Sunday, December 28, 2014
In 2013, undocumented youth activists known as the DREAM 9 attempted to enter the borders of the United States from Mexico as a form of political protest. The action created a rare visible split among supporters of immigration reform. Some understood the action as an extension of the civil rights movement; others called it reckless and defiant. Other political activity by undocumented youth has been similarly criticized for “in-your-face agitation,” “arrogance” and the failure to be “respectful.” But as noncitizens, aliens are not allowed to take part in political processes, such as voting, that might otherwise channel legitimate political dissent. In this chapter I examine the relationship between the political activity of noncitizens, and the perception that this activity is uncivil. Can the undocumented alien's political activity ever be heard within the political boundaries of civility?
Civility can be understood to refer both to the conduct of a citizen and to the borders of civil expression. Political theorists who discuss civility assume as a discursive frame the internal life of a bounded political community, where what is put into question is the civility or incivility of the citizen. But what of the alien, who lacks the formal status of citizenship? More particularly, what of the undocumented alien, defined as an illegitimate civil subject? This chapter suggests that the relationship between civility, citizenship and the alien means that the political activity of undocumented immigrants, while in some sense the most robust civic participation imaginable, will not be experienced as civil. Arguably, civility's association with citizenship haunts the possibility of any noncitizen, particularly the undocumented noncitizen, to have her actions experienced as civil; she is perceived to simultaneously make claims upon and stand outside the demos. The turn to more confrontational political tactics risks that undocumented youth are perceived as something other than dutiful, loyal, hardworking, patriotic human capital. But this concern betrays a fundamental sense that the appropriate position is one of passive gratitude, rather than robust activity.
While civility offers itself as a universal value and as an impartial practice, it aligns itself with the powerful, casting the charge of incivility on those making a disruptive demand for inclusion. Undocumented immigrants are making claims as new political actors, pushing beyond existing frames of claim making. Undocumented youth activists remind us that civility, like citizenship, has both an inclusive and an exclusive function, in creating a space within, as well as an outside. And they tell us that while civility is sometimes vaunted for its importance in stitching the fabric between those within the political community, its most salient characteristic may be how it can be used to push others outside.
Saturday, December 27, 2014
On the surface, Schuette v. Coalition for Affirmative Action leaves the constitutional law of affirmative action undisturbed. Michigan had amended its state constitution to prevent the use of racial preferences by any university system or school district. Rejecting a fourteenth-amendment challenge, the Court upheld Michigan’s law. The Schuette plurality went to considerable lengths to explain that Schuette in no way touched on the constitutionality or merits of race-based admissions. Just the same, understood in historical context, the Schuette majority lays bare profound new dangers confronting proponents of affirmative action. In addition to praising colorblindness, the Court cast doubt on the very definition of race.
This Article historicizes Schuette, revealing it to be a turning point in the law and politics of affirmative action. In the past, activists consistently used race to describe the color of one’s skin, but before Schuette, the meaning of race itself had not played a central part in challenges to the constitutional legitimacy of affirmative action. As Schuette shows, anti-affirmative action amici and activists have developed a new argument: a claim that if race is a social construct, race-conscious remedies are arbitrary, unfair, and likely to reinforce existing stereotypes.
As the new anti-affirmative action activism makes plain, the question is how courts can address racial discrimination when racial identities themselves are fluid and complex. The Article looks to employment discrimination law — and to “regarded as” liability — as a framework for judges seeking to address the reality of race discrimination without reifying racial categories. Under the Americans with Disabilities Act (ADA) and the Americans with Disability Act Amendments Act of 2009 (ADAAA), a worker may in certain cases seek relief when she is regarded as disabled — regardless of whether she actually belongs to a protected class. The Article argues that regarded-as reasoning has considerable potential in the context of postsecondary admissions. In complying with existing fourteenth-amendment jurisprudence, admissions officers already rely on proxies for applicants’ race. Doing so checks self-serving behavior and better captures the fluidity of race in modern America.
Friday, December 26, 2014
This article recovers the institutional alternatives to judicial enforcement of civil liberties during the New Deal. Based on archival research, it demonstrates that the court-based strategy was deeply contested and remained controversial well after the foundational First Amendment victories. Today, theories of civil liberties are premised on state neutrality in the domain of public debate; in the 1930s, the most prominent accounts demanded affirmative government intervention to correct distortions in the marketplace of ideas or to advance substantive rights. In examining these forgotten traditions, the article highlights the close and unexplored connection between civil liberties and organized labor during the New Deal. Surprisingly, early proponents of civil liberties understood the term to encompass, above all, the rights to organize, picket, and strike. Reconstructing the competing visions of civil liberties and their optimal enforcement before and after the “Constitutional Revolution” reveals the anticipated trade-offs of the judicial strategy, with important implications for theoretical accounts of constitutional change.
Thursday, December 25, 2014
The title of this post comes from this intriguing paper, the abstract of which states:
Should a Muslim employee who falsely stated in his job interview that he is Christian in order to avoid discrimination be fired for his dishonesty? Should a buyer of a tract of land who conducted an expensive investigation before contracting that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land's mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead in the public interest? In all of these cases, and many others, parties are allowed not to disclose material information to an interested party but not to lie about the same information.
This article makes the argument that in many contexts, where non-disclosure is permitted lies should also be tolerated, for otherwise the social goals sought by allowing non-disclosure are frustrated. With this as its starting point, the article develops a theory of valuable lies, discussing the conditions under which lies should be permitted. It analyzes the main impediments to allowing lies, the most important of which being the risk that permitting lies would impair truth-tellers' ability to reliably convey truthful information. The article applies the theory to various fields, including contract law, tort law, medical malpractice, criminal law and procedure, and constitutional law. It concludes by proposing changes to the law that will allow telling valuable lies in well-defined categories of cases.
Wednesday, December 24, 2014
The title of this post comes from this recent paper, the abstract of which states:
The usual legal story about partisan gerrymandering is relentlessly pessimistic. The courts did not even recognize the cause of action until the 1980s; they have never struck down a district plan on this basis; and four sitting Justices want to vacate the field altogether. The Supreme Court’s most recent gerrymandering decision, however, is the most encouraging development in this area in a generation. Several Justices expressed interest in the concept of partisan symmetry — the idea that a plan should treat the major parties symmetrically in terms of the conversion of votes to seats — and suggested that it could be shaped into a legal test.
In this Article, we take the Justices at their word. First, we introduce a new measure of partisan symmetry: the efficiency gap. It represents the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. It captures, in a single tidy number, all of the packing and cracking decisions that go into a district plan. It also is superior to the metric of gerrymandering, partisan bias, that litigants and scholars have used until now. Partisan bias can be calculated only by shifting votes to simulate a hypothetical tied election. The efficiency gap eliminates the need for such counterfactual analysis.
