PrawfsBlawg

Libel Law, Linking, and "Scam"

Lyrissa Lidsky — 2013-06-18T15:24:37-04:00

Although I'm a little late to the party in writing about Redmond v. Gawker Media, I thought I'd highlight it here because, though lamentably unpublished , the decision has interesting implications for online libel cases, even though the court that decided it seems to have misunderstood the Supreme Court's decision in Milkovich v. Lorain Journal.

Redmond involved claims against "new media" company Gawker Media based on an article on its tech blog Gizmodo titled Smoke and Mirrors: The Greatest Scam in Tech. The article criticized a new tech "startup," calling it " just the latest in a string of seemingly failed tech startups that spans back about two decades, all conceived, helmed and seemingly driven into the ground by one man: Scott Redmond." The article further suggested that Redmond, the CEO of the new company, used “technobabble” to promote products that were not “technologically feasible” and that his “ventures rarely—if ever—work.” In other words, the article implied, and the title of the blog post stated explicitly, that Redmond’s business model was a “scam.” Redmond complained to Gizmodo in a lengthy and detailed email, and Gizmodo posted Redmond's email on the site. Regardless, Redmond sued Gawker and the authors of the post for libel and false light. Defendants filed a motion to strike under Califonia’s anti-SLAPP statute. The trial court granted the motion, and the California appellate court affirmed.

Unsurprisingly, the appellate court found that the Gizmodo article concerned an “issue of public interest,” as defined by the anti-SLAPP statute, because Redmond actively sought publicity for his company. The court described “the Gizmodo article [as] a warning to a segment of the public—consumers and investors in the tech company—that [Redmond's] claims about his latest technology were not credible.” This part of the decision is entirely non-controversial, and the court's interpretation of "public interest" is consistent with the goal of anti-SLAPP laws to prevent libel suits from being used to chill speech on matters of significant public interest.

More controversial is the court's determination that Gizmodo's use of the term “scam” was not defamatory (and thus Redmond could not show a probability of prevailing). The court noted that “’scam’ means different things to different people and is used to describe a wide range of conduct;” while the court's assertion is correct, surely at least one of the "different things" that "scam" can mean is defamatory. [For a similar statement, see McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) ]. While the term "scam" is usually hyberbole or name-calling, in some contexts the term acts as an accusation of criminal fraud, especially when accompanied by assertions of deliberate deception for personal gain. However, the court found that "scam" was not defamatory as used in the Gizmodo article, relying heavily on the fact that the authors gave links to “evidence” about the fates of Redmond's prior companies and his method of marketing his new one. The court concluded that the statement that Redmond's company was a “scam” was “incapable of being proven true or false.”

It is clear that the court's categorization of the statements about Redmond as “opinion rather than fact” relied on online context--both the conventions of the blog and its linguistic style. The court asserted that the article contained only statements of opinion because it was “completely transparent,” revealing all the “sources upon which the authors rel[ied] for their conclusions” and containing “active links to many of the original sources.” Technology-enabled transparency, according to the court, “put [readers] in a position to draw their own conclusions about [the CEO] and his ventures.” The court also stressed the blog's “casual first-person style." The authors of the article, according to the court, made “little pretense of objectivity,” thereby putting “reasonable reader[s]” on notice that they were reading “subjective opinions.”

As attractive as this reasoning is, especially to free speech advocates and technophiles, one should read the Redmond decision with caution because it almost certainly overgeneralizes about the types of "opinion" that are constitutionally protected. The Supreme Court's 1990 decision in Milkovich v. Lorain Journal clearly and forcefully indicates that a statement is not constitutionally protected simply because a reader would understand it to reflect the author's subjective point of view. Instead, the Milkovich Court held that a purported "opinion" can harm reputation just as much as explicit factual assertions, at least when it implies the existence of defamatory objective facts. Hence, the Court declared that the statement "In my opinion Jones is a liar" can be just as damaging to the reputation of Jones as the statement "Jones is a liar," because readers may assume unstated defamatory facts underlie the supposedly "subjective" opinion. Moreover, even if the author states the underlying facts on which the conclusion is based, the statement can still be defamatory if the underlying facts are incorrect or incomplete, or if the author draws erroneous conclusions from them. The Court therefore rejected the proposition that defamatory statements should be protected as long as it is clear they reflect the authors' point of view, or as long as they accurately state the facts on which they are based. [This analysis is freely borrowed from this article at pp. 924-25, full citations are included there.]

