Saturday, October 17, 2009
Be positive! How many times have you heard that recently? How many times have you said that? Or if you haven't heard it or said it explicitly, how many times has that been the implicit message?
In formal meetings and informal ones, in classrooms and offices, in conversations with colleagues, students, and clients, inside academia and outside it, the significance of being - - - or at least acting - - - happy, positive, and "upbeat" has become de rigueur. And what could be wrong with that?
A few answers are provided by Barbara Ehrenreich's new book, Bright-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America. It is a journalist's book aimed at a popular audience, yet this seems right because it is criticizing a movement so ubiquitous that it is rarely named a "movement." But a movement it is, she argues, tracing its genesis to the "New Thought" movement in post-Calvinist America, around the time of the Civil War. In the 1860s, Mary Baker Eddy, the founder of Christian Science, met Phineas Parker Quimby, a metaphysician, watchmaker, journal-keeper, and inventor in Portland, Maine, and so "the cultural phenomenon we now recognize as positive thinking" was launched. (79). From here, it is only a short distance to William James' pragmatism, Napolean Hill's 1930's classic Think and Grow Rich, and of course Norman Vincent Peale's 1952 mainstay, The Power of Positive Thinking. Ehrenreich partially explains the contemporary popularity of "positive thinking" in part by changes in work and life: much more depended on being "likeable to employers, clients, coworkers, and potential customers," (96) and not only that, one's very life and health might depend upon it.
Ehrenreich looks at several specific contemporary manifestations: cancer care and advice, the partnership between corporate and motivational industries, the mega-churches ("God wants you to be rich!"), and psychologists purveying "scientific" studies of happiness. Most predictably perhaps, she considers the present economic turmoil. Ehrenreich doesn't think the culprit was simply greed, but an all pervasive sentiment that confused positive thinking with reality. Thus, not only were people, whether they be borrowers or lenders, encouraged to think that things could only get better and that they individually deserved the new purse/house/car that they had visualized, but that anyone who dared proffer another idea should be dismissed as "negative" or even "toxic." Being "negative" could mean not only that one was not in demand as a conversationalist or dinner companion, but that one was terminated from her or his job.
Academia earns only a brief mention (141); she concludes that universities have been "corporatized" with their MBA Administrators, bland architecture, aggressive marketing techniques, and hiring of "motivational speakers. Not to mention, although she does, the "jargon" that one hears in universities and "everywhere": "incentivizing," "value added," and "going forward." (She omits my favorite, "reaching out," often referring to speaking to a colleague next door or a student one would see in class, as if that person is very far away).
Law does not figure in Ehrenreich's book (with the exception of the "law of attraction": visualize what you want and it will be attracted to you). Reading it, however, did bring to mind both Plessy v. Ferguson, 163 US 537 (1896), and Brown v. Board of Education, 347 US 483 (1954). In Plessy, Justice Henry Billings Brown famously wrote:
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
I've always considered this a premature postmodernist stance, but it also fits into the "New Thought" currents Ehrenreich discusses. If Homer Plessy had only been more of a positive thinker about that Louisiana statute mandating separation of the races!
Fifty-eight years later, Justice Earl Warren in Brown v. Board of Education concludes that racial segregation has a "detrimental effect" :
Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.
The modern authority Brown cites in the footnote includes
the famous Clark "doll studies." But in the power of positive thinking world that Ehrenreich
describes, low self-esteem - - - what would be named "negativity" now - - - is in
the control of the individual and is not attributable to legal or social
conditions. Instead of suing to end segregated schools, should the plaintiffs (and attorneys) in Brown have looked "within" and tried to be more "positive" about the "situation"?
Ehrenreich's all-important point - - - which I think might be too easily lost in the book - - - is that what's wrong with the insistence on a positive world view is that it reinforces the status quo. If, as the positive psychologist studies contend, "circumstances" only play a small role in individual happiness, then, as she writes "policy is a marginal exercise." (171).
Why advocate for better jobs and schools, safer neighborhoods, universal health insurance, or any other liberal desideratum if these measures will do little to make people happy? Social reformers, political activists, and change-oriented individuals can all take a much-needed rest. . . . the baton has been passed to the practitioners of "optimism training" . . . .
