Tuesday, December 31, 2013

UPDATE: SDNY amends related-case rule to increase transparency over case assignments

Earlier this week, I noted the South District of New York's recent change to the related-case rule. Judge Nancy Gertner offers this intriguing comment regarding the change as it relates to Judge Scheindlin's conduct in the aforementioned Floyd case:

If the new case related assignment rules reported in this blog increase the transparency of the process, it is all to the good. Likewise if Professor MacFarlane’s work contributed to that end, she likewise deserves credit. But there are larger issues involved: Prior to these rules and at the time Floyd was filed, any party could have objected to the assignment of the cases to Judge Scheindlin, moved for her recusal, and waited for her response. If she declined recusal and wrote a decision, her opinion would have been appealed to the Second Circuit.


What is so troubling about this case is that none of this was done. Disqualification law reflects a skepticism about parties who move for disqualification only after they lose on the merits; it appears like a post hoc contrivance. While these parties did not move to disqualify ever – at the trial level, or at the appellate level (after at least one of the second circuit judges at oral argument effectively invited them to do so), they are happy to be indignant now.


Professor MacFarlane’s article reflects that same indignation, which is why I was troubled to find out that she had only left the NY Law Department in April of 2013, and that the SSRN posting did not reflect that fact (although, to be sure, she had not worked on these cases.) Presumably, that will be corrected in the published piece. Significantly, her piece cites to Mayor Bloomberg’s one sided “report” on Judge Scheindlin’s so called anti police bias, which counted only the cases in which she wrote an opinion suppressing evidence. It did not consider all of the cases in which motions to suppress were denied, with only a margin order (“denied.”) It attacks the judge personally and directly, claiming she insinuated herself into the case as a “player with a stake in outcome,” rather than suggesting, as an academic might, that the rules surely offer the potential for manipulation. It fails to give adequate consideration to the reason for the rule, as Judge Kopf wrote on his blog, namely to avoid duplication, the waste of judicial resources. And since there was no briefing, no fair process, Professor MacFarlane’s unanswered article – no, attack -- became the sole basis for the Second Circuit’s extraordinary decision to sua sponte remove the judge from the case.

The original post is attached below.

Continue reading

December 31, 2013 in Stop-and-frisk | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 30, 2013

The Week explores how the NSA gets access to your iPhone; Guardian's Trevor Timm says President Obama and others are not being truthful when they claim that the NSA's surveillance program has not been abused; ACLU files a lawsuit to compel the government to release details of NSA's surveillance program; and, Professor Robson explains why the famous Fourth Amendment 'pen register' case--Smith v. Maryland--is relevant today.

Police officer who complained that co-worker was 'out of control' loses whistleblower claim; Iowa city to pay damages after officer tases woman with mental disability; and, prisoner files civil rights lawsuit after security video reveals violent attack by prison guards.

Judge orders hospital to keep brain dead girl on life support.

California law requiring registration of 'long guns' goes into effect tomorrow.

Same-sex couple to get married on a float during Rose Bowl Parade.


December 31, 2013 | Permalink | Comments (0)

Monday, December 30, 2013

Freedom of Dress: State and Private Regulation of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, and Piercing

The title of this post comes from this paper from Professor Gowri Ramachandran arguing for a "freedom of dress as a fundamental right," which would require re-conceptualizing such a right on its own terms--"rather than treating dress merely as an adjunct to speech." Although published several years ago, it remains an intriguing read. Here's the abstract:

This article proposes a legal right to free dress, encompassing clothing, hair, jewelry, makeup, tattoo, and piercing choices. Neither speech rights nor equal protection provide an accurate account of the importance of self-presentation; instead a new theory of freedom of dress is needed, drawing on its unique location at the blurry border of the personal (as an exercise of control over the physical self) and the political and cultural (as the performance of social identity). Four of the most important applications of this theory are found in public schools, private workplaces, prisons, and direct state regulation. These settings require different balances of individual appearance choices against other interests. 

In the workplace, employers should be required to reasonably accommodate employees' dress choices. Even in the absence of a distinct statutory right, conceiving of freedom of dress as a fundamental right would make viable disparate impact and "sex-plus" claims affecting dress under Title VII. On the street, the paucity of important countervailing state interests supports reviewing infringements on the freedom of dress with strict scrutiny and subjecting them to narrow tailoring requirements - rather than treating dress merely as an adjunct to speech. In schools, too, strict scrutiny is appropriate; carving out freedom of dress as a liberty for students may be easier even than carving out student liberties like speech. In prisons, a reasonable accommodation approach is appropriate, but with a much narrower construction of reasonable accommodation than in other settings.

December 30, 2013 in Civil Rights Act, First Amendment | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 30, 2013

Report reveals new information about NSA's surveillance methods; the real issue may be authority, not privacy; and, CNN's Peter Bergen questions whether the program is the answer to our national security threats.

Employee's claim that employer commented about transferring clients to younger employees is insufficient to sustain an age discrimination case, holds the Second Circuit; and, Philadelphia hotel faces allegations that it fired an employee in retalition for complaints of sexual harassment, violating her civil rights.

Center for Constitutional Rights hopeful that appointee to Corporation Council for the City of New York is a good sign for the future stop-and-frisk

Egypt arrests four Al Jazeera journalists after channel covers clashes between pro-Morsi students and police.

National Law Journal reviews Supreme Court's 2013 civil rights decisions

Connecticut gun owners rush to register firearms that will be illegal in 2014.

December 30, 2013 | Permalink | Comments (0)

Sunday, December 29, 2013

There's an alarming number of deaths in US jails

The Guardian had this disturbing article early this week about the number of people who have died while in the custody of United States jails. The title of this post comes from the article, which begins:

Kyam Livingston begged for help. After seven hours of lying on the floor of a jail cell, the 38-year-old mother of two died, her calls unheeded by the correction officers providing security for the approximately 15 female inmates at Brooklyn "central booking" jail this past summer, according to witnesses and court documents.


Witnesses told the family that she had died in the cell among fetid conditions before she was taken to Brooklyn Hospital Health Center on 21 July 2013 where Livingston was pronounced dead at 6:58am, according to police reports. A witness, registered nurse Aleah Holland, told The Daily News, that police at Central Booking ignored her complaints of stomach pains and diarrhea. She said that when she and other inmates banged on the bars calling for help, officers told them Livingston was an alcoholic.


No one knows what happened, and no one wants to say. The NYPD told the family that she died of a seizure, but her family says she never suffered from seizures. This October the family sued the city, the NYPD, and the Department of Corrections in an effort to force systemic change and "responsibility" for her death.


Livingston was one of the few hundred jail deaths that happen across the country. In 2011, (the latest available numbers) 885 inmates died(pdf) in the custody of local jails, the Justice Department's Bureau of Justice Statistics reported. Notice I said jails. These are different from prisons. Prisons are for people who have been convicted of a crime and sentenced. There are roughly 3,000 jails nationwide and each facility is set up to process people that have been arrested before they are arraigned or go to trial. Some will serve a misdemeanor sentence (of under a year). The majority will be let go because the charges against them won't stick as they move through the legal system. Others will remain in jails while waiting to go to trial too poor to make bail – yet to be convicted of anything. Regardless, they will be treated as criminals.

Also on CRL&P: How much does a public defender need to know about a client?

December 29, 2013 in Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 29, 2013

Guardian recalls Snowden's self-identification as NSA leaker; cell phone carriers have had capability to curb NSA surveillance since 2008.

Ohio Rep. Becker says voter ID would discourage fraud, but Rep. Clyde argues voter ID is a solution in search of a problem.

NYTimes profiles Seattle's Socialist city councilwoman.


December 29, 2013 | Permalink | Comments (0)

Saturday, December 28, 2013

NYPD's stop-and-frisk program dead?

In New York City's Stop-And-Frisk Appeals Are Still Alive—appearing on Brooklyn Law School's Jounral of Law & Policy website PracticumProfessor Katherine Macfarlane argues that it's not. According to Professor Macfarlane, the program could be preserved because the plaintiffs in the Ligon and Floyd cases lacked standing under precedent established by the Supreme Court in City of Los Angeles v. Lyons. Further, she claims that by ignoring Lyons the plaintiffs forwent a valuable opportunity to present a higher court with an opportunity to limit the restrictions of that precedent.

Here's the Introduction:

Will Judge Scheindlin’s decision that the NYPD’s stop-and-frisk practices are unconstitutional stand?  Everyone seems to think so.  On November 22, 2013, the Second Circuit denied the City of New York’s motion to vacate two decisions that ordered fundamental changes to the NYPD’s stop-and-frisk practices: the February 14, 2013 decision in Ligon v. City of New York, and the August 12, 2013 decision in Floyd v. City of New York.  The blow inflicted by the October 31, 2013 removal of Judge Scheindlin from Floyd and Ligon (due to a purported appearance of partiality) now seems irrelevant.  Mayor-elect Bill De Blasio, who takes office on January 1, 2014, has signaled that he will direct the City attorneys charged with appealing and overturning the stop-and-frisk orders to go no further.  The appeals will be set for argument after March 14, 2014, so if De Blasio follows through, the City’s appeal arguments will be mooted.  The Bloomberg administration will never get to defend its stop-and-frisk practices, Judge Scheindlin’s sweeping injunctions will stand, and the plaintiffs’ cause will be vindicated. But this outcome is by no means inevitable.  