Second, we compute the efficiency gap for congressional and state house plans between 1972 and 2012. Over this period as a whole, the typical plan was fairly balanced and neither party enjoyed a systematic advantage. But in recent years — and peaking in the 2012 election — plans have exhibited steadily larger and more pro-Republican gaps. In fact, the plans in effect today are the most extreme gerrymanders in modern history. And what is more, several likely will remain extreme for the remainder of the decade, as indicated by our sensitivity testing.
Finally, we explain how the efficiency gap could be converted into doctrine. We propose setting thresholds above which plans would be presumptively unconstitutional: two seats for congressional plans and eight percent for state house plans, but only if the plans probably will stay unbalanced for the rest of the cycle. Plans with gaps above these thresholds would be unlawful unless states could show that the gaps either resulted from the consistent application of legitimate policies, or were inevitable due to the states’ political geography. This approach would neatly slice the Gordian knot the Court has tied for itself, explicitly replying to the Court’s “unanswerable question” of “how much political...effect is too much.”
Tuesday, December 23, 2014
Professionals speak in the course of exercising their profession. Yet, the State regulates the professions all the time. What is the permissible scope of regulation of the professions as distinct from regulation of professional speech? This Article provides a comprehensive account of the doctrinal and theoretical basis of professional speech and its application to controversial First Amendment questions.
First Amendment protection for professional speech rests on distinctive theoretical justifications and the key to understanding professional speech lies in understanding the character of the learned professions. This Article suggests that the professions be thought of as knowledge communities. Conceptualizing the professions as knowledge communities not only informs the justifications for First Amendment protection but also the limits of that protection, the permissibility of regulation of the professions, and the imposition and extent of tort liability for professional malpractice.
Monday, December 22, 2014
Corporate religious liberty appears to be on the rise. The Supreme Court’s unanimous decision in Hosanna Tabor v. EEOC (2012) energized sweeping theories about “freedom of the church.” The Court’s more controversial decision in Burwell v Hobby Lobby Stores, Inc. (2014) determined that for-profit entities may be legally entitled to claim a corporate religious character. Speaking in the language of rights, commentators have vigorously debated the foundations and meaning of these decisions.
This chapter argues that these debates are misdirected. The special treatment of religion in American constitutional law does not properly rest on any theory that religious entities enjoy a distinctive set of rights. Instead, the relevant limitation on government arises from the Constitution’s Establishment Clause. The governing principle, deeply grounded in history, can best be understood as a prohibition on government involvement – through regulation or financial support – in “purely and strictly ecclesiastical matters.” That principle (developed at greater length in our book, Secular Government, Religious People) explains why the government may not decide, for example, who is fit for ministry or which faction within a church is acting in fidelity to its original teachings. The principle applies with equal force to the state’s relationship with houses of worship, religious non-profit institutions such as schools or charities, and for-profit businesses whose owners assert a corporate religious character. The only legally relevant differences among these types of organizations should be derived from the likelihood that the principle will be implicated in any particular case.
After reviewing the 19th century underpinnings of this singular approach, and offering pertinent reminders of limits on state financial support for religious teaching, the chapter focuses primarily on the context of employment regulation. Along the way, the chapter addresses concrete questions, such as whether a for-profit business can ever successfully assert a ministerial exception with respect to any of its employees. The answer may surprise you.
Sunday, December 21, 2014
With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance.
This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid unwanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.
This article uses the legal history of struggle over spousal consent abortion restrictions as a new way into the debate about the relationship between ART and existing reproductive rights. Such laws would require women to notify or obtain consent from their husbands before a doctor can perform an abortion. Scholars use spousal-consultation laws to illustrate the sex stereotypes supposedly underlying all abortion restrictions. This article tells a far more complex story. When feminists and pro-lifers battled about spousal consent in the 1970s, they wrestled with many of the questions motivating current battles about ART: Do women enjoy a unique role in child-rearing and childbearing? Does gestation, caretaking, or a genetic connection explain the decision-making power conferred on women in the context of reproduction? How could feminists reconcile demands that men perform a greater share of child-rearing with arguments that women should have the final decision on reproductive matters? By reexamining the history of the consent wars, we can gain valuable perspective on what can go right -- and wrong -- when we forge a jurisprudence based on the relationship between genetic, gestational, and functional parenthood.
The consent wars helped drive a wedge between feminist sex-equality arguments -- which challenged sex stereotypes and reproductive rights law -- which partly relied on similar generalizations about sex roles. Throughout the 1960s and 1970s, legal feminists pushed new laws on publicly funded child care and pregnancy discrimination in a quest to assign more caretaking responsibility to men and to the State. Feminists believed that separating women's gestational and functional parenthood would help root out damaging sex stereotypes and dramatically expand women's role in the political, economic, and social spheres.
The consent wars flipped this project on its head: for both strategic and ideological reasons, feminists assumed a more traditional vision of the roles, rights, and responsibilities of both mothers and fathers. Feminists argued that women had a unique role not only in the context of gestation but also in the context of child-rearing. While these contentions strengthened the constitutional case against spousal consent laws, they were unnecessary. Without contradicting their support for equal parenting responsibilities, feminists could have stressed that the law did not treat the fetus as a child. Consequently, a man's interest in equal parenting might have looked quite different before, rather than after, viability. Moreover, conflating gestational and functional parenthood had damaging, unintended consequences, entrenching sex stereotypes about gender roles at the heart of abortion jurisprudence.
In chronicling the consent wars, we can gain a better understanding of the proper relationship between ART and the existing constitutional framework governing reproduction. As feminists recognized in the 1960s and 1970s, pregnancy -- not the burdens of caretaking or genetic parenthood -- puts women in a unique biological and social position. In the 1970s, by reading a broader understanding of women's disproportionate share of parenting into Roe v. Wade, feminists inadvertently created an opening for courts to fall back on deeply rooted stereotypes about women's role in the home. To avoid this trap in ART cases, we should read abortion jurisprudence as standing for the connection between sex equality and women's gestational role. The consent wars powerfully demonstrate the costs feminists can face when they fail to unbundle women's genetic, gestational, and functional parenthood.
Conversely, ART jurisprudence spotlights the path not taken by feminists during the consent wars. Separating the strands of parental rights allows us to define women's equal citizenship concerns in abortion with greater precision. Because only women can carry pregnancies to term, abortion bans necessarily implicate women's interest in equal treatment, regardless of who takes on caretaking responsibilities after childbirth. Equally important, the injuries associated with unwanted pregnancy itself -- to bodily integrity, dignity, and autonomy -- can justify a woman's right to abortion regardless of who assumes caretaking responsibilities later in life.
Saturday, December 20, 2014
In this essay, Professors Fishkin and Gerken argue that the Supreme Court’s deregulation of the campaign-finance system is fueling a shift toward "shadow parties" -- groups that are separate from the formal party apparatus but run by party insiders and central to the workings of the party writ large. They argue that the roots of this trend are to be found, paradoxically, not in the two parties’ weakness but in their strength. Contrary to the emerging conventional wisdom in the field, the authors suggest that the Court’s 2014 decision in McCutcheon v. FEC will do little to arrest this trend. The essay closes with a brief exploration of the trend’s normative implications. This essay is a version of a talk presented at the 2014 Brennan Center Convening, Money in Politics 2030: Toward a New Jurisprudence.