So, the next time you hear - - - or say - - - something about someone's positive or negative attitude, think of Plessy v. Ferguson and Brown v. Board of Education. And take a look at Ehrenreich's new book.
Friday, October 16, 2009
Today, the Second Circuit published a case considering the Dormant Commerce Clause, both Privileges and Immunities clauses, and the prudential standing doctrine. In short, the facts are that New York charges a toll of 75 cents to cross the Grand Island Bridge. However, residents of the island pay as little as nine cents. The plaintiffs - one a New York resident and the other an American citizen living in Ontario, Canada - did not live on the island but paid its higher toll when crossing the bridge en route to places such as New Jersey. The plaintiffs objected and filed suit raising the claims previously listed.
The Second Circuit ruled in favor of the plaintiffs on most of the relevant issues. First, the Court found that the plaintiffs had both constitutional and prudential standing to pursue the case. The New York Thruway Authority (NYTA) argued that despite their standing, the plaintiffs should fail because New York was a market participant. The court rejected this claim by noting that New York was not behaving as a private actor would in the market for several reasons, not the least of were: 1) the operation of highways and toll roads is a core governmental function and; 2) NYTA failed to assert that any private entities had entered into the market.
Because the NYTA was not a market participant, the court considered whether the regulation passed muster under the dormant commerce clause. The lower court had ruled that there was no constistutional violation because the plaintiffs failed to allege discrimination. The Second Circuit agreed with the lower court on that point but nevertheless found error due to the lower court's failure to then consider whether the regulation - even if non-discriminatory - nevertheless burdened interstate commerce. Using the Pike test, the Second Circuit held that the New York regulation did just that. Interestingly, the court declined the NYTA's argument that the burdens to the individual plaintiffs were small, focusing instead on the overall impact on interstate commerce. This is, of course, consistent with the Supreme Court's recent pronouncements on the clause in cases such as Camps Newfound.
In addition, the Second Circuit found the district erred in finding that the plaintiffs failed to state a right to travel claim under the Privileges and Immunities and Equal Protection clauses of the Fourteenth Amendment. While acknowledging that the impact on the plaintiffs was small as they normally crossed the bridge only for shopping or pleasure - as opposed to daily for work - they were treated differently from the island residents and the claim could proceed. However, the court affirmed the district court's decision to dismiss the Canadian-resident plaintiff's claim under the Article IV Privileges and Immunities clause. The court held that the Clause applies only to United States citizens living in this country and does not apply to those living abroad, even though they are U.S. citizens.
This case is interesting on so many levels. Besides the fact that it screams EXAM!, it is a fairly thorough exposition of these issues. Scholars, students, and others interested in these issues will find much to consider and debate. Moreover, the dormant commerce issue has been raised in the highway toll context in another state and in other contexts in the Sixth Circuit as well. With all this litigation brewing, it will be difficult for the Supreme Court to stay dormant. As always, we'll keep you posted on any developments.
Born October 16, 1898, William O. Douglas served on the United States Supreme Court from 1939 until 1975 as its longest - and arguably its most controversial - - - Justice.
A fairly balanced view of the Justice can be found in Bruce Allen Murphy's WILD BILL: The Legend and Life of William O. Douglas.
Douglas' own autobiographies, especially GO EAST YOUNG MAN, are also worth reading.
Thursday, October 15, 2009
The House of Representatives voted today to allow detainees at Guantanamo Bay to be tried in the United States.
The bill, H.R. 2892, the Department of Homeland Security appropriation bill, Section 552, requires the Department to conduct a threat assessment for each detainee proposed to be transferred to the United States for trial. It also requires the Department to place Guantanamo detainees on the "no fly" list and prohibits the Department from using funds under the bill to grant an "immigration benefit" to Guantanamo detainees, including a visa or admission to the U.S.
If approved by the Senate, the bill will give the Obama administration a congressional endorsement for bringing Guantanamo detainees to the United States for criminal trial in Article III courts or for military commissions within the United States. The bill thus facilitates the administration's attempts to close Guantanamo and deal with the remaining detainees.