The strongest argument in the City’s arsenal is one that it has yet to use: that the stop-and-frisk plaintiffs may lack standing to request the relief the court ordered.  The Second Circuit denied the City’s motions to vacate the orders granting vast injunctive relief “without prejudice,” so more motions may be filed. Moreover, though the City filed its opening briefs in Floyd and Ligon on December 10, 2013 and made no mention of the plaintiffs’ potential lack of standing, standing arguments are never waived. As a result, standing may keep the appeals alive, and stop-and-frisk practices in New York may remain untouched.


Is this the right outcome? Most stop-and-frisk opponents would object. But if City of Los Angeles v. Lyons is properly applied, the inevitable outcome is that the plaintiffs lack standing. In civil rights cases, the logic supporting a plaintiff-friendly outcome must be inscrutable because the rights at stake are so important. If federal court opinions that uphold or expand civil rights are based on faulty logic, not only will the opinions be attacked, the rights themselves will also come under fire. Because Lyons is still good law, the way to overcome it was to acknowledge that Lyons is binding, and then explain how to overcome its holding with a new theory of justiciability, which would then pave the way for a higher court to undo Lyons’ mistakes. Analytical shortcuts and misrepresentations, however, result in unjustifiable standing rulings, and hand the civil rights-unfriendly Supreme Court yet another case through which to further narrow civil rights remedies.

CRL&P related posts:

December 28, 2013 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

CRL&P Daily Reads: Dec. 28, 2013

Western Dems weren't happy with yesterday's NSA ruling; SCOTUSblog breaks it down; and, split rulings on NSA's surveillance program come from judges aligned (unsurprisingly?) with opposing parties

NYPD's increased diversity coincides with declining number of black officers.

Socialist Alternative party hopes to challenge Dems in  Seattle.

ACLU lawsuit alleges body cavity searches by border agents violate the Fourth Amendment.

And, just because it makes me happy.


December 28, 2013 | Permalink | Comments (1)

Friday, December 27, 2013

CRL&P Daily Reads: Dec. 27, 2013

All counties in Utah now are issuing same-sex marriage licenses.

The Week remembers 'the year in recalls'; Alabama asks federal judge to dismiss challenge to ballot access law for special elections; and, Pennsylvania legislature considering a bill to eliminate the straight party ballot.

Second Circuit rules that part-time New Yorkers can obtain gun licenses.

Federal judge dismisses failure-of-service claim made by ex-judge facing allegations of civil rights violations. 

Federal judge says NSA's telephone data collections program is legal.

California schools making preparations for the implementation of new transgender rights law.


December 27, 2013 | Permalink | Comments (0)

Thursday, December 26, 2013

SDNY amends related-case rule to increase transparency over case assignments

The Southern District of New York has changed its rules for the assignment of cases to judicial dockets. According to The New York Times:

Following public debate over how a federal judge in Manhattan came to oversee a 2008 lawsuit challenging the city’s stop-and-frisk policy, the Federal District Court in Manhattan on Monday [Dec. 23] announced new rules to make the assignment of cases more random and transparent, and to offer a means for parties to object to assignments.

Previously, a party to a lawsuit could request a particular judge for a case in which the facts were "related" to those of a case previously heard by that judge.  

But the rule has its critics. Early this month, for example, CRL&P highlighted Professor Katherine Macfarlane's critique of "nonrandom case assignment" in The Danger of Nonrandom Case Assignment: How the Southern District of New York's 'Related Cases' Rule Shapped the Evolution of Stop-and-Frisk LawProfessor Macfarlane argues that the related-case rule allows judges to step from behind the bench to influence--indeed to make--policy. According to Macfarlane, Judge Scheindlin did exactly that when she heard a series of stop-and-frisk cases, the culmination of which was her ruling in Floyd v. City of New York in which she held that New York City's stop-and-frisk program was unconstitutional. Macfarlane concludes:

Like the Fifth Circuit judge who packed civil rights cases with desegregationist judges, Judge Scheindlin's positions may be guided by the right moral compass and ultimately vindicated, if not by the Supreme Court, then by history. But the manner in which the Souther District of New York's local rules have allowed one judge to select certain cases, and use them to shape the development of important Constitutional law, gives off such an appearance of impropriety that the procedures that allow for such practices must be eliminated. "[T]o perform its high function in the best way, justice must satisfy the appearance of justice." (citing In re Yagman, 796 F.2d 1165, 1178 (9 th Cir. 1986) (internal citations omitted).

Although the appellate court questioned Judge Scheindlin impartiality and removed her from the case, it upheld her ruling. A federal appeals panel later found no bias or misconduct by Judge Scheindlin

The district's new rules require parties using the related-case rule to justify their request in writing; and, they provide an opportunity for objections from disagreeing parties. The judge still has the authority to determine the propriety of the request. But, the judge's decision is subject to review by a three-judge panel, which can require random assignment.

CRL&P related posts:

December 26, 2013 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (2)

Title VI and the future of environmental civil rights

In Realizing the Promise of Environmental Civil Rights: The Renewed Effort to Enforce Title VI of the Civil Rights Act of 1964, Tony LoPresti argues that Title VI will not provide adequate protection Images-5for environmental civil rights until the structural barriers to its enforcement are resolved. LoPresti offers several possible solutions to such problems. Here's the abstract:

The environmental justice movement has long pursued a viable mechanism for federal enforcement of environmental civil rights. No legal tool has inspired such high hopes — and such deep disappointment — as Title VI of the Civil Rights Act of 1964. 

Without a private right of action to enforce Title VI, advocates have focused on filing administrative complaints with the Environmental Protection Agency. But, after twenty years of “active” enforcement and 247 complaints, EPA has yet to issue a single violation. Complaints alleging severe and discriminatory health impacts routinely languish at EPA’s Office of Civil Rights for years without response, in clear violation of the Agency’s own regulations. 

In spite of EPA’s dismal record, advocates have found cause for optimism in a Ninth Circuit decision chastising EPA for its “pattern of delay,” a scathing audit of the Office of Civil Rights, and some encouraging steps by Administrator Lisa Jackson. While these recent developments have kept advocates invested in Title VI, little has been done to address the structural barriers that have stymied effective enforcement. This article discusses these structural barriers in the context of three controversial complaints, and proposes solutions that EPA can put into place. The solutions — creating effective remedies, building accountability into the Office of Civil Rights’ enforcement system, and easing the tension between federal authority and state autonomy — form the backdrop of any effort to improve enforcement of environmental civil rights. 

EPA’s ability to create a legitimate Title VI program will be pivotal to the future of environmental justice. And, in an administrative state that allocates hundreds of billions in federal assistance each year, Title VI may be the most critical battleground in defining the ongoing legacy of the civil rights movement.

December 26, 2013 in Civil Rights Act | Permalink | Comments (0)

L.A. County restricts homeless peoples' access to Union Station

Homeless-feetHomeless people are no longer welcome in Los Angeles’ Union Station, according to this article in The Los Angeles Times. More than one hundred homeless people had previously used the station each night, but Los Angeles County’s new policy restricts access to ticketed passengers only--ostensibly because of concerns over safety and public health. As The Times reports:

Last summer, an average of 135 homeless people a night were gathering inside the terminal, commandeering bathrooms, sprawling across seats and intimidating customers with aggressive panhandling, MTA officials said.


"We were getting a lot of complaints. Our clientele isn't particularly well-heeled," said Ken Pratt, director of Los Angeles Union Station Property Management for the MTA. "They were being prevented from using the terminal."


The move comes as the agency has embarked on a major renovation of the station. Some downtown residents say the seat closure is pushing people with nowhere else to go out into the cold.


"It seems really unfair that they're not allowed to come in to get warm," said Clare Holzer, an artist who lives in downtown's historic core.

The new policy highlights the difficult considerations that affect public policy decisions relating to the issue of homelessness, and it raises questions as to the rights of homeless people to occupy public places. 

In 2012, Democratic Rep. Tom Ammiano introduced into the California General Assembly a Homeless Bill of Rights (A.B. 5). Among other things, the bill would preserve the rights of homeless people to use public spaces; it would ensure their right to legal counsel; and, it would protect employees who assist them from retaliation from their employers. It also would provide civil remedies for violation of the act.

Although it passed the Judiciary Committee last April, the Committee on Appropriations has yet to act upon it. It is expected to come up in January 2014.

