PrawfsBlawg

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.

A Belated Eulogy, Of Sorts

Before I begin blogging in earnest, I would be remiss if I didn’t say something about Dan, given that I haven’t blogged here since before his death almost two years ago.  I am a little hesitant to offer any kind of eulogy, not just because it is so late in the day but also because I’m not sure I can say anything about Dan that hasn’t been said before, with much more eloquence than I can muster.  In addition, I didn’t know Dan as well as some did.  I had met him only a handful of times IRL (as the kids say), including being on a panel with him about five summers ago.  Nonetheless, the magic of the internet – blogging and Facebook – gave me the illusion that I knew him better than I actually did, and I knew him well enough to be utterly shaken to the bone upon hearing of his death.  In any event, I don’t think anyone will mind if I add a few thoughts.

Something that surprised me in the days and weeks following that awful day was the realization that Dan was both younger than I and had entered academia a year after I had.  He was one of those people who was such a mainstay of legal academia, and seemed to fit there so well, that he seemed to have always been there.  Most of us need our first few years to get our feet wet and figure out what we are doing before we truly become engaged with others in the academic world.  Dan seemed to hit the ground running and I find that truly remarkable.

The second thing I wanted to talk about was the subtle influence Dan has had on me in my role as Associate Dean for Faculty Development at my school, a role I took on just after Dan died.  In that kind of role, one has to strike a good balance between being a critic and being a cheerleader:  be too much of a critic and people will shut down and not listen; be too much of a cheerleader and you’re not helping people improve.  I feel like Dan struck that balance quite well.  He had a way, at least in my limited experience with him, of cutting to the heart of things and exposing the flaws in your work, but doing it in such a way that you could still feel good about your work and yourself, and you had a desire to improve it.  I am still struggling to emulate him in that way.

My thoughts these days are about Dan, not just because I am blogging here again, and not just because of the recent breaks in his case, but because we are only a few days away from CrimFest!, the conference that Dan created with Carissa Hessick.  For several years, it had been a shadow conference within the Law & Society Association conference, but Dan and Carissa decided in 2014 to establish it as a standalone conference.  I don’t know how many people realize this, but Dan died the day before CrimFest! 2014 was supposed to start.  Instead of looking forward to seeing him and our other colleagues in the criminal law/procedure/justice world, we were exchanging e-mails about whether the conference should go on at all.  It did go on and that was one awful plane ride.  I felt as if I were headed to a funeral, not an academic conference.  My mantra the whole way was:  “This is going to suck.”  And you know what?  It didn’t suck.  There was a hastily but beautifully prepared memorial for Dan during lunch the first full day of the conference and many tears were shed.  Some people offered brief memories of Dan as they began their presentations.  But the conference went on as planned because (and I know it is cliché but it is also true) that was the best way of honoring him.

CrimFest! 2016 – those who knew him better than I have said that Dan would insist on the exclamation point – begins this coming Sunday.  CrimFest! has become a mainstay of the academic world for us criminal law/procedure/justice folks, and it has become the highlight of my year from a professional standpoint.  I hope it will be with us for years and decades to come, and I believe it will.  The two-day exchange of ideas, both formal and informal; the camaraderie of a cohort who all speak the same language; the warmth of catching up with old friends and the welcoming of new faces into the club; and, of course, the socializing, whether over bagels or beer – it’s all so . . . Dan.

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.

 

Leaving Prawfs

Today is the 10th anniversary of my first post on Prawfs.  I started the day after the Harriet Miers nomination -- the nomination that launched the blawgosphere.  I was only a guest blogger, but then this happened, and Dan invited me to stay on permanently.  It has been a wonderful experience.  I cannot imagine where I would be right now in my career without Dan and Prawfs.  Blogging here enabled me to be a part of the national conversation with other scholars (and future FTC commissioners) on the controversies of the day.  It got me to meet (and cyber-meet) a lot of really interesting law profs through book clubs, the Research Canons Project, open-source casebook conversations, everyday blogging, and the Prawfs (& cosponsors) Happy Hours that Dan masterminded.  I never made a PrawfsFest!, which I really regret, but as part of the Prawfs community I met a lot more folks than I ever would have met otherwise in the academy.

The last few years have been tough for law students, law schools, and law profs.  And the last year has been particularly hard as we continue to mourn Dan's absence.  The Prawfs community has stayed strong in Dan's memory, and I know the site will continue to offer a place for "raw profs" young and old to meet, greet, tell us a little about themselves and their work, and make connections with the national community.

It is with sadness, then, that I tell you that I am leaving PrawfsBlawg.  I will be joining the Conglomerate to do more blogging on corporate and employment law issues.  I haven't done much blogging in the past year, and I haven't done much subject-area blogging in much longer than that.  And I've probably done too much blogging about law schools and the issues they face.  If you're interested in some of my bigger picture perspectives, you can check out "Funding Legal Scholarship" and "Law Students and Legal Scholarship," both of which started as blog posts here.  (And I continue to think that AALS should be a bigger player here, even in the face of Dean Rodriguez's naysaying.)

So this is a goodbye -- at least in my capacity as "perma-prawf."  I look forward to Prawfs sticking around for at least a few more decades, serving as a place for folks in the law school universe to share ideas, concerns, and sentiments.  And I look forward to participating in that community.  Thanks to everyone here for their hard work and generosity of spirit.  And one more "thanks" to you, Dan -- you are the root for all that has followed.

Introduction and Dedication

Hello Prawfs! It is already August 12, and I am posting my first post to Prawfs this month. For that, I apologize. But I will make up for it in the coming weeks.

First, some introductions. My name is Ari Ezra Waldman. I'm on the faculty at New York Law School, where, in addition to teaching intellectual property, internet law, privacy, and torts, I run our academic center focused on law, technology, and society. My research and writing focus on privacy, the bridge between privacy and intellectual property, and cyberharassment. You can find some of my publications on SSRN, although I have a handful in the works or under submission at the moment. More on that later. My partner and I are the human parents to a wonderful dog named Scholar. She's a dachshund-beagle mix.

Second, I would like to dedicate all my posts this month to Dan. I didn't know Dan as well as some others, but in the short time I knew him, he was a friend and mentor.

Now on to substance. In my short time at Prawfs, I would like to use several posts to talk about teaching and some other posts to tell one story, hoping to flesh out ideas about an ongoing project about information diffusion, privacy, and intellectual property. I start with identifying a theoretical problem.

In an important and oft-cited essay, Professor Jonathan Zittrain came to the profound conclusion that intellectual property owners and personal data owners want the same thing: “control over information.” That control was being eroded by the early internet: “perfect, cheap, anonymous, and quick copying of data” endangered copyright owners’ ability to control dissemination of their content and threatened to make private personal data a market commodity. Using the illustrative case studies of copyrighted music and patient health data, Zittrain suggested that privacy advocates could learn from content owners’ use technological systems that prevented the unlawful mass distribution of copyrighted data.

Professor Zittrain’s view that copyright owners and patients both shared the same fear of loss of control over data makes a great deal of sense: it appeals to an intuitive and dominant understanding of privacy as control over information and reflects centuries of legal thought, from British common law to Samuel Warren’s and Louis Brandeis’s groundbreaking article, The Right to Privacy, that saw the overlap between privacy and intellectual property. But recognizing that the fields share the same “deep problem” of loss of control is only a first step. We all want to maintain control over the dissemination of our data, whether it’s Taylor Swift removing her music from Spotify or internet users opting out of the use of cookies. But musicians also want many people to buy and listen to their songs, and individuals need at least some other people to have access to their data. Loss of control and, thus, loss of legal protection, has to happen sometime later, after some other publicity trigger. This suggests that the word “control” does not fully capture the problem; rather, it is about the social process that transforms information from under control to out of control.

This correlative inquiry is important. Control is an empty concept without knowing what it means to lose it, and the conceptual vacuum has contributed to haphazard and, at times, harsh, unjust results. Often, courts conclude that personal information and intellectual property is out of an individual’s control if even just a few other people know or have access to it. At other times, decisions are more nuanced. But they all ask the same question: When is information, already known by some, sufficiently out of the owner’s control such that it can be deemed public? Conceptualizing the problem of privacy and intellectual property merely as loss of control does not give us the tools to answer this question.

In subsequent posts, I will lay out a proposed answer to this second inquiry. In short, I argue that loss/retention of control has everything to do with information diffusion, social networks, and trust. 

 

Remembering Dan

I distinctly remember beginning my work day a year ago and coming across the news of Dan's death.  I was in complete shock.  As so many people have attested to since Dan's death, he was larger than life. Every time I saw Dan, he always had a million pieces of advice, and was overflowing with life.  This was even more unique for me because I actually hadn't spent much time with Dan.  Only a brief encounter with him was enough to make him a part of your life somehow.  After he was gone, I realized that everyone had this experience with him.  He was just so full of life that I can't believe it has been a year since he has been gone.  It seemed only fitting to remember him on this blog, and hope that his two boys grow up thriving as he would have wanted. 

Recommending Highly The Black Box Society by Professor Frank Pasquale

This is my last post for this stint (my third) on Prawfsblawg and I want to thank again for inviting me Howard Wasserman and the others who are doing the work of keeping going what Dan Markel, ZT”L started.

I also wanted to share a very interesting, well-written and important book that I’ve been reading this month by PrawfsBlawg alumni @frankpasquale called The Black Box Society: The Secret Algorithms that Control Money and Information.  (Amazon).   Professor Pasquale is a professor at the University of Maryland Francis King Carey School of Law School of Law.  In this book, Frank explains in clear, non-technical English what exactly is going on behind the internet technology we use every day.   He explains how the sites we access on the internet are not just collecting information from us, but are selling it to others who are using that information in shaping the information we get back.    So, and this among the more benign points, what you get when you run a Google (or other) search is probably very different than what I would.  Google is not an automated index nor is a database like Lexis or Westlaw.  Moreover, the information collected isn’t just shaping the advertisements we see on the screen, it’s controlling our access to jobs, credit, insurance, security clearances, and housing.   As he explains, “you can’t form a trusting relationship with a black box.”

What makes the book of special interest to law professors is that it doesn’t just present the issue, it addresses the lack of legal restraints in the United States to regulate (or even monitor) the information private companies collect and the ways they use it.  Frank makes a strong case, as he has in his scholarship, for the role of regulation not just in promoting transparency, but in regulating behavior.  As he explains, “If credit scores can be regulated, why not the scoring systems used by digital advertisers and employers?” 

Whether we directly use the internet to apply for credit, insurance or jobs, those offering these things to us have full access to extensive data about what we like, what we do, and how we are likely to behave.  For example, they know  whether we are willing to pay above market price for convenience.   We are, he tells us, voluntarily opening our entire lives to commercial organizations who not only lack any obligation to keep our confidences, whose business model is to package and sell them.   

While we were worrying about the government listening to our phone calls, we didn’t notice that “the state’s immense powers of compulsion and enforcement can now be enlisted in support of the black box technologies of the search, reputation, and finance sectors.”

 

I commend the book to you highly, as well as his NY Times Op-Ed overview but in the event you need more convincing, please see what others have said in Science, The New Republic, Slate,  and The New York Times.

Returning to Prawfs and Remembering Dan

I'm excited to be guest-blogging again at Prawfs.  Like many have expressed over the past few months, guest blogging this time around is far more personal after the Dan's tragic death over the summer.  Since then, I find myself thinking about--and quoting--Dan often; I share his advice with students and colleagues alike.  And participating in the community that Dan created is a reminder of the extraordinary world he created--of which many of us are the beneficiaries.  

So with that, I look forward to another month here at Prawfs.  I plan to spend much of my stint here talking about my favorite topic--the intersection of religion and private law.  So here comes a month of religious contracts, religious torts and religious arbitration.  Looking forward to comments!  

Signing Off

As I wrap up my stint on PrawfsBlawg, I’m grateful for having had the opportunity to share my ideas with a very thoughtful readership. And as I continue to read the insightful posts of PrawfsBlawg’s many terrific contributors, I am grateful for the daily reminders of Dan Markel’s exceptional legacy as a legal scholar.

Quack

Over the summer, my friend Dan Markel invited me to be a guest at this blog. I was one of probably hundreds who received that twice-yearly call for guest bloggers. Yet another exmaple of how many people floated in Danny's orbit. It had been years since I blogged, but I decided to respond to the request this time because I wanted to write a little about Catalanello v. Kramer, a defamation lawsuit in which I served, grudgingly, as the defendant. Current guest blogger Geoffrey Rapp blogged about the case back in April of 2013.

I do have thoughts on the case--what was at stake, what I learned from the process, how I came to love the concept academic freedom--and maybe I'll get to them while I'm here this month. But it feels wrong not to say something about Danny first.

Danny was one of my first friends in the academy. We met on the tennis courts at SEALS, and Danny absorbed me into his life immediately. He introduced me to people, invited me to conferences, demanded to read my work, shared my work with others, and called me regularly to check in. He was relentless. In a significant sense, he taught me how to be a good law professor. Not good in terms of the quality of my teaching and writing--though I'm confident he helped me become a better writer and reader--but in terms of our obligations to the community. Mentorship is the lifeblood of the legal academy. Academic life can be a solitary existence. My phone doesn't ring that often. If I want to, I can spend the workday all by myself, holed up in my office, not responding to knocks at the door.

But I don't. Because that's not how you do the job. We are at our best when we treat this job like a collective enterprise. Give as much as you take, and make time for the community. That is how Danny did the job. And like a baby duck, I imprinted on him. I suspect that many of us did.

Thanks to the rest of the PrawfsBlawg crew for hosting me this month. Quack.

Life is short

Thanks to Howard for the introduction and to him and all of the permaprawfs for letting me guest here this month. I had expected to thank Dan, of course, who asked in May if I would do another guest stint (my last one was a number of years ago), and so it was oddly comforting that the actual invitation from typepad to begin blogging had the subject line, "Dan Markel has invited you to join PrawfsBlawg." I have had similar messages before, automated from accounts connected with friends or family members who have passed away. I like these messages from the ether, like a friendly wave from the other side.

I didn't intend for my first post to be so sentimental, but night before last a woman in my circle of friends passed away, and her husband and other friends have been writing about her decision to end treatment that would not cure her so that she could live her remaining days as fully as possible with her family. It's a good reminder to work in the things that matter all of the time. And so, in her honor and as a reminder for all of us, here is a link to the poem that she asked her husband to read at her memorial service, On Living by Nazim Hikmet, which begins:

Living is no joke, 
you must live with great seriousness 
like a squirrel for example, 
I mean expecting nothing except and beyond living, 
I mean living must be your whole occupation. . . . . 