Note: This essay is a version of a talk presented at the 2014 Brennan Center Convening, Money in Politics 2030: Toward a New Jurisprudence.
Friday, December 19, 2014
Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the ways in which actors exercise their discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with independent developments in public administration. We illustrate the doctrinal and administrative changes with a study of policing. We discuss court-supervised reforms in New York and Cincinnati as examples of contrasting trajectories that these developments can take. Both initiatives are better understood in terms of an implicit duty of responsible administration than as an expression of any particular substantive right. However, the Cincinnati intervention reaches more deeply into core administrative practices and indeed mandates a particular crime control strategy – Problem-Oriented Policing. As such, it typifies a more ambitious type of structural civil-rights intervention that can be found in other areas.
Wednesday, December 17, 2014
One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to long usage,” or “cruel and new.” The primary purpose of the Cruel and Unusual Punishments Clause is to prevent legislatures and courts from imposing new punishments that are unduly harsh in light of the long usage of the common law. This Article demonstrates that the Clause also incorporates the common law doctrine of desuetude, which holds that a once traditional punishment can become “unusual” if it falls out of usage long enough to show a stable multigenerational consensus against it. State courts and the Supreme Court of the United States employed this doctrine in decisions prior to 1958 to determine whether punishments such as ducking of a common scold, execution accompanied by torture, and imprisonment at hard labor for a minor offense were cruel and unusual. Under the original meaning of the Cruel and Unusual Punishments Clause, the death penalty could become unconstitutional if it fell out of usage long enough to show a stable, multigenerational consensus against it. This process already occurred with respect to flogging, branding, and execution for relatively minor crimes like theft, and under the constitutions of states that abolished the death penalty several generations ago.
Wednesday, December 10, 2014
The title of this post comes from this intriguing legal history paper, the abstract of which states:
The economics literature cites the Harrison Narcotics Tax Act of 1914 as the start of the War on Drugs. With few exceptions, the literature fails to explain the dynamic nature of interventionism. This paper a dynamic model of interventionism to show that legislation passed in the late 19th century produced unintended consequences that ultimately led to the passage of the Harrison Act.
Tuesday, December 9, 2014
State legislatures and the Equal Opportunity Employment Commission (EEOC) have moved in parallel in recent years to provide new protections for the employment prospects of some surprising groups: people who are unemployed, people who have poor credit, and people with past criminal convictions. These new protections confound our usual theories of what antidiscrimination law is about. These groups are disanalogous in a variety of respects to groups defined by such characteristics as race, sex, and national origin. But the legislators and regulators enacting these new protections were responding to pervasive problems they observed in the opportunity structure of our society — problems of a particular kind that I call bottlenecks. Essentially, these legal actors judged that poor credit, unemployment, and past criminal convictions were having too outsized an effect on a person’s employment prospects. If many or most employers demand good credit, then good credit becomes a serious bottleneck: a narrow place through which workers must pass to reach a wide range of opportunities on the other side.
This Article argues that the anti-bottleneck principle — the principle that the law ought to ameliorate severe bottlenecks in the opportunity structure where it can feasibly do so — is not only a way of understanding these new, cutting-edge protections, but also a way of understanding much of the project of Title VII and our existing body of antidiscrimination law. This Article explores the role the anti-bottleneck principle plays in legislators’ decisions to enact antidiscrimination laws and in decisions by judges and by the EEOC about how to interpret and enforce such laws. The Article argues that the anti-bottleneck idea is at the heart of both disparate treatment law and disparate impact law — and that it should cause us to think differently about the function of disparate impact law. The EEOC lawyers who started down the path that led to Griggs v. Duke Power understood that general ability tests were becoming a major bottleneck in the opportunity structure. By limiting the use of those tests, Griggs ameliorated a bottleneck that had arbitrarily constrained the opportunities of many whites as well as blacks.
Finally, turning from the positive to the normative, this Article defends the central — if previously unacknowledged — role that the anti-bottleneck principle plays in our law of equal employment opportunity. It is a profound challenge for any legal system to promote “equal opportunity” in a world of pervasive difference and inequality, where the mechanisms that perpetuate inequality shift over time. The anti-bottleneck principle turns out to be a strong and surprisingly practical response to these challenges.
Monday, December 8, 2014
What is the relationship between the battle for marriage equality and the expansion of sexual liberty? Some see access to marriage as a quintessentially progressive project — the recognition of the equality and dignity of gay and lesbian couples. For others, promoting marriage or marital-like relationships reinforces bias against individuals making alternative intimate decisions. With powerful policy arguments on either side, there appears to be no clear way to advance the discussion.
By telling the lost story of efforts to expand sexual liberty in the 1960s and 1970s, the Article offers a new way into the debate. The marriage equality struggle figures centrally in a longer narrative about the omission of sex — rather than committed relationships or marriage — from the constitutional canon. By recapturing this narrative, we can identify powerful doctrinal constraints confronting the contemporary marriage equality movement. As importantly, the story of the non-right to sex provides a compelling historical parallel to the contemporary marriage equality movement. The mistakes of past decades illuminate the dangers inherent in contemporary marriage-equality tactics.
The Article begins the story of the non-right to sex in the 1960s and 1970s, when groups like the ACLU and NAACP confronted a backlash against a perceived increase in illegitimacy rates. Some attorneys and activists viewed the illegitimacy backlash as evidence of the intersectionality of race discrimination, sex discrimination, and the denial of sexual freedom. Often, however, feminists and civil rights attorneys presented themselves as defenders of conventional sexual morality, arguing that the reform of laws on illegitimacy, contraception, and abortion would strengthen or leave intact traditional sexual norms. These arguments helped progressives achieve incremental progress. At the same time, progressives inadvertantly reinforced the State’s ability to regulate sexual behavior.
For the marriage equality movement, this history offers a cautionary tale. Efforts to achieve incremental social and legal change have obvious advantages: these strategies appeal to cautious courts and reduce the odds of backlash. At the same time, as the materials considered here make plain, incremental strategies can strengthen the status quo. In the 1960s and 1970s, progressives paid lip service to the evils of illicit sex in an effort to chip away gradually at discrimination against minorities, sexual dissenters, and women. This tactic had unexpected consequences, since cause attorneys helped to entrench an existing intimate hierarchy. As this history counsels, incremental litigation strategies adopted by the marriage equality movement may have a profound cost of their own.
Thursday, November 20, 2014
This essay uses techniques advanced by the structuralist literary theorist Gérard Genette to examine the 1831 pamphlet The Confessions of Nat Turner. Like all documents generated in the course of master-class investigations of slave revolts, alleged or actual, The Confessions of Nat Turner raises obvious evidentiary quandaries: credibility, reliability, authenticity. Precisely what kind of historical source is this document. How should it be interrogated? What can it tell us? These questions become particularly important in light of controversies over the use of sources by historians of the Denmark Vesey conspiracy (Charleston 1822). Structuralist analysis suggests that The Confessions is a document containing at least two and likely three distinct texts, and that it is carefully composed to contain Nat Turner’s confession within a secure frame interpretive frame intended to guide the confession’s reception and to anticipate and deflect subversive readings of the Turner Rebellion.
