigation eventually will confirm the existence of illegal or unconstitutional activity), preclearance keeps the status quo in place. It also is effective because it tends to be easier for plaintiffs to prove a failure to receive preclearance than to prove a violation of the relevant substantive standards.

It will be interesting to see how the District Court in New Jersey responds. Will it take the approach of, for example, a recent decision by the Court of Appeals for the Fourth Circuit, which seemed eager to interpret the controlling law in a manner that protects voters against problematic efforts to combat “voter fraud”? Or will it follow an approach more similar to the Supreme Court as of late (at least, prior to the passing of Justice Scalia), which seemingly has been reluctant to interpret the law in a manner that tends to favor such protections? In my view, the history surrounding the consent decree—and the history of voting rights more generally—suggests that the former tends to be the better approach. It is true that, in the words of Chief Justice Roberts, “history did not end in 1965.” But neither did activities that have the very real potential to suppress votes.

End of the Filibuster?

In a few weeks, Democrats might manage to secure both the presidency and control of the Senate. If they do, I predict that the Senate will change its rules to allow Supreme Court nominees to be confirmed without the possibility of a filibuster – much like the Senate moved to do in 2013, when it voted to end the ability to filibuster in response to all other judicial- and executive-branch nominees. My prediction assumes that the Democrats (if they win) would prefer to take this historically significant step rather than attempt to reach bipartisan compromise over the next Supreme Court confirmation. A few different factors combine to support this conclusion. These include the precedent the Senate set in 2013; the Republicans’ ongoing refusal to consider Judge Garland’s nomination; and recent statements, such as those made by Senators John McCain and Mike Lee, suggesting that Republicans will not vote to confirm any Supreme Court candidate nominated by Hillary Clinton. (Senator McCain did attempt to walk this statement back, but that doesn’t change my assessment of how Democrats are likely to respond.) In light of these developments, which both reflect and contribute to the highly partisan political climate we’re now experiencing, I would be very surprised if the Democrats were willing to allow Republicans even the option of continuing to block a replacement for Justice Scalia. And while it's possible that, in response to a major Democratic victory, the Republicans would change tack and quickly confirm Judge Garland, new openings on the Court very well may arise between now and January 2021.

If the Democrats were to take this step, they would have the ability to appoint a Supreme Court Justice knowing that they need no support whatsoever from the opposition party. I cannot think of a precedent for this. Even contested confirmation votes (such as Justice Thomas’s vote, in 1991, which had 11 Democrats voting in favor of confirmation, or Justice Sotomayor’s vote, in 2009, which had nine Republicans voting in favor of confirmation) have included some bipartisan backing. And in most of those cases, the opposition party also had the option of resorting to a party-line filibuster. There may be an exception to this unbroken tradition of bipartisan support for successful Supreme Court nominees, but I have yet to find it. Come January 2017, if the Democrats win big, I predict this tradition will end.

This leads to a host of questions. Among them, how would such a development affect what the President might be looking for in a candidate? Would the President be willing to consider, for example, a newly minted lawyer, straight out of law school, statistically likely to serve for the next half-century? (Surely, that’s a step too far – though Justice Story, as the youngest of those joining the Court, was confirmed as a fresh-faced 32-year-old.) More realistically, might the candidate have more of a paper trail than otherwise? Be more ideologically driven?

I also wonder how a razor-thin vote, on party lines and without the possibility of a filibuster, might affect the reception of a newly appointed Justice. Given the Court’s tradition of collegiality, the other members of the Court are likely to be just as welcoming and respectful to such an addition as to any other. But what effects might such an appointment (or set of appointments) have on the legitimacy of the Supreme Court as a whole?

A third set of filibuster-related questions looks beyond the Supreme Court to what might happen if the Democrats also were to take control of the House. (Such an electoral outcome appears unlikely but not impossible.) In that circumstance, would the Senate vote to eliminate the last source of power for the filibuster – namely, its ability to require a Senate supermajority to enact legislation? I think the Senate is somewhat less likely to take this step than it is to change the filibuster rules relating to Supreme Court confirmations, but given the current polling in the House races, it’s something I haven’t spent as much time considering.

By contrast, I have been thinking quite a bit about the various questions surrounding the filibuster and Supreme Court appointments. Because I do think there’s a decent chance we'll soon see a landmark change in how this process works. 

In Defense of Early Voting

Coming from a state like Washington, where almost all voting is done by absentee ballot (and everyone has the option of voting in person, if desired, starting in late October), I may be favorably predisposed toward early voting. But I confess that I don’t entirely understand the concerns over the practice—and given the critical function that early voting serves, I think it warrants a robust defense.

The objections to early voting often center on the possibility that events happening in a narrow window (post-vote, pre-Election Day) will cause early voters to regret their decisions. There are two reasons why I have trouble understanding these objections. First, November 8 is the date we have set for the end of voting because a date needs to be set—not because events freeze in time at that point.  Imagine terrible news emerging about a winning candidate on the day after Election Day. That news very well might cause voters to change their minds about the candidate they had selected and wish they had voted otherwise. But no one would suggest that we therefore re-open voting. Why is this concern over buyer’s remorse so much greater if the news emerges prior to Election Day?  To me, it’s the same problem, with just a slightly increased chance that it will affect any given voter.

That said, the calculus is, indeed, different if the nominee withdraws (through death or otherwise) prior to Election Day. In that case, early voters could effectively be disenfranchised in a way that does not have a precise post-Election Day analogue. But this gets to the second point. Most of the concerns over early voting seem to stem from a desire to protect early voters. But no one is required to vote early. It is simply an option given to those who are (in my mind) fortunate enough to have the option. While some have questioned whether voters are able to understand the risks when they make the decision to vote before Election Day, this strikes me as a debater’s point: while surely this sometimes is true (that is, surely it is true that people sometimes vote early without considering the possibility that they would want to change their minds before Election Day), it’s hard for me to imagine that an information deficit of this sort really has much an effect on how or when people vote.

There are other criticisms of early voting—for example, the idea that it may make it harder for down-ballot candidates to challenge incumbents—that are not focused on the rights of individual voters, but rather on how the design of the election tends to affect outcomes. There are still other criticisms focused on abstract notions about, for example, how a “single Election Day creates a focal point that gives solemnity and relevance to the state of popular opinion at a particular moment in time.” But for most critics of early voting, these more abstract arguments do not appear to be central to their concerns. (And if they are, then the debate needs to shift, given that it is by no means settled that the nature of democracy should be defined in a given way or that certain electoral outcomes are better or worse than others.) Rather, most of the discussion about early voting is, as noted, about protecting the voters.

And this, for me, is precisely why early voting needs to be defended. Early voting is what protects voters. It allows voters—particularly those without the privilege of adequate flexibility in their schedules—greater access to the ballot. It also helps those voting on Election Day by shortening the length of polling place lines and reducing the burden on officials administering the elections. It assists all voters by facilitating the earlier identification and correction of errors.  (These advantages, among others, are discussed in this report by the Brennan Center.)  There’s a reason why so many jurisdictions, voters, and election experts are strongly in favor of the practice.

As for me, I mentioned I’m from Washington State, where virtually no one walks into a polling place on Election Day. Most of us receive our absentee ballot early, fill it out, then drop it in the mail when we have the chance. Most of the votes I’ve cast in my life have been through this same system. That being the case, it really does strike me as strange, and quite problematic, to require voters—who may have any number of commitments and complications that happen to fall on Election Day—to physically appear at a certain time, at a certain place, in order to access the ballot. And despite ample precedent across the country for long polling place lines, I continue to be shocked, and appalled, that Election Day voters are at times required to wait in line for hours in order to exercise their right to vote. Early voting directly responds to these problems, and, in so doing, it does a great deal to protect voters. Even as extraordinary events unfold in an extraordinary election, we should not lose sight of this basic fact.

Newby and the Duty to Defend Indepedent Agencies and Commissions in Court

I am delighted to have the opportunity to participate in the Prawfsblawg election symposium! For my first contribution, I want to discuss an important issue implicated by a recent election-related case that extends far beyond election law.

In League of Women Voters of the United States v. Newby, the D.C. Circuit (in a 2-1 ruling) overturned the decision of the U.S. Election Assistance Commission's ("EAC") Executive Director, Brian Newby, to revise the state-specific instructions accompanying the federal voter registration form. The revisions would have required applicants from Georgia, Kansas, and Alabama to provide documentary proof of citizenship, such as a copy of a birth certificate, passport, or naturalization papers, to use the federal form to register to vote. Those states had requested changes to the instructions because their laws limit the right to vote to U.S. citizens and generally require people to provide such proof of citizenship to register.

I will discuss the merits of the D.C. Circuit's ruling--with which I disagree--in a separate post later this week. Here, I want to discuss a remarkable aspect of the case: the Obama Administration's Justice Department ("DOJ") completely refused to defend Newby's actions in court.  Although DOJ purported to represent both the Commission -- which is an independent, bipartisan agency -- and Newby in his official capacity and was filing briefs on behalf of both parties, it expressly disavowed the legality of Newby's actions and joined in the plaintiffs' request for a preliminary injunction to prevent the changes to the instructions he approved on the EAC's behalf from taking effect.

It's not as if the Commission itself subsequently took any action to disapprove or nullify Newby's actions. To the contrary, at least one of the three subsequently appointed Commissioners agreed with his decision to update the instructions. Nevertheless, despite the fact that nonfrivolous, colorable arguments could be made in defense of Newby's actions--indeed, some strong arguments may be made in support of them--DOJ completely refused to assert them in the briefs it filed for Newby and the Commission. It sought to nullify an official final action of an independent agency without any adversarial presentation of the issues, presentation of contrary authorities, or consideration of alternate remedies.

The district court allowed Kansas Secretary of State Kris Kobach and the Public Interest Legal Foundation to intervene to defend the revised instructions. But DOJ's actions nevertheless remain troubling. As an initial matter, there is something disturbing about allowing DOJ to file briefs on someone's behalf--even if they are party to a case solely in an "official capacity"--without that person's consent, especially when those briefs expressly advocate against that person's legal interests and affirmatively seek relief against that person.

Putting aside that issue (which arises largely as a function of which defendants a plaintiff chooses to name), DOJ's authority to refuse to defend against federal lawsuits is perhaps at its apex with regard to purely executive action by executive agencies under the current administration. If the President or his delegates determine that a member of the Executive Branch engaged in wrongdoing, the Government surely is not required to take that person's side and defend him or her. This power is likely just as broad with regard to executive actions that occurred in earlier administrations, though special care must be taken to ensure that Presidents and agency heads do not use essentially collusive litigation with ideologically aligned groups to nullify the actions of their predecessors when they would be unable to do so through the usual legislative or administrative process. See generally Michael T. Morley, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases, 16 U. Pa. J. Const. L. 637 (2014).

More complex problems arise when DOJ is required to defend the legal interests of entities outside the Executive Branch, which may conflict with those of the President. For example, Congress may enact laws that the President believes are unconstitutional, particularly on the grounds that they infringe upon purported Executive prerogatives. This summer, in Helman v. Department of Veterans Affairs, Attorney General Loretta Lynch notified the Speaker of the House and the U.S. Court of Appeals for the Federal Circuit that DOJ would not defend the constitutionality of provisions of the Veterans Access, Choice, and Accountability Act ("VACAA") that Congress had enacted two years earlier to limit appellate rights of senior career executives who are fired from the Department of Veterans Affairs. (Full disclosure: I represent a coalition of 12 military and veterans groups, including the VFW, AMVETS, Reserve Officers Association, and Marine Corps League that were permitted to intervene to defend the law's validity and advocate more narrowly tailored remedies for any constitutional concerns that may exist). In cases where DOJ refuses to defend a statute's validity out of concern for the President's Executive power, it is not really representing the interests of the Government as a whole, but rather the Executive Branch in particular, potentially at the expense of the independent legal interests and prerogatives of the Legislative Branch.  

Cases such as Newby present similar concerns.  A President may disagree with the desirability, legality, or even constitutionality of an independent agency's or commission's actions or determinations.  If the President can undermine or even nullify those actions by simply preventing DOJ from defending them in court, then the agency or commission is independent in name only.  To be truly independent, an entity must have independent litigating authority.  While DOJ has tremendous litigation experiences and resources for an independent agency or commission to call upon if it so chooses, it should not be compelled to be represented in court by attorneys acting under an institutional conflict of interest.  One solution is to allow the entity to either represent itself or retain outside counsel of its choice.  Another possibility is to be flexible in allowing outside intervention and applying Article III's rules concerning standing.  Finally, Congress could authorize the creation of a small entity, akin to either an Office of Independent Counsel or a public defender's office, to represent the interests of governmental agencies or officials outside the Executive Branch whose legal (or potentially even political) interests clash with those of the President.  In any event, if DOJ is going to undertake to represent the Government or an independent agency in a case, it reasonably should be expected to present the court with colorable, nonfrivolous arguments in favor of congressional or independent agency actions or enactments. 

How Does an 8-Member Court Decide Bush v. Gore?

Thanks to Howard for organizing this discussion about the upcoming election. I’m excited for the conversation.

As if this particular election cycle needed more complications, a massive obstacle faces courts and litigants (and, by extension, everyone else): the Supreme Court remains shorthanded. In a world of unanimity, this wouldn’t pose too many problems. But in election law, where opinions are lengthy and consensus is fleeting, you’re lucky if you get a majority opinion, much less anything that garners the support of more than five justices. (See, for example, the many messy splits in the Court’s landmark decisions in this area.)

As a result of these deep fractures, the Supreme Court’s response to the impending election might be summed up as: paralysis. An illustration emerges from North Carolina, where plaintiffs allege that the state enacted voting restrictions with racially discriminatory intent. In an opinion issued two months ago, the Court of Appeals for the Fourth Circuit agreed—and in an effort to stay the mandate, the defendants filed an emergency application with the Supreme Court. This is an important case, with considerable practical and legal implications. The Supreme Court’s response? It needed only three sentences to tell us the single thing it could agree on: right now, it can’t count to five.

It is, of course, not unusual for the Supreme Court to dispose summarily of emergency applications. But usually that is because at least five Justices agree that such treatment is warranted. Cases like the one from North Carolina, by contrast, are now turning on a fundamentally different calculation: will the Justices’ 4-4 split once again preclude a decision that could even possibly change the status quo? This problem—somewhat obscured by the posture of the North Carolina case, which was presented to the Supreme Court as a stay application—becomes even clearer once the Supreme Court has granted cert, which only requires four Justices. A petitioner very well might have its petition granted and its argument heard, but if all it can muster is a tied vote, it will never get anything it’s asking for.

This problem already has knocked the wind out of multiple cases; the last Term was defined “as much by what the Court did not decide as what it did.” Given how fractious the Supreme Court has been in the election-law context, the problem of the 4-4 split is likely to dominate this area with particular potency.

There are several ways the Supreme Court might respond to such a problem. It might attempt to minimize the appearance of paralysis by refusing to entertain cases on discretionary review and by declining to note dissents when summarily disposing of others. As Will Baude has explained, these sorts of orders reveal very little about the Court’s inner workings, including with respect to each Justice’s assessments of the merits. Alternatively, the Court might dispose of such cases through enigmatic, compromise opinions that accomplish little more than a remand. This is what the Supreme Court appeared to do a few months ago, for example, in Spokeo v. Robins, a terrifically impenetrable case on standing that initially seemed like it might have blockbuster potential. (Another high-profile example of this approach emerged out of the ACA-related dispute in Zubik.) Or the Court might do what it did in the case discussed above. It might acknowledge, quite openly, that it cannot do its job. In the North Carolina case, this distress signal was tapped out through the four noted dissents, which countered (but did not offset) the four justices voting to deny. Earlier in the Term, in the context of several deeply important cases that needed, but did not receive, resolution, the Court accomplished the same through a stark statement, framed in blank-page white: “The judgment is affirmed by an equally divided Court.”

