Tuesday, December 1, 2015
This Term, the Supreme Court will once again consider whether the University of Texas at Austin is illegally discriminating on the basis of race in its undergraduate admissions program. Most commentators expect the University to lose because it seems to have so little need to consider race as an admissions factor in light of the success generating racial diversity its Ten Percent Plan has had all by itself. This does, indeed, seem to be an easy case. But it is an easy case only because it has been litigated upon on a dubious premise: that the Ten Percent Plan is itself constitutional. The more interesting and important question is whether this premise is false. I think it may be. The Ten Percent Plan was (successfully) designed to replicate the discrimination against whites and Asians that the University had achieved using pervasive racial preferences in the 1990s. If a law is motivated by racial discrimination and has the effect of racial discrimination, isn’t the law racial discrimination? And, if it is, isn’t it constitutionally suspect? The short answers to these questions are yes.
Friday, November 27, 2015
In 2009, the Supreme Court upended the procedures for constitutional litigation. In Pearson v. Callahan, the Court rejected a rigid requirement that in assessing qualified immunity, courts must first address whether a constitutional right was violated and, if so, only then address whether that right was clearly established. After Pearson, where the right is not clearly established, courts have discretion to either dismiss the claim without going further or decide the constitutional question for the benefit of future litigants.
By analyzing over 800 published and unpublished qualified immunity decisions, this Article offers the first comprehensive study on the effects of Pearson in the federal courts of appeals. The results are revealing. Most important, this Article shows that Pearson’s procedural rule may affect the substantive development of constitutional law in at least three ways. First, the data suggests that concerns about “constitutional stagnation” may contain some truth. Specifically, although appellate courts are still deciding constitutional questions most of the time, they may not be deciding certain types of questions. Second, there is disparity among circuits on whether and how courts are reaching constitutional questions after Pearson. Because circuit courts frequently follow each other’s cases, this disparity may give certain circuits an outsized voice regarding constitutional law. And third, it is possible that Pearson may have an asymmetric impact on constitutional doctrine because of the potential overlap between judges’ substantive constitutional views based on their judicial ideologies and their procedural willingness to decide constitutional questions. Over the long run, this asymmetry between judges may shift the substance of constitutional precedent.
All of this suggests that the Supreme Court may be wise to revisit Pearson. To promote a more consistent development of constitutional law, the Article recommends that qualified immunity’s procedural standard evolve once more to require courts to give reasons for their exercise of Pearson discretion — akin to administrative law’s reasoned-decisionmaking requirement. Although Pearson sets forth a number of factors courts should consider when determining whether to exercise their discretion to decide constitutional questions, courts rarely provide their reasoning. This Article demonstrates why that should change.
NYTimes has the story, which begins:
Hundreds of demonstrators on Friday marched down the middle of North Michigan Avenue, the city’s premier downtown shopping district, forcing the police to close the six-lane thoroughfare to vehicles and prompting some businesses to lock their doors for at least part of one of the busiest shopping days of the year.
A mix of ages and races, the protesters marched up and down the avenue, known here as the Magnificent Mile, for several hours, calling for justice in the shooting death of a black teenager by a white Chicago police officer.
“Sixteen shots! Thirteen months!” they chanted, about the number of bullet wounds in the teenager, Laquan McDonald, and the length of time it took to bring charges this week against the officer. The Rev. Jesse L. Jackson and Representatives Danny K. Davis and Bobby L. Rush marched with the crowd as rain fell and a blustery wind swept through.
Groups demonstrated Friday in other cities, including Seattle, Minneapolis and New York, linking their protests over police conduct and the treatment of black people to a day when the nation’s focus is usually on the Black Friday shopping frenzy.
Wednesday, November 25, 2015
The rise of the sharing economy raises important new questions about public accommodations law. Some have argued that the sharing economy has the power to reduce or even eliminate discrimination on the basis of race in traditional public accommodations such as housing rental, transportation, and commerce.
Are these optimists correct? Is discrimination a problem in the new economy? If discrimination is not a problem in the new economy, why is the new economy different from the old economy? If discrimination remains a problem in the new economy, what form does such discrimination take? And what legal mechanisms can we use to address it?
In this Article, I argue that the new economy has not solved race discrimination in public accommodations, and, indeed, that it has raised new concerns that civil rights law must evolve to address. Most obviously, the online platforms that form the basis of many sharing economy businesses often make race salient to both parties to a transaction, which facilitates discrimination without the parties ever coming face to face with one another. Such discrimination may be rooted in either conscious or unconscious bias. Available evidence suggests that this relatively traditional form of discrimination affects the sharing economy to the same extent it affects the traditional economy.
Perhaps more troublingly, the sharing economy also facilitates new forms of discrimination by aggregating the experiences of many economy participants over time. Businesses such as Uber and AirBnb allow service providers (drivers; landlords) to rate service users (passengers; renters). Over time, these ratings aggregate the preferences of many service providers, and to the extent that the service providers are consciously or unconsciously biased, members of disfavored racial categories will gradually average lower ratings than their more favored peers. On the basis of this seemingly objective rating, service users who are members of disfavored racial categories may begin to receive worse service, or, eventually, to be denied service altogether.
The Article proceeds in four parts. Part I traces the history of public accommodations law, from its contested early roots to the Civil Rights Act of 1964 to its uneasy status today. Part II turns to the new economy. It describes the features of that economy, explains the hopes of some that the new economy offers a solution to racial discrimination in public accommodations, and then offers evidence suggesting that such hopes are unfounded. Part III considers available legal mechanisms to combat discrimination in the sharing economy. While such mechanisms offer considerable promise in many situations, they ultimately fail to address completely the unique way in which discrimination operates in the sharing economy. Part IV, then, calls for new antidiscrimination laws to take account of the unique features of the new economy, and briefly describes the form such laws should take.
The number of capital murder indictments filed across the state since 2010 has plummeted by 77 percent, as just 19 have been brought this year.
During the same time period, the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.
The Ohio numbers mirror a national trend involving the death penalty. Legal experts cited the high costs of taking a capital case to trial. They also said decades of appeals make the death penalty extremely burdensome on the criminal justice system and traumatic for victims' families.
The death penalty is on the decline in America. Executions hit a 20-year low in 2014, and most recently, Nebraska became the first conservative state in 40 years to repeal capital punishment. Several other states, from Pennsylvania to Colorado, have put executions on hold. There are several reasons states are doing this — starting with popular opinion.
Tuesday, November 24, 2015
"EEOC v. Abercrombie & Fitch Stores, Inc.: Mistakes, Same-Sex Marriage, and Unintended Consequences"
In EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court held that a job applicant need not notify an employer of a needed religious accommodation in order to bring a claim of religious discrimination under Title VII of the Civil Rights Act. The decision has been heralded as a victory for religious employees and job applicants. Although Abercrombie is certainly a victory for many of these individuals, it is not clear that the decision will always be beneficial to religious employees. Indeed, while the decision enhanced protections for job applicants with clear religious accommodation it may have inadvertently penalized a different class of religious job applicants — those who convey only subtle signs of religious belief.