What's an acceptable error rate in death penalty distributions? And some other thoughts on the Jones decision

The indispensable Doug "not that subway fugitive" Berman alerted me earlier today to the Jones v. Chappell opinion by the federal judge in California who struck down the Cal death penalty on the grounds that the insane amounts of delay between sentence and execution are violative of the Eighth Amendment's ban on cruel and unusual punishments. (I have registered my retributivist and constitutional doubts about the death penalty before, but I haven't been too enamored of the argument that wins the day in this case. Whether I revise my views, well, anything's possible. I am after all getting older.)

Having worked my way through the opinion by Judge Cormac Carney (a GWB appointee), I imagine the outcome won't stand on appeal to SCOTUS should it get there. That said, with Justice Kennedy as the swing vote deciding on California issues, you never know for sure. Moreover, Justice Breyer has in the past voiced concern about foot-dragging death penalty delays.

Regardless of when/if it gets struck down, the Carney opinion notes the following about error rates, which I found to be of profound interest. Specifically:

"Of the 748 inmates currently on California’s Death Row, more than 40 percent, including Mr. Jones, have been there longer than 19 years."

"Of the 511 individuals sentenced to death between 1978 and 1997, 79 died of natural causes, suicide,
or causes other than execution by the State of California."

"For those that survive the extraordinary wait for their challenge to be both heard and decided by the federal courts, there is a substantial chance that their death sentence will be vacated. As of June 2014, only 81 of the 511 individuals sentenced to death between 1978 and 1997 had completed the post-conviction review process. Of them, 32 were denied relief by both the state and federal courts—13 were executed, 17 are currently awaiting execution, and two died of natural causes before the State acted to execute them. The other 49—or 60 percent of all inmates whose habeas claims have been finally evaluated by the federal courts—were each granted relief from the death sentence by the federal courts."  But of those 49, the "State resentenced 10 of these individuals to death, thus starting anew the post-sentencing appeal process on the renewed sentences, though two have since died while on post-conviction review for the second time." 

A few points here.

First, what's left unsaid by Judge Carney, so far as I can tell, is whether the state has abandoned efforts to resentence to death the remaining 39, or accepts that 39 out of the 81 people originally sentenced to death should in fact not be sentenced to death.  If the state is committed to resentencing the 39 to the death penalty, then it's not clear that the facts adduced here have much traction; all they show is that the system is hyper vigilant at the post-conviction review stage.  On the flip side, if the state basically concedes that 39 out of the 81 people should not or cannot be resentenced to death, then we have an almost 50% error rate in the initial distribution of the death penalty. As a purely prudential/consequentialist matter, that error rate strikes me as quite worrisome (independent of my constitutional or retributivist concerns). Indeed, unless such error rates were valuable in creating a higher deterrence through random terror effect, which I doubt, I suspect if I were the DP czar, I would be seriously concerned that the death penalty cases are a complete regulatory failure. Perhaps it's time to re-read Robert Morgenthau's famous oped about why prosecutors with resource constraints and a crime-fighting streak should oppose the death penalty. 

Second, if 81 people have had a decision on the merits and exhausted all judicial review, it does seem a puzzle as to why there's an ostensible delay of YEARS between those decisions and the executions. Maybe the explanation is in the appendix that I didn't see; but in its opinion, the court notes that California hasn't executed anyone since 2006. Are there delays resulting from California's executioners waiting for the clemency process to be exhausted in addition to the post-conviction judicial review? Wouldn't that be worth knowing about?

Third, the defendant, Mr. Jones, and the Court here seem to think that only a random few people are selected for execution. If that were true, I could see why the constitution should step in and eliminate that randomness in distribution.  But I'm not convinced yet that the source of delay is inherently random or arbitrary (terms the court conflates here).  I guess I take issue with the claim that the Court offers: "a sentence of death in California is a sentence of life imprisonment with the remote possibility of death—a sentence no rational legislature or jury could ever impose." I could well imagine that a rational legislature or jury would in fact understand their votes to constitute a view to execute subject to stringent review out of a desire to cause death to the defendant but only as long as and once the process has run out. Flipping it around as the fed Cal court does may seem rhetorically nifty, but it's not exactly a model of intellectual generosity to citizens and officials who disagree in good faith.

Fourth, while I understand and accept the claim advanced that deterrence is undermined by delay, it's not the case that harm prevention generally is necessarily undermined by procedural delay. Confidence in the system's accuracy or fairness in a death penalty tribunal might be thought to bolster compliance--this is the mantra that Bentham(!), Tom Tyler and Paul Robinson have all adopted. Inasmuch as the delays bolster confidence and compliance generally, which I take to be a fragile but possible relationship, then the part of the court's opinion addressing deterrence moves too quickly, in part b/c it makes the same mistake Eighth Amendment caselaw makes too frequently: by quickly conflating deterrence with harm prevention generally.

Fourth, the retribution analysis by the court (p21-22) also moves too quickly. I don't accept as persuasive the invocation of authority (citations to Rehnquist and Powell and Fletcher) as opposed to argument the claim that retribution is undermined by delay attributable to post-conviction review. The court takes that proposition for granted but it again conflates retributive justice with satisfaction of communal preferences for condemnation.  Moreover, it assumes that the wrong against retributive justice ideals associated with executing a few of all those sentenced to death is the same regardless of whether the reason is because of the drag of post-conviction review or because someone is selected for execution based on his race (or, hypothetically, the race of his victim).  But I don't think that's right at all. 

In short, if we accept arguendo the controversial premise that capital punishment is consistent with retributive justice (a premise I reject), it doesn't follow that delay attributable to judicial review of the underlying accuracy or respect for the defendant's constitutional rights is antithetical to retributive justice. Indeed, the respect for accuracy manifested by an exhausting (albeit exasperating) forensic process could reasonably be thought to bolster the retributive value of the execution. 

 I don't want to signal an overly skeptical posture; I'm still unsure about what my views are here. I support striking down the d/p on Eighth Amendment grounds generally but for the reasons I've suggested, I'm less certain this court's arguments are the right arguments to bolster that constitutional claim. Regardless, I hope the dispute has the effect of spurring  proper funding for capital appeals and post-conviction review so the delays are less likely to materialize. [Of course, I agree with Doug Berman's general view that the d/p is a sideshow to the more mundane and pernicious and pervasive problems with noncapital punishment.] That said, the claim that "justice" delayed is no justice at all, and indeed, unconstititional, needs more work -- so it seems to me.  I'm not defending the claim that the delays are worthwhile, but I don't see how this opinion explains adequately how the delays harm the defendant once a) the defendant wants to benefit from the procedural wrangle, and b) the public has an interest in ensuring that justice appears to be done properly, ie, with appropriate judicial or executive clemency review for severe sentences.

 

Linguistic Versatility (or is it Hegemony?) and the Law

There's been much hub-bub the last few years in the US re: legal education and innovation. Assume for a moment that an American law school wanted to offer a degree program leading to an American JD that would be wholly instructed in Spanish or Chinese or Hebrew. Would anyone reasonably object on cultural grounds or is this purely the kind of program that should be allowed to unfold so long as it otherwise maintained a strong bar passage rate?

Israel's facing interesting issues along this front. A few academic institutions are trying to offer law degree programs in English only, and are seeing opposition. 

When I teach in Israel, which I do with some frequency and affection, I do so in English, as part of the increased expectation that Israeli lawyers should be fluent with English language as well as international/comparative approaches to law.  Yet, I fully accept the argument made by one of the stakeholders that fluency in Hebrew is essential to representing one's clients well in Israel. I certainly think my competence with English is critical to my being a tolerably decent scholar -- in English. But if Chinese-speaking professors were in the US to teach American law in Chinese, I don't think I'd have much basis for objection. Let the market sort it out seems roughly right.

The fear about this seems that if the Israeli law schools started teaching in English, there'd be a decline in Hebrew language competence and that could affect lawyer performance for clients. I don't really see that as a threat realistically, because if you're going to practice in Israel, you'll want to speak Hebrew; what's more,  if there's a bar passage requirement that occurs in Hebrew, then that would probably provide a check, along with malpractice claims.

To my mind, what I think of as the French linguistic protectionist approach seems here kind of ... pathetic. But maybe I'm missing something.

 

Deadline Reminder for CrimProf Conference at Rutgers Newark July, 2014

Folks, just a reminder for those who are interested, the deadline for this conference that Carissa Hessick (Utah) and I are organizing is today-ish.

Here's the text of an email that we sent out to the CrimProf list-serv. Not everyone who is interested in this conference subscribes to that list-serv, so I'm reproducing the body of it here. If you know crim profs or aspiring ones, please feel free to send them the link to this post and then have them get in touch with Carissa and me ASAP. Thanks!

Dear Fellow CrimProfs: 

Because of some changes to the Law & Society rules that we found, um, inhospitable, Danny & I have, in consultation with others, decided to move the LSA Shadow Conference to its own time and venue. Hence, what would have been the 5th Annual CrimProf Shadow Conference at LSA will now be known simply as the 5th Annual CrimProf Conference. We might move it back to LSA in the future if conditions improve, but for now we will go it alone.

Our friends at Rutgers-Newark have kindly agreed to host.  The conference will begin on Sunday, July 20th with the chance to socialize in the evening, but the panels will begin in earnest on Monday morning the 21st of July and depending on the level of participation, we will end on Tuesday, July 22nd or Wednesday July 23rd.  Participants will be responsible for their own travel and lodging costs (discounted hotel information is included below), and we will also ask attendees to pay a $50 registration fee to help cover the costs of snacks and lunches so that we can break some bread together. More info after the jump.

As in past years, we will have a substantial number of paper panels for WORKS in PROGRESS. Unlike LSA, we will probably do 3 papers per panel, instead of 4. Panelists will be required to read and share comments with the other panelists. And, in contrast to our LSA experience, we will ask panelists to share their drafts a week in advance with the other attendees, by posting their notes/drafts in a password-secured website, so that more people can offer more informed comments at the panels.

 

Finally, we also hope to include some slightly different formats---such as a couple of sessions for folks to help shape book manuscripts or discuss completed books, or teaching issues and other topics that may be of interest to the broader community. If you have an idea for a non-traditional paper panel, please let us know ASAP. 

 

Participants may include tenured or tenure track professors of law at any accredited law school. VAPs and Fellows are welcome to present too, space permitting. For all who are interested in attending, please email me & Danny no later than Monday March 10.  Our email addresses are: carissa.hessick at law.utah.edu and markel at law.fsu.edu

  

To reduce any likelihood of administrative error on our part, your email should have a subject heading that states "Proposal for 5th Annual CrimProf Conference," and the body of your email should include:

(a)          The title and abstract for the paper you wish to present, or information about another type of session in which you are interested in participating;

(b)         Whether you are willing to serve as chair or discussant for another panel; and

(c)          Any date restrictions you have.  We cannot promise to accommodate date restrictions, but we will do our best. Needless to say, if you flake on us and thereby blow up a panel without a completely compelling excuse, we will remember! :-)

 

We hope that many and more of you will be able to join us.  And we hope that this conference will be the herald of many more summer crim gatherings in the future.

 

Best,

Carissa & Danny

 

Discounted Hotel Information:

Hilton Hotel = $149 per night

Contact person for the Hilton is Lucile Cox, her direct number is  973-645-2050
Rooms have been placed on hold under names of Vera Bergelson and Mayra Caraballo

 

Robert Treat Best Western = $99 per night

Contact person for the Robert Treat, Mercedes, she can be reached at  973-622-1000
Rooms have been placed on hold under names of Vera Bergelson and Mayra Caraballo

Guests should refer to Group#5529 when they reserve the room.

 

 

Waldron v. Seidman, and the obligations of officials and the rest of us

"Never Mind the Constitution." That's the awesome title of this characteristically sharp and learned essay by Jeremy Waldron, reviewing in the HLR Mike Seidman's new book, On Constitutional Disobedience.  Seidman's got a cheeky and funny short reply to Waldron, entitled, appropriately enough, "Why Jeremy Waldron Really Agrees With Me."  I wonder if Seidman's Response will continue the apparent trend of the personal title for scholarship, e.g., Why Jack Balkin is Disgusting. If Susan Crawford's Response in the Harv. L. Rev. Forum to the review of her book by Chris Yoo is any indication, I suspect at most we can use these few data points only to identify a trend in favor of the  "meta" title and not make broader generalizations just yet.

Moving past the title to something like the merits, I'll confess I'm pretty skeptical toward the general thrust of Seidman's argument (as characterized by Waldron and as evidenced in his NYT oped from last year). He is, as Waldron notes, basically a philosophical anarchist and that's a position I find largely untenable under particular conditions of a reasonable well-working liberal democracy. (Importantly, some of Waldron's work on political obligation was what led me down that path but little of Waldron's work on that subject figures into his review of Seidman.) One last mildly interesting thing to note is that Seidman's embrace of philosophical anarchism and his export of it to constitutional theory basically coincides with the thrust of Abner Greene's recent book, Against Obligation.  There are differences between them, some of which are discussed here (review of Seidman by Greene) and here (review of Greene by Seidman). For those interested in these overlapping and important projects, the BU Law Review published a symposium on these two books last year, and you can find the contributions here, which I'm looking forward to exploring further, since, full disclosure, I am writing dreaming up something inspired by these various works on the moral and political obligations of prison or other corrections officials as a distinct class of officials).

 

Related articles

[Will Baude] Jeremy Waldron, on the purpose of constitutional law

Jeremy Waldron: Never Mind the Constitution Michael Ramsey

A Post-Script on Samuel Sheinbein

I'm not sure how many of you remember this, but one of the more fascinating stories my co-authors (Jennifer Collins and Ethan Leib) and I relied upon in our 2009 book on criminal justice and family status had to do with Samuel Sheinbein.  After he gruesomely murdered someone in Maryland, Sheinbein, with his father's assistance, escaped to Israel and avoided extradition. The Sheinbein parents thought they were doing their parental duty by trying to squire their son to a more compassionate jurisdiction.  Sheinbein was charged and convicted in Israel and sentenced to 24 years in prison in Israel, with furloughs, which is probably a better outcome than he would have received in Maryland. (Though with the recent excuse of affluenza, who knows?)