Wednesday, November 19, 2014
This publication examines the broad implications the United States Supreme Court's holding in Burwell vs. Hobby Lobby et al. could have on medical care. The Court in Hobby Lobby held the company could sue for an exemption from the contraceptive mandate of the Affordable Care Act on grounds that it was a substantial burden on the company's exercise of religious freedom. The reasoning in Hobby Lobby could extend beyond insurance and parallels to debates over "conscience-based" refusals to prescribe or dispense contraceptives. There is concern that companies may use this same logic to discriminate in the name of religion against same-sex spouses with regard to benefit packages; employers may object to state-mandated coverage of in vitro fertilization; and physicians may be able to withhold information from a patient under a religion based moral objection. Evidence shows the most effective methods of contraception that will lead to fewer unintended pregnancies, and thus, fewer abortions is access to the most effective methods of contraception. Hobby Lobby may well be driving its female employees to less effective methods of contraception, leading to more unintended pregnancies and pregnancy terminations. By its own logic, Hobby Lobby may now become complicit in those additional abortions.
Tuesday, November 18, 2014
The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”
Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, particularly at the time of the founding or during the modern era. This Article examines both state and federal courts’ interpretations of constitutional rights from the late eighteenth through the early twentieth century. It demonstrates that courts during that time adopted originalist tests. These tests, however, proved so flexible that they allowed legislatures and courts great discretion in modifying civil jury trial. The civil jury was no longer valued as a law-nullifying institution, as it had been at the founding, but instead was considered a hindrance to the administration of justice. Courts were concerned to accommodate changed circumstances, such as growing docket pressure and expense of litigation, and emphasized the impossibility of maintaining every detail of original practice. Once the anchor of original jury practice was abandoned, the jury right seemed tethered to no definite meaning. The one exception was the jurisprudence of the U.S. Supreme Court under the Re-examination Clause of the Seventh Amendment, but even that strict historical test proved able to be circumvented. This history suggests problems with maintaining procedural rights more generally.
Monday, November 17, 2014
Over the past several decades, economic inequality has grown dramatically in the United States while inter-generational economic mobility has declined, which has challenged the very notion of the "American Dream." In fact, the United States is more economically unequal than most other industrialized countries. Further, there are dramatic and growing racial economic gaps in this country. Despite the Occupy Wall Street Movement, and the various spinoffs it has catalyzed, there has not been any sustained, widespread social movement to address economic inequality in the United States over the course of the past several decades. Furthermore, it is unlikely that a mass social movement will emerge and endure over a long period of time in the near future to address economic inequality and growing poverty. Greater economic equality in the United States is achievable only if policymakers make fundamental changes in certain key areas of public policy impacting education, the criminal justice system, taxation, and families' ability to invest financial and non-financial resources in their children, among other areas. Although it is unlikely that the legal system can serve as a primary tool to reduce economic inequality in any substantial way, there are a number of legal strategies and initiatives that lawyers and legal organizations, including law schools, could pursue in an effort to increase economic equality and security for many Americans on the margins, including for many persons of color.
Sunday, November 16, 2014
This paper is the text of the fourth annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, which will be delivered in November and subsequently published in the West Virginia Law Review. The article explores the burgeoning doctrine of “compelled commercial speech,” with special emphasis on recent decisions of the United States Court of Appeals for District of Columbia Circuit, including American Meat Institute (“AMI”) v. Department of Agriculture, an en banc decision upholding the mandated labeling of meat products; National Association of Manufacturers (“NAM”) v. SEC, which struck down features of SEC mandated reports about the origins of conflict minerals; and R.J. Reynolds Tobacco Co. v. FDA, which invalidated FDA mandated graphic cigarette warnings.
Commercial speech doctrine was established in order to protect what Central Hudson called the “informational function” of commercial communications. The object of the doctrine was explicitly to protect the capacity of an audience to receive information rather than to safeguard the autonomy of a commercial speaker. The informational function implies a constitutional asymmetry between restrictions on commercial speech and compelled disclosures of commercial speech. The former impair the distribution of information; the latter enhance it. The tendency of many judges to adjudicate compelled commercial speech cases in light of decisions like West Virginia State Board of Education v. Barnette, which defend the autonomy of speakers within public discourse, is deeply misplaced. The article defends the proposition that First Amendment jurisprudence is plural, not unitary.
The Court embraced the plurality of First Amendment jurisprudence in Zauderer v. Office of Disciplinary Counsel, which holds that factual commercial speech can be compelled if it is “reasonably related” to an appropriate government purpose. First Amendment rights of commercial speakers in such circumstances are deemed to be “minimal.” The article discusses the relationship between the Zauderer test for compelled commercial speech and the Central Hudson test for restrictions on commercial speech, which is the object of much unfocused discussion in AMI.
Compelled commercial speech, like government speech, is an effort to affect the content of public opinion. Both compelled commercial speech and government speech raise questions about how a democratic government may constitutionally influence the shape of a public opinion to which it is in theory responsive. The article seeks to explain certain doctrinal restrictions on compelled commercial speech in light of constitutional concerns that arise when government seeks to affect the content of public opinion. It offers an analysis of why government efforts to inform public opinion through the required disclosure of facts is constitutionally distinct from government efforts to shape public opinion through the required disclosure of opinions. The article explores how compelled disclosures of opinion may constitutionally be distinguished from compelled disclosures of fact, a distinction that lies at the heart of decisions like NAM and R.J. Reynolds. The article also discusses the kinds of state interests that may justify compelled commercial speech, which is the subject of great dispute in AMI.
Friday, November 14, 2014
The Obama Administration's contraceptive mandate implicates issues of complicity that run through many aspects of civil society, whether it is the police officer told to protect an abortion clinic or the tax exemption granted even to misogynist, homophobic, anti-semitic and racist religious groups such as the Westboro Baptist Church. How should the contraceptive mandate be framed, as a public health measure or as a turf dispute over the public space?
Thursday, November 13, 2014
The title of this post comes from this paper by Professor Amit K. Chhabra, the abstract of which states:
The April 2013 Boston Marathon attacks, together with Edward Snowden’s June 2013 release of documents revealing expansive U.S. governmental spying practices targeting U.S. citizens, remind us that terror and governmental surveillance lurk in our midst and at times appear inseparable. Small-scale strikes at the American heartland have occurred since the founding of our republic. In response, the Constitution sets forth a treason doctrine to address domestic threats where the underlying acts are construed as "levy[ing] [w]ar" against the United States or in "adhering to [its] enemies, giving them [a]id and [c]omfort." For better or worse, a fear of abuse allowed the doctrine to atrophy though repeated attempts have aimed to better equip the government in its ability to uncover subversion. In the wake of protests against the war in Vietnam and perceived leftist influence, for example, President Richard Nixon patronized domestic monitoring and surveillance. Congress formally authorized these activities in the Foreign Intelligence Surveillance Act of 1978 ("FISA") legislation. After the September 11, 2001 World Trade Center and Pentagon attacks ("9/11"), it further strengthened the Government’s surveillance tools by enacting the USA PATRIOT Act and issuing a joint resolution – the Authorization of Use of Military Force – ostensibly to legitimize the President’s planned use of military force at home and abroad in the so-called War on Terror.
