1

The Civilizing Effect of Legal Training

The cultural cognition project has a new article out on how motivated cognition interacts with professionalism:

This paper reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze statutory interpretation problems, however, only the responses of the general-public subjects and not those of the judges varied in patterns that reflected the subjects’ cultural values. The responses of a sample of lawyers (n = 217) were also uninfluenced by their cultural values; the responses of a sample of law students (n = 284), in contrast, displayed a level of cultural bias only modestly less pronounced than that observed in the general-public sample. Among the competing hypotheses tested in the study, the results most supported the position that professional judgment imparted by legal training and experience confers resistance to identity-protective cognition — a dynamic associated with politically biased information processing generally — but only for decisions that involve legal reasoning. The scholarly and practical implications of the findings are discussed.

Kahan and I have gone back and forth about how best to characterize the results of the study. He, modestly, seeks to constrain the inferences to the data and to a push back against the vulgar understanding of the judiciary as merely housing politicians in robes.  I think the study speaks to something larger still — the value of legal education & experience in producing situation sense, which enables lawyers and judges (and, to a lesser extent, law students) to agree on the results of legal outcomes notwithstanding their political and ideological priors. Such legal judgment is, after all, one of the practical skills that law school conveys, and which it ought to boast about.

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FAN 54.1 (First Amendment News) Supreme Court: Latest Orders List — Free Expression Cases Remain on Docket

The Court just released its latest orders list and took no action on the pending petitions listed below.

  The next Court Conference is scheduled for April 17th and oral arguments are scheduled for April 20th.

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[updated: 4-6-15]

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. Friedrichs v. California Teachers Association, et al.
  4. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Dariano v. Morgan Hill Unified School District
  2. The Bronx Household of Faith v. Board of Education of the City of New York 
  3. Arneson v. 281 Care Committee
  4. Kagan v. City of New Orleans
  5. ProtectMarriage.com-Yes on 8 v. Bowen
  6. Clayton v. Niska
  7. Pregnancy Care Center of New York v. City of New York 
  8. City of Indianapolis, Indiana v. Annex Books, Inc.
  9. Ashley Furniture Industries, Inc. v. United States 
  10. Mehanna v. United States
  11. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  12. Vermont Right to Life Committee, et al v. Sorrell
1

A New Maritime Law Agency

120px-Oregon_-_sinking_-_Currier&Ives_(1883)One frustration of teaching Admiralty is that much of the law governing ships is obsolete.  Some of the foundational statutes include the Limitation of Liability Act (1851) and the Jones Act (1920), which have been widely criticized as out of date.  Though the federal courts have broad common lawmaking power in this area, many of the Supreme Court’s decisions also rest on legal and factual assumptions that are faulty. (I might give some examples in a subsequent post.)

Why is this the case?  Part of the answer is that admiralty is not a priority for either Congress or the Court.  The decline of maritime commerce (in relative terms) explains this, though there is also some contingency at work.  The BP oil spill from 2010 exposed many flaws in the regulatory regime, but the Administration’s decision to develop a one-off remedy via a compensation fund rather than seeking a legislative response to the crisis kept everything frozen in amber.

Another answer is that maritime law missed out on the administrative law revolution of the 1930s.  There is a Federal Maritime Commission (an early version of which was run by Joseph Kennedy), but the FMC’s  jurisdiction is narrow.  Administrative agencies, of course, play a crucial role in updating statutes (with the help of Chevron deference) and raise the profile of problems with current law.  It is difficult to imagine environmental law without the EPA or communications law without the FCC (consider net neutrality as an example).  It’s probably time for Congress to make the Federal Maritime Commission a full-fledged agency.

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“Agents of Hope”

A few random thoughts inspired by Rabbi Suzanne Singer’s “Judaism & Hope” sermon.

It cannot be denied: To live is to hope – that somehow, against all odds, evil will not triumph; that somehow, in the face of heartless bigotry, hatred will not prevail; and that somehow needless suffering (despite the toll of human misery) will abate.  To hope for a better plight is as vital to the human spirit as white blood cells are to the human body.