How Effective Must Lawyers Be in Family Law Cases?

Cynthia Godsoe — 2013-06-18T10:58:24-04:00

At risk of inspiring more "breeder" comments, I wanted to write about a very interesting recent decision from the Vermont Supreme Court (h/t to mike frisch of legal profession blog). The court was considering an ineffectiveness of counsel claim in a termination of parental rights proceeding. The court found that counsel was not ineffective. The more interesting question, left unanswered but highlighted by the concurrence, is whether ineffectiveness claims should be allowed in termination of parental rights cases at all.

The criminal system, and potential incarceration or even execution, are undoubtedly punitive. But so is severing all legal ties to your child, often so that he or she can be adopted by another family, leaving you with no further contact. The tremendous impact of termination proceedings led the Supreme Court to mandate they be decided by clear and convincing evidence. The disproportionate power between the state and the defendant (parent) is reminiscent of that in the criminal system. (A number of people have written about the flaws and inequities towards certain types of parents including me in Parsing Parenthood; Marty Guggenheim in a bunch of things including Somebody's Children; Clare Huntington in Rights Myopia in Child Welfare; Josh Gupta-Kagan in Filling the Due Process Donut Hole; and I could go on and on). This imbalance means that a zealous advocate can often be essential to prevailing against the might of the state.

Yet most states do not recognize this doctrine in the family law context--why? One significant reason is the ticking clock of the child's need for a 'permanent' family. Federal law requires that termination proceedings be brought in a certain period of time, so that a child may be freed for adoption. (There are significant flaws in this framework, however, as many thousands of children whose parents' rights are terminated are not adopted, and will never be, leaving them to age out of foster care "legal orphans.") In the Vermont case, I don't think it was a coincidence that the child was very young, under 2 years old I think, and was placed in a loving pre-adoptive home. Reopening the father's termination proceeding would disrupt that new family, and possibly deter future adoptive parents, who were seeking certainty. As the concurrence there stated: "I stress that I have not yet decided that we should allow ineffective-assistance-of-counsel claims in TPR cases. [and] I am stating my skepticism that there is a way to determine whether the assistance of counsel is ineffective in a timely way that is consistent with the permanency needs of the child[.]"

I am also on the fence about this one. Many parents have deficient counsel in termination proceedings, as many defendants do in criminal proceedings, and it is horribly unfair that someone would be forever separated from his child because of this. On the other hand, allowing relitigation of terminations can and will disrupt adoptive or other permanent families for many children.

"Books are Awfully Decorative Don't You Think?"

Darren Rosenblum — 2013-06-18T03:44:01-04:00

This is one of my favorite lines from Auntie Mame, the 1958 romp starring the extraordinary Rosalind Russell. This line is uttered by Mame's nephew's girlfriend, Gloria Upson. It's a hilarious line because it instantly conveys how vapid the character is. And yet...it seems that's precisely what books have become. Take a look at the interior of Warby Parker, the new primarily-internet eyeglass shop. It's a lovely space, inspired by an old fashioned library. Notably, the books are arranged by that most relevant factor, binding color. Who would have thought Gloria Upson would be the forerunner of millenial culture? More importantly for our conversations, how do we teach law to students who experience most books through a search engine?

Repealing the Federal Eminent Domain Power

Will Baude — 2013-06-18T03:40:00-04:00

Ilya Somin notes the renewed House action on the Private Property Rights Protection Act, a federal bill that would eliminate funding for economic development takings like those that would be forbidden by the Kelo dissent. As Ilya also notes, the bill seems unlikely to become law, but the fact that there is any activity at all is a sign that at least some members of Congress would like to cast a symbolic vote for narrowing eminent domain authority, even if it's an authority that the judiciary has upheld.