Still, legislation in this regard has traditionally included a carve-out for the free exercise of civil liberties. In this vein – and in light of the PATRIOT Act and AUMF targeting threats to U.S. interests "both domestically and abroad" – we might expect our surveillance apparatus to be uniform and not dependent upon suspect categories of discrimination as alienage status. By example, Americans after the Boston Marathon attack did not first ask whether the perpetrators were citizens or aliens. Rather, they instinctively asked whether global terror was the real culprit behind the two known Chechen perpetrators, the Tsarnaev brothers. Only after it was determined that international terror organizations likely did not play a role, did attention then center on whether they were citizens, permanent residents, or alien non-residents. The outcome would determine whether the Federal Bureau of Investigation ("FBI") or National Security Agency ("NSA") could have more aggressively monitored – and potentially stopped them – even in the absence of a clear nexus with international terrorism. This is because FISA, as amended by the PATRIOT Act, prescribes an exemption to governmental investigations of citizens and permanent residents acting pursuant to the First Amendment’s protections for free expression; there is no comparable exclusion for aliens exercising such rights. Specifically, the FBI may apply for an investigation directed toward "obtain[ing] foreign intelligence information not concerning a U.S. person or protect[ing] against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the First Amendment to the Constitution (sic.)." In relying on a limited definition of "U.S. person" including only a citizen or lawful permanent resident, FISA thus draws an alienage-based distinction with regard to the Foreign Intelligence Surveillance Court ("FISC")’s substantive ability to authorize monitoring. On the one hand, U.S. citizens and permanent residents ("U.S. Persons") are protected where their actions fall exclusively under the First Amendment’s guarantees of freedom of speech and press; to lose protection, their conduct must evidence completed, current or imminent criminality. Non-citizen, non-permanent residents ("Aliens") ostensibly do not receive these protections.
The plight of the Alien in the context of governmental surveillance is thus particularly fragile and leads to several lines of inquiry: are Aliens and U.S. Persons equally entitled to constitutional safeguards, in particular to due process and protections against unreasonable searches and seizures? Are First Amendment rights properly limited to U.S. Persons, or are they essential to an Alien’s liberty? Should Aliens expect such rights where American citizens themselves are confronted with imminent acts of terror in their own homeland? Does this answer change if the danger is not perceived as imminent? In the absence of a FISA amendment that eliminates separate monitoring standards for U.S. Persons and Aliens, cannot a Public Monitoring Defender at least minimize the potential for prosecutorial and judicial error by attending FISC proceedings on behalf of suspected targets? The Article concludes that such procedural safeguards are more effective at retaining America’s reputation as a beacon of liberty. Additionally, we should learn from our history of depriving civil liberties to blacks and Japanese-Americans on vague national security grounds; we should thus apply monitoring orders aggressively but equally to Aliens without succumbing to the easy temptation of depriving a vulnerable group of basic civil protections.
Tuesday, November 11, 2014
"Tinkering with Alito’s Code to Morse’s Limits: Why Alito’s Concurrence is Crucial to Preserving Tinker and Students’ Right to Free Speech"
The title of this post comes from this paper arguing that student free speech rights under the First Amendment have been receiving less protection than the standards articulated in Tinker v. Des Moines Independent School District. Here's the abstract:
The 2007 Supreme Court decision in Morse v. Frederick threatens the protection of student free speech that was articulated by the Court almost forty years earlier in Tinker v. Des Moines Independent Community School District, the decision in which the Court famously expressed that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
In Tinker, the Court applied the substantial disruption standard, essentially that school officials cannot restrict student speech because school officials disagree with it, but rather, that school officials can restrict content-based student speech only when it could be reasonably forecast that the speech would cause a substantial disruption to the school.
In Morse, the Court upheld the actions of a school principal in demanding students at a school event to take down a banner that read “BONG HiTS 4 JESUS,” and in suspending a student who refused. The Court ruled in favor of the school principal but not by applying Tinker’s substantial disruption standard. Rather, the Court found that school officials may restrict student speech that can reasonably be understood as promoting illegal drug use because protecting students from the dangers of illegal drug use is an important interest.
Although the opinion of the Court applies directly only to student speech encouraging illegal drug use, some lower courts are using the reasoning in Morse to analogize student speech encouraging illegal drug use to other areas of speech, thereby restricting speech that school officials believe students need to be protected from hearing. Thus, speech is restricted even when it would not be reasonable to think that it would cause a substantial disruption. The result is that speech is restricted essentially because school officials disagree with it, the very thing that the Court in Tinker tried to protect students from.
Justice Alito, joined by Justice Kennedy, wrote a concurring opinion in Morse precisely because of the concern that Morse would be read more broadly than applying only to student speech encouraging illegal drug use. This Note sets forth why courts should read Alito’s concurrence as controlling the limits to Morse, as well as other reasons why Morse should be read narrowly.
Friday, November 7, 2014
The Atlantic's Matt Ford explains that the 6th Cir.'s recent decision upholding same-sex marraige bans in Kentucky, Michigan, Ohio, and Tennessee will give SCOTUS another opportunity to consider the constitutionality of such bans. Because this decision created a split between circuits, the likelihood that we will hear arguments on the issue before the nation's highest court is considerable.
Federal judge says enough problems throughout criminal justice system to warrant reconsideration of death penalty
The title of this post comes from this recent paper by Professor Adam Lamparello, the abstract of which states:
Welcome: We’re Glad Georgia is On Your Mind.
Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year old child in the electric chair.
Georgia’s standard for determining intellectual disability -- beyond a reasonable doubt -- is itself intellectually disabled. In 1986, Georgia became the first state to ban executions of the intellectually disabled. It should also be the next state to eliminate a standard that, as a practical matter, ensures execution of the intellectually disabled.
Ultimately, the Georgia legislature must explain why it chooses to execute defendants like Warren Hill, and the Georgia courts must explain why they allow it to happen. Intellectually disabled defendants do not appreciate or understand why they are being executed. Their crimes may be unspeakable, but the punishment is never proportional. Until Georgia provides an answer that extends beyond platitudes and biblically inspired notions of justice, the fact will remain that executing Warren Hill is as heinous as the crimes he committed. The only acceptable answer should come from the Supreme Court, holding that Georgia’s beyond a reasonable doubt standard violates the Eighth Amendment.
Monday, November 3, 2014
The title of this post comes from this recent paper from Paul J. Jenkins arguing that criminal liability can be imposed for revenge porn so as not to violate the First Amendment.