December 26, 2013 in 14th Amendment | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 26, 2013

New California law will help victims of domestic violence by requiring only that they provide landlords with verification of abuse before moving.

Gun rights activists' commitment can teach gun control activists a thing or two.

Republican candidate for county commissioner worries that DOJ's challenge to North Carolina's voter ID law could hurt her election chances.

What's the effect of corruption on voting behavior?

Shelby Co. lawyer in VRA case seeks attorneys fees.

Brennan Center for Justice is hiring.


December 26, 2013 | Permalink | Comments (0)

Wednesday, December 25, 2013

Federal Court Revives Fair-Housing Issue

The title of this post comes from this article in the Wall Street Journal highlighting yet another case in which the question is whether disparate impact claims are cognizable under the Fair Housing Act. The article begins:

HudimgA case in Washington, D.C., federal court has revived a dispute about the reach of U.S. fair-housing law, an issue that has twice surfaced at the Supreme Court only to disappear from the docket because of settlements.


U.S. District Judge Richard Leon on Friday restarted a suit by two trade associations challenging a Department of Housing and Urban Development regulation issued in February.


The regulation explicitly allows "disparate-impact" claims, in which plaintiffs use the civil-rights-era Fair Housing Act to challenge practices that affect minorities disproportionately, without having to prove intentional discrimination. Advocates say such suits help protect minority rights.


The American Insurance Association and the National Association of Mutual Insurance Companies are challenging the rule, saying the Fair Housing Act "prohibits only intentional discrimination and not practices that result in a disparate impact." The groups contend the HUD rule would disrupt how insurers determine rates for homeowners' policies.


The Supreme Court was scheduled this fall to hear arguments on the issue, but town officials in Mount Holly, N.J., reached a deal with residents who had fileda disparate-impact suit in response to plans to redevelop a largely minority neighborhood.

Also on CRL&P: Settlement in Fair Housing Case—A Sigh of Relief

December 25, 2013 in Fair Housing Act | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 25, 2013

Post-trial briefs have been submitted in the Wisconsin voter ID case; and, lawsuit alleges California illegally rejected petitions to place on the ballot the law allowing transgender students to choose which bathrooms they will use

Federal class action suit filed against City of Memphis over 12,000 untested rape kits; and, police chief resigns after a civil rights suit alleges 75 police officers violated the rights of African Americans in South Florida city.

State courts playing an increasing role in the same-sex marriage debate, although it looks to heat up in federal courts as well; it's not going away in Indiana; and, same-sex marriage in Utah appears to be headed to the Supreme Court.

Wisconsin law requiring abortion doctors to have admitting privileges at nearby hospitals is still enjoined.

Snowden uses Christmas address to defend privacy.


December 25, 2013 | Permalink | Comments (0)

Tuesday, December 24, 2013

The Blinding Color of Race: Elections and Democracy after Shelby

The title of this post comes from this recent paper examining inter alia how election laws perpetuate race narratives and influence policy. Here's the abstract:

Decades after passage of the historic Voting Rights Act, so much has changed. And yet, so much remains the same. 

Racial minorities are registering to vote and turning out at the ballot box in record numbers. However, they remain under-represented in local elected positions and virtually excluded from national and state political office. Latinos, for example, are the largest racial minority in the U.S. at approximately 17% of the population, but only 3.3% of elected offices are held by Latinos. In states that until recently were covered by the Voting Rights Act (VRA), such as Texas, Alabama, Mississippi, and Louisiana, 11 %, 25%, 30%, and 18% of elected positions are held by African Americans, respectively. Meanwhile, the proportion of African Americans in the state populations is higher at 12.3% in Texas, 26.5%, in Alabama, 37.4% in Mississippi, and 32.4% in Louisiana thereby evincing that racial diversity in elected offices does not represent the population at large.

African Americans are also graduating from college at historically higher rates at 21% in 2012 compared to 4% in 1964. And yet, the socio-economic disparities between blacks and whites are alarmingly stagnant when compared to the 1960s when the VRA was passed. Black workers earn on average half as much as their similarly situated white counterparts. The average wealth of a black family is one sixth that of a white family. 77.4% of those living in poverty in the United States are racial minorities compared to 22.6% are whites. And 54% of the prison population is non-white even though they comprise only 37% of the total US population. While some Americans may still harbor racially-biased explanations for such disparities ranging from inferior abilities, laziness, to genetic propensities to violence; open expressions of such biases have become more taboo now than fifty years ago. As explicit forms of racism are normatively and legally rejected, they are replaced with more stealth and subtle expressions of underlying racial prejudices. 

Continue reading

December 24, 2013 | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 24, 2013

Monday, December 23, 2013

Civil rights leaders want Obama to withdraw recent judicial nominations

President Obama's nominations for the U.S. Eleventh Circuit Court of Appeals were made after conferring with Georgia Republican Sens. Saxbe Chambliss and Johnny Isakson. Rep. John Lewis and others claim Obama ignored their input and selected judges whose past work demonstrate views at odds with the concerns of many within the African Americans community. Politico has the story here.

December 23, 2013 | Permalink | Comments (2)

Former CIA director: whether NSA's surveillance program has been effective is irrelevant

There's John Yoo, but then there's this guy. As The Atlantic reports:

Michael Morell, the former acting director of the CIA and a member of President Obama's task force on surveillance, said in an interview on Sunday that a controversial telephone data-collection program conducted by the National Security Agency should be expanded to include emails. He also said the program, far from being unnecessary, could prevent the next 9/11.


Morell, seeking to correct any misperception that the presidential panel had called for a radical curtailment of NSA programs, said he is in favor of restarting a program that the NSA discontinued in 2011 that involved the collection of "metadata" for internet communications. That program only gets a brief mention in a footnote on page 97 of the task-force report, "Liberty and Security in A Changing World." "I would argue actually that the email data is probably more valuable than the telephony data," Morell told National Journal in a telephone interview. "You can bet that the last thing a smart terrorist is going to do right now is call someone in the United States."


Morell also said that while he agreed with the report's conclusion that the telephone data program, conducted under Section 215 of the Patriot Act, made "only a modest contribution to the nation's security" so far, it should be continued under the new safeguards recommended by the panel. "I would argue that what effectiveness we have seen to date is totally irrelevant to how effective it might be in the future," he said. "This program, 215, has the ability to stop the next 9/11 and if you added emails in there it would make it even more effective. Had it been in place in 2000 and 2001, I think that probably 9/11 would not have happened."

Holy crap! According to Morell, questioning whether a controversial government program has been effective is a completely futile exercise. After all, it might work someday.

How can you argue with that? You can't predict the future... Freedom haters!

December 23, 2013 in Fourth Amendment | Permalink | Comments (2)

Speak! If you're into that sort of thing...

Today in Forbes, columnist Doug Bandow enters the Free Speech/'Duck Dynasty' kerfuffle by way of his request from Santa to "stop people from confusing the First Amendment with free expression." He starts off well, too. He correctly notes: 

Images-4The A&E network suspended Robertson, but that has nothing to do with the First Amendment, which protects against government suppression of speech. Instead, if I don’t like something you say and don’t want to work or even associate with you, that is just life. In a free society that should be my right—both of expression and association—as basic as your right to voice your opinion.


Of course, your family then can threaten to stop working with me, as Robertson’s family has warned A&E. And viewers and potential viewers can decide whether they want to watch or not, which seems to be what most of the country is talking about at the moment. But this battle has nothing to do with the Constitution and the essential framework for a free society. 

All's good and well. I'm in total agreement. Great.

But then Bandow goes further by asking people to refrain from speaking out against speech they find offensive. He writes:

A separate wish, but highlighted by the Duck Dynasty imbroglio, is that people would stop turning every little controversy into a matter of high moral outrage. Why should anyone get excited about what someone on a silly television show says off the set? In a large, complex society like our own, lots of people will believe things and behave in ways which irritate and even outrage us. Life will be better if we generally tolerate the opinions and actions of others.


But there’s no reason to turn the world upside down in response to those who believe ObamaCare will make medicine affordable, consider homosexuality to be a sin, think Republicans are terrible people, don’t like atheists or Catholics (or both), make stupid gender-, race-, or ethnic-based remarks, or are generally obnoxious and clueless. You don’t like what they said/did? Minimize your contact at work. Avoid them at the Christmas party. Don’t visit their barbershop. Refuse to respond to their provocations.


But don’t try to drive everyone you disagree with from the public square. We all benefit from a diverse, vibrant, and provocative public environment despite the irritations and offenses caused by some. A world turned ever more intolerant, nasty, and threatening by zealous PC police of all sorts will be a truly depressing place. Not to mention that we might end up as victims of the new public Star Chamber as well.

