2

Pushing, or Perhaps Ripping, the Arbitration Envelope

The New Jersey Supreme Court has just issued an opinion on arbitration that, while perhaps sensible in result, seems to turn the usual paradigms upside down. Instead of deciding whether an arbitration clause was unconscionable and should be stricken (or at least whether the unconscionable parts should be severed), the Court decided (1) it didn’t know what the clause meant, (2) that question was for the arbitrator, but (3) that if the arbitrator decided certain ways, that would be unconscionable. The effect, of course, was to interpret the agreement it wasn’t interpreting, at least by ruling out certain interpretations.

Given the pervasiveness of arbitration in both consumer and employment contexts, this is an important decision. How it fits into more conventional notions of the relationship between courts and arbitrators is anyone’s guess, but I’ll hazard a few.

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1

Satire (?) of Orientation

Belle Lettre (at Law and Letters) has a nice post on going back to school as an LLM. The “fake” orientation tour/speech is a blast, and will feel pretty familiar to many of our readers at this time of year. Here is a taste:

We will be told how GREAT the school is. We will be told how GREAT the faculty is. We will be told how GREAT (and select and thus special) we are. We will be told that because the school, the faculty, and the students are so GREAT, we will continue on to do GREAT things. We will be told that with GREATNESS, there is responsibility. We will be told to do that which is “right” rather than that which is merely “easy.” We will be told that first impressions and relationships last even longer than the grades on our transcript. We will be told that our school is a special school, because contrary to popular belief (and as compared to other schools), our school is the nice, non-competitive one, where everyone likes each other. Why, even the faculty are friends, often having dinner together. [DH Note: But it’s true!] We will be told that the faculty are not only GREAT, they’re also really nice, so you can expect to have significant mentoring relationships with your professors. Why, some of the professors go hiking with their students or invite their classes over for brunch! . . . So turn to the persons in the seats to the right and left of you, and shake their hand and introduce yourself. They are your colleagues. They may become your best friend. And who knows, you might just meet your future partner here!

15

The (Mis)use of Research Assistants

library.jpgAs the summer starts to wind toward its inevitable close closing stage midlife crisis eternal twilight I’ve been doing some thinking about how to maximize the use of law student research assistants. This summer, I’ve learned that in one sense, I’m a bad boss: I can’t manage to help my RAs to collect information for me in efficient ways. As my research has moved further in an interdisciplinary direction, I’ve found that the traditional front-line tools of legal research, HeinOnline, WL, and Lexis, complemented by the Web of Science, are incomplete and/or borderline useless. For example, I asked an RA to try to find the research behind Malcolm Gladwell’s observation regarding the relationship between anticipated regret and effort I blogged about here. My suggested search strategy: (1) do a search on WL/LEXIS for regret and effort; and failing that (2) read everything Gladwell had written. Ever. Option 2 took some time, but we finally nailed down the research. [Hint: he talked about the research in question in the New Yorker, and it wasn’t found in WL’s New Yorker database.]

Now, according to a librarian friend, this entire process could have taken under ten minutes in a fancy-pants humanities database. Nuts.

Tell you what: bragging honors to the first commentator to post the name for the relevant phenomena in the comments below. [Reader L.A. not eligible for bragging rights.]

More disheartening, I’ve learned from another research librarian that there is a general perception that we law-prof types are known to be weak at electronic research that doesn’t involve typing in a search into the ALLCASES database. Why is this? Perhaps it is due to the lack of an academic track in law, which means that we haven’t been tested and trained in research methods (apart from those methods necessary to be a law firm associate.) It might be that there is a connection between this lack of academic training and the length of the literature reviews that launch most law review articles: we have spent so much time finding the darn material, we want to stuff it in come hell or high water. Maybe if we were better at research, law reviews would be shorter?

While we’re on the topic of libraries, I thought I’d highlight this NYT Librarian Award announcement. Know a friendly neighborhood librarian doing good work?

