Category: Civil Rights

3

Pension Parity Sought by Retired Black Police Officers

car_police.gif[Cross posted on Workplace Prof Blog]

To those who believe that the bad ol’ days of segregation and unequal treatment of minorities is behind us, I give you this story from the LA Times about retired black police officers in Georgia who are still trying to get a remedy for past injustices:

A “whites only” sign was still hanging on the precinct house water fountain in 1964 when James Booker joined the suburban College Park police force. He soon learned it wasn’t the only thing off limits to Georgia ‘s new black recruits.

Until 1976, black officers were blocked from joining a state-supported supplemental police retirement fund. Today, white officers who entered the fund before that year are taking home hundreds of dollars more every month in retirement benefits than their black counterparts.

The now-retired black officers have been lobbying hard to change that, but eight years after they began an effort to amend the state constitution and give them credit for those lost years is stalled in the Legislature. The Georgia Constitution prohibits the state from extending new benefits to public employees after they have retired.

If lawmakers don’t take action in the final weeks of the legislative session, the battle will move to the courthouse this spring, said state Rep.Tyrone Brooks, an Atlanta Democrat and civil rights activist leading the officers’ campaign.

Come on, Georgia, do the right thing. Give these police officers who gave the best years of their lives the pension payments they have always deserved. If not, this situation will continue to be an unwelcome reminder that much still has to be accomplished in the area of racial justice in the workplace, especially in the South.

MLK on Social Equality, Fellowship, and Love

In observance of Martin Luther King, Jr. Day, here are some thoughts from Christopher Phelps, a history professor at Ohio State:

King’s sermons from 1948 to 1963 . . . remind us of King’s immersion in the black Baptist church and of the wide range of theological sources and social criticism he drew upon. For King, Christianity was the social gospel. His outlook was astonishingly radical, especially for the McCarthy era. In a college paper entitled “Will Capitalism Survive?” King held that “capitalism has seen its best days in America, and not only in America, but in the entire world.” He concluded a 1953 sermon by asking his congregation to decide “whom ye shall serve, the god of money or the eternal God of the universe.” He opposed communism as materialistic, but argued that only an end to colonialism, imperialism, and racism, an egalitarian program of social equality, fellowship, and love, could serve as its alternative.

Down riot-torn streets, he continued his quest for audacious social transformation by means of creative tension, compassion, love, inclusion, and humility. . . . The aspirations he left unfulfilled — especially for social equality and economic justice — may yet supply the legacy for a renewed American hope.

Given the disparities chronicled in Dalton Conley’s Being Black, Living in the Red, King’s agenda appears more timely than ever.

UPDATE: I just saw this post by Jon Hanson; very interesting take on King’s legacy.

2

How Should Courts Handle Cultural Dissensus on Summary Judgment?

That’s the deep question unanswered by last year’s Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority’s view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court’s position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can’t be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

ronOur results showed exactly that. Dissenters to the Court’s view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield’s work on “status collectivities,” we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects’ reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger.” The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

New Picture.jpg

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree that the police were justified in using deadly force. There is, however, a 16% (+/- 3%) chance that he/she would be only “slightly” inclined to agree, and over a 20% chance that he/she would conclude upon watching the tape that use of deadly force was unreasonable. Finally, over 80% of the individuals who share Ron’s characteristics would find that the police acted reasonably.

What does dissensus of this character mean for how courts should resolve summary judgment motions in cases like, and unlike Scott? When minorities of the venire would process visual information in particular way, but that minority sees things the way they do because they are linked by values?

I’ll explore these questions in subsequent posts (as will, I think, Don.)

Previous Posts:

Hoffman, The Death of Fact-finding and the Birth of Truth

Crocker, Do Texts Speak for Themselves?

Kerr, What Are the Facts in Scott v. Harris?

2

Scenes from a Lawyer’s Life

The Arts Section in today’s New York Times highlights the renewed interest in the work of Diego Rivera, exemplified by a series of exhibitions ongoing in New York. The theme is Rivera’s stepping out from behind the overwhelming interest in his third wife, Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude: their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.