For most of our history, only celebrities — presidents, movie stars, professional athletes, and the like — were at risk of having their everyday exploits and activities photographed and shown to the world. But that day is gone. Today, we all face the risk of being made into a celebrity due to the ubiquity of camera-equipped cell phones and the ease of uploading photographs or videos onto the Internet. But a particularly troubling aspect of this phenomenon goes by the name of "revenge porn" — that is, the Internet posting of photographs of naked former wives and girlfriends, sometimes in intimate positions or activities. Revenge porn is an example of malicious conduct that injures the welfare of someone who mistakenly trusted an intimate partner. Tort law traditionally has allowed parties to recover damages for such violations of privacy, and criminal law also can prohibit such conduct, but there are several First Amendment defenses that the responsible parties can assert to fend off liability. This article argues that allowing a victim of revenge porn to recover damages for publication that breaches an implicit promise of confidentiality is faithful to tort and criminal law principles and will not punish or chill the legitimate expression of free speech.
Sunday, November 2, 2014
DOJ and the Albuquerque PD agreed Friday to a consent degree requiring an independent monitor of APD and sweeping reforms to its use-of-force policies. The LATimes's Cindy Carcamo reports:
The main points call for disbanding a problematic tactical investigative unit that became something of an unofficial SWAT team, revision of when and how force should be used and implementation of a civilian police oversight agency to conduct independent investigations of all citizen complaints concerning the police force.
The settlement calls for the Police Department to consider specialized responses that would minimize the need for use of force when officers are dealing with people in mental health crisis. The agreement also requires the department to establish a mental health response advisory committee, provide crisis intervention training to all officers and expand the number of detectives assigned to the crisis intervention unit.
The agreed-to terms were expected. In April, a DOJ report chided APD for "structural and systemic deficiencies -- including insufficient oversight, inadequate training, and ineffective policies -- contribut[ing] to the [pattern and practice of] use of unnecessary force." Shortly before the report's release, a helmet-cam recording surfaced that shows APD officers shooting a homeless man in the back. Protests of course ensued, as did clashes between citizens and APD officers.
In 2014, the constitutional law topic for the International Congress of Comparative Law was “Social and Economic Rights as Fundamental Rights.” This national report on the American system, which responds to the extensive questionnaire circulated to the national reporters, analyzes the protections afforded for the right to social security at the federal level and the right to education at the state level. We demonstrate that unlike a number of other countries, the right to social security is not afforded significant protection: the text of the U.S. Constitution does not expressly contain such a right; the Supreme Court has only recognized a right to non-discrimination against the indigent with respect to certain “fundamental rights” and a right to due process before the termination of government benefits; and constitutional and sub-constitutional norms of legitimate expectations, vested rights, and non-retroactivity do not prevent the state from immediately ending benefits under government programs. By contrast, at the state level, the right to education is recognized in all state constitutions and has given rise to an extensive jurisprudence on issues such as unequal funding of school districts, education for juveniles in detention and the homeless, and education for the children of undocumented workers.
Friday, October 31, 2014
“It is not uncommon for me to pull up at a light and have someone yell something offensive or put up their hands...”
As information regarding the federal government's surveillance program continues to surface (some of which is pretty seedy), there's growing demand for platforms where people can post messages and interact with others anonymously. However, perhaps puzzlingly, what actually constitutes anonymity isn't so easily defined. As WSJ Law Blog's Elizabeth Dwoskin recently wrote:
[T]here has never been more confusion about what the term means. Does it mean a company never knows the identity of its users, or is it enough for users to be anonymous to one another? Does it mean a company erases posts immediately after they appear or stores them internally?
Notwithstanding these questions, what's now clear is that some programs that claim complete secrecy aren't actually forthcoming about the software's limitations -- perhaps even intentionally misleading consumers as to the capability of achieving anonymity. For example, The Federal Trade Commission (FTC) recently settled with Snapchat after charging the company with "deciev[ing] consumers with promises about the disappearing nature of messages sent through the service."
Whisper is a similar service that purportedly doesn't collect data from users -- it even has labeled itself "the safest place on the Internet." But, as Dwoskin explains, The Guardian recently claimed it has been collecting information "on specific users whose posts it deemed potentially newsworthy" -- even on those "who had opted out of the app's location feature." Whisper, of course, disputes these allegations:
The company said its location data was very imprecise, and that it discarded the information after a short time. It pointed out that many users deliberately tag their locations, and that its tracking practices are transparent...
Privacy experts [however] point out that vague information can be used to identify individuals by combining it with other information and zeroing in on patterns of behavior.
Whisper doesn't appear to have caught the FTC's attention quite yet, but making amends with those who demand anonymity -- or, at least, honesty -- will be a long row to hoe. As Professor Deirdre Mulligan told Dwoskin, “They are actively exploiting their access to transactional data to engage in surveillance as a new line of business." But there are ways to limit the disclosure of identifying information -- for instance, writes Dwoskin, by "includ[ing] separating transaction and identity data, truncating numbers such as device IDs and IP addresses that serve as unique identifiers, and blurring location data, as Whisper claims to do."
Whisper can perhaps be forgiven for failing to provide complete anonymity (even though it suggested it had the capability to do just that) -- it would be foolish for one ever to feel free to act with impunity. No program can completely protect users from data inquires by law enforcement, and "[s]oftware bugs can compromise user privacy" as well. Some basic data collection is just completely unavoidable. But, as Dwoskin concludes: "The question is whether companies are making a good-faith effort to protect privacy."
Judge decides law enforcement may compel defendant to unlock cell phone with fingerprint, but not with passcode
As reported in this local article, the Virginia circuit court judge said that the Fifth Amendment's protection against self-incrimination extends to passcodes as communicative evidence. A fingerprint, on the other hand, is like a writing sample or DNA, neither of which receive Fifth Amendment protection.
States executing fewer inmates each year as result of SCOTUS rulings, limited access to lethal injections drugs
The Atlantic's Matt Ford observes that the number of executions in the U.S. each year has steadily decreased over the last decade and half or so. Even Texas -- with its perceived affinity for executions -- is killing convicts less and less. While it executed 40 people in 2000, this year it'll execute only 10. Ford explains:
Since executions peaked nationally in the late 1990s, multiple Supreme Court rulings have limited the death penalty's scope and application. The justices barred executions of the mentally disabled in Atkins v. Virginia in 2002, for example, and eliminated the death penalty for individual crimes other than first-degree murder in their 2008 decision in Kennedy v. Louisiana... This resulted in fewer cases with which the death penalty could be applied, while also imposing new legal hurdles before it could be carried out.
But for Texas, the greatest shift came in 2005. First, the Supreme Court ruled in Roper v. Simmons that executing defendants who were minors when they committed the crime violated the Eighth Amendment...At the same time, legislators gave Texas juries the option to sentence murder defendants to life without parole...
Nowadays states also have less access to lethal injection drugs. Foreign drug manufactures withdrew their drugs from the market, and there are few local suppliers to replace them.