But what is this hope, and how is it to be realized, if at all?

Hope is struggle. It is more than a child’s naive wish, and it is quite different from an optimist’s blind faith in a benign future. It is a commitment to change – a change for a better world. It is active rather than passive; it seeks to move the world rather than wait to be moved by it. Seize the day, push the rock!

Hope trades in chance . . . in the chance that at a particular pinpoint in time life may get better. Thus our hope must be humble and patient; we must understand that the future may not come in time to save us. Hence our hope must be sober-minded; it must not be unduly romantic; it must not trade in the intoxicating promises of panacea.

Hope is a process; it is that spirit within us that struggles on and on in the face of discouraging prospects depressing enough to turn a man to stone. And why engage in such seemingly Sisyphean acts? Because to live is to struggle, not thoughtlessly, but with a commitment to justice and kindness and all other things that improve the human condition. Struggle gives fiber to hope.

Heed his words: I do not give the human race more than one chance in a thousand, but I would be less than a man if I did not act on that chance. So wrote Albert Camus, the Resistance fighter who in the darkest of moments did not lose hope in the cause of humankind to be better than it was at a time when malice and barbarity seemed unconquerable. By hope’s standards, had evil prevailed, Camus’ hope would not have been any less genuine or important. For what counted most was the struggle, the will to improve the plight of so many millions uprooted from the soil that gives life meaning.

The moral: Hope is a prayer that may go unanswered in one’s lifetime, but it is an act of the highest human order. In its noblest form, it touches that something buried deep within us that denounces evil and affirms goodness. If hope dies today, it does so in the belief that it will inspire yet more hope for tomorrow, which alas, may usher in the springtime of a new season of humanity.

As an aspiration worthy of our shared respect, hope must be something other than a commitment to greed. To be sure, one can hope to become a billionaire and dedicate herself to that quest, and to do so for no more than the sake of pride and pleasure. But the hope of which I speak is not the hope of avarice. It deals not in the wheel of roulette.

If hope is to be a virtue, it must be virtuous; it must speak to the best in each of us. Take, for example, the woman who amasses a fortune with the hope of rebuilding a temple leveled by a terrorist’s bomb or with the hope of sponsoring a group to repair the limbs of wounded soldiers – that kind of hope converts money into humanity.

There is a line in Rabbi Singer’s sermon that touched a nerve in me; it is this: Hope, not out of victory and success, but hope out of defeat and despair. We turn to hope because we cannot abide despair; our psyches simply cannot endure the hopeless specter of a Nietzschean nightmare cast eternally. By that measure, there is something therapeutic in hope, and that something helps us go on with our lives. Hope is an antidote to the melancholy that can rob one of the will to live.

To echo Rabbi Jonathan Sachs’s words: To be a Jew is to be an agent of hope in a world seriously threatened by despair. How heartening those words! To that end, may the agents of hope help to remake our world, repair our hearts, repel our fears, and rekindle that spark within us that longs for light. Or to draw from Simone Weil, “there is only one fault: incapacity to feed upon light . . . .”

10

Mrs. Murphy’s Wedding Services

The recent discussion about the Indiana RFRA brings to mind the “Mrs. Murphy’s Boarding House” hypothetical that was debated when the Civil Rights Act of 1964 and the Fair Housing Act of 1968 were enacted.  Mrs. Murphy was supposed to be an old lady who took boarders in her home.  The argument was that someone like that should not be required to take in boarders that she did not want in her home, even if her reason was racial bigotry.  Ultimately, the Fair Housing Act did exempt this sort of person and that  compromise that remains the law.

The argument is now being made that a provider of wedding services (a caterer, florist, photographer, or wedding planner) should not be required to work on a same-sex marriage if he or she objects on religious grounds.  Is this Mrs. Murphy comparable to the 1960s version?  I would say no.  The boarding house example includes a home and a business, and thus one might conclude that there is some privacy interest at stake.  The wedding scenario, by contrast, only involves a business and thus does not seem to warrant an exception from a non-discrimination provision based on sexual orientation.  (If there is no such provision, then the wedding planner is free to discriminate against same-sex weddings, I suppose.)

