Friday, November 27, 2015
In 2009, the Supreme Court upended the procedures for constitutional litigation. In Pearson v. Callahan, the Court rejected a rigid requirement that in assessing qualified immunity, courts must first address whether a constitutional right was violated and, if so, only then address whether that right was clearly established. After Pearson, where the right is not clearly established, courts have discretion to either dismiss the claim without going further or decide the constitutional question for the benefit of future litigants.
By analyzing over 800 published and unpublished qualified immunity decisions, this Article offers the first comprehensive study on the effects of Pearson in the federal courts of appeals. The results are revealing. Most important, this Article shows that Pearson’s procedural rule may affect the substantive development of constitutional law in at least three ways. First, the data suggests that concerns about “constitutional stagnation” may contain some truth. Specifically, although appellate courts are still deciding constitutional questions most of the time, they may not be deciding certain types of questions. Second, there is disparity among circuits on whether and how courts are reaching constitutional questions after Pearson. Because circuit courts frequently follow each other’s cases, this disparity may give certain circuits an outsized voice regarding constitutional law. And third, it is possible that Pearson may have an asymmetric impact on constitutional doctrine because of the potential overlap between judges’ substantive constitutional views based on their judicial ideologies and their procedural willingness to decide constitutional questions. Over the long run, this asymmetry between judges may shift the substance of constitutional precedent.
All of this suggests that the Supreme Court may be wise to revisit Pearson. To promote a more consistent development of constitutional law, the Article recommends that qualified immunity’s procedural standard evolve once more to require courts to give reasons for their exercise of Pearson discretion — akin to administrative law’s reasoned-decisionmaking requirement. Although Pearson sets forth a number of factors courts should consider when determining whether to exercise their discretion to decide constitutional questions, courts rarely provide their reasoning. This Article demonstrates why that should change.
NYTimes has the story, which begins:
Hundreds of demonstrators on Friday marched down the middle of North Michigan Avenue, the city’s premier downtown shopping district, forcing the police to close the six-lane thoroughfare to vehicles and prompting some businesses to lock their doors for at least part of one of the busiest shopping days of the year.
A mix of ages and races, the protesters marched up and down the avenue, known here as the Magnificent Mile, for several hours, calling for justice in the shooting death of a black teenager by a white Chicago police officer.
“Sixteen shots! Thirteen months!” they chanted, about the number of bullet wounds in the teenager, Laquan McDonald, and the length of time it took to bring charges this week against the officer. The Rev. Jesse L. Jackson and Representatives Danny K. Davis and Bobby L. Rush marched with the crowd as rain fell and a blustery wind swept through.
Groups demonstrated Friday in other cities, including Seattle, Minneapolis and New York, linking their protests over police conduct and the treatment of black people to a day when the nation’s focus is usually on the Black Friday shopping frenzy.
Wednesday, November 25, 2015
The rise of the sharing economy raises important new questions about public accommodations law. Some have argued that the sharing economy has the power to reduce or even eliminate discrimination on the basis of race in traditional public accommodations such as housing rental, transportation, and commerce.
Are these optimists correct? Is discrimination a problem in the new economy? If discrimination is not a problem in the new economy, why is the new economy different from the old economy? If discrimination remains a problem in the new economy, what form does such discrimination take? And what legal mechanisms can we use to address it?
In this Article, I argue that the new economy has not solved race discrimination in public accommodations, and, indeed, that it has raised new concerns that civil rights law must evolve to address. Most obviously, the online platforms that form the basis of many sharing economy businesses often make race salient to both parties to a transaction, which facilitates discrimination without the parties ever coming face to face with one another. Such discrimination may be rooted in either conscious or unconscious bias. Available evidence suggests that this relatively traditional form of discrimination affects the sharing economy to the same extent it affects the traditional economy.
Perhaps more troublingly, the sharing economy also facilitates new forms of discrimination by aggregating the experiences of many economy participants over time. Businesses such as Uber and AirBnb allow service providers (drivers; landlords) to rate service users (passengers; renters). Over time, these ratings aggregate the preferences of many service providers, and to the extent that the service providers are consciously or unconsciously biased, members of disfavored racial categories will gradually average lower ratings than their more favored peers. On the basis of this seemingly objective rating, service users who are members of disfavored racial categories may begin to receive worse service, or, eventually, to be denied service altogether.
The Article proceeds in four parts. Part I traces the history of public accommodations law, from its contested early roots to the Civil Rights Act of 1964 to its uneasy status today. Part II turns to the new economy. It describes the features of that economy, explains the hopes of some that the new economy offers a solution to racial discrimination in public accommodations, and then offers evidence suggesting that such hopes are unfounded. Part III considers available legal mechanisms to combat discrimination in the sharing economy. While such mechanisms offer considerable promise in many situations, they ultimately fail to address completely the unique way in which discrimination operates in the sharing economy. Part IV, then, calls for new antidiscrimination laws to take account of the unique features of the new economy, and briefly describes the form such laws should take.
