Category: Civil Rights

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Controversy at MLK Memorial

The process of building a new memorial in Washington, DC always creates controversy. The forthcoming Martin Luther King Jr., National Memorial is no exception. The U.S. Commission of Fine Arts, which has veto power over the design, recently announced its objections to a model of the mammoth statue planned as a centerpiece of the site. The statue, at 28 feet intended to be significantly taller than Lincoln’s at his memorial, depicts Dr. King standing with his arms folded and a very serious expression on his face (see the model here). In a breathtakingly terrible choice of words, the Commission worried that the statute so envisioned is too “confrontational in character.”

This objection comes on top of earlier protests at the choice of a Chinese sculptor, Lei Yixin — some saying that a black person or at least an American should design the statue; others criticizing the use of Chinese granite instead of the good ol’ American kind, and others objecting that some of Lei’s earlier work celebrates Mao Zedong.

The new criticism claims to be aesthetic rather than political, but the two are so fundamentally intertwined in this setting that art cannot distinguish itself from politics. Take, for instance, the following from a Washington Post blogger:

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Early Morning, April 4

Martin Luther King, Jr. was killed forty years ago in Memphis. Much attention has been paid to the last paragraph of his last sermon:

Well, I don’t know what will happen now. We’ve got some difficult days ahead. But it doesn’t matter with me now. Because I’ve been to the mountaintop. And I don’t mind. Like anybody, I would like to live a long life. Longevity has its place. But I’m not concerned about that now. I just want to do God’s will. And He’s allowed me to go up to the mountain. And I’ve looked over. And I’ve seen the promised land. I may not get there with you. But I want you to know tonight, that we, as a people will get to the promised land. And I’m happy, tonight. I’m not worried about anything. I’m not fearing any man. Mine eyes have seen the glory of the coming of the Lord.

But the whole sermon, delivered forty years and a day ago, is worth a read.

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Qualified Immunity and Saucier v. Katz

Thanks to Dave and the rest of the authors here for inviting me to guest this month. I’m really looking forward to it.

I want to start with a word about a case in which the Supreme Court granted certiorarari on last week. In #07-751, Pearson v. Callahan, the Supreme Court granted cert on the Fourth Amendment question presented but also asked the parties to brief the following question:

“Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001) should be overruled?”

In Saucier the Supreme Court had mandated that when a federal court considers a qualified immunity case, it must decide the merits of a plaintiff’s constitutional claim before turning to the defendant’s assertion of qualified immunity. The Supreme Court has stated that this order-of-decisionmaking rule encorages the development of constitutional law and provides crucial guidance to official actors regarding what the Constitution requires of them.

Saucier has not been popular with lower federal courts or with a number of members of the Court itself. In a forthcoming article in the George Mason Law Review I urge the Court not to overturn Saucier. I take issue both with those who argue against Saucier on prudential grounds and those who argue that deciding the substantive question before the immunity quesiton violates Article III’s ban on advisory opinions.

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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.

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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?

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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.

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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.