Nevertheless, I’m left wondering about the practical effect of this modern Mrs. Murphy.  Suppose a wedding provider says on its website, brochures, or in person that they think same-sex relationships are wrong but that they will comply with state law and work on same-sex weddings upon request.  How many same-sex couples are going to want their photos, flowers, cake, etc to come from someone who thinks that their marriage is sinful, unconstitutional, etc?  Not many, I would think.  So is there really a problem here?

stairway-to-heaven-1319562-m-720x340
0

FAN 54 (First Amendment News) Fourth Circuit Skeptical of Local Panhandling Law . . . Issue Before SCOTUS in Another Case

Robert S. Reynolds (credit: Richmond Times-Dispatch)

Robert Reynolds (credit: Richmond Times-Dispatch)

Somehow this one slipped by me. Thanks to Joseph P. Rapisarda, Jr. (the county attorney in the case), however, I now know of it and of Chief Judge William Traxler’s opinion in Reynolds v. Middleton (4th Cir., Feb. 24, 2015).

The case involves a homeless man (Robert S. Reynolds) who begged for money in Henrico County, Virginia. (A panhandling First Amendment case is currently pending before the Supreme Court: Thayer v. City of WorcesterThe petition was distributed for Conference of January 9, 2015.)

In a world where commercial speech is the coin of the realm, Mr. Reynolds looked to the First Amendment to aid the cause of his life-sustaining speech. To that end, he challenged a newly enacted local ordinance, which provides:

Sec. 22-195. Distributing handbills, soliciting contributions or selling merchandise or services in highway.

(a) It shall be unlawful for any person while in the highway to:

(1) Distribute handbills, leaflets, bulletins, literature, advertisements or similar material to the drivers of motor vehicles or passengers therein on highways located within the county.

(2) Solicit contributions of any nature from the drivers of motor vehicles or passengers therein on highways located within the county.

(3) Sell or attempt to sell merchandise or services to the drivers of motor vehicles or passengers therein on highways located within in the county.

(b) For purposes of this section, the term “highway” means the entire width of a road or street that is improved, designed, or ordinarily used for vehicular travel and the shoulder, the median, and the area between the travel lane and the back of the curb.

Brian Burgess

Brian Burgess

At first he was unsuccessful; his case was dismissed by a federal judge. Thanks to the appellate work of Brian Timothy Burgess (a former Sotomayor law clerk) and the ACLU, Reynolds did rather well in the Fourth Circuit (see CBS video clip). Here are a few excerpts from Chief Judge Traxler’s opinion:

  1. There is no question that panhandling and solicitation of charitable contributions are protected speech. See Clatterbuck v. City of Charlottesville, 708 F.3d 549, 553 (4th Cir. 2013). There is likewise no question that public streets and medians qualify as “traditional public forum[s].” Id. at 555; see Warren v. Fairfax Cnty, 196 F.3d 186, 196 (4th Cir. 1999) (en banc) (“Median strips, like sidewalks, are integral parts of the public thoroughfares that constitute the traditional public fora.”).
  2. The government’s power to regulate speech in a traditional public forum is “limited, though not foreclosed.” Clatterbuck, 708 F.3d at 555. Content-neutral time, place, and manner regulations of speech in traditional public forums are subject to intermediate scrutiny — that is, the restrictions must be “narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication.” Id.; see Ross v. Early, 746 F.3d 546, 552-53 (4th Cir.), cert. denied, 135 S. Ct. 183 (2014). A content-neutral regulation is narrowly tailored if it does not “burden substantially more speech than is necessary to further the government’s legitimate interests.” McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014)
  3. In our view . . . the Supreme Court’s recent decision in McCullen v. Coakley clarifies what is necessary to carry the government’s burden of proof under intermediate scrutiny. McCullen involved a First Amendment challenge to a Massachusetts buffer-zone statute that prohibited standing on a “public way or sidewalk within 35 feet of an entrance or driveway” of an abortion clinic. McCullen, 134 S. Ct. at 2525. After a bench trial on stipulated facts, the district court upheld the statute, and the First Circuit affirmed. The Supreme Court applied intermediate scrutiny — the same standard we apply in this case — and reversed.
  4. We draw several lessons from the Court’s decision in McCullen. First, the Court’s discussion of whether the statute furthered an important governmental interest confirms that the existence of a governmental interest may be established by reference to case law. Second, the Court’s flat declaration that “[t]he buffer zones clearly serve these interests” indicates that objective evidence is not always required to show that a speech restriction furthers the government’s interests. Finally, the Court’s rejection of the Commonwealth’s narrow-tailoring arguments makes it clear that intermediate scrutiny does indeed require the government to present actual evidence supporting its assertion that a speech restriction does not burden substantially more speech than necessary; argument unsupported by the evidence will not suffice to carry the government’s burden.

