Monday, September 8, 2014
The Los Angeles Times reports some Muslims from across the country have had their bank accounts closed but haven't been told why. The Florida chapter of the Council for American-Islamic Relations (CAIR) wants the DOJ to investigate whether the account holder's race affected a bank's decision to close an account.
Salon.com's Johanna Rothkopf notes this local report on a young man in the Bronx who was violently beaten by NYPD officers responding to routine noise disturbance. The video shows the two officers stop-and-frisk the young man. After more officers arrive, it shows them kicking him and hitting him with nightsticks and fists.
NYPD Internal Affairs Bureau is reportedly investigating the incident.
Professor Yochai Benkler argues that whistleblowers ought to be able to assert public-accountability as a defense to criminal charges resulting from unathorized public disclosures. He also says Congress ought to grant retroactive immunity to those national defense whistleblowers to whom the defense would have extended, such as Edward Snowden. He observes that whistleblowers in the national defense industry have fewer protections than whistleblowers in other industries, but he questions whether the government's interest in secrecy is sufficient to justify those limitations.
A system as complex as national security is bound to experience problems. But secrecy may actually affect the correction of those problems and thereby affect the overall efficiency of that system. Benkler explains:
Secrecy disables many of the mechanisms that other systems use to correct failure dynamics. In the public sector, informed and interested outsiders facilitate robust judicial, legislative, or executive oversight. In the private sector, both the stock market and regulators rely on public information and disclosure requirements to punish error, incompetence, and malfeasance. From defective products to poor business judgment, information flow is the critical ingredient of correction. The internal and external information silos that typify national security and the secrecy and mystique of the agencies all disable the standard mechanisms we use to counterbalance the error dynamics of other large organizations. The complexity and uncertainty of the threats the national-security system faces compound the difficulties so that even insiders—to say nothing of outsiders—struggle to evaluate whether an element of the system is working or has gone off track.
Because it is practically impossible for outsiders to check the national-security system, protecting insider whistleblowers is especially critical...Only repeated acts of conscientious disclosure by insiders have brought us close to a public airing of the limits of surveillance.
Reform that tries to rebuild the well-behaved aspects of the system but ignores the critical circuit-breaker role played by unauthorized whistleblowing is set up for failure. Respecting leaks and leakers is no slight to the patriotism or professional bona fides of people in the national-security system, the congressional staff, or the judicial officers who form the insider-review system. It is an admission that it is practically impossible to build a purely self-contained review regime.
Therefore, unauthorized whistleblowers are instrumental to the health of the national security system, and this importance ought to be reflected in the strength of the protections extended to them.
“They were holding them under water until the point of death, with a doctor present to make sure they did not go too far. This was real torture.”
An anonymous source tells The Telegraph that the CIA tortured top al-Qaeda operatives captured after 9/11, including Khalid Sheikh Mohammed. This comes as we wait for a declassified version of the Torture Report, which apparently will reveal "brutality" that will "deeply shock" everybody.
Friday, September 5, 2014
The Los Angeles Times reports that supporters of a bill that would require ammunition venders to "provide information on purchasers to the state Department of Justice after the fact" failed to garner enough votes to pass the bill out of the California State Assembly.
The bill was supported by law enforcement but opposed by the NRA and other gun-rights groups.
The New York Times editorial board has become an increasingly staunch critic of the death penalty. Earlier this year, it called the death penalty a "despicable practice" that is both "racist" and "barbaric." The board again called for an end to the "irretrievably flawed" and "immoral" practice earlier this week after DNA evidence compelled a state judge to overturn the conviction of two North Carolina men for the 1983 rape and murder of a young girl. It argued:
How many more remain on death row today? Can the American people be assured that none will be killed by the state? For this reason alone, the death penalty must end.
The Times observed that the two North Carolinians were treated particularly poorly. "The arrests, confessions, trial, and convictions" of the two men were all highly questionable. Both men were just teenagers at the time of their arrests, but they nevertheless were questioned for hours without their parents or lawyers present. They also were compelled to sign confessions written by the police. The prosecution failed to inform the defense of potentially exculpatory evidence, and it declined to seriously consider a third suspect - even when police requested fingerprint analysis of a print found at the crime scene as a possible match to that suspect.
Then there's this: "The prosecutor on the case, Joe Freeman Britt, was listed in the Guinness Book of World Records as the “deadliest prosecutor” for the nearly 50 death sentences he won during his tenure. Almost all have since been overturned."
Last week, University of California - Irvine School of Law dean Erwin Chemerinsky explained in a New York Times op-ed why holding police officers and other public servants accountable for wrongdoing is so difficult - United States Supreme Court precedent.
Chemerinsky recounts several recent Court decisions that have extended greater protections to local governments accused of constitutional violations. The Court has held, for example, that local governments will not be accountable for such actions unless their actual policies are unconstitutional. More specifically, "excessive force" claims against local law enforcement must demonstrate that no reasonable officer would have thought the challenged conduct violated constitutionally protected rights, an almost insurmountable burden for most litigants.
Indeed, wronged citizens often are left with few options. As Chemerinsky explains:
Because it is so difficult to sue government entities, most victims’ only recourse is to sue the officers involved. But here, too, the Supreme Court has created often insurmountable obstacles. The court has held that all government officials sued for monetary damages can raise “immunity” as a defense. Police officers and other law enforcement personnel who commit perjury have absolute immunity and cannot be sued for money, even when it results in the imprisonment of an innocent person. A prosecutor who commits misconduct, as in Mr. Thompson’s case, also has absolute immunity to civil suits.
When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense.
The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16 days and on supervised release for 14 months, even though the government had no intention of using him as a material witness or even probable cause to arrest him. In each instance, the court stressed that the government officer could not be held liable, even though the Constitution had clearly been violated.
Wednesday, September 3, 2014
This essay in an exercise in responding to the question “how did we get here” with respect to a contest contemporary issue in First Amendment jurisprudence. As late as the early 1970s no one would have thought that compelling speakers in the marketplace to propose a commercial transaction would have raised any First Amendment issues, because no one considered commercial speech to merit any protection under the First Amendment. In the New Deal period regulation of economic markets became relatively common, and was challenged on a number of constitutional grounds, the challenges typically invoking commerce power, federalism, or delegation arguments. No one suggested that efforts on the part of states to affect the content of advertisements for commercial products raised free speech concerns. Moreover, advertising itself was regarded as a suspect activity, inclined to create false or misleading expectations among consumers, and was thought eminently suitable for regulation.