First, A&E is not "public square." Robertson's opponents want his microphone taken away, not the suppression of his ideas. That is, Robertson may continue to say exactly what he believes, but his opponents prefer that he do so from a street corner. The right to free speech is not the right to amplified speech.

Second, the First Amendment envisions precisely the type of confrontation from which Bandow wishes people to shirk. It contemplates the need for individuals to speak out against ideas and opinions with which they disagree, and to offer the solutions they believe will best serve society.

The First Amendment's protection of free and open discussion of ideas is further premised on the understanding that such freedom promotes the social good. That is, only in a free and open marketplace of ideas can citizens make the best judgments about the direction of society and its government. As First Amendment scholar Thomas Emerson wrote:

[Human judgment] can seldom rest at the point any single person carries it, but must always remain incomplete and subject to further extension, refinement, rejection or modification. Hence an individual who seeks knowledge and truth must hear all sides of a question, especially as presented by those who feel strongly and argue militantly for a different view. He must consider all alternatives, test his judgement by exposing it to opposition, make full use of different minds to sift the true from the false...


More importantly, the same reasons which make open discussion essential for an intelligent individual judgment make it imperative for rational social judgments. Through the acquisition of new knowledge, the toleration of new ideas, the testing of opinion in open competition, the discipline of rethinking its assumptions, a society will be better able to reach common decision that will meet the needs and aspirations of its members.

How is the marketplace served if people refrain from entering it?

It's not. And calls for people to refrain from entering that space are no less confused than those from people claiming Robertson's suspension oppresses his freedom to speak. 

The Founders imagined a couragous people, not a cowardly one.

December 23, 2013 in Current Affairs, First Amendment, Freedom of Speech | Permalink | Comments (1)

CRL&P Daily Reads: Dec. 23, 2013

Toledo Blade editorial says  gerrymandering should be illegal.

Justia columnist examines Texas criminal appellate court's decision overturning a statute prohibiting sexually-explicit communications with someone believed to be a minor.

Restrictions on access to depositions raise First Amendment questions in Connecticut.


December 23, 2013 | Permalink | Comments (0)

Sunday, December 22, 2013

John Yoo: NSA mass surveillance totally copacetic

In his upcoming paper, The Legality of the National Security Agency's Bulk Data Surveillance Programs, former DOJ official in the Bush II administration John Yoo says NSA's surveillance programs accord with FISA and do not violate the Fourth Amendment. Here's the abstract: 

Controversy has arisen again over the federal government’s electronic surveillance efforts to gather intelligence on foreign terrorist groups. Recent disclosures, both authorized and illicit, have described two secret National Security Agency (NSA) programs. The first collects telephone “metadata” such as calling records — but not the content of phone calls — both inside and outside the United States. A second NSA program intercepts the e-mails of non U.S. persons outside the United States. Despite the claims of critics, these programs do not violate the Foreign Intelligence Surveillance Act (FISA), as recently amended by Congress, or the Fourth Amendment to the Constitution. Concerns about the proper balance between these surveillance programs and individual privacy may be appropriate, but they properly fall within the province of Congress and the President to set future national security policy.

Part I of this paper describes the surveillance efforts against al Qaeda within a broader historical and legal context. Part II argues that the programs, as described publicly by authoritative sources, appear to meet statutory requirements. Part III addresses whether the NSA programs are constitutional along two dimensions. It argues that even if some aspect of the NSA programs does not fall within Congress’s authorization for foreign intelligence and counter-terrorism surveillance, it would most likely rest within the President’s Commander-in-Chief authority over the management of war. Second, even if the federal government has the internal authority to conduct surveillance, the Bill of Rights, through the Fourth Amendment, may still prohibit its application to citizens or non-citizens present in the territorial United States. Part III argues, however, that the NSA programs do not violate the Fourth Amendment, as currently interpreted by the federal courts.

Professor Yoo currently is a member of the faculty at UC Berkeley School of Law, and he is a visiting scholar at the American Enterprise Institute.

December 22, 2013 in Fourth Amendment | Permalink | Comments (1)

CRL&P Daily Reads: Dec. 22, 2013

Sen. Manchin appears doubtful that Congress can agree on bill requiring background checks for gun purchases.

Newly released records reveal details about the authorization of the NSA's mass surveillance program.

Utah asks federal judge to stay same-sex marriage decision; and, Oklahoma faces two challenges to same-sex marriage ban.

Iowa man sues Catholic school claiming religious discrimination.

Journalists going to jail worldwide at near record numbers.


December 22, 2013 | Permalink | Comments (0)

Saturday, December 21, 2013

Title VII's Last Hurrah: Can Discrimination Be Plausibly Pled?

The title of this post comes from this upcoming paper from Professor Michael Zimmer, the abstract of which states:

The Roberts Supreme Court appears to be somewhat schizophrenic in how it approaches antidiscrimination law. One recent decision, Ricci v. DeStefano, involves a potentially expansionist development making proof of intent to discriminate, a key element in most antidiscrimination cases, simply a question of fact of whether the employer was aware of the racial (or gender) consequences of its action. Other decisions push Title VII cases out of court into arbitration, further complicate procedural law and diminish the scope of substantive protections of the law, thereby making Title VII cases that remain in court more difficult to bring as class actions or to advance even individual cases beyond the pleading stage of litigation. Given the breadth of the onslaught against a robust antidiscrimination jurisprudence, it appears likely that the thrust limiting antidiscrimination law will win out over the alternative expansionist approach that would follow the application of Ricci to disparate treatment discrimination cases beyond “reverse” discrimination claims. If that is true, the Supreme Court will be bringing to an end the availability of Title VII to help redress our society’s longstanding and continuing problems of employment discrimination. 

This paper argues for the extension of the simplified proof standard of what constitutes intent to discriminate and for the acceptance at the pleading stage of discrimination cases of social science research, including implicit bias studies, that show why discrimination persists. Establishing a more realistic set of background assumptions about that persistence would assist judges making the plausibility finding necessary for discrimination claims to survive motions to dismiss. These two paths seem to be what the Court has so far left open so that the antidiscrimination project can continue to have some life.

December 21, 2013 | Permalink | Comments (2)

Brennan Center details best practices for reforming voting system

Last week, the Brennan Center for Justice released its new report: How to Fix the Voting System. The report is adapted from testimony the Center presented to the Presidential Commission on Election Administration--established to address the inefficiencies in voting during the 2012 elections--concerning best practices for reforming the voting system. According the Introduction: 

What follows are practical, evidence- and research-based best practices regarding four areas of reform — each of which will improve election administration and the voting experience: 1) Modernizing voter registration; 2) Expanding early voting; 3) Improving management of polling place resources; and 4) Improving the simplicity and usability of ballots and voting machines, and publishing data on machine performance. 

The full report is available here.

December 21, 2013 in Election Law, Right to Vote | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 21, 2013

Rhode Island Secretary of State candidate wants to repeal state's voter ID law; Iowa's Secretary of State candidates get ready to battle over voting rightsWisconsin Supreme Court to hear voter ID challenge; and, report shows 17 non-citizens voted in Ohio in 2012.

Federal court upholds block on Wisconsin law requiring doctors at abortion clinics to have hospital admitting privileges.

Police union dropped from ex-banker's civil rights lawsuit for false imprisonment; and, McDonald's settles lawsuit alleging religious discrimination for its rejection of Muslim employee's request to grow a beard.

The Week examines what the New Mexico Supreme Court's same-sex marriage decision could mean for other states; county clerk in Utah is issuing same-sex marriage licenses; and, Utah AG wants it all to stop.

Obama remains non-committal about the future of the NSA's mass surveillance program.


December 21, 2013 | Permalink | Comments (0)

Friday, December 20, 2013

UConn faces another lawsuit alleging the mishandling of sexual assault claims

UConn womens hockey player claims among other things that she was dismissed from the team after she reported that she had been raped by a male hockey player; and, she now joins four other women in their lawsuit against the university for violations of their civil rights under Title IX. The most recent allegations raise questions about the basic decency of the officials involved, so it will be interesting to watch this story develop--and, how and when UConn finally responds. The article begins:

The woman alleges in the amended complaint filed Friday that she was raped by a male hockey player in August 2011. She said that after reporting the assault to school officials, she was advised to transfer and kicked off the women's hockey team by her coach, who told her she was not "stable enough" and would "bring the team down."


The woman's attorney, Gloria Allred, alleges officials did not investigate her removal from the team, didn't advise her she could stay in school, and didn't tell her she had the option to call police or pursue a complaint with the school that could lead to a hearing.


"They did not ask for the identity of her rapist," she wrote.


The school declined to comment on the new allegations. University attorney Richard Orr said there has been an internal review of the allegations by the four women that originally brought the suit on Nov. 1 and the school will respond "at the appropriate time and in the appropriate forum."