The Chief Judge concluded his opinion as follows:

Although we have concluded that the County’s evidence failed to establish that the Amended Ordinance was narrowly tailored, we believe the proper course is to vacate and remand. Our analysis in this case was driven by the Supreme Court’s decision in McCullen, which was issued after the district court’s ruling in this case. As we have explained, McCullen clarified the law governing the evidentiary showing required of a governmental entity seeking to uphold a speech restriction under intermediate scrutiny. Because the parties did not have McCullen’s guidance at the time they prepared their cross — motions for summary judgment, we believe the County should have an opportunity to gather and present evidence sufficient to satisfy McCullen’s standard. Accordingly, we hereby vacate the district court’s order granting summary judgment to the County and remand for further factual development and additional proceedings as may be required (footnote omitted).

Note: Since “the Henrico ordinance has not been invalidated,” said Burgess, “panhandlers still could be criminally charged.”

See A. Barton Hinkle, “There’s No Begging Exception to the First Amendment,” Reason.com, March 4, 2015

 See Arizona Senate Debates Panhandling Bill,” NAZToday, March 25, 2015 (YouTube video)

See also Sara Rankin, “A Homeless Bill of Rights,” Seton Hall Law Review (forthcoming, 2015).  

Balkin & Redish Discuss Commercial Speech at First Amendment Salon Read More

5

John Bingham on “the People”

101px-John_Bingham_-_Brady-HandyI’ve posted previously about cases holding that illegal aliens are not included in the Second Amendment, in part because “the people” mentioned in that provision should be read as a term of art that means “people who are lawfully in the United States.”  It turns out that John Bingham was a forceful proponent of the idea that “the people” was not just the plural of “person” for constitutional purposes.

In arguing against the admission of the Oregon Territory as a state, Bingham stated that the Oregon Constitution was invalid because it allowed some legal aliens to vote.  He said that this was inconsistent with Article I’s use of the term “the people of the several states.”  In his view, “the people” meant only citizens.  While some states at the time did let aliens vote, he maintained that this was unconstitutional (and represented the only constitutional limit on state authority over who was eligible to vote).  He then went on to say that when a right was fundamental the Constitution used the term “person” or something else (not “the people”) to make that point.

Bingham’s comments on this point can be found at Cong. Globe. 35th Cong, 2d Sess., 982-84 (1858).  Or you can find them in my book.  Of course, Bingham did not discuss a distinction between legal and illegal aliens, as there were virtually no illegal aliens then, but one could say that the current interpretation of “the people” is at least trying to be faithful to the original view.

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JFK on the Bill of Rights

John_F._Kennedy,_White_House_photo_portrait,_looking_upI’ve come across something that I thought I’d share.  In November 1963, President Kennedy filmed a short message that was to be aired in movie theaters on Bill of Rights Day.  Sadly, he was killed before that, and the film was never shown.  Here is a transcript of what he said:

I am grateful to the Motion Picture industry for this opportunity to remind you of a most important day in our lives:  December 15th is Bill of Rights Day.

The Bill of Rights are the first ten amendments to the American Constitution.  After the Constitution was written, it was felt that the while this was an extraordinary document, it did not provide the kind of guarantees for our individual liberties that a free country required.  And therefore under the leadership of James Madison, the first ten amendments were adopted to the Constitution.  We call them the Bill of Rights.

