Thursday, June 30, 2016

Overview of ABF Research (Part III): Law & Globalization and Legal History

In this last post on ABF research, let me describe two parts of our research portfolio that reflect both our sense of the past and our transnational perspective on the present.  From its founding in the 1950s through today, the ABF has been focused on studying how law, legal institutions, and legal processes operate across place and time.  Our scholarship and programming on law & globalization and our work in legal history reflect these enduring commitments.

Let me start with a brief description of our research on law & globalization.

Continue reading "Overview of ABF Research (Part III): Law & Globalization and Legal History"

Posted by Ajay K. Mehrotra on June 30, 2016 at 06:37 PM in Books, Constitutional thoughts, Criminal Law, Law and Politics | Permalink | Comments (0)

Same-sex marriage, religious opt-outs, and constitutional procedure

On Monday, Judge Reeves of the Southern District of Mississippi declared that Mississippi cannot statutorily authorize county clerks to opt-out of issuing marriage licenses to same-sex couples based on religious objections to same-sex marriage (the law was enacted soon after, and in response to, Obergefell). But the order was entirely bound-up in the procedure of constitutional litigation, particularly with respect to marriage. Refreshingly, Judge Reeves took his time on the process and got it right.

Continue reading "Same-sex marriage, religious opt-outs, and constitutional procedure"

Posted by Howard Wasserman on June 30, 2016 at 02:38 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

JOTWELL: Malveaux on Marcus on public interest class actions

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing David Marcus, The Public Interest Class Action (Geo. L.J.), which considers the special role of the public-interest, equitable-relief class action and how to shield it from the Court's recent narrowing decisions.

Posted by Howard Wasserman on June 30, 2016 at 02:11 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

The Middle of America?

It is something beyond a truism at this point that we live in increasingly ideologically divided times with increasingly ideologically coherent political parties battling each other (even after Donald Trump's success in the primaries!).  When one party controls a branch of government, it tends to push that branch of government either to the left or to the right based on which party is controlling that branch of government.  

Imagine that I told you, then, that one branch of government in the past few weeks had taken actions that had the following practical effects: making it harder to regulate abortion; making it easier to have affirmative action policies; and making it harder to have immigration reform.  Three salient issues, two liberal results, and one conservative result.  This might sound like the ideological valence of a President or a Congress from the middle of the twentieth century, but not of the start of the twenty-first century.   

With all of the reports of the Court moving to the left, it is notable how much the Court still sits more to the center than the other branches of government.  It might be moving one way or another, or about to move one way or another, and we might not know entirely why, but my sense is that it even this year it still tends to sit more in the middle of American public life more often than the other branches of government are.

Posted by David Fontana on June 30, 2016 at 11:34 AM | Permalink | Comments (0)

Should the Supreme Court Go Public?

I appreciate the fantastic comments on my earlier post regarding Justice Sonia Sotomayor's dissent in Strieff.  These comments raised great questions related to Strieff itself, as well as larger issues related to public outreach by the Justices.  I want to write something short about the latter issue.

Why doesn't the Supreme Court engage in more and more significant public outreach? This public outreach is fairly common for state court judges to do.  I can still remember members of the press office of the Florida Supreme Court standing out front of the courthouse to announce how the Florida Supreme Court had resolved the presidential election controversy in 2000.  Of course, though, large numbers of state judges must stand for election. 

There is a whole literature in political science about foreign high courts engaging in public outreach.  Two of the leading works in that area are Jeffrey Staton's great book on the Mexican Supreme Court, and Georg Vanberg's equally great book on the West German Constitutional Court.  American scholars have started to think about this issue more, but they are analyzing subtle rather than salient outreach efforts by Justices.

Continue reading "Should the Supreme Court Go Public?"

Posted by David Fontana on June 30, 2016 at 11:33 AM | Permalink | Comments (5)

Wednesday, June 29, 2016

The Many Constitutional Laws

The primary field of scholarship that I write about is constitutional law.  It has occurred to me in my writing this summer how much constitutional law has subdivided itself--and how common it is for academic fields to do that as both cause and effect of their increasing prominence.  New scholarship begets new scholarship, and new sub-fields beget new sub-fields.  