Soon, SCOTUS will hear oral arguments in Fisher v . University of Texas at Austin II over whether the University of Texas's admission plan is constitutional. Texas residents who finished in the top 10% of their high school class are admitted automatically. This accounts for 80% of admissions. For the remaining 20% of applicants, the university uses a long list of factors in making a determination, one of which is race. Proponents claim that UT's policy is necessary to achieve the legitimate aim of promoting institutional diversity. Opponents, however, allege that it violates the Equal Protection Clause of the Fourteenth Amendment arguing that the goal of diversity can be achieved without taking race into account, and by using race, UT is unfairly advantaging minority students.
Today, the U.S. Commission on Civil Rights announced its support for UT's policy. The commission states in part:
The U.S. Commission on Civil Rights believes that the University’s admissions policy is indeed narrowly tailored to serve the compelling interest of securing the educational benefits of a diverse student body. Accordingly, the 5th Circuit’s determination that the University’s admissions process does not violate the Fourteenth Amendment should be affirmed...
Throughout its history, the Commission has expressed its strong belief in the benefits of diversity in educational settings. In our 1975 report Twenty Years After Brown: Equality of Educational Opportunity, the Commission found it appropriate “to provide the equal educational opportunity that segregation inherently denies and to permit all pupils to develop the understanding and appreciation of each other that inevitably will result in a more equitable society for all Americans.”...
A ruling further restricting the admissions process or eliminating the consideration of race altogether will diminish the vibrant university learning experience. It will have grave consequences for many schools across the nation and students of all backgrounds. The constitutional validity and educational benefits of the University’s admissions process are clear. The Commission supports the University of Texas in this case and encourages the Supreme Court to uphold the University’s admissions process.
The commission's entire statement can be read here.
SCOTUS will hear oral arguments on December 9, 2015.
Wednesday, November 18, 2015
Yesterday, noting this Dallas Morning News article on his blog Sentencing Law and Policy, Professor Douglas Berman asked whether it's appropriate for lawyers to cease representing a death row client because existing "political realities" make a stay of execution extremely unlikely. The Fifth Circuit didn't see a problem with it, but final resolution of the question remains in SCOTUS's hands.
Here are the basics:
From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.
Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it. The 36-year-old thought he’d be left to walk to the death chamber with no lawyer at his side.
Less than a month before his execution — scheduled for Wednesday — Holiday secured help. Austin attorney Gretchen Sween agreed to ask the court to find new lawyers willing to try to keep him from dying.
But Holiday’s federally appointed lawyers — the ones who said they would do no more to help him — are opposing their client’s attempts to replace them.
Now, just hours before he is set to face lethal injection for burning to death three children, including his own daughter, Holiday is awaiting word from the U.S. Supreme Court on his latest request for help.
UPDATE: A state judge stayed Holiday's execution earlier today citing unresolved legal issues, according to this Reuter's report, which states:
A Texas district judge on Wednesday halted the execution of a 36-year-old man, hours before he was due to be put to death by lethal injection for killing his daughter and two stepdaughters in a mobile home blaze in 2000.
The Texas Attorney General's office appealed, trying to win a ruling that would allow the execution of Raphael Holiday to proceed. It had been planned for 6 p.m. at the state's death chamber in Huntsville.
"The main factors for the decision were some additional issues under the law that had not been addressed previously," Madison County district Judge Hal Ridley told Reuters by telephone.
One of those items was testimony allowed in previous trials that may not be admissible under current standards, he said.
When I opened this article from a NBC-local in the San Fran area, I definitely immediately thought, "Of course you would, San Francisco." But, then I read on:
Lowell resident Lindsay Miller said Friday that she "absolutely loves the history and the story" of Pastafarians, whose website says had existed in secrecy for hundreds of years and entered the mainstream in 2005.
Miller says wearing the spaghetti strainer allows her to express her beliefs, like other religions are allowed to do.
A spokesman for the Massachusetts Registry of Motor Vehicles says policy does not permit head coverings or hats on license photos, but exceptions are made for religious reasons.
So, the Massachusetts RMV is all in for protecting religious liberty, and I apologize to the good citizens of San Fran.
...reads the title of this recent ProPublica article by Lauren Kirchner. Responding to recent calls for increased mass surveillance since the terror attacks in Paris (e.g., here), she lays out reasons to be skeptical about the effectiveness of mass surveillance in the first place.
Wednesday, November 11, 2015
"Of Visible Race-Consciousness and Institutional Role: Equal Protection and Disparate Impact after Ricci and Inclusive Communities"
When Ricci v. DeStefano was decided in 2009, I identified three possible reading of that case, one of which would be fatal to statutory disparate impact standards and two of which would not. Inclusive Communities strongly suggests that the fatal reading will not prevail. The two readings that remain viable are the "institutional reading," on which Ricci restricts the freedom of employers to remedy their own disparate-impact problems without similarly restricting the ability of courts to order disparate-impact remedies, and the "visibility reading," on which the key question about any given disparate-impact remedy is the degree to which its race-conscious aspect is publicly visible. Inclusive Communities seems to reinforce the visibility reading and to suggest that visibility will be an important element of the Court's forthcoming decision in Fisher v. Texas.
Saturday, November 7, 2015
"Disparate Impact and the Role of Classification and Motivation in Equal Protection Law after Inclusive Communities"
At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate impact liability has faced a direct constitutional threat. This paper argues that the Court’s decision this past Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being.
In particular, this paper argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case — which argued that state actions that do not classify individuals based on their race are not constitutionally suspect simply because they are motivated by the purpose of integrating the races. Applying that understanding, Inclusive Communities makes clear that disparate impact need not surrender to equal protection, but that the Constitution demands some limitations on disparate impact liability. Although the limitations should make a difference at the margins, they are not nearly as severe as some may have feared.
The broader goal of this piece is to offer an account of how the principle that Justice Kennedy articulated in Parents Involved, and that the Court seems to have adopted in Inclusive Communities, fits into prior equal protection doctrine. The piece argues that this interpretation of equal protection represents the most attractive approach consistent with the decided cases. But although the Inclusive Communities approach to equal protection represented the best path available to the Court in light of prior cases, it has substantial drawbacks. In addition to ignoring key normative considerations, the Court’s formalistic focus on the existence or nonexistence of a classification as a trigger for strict scrutiny is likely to prove unstable.
Wednesday, November 4, 2015
Ernest Lee Johnson killed three people with a claw hammer in 1994, and he was sentenced to death for it. Since then, however, he has had surgery to remove a tumor on his brain. He now argues that lethal injection could cause him to suffer seizures; thus, his execution would violate his constitutional right not to be cruelly or unusually punished.
A federal district court dismissed Johnson's argument. Yesterday, SCOTUS determined that the execution must wait for the Eighth Circuit to decide whether that dismissal was proper.
See WaPo's report here.
The Atlantic's Russell Berman has this take on the recent vote in Houston, TX repealing a city ordinance aimed at protecting transgender folks from discrimination. Berman begins:
The nation’s fourth-largest city has elected a lesbian mayor three consecutive times without much controversy, and in 2014, its city council approved an ordinance protecting residents from discrimination based on sexual orientation, gender identity, and 13 other factors. But when that same proposal came before the electorate on Tuesday, it lost out to an opposition campaign armed with a startlingly simple message: “No men in women’s bathrooms.” Opponents led 61 to 39, with 66 percent of the precincts reporting on Tuesday night.