How the Court responds each time it faces this problem will depend, as it should, on a number of case-specific considerations. Overall, however, I think that the best approach tends to be the third. Masking its own paralysis may suggest consensus, a value that we know the Chief Justice favors, but it risks confusing the courts and others watching to figure out where the law might be headed. It also makes it harder to determine—and, as appropriate, to protest—the effects of the nomination deadlock. Taking the second approach and issuing a compromise opinion, like the Court appeared to do in Spokeo, provides the litigants with at least some resolution, but the inscrutable decisions that emerge barely accomplish even this, and they threaten to muddle the case law in a way that will confound even after the Court reaches full capacity. Taking the third approach—openly acknowledging that, in this context, the Court is failing—seems to be the most effective way for this eight-member body to accomplish what little it can right now: signaling that it needs help, and minimizing the harm going forward.

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

Nonconsensual Pornography and the "Gay Bachelor"

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

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

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

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

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

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

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

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

State v. Dharun Ravi: A Culture of Homophobia

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

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

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

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

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

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

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

M.H.: hahaha good luck with thatt

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

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

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

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

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

M.H.: hahaha that's so crazy

DEFENDANT: Yeah keep the gays away

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

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

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

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

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

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

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

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

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

State v. Dharun Ravi: The Appeal

In my last post, I summarized some of the basic facts of the Tyler Clementi/Dharun Ravi story. After he was convicted on all counts, Mr. Ravi appealed his convictions. He made various arguments, but his appeal was given an enormous boost by the 2015 New Jersey Supreme Court decision in State v. Pomianek, 221 N.J. 66 (2015), which declared unconstitutional a key statute upon which Mr. Ravi's conviction was based.

N.J.S.A 2C:16-1(a)(3) states:

A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of [certain specified] offense[s] ... under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity (emphasis added).

This provision was the basis for 4 of the 15 counts in the State's case against Mr. Ravi (Ravi, 2-4). Related evidence also permeated the prosecution's case, including counsel's moving closing statement (45-48). But on March 17, 2015, in Pomianek, the New Jersey Supreme Court declared the provision unconstitutional: it was void for vagueness in violation of the Fourteenth Amendment.

Pomianek involved several workers at the Gloucester Township Department of Public Works. The defendants, all white, and the victim, a person of color, were assigned to an old garage that Public Works used for storage. Inside that garage was a large metal cage that could be padlocked closed. The workers had been "horsing around" in the garage, including in and near the cage. As part of a ruse, one of the defendants approached the victim and told him that their supervisor needed some supplies from the cage. Once the victim was inside, the defendant closed the cage door and locked it. A number of workers started laughing, and one of the defendants said, "Oh, you see, you throw a banana in the cage and he goes right in, which triggered more laughter among the men." The victim felt there were racial overtones to this statement. Another worker unlocked the cage door within 3 to 5 minutes. The victim testified that he felt "humiliated and embarrassed." After the victim was released, the defendant was heard saying, "You all right, buddy? We were just joking around."

The defendants in Pomianek were charged, among other things, with bias intimidation in violation of 2c:16-1(a)(3). The jury convicted them on those counts because, considering the racist overtones of the "banana" comment, the victim could reasonably believe that the act was committed on the basis of race.

The problem with this provision was that unlike every other bias crime statute in the country, this law was based on the state of mind of the victim, not the intent of the defendant. The New Jersey Supreme Court concluded that this violated the Fourteenth Amendment. A core element of due process is that a law must clearly define forbidden conduct so that individuals can tailor their behavior to conform with the law. Section (1)(a)(3) did not do that. By hinging guilt on what is going on in the victim's mind as opposed to the defendant's mind, the statute does not put a "reasonably intelligent person on notice when he is crossing a proscribed line."

Based on Pomianek, any part of Mr. Ravi's conviction based exclusively on (a)(1)(3) was void as a matter of law. But, according to the Appellate Division, evidence of Tyler's perception of the events was a "pillar" of the prosecution's case (41). It came up often, including in the closing statement. In fact, it came up so often that it "render[ed] any attempt to salvage the convictions under the remaining charges futile." It therefore was "unreasonable to expect a rational juror to remain unaffected by this evidence" (6). Evidence of Tyler's state of mind was prejudicial and not harmless beyond a reasonable doubt. As such, the court overturned Mr. Ravi's conviction in its entirety.

I am not so easily convinced. The Fourteenth Amendment does not protect people from punishment enhancement based on their indifference and willful ignorance to the plight of their victims. "Bias" should be understood as more than just stating, "I hate gays." But let's assume that Pomianek is correctly decided. The statute was poorly worded; the trial judge noted that. And it is hard to imagine convicting someone of a bias crime without any evidence of bias. There was, however, a lot of evidence that Dharun Ravi existed in a contributed to a culture of homophobia that discriminated against Tyler and devalued his life in the eyes of others. I will discuss this point in my next post.

Though we were all shocked by Tyler's suicide, it is not clear that turning to the criminal law is always the right answer. The New Jersey legislature had good intentions: it wanted to recognize that the pain of the victim, the monstrosity of the attacker, and the social context in which attacks occur matter. But maybe those considerations are best left for tort law. Clearly, evidence of the gravity of the harm and the homophobic context of Mr. Ravi's conduct could be important in a civil case against him.

Stay tuned for more! 

 

State v. Dharun Ravi: What Happened?

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

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

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

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

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

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

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

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

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

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

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

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

Watching a Tragedy Unfold—the Spread of the Zika Virus and some teachable material about Federalism

While it’s considered sensationalistic in public health circles to make an analogy to AIDS every time a new virus emerges, the FDA’s recommendation that we begin screening all blood donations for Zika raises that question on its own. So far, there is no effective treatment or vaccine.

 Congress has the power to authorize funding to develop both, but they also have the power to stand by and watch.  Starting with a vote last February, Congress has refused to authorize the $1.1 Billion that the CDC and the Department of Health & Human Services (and other Agencies) need to develop a vaccine, treatment, and prevent strategies. Congressional dysfunction is hardly a surprise.  Nor should it be a surprise that the latest pretext is that Planned Parenthood may be involved in what is so far the only effective way of preventing pre-natal infection, contraception.

Could it be that we will look back at Congress’ failure to fund a Federal response to the Zika virus as another tragically lost opportunity?   Is Zika really that bad?  Well, the WHO released new guidelines today that although couched in terms intended to reassure, are no better than a placebo.  It’s couched as helpful, but Zika isn’t like some kind of soil contamination that can be avoided by cordoning off a few blocks in a major city.  Not only are the mosquitos quite good at hitching rides, it is clear that the virus can be transmitted through bodily fluids and, very much so, from mothers to their unborn children.  And, as both the CDC and WHO well know, advice to avoid pregnancy is not realistic.   By some estimates, over 45% of pregnancies in the US are unplanned and there’s no reason to think the number is significantly lower anywhere else. 

As is almost always the case in a time of public health crisis, there are balance of power lessons to learn.

The President of the United States does not have direct power to protect the public’s health—that authority rests in the individual States under the Police Powers Doctrine. But he could act alone to combat Zika if he were willing to declare it a threat to national security.   The CDC has compiled a very helpful document outlining these powers, but as explained, in presidential transition memo the consequences to the rule of law in using them are enormous.  And in retrospect almost never justified.

So the coming of Zika to the United States presents a clear illustration of the limits of our powers of federalism. As so often happens in these cases, states are trying to fill the gaps.  But in the end, no individual state has the resources to mount the billion dollar response required to get ahead of this menacing threat.  For now, the CDC is diverting its own resources to the states, but that is at best a “stopgap.”

Letters to the powers that be

I am a junior (untenured) assistant professor at Howard University School of Law. Although I do not (yet?) self-identify as a public intellectual, I do produce scholarship that seeks to critically study and reflect upon problems in society and that proposes solutions for those problems. It seems that the very act of seeking to affect the public discourse makes me a public intellectual (at least according to Wikipedia).

I've found myself reflecting on my status recently because I've been offered several opportunities to sign letters that seek to influence rules being promulgated by the Consumer Financial Protection Bureau. See, e.g., this letter. My gut reaction is usually a bit of self-doubt. Do I really know enough about all sides of the issue to weigh in? Have I thought about the problem long enough and adequately reflected on the appropriate solutions? In addition, I wrestle with how much time to devote to getting up to speed on the issue covered by the letter.

I assume that others have much more experience in this area than I do. As such, I'm curious what other folks think about signing (or drafting) such letters. What factors affect your decision to either draft such letters in the first instance or to sign ones that come across your desk? How much time do you invest in making sure that the comment letter you sign is as perfect as it can be? Put differently, do you treat these letters like a blog post or a law review article? Finally, did you think differently about these issues when you were untenured? Should you have?

Thanks for sharing your thoughts!

 

Bard Signing In

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

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

Reforming the police by focusing on the courts

Matthew Segal, legal director of the ACLU of Massachusetts, has written an interesting op-ed in the Guardian in which he argues that many of the concerns that the Black Lives Matter movement has about police violence and the need for police reform are the result of court decisions in Fourth Amendment cases. In his words: "Courts have shaped American policing by defanging the fourth amendment’s prohibition on 'unreasonable searches and seizures.'"

It's also interesting to see this coming just after the establishment of the bi-partisan Fourth Amendment Caucus in the US House of Representatives. The Fourth Amendment covers a wide swath of law enforcement action, of course, but it does appear that most of the comments I've seen about the caucus are either broad statements about protecting civil liberties or limiting mass surveillance (EFF). The clearest exception to this in the Caucus's press release was the statement from Malkia Cyril (Co-Founder and Executive Director, Center for Media Justice; Member of the Caucus's Steering Committee): "In an era of escalating police violence, Black communities urgently need political leadership to protect us from illegal search and seizure, invasions of privacy, and other Fourth Amendment violations."

With Supreme Court decisions (many cited by Segal in his op-ed) restricting the ability of lower courts to give the Fourth Amendment its "fangs" back (to use Segal's language), I wonder whether something like the Fourth Amendment Caucus will actually do something to address the Fourth Amendment's impact on day-to-day policing in communities across the country.

Update on PrEP Access

As a follow-up to my initial post on barriers to accessing pre-exposure prophylaxis (PrEP) as a means of preventing HIV, I wanted to highlight new numbers provided by Gilead, the maker of the only FDA-approved PrEP pill—Truvada. According to Gilead, more than 79,000 people started using Truvada as PrEP in the U.S. during the period of 2012-2015, based on a survey of retail pharmacies (this number may be an underestimate because it does not include certain prescription programs). Recall that the CDC has suggested that over 1.2 million people have indications for PrEP. While the number of people starting PrEP has grown each year, Gilead indicated that those using PrEP are disproportionately white. As discussed, HIV is disproportionately spreading among black people (in 2014, 44% of new diagnoses were among black people, notwithstanding that black people accounted for 12% of the population). This seems to confirm that access to PrEP as a means of preventing HIV, like access to health care more broadly, has been uneven and that efforts to expand access through Medicaid expansion and awareness campaigns need to be strengthened.  

Been great visiting this month!  Thanks to Howard for the opportunity!

SSRN, Elsevier, and the Alternatives (again)

(I've updated this post on July 21 at 10:17am CET, and I've indicated below what content is new or revised)

Elsevier has become the world's largest open-access publisher, but it has also faced quite a lot of pushback from scholars over its open access policies. Now it has purchased SSRN, generally seen as the go-to repository for open access to (mostly) pre-print legal scholarship (or papers not bound by restrictive copyright licenses), and certain voices have begun to call for authors to pull out of SSRN and move elsewhere (the almost-in-beta nonprofit and open access SocArXiv repository looks like it might make a viable option as it comes more fully online).

Following up on this recent post by Howard (of an email by Stephen Henderson (Oklahoma)), as well as coverage at TechDirt, and Author's Alliance (asking: "Is it Time for Authors to Leave SSRN?"), I wanted to raise some additional questions. My first reaction is that a well-organized and sufficiently funded not-for-profit platform would be much more preferable in the long run than keeping ties with a for-profit platform owned by a controversial mega-publisher. However, I wonder whether such a move is worth it, without some larger (even institutional) challenge to SSRN's reign. I also wonder whether junior scholars like me risk more in leaving than more established scholars. To the specific questions:

First, is there a role for institutions (law schools) to withdraw support for SSRN/Elsevier and move towards supporting a non-profit like SocArXiv? If so, how would we organize such a movement? Would it be worth it in the long run to move support away from a for-profit platform to something like SocArXiv? SSRN has done a good job of getting institutional buy-in, which may make it harder for a broader institutional challenge to its pre-eminence in this regard. For example, my own law school, at Tilburg University, has proudly advertised that we are ranked in the top 10 (worldwide) and #2 (international, non-US) on SSRN for "total new downloads." We also publish our working paper series through SSRN. Yet, we also have a history of calling for boycotts of Elsevier over not making more work available on an open access basis in the Netherlands. (Edit: I offered these examples to show that the elements of gamification on SSRN work as a way to entrench support or, at least, make leaving more costly.)

Second, what are the individual risks of pulling papers off SSRN and moving elsewhere? Would pulling papers off SSRN (and thus presumably losing the stats and author ranking on the site) be more risky for less established junior scholars (or law prof hopefuls)? What role has SSRN (and author download rankings) played in evaluating entry-level job candidates or lateral candidates for jobs, or internal candidates for promotion/tenure? Does SSRN performance play any role in committees or administrations judging scholarly impact? (if so, should it?)

[Edit: Third, If a new open-access archive for law scholarship were to come online in the near future, what characteristics or features would you want it to have or not have (either those already existing on SSRN, ResearchGate, et al., or entirely new features?)]

 Update (July 21, 2016 at 10:17am CET):

Since I published this post yesterday, a number of new discussions on this topic popped up on a variety of lawprof listservs. The following thoughts from Ariel Katz (Toronto) are shared with permission:

I’d like to float the following idea:

The names of esteemed members of these groups adorn SSRN’s subject matter journals. For example: the editors of the Cyberspace Law eJournals are Peter Swire and Jonathan Zittrain, and members of the Advisory Board are: A. Michael Froomkin, Trotter Hardy, David Reynold Johnson, Ethan Katsh, Mark A. Lemley, Jessica Litman, David G. Post, Margaret Jane Radin, Pamela Samuelson, and Eugene Volokh. Rob Merges is the editor of the IP eJournals and the Advisory Board members are Rebecca S. Eisenberg, Paul Goldstein, I. Trotter Hardy, William M. Landes, Mark A. Lemley, J. Thomas Mccarthy, Margaret Jane Radin, and Pamela Samuelson.

I imagine that being an editor or a member of those advisory boards is rather meaningless in practice, and I won’t be surprised if some of the colleagues whose names are on those advisory boards don’t even remember that they have once assumed this role. However, decorating it’s communications with those names isn’t meaningless for SSRN, because it has helped it to build its reputation for a scholarly endeavor and a scholar-friendly entity, and appear to be part of the academia even though it has always been a private company.

Now, I don’t know if colleagues who are members of the advisory boards were ever asked to actually provide advice. But maybe now is the time to give it, even if unsolicited. If I were on one of these boards I think I might share my concerns with SSRN and decline to give my name if SSRN failed to provide satisfactory answers.

 This email was quickly followed by a number of advisory board members voicing support for coordinating a more united front to give advice to SSRN, or to think about what an ideal alternative platform might look like. 

 

Pokemon GO and the law

Pokemon GO has quickly garnered a massive following since its release last week, prompting one University of Utah professor to call it "arguabl[y] the most popular video game in the world," and others to argue that "it's daily use is expected to exceed Twitter by the end of the week." But the app raises some very interesting questions about privacy and data protection law, as well as a variety of other possible liability issues. Supposedly it originally siphoned  huge amounts of personal data off smartphones, but the developer has been pulling back after getting some bad press.

Users, by getting out of their lazy boys and joining the outside world in the hunt for monsters, have already begun harming themselves and putting themselves in real physical danger, and the app has reportedly sent dozens of players to at least one private residence (a remodeled church building) in search of a Pokemon Gym. Douglas Berman, over at the Sentencing Law and Policy LawProfBlog, has noted that criminals have begun (or could begin) to abuse the app. And Andrés Guadamuz has just posted a very interesting summary of some the legal issues raised by the game over at TechnoLlama, including privacy and data collection, security, liability, and virtual location rights (or: how can a person tell the app to move an unfortunately-placed Gym to somewhere besides the inside of his or her home?).

Have you seen students (or faculty colleagues) wondering around campus chasing Pokemon? Are there other interesting liability issues raised by an augmented reality game like this that haven't yet been addressed?