But a good number of the remaining detainees still will give the administration a headache--particularly those who are considered dangerous, but who can't be tried (because evidence against them is weak or inadmissible). For these detainee, the administration has proposed a form of indefinite detention--see here, here, and Friday's NYT here. These detainees present by far the toughest policy and constitutional problems for the administration.
While the House's move today may help smooth the way for the administration to close Guantanamo, it seems nearly certain at this point that the administration will miss its January 22 deadline to close the camp.
Tuesday, October 13, 2009
The Supreme Court will hear arguments tomorrow in Alvarez v. Smith, a case involving competing due process tests when law enforcement seize property related to crimes.
At issue is the Illinois Drug Asset Forfeiture Procedure Act ("DAFPA"), which authorizes local law enforcement to seize vehicles, aircraft, vessels, and money involved in certain drug crimes. Under DAFPA, authorities can hold property worth more than $20,000 for up to 97 days after the seizure and before the state's attorney files judicial forfeiture proceedings. Authorities can hold property worth less than $20,000 for up to 187 before the state's attorney files forfeiture proceedings. (Claimants may reduce that time to 142 days under certain circumstances.)
Claimants sued the Cook County State's Attorney under 42 U.S.C. Sec. 1983, arguing that the DAFPA violated, on its face, the three-part procedural due process balancing test in United States v. James Daniel Good Real Property and Mathews v. Eldridge.
The state argued that the Seventh Circuit's ruling in Jones v. Takaki governed. That case relied upon United States v. $8,850 and Barker v. Wingo in ruling that criminal property seizures are governed by the test for speedy trial: "The Barker test requires consideration of the length of the delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant." Smith v. City of Chicago, at 4.
A three-judge panel of the Seventh Circuit (Bauer, Posner, and Evans) sided with the claimants and ruled that the DAFPA violated the Fourteenth Amendment Due Process Clause. The court aligned the case with Krimstock v. Kelly, a Second Circuit ruling by then-Judge Sotomayor that applied Mathews v. Eldridge, not $8,850:
[A] warrantless arrest by itself does not constitute an adequate, neutral "procedure" for testing the City's justification for continued and often lengthy detention of a vehicle which may be owned by the arrestee or by someone entirely unconnected with the conduct that gave rise to the arrest. Further, to say that the forfeiture proceeding, which often occurs more than a year after a vehicle's seizure, represents a meaningful opportunity to be heard at a meaningful time on the issue of continued impoundment is to stretch the sense of that venerable phrase to the breaking point. We also consider it a non sequitur to hold . . . that because postponing the commencement of a forfeiture action pending the underlying criminal proceeding may not offend due process, retention of the seized vehicle without a hearing throughout that same period, or longer, is constitutionally permissible. The issues of a speedy trial and a prompt retention hearing are not parallel in this context, particularly when less restrictive methods for protecting the City's interest in the alleged offending res are available.
Krimstock, at 18. The Seventh Circuit similarly distinguished $8,850: "$8,850 concerns the speed with which the civil forfeiture proceeding itself is begun--a different question from whether there should be some mechanism to promptly test the validity of the seizure." Smith, at 6.
Thus the issue before the Court tomorrow is which test governs: the Mathews v. Eldridge procedural due process test; or the Barker speedy trial test, applied in $8,850?
Here's a new list of web-sites related to constitutional law: 100 Sites Every Civil Liberties Advocate Should Have Bookmarked. (Thanks to Adrienne Carlson for forwarding.) Many of these will be familiar; others may be new to you. It's a good list; check it out.
Monday, October 12, 2009
Judicial elections seem to be the hot topic of the moment. The Blog of Legal Times reports that a panel at last weekend's meeting of the American Academy of Appellate Lawyers discussed the topic in depth. The speakers quoted in the Blog of Legal Times were in favor of judicial elections. The judges stated that judicial appointments are equally as political as judicial elections. Moreover, they asserted that judicial elections can bring "accountabl[ity]" and "diversity" to the bench.