For our purposes, we were primarily interested in Sheinbein's parents' involvement in assisting their son, since our Privilege or Punish: Criminal Justice and the Challenge of Family Ties focused on two questions: what role does and what role should family status play in the operation of the criminal justice system? Among other things, we discovered that about a dozen states around the country explicitly carve out exemptions for family members from laws that otherwise prohibit assisting fugitives and we argued that these exemptions were largely misguided and should be jettisoned.  Here's a short version of what we argued on the Freakanomics Blog.

The Sheinbein parents' good intentions, certainly understandable if not justifiable, have had deadly consequences. For the latest news is that Samuel Sheinbein the killer is now dead. He was shot by special forces in a prison raid once he barricaded himself in a room within the prison; somehow, Sheinbein secured the firearm of a guard and seriously wounded three prison officials along the way. There's no definite lesson to be learned here from one anecdote--one might well imagine the Sheinbein saga ending with a story of redemption and rehabilitation. Here, however, it was intransigence and bloodshed. And so, when legislators are considering whether to be sympathetic to parents or children placed in difficult positions by their criminal family members, they would also do well to remember the Sheinbein story, a case where we see the cruelty and cost of misplaced compassion.  

The myth of the trial penalty?

Every now and then, I like to spotlight some articles that unsettle the conventional wisdom, particularly in criminal law. Add this one to the file. Almost every teacher of criminal procedure is aware of the idea of the "trial penalty," which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain. The leverage prosecutors have in exploiting the trial penalty dynamic was described by my friend Rich Oppel in a front page NYT story he wrote a few years back.

Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it's true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there's a trial discount not a trial penalty. Fascinating stuff. Abrams offers some suggestions for what might explain this surprise: possibly a salience/availability bias on the part of the lawyers who remember the long penalties imposed after dramatic trials. Regardless of what explains the conventional wisdom, the competing claims should be ventilated in virtually every crim pro adjudication course.

Since this empirical stuff is far outside my bailiwick, I wonder if those who are in the know have a view about how Abrams' research intersects with the Anderson and Heaton study in the YLJ, which argued that public defenders get better results in murder cases than court appointed defense counsel, or Bellin's critique of that YLJ study here.  Anderson and Heaton basically argue that public defenders get better results because they get their clients to plea bargain more frequently than court appointed counsel and that explains the outcome. As I recall dimly, that conclusion may have been true for the murder cases but the study didn't purport to make the claim that PDs were better across the board and maybe that's consistent with Abrams' views too. It would be odd (wouldn't it?) if comparatively fewer murder cases involve a trial penalty while the many other cases do not and in fact show a trial discount. Granted, these studies took place in different cities, etc., so I am also wondering if the various studies can be reconciled. Thoughts?

A couple reading suggestions for students in criminal law and the Spring 2014 schedule for the NYU Crim Theory Colloquium

N.B. This post is a revised version of an earlier post and is basically for crimprofs and those interested in crim theory.

This week marks the onset of classes for many law schools across the country, and that means  the first criminal law class is here or around the corner for some 1L's.  As many crim law profs lament,  first-year criminal law casebooks generally have pretty crummy offerings with respect to the state of the field in punishment theory. (The new 9th edition of Kadish Schulhofer Steiker Barkow, however, is better than most in this respect.) Most first year casebooks give a little smattering of Kant and Bentham, maybe a gesture to Stephen and, for a contemporary flourish, a nod to Jeffrie Murphy or Michael Moore or Herb Morris.

Murphy, Morris, and Moore deserve huge kudos for reviving the field in the 1970's and since.  Fortunately, the field of punishment theory is very fertile today, and not just with respect to retributive justice.  But for those of you looking to give your students something more meaty and nourishing than Kantian hand-waving to fiat iustitia, et pereat mundus, you might want to check out and possibly assign either Michael Cahill's Punishment Pluralism piece or a reasonably short piece of mine, What Might Retributive Justice Be?, a 20-pager or so that tries to give a concise statement of the animating principles and limits of communicative retributivism.  Both pieces, which come from the same book, are the sort that law students and non-specialists should be able to digest without too much complication.  Also, if you're teaching the significance of the presumption of innocence to your 1L's, you might find this oped I did with Eric Miller to be helpful as a fun supplement; it concerns the quiet scandal of punitive release conditions.

Speaking of Cahill (the object of my enduring bromance), Mike and I are continuing to run a crim law theory colloquium for faculty based in NYC at NYU. On the heels of AALS, we had Francois Tanguay-Renaud and Jenny Carroll present last week, and the schedule for the balance of the semester is this:

February 25: Stuart Green (Rutgers) and Joshua Kleinfeld (Northwestern)

March 31: Amy Sepinwall (Wharton Legal Studies) and Alec Walen (Rutgers)

April 28: Corey Brettschneider (Brown/NYU) and Jennifer Daskal (American)

As you can see, the schedule tries to imperfectly bring together crim theorists of different generations and perspectives. This is now the seventh semester of the colloquium and we are grateful to our hosts at NYU and Brooklyn Law School who have made it possible. If you're a crimprof and interested in joining us occasionally, let me know and I'll put you on our email list for the papers.

Compensation, Takings and Preventive Detention for Failure to Appear and Dangerousness

For a little while a couple years ago I was entertaining the thought that pretrial detention based on risk-based considerations (failure to appear or danger to oneself or the community or to the judicial process) was a regulatory takings that warranted compensation (at least normatively if not constitutionally). That position, it turned out, was largely advanced in a thoughtful piece by GW prof Jeff Manns on Liberty Takings.  

I was delighted that I didn't pursue that line of thought, not only because it was preempted by Jeff but also because I soon realized the view wasn't entirely sound (at least to the extent I recall it now). In short, there's a big difference between the innocent property owner and the person who is preventively detained: namely, there is a hearing where a judicial officer finds that, at least in the fed context, clear and convincing evidence shows that the defendant poses a social risk of some sort that requires containment or management, however you want to frame it. (Manns recognizes the distinction between the innocent homeowner and the pretrial detainee but I think he gives it less normative significance than I do.)

Of course, that distinction doesn't mean the pretrial detainee deserves no compensation, but the force of the "takings" rhetoric or jurisprudence attenuates substantially; if there is a warrant for compensation it likely occurs at a substantially discounted rate insofar as the detainee is responsible for having created the risk.

 Interesting questions bear on what the discount should be, what the baseline should be, etc. Moreover, it doesn't at all follow that the detainee should be "boxed" or confined in the same kind of facilities as those who are convicted. A least intrusive means test is probably warranted, perhaps triggering what my colleague Sam Wiseman, in his forthcoming YLJ piece, has called a right to be monitored (electronically).

Let's stipulate for purposes of argument that at least in some cases, confinement is required for particular people, rather than monitoring. The box the detainee goes in, however, should be a pretty nice box, glibly akin to condos with views of the beach and wifi, rather than putrid and overcrowded jail cells.  Along the same lines, if I'm right about the need to separate these preventive from punitive purposes, there would be no justification for extending credit for "time served" if the person is ultimately convicted (creating my unorthodox but I think justifiable view, a view that is naturally (!)  pace my friend Adam Kolber in Against Proportional Punishment).

When looking at the pretrial detainee world, there is often agitation for compensation. But this doesn't necessarily follow as a matter of rights or out of respect for the presumption of innocence. Even compensating a later-acquitted defendant doesn't necessarily follow so long as the standards of proof and purposes/structures of confinement are properly respected. Compensation to the detained person would only be warranted if the detention proved to be tortiously procured through some form of negligence, recklessness, etc on the part of the prosecution. But it's not obvious that a good-faith preventive detention of a person who, with a lawyer by his side, is shown by  the gov't to be dangerous by clear and convincing evidence, requires anything like a liberty takings model for compensation. The preventive detention box has purposes and structures and procedures that can be readily distinguished from those appropriate to the punitive boxes with their underlying purposes.

Of course, if we're serious about keeping these social projects distinct, then, per Justice Stevens' dissent in Salerno, the presence of an indictment is of no significance (except to the flight risk group). And if that's true, we should be able to have a restrictive though non-punitive form of preventive detention available for the future dangerousness folks (putting me in good company with Justice Stevens, though not Justice Marshall in Salerno). That model would probably look a good bit like Chris Slobogin's proposed regime of preventive detention (see his piece in Criminal Law Conversations), but perhaps without some of the pre-requisites he required (again, if I recall correctly).

This was roughly the set of views I tried to communicate to my students yesterday in teaching about pretrial detention and Salerno. However, as we were talking in class yesterday, I thought the liberty takings argument had more force in the context of the post-conviction post-punishment detainment of  folks, e.g., the sexually violent  predator types in Kansas v. Hendricks.  I realized those guys do warrant full compensation for the liberty takings (though again, query what the baseline is there, and whether the baseline should be discounted for earlier choice-tracking behavior on their part).

To summarize, I wonder who has the best claim to liberty takings compensation in the preventive detention world. If I'm right, the people who have the best claim are the SVPs or the mentally/criminally insane who are confined but not punished/blamed (anymore). Ironically, if I'm right, even acquitted (and even convicted) defendants who were detained would not have a strong moral claim to full compensation for pretrial detentions on a liberty takings model unless they could show that the detention was tortiously procured through misconduct on the part of the government. That said, even though these folks are not akin to innocent homeowners whose property is taken, they do have some claim to some compensation and incredibly better detention facilities than we currently extend to them. Indeed, home detention plus surveillance options are probably the closest reasonable approaches.

And perhaps most unorthodox is the claim that we should eliminate altogether the pervasive practice of giving credit for "time served" in jails for pretrial detention. Extending time-served only blurs the lines between preventive detention and punishment and makes the goverment less circumspect in their decisions about who they box and under what guise.  Anyway, this is just a first pass attempt at making sense (to me) of these boxes and social functions, and I will be revisiting the literature (including the Kolber, Slobogin, Manns pieces among others) if and when I flesh out these views further. Tell me in the comments if I'm way off base (at least normatively, if not constitutionally), and if you think someone has already articulated these views more coherently so that I don't bother chasing rabbits down a preempted hole.

Things you ought to know if you're about to teach criminal law

I realized a few weeks ago that people may have forgotten about our pedagogical series, Things you ought to know if you teach X. Of course, I'm only now reminding you, and I hope it will be helpful for the group of rising professors among our readership, or for those undertaking new preps.

Oddly, we didn't have a criminal law version of this post, so I informally took a stab at drafting one for Facebook, and here's what I've got. I've appended some of the comments from fellow prawfs (without attribution) in the event that a few extra perspectives are helpful.

Dear Crim prof friends:
A friend who's a rising crim prof wants to know what she should know as she enters the legal academy and begins teaching crim/crim pro. Here's an opinionated stab at what I wrote her, but let me know what else you'd add in terms of conferences, resources, opinions about casebooks, etc.

So, for crim law's basic class, I'd highly recommend using the Dressler casebook. If you want to make casebook costs very cheap for your students I'd use the 5th edition. In the chapters I teach, there's basically no difference b/w the 5th and 6th edition, and that would make the cost go down substantially. That said, at the very least there will be a secondary market for the used 6th edition this fall so if that's enough, you could do that. With apologies to friends who have their own casebooks, I'll just say that I've never had a complaint about the Dressler casebook in teaching this casebook over ten times. Also, there's a very good teacher's manual, Dressler has a good hornbook, and there are lots of folks who can give you their notes/outlines,etc. Also, Joshua and Steve are very good about servicing the casebook meaning that they respond to emails quickly.

For crim pro, I teach only bail to jail and I used Marc Miller and Ron Wright's excellent book, Criminal Procedures, most of my career. Last year I experimented with the Allen/Stuntz casebook and I found it unsatisfying for reasons that it is a) too Supreme Court focused,  b) too federal focused and c) here, i'll get in trouble, but I found it too Stuntzian in the embrace of perversity and fantasy in the interpretation of criminal procedure. (Yes, Bill was a prince of a guy, teacher and colleague; still, the work has largely been over-valued imho--sorry, friends). That said, it is probably easier to teach/test material from that casebook than the Miller and Wright one. Both have very good teacher's manuals and support from the casebook authors. Your choice on this matter should probably turn on whether you're interested in crim pro II as an extension of con law stuff, or whether you're interested in, you know, criminal procedure in all its legal and policy diversity. There are important and interesting reviews of these casebooks back in the day by Bob Weisberg and Stephanos Bibas.

Regarding intellectual networks: if you're interested in crim law theory, I co-run a colloquium up in nyc (usually at nyu) that meets once a month or so during the academic year and I can put you on that list. If you're interested in presenting crim-related papers, there's a shadow conference at Law and Society that Carissa Hessick and I run. There also used to be a junior crimprof workshop that met once a month. I'm not sure if that's still up and running.

There's a crimprof listserv: I think the way to get on it is by emailing Steve Sowle at Chi-Kent. 

There's a crimprof blog you might want to bookmark:
http://lawprofessors.typepad.com/crimprof_blog/

And Doug Berman's sentencing law blog is indispensable too:
sentencing.typepad.com

For reading generally, you might want to make sure you get the Ohio State Journal of Criminal Law, which is excellent, and consider perusing some other "specialty" peer-edited journals, such as the New Criminal law review, Punishment and Society, and Criminal Law and Philosophy.

From the FB thread: some people chimed in to say they agreed on Dressler, and liked Dressler's crim pro book with Thomas; others liked Paul Robinson's crim law casebook b/c of its emphasis on statutory interpretation; some liked Chemerinsky and Levinson for criminal procedure (my recollection is that this would be a heavily doctrinal scotus kind of book); and some liked Kadish/Schulhofer et al or Kaplan Weisberg for crim. I had heard complaints before about Kadish/Schulhofer as too dense but the revised editions seem quite good. The best advice is to order them all and see what fits your teaching priorities. The next tidbit: be leery of over-assigning. I only assign 20 pages or so per 80 minutes class.  Better to do what you can well rather than over-reach and be scattered. Keep in mind that criminal law is a class that students have lots of priors about and so you want to make sure you can exploit that level of interest by having rich discussions rather than racing through the material. Of course, YMMV.

Please feel free to use the comments for signed and substantive contributions, especially with respect to criminal procedure (cops and robbers), which I've not taught and which might have other networks and nodes of which I'm scarcely aware.

 

Could FACs induce retirement of government officials? A "Corruption" Work-around?

