December is almost here, ending my guest blogging stint. Many thanks for reading and commenting this month. I’m looking forward to AALS in DC this year, my old stomping grounds. Hope to see many of you there. Otherwise, you can find me on Family Law Prof Blog. Happy Holidays, and until next time,
Margaret
Posted by Margaret Ryznar on November 30, 2014 at 07:34 PM
Thanks to the Prawfs for inviting me to blog once again. There’s lots to talk about this month. For a soft opening, consider the recent New York Times article about the new country club-style shooting ranges, with membership fees in the thousands, rich mahagony, and many leather bound books. I’ve always thought of myself as moderate on the gun control-gun rights debate, so shooting ranges per se don’t bother me. Done correctly, they probably make everyone safer.
These V.I.P. ranges, however, concern me because they increase the divide between the rich and the poor, and gun owners and non-gun owners (see also first class vs. coach on airplanes). This private property rights/capitalism-driven segregation is bad for democracy, and the gun debate in this country could use some good-faith dialog. It makes me appreciate my little YMCA in Grand Forks, North Dakota, where the men’s locker room is a dingy, tight space where liberals, conservatives, and libertarians, and farmers, lawyers, and grocery store clerks all congregate, talk, and bicker about, inter alia, politics and religion.
Posted by Steven R. Morrison on November 30, 2014 at 05:35 PM
Thanks. FWIW, my understanding from a Pew study is that rich and poor support gun rights/control in similar numbers, although there is somewhat more support for gun control in the middle-income range. See here: http://www.pewresearch.org/files/old-assets/pdf/gun-control-2011.pdf
Posted by: Orin Kerr | Nov 30, 2014 11:04:09 PM
Orin, That’s true, but I imagine they’ll also draw gun owners who are looking for a higher-end gun range experience. And even if gun owners at all economic levels now are happy with their shabby gun ranges (where they can all interact), these V.I.P. ranges will, like airlines, concert venues, etc., create the demand. So these V.I.P. ranges will exacerbate segregation in two ways: gun owners and non-gun owners (those who would have played tennis at the club for the luxury/prestige experience and then gone to the range will now simply go to the range for one-stop shopping), and rich gun owners (who go V.I.P.) and poor gun owners (who stay at the shabby range).
So you end up with four classes of people: rich non-gun owners, poor non-gun owners, rich gun owners, and poor gun owners. I have to think that each of these classes of people has experiences and opinions that are democratically valuable to the gun debate. Rich people, for example, might be more likely to favor gun rights than poor people, since they live in safe neighborhoods with little gun violence.
Posted by: Steven R. Morrison | Nov 30, 2014 9:56:29 PM
Can you say more about how this increases the divide between rich and poor? It sounds like the VIP ranges are trying to draw members who otherwise would join a high-end golf or tennis club.
Posted by: Orin Kerr | Nov 30, 2014 9:39:24 PM
As we roll into a new month, we roll into a new set of visiting Prawfs.
Thanks to our November visitors–Michael Helfand (Pepperdine), Adam Kolber (Brooklyn), Jake Linford (Florida State), Kirsten Nussbaumer (Stanford), and Margaret Ryznar (Indiana-Bloomington); they may be sticking around for some final posts this week. Thanks also to Timothy Zick (William & Mary) and Leigh Osofsky (Miami) for their individual solicited posts.
And welcome to our December visitors–Kelly Anders (The Organized Lawyer); Miriam Cherry (Saint Louis); Josh Douglas (Kentucky); Franita Tolson (Florida State); and Steven Morrison (North Dakota). And Richard Re (UCLA) continues his semester-long stay.
And remember that we are always looking for voices to join the Prawfs conversation. If you are interested in joining us for a month in the coming year, please email me ([email protected]) or Paul ([email protected]).
Posted by Howard Wasserman on November 30, 2014 at 12:01 PM
Here is xkcd on the dangers of sloppy brain imaging studies:
(Cross-posted to the Neuroethics & Law Blog)
Posted by Adam Kolber on November 30, 2014 at 03:52 AM
I have seen many unhappy family law cases, but never in a shampoo ad…until now. This Leo Burnett Hong Kong ad, which follows a couple on the brink of divorce, is also a message against divorce in China, where apparently 100,000 couples reconciled last year out of 3 million divorces.