The number of capital murder indictments filed across the state since 2010 has plummeted by 77 percent, as just 19 have been brought this year.
During the same time period, the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.
The Ohio numbers mirror a national trend involving the death penalty. Legal experts cited the high costs of taking a capital case to trial. They also said decades of appeals make the death penalty extremely burdensome on the criminal justice system and traumatic for victims' families.
The death penalty is on the decline in America. Executions hit a 20-year low in 2014, and most recently, Nebraska became the first conservative state in 40 years to repeal capital punishment. Several other states, from Pennsylvania to Colorado, have put executions on hold. There are several reasons states are doing this — starting with popular opinion.
Tuesday, November 24, 2015
"EEOC v. Abercrombie & Fitch Stores, Inc.: Mistakes, Same-Sex Marriage, and Unintended Consequences"
In EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court held that a job applicant need not notify an employer of a needed religious accommodation in order to bring a claim of religious discrimination under Title VII of the Civil Rights Act. The decision has been heralded as a victory for religious employees and job applicants. Although Abercrombie is certainly a victory for many of these individuals, it is not clear that the decision will always be beneficial to religious employees. Indeed, while the decision enhanced protections for job applicants with clear religious accommodation it may have inadvertently penalized a different class of religious job applicants — those who convey only subtle signs of religious belief.
Soon, SCOTUS will hear oral arguments in Fisher v . University of Texas at Austin II over whether the University of Texas's admission plan is constitutional. Texas residents who finished in the top 10% of their high school class are admitted automatically. This accounts for 80% of admissions. For the remaining 20% of applicants, the university uses a long list of factors in making a determination, one of which is race. Proponents claim that UT's policy is necessary to achieve the legitimate aim of promoting institutional diversity. Opponents, however, allege that it violates the Equal Protection Clause of the Fourteenth Amendment arguing that the goal of diversity can be achieved without taking race into account, and by using race, UT is unfairly advantaging minority students.
Today, the U.S. Commission on Civil Rights announced its support for UT's policy. The commission states in part:
The U.S. Commission on Civil Rights believes that the University’s admissions policy is indeed narrowly tailored to serve the compelling interest of securing the educational benefits of a diverse student body. Accordingly, the 5th Circuit’s determination that the University’s admissions process does not violate the Fourteenth Amendment should be affirmed...
Throughout its history, the Commission has expressed its strong belief in the benefits of diversity in educational settings. In our 1975 report Twenty Years After Brown: Equality of Educational Opportunity, the Commission found it appropriate “to provide the equal educational opportunity that segregation inherently denies and to permit all pupils to develop the understanding and appreciation of each other that inevitably will result in a more equitable society for all Americans.”...
A ruling further restricting the admissions process or eliminating the consideration of race altogether will diminish the vibrant university learning experience. It will have grave consequences for many schools across the nation and students of all backgrounds. The constitutional validity and educational benefits of the University’s admissions process are clear. The Commission supports the University of Texas in this case and encourages the Supreme Court to uphold the University’s admissions process.
The commission's entire statement can be read here.
SCOTUS will hear oral arguments on December 9, 2015.
Wednesday, November 18, 2015
Yesterday, noting this Dallas Morning News article on his blog Sentencing Law and Policy, Professor Douglas Berman asked whether it's appropriate for lawyers to cease representing a death row client because existing "political realities" make a stay of execution extremely unlikely. The Fifth Circuit didn't see a problem with it, but final resolution of the question remains in SCOTUS's hands.
Here are the basics:
From his cell on death row, Raphael Holiday drafted letter after desperate letter to lawyers who represent the condemned. He begged for their help to plead for mercy from Gov. Greg Abbott, to try any last-ditch legal maneuvers that might stave off his impending execution.
Holiday’s appointed lawyers had told him that fighting to stop his punishment was futile, and they wouldn’t do it. The 36-year-old thought he’d be left to walk to the death chamber with no lawyer at his side.
Less than a month before his execution — scheduled for Wednesday — Holiday secured help. Austin attorney Gretchen Sween agreed to ask the court to find new lawyers willing to try to keep him from dying.
But Holiday’s federally appointed lawyers — the ones who said they would do no more to help him — are opposing their client’s attempts to replace them.
Now, just hours before he is set to face lethal injection for burning to death three children, including his own daughter, Holiday is awaiting word from the U.S. Supreme Court on his latest request for help.
UPDATE: A state judge stayed Holiday's execution earlier today citing unresolved legal issues, according to this Reuter's report, which states:
A Texas district judge on Wednesday halted the execution of a 36-year-old man, hours before he was due to be put to death by lethal injection for killing his daughter and two stepdaughters in a mobile home blaze in 2000.
The Texas Attorney General's office appealed, trying to win a ruling that would allow the execution of Raphael Holiday to proceed. It had been planned for 6 p.m. at the state's death chamber in Huntsville.
"The main factors for the decision were some additional issues under the law that had not been addressed previously," Madison County district Judge Hal Ridley told Reuters by telephone.