A few related posts:
- SCOTUS stays Missouri execution pending resolution of ineffective counsel allegations
- Oklahoma's botched execution amounted to "medical experimentation" and torture, says inmate's family
- NYTimes editorial board continues its call to end death penalty
- Another botched execution adds to death penalty debate
- Fifth Circuit stays execution of Texas inmate alleged to be 'intellectually disabled'
[h/t Doug Berman]
...for the 2012 shooting of Trayvon Martin, reports The Orlando Sentinel's Rene Stutzman. Although it's not yet clear how many witnesses will testify, DOJ has issued a subpoena for Zimmerman's former neighbor, Frank Taaffe, who supported Zimmerman when he faced second-degree murder charges for the killing. Now, however, Taaffe says he believes Zimmerman was motivated by race.
Not long ago, WaPo quoted "three law enforcement officials" as saying there's likely not enough evidence to charge Zimmerman.
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.
...writes Ted Selker of one Election Day near-disaster at a polling place in Nevada. To demonstrate how "[s]mall design decisions have major consequence," Selker highlights how poll workers there hoped to power 20 voting machines through a single outlet. It didn't work, of course, and when the batteries went kaput shortly thereafter they opted for another outlet that also powered a microwave oven.
After witnessing comparable Election Day fiascoes elsewhere, Selker concluded that these problems are most often ones of design -- polling places are "often hard to navigate and not well thought out." As he explains in this Wired.com post, Selker thought that if polling places accommodated voters the way, say, a Starbucks catered to coffee drinkers then voters' experiences would improve. Voter turnout would increase thereby, a belief later confirmed by physical design methods expert Tom Burchard: "The challenge is to get people feeling like they took part in democracy, in the fulfillment of their citizenship rather than feeling like they just finished the SAT, hoping they filled in all the ovals right under pressure.” But Selker notes:
There’s a whole different organizational structure for voting [than for Starbucks], because...[of t]he autonomy of local governments in polling decisions... So it’s like trying to improve design decisions over tens of thousands of independent, small coffee shops across the country.
Nevertheless, Selker and his crew set out to create -- with the help of an Election Assistance Commission grant -- a software program that could help election officials design more efficient polling places. The result: an app called the Polling Place Support Tool that "works as a visual planner for polling places before election day and helps polling-place staff track glitches and bottlenecks during the big event." It also provides poll workers a forum for discussing improvements to polling place structure and design. As Selker explains:
The app is for voting staff and volunteers. It lets them view paths and bottlenecks as they position registration tables, voting booths, (and even electrical outlets) on a floor plan of their polling place. Then on election day, it helps keep a log by storing photos of potential problems, allowing staffers to post and annotate them with text, and pin them to the floor plan.
The goal is to help election officials learn how to design and administer polling places with the sophistication of top designers of high-throughput stores. Without losing the privacy, security, and integrity of the system, we need to think like the customer and anticipate any potential snafus in the physical space, staff training, digital tools, and the transitions between them.
The program is set to be tested by election officials in Maryland and L.A. county later this year.
"[W]hen you kick someone out of a business or a country or whatever just because that person is exercising their ability to think,...that’s an affront to civil rights.”
...claimed MIT Card Counting Team member/professional poker player, Andrew Bloch, in his defense of card counting. As WaPo's Annys Shin observes in this intriguing post, counting cards is legal but nonetheless will get one booted from a casino. She writes:
Stephen Martino, director of the Maryland State Lottery and Gaming Control Agency, told the Sun that card counting that is done “using intellectual capacity to keep track of cards is not prohibited by state law or regulation.” What would make it illegal is if the gambler has mechanical or electronic help. (Yes, there is an app for that.)
Many professional and amateur gamblers defend card counting, and it has been elevated to a righteous cause for some. Andrew Bloch, World Series of Poker veteran and former MIT Card Counting Team member, said at a conference last year that “our ability to think is what really makes us human, and it separates us from other animals, and when you kick someone out of a business or a country or whatever just because that person is exercising their ability to think, to me that’s an affront to civil rights.”
Not all his fellow gamblers feel that way. Often the folks who catch card counters for casinos are former card counters. Casinos supplement their know-how with hi-tech surveillance systems. Maryland Live alone, as my colleague Josh du Lac reported, has “license plate recognition systems, tracking software to follow certain people through the casino and 360-degree, high-definition cameras that record with so much clarity that surveillance operators can zoom in after the fact.” Card counters, righteous or not, don’t stand much of a chance. Just ask Ben Affleck, who was asked to leave the Hard Rock Hotel & Casino in Las Vegas for card counting. Affleck told Details magazine later, “I took some time to learn the game and became a decent blackjack player. And once I became decent, the casinos asked me not to play blackjack. I mean, the fact that being good at the game is against the rules at the casinos should tell you something about casinos.”
Thursday, October 30, 2014
...writes The LATimes's Abby Sewell. County DA Jackie Lacey commissioned GAINS Center for Behavioral Health and Justice Transformation to come up with a proposal for improving mental health care in the county's jails. While its work will continue into 2015, the center issued a report yesterday finding a need for more resources for training law enforcement personnel in best practices for dealing with people experiencing mental health crises. Reportedly, county law enforcement currently have few good options when finding help for them.
"It's often more time-efficient for law enforcement to book an individual into jail on a minor charge ... rather than spend many hours waiting in a psychiatric emergency department for the individual to be seen," the report said.
The report also recommended expanding an existing county program that places social workers in the courts to identify defendants who might be candidates for diversion, putting a pre-trial release program in place for such defendants, and placing more social workers in the jails.
The county also needs to improve data sharing between mental health professions and law enforcement, which of course raises a variety of difficult legal issues.
Improvement to mental health care is urgently needed as the state continues transferring nonviolent felons to local jails under a 2011 federal court order to reduce overcrowding in the state's prisons. Currently:
The percentage of inmates in county jails who are mentally ill has increased by 89% since 2011 and now stands at 17% of the male population and 24% of the female population...
But resources could become available soon. County commissioners recently promised $20 million for alternatives to prison for mentally ill offenders, and the county plans to establish crisis centers to help law enforcement handle encounters with the mentally ill. Relatedly, some of the $50 to $100 million in savings from the proposed reclassification of several non-violent felonies as misdemeanors under California Proposition 47 would be dedicated to mental health care and drug treatment.
WaPo editorial board calls on Maryland legislature to limit use of solitary confinement in state's prisons
WaPo's editorial board notes that 8% of state's prison population is held in solitary confinement, and that inmates are typically sent there for failing to follow rules. The board questions whether current policy is required to reduce the risk of violence, as some supporters say, and it doubts whether inmates commonly have cellmates. Instead, it recalls one mentally ill inmate who allegedly spent four years in solitary, and argues:
Weeks, months and years of solitary confinement can destroy people’s minds. Stories of healthy inmates leaving solitary with a mental illness are horrible but unsurprising. So are accounts of inmates who enter it with a mental illness and come out worse — if they don’t commit suicide, a particular problem in isolation programs.