Posted by Margaret Ryznar on November 29, 2014 at 10:00 AM
The latest JOTWELL Courts Law essay comes from co-Section Editor Adam Steinman (now at Alabama), reviewing Allison Orr Larson Factual Precedents (U. Pa. L. Rev. 2013), which explores the extent to which factual conclusions in SCOTUS decisions should be binding on lower courts.
Posted by Howard Wasserman on November 28, 2014 at 03:09 PM
The University of Massachusetts and other colleges and universities have cut ties with Bill Cosby based on the rape allegations against him. However, his alma mater Temple University, for the moment, is standing by their man, notwithstanding alum Kerry McCormick’s petition to dismiss him from the board. Of course, in a metaphysical sense, possibly the allegations are false; remember the person who never met David Letterman, yet got a restraining order against him based on the psychic waves he sent through the TV? But so many allegations, from so many people, who actually knew Mr. Cosby, have the distinct ring of truth; I can’t think of an example where adult, competent people, not influenced by the police and not acting together, falsely made these sorts of charges. One of the reported victims was a Temple employee; particularly for a university under investigation for its handling of sex assault cases, there is more than enough here for Temple to act.
But what should Temple do? I think they should take Mr. Cosby’s claims of innocence seriously.
Rather than firing him outright, they should insist that he strighten the matter out using the tools available to a wealthy person wrongly accused. Mr. Cosby could, for example, waive the statute of limitations for criminal charges in the jurisdictions where these offenses allegedly took place. If, as he said through his lawyers, the claims are “unsubstantiated” and “fantastical,” surely he could easily refute them in court, restoring his reputation. Alternatively, Temple could require him to sue the accusers for defamation, another method of showing that he engaged in no wrongdoing. There too, if there are reasons not to believe the many women who say that Bill Cosby assaulted them, surely he can persuade a jury of that. But what Temple should not do is assume that the alleged commission of serial rapes by one of their trustees is none of their business or no big deal.
Temple put him on their board because he is a celebrity, and wanted the benefit of his reputation, and the have it. Ultimately, Temple will fire Cosby because he is toxic (he fell from third to 2615th in the list of the 3,000 most trusted celebrities); purely on a dollars-and-cents basis, the damage to their brand will be too severe. But it would be a credit to Temple to act based quickly on principle, and a shame if through delay they gave the impression that they are soft on rape.
Posted by Jack Chin on November 28, 2014 at 11:14 AM
“You vastly overrate the ability and the willingness of the general public to sort through elusive legal issues such as actual malice.”
You may be right, but a major branch of academic criminal law proposes that we replace general verdicts of not guilty with special verdicts explaining precisely why someone was acquitted. I criticized this set of arguments because I think no one is paying attention to ordinary criminal cases. Chin, Gabriel J., Unjustified: The Practical Irrelevance of the Justification/Excuse Distinction (April 4, 2009). University of Michigan Journal of Law Reform, Vol. 43, p. 79, 2009; Arizona Legal Studies Discussion Paper No. 09-02. Available at SSRN: http://ssrn.com/abstract=1334291
But just as I think public correctly understood the import of a highly publicized decision like the verdict in OJ’s criminal trial, I think a decision in a Cosby defamation case would be parsed correctly. The media, and therefore the people, would put in the time.
Posted by: Jack Chin | Dec 2, 2014 5:22:12 PM
Posted by: Joe | Dec 1, 2014 5:41:17 PM
“Ultimately, would it not be a fantastic outcome for Cosby to sue for defamation, and then for the women to win a quick dismissal on the “technicality” of actual malice?”
No. The public takeaway would be that Cosby sued for defamation and lost.
You vastly overrate the ability and the willingness of the general public to sort through elusive legal issues such as actual malice. I’m not sure that most law students or meat-and-potato lawyers and judges are all that clear on the concept. I’m quite certain that you could fit into a Twitter 140 character limit that Cosby lost, and could not fit into that limit the complex logic as to why it could be considered a kind of a moral victory.