51

NYC Subway Searches

subway3.jpgThe U.S. Court of Appeals for the 2nd Circuit recently upheld New York City’s program of random searches at subways. The case is McWade v. Kelly, No. 05 6754 CV (2d Cir. 2006) and I’ve posted a copy here. The program was initiated after the London subway bombing. Back in December, 2005, a federal district court upheld the searches, which are conducted without a warrant, without probable cause, and even without reasonable suspicion. In a blog post critiquing the decision, I wrote:

It is another big waste of money and time, as well as a needless invasion of civil liberties — all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.

The 2nd Circuit panel concluded that the program was “reasonable” under the 4th Amendment’s special needs doctrine. Under the special needs doctrine, if there are exceptional circumstances that make the warrant and probable cause requirements unnecessary, then the search should be analyzed in terms of whether it is “reasonable.” Reasonableness is determined by balancing privacy against the government ‘s need. The problem with the 2nd Circuit decision is that under its reasoning, nearly any search, no matter how intrusive into privacy, would be justified. This is because of the way it assesses the government’s side of the balance. When the government’s interest is preventing the detonation of a bomb on a crowded subway, with the potential of mass casualties, it is hard for anything to survive when balanced against it.

The key to the analysis should be the extent to which the search program will effectively improve subway safety. In other words, the goals of the program may be quite laudable, but nobody questions the importance of subway safety. Its weight is so hefty that little can outweigh it. The important issue is whether the search program is a sufficiently effective way of achieving those goals that it is worth the trade-off in civil liberties. On this question, unfortunately, the 2nd Circuit punts. It defers to the law enforcement officials:

That decision is best left to those with “a unique understanding of, and responsibility for, limited public resources, including a finite number of police officers.” Accordingly, we ought not conduct a “searching examination of effectiveness.” Instead, we need only determine whether the Program is “a reasonably effective means of addressing” the government interest in deterring and detecting a terrorist attack on the subway system. . . .

Instead, plaintiffs claim that the Program can have no meaningful deterrent effect because the NYPD employs too few checkpoints. In support of that claim, plaintiffs rely upon various statistical manipulations of the sealed checkpoint data.

We will not peruse, parse, or extrapolate four months’ worth of data in an attempt to divine how many checkpoints the City ought to deploy in the exercise of its day to day police power. Counter terrorism experts and politically accountable officials have undertaken the delicate and esoteric task of deciding how best to marshal their available resources in light of the conditions prevailing on any given day. We will not and may not second guess the minutiae of their considered decisions. (internal citations omitted)

Although courts should not take a “know it all” attitude, they must not defer on such a critical question. The problem with many security measures is that they are not a very wise expenditure of resources. It is costly to have a lot of police officers engage in these random searches when they could be doing other things or money could be spent on other measures. A very small number of random searches in a subway system of over 4 million riders a day seems more symbolic that effective. If courts don’t question the efficacy of security measures in the name of terrorism, then it allows law enforcement officials to win nearly all the time. The government just needs to come into court and say “terrorism” and little else will matter.

Today, courts employ a balancing approach toward constitutional rights. Some have argued that constitutional rights are absolutes and that balancing approaches are problematic because the government will almost always win. See T. Alexander Aleinikoff, Constitutional Law in the Age of Balancing, 96 Yale L.J. 943 (1987) for a critique of balancing. I’m a balancer. No right has absolute value. But meaningful protection of constitutional rights requires that courts engage in a rigorous balancing. Rigorous balancing depends upon requiring the government to justify its security measures as having a strong degree of effectiveness. Almost any security measure can be justified as having some marginal benefit. And you can do the math from there. Preventing terrorism has an immensely heavy weight. Any given security measure will provide a marginal benefit toward that goal. At this point, it becomes an exercise in futility to even bother to look at the civil liberties side of the balance. The government side has already won.