Some thoughts about Whole Woman's Health v. Hellerstedt

Cross-posted at Casetext

I'm delighted to be back blogging at Prawfs! Thanks to Howard and the rest of the regulars for inviting me.

I wanted to start off with some thoughts about the Supreme Court's momentous decision in Whole Woman's Heath v. Hellerstedt -- more thoughts on the case may follow as they develop.

In Whole Woman’s Health v. Hellerstedt, the most important abortion case in over two decades, the Supreme Court handed the plaintiffs as sweeping a victory as they could have hoped for. In doing so, the Court also saved the “undue burden” standard and quite possibly the right to abortion itself.

Since the Supreme Court’s joint opinion in Planned Parenthood v. Casey, which was co-authored by Justices O’Connor, Kennedy, and Souter, the constitutionality of an abortion restriction depended on whether it imposed an “undue burden” on the ability of a “large fraction” of women to obtain an abortion. This standard was not only less protective of abortion rights than the strict scrutiny standard that the Court had set out in Roe v. Wade, it was also so indefinite and malleable that it opened the door to greater and greater envelope-pushing by states adopting increasingly onerous anti-abortion laws.

In Whole Woman’s Health, the Supreme Court was confronted with one such anti-abortion law—Texas’s H.B. 2. The Texas law required abortion clinics to meet the standards of ambulatory surgical centers (essentially, mini-hospitals) and abortion providers to have admitting privileges at a local hospital. The ambulatory surgical center requirements were prohibitively expensive for existing clinics to meet, and admitting privileges can be impossible for certain abortion providers to obtain for reasons totally unrelated to clinical competence, such as opposition to abortion (for example, by a Catholic hospital). Thus, the combined effect of the two restrictions—restrictions extant in numerous other states as well—would be to shut down approximately three quarters of Texas’s abortion providers, forcing many women—especially those outside the major metropolitan areas—to travel long distances and undergo long delays in order to obtain safe and legal abortion services.

In a 5-3 majority opinion by Justice Stephen Breyer, the Court held the Texas abortion restrictions to be an unconstitutional undue burden on abortion rights. In some ways, this holding was not surprising. After all, even Justice Kennedy, the most conservative member of that 5-Justice majority, would have to admit that if anything is a substantial obstacle to abortion access, H.B. 2 is. The bigger surprise was the way the Court went about it. In finding an undue burden, the Court held that the actual health and safety benefits of the law had to be balanced against the impact of the law on abortion access. Given that the two Texas requirements were found to have essentially no meaningful benefits to women, the massive burden on abortion access was unwarranted (or “undue”).

It is hard to overstate how important this particular approach was.

By focusing on the health benefits of the law in relation to the burdens, the Court made sense of, and breathed new life into, the undue burden standard. No longer is the undue burden standard a numbers game, in which the exact formula to be applied is unclear. Nor did the Court issue a narrow but ultimately unhelpful ruling identifying an undue burden in Texas without telling us what an undue burden actually is. Instead, the Court issued a sensible opinion giving real meaning to the word “undue,” and putting at risk dozens of abortion restrictions across the country that are passed in the name of protecting women, without any evidence to back them up.

Other elements of the decision were remarkable. For one thing, the opinion made it clear that courts are not to defer to legislatures on the medical or scientific issues that underlie abortion restrictions; instead, they should examine the evidence independently and critically. Justice Kennedy in Gonzales v. Carhart, the Court’s most recent major abortion case, had worried over the “traditional rule” of deferring to legislatures in the face of medical and scientific uncertainty, before ultimately choosing not defer to Congress’s demonstrably mistaken findings. In Whole Woman’s Health, by contrast, the Court asserted, “The statement that legislatures, and not courts, must resolve questions of medical uncertainty is … inconsistent with this Court’s case law. Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings.” The opinion thus affirmed the courts’ duty to review facts independently when constitutional rights are at stake.

The Court broadened its focus in other ways, as well. In Casey, the joint opinion had dismissed the district court’s concerns about the impact of a 24-hour waiting period, requiring two trips to the clinic, on women with fewer resources and those who had to travel long distances. Casey stated “[t]hese findings are troubling in some respects, but they do not demonstrate that the waiting period constitutes an undue burden.” In Whole Woman’s Health, by contrast, the Court specifically cited the trial court’s finding that the Texas laws would “erect a particularly high barrier for poor, rural, or disadvantaged women” in its finding of undue burden. Finally, the Court declined to split hairs on the issues of remedy and of facial versus as-applied challenges, as it had done in Planned Parenthood v. Ayotte and Gonzales v. Carhart.

Looking forward, there is reason to be optimistic about the impact of Whole Woman’s Health on abortion rights. Having now denied certiorari in admitting-privileges cases from Mississippi and Wisconsin (in which the plaintiffs won below), the Court has sent a fairly clear signal to any state legislatures considering admitting-privileges requirements in the future. And numerous states have ambulatory surgical center-type requirements, though admittedly the Court was less categorical in striking those down. Given that ambulatory surgical center requirements vary greatly from state to state in their details and onerousness, it is necessary to look more closely at the specific nature of the requirements and their impact. Reading the opinion to require states generally to justify burdens on abortion with evidence supporting an actual benefit for the law, it’s possible that the Whole Woman’s Health decision will also be used to strike down 20-week abortion bans, which are often justified based on junk evidence pertaining to fetal pain. Bans on using telemedicine to provide medication abortion, currently in effect in 18 states, are also now vulnerable.

Perhaps the most important aspect of Whole Woman’s Health, however, is that the Court treated the right to choose abortion like the fundamental right that it is. As with other constitutional rights, infringements on the right to choose abortion must be viewed with scrutiny rising above the level of deferential rational-basis review.

Nationalism and Reciprocity

Thanks to the powers at Prawsfblawg for inviting me back. I'm a law professor at Loyola Law School, Los Angeles. I always appreciate the opportunity to place my nascent thoughts in the public forum, and see what interests folks. For the most part, I'll blog about criminal procedure in general, and in particular policing. But given the date, I thought something else might be more appropriate.

I’m Scottish. Given the current temporal proximity of Brexit and the Fourth of July, in which Americans celebrate their revolting forebear’s legally irrelevant secession statement, I'll impart one thought on nationalism. We might think that nationalism is a unilateral affair: it states “I assert my independent status as Scottish/English/American/etc.” But nationalism is, in fact, a bilateral or multilateral affair: in asserting your American identity, you rejected your British identity. It is possible to have multiple identities—Scottish and British and European. But multiplicity sits uncomfortably with nationalism. Even if Scots want to be independent *within Europe*, Scottish nationalists want to be *not-British* within Europe. And for Scottish nationalists, Europe is not an independent national identity: it is a subsidiary part of the Scottish identity. Scotland, the Scottish nationalists assert, is a European country, not limited in its projects to the British Isles (and maybe even not oriented in its projects to the British Isles).

If Nationalism is a bilateral or multilateral affair, such that asserting the exclusionary status of membership Nation X entails asserting that members of Nation Y are not participants in the Nation X project, then Nation X’s nationalism is likely to have consequences for Nation Y. One of those consequences is that members of the excluded nation are likely to feel shunned. In a *United* Kingdom, the Northern Irish, Welsh, and, yes, the *English* all participate in the Scottish project. In an independent Scotland, they do not. Indeed, one reason that Scottish nationalists want independence is precisely to prevent and exclude England from participating in the Scottish project. It’s not at all clear that they also want to exclude our Celtic Cousins the Welsh and Irish. But there is it: reject one, reject all.

Being the object of exclusion might make the English (or any Nation Y) understandably resentful. Bugger you, they might say: if you don’t want us to participate in your project, then we don’t want you to participate in our project. Indeed, one consequence of 18 months of “Indyref” (the term given to the referendum on Scottish independence) debate was an upsurge in English animus towards Scotland. Scots often took this to confirm what they always new: that the English didn’t really like us as much as they claimed; and that there was a strong undercurrent of English nationalism hidden behind British-nationalism-as-“we-all-support-England.” But I think that what also may have happened was that thoughtless English-Britishness became intentional English nationalism, and so the projects of England and Britain became separated, as English nationalism grew in response to the exclusionary Scottish nationalist project.

If that’s right, then it’s possible that UKip, as the party of exclusive English nationalism, got its fillip, not from Brussels incompetence, but from Scottish nationalist calls for independence. As Scottish nationalists rejected the British project because English politics drowned Scotland out of having a say in British politics (itself dominated by the South of England), so English nationalists rejected the British project, and Britain's embrace of its place in Europe, and instead endorsed an English, exclusionary project. And that English project has historically seen itself in opposition to Europe.

So did Indyref 2014 cause Brexit 2016? And what does that say about other nationalist projects, and their consequences on the excluded nations and nationals? Do nationalists depend for their identity as members of Nation X upon excluding competing nation's identities? 

Expanding Access to the HIV Prevention Pill, Truvada

Thrilled to be guest blogging with Prawfs this month!

To kick things off, I thought I’d highlight some of the barriers that are preventing widespread access to Truvada, a once-daily pill that can help prevent infection with HIV even if exposed to the virus. Although approved by the FDA for use as pre-exposure prophylaxis (or “PrEP”) in 2012, awareness of Truvada as a tool for preventing the spread of HIV is not universal, and several barriers to uptake exist.

According to the CDC, daily use of PrEP can reduce the risk of getting HIV from sex by over 90%. Importantly, Truvada is not a replacement for condoms, and should be used with condoms (particularly since Truvada doesn’t prevent other STDs). The CDC recommends that those at “substantial risk” of HIV consider taking Truvada. In America, about 1.2 million straight and queer people engage in behavior that puts them at “substantial risk” of HIV, and yet the number of people taking Truvada as PrEP numbers only in the tens of thousands. If taken more widely, PrEP could meaningfully reduce the number of people infected with HIV each year, which has remained steady over the past few years at about 50,000 new infections each year. (More than 1.2 million people in the United States are currently living with HIV).

As outlined in a wonderful new report by Duke Law’s Carolyn McAllaster and the Southern HIV/AIDS Strategy Initiative (SASI), the key barriers to PrEP uptake include lack of awareness, stigma, and cost/access. Of these, I want to draw attention to two key points.

First, as recognized by the White House’s National HIV/AIDS Strategy, HIV stigma remains one of principal roadblocks in preventing, detecting, and treating HIV. In addition to discouraging PrEP, HIV stigma contributes to what is known as the care continuum, where, according to estimates, roughly 86% of those with HIV are diagnosed, only 40% are engaged in care, and only 30% are virally suppressed through use of anti-retrovirals. But, unfortunately, certain government policies, such as the FDA’s blood donation deferral policy toward gay and bisexual men and laws that criminalize HIV transmission, stigmatize HIV and push it further into the shadows. But there is also PrEP-specific stigma, with some suggesting that those who use Truvada are promiscuous and irresponsible, when, in reality, taking PrEP is sexually responsible.

Second, as the SASI report notes, while HIV is disproportionately spreading in the South and, there, disproportionately among black women and black men who have sex with men, most Southern states have not adopted Medicaid expansion. Why is this significant? Medicaid and most private insurers will actually help pay for Truvada, which costs about $1,300 a month. But nearly 3 million adults fall in the so-called “coverage gap” between traditional Medicaid and the Affordable Care Act’s insurance subsidies (a gap that Medicaid expansion would cover). And 89% of people in the coverage gap are in the South, the region most in need of HIV prevention tools. As such, without Medicaid expansion, millions of people lack health insurance, including many who may have indications for PrEP.

That’s enough for now, but for those interested in additional steps that can be taken to expand access to PrEP and prevent the spread of HIV, I once again recommend the SASI report!

"And a question everyone here should ask . . . " "Are you Canadian?"

I'm making this brief return to Prawfs (thanks Howard!) to plug an article by Christopher Schmidt and me on the issue of Senator Ted Cruz's eligibility to be president.  The issue got a lot of play earlier in the primary season when Donald Trump said that Cruz's Canadian birth was a problem for the Senator's campaign, and numerous constitutional law profs weighed in on the issue.  (See, e.g., Larry Tribe, Akhil Amar, Einer Elhauge, Eric Posner, Michael Ramsey.)  The debate centered around originalism: would Cruz be eligible under an originalist understanding of the natural-born citizen clause?  Tribe, Elhauge and Posner said no, while Ramsey said yes.  Commentators debated the original understandings of the Constitutional language, as well as certain 18th Century English and American statutes -- but they also asked whether originalism was the appropriate constitutional interpretive method.  Tribe, for example, argued that Cruz was ineligible under originalism but perfectly eligible under a "living constitutionalist" approach.

In our article "The Natural-Born Citizen Clause, Popular Constitutionalism, and Ted Cruz's Eligibility Question," Chris and I focus on the role of popular constitutionalism in the modern conservative movement and discuss the ramifications of a popular constitutionalist approach to the natural-born citizen clause.  Drawing on Chris's terrific earlier work on the Tea Party and popular constitutionalism, the article makes the case that the popular understanding of "natural-born" would likely exclude Cruz from eligibility, as the common understanding has been that a candidate must have been born in the United States.  However, Cruz's campaign has emphasized that this question is "settled law," and has looked to elite constitutional opinion to nail down the issue.  In particular, an article by Neal Katyal and Paul Clement -- published in the Harvard Law Review Forum, and timed to come out just before Cruz's presidential announcement -- claims that Cruz is eligible, and that any other conclusion is "specious" and "spurious."  Cruz has not left the clause's meaning open to voters, and he has not asked them to draw upon their "conservative constitutional principles" to decide whether he is eligible.  On other matters, however, Cruz has been very much a popular constitutionalist -- to an underappreciated extent.  Cruz's political campaign consistently refers to the people's role in defending the Constitution, and he has been a Tea Party constitutionalist since at least 2012, when he brought Sarah Palin and other Tea Partiers on board for his senate campaign.  In fact, Cruz has even advocated for amending the Constitution to allow for retention elections for Supreme Court justices. 

Although the national media has largely moved on from the question of Cruz's eligibility, the issue still burbles below the surface.  The snappy comeback from a Trump supporter yesterday shows that Cruz's Canadian birth still matters to some.  If Cruz fails to get the Republican nomination, there are myriad reasons why voters might have settled on a different candidate.  But popular constitutionalism in action might be one reason that voters cast their ballot for someone else.

Value chain dynamics of legal education

I wanted to finish my guest blogging with another comment about institutional features of the legal academy, specifically its economic structure as a market or market participant.  I started thinking about this last year, when a Cuban economist taught me about value chain economics, a theory that Harvard Business School professor Michael Porter put forth in his book Competitive Advantage.  

In my lay understanding, situating a product or process in a value chain means taking into account all the upstream inputs and downstream outputs relevant to a particular point of production or distribution.  The approach emphasizes relational ties between the upstream and downstream processes that result in an ultimate product or service.  Visualizing the chain as a whole helps to understand the economic dynamics in a particular link of the chain. In effect, the chain is the firm.  For example, supply chain analysis seems to be a specific application of the value chain idea. So, for example, Walmart is such a powerful buyer that – through contract – it can influence (maybe mandate) the business models of its upstream suppliers.  

In the global agricultural market – this gentleman explained to me – 80% of global supply gets funneled through pre-existing value chains, not through some kind of “open market” where buyers and sellers meet.  Indeed, insofar as these relational networks determine the production, distribution, and financing flows for a product, the “open market” idea seems like a fiction promoted by orthodox understandings of microeconomics. 

What intrigued me was the possibility of using value chain modeling to understand banks and the financial sector, which made instant intuitive sense to me because cash and credit are fungible commodities that flow through these intermediaries through relational channels.  

But then I also began to wonder what a value chain model of legal education would look like. This schematic is my draft attempt at figuring that out.  I’d welcome any thoughts on this idea.

Let me close with a tiny bit of self-promotion.  Last month, I finished my first monograph, Bank Funding, Liquidity, and Capital Adequacy: A Law and Finance Approach.  I’m still happy about it, so I wanted to share it.

Cheers

jose

Cuba examination questions

The growing detente between the US and Cuba raises some issues that make for interesting examination questions. Here are two.