December 20, 2013 in 14th Amendment, Civil Rights Litigation | Permalink | Comments (2)

Attorneys seek three clarifications to North Carolina's new voting laws

Here's the story:

Election law attorneys at Bailey & Dixon in Raleigh have petitioned the State Board of Elections seeking the adoption of three rules clarifying new voting laws approved by the Republican-controlled General Assembly, including the photo identification requirement, The Insider reports.

Under one proposed rule, a voter's name on his or her photo ID wouldn't have to match exactly the name on the voter's registration record. The rule gives examples of when the two names might not match, yet the voter should be able to cast a ballot anyway. They include abbreviations of a name, such as "John R. Doe" instead of "John Robert Doe;" alternate spellings of names, such as "Thomas Jimenez" instead of "Tomas Jimenez;" use of a common nickname, such as "Becky" or "Becca" instead of "Rebecca;" use of an uncommon nickname, such as "Tim Belk" instead of "Thomas M. Belk Jr." and use of a maiden name or hyphenated maiden-married name, such as "Jane Smith" instead of "Jane Doe" or "Jane Smith-Doe" instead of "Jane Doe."

A second rule would allow a voter to cast a ballot if addresses on the photo ID and voter's registration don't match. "The purpose of the photo identification requirement is proof of identity and not proof of address," the proposed rule states. The first two rules were proposed to establish guidelines and prevent election officials, "through overzealousness or misunderstanding," from ruling an ID invalid if there is an explainable difference between names or addresses, according to the comments filed with the proposed rules by attorney William Gilkeson Jr. The ID requirement takes effect Jan. 1, 2016.

A third rule would prohibit party observers at the polls from being close enough to a voter to read the voter's ID or listen to the voter's conversation with a precinct official, challenge the voter's right to vote or "otherwise impede or interfere with the voting process or violate the privacy of the voter." The new election law allows political parties in each county to name up to 10 observers who may enter any polling place in that county. The law also allows any voter to challenge another voter in any precinct on Election Day. Those changes take effect Jan. 1. In his comments, Gilkeson wrote that current law specifies that an observer's role is to observe, not to impede the voting process.

Bailey & Dixon attorney Michael Weisel said the attorneys wanted to ensure consistent treatment and interpretation of the new laws across the 100 counties, in part to prevent confusion or chaos at polling places. "All the election law attorneys feel that these are good, common-sense explanations and procedures that reflect what the statute intends and will help facilitate the Election Day process," Weisel said.

It was unclear Thursday if the Board of Elections will consider the proposed rules. Elections Director Kim Strach didn't return a phone call. State Rep. David Lewis, R-Harnett, a main drafter of the new voting laws, also didn't return a call Thursday.

December 20, 2013 in Election Law, Voter ID | Permalink | Comments (0)

School district rejects proposal for gay-straight club, faces another lawsuit

LGBT-schoolThe ACLU has filed a lawsuit on behalf of a seventh-grader who has been denied permission to start a gay-straight club at her middle school. The school district claimed the club didn't "promote critical thinking, business skills, athletic skills, and performing/visual arts," as required by its rules. The article begins:

The Lake County [Florida] School Board for the second time this year is facing a federal lawsuit accusing it of violating students' freedom of speech and federal rights by not allowing a middle-schooler to start a gay-straight club at her school.


The American Civil Liberties Union Thursday filed a federal lawsuit on behalf of a 12-year-old girl at Carver Middle School in Leesburg who applied this semester to start a Gay-Straight Alliance club but was denied by school district officials.


The ACLU says seventh-grader Hannah Faughnan filed an application to start the club in October but was denied by the district's administration chief, according to the federal complaint.


According to the ACLU, the club would fight against bullying, discrimination and harassment of students including those who are gay, lesbian, bisexual or transgender.


District administration chief Aurelia Cole, however, left a handwritten note on Hannah's application saying that the club "is not an extension of the school curriculum, per policy. Not approved."

December 20, 2013 in Schools | Permalink | Comments (0)

Lawsuit: Police K-9 ordered to attack handcuffed man

The title of this post comes from this article about an Indiana man's federal lawsuit alleging civil rights violations by the sheriff's office during this regrettable K-9 incident: 

Biting_Dog_webCook admits he was hiding out in an attic as police stormed into his home, when Wayne County sheriff's deputy Ronald Lindley sent his K-9 named "Larry" in to find him.


In his lawsuit, Cook claims he remained silent as police scoured the home, but when the K-9 peered into the attic, Cook said he quietly spoke out with the words, "Please don't bite me," and then something to the effect of, "I like dogs."


Cook claims the dog began barking when Deputy Lindley gave a command, so he then blurted out, "Get that dog out of here."


Cook said the K-9 was then released into the attic, where it bit him and then ended up dragging him by the arm toward a group of officers.


He said Deputy Lindley then punched him in the head as he was ordering the dog to release his hold around Cook's arm so that he could crawl from the attic.


According to Cook's lawsuit, "Deputy Lindley ordered the K-9 to attack and bite Mr. Cook on the left hamstring after he was handcuffed."   He said the dog continued to bite his leg as he was cuffed, resulting in "significant injuries."


Cook was taken by ambulance to Reid Hospital for treatment before going to jail.

December 20, 2013 in Excessive Force | Permalink | Comments (2)

CRL&P Daily Reads: Dec. 20, 2013

Thursday, December 19, 2013

Community based-mediation between youth offenders and their victims?

In Reducing Incarceration for Youthful Offenders with a Developmental Approach to Sentencing, Professor Samantha Buckingham argues that a community-based sentencing scheme would better serve youth offenders--and society at large--than our currently unsophisticated and inefficient one. Here's the abstract:

Current sentencing practices have proven to be an ineffective method of rehabilitating criminal defendants. Such practices are unresponsive to developmental science breakthroughs, fail to promote rehabilitation, and drain society’s limited resources. These deficiencies are most acute when dealing with youthful offenders. Incarcerating youthful offenders, who are amenable to rehabilitative efforts, under current sentencing practices only serves to ensure such individuals will never become productive members of society. Drawing on the author’s experiences as a public defender, studies in developmental psychology and neuroscience, and the Supreme Court’s recent line of cases that acknowledge youthful offenders’ biological differences from adult offenders, the author proposes a restorative-justice approach to replace current sentencing practices. This solution includes tailoring a youthful offender’s sentence to his or her developmental level and offering a community-based mediation between victims and offenders. The proposal counteracts a major deficiency of current sentencing practices — the failure to offer youthful offenders an opportunity to truly understand their crimes. Only by providing an opportunity to learn from an offense will a youthful offender be in a position to rehabilitate. This Article responds to possible critiques of the proposal, including concerns about the ability to accurately measure the success of a restorative-justice sentencing model, the fear of implicating the offender’s Fifth Amendment right against self-incrimination, and the cost of implementing mediation-based efforts. Ultimately, this Article determines that a developmentally appropriate, community-based sentencing scheme — with restorative justice overtones — best addresses the unique situation youthful offenders find themselves in. A sentence for a youthful offender should — indeed, must — present meaningful opportunities for the youthful offender to rehabilitate, and age-appropriate sentences grounded in restorative-justice principles will do this effectively.

December 19, 2013 in Collateral Consequences, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 19, 2013

Five recommendations from NSA task force; The Week asks whether NSA's mass surveillance is effective; Politico looks at how task force's recommendations affect Obama's policy options; and, Dave Eggers says Dave Eggers and others should speak out against the NSA's policies.

ACLU alleges Native American and black students subject to racial and sexual harassment from students and teachers in California school district.

Bill in Ohio Senate would allow married same-sex couples to file joint tax returns.

Former officer alleges sex discrimination by police department when it terminated her because of a workplace relationship; police in New Jersey settle civil rights suit alleging harassment of a teenager; officer in Georgia faces lawsuit after putting a man in the hospital with a blow from his flashlight; and, Columbus alleged to have violated event organizer's civil rights when it shut down his festival after the shooting of an 11-year-old. 

No more donations to the Boy Scouts until gay leaders are allowed, says Lockheed Martin.