Thus in order to imagine cases such as United States v. United Foods, where in 2001 a majority of the Court struck down, on First Amendment grounds, a federal program assessing handlers of fresh mushrooms with fees to promote generic mushroom sales, one has to reckon with a sea change in attitudes toward speech, commercial speech, and commercial advertising between the early 1940s and the present. This essay, emphasizing developments in First Amendment cases and commentary, as well as changing cultural attitudes, attempts to trace that sea change.
On Monday, September 15, The Ohio State University Moritz College of Law will host an exciting event examining the legacy of the Civil Rights Act of 1964, which turned 50 early this year. The event will take place at noon in Saxbe Auditorium, and it will feature a panel of prominent scholars and legal practitioners. Details and registration information are here.
That evening, the legendary Congressman John Lewis will discuss his experiences on the front lines of the Civil Rights Movement. Details are available here.
Tuesday, September 2, 2014
A second wave of false confessions is cresting. In the first twenty-one years of post-conviction DNA testing, 250 innocent people were exonerated, forty of which had falsely confessed. Those false confessions attracted sustained public attention from judges, law enforcement, policymakers, and the media. Those exonerations not only showed that false confessions can happen, but did more by shedding light on the problem of confession contamination, in which details of the crime are disclosed to suspects during the interrogation process. As a result, false confessions can appear deceptively rich, detailed, and accurate. In just the last five years, there has been a new surge in false confessions — a set of twenty-three more false confessions among DNA exonerations. All but two of these most recent confessions included crime scene details corroborated by crime scene information. Illustrating the power of contaminated false confessions, in nine of the cases, defendants were convicted despite DNA tests that excluded them at the time. As a result, this second wave of false confessions should cause even more alarm than the first. In the vast majority of cases there is no evidence to test using DNA. Unless a scientific framework is adopted to regulate interrogations, including by requiring recording of entire interrogations, overhauling interrogation methods, providing for judicial review of reliability at trial, and informing jurors with expert testimony, the insidious problems of confession contamination will persist.
Friday, August 29, 2014
The Texas Observer's Emily DePrang writes:
Every shooting by a Houston Police Department officer is investigated by HPD’s Internal Affairs and Homicide divisions. Between 2007 and 2012, according to HPD records, officers killed citizens in 109 shootings. Every killing was ruled justified.
The 112 instances of an officer shooting and injuring a person were justified, too.
So were the 104 times an officer wounded an animal, and the 225 times an officer killed an animal.
There were 16 shootings found “not justified,” but they were all ruled accidental.
In more than one in five cases in which officers fired on citizens, the citizen was unarmed.
I suppose it's theoretically possible that every single shooting by a Houston police officer was entirely legit. But I'm skeptical - and a little scared.
DePrang also points out that Houstonians have very little authority to oversee questionable police conduct because the body charged with reviewing Internal Affairs investigations has no enforcement authority.
Former Secretary of State Hillary Clinton stated yesterday that her "heart just broke" for the "unimaginable loss" suffered by Michael Brown's parents as a result of their son's death at the hands of a local police officer nearly three weeks ago. According to The Washington Post's Sean Sullivan, she also lamented the scene that followed on the streets of Ferguson: "Nobody wants to see our streets look like a war zone. Not in America. We are better than that."
I'm glad Clinton said something, but it's troubling that it took her so long to do so. The killing of Michael Brown and the subsequent unrest in Ferguson has raised substantial domestic policy questions, and the media and other prominent political figures have weighed in. Moreover, her comments were extremely blah - no deep personal introspection should have been necessary to arrive at her position. Her comments easily could have been made much earlier without offending any relevant constituencies. So, what gives?
Disturbing video of Minneapolis police harassing, tasing man while he waits to pick up his children from school
Wednesday, August 27, 2014
Without much analysis, the U.S. Supreme Court has imported common law agency and tort principles to resolve issues of employer vicarious liability under Title VII. The story that emerges from the recent Title VII case law is one of similarity and continuity: the main theme is that Title VII is a statutory tort, making it seem appropriate to rely on longstanding common law agency principles to determine employer responsibility for the wrongful acts of their employees.
This article contests the prevailing narrative, arguing that it significantly downplays major differences in the structure and history of tort and Title VII claims. Borrowing from tort law is misguided because vicarious liability principles were never meant to govern claims by employees against their own employers. Instead, at common law, the infamous “fellow servant rule” insulated employers from tort liability in such suits, with vicarious liability coming into play only when injured third parties sought recovery. Unlike the dual liability scheme of tort law – which holds both the employer and the offending employee liable – Title VII claims may be brought only against the employer. The enterprise liability scheme of Title VII thus bears little resemblance to the prototypical vicarious liability structure in tort law.
The Supreme Court’s approach has lost sight of historical workers’ rights struggles which led to the enactment of comprehensive workers’ compensation statutes. By recasting Title VII as the second major intervention into the employer/employee relationship, this article tells a very different story – one of contrast and change – that would free Title VII vicarious liability doctrine from the strictures of the common law.
Tuesday, August 26, 2014
Free societies employ a variety of institutions — including courts and schools — in which speech is heavily regulated on the basis of its content (and with regard to the cognitive infirmities of listeners) in order to promote other desirable ends, including discovery of the truth. I illustrate this with the case of courts and rules of evidence. Three differences between courts and the polity at large might seem to counsel, of course, against extending that approach more widely. First, the courtroom has an official and somewhat reliable (as well as reviewable) arbiter of the epistemic merits, while the polity may not. Second, no other non-epistemic values of speech are at stake in the courtroom, whereas they are in the polity. Third, the courtroom’s jurisdiction is temporally limited in a way the polity’s may not be. I argue that only the first of these — the "Problem of the Epistemic Arbiter" as I call it — poses a serious worry about speech regulation outside select institutions like courts. I also argue for viewing "freedom of speech" like "freedom of action": speech, like everything else human beings do, can be for good or ill, benign or harmful, constructive or pernicious, and thus the central question in free speech jurisprudence should really be how to regulate speech effectively — to minimize its very real harms, without undue cost to its positive values — rather than rationalizing (often fancifully) the supposed special value of speech. In particular, I argue against autonomy-based defenses of a robust free speech principle. I conclude that the central issue in free speech jurisprudence is not about speech but about institutional competence; I offer some reasons — from the Marxist "left" and the public choice "right"— for being skeptical that capitalist democracies have the requisite competence; and make some suggestive but inconclusive remarks about how these defects might be remedied.