It would be absurd to think that there is just one area of political science, for instance.  Michael Sandel is doing something very different than what Robert Dahl was doing;  Adam Przeworski is doing something very different than what Hans Morgenthau was doing.  Because and as political science became more and more complicated, it had and has an increasingly plausible claim to subdividing itself.  To respond to the sophisticated claims of a specialist, it requires the equally sophisticated claims of another specialist.  

Continue reading "The Many Constitutional Laws"

Posted by David Fontana on June 29, 2016 at 04:51 AM | Permalink | Comments (0)

Zero and Positive Sum Psychology

One of the best academic theories to help us explain the passionate divide regarding Brexit or Donald Trump's success is the so-called "zero-sum bias."  Empirical research has suggested that many people tend to understand life as essentially zero sum.  If some other individual or group is gaining more of something, then there is less of it left for other individuals or groups.  Immigration, then, means more for other people and less for my people.  If one team wins, then one team loses.

Others understand competition as positive sum.  Voluntary exchanges benefit all parties to the exchange.  Immigration, then, means more for other people and more for my people as well.  Both teams win.

Posted by David Fontana on June 29, 2016 at 04:47 AM | Permalink | Comments (3)

Monday, June 27, 2016

Veep, S5E10

Sunday's season finale played out the constitutional election/selection/succession contingencies to the last, producing what, in reality, would be a genuine constitutional  and political crisis. And it leaves the show in the position of a genuine reboot when it comes back next season, which presents some interesting possibilities.

Continue reading "Veep, S5E10"

Posted by Howard Wasserman on June 27, 2016 at 05:09 PM in Constitutional thoughts, Culture, Howard Wasserman | Permalink | Comments (5)

Posner is Much More Right Than Wrong

Three passages from the new Slate Breakfast Table are getting a lot of play today among law professors. I no longer read Slate if I can help it, but this was a fun conversation. The first is from Richard Posner, complaining about a widening gap between the legal academy and the judiciary. This is the subject of his most recent book, which I reviewed here, and one is better off reading the book than the post. 

The second is a reply from Dawn Johnsen. She writes, in part:

I do not perceive law professors as pandering to the justices or as generally reluctant to speak truth to power. It may be that few employ Judge Posner’s sweeping style or reach conclusions as extreme. But the law journals are filled with substantive and harsh critiques. That’s what we do.

A better question is how much of that writing is worth reading. Is Judge Posner right that law professors are, well, too academic? At one level, I would say clearly yes—as have many others, over many years. . . . On the other hand, numerous of my academic colleagues have done serious full-time stints in government and nonprofits, typically by taking leaves. Many more engage deeply with real-world practical experience, even while teaching, be it through litigating and filing amicus briefs; serving on nonprofit boards; working with legislators and other elected and appointed officials; blogging for Slate or SCOTUSblog, Lawfare, Just Security, Volokh, or themselves. The American Constitution Society just announced a new Board of Academic Advisors filled with wonderful law professors who are deeply engaged with the world outside of the academy.

And the third is Posner's response. Again in part:

I don’t doubt that law professors are frequently active outside the classroom and that their academic work sometimes addresses practical issues, but what I’d like to see is evidence of impact. Amicus briefs? Working for nonprofits? Blogging? “Speaking truth to power?” Absurd: speak all you want, professors, power doesn’t listen to the likes of you. 

I think Posner's book is deeply flawed, as I write at length in the review, and that his initial post is overstated. That said, I think his reply is right on the money. Johnsen raises some very peculiar, perhaps tellingly peculiar, arguments in response to him. Whatever the phrase "speaking truth to power" means, it is ill-chosen here. Law professors do indeed sometimes speak truth to power. But most of the time, at best, they speak truth about power, which is not at all the same thing. Speaking truth to power requires one to speak directly to an audience of the powerful and for the powerful to be listening. Burying a criticism of the powerful in the middle of an over-long law review article in a journal likely to be read by few--few law professors, let alone lawyers, law clerks, and judges--does not require much by way of fortitude. It amounts to whispering, with footnotes, into the void.