Posted by: AnonProf | Nov 30, 2014 11:15:50 PM
So you weren’t being ironic? I’m honestly surprised and a bit disappointed. In theory, sure, if you could run the video showing decorous behavior only and present a rape kit that showed no intercourse, maybe Cosby could prove his case, but he would still be a fool to volunteer for a litigation process that could lead to jail time (lesson from the real world of litigation – juries don’t always get it right, which is one reason even litigants with good cases settle. I would like to see your ‘real world’ stats on how many defendants choose felony trials over pre-trial diversion, as that’s pretty much the opposite of the story I hear from the public defenders I know). In the world we live in, none of that exists, on any of these accusers. Someone charged with giving actionable advice would want to go beyond parsing the theoretical limits of actual malice (disregarding that you can count on the fingers of one hand the cases where a public figure has won since lower courts came to understand what Sullivan means, thinking that this time it’s going to be different) and think about what an actual litigation process, criminal or civil, would look like. In the real world, Cosby isn’t able to definitively prove anything, because the evidence isn’t there, and a man principally concerned with his reputation would focus on the fact that people tend to remember the charges and the trial and not so much the outcome. OJ was acquitted – do you think in the court of public opinion he established his innocence? On your main point, that Temple should deal with this sooner rather than later, you surely are right. You would think the slow motion train wreck up at Penn State could have taught them that.
Posted by: AnonProf | Nov 30, 2014 11:01:12 PM
I’m going to stick my neck out and say that a false accusation of rape, made by someone who never met Bill Cosby, or by someone upon whom Cosby never laid a finger, would be found to be actually malicious by most factfinders. In a case like this, proving falsity and proving malice are pretty much the same thing, because there is little likelihood of a good faith misunderstanding. (Similarly, Cosby’s insistence that these women are lying might be defamatory and a way for them to get in to court notwithstanding any limitations problems, and, for the same reason, notwithstanding the malice issue).
In any event, because truth and malice are separate issues (or at least truth is logically prior) it is certainly conceivable that a defamation plaintiff could get a ruling on falsity even on a claim he or she ultimately loses. Also, in Cosby’s case, suing the accusers in itself would send a message about his state of mind. Ultimately, would it not be a fantastic outcome for Cosby to sue for defamation, and then for the women to win a quick dismissal on the “technicality” of actual malice?
And of course as a matter of legal strategy, waiving the statute of limitations usually makes no sense. But my point about waiving the statute wasn’t about lawyer advice, it was about Cosby having a path to the merits if he wants one. Some people place a very high value on their personal honor (recall that many state constitutions, particularly in the South, prohibit dueling, because some people were willing to kill or die rather than be insulted). Because Bill Cosby’s reputation is his primary asset, he may be a person for whom honor is paramount.
In the real world, defendants claiming to be innocent sometimes scornfully reject walkaway diversion or some other non-conviction disposition and insist on a felony trial which could send them to prison rather than admitting, or even not denying, accusations against them. Sometimes in those instances, because the evidence really isn’t there, the case is dismissed entirely or there is a quick acquittal or dismissal by the judge at the close of the government’s case. Sometimes such people come to regret their choice, but calling a bluff isn’t a blunder if the bluffer can’t win.
Posted by: Jack | Nov 30, 2014 1:49:20 PM
Is this appropriate?
https://www.youtube.com/watch?v=V3FnpaWQJO0
Posted by: Joe | Nov 30, 2014 12:06:37 PM
I realize that your suggestions with regard to defamatation and waiving long passed statutes of limitations were about as serious as Jonathan Swift’s proposing that the Irish eat their children, but in being so deadpan I think you feed a theme that I think has real costs for the legal academy. Would any criminal defense lawyer – perhaps setting aside those who end up in front of their state supremem court in Jeffersonian regalia defending themselves against charges of incomprehensible incompetence – actually suggest that a defendant waive a long run statute of limitations? Would any lawyer who knows even a little about how defamation torts work – especially for celebrities – suggest bringing a defamation suit is a realistic vehicle for proving one’s innocence? Of course not. I realize you are just having fun, but in mixing over the top ironic absurdities in with your serious points you run the risk that those prone to believe that “law professors aren’t capable of actually practicing law” will cite this post as a case in point. There are people ready to believe the worst of all of us in the academy, and many of those are the least likely to grasp irony.
Posted by: AnonProf | Nov 30, 2014 12:52:20 AM
The “Hobson’s Choice” option might be the right one, but it is good to know that it is one.