Btw, a couple weeks ago on FB (where all my random mental burps occur), I proposed a possible variation of our crowdfunded FAC model in the gov't context. Specifically, I wondered aloud: could a cabal of Soros and Gates and Bloomberg create a FAC (Fan Action Committee) to throw money at Justice Ginsburg (or her favorite charity) to retire from SCOTUS (so POTUS could appoint someone new presumably) without violating any laws?

We just saw Sec. J. Napolitano step down from DHS to head the UC system. So if Soros et al. couldn't offer RBG 20 million to retire, could he give her 20 million to join as a board member of Open Society to have tea with him once a year? There you at least have a peppercorn of consideration for the contract. Is that enough to circumvent the corruption statutes or relevant ethics rules? Would you give the same deal to get Michelle Bachman to leave Congress? The interesting wrinkle here is that unlike general corruption statutes governing improper quid pro quo of "official action" for $, this FAC-y scenario just requires $ in exchange for no "official action", ie, retirement. A couple friends thought scenarios of this sort would still be illegal, but I'm not sure I'm persuaded yet; if it's illegal at the federal level under extant law, could it be used at the state level? If you disagree with me, please cite chapter and verse on why! And file this in the "devilish and probably misguided idea" drawer.

Nate Silver and the Hidden Genius of Capitalist Crowdfunding

After a long and difficult year personally, it gives me some quiet joy to announce that I've just uploaded a "shitty" first draft of Catalyzing Fans to SSRN. Actually, it's somewhat polished as a draft, but it's pre-submission, blissfully short (13,000 words) and, um, really interesting. Bonus: it has nothing to do with retributive justice.  So, my co-authors, Mike McCann and Howard Wasserman, and I hope you'll read a draft and send along comments. Here's an overview:

Should Nate Silver have stayed at the New York Times, or instead go to ESPN?  Where should Cass Sunstein teach? What team should Lebron James play on? In this paper, we have a proposal for how to think about the trilateral relationships among "talent" (Silver, Sunstein, James), teams (the NYT, the Miami Heat, Harvard), and fans. For some reason, the answers to where that talent should work are  often only indirectly connected to the desires of third-party fans. We think this could be different.

Specifically, we propose the development of Fan Action Committees (FACs).

Analogous to, but distinct from, Political Action Committees (PACs), these FACs would coordinate, aggregate, and monetize the intensity of fan preferences and would thus serve to either enrich "talent" directly, or, in a wrinkle we prefer, make contributions to charities favored by talent.  If we're right about how fans could introduce crowdfunding as a way to re-configure that triangular relationship, well, it's a potential game-changer, if you'll pardon the pun.  Once our paper lays out the architecture of the direct compensation and charitable models, we anticipate how to overcome obstacles to the development of FACs that may exist under current rules or laws. We also address a variety of policy concerns and objections ranging from considerations of competitive balance to distributive justice.  Advancing and illuminating the possibility of FACs across pro team sports and commercial entertainment, journalists and academics, we show how crowdfunding options produce the potential for more efficient valuations of talent by registering not only the number of fans but also the intensity of their preferences. This insight, which stresses the upside of price discrimination, has relevance to a wide range of human endeavor. In short, the introduction of FACs can basically change the dynamic of any area where bilateral contracts have third party externalities that are not currently calibrated or adequately valued.  

Btw, Howard, Mike and I began kicking this idea around last summer after I floated on FB something like the notion of  fan interference, wondering why fans couldn't affect the Knicks' incentives to hire or retain Jeremy Lin in the midst of Linsanity. To transition this into a proper paper, however, I encountered the slight problem that I could not care less about sports or sports law, and knew zero about the area. So I enlisted my pals Mike and Howard -- two of the leading sports law guys in the country -- to write a paper with me about the law, policy and economics about fandom. The paper's come a long way from a facebook thread (which itself is a sort of crowd wisdom opportunity), and some of its most interesting moves and extensions come from conversations with prior readers at FSU and more recently the 10,000 Feet Legal Theory Workshop--so thanks to those folks! (The latter, btw, is a workshop that spontaneously emerged among the group of profs who went hiking with me in the afternoons while in the Rockies two weeks ago for the LEC's annual law and econ boot camp.)  Anyway, we'll be sending it out soon, and, now that it's been gently road-tested, I'm sure any of us would be excited about the prospect of talking about it at your law school this coming year. 

 

A Not Quite Post-Script on Zimmerman, etc.

Interesting exchange I though I'd share.  I just rec'd an email from a stranger (to me):

Prof Markel,
You write here -  - that "I fear that if the races had been turned around, we might have a different verdict."

Why, given the evidence presented, the law, the jury instructions, etc., do you have this fear? Is there a scintilla of evidence that the jury, in its deliberations, was influenced by considerations of race in any way?

My answer:
Thanks for writing (respectfully!).
My sense is that there likely were some subtle racial dynamics as to what prompted GZ's suspicions. I doubt that if TM had been white, GZ would have bothered to call. If GZ had been black and shot a TM who were white, I could see the possibility of conviction going up, even if the same evidence were there. I regret that's the world in which I harbor that concern.

Still, in this case, I think it would be a serious injustice to alter the verdict just because of the risk that injustice elsewhere could erupt. My point, modestly, was that one can't fix other injustices by doing an injustice in this case.

My correspondent wrote back:

Thanks for your quick -- and equally respectful -- response.

1) Re: GZ being suspicious if TM had been white: This is a bedrock assumption -- I don't think there's much evidence on the issue one way or the other -- which I don't share, but let's assume it anyway.

2)  The jury seemed to be meticulous (14 hours of deliberation, etc.).  According to the juror interviewed on CNN, at first, 3 jurors wanted to convict GZ "of something."  But, based on the evidence presented and the "options we were given," acquittal was the only decision, in the end. I very much doubt that this jury would have acted any differently had TM been white/GZ been black.  Also bear in mind that white guilt, as well as white racism, can play a role.  But this is just my opinion.

At this point, it seems, we are in the realm of speculation and sociology, so I don't have much more to add than my first response. But I thought it was an interesting exchange, and I'm sure some of our readers would have more vigorous responses and reactions.

Update: I have since learned (h/t to Adler on FB and Bernstein below) that I may have been leaping to judgments re: my speculation about Zimmerman's reticence to call in suspicious non-blacks. He has a history of calling in a range of people, including fellow Hispanics, and he's also made calls, from what I understand, designed to ensure the wellbeing of young black children. I'm grateful for the information--obviously, I can't verify it myself, but if it's true, the information seems relevant about what kinds of speculations are warranted in race-switching scenarios.

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

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

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

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

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

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

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

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

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

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

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

Respectfully, up yours!

I noticed that Scalia's dissent in Windsor was not respectfully offered (color me shocked!) but Alito's was. Kennedy charmingly referred to his dissent in Perry twice as being respectfully offered, no doubt out of some awareness of the fragility of coalitions in that case.

So, for those of you Kremlin-watchers curious about the mores of SCOTUS denizens, here's a question: do you think the number of dissents offered "respectfully" has increased under CJ Roberts? Declined? Is Scalia the principal Justice who offers dissents disrespectfully or non-respectfully? Anyone want to run the numbers? Ross Davies, this is a Green Bag piece in the making!

It would also be interesting to see if there's any change in the pattern of dissents being respectfully tendered before and after Bush v. Gore.  One thing that seems impressionistically clear to me: despite the sound and fury following cases like Bush v. Gore or even the ACA cases from last year, my sense is that the Court proceeds to do its business w/o much damage let alone influence from earlier cases overhanging. Life moves on. As it should. Unless it doesn't--I'm open to seeing the data :-)

Comey, Bipartisanship and the Obama Administration

From what little I know and recall of the guy, James Comey seems like a pretty solid selection for the FBI. But in picking yet another Republican from the W ancien regime, and particularly  in the area of national security/homeland protection, I have to wonder what's motivating the Obamians.

As one friend on FB mentioned, it seems staggering that there would be such bipartisanship efforts made after the scorched earth policies toward Dems by R's in the pre-2008 era. And as another friend mentioned, picking Comey means not advancing the careers of a Dem who could be elevated in future Dem administrations for other high and higher slots.  Obama's also been picking a number of Comey-like judges (e.g., my old colleague from OMM Sri Sri...probably a Dem but someone who was an SOC clerk and well, is he really an Obama guy?). Sure they're highly qualified, able, and demonstrate integrity. But there will be interstitial discretion on policy issues that maybe don't reflect the Dems' point of view. Still, maybe that's what Obama's game is: perhaps he really is principled in this respect and isn't seeking to lard his administration with lackeys. But I wonder if he just thinks he can't get folks with more lefty credentials through Congress, or that there aren't folks he likes/trusts with those lefty creds given his love of the lethal presidency. In any event, I would be more likely to simply applaud choices like Comey and Sri, and maybe some of the other cabinet or sub-cabinet picks (i'm still kind of pissy about Hagel), but I have great trouble recalling any Dems being promoted under the W regime to such high profile positions. Does Obama think his "gifts" to folks across the Aisle will change the Beltway culture of the Republicans, or does he just not care because he thinks these are the best guys (and, um, yes, there are lots of guys here)? Inquiring minds want to know...

 

 

Judges Gone Wild?

I couldn't help but think that this judge's behavior, earlier today, is an example of imperious official action. The judge was all set to accept the defendant's plea bargain, but because the offender, footballer Chad Johnson, gave a playful slap on the backside to his lawyer during the hearing, in response to a question asked by the judge regarding whether he was satisfied with his counsel, she rejected the bargain, which called for no jail time, and gave him 30 days in jail. You can read more about it here and see the footage from the court. (H/t: atl). Stephen A. Smith's apt albeit volcanic reaction on ESPN emphasizes the socio-legal realities of why Johnson was an idiot here. It's true that Johnson is  a criminal wife-beating a**hole, and, in this context, acted imprudently, but is the bum-slap really the kind of thing that warrants jail when it was not otherwise about to happen? It doesn't warrant the judge's behavior in my mind, and instead strikes me as the kind of official tyranny and hot-headed hubris that rule of law constraints are meant to prevent. The quickness of the decision also suggests the need for courts to impose a mandatory cooling-off period between the time they reach a decision re: liability and the time they impose a sentence.

Cf. some of the problems of judicial discretion more generally.  And of course, this seems right in the same vein as Judge Marvin Frankel's famous story in Criminal Sentences: Law Without Order about the judge who, over cocktails, acknowledged elevating a defendant's sentence by a year simply because the offender had been disrespectful to the judge that day.  

 

If You Don't Like Prisons That Much, Then Why "Let Judges Be Judges?"

One of my ongoing concerns about many in the academy's infatuation with individualized sentencing and the preservation of substantial judicial discretion when it comes to sentencing is that there is a tendency to obscure what judicial discretion will do. Lots of folks complain about how structured sentencing (particularly in the Fed system) means that prosecutors now run the show and that judges are less powerful than they were (or would be) in indeterminate (fully discretionary) sentencing regimes. Lots of these academic voices, however, are pretty lefty/libertarian/pro-defendant/anti-mass incarceration (pick one or more of these). The problem as I see it is that the presence of substantial judicial sentencing power will often lead to stiffer sentences, not more lenient ones. That's because prosecutors and defense lawyers often bargain away charges, facts, etc, and by not sharing the existence of those facts/charges, the sentencing judges are left to defer to the deals struck by the insider repeat players. But when judges have concerns that these deals are being struck in a way that's anti-retributive or bad for public safety, they often want to have the information that would allow them to impose LONGER sentences.  In sum, I bet that the more judicial discretion there is, and the more information judges have, the longer the sentences will be. 

This is, of course, an empirical hypothesis, and happily, there is some good empirical support for the proposition I'm noting. Kevin Reitz wrote a fantastically important and understudied piece in the Texas Law Review showing, among other things, that states with indeterminate sentencing have among the highest rates of incarceration. 

But anecdotally, you need a good story to see this dynamic, and Doug Berman's Sentencing blog has the story you need to see this. As the story goes, Judge Stephanie Rose on the fed bench in Iowa is excoriating the federal prosecutor's office for not disclosing more information about defendants that would lead to stiffer sentences. To my mind, this is an illuminating example of a much larger problem. Normatively, of course, indeterminate/discretionary sentencing doesn't have to lead to higher punishment levels necessarily, but it shouldn't be suprising that the contingent forces tend to work in that way.

--One last note. I've been watching The West Wing on Netflix while working out for the last few weeks, and I noticed that, at one point in one of the episodes, late Season 1 or early Season 2, Aaron Sorkin/Jed Bartlet seemed to think that empowering judges with substantial sentencing discretion was an obviously attractive thing to do from the liberal political perspective of the Bartlet presidency. I found this, um, unconvincing, notwithstanding my general intoxication with the show.  

Some Reactions to Maryland v. King, and a Question for Barry Friedman and other 4A Friends

I have done only a bit more than skim Maryland v. King, and because I'm not really a Fourth Amendment guy, I'm preserving my strategic ambivalence about the outcome as a matter of doctrine. But I have a policy question for NYU's Barry Friedman along with a few other hasty reactions.

First, Barry writes the following in Slate, :

"Did the fact that Alonzo King was accused (not convicted) of pulling a shotgun on some folks provide a better reason to believe he’d committed an unrelated rape than that anyone else walking the streets had done so? Hardly."

It seems to me that Barry's posing either a specific or a general empirical question, neither of which I possess excellent knowledge about, although I bet there are good proxies out there for saying we know more than nothing.  In fact, I bet the reason law enforcement wants access to DNA of arrestees is because of their view that arrestees provide, on the margin, a better pool to capture DNA from than a random selection of the population at large.  Law enforcement interests here are driven by Big Data patterns that suggest that felony arrestees are likelier to be tied to other crimes than non-felony arrestees.  That's an empirical claim and Barry doesn't provide any links or data to suggest that we should doubt that claim's truth.

From a crime control perspective, would it be better if we had a DNA swab of every person and new baby? Sure, assuming the integrity of the collection. Indeed, Friedman thinks this would be permissible under the 4A (were Congress to pass it) but it's not likely to be authorized by Congress anytime soon.  (Btw, would a nation-wide DNA registry itself be unconstitutional under the 4A? Distributed benefits and costs might save it from the suspicionless problem. Curious for thoughts.)

But as long as a) we are not swabbing every new baby and all existing persons to create a national DNA database, and b) we are taking the time to inventory and identify felony arrestees, can anyone doubt that someone arrested for a felony is, on the margin, more likely to be guilty of some other offense that's out there?