Monday, August 25, 2014
Throughout his career, Cornel West has been an energetic, emphatic, and unapologetic speaker who doesn't hesitate to speak his mind - he always keeps it real. There perhaps is no better example of this style than West's recent interview with Salon's Thomas Frank, in which the distinguished professor targets the president, Reverend Al Sharpton, Attorney General Eric Holder, and former Secretary of State Hillary Clinton.
Indeed, West gets rolling immediately. Reflecting on President Obama's progressive resume thus far, West begins:
[T]he thing is he posed as a progressive and turned out to be counterfeit. We ended up with a Wall Street presidency, a drone presidency, a national security presidency. The torturers go free. The Wall Street executives go free. The war crimes in the Middle East, especially now in Gaza, the war criminals go free. And yet, you know, he acted as if he was both a progressive and as if he was concerned about the issues of serious injustice and inequality and it turned out that he’s just another neoliberal centrist with a smile and with a nice rhetorical flair.
According to West, Obama's failure to live up to his progressive promise stems in part from his fundamental misunderstanding about what is required of a great president. He argues:
He doesn’t realize that a great leader, a statesperson, doesn’t just occupy middle ground. They occupy higher ground or the moral ground or even sometimes the holy ground. But the middle ground is not the place to go if you’re going to show courage and vision. And I think that’s his modus operandi. He always moves to the middle ground. It turned out that historically, this was not a moment for a middle-ground politician. We needed a high-ground statesperson and it’s clear now he’s not the one.
He later explains:
I think part of it is just temperament. That [Obama's] success has been predicated on finding that middle ground. “We’re not black. We’re not white. We’re not rich. We’re not poor. There’s no classes in America. We are all Americans. We’re the American family.” He invoked the American family last week. It’s a lie, brother. You’ve got to be able to tell the truth to the American people. We’re not a family. We’re a people. We’re a nation. And a nation always has divisions. You have to be able to speak to those divisions in such a way that, like FDR, like Lincoln, you’re able to somehow pull out the best of who we are, given the divisions. You don’t try to act as if we have no divisions and we’re just an American family, with the poor getting treated in disgraceful ways and the rich walking off sipping tea, with no accountability at all, and your foreign policy is running amok with Israelis committing war crimes against precious Palestinians and you won’t say a mumbling word about the Palestinian children. What is history going to say about you? Counterfeit! That’s what they’ll say, counterfeit. Not the real thing.
West saves some of his harshest criticisms for Rev. Sharpton, who he claims has "no prophetic integrity in his leadership." He says: "MSNBC, state press, its all Obama propaganda, and Sharpton is the worst."
Finally, contemplating Hillary Clinton's potential candidacy for president, West laments, "Oh my God, here comes another neo-liberal opportunist par excellence. Hillary herself is coming around the corner. It’s much worse."
Frank's full interview with the renowned scholar is available here.
Sunday, August 24, 2014
"Vulnerability in Numbers: Racial Composition of the Electorate, Voter Suppression, and the Voting Rights Act"
The title of this post comes from this upcoming paper, the abstract of which states:
In Shelby County v. Holder, the Supreme Court rendered one of the most potent antidiscrimination provisions of American law a dead letter: the preclearance regime of the Voting Rights Act of 1965 (VRA). Shelby County held that the formula determining which jurisdictions are required to obtain federal approval for voting law changes was outdated and offensive to states’ rights. The Court ignored ample evidence of discrimination in the covered jurisdictions, focusing instead on improvements in voter turnout and registration. We present new empirical evidence that the proposal and passage of restrictive voting laws, such as photo identification requirements and reductions of early voting opportunities, are associated with racial factors such as larger African American populations and increases in minority voter turnout. These results are consistent with the interpretation that restrictive voting laws have been pursued in order to suppress Democratic-leaning minority voters, and they are suggestive that racial discrimination is a contributing factor to this type of legislation. The increases in registration and turnout that Shelby County hailed as evidence that preclearance is no longer needed are actually risk factors for potentially discriminatory voting laws. We suggest opportunities for countering discrimination after Shelby County. The evidence we present is relevant to litigation under remaining provisions of the VRA, especially the prohibition on voting laws with a discriminatory effect under Section 2. Finally, we suggest that our findings should inform the Congressional response to Shelby County: a new coverage formula should include the racial characteristics we identify as risk factors.
Thursday, August 21, 2014
The John Jay College of Criminal Justice is offering an online course examining the laws and guiding legal opinions that sustained the institution of slavery; and, how those laws affected writers and activists whose work eventually contributed to the institution's demise. The course is called "Literature & Law of American Slavery." The instructor is Professor John Matteson, winner of the Pulitzer Prize in 2008 for Eden's Outcasts: The Story Louisa May Alcott and Her Father. And the course free! Yes, free!
The course summary states:
The debate over slavery touched not only the lives and fortunes of the millions of African Americans held in bondage, but also those of every American citizen. It was decided only after a catastrophic war in which more than 600,000 Americans died. The effects of the slaveholding era are still being felt today. Slavery profoundly affected not only American history, but American literature as well. The writings of many of the authors whose work the American literary tradition depends – Thoreau, Douglass, Melville, Stowe, Whitman, Alcott and others – were both informed and haunted by the specter of slavery.
In this online course, the worlds of law, literature, and history come together to paint a portrait of an era of conflict and controversy. We will read the judicial opinions that shaped and tried to preserve the institution of slavery, as well as the books of authors who tried to tear it down. We shall travel to the places where history was made, including Concord, Massachusetts; Gettysburg, Pennsylvania; and the home of Frederick Douglass as we look for answers to the following questions:
- What were the legal principles behind slavery, and what were the arguments both for and against its legality?
- How did the leading American writers of the time respond to slavery, both in fiction and in nonfiction?
- What was slavery like from the perspective of the slave, and how did African-American writers take up the war of words on the subject?
- How did the Civil War inspire the authors who lived through it and saw it firsthand?
- Why does the institution of slavery, which was abolished in the United States in the 1860s, still matter to us today?
The course lasts eight weeks. The reading list is intriguing and the time commitment is very manageable. Give it a thought.