Whatever the phrase "engage deeply with real-world practical experience" means--how does one engage with experience?--her examples are weaker than she apparently supposes. Without doubt, some law professors--even a large number, although small compared to the total number of law professors and smaller still in the top tiers of the legal academy--have practical experience and continue to make use of it. I applaud them for it. (Provided, of course, that they maintain a distinction between their legal work and their academic intellectual work, which, for better and worse, is supposed to operate by different standards.) And some law professors write amicus briefs--rather than merely signing them, which requires no practical experience and gives one no new practical wisdom. Those are exceptional cases. Some of the other examples are relevant but rare. The activities she cites that are actually most commonly engaged in by law professors have nothing to do with "engaging with practical experience." Writing an op-ed or blog post does not require practical experience and does not conduce to it. The best-placed op-eds I have written drew on my academic expertise and a soupçon of, God willing, wisdom and common sense, but not on any practical experience. I regularly receive emails with recent op-eds by Bruce Ackerman. They're very good and so is he, but they are hardly underwritten by practical experience.

The notion that serving on the ACS "Board of Academic Advisors" has much if anything to do with "engaging with practical experience" is quite absurd. Even as a list of examples of practically engaged lawyers it is questionable, since some of them have little practical experience and, for others, their primary practical experience is in public advocacy and propaganda, not lawyering. As should by now be expected, Johnsen raises as a counter-example to Posner the go-to case of Randy Barnett. He has indeed had a good deal of real-world influence. But I know no law professors who do not believe, openly or quietly (and law professors are even more polite and flattering to each other than they are to judges--far too much so), that Barnett's influence has grown proportionally as he has focused more on public advocacy and meme-propagation and less on genuine academic work. 

You can read my review to see how much I think Posner has strayed recently from his best work, and how overstated I think some of his current claims are. But I think he is generally right in his current complaint, although one can read it descriptively without sharing completely his normative views about what law professors ought to be doing. (That turns out to be, essentially, echoing Posner's own views and serving as adjuncts to the federal judiciary.) And he is right in spades in his response to these rear-guard defenses of the "relevance" and "engagement" of the legal academy. If our defense rests on "speaking truth to power," we are in serious trouble.

Interesting in both cases--with respect to Posner's posts and those of his Breakfast Table critics alike--is the focus on influence at the level of national politics or the federal judiciary. Those law professors most likely to have serious practical experience reside in the "lower" ranks of the legal academy, and they--and all of us--would be better off focusing on gaining experience and seeking for influence at the local and state level. But law professors are status-seekers, and that kind of engagement brings no rise in status. And aside from that, there is a difference, swiftly elided by all the Breakfast Table talkers, between having practical experience and seeking or wielding influence. There are plenty of reasons to favor the former, but also plenty of reasons to question the latter as a goal. I think it is right that more legal academics should have practical experience, and do not except myself from the criticism. But it is hardly clear that they should have or seek influence, especially national legal or political influence. In a moment in which large numbers of people are questioning the arrogance or blindered perspective of elites, and in which academics have lost a good deal of their academic authority by departing from serious academic standards in the interest of political engagement, surely there is room to pause before concluding that it's a good idea to stir hundreds more politically engaged, epistemically-closed elites into the mix. 

 

 

Posted by Paul Horwitz on June 27, 2016 at 10:18 AM in Paul Horwitz | Permalink | Comments (7)

Sunday, June 26, 2016

Dan Markel Memorial Lecture July 23 in DC

Friends, 

If you are in Washington DC in July please make a note in your calendars. Matthew Price will give a d'var Torah on Shabbat morning, titled “Reflections on Friendship,” in memory of Dan Markel, z”l, on the occasion of his yahrzeit. Dan was a beloved friend of many members of Ohev Sholom. Saturday, Jul 23 Dan Markel Memorial Lecture Time: 11:00 am.

 

Posted by Orly Lobel on June 26, 2016 at 11:57 PM | Permalink | Comments (0)

Friday, June 24, 2016

Overview of ABF Research (Part II): Diversity & Inclusion and Access to Justice

My apologies for the long gap between posts about ABF research.  I’m clearly not as prolific as other guest bloggers.  In fact, I don’t think I can read as fast as David Fontana can blog.  Well done, David! 

Let me see if I can pick up the thread on the different parts of the ABF’s research portfolio.