I'm not saying there aren't doctrinal or other reasons that should restrain the DNA swabs. But simply as a matter of statistics or common experience, I'm left wondering  what supports the pretty heterodox view Barry offers that felony arrestees are not in fact more likely to have ties to other crimes than a randomly selected individual? Yes, I recognize that the value of the signal of a felony arrest is not the same as the signal of a felony conviction, but ... if we were going to block the swabs for crime-control purposes on constitutional grounds, let's at least be aware of what's being traded off in the name of constitutional fidelity.  And while we're at it, let's not forget that wide DNA access has the capacity not only to reduce Type II errors, but also to exonerate and thus redress Type I errors too. Fixing false positives is a constitutional value as well as a moral imperative for state officials. I'm not sure the 4th amendment claims advanced by the dissenters and their supporters are adequately sensitive to that, even if the majority implies this is happening already as a matter of fact.*

2.  I agree with Scalia's dissent that  the "identification" arguments on behalf of the DNA swabs are more make-weight than the straightforward though constitutionally more tricky arguments in favor of clearing cases and fixing mistakes. That's because the police could always use the DNA swab to promote their administrative needs (e.g., ensuring that the offender doesn't have a record of violence toward prison officials or communicable diseases that would have to be taken into account for housing him) without using the DNA swab to scope out possible relevance to other crimes.

3. The Court's special needs doctrine allows for suspicionless searches of the public in order to regulate safety or achieve other non-crime detection goals of certain policy weight. Here are two reasons for thinking that the majority's result is correct even if not its reasoning.

a) It's not that far a stretch to say that given the criminal justice system's interests in ensuring that the institutions of punishment are taking adequate care and precaution for the wellbeing of inmates and officials, that the population of felony arrestees is distinct from the population at large, and thus the goal of using DNA to ferret out possible dangerousness or illness is one that should pass muster on special needs grounds. But the reason I  don't love this argument is because if taken on good faith, it would not permit allowing the DNA information to be used to exonerate previously convicted offenders. That would probably be too close to the crime-detection purposes that the special needs doctrine is supposed to be attentive to. However, one might slice the constitutional baloney very thinly and say: DNA swabs are constitutional for administrative purposes pre-conviction, and they are also constitutional for purposes of exonerating others, but they can't be used as the basis to clear other cases against the defendant whose cheek is being swabbed.

b) Speaking of slicing constitutional baloney thinly, I didn't see this argument and it seems worth consideration too--though I detest it because I'm doubtful of the constitutionality and morality of the underlying practices. Here goes: Crime detection is distinct from calibrating punishment. In indeterminate sentencing regimes as well as structured sentencing that allows for "real offense" sentencing instead of (my preferred) charge offense sentencing, the admission of the DNA evidence as a tie to other crimes should be permitted for purposes of sentencing offenders on an individualized basis on the basis of conduct not proven to the jury beyond a reasonable doubt.  So, say King is in Texas and convicted of aggravated assault, which leaves him open to  a 5-99 year spread under the statute for first degree felonies.  The sentencing judge/jury/parole folks can all take into account that he's been tied via DNA to other rapes, even though not convicted of those rapes.  Poof. The sentence for the assault goes up, we don't bother with charging and convicting King for the rapes, and we rest our heads on the pillow of Williams v. New York.  Sentencing is distinct from crime-detection. Right? How awesome is that. Ick.

 

 

*Scalia notes in his dissent (fn.2) that the Type I error redress option is not currently available b/c of the way the FBI runs its DNA databases. That could be fixed of course, and should be.

 

 

 

Some Must Reads from the Mich LR Books Issue

I spent a decent bit of time with the recent books issue of the Michigan Law Review. Whenever I read review essays of books, I watch for the degree to which the author performs the script identified and lampooned by David Schleicher. The latest issue of the MLR has no shortage of review essays in which the upshot by the reviewer is: this book would be better and its problems would be cured if it were more interested in the things that I also am interested in and had cited and addressed my work more. 

Still, I'm delighted to say that in the area of criminal justice, there are 2 pieces that are absolutely vital for every prof in that area to read.

The first is Steve Schulhofer's polite but fearless and fierce critique of Bill Stuntz's book, The Collapse of American Criminal Justice. As some of you know, this book, and more generally, its late author, have received a cascade of encomia from distinguished and usually shrewd reviewers. The circle of love around Stuntz is understandable and obviously warranted. He was a gem of a human being and a superb colleague. I had Stuntz as a teacher when he arrived at Harvard, and ever since, was grateful for his generosity of spirit and example as a teacher and scholar. But as Nietzsche said, one repays a teacher badly by always remaining a pupil.

And so, on the merits of the work, I have long been a skeptic, though as someone who doesn't specialize in criminal procedure as such, I had refrained from investing the necessary time to ground the skepticism and make it intellectually tidy. Thanks to Steve Schulhofer's piece, however, that task is now substantially underway. With some luck it will do the work of bringing a generation of criminal procedure scholars back on course.  For notwithstanding the many deservedly kind things that could be said about Stuntz, my fear is that his seductive writing and bold and innovative claims took too many people off course from truth and justice. Schulhofer's review, which I'm sure was enormously difficult to write, will provide adequate grounds for others to revisit and soberly re-assess the significance of the Stuntzian corpus of scholarship.

Elsewhere in the issue is John Pfaff's review of Ernest Drucker's book on the epidemiology of mass incarceration. John is guesting here at Prawfs over the next while and so I won't steal his thunder and say too much of his review essay other than it artfully and carefully outlines the empirical basis to wholly undermine much of the conventional wisdom found among lots of criminal law academics and some of the prominent journalists who have been clobbered by their Zombie memes.  

In short, if you're at all interested in being better informed about the American criminal justice system and the pathologies of its scholarship, read Steve and John's pieces. 

Finally, I can't forbear from also highlighting our own Paul Horwitz's contribution to that MLR issue. Paul's critique of Tamanaha and Olson's books on legal education is typically Horwitzian: fair-minded, pointed, and subtle (and thus, Canadian?).  Enjoy!

Reforming the Pardon Attorney Office: Some Preliminary Thoughts

I'm home now, after a few days in NYC last week, where Eric Johnson (Illinois) and Rachel Barkow (NYU) presented drafts at the crim law theory colloquium. Rachel's cool paper lays out the case for moving control over federal prison, foresenics and clemency policy outside of the DOJ. You can find an early draft on SSRN and I think it's coming out later this year in Va L Rev. The discussion with others about Rachel's paper got me thinking again about the federal pardon office in particular and whether (or how) governments should dispense mercy. Because of the recent NYT editorial on clemency reform, there are a number of folks and organizations urgently interested in reform of the Office of the Pardon Attorney. This is in part because Obama's record on distributing pardons is especially low when compared to other recent presidents. (Rachel's paper provides data on that; former pardon attorney Margy Love has been a one-woman crusader on that front too.) Unlike Rachel or Margy, I won't say Obama's record low number of pardons is necessarily stingy. That conclusion presupposes too much to reach that assessment, though I can imagine I might reach the same conclusion if I had the time to review all the petitions myself.

And that goes to my main point. It seems to me that if we're going to have reform of the Pardon Attorney's office, one thing we should try to do is unpack the reasons for clemency to better facilitate understanding and democratic accountability. Often the word clemency is used in broad-brushed ways, and by using it without care or precision, we lose the opportunity to move the conversation forward in useful ways. Accordingly, if we are going to reform the Pardon Attorney's office, and if states are interested in similar developments, then we should at least do our best to shape sites for clemency in ways that are honest even if they are not meant to do (only) justice.

Specifically, clemency sites like the executive pardon can be used to advance justice in its retributive texture. These are the easier cases for clemency and they arise when executive branch officials have substantial doubts about the accuracy of the conviction now, or perhaps because they believe the punishment is too severe (in relation to the offender's moral or legal desert). When officials are faced with classic Type I errors, these clemency sites are attractive and necessary because of the way in which they can be used to reduce or correct such errors--and they are especially attractive when decisions are subjected to some kind of deferential review--as I have argued.

In addition to promoting justice and correcting injustices, clemency sites like the Pardon Attorney could also be used to advance mercy, understood as I roughly defined it once (somewhat controversially), as leniency motivated by compassion, redemption, grace, caprice or bias. Thus, when pardons are bestowed because of a person's post-conviction heroic deeds, or because Christmas is coming, or because the offender has come to Jesus, or because the person's family is close to the President, then such dispensations of leniency should be identified as mercy with particular explanations offered for the leniency.* Here, the decision is made to extend leniency independent of its putative benefits toward crime control.

Finally, clemency sites such as the Pardon Power could also be used to advance straightforward policy goals regarding individual prevention and crime control. On this view, pardons are a way to address and scale back punishments that are unnecessary with respect to the threats posed by particular offenders. Perhaps this offender is no longer a sex offender threat because he has voluntarily sought chemical castration and otherwise completed all treatments; perhaps that violent offender has become an invalid through an accident he suffered while in prison. With this goal of individual prevention in mind, the Pardon Attorney could be used as a space (especially in a world without parole) to re-assess threats of dangerousness that earlier motivated officials to apply a custodial or otherwise onerous sanction that is no longer required from a social self-defense perspective.

Again, I'm not saying I necessarily endorse or oppose all pardons that are merciful or prospectively utilitarian from an individual prevention perspective, but I know that others are attracted to those kinds of pardons. It seems to me that if we're going to have a pardon attorney perform any role related to remitting punishments, it would be a good idea if we could determine which box the President thought a particular offender's petition for clemency belonged in, and why. I doubt that too many people make their ultimate decisions about who to support politically based on who receives clemency and why, but if we do think the Office of the Pardon Attorney has fallen into unjustified dis-use, it might be because such decision-making has in the past been inadequately sorted and scrutinized. Justice, mercy, and prospective utility would be a first pass attempt at trying to get the Pardon attorney, and offices like it at the state level, to think more sure-footedly about what they are doing and why.

*My published and probably still current view is that leniency motivated by any of these mercy reasons are all problematic even if not equally so from the perspective of retributive justice or liberalism properly understood. But my own view on this doesn't matter for the limited purposes of trying to come up with reforms of the Pardon attorney. I understand that not everyone is a retributivist or even a liberal and that some folks want the law to have spaces for interstitial discretion that redounds to the benefit of defendants--even if those benefits cannot be justified on their own feet but rather in service to some other good such as the desire to simply have less punishment. 

Encroachment on Presumption of Innocence? DNA evidence from arrestees

Adam Liptak's got a short piece in today's paper reporting on relief the Chief Justice is granting (qua circuit justice) to Maryland so that it can continue to collect DNA evidence from arrestees (of certain crimes). I love clearing cases and reduction of Type II errors probably more than the next guy but I have a sense this is yet another abuse of the presumption of innocence. In the piece, Liptak quotes the Maryland judge who thinks this intrusion can be justified b/c it's less intrusive than the searches recently upheld in Florence.

I'll have to think some more about it, but collecting DNA from arrestees seems quite different than the strip searches purportedly justified in Florence, that recent SCT case about strip searches prior to entry to jail. The latter can be understood (if not fully justified) as a preventive measure for contraband and dangerous weapons prior to immersion in a detention facility. The former is purely for solving cases. As a result, the former is likely not consistent with the kinds of purposes vouchsafed by the Court in Salerno as appropriate bases to limit pre-trial liberties. The latter is arguably tied to the reduction of criminality or risk to public safety of one sort or another.  CJ Roberts thinks there's a good chance that the Maryland high court's decision (in favor of the defendant challenger) will be overturned. I'm a good bit less certain and thus somewhat surprised by the relief Roberts gave to the enforcement officials here. This will be interesting to follow.

Just the FACs: Fan Action Committees and Fan Support

Dan and I have an op-ed that just posted at The Atlantic, introducing the concept of "Fan Action Committees." The sports counterpart to PACs, these are vehicles for fans to pool money to give to star players (or donate to the player's favored charitable causes) to induce them to join or remain with a favored team. We take a particular focus on last week's Jeremy Lin/New York Knicks saga.

This presents the germ of an idea that we hope (along with sports law guru Mike McCann of Vermont) to expand into a longer essay. Comments welcome and encouraged. Thanks to Mike, Gregg Polsky (UNC), and Brian Galle (BC) for their comments.

Quintessentially American: Suing the Lethal Presidency

I've been a bit frothy over at FB and here lately about the secret source or explanation of law that ostensibly authorizes Obama to kill citizens abroad without any familiar signals of due process. Charlie Savage has some news about new lawsuits that pick up on the related themes advanced in the important reportage/polemic by Tom Junod in Esquire. And along the same vein, via SSRN today, I came across a new student note from Vandy LR about the due process issues facing the killing of citizens without notice or hearing. I haven't read it yet, but you'll dimly recall, perhaps, that I raised similar concerns the other day, to the effect that the knock list ought, in most cases not involving dire imminence or immediacy, not be operationalized until an American citizen on foreign ground's been given adequate notice and a chance to surrender and have a hearing of some sort with counsel. If the person turns down the opportunity, then the strike might be permissible under various conditions establishing some form of treason or calamitous danger.

In any event, the Junod piece and his Esquire blog posts, which are just outstanding, raise great questions for our fellow law profs. It might be unfair to ask David Barron and Marty Lederman by name what they think about this, since they purportedly had a hand in this policy's development and justification (I think I read that somewhere but if I'm wrong, let me know and I'll fix it). But anyone, please: what's the justification for keeping secret the memos detailing the President's authority to execute a knock list that provides no notice or hearing for citizens? And if Al-Awlaki's son was really just collateral damage, then what's the danger to saying so afterward, as Junod recommends? At the very least: let us have the chance to be persuaded to this aggressive point of view.  At this point, I can't see how one can (on legal grounds) disagree with the ACLU's Jameel Jaffer (also a friend from law school), who explained to Junod why the ACLU is representing the American family of Al-Awlaki in the damages suit against Obama's officials:

"The main reason we're bringing the case," Jaffer continued, "is to get some kind of accountability, in     the most basic sense of the word. The government has killed three of its citizens and we think the     government has to account for its actions, first to acknowledge, then to explain. We believe that if you     accept that the government has the authority to kill its own citizens without acknowledging its actions,     you have set up an authority that will one day be abused. Once you create this power, this power will     sit around available to every single future president.