After a hard-fought campaign that drew national attention from Hollywood celebrities and presidential candidates, voters rejected the Houston Equal Rights Ordinance, or Proposition 1, handing a victory to conservative critics who argued that its expansive protections for transgender people could endanger women and children.
Championed by the city’s outgoing mayor, Annise Parker, the ordinance represented an early test of the gay-rights movement’s effort to guarantee that Americans who just secured the right to marry would not face discrimination in employment, housing, or public accommodations. Many of the classes listed in the ordinance—race, sex, age, and religion, among others—are already protected under federal law, but sexual orientation and gender identity are not.
Wednesday, August 19, 2015
This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for charters, and b) in light of that, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools would be deemed unconstitutional by the current U.S. Supreme Court. Put differently, this is not the sort of issue in which the “play in the joints” between the Free Exercise and Establishment Clauses should apply so as to give states the option of restricting charter schools to secular schools.
Sunday, July 19, 2015
One common understanding of the Second World War is that it was a contest between liberty and tyranny. For many at the time – and for still more today – ‘liberty’ meant the rule of law: government constrained by principle, procedure, and most of all, individual rights. For those states that claimed to represent this rule-of-law tradition, total war presented enormous challenges, even outright contradictions. How would these states manage to square the governmental imperatives of military emergency with the legal protections and procedures essential to preserving the ancient ‘liberty of the subject’? This question could be and was asked with regard to many areas of law. The traditional order of property rights, for instance, was already in disarray thanks to the shocks of monopoly capitalism, labour militancy, the First World War, and the profound crisis of the Great Depression. Yet few rights would more directly test a wartime government's conception of the rule of law than the right of conscientious objection. The refusal of alleged pacifists to participate in the often lawless violence of the Second World War posed fundamental practical and normative challenges for all combatants – but especially for those who understood themselves to be fighting for individual liberty.
Wednesday, July 8, 2015
"Disappearing Legal Black Holes and Converging Domains: Changing Individual Rights Protection in National Security and Foreign Affairs"
This Essay attempts to describe what is distinctive about the way the protection of individual rights in the areas of national security and foreign affairs has been occurring in recent decades. Historically, the right to protection under the U.S. Constitution and courts has been sharply limited by categorical distinctions based on geography, war, and, to some extent, citizenship. These categorical rules carved out domains where the courts and Constitution provided protections and those where they did not. The institutional design and operating rules of the national security state tracked these formal, categorical rules about the boundaries of protection. There have been many “legal black holes” historically, domains where legal protections did not exist for certain people. Foreign affairs and national security have historically been areas defined by their legal black holes.
In recent years, legal black holes are disappearing, and previously distinct domains are converging. The importance of U.S. citizenship to protection under the Constitution and courts is decreasing, formal barriers to legal protection and judicial review based on geography and war are dissolving, and the dissolution of these categorical boundaries is changing the design and operation of the national security state. National security and foreign affairs law is being domesticated and normalized, as rights protections available in ordinary, domestic, peacetime contexts are extended into what were previously legal black holes. The jurisprudence of categorization and boundary-marking is fading away.
The core of this Essay identifies, names, and discusses these trends, seeking to give a vocabulary and conceptual and historical coherence to current discussions of individual rights protection in national security and foreign affairs contexts. Secondarily, this Essay suggests some factors that might be driving convergence and closing of legal black holes today. Because most of these potential causal drivers are still exerting their force on the shape of the law, this Essay concludes that the future of national security law will likely see more convergence and fewer black legal holes and then offers several specific predictions.
ProPublica has this interesting Q&A on the re-emergence of the Fisher case with Joan Bizkupic, author of “Breaking In: The Rise of Sonia Sotomayor and the Politics of Justice.”
Wednesday, June 10, 2015
Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Article explains how this differentiation arose and considers its consequences.
Although there is a certain underlying logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech and due process rights of suspected subversives. Toward this end, they took two terms that had generally been used interchangeably and they created the civil rights-civil liberties distinction. Civil rights would forever after be attached to the struggle for racial equality and subsequent campaigns against other forms of public and private discrimination. Civil liberties would be attached to claims of individual freedom against generally applicable government regulatory power.
The civil rights-civil liberties divide was contested from the beginning, however. In the late 1940s and early 1950s, the radical left condemned the divide as a tool for politically powerful liberal anticommunists to separate themselves from the declining fortunes of their former New Deal allies. In the 1960s, a new generation of critics of the divide made the case that the battles against discrimination and government oppression were indivisible. Some advocated a new label, “human rights,” which would subsume the categories of civil rights and civil liberties, while also recognizing social welfare rights. Despite these revisionist efforts, the civil rights-civil liberties divide survives, still contested, but also reinforced as each new generation puts it to new uses. This Article not only reconstructs the largely forgotten history of the origins of the civil rights-civil liberties divide, it also identifies the ways in which labeling and categorizing the legal landscape can advance or impede legal change.
Monday, June 1, 2015
"The Civil Rights Act of 1964 and 'Legislating Morality': On Conscience, Prejudice, and Whether 'Stateways' Can Change 'Folkways'"
Influential studies, from the 1940s and 1950s, of the problem of prejudice and how to remedy it challenged the famous assertion of nineteenth-century sociologist William Graham Sumner that “stateways don’t change folkways,” and its modern counterparts, “you cannot legislate against prejudice” or “you cannot legislate morality.” Social scientists countered that, although people might initially protest, they would welcome a federal antidiscrimination law that aligned with conscience and closed the gap between American ideals and prejudice, creating new “folkways.” Using examples from the contexts of public accommodations, education, and employment, this Article examines similar arguments made about conscience and “legislating morality” in debates about the Civil Rights Act of 1964 (the “CRA”). Proponents argued that the national conscience demanded such a law because discrimination posed a moral crisis. Proponents and opponents of the CRA differed sharply on the role of federal law in addressing prejudice and discrimination. While proponents recognized the limits of what law could achieve, they argued that the CRA would remove artificial barriers created by segregation that constrained normal or natural human interaction. Opponents defended segregation as natural, Biblical, and part of the created order and warned that the CRA would usher in a dangerous and forced racial intermingling and line-crossing, particularly in marriage. Similar to the social scientists of the late 1940s and 1950s, supporters or the CRA appealed to experience with local and state antidiscrimination law and the World War II-era Fair Employment Practice Committee. The Article concludes with reflections on the present-day implications of this earlier “legislating morality” debate for controversies over LGBT rights and the evident clash between conscience, or religious liberty, on the one hand, and antidiscrimination law and marriage equality, on the other. This Article is part of a symposium, “The Civil Rights Act of 1964 at 50: Past, Present, and Future.”