In addition to Criminal Justice and Legal Education (described in my previous post), ABF research has also focused on the important topics of Diversity & Inclusion in the Profession and Access to Justice.  Like most ABF research topics, these two aren’t self-contained or isolated areas of scholarship and programming.  In fact, they often blend together.

Let me begin by describing some of our work on Diversity & Inclusion in the Profession. 

Continue reading "Overview of ABF Research (Part II): Diversity & Inclusion and Access to Justice"

Posted by Ajay K. Mehrotra on June 24, 2016 at 11:14 AM | Permalink | Comments (0)

Annual Law and Religion Roundtable

With Nelson Tebbe and co-blogger Rick Garnett, I have been an organizer of something called the Annual Law and Religion Roundtable ("ALRR" for short) for the past seven or so years. (Accuracy rather than modesty compels me to say that Nelson and Rick are the real heroes here and do the lion's share of the organizing work.) This kind of informal but organized subject-matter conference has become pretty common in recent years and has a been a wonderful development. I share the view of a number of participants that the ALRR is the conference I most look forward to every year; I even scheduled my annual summer surgery around the conference this year. This year the conference was held in Montreal at McGill University, with the generous support of McGill and various centers there, as well as Notre Dame Law School's Program on Church, State, and Society; the co-hosts at McGill were Jacob Levy of McGill's political science department and Victor Muniz-Fraticelli of McGill's Faculty of Law. (Check out the terrific recent books from Levy and Muniz-Fraticelli.) 

A word or two on these kinds of conferences generally and on this year's roundtable in particular. For obvious reasons, these conferences are much better than general conferences like the AALS. They are generally pay-your-own-way affairs, although McGill and Notre Dame were generous in their support of conference resources and a fabulous dinner. Our approach with the ALRR has been to hold it at a different host school every year, to spread the organizing costs, stay a step ahead of the creditors, and make sure that it's easier for folks in different regions to attend the roundtable. (I am reminded every year of Guys and Dolls and the "oldest established permanent floating crap game in New York.") The guest list is large but not too large and never entirely fixed, and we try to ensure some rotation in and out of the roster. An important aspect of the roundtable is our desire to ensure a mix of senior scholars and junior and/or up-and-coming scholars in the field. Not only do we benefit a good deal from the ideas and energy of the junior scholars, but all three of us have benefited from the kindness of senior scholars in law and religion and would like to keep the virtuous cycle going. Participants are expected to read everything before they show up and presenters (not everyone presents every year) are expected to keep their remarks short so we can focus on questions and discussion. For the past few years, we have included a "hot topics" panel or two, to focus on new developments and give an opportunity to people who want to present but don't have a developed paper in hand. We generally try to make some invites outside the legal academy, to scholars of religion, political theory, history, or what have you, although we've been less successful in that. Dropbox makes it even easier to facilitate the whole thing.  

I used to joke that the one problem with the roundtable was that there was too much damned pleasantness and agreement. Changes in the field and high-profile cases in the last three or four years have changed that to a degree, as has the fact that the composition of the room and of the broader church-state discussion has changed as more scholars who focus primarily on equality have taken up religion-related issues. That has been a valuable development on the whole, albeit one that can raise the temperature of the discussion. Over time, I have come to appreciate that one benefit of the subject-area annual roundtable is that one gets something of a real-time picture of what "problems" are coming to the fore or fading to the background and of changes in the center of gravity or consensus on law-and-religion issues.   

Two notable features of the roundtable this year were the presence, obviously, of a substantial number of Canadians, and a larger number of political theorists and other non-law-school faculty. (A personal note: I graduated, around the dawn of time, from McGill, and it was a real treat to be back on campus and have ready access to the vastly superior Montreal bagel. As a partially Canadian-trained lawyer, it was also an honor to meet Canadian scholars whose work on law and religion whose work I have followed and respected for years.) The cross-border element was incredibly useful in ways both expected and unexpected. American and Canadian scholars learned a great deal from each other on the details of cases and the similarities and differences between the two countries on church-state law. More unexpectedly, the cross-border element of the conference and the presence of more non-law scholars changed the tone and nature of the discussion, altering the map of the room and disrupting the tendency to line up on opposite sides of particular hot-button cases. It was an interesting lesson in the unanticipated benefits of comparative constitutional law.  