The University of Baltimore School of Law's Center for Applied Feminism has issued a call for papers for its upcoming (and exciting) Feminist Legal Theory Conference scheduled for March 5-6, 2015. The Call for Papers summary states:
As the nation emerges from the recession, work and economic security are front and center in our national policy debates. Women earn less than men, and the new economic landscape impacts men and women differently. At the same time, women are questioning whether to Lean In or Lean Out, and what it means to “have it all.” The conference will build on these discussions. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on the intersection of theory and practice to effectuate social change. The conference seeks papers that discuss this year’s theme through the lens of an intersectional approach to feminist legal theory, addressing not only the premise of seeking justice for all people on behalf of their gender but also the interlinked systems of oppression based on race, sexual orientation, gender identity, class, immigration status, disability, and geographical and historical context.
Papers might explore the following questions: What impact has feminist legal theory had on the workplace? How does work impact gender and vice versa? How might feminist legal theory respond to issues such as stalled immigration reform, economic inequality, pregnancy accommodation, the low-wage workforce, women’s access to economic opportunities, family-friendly work environments, paid sick and family leave, decline in unionization, and low minimum wage rates? What sort of support should society and law provide to ensure equal employment opportunities that provide for security for all? How do law and feminist legal theory conceptualize the role of the state and the private sector in relation to work? Are there rights to employment and what are their foundations? How will the recent Supreme Court Burwell v. Hobby Lobby and Harris v. Quinn decisions impact economic opportunities for women? How will the new EEOC guidance on pregnancy accommodation and the Young v. UPS upcoming Supreme Court decision affect rights of female workers?
The conference will provide an opportunity for participants and audience members to exchange ideas about the current state of feminist legal theories. We hope to deepen our understandings of how feminist legal theory relates to work and to move new insights into practice. In addition, the conference is designed to provide presenters with the opportunity to gain feedback on their papers.
More information about the conference and paper submissions is available here.
As protests continue in Ferguson, MO over the shooting death of Michael Brown, the L.A. City Council reminds us that the costs of excessive force by police extends beyond the physical and emotional pain such violence causes. Yesterday, by a 12-2 vote, the council approved a $5 million settlement in the civil rights case that followed the 2013 shooting death of Brian Newt Beiard. As The Los Angeles Times reports:
The incident began around 9:30 p.m. [on Dec. 13] as a suspected drunk- or reckless-driver pursuit in Cudahy by Los Angeles County sheriff's deputies. The LAPD took over the chase when it reached city limits.
Beaird was driving erratically and at high speeds on freeways and surface streets. With several LAPD cars following him, he slammed his Corvette into a Nissan crossing the intersection at Olympic Boulevard and Los Angeles Street, sending the Nissan into a fire hydrant.
After initially trying to drive his mangled car, Beaird stepped out of the Corvette and staggered to the back of the car, with his hands up at one point and his back to the officers. Within moments, TV footage showed objects — possibly nonlethal rounds — bouncing off Beaird almost in concert with crackling gunfire.
Beaird fell to the ground, where he flailed from side to side before lying still as officers approached.
The question, of course, is not whether police were pursuing a criminal--even a potentially violent one. Rather, the question is whether the use of force by police was excessive under the circumstances. The belief that a jury may well have found that the officers' use of force under the above circumstances was excessive compelled the council to agree to the settlement amount.
Councilman Bernard Parks, a former LAPD chief, said that the case was serious enough to warrant such a large payout and that a jury could have awarded far more had the case gone to trial.
"This is a case that clearly had significant potential liability far beyond what the settlement offer was," he said. "It was a good business decision when you have a loss of life and you have evidence that could be viewed as overwhelming against the city of L.A."
The settlement was approved by a 12-2 vote. Two council members who have served with the LAPD voted against the payout, saying the shooting appeared justified. Councilman Mitchell Englander said the officers could not see the driver's hands when he fell so could not be sure whether he had a weapon.
Beaird's father originally had requested $20 million in damages.
The $5 million settlement is the largest for a fatal shooting by L.A. police in the last ten years.
Tuesday, August 19, 2014
The title of this post comes from this recent paper, the abstract of which states:
Although the question of whether constitutional rights matter is of great theoretical and practical importance, we know little about whether any constitutional rights actually improve rights in practice. We test the effectiveness of six political rights. We hypothesize that “organizational” rights increase de facto rights protection, because they create organizations with the incentives and means to protect the underlying right. By contrast, individual rights are unlikely to make a difference. To test our theory, we use a recently developed identification strategy that mitigates selection bias by incorporating previously unobserved information on countries’ preferences for constitutional rights into the research design. Specifically, we use data on constitutional rights adoption since 1946 to calculate countries’ yearly constitutional ideal point, and then match on the probability that a country will protect a specific right in its constitution. Our results suggest that only organizational rights are associated with increased de facto rights protection.
Saturday, August 16, 2014
The title of this post comes from this recent paper, the abstract of which states:
This review examines the complex interplay among social movements, organizations, and law. Although the sociological literature has recently been attentive to each pair of two of these social arenas"that is, to social movements and organizations, to organizations and law, and to law and social movements"there has been no effort to theorize the relationship among all three of them. We review the literature on each pair of institutions and then suggest ways in which insights about the omitted institution might inform extant work. Finally, we offer a new framework for examining social movements, organizations, and law together. Envisioning the three social arenas as overlapping and mutually constitutive social fields, we suggest that institutional change may occur when exogenous shocks produce contention and settlement in adjacent fields or when endogenous motion occurs as ideas within one field gradually influence practices in adjacent fields.
Thursday, August 14, 2014
Heavily armed police confront protesters of Michael Brown's shooting death by Ferguson police officer
The violence in Ferguson, MO continued last night after a third day of protests of the shooting death by a police officer of Michael Brown, an 18-year-old African American.
Witness accounts of the shooting differ from those of police. Witnesses of the shooting claim the teenager was shot multiple times by the officer while he held his hands in the air. Another witness claims Brown was shot while on the ground. However, police claim the teenager assaulted the officer and attempted to grab the officer's gun.
Differing accounts notwithstanding, the officer shot at least once from inside the vehicle and then fired multiple rounds once outside. Brown's bullet-ridden body was found 35 feet from the police car.
On Sunday, a vigil held in remembrance of the slain teen reportedly led some to riot and loot several local business. Protests commenced the following day. Armed policed eventually confronted the protesters and ordered them to disperse. When the protesters remained, police reportedly used tear gas, flash granades, and rubber bullets to disperse the crowd.
The Department of Justice and the FBI have announced investigations into the shooting, while local authorities plan to conduct their own investigations.