Thursday, May 7, 2015
The story of our Constitution is a tale of two liberties: individual freedom and collective freedom. The inherent tension between these the two is well known. Judicial protection of individual liberty inhibits the collective from freely arranging society through the democratic process. In contrast, judicial protection of this collective freedom to structure society may infringe on individual liberty, especially for those out of the mainstream. Like a pendulum, over the last century, the rights of free speech and exercise have swung between the individual and the collective, between right and left. This article traces these arcs from individual liberty to collective liberty, and back.
Historically, progressives tended to favor broad conceptions of individual rights, with respect to protecting unpopular speech and minority religious groups. Conservatives, in contrast, often disfavored such rights to the extent they impeded the preservation of traditional social norms and structuring society. In recent years there has been a reversal, as the right has asserted the mantle of individual liberty against claims of governmental intrusion into time-honored institutions. But for the left, a robust freedom of speech and religion — no longer serving progressive causes of social justice and equality — can now more easily be subordinated to what Justice Breyer referred to as "collective" liberty.
By looking at two controversial cases in this arena — McCutcheon v. FEC and Burwell v. Hobby Lobby — this article chronicles the juxtaposition of positions on the right and left between collective, and individual views of rights, and explains what this means for the development of the First Amendment on the Roberts Court, as freedom from government clashes with freedom by government.
Tuesday, May 5, 2015
In the 2014 Term, the Supreme Court is hearing challenges to four state exclusions of same-sex couples from their marriage law and other family law protections. Unlike the circuit judges who have evaluated these claims, the Justices find relevant the original meaning of the Fourteenth Amendment. Many opponents of Marriage Equality for lesbians, gay men, bisexuals, and transgender persons assume that original meaning is hostile to such claims. In this article, Professor Eskridge maintains that the original meaning supports the marriage equality claims. While the drafters of the Equal Protection Clause had no “expectations” that states in 1868 would have to issue marriage licenses to same-sex couples, the term they adopted (“equal protection”) had an established meaning: the state cannot create a caste regime arbitrarily marking a whole class of worthy persons as outside the normal protections of the law. This original meaning has bite today that it would not have had in 1868. In the twentieth century, states created a terrifying anti-homosexual caste regime, whose deep norm was that gay persons are anti-family. In the twenty-first century, much of this caste regime has been dismantled, but new and sweeping family law exclusions such as those before the Court are recent expressions of that regime and should be skeptically examined by the Justices.
Monday, April 6, 2015
Is it possible to be in favor of a constitutional vote and against amending the Constitution to add it? Yes. This paper argues that the amendment game is not worth the candle. There are two stages for ensuring a robust right to vote: amending the Constitution, and enforcing that amendment. As to the first stage, if an amendment enshrining the right to vote looks anything like its cognates in the Constitution, it will be thinly described, maddeningly vague, and pushed forward by self-interested politicians. If the amendment takes this form, the benefits reformers and academics assert we’ll reap are anything but automatic. Once a vague guarantee is embedded in the Constitution (Stage 1), reformers will still have to turn to legislators and courts to get something done (Stage 2).
Making the text more concrete may make Stage 2 easier, but it will complicate efforts to pass the amendment in the first place. After all, if it were easy to enfranchise former felons or block voter ID rules or guarantee a well-administered election system or end partisan gerrymandering, we would presumably have done it already. It’s possible, of course, that reformers could aim for something more than vague language, either by writing their aims explicitly into the text or creating an amendment history so robust that everyone understands what the right embodies. On this view, reformers would build a big tent of supporters by linking the amendment to lots of different reforms. The problem with this strategy is that it will also generate a big tent on the other side. Push for felon enfranchisement, and you’ll run up against the tough-on-crime lobby. Tempt progressives with a ban on voter ID and lose the support of many Republicans. Promise to end gerrymandering and lose the support of most incumbents. That’s why a vague textual guarantee is so tempting an option in Stage 1, even if it creates more work for Stage 2. For these reasons, it makes more sense to pour political resources into more discrete reform projects going forward.
Wednesday, March 25, 2015
This essay grapples with a previously unexamined feature of the death penalty: temporal arbitrariness. How does the circumstance of time affect capital defendants? What might this mean for the stability of our notions of justice? I explore these questions using a 25-year-old death penalty trial as a case study, examining the procedural and factual highlights of the case and situating it in its temporal milieu. I then explore how the roles of doctrine, policy, and cultural attitudes would dramatically alter the nature and probable outcome of the case today, illustrating how temporal arbitrariness further exposes the death penalty’s unsteady administration and indeed, its crumbling legitimacy.
Yesterday, Utah governor Gary Herbert signed into law a bill providing for state executions by firing squad. As AP reports:
Utah lawmakers say they took a pragmatic approach in approving the firing squad as a form of execution if lethal-injection drugs aren't available.
Their thinking: Develop a backup plan in case a nationwide lethal-drug shortage persists.
But critics say bringing back the firing squad in Utah - the only state to use the method in the past 40 years - could tarnish the state's image with visitors.
Tuesday, March 24, 2015
"Civil Disobedience, State Action, and Lawmaking Outside the Courts: Robert Bell's Encounter with American Law"
This article uses the well-known case of Robert Bell, who was convicted of trespass in one of the important sit-in cases of the 1960s and ended his career as Chief Justice of the Maryland Court of Appeals, to offer some thoughts about the state action doctrine, conflicts between law and morality, and outsider claims on the legal system. It critiques three conventional readings of Bell’s case, and his seemingly unlikely subsequent career.
Employing a historical analysis of the state action doctrine, which was the central issue when Bell’s case reached the Supreme Court, it argues that the case that supposedly originated the doctrine – the Civil Rights Cases decision of 1883 – did no such thing.
In addition, this article questions the view of cases like Bell’s as presenting a sharp conflict between law and morality, arguing that it is not even clear that Bell was violating Maryland’s trespass law.
Finally, the article questions a now-common way of making sense of the arc of Bell’s career – one which would see his rise to the Chief Justiceship as an example of “agency,” in which outsider views of law become, over time, accepted by the legal system. Bell’s case, it will be argued here, has a far more complicated set of lessons to teach, if we discard some conventional ways of reading it.
Thursday, March 19, 2015
DOE Office of Civil Rights budget proposal seeks additional funds for hiring staff to help with record number of complaints
There's been a dramatic increase in the number of civil rights complaints made to DOE's civil rights division over the past five years, which has doubled the burden on the attorneys and investigators charged with assessing these claims. As a result, unresolved cases abound. To remedy this, DOE Office of Civil Rights is asking for more money for more staff. WaPo's Lyndsey Layton reports:
Complaints of discrimination to the department have soared from 6,364 in fiscal 2009 to a record of 9,989 in the most recent fiscal year. [DOE Secretary for Civil Rights Catherine] Lhamon expects another record to be set when the current fiscal year ends in September. It is a sign that “we have the trust of the national community bringing to us their deepest hurts and asking for resolution,” she said.
The agency does not open an investigation into every complaint; some are quickly dismissed because they fall outside of the jurisdiction of the office, Lhamon said. She could not say what percentage of cases are dismissed but noted that even when a complaint is discarded, it is still time consuming because an investigator must make a determination.
In its budget proposal for next year, the Department of Education is seeking $131 million for its Office for Civil Rights, an increase of $30.7 million, so it can hire an additional 200 lawyers and investigators. That would be in addition to its current staff of 554 employees.