Thanks again to McGill, Notre Dame, Rick and Nelson, and the participants for a really fruitful and interesting discussion. If your field does not have an annual roundtable of this sort, I encourage you to start one up, and any of us would be happy to offer advice.  

Posted by Paul Horwitz on June 24, 2016 at 07:48 AM in Paul Horwitz | Permalink | Comments (0)

Whole Women's Health

Three cases remain to be decided this term--Whole Woman's Health, McDonnell v. US, and Voisine v. US. Of these, only WWH seemed even remotely likely to be a 4-4 affirmance. The Court issued two 4-4 affirmances on Thursday, in DAPA and Dollar General. Can we conclude, therefore, that WWH is not going to be a 4-4 affirmance? Is there any reason the Court would issue two divided affirmances today but hold one out until next week?

If not a 4-4 split, the next likely result is a 5-3 opinion declaring the TRAP regulations unconstitutional, with Kennedy joining Ginsburg, Breyer, Sotomayor, and Kagan, and Kennedy assigning the opinion. If so, WWH will offer a nice counterpart to Fisher. As Steve pointed outFisher marks the first time Kennedy has declared valid a racial preference. WWH would mark the first time Kennedy has declared invalid a restriction on abortion since he co-authored the joined opinion in Casey.

Posted by Howard Wasserman on June 24, 2016 at 12:44 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Thursday, June 23, 2016

A University Without Professors

What is essential to the concept of "university," and what could we live without? Professor Clayton Christensen has launched an institute to encourage "disruptive innovation" in education. But the founders of Forest Trail Sports University have gone beyond even what Chirstensen might have imagined, dialing their proposed disruption to eleven. They have 200 students committed to attend their new university for the fall, and they have entered into a lease with the financially struggling Barber-Scotia College to use its classrooms, libraries, and dormitories. No need for professors, though--Forest Trail students will simply enroll in online classes through Waldorf University, and "classes will be 'piped in' to classrooms at Barber-Scotia." So what's the point of founding a new university, especially one that costs $38,700 a year?  It's right in the name--sports! They might not have professors, but they do have coaching staff. Students will be attending primarily for the purpose of athletics, including baseball, softball, basketball, soccer, volleyball, track, cross country, tennis, and golf, with a plan to add lacrosse. They already have 30 basketball games scheduled, and they haven't even opened yet! However, the founders may have gotten ahead of themselves--apparently they failed to register with state regulators

Posted by Cassandra Burke Robertson on June 23, 2016 at 09:16 PM | Permalink | Comments (3)

A Different (First Amendment) World

Today the British vote in their hugely consequential EU referendum.  The British rules about what can be covered on the day of an election are so interestingly different that I thought I would link to them.

Posted by David Fontana on June 23, 2016 at 03:32 PM | Permalink | Comments (1)

What now on DAPA?

Today's 4-4 affirmance of the injunction against DAPA leaves things in obvious flux. There are several considerations affecting might happen now--legal, procedural, and political.

Procedurally, the next move is a trial on the merits and, as the trial judge has tipped his hand, likely entry of a permanent injunction. Then we go back up the ladder, presumably back to SCOTUS, by which point it will be back up to a full roster. I have heard suggestions that the government might seek a quick permanent injunction (if a defendant has no new evidence, the court can  convert a preliminary injunction into a permanent injunction without a trial or further hearing) and expedited review to SCOTUS. Given my long-standing position that there will not be a ninth Justice until the start of OT 2017*, I am not sure this will achieve anything, until the hope is that SCOTUS would stay the permanent injunction pending review (which, of course, does nothing about the preliminary injunction that remains in place until final judgment).

[*] Assuming, of course, that a Republican Senate does not continue to refuse to allow an appointment because, even though the people have spoken, the real governing principle is that Democratic presidents do not get to make Supreme Court appointments.

Legally, the United States could attempt to apply DAPA outside of the eight states that brought this suit. Although the district court purported to issue a nationwide injunction, I do not believe a district court has that power. The United States is enjoined from enforcing DAPA only as to the plaintiff states, and no one else is protected by the injunction;** this was not a class action and there is nothing that legally makes this relief indivisible. The precedential force of the constitutional analysis supporting the injunction is limited to the Fifth Circuit. And SCOTUS's affirmance of that analysis does not create binding precedent. So nothing in the Constitution or any court order prohibits the United States from enforcing DAPA in, for example, California, especially if California does not object.