That's the long game I'm most worried about. It's somewhat easy to think Obama won't grossly abuse this power from my perspective. (It's hard to think the power wasn't misused vis-a-vis the 16 year old, however.) But what if Sarah Palin were freakin' President? Also, in case you missed it, Junod reported on an interesting conversation he had recently with an unnamed official intimate with the counter-terrorism procedures. According to that conversation, the justification for silence had to do with preserving diplomatic and security cooperation with other nations--the requirement of non-acknowledgment. If that's the operating rationale, we need to know more about it so it can be scrutinized. Ok, daily froth is over, for now.

 

 

The Sisk Study is Up -- and a call for inclusion

Over at Brian's blog, you can see some observations on the nature and genesis of the new Sisk et al Study on per capita scholarly impact, which I've appended here for your viewing pleasure. Feel free to go to SSRN and throw them a bone for their hard work.  Brian has no discussion board to chat about the Sisk study, so I thought we could have a fruitful discussion here. As with most rankings, I think they need to be kept in context and not overweighted but also not underweighted simply because they don't measure what you most think is important. Sisk et al are right to emphasize how reputation studies for USNews tend to be a bit of an echo chamber and that studies like this one, which, you know, actually measure something, are a useful supplement to folks interested in trying to figure out the quality and impact a faculty is making in terms of scholarship. Again, it's not everything one should look at, but it's something.

My biggest gripe: while I understand the desire (particularly for Sisk and his institution) to limit the study to the top 70 or so, it seems a shame that there aren't resources available to get the info from and vet *all* the law schools. I have the same frustration with that other wonderful (but admittedly limited) study, the Yelnosky productivity one. For reasons that are either self-serving or that escape me, the Yelnosky study excludes the top 50 schools from study, except for those that happen to be in the New England area. Hmm.  I don't like to be snarky about this, but let's face it, inasmuch as the rankings are useful, they are sort of like a public good that is under-produced. (Yes, I'm getting ready for econ camp next week!) St. Thomas and Roger Williams are only investing in the creation of the rankings to the point they find useful (the private good), even though more information about more schools would benefit a larger group of schools or individuals (whether faculty or students. I suppose -- given that St Thomas did so well (coming at #30) -- we should be grateful that they didn't limit the number of schools to the top 40, but in fact studied almost 100 schools. Good on them.

Anyway, share your thoughts or data in the comments.  From what I can tell, the data and the methodology is transparent, so if there are associate deans or other interested faculty and law librarians out there reading this blog, feel free to do your self-study and share the info in the comments to this thread. Perhaps in future years, we can persuade St. Thomas and Roger Williams to expand the number of schools under consideration.

 

 

 

Follow up on Pretrial Release Conditions

I've rec'd some interesting emails in response to the oped/post from yesterday on abusive pretrial release conditions.

Bryan Dearinger wrote to let me know of a paper he wrote about how Congress, in the context of sex offenders, has stripped away the judicial discretion to fashion appropriate release conditions. The paper notes that "a particular, undesignated provision of the Amendments requires that every defendant charged with one of an enumerated list of offenses be subject to a prescribed set of pretrial release conditions, even if the district court would find those conditions unwarranted during a bail hearing." The paper is forthcoming. I haven't read it yet and in truth I didn't know about these provisions until Bryan mentioned them to me.  I have to say, I'm intrigued by but not persuaded yet by Congress' approach here. As a general matter, I like judges to be given guideposts and constraints, but I wouldn't say that a mandatory imposition of legislatively concocted conditions is the smartest approach unless there were various procedural safeguards in place along with some kind of check in place to ensure that the government's intrusions were minimally reasonable. Anyway, I look forward to reading Bryan's paper.

I also received a couple emails from judges who identified with those folks we criticized, arguing in particular that addressing drug addictions or imposing curfews or alcohol consumption was an important component of ensuring public safety. FWIW, I can't speak for Eric off the cuff here, but my quick sense is that the cases mentioned by the judges I heard from are *not* related to our critique. We weren't saying such restrictions on alcohol or curfew or drug treatmen were never reasonably imposed. Rather we were concerned that they sometimes aren't related to the crimes or the offenders but were still imposed.

To use one example that is in the news: George Zimmerman. His claim of self-defense in the killing of Travyon Martin may be wrong or correct. But his shooting of Martin had little to do with alcohol abuse and there's no reason to think that Zimmerman is specifically more likely to commit more crimes if he has access to any alcohol or if he's able to eat dinner at a restaurant or shop for groceries after 6pm.  The imposition of a curfew or alcohol restriction on him is entirely unnecessary in terms of how it facilitates substantial reduction in flight risk or crime prevention. Indeed Judge Lester's court order specifically states that he doesn't think Zimmerman's a risk to public safety. So that leaves flight risk, and there's no connection to flight risks from curfews or a glass of hooch. (I suppose if the thinking is that lots of alcohol might lead GZ to think it's a good idea to flea, but then Judge Lester should simply prohibit more than 2 drinks within X hours in the day.)

Obviously, if a defendant has a history of drug- or alcohol-fueled or related crimes, then restricting his access to such substances is more easily explained in terms of crime prevention or risk to public safety. I wouldn't have a problem with ensuring some kind of response to drugs or alcohol (treatment, testing, etc) in those contexts because of the putatively tight causal connection between the substance abuse and the various resulting crimes. But in Zimmerman's case, there was no established tie b/w alcohol abuse or a penchant for mayhem at night that would have required such restrictions.  As mentioned above, the judge stipulated that Zimmerman wasn't a risk to public safety. 

By the way, Zimmerman's counsel has now asked to have Judge Lester be disqualified from the case. The brief is here, and to my mind, has substantial weight. Curious for others' reactions on this. I doubt O'Mara, GZ's lawyer, would have asked to disqualify Lester unless he thought there was strong grounds to do so, since it's a pretty high-risk tactic otherwise.

Not yet tried, and sentenced to Red Lobster

Eric Miller (SLU) and I have an oped in today's NYT on the quiet scandal of abusive pretrial release conditions. I've reprinted it after the jump. This is a piece that grew out of a some discussion here on Prawfs, and the next thing you know, well, acorns and oak trees and all that. My special thanks to Eric for being such an excellent co-author. (And while I have SLU on the mind, note that Anders Walker, Eric's colleague, has started a new blog on faculty productivity. It's called Faculty Flow.)

Btw, we tried to insert hyperlinks to your scholarship (really, all of you!), but the Times has a rule about capping hyperlinks. Odd. (And my sense is that this rule is actually, um, inconsistently applied. In any event, sorry about that.)

IN May, a federal judge ordered the pretrial release of an alleged robber on the condition that he read and write book reports for 90 minutes daily. Earlier this year, a trial judge directed a domestic violence defendant, again as a condition of pretrial release, to buy his wife flowers and take her out for bowling and supper at Red Lobster. And just last week, in Florida, a county judge’s new bail order forbade George Zimmerman, who claims self-defense in the death of Trayvon Martin, to drink alcohol or go out after 6 p.m.

Of course, these orders are not themselves grave injustices, but they all raise similar and serious legal questions. They spotlight a pervasive phenomenon hiding in plain sight: the abuse of bail and other pretrial release powers for punitive and rehabilitative purposes.

Before anyone is proven guilty in a court of law, the Constitution extends the presumption of innocence. That presumption is at odds with the kinds of pretrial conditions described above.

To be sure, the presumption of innocence is not a guarantee against pretrial detention or other restrictions on liberty. As the Supreme Court has acknowledged, a defendant’s pretrial freedom can, upon a hearing, be limited in various ways when it comes to addressing substantial and reasonable fears having to do with flight risk or danger posed to the community (or danger to the judicial process itself, like in cases of witness tampering). So we don’t dispute that defendants can be, say, monitored by tracking devices while they are released.

But flight risk and crime prevention don’t justify bail conditions requiring book reports or bowling, which have far more to do with punishments or moral education techniques. While such sanctions could be permitted after conviction, they are flat-out unjustified before adjudication.

The more peculiar the conditions, the more likely they are to garner media attention and public scrutiny. Indeed, an appellate court overturned the book reports decision last month (though on the grounds that the defendant should not have been released at all). Unfortunately, the vast majority of these improper release orders fly under the radar. Indeed, the use of bail conditions as a means of engaging in low-level punishment and rehabilitation is more widespread than is generally understood. Drug testing, desisting from alcohol, as well as attendance at rehabilitation programs and mandatory job training programs have become all-too-familiar requirements of pretrial release, even for cases, like Mr. Zimmerman’s, that are unrelated to substance abuse.

This judicial paternalism persists in part because state and municipal judges, who handle the overwhelming number of criminal cases, face less public scrutiny than federal judges. But a bigger problem is that there is no widely established right to counsel at the bail stage. Accordingly, the judge gets to interact directly with the defendant, without the interference of “pesky” lawyers. Even when defense lawyers are present, they don’t make a stink over these improper conditions to avoid the risk of having bail for their clients denied altogether. They figure that at least the defendants will get out of jail, rather than having to cool their heels inside.

It’s understandable for judges to want to attack the social problems they see in the criminal justice system. The problem — besides the obvious issue of assigning punishments to people who might not even be convicted of crimes — is that they are thinking up untested responses on a case-by-case basis. This leads to disparities and fragmentation of penal policy even within jurisdictions; increased scrutiny of suspects at a stage when they should be free to build their defense against the government; and an imposition of the values of the temperance movement on the criminally accused (since even lawful and moderate consumption of alcohol is frequently prohibited). Perhaps most disconcerting is how easy it becomes for regular people to violate these unreasonable bail conditions, which leads to unnecessary arrests and even more overcrowded prisons.

Pretrial release raises complicated legal and policy issues in every case. Still, our core concern is that many judicial release orders exhibit confusion about or disregard for the distinction between pretrial release and post-conviction punishment. Judges determining pretrial release are not authorized to act as social workers or agents of public retribution. They need to stop pretending otherwise.

Dan Markel is a law professor at Florida State University. Eric J. Miller is a law professor at St. Louis University.

 

A couple must-reads

Vaguely apropos the end of my last post, I want to point you to Marshall Poe's wonderful new essay in Inside Higher Ed, which explores the moral imperatives toward open-access university press publishing. I think Poe's right on the money.

Less relevant to us as academics but more relevant as persons interested in plain justice and the veneer of law, you've got to check out this very interesting blog post (and what will be a series of posts on Obama's lethal presidency) by Tom Junod over at Esquire's politics blog. Junod's blog discusses the killing of Al-Alwaki's American son by drone missile and its putative legality.

Some of you know I favor a strong forward lean on terrorists and this seemingly endless war with the Islamofascists. (And yes, there's a personal component to it, having lost my childhood best friend to a pipe bomb on a Tel Aviv beach back in 1990. Discount or consider accordingly.) Nonetheless, ever since Charlie Savage's clutch reporting in the NYT has made clear to us the scope of the problem, I have been very disappointed by the secret legal reasoning that Obama has relied upon to warrant his selection of targets and his authorization of the killing of those targets, even when they're American citizens. I love so much of this country, but the idea that there's a secret document propounded from within the Executive branch that explains the rationale for killing putatively innocent 16 year old American citizens is abhorrent to those of us who cherish rule of law values about a knowable and known source of law.

I hope that those reading this blog -- those who (also) consider themselves friends of the Obama regime, and those who are his devoted political opponents -- will continue to press for transparency and accountability in this respect. It's one thing to say to suspected American terrorists, you're on our knock list unless you surrender peacefully in the next 15 days, at which point you can receive due process. A more modest approach is Junod's prescription: an ex post accounting of any dead Americans killed abroad by the American government. But we apparently have no hope under the current administration for such weak but non-trivial procedural protections ex ante or for ex post oversight. Instead we have a different regime altogether, one where it's permissible to kill American children abroad without any such notice and safe opportunity to surrender, and on grounds that are inscrutable to all outside the White House. Shame shame.  Obama can do better, and we deserve better as a nation. Pass the sunlight, please. And Republicans, feel free to use this as fodder for your daily foolishness scrums with the Dems too, but remember, what's good for the goose is good for the gander.

 

Stolen Valor Act: Dumb but not sufficiently illiberal?

Most of y'all are probably browsing the 190 page monster of the Healthcare Cases, but I'm here to interrupt with some news about Alvarez, the stolen valor case. It's both a bit snoozy and breezy  -- except for the dissent, where Alito blithely smacks down an academic amicus brief from UCLA's Jonathan Varet. Aside from that brief episode of fireworks, and the somewhat surprising claim made by Alito that we have witnessed an "epidemic" of people falsely claiming military honors, the various opinions are, at first glance, well, bland. The majority, by Kennedy, is not especially persuasive at distinguishing Section 1001 federal crimes from what's at issue here. Neither statute requires any kind of harm, real or threatened. So if you want to throw out one, it seems you have to throw out the other. That seems kind of drastic; the government should probably be able to save itself the trouble of dishonest interlocutors. I'm not saying I would pass both those criminal laws, as drafted, myself. To my mind, the stolen valor statute is a dumb use of the criminal sanction, and legislators should have sought less drastic measures to advance their goals besides plopping more drivel in the Title 18 bucket. But even though it's dumb, it's permissibly dumb.

I don't find myself moved by the slippery slope problems the challengers to the statute make with respect to the kind of breathing room that true speech needs in terms of having some false speech protected. The fact that we all err on the road to truth in the market of ideas is largely irrelevant here because of the mens rea requirements. [Update: I should have thought more of the relevance of the satire issue, which I think is knowingly false speech that's still critical for long term health of democracy; I flag but ultimately disregard that as a useful but not on these facts applicable concern.] So, put aside the truthiness interest, and that leaves an autonomy interest to consider, presumably the sort that Varat was getting at in his amicus brief that Alito batted down. I get that. That interest seems worthwhile and important up to a point. But, as I tried to argue in Retributive Justice and the Demands of Democratic Citizenship, the autonomy interest with respect to criminal legislation has at least two dimensions: the negative one (the right to be let alone by the government) and the positive one (the right to engage in democratic self-government). 

To my mind, this statute was not so illiberal that it doesn't deserve (as a moral matter) to be allowed on the books. I suppose such sheepish support probably puts me with the dissenting 3 (certainly not my favorite company: CT, AS, and SA).  Not that anyone's asking but were I in a position to have upheld the statute, it would have been with much less rhetorical bombast. More references to Holmes and emphasis on the fragile asininity of democracy and less patriotism. But maybe I'm wrong. I'll need to think it over some more.