At some point, the normalization process will allow Cubana (the state-owned airline) to fly in or through U.S. air space. However, Cuban authorities worry that its airplanes in the U.S. could be seized by private litigants with claims against Cuba. Usually the Foreign Sovereign Immunities Act shields foreign states from being hailed into court here, but the FSIA contains exceptions when (i) the property in question (in this case the planes) is tied to property expropriated by the foreign state and when (ii) the foreign state engages in commercial activity in the US. Do the Cuban authorities have anything to worry about?

The second issue involves the long-standing questions that many have had about whether Helms-Burton’s attempt to codify the embargo is constitutional. The question mattered less when both the President and Congress were on the same page (because the embargo could rest on executive authority), but now the branches disagree. The question matters because Obama has said that he’ll use his authority to roll back the embargo. How far can he go before being hemmed in by a valid Congressional mandate?

Misrepresenting the Employment Law Impact of HB 2

One of the most disappointing and infuriating things about the HB2 saga in North Carolina has been the persistent misrepresentation of its impact by Gov. McCrory and its supporters in the General Assembly.  As an employment and civil procedure scholar (and former long time litigator), I take particular umbrage at the gross misrepresentations related to the elimination of the state law claim for employment discrimination (discussed in my last post, here). 

The misrepresentations started in the General Assembly where the Republican sponsors repeatedly asserted that nothing in HB2 would take away existing rights.  Even when directly questioned about the elimination of the state law wrongful discharge claim for employment discrimination, Republican legislators responded that it would have no effect.  [I am basing the foregoing primarily on tweets from reporters on the scene as I was not in Raleigh for the “debate.”] 

The misrepresentations continued when Gov. McCrory issued his statement announcing he had signed HB2 into law.  In that statement, he stated “[a]lthough other items included in this bill should have waited until regular session, this bill does not change existing rights under state or federal law.”  (emphasis added).  Gov. McCrory doubled down on this misrepresentation in a document entitled “Myths vs Facts: What New York Times, Huffington Post and other media outlets aren't saying about common-sense privacy law” (here), which was posted on his official website on Friday, March 25.  In this document, question #2 is “Does this bill take away existing protections for individuals in North Carolina?”  Gov. McCrory’s answer: “No.” 

Put simply, McCrory’s statements are clearly and undeniably false. 

However, the most persistent voice in misrepresenting the impact of this provision of HB 2 has been (perhaps not surprisingly) HB 2’s author and sponsor, Rep. Dan Bishop (R-Mecklenburg).  Rep. Bishop is an attorney.  When pressed by a reporter on whether HB2 eliminated the longstanding state law claim for wrongful discharge, Rep. Bishop acknowledged that it likely did, but said “who cares” because you could get the same remedies under federal law.  In a separate interview, Rep. Bishop said the elimination of the state law claim “is an exceedingly minor procedural difference."  

Rep. Bishop graduated from UNC-CH law with high honors, so I will assume he does actually understand the differences between (1) substantive and procedural law; and (2) federal and state employment discrimination law.  But assuming he understands the distinctions, one must conclude that he is intentionally misrepresenting the impact. 

Whether the elimination of a state law claim is “substantive” or “an exceedingly minor procedural difference” is beyond rational debate.  Having 28 days to respond to a motion instead of 30 days is an exceedingly minor procedural difference.  Eliminating a state law claim that has existed for 34 years, is indisputably substantive and significant. 

I’ll take up the substantive differences between federal employment discrimination claims under Title VII (or the ADEA) versus North Carolina’s now defunct claim for wrongful discharge in violation of public policy premised on EEPA in my next post.

Wednesday in North Carolina

It has been an interesting week in North Carolina.  Last Wednesday, the ultra-conservative Republican super majority in the NC General Assembly called itself into a special “emergency” session to overturn an ordinance passed by the City of Charlotte on February 22.  Charlotte (like many other cities) has long had a non-discrimination ordinance (section 12-58 of the Charlotte City Code), which prohibited discrimination in public accommodations on the basis of “race, color, religion, or national origin.”  The new ordinance simply added “sex, marital status, familial status, sexual orientation, gender identity, [and] gender expression” to the existing list of protected categories.  Additionally, the new ordinance deleted section 12-59 of the Charlotte City Code which prohibited sex discrimination in public accommodations but also provided as follows: 

    (b) This section shall not apply to the following:

        (1) Restrooms, shower rooms, bathhouses and similar facilities which are in their nature distinctly private.

        (2) YMCA, YWCA and similar types of dormitory lodging facilities.

        (3) A private club or other establishment not, in fact, open to the public.

This rather innocuous change in a long-standing provision of the Charlotte City Code became known as the “bathroom ordinance.”  So vile was the bathroom ordinance that it was necessary for the legislature to convene a special session to overturn it before it took effect on April 1. 

Governor Pat McCrory (R) (who served has a member of the Charlotte City Council and as mayor for a total of 20 years, all without questioning the legality of the then-LGBT free non-discrimination ordinance), declined to call the General Assembly into special session because he feared (no doubt based on inside knowledge) that the General Assembly, if summoned, would pass legislation that was far broader than the “bathroom ordinance.” 

The Republican legislature, not to be stymied, called itself into special session, which it scheduled for Wednesday, March 23, 2016.  Despite requests from members of the General Assembly and the media, the powers that be in the General Assembly refused to release a draft of the legislation that would be introduced on March 23 claiming that it was not yet complete.  When the legislature convened around 10:00 am, the bill (House Bill 2 or “HB 2”) was introduced and made public for the first time.  [The date stamp on the last page “(03/16)” makes fairly clear that the bill had been drafted at least in substantial part well in advance.]  HB 2 was 5 single spaced pages of fairly dense statutory language.  The first vote was held 5 minutes after it was introduced.  There was a 30 minute public comment period for those who were able to get to Raleigh to testify.  Then some limited debate.  Then two more votes, culminating in final passage by the House at about 3:30 pm.  The Senate took up the bill at about 4:45, had an initial vote and then another 30 minute public comment period.  After it became clear that the Republican leadership was not interested in anything the other side had to say (according to Senate Democrats) all of the 15 Democrats walked out in protest.  The chair called a final vote and HB 2 passed by a vote of 32-0.  This was roughly 7:00 pm.  Although Governor McCrory had 30 days to consider whether or not to sign HB 2 into law, he signed it at 9:57 pm that night. 

In just under 12 hours from introduction to gubernatorial signature, North Carolina enacted what many have called the most aggressively anti-LGBT legislation in the country. 

ALL local non-discrimination ordinances were banished.  All local governments in NC were prohibited from protecting any group not protected by state law.  In the place of inclusive local laws (passed by the duly elected representative of those local jurisdictions), the General Assembly created a statewide public accommodation law was passed which protects only race, national origin, color, religion, and BIOLOGICAL sex.  It also mandated that all public restrooms in NC (including in public schools and universities) must be single sex and that a person may only use the restroom designated for his or her BIOLOGICAL SEX, as listed on his or her birth certificate. 

Not content to stop there, HB 2 also contained a slew of EMPLOYMENT related provisions, despite the fact that Charlotte’s ordinance had nothing to do with employment.  More on those later. 

So, North Carolina – once the most progressive of southern states – is now, perhaps, the most regressive on LGBT rights. 

Perhaps it was fitting that this special session that culminated in HB 2 was on Wednesday of Christian Holy Week, the day on which Judas Iscariot betrayed Jesus.  I cannot think of a bigger betrayal of the teachings of the Jesus I learned about in Sunday School than legalizing discrimination against a minority group.

Up with Cuba

Given all the brouhaha about Obama’s trip, I wanted to comment some on Cuba. I was born in Santiago (the easternmost and most revolutionary part of the island) and have been going back over the past 12 years, presenting and publishing there.

This link (translatable) has some basics about the Cuban legal system. The two main professional organizations for lawyers are the Unión Nacional de Juristas de Cuba and the Organización Nacional de Bufetes Colectivos.  The Unión seems to focus more on policy and academic issues while the ONBC includes almost all practicing lawyers who work in state-organized firms. These organizations regularly hold conference and events on legal themes. I was thinking of attending this conference on gender, at which I’ve previously seen many foreign academics.

As I see it, many Cuban-American emigrants remain in a state of complicated and belated mourning, something that will begin to end only after Fidel Castro passes away. Elsewhere I’ve argued that many in my generation suffer from the  Cuban-American Oedipal conflict. Parents and grandparents passed on their displacement trauma (no doubt justified) to their kids, who then – out of a sense of filial piety and ethnic identification – keep from engaging with Cuba (the real Cuba – not their parents’ introjected loss) so as to form their own opinions on these issues. Ironically, avoiding Cuba keeps them from more fully understanding what their families lost by leaving. (I’m an Oedipal victor, although that can seem like a pyrrhic victory :))

Business model changes at law schools

Law schools are experimenting with ways to diversify revenue in response to declining state support and tuition shortfalls, including those caused by smaller entering classes. This report reviews the range of things that schools have done. A common strategy has been to supplement the juris doctorate degree with other programs. This one does a good job of surveying these programs.

I’d be interested in hearing – on- or off-line – about any successes or failures of schools in generating new income streams. The corporatization of the academy makes me queasy, but law schools do need to find new funding models.

Cf - for two good argument about the potential harms of markets:

(i) Check out Michael Sandel’s What Money Can't Buy. It makes the point that some goods are actually changed by being distributed though a market, i.e., if you can buy a Nobel prize, is it the same good? If – as I did – you loved his Justice class, you’ll enjoy the book.  

(ii) See Posner’s critical comments on the marketization of the legal profession. He addresses the practice of law rather than legal education, but the same concerns apply. In effect, he is making Sandel’s argument. Coming from Posner, I found the idea that too much market freedom can lead to untoward (and unprofessional) behavior on the part of lawyers ironic, indeed, almost poignant.

Thinking about financial exigency

Hopefully, none of us will experience financial exigency in an academic unit, but here are some sources about the legal and administrative standards used to restructure academic programs.

This working paper published by the American Association of Higher Education (1996) lays out three common kinds of financial metrics for distress in an academic unit: (i) operating results, e.g., enrollment trends, cash flow, budgetary allocations; (ii) net worth; and (iii) bond ratings. The standards seem fuzzy, contestable, highly local, and fact-specific.

This American Association of University Professors report has case studies.

Mark Strasser (Capital University Law School) has published Tenure, Financial Exigency, and the Future of American Law Schools, 59 Wayne Law Review 269-309 (2013). It examines dismissals of tenured faculty from other disciplines and considers how this issue might play out in a law school context.

Like so much of academic administration, how different schools handle this issue varies substantially. Recent examples of academic systems that have considered or implemented financial exigency include Louisiana State and Chicago State.

Other schools have explored ways of giving administrators more freedom to restructure academic programs short of formal determinations of financial exigency. Examples include places in Wisconsin and Georgia.

The Peter Principle and the Supreme Court

I have not waded into the discussion of Justice Scalia's death and what happens next, although I commend what others have written here. I am in complete agreement with three things Richard Friedman (Michigan) wrote on the ConLawProf listserv: 1) This debate is entirely political and if the partisan institutional positions were flipped, so would the partisan institutional arguments; 2) The President can nominate whoever he wants before January 20, 2017, and the Senate can reject or refuse to act on any nomination within that time; 3) Senate custom is dead.

Given that (especially # 2), some thoughts/questions as we go forward:

1) (The question that gives the post its title): Does it really matter that some potential highly-qualified-to-force-the-Senate's-hand nominee (notably Sri Srinivasan) was confirmed to a lower court 97-0? Putting aside that this is all politics. Is it truly irrational for a Senator to conclude that someone could be qualified for a lower federal court and not for SCOTUS? For constitutional purposes, there is no difference in qualifications. (In fact, nothing in Article III requires appointment to any particular court, as opposed to confirmation as a federal judge). But Congress having established a statutory regime in which a judge must be separately nominated and confirmed to every seat, can't a Senator believe that someone who is good enough to be a lower-court judge is not acceptable as a SCOTUS justice? I am not saying that is the case with Srinivasan. It's just that the suggestion that Senate Republicans would accept (or be politically compelled, or embarrassed into accepting) someone because of the prior vote does not follow.

2) I also wonder about the following, with respect to the White House's seemingly quick rejection of a recess appointment (the Senate is, perhaps, in recess until February 22).

A recess appointment would likely be construed by a Republican-controlled Senate, not to mention Republican candidates for President, as subverting the intention of the nomination process laid out by the Constitution. That’s an argument—with some merit—that Obama surely wants to avoid as the White House simultaneously looks to lean heavily on the president’s constitutional responsibility to choose a justice and the Senate’s constitutional duty to confirm a reasonable selection.

But couldn't the White House successfully frame it as follows: "The Senate Majority Leader announced, within less than one day of Justice Scalia's death, that it would not  even vote on any nomination the President makes, despite his constitutionally established term continuing for another 11 months. Given this, the decision to make a recess appointment reflects not a subversion of the process, but taking the Majority Leader at his word that no confirmation could happen with the Senate in session."

3) Here is an imprecise historical analogue that, at least in counter-factual, captures a lot of what is happening politically (Michael Dorf wrote about this at Dorf on Law, although I cannot find the post). Thurgood Marshall retired in summer 1991.* And while Marshall reportedly did not want to give the appointment to George H.W. Bush, at that point it seemed certain that Bush would be re-elected, so there was no point in waiting (plus, all indications are that Marshall stayed too long, anyway and his health was failing). Of course, things had changed dramatically just one year later--it was clear the President was in trouble and he would go on to lose that November. The counter-factual is always what if Marshall could have hung around for just one more term, until say, June 1992; no one suggests he needed to stay until June 1993, after Clinton had taken office (Marshall died four days after Clinton was inaugurated). The implication is that by June 1992, no nominee would have been confirmed until after November--and once Bush lost, the nomination would await the new President. Of course, this would have put us in our current spot in reverse--a soon-to-be-leaving-office Republican President and a Democratic-opposition Senate refusing to confirm any nominee until we see what happens in November.

[*] Yes, not an election year. But surely the line cannot be January 1, especially when elections have already begun, particularly by the party out of power, by the previous summer.

What's Obama's Best Move?

Scalia is dead. The Republicans control the Senate.  There's an election in 9 months.  Assume Obama's goal is to shove the Court as far to the left as possible, relative to the likely alternatives. What should he do?  I assume the Republicans are going to go wild in the Senate stopping anyone he appoints. We're unlikely to get Justice Elizabeth Warren/Lani Guinier/Erwin Chemerinsky any time soon.  

 

Here's a slightly crazy idea: is his best move to appoint a moderate or even a soft rightist, but one who is widely respected, in order to either

 

a) force the Republicans to block someone that'll make them look real stupid, or

b) actually get someone appointed, and hedge against the possibility of whomever a possible Republican president appoints (which could be real scary---the phrase "Justice Roy Moore" is the sort of thing that nightmares are made of, at least if you hold political views like mine---but would Ted Cruz or Donald Trump go that far?  Maybe.)?

 

In that light, Justice Posner doesn't sound so bad after all (the words turn to ash on my tongue!), compared to some of the possible alternatives.  

 

(Unless, of course, he just wants to appoint a mild-mannered young constitutional law professor in a swing state. That could work too. Shucks, though, I just can't think of anyone who fits the bill there.)

Hello from Iowa! OR: Democracy, I am in it.

Hi everyone. It's good to be back! This month; I'll be blogging about my very shortly forthcoming book (The Rule of Law in the Real World, coming out from Cambridge on February 11. Buy! Buy!), constitutional things, jurisprudence things, data things...

But tonight, I'm in Iowa. So I'll be live-blogging the caucus, which officially starts in 10 minutes. I'm on the iPhone typepad interface, so I can't be responsible and break the post (it also looks like I can't put up photos? Later.) but you all really want to read about the cute and actually democratic-ish side of American politics.

So here goes some good-old-fashioned liveblogging. This might just be really boring: for example, it's 6:53 now, and I'm in a very, very long line (photo later) with my wife and several colleagues. If a blizzard hits and this massive crowd gets trapped, I intend to eat the republicans first (they eat more meat; they're probably tastier). But here's to hope that there are inspiring speeches, mass shifts, maybe even a runaway caucus that tries to nominate Elizabeth Warren or Julian Castro (my classmate!), or, you know, me or something. And no cannibalism.

In case you're curious, I'm caucusing for Hillary.