December 19, 2013 in Civil Rights Litigation, Excessive Force, Fourth Amendment, Same-sex marriage, Web/Tech | Permalink | Comments (0)

Wednesday, December 18, 2013

Partitioning and Rights: The U.S. Supreme Court’s Accidental Jurisprudence of Democratic Process

The title of this post comes from this article arguing that the Supreme Court's unwillingness to develop a jurisprudential theory of democracy has caused it to resolve new doctrinal questions with existing--but inadequate--tools, resulting in "an accidental, haphazard jurisprudence." Here's the abstract:

In democracies that allocate to a court responsibility for interpreting and enforcing the constitutional ground rules of democratic politics, the sheer importance of the task would seem to oblige such courts to guide their rulings by developing an account of the nature and prominent features of the constitutional commitment to democracy. The U.S. Supreme Court, however, has from the beginning refused to develop a general account – a theory – of how the U.S. Constitution establishes and structures democratic politics. The Court’s diffidence left a vacuum at the heart of its constitutional jurisprudence of democratic process, and like most vacuums, this one was almost immediately occupied. But the Court filled its jurisprudential hole not primarily by invoking principles of democracy – even unstated ones – but by doing instead what reluctant decision makers often do: by reaching for whatever is handy. This reaction took two main forms. First, in the absence of a pertinent theory to guide it, the Court fell back on habit, specifically a habit, developed in its earliest cases, of solving problems of political power and representation by partitioning the electorate – that is, by ordering it subdivided. By resorting reflexively to this approach, the Court soon came to treat partitioning as the preferred solution to most problems of democratic representation. Second, the Court reached for the tools of decision that were most ready at hand, and those tools were individual rights, initially equal protection, then the freedoms of speech and association. But because these tools were ill-suited to the task, the Court ended up stretching First Amendment analysis in these cases beyond its plausible bounds and purposes. A well-ordered democratic state needs a thoughtful and deliberate jurisprudence of democracy and democratic practice. Instead, the Court has provided an accidental, haphazard jurisprudence of habit and availability.

December 18, 2013 in First Amendment | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 18, 2013

Larry Klayman, Larry Klayman, Larry Klayman.

Brazil shirks Snowden.

Plain Dealer columnist argues for armed employees in schools.

Federal judge will hear challenge to Ohio's ban on recognition of same-sex marriages on death certificates.

Student's civil rights suit alleges anti-LGBT harassment by teachers and administrators; police lieutenant claims he was fired in retaliation for testimony he gave against the department in several civil rights cases; Orlando PD face allegations of excessive force by a group of officers; and, civil rights suit over alleged unjustifiable death of Lansing teenager re-emerges.


December 18, 2013 in Civil Rights Litigation, Excessive Force, Fourth Amendment, Gun Policy, Same-sex marriage, Schools, Web/Tech | Permalink | Comments (0)

Tuesday, December 17, 2013

Responses to civil rights problems: universalistic, particularistic, or both?

In his upcoming Universalism and Civil Rights (with Notes on Voting Rights after Shelby), Professor Samuel R. Bagenstos claims that universalistic responses to civil rights problems--those not protecting specific groups against discrimination--are insufficient by themselves to address those problems. The better approach is to employ "a highly context-specific analysis," which, he argues, supports accounting for race discrimination in voting rights protections. Here's the abstract:

After the Supreme Court invalidated the core of the Voting Rights Act’s preclearance regime in Shelby County v. Holder, civil rights activists proposed a variety of legislative responses. One set of responses, which gained quick favor in influential precincts in the legal academy, sought to move beyond measures like the Voting Rights Act that targeted voting discrimination based on race or ethnicity. These responses instead sought to eliminate certain problematic practices that place too great a burden on any individual’s vote. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, at least as a formal matter they provide uniform protections to everyone. As Bruce Ackerman shows in his latest We the People volume, voting rights activists confronted a similar set of questions — and at least some of them opted for a universalist approach — during the campaign to eliminate the poll tax.

The voting rights context is hardly unique. Across an array of different contexts, scholars and activists have proposed universalist responses to address problems that group-oriented civil rights approaches have not fully resolved. Universalist responses have many possible strengths: tactically, in securing political support for and broader judicial implementation of laws that promote civil rights interests; substantively, in aggressively attacking the structures that lead to inequality; and expressively, in avoiding essentializing identity and emphasizing human commonality across groups. But they have possible drawbacks along all three of these dimensions as well. Although scholars have addressed some of these strengths and drawbacks in the context of specific proposals for universal responses to civil rights problems, no work has attempted to examine these issues comprehensively.

This essay attempts such a comprehensive examination. It argues that neither universalistic nor particularistic approaches can fully address our civil rights problems. Even in any specific context — whether voting, higher education, employment, disability, or the interpretation of the Fourteenth Amendment — neither universalistic nor particularistic approaches can provide the complete answer. Rather, the proper mix of universalistic and particularistic policies requires a highly context-specific analysis. Nonetheless, there are some common dynamics of universalistic and targeted civil rights policies, and these dynamics offer lessons for policymakers approaching any given civil rights context. This essay aims to draw out some of these general lessons and then sketch how they might apply to the civil rights context in which questions of universalism are most acute at the moment — the context of voting discrimination. The essay argues that the proper response to Shelby County will fail unless it goes well beyond universal protections of voting rights. Rather, the voting rights regime must also provide robust protection against race discrimination specifically.

December 17, 2013 in Election Law, Right to Vote | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 17, 2013

Federal judge says NSA's surveillance program violates the Fourth Amendment, but that will not be the end of it; several Senators feeling vindicated after the ruling; Politico explains the political impact of the NSA ruling on the White House's surveillance program review plans; NYTimes profiles the plaintiff; Obama will discuss NSA surveillance with Tech giants at today's meeting; and, Snowden tests the waters on 'permanent political asylum' in Brazil (full letter here).

Civil rights activists accuse Texas of neglecting election laws aimed at boosting voter turnout.

State's lawyers in challenge to Pennsylvania's same-sex marriage ban allegedly stalling and making intrusive requests of plaintiffs; and, same-sex couples in Illinois can get married before law's enactment with a doctor's certification that a life-threatening illness would makes doubtful their ability to wait.

Seattle PD facing civil rights suit after officer allegedly throws a bystander of protest to the ground.


December 17, 2013 in Civil Rights Litigation, Election Law, Excessive Force, Fourth Amendment, Same-sex marriage, Web/Tech | Permalink | Comments (1)

Monday, December 16, 2013

CRL&P Daily Reads: Dec. 16, 2013

Sunday, December 15, 2013

Election laws protecting political parties in Ohio?

The Columbus Dispatch's Jim Siegel brings this interesting story covering the growing dispute over Ohio's voting laws. Here's how the story begins:

Outside the Statehouse, Ohio’s election system is designed to run as a bipartisan machine in which the two parties watch over the process, and each other, to ensure that no one gains an unfair advantage.


Inside the Statehouse is very different.


“Elections are the only game in town where the players get to make their own rules,” said Aaron Ockerman, executive director of the Ohio Association of Elections Officials.


Few issues have led to more-heated partisan rhetoric than election-law changes. Nearly every significant proposal is greeted with cries of voter suppression, disenfranchisement and racism from Democrats whose only real chance of stopping the bills are ballot referendums or lawsuits.


“Unfortunately, the GOP agenda on changing election laws is not to solve the problems … and to create burdens on voters,” said Rep. Kathleen Clyde, D-Kent. “We’re all for common-sense solutions, but that’s not what we’re seeing.”


This year, bills altering early voting, provisional balloting, absentee applications and minor-party recognition have ignited fights.


Some of it is posturing by Democrats, said Sen. Bill Seitz, R-Cincinnati. There is, he said, also an ideological divide, as Republicans think voters have a responsibility “to provide minimally accurate information to the board of elections and take responsibility to getting themselves to the right place at the right time.”


Democrats, he said, want “Kroger voting,” open 24/7, where voters get, at taxpayers’ expense, complete convenience “so they can saunter down there whenever they damn well please.”

Sen. Seitz's chuckle-worthy "saunter[ing]" voter aside, I find it interesting that Siegel led by describing election law-making as a two-party tug-of-war. Under such circumstance, the subject of American democracy is no longer the citizen but rather the parties. In the election law context, this marginalizes the citizen's role in the democratic process at precisely the point her duty is of the greatest import--when exercising the individual right to vote. What's worrisome, it seems to me, is that Siegel's tug-of-war now is accepted as just the-way-things-are.   

CRL&P related posts:

December 15, 2013 in Election Law, Right to Vote, Voter ID | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 15, 2013

Saturday, December 14, 2013

Formalism and Employer Liability Under Title VII

The title of this post comes from this article arguing that the Supreme Court's decision in Vance v. Ball State University demonstrates that legal formalism amounts to a ruse for judicial policymaking. Here's the abstract:

Most lawyers, law professors, and judges are familiar with two standard critiques of formalism in legal reasoning. One is the unacknowledged-policymaking critique — that formalist reasoning purports to be above judicial policymaking but instead simply hides the policy decisions offstage. The other is the false-determinacy critique — that formalist reasoning purports to reduce decision costs in the run of cases by sorting cases into defined categories, but that instead of going away the difficult questions of application migrate to the choice of the category in which to place a particular case. Last Term’s decision in Vance v. Ball State University demonstrates that the Supreme Court's complex doctrine on employer liability under Title VII amply deserves each of these critiques. The Court’s formalistic reasoning conceals a series of unacknowledged, undefended, and dubious policy choices. Those choices stand behind the Court’s resolution of the question that triggered substantial debate within the Court — how to define a “supervisor,” whose harassing acts trigger employer liability. They also stand behind the perhaps more important holding, hiding in plain sight, that an employer is liable for harassment by nonsupervisory coworkers only when the employer is itself negligent. To the extent that the Court offered any justification for its decision, that justification was one of crispness and determinacy of application. But, as is often the case with formalist reasoning, the Court’s promises of crispness and determinacy were almost transparently false. In her dissenting opinion in Vance, Justice Ginsburg urged Congress to overturn the Court’s narrow interpretation of who is a “supervisor.” Such an action would solve some of the problems with the Court’s opinion, but it would not go far enough. Rather, Congress should reconsider the entire employer liability structure the Court constructed in the landmark 1998 Faragher and Ellerth cases.