If so, may I suggest a new way for members of Congress to do that? By repealing the federal eminent domain power. Since 1875, the Supreme Court has held that the federal government has the power to take land through eminent domain. But as I explain at length in the most recent issue of the Yale Law Journal, that decision was probably wrong as an original matter, and was certainly inconsistent with the very widespread understanding and tradition from the Founding until the Civil War. Congress repeatedly avoided using eminent domain (except in the District and territories); when it needed land, the states took it. Even the Supreme Court agreed.

The most that can be said for the modern understanding is that the Supreme Court has upheld it. But the supporters of the Private Property Rights Protection Act have shown that they're willing to pursue their own views of the proper scope of eminent domain, even if the judiciary would uphold a broader one. So perhaps

If that's too radical, there's an alternative. Current federal law doesn't require any specific Congressional authorization for a federal taking. Under 40 U.S.C. 3113:

An officer of the Federal Government authorized to acquire real estate for the erection of a public building or for other public uses may acquire the real estate for the Government by condemnation, under judicial process, when the officer believes that it is necessary or advantageous to the Government to do so.

At a minimum, the House could propose a bill repealing this statute, and requiring that exercises of constitutionally dubious federal eminent domain authority be specifically authorized by Congress.

Geeks, nerds, and zingers

Howard Wasserman — 2013-06-17T22:26:10-04:00

Two items that admittedly have nothing to do with one another.

1) This post, from the blog Slackpropagation, attempts to explain the distinction between geeks and nerds. While the terms overlap (one can be both a nerd and a geek), the basic distinction, which has some appeal, is as follows:

geek - An enthusiast of a particular topic or field. Geeks are “collection” oriented, gathering facts and mementos related to their subject of interest. They are obsessed with the newest, coolest, trendiest things that their subject has to offer.
nerd - A studious intellectual, although again of a particular topic or field. Nerds are “achievement” oriented, and focus their efforts on acquiring knowledge and skill over trivia and memorabilia.

The post then does a pointwise mutual information analysis, looking at what other words commonly accompany geek or nerd. I won't pretend to understand that part. But it's a fun read. (H/T: My FIU colleague Manuel Gomez).

2) At the close of his dissent in Alleyne v. United States (overturning Harris v. United States and applying Apprendi to the floor of a mandatory minimum), Justice Alito closes with the following line: "The Court's decision creates a precedent about precedent that may have greater precedential effect than the dubious decision on which it relies." Colin Starger (Baltimore) wonders about the origins of that line, noting the SSRN abstract for his book chapter in which he speaks of "precedent about precedent" and expressly asks "does the Court's contemporary 'precedent about precedent' have genuine precedential value?" Hmm. Maybe some of what law professors write is of value to judges, at least in dissent.

Today's Decisions

Will Baude — 2013-06-17T14:38:53-04:00

I've noted a few of these points already on Twitter, but here are some items of minor interest to me in this morning's decisions from the Supreme Court. (For more thorough coverage, go to SCOTUSBlog; for my own more thorough thoughts, come visit here later.)

Alleyne:

Justice Thomas writes an opinion joined by the four "liberal" Justices. I can't think of a time this has happened since Atlantic Sounding v. Townsend and United States v. Bajakajian, and both of those were before Justices Sotomayor and Kagan joined the Court. If that's right, I'm pretty sure this is the first time Justice Thomas has assigned a majority opinion as the senior-most Justice. [UPDATE: As a commenter points out, not actually the first time for a CT assignment, or even for this lineup. But still unusual.]
It's interesting that Justice Alito launches a full-on criticism of Apprendi in his dissent (including a citation to the brilliant Jonathan Mitchell, former GMU law professor and current SG of Texas); but it's also interesting that none of the other dissenters (including the Chief and Justice Kennedy) join in.
Not for the first time, I despair of the Court having a coherent theory of stare decisis. Not that there aren't coherent theories, just that the Court doesn't have them.

Salinas:

Justice Thomas's reiterated suggestion that Griffin v. California should be overruled reminds me of why I like Justice Thomas so much.