We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to my wife’s grandfather, Nathan Milstein, a lawyer in Detroit, who did work for and befriended Rivera and Kahlo. (Family legend has it that Kahlo made a pass at him, but this is unconfirmed.) Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929. Nathan passed away in 2003, having continued to practice until his late eighties, and his seventy-four year tenure as a member of the bar is supposedly one of the longest in Michigan history.

Alene and I spent many hours going through his voluminous files. One truly appreciates the historian’s and the biographer’s art of distilling the story from the data when looking at records like these. The documents are tantalizing. For example, Nathan was a bachelor until 1946, when he married Alene’s grandmother, who was a widow with two children. Before that, he was supporting his mother and sisters. When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.) Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick. I have framed in my office my personal favorite: the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan’s being Jewish while taking it.

The Rivera piece inspired me to go back through some of the files this morning (a quiet Christmas task). I realize now it’s entirely likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of “undesirables,” and espoused public positions to which the F.B.I. director of long memory must have objected.

As to his practice, I’m just now organizing a series of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer. The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party. Bojer himself described it to a reporter as follows: “They tell me that I’m a Communist. . .It so happens that I’m a member of the Communist Party Opposition, whose headquarters is in New York. Members of that Party, though glad to take Moscow’s advice, refuse to take Moscow’s dictation. There are other differences, such as our belief that the worker’s solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England. Also, we disbelieve in Moscow’s theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units.” (The Communist Party (Opposition), or the Communist Party (Majority Group) as it was originally called, was a splinter group from the main Communist Party USA, organized by Jay Lovestone. Lovestone shows up here; he visited Detroit, and met with Nathan and Bojer.)

The American Civil Liberties Union was interested in intervening on Bojer’s behalf. On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case. Baldwin stated: “The issue is far more than personal to him. This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership. It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party.” Nathan met with Bojer in the Wayne County jail, where Bojer, “a very affable and highly cultured young man,” advised that he had no desire to appeal the deportation, and was willing to return to Norway. He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an “East bound deportation party” on December 29, 1932.

As to Nathan’s political views, here’s an excerpt from his tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:

Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country. In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred. Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered. The ever oppressed alien is again victimized. The term alien becomes synonymous with undesirable. Deportation “drives” and “spectacular raids” then become common occurrences. Wholesale deportation follows as a panacea for what ails the nation. This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws. Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions. To espouse the cause of the under-privileged requires great courage. Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis. So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.

Just an ordinary kid from an ordinary school in an ordinary city. Whose parents had been aliens.

(Cross-posted at Legal Profession Blog.)

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Ah the Good Old Days When You Could Spy Without Help: Private Companies and Their Cooperation with Eavesdropping

Thisbe_-_John_William_Waterhouse2.JPGYet again technology is cited as a problem requiring change. This time it is in the familiar realm of government access to telecommunications. As the New York Times reports:

The federal government’s reliance on private industry has been driven by changes in technology. Two decades ago, telephone calls and other communications traveled mostly through the air, relayed along microwave towers or bounced off satellites. The N.S.A. could vacuum up phone, fax and data traffic merely by erecting its own satellite dishes. But the fiber optics revolution has sent more and more international communications by land and undersea cable, forcing the agency to seek company cooperation to get access.

This information is not exactly new, but the article also notes that it is not just recent terrorist concerns that have prompted the government to seek help in tracking communications. The N.S.A. and the D.E.A. have apparently been “collecting the phone records showing patterns of calls between the United States, Latin America and other drug-producing regions” since the 1990s and the program may be expanding. At bottom the concern is that the Bush Administration wants to offer retroactive protection for the companies that cooperated with the government because as Attorney General Mukasey and director of national intelligence have argued without that protection would be reluctant to help. Yet the article details that some companies such as Verizon may have cooperated and even run a line to a military facility whereas others refused to cooperate because they feared public reaction regarding their privacy. Immunity thus is not necessarily why the companies did not cooperate.