[**] For much the same reason that Obergefell did not, of its own force, require Texas to issue marriage licenses, a position Texas happily adopted a year ago.

Politically, I do not see this happening.  It would take too long to explain to the public concepts such as scope of an injunction, regional precedent, and non-precedential SCOTUS affirmances. Instead, this would play in the public as the administration ignoring a court order, one seemingly emanating (or at least endorsed by) SCOTUS. [Update: I imagine the government also wants to avoid a situation in which it enforces the immigration laws differently in 42 states than it does in the other eight.]

Posted by Howard Wasserman on June 23, 2016 at 02:17 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Authoritarian Law Schools

One of the classic stories of how dictators maintain power is the selective distribution of patronage.  It turns out that law schools can be part of that patronage.  Many dictators have cared quite a bit about regulating legal education as a means of ensuring coercive control.  In my work with a few newly democratizing countries, and in some preliminary research, I have discovered that it turns out that a very controversial issue in creating (or re-creating) a legal system can be how many law schools there are in that country.  Dictators have favored increasing the number of law schools in several countries--places in North Africa and the Middle East are those I am most familiar with--as a means of ensuring coercive control.

More law schools means more lawyers, and more lawyers means that lawyers have lesser social status and lesser wealth.  Lesser status and wealth makes lawyers less powerful and therefore less threatening to dictatorial control.  More law schools also means more governmental resources being distributed to more--and potentially more geographically distributed--parts of a country.  Just as other forms of governmental resources can be used to buy off threats, so too can resources in the form of the creation of new law schools.

Posted by David Fontana on June 23, 2016 at 08:50 AM | Permalink | Comments (5)

Interdisciplinarity and Campus Design

There are at least a handful of law schools that are exceptions to what I will write below, but one of the major problems facing legal scholars (or any scholars) that want to be interdisciplinary is the simple physical isolation of their offices.  Common problems that prevent interdisciplinary research have been noted before--such as discipline-specific hiring, publishing, and tenuring.  

Another problem that deserves attention is that law schools (like other academic departments) tend to be physically distant from scholars in other parts of the university doing other work.  This is even more dramatic for law schools, because they tend to have their own buildings, not just a floor in the same building as scholars affiliated with other departments.  We know from economic geographers that physical proximity leads to more informational spillovers.  It is quite hard for law professors to learn from and work with people who they have to make quite an effort to see on a regular basis.  Law schools can hire those with degrees from other disciplines, but as these faculty are more and more physically distant from their former discipline they are more and more intellectually distant from those disciplines as well. If you want interdisciplinary work, you need interaction; if you want interaction, you need proximity.

Posted by David Fontana on June 23, 2016 at 08:35 AM | Permalink | Comments (1)

Tuesday, June 21, 2016

Justice Sotomayor's Dissent in Strieff

I have written before of Justice Sonia Sotomayor's unique public profile, as represented in part by her judicial opinions. This style is characterized in substantial part by the accessibility of her arguments to the public.  There is no better illustration of this than her dissent yesterday in Utah v. Strieff. Her invocation of language and sources from a range of publicly known authors--such as Ta-Nehisi Coates--has already led to her dissent receiving substantial amounts of public attention.

But notice one other feature of her dissent: the part of it that makes these publicly accessible arguments was joined by no other Justice. Indeed, Justice Sotomayor explicitly states in that part of her dissent that she is "[w]riting for myself." There were two other dissenting Justices in that case (Justice Ruth Bader Ginsburg and Justice Elena Kagan).  Only Justice Ginsburg joined any part of Justice Sotomayor's dissent, and Justice Ginsburg did not join that last part of the Sotomayor dissent.

Is it because Justice Sotomayor states in her dissent that it is based on "my professional experiences," and it would be inappropriate for Justice Ginsburg (or Justice Kagan) to join a statement just based on insights derived from Justice Sotomayor's experiences alone? Is it because they disagree with something substantive Justice Sotomayor said in that part of her dissent? Is it because they believed it inappropriate and/or unwise to resort to this rhetorical style in a judicial opinion?