7:04. The massive Democrat line just passed one of the Republican rooms. It's almost empty. Iowa City! It almost feels like being back in California, except for the likelihood of a blizzard and cannibalism.

7:29. Still in line. Being stared at disapprovingly by the people behind us, probably thanks to the suggestion that we caucus for Martin O'Malley as a pity play. There's also a Hillary campaign worker reminding everyone of which precinct they need to be be in to stand in this line---sadly with no precinct map in hand, so I really have no clue if this is the right one.

7:37. The DMV screwed up my wife's registration. I kinda want to rush to find a judge for some last-minute litigation, in fine American democracy style, but it turns out she can register on the spot. Alas. Also, she's a Bernie supporter.

7:41. Got in the massive auditorium. Lost my spouse to the other side of the room, gained another colleague. The Bernie side of the room is probably about 50% bigger than the Hillary side at the moment---and the O'Malley corner is about 10 children.

7:46. They announced that there were 15 people who arrived too late, and that we needed to vote on whether they're to be allowed in. Being Midwestern college town liberals, you can probably guess the result.

Now they're calling the meeting to order, and the person doing so is nominating herself as permanent chair. Nobody can hear in this echoey junior high gym, so the result is yes by acclamation. I hope we haven't just accidentally crowned Donald Trump as King.

Solicitation for money. Can't tell what for. Echoes. The party, I'd guess. Or King Trump.

7:49. Apparently there are undecided people somewhere in here. Also, I accidentally tripped a child. Just like a Hillary supporter.

7:52. "[inaudible] [inaudible] unlike the Republicans [cheers]!" My second accidental child-tripping of the day. I wonder if Republican children are less runney-aroundey?

7:55. "Can you hear anything they're saying?" "No, I gave up." A metaphor for political polarization?

Also, the Bernie people are lots closer to the microphone, presumably they can hear better. Hmm... maybe I can find an insomniac judge who thinks that's a reason to throw out the likely result?

7:59. I cheer when all the other people around me cheer. Still hoping it's not for Trump.

8:01. Apparently there are 859 people in this room.

8:04. Chanting. Lots of chanting. Somehow the Hillary and Bernie camps have not yet decided on me as a compromise candidate.

8:08. There are numbered index cards we all have, but the actual tallying is (I think) being conducted by people counting one another by hand. Maybe? It's hard to tell. Democracy is confusing.

8:17. Someone on the ground team just dropped by to say they're counting now. Also "we're really close in numbers, nobody leave." Apparently we need 15% to get a delegate from the precinct, and we're at about 25% now? Clearly a Bernie district.

8:21. 538 says both parties are really close, within 3-4 percentage points right now. Of course, if they're all counting the way this room seems to be, I don't trust that very much...

8:22. Someone just announced about 10 minutes to get counts in. Still not clear who is doing the counting (or how they have an incentive to do it honestly, except I guess that they're Midwestern college town liberals? Also, I suppose if the total votes don't add up, that could get ugly.). Also 538 says that in the biggest Latino county in Iowa O'Malley is beating Sanders. (That's what happens when you make nativist remarks about immigration right at the start of the campaign, yo.

8:25. In 10 minutes they're going to "finish the first alignment," and then the groups that "may not be viable" get to realign. I think that's what that 15% number is.

Right now it's Hillary 259 people, Bernie 500-some people, and O'Malley... 17. Apparently the O'Malley people and the undecideds now get to go around talking to people, and everyone else has to stay put and look friendly and electable or something.

8:28 speaker is exhorting people from B and H camps to stick around "or you will lose people, and I will have to count again." M camp being exhorted to bloody well do something. H and B camps chanting at M camp. Not sure what the undecided people are doing or what exactly is supposed to be convincing them to do something.

8:30 we just accepted platform resolutions. I have no idea what's in them. Could still be King Trump.

8:36. Someone on the mic is talking about how "Iowa is the best place in the world to live," and she's been voting since 18, and other things. Is she campaigning for someone? Is that allowed? Can I get up there and talk? Dunno. They should print a rulebook. Is it Robert's Rules? Wait, I think she's the one in charge still. The one who had us vote on a bunch of things we couldn't hear.

All the people with press badges (handwritten) look like children. Undergrads? Am I old? Is that why I'm on the Hillary side?

8:39. They just announced 4 delegates for Hillary, 8 for Bernie. Is it over? I think it's over. People are leaving. Democracy is done for the night.

8:48. Aftermath. My wife is signing up to be a delegate. Someone has platform resolutions, is apparently not aware that they evidently passed. Also, I just got drafted to be a delegate too. I think I'm supposed to sign something.

9:01. Signed the thing. Going home. Democratic participation complete.

Postscript: word is O'Malley's already gone. Also, the Iowa City school we just finished caucusing in turns out to have a bunch of boxes with air filters supplied by "Iowa Prison Industries." Hope enough others in the roomful of liberals who just were here saw that, and care enough to put a stop to it with that whole democracy thing we just did.

The air of American democracy itself is supplied by prison labor.

Also, I should add that the two colleagues are also beloved friends, wonderful people, and unusually good-looking.

Photo supplement!

The republicans:

The democrats:

The prison labor:

Even Wiseguys Need Health Insurance

Goodbye to Vincent  Albert "Buddy"  Cianci, Jr. -- a man who, whatever you think of him, certainly left his mark on the City of Providence. I would say that he was a Providence original if I didn't recall that though he was born in Providence he was a true son of Cranston and then, only later, the Mayor of Providence.

My absolute favorite excerpts from the eventual trial transcripts of "Operation Plunder Dome" (essentially, a RICO tapes case) were the parts discussing the selling points of various "no-show" or "low-show" jobs distributed by then Mayor Cianci. Steven Antonson, a Cianci-appointed City of Providence Building Board member, wasn't quite lucky enough to get that no-show or low-show appointment, however. Apparently, then Mayor Cianci really wanted him to show at Building Board meetings involving Providence's University Club and to wholeheartedly oppose all University Club petitions for building variances necessary for a pending re-model unless and until Mayor Cianci was offered a free lifetime membership in the University Club. What made it pure Buddy Cianci was not the apparent extortion but the ironic twist that the chief value of free lifetime membership in Providence's University Club appears to have been as payback for a rejected Buddy Cianci membership application to the Providence University Club in the early 1970's, decades earlier.

My favorite part of Buddy Cianci's sell of the Building Board appointment was Mayor Cianci's schooling of Steven Antonson on why it would be a smart move to accept it: "Remember, I appoint people to this board. You get Blue Cross. You get a check. You always said safety was important. Well, this is it."

Yes, Steven Antonson was among several would be appointees who chased the Mayor of Providence relentlessly for health insurance. Even wiseguys need health insurance. Go figure.  Or, as they say on South Coast, "Go Figah."

Steven Antonson eventually wore a wire and proved to be a fertile source of Buddy Cianci stories, many more of which you might glean from Mike Stanton's 2003 book,  The Prince of Providence: The True Story of Buddy Cianci, America's Most Notorious Mayor, Some Wiseguys, and the Feds.

 

Is It TB That Ails Us?

Last week, the New York Times reported a tuberculosis outbreak in Marion Alabama so severe that TB incidence in Marion is now at a rate that exceeds TB incidence in much of the developing world. Marion is the county seat of Perry County and it is saying something when a city of roughly 3,600 people has had 20 cases of active TB diagnosed in the last two years alone, producing two TB related deaths.  Those who count TB infections do not typically  count latent infections -- relatively easily if time-consumingly treated -- though these have been documented in a further two dozen people.

Now, if there have been 20 active cases, the latent infection rate is likely much higher than that, but no one knows how much higher since screening for latent TB infection in the general population is not standard procedure in the United States. Why such screening for latent TB has not been pursued earlier in Alabama is a more difficult question. Long before the New York Times arrived on the scene, TB cases have been unusually high in Alabama. The number of tuberculosis cases increased in 2014 in  Alabama, but decreased nationwide. Across the nation, the number of new infections decreased by more than 2 percent. In 2014, there were 133 cases of tuberculosis in Alabama, compared to 108 the year before. The TB trajectory in Alabama has not been good for some time.

The reasons for this are hard to parse. As the New York Times points out, there is a tradition of limited access to health care in this low income rural community where lack of reliable transportation to health care venues looms as one of the chief causes of limited health care  access. Since the data shows that those with transportation -- disproportionately the insured -- use that transportation to leave the community for health care, leaving the uninsured lacking transportation to seek care locally,  it is no wonder 54 of Alabama's 55 rural counties have official shortages of primary care providers. After all, good payor mix in your patient panel is one of the ingredients to successful sustainable  practice.

A people who lack the resources and opportunity to access care have a limited culture of care. The disincentives to leave the community, even when able to do so, are complicated by a general distrust of health care providers, particularly among African American residents.  Ironically, a provider-patient relationship built on trust may be the scarcest health care resource of all in Marion. 

But the situation is more complicated than this even, since the conversion rate between latent TB infection and active (or manifest) TB infection is not evenly distributed among the TB exposed population. Drug users, alcoholics, and, in particular, those who are HIV positive are particularly at risk of TB exposure converting into active TB. Drug use, particularly use of   injectables like heroin, appears to have more than a toe hold in Marion. The Marion refrain "I don't want nobody knowing my business" in response to public health attempts at contact tracing for those with active TB may make more sense evaluated in light of access or lack thereof to drug treatment programs in Marion.

On the international stage, public health authorities struggle with the prevalence of active TB infection in injectable drug using and HIV positive  populations.  In the developing world, there is some evidence that financial incentives to promote screening and successful treatment, if required, have begun to make a dent in promoting the completion of TB treatment.  Interestingly, TB screening incentives are reported as now being offered to the entire Marion community and not exclusively to relatively high risk sub-populations such as the homeless or self-disclosed injectable drug users.

Is it that the United States Public Health Service and the Alabama State Department of Public Health as well as county public health officials  are unaware that broad screening incentives are not the norm?  Or, is it that in a community of a few thousand, the only way to screen at significant levels is to create an incentive for all to be screened in a de-stigmatized way? Whether it is folly or it is genius, only time will tell.  But if it is the syndemic of injectable drug use and TB or HIV and TB masquerading as an outbreak of TB alone that ails Marion, it will take far more than screening incentive payments and TB treatment incentive payments to right what is wrong with Marion -- emblematic of so much that is amiss in rural low income America.

 

 

What's a Hospitalist?

Thank you for the opportunity to guest blog here for the remainder of the month. I hope to blog here on all things health law, health care regulation, and health policy related.

 

Last week, I participated in a discussion of primary care provider supply on KCUR, Kansas City's local public radio affiliate.  I was pleased to participate and enjoyed the conversation with my fellow panelist, Dr. Michael Munger and with our host Gina Kaufman.  I suppose I was invited to participate because I just won't be quiet about primary care provider supply, medical school education, Kaiser Permanente's recent announcement of its decision to fix the broken pipeline of primary care providers representative of and responsive to communities with the greatest shortages by opening a proprietary medical school in southern California and on and on.

Today, I want to focus on a point made later in the radio program when listener call-in questions were fielded.  One self-described "older"  caller disparaged the rise of hospitalists and the use of hospitalists in places where they were previously unknown, including rural settings. Forgive me KCUR host Gina Kaufman, but the most interesting thing about the whole exchange with the call-in listener was that you did not seem to know who or what a hospitalist is until, apparently, you were guided to some understanding by someone in the studio.  I note this without dismay for two reasons.  First, unless and until you have experienced a hospitalization for something other than scheduled elective surgery or a planned normal birth, you may not have been introduced to the new normal: acute in-patient care delivered by a physician typically previously unknown to you, a provider often employed by the hospital itself, and a provider you are unlikely to ever encounter again outside of an acute care in-patient setting. Or, it could have been that the use of hospitalists in America's acute care in-patient facilities is so widespread that the term has become obsolete to lay people, though recognized inside baseball as the fastest growing medical specialty. Either way, the caller's point was that quality care should not be based on a system of strangers treating strangers. The easy answer to that is that electronic medical records will make us all strangers no more and that care by strangers is cost effective. 

Whatever you make of the alleged impersonalism of modern health care, the caller may have been on to something in noting that there is an ongoing problem with the hand off between hospitalist provided hospital based acute care and the ongoing treatment and monitoring of things like chronic disease required of community based medicine. Our hand offs are problematic. Less expensive care in the in-patient acute care setting under the hospitalist  combined  with the costs of poorly integrated transitions to community based care on discharge can lead to higher community care based expenses along with the cost of unnecessary human suffering pushed elsewhere.  So much of our health care system is financed and delivered under principles designed to push costs elsewhere in the system rather than acknowledge that poorly integrated care costs us all but costs some of us more than others.

So, whether you are in the "What's a hospitalist?" camp  or the  "You can see someone beside a hospitalist during an acute care admission?" camp, we all ought to be interested in valuing and prioritizing the hand off from acute in-patient care to community based care, where the real rubber meets the road. 

 

Go to a Different Blog

It's great to be here!

For my first post this month, I'm going to do something odd -- tell you to go to *different* blog.  (Hopefully Howard and the Prawfs gang won't take away my keys!)  That's right: today is Election Day, and the students in the University of Kentucky's Election Law Society are running an election analysis blog.  They'll be posting about election law issues that will arise during the vote casting and counting process -- for Kentucky elections and nationwide.  Every post is vetted by me first, so (hopefully) they are substantively sound.

So go vote -- and then hop on over to http://www.uky.edu/electionlaw for a jolly-good Election Day time!

Multiplying Loaves and Fishes: Why Congressional Debt-Ceiling Brinkmanship May Plunge Us into Economic Depression and How President Obama Can Save Us from Going Back to the Breadlines

The following post is by Jessica Berch and Chad DeVeaux (both of Concordia). They will be guest-blogging in December. But the timing of the new debt-ceiling debate made an early post appropriate.

The Gospels tell us that Jesus multiplied “five loaves and two fishes,” providing a bounty sufficient to feed 5,000 hungry souls. Apparently, House Republicans expect President Obama to perform a similar miracle. On November 3, the Treasury will exhaust its funds. If Congress does not raise the debt ceiling by that date, authorizing the Government to borrow money, the nation may face an unprecedented economic cataclysm. 

As New York Magazine’s Jonathan Chait has observed, only “the most ideologically hardened or borderline sociopath” would “weaponize the debt ceiling”; to do so, one “must be willing to inflict harm on millions of innocent people.” Bloomberg Business explained that a federal default would be orders of magnitude worse than the Great Recession of 2008: “The $12 trillion of outstanding Government debt is 23 times the $517 billion Lehman owed when it filed for bankruptcy on Sept. 15, 2008.”

Following up on earlier work, The Fourth Zone of Presidential Power, (Conn. L. Rev.), we are writing an article entitled Once More unto the (Fiscal) Breach, addressing the president’s options in this latest crisis. 

Federal statutes command the president to implement a myriad of programs and projects. Other laws instruct him to obtain the revenue necessary to subsidize these endeavors by collecting taxes and borrowing funds. The debt-ceiling statute caps the amount of money the Government can borrow at any particular time. Based on the level of revenue the Government is permitted to collect through taxation, basic arithmetic dictates that the president will need to borrow funds exceeding the debt limit to comply with Congress’s appropriation mandates.

If Congress does not raise the debt-ceiling by November 3, the president will face a no-win scenario that Professors Neil Buchanan and Michael Dorf have coined the “trilemma.” He will be forced to choose among three options. He may: (1) ignore the appropriations statutes and cancel spending programs; (2) employ the so-called “nuclear option”—disregard the debt ceiling and borrow sufficient funds to pay for Congress’s appropriations; or (3) unilaterally raise tax rates to produce sufficient revenue to fund Congress’s appropriations. Each of these choices violates an express statutory command.

And each of these choices is also implicitly authorized by the other commands. The power “to execute” a law “impl[ies] many subordinate and auxiliary powers,” including “all authorities essential to its due exercise.” Hamdan v. Rumsfeld, 548 U.S. 557, 591 (2006).

Professors Buchanan and Dorf argue that any choice the president makes will violate the Constitution “because he will have failed to execute at least one duly enacted law of the United States.”  As Professor Buchanan recently noted, “He has nothing but unconstitutional choices.”