Tuesday, August 12, 2014
"Eliminating Mental Disability as a Legal Criterion in Deprivation of Liberty Cases: The Impact of the Convention on the Rights of Persons with Disability on the Insanity Defense, Civil Commitment, and Competency Law"
A number of laws that are associated with deprivations of liberty, including the insanity defense, civil commitment, guardianship of the person and numerous competency doctrines in the criminal context, require proof of mental disability as a predicate. The Convention on the Rights of Persons with Disability commands signatory states to eliminate that predicate. Summarizing principles set out in my book Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty, I explain how this seemingly radical stance can be implemented. Specifically, this article proposes adoption of an "integrationist defense" in the criminal context, an "undeterrability requirement" when the state seeks preventive detention outside of the criminal process, and a "basic rationality and self-regard test" for incompetency determinations. None of these proposals requires proof of mental disability.
Thursday, August 7, 2014
Many taxpayers may not be enthusiastic about their dollars being used to ameliorate the housing problems of former inmates, but recent research suggests that the benefits of doing so could be significant. As Christopher Moraff noted in a recent post at The Crime Report:
[Washington State Univeristy professor Faith] Lutze and a team of researchers recently completed a comprehensive assessment of a Washington State program that aims to reduce recidivism by providing high-risk offenders with 12 months of housing support when they are released from prison.
The study tracked 208 participants in three counties and found statistically significant reductions in new offenses and readmission to prison. It also found lower levels of parole revocations among participants. While housing is the immediate goal of the program, the Re-Entry Housing Pilot Program (RHPP) operates in concert with the Department of Corrections’ Community Justice Centers to provide a range of reentry support services.
Participants live in heavily subsidized apartments, often with roommates, and are required to engage in treatment, secure employment and work toward self-sustainability. Lutze says stable housing not only reduces violations of public order laws related to living and working on the street, but it increases exposure to pro-social networks and provides a sense of safety and well-being conducive to participating in treatment and other services.
That not only improves community safety, she says, but it “reduces the economic and human costs of ex-offenders cycling through our jails and prisons just because they do not have a safe place to live.” While this seems like a common-sense strategy, programs that place housing at the forefront of prisoner reentry are actually relatively scarce in the U.S., and have historically been driven by a handful of pioneering non-profits.
Since the 1990s, the New York-based Fortune Society has graduated hundreds of ex-offenders from its transitional housing facility in West Harlem, known as “The Castle.” The program has been so successful — with recidivism rates as low as one percent — that the group received city support to open a second facility, Castle Gardens, in 2010.
A similar program run by the Delancey Street Foundation in San Francisco, offers housing and support services to drug addicts, many of them ex-offenders, in six cities.
For all their success, access to these programs is limited, and demand regularly exceeds supply.
Tuesday, August 5, 2014
The experience of the past fifty years, culminating in Burwell v. Hobby Lobby Stores, Inc., is grounds for deep skepticism of any sweeping regime of religious exemptions. Part I of this essay locates the problem in the current legal and cultural moment, which includes religious objections to employer-provided contraceptive care for women, and religion-based refusals by wedding vendors and others to facilitate the celebration of same sex marriages. Part II broadens the time frame to analyze the regimes of religious exemption -- federal and state, constitutional and statutory -- in which such disputes play out. Such regimes will tend to be rhetorically strong and experientially weak, with an occasional outburst of religion-protecting vigor. Burwell v. Hobby Lobby, analyzed in Part III, demonstrates yet again that application of vague, general standards for adjudicating religious exemption claims cannot satisfy values associated with the rule of law. The key terms in the Religious Freedom Restoration Act are perpetually contested and subject to infinite, result-oriented manipulability. Part IV concludes with a prediction that Burwell v. Hobby Lobby will suffer the same fate as earlier, apparently strenuous embraces of religious exemptions. Ultimately, it will wither on a malnourished vine.
Friday, August 1, 2014
ACSblog posted today this intriguing commentary by Professor Atiba R. Ellis reminding us that the focus of civil rights activists throughout the 1960s was not limited to legal equality, but also to the institutional poverty that resulted from years of its denial. According to Ellis, this realtiy has important implications today. The title of this post comes from Ellis's piece, in which he writes:
The “two societies” problem persists today and imperils our progress on civil rights. The War on Drugs and the growth of mass incarceration continue to impact largely urban, poor minority communities directly and disrupt their opportunities to grow beyond the underclass. The debates continue over the appropriate role for government in providing more or less substantial support through welfare, job training, education, and other supports to overcome poverty. While civil rights advocates argue for the growth of such programs, conservatives argue that these failings are attributable to dysfunctional lifestyles.
Our considerations of civil rights should be rooted in the recognition of the existence of a largely racialized political and economic underclass that suffers the brunt of the long history of racial subordination and poverty, and that cannot necessarily protect itself due to the narrow construction of the remedies surrounding race, and the near lack of remedies around class altogether. It follows that as we look forward to the twenty-first century phase of the long civil rights movement, we should not abandon race-conscious remedies, as the conservative Supreme Court majority and some commentators have suggested. Instead, race-conscious remedies should have an added focus on issues that address the specific intersections where the members of the racial and class underclass tend to be affected most. Though not the grand next step King envisioned, it would be a step in the right direction.
To take a law of democracy example: the intersection of race and class lies at the heart of the debates concerning the propriety of voter identification laws and expanded voting. As I have argued in earlier research, these laws affect those voters who may find it difficult to absorb the indirect economic costs of voting since these laws narrow opportunities and heighten the entry requirements for voting. And as political scientists Matthew Mendez and Christian Grose have shown, racial bias underlies support for these laws. Similarly, as scholars like Michelle Alexander have demonstrated, the crisis of mass incarceration has heightened the barriers of felon disenfranchisement and ultimately has excluded a large segment of African Americans and Hispanics from the franchise. These examples suggest that electoral vulnerabilities that affect minorities due to their poverty ought to be subjected to more significant judicial and legislative scrutiny. This is but one area where we can innovate concerning the problems that exist at the intersection of race and class.
Innovation of race conscious remedies in this era of civil rights enforcement will further the ultimate end of equality that was the point of the movement. By doing so through protecting the largely minority political and economic underclass, we will ultimately take one more step to promote the dignity and status of every citizen in America -- and come closer to fulfilling the vision of the long civil rights movement.
Do recordings of phone conversations between inmates and their attorneys violate the Sixth Amendment?
The City Council of Kansas City recently voted unanimously to ban the open-carry of firearms in the city. But, as The Kansas City Star's Lynn Horsley reports, the council's effort may have little lasting impact. Indeed, the state legislature soon will vote to nullify Gov. Jay Nixon's (D) veto of a law that would prohibit cities and counties from outlawing such conduct. The article begins:
Kansas City will clamp down on people openly carrying guns — at least for now.