Inter Tribal Council of Arizona:

Admin law scholars or ambitious students looking for a nice essay topic, see footnote 10: "The [Commission] currently lacks a quorum—indeed, the Commission has not a single active Commissioner. If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to 'compel agency action unlawfully withheld or unreasonably delayed.' 5 U. S. C. §706(1). It is a nice point, which we need not resolve here, whether a court can compel agency action that the agency itself, for lack of the statutorily required quorum, is incapable of taking."
Justice Thomas's willingness to break the don't-cite-Bush-v.-Gore taboo is another reason I like Justice Thomas so much.

Actavis:

That's a lot of citations to legal scholarship in the majority opinion. (I counted 18, but I was counting quickly, and there were a lot of repeat citations to Areeda and Hovenkamp.)

Maracich:

I was skimming the opinion without noticing who was the author until I got to page 26: "The amount of damages sought in the complaint is based on the number of persons,over 30,000 individuals, whose personal and highly sensitive information was disclosed and who were solicited. Whether the civil damages provision in §2724, after a careful and proper interpretation, would permit an award in this amount, and if so whether principles of due process and other doctrines that protect against excessive awards would come into play, is not an issue argued or presented in this case." Must be Justice Kennedy! I thought.
The fearsome foursome of Scalia, Ginsburg, Kagan, and Sotomayor are once again in dissent.

What Does Justice Stevens Think of Gant?

Will Baude — 2013-06-17T03:25:57-04:00

Justice Stevens's remarks at ACS this weekend have gotten some attention in the blogosphere. But one interesting point I haven't seen noted has been what appears to be a slight revision in his view of Arizona v. Gant. Gant restricted the ability of police officers to search the entire body of a vehicle after arresting somebody who had been it. That broad search ability had been thought justified by a case called Belton, written by Justice Stewart, in which Justice Stevens concurred in the judgment.

In Gant, the majority opinion by Justice Stevens went out of its way to claim that the new, narrower, rule was how Belton should have been understood all along. The Court's opinion said that there was "the textual and evidentiary support" for a narrower reading of Belton; it described itself as rejecting a "broad reading of Belton," not overruling it; and it explicitly noted that Justice Stevens had once concurred in the judgment in Belton. Justice Scalia wrote separately to call Justice Stevens's construction of Belton implausible ("I read those cases differently"), though he ultimately "acced[ed] to what seems to me the artificial narrowing of those cases adopted by Justice Stevens," and joined the majority.

Justice Stevens's comments on Gant in his speech sound very different. He now says that he "dissented from Potter Stewart's opinion in the Belton case," (not technically true -- though maybe this is merely an infelicity in the prepared text). He says that he "enjoyed" reading Justice Scalia's footnote that suggested that Gant had rejected Belton, and says that "in the Belton case, I remember being particularly offended because the majority's rule allowed an arresting officer making a traffic stop to search through the driver's briefcase," which is precisely the kind of search that the broad reading (rejected in Gant) would had allowed.

Now, these passages are not pellucidly clear, but it seems like Justice Stevens is now closer to Justice Scalia's view of Belton. If Stevens meant what he wrote in Gant, one would expected him to say that Belton was a good decision that had been misunderstood, not that it was offensive and led to bad results. And recharacterizing his Belton concurrence (as Gant had emphasized) into a dissent seems like another clue. Maybe I'm reading too much into this, but I thought it was noteworthy.

How Could Surveillance Violate the First Amendment?

Will Baude — 2013-06-15T12:03:13-04:00

Howard asks an interesting question about surveillance and the First Amendment. In her concurrence last term in United States v. Jones, Justice Sotomayor said: "Awareness that the Government may be watching chills associational and expressive freedoms." But she didn't provide a citation for this proposition, and the one citation in the rest of the paragraph is to Judge Flaum's concurrence in the Seventh Circuit decision in Cuevas-Perez, which doesn't discuss freedom of expression. So what might Justice Sotomayor be talking about, and is there any merit to it?

The closest analogy I could come up with are the claims for a reporters' privilege in Branzburg v. Hayes. There, the press argues that the First Amendment gives it a privilege against testifying in court in certain cases. There too, the idea seems to be that secrecy and free expression are intertwined, and that people won't talk to the press if they know that the government might later force them to testify about it. But the court rejected the claims in Branzburg and has shown no sign of reviving them in the more modern era. And if anything, the reporters' privilege cases seem to have stronger intuitive force than an anti-NSA "chilling effect" claim; so if the reporters cases fail, the NSA claims fail a fortiori.