As noted by the first comment, a defamation suit can easily fail, and even if it did not, it is likely it would be worse for Cosby in the end (e.g., quite possible some details, legal in nature they might be, could be released not favorable to such an allegedly family friendly comedian).
Also, though the remark sounds a tad sarcastic (pardon me if it is not), I don’t think “surely” is correct — even if Cosby was innocent, it is far from clear a jury would agree. It would be something of a risk to waive the statute of limitations and set up such liability.
But, such options do offer some succor to Cosby and about as much as deserved regarding the matter at hand. Particularly with the connection to Temple University of one of the alleged victims, the public relations concerns and respect for the accused/women in general, the current approach does have an off feel.
Posted by: Joe | Nov 29, 2014 12:13:15 PM
The problem with the defamation strategy is that Cosby cannot prevail merely by proving falsity–he also must prove actual malice. So it is possible/likely that he could lose the case even if the allegations are false.
Posted by: Howard Wasserman | Nov 28, 2014 3:21:19 PM
My friend and colleague, Bob Rodes — who taught at Notre Dame Law School for nearly 60 years and who published in seven different decades — died on Tuesday morning. During his career, he wrote about the history of the Church of England, courtly love, workman’s compensation, maritime insurance, liberation theology, symbolic logic, legal ethics, jurisprudence, and more. Even at the end, he was working on (yet) another book, a collection of his articles on church-state relations. Here is a very nice announcement and collection of reflections. And, for an insightful and warm introduction and overview to Bob’s work, check out this piece, written by his colleague and friend, Tom Shaffer. In the announcement, our colleague Judge Kenneth Ripple puts it well:
His junior and senior colleagues relate remarkably similar stories about his deep and lasting impact on their lives. U.S. Seventh Circuit Judge and Professor Kenneth F. Ripple provided an apt metaphor in describing Bob’s impact on the Law School: “Every great institution has, as Scripture describes them, ‘living stones’ —individuals who, sometimes at great personal sacrifice, become the foundation of all the accomplishments that come afterward. At Notre Dame Law School, Professor Bob Rodes will always be a supporting part of the foundation of this very special law school. He loved his students; he loved his colleagues; and he loved what he called the ‘legal enterprise’ in which we all work together. He was the voice of the Spirit, always reminding us of our better selves.” . . .
Posted by Rick Garnett on November 28, 2014 at 08:41 AM
Sorry to hear this.
Posted by: Margaret Ryznar | Nov 28, 2014 8:06:12 PM
Sorry for your loss.
Posted by: Ron Turner | Nov 28, 2014 9:44:26 AM
November is a great month: NaNoWriMo, National Adoption Month, and, of course, Thanksgiving. Cue the Christmas music, thanks to holiday creep.
Holiday creep is also responsible for the Black Friday shopping frenzy that now starts on Thanksgiving Day. But a tiny minority of states, such as Massachusetts, kept blue laws on their books: retailers must be closed on Thanksgiving and Christmas. These blue laws date back to the colonial era of the Puritans, and intended to encourage people to go to church instead of work. They now encourage families to stay together for Thanksgiving by keeping stores closed, but there is some thought that they just make people cross state borders to shop (or shop online?).
Whether you are shopping today, watching football, or eating all day, Happy Thanksgiving.
Posted by Margaret Ryznar on November 27, 2014 at 08:00 AM
I am pleased to announce that I and the other founding members of the Collateral Consequences Resource Center have launched a website. We hope the site will become a central resource for people with convictions, scholars, lawyers and policymakers who are interested in the effects of criminal convictions on civil rights, public benefits, family rights and opportunities for employment. If you come across a scholarly article, news story, case, or statutory or regulatory development related to collateral consequences that we should publicize, please send it to [email protected].
Posted by Jack Chin on November 26, 2014 at 03:36 PM
Tim’s final post talks about Monday’s protests turning violent and destructive (and the process being repeated on Tuesday) as a tipping point, in which public (and media) support and attention shifts away from the protesters. I do not know if we have hit that point. There is still much to sort out about what has been happening on the ground the past few nights. And it appears that many of the unlawful mistakes we saw in July (mass arrests of even peaceful protesters, arresting people for recording) are being repeated. And the number of sympathy protests across the country (many far more peaceful) may suggest a deeper level of support.