Lhamon said that without the additional employees, the current staff will continue to strain under growing caseloads and it will take longer to resolve complaints. The backlog of cases that have been pending for longer than 180 days has doubled during the past five years from 315 to 630....
She said there was no single category of grievance that accounted for the rise in complaints. But a breakdown of agency statistics show that the category of sex discrimination has grown from 391 in 2010 to 2,354 in 2014. Discrimination based on disabilities make up the largest category, or 39 percent.
Sex discrimination comprised 24 percent of total complaints. Lhamon said two individuals were responsible for filing more than 1,700 of those allegations of sex discrimination. She declined to identify them, citing confidentiality requirements.
Agency officials and outside observers point to a key action by the Obama administration that probably triggered the increase in sex discrimination complaints. In 2011, the Office for Civil Rights issued guidance to that said sexual harassment of students, including acts of sexual violence, is a form of sex discrimination prohibited by Title IX of the Education Amendments of 1972. Up until that point, Title IX was commonly understood to ensure equal opportunity for girls and women in athletics and other educational programs and activities.
Sunday, March 15, 2015
In 1925, the City of Miami built a trash incinerator in the de jure segregated Afro-Caribbean-American community of Coconut Grove Village West (“the West Grove”) amid rows of shotgun style houses and Jim Crow schools. Commonly known as Old Smokey, the incinerator discharged airborne carcinogenic chemicals (e.g., arsenic, benzo(a)pyrene, cadmium, and lead) and produced residual toxic waste (e.g., ash, liquefied plastic, and melted glass) for 45 years until Florida courts finally ordered it closed in 1970. In 1978, notwithstanding community opposition, the City of Miami converted the 4.5 acre Old Smokey site and incinerator building into its Fire-Rescue Training Center which continues to operate today. In 2013 and 2014, West Grove residents working in collaboration with faculty and students from the University of Miami School of Law learned from a whistleblower-leaked municipal environmental report that long-term exposure to Old Smokey’s airborne carcinogens and toxic waste dump sites had caused extensive soil and possibly groundwater contamination of homeowner properties and public parks in Coconut Grove and across the City of Miami and Miami-Dade County.
This Essay investigates the historical absence of civil rights- and environmental justice-incited legal and political mobilization around Old Smokey in light of Professor Lea VanderVelde’s important new book Redemption Songs: Suing for Freedom before Dred Scott. In Redemption Songs, VanderVelde, a distinguished legal historian, builds on her much praised biography of Mrs. Dred Scott and the contemporary work of historians in the field of slavery to study the nineteenth century practices of antebellum freedom suits in St. Louis, Missouri and in the western territories. VanderVelde carves out several lines of inquiry in Redemption Songs useful for historians of race and advocates for the legal-political rights of impoverished racial communities. Closely interwoven, the inquiries seek to ascertain how enslaved men and women learned that their residence in free territories conferred the legal right to sue for freedom and, further, how they advanced that emancipatory right in the St. Louis courts. More specifically, VanderVelde asks, who actually “instructed” the enslaved? Who, in St. Louis, Missouri, and the western territories, “led the way?” Why did some enslaved parents, children, and families “delay” and “wait” to file suit? What were the end results of the lawsuits and what “factors” influenced their in-court and out-of-court outcomes?
To resolve these questions, VanderVelde parses the extraordinary collection of freedom suit petitions filed by slaves in St. Louis between 1814 and 1860. These freedom suits, according to VanderVelde, tell stories of nineteenth century caste, class, and racial status. Equally important, the freedom suits tell stories of nineteenth century judges, lawyers, and legal rights consciousness in the contexts of racial advocacy and adjudication. In the same way, civil rights and environmental justice suits tell stories of twentieth and twenty-first century caste, class, and racial status, affecting stories of chronic illness and widespread contamination bound up in the work of judges and lawyers, and informed by an expanding legal consciousness of common law, statutory, and constitutional rights to a healthy and safe environment. By discrete historical turns, freedom suits, civil rights suits, and environmental justice suits tell stories of individual, group, and community rights under conditions of cultural, political, and socio-economic subordination. Viewed from the bottom, these same stories of freedom, civil rights, and environmental justice are also about individual and community power expressed through multifaceted forms of legal-political resistance.
The purpose of this Essay is to draw out the lessons of antebellum freedom suits, and, by comparison, modern civil rights and environmental justice suits, to learn how to tell better stories of community power and resistance in Miami and elsewhere. For historians and advocates alike, better stories are not only more accurate descriptively, but also more potent emotionally or expressively and more effective instrumentally or prescriptively. To draw out the historical comparison between freedom and civil rights or environmental justice suits and to hone better legal-political stories of resistance, the Essay revisits the principal set of questions animating VanderVelde’s nineteenth century investigation. However basic these questions may appear at first glance, they warrant continuing reassessment and reconsideration by lay and legal advocates, law school clinical faculty, law students, and university scholars. Consider, for example, the threshold question – how do subordinated communities of color learn of their legal rights? Further, how do they advance their emancipatory, civil or environmental justice rights without equal access to courts or effective representation? Who does and who should “instruct” such communities in their legal rights? Who, in St. Louis, Miami, or other inner-city communities across the nation, “leads the way?” Why do some individuals, families, or groups “delay” and “wait” to file suit? What are the end-results of civil rights and environmental justice lawsuits spearheaded by subordinated groups and communities, and what “factors” influence their in-court and out-of-court outcomes? Although beyond the cabined scope of this Essay, these fundamental questions of civil rights, environmental justice, and poverty law frame its broad contours and invigorate wider research on law and social movements.
The Essay proceeds in three parts. Part I parses VanderVelde’s central notions of subordination, voice, and redemption and illustrates their resonant force in the recently compiled oral histories of Old Smokey survivors. Part II examines VanderVelde’s interpretation of St. Louis freedom suits and the Missouri legal rule of freedom-by-residence. Part III recasts VanderVelde’s interpretive stance on antebellum freedom suits against the backdrop of Old Smokey to consider legal-political rights campaigns and community resistance strategies in the context of civil rights and environmental justice claims.
Thursday, March 5, 2015
Claims about social and economic rights (as a kind of human right) are often criticized because they fail to specify who are the bearers of the corresponding duties. We usually say that states are the duty-bearers, but it may not be possible for a poor state to bear the burden of these rights. And anyway it may be a mistake to focus exclusively on states in an age of globalization. This paper uses some analytic ideas from the 1970s and 1980s to address this problem. Drawing on the work of Neil MacCormick and Joseph Raz, it argues that it is possible to specify a right without specifying duty-bearers; that a right is a reason to look for duty-bearers in regard to a particular interest; that there may be many duty-bearers in regard to a given right; and that who bears the duty corresponding to a given right may vary by time and circumstance.