One of those items was testimony allowed in previous trials that may not be admissible under current standards, he said.
When I opened this article from a NBC-local in the San Fran area, I definitely immediately thought, "Of course you would, San Francisco." But, then I read on:
Lowell resident Lindsay Miller said Friday that she "absolutely loves the history and the story" of Pastafarians, whose website says had existed in secrecy for hundreds of years and entered the mainstream in 2005.
Miller says wearing the spaghetti strainer allows her to express her beliefs, like other religions are allowed to do.
A spokesman for the Massachusetts Registry of Motor Vehicles says policy does not permit head coverings or hats on license photos, but exceptions are made for religious reasons.
So, the Massachusetts RMV is all in for protecting religious liberty, and I apologize to the good citizens of San Fran.
...reads the title of this recent ProPublica article by Lauren Kirchner. Responding to recent calls for increased mass surveillance since the terror attacks in Paris (e.g., here), she lays out reasons to be skeptical about the effectiveness of mass surveillance in the first place.
Wednesday, November 11, 2015
"Of Visible Race-Consciousness and Institutional Role: Equal Protection and Disparate Impact after Ricci and Inclusive Communities"
When Ricci v. DeStefano was decided in 2009, I identified three possible reading of that case, one of which would be fatal to statutory disparate impact standards and two of which would not. Inclusive Communities strongly suggests that the fatal reading will not prevail. The two readings that remain viable are the "institutional reading," on which Ricci restricts the freedom of employers to remedy their own disparate-impact problems without similarly restricting the ability of courts to order disparate-impact remedies, and the "visibility reading," on which the key question about any given disparate-impact remedy is the degree to which its race-conscious aspect is publicly visible. Inclusive Communities seems to reinforce the visibility reading and to suggest that visibility will be an important element of the Court's forthcoming decision in Fisher v. Texas.
Saturday, November 7, 2015
"Disparate Impact and the Role of Classification and Motivation in Equal Protection Law after Inclusive Communities"
At least since the Supreme Court’s 2009 decision in Ricci v. DeStefano, disparate impact liability has faced a direct constitutional threat. This paper argues that the Court’s decision this past Term in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., which held that disparate impact liability is available under the Fair Housing Act, has resolved that threat, at least for the time being.
In particular, this paper argues, Inclusive Communities is best read to adopt the understanding of equal protection that Justice Kennedy previously articulated in his pivotal concurrence in the 2007 Parents Involved case — which argued that state actions that do not classify individuals based on their race are not constitutionally suspect simply because they are motivated by the purpose of integrating the races. Applying that understanding, Inclusive Communities makes clear that disparate impact need not surrender to equal protection, but that the Constitution demands some limitations on disparate impact liability. Although the limitations should make a difference at the margins, they are not nearly as severe as some may have feared.
The broader goal of this piece is to offer an account of how the principle that Justice Kennedy articulated in Parents Involved, and that the Court seems to have adopted in Inclusive Communities, fits into prior equal protection doctrine. The piece argues that this interpretation of equal protection represents the most attractive approach consistent with the decided cases. But although the Inclusive Communities approach to equal protection represented the best path available to the Court in light of prior cases, it has substantial drawbacks. In addition to ignoring key normative considerations, the Court’s formalistic focus on the existence or nonexistence of a classification as a trigger for strict scrutiny is likely to prove unstable.
Wednesday, November 4, 2015
Ernest Lee Johnson killed three people with a claw hammer in 1994, and he was sentenced to death for it. Since then, however, he has had surgery to remove a tumor on his brain. He now argues that lethal injection could cause him to suffer seizures; thus, his execution would violate his constitutional right not to be cruelly or unusually punished.
A federal district court dismissed Johnson's argument. Yesterday, SCOTUS determined that the execution must wait for the Eighth Circuit to decide whether that dismissal was proper.
See WaPo's report here.
The Atlantic's Russell Berman has this take on the recent vote in Houston, TX repealing a city ordinance aimed at protecting transgender folks from discrimination. Berman begins:
The nation’s fourth-largest city has elected a lesbian mayor three consecutive times without much controversy, and in 2014, its city council approved an ordinance protecting residents from discrimination based on sexual orientation, gender identity, and 13 other factors. But when that same proposal came before the electorate on Tuesday, it lost out to an opposition campaign armed with a startlingly simple message: “No men in women’s bathrooms.” Opponents led 61 to 39, with 66 percent of the precincts reporting on Tuesday night.
After a hard-fought campaign that drew national attention from Hollywood celebrities and presidential candidates, voters rejected the Houston Equal Rights Ordinance, or Proposition 1, handing a victory to conservative critics who argued that its expansive protections for transgender people could endanger women and children.
Championed by the city’s outgoing mayor, Annise Parker, the ordinance represented an early test of the gay-rights movement’s effort to guarantee that Americans who just secured the right to marry would not face discrimination in employment, housing, or public accommodations. Many of the classes listed in the ordinance—race, sex, age, and religion, among others—are already protected under federal law, but sexual orientation and gender identity are not.