December 14, 2013 in Civil Rights Act | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 14, 2013

Friday, December 13, 2013

Voting Rights Disclosure

The title of this post comes from this recent article arguing that required disclosure of changes to voting rules for only federal elections provides insufficient protection against voting discrimination in state and local elections--in the jurisdictions in which the majority of election changes are made. Here's the abstract:

In "Beyond the Discrimination Model On Voting," 127 Harvard Law Review 95 (2013), Professor Samuel Issacharoff proposes that Congress turn away from what he considers the outdated and “limited race-driven use” of the Fifteenth Amendment and instead protect all types of voters from partisan manipulation using a “non-civil rights” Elections Clause approach. Specifically, Issacharoff proposes that jurisdictions disclose changes to voting rules for federal elections. This Essay argues that Issacharoff’s approach is incomplete. Contemporary discrimination exists and warrants attention — particularly where fast-growing minority populations threaten the status quo. This discrimination differs from simple partisan manipulation, as the discrimination reduces incentives for cross-racial coalitions and fuels racial division. Further, Issacharoff’s choice to move “beyond” race and abandon the Fifteenth Amendment limits his proposal to federal elections. As a result, his proposal would overlook significant problems — at least 86.4% of all election changes that resulted in VRA section 5 objections since 2000 would not have been disclosed under Issacharoff’s proposal. Unlike the high-profile restrictions he targets (e.g., photo ID triggered by “Republican control of the state legislature”), local voting changes missed by Issacharoff’s proposal are often decisive factors in non-partisan elections, attract little national media attention, and go unchallenged by local voters who lack resources to bring lawsuits. Congress should deter voting discrimination by using the Fifteenth Amendment and the Elections Clause to require disclosure of election changes for federal, state, and local offices, as well as to require more detailed reporting than Issacharoff’s proposal. Finally, disclosure alone is not enough. Congress should also strengthen the VRA Section 3(c) bail-in procedure and streamline voting rights litigation. Selecting between the Fifteenth Amendment and the Elections Clause is a false choice, as we can work both to prevent voting discrimination and to improve access to voting for all Americans.

CRL&P related posts:

December 13, 2013 in Election Law, Right to Vote | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 13, 2013

Advisory committee says NSA's mass surveillance should continue under new privacy constraints.

Investigation finds that guns website posts ads from sellers without licenses; Guardian's Michael Cohen claims America's gun carnage continues with no end in sight; and, gun club hopes to curb violence by teaching young people different ideas about guns.

Trial in North Carolina voter ID case is scheduled for July 2015.

Michigan restricts abortion insurance offered through new exchanges.

Civil rights suit alleges deputies pepper sprayed a couple and beat the husband after he held train doors open for his wife; civil rights suit filed after sheriff's deputy makes a man sit and kneel on hot asphalt for nearly half an hour, causing second-degree burns; and, civil rights groups say Dallas PD has a pattern of using excessive force.

Same-sex couples now will receive equal treatment when applying for federal student loans.


December 13, 2013 in Civil Rights Litigation, Election Law, Excessive Force, Fourth Amendment, Gun Policy, Right to Vote, Same-sex marriage, Voter ID | Permalink | Comments (0)

Thursday, December 12, 2013

UPDATE II: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

This comment by Professor Katherine Macfarlane responds to the content of this CRL&P post.

I write regarding Judge Gertner's recent comment.  I am thrilled by the attention and careful read my article, posted on SSRN in August, has received.  It is due to be published in the Michigan Journal of Race & Law next year.  As a result, what appears on SSRN is a draft.  I didn't anticipate that any attention would be paid to it, let alone to my previous employment. 

That said, as most articles posted to SSRN tend to do, the related cases article identifies my current affiliation (with LSU).  My work at the Law Department is disclosed on my LSU faculty page, along with my prior work at Quinn Emanuel, and my federal clerkships. This information has been available on LSU’s website since July.  I am also pretty easy to google—last year I published a short essay in the Huffington Post, and was identified as an Assistant Corporation Counsel.  In July 2013, I published an essay in the New York Observer, and though I was already at LSU by then, my prior affiliation with the Law Department appeared in my byline.  In October, I presented my paper at an academic conference, and discussed the fact that I had previously worked at the Law Department.  In November I wrote another piece about the stop-and-frisk cases for the Observer, and again acknowledged my prior employment at the Law Department.  The Observer piece also mentioned that I had appeared in front of the judge I was writing about. 

Judge Gertner is not the first person to take issue with my writing on this subject (a letter to the New York Observer editor found my piece disappointing, and also referred to me as “this lady”).  What I think may be misleading people is my familiarity with the Daniels and Floyd dockets.  Unlike many more talented and experienced scholars who have written about stop-and-frisk, I used a great deal of sources pulled directly from PACER.  Litigators live on PACER.  But legal scholars do not.  I love the stories dockets tell, and mined the dockets in the cases marked related to Daniels for useful details.  In addition, another rich source of information was CCR's own website, which links to the expert reports the plaintiffs commissioned.  Those reports, as most expert reports tend to do, include the expert’s rate.  

The most frequent criticism I’ve received relates to my “perspective.”  I am happy to admit that I have a very specific perspective, as all legal scholarship should.  And I am of course influenced by my prior work.  My interest in the related cases rule has a lot to do with the time I spent as a federal law clerk.  My interest in civil rights stems from the time I spent at MALDEF and the summer I worked for the outstanding California civil rights litigation firm run by Dan Stormer and Barbara Hadsell. 

But there’s something else going here.  Aside from my docket-heavy research, I also addressed judicial behavior, and named the judge I was talking about.  This, I suspect, has rubbed many the wrong way.  It’s certainly fair to say that the academic response has been decidedly in favor of the stop-and-frisk judge.  I cannot think of any academic amici who have backed the decision to remove her, though there are intellectually defensible arguments on both sides.  The New York Times’ “Room for Debate” series on this topic wasn’t a debate at all—like Judge Gertner, all participants were against the decision to remove.

I joined the Law Department in 2011 and ended my employment there in April 2013.  I worked on about 50-60 cases, some big, some small.  I did not work on any of the stop-and-frisk matters.  For ethical reasons, I would have had great reservations writing about any case I was involved in.  Yet my decision to write about a topic I care about is not that unusual, nor should I be discouraged from doing so.  Former ADAs become defense counsel.  Former law clerks turn journalists.  Former judges become professors. Once in a great while, former city attorneys break into academia.  All of us are shaped by our prior work, and we should be encouraged, not discouraged, to look to our past experiences for guidance, so long as we do so ethically.

December 12, 2013 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

CRL&P Daily Reads: Dec. 12, 2013

How gun control is losing, badly; gun control groups focus on states; report says reducing gun violence requires early intervention for troubled youth; Ana Marie Cox claims Congress is scared of the gun lobby; but, gun control activists are staying positive.

Operator of revenge porn site says it's 'ruining my life', and his court date is scheduled.

Former contractor files a civil rights suit alleging the federal goverment harassed him because of an auto-complete error in Google search; and, Miami Gardens police chief resigns following allegations of racial profiling.

North Dakota Supreme Court weighs arguments in abortion case challenging ban on drugs to terminate pregnancies; and, legislators share personal stories about abortion.

No agreement on court date for North Carolina's voter ID case.

NSA chairman says mass surveillance is the best way to protect U.S.; Judge Napolitano warns about NSA mass surveillance; and, 'The Raven' Revisited.


December 12, 2013 in Abortion, Civil Rights Litigation, Election Law, Fourth Amendment, Gun Policy, Revenge Porn, Right to Vote, Voter ID, Web/Tech | Permalink | Comments (0)

Wednesday, December 11, 2013

California law enforcement arrest operator of revenge porn site

San Diego police yesterday arrested the operator of a revenge porn site and charged him with "31 counts of conspiracy, identity theft, and extortion." According to The Los Angeles Times:

A 27-year-old San Diego man was arrested Tuesday on suspicion of operating a "revenge porn" website and demanding up to $350 to remove sexually explicit photos of women that were often posted by angry former boyfriends or ex-husbands.


Kevin Christopher Bollaert was arrested by California Department of Justice agents and is being held at San Diego County jail on $50,000 bail. He faces 31 felony counts of conspiracy, identity theft and extortion.