Monday, March 2, 2015
In 2013 the Supreme Court in Shelby County v. Holder vitiated the preclearance provision of the 1965 Voting Rights Act, Section 5, by declaring unconstitutional the coverage provision of Section 4. What garnered virtually no attention in the decision or subsequent proposals to amend the preclearance provision was the requirement in Section 5 that applications for judicial preclearance must be filed before a three-judge district court in the District of Columbia. This essay argues that this exclusive venue in DC be revisited in the statutory efforts to revive preclearance. Venue of such actions in DC was a controversial issue when preclearance was first passed, and its initial reauthorizations, but the controversy eventually faded. This essay argues that the debate should be revived. The original reasons for exclusive venue are no longer sound or necessary today. There is no present need for reasons of uniformity or expertise to vest exclusive venue of preclearance actions in DC, and should Section 5 be statutorily revised, the jurisprudence under that provision could benefit from the application of normal venue rules, which would permit percolation of issues in federal courts throughout the country. It might also make the revival of some sort of preclearance more politically palatable. Preclearance enforcement actions were already litigated outside of DC, and there are good reasons to extend all future preclearance litigation in the same way.
Friday, February 20, 2015
This paper examines the National Security Agency, its compliance with legal constraints and its respect for civil liberties. But even if perfect compliance could be achieved, it is too paltry a goal. A good oversight system needs its institutions not just to support and enforce compliance but also to design good rules. Yet as will become evident, the offices that make up the NSA’s compliance system are nearly entirely compliance offices, not policy offices; they work to improve compliance with existing rules, but not to consider the pros and cons of more individually-protective rules and try to increase privacy or civil liberties where the cost of doing so is acceptable. The NSA and the administration in which it sits have thought of civil liberties and privacy only in compliance terms. That is, they have asked only “Can we (legally) do X?” and not “Should we do X?” This preference for the can question over the should question is part and parcel, I argue, of a phenomenon I label “intelligence legalism,” whose three crucial and simultaneous features are imposition of substantive rules given the status of law rather than policy; some limited court enforcement of those rules; and empowerment of lawyers. Intelligence legalism has been a useful corrective to the lawlessness that characterized surveillance prior to intelligence reform, in the late 1970s. But I argue that it gives systematically insufficient weight to individual liberty, and that its relentless focus on rights, and compliance, and law has obscured the absence of what should be an additional focus on interests, or balancing, or policy. More is needed; additional attention should be directed both within the NSA and by its overseers to surveillance policy, weighing the security gains from surveillance against the privacy and civil liberties risks and costs. That attention will not be a panacea, but it can play a useful role in filling the civil liberties gap intelligence legalism creates.
Part I first traces the roots of intelligence legalism to the last generation of intelligence disclosures and resulting reform, in the late 1970s. Part I then goes on to detail the ways in which intelligence legalism is embedded in both the Foreign Intelligence Surveillance Act of 1978 (FISA) and Executive Order 12,333, which governs American intelligence practices, and why the result is a civil liberties gap. Part II discusses the ways in which NSA’s compliance and oversight institutions likewise embody intelligence legalism. I then move in Part III to some shortcomings of this system, and in particular the ways in which the law and NSA’s compliance regulations and infrastructure fall short of full civil liberties policy evaluation. In Part IV, I examine some of the many reforms that have recently been proposed, analyzing in particular those that might fill that gap. In light of the existing institutional arrangements, I sketch some thoughts on how they could do so most effectively.
Thursday, February 19, 2015
How about $25 million? Well that's precisely what a Brooklyn man claims he's due for the 25 years he spent locked up for a murder he didn't commit. The NYPost reports:
A Brooklyn man who spent 25 years behind bars for a 1989 murder he didn’t commit is suing the city and a slew of cops for egregious civil rights violations, according to a federal lawsuit.
Derrick Deacon, 58, has already filed a $25 million lawsuit against the state in a pending case.
There was no dollar amount in the new suit against the city.
Deacon was convicted of killing 16-year-old Anthony Wynn in a Prospect Lefferts Garden building and sentenced to 25 years to life in prison before he was acquitted at a 2013 retrial.
Deacon had been granted a new trial in June 2012 after a Jamaican gang member told authorities that another man had actually committed the slaying.
In addition, another key witness who had originally placed him at the murder scene recanted her testimony at his retrial and testified that conviction-hungry cops and district attorney investigators coerced her bogus tale.
For whatever reason I couldn't embed the must-see video that accompanies the article, so make sure to check that out. Here's how the article begins:
A civil rights lawsuit claims an inmate at the Logan County Detention Center was given a pair of pliers to remove a bad, painful tooth after being repeatedly denied dental care.
In the lawsuit, inmate Mark Traxler, 47, claims a jail employee and a nurse "approached him with a pair of dirty, rusty pliers and a roll of gauze and told him to go back to his unit and have some of the 'fellas' help him with a tooth extraction."
The suit goes on to say Traxler was held down by several inmates, including one known as "Big Jake," but that the extraction caused more pain and more damage to Traxler's teeth.
After the shooting of Michael Brown, DOJ commenced to investigate the Ferguson PD's dealings with racial minorities. That investigation has found "a pattern of racially discriminatory tactics used by officers," according to this CNN report, which explains:
Attorney General Eric Holder said this week he expects to announce the results of the department's investigation of the shooting death of Michael Brown and a broader probe of the Ferguson Police Department before he leaves office in the coming weeks.
Brown's shooting death at the hands of Officer Darren Wilson has thrust Ferguson into the center of a nationwide debate over police tactics and race relations. The Justice Department is expected to announce it won't charge Wilson for the shooting, but it's also expected to outline findings that allege a pattern of discriminatory tactics used by the Ferguson police.
If they don't agree to review and revise those tactics, sources say, the Justice Department would sue to force changes in the department.
Thursday, February 12, 2015
Tuesday, February 10, 2015
An enormous effort has been dedicated to uncovering the original meaning of the First Amendment’s religion clauses, but, surprisingly, little research has been directed toward the Founding-era state constitutions on church and state. This article aims to open a field of inquiry by making the church-state provisions of the Founding-era state constitutions more accessible. It begins with a consideration of the distinction between the state declarations of rights and the state constitutions and the interpretive challenge this distinction poses. I then identify, categorize, and interpret the relevant church-state provisions of the Founding-era state declarations of rights and constitutions. The article concludes with a discussion of how a deeper knowledge of the Founding-era state church-state provisions might shed light on the original meaning of the First Amendment’s religion clauses, and it reveals the probable errors of particular originalist arguments made by leading scholars and Supreme Court justices.
Monday, February 9, 2015
The Atlantic's Matt Ford posted this compelling piece earlier today, which begins:
Joseph Sledge’s timing could not have been worse. While serving a four-year sentence for stealing t-shirts in 1976, the 36-year-old man from Georgia escaped from a prison work farm in eastern North Carolina. That same day, Josephine Davis and her daughter Ailene were brutally murdered in their farmhouse in nearby Bladen County. Sledge immediately became the prime suspect and was charged with their murders upon his re-capture.
The case against Sledge was weak. None of the fingerprints at the scene matched his own. The only physical evidence linking him to the crime was pubic hair “of Negroid origin” found on one victim’s body. An FBI microscopic analysis said they resembled Sledge’s hairs, but cautioned that this did not “constitute a basis for positive personal identification.” No eyewitnesses to the crime could be found, but two jailhouse informants testified that Sledge had confessed to killing two white “she-devils” to them. Sledge, who always maintained his innocence, received a life sentence in 1978.