The other analogy I could come up with are the Seventh Circuit "Red Squad" cases, which deal with a series of First Amendment challenges to the FBI's investigations and surveillance of various left wing groups (including the ACLU, which is leading one of the new NSA lawsuits). (E.g. here and here.) While the opinions mostly deal with some interesting questions about equitable remedies, the underlying, successful claims were First Amendment claims.

But the core of the Red Squad claims was retaliation and selective prosecution-- that groups had been picked for burdensome or chilling investigations because of their political views, and perhaps in order to suppress those political views. By contrast, from what we know of the NSA programs, they do not have this problem. Whatever their flaws under the statutes and the Fourth Amendment, the collection of data from domestic targets like the ACLU doesn't appear to be targetted (so far as we know); it appears to be indiscriminate. While being indiscriminate might create problems for the program under other law, it actually insulates it from a Red Squad retaliation claim.

Laird v. Tatum, a 1972 Supreme Court case dismissing a surveillance lawsuit for lack of standing confronted a similar chilling effect claim; while the Court did not rule on the merits, it appeared to make a similar assumption-- that the First Amendment might regulate selective targetting on the basis of political viewpoint, but not the chilling effect of indiscriminate information gathering. The Court noted that it had never found a prohibited "chilling effect" to "arise merely from the individual's knowledge that a governmental agency was engaged in certain activities or from the individual's concomitant fear that, armed with the fruits of those activities, the agency might in the future take some other and additional action detrimental to that individual."

So I am skeptical that the First Amendment is a useful way to challenge for challenging the NSA surveillance programs, at least in the absence of retaliation or selective prosecution. But the ACLU has a lot of clever lawyers, so it may well be that they will come up with something that I have not.

Surveillance and the First Amendment

Howard Wasserman — 2013-06-15T08:38:32-04:00

A different question on the PRISM lawsuits: Does surveillance, without more, violate the First Amendment? And if so, how? The argument is that having government watching who and when I'm calling chills my speech and my willingness to engage in important speech. Are there cases holding that government action that chills speech, but does not impose or threaten any formal legal consequence, states a First Amendment violation? For a low-tech comparison, if a municipal government announced that police would video record all public gatherings (which presumably would impose a comparable chill), would that state a First Amendment violation?

Thoughts?

Barnette at 70

Howard Wasserman — 2013-06-14T15:21:08-04:00

Today is the 70th anniversary of West Virginia State Bd. of Educ. v. Barnette, one of the most significant early free speech cases, particularly rhetorically. When I attend the game at Marlins Park this Sunday and I refuse to stand when they play "God Bless America" during the Seventh Inning Stretch, I have Barnette to thank. Interestingly, this anniversary follows on the heels of a list serv conversation about how teachers and school administrators routinely ignore (or forget about or don't know about) Barnette and force students to participate in flag rituals.

After the jump is a post from John Q. Barrett's (St. John's) The Jackson List (a list serv of regular posts and information about Justice Jackson--Barrett is writing a biography of Jackson). It includes some interesting links, including a discussion with two of the girls involved in the case.

Today, June 14, 2013, marks the 70th anniversary of the decision by the Supreme Court of the United States, embodied in Justice Robert H. Jackson's opinion for Court, in West Virginia State Board of Education v. Barnette.

The Barnette decision, rendered amid the commendable patriotism that characterized the United States home front during that dark middle period of World War II, invalidated a West Virginia board of education resolution requiring all public school teachers and students to participate in a salute to the American flag and a recitation of the Pledge of Allegiance.

The case was brought on behalf of students who were Jehovah's Witnesses. In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag. For that refusal, they were expelled from school. Expulsion had the effect of making the children unlawfully absent, which subjected them to delinquency proceedings and their parents to criminal prosecution.

In Barnette, the Supreme Court held, by a vote of 6-3, that the flag salute requirement violated the children's First Amendment rights, which exist to strengthen "individual freedom of mind in preference to officially disciplined uniformity..."