We disagree.

The true test of the president’s options in the trilemma lies within the labyrinth of Justice Jackson’s seminal opinion in the Youngstown Steel Seizure Case. As the Supreme Court reaffirmed last June, “in considering claims of Presidential power this Court refers to Justice Jackson’s familiar tripartite framework . . . .” Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083 (2015). Evaluation of the president’s options in the impending standoff constitutes a paradigmatic question of the scope of presidential power.

In Youngstown, Justice Jackson asserted that “presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He offered his famous three-zone template to evaluate the scope of executive power.

In the first zone, “the president acts pursuant to . . . express or implied” congressional authorization. Endowed with such legislative approval, the president’s power “is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” In the second zone, “the president acts in absence of either a congressional grant or denial of authority.”  In this “zone of twilight,” Congress and the president possess authority that is either “concurrent” or “its distribution is uncertain.” Zone three involves situations where “the president takes measures incompatible with the express or implied will of Congress.” Here, “his power is at its lowest ebb, for . . . he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

At first blush, each of the president’s three options appears to fall into the third zone of Justice Jackson’s taxonomy. Short of multiplying loaves and fishes, every conceivable alternative—unilaterally cancelling federal programs, increasing taxation, or borrowing more money—stands in direct conflict with an express congressional command. Article I bestows the powers to “tax,” “spend,” and “borrow” exclusively upon Congress. Thus, such authority is far removed from those plenary powers that the president may wield irrespective of congressional will.  

Professor Lawrence Tribe echoed this reasoning, noting that “the president’s power drops . . . to its ‘lowest ebb’ when exercised against the express will of Congress.” So, “if the president could usurp the congressional power to borrow, what would stop him from taking over all [of Congress’s] other powers, as well?”

Again, we disagree. On closer examination, the standoffs do not fit within any of the zones identified by Justice Jackson.

Professors Tribe, Buchanan, and Dorf analyze each of the president’s options and Congress’s corresponding legislative commands in isolation. But this view ignores the more nuanced conception of presidential power implicit in Justice Jackson’s framework. As Jackson observed, “the actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context.” For this reason, the Court unanimously recognized in Dames & Moore v. Regan, that in applying Youngstown’s principles, when multiple statutes bear upon the president’s powers, the scope of his authority cannot be gleaned by looking at any single law in isolation, but from careful consideration of “the general tenor” of all of Congress’s commands viewed collectively.

Justice Jackson’s three zones contemplate coherent legislative action falling within “a spectrum running from explicit congressional authorization to explicit congressional prohibition.” Congress may sanction presidential action, it may be silent on the subject, or it may prohibit it. Congressional acts in conformity with any of these three coherent choices will affect the president’s powers accordingly. But in the impending trilemma, Congress’s acts—viewed collectively—present the president with a paradox. Congress has directed the president to take specified action and simultaneously forbade him from taking that very same action. Such contradictory legislative instructions cannot find a home anywhere within Youngstown’s existing taxonomy. As such, the present standoff requires the expansion of Youngstown’s spectrum to accommodate a previously uncontemplated fourth zone of presidential power. 

So what principles should apply in this new fourth zone of power?

Dames & Moore recognized that congressional action “evinc[ing] legislative intent to accord the president broad discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility.’” In cases falling within the traditional three-zone scheme, such legislative conduct is only considered “pertinent when the president’s action falls within the second [zone]—that is, when he ‘acts in absence of either a congressional grant or denial of authority.’” Medellín v. Texas, 552 U.S. 491, 528 (2008). This is so because when Congress commands the president to undertake (or refrain from undertaking) a particular action, the Constitution normally affords him no discretion. He “must confine himself to his executive duties—to obey and execute, not make the laws.”

But when Congress gives the president contradictory commands, the president cannot simply “obey and execute” Congress’s instructions; obeying one command necessarily requires disobeying another. For this reason, zone two’s invitation principle should be applied in the fourth zone of the Youngstown scheme. Contradictory legislative instructions, by their nature, implicitly “accord the president broad discretion.”

The president’s plenary power “to execute” a law promulgated by Congress “impl[ies] many subordinate and auxiliary powers,” including “all authorities essential to its due exercise.” And “it is a flawed and unreasonable construction” to read the Acts of Congress “in a manner that demands the impossible.” Thus, when Congress commands the president to complete a particular task but expressly denies him those powers “essential to its due exercise,” the only way to construe these conflicting legislative instructions in a manner that does not “demand[] the impossible” is to infer a congressional intent to “accord the president broad discretion”—to entrust him to make tradeoffs to best accommodate the conflicting mandates.

In the trilemma, the interaction between the debt-ceiling statute and the relevant taxing and spending laws render compliance with all three statutory mandates impossible. Congress commanded the president to complete a task—implement specified programs—but denied him the “authorities essential to its due exercise”—the power to acquire sufficient revenue to pay for the mandated expenditures.

Because statutes are not interpreted “in a manner that demands the impossible,” “the general tenor” of Congress’s commands, read collectively, inherently “‘invite’ ‘measures on independent presidential responsibility.’”

Since the president cannot fully comply with all of Congress’s commands, the statutory impasse invests the president with discretion to implement any of the three options addressed above. He may cancel federal programs to reduce spending, direct the Treasury to borrow funds in excess of the debt ceiling, or even order modest tax increases to satisfy the Government’s fiscal obligations. But he should not stand idly by and allow Congress to plunge us into a Global Economic Depression.

EPA Required to Muscle Out Invasive Zebra Mussels - Can it Be Done?

This Monday as I was preparing to teach my Tuesday Biodiversity seminar, in which we were to discuss invasive species, the Second Circuit issued an important Clean Water Act opinion. For years the EPA had been avoiding the significant challenge of dealing with invasive species routinely dumped into our nation's waters by cargo ships. When the ships load and unload their cargo, it is necessary to balance the weight of the ship by filling or emptying massive tanks of water within the vessel. This water (called ballast water) is typically drawn into the tanks in one location and expelled in another, carrying along numerous stowaway species ready to invade new territory. This practice has introduced many microscopic pathogens, but the poster child is undoubtedly the zebra mussel, which has taken over the great lakes ecosystem. In addition to causing ecological harm, the zebra mussels have cost hundreds of millions of dollars to the companies whose industrial water pipes have been clogged by the Asian mussels.

The Clean Water Act makes it unlawful to discharge a pollutant into the nation's waters without a permit. The EPA has no discretion to exempt categories of discharges from this permitting requirement, as the DC Circuit held way back in NRDC v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). More recently, in 2008, the Ninth Circuit struck down the EPA's attempt to exempt ballast water from the CWA requirements, in Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008), a case I had just happened to assign for this week's class. So, I was pleased in more ways than one to see the Second Circuit issue its opinion in NRDC v. EPA just 24 hours before our class met to discuss this very issue. Having failed in its attempt to exempt ballast water entirely from permitting requirements, EPA had generated a lenient Vessel General Permit, which the court this week struck down as a violation of the CWA. The permit failed to be strict enough both as to technological requirements for treating ballast water and as to limits on the invasive species discharged.

While exciting for environmentalists, this ruling will be quite challenging for the shipping industry. Many of the most cutting edge technologies for killing everything in ballast water tanks is easier to design into new ships than to add via retrofitting older ones. Of course, we have a very serious invasive species problem, so to address it, step one is obviously to stop introducing them. There is no question that this red light is incredibly valuable to the environment. What is less clear, though, is whether we can ever actually accomplish the underlying goal of such regulation, which would be to restore the ecosystem and stop the economic harm. In forcing the EPA to regulate ballast water, the Northwest Environmental Advocates Court noted that "[o]nce established, invasive species become almost impossible to remove," in part because they can become so successful absent their natural predators.

So this decision raises the important question of what's next. Assuming we can cut down on the continued delivery of invasive species into our waterways, will we maximize the value of that effort and sacrifice by also working to eradicate the massive population already present? Can we do this?

Should the Umpqua shooter's mother be liable?

Chris Harper-Mercer was 26 years old when he killed 9 people last week. He was a troubled young man living at home, who should not have had access to guns. And yet he had access to 14 of them. http://www.nytimes.com/2015/10/06/us/mother-of-oregon-gunman-wrote-of-keeping-firearms.html?_r=0

Chris lived with his mother, Laurel Harper. Laurel bragged about keeping fully loaded magazines for her AR-15 and AK-47 semiautomatic rifles in easy access in her house. Laurel also knew that Chris had emotional problems. Should Laurel, and other parents of mass shooters, be held liable for the actions of their adult children?

Professor Shaundra Lewis, (Thurgood Marshall School of Law), asks this question in her timely piece, The Cost of Raising a Killer--Parental Liability for the Parents of Adult Mass Murderers, 61 Villanova L. Rev. 1 (forthcoming 2015). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2669869 As she explains in her abstract:

[T]he shooter’s parents almost always knew their offspring were seriously mentally ill beforehand . . .  Despite knowing her son was severely mentally unstable, Nancy [Lanza] left her son home unsupervised with unfettered access to her arsenal of weapons while she went on vacation.  This provided her son with the perfect opportunity to make a practice run to Sandy Hook Elementary School, where he later used her firearms to shoot and kill kindergartners and first-graders.  

Using Nancy Lanza’s case and other notorious mass shooting cases as examples, this article [explores] if, and under what circumstances, a parent can be held civilly liable for their adult child’s mass shooting pursuant to general common law negligence jurisprudence [particularly] parental negligence law. [It first] address[es] whether there can be parental liability for parents of adult mass shooters based upon a special relationship under current law.  [Then it analyzes] negligence [doctrines] in general and its complexities, as well as explores whether a duty to protect or warn can be established in mass shooting cases.  [Next it] examines whether the parents in the real-life examples referenced above breached a duty to protect or warn [and] whether those parents’ breaches caused the shooting victims’ injuries or deaths.  [The Article] concludes that in some circumstances parents can, and should, be held liable for their misfeasance or nonfeasance that leads to their child’s mass killing.  It further posits that the . . . possibility of parents being subjected to financial liability for their child’s mass shooting will not only incentivize parents to take more aggressive measures to keep firearms out of their mentally unstable child’s hands but to obtain the mental health assistance their child so desperately needs—measures that in the end will make everyone (including their child) safer.  [The Article concludes with] advice to parents for dealing with significantly mentally ill, adult offspring residing in their home.   

Although I agree that financial liability would incentive parents to limit access to guns, I wonder whether it might also encourage parents to cut ties with their adult children precisely when they need the most support. Nonetheless, Lewis’s article shines a light on the sadly recurring question of whether parents should be responsible for the preventable actions of their adult children.

I’m Andy Kim, Assistant Professor at Concordia University School of Law. My own research focuses on criminal law and empirical analysis of the law. I’ll be guest blogging for the month. Hope you enjoy!

 

The Future of Housing

In February 2015 I participated in a fascinating conference at Washburn University School of law called "The Future of Housing: Equity, Stability, and Sustainability."  The conference covered three distinct but interrelated problems that our system of housing must face and overcome in the near future. (Articles from that symposium can be found here).  Since participating in that February conference, nearly every day I am struck anew by how vital it is that we as a nation craft effective solutions to housing challenges.

First, we are facing a crisis of de facto housing segregation and inequity in this country. Today, fifty years after the creation of HUD and 47 years after the passage of the Fair Housing Act, housing discrimination and the effects of racially-determined disparate policies regarding homeownership continue to plague our society. Current housing patterns are as equally segregated as they were back in 1968 when the Fair Housing Act was passed.  The New York Times reported on Sunday that "[e]conomic isolation is actually growing worse across the county, as more and more minority families find themselves trapped in high-poverty neighborhoods without decent housing, schools or jobs, and with few avenues of escape." As the article explains, housing disparity in this country came about not by accident but by deliberate design among all sectors of the housing market, private lenders, private property sellers, and - most disturbingly - the federal government agencies tasked with growing homeownership for the nation. The Federal Housing Administration very much served as an "architect" of segregation in the 1930s and 40s, conditioning mortgage funding on neighborhood racial homogeneity (and - even then - granting funding almost exclusively to white homebuyers). These policies were also reflected in other housing initiatives that shaped the landscape of housing today - in particular the GI bill that significantly grew homeownership in this country, but only for whites. Efforts to combat housing inequities today are hamstrung by a cumbersome "disparate impact" jurisprudence (see Professor Rigel Oliveri's article here) and the reality that it is harder to un-do a nation's housing patterns built on segregation than it would have been not to have the segregation-creating policies to begin with.  At least this summer the Supreme Court refrained from further limiting the scope of the Fair Housing Act in the Inclusive Communities case, but that alone is unlikely to lead to housing parity.

In addition to the continuing need to address housing inequity, our country still must re-establish (or establish for the first time, depending on your perspective), a stable residential mortgage market.  In the aftermath of the 2008-to-present Financial Crisis sparked by the 2007 subprime mortgage meltdown, much has been written and said about allocation of blame. To date, however, we still have an incomplete picture of how to solve systemic financial instability going forward. Professor David Reiss has made a recent, insightful contribution to the stability question in his recent article, Underwriting Sustainable Homeownership: The Federal Housing Administration and the Low Down Payment Loan, wherein he advocates that the Federal Housing Administration be preserved, but that its underwriting approach be significantly re-worked in order to create a more efficient and effective home finance system.

In addition to equity and stability issues, we must continue to bear in mind the challenge of housing sustainability. Volatile gas prices and disenchantment with suburbia (see here and here, for example) are now calling into question longstanding assumptions about zoning, neighborhood design, and community housing goals.  Automobile dependence, large-footprint houses, and suburban communities perhaps should become anachronisms as our housing policy modernizes and recognizes realities of sprawl, pollution, and suburban population de-connectedness (food for thought: see here and here).  

These challenges are not easily overcome. How can this country solve the problem of entrenched housing segregation patterns, particularly without problematic government mandate?  How can market volatility be eradicated when we continue to have financial institutions (both government sponsored and private) that today are not only "too big to fail," but are even BIGGER than ever before? And is it really possible to reconsider and possibly reverse patterns of development that are encouraged (or required) by legislation (from the local to the federal level) and enshrined in centuries of the common law? 

I leave you with these questions, in the hopes that together we can craft solutions and build a better future of housing.

I have so very much enjoyed this stint as a guest blogger at prawfsblawg. Thank you for this opportunity. And thanks to all of you who are working - in all the various important subject matter areas - toward positive developments for our law and our society.

 

When Political Correctness Was, Well, Correct

It's a pleasure to join PrawfsBlawg as a September guest blogger. I thought I would use my first entry to indulge my fascination with language, more specifically with Lawtalk -- words and expressions that have both legal and cultural significance. So let's talk about 'politically correct' and its strange reversal of meaning. It's hard to resist something so thoroughly in the news. (HT to my Lawtalk co-author James Clapp, who is a master of digging out historic uses of language and who wrote our book's discussion of 'politically correct').

These days, some politicians are throwing around the term 'politically correct' like dirty Kleenex. Donald Trump has probably gotten the most headlines that way: "I think the big problem this country has is being politically correct. I’ve been challenged by so many people and I don’t, frankly, have time for total political correctness. And to be honest with you, this country doesn’t have time, either." Thus he invokes fears of Mexican immigrant rapists, expresses disdain for "anchor babies," mimics broken English in discussing Asian business people, and makes so many horrifying remarks about women that I've lost count. Those who question his accuracy, his policies, or his choice of words are easily dismissed with that easy insult: they are just being politically correct. And so a charge that something is politically correct becomes a charge that it undesirable and untrue.  

It's not just politicians. Court cases reflect this dismissive use of the phrase by ordinary citizens.  For example, a California court tells the story of a doctor who, while performing surgery in the presence of an African-American nursing instructor, kept up a running commentary on race that included appalling remarks such as this: "You don't see 'no colored allowed' signs posted on doors anymore. I hate all this politically correct crap. People are afraid to tell the truth. . . . A pure white race, that's how it should be." [Williams v. Vartivarian, 2003 WL 361274].