His lawyers tried to fight the conviction, but hit a dead end in the appeals courts. In 2012, a county clerk discovered an envelope in the archives containing hairs from the crime scene, long presumed lost. A private lab tested mitochondrial DNA samples from the hairs and ruled out any connection to Sledge. Investigators with the North Carolina Innocence Inquiry Commission, a state agency devoted to investigating wrongful convictions, then interviewed the only surviving jailhouse informant. He recanted his testimony. The commission’s eight members voted unanimously last December to refer Sledge’s case to a special tribunal for exoneration. On January 23, the three judges unanimously ruled that Sledge had been wrongly convicted and ordered his release. He spent almost four decades behind bars for a crime he didn’t commit.
In 49 other states, Joseph Sledge would still be in prison.
In a recently filed complaint in federal court, a Georgia woman claims an officer with her local PD assaulted her while she waited for the release of her recently arrested son. She was pregnant at the time, and she alleges that the assault cause her to miscarry. This article highlights her basic allegations:
Kenya Harris sued the City of Albany, Ga., police chief John Proctor and officers Ryan Jenkins and Richard Brown, Jr. for excessive force, assault and battery and infliction of emotional distress.
Harris says she was called to the Albany Police Department in May 2011 after her minor son was arrested. After waiting five hours, she told Jenkins that she had other children at home and needed to leave but Jenkins responded with hostility, according to the complaint.
"Defendant Officer Jenkins stated that he did not appreciate the tone in which she was communicating with him, and further stated that if she continued he would take her head and 'put it to the floor,'" the complaint states.
Harris says when she again tried to explain that she needed to leave, Jenkins followed through on his threat.
"Defendant Officer Jenkins, without provocation, grabbed plaintiff, who weighs less than one hundred twenty (120) pounds, by her neck and slammed her to the ground. Plaintiff momentarily blacked out and came to with defendant Officer Jenkins sitting on her back, and with his knee on her arm. Plaintiff was pregnant at the time," the complaint states. "Defendant Officer Jenkins put handcuffs on plaintiff and slammed her against the wall. Plaintiff was placed into an interrogation room after she was beaten and handcuffed."
Harris' request for medical attention was denied and she was taken to Dougherty County Jail for the night on a charge of obstruction, according to the complaint. She says her subsequent miscarriage was a result of Jenkins' excessive force.
What determines the level of deference the Supreme Court gives to agency interpretations of statutes? One explanation is that deference choices accord with what I term the “deference dichotomy.” When agency interpretations are in a legislative rule adopted through notice-and-comment procedures and have the “force of law,” the Court applies a heightened deference framework. But when agency interpretations are in interpretive or other non-legislative rules adopted through less formalized procedures, the Court gives minimal or no deference. Although scholars have advocated that approach for decades and the Court has now adopted it as formal doctrine, the Court’s actual choice of deference framework follows a less predictable pattern. Some scholars have suggested ideology as an alternative explanation, but empirical studies across administrative law domains have come to conflicting conclusions about its effect on deference choices. Other scholars have argued that the complexity of the statute and judicial views about the agency influence deference choices, but these studies have not been generalized across agencies and statutes.
In this Article, I employ a distinct approach, examining Supreme Court deference choices across multiple agencies administering multiple statutes in a single substantive field. I find that in the civil rights field, the Supreme Court’s deference choices appear to have been motivated by a factor that has gone unnoticed in the literature thus far — judicial resistance to “administrative constitutionalism.” To the extent that civil rights agencies resolve statutory questions central to ongoing constitutional controversies in the Supreme Court, such as the meaning of “discrimination,” they are practicing administrative constitutionalism — resolving interpretive questions that rest on constitutional values. When civil rights agencies have engaged with constitutional meaning in this way, the Court has refused to apply heightened deference to the agency’s interpretation of the statute even when precedent or the deference dichotomy suggests that it should.
I argue that this judicial resistance to administrative constitutionalism implicates important questions about authority over constitutional meaning. When the Court denies heightened deference to administrative constructions of statutes implicating ongoing constitutional controversies, it is preserving its exclusive power to determine constitutional meaning. Such resistance places the Court in the role of defining the substance of civil rights statutes insofar as they implicate the Constitution, and thus supplements the Court’s often-remarked practice of curbing legislative constitutionalism.
Thursday, February 5, 2015
This article is part of the University of Miami “Leading from Below” Symposium. It canvasses prisoners’ lawyers strategies prompted by the 1996 Prison Litigation Reform Act. The strategies not only comply with the statute’s limits but also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. Part I summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes in prison litigation, but demonstrates there are still many cases and situations in which courts continue to play a role. Part II looks at three methods by which plaintiffs and defendants can jointly obtain injunctive-type relief in prison cases — by crafting stipulations that comply with the PLRA’s constraints, by structuring the relief as a conditional dismissal, or by setting up the possibility of state-court enforcement. Part III examines plaintiffs’ coping methods for the PLRA’s provisions easing the path to termination of decrees, whether litigated or consent. Two types of preparation for a termination motion have emerged. First, the parties sometimes agree to stretch out the remediation period more than the PLRA’s default two years. Second, plaintiffs have worked to ensure that they are collecting sufficient information to inform their potentially hurried response to a termination motion.
It is my hope that the examples presented can help counsel and judges in prisoners’ rights cases thread the needle that the PLRA presents.
Wednesday, February 4, 2015
This essay argues that the efficiency assumption in election law coupled with a resurgent preference for state-focused election administration has come to dominate considerations of the right to vote. Analysis of right-to-vote questions tends to turn around a calculus that puts at its center the efficiency of a state-dominated election system is the core interest the Court seeks to protect. This stands in contrast to a focus on the rights and status of the individual voter, especially where an individual voter confronts a voting regulation that fails to expressly deny that person the right to vote. In this sense, as is the case in a substantial amount of modern jurisprudence, this efficiency approach has overtaken the modern debates over election regulation.
This essay explores this issue by tracing the development of voting rights jurisprudence from a laissez-faire position of virtually unfettered deference to state control of the vote to a voter-centric rights-based framework, to a balancing approach that champions the states’ interest in efficiency coupled with the reemergence of deference to state power in regulating voting rights. This essay will then turn to examine whether this doctrinal development is appropriate to the modern rights-related issues concerning voting rights. Ultimately, this essay concludes how this new focus on efficiency is ultimately damaging to the right to vote as it fails to fully encompass how voters are ultimately excluded from the process due to the indirect costs placed on voters as an added mechanism of dissuasion from casting one’s ballot.
Tuesday, February 3, 2015
The Civil Rights Act was remarkably successful in fighting overt bigotry and discrimination, but much less so in combating the subtler, institutionalized disadvantages that are now the main sources of social injustice. The heroic idea of rights as protections from an oppressive state or oppressive powerful private organizations is misleading and distracts attention from the institutional reforms necessary to achieve real social justice. In fact, the very concept of discrimination is vague and contested — the conflict in contemporary civil rights disputes is not simply over the factual question of whether or not discrimination has occurred, but also over the essentially normative question of what should count as discrimination. The concept of discrimination itself has become a placeholder for ideological struggles over how to balance individual entitlements to fair treatment on the one hand against employer decision- making prerogatives and individual liberties of expression on the other. We should abandon unresolvable conceptual disputes over “discrimination” in favor of a focus on the extent of the employer’s affirmative duty to avoid decisions and policies that needlessly injure members of underrepresented or stigmatized groups.