Related Posts

1. Solove, NYC Subway Searches Upheld: A Critique of the Court’s Decision (December 2005)

2. Solove, Rational Security vs. Symbolic Security (December 2005)

3. Mazzone, Subway Searches: A View from New York (December 2005)

4. Hoffman, NYC Subway Searches: A Response to Dan (December 2005)

5. Solove, Baggage Checks on NYC Subways – Another Cosmetic Security Measure (July 2005)

6. Hoffman, Deterrence and Subway Searches (response to Solove) (July 2005)

7. Solove, Terrorism, Deterrence, and Searching on the Subway (reply to Hoffman) (July 2005)

1

Victim Privacy vs. Criminal Enforcement

confidential1a.jpgAn article in today’s Washington Post raises a difficult privacy issue:

Promised anonymity in an $84 million settlement with a Kentucky Roman Catholic diocese, men and women sexually abused by its priests are opposing a state judge’s order to reveal their identities and details of the alleged crimes to prosecutors.

The dispute, prompted by the judge’s view that egregious cases of abuse may warrant criminal charges, raises complex privacy questions, and highlights the delicate balance between victims’ rights and the responsibility of legal authorities to punish lawbreakers.

Stanley M. Chesley, a Cincinnati attorney for more than 300 men and women abused by priests in Kentucky as long ago as the 1950s, said the order from Special Judge John Potter came “out of the clear blue,” several months after Potter approved the settlement. Chesley called the ruling “very callous, very broad and very frightening.”

One of Chesley’s clients said he thought hard before reporting the sexual abuse he suffered as a Catholic school student nearly 30 years ago. Until he filed, he had told no one — not his wife, not his mother or siblings, not his best friend who attended the school with him, and certainly not his colleagues or his children.

“It took me forever to do it, because I can’t afford to have my name or my identity exposed,” said the man, who spoke in return for a promise of anonymity. “As a victim, I would be mortified if this were to happen. Put yourself in my shoes. I would be abused all over again.”

The judge believes that the information is necessary for prosecutors to decide whether or not to prosecute the abusers. According to the article:

His order — on hold for 60 days to allow time for an appeal — requires the settlement supervisor to report “every act of suspected abuse” against a minor. The document must describe the circumstances, name the suspect and the victim, and provide the victim’s address and telephone number.

The information is to remain private, the judge ruled, “except as necessary to investigate or prosecute a crime.”

But victims believe that they are being betrayed:

To some plaintiffs, however, the promise of anonymity was crucial to their participation, and they believe it should be irrevocable.

“I guarantee you, I would never have come forward unless I knew there was going to be extreme privacy in this matter,” said the Chesley client, now in his late thirties, who was abused in parochial school.

“I have clients. I have colleagues. If my name were to be put out in some public record to where any Tom, Dick or Harry could access my records, it would severely tarnish my career.

“And,” he added, “I definitely don’t want my kids to know about this.”

This information might put abusers behind bars and prevent them from abusing children in the future. But is it worth the cost of identifying the victims? I believe that the costs outweigh the benefits of disclosure. The victims came forward after being promised confidentiality, and if such promises are not upheld, then it has an impact on all similar promises of confidentiality. Establishing a precedent that promises of confidentiality are not inviolable makes such promises lack the necessary reliability to make people come forward.

0

Immigration Judges Face Annual Review

The New York Times reported yesterday that immigration judges will hereafter be subject to annual performance evaluations. This change in policy is prompted by recent and widespread criticism of their decisions by the federal courts of appeals. The immigration judges have come under attack not just for issuing poor decisions, but also for “bullying” and “brow-beating” the people who appear before them. For example, in a recently decided case, Cham v. Attorney General of the United States, the Third Circuit described the Immigration Judge’s behavior as “cruel” and “abusive,” and directed the case be reassigned to a new judge.

The Department of Justice has recently conducted a comprehensive review of Immigration Judges’ decisions, but has yet to publicly disclose its findings. Since I cannot think of a good basis for withholding findings of an investigation of this kind from the public, I hope that someone pursues access to that information through a Freedom of Information Act request.