A leading hero of the Barnette case, in addition to the children, their parents and their lawyer, was the Chief Justice of the United States, Harlan Fiske Stone. In June 1940, when Stone was an Associate Justice and U.S. involvement in the war in Europe was impending, he had dissented powerfully but alone from the Court's decision to uphold Pennsylvania’s flag salute requirement. (At that time, Robert Jackson, who was U.S. Attorney General and a Supreme Court nominee, reported to President Roosevelt and the Cabinet on the anti-alien, anti-“Fifth Column” hysteria that was sweeping the country. Jackson criticized the Supreme Court for joining in that hysteria by ruling against Jehovah's Witnesses in the Pennsylvania case.)

By June 1943, Stone had been appointed Chief Justice; new Associate Justices, including Jackson, had joined the Court; and a majority of the Justices was prepared to revisit and rectify what they saw as the Court’s earlier mistake.

Chief Justice Stone assigned Justice Jackson, the junior justice, to write the Court's opinion in Barnette. Although all of it bears reading (and regular rereading), some words to consider particularly closely are Jackson's summary paragraphs:

The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

In the views of many, Barnette is a high point in U.S. Supreme Court history and one of Jackson’s very finest judicial opinions.

* * *

Some links—

· West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)—click here;

· A 2006 roundtable discussion featuring sisters Gathie and Marie Barnett (whose surname got misspelled at some point in the litigation) and related commentary—click here;

· A Jackson List post from earlier this year, “Arguing Barnette”—click here; and

· A 2010 Jackson List post, “The Newest Barnette Sister”—click here.

As always, thank you for your interest and please share this with others.

And in the United States, happy Flag Day! It was just a coincidence that the Supreme Court decided Barnette on Flag Day in 1943, but in history that coincidence is powerful and instructive.

Signing Off, Thanks, and Call for Applications for Petrie-Flom Fellowship

Ivan Cohen — 2013-06-14T10:25:54-04:00

Thanks to the Prawfs' gang for letting me blog this past month. Thanks also to the commentators for their insights. There was a nice symmetry in that I started this stint with the oral argument discussion of my brief for Eric Lander in the Myriad gene patent case, and the decision came yesterday along the lines we urged the court to follow. I will sign off by mentioning that my Center at Harvard, the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, has just opened our call for academic fellows for the 2014-2015 year. Here is the call:

PURPOSE: The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics is an interdisciplinary research program at Harvard Law School dedicated to scholarly research at the intersection of law and health policy, including issues of health care financing and market regulation, biomedical research and innovation, and bioethics. The Academic Fellowship is a postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers. Fellows are selected from among recent graduates, young academics, and mid-career practitioners who are committed to spending two years at the Center pursuing publishable research that is likely to make a significant contribution to the field of health law policy, medical innovation policy, or bioethics. Our prior fellows have found employment as law professors at institutions such as Harvard, UC Berkeley, BU, UCLA, Cornell, the University of Illinois, and the University of Arizona. More information on the Center can be found at: http://www.law.harvard.edu/programs/petrie-flom/.

PROGRAM: Petrie-Flom Academic Fellowships are full-time, two-year residential appointments starting in the summer of 2014. Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. The Center does not impose teaching obligations on fellows, although fellows have often taught a seminar on the subject of their research in the Spring of their second year. In addition to pursuing their research and writing, fellows are expected to attend and participate in research workshops on health law, bioethics, and biotechnology, and other events designated by the Center. Fellows are also expected to help plan and execute a small number of events in their field of expertise during their fellowship, and to present their research in at least one of a variety of forums, including academic seminars, speaker panels, or conferences. The Center also relies on fellows to provide opportunities for interested students to consult with them about their areas of research, and to directly mentor our Student Fellows. Finally, fellows are expected to blog periodically (about twice per month) on our collaborative blog, Bill of Health: http://blogs.law.harvard.edu/billofhealth/

STIPEND AND BENEFITS: Fellows have access to a wide range of resources offered by Harvard University. The Center provides each fellow with a private office, a research budget, options for health insurance, and a stipend of $5,000 per month.