At Mayor Sly James’ urging, the City Council voted 9-0 Thursday to ban the “open carry” of firearms, saying Kansas City doesn’t need any more weapons on the streets.
“This is not an environment where we need to have everyone armed to the teeth,” James told his colleagues.
But the city’s new law, which takes effect in 10 days, may soon be weakened by the state.
That’s because the Missouri General Assembly has already approved a bill prohibiting cities from banning open carry for gun permit holders. Gov. Jay Nixon vetoed the bill, but the legislature holds its veto override session Sept. 10, and the bill’s sponsor is confident.
Jamison said it’s not lawful to brandish a gun, and in his firearms safety classes he teaches a long section on manners. “Gun flashing is impolite,” he said, adding that proper firearms etiquette discourages aggressive display of a weapon.
So there you have it - maintaining a holstered gun is akin to keeping up with the pace of play on a golf course. And, of course, critics are principally worried about their polite-packing friends.
Thursday, July 31, 2014
The Texas Observer reports that recent efforts by the Republican-controlled Texas legislature to eviscerate abortion services in the state has achieved just that - by September, few clinics are expected to remain. The Observer's Emily DePrang writes:
Yet the impact of [H.B. 2] can be summarized with one very hard number: six. That’s how many abortion clinics are expected to survive the last of HB 2’s restrictions, which go into effect on Sept. 1. They require all facilities that perform abortions—even if they only distribute a pill to be taken at home—to have an on-site ambulatory surgical center with wide hallways and rooms of a certain size. Most abortion clinics can’t afford to move or make the structural renovations to meet these standards and will close by Sept. 1, if they haven’t already. In 2011, Texas had 44 clinics that performed abortions. Today it has around 20. Come September: six.
The bill’s three other restrictions went into effect in November 2013. One was a ban on abortions after 20 weeks’ gestation, except to save the life of the mother or in the case of severe fetal anomalies. Such procedures were already rare—they make up less than 1 percent of abortions—but are often sought by especially vulnerable populations such as rape victims who’ve been in denial about their pregnancies. (The ban has no exception for rape.) Another requirement was that women make three separate clinic trips to receive a medical (pill-based) abortion—two for each dose of the medication and one for a follow-up visit. Combined with anti-abortion legislation passed in 2011, which added amandatory ultrasound and 24-hour waiting period, getting a medical abortion now takes four office visits. Medical abortion was also limited to pregnancies of seven weeks or less. Finally, doctors performing abortions were required to have admitting privileges at a hospital within 30 miles of the clinic, even though hospital transfers are extremely rare and hospitals have to admit and treat patients regardless of a doctor’s status.
Whatever the reasoning given for anti-abortion legislation, it certainly has impact. A recent study found that the restrictions passed in 2011 have reduced abortions in Texas by 13 percent, including a dramatic drop in the use of medical abortions. As HB 2 takes full effect, to the benefit of women’s health and safety or not, legal abortion in Texas is likely to continue its decline.
Wednesday, July 30, 2014
Tuesday, July 29, 2014
On July 23, Arizona executed Joseph Wood by lethal injection. Although typically lasting between 10 and 20 minutes, Wood didn't die for nearly two hours. Today, The Atlantic's Matt Ford recounts Wood's execution as well as several others that have been botched this year, and offers the following:
Whatever we know about these executions, the known unknowns are greater. Because the states will not share them, we don't know the dosages of the drugs administered. We don't know the drugs' manufacturers or their quality-control procedures. We mostly don't know the credentials of those administering the drugs. More importantly, the defendants don't know any of this, either. Without this information, those sentenced to execution cannot challenge the execution procedures in court nor check for possible medical complications. State execution-secrecy laws, routinely upheld by lower courts but untested before the Supreme Court, prevent this basic level of prophylactic Eighth Amendment protection. If death by torture is not cruel, defendants contend, what is?
Defense attorneys have repeatedly begged the courts to compel corrections officials to at least reveal the source of the drugs that would end their clients' lives. They have repeatedly been refused. This time, Wood and his lawyers tried a First Amendment challenge to execution-secrecy laws, arguing that the public has a right to know how their government puts their fellow citizens to death. This would also give the inmates the facts needed to pursue Eighth Amendment challenges.
But so far, lower courts have deferred to the states' claimed need for secrecy. "The information already released by the state enables informed debate about the lawfulness and propriety of Arizona’s two-drug cocktail," replied federal Judge Jay Bybee of the Ninth Circuit. Wood appealed that decision to the Supreme Court; last night, the justices denied his petition without further comment or dissent. Less than 24 hours later, Wood died choking.
There are two executions scheduled for August 6. Missouri will put Michael Worthington to death and Texas will put Manuel Vasquez to death, both by lethal injection. The Supreme Court will likely get another chance to consider the procedures very soon.
CRL&P related posts:
- Talk of fed judge's decision declaring CA death penalty unconstitutional
- Nothing like the smell of gunpowder in the morning
- Fifth Circuit stays execution of Texas inmate alleged to be 'intellectually disabled'
- Missouri inmate seeks halt to his upcoming execution
- "Oklahoma attorney general agrees to 6-month stay of execution after botched lethal injection"
Monday, July 28, 2014
It is axiomatic that whether speech is protected turns on whether it poses a serious risk of harm — in Holmes’s formulation, a “clear and present danger.” If this is correct, then the state of mind, or intent, of the speaker should be irrelevant. Yet First Amendment law makes speaker’s intent a factor in the protection of many different kinds of speech. This Essay offers an account of why and how speaker’s intent matters for speech protection. It argues that strong intuitions work against imposing strict liability for speech. These intuitions are best explained by an interest in speaker’s intent. An autonomy-based account of free speech provides reasons for this interest. Such an account also suggests what kind of intent is necessary before a given speaker may be subject to regulation. Elucidating speaker’s intent thus explains a mysterious aspect of First Amendment law and uncovers a new argument for autonomy theories of free speech.
Wednesday, July 23, 2014
"If defendant's health and obesity 'effectively confines him to his home,' then continuation of that restriction will not adversely affect him."
Jotaka Eaddy, the NAACP's voting rights director, told a panel on black turnout and voter suppression that "as a result [of the 2010 midterms] we saw a wave of voter-suppression laws." Eaddy said 22 states passed laws stiffening requirements on the identification needed to vote, a move that disproportionately affects poor and minority voters.