But did you know that the phrase goes back at least to the founding generation, and was once a compliment? James Wilson -- a signer of the Declaration of Independence and SCOTUS Justice -- put the words together as early as 1793.  Arguing that the federal government derives its powers not from the states but from the people of all the states together, he bemoaned the sloppy use of language about the government:

Sentiments and expressions of this inaccurate kind prevail in our common, even in our convivial language.  Is a toast asked? "The United States" instead of the "People of the United States" is the toast given.  This is not politically correct. [Chisholm v. Georgia]

Wilson meant that the toast was not an accurate characterization of the government structure established by the Constitution.  'Correct,' or the alternative adjective 'right,' were also used to signal philosophical approval.  Thomas Jefferson happily predicted that graduates of his new University of Virginia would carry forth into government service "the correct principles of our day." The most influential use of 'politically right' appeared in a 1786 oration dedicated to Benjamin Franklin: "Nothing can be politically right that is morally wrong; and no necessity can ever sanctify a law, that is contrary to equity." (This quote was later much used by anti-slavery crusaders to counter the argument that slavery must be tolerated as a politically expedient tool to maintain national unity). Being politically correct, then, was a Good Thing.

In a century that saw political conformity enforced by the likes of Hitler and Stalin, the phrase 'politically correct' lost its identity as a straightforward compliment. In the 1970s, the term 'politically correct' reappeared in the United States as a kind of wry lingo within progressive groups seeking greater inclusion and recognition of women and African-Americans. Although useful in internal debates (meaning something like 'consistent with our political ideals'), it was often used with self-mocking humor.  In the 1980s, however, conservative politicians used this shorthand as a way to characterize the liberal positions as too dogmatic. By the 1990s, the media picked up the phrase, and opposition to 'political correctness' became the insult of choice for those who did not want to use inclusive language and did not want to reconsider the subjects or people taught in our schools. Any sense that 'correct' meant 'accurate' pretty much disappeared. [Scary experiment for today's pop-culture meaning: put "politically correct" into Google or Google Images, and see what you get.]

The reversal of meaning became particularly clear in the educational context in a statement by Lynne Cheney when she was chair of the National Endowment for the Humanities (when George H.W. Bush was President). The NEH commissioned a group of educators to devise national standards for teaching history, but when the draft was released Cheney hated them.  In a statement that would have puzzled both Jefferson (who used 'correct' to mean ideologically desirable) and Wilson (who used 'correct' to mean accurate), Cheney said, "I've received dozens of phone calls from people worried that the standards represent not only a politically correct version of history, but a version of history that's not true."

Here's my suggestion: let's lose "politically correct" from our collective vocabulary. It's a content-free insult, deflecting thoughtful debate -- a label that avoids both fact check and policy discussion. Let it go.

 

New Jersey’s Legislature Takes a “Grave” Misstep

Other than fellow “property law geeks,” not many people may wonder about property rights in cemeteries, but it is a surprisingly complex and varied topic about which I’ve pondered and about which Professor Tanya Marsh of Wake Forest has developed national expertise.  She has recently written the definitive casebook on cemetery law (co-authored by recent law school graduate Daniel Gibson), has launched a venture with the Urban Death Project to work for “ecologically beneficial meaningful death care” worldwide, and has recently been quoted in the national media with respect to death and internment issues.  Monday, in a short but completely compelling piece on Huffington Post, Professor Marsh took the New Jersey legislature to task for passing a law limiting churches’ ability to manufacture and sell tombstones, vaults, and private mausoleums.

As Professor Marsh clearly explains, creation and care for tombstones in church-owned and operated cemeteries is a religious practice. After all “rituals that mark the transition from life to death are a central part of most modern religions.” (I’d go even further and say that such rituals have always been a central part of all religions.)  But this new New Jersey law, Bill 3840, that was signed into law by Governor Chris Christie in March 2015, limits churches’ ability to fully participate in those rituals – even on their own land and on behalf of their own members. The law seems to be a blatant anti-competitive, special-interest-group spearheaded “win” by the Monument Builders of New Jersey, who agitated for government assistance to preserve their de facto monopoly on manufacturing graves, memorials and vaults.  Not only does this law serve no state interest at all – let alone a compelling one – it violates religious freedom in an essential and inexcusable way. Professor Marsh sums it up thus:

This law is an amazing act by the New Jersey legislature and governor. It was adopted at the behest of a group of private market participants for a reason no more noble than to protect themselves from competition. This blatantly anti-competitive effort is even more stunning because the product at issue–headstones and memorial tablets–are not regulated. No license is required to manufacture or sell them. Literally anyone in New Jersey can manufacture and sell tombstones, vaults, and private mausoleums–everyone, that is, except religious organizations and non-profit corporations that own or manage cemeteries.

Happily for those who care about justice and religious freedom and economic liberty, the Archdiosese of Newark, assisted by the Institute for Justice, have brought a lawsuit against the State of New Jersey, seeking to have the law struck down. There are several asserted grounds pursuant to which the court could invalidate the law, including violations of Due Process, Equal Protection, the Privileges and Immunities Clauses, and the Contracts Clause (Art. 1, Section 1) of the Constitution. 

Kids Today (or "I don't know about you, but I'm feeling 22")

Friends who are not law professors are under the mistaken impression that since I spend so much time with law students, I must feel young and hip. To the contrary, I find that each passing year highlights in clearer relief the true generation gap between the fresh new 1Ls and myself.  In case you too are wondering why it is sometimes hard to connect culturally to today’s “Millennial” students, here’s a little bit of info about the personal cultural context of a typical 1L, starting law school this month.  For sake of this fact-based hypothetical, we’ll call her the “reasonable law student” (RLS) and assume that she is 22 years old.

• World/National Events Context:
• Childhood: RLS was born in 1993, the year that Czechoslovakia broke apart, Ruth Bader Ginsburg was appointed to the Supreme Court, and Bill Clinton instituted a “don’t ask, don’t tell” policy for homosexuality in the military. When RLS was 2, her parents watched the OJ Simpson trial and the Oklahoma City bombing on TV.  RLS started kindergarten in 1998, just as the Clinton-Lewinsky scandal was winding down (and 4-year-old RLS had probably been kept in the dark about the finer points of Clinton’s “relations” with “that woman”).  RLS has no memory of any Y2K worries, since these were all proven to be for naught by the time she turned 7.  RLS may not have even noticed the terrorist attacks of September 11^th – after all, she was only 8 at the time.  Her parents may have lost a bundle from the Enron bankruptcy or the dotcom bubble/bust, but this happened when RLS was just 9. Gay marriage began to be legalized by states (starting with MA) when RLS was 11.
• Teenage Years: As a 15-year-old, RLS may have been vaguely aware of the Foreclosure/Financial Crises, and she likely remembers when Barack Obama was sworn in as President when she was 16.  Osama bin Laden was killed in 2011, the year that RLS graduated from high school. The Sandy Hook school shootings occurred while RLS was in college, in 2012.

• Technology: RLS has never known a world without full use of the Internet and cannot fathom life without click-of-a-button access to unlimited information (reliable and otherwise).  Thus, RLS never has had to dig hard and do tedious research to find out the answer to a nagging question (like, “Where have I seen that actor from Mr. Robot before?” Answer -- in case you were wondering -- is that I previously saw Rami Malek in both the movie Night at the Museum and in the TV series 24.  And, yes, I just took 10 seconds to look that up. You’re welcome.) What a lifetime of having instantaneous, effortless answers to one’s questions does to one’s approach to the study and research of law is a question open to debate.  (Discuss.)

With the Internet as their baseline reality, not only do RLS and her peers lack experience in spending significant time wondering about and questing after unknown facts, but they are also quite used to the public disclosure and discourse of private details of everyone’s life. They’re also used to enhanced government surveillance of its citizens, the Patriot Act, and invasive airport searches by TSA.  

RLS has a vocabulary and life experience that equates with being born in the Internet age, and she is adept at all sorts of social media.  She is used to everyone being available 24/7 and immediate responses to her calls, emails, and texts. RLS has always been able to shop online and have instant access to new software, music, and videos downloaded directly (so much for “shrinkwrap”). 

• Assumption of Risk? During RLS’s entire life, her parents and the state have mandated that she stay safe by being car-seated, buckled up, and helmeted on a bike.

• Negotiable Instruments? RLS doesn’t use cash or checks to make purchases. She has always used a plastic card (debit or credit) or her phone to pay for things (maybe she’s even experimented with digital currencies).

• Environmental Law? RLS grew up worrying about the environment and global warming. For RLS, there have always been hybrid cars, wind farms, and solar panels on buildings and in fields.

• Labor Law? For RLS, the only significant labor disputes have been professional sports-related.

• International Law? In RLS’s experience and memory:
  • Prisoners have always been housed at Guantanamo Bay.
  • There has never been Apartheid in South Africa.
  • The countries of the Soviet Union, Czechoslovakia, and Yugoslavia exist only in history books.
  • Hong Kong has always been part of China.
  • It was Pres. George W. Bush (not his father) who sent troops to Iraq.
  • The currency in Europe has always been the euro.

• Health Law? Cloning has always been a scientific reality.  AIDS has always been a problem, but HIV-positive hasn’t been an immediate death sentence (in the US, at least).  Adults have been debating the role that the government should have in providing public health insurance since her birth.

• Pop Culture Context: For RLS,
  • It has never been a big deal to see women kissing women and men kissing men on television.
  • The term “wardrobe malfunction” has been widely understood since RLS was 10.
  • Ellen and Oprah have always been first-name-only TV talk show hosts. 
  • Michael Jackson was an embattled recluse defending against accusations of molestation until he died (when RLS was 15)
  • The “Royal Wedding” was when Kate Middleton married Prince William (RLS probably watched this - when she was 18). 

RLS likely learned to read with the Harry Potter series, the first of which was published when she was 3 and the last when she was 14 (meaning she never had to wait to read the sequel and she may have even – gasp – seen the movies first!).  RLS probably spent her teenage years reading the Twilight series and The Hunger Games. As a teen, she listened to Taylor Swift, Adele, One Direction, Justin Bieber, Beyonce, Lady Gaga, Kanye West, and The Black Eyed Peas.

As for television show references, don’t bother talking about Seinfeld or Friends in class – those shows went off the air when RLS was age 4 and 10, respectively. Reality TV is her norm. For RLS, Survivor and American Idol have always been on TV.   If you’re seeking some common ground, remember that RLS likely has spent time watching one or more of these shows: Game of Thrones, Suits, Homeland, Scandal, CSI, Breaking Bad, Mad Men, Big Bang Theory, Modern Family, Parks & Recreation, Glee, Pretty Little Liars, Sherlock, and Downton Abbey – but of course, she was watching them in high school! 

Do you feel old yet?

Or are you “Feeling 22” too?

Marriage and Other Favored Unions

So we have a fundamental right to same-sex marriage. In the most obvious way, the Court’s holding was good: if the state is going to privilege a particular association (here, marriage), it should not discriminate against persons who try to take advantage of it. Fair enough. But in another way both the government’s favored treatment of marriage and especially the majority’s decidedly not-postmodern love letter to that particular form of association (Alito’s comment that the majority’s vision of liberty “has a distinctively postmodern meaning” notwithstanding) should give us cause for pause. There is another area where the state has favored a particular type of association over others: labor unions, which have been favored over other types of worker organizations. That preference has not worked out well for workers; we would do well to think more about whether the story of state preference for marriage will turn out the same.

 

Associations of Workers and the NLRA

Congress passed the National Labor Relations Act years ago and, with it, enacted a particular vision of what worker associations should be and how they should operate. That vision included both (1) exclusive representation[1] and (2) a commitment to the view that the interests of workers and employers are fundamentally opposed and antagonistic.  

At first the NLRA benefited workers (if rapidly increasing unionization rates are any indication), but over time that has largely ceased to be the case. The government restricted covered labor organization activity and the Act stifled the ability of covered workers to develop innovative forms of worker organizations that could better help them achieve their particular interest. One example of this stifling (and one that I discuss in a forthcoming article) comes out of the Act’s prohibition on company “support” of labor organizations. This ban has in turn dramatically limited the development of mutually beneficial collaborations between workers and companies looking to sell themselves to consumers as “conscious capitalists.” As a result of the Act’s narrow vision of appropriate worker organization, it is not surprising that innovative forms of worker organization (the Fair Food Council being just one example) have only occurred among workers who are not covered by the NLRA at all.  

 In short, when the government favors a particular vision of worker association – even with good intentions – it also frustrates experimentation with other forms – forms that may in fact be better for at least some workers.   

Associations of Individuals and Marriage

 Something similar might be said about marriage. Like the vision of worker organization demanded by the NLRA, marriage (including same-sex marriage) is but one of the many forms romantic and family associations can take. And like a traditional labor union, a traditional marriage (same-sex marriage included) will work better for some than others. The government, however, does much to encourage traditional marriage. Spousal privilege and military, social security, and immigration benefits being just a few examples. And these benefits, like all incentives, serve to promote marriage over non-matrimonial forms of romantic and family association. Those benefits alone might already have been enough to stifle experimentation with other forms. But the majority opinion in Obergefell, if its love letter to marriage is read and its views adopted, imposes an arguably different and more potent type of cost on would-be experimenters: stigma. As the majority sees it, marriage is of “transcendent importance” and “promise[es] nobility and dignity to all persons”. It is marriage that “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” Without it, “children suffer the stigma of knowing their families are somehow lesser.” (emphasis added). Given all this, a reader would think marriage the sole means by which we come to flourish in relationships – that families and romantic relations structured without it truly are lesser. On that view, failure to get on board with the institution really does deserve to be stigmatized.  

For those who think the Court’s substantive view on marriage’s importance right and the government’s subsequent promotion of it good, this all won’t seem bad. But for those who think the highest ideals of love and family might be better achieved – at least for them – through other forms of association, the majority’s reification of the centrality of marriage to the good life will strike them as yet another barrier to a future where those ideals can be realized. As with the story of worker associations, it might take us a long time to realize that the government’s “help” of our association of choice today won’t actually be so helpful tomorrow.

 

 

---

[1] A few argue exclusive representation was not required from the start but it certainly was treated as such soon afterward. Either way, my point is the same.  

Causation Anonymity in Group Police Misconduct: No Conviction, No Justice, No Peace

Here in Cleveland, tensions are running high as the City reacts to a judge's decision, following a bench trial, that Police Officer Michael Brelo is not guilty of voluntary manslaughter or the lesser-included offense of felonious assault in connection with the deaths of Timothy Russell and Melissa Williams. Russell and Williams were shot a total of 137 times by various police officers, including Brelo. Brelo himself fired 49 rounds and at one point climbed atop the victims' car to shoot them (15 shots) through the front windshield.

The judge carefully parsed the evidence on the manslaughter charges and concluded that both victims suffered multiple fatal wounds--some from Brelo, some from other officers--and that he therefore could not conclude beyond a reasonable doubt that Brelo's wounds were the but-for cause of the victims' deaths. Thus the not-guilty finding.

From a purely legal standpoint, the decision makes sense. Lawyers, with their technical training in the various elements of crimes and torts, understand that the State fails to meet its burden of proof if even one of the essential elements of a crime is in doubt.  

But the public doesn't think that way. The ordinary citizen understands the bigger picture. Two unarmed people were shot 137 times. They were African-American, the shooter white. Whatever the victims' conduct, and whatever deadly force may even have been warranted at some point to protect others, what is the possible justification for 137 shots?

More troublingly, if Brelo wasn't the "but-for" cause of their deaths, who was? We'll never know. The forensic evidence does not lend itself to anything but speculation in terms of the sequence of the bullet wounds and the likelihood that any one of them was the one that precipitated each victim's death.

And therein lies the rub. This decision paves the way for causation anonymity to immunize homicide, any time a group of police officers (or gang members or any other shooters) act together to end another human being's life. We can never know which bullet caused death. We therefore can never know which shooter caused death (at least from a legal standpoint). And we can never, therefore, punish the murderer.

Ironically, it would not have mattered in this case even if we could have pinpointed Brelo as the but-for cause. The judge also acquitted him of felonious assault, concluding that his actions were reasonable under the circumstances. Presumably, his ostensibly reasonable conduct would have served to exonerate him of voluntary manslaughter, even if the evidence established him as the instigator of the death-causing bullet. That finding, and not the missing evidence of causation, is probably the most-controversial aspect of this decision.

But causation anonymity could well matter in future cases. The law's devotion to technical minutiae is sometimes the enemy of justice. Wrongdoers now have a roadmap for how to act in concert in order to absolve each of them individually of legal responsibility for the most heinous of crimes.