 

Posted by David Fontana on June 21, 2016 at 10:41 AM | Permalink | Comments (19)

Cross-Border Campaign Contributions

One of the articles I am writing this summer is about the very few neighborhoods in a very few metropolitan areas that generate campaign contributions in large enough amounts to shape congressional elections in districts and states very distant and very different from those places--and how campaign finance law permits and even facilitates this behavior.  This article is really an expansion of a shorter, popular essay I wrote about the congressional elections of 2014. 

Geographical wealth disparities had started to decrease in the United States for several decades, but now this inequality is on the rise again.  For instance, Manhattan has approximately 370,000 millionaires (defined by total wealth) located in less than four square miles, while Mississippi has one-twelfth as many millionaires in 12,000 times the number of square miles.  There is a literature on cross-border contributions in law and political science, but rarely does it address how unequal the practice of cross-border contributions are because of this increasing geographical inequality.  In the rural House district where I was raised, for instance, there were more campaign contributions from a few streets in New York City and Washington than there were from all of that rural district.

I wanted to highlight two recent, helpful discussions of this neglected issue.  The Brennan Center has posted a report entitled "A Civil Rights Perspective on Money in Politics," and The City Lab has a companion story on "The Damaging Influence of Outside Money on Local Elections."

Posted by David Fontana on June 21, 2016 at 10:25 AM | Permalink | Comments (3)

O.J. and Rodney King

I hope people have had a chance to watch O.J.: Made in America, the spectacular five-part ESPN documentary that traces O.J.'s life from his college career to his current incarceration, while weaving his story into the story of racial bias in society and the LAPD and O.J.'s lifelong efforts to "rise above" race (the telling line is "I'm not Black, I'm O.J."). The film links O.J.'s acquittal (by a largely Black jury) to the acquittal of the officers who beat Rodney King (by an all-white jury). On this telling, O.J.'s acquittal was "revenge" for the officers' acquittal, the long-awaited chance for an African-American to benefit from mistakes in the system. One juror explicitly acknowledges this as her reason for voting to acquit.

But the film (and every conversation about the connection) omits something: Two of the officers in the King beating were convicted of federal civil rights violations and sentenced to 30 months in prison (the other two were charged and acquitted). So if justice means that a wrongdoer is convicted and punished under some criminal law for his misconduct, there was some justice in that case. It may not have been enough justice or the right kind of justice. Thirty months was arguably too short (the court departed downward from an expected Guidelines range of 70-87 months). Perhaps it somehow would have been "more just" for them to be convicted of assault, etc., in state court rather than civil rights violations in federal court. Indeed,  that might prove the point. Congress enacted the Reconstruction-Era civil rights statutes because the states were incapable and/or unwilling to enforce the rights of African-Americans against whites and white public officials. Having to resort to those in 1992 demonstrated how far we had not come.* Some had a sense that the civil rights charges were illegitimate, more a result of the rioting that followed the state-court acquittals (which the Koon Court took time to call out) than legitimate prosecutorial decisionmaking or use of federal criminal law.

 [*] And still have not come, where police-abuse cases now do not even make it past a grand jury and even the civil rights backstop is increasingly unavailable.

It seems too simple to say "Stacey Koon, et. al, got off, so O.J. should have gotten off." Because Koon and Powell did not get off, at least not entirely. By contrast, two people who had nothing to do with anything were dead in a horrific manner (I had never seen the photos of the bodies or the crime scene--they were stunning) and, on the definition above, they did not receive justice.**

[**] I bracket for the moment how we consider, in terms of assessing "justice," the civil verdict that necessarily included a jury finding that Simpson killed Nicole Brown and Ron Goldman but that did not impose criminal punishment, or the absurdly long sentence Simpson received in 2008 for the events in Nevada, which everyone sees as having impermissibily taken the murders into account. In one interview segment, attorney Carl Douglas points out that the Nevada judge held the jury until late into the evening to announce the verdict on the thirteenth anniversary of the murder acquittal and sentenced Simpson to 33 years, matching the $ 33 million in damages awarded in the civil case.

Posted by Howard Wasserman on June 21, 2016 at 09:31 AM in Criminal Law, Culture, Howard Wasserman, Law and Politics | Permalink | Comments (4)