The Joy of Free, Redux

I have an op-ed in this week's Forward that largely rips off riffs on a blog post I had here a couple weeks ago. The piece has to do with why "free" is not obviously a terrible model to use (in the context of Jewish continuity and community-building efforts). 

Fixing the Constitution In Some Small Ways

Thanks to Howard for the tip-off below about the piece in Slate I did with Ethan on fixing the double jeopardy clause. I also did a similar piece today for the same forum with Eric Miller (SLU) about the bail clause. I continue to be lucky to have such fine co-authors.

Re: double jeopardy, I should add one point that we didn't much discuss in our short suggestion piece. Some might worry that allowing one juror to block a conviction would create too much incentive for corruption or too much likelihood for ideological peculiarity to drive the result. On the first point, we noted that if there is real evidence of corruption, then that would be sufficient to permit re-prosecution.  On the second point, this would be my response. In a world where double jeopardy protection meant something, I'd be worried about outliers too, and I'm guessing Ethan and I would have been open to allowing re-prosecution if there was a strong super-majority to convict. However, my sense is that, in light of the dual sovereign doctrine, as well as the very permissive Blockburger test, which most states have in determining whether a defendant can be tried based on crimes occuring in the same event or transaction, most states will be able to find a way to get a second bite at the apple if they really need it. The sad truth is, current federal constitutional double jeopardy protection is, as we said, anemic and will only be somewhat improved by the adoption of the rule we propose. 

How Bad is Free (for Jewish Continuity Purposes)?

N.B., this post is a bit, um, Jewy though it raises some larger issues that might be of interest to Prawfs readers.

Over at the Forward, there's an interesting oped by David Bryfman about the danger of giving various things away for free to facilitate Jewish continuity in an age of assimilation. The Birthright trips for young Jews to go to Israel for ten days are probably the best example. But there are numerous other ones that Jewish communities are experimenting with. Last night, my synagogue decided to make religion school for free to 3/4/5 year olds in the community in order to spur folks to prioritize attendance and participation. We also benefit from an excellent program called PJ Library, which sends a book or music cd to young Jewish children every month. I love this program--to be sure not every selection is a winner with my boys, but I'm thrilled that we have this here in Tallahassee. And I'm generally unopposed to the idea that patrons in a community would want to make participation in Jewish life relatively free for others to do.

But Bryfman sounds a cautionary note: is there a problem when people have no "skin" in the game?

Yes, I can see some of the possible downsides. But the problem with the oped is that it assumes (like too many economists?) that money is only one way of putting skin in the game.  To my mind, time, enthusiasm, and support are other moral currencies that people may pay in, and not necessarily immediately but backward and forward over the course of their lives. Especially for young families and young adults who are still figuring out how to shape their lives, and what role religious and cultural affiliation will play, I see the subsidization of experience and ritual and education as an important link in the chain. It might not succeed for everyone--of course, what does it mean to succeed? -- but it will for some. Indeed, I continue to think of my year working on religious pluralism and studying philosophy in Israel after college (sponsored by the Dorot Fellowship) as one of the great gifts I have received from Jewish institutional sources. I view that year as having been as critical to shaping my adult life as my college experience or the sum of my childhood parochial education. Would it were so that everyone who wanted to do that kind of extended immersive experience could do so without fear of going into debt or penury.

Bryfman's oped says that "free" might devalue the experience of the books or Israel, etc. There are at least three things worth thinking about in assessing this claim, none of which are really addressed by Bryfman. First, as alluded to above, there is the basic distributive justice aspect to think about: how many poor or middle-income folks are shut out from some aspects of communal life because of these costs that are being borne by donors? "Free" creates access as well as a solidarity benefit, much like social security. I'm not saying we should never question the model, but it might well be that we want to create a common vocabulary of experience and meaning across the income spectrum and some of these free goods are able to do that thanks to donors willing to make that happen for all.

Second, think about who are the primary beneficiaries of the books or the religion school or the Israel programs? It's primarily young people or kids who would not otherwise be paying for these things anyway. So to the primary audience, the connection between the "benefits" of having skin in the game and the resulting value would probably never have been established.  For those who would not normally be paying, the value has to be realized independent of the financial sourcing anyway.

Third, let's assume arguendo that Bryfman is right that "free" devalues the experience or value that might otherwise be associated with a non-free model. Even if the value of the Israel experience or the books or religion school is devalued (say its value goes from 100 to 50 for the sake of argument) --  it does not mean it has no value. At least I don't take Bryfman to be claiming that there is zero good resulting from free books and cd's to Jewish kids or Birthright trips. If there is some non-zero value to the community that arises (and let's set aside the difficult questions of what metrics we use to measure that value) from these programs, we still have reason to prefer these mechanisms for generating the value if we don't think there are other ways of doing so that are more effective or more efficient. And I find it hard to believe that the model of Jewish life that dominated over the last forty years (outside of Orthodox circles, which frequently used significant subsidization models) is the paragon of effectiveness.

So, if Bryfman wants us to "pause" before we embrace "free," fine. Everything we do as a community should be mindfully done. But the arguments and evidence for "reset" based on the putative downsides and dangers of "free" seem quite speculative and not particularly persuasive.

A few reading pointers for Tuesday morning

First, I want to point out an outstanding article I just read titled Election Law Behind a Veil of Ignorance. It's by Chad Flanders (SLU), a former co-author of mine. There's an early and differently titled draft up on SSRN. Admittedly it's outside my area of expertise, but I found its clarity and pointedness -- consisting in a gentle rebuke to/modification of Rick Hasen's celebrated revival of the Democracy Canon -- sharp and instructive. It's pretty short as law review articles go, and has lots to say about the relationship between statutory interpretation and democracy. 

Next, this morning's Times was brimming with some excellent pieces. I guess they didn't want them buried over the long weekend!

First, there's a long piece on Obama's central role in approving the knock list for who gets targeted. The assessment is something along the lines of: wow, who knew Democrats could be so ruthless in the forward lean on terrorists. The most interesting piece of news (from my perspective) is the tidbit from Romney's foreign policy advisor who is critical of Obama for not revealing the legal memo that purportedly justified the targeting and killing of an American citizen abroad, Anwar al-Awlaki. 

Mr. Hayden, the former C.I.A. director and now an adviser to Mr. Obama’s Republican challenger, Mr. Romney, commended the president’s aggressive counterterrorism record, which he said had a “Nixon to China” quality. But, he said, “secrecy has its costs” and Mr. Obama should open the strike strategy up to public scrutiny.

“This program rests on the personal legitimacy of the president, and that’s not sustainable,” Mr. Hayden said. “I have lived the life of someone taking action on the basis of secret O.L.C. memos, and it ain’t a good life. Democracies do not make war on the basis of legal memos locked in a D.O.J. safe.”

 

I agree with Hayden. The prospect  reality of an internal memo serving as a secret law--it's a real problem for rule of law values that both parties should vigorously support. Put simply, I'm bummed that the Administration hasn't saw fit to distribute the memo notwithstanding (or because of?) Charlie Savage's reportage on the substance of the memo. But, fwiw, if Republicans end up winning the White House (ack!), then I hope they follow Hayden's counsel, rather than rely on the "precedent" of Obama's secret laws...

Next,  Erica Goode has an awesome piece discussing the promise and perils of a relatively new and somewhat unknown " gunshot detection system called ShotSpotter [that pinpoints] the location of gunfire seconds after it occurs." Some critics of the system are worried about how the acoustic surveillance intrudes upon privacy interests, but the sensitivity of the system, which can pick up some conversations,  is meant to be triggered only after there's a gunshot. No doubt, this kind of sound amplification can be abused absent adequate controls. Still, the idea that this might reduce further the problems of Type II errors in relation to gun violence in cities is very seductive. Indeed, I wonder to what extent it might be used as a substitute (rather than just a supplement) for NYC's aggressive stop and frisk policies. Obviously, Shotspotter is an ex post measure whereas the stop and frisk policies are ex ante, but it might be the case that the use of Shotspotter would have a more effective ex ante preventive effect than the aggressive stop and frisk policies cops are using in NYC. My guess is that both will continue to be used -- to the extent the law allows. Relatedly, it'll be interesting to see if the lawsuit unfolding in Judge Sheindlin's court has much practical effect in curtailing the NYPD's off-the-record stop and frisk practices. Here's a link to J. Sheindlin's decision to certify the class at issue. 

Finally, take a look at Adam Liptak's Sidebar column on mandatory minimums in federal sentencing and then Sandy Levinson's oped laying the predicate about our imbecilic constitution for his new book about what we can learn from state constitutions. Classic Sandy: bracing and bright.

 

 

Reading Assignments as a Condition of Bail? Really?

Well, as Judge Vaughn Walker says, it might have something to do with the seat.

That's because when Judge Walker's successor, Judge Yvonne Rogers, became a federal district court judge in San Fran, she seems to have inherited his penchant for creative sanctioning. You might recall Walker garnered fame not only for his role in striking down Prop 8's restriction on same-sex marriage, but also for the shaming sanction  he imposed on Shawn Gementera, who had to stand outside a post office with a sign that said "I stole mail.  This is my punishment."  (The Gementera sanction was affirmed by a divided panel on the Ninth Circuit and the opinion is now part of many crim law casebooks. Disclosure: I had a small role in the appellate proceedings.)

Now, Judge Rogers has triggered some curiosity across the country for a recent bail provision imposed on Otis Mobley. Specifically, while Mobley is released in advance of his upcoming trial, he is required, as a condition of bail, to read certain books for an hour a day and to write a report for a half hour a day.

The reading list hasn't yet been circulated, but still, one has to wonder about the suitability of such a condition with respect to bail. It wasn't included in the list of conditions recommended by the magistrate judge--not surprisingly.  Regardless of how one feels about such creativity in the context of punishment,* one has to wonder about its usage when it comes to bail conditions.

After all, bail is pre-trial, and thus pre-adjudication. Moreover, we do have this business associated with the presumption of innocence. SO, while it's one thing to say that the moral weight of such a presumption can be overcome when it comes to substantial and reasonable fears having to do with flight risk or danger to the community (or danger to the judicial process itself in cases of witness tampering), those issues are hard to imagine as related to the conditions associated with reading and writing reports. Rather, it seems as if reading and writing reports are tethered to the blaming and communicative functions of punishment for wrongdoing. To my mind, such conditions should not be imposed because they blur the lines of what we're trying to achieve, as a society, before and after adjudication. To be clear, I'm not saying that Mobley should not be released (although he has some, um, icky issues to work out) and I'm not saying he should be detained pre-trial. But the judge's order is curious because it is likely to be conceptually confused about the nature of pre-trial release and detention. It would be nice if we could find out, soon, what the judge is assigning, and why.

*Putting aside some rule of law reservations that nag at me about "creative" sanctions and punishment generally, I'm largely in favor of guilting punishments (which are designed to facilitate moral education without the public degradation associated with shaming punishments). As a general matter, it's fair to say that assigned reading and writing can facilitate those valuable guilting goals, perhaps even quite well. (Still, I'm not sure I'd go so far as ordering a defendant to write a book, as this WSJ story details about a defendant in a pharma-related crime.).  By contrast, I have a strong aversion to shaming punishments, which I think are largely illiberal and anti-retributive in spirit, as laid out here, among other places. For those interested in alternative sanctions more generally, I've linked to a few here (under media appearances) for some news stories over the years about the phenomenon.

 

The New Info re: Trayvon Martin and George Zimmerman

The latest batch of information shared by the government with the public and the defense continues to bode poorly for the prosecution, at least when held to a BRD standard for a murder charge.

1. The Times has posted a few audiotapes of interviews with witnesses of the encounter between Martin and Zimmerman. I'm on a deadline with something else, so I haven't gone through all of them yet, but at least one of them provides information to the effect that it corroborates Zimmerman's account that he was getting the stuffing beaten out of him by Martin prior to the shooting, and that Zimmerman had cried for help.

2. The article accompanying the audiotapes also reports that Martin's father told police that it was not Trayvon Martin who cried out for help on the 911 tapes. (Zimmerman's father said it was Zimmerman's voice, whereas Martin's mother had earlier said it was Martin). Audio specialists with the FBI apparently couldn't tell.

3. Traces of pot were found in Martin's body at the time of his death.

4. There's a picture of Zimmerman's bloodied head up also, which again, corroborates the story Zimmerman told and the report of the witness who saw Zimmerman getting beaten on the pavement.

None of this is to deny that there could still be a plausible case made for imperfect self-defense leading to something like a manslaughter conviction. (Indeed, one of the investigators had initially prepared a probable cause for manslaughter recommendation.) But taken together, these various pieces of information make it much less likely that a jury will find Zimmerman guilty of murder based on a beyond a reasonable doubt standard. Interestingly, if you read the NYT piece carefully, you won't really see any discussion of specific evidence bolstering the government's case discussed. (That's not to say it's not there in the discovery; just that the reporter had omitted to discuss anything).

A friend of mine who's a former prosecutor here in Florida, and now is a local defense lawyer, told me he thought that no charge would stick against Zimmerman. If the NYT piece is roughly accurate regarding the contents of the new information, I suspect the release of the new information won't do much to change his mind.

P.S. I just checked out the Orlando Sentinel coverage, which is a bit more extensive, and which again bodes poorly for the government.

5. The autopsy report reveals that the gun was fired touching Martin's clothes. Indeed, "Trayvon's autopsy showed that he died of a shot to the heart and that the gun was so close, it had left gunpowder burns on his skin." This too is consistent with Zimmerman's account. If in fact the gun was shot from further away, it would possibly cast doubt on the nature of the encounter.

6. There is no witness testimony or other evidence regarding who started the altercation.

 

 

The Selection of Charges in the Zimmerman case

I've been getting a bunch of media inquiries about the Zimmerman case, most of which ask me things far enough outside my expertise that I decline to help (a soft version of the Fallon amicus rule!). But I watched with surprise at the unfolding decision by state attorney Corey to file second degree murder against Zimmerman.  Corey is reputed to be a prosecutor who is both tough and possessing integrity. For all I know, she and her colleagues have all sorts of evidence that hasn't yet been leaked and that would support a murder charge beyond a reasonable doubt.