These are interesting points, but they may not be an accurate or complete view of the issue. Where "accountability is concerned," as I recently posted, recent research shows that elected judges do in fact respond to the public will and vote accordingly. That seems to support the notion that the elections increase judicial accountability to the public. However, this is not a complete view of the issue as the question is whether we want judges to have that sort of accountability or whether we prefer methods that might provide increased judicial independence. The system of judicial appointments is certainly political, but the real issue is what happens once a judge is on the bench. With a lifetime appointment, beholden to no one, a judge might buck tradition and cast an unpopular vote. As Justice O'Connor is fond of saying, if judges were beholden to the public will, the Supreme Court would have reached the opposite conclusion in Brown v. Board of Education. Thus, the central question is, as ever, how much do judicial elections interfere with judicial independence. As more studies on this topic are performed, the answers will become clearer.
The speakers also suggested that judicial elections increase the diversity of the bench. This question might be more answerable than the previous question. Both a city-wide study in Chicago, Illinois and a state-wide study of Texas indicate that racial minorities have difficulty in judicial elections absent, perhaps, racial gerrymandering. Of course, there are other types of diversity that matter on the bench - life experience, class diversity, and the like. But the Texas study indicated that those most likely to prevail in judicial elections are "well funded, well connected lawyers with significant private law experience." This summary of likely candidates does not lead one to believe that diversity of either class or experience is key. If the two studies I found in only a brief period of research cast even a small doubt on the diversity rationale, I am certain the data found in in the course of a more thorough review of the issue could lead to further reconsideration of the idea.
There is likely no "best" way to select judges. However, as the conversation about judicial selection continues, we should listen carefully. Judges occupy a critical and unique role in our system of government. For that reason alone, this conversation needs to continue so that we can shed as much light on as many systems of judicial selection as possible. The more we learn, the more we can do to improve all of the selection systems.
California Governor Arnold Schwarzenegger early today signed AB 590, the California Assembly bill directing court fees and fines to services designed to promote and enhance access to the judiciary and to a pilot project to appoint legal counsel to low-income parties in "civil matters involving critical issues affecting basic human needs . . . ." I posted on this last month, after the Assembly passed the bill, here.
The bill includes findings that the civil right to counsel is supported by "[t]he doctrine of equal justice under law" and that "[e]qual access to justice without regard to income is a fundamental right in a democratic society."
For more on the civil right to counsel movement in California and around the country, check out the National Coalition for a Civil Right to Counsel web-site.
Sunday, October 11, 2009
The D.C. Circuit ruled on Friday that Judicial Watch has standing to sue the U.S. Department of Commerce for declaratory and injunctive relief for alleged violations of the Federal Advisory Committee Act ("FACA") by the North American Competitiveness Council ("NACC"). Judicial Watch at one time sought to participate in NACC meetings (the request was denied) and sought NACC records under FOIA. This suit, alleging that NACC is a federal "advisory committee," sought access to records under FACA and more generally to bring NACC into compliance with the FACA.
NACC was established by the U.S., Canadian, and Mexican governments to provide policy advice to the three governments. It consists of private sector business leaders, it has at least one working group comprised exclusively of U.S.-based delegates, and Commerce has met with NACC and this working group "periodically."
Judge Urbina (D.D.C.) last year ruled that Judicial Watch lacked standing and granted Commerce's motion to dismiss. Urbina wrote that Commerce didn't control NACC; or, in standing parlance: Judicial Watch's injuries weren't traceable to Commerce, and its requested relief wouldn't remedy its alleged injuries.
The D.C. Circuit reversed, holding that Commerce does, indeed, have some obligations to its advisory committees, like NACC, under FACA, and that there was sufficient connection between Commerce and NACC to meet standing requirements:
[If, as the plaintiff alleges, NACC is an "advisory committee" under FACA], Commerce is subject to an array of FACA obligations concerning the Council and its sub-groups that are entirely within its power to discharge. These include Commerce's duty under 5 U.S.C. App. Sec. 10(b) [that portion fo FACA that sets out advisory committee and agency obligations] to make available for public inspection transcripts or minutes of meetings of the Council or its U.S. sub-groups. Commerce attended some of these in the past, and could therefore itself generate minutes if the Council refused to cooperate or if extant minutes were incomplete. Looking to the future, the court could order that Commerce conduct any prospective encounters between itself and the Council--including those alleged to take place "two to three times per year"--in compliance with FACA's requirements.
Opinion at 3-4 (citations omitted).