Added the Rev. William Barber, an NAACP board member: "We're in a position to have 2010 all over again unless we do something about it."
Polls have shown that Democrats, including black voters, are far less enthusiastic about the coming midterm elections than Republicans, who could win control of the U.S. Senate. President Obama has said that Democrats have to learn to mobilize voters in non-presidential elections.
Tuesday, July 22, 2014
In a recently filed lawsuit, the Mexican American Legal Defense and Educational Fund (MALDEF) claimes Bellflower, CA's at-large election system effectively disenfranchises black and Latino residents.
Bellflower is roughly 30-non-traffic-minutes south of Los Angeles.
Two former Buffalo Wild Wings employees claim the restaurant violated their rights protected under Title VII of the Civil Rights Act.
Specifically, they allege that the assistant manager at the restaurant at which they worked had created a hostile work environment by repeatedly telling a particularly incomprehensible racist joke (to my mind, its truly not understandable, but its
nevertheless available for your disgust in the complaint). He apparently wasn't punished after the plaintiffs complained about this behavior to BW3's human resources department. To the contrary, he was promoted.
And his promotion allegedly didn't assuage the abuse. He continued to make racist comments and give white employees preferential treatment. According to the complaint, he "allowed a white shift leader to strike and African American female employee with a plate without reprimand," and he even threw a plate of food at an African American cook.
This mistreatment apparently wasn't enough for him. He also wanted "to clean up the front of the house image," apparently meaning he wanted all the black people to move to the back of the house. The local CBS affiliate reports:
[The plaintiff's] claim that what happened to them was a systematic plan to have less interaction between African American employees and customers. FOX19 Investigates staff saw a number of African American workers serving customers at the Forest Park location.
However, FOX19 Investigates found a promotional video on the Buffalo Wild Wings corporate website that tells a different story. The video, aimed at prospective employees, is introduced by the company CEO.
It shows employees working at the chain's "most engaged" restaurant team of the year at a location in Memphis, Tenn. The video shows satisfied customers being served by happy workers, who participate in team huddles and high fives with co-workers and managers. But FOX19 Investigates noticed that in the nearly two-minute video, only non-African American workers were interacting with customers. African American workers are seen briefly only in the back of the restaurant or in the kitchen.
Finally, this BW3 manager also fired one of the plaintiff's even though she exceeded the metric used to determine whether employees fulfill their customer service obligations.
The complaint is here.
"'The Dignity and Justice that Is Due to Us by Right of Our Birth': Violence and Rights in the 1971 Attica Riot"
The response to the Attica riot has tended to focus on the spectacle of violence — the acts of the rioters and the state’s response to those acts. This paper distinguishes the violent events of the summer of 1971 from the grievances that inmates wished to express and their claims about rights and justice. This paper examines how the range of possibilities for theorizing and responding to prison violence and inhumane conditions that existed in the early 1970s was narrowed to a framework that recognized specific civil rights named by the state, obscuring deeper claims.
Monday, July 21, 2014
Of course, Kansas Sec. of State Kris Kobach says transgender citizens need not worry because poll workers can account for changes to physical appearance when determining whether to accept someone's ID - a claim that deserves a punch-line. As The Topeka-Capital Journal's Andy Marso reports:
But that reassurance didn’t match the on-the-ground experience of Stephanie Mott, a Topekan who leads the Kansas Statewide Transgender Education Project.
Mott said the first time she voted under the new ID requirements, she was still registered as Steven Mott, and her ID still listed her as Steven Mott, so she gave that name, knowing that all the poll worker was instructed to match was name and appearance.
“The poll worker said ‘Name?’ and I said ‘Mott,’ “ Mott said. “She said ‘First name?’ and I said ‘Steven.’ Then she said ‘You’re not Steven,’ out loud to everybody within earshot. Then I had to explain to her I was transgender. Then I had to explain to her what that was.”
Twenty-six years ago, Kevin Martin accepted a plea sending him to prison for 35 years to life for the rape and murder of 19-year-old in D.C. Although Martin claimed no knowledge of the young woman's death, the prosecutor told him that an FBI forensic unit had found his pubic hair on one of the victim's shoes. And the forensic expert's testimony alone would be damning.
New DNA evidence tells another story, however, and today he's an exonerated man. As WaPo reports:
U.S. attorney Ronald C. Machen Jr. joined defense calls to vacate Martin’s conviction and declare him innocent of the rape and murder of Ursula C. Brown. Machen cited DNA evidence that contradicts a previous finding by forensic experts linking Martin to a hair collected at the scene.
Martin, who had long professed innocence in the killing, left the D.C. courthouse with his name cleared.
Martin's exoneration came as part of a larger effort by the D.C. Public Defender Service to have FBI hair samplings re-examined after a DOJ report revealed concerns about the methods of analysis employed by an FBI investigator.
In December 2009, D.C. Superior Court Judge Fred B. Ugast exonerated and ordered the release of another man, Donald E. Gates, then 60, after DNA results cleared him of a rape-murder for which he had spent 28 years in prison.
Gates’s counsel, the D.C. Public Defender Service, also discovered that for 12 years prosecutors failed to disclose that the Justice Department’s inspector general in 1997 had criticized the FBI agent who had linked Gates’s hair to the crime, and that flaws were later found in that evidence.
Ugast ordered Machen’s office to review all cases handled by the agent, Michael P. Malone. In 2012, facing continued demands by PDS, Machen ordered a review of all convictions that relied on FBI hair analysis.
This review has taken awhile - now more than two years running - and has resulted in a "nationwide review of more than 2,100 convictions in the 1980s and 1990s."
Four other men already have been exonerated since the review commenced in 2009.
Federal judge holds warrant for individual emails permits law enforcement to seize entire email account
The New York Law Journal reports that a federal judge has found that the Fourth Amendment does not prohibit law enforcement officials from seizing and reviewing an email account after the execution of the initial search. The article states:
"In the case of electronic evidence, which typically consists of enormous amounts of undifferentiated information and documents, courts have recognized that a search for documents or files responsive to a warrant cannot possibly be accomplished during an on-site search," [U.S. District Magistrate for the Southern District of New York Gabrial Gorenstein] said.
So courts have developed a more flexible approach compared to on-site searches and "routinely" allow the seizure of entire hard drives, he said, and that's why the Federal Rules of Criminal Procedure were amended in 2009 [Rule 41(e)(2)(A)] to allow a warrant that "authorizes a later review of the media or information." Under the amended rule, the time for executing the warrant "refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review."