Put differently, how affording such protection makes sense is unclear unless the immunity would work in a way analogous to prosecutorial immunity: “You have to work with us.” “But it’s against the law.” “Maybe. But you aren’t liable anymore so just do it.” Again as long companies fear “customers’ demands for privacy and shareholders’ worries about bad publicity,” the immunity should be less of an issue. Still from an in-house attorney perspective, persuading the other executives that the best practice is not to cooperate would be harder to do if there is general immunity for cooperating in breaking the law. The immunity removes a powerful argument against what should be a practice to be avoided.

image: Thisbe – John William Waterhouse Wikicommons

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Predatory Lending: Meet Jonathan Swift

plalogo.gifAt the new website of the Predatory Lending Association, aspiring lenders can find concentrations of “working poor” customers in their neighborhood, calculate effectively usurious loans, not blacklist crusaders against payday lending, including Liz Warren, and learn all the arguments that goo-goos will make against high-interest borrowing. One Q&A in particular should be familiar to contracts professors (or maybe just those, like me, who use Randy Barnett’s Perspectives book):

Myth: Payday lending is comparable to selling yourself into slavery.

Reality: Although there is a market need for slavery, people do not choose to sell themselves into slavery. Free choice is the difference between payday lending and slavery.

(There is even a neat chart to make the connection more clear.) On the discussion boards, you can share your thoughts with other predatory lenders. Sure, it all seems a little too cute, but it’s worth checking out anyway.

0

Twenty-Five Years of Broken Windows

police.jpgJames Q. Wilson and George L. Kelling recently revisited their broken windows theory of policing in a brief essay that appears in the November issue of The Atlantic. In a 1982 issue of that same magazine, they advanced their now well-known hypothesis that a decrease in visible signs of public disorder would lead to a reduction in crime rates. To be fair, the format of the essay—which appeared as one of many commenting on the “The Future of the American Idea”—did not lend itself to nuanced reflection. But because broken windows helped make community policing commonplace, sparked proposals for dramatic changes in criminal procedure doctrine, and is a key element in the biography of Rudolph Giuliani, Wilson and Kelling’s readers can be forgiven for hoping for a bit more.

In their new essay, Wilson and Kelling write, “Virtually all of the evidence we have from studies of police suggests that restoring order is associated with a drop in crime. This is reassuring, but it may not be conclusive. The idea has never been fully tested.” This does not satisfactorily answer scholars who have questioned whether a reduction in serious crime actually follows an increase in public order. Most importantly, it does not address whether a drop in serious crime—if it occurs—stems from the reduction in public disorder or from the increased surveillance that aggressive misdemeanor arrests make possible.

Wilson and Kelling also write, “Decency in public places may be only a small part of the American idea, but especially for those people living in dangerous, gang-ridden neighborhoods, it is an important one.” This is a statement with which it is difficult to argue. But it says nothing about whether constraining disorder is the best use of limited police resources, or how the police choose their targets in a public order campaign, or whether addressing disorder can ever mean more than moving it to a less visible place. We would all benefit from knowing more about how the original proponents of broken windows would answer these difficult questions.

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Reparations and Net Benefit

As reported in outlets like the National Law Journal, Connecticut professor Robert L. Birmingham has taken a leave of absence following a strange incident in which he apparently showed the class a racy video clip — complete with scantily clad strippers — as part of an in-class argument against reparations for slavery. Some commenters have suggested that this case raises potential questions of academic freedom. Let’s set aside those issues, to focus on the substance of Birmingham’s argument as reported in the NLJ.

The NLJ summarizes Birmingham’s argument as: “The sometimes controversial professor asked students to make a case for slavery reparations in light of the fact that much of Africa is beset by war, famine and AIDS.” Law.com later summarizes:

In an e-mail, one student in the remedies class characterized Birmingham’s classroom exercise as a “syllogistically perfect” argument that the students, try as they might, were not able to disprove in 15 minutes of discussion. The professor questioned whether reparations are logically due for American descendants of slaves, who generally enjoy a much better standard of living than modern West Africans whose ancestors were not enslaved,” the student wrote.

Of course, this basic argument isn’t limited to Birmingham, and is quite familiar to reparationists. It’s a point often raised by reparations critics like David Horowitz.