Ultimately, then, I fear that justice will be, over time, the greatest victim of Brelo's conduct and its aftermath. And without justice, as the protesters (in Ferguson, in New York, in Baltimore, and now in Cleveland) remind us, there can be no peace.

Related articles

Cleveland Police Officer Found Not Guilty in Unarmed Couple's Shooting Deaths

Police officer cleared in Cleveland killing

Michael Brelo Acquittal Sparks Cleveland Protests Over Death of Unarmed Black Couple | Hinterland Gazette

Cleveland KKKop not guilty in killing unarmed pair, protesters gather. Why Is This Bitch Crying?

Cleveland officer found not guilty in shooting deaths of unarmed suspects

Brelo defense attorney reacts to not guilty verdicts

Judy Clarke, Dzhokhar Tsarnaev and the Discretion of Strategy

As the Alabama spring progresses towards summer, I naturally have continued to think about the State’s power, particularly in its exercise of discretion – what to investigate, which suspect to arrest, which cases to charge, which cases to prosecute and how.  As I was drafting a blog post last week, NPR informed me that Dzhokhar Tsarnaev’s jury had sentenced him to death. There has been a lot written and said about the prosecutor’s discretion in this case. Massachusetts after all has no state death penalty, so Tsarnaev was charged in federal court, where a death penalty was possible.  Prosecutorial discretion, in this case and more broadly, is both a fraught and a well-trod topic.  And deservedly so, but in this post I want to explore a different path – the discretion of the defense.

 Judy Clarke was Tsarnaev’s defense attorney and she chose what some characterized as a risky defense – she conceded his guilt in the hopes of saving his life.  Put another way, she named him a murderer in the hopes that the jury would be able to see something of him as a person beyond the horror he caused. In doing this Clarke did something that lawyers do everyday in all variety of cases – she made a decision of how best to defend her client.  Thinking of what I know of Judy Clarke, I have no doubt that she weighed her decision – the evidence against her client, the shock and tragedy of the event itself, the emotional weight of the trial – and discussed the defense with him.  At the end of the day, however, it was her decision to make as defense counsel and she exercised her discretion to create the best trial strategy she could. That it ultimately failed, that her client got the death penalty anyway, doesn’t change the reality that she did one of the hardest things lawyers do – she made strategic choices and she presented the case according to those choices.  I don’t know any trial lawyers who don’t second guess these choices, particularly after a loss, and likely Judy Clarke has her own doubts. 

What can and should professors do to prepare our students to make those choices.  And when I say preparing, I mean lots of different things. On the one hand, there’s the preparing that accompanies knowing enough about the law itself to understand what choices are available.  I suspect (hope) most law professors do a good job teaching students what the law is.  How to apply the law is a trickier proposition.  It’s one thing to memorize a holding, it’s another thing to decide whether or not that holding applies to your case or even ought to apply to your case.  Beyond this, there are the more amorphous decisions of strategy and the emotional baggage that accompanies decision-making.  I wonder whether these can be taught at all by anyone (or anything) other than experience. 

In my own classes I use role play and “exercises” to try to get students to think beyond the inevitable exam at the end of the semester and to think of the “case” in real terms (even as they play pretend roles), but I have often wondered if all I have taught in the process is how I would strategize a case.  As for the sense of loss I always felt when I knew I had chosen badly (or when the best choice was still a bad one as I suspect was the case with Tsarnaev’s), nothing ever prepared me for that.  I could anticipate it.  I could rationalize it.  But I couldn’t ever quite be ready for the knowledge that I had made decisions that contributed to the conviction and punishment of my client.  So I wonder how I, and others, can teach that? I can talk to my students about the practicalities of being a lawyer and embarking on a profession in which we all wield at least some tendril of power we lacked before those three letters, esq., were placed after our names, and I do.  But in the end, I think discretion remains that double-edged sword that we all have yet to master the perfect instruction on its use.  And so I think some of the best “teaching moments” I have had with regard to discretion have come years after my students left my class, when they email or call or sometimes even text to say “I have a hard decision to make, do you have a moment to talk?”

Judy Clarke was not my student.  She never called me to talk.  But from what I can tell, she did a great job with a hard, hard case.  In the end, the jury found her argument unpersuasive and sentenced her client to death.  There were thousands of events that led up to that moment, most of which pre-dated Judy Clarke’s work on the case, but in the end I wonder if there is some small part (or maybe large part) of her that wonders what if I had done it just a little differently.  We can all say it wasn’t ever about Judy Clarke or her choices; the case was always about the client and the victims and the law. But that would not be completely true, and it would shove back into some dark corner one of the hardest parts of being a lawyer – making the decisions that constitute advocacy.

 

Bill Simmons and the Duty of Loyalty

ESPN rather publicly announced that it would not be renewing its contract with Bill Simmons, editor-in-chief of its sports and entertainment site Grantland, as well as writer, author, and co-producer of the "30 for 30" sports documentary series.  A lot has been written about the inside details, as well as the larger ramifications for Simmons, Grantland, and sports and entertainment media more generally.  There's also some interesting IP issues -- could ESPN really appoint another host for the "B.S. Report"?  But I'd like to talk about the next four months, in which Simmons is still with ESPN but is essentially a lame duck.  What does employment law say about this awkward interim period?

Having been publicly cut off at the knees by his current company, Simmons will want to focus on his next gig.  But the law may restrict his ability to do so.  Most jurisdictions have recognized that employees owe employers a duty of loyalty.  The contours of this duty are somewhat vague.  At the very least, the duty would prevent Simmons from working for a competitor while he is still under contract with ESPN.  But let's say he agrees to start working for, say, Fox Sports beginning the day after his ESPN contract ends.  Can he tweet out his new employer?  Can he use his ESPN column or podcast to mention his new gig or even promote it?  Can he ask Grantland employees to join him at his new place?  

The duty of loyalty has been generally recognized as prohibiting an employee from using her current employment to solicit for her  future employer.  Employees are also prohibited from disclosing trade secrets to their future employers.  On the other hand, employees are generally allowed to "prepare" to compete by talking with other employers and agreeing to future employment.  The murkiest area involves one's current fellow employees.  Can Simmons solicit Grantland employees for his new venture?  Some courts have found it disloyal for current employees to persuade other employees to break their contracts with the employer.  It doesn't help that Simmons is editor-in-chief, as courts have held supervisory employees to a higher standard.  However, courts have also focused on surprise as particularly problematic, as when a large group of employees suddenly up and leaves with no notice.  ESPN has plenty of notice that Simmons is leaving and may want to take some of his hires with him.  And although not officially a legal factor, the fact that Simmons is being fired (in some sense) will make his efforts to rebound more sympathetic.

Simmons's last days at ESPN could resemble the tenure of another media celebrity in the wake of a high-profile move.  In 2004, Howard Stern announced his upcoming move from CBS Radio to Sirius Radio with great fanfare.  He used his CBS show to make the announcement.  And he proceeded to use the show to bash CBS for its efforts to censor him, and to promote his Sirius move.  In 2006, CBS Radio sued Stern over his promotion efforts for his new show.  CBS claimed that Stern has used his airtime at CBS to promote Sirius and had engaged in other promotional efforts off the job but while still employed.  It asked for $218 million in damages -- the stock compensation Stern received from Sirius based on the huge jump in Sirius subscriptions in the wake of Stern's announcement.  This request for the disgorgement of the compensation Stern received from Sirius is a traditional remedy for the violation of the duty of loyalty.  The disloyal agent is expected to disgorge back to the principal any ill-gotten gains received in the course of the agency relationship.  Reviewing the claims, Stephen Bainbridge concluded that Stern had likely violated the duty of loyalty with his on-the-job solicitations for Sirius.  Ultimately, CBS and Stern settled the suit for an undisclosed amount.

Conan O'Brien's relationship with his employers at NBC was similarly contentious at the end.  When told NBC was moving the Tonight Show to midnight, O'Brien balked, arguing that the Tonight Show could only start at 11:35 after the local news.  He then spent two weeks trashing his employers on the NBC airwaves.  He even had a running segment where he frittered away NBC's money on expensive cars and licensing rights.  The big difference -- O'Brien was tussling with NBC over his contractual rights, and ultimately the two sides settled with Conan's departure.  He had no future show o promote while still at NBC, and in fact his settlement forced him off the air and into radio silence for six months.

Simmons may be tempted to spend his last few months settling the family business -- trashing ESPN, raiding Grantland of its best writers, and setting up shop at his new home.  And legally, he would have a decent case for doing all these things -- although not one without risk.  What seems clear, however, is that he cannot use ESPN properties to promote his new media home while still an employee.  I would expect instead that word of the new location gets out through the media, coming from everywhere but Simmons himself.  

One final note -- I'm assuming that Simmons's contract does not speak specifically to these matters.  He may have a non-compete that kicks in after the contract's expiration, although that seems unlikely.  And if he starts trashing ESPN or the NFL commissioner, ESPN may end up suspending him again or simply firing him before his contract expires.

Same-Sex Marriage: The (Ted) Kennedy Legacy

The odds-makers are generally in agreement that the deciding vote in Obergefell v. Hodges will be Justice Kennedy. While some have speculated that Chief Justice Roberts will find a way to join in a majority judgment (if not majority opinion) recognizing a Constitutional right to same-sex marriage, the more-prevalent view is that the liberal-conservative stalwarts on the Court will split 4-4 and that Kennedy will cast the decisive fifth vote one way or the other.  If he sides with the proponents of same-sex marriage, the winners will have another Kennedy to thank, albeit posthumously, for that result:  Senator Ted Kennedy.

The narrative goes like this:

 

In 1987, Justice Lewis Powell retired, leaving President Ronald Reagan his third Supreme Court vacancy to fill.   (The first occurred when Potter Stewart retired, and President Reagan appointed Sandra Day O'Connor.  The second occurred when Chief Justice Warren Burger retired, and President Reagan elevated William Rehnquist to the Chief Justice seat and appointed Antonin Scalia to fill the vacancy.) Reagan nominated Judge Robert Bork of the D.C. Circuit, leading to the infamous confirmation hearing that ended with a Senate vote rejecting Bork, 58-42.

Bork’s greatest and first nemesis in that nomination process was Senator Kennedy, who took to the Senate floor and urged that “Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.”

Notably absent from that floor speech was any notion of rights for gays and lesbians. Remember, this was 1987.  Bowers v. Hardwick, the 1986 case that permitted states to criminalize sexual conduct between members of the same sex, was fresh law (and remained on the books until 2002, when Justice Kennedy wrote the decision in Lawrence v. Texas that overturned it).

Kennedy's speech galvanized the Senate, and the nation. Vice-President Joe Biden, then a senator and chair of the Judiciary Committee, had his own field day during the committee hearings. I was a fresh-faced first-year law student, and the protests on my law-school campus made indelible impressions on me. When Bork was ultimately defeated, we knew we had won. We didn't quite know what we had won, but we knew we had won something.

President Reagan next nominated Douglas Ginsburg to fill Powell's spot, but Ginsburg withdrew after reports surfaced that he had used marijuana. (Remember, it was 1987.) So Reagan turned to Anthony Kennedy. And here we are today.

Bork died in 2012. Had he won confirmation and remained on the Court until his death, President Obama would have been in office at the time of the vacancy. Given the likelihood that Obama would have appointed a justice favorably disposed to same-sex-marriage rights, some might say that blocking the Bork nomination had no ultimate impact on this issue. But it’s important to remember that Obergefell did not materialize out of thin air. It comes following years of development of legal protections for gay, lesbian, and bisexual people:  (1) the Kennedy opinion in Romer v. Evans, which in 1995 struck down a state constitutional provision banning anti-discrimination laws protecting gays, lesbians, and bisexuals; (2) the 2002 Kennedy opinion in Lawrence; and (3) the 2013 Kennedy opinion in United States v. Windsor, overturning a portion of the Defense of Marriage Act. 

So some credit is due to Senator Kennedy, arguably responsible (at least in part) for the ultimate nomination of Justice Kennedy. And that Kennedy-Kennedy legacy may end up making a bigger mark on history when the Court announces the Obergefell decision at the end of June.

Tsarnaev and Juvenile Brain Development

Despite promises in yesterday’s post that I would talk more about discretion in criminal law, a report this morning in the Boston Globe prompts today’s post on a completely different, though equally close-to-my-heart topic:  juvenile brain development and criminal culpability.  Yesterday, defense counsel for Boston Marathon bomber Dzhokhar Tsarnaev presented testimony essentially arguing that Tsarnaev’s punishment should be mitigated because he was young.  Arguments for mercy based on the youth of the offender are hardly novel, but Tsarnaev’s defense counsel based their argument on the neuroscience of youth – particularly the impact brain development has on decision making and appreciation of long term consequences suggested decreased culpability.  Yesterday the jurors in the Tsarnaev case heard testimony from Dr. Jay Geidd, a professor at the University of California San Diego and a child psychiatrist.  According to the article, Geidd testified: “Teens are more likely to choose smaller, sooner rewards” and are “less worried for long-term consequences.”  

Geidd’s testimony is consistent with what every parent of a teenager knows and what many in the juvenile defense community (myself included) have argued for a long time – adolescents are fundamentally different than adults and criminal law should recognize this fact.  Tsarnaev’s defense counsel is making this point in the context of sentencing – a context the Supreme Court itself has repeatedly endorsed as of late (see Roper, Graham, and Miller, all restricting or prohibiting the application of forms of severe punishment to adolescent offenders based on their immaturity). But many, again myself included, have argued that neuroscience should inform substantive criminal law as well.  In my forthcoming article, Brain Science and the Theory of Juvenile Mens Rea, I argue that what is known about adolescent decisionmaking is relevant to calculations of mens rea – the state of mind element – required in all but strict liability offenses, as well as for many defenses (think self-defense for example).

One of the issues that frequently arises in this context was highlighted by the Government’s cross examination in the Tsarnaev case – even with all we know about brain development generally, how do we calibrate it’s effect on any particular defendant?  Put another way, is development, and its effect on adolescents, uniform?  When asked this question, Geidd responded no – that many factors, including variation in development rates and environmental factors, can influence brain maturation and decision making.  But what was lost in the reporting of Geidd’s response was what neuroscience studies seem to confirm: that even within these degrees of uncertainty and variance, the adolescent brain is not as developed as the adult brain and the adolescent decisionmaking process is different than the adult decisionmaking process.

You can raise all sorts of questions about where this effect fits into the hard decisions that jurors must make, whether in the context of a guilt or a sentencing phase. But what seems clear to me is that this evidence must be presented to those jurors if we are, as we claim we are, seeking to hold defendants accountable, and later to punish them, based on their corresponding level of culpability.

 

Questioning the Law School Debt Narrative

Given the strong feelings that discussions about the value of legal education triggers, I have been reluctant to blog about the so-called law school scam.  But a story about a recent law school grad and his debt that is making rounds in the national media has me truly puzzled.  This story, which has been picked up by the New York Times, among others, reports about a 2010 graduate from Ohio State’s law school who graduated with $328,000 in student debt.  As someone who financed her own education through a combination of student loans, work study, and other financial aid, I am puzzled how this individual accumulated so much debt.

A quick search of Ohio State’s webpage tells me that an out-of-state student should expect tuition and other expenses to total just under $65K a year, and so three years of law school education and other expenses should result in approximately $195,000 in debt.  Yet media outlets are repeating this $328,000 number without questioning why a student would incurred an amount of educational debt that is so much higher than the cost of attending law school for three years.  The New York Times, for example, reports that this particular law school graduate’s $328,000 debt “includes some undergraduate loans,” yet the story is clearly focused on the high cost of legal education.  But, in light of the information that is readily available from Ohio State, one presumes that this student’s debt from law school should make up no more than 60% of this overall educational debt.

Don’t get me wrong, legal education is expensive.  At many schools it is probably more expensive than it needs to be.  And I can’t imagine how devastating it must be to incur significant debt to obtain a law degree, and then find yourself unable to obtain employment as a lawyer.  But I really wish that the media’s reporting on this issue were more nuanced.  Many reporters seem so devoted to the narrative that legal education is not worth the sticker price, that their reporting on this issue no longer seems objective.