Monday, February 2, 2015
"Privacy and Security in the Cloud: Some Realism About Technical Solutions to Transnational Surveillance in the Post-Snowden Era"
This Article considers the organizational and technical responses of cloud computing companies in response to the Snowden leaks, which revealed the extent of NSA surveillance of foreign citizens whose data was held by U.S. based cloud services. The industry has sought to restore trust in their services by stepping up their efforts to protect the privacy and confidentiality interests of their customers against what we call “transnational surveillance.” While the legal debate about the proper legal standards for such surveillance is ongoing, the article focuses on two broad classes of technical and organizational responses and their interaction with the law. First, leading cloud firms like Google and Microsoft have implemented long-established cryptographic protocols that secure both communications with their customers and information flows among their own company data centers. In particular, these solutions help ensure that access takes place only through the “front door” of a valid legal process involving the service providers. Second, the article explores the availability of more far-reaching security innovations based on Privacy Enhancing Technologies (PETs). These increasingly popular solutions would limit the ability of service providers to comply with government orders, notwithstanding the technical assistance provisions in existing domestic and foreign surveillance laws.
The solutions discussed raise a number of legal issues. For example, do investigative agencies have sufficient legal authority to seek court orders compelling U.S. firms to modify their services in order to facilitate surveillance? More broadly, do U.S. firms (other than telephone carriers subject to a 1994 law requiring them to design wiretap-ready equipment) have a free hand in modifying existing services, or designing new services, to make them more resistant to transnational surveillance? Or may the U.S. government rely on existing surveillance laws to oversee the design of cloud services to ensure that court-ordered access remains achievable when duly authorized by judges or magistrates?
In analyzing these issues, the article draws upon an earlier debate about encryption export controls in the 1990s (the so-called “crypto wars”). It concludes that new laws may be necessary for the U.S. government to maintain its current levels of access and that Congress may be reluctant to enact such laws in the current climate. More generally, it concludes that many of the technical and organizational measures under discussion are likely to fall short of providing the kind of absolute protection sought by certain cloud customers, especially those located abroad. At the same time, under the right conditions, these measures can help to lower some of the risks of transnational surveillance and work to restore the balance in favor of privacy, information security, and confidentiality interests in the context of cloud data.
Sunday, February 1, 2015
In the years immediately following the Stonewall riots of June 1969, a period when “gay liberation” rather than “gay rights” described the ambitions of a movement, three marriage cases made their way to and beyond trial: Baker v. Nelson in Minnesota, Jones v. Hallahan in Kentucky, and Singer v. Hara in Washington State. This article offers a detailed account of that early trilogy. Drawing on extensive archival research and on interviews with key players in each case, it shows that, contrary to received wisdom, Stonewall-era marriage litigation was faithful to gay liberation’s radical aspirations. The Baker, Jones, and Singer lawsuits deployed marriage’s symbolic cachet to proclaim homosexuality’s equality, legal and moral, in a society that almost ubiquitously criminalized its practice. They protested the traditional gender roles that gay liberationists located at the heart of their oppression and that marriage, at the time, not only fostered but legally prescribed. They provided a platform from which to critique other aspects of marriage, such as the rule of monogamy and the state’s coercive, intrusive preference for a particular form of intimate association. Perhaps most importantly, these cases were sensational advertisements of gay people, gay relationships, and the nascent gay liberation movement. The first gay marriage plaintiffs were closely affiliated with that movement and, despite widespread antipathy toward marriage, fellow liberationists generally applauded the lawsuits as effective vehicles for declaring the movement’s existence and communicating several of its most important messages. This history, important in its own right, allows us to grasp some of the underlying stakes and radical possibilities of the signal gay rights issue of our time.
Saturday, January 31, 2015
Ricci v. DeStefano, the New Haven firefighters case, raised questions about the constitutionality of the disparate impact provisions of federal employment discrimination law. This Article draws on the Court’s subsequent decision in Fisher v. University of Texas at Austin to clarify disparate impact’s constitutionality. In Fisher, no Justice expressed concern about Texas’s decision to promote diversity at the state university by admitting the top percent of the state’s high school graduates — state action that is race-conscious in purpose, but race-neutral in form. Approval of the percent plan in Fisher shows that under equal protection law of the Roberts Court disparate impact law is not unconstitutional in purpose, as Justice Scalia suggested in Ricci.
In Fisher, the Court has demonstrated that government may change the selection standards in competitive processes without triggering strict scrutiny if the government acts (1) with a race-conscious goal of promoting equal opportunity; (2) the government requires a selection standard that is appropriate for the context; and (3) the standard does not classify individuals by race. These principles are satisfied in the ordinary case of voluntary disparate impact compliance in which an employer specifies conditions for employment in advance of evaluating applicants for the job in question, as well as in prospective remedies that courts ordinarily order for violations of Title VII.
Fisher clarifies that the problem in Ricci was New Haven’s procedurally irregular means of complying with disparate impact law: the government discarded the test results of a group of applicants who had invested significant time in studying for a promotion exam, and explained this decision in terms which left the disappointed applicants with the impression that government was discarding their scores to advance the interests of another racially defined group. By avoiding a constitutional judgment and finding New Haven’s manner of complying with the statute unlawful disparate treatment, Justice Kennedy warns that interventions designed to heal social division should be implemented in ways that endeavor not to aggravate social division.
Disparate impact law can promote equal opportunity, increase employee confidence in the fairness of selection criteria, and so reduce racial balkanization; but for disparate impact law to do so, Justice Kennedy seems to be saying in Ricci, disparate impact law needs to be enforced with attention to all employees’ expectations of fair dealing.
Friday, January 30, 2015
"Programming Errors: Understanding the Constitutionality of Stop and Frisk as a Program, not an Incident"
This essay takes seriously the relevance of law enforcement effectiveness and the role of empiricism to understanding the constitutionality of the police practices at issue in the Floyd case and urban police practices more generally and also recasts the debate a bit. A critical, but obscured, issue is the mismatch between the level of analysis at which the Supreme Court articulated the relevant test for constitutional justification of a stop and frisk in Terry v. Ohio , and the scale at which police today (and historically) engage in stop and frisk as a practice. To put this more succinctly, while the Court in Terry authorized police intervention in an individual incident when the police officer possesses probable cause to believe that an armed individual is involved in a crime, in reality stop and frisk typically is carried out by a police force en masse as a program. Although the constitutional framework is based upon a one-off investigative incident, many of those who are stopped, the majority of them young men of color, do not experience the stops as one-off incidents. They experience them as a program to police them as a group, which is, of course, the reality. That is exactly what police agencies are doing. Fourth Amendment reasonableness must take this fact into account. I make an argument here about how we should approach this issue.