Because of the first ten amendments to the Constitution, because of the Bill of Rights, we are guaranteed freedom of speech, freedom of religion, freedom of the press, the right of assembly and petition, the right of trial by jury, the right to be secure in one’s home, the protection of due process of law and private property and public trials, and many other things that perhaps we take for granted which are guarantied in the United States Constitution.

So December 15th is an important day.  The Bill of Rights is vital in our lives.  Even though the parchment of the Constitution of the United States and the Bill of Rights is old and fading in the Archives Building here in Washington, nevertheless this document, the Bill of Rights, has meaning in all of our lives everyday.  We owe a good deal to it.  I think it is appropriate that we be reminded of our blessings and those who made them possible.  Remind our children of what a great country we have, how much it has been through, what it means to them; remind our servicemen, one million of them who serve overseas, that they do not defend merely a piece of geography but also a way of life expressed in the American Constitution, expressed in the Bill of Rights, expressed in the freedoms that we all enjoy.

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FAN 53.2 (First Amendment News) Court Denies Cert. in Two Free Speech Cases

The Court released its orders list today and denied cert. in two free speech cases:

  • Dariano v. Morgan Hill Unified School District (Issue: Whether the Ninth Circuit erred by allowing school officials to prevent students from engaging in a silent, passive expression of opinion by wearing American flag shirts because other students might react negatively to the pro- America message)
  • The Bronx Household of Faith v. Board of Education of the City of New York (Issues: (1) Whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Exercise Clause and Establishment Clause; and (2) whether a government policy expressly excluding “religious worship services” from a broadly open forum violates the Free Speech Clause)

  Tomorrow at 10 a.m. ET the Court may issue one or more opinions in argued cases. After tomorrow, the Supreme Court calendar indicates that the Justices will take a two-week break from announcing opinions. 

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[updated: 3-30-15]

Review Granted

  1. Elonis v. United States (argued on 12-1-14)
  2. Williams-Yulee v. The Florida Bar (argued 1-20-15)
  3. Reed v. Town of Gilbert (argued on 1-12-15)
  4. Walker v. Texas Division, Sons of Confederate Veterans (license plate case) (argued 3-23-15)

Pending Petitions

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester
  3. Friedrichs v. California Teachers Association, et al.
  4. Apel v. United States (Erwin Chemerinsky, counsel of record)

Review Denied

  1. Dariano v. Morgan Hill Unified School District
  2. The Bronx Household of Faith v. Board of Education of the City of New York 
  3. Arneson v. 281 Care Committee
  4. Kagan v. City of New Orleans
  5. ProtectMarriage.com-Yes on 8 v. Bowen
  6. Kagan v. City of New Orleans
  7. Clayton v. Niska
  8. Pregnancy Care Center of New York v. City of New York 
  9. City of Indianapolis, Indiana v. Annex Books, Inc.
  10. Ashley Furniture Industries, Inc. v. United States 
  11. Mehanna v. United States
  12. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  13. Vermont Right to Life Committee, et al v. Sorrell
Books 03
2

Does Scholarship Really Have an Impact? The Article that Revolutionized Privacy Law

Does scholarship really have an impact? For a long time, naysayers have attacked scholarship, especially scholarship about law. U.S. Supreme Court Chief Justice Roberts once remarked: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something.” He noted that when the academy addresses legal issues at “a particularly abstract, philosophical level . . . they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.” Judge Harry Edwards also has attacked legal scholarship as largely irrelevant.

Critics are quick to point out that much legal scholarship is not cited much — and many articles are never even cited by anyone other than the authors themselves in subsequent works.

But I think that a lot can be learned from the story of one of the most influential law articles of all. That article was Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harvard Law Review 193 (1890).

Brandeis Right to Privacy 02

Warren and Brandeis discussed how journalism was becoming more sensationalistic: “Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.” And they expressed concern about a new technology they called “instantaneous photograph[y.]” — the new smaller and cheaper cameras being marketed by the Eastman Kodak Company that made it possible for candid photos to be taken.

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