"Online predators that profit from the extortion of private photos will be investigated and prosecuted for this reprehensible and illegal internet activity," said Atty. Gen. Kamala D. Harris.


Bollaert allegedly created a website in December 2012 that allows the anonymous posting of nude and sexually explicit photos. The website required that the poster include the subject's name, location, age and Facebook profile.


Prosecutors said more than 10,000 images were posted, from California and other states.

As I have said, I believe that laws that subject to criminal liability people who send sexually explicit images of an ex-lover without their consent could be crafted so as to conform to the First Amendment.  This case, however, raises the more difficult question as to whether online publishers of revenge porn ought to be subject to prosecution.

In Bartnicki v. Vopper, the Supreme Court held that the publication of material illegally obtained by a third party is protected by the First Amendment. The Court said: "In this case, privacy concerns give way when balanced against the interest of publishing matters of public importance...We think it clear that a stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern." 532 U.S. 514, 536 (2001). However, the Court emphasized that its ruling applied narrowly to matters of "public concern," and it is still unclear what qualifies as such. One would think that revenge porn wouldn't qualify...

Further, assuming that revenge porn is a matter of public concern, there is the question as to whether revenge porn could be considered to have been illegally obtained by a third party. Arguably, revenge porn generally is not obtained illegally; the third party presumably received the image (or took it himself) from its subject. 

In this case, the site operator charged the victims of revenge porn to have pictures of them removed from his site, which perhaps makes this case easier. But, suppose he took the pictures down willingly; and/or suppose he did not include the names or locations of the victims... 

These issues and others will continue to arise as more states criminalize revenge porn. Lawyers and legislators will have to draw lines differentiating the legal from the illegal, which will make these debates increasingly interesting for legal scholars--but painful for victims. 

CRL&P related posts:

December 11, 2013 in First Amendment, Freedom of Speech, Revenge Porn | Permalink | Comments (2)

Our Nation has a Secret: Felony Disenfranchisement in America

Yesterday, on HuffPost, the NAACP's Jokata L. Eaddy reminded us that many Americans remain disenfranchised. The title of ths post comes from Eaddy's post, in which she writes:

Laws preventing returning prisoners from voting originated prior to the Reconstruction era in an attempt to stem the growth of the black voting bloc and black electorate. Today, the effects are the same. The latest data reveals that nearly six million people cannot vote because of felony disenfranchisement laws practiced in across 48 states and the District of Columbia. More than two million of those disenfranchised are black.


Florida, Kentucky, and Iowa practice permanent disenfranchisement, erecting impenetrable barriers for people who are no longer incarcerated. Virginia made some strides after an executive order this summer granted automatic restoration of rights to people with non-violent felony convictions; however, that order's future will rely on the Governor-elect's agenda beginning in 2014. Kentucky and Iowa are slowly embracing change, but until those laws are amended in their state Constitutions, like this year's history-making legislation in Delaware, each state is still behind the curve. 

For decades, the United Nations has recognized that the right to vote and the right to be free from discrimination as integral components of our international system. This is why groups like the NAACP, The Sentencing Project, and the ACLU have made continuous efforts to highlight how felony disenfranchisement laws violate these principles and our country's international obligations. This year the United Nations Human Rights Committee signaled that felony disenfranchisement practices would be a priority during a March 2014 review of the United States' obligations to the International Covenant on Civil and Political Rights.


Additionally, a growing number of nations have supported UN resolutions inclusive of language calling on countries to ensure that all citizens are granted the right and opportunity to vote regardless of incarceration status.

While felon disenfranchisement gets comparatively little coverage, I'm not convinced that it's a secret. As I've noted, several potential Republican presidential candidates have stated their support for extending the right to vote to ex-felons. Sen. Rand Paul said so much earlier this year; and, Sen. Rich Santorum and then presidential candidate Mitt Romney exchanged attacks over Santorum's support for such an extension in a 2012 presidential primary in South Carolina. In October, The Atlantic covered felon disenfranchisement and the ways in which it shifts political power away from minority communities; and, The American Prospect recently ran this cover story on the history of felon disenfranchisement. Indeed, because of the commitment of advocates like Eaddy, felon disenfranchisement seems to be of increased interest.

However, Eaddy is certainly correct in suggesting that political progress on the issue has been frustratingly slow. The problem, it seems to me, is that felon disenfranchisement is easily separable from other voting rights issues because of the subjects of the disenfranchisement. Politicians and the media largely ignore issues affecting felons and ex-felons for those that produce political advantages and higher ratings. That is, we know about felon disenfranchisement, but politicians and the media can convince us that the issue is less pressing than others.

For this reason, advocates ought to consider how to align extension of the franchise to felons and ex-felons with ongoing debates over the right to vote more generally. I have made my pitch here

Some helpful law review articles:

CRL&P related reads:

December 11, 2013 in Equal Protection Clause, Right to Vote, Theories of Punishment | Permalink | Comments (0)

CRL&P Daily Reads: Dec. 11, 2013

NSA takes advantage of 'cookies' used for advertising to track surveillance targets.

Federal judge rejects California AG's request for dismissal in case challenging law requiring 10-day waiting period for gun owners.

Cruel and unusual punishment suit after prisoner placed in solitary confinement for one month could cost taxpayers.

American man claims discrimination after the California Department of Corrections denied him a job because he had previously used a false SSN, while in Illinois this guy still has a job.

Amendment aimed at protecting sexual assault victims scrapped as Congress passes the National Defense Authorization Act.

Bill introduced in the Senate to eliminate state laws regulating the sexual activity of people with HIV.

Chinese Law Prof is expelled for criticizing China's one-party government.

Man convicted of a hate crime after attacking a Sikh cab driver to serve more than three years in prison. 

And, a six-year old is suspended after kissing a classmate on the cheek. I wonder if he would have received similar punishment if had hit her.


December 11, 2013 in Civil Rights Litigation, Fourth Amendment, Freedom of Speech, Gun Policy, Prisons and Prisoners, Theories of Punishment, Web/Tech | Permalink | Comments (0)

Tuesday, December 10, 2013

The New Software Jurisprudence and the Faltering First Amendment

In his upcoming article, Professor Liam O'Melinn explores the First Amendment's applicability to computer code and finds that "the new software jurisprudence" is seriously jaundiced because of misunderstandings about the free software movement. The title of this post comes from his article, of which the abstract states:

Courts have recently begun to respond to the call to provide First Amendment protection for software, with ominous results. A debate has raged over the past several years over whether or not computer code should be considered “speech” and therefore be entitled to the full protection of the First Amendment. An examination of important decisions in recent cases attempting to settle this debate requires a revision of the basic assumption that the First Amendment will offer effective protection to programs, their authors, and their users. While there have been judicial decisions which lend credence to the view that the Constitution can be invoked to protect software, subsequent developments in this area, which I term “the new software jurisprudence,” cast severe doubt on the ability of the First Amendment to shield software effectively. These developments include the faults of previous strains of First Amendment analysis and then add more,with the ironic result that the First Amendment may now be used to justify the suppression of expression rather than to prohibit such suppression. 


This line of jurisprudence for software threatens a legal revolution premised on the belief that the specter of copyright infringement represents a perpetual emergency. At the same time, it is evident that this legal revolution will have to contend with a counter-revolution brought about by the free software movement. DeCSS represents only the tip of an iceberg which has thus far escaped real notice by the law, but the movement is becoming so important that it will force itself to be recognized. Indeed, it has already mounted a vigorous and to this point successful assault on the trade secret status of the technology which the movie industry has chosen to protect its content. A full investigation of the importance of this phenomenon lies well beyond the scope of this article; for the moment it must suffice to note that the character of open source software and the people who produce it will challenge the legal and economic assumptions at the heart of the law of intellectual property. Free software is not the product of pirates who steal from others and vend their wares in dark corners. Nor is it brought about by the incentives which, according to conventional thinking, are necessary conditions to creativity. The creation of free software, moreover, is an expressive activity which will leave its impress on the law. 


As time goes on, the free software programmers will require a revision of the now familiar role of equity in copyright law. The high quality of the software they create, coupled with its truly democratic rights of access, will provide the most telling challenge to the notion that only monopolistic economic incentives can lead to creative excellence. Finally, as their favorite mode of expression works a revolution not only in the way we communicate but in our very conception of property, they will effect fundamental changes in the way in which the law links expression and function . Unfortunately, it is not clear that the First Amendment will help them in their work. The courts have promised to develop legal and constitutional standards appropriate to the character of software, but in this effort they have largely failed. When they begin to focus less on the specter of piracy and more closely on the nature of software and the democratic access to information which it promotes, they will come closer to developing a novel and vital jurisprudence and to fulfilling their promise.

December 10, 2013 in First Amendment, Freedom of Speech, Web/Tech | Permalink | Comments (0)