Nevertheless, Tim’s point about public sympathy reminded me of Walker v. City of Birmingham (which I wrote about last week) and what it indicates about the connection between public speech and public support. The events in Walker occurred during Easter Week 1963, four months before the March on Washington, when the violent response to peaceful were entering living rooms–arguably at or near the height of public support for the movement. But the case did not reach SCOTUS until 1967 (argued in March, decided in June). By that point, we had seen the same shift in public support and sympathy away from civil rights protesters and the movement, given the increasing militancy in the movement, as well as public concern about riots (on race, the war, etc.) throughout the country.
Brennan suspected that the changed social circumstances had influenced the majority in rejecting the protesters’ First Amendment arguments. He closed his opinion with a sharp reminder that public fears about riots should not override the right to peaceful public protest. The first part remains applicable to current events:
We cannot permit fears of “riots” and “civil disobedience” generated by slogans like “Black Power” to divert our attention from what is here at stake — not violence or the right of the State to control its streets and sidewalks, but the insulation from attack of ex parte orders and legislation upon which they are based even when patently impermissible prior restraints on the exercise of First Amendment rights.
Tim is correct that public sympathy wanes. The right of public protest should not wane with it.
Posted by Howard Wasserman on November 26, 2014 at 10:31 AM
I dont know who was in the wrong in the mike brown situation and since i cant seem to find any evidence going either way on NPR or another non biased site i will just jump to the fact that there are plenty of examples of Blatant Police Force and Violations of constitutional rights all the time. That being said protests should become much more common place, it does not however warrant breaking into stores and burning things down. However i will say police are supposed to use layers of force starting with verbal commands and escalating to discharging ones weapon only in a life threatening situation. that being said since mike brown was unarmed the officer should have used a taser or a baton. By the way to the guy named Dude you sound quite prejudice
Posted by: Chance M | Dec 30, 2014 9:56:22 PM
I had to read the comments to make sure that Wasserman was talking about Ferguson. Yes, much to sort out. I’m sure the people whose businesses were destroyed are saying the same thing. “I have much to sort out here.”
Here’s one question. What does Wasserman think the protesters were protesting about AFTER the facts of Mike Brown’s conduct came to light?
Posted by: David | Dec 1, 2014 10:38:55 AM
If you’re protesting on behalf of a thug, don’t act surprised when thugs show up.
Posted by: Zimriel | Nov 30, 2014 5:00:40 PM
When they’re blocking traffic on Interstates and creating hugh traffic backups , they are not only breaking the law, they are endangering people’s lives. That is NOT the way to win supporters. And, going around yelling that it is time for the Communist Revolution isn’t going to win many supporters either.
Posted by: JoyO | Nov 30, 2014 2:21:13 PM
The vast majority of those arrested were from the local community, in both the original (Aug/Sep) and recent rounds of protests/rioting. The activists may have been the primary force in fomenting the violence, but the local “protesters” must have been quick learners (and significantly slower in escaping the scenes of looting/arson).
Posted by: DJ | Nov 30, 2014 10:56:11 AM
What exactly are these protestors asking for? More welfare, more spending in their community so they can destroy it? Immediately firing white ferguson cops and replacing them with black cops? What?
They cannot even articulate what changes to make. They already get priority in contracts, school admissions? So now they do not want to be arrested for robbing from stores?
They just want. They should just be ignored.
Posted by: Dude | Nov 30, 2014 10:27:07 AM
#Willie – Willie, they (fedgov) do it in more subtle ways … take the “Model Cites” project implemented in Detroit for instance in the 60’s …
Posted by: _Jim | Nov 30, 2014 8:33:08 AM
@aub: I didn’t see the federal government looting or burning buildings.
Posted by: Willie | Nov 30, 2014 8:01:59 AM
“Gee, mass illegal actions undertaken by an organized group – that’s not a riot?”
I thought it was called the federal government.
Posted by: aub | Nov 30, 2014 7:49:21 AM
Since this article is a few days old, I note that after having destroyed a lot of property and various areas’ reputation (no-go zones now), the mobs have moved on to targeting shopping centers.
So, we’re on the hook to fund the police (heavy o/t), rebuild what was destroyed, hand out goodies – I presume – as negotiations move front & center.
We’re in the middle of a econ mess (the black unemployment spells deep depression); the state’s in debt, the counties / cities / school dist’s are all in debt; we’re repelled from the no-go zones; the mob is pointing us away from local retail to Amazon. Where will the money come from?