Gorenstein also said in June the U.S. Court of Appeals for the Second Circuit held in United States v. Ganias, 2014 WL 2722618, that "the creation of mirror images for off-site review is constitutionally permissible in most instances, even if wholesale removal of tangible papers would not be."
Gorenstein said he could "perceive no constitutionally significant difference between searches of hard drives and email accounts.
And the White House is complicit in its continued neglect of our civil liberities. Writing last week in WaPo, former State Department employee John Napier Tye explained that neither metadata nor the content of private communications by U.S. citizens is protected from NSA peeping. Indeed, as a result of Executive Order 12333, many private communications remain exposed without even minimal Congressional oversight (such that it is, right Sen. Feinstein?). Here's the breakdown:
Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.
Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders. Issued by President Ronald Reagan in 1981 to authorize foreign intelligence investigations, 12333 is not a statute and has never been subject to meaningful oversight from Congress or any court...
Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.
Perhaps you don't give two hoots about the NSA's activities abroad. You live in 'Merica, and your communications stay here. Well tighten your belt... As Tye explains:
A legal regime in which U.S. citizens’ data receives different levels of privacy and oversight, depending on whether it is collected inside or outside U.S. borders, may have made sense when most communications by U.S. persons stayed inside the United States. But today, U.S. communications increasingly travel across U.S. borders — or are stored beyond them. For example, the Google and Yahoo e-mail systems rely on networks of “mirror” servers located throughout the world. An e-mail from New York to New Jersey is likely to wind up on servers in Brazil, Japan and Britain. The same is true for most purely domestic communications.
So, forget privacy.
For her part, Sen. Feinstein cares enough about the unchecked surveillance of US citizens to pretend to care. But only time will tell whether or not her concerns bear fruit, for the story-told creates considerable doubt as to her seriousness.
Saturday, July 19, 2014
President Obama to amend 1965 executive order to prohibit contractors from discriminating against gay workers
[T]he rule will apply to all employees except for ministerial positions, the senior official said.
Already, religious organizations are allowed to make employment decisions for ministerial positionssuch as clergyas they see fit. Mr. Obama’s order won’t change that. This means a religious organization could refuse to hire someone for a clergy position simply because he is gay without jeopardizing his contract.
Additionally, under a modification put in place by President George W. Bush, religious organizations are allowed to consider the religion of a person when making hiring decisions for any position. The Obama order doesn’t change that, either.
So, under the new rules, a Catholic organization could decline to hire someone for a nonreligious post because she wasn’t Catholic, but not because she was a lesbian.
The Hartford Courant reported Thursday that UConn settled the civil rights suit filed against it by five women alleging that the university failed to adequately respond to their claims of rape and sexual assault.
...an advisor to Europe's highest court ruled," according to the Courthouse News Service. Here are the basics:
Karsten Kaltloft claimed he was fired Nov. 22, 2010, after working for the Municipality of Billund in Denmark as a "child-minder" for 15 years because he weighed 352 pounds.
Throughout his employment, Katloft was fat, with a body-mass index of 54, and is therefore considered obese by the World Health Organization.
Arguing that his morbid obesity is a "chronic and durable illness," Katloft pointed out that obesity is considered a disability under American law.
The municipality claimed that it fired him because of a reduction in workload, but Katloft claimed that he was fired because of his weight.
He sued in a Danish District Court, and the Retten I Kolding Court in Denmark asked the Court of Justice last year to clarify whether the antidiscrimination books in the EU cover obesity.
Jaaskinen suggested Thursday that obesity should be included as a protected class.
"I am ... of the opinion that, in cases where the condition of obesity has reached a degree that it, in interaction with attitudinal and environmental barriers, as mentioned in the [United Nations] Convention, plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/or psychological limitations that it entails, then it can be considered to be a disability," he wrote.
It doesn't matter if the person's obesity is because of excessive "energy intake," Jaaskinen added, stating that it is "irrelevant" if a person's obesity is "self-inflicted" because a person eats too many calories but exercises too little, if it's a psychological or medical problem, or if it's a side-effect from certain medications.
"Otherwise, physical disabilities resulting from conscious and negligent risk-taking in traffic or in sports, for example, would be excluded from 'disability'" under the law, he wrote.
Thursday, July 17, 2014
This Article deploys a comparative approach to question a widely shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian "invention," absent in the common law. Drawing on an influential strand of functionalist comparative law, the Article identifies the "functional equivalents of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late-nineteenth and early- twentieth century in fields as diverse as water law, nuisance, tortious interference with contractual relations, and labor law. The Article investigates the reasons why in the United States, contrary to continental systems where rules limiting a malicious or unreasonable use of one's right coalesced into a unitary category of "abuse of rights," these rules remained largely nonintegrated. Rationalization of these nonintegrated reasonableness tests and malice rules, I argue, was achieved by means of a novel, unitary style of reasoning, hardly fitting the traditional portrait of nineteenth-century "Classical" orthodoxy, rather than by means of conceptual integration. Further, the Article suggests that abuse of rights' potential as a tool for social reform was consistently defused. In the United States, rarely and timidly did courts deploy malice rules to effect progressive distributive outcomes. And even when they did, they invariably resorted to the individualistic language of modern private law.
Professor Doug Berman has the links at Sentencing Law and Policy.
Here are a couple additions:
- Hit & Run's Scott Shackford, California’s Death Penalty Struck Down as Unconstitutional for Not Actually Killing People.
- WSJ Law Blog's Ashby Jones, Federal Judge Deems California’s Death Penalty Unconstitutional.
These are the words of Pennsylvania District Judge Wayne Maura who cited a man for contempt of court and issued him $50 fine because he wore his pants too low. This apparently is a thing with Maura, who reportedly has a sign on his chamber door that says "Pull your pants up!" Unfortunately for him, the common pleas judge dismissed the charges and the fine.
Adam Dennis...won a dismissal of the state district court case, as well as $50 fine, represented for free by a private practitioner, the Morning Call reports.
Although sympathetic to District Judge Wayne Maura's efforts to maintain decorum in the Allentown courtroom at issue, Lehigh Court of Common Pleas Judge William E. Ford sided with defense attorney Gavin Holihan. He argued that legal requirements of an intentional and substantial disruption of judicial proceedings weren't satisfied by Dennis' in-court attire on May 7. Dennis was in district court that day to attend a hearing involving a relative.