Isolation can seem like an easy solution for dealing with a violent or antisocial inmate, but it can be expensive and counterproductive, deepening the psychosis that led to bad behavior. The internal report found that isolated prisoners in Maryland face “heightened risk for worsening physical and mental health outcomes.”
Sadly, the state's general assembly hasn't been any help so far:
[W]e published a letter from Susan Kerin of Interfaith Action for Human Rights noting that Maryland lawmakers recently scuttled a bill calling for an independent analysis of the state’s use of prisoner segregation. The bill merely asked for a report on living conditions and the frequency with which state facilities isolate prisoners. It sought recommendations on how to reduce the number of prisoners in isolation, how to improve conditions and how to manage juveniles and the mentally ill. All of these goals should be priorities for any state that claims to run a humane prison system.
AG Eric Holder said the Ferguson PD required "wholesale change" in order to fix the structural deficit revealed by the unrest following the killing of Michael Brown by Officer Darren Wilson, reports The NYTimes's Mitch Smith and Monica Davey. Holder's comments come as DOJ investigates the white officer's shooting of the black teenager as well as the PD's response to subsequent turmoil. And a grand jury currently is considering whether to indict Officer Wilson for the killing -- local law enforcement have been preparing for possible tumult when the decision is announced.
Some apparently suggested that Ferguson PD chief Thomas Jackson should be ousted from his post. But Jackson saved the city council the trouble by announcing his intention to resign. Another option is giving the St. Louis PD jurisdiction over the town.
...reports this Atlantic Journal-Constitution article. Inmates there allegedly have taken to eating toothpaste and toilet paper.
The local sheriff "categorically reject[s]" any misconduct.
"Removing Malice from Federal 'Malicious Prosecution': What Cognitive Science Can Teach Lawyers About Reform"
42 U.S.C. § 1983 (“§ 1983”) empowers individuals suffering civil rights abuses at the hands of state actors to seek recourse in federal court. The statute was enacted in response to southern states’ failure to control the Ku Klux Klan, and it has increasingly become a vehicle for federal reform of unconstitutional state and local government practices. Nationwide, state criminal justice systems cry out for such ex-post reform, as they continue to generate wrongful convictions at unacceptable rates with no notable preventative measures in place.
“Malicious prosecution” claims brought under § 1983 are a common mechanism for redressing state-driven wrongful convictions, but this article asserts that they are not meeting their full reform potential. A plurality of federal courts erroneously requires plaintiffs to prove malice in support of such claims. While, superficially, the requirement comports with the “malicious” prosecution nomenclature, the nomenclature itself is misleading. Federal malicious prosecution claims are based on the Fourth Amendment, the purpose of which is to hold state defendants accountable for objectively unreasonable acts – not intentional, or malicious, ones.
In abandoning the Fourth Amendment’s purpose, the offending courts have also ignored the real causes of wrongful convictions and, therefore, have failed to further true reform. Research shows that the vast majority of wrongful convictions are driven – not by malice – but by cognitive biases that cause inaccurate perceptions and objectively unreasonable decision-making. Although unintentional and often unconscious, cognitive biases may be ameliorated through education, exposure to divergent views, and reform of systemic factors that trigger and exacerbate bias. Reframing § 1983 relief for wrongful conviction as a question of objective unreasonableness rather than malice would tie liability more closely to: (1) non-malicious cognitive errors that frequently taint state actors’ decisions during criminal proceedings, and (2) states’ failure to implement cognitive error-neutralizing practices. This change to the legal standard, accompanied by close consideration of cognitive science, has the potential to enhance plaintiffs’ access to compensation and to require state reform of the true systemic causes of many wrongful convictions.
Wednesday, October 29, 2014
Police watchdog founder claims NYPD officers roughed him up, stripped searched him after he recorded encounter in which he asked for their badge numbers...
...reported The NY Daily News's Tina Moore earlier this week. Forty-four-year-old Jose LaSalle plans to sue NYC, the NYPD, and the officers involved for $500K for allegedly violating his civil rights.
The inmate is 35-year-old Mark Christesen. He was convicted for the 1998 murders of 36-year-old Susan Brouk and her two children near Vichy, a small central-Missouri town about two hours southeast of St. Louis. The AP reports:
The appeal to the Supreme Court raised several concerns about legal counsel Christeson has received over the years, including the failure of some of his attorneys to meet a 2005 deadline to file for an appeal hearing before a federal court. It is uncommon for someone to be executed without a federal court appeal hearing.
The high court denied a second appeal challenging the state's planned use of a made-to-order execution drug produced by an unidentified compounding pharmacy.
This Sacramento Bee op-ed argues that the $50 to $100 million saved under California's Proposition 47 by recategorizing several low-level felonies as misdemeanors will be reinvested in mental health care and drug treatment, which will reduce the risk of recidivism, thereby lessening the burden on the state's already overflowing prisons and jails.
- "Prop. 47: A simple step toward reducing mass incarceration"
- SCOTUS denies review of decision requiring California to monitor compliance with ADA by local jails
"A Lawyer Looks at Civil Disobedience: How Lewis F. Powell, Jr. Reframed the Civil Rights Revolution"
This essay reconstructs Lewis F. Powell, Jr.’s thoughts on the civil rights movement by focusing on a series of little-known speeches that he delivered in the 1960s lamenting the practice of civil disobedience endorsed by Martin Luther King, Jr. Convinced that the law had done all it could for blacks, Powell took issue with King’s Letter from Birmingham Jail, impugning its invocation of civil disobedience and rejecting its calls for compensatory justice to make up for slavery and Jim Crow. Dismissive of reparations, Powell developed a separate basis for supporting diversity that hinged on distinguishing American pluralism from Soviet totalitarianism. Powell’s reasons for defending diversity are worth recovering today, not least because courts continue to misinterpret his landmark opinion in Regents v. Bakke, confusing the use of diversity in higher education with the compensatory goals of affirmative action, a project that Powell rejected.
Tuesday, October 28, 2014
Yup, as ACLU's PrivacySos notes, this recent Electronic Frontier Foundation analysis confirms that so-called "sneak and peeks" -- justified as a national security necessity -- more often than not are used to fight to the ridiculous war on drugs. Specifically, these warrants allow police to perform a search without first notifying the suspect.
This post at the Harvard Civil Rights-Civil Liberties Law Review blog argues that punishing victims of sex-trafficking for some crimes committed while they're being trafficked -- which they may have been forced to commit -- institutionalizes and prolongs their trauma. Because these crimes remain on their records, many sex-trafficking victims will have trouble finding employment, which in turn increases the likelihood that they'll be re-victimized.
Reason.com's Robby Soave notes this incredibly disturbing story out of Washington state, in which the local sheriff's department decided to deploy 24 officers and an armored vehicle to collect an $80K judgement from an elderly junkyard owner for violating local zoning ordinances. As Soave notes, one incredulous captain defended the decision: "People may not always understand why, but an armored vehicle is almost a necessity now."
I wonder if these lunatics have a support group.