I wonder how we don’t end up being Detroit.
Posted by: egoist | Nov 30, 2014 7:44:57 AM
“And it appears that many of the unlawful mistakes we saw in July (mass arrests of even peaceful protesters, arresting people for recording) are being repeated. And the number of sympathy protests across the country (many far more peaceful) may suggest a deeper level of support.”
Gee, mass illegal actions undertaken by an organized group – that’s not a riot?
Posted by: Barry | Nov 27, 2014 8:27:05 AM
Fair enough. Unfortunately, whether we say “the protests were violent” or “there were violent elements within the protest groups,” the result is the same–tear gas, mass arrests, and dispersal orders directed at the crowd as a whole.
Posted by: Howard Wasserman | Nov 26, 2014 3:40:16 PM
The protests did not turn violent.
There were two separate groups: the protestors and those who were bent on turning the situation into an opportunity for lawlessness. There were many reports of protestors attempting to dissuade the outlaws.
It was also obvious the mainstream media fueled the problem by concentrating almost exclusively on the lawlessness and airing “experts” who did more to foment rage than to dispassionately inform.
The outlaws were primarily responsible, the media second, the protestors a distant third.
Posted by: Phil | Nov 26, 2014 3:31:03 PM
This is the final post on Ferguson from Timothy Zick:
Monday night, peaceful vigils and other protected forms of protest were largely overshadowed by acts of violence and destruction. As headlines attest, the Ferguson “protests” have already been displaced in the news cycle by the Ferguson “riots.” The facts are still coming in, but by most accounts police were not the instigators. The commercial and other costs must be laid at the feet of the lawless, who engaged not in legitimate protest or demonstration but in petty and more serious criminal activities. While their frustration may be understandable, their actions were obviously neither wise nor constructive. The violence was not, as some have suggested, inevitable. Whatever their underlying causes or motivations, the riots were a choice.
There will be additional protests and demonstrations in Ferguson and elsewhere. Hopefully they will be vocal, but peaceful, events. The issues are worth demonstrating about. But as I wrote in my previous post, public sympathy will not be with the protesters forever. Last night may have been a tipping point. The media will focus on Ferguson for a bit longer, but the news cycle will inevitably find other conflicts and the press will move on. Many left behind will have expressed their outrage, or have been affected by the actions of those who did so. What will be the legacy of the Ferguson protests (past, present, and future)?
In the wake of last night’s events, hopelessness seems to be pervasive – particularly among many Ferguson residents, who have been witnesses to the conflict from the beginning. The protests and demonstrations have not been empty or meaningless events. They have pricked the public conscience, highlighted grievances, jump-started conversations about social and political issues, and demanded attention from public officials. It would be unfortunate if rioters tarnished or diminished some or all of these important accomplishments. What happens next depends on forces that lie beyond public streets and other public forums. Too often, protesters do not follow action in the streets with concrete social and political activity. Protests and demonstrations are not ends in themselves. They can be catalysts for change, but only if organizations and associations work to channel their outrage and energy. Expressions of outrage from civil rights leaders are fine. But Ferguson desperately needs an organization, preferably a local group, to take the lead. Other elements of the community can also work toward policy changes. Rioters can trade bricks for ballots, residents can work toward rebuilding or strengthening community ties, and officials can follow through on promises made in the heat of the moment – or be held accountable by higher authorities. What’s next for Ferguson is not at all certain. The protests and demonstrations have created an opportunity and suggested an agenda that includes criminal justice reform and protection for civil rights. For the sake of Ferguson itself, let’s hope that peaceful activists seize that opportunity.
Posted by Howard Wasserman on November 26, 2014 at 09:31 AM
BTW, it’s clear by now that the best description of the Ferguson PD is ‘bandits in blue’. Of course, when they go on an illegal rampage, few people are honest enough to call that a riot, and to demand the imprisonment of the rioters.
Posted by: Barry | Nov 27, 2014 8:32:15 AM
“… and officials can follow through on promises made in the heat of the moment – or be held accountable by higher authorities.”
Please note that the higher authorities, at the state level at least, are quite deliberately *not* holding the local illegals (in blue) to any standard whatsoever.
Posted by: Barry | Nov 27, 2014 8:28:33 AM