4

It’s Time for the Supreme Court to be Heard

microphone.jpgWe are heading into the first full Supreme Court term in 19 years with a new Chief Justice, John Roberts, who is sure to consider changing some of the Court’s policies. So it seems worth asking once again why the Court does not immediately release audio broadcasts of all oral arguments.

Same-day release of oral argument audio tapes was unheard of until December 2000, when the Court permitted it in Bush v. Gore. Since then, the Court has several times allowed the immediate release of oral argument audio tapes in high profile cases, such as those concerning the rights of Guantanamo Bay detainees and challenges to affirmative action programs in higher education. But the vast majority of oral arguments are inaccessible to anyone who cannot wangle a seat at a Supreme Court argument. An official at the Court’s Public Information Office said only that it was the Court’s “tradition” to withhold tapes of oral arguments for release until the start of the next term, months after the cases have been decided. The Court should rethink that practice.

Listening to the arguments provides insight into how cases will likely be decided and perhaps even a view of how future cases presenting related issues will be resolved – information that is too important to be reserved to the handful of Supreme Court bar members who can make it into the courtroom. Although transcripts of oral arguments are published on the Supreme Court’s website, they are not available until approximately ten days after the argument, and in any case a cold transcript is no substitute for an audio recording because the tone of voice, pace of response, and emphasis on certain words and phrasings is lost.

I was in the courtroom in 2002 for the oral argument debating the constitutionality of Virginia’s cross-burning law, and I can attest that only someone who heard the argument could have felt the power of Justice Clarence Thomas’ comments on the history of cross-burning, or understood the impact of his words on the justices’ view of that case. More generally, only those who hear the justices speak can detect sarcasm or disbelief in their voices, or know when they are truly asking questions and when they are making pronouncements about how the case should be decided.

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Lempert on ELS

Richard Lempert, guest-blogging at the ELS Blog, has a great series of posts on empirical scholarship in law. In the first, he observed that:

Too often researchers encourage misuses of their results in conclusions that push the practical implications of their research, even when the more detailed analysis emphasizes proper cautions. While this occurs with empirical students of the law in liberal arts schools by political scientists, sociologists, economists and psychologists among others, the problem tends to be more severe in the empirical work of law professors, perhaps because most see their business not as building social or behavioral theory but as criticizing laws and legal institutions and recommending reform.

In the second, he said:

There is also the question of qualitative data. I am distant enough from the ELS movement that I do not know how its core advocates regard qualitative research, but taking down 5 volumes of the Journal of Empirical Legal Studies that happen to be close at hand I could not help but note that every article in every volume had a quantitative dimension. Each had at least a graph, table, equation or regression and most analyzed and presented results using more than one of these analytic modality. Yet qualitative research is as empirically-based as quantitative research and it can be as unbiased and as rigorous. Moreover, it is often more revealing of relationships legal scholars seek to understand, not to mention more accessible and interesting. Lawyers have done many quantitative studies I find useful and admire, but I would not elevate any of them above, for example, Bob Ellickson’s study of Shasta county when it comes to developing and sharing an understanding of the real world or, in this case, illuminating the limitations of the Coase Theorem.

And most recently, he argued for a deeper appreciation of the role of ground-tested theory:

What is plausible depends, of course, on what we know about the matter we are studying. More than occasionally empirical scholars seem to have little appreciation of context beyond the general knowledge everyone has and the specific data they have collected. Without a deep appreciation of context, even the best scholars may be misled. For example, some years ago Al Blumstein and Daniel Nagin, who were and are among the very best of our nation’s quantitative criminologists, did a study of the deterrent effects of likely sentences for draft evasion on draft evasion rates. For its time the study was in many ways exemplary – variables were carefully measured and analyzed, and it was refreshing to see an investigation into deterrence outside the street crimes and capital punishment contexts. The results of the Blumstein-Nagin research strongly confirmed deterrence theory. Resisting the draft by refusing induction was substantially higher in those jurisdictions that sentenced resisters most leniently. Yet I regarded the study as worthless.

To find out why, and to read more of this powerful (but friendly) critique of the newly dominant methodology in legal scholarship, check out the ELS blog!