But if everything we've seen reported is true (and I'll assume this provides a useful summary), and there aren't other missing pieces of evidence, I cannot fathom how a jury would return a guilty verdict for murder. If that's right, what could justify bringing a murder charge? Certainly, the idea of charging high with the hope of inducing a plea could explain bringing a murder charge as a matter of tactics. But it would not be a justified basis for bringing a murder charge. To my mind, it would be repugnant to bring a high charge if the prosecutor herself does not readily believe in it, and if it is not readily provable beyond a reasonable doubt. Some jurisdictions or prosecutors' offices might say: this is complicated stuff, we have an adversary system, let the jury sort it out. That's a cop-out. Prosecutors are not partisans or advocates; they're agents of public justice. I have no special insight into Corey's evidence files but I sure hope she knows more than we do. Otherwise, a murder charge seems like a terrific injustice, and one that happens so frequently that it's become difficult to see in plain sight. 

Anyway, curious if anyone shared my surprise (I don't want to say disappointment b/c it requires evidence of facts that I don't have) at the murder charge?

P.S. I'm having trouble getting Typepad to allow me to comment on my own post, so after the jump, I'll respond to Sam's first comment. Also, I've appended a comment to AF's comment. Last, for now, here's an interesting document that constitutes the probable cause statement by the government. This scenario reveals a story different than the one told in the NYT summary I linked to earlier. So, of course, change the facts, change the analysis...

Sam, I'll issue the same caveats. I'm not a member of the Florida Bar and don't study this stuff as part of my research. 
That said, based on what I've seen, for 2d murder, you have to have evidence showing a depraved mind without regard for human life. I can't yet see a jury, faced with the evidence purported by Zimmerman and the witnesses, etc,  conclude that kind of mens rea brd. 
By contrast, if one thinks Martin was engaged in unlawful battery against Zimmerman, and one thinks that Zimmerman unnecessarily killed him (some form of imperfect self-defense) then the following statute section would probably apply.  
782.11 Unnecessary killing to prevent unlawful act.—Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in s. 775.082.
Moreover,  the culpable negligence for the manslaughter statute you mention is defined in the jury instruction in a most peculiar way (ie, it allows recklessness to be conflated with negligence):  Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights. The negligent act or omission must have been committed with an utter disregard for the safety of others.  Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

One more thing:  Apparently even Martin's mother thinks the shooting was an "accident." She told NBC: "I believe it was an accident. I believe it just got out of control and he couldn't turn the clock back."
Maybe Martin's mom doesn't quite understand the significance of what she's said, but, wow, this case keeps getting more interesting. Can you imagine if Zimmerman had just said, Sorry, your son and I got into words, he was beating me up and I felt I had no choice but to shoot, but I'm sorry for your loss. Do you think this whole thing would have been stopped right there? 

Update: Martin's mother has now clarified her statement to the effect that she still believes Zimmerman did in fact stalk and murder her son in cold blood. 

Law Deans in Jail! or Law Deans in Jail?

Over the last few days, I had the pleasure of perusing a new draft, Law Deans in Jail, (co-authored by Morgan Cloud and George Shepherd, both of Emory). The paper is forthcoming, and I confess I'm curious what the indemnity clauses will look like in the author-publisher agreement...

My comments are really more requests than criticisms as such. Upon reading it earlier this weekend, my first reaction was a plea for punctuation. Given that the brief/paper makes the serious and plodding case for the criminal liability of some deans and institutions (as well as USNews) under various federal criminal statutes, I was puzzled why the title didn't have a ? mark in its title. The merely declarative title makes it seem as if the case is open and shut. In the introduction, the paper notes that the sources for making the federal case against various persons and entities are news stories, not sworn depositions, etc, and thus the claims about liability are contingent or tentative. By the end of the paper, however, it's hard to see much for the case for contingency. My sense at least is that Cloud and Shepherd think there's a basis for a federal case here and that it should be made.

I mention this in part because it reminds me of Paul's earlier post today referencing Fallon and amicus briefs, and the duties of scholars (a topic I find myself perennially interested in).  I think Cloud and Shepherd have made a very interesting argument in their paper. It's not entirely one-sided. After all, in  a few places, they consider why deans might respond to the USNews questions in "gaming" ways that are perhaps morally defensible. But the paper's not exactly balanced with much effort to discern what might be the other side's defenses, legal or moral. Of course, not every paper needs to be aggressively even-handed, and there is still a good case for some scholarship to be useful enough to lay the groundwork for actual litigation. (*Disclosure: Maybe I'm just saying that tendentiously because I have a project that's I hope will eventually serve that function too.)  

So, in addition to the plea for the question mark and, with it, the unreasonable request for more discussion in an already 70-page paper of the shortcomings of the evidence adduced against the legal education institutions and USNews (or the possibility of countervailing defenses), I also have a second question.

That is: among our readers who have read the paper and served as a prosecutor (preferably a federal one), or otherwise know a decent enough amount about criminal law, how many would actually exercise the discretion to bring the case, or at least investigate its claims further, etc.? (This goes to the usefulness of scholarship per Paul's discussion in his other shrewd post of the morning.) If you wouldn't bother from the outset, why not? If you would make at least preliminary investigations, what kind of specific factors would convince you that this is a federal case worth bringing as a criminal case as opposed to some other form of legal response (or perhaps no legal response, just social pressure/media, etc.). (Please don't just refer to the Petite or other USAM factors. Apply them!). Or, if you're a populist, like some friends of mine, would you want an equitable grand jury to decide whether to go forward apart from the legal accuracy question?)

I was definitely more persuaded after reading the paper than I was beforehand that a case could be made. I understand lots of people might like to see the criminal law used to this effect because of valid concerns they have about the misleading data that was circulated and left uncorrected about job prospects or LSAT scores by USNews.  But I have some qualms, none of which are vital to resolving the "federal case" issue but need to be kept in mind still. First, if law school deans now respond to the threat of criminal liability (or other legal recourse) by having to independently seek verification by Jones Day or other expensive law or accounting firms about the numbers produced by their employment and admissions offices, then that cost will be passed on to students and faculty because of a breakdown in the trust between Deans and those offices or because some Deans acted very poorly. Maybe that's a cost worth bearing but how much are people willing to pay for that?  Second, maybe Deans should simply ignore the social demands on them created by the rankings and then not worry about these issues. Here, though,  I think there's a colorable fiduciary claim that deans would violate duties to their stakeholders if they utterly ignored rankings; my view is they should pay them attention but not to the exclusion of acting ethically.  I say this in part because I value the information-forcing benefits that rankings provide to the public.

Finally, maybe USNews and law faculties around the country need better "warning labels." I.e., Law schools could say, for the public interest we have made reasonable efforts to gin up information that conforms to the requests made by USNews or others in allowing informed decision-making, but there is always the possibility of human error or malevolence that we couldn't control, and so, caveat emptor should apply to the consumption of these data...

So: a federal case? Is this an instance of academic overcriminalization/prosecutorial over-reach?  Or a much needed instance of social and legal responses to hold accountable through federal courts those who would train our legal overclass?

(Signed, verifiable, civil and substantive comments invited. Others will be removed and possibly banned.)

Reading list suggestions for Crim Students

A student of mine asked me recently about books that give an inside feel of what it's like to be a lawyer in the criminal justice system. I thought I'd crowdsource and invite you to weigh in. 

Off the top of my head, I could think of a few. I haven't read them all or even many of them, so perhaps I should add them to my Amazon wish list...feel free to add more suggestions in the comments.  

David Feige, Indefensible

John Kroger, Convictions

Dershowitz, The Best Defense

Abbe Smith, Case of a Lifetime: A Criminal Defense Lawyer's Story

Kevin Davis, Defending the Damned 

Stephen Bogira, Courtroom 302

 

Why I Blog (as a Law Professor)

The following essay on why I blog was solicited by Chris Lund for the recent issue of the AALS Newsletter for the Section for New Law Professors. You can see the other  "Why I Blog" essays by Maher, Albert, Shay, Helfand, Mason--all of whom, oddly, are Prawfs alumni -- over here.

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Why I Blog (as a Law Professor)

I’m not sure why, but my instinct is usually to dodge the question of why I blog. Perhaps I’m scared of the answers. But for those of you thinking about taking the plunge into the blogging waters, here are some quick thoughts.

Just for background, a few friends and I started Prawfs.com (aka PrawfsBlawg) back in April 2005, when I was transitioning from legal practice into the legal academy.  At the time, I was just finding my scholarly voice, and blogging seemed like a shiny new vehicle in which one could converse with other scholars.  Prawfs was one of the few group law-professor blogs back then. The hope was that we would provide an ecumenical but mostly center-left and somewhat edgy space for commentary about legal, political, and academic developments. 

I initially imagined that we’d evolve into a sort of counterweight to the flourishing Volokh Conspiracy.

It wasn’t long before we realized that idea was both too difficult to achieve and in some sense not even an attractive goal. The contributors to the VC, it turns out, were far more committed to daily blogging about current events than we were. Moreover, we ended up growing into an entirely ecumenical space without any intentional gravitational force exerted by the center-left point on the spectrum. As a result, Prawfs morphed into a portal for the community of (primarily) American legal scholars, one where discussion about what one should wear to class was just as likely to appear as a discussion of the defective reasoning in the latest Supreme Court opinion.

 

To my mind, this shift – where we became a more collectively introspective enterprise – was entirely salutary. Indeed, I think I continue to blog because I love the notion that there is a virtual space in which the academic legal community is strengthened and sometimes transformed by the ideas and experiences that we share in the blogosphere.  Prawfs is, at least every now and then, a catalyst for those changes.

 

Blogging does take up time, of course, and one has to be mindful of how to integrate that commitment alongside one’s other obligations to family, community, and work. I keep this time-management issue under control by tending to blog about one of two things: topics oriented toward the community of scholars generally (such as the ethical practice of legal scholarship or the future of SSRN) or topics directly related to the scholarship that I love spending much more of my time on. Neither area requires lots of additional research for me, nor is there a pressing deadline that I have to bear in mind.

 

That said, because I still love long-form scholarship, I sometimes avoid using the blog to elaborate on topics that I care about but that I worry will seem too abstruse. I also sometimes avoid the effort of trying to pack my arguments into digestible blog posts, because I don’t wish to get ensnared into a debate in the comments that might prove exasperating or otherwise, um, icky. That said, once you start blogging a little bit, you realize there are ways of massaging the language of your blog posts so as to avoid inflaming the worst and most abusive online readers; the key is writing in a conversational way, not too dogmatic or harsh, but not too timorously either.

 

Time, imprecision, and frustration are sometimes the costs of trying to make a piece of scholarship accessible to non-specialists. Still, that effort is often worth it, especially at Prawfs, where we have made efforts to ensure a relatively congenial community of commenters. After all, one of the best things about blogging as a medium is that it enables you to find new readers and interlocutors for your work and ideas. And as writers, you win your readers one by one by one. This point about community building seems especially salient in light of the fact that law professors live a largely monastic existence in their offices. Blogging helps as an antidote to that vocational loneliness. Finally, I think we are obligated to make some efforts to get our ideas out there. As scholars, we spend years trying to generate intellectual capital. We are paid to do so by virtue of the generosity of public legislatures and private tuition and donations. Accordingly, I think we owe our benefactors our efforts to disseminate our hard work beyond the typical and sometimes closed channels of distribution that we often rely upon.

In sum, I blog because, first, I sometimes have ideas and care to share them, and second, and more often, I am curious about an issue facing the legal academy, and I’d like to hear what other people do to address that issue. Blogging, then, creates a space for me to teach, but more selfishly, it is a space where I can be taught.

 

A Recent Illustration of Political vs. Comprehensive Retributivism

This post will exhibit fidelity to Paul's recent heuristic for determining which posts belong to which writers. Yes, this is about retributive justice, and punishment more generally. I raise it now in part because a couple of my favorite folks in the field are guesting on Prawfs, Michael O'Hear and Carissa Hessick, and perhaps they'll want to weigh in.

In some of my recent work, I've tried to elaborate the distinction between what I call political retributivism from comprehensive retributivism. I'm a fan of the former in liberal democracies but more likely to enlist with the comprehensive retributivists, to some extent, in wicked regimes. Part of the attraction to political retributivism is that it recognizes the special communicative language that state punishment speaks in, and it attempts to impose, calibrate, and justify only the liberal state's efforts at authorized punishment for criminal offenses, rather than trying to make sense of or justify the amount of suffering an offender experiences in response to his moral wrongdoing. So the emphasis is on punishment for offenses rather than suffering for wrongdoing. It's pretty difficult to tell which approach has more adherents within the retributive justice camp. I like to think the political approach is winning the hearts and minds of most criminal law theorists, at least within liberal democracies, but it's pretty clear that it hasn't happened yet. 

Criminal law theorists are not without their standard ways of drawing examples to illustrate the differences between the approaches: we often talk about the burglar who breaks his leg during the home invasion or the reckless driver who kills a family member as a passenger in his car. Should the fact of private suffering mitigate state punishment or liability, or in extreme cases, thwart liability by way of prosecutorial declinations?

Often, these examples seem abstract. Here's one ripped from the pages of the recent news. A couple weeks ago, a New York man perpetrated a crime of unspeakable cruelty: he doused a 73 year old woman in gasoline, and then lit her on fire in an elevator, and blocked her escape so she had to burn to death.  As the reporter for the Times put it:

Mr. Isaac, 47, methodically set the woman aflame, burning her alive in the elevator of her building in Brooklyn on Saturday, only a few feet from her apartment door, the police said. He sprayed the flammable liquid in the woman’s face and over her cowering body, and then lighted a Molotov cocktail to ignite the fire.

Within minutes, Ms. Gillespie was burning to death in the narrow cab, and her assailant had fled down the stairs. The attack lasted only a few minutes, all of it captured by surveillance cameras; the sheer, calculated brutality stunned even the most hardened of homicide detectives.

During the course of the crime, he experienced some severe burns himself. Now I take it as a given that his liability to murder charges shouldn't be influenced by his private suffering that he experienced as a result of his crime. (Notice that his suffering is a result of his crime but not a response by others to his crime.)  I also think I would be unmoved by any desert-grounded claim that his sentence should be reduced, even somewhat, as a result of his injuries, which don't appear to be life-threatening. But here, I constantly face challenges, not only from comprehensive retributivists, but also the various utilitarians out there who think that "extra-legal suffering" should be offset by reductions in legal penalties. To me, it's a crazy suggestion that indicates that people don't understand the social meaning of punishment correctly, but it's an intuition that remains rather obdurately.