Is this really a syllogistically perfect (or otherwise convincing) argument against reparations for slavery?

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May Day Mea Culpa

On May 1, 2007, 25,000-30,000 demonstrators peacefully marched to MacArthur Park in Los Angeles, in support of immigrants’ rights. What transpired at the park was a scene one might expect on the streets of Myanmar — not Los Angeles. As is now commonplace, there were plenty of video cameras recording the events. Twenty or so protesters threw objects (food, rocks, plastic bottles) at police officers. As this video shows, officers responded by indiscriminately wielding (100 times) batons and firing 146 rubber bullets into a passive and confused crowd. More than 240 people, including 9 journalists covering the rally, were injured. Eighteen police officers also sustained injuries. The mayor of Los Angeles described the events at MacArthur Park as “dark and tragic.” Hundreds who were at the park that day have joined what may turn out to be very costly lawsuits for the city.

On Tuesday, the Los Angeles Police Department issued a lengthy report on the incident (available here). The upshot of the report is that the LAPD admits that serious mistakes were made. Planning for the rally was poor. Officers underestimated the rally’s size — despite the fact that large May Day rallies had been held at MacArthur Park for decades. Pre-event planning meetings were requested, but not held. Requests by officers for additional resources were denied. Critical units assigned to the rally received no crowd control training in the 18 months leading up to the rally. No media viewing area was established — despite a settlement agreement subsequent to the 2000 Democratic National Convention in Los Angeles (another event during which police reacted violently to crowds) expressly requiring such an area at future events. There was a severe breakdown in the chain of command. An “unlawful assembly” order was prematurely issued, interfering with the First Amendment rights of peaceful protesters. Instructions to disperse were issued a minute after police had started firing rubber bullets, and only in English (despite the fact that the crowds were comprised mostly of Spanish-speaking immigrants). The LAPD report includes a series of recommendations to be implemented by June 2008. These include:

— reviewing policies regarding crowd management

— including rank, serial numbers and names on ballistic helmets and tactical vests

— designing a highly mobile sound unit vehicle

— developing protocols for LAPD videographers

— coordinating with event organizers prior to major events

— reasonably accommodating credentialed members of the media

— requesting Air Support Division to provide aerial video documentation

— establishing a clear chain of command

— standardizing the criteria for After-Action Reports

— updating the 1996 Training Bulletins in regard to crowd control

LAPD leadership, while accepting responsibility, also appears to be patting itself on the back for being open and frank in assessing its officers’ performance. While the self-assessment is laudable, the LAPD report raises as many questions as it answers.

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Diversity?

Did you ever notice that law school hiring seems to aim for not-all-that-diverse diversity? It reminds me of a friend who claims to love Thai food and then orders everything “extra mild.” Does he like Thai food (as in embrace it) or does he simply embrace the idea of liking Thai food? It’s like the question I often ask my classes: Can you have a preference for a preference?

How is this like faculty hiring for diversity? My, admittedly unofficial, view is that when hiring committees look for candidates the pecking order is like this:

White elite eduated male

White elite ed. female

African American ed. elite male

African Americna ed. elite female

White non elite female

White non elite male

African American non elite female

African American non elite female

The ranking is, no surprise, consistent with social comfort and, let’s face it, given that there is no evidence that one group is better at law teaching than another and that law professors can “interpret” resumes to mean anything, social comfort plays a big role.

So, do law professors on average like the idea of embracing diversity or do they really embrace diversity? I think it’s the former and it’s not even close. They have a preference for a preference for diversity but the real preference is just not there.

So how would you recruit for actually diversity? No question in my mind that race is a big factor but how about these questions:

1. What was your father or mother’s occupation?

2. How much school did your father and mother complete?

3. How much student debt have you accumulated?

4. How many people do you know at an Ivy League school?

5. Ever worked at McDonalds, washed cars, or bagged groceries?

6. Anyone in your family on welfare.

7. Has anyone in your family done time?

8. Ever been out of the US?

9. What is the difference between rigatoni and zitti? (oops, sorry this one accidently came over from a completely different list)

When and if law faculties get serious about diversity, let me know.