ELIGIBILITY: By the start of the fellowship term, applicants must hold an advanced degree in a discipline that they intend to apply to issues falling under the Center’s umbrella. The Center particularly encourages applications from those who intend to pursue careers as tenure-track law professors, but will consider any applicant who demonstrates an interest and ability to produce outstanding scholarship at the intersection of law and health policy, bioethics, or biotechnology during the term of the fellowship.

JOTWELL: Leong on Levy on judicial allocation of time

Howard Wasserman — 2013-06-14T10:14:06-04:00

The new essay on JOTWELL's Courts Law is by Nancy Leong, reviewing Marin Levy's Judicial Attention as a Scarce Resource: A Preliminary Defense of How Judges Allocate Time Across Cases in the Federal Courts of Appeals, which considers some oft-criticized appellate review processes (staff attorneys, unpublished opinions) in light of resource allocation, considering judicial time as one such resource. The review and the article are both worth a look.

The Fine Details of Molecular Biology

Will Baude — 2013-06-14T09:30:00-04:00

So the most anticipated of yesterday's decisions is obviously Myriad Genetics, the gene-patenting case. (The less said about my embarrassingly wrong prediction in Tarrant Regional Water District, the better!) The Court's decision seems to be pretty much what everybody expected after oral argument. But after straining to follow all of the majority opinion, I enjoyed Justice Scalia's brief concurrence:

I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.

Some people have called this bizarre or mocked it as anti-evolution. Others defend it as intellectual humility. I have to say, my sympathies are with Justice Scalia. Whenever I read a long, complicated fact section in an opinion I cringe. (Which of these facts are really relevant? And if really relevant, how confident are we that they are correct?)

Indeed, Justice Scalia puts me in mind of the work of Allison Orr Larsen, who's written several interesting articles that are skeptical of the Supreme Court's treatment of questions of legislative fact. (I think that the molecular biology in Myriad would qualify as a legislative fact rather than an adjudicative fact, but I am not 100% sure I always understand the distinction.) Given that it is not clear that this is something the Court does well, it may be better for it to do less of it.

I also appreciate Scalia's candor, and wonder if it reflects something about the Court's attitude in its relatively large recent patent docket. Perhaps it is not a coincidence that the concurrence appears in a case where the Court seemed particularly eager to seize a middle position proposed by the government. The Court now has several cases (Mayo, Bilski) where it seeks to intervene in the Federal Circuit's patent jurisprudence withouw necessarily having a super clear idea what it wants to replace it with. Of course, the lack of a fully developed legal theory and the lack of a fully developed understanding of the "fine details" of the facts need not be connected -- but maybe they are. Maybe part of the reason it is hard for the Court to do patent law is because it is hard to understand the underlying science in any of the disputes it actually wants to resolve.

External Monitors and Productivity

Jeff Lipshaw — 2013-06-14T07:57:28-04:00

Maybe this is a generational thing, but up until about six or seven months ago, I just assumed that the screen that came with the computer was the screen you got. This, despite the fact that I saw on a regular basis that my son-in-law Simon, the person I respect most in the world when it comes to technology, had multiple monitors in his home office.

I am pretty sure that the best investment I have ever made in personal productivity, other than the computer itself, is the second monitor. Being able to see multiple documents at the same time, for example, the text of the casebook while I am working on the teachers' guide, is invaluable. In theory, you could do this on a 13" or 15" laptop screen, but either you can't see the documents at the same time or you have to make them so small they are almost impossible to work with.

Here we have a picture of the author's writing cocoon with the 15" MacBook Pro and the 24" Dell external monitor. Note that we are able to have the draft open (the piece for the Larry Ribstein memorial symposium at Illinois this fall) at the same time that we can see one of Professor Ribstein's own articles, and still have room on the screen for Typepad in case, as I have just proved, we have an uncontrollable urge to post something on the blog.

WARNING: I also discovered the large external monitor is wonderful for streaming Netflix, which makes for counter-productivity.

What Are "Unstatutory Conditions"? SCOTUS Punts on Defining the "Market Participant' Exception

Rick Hills — 2013-06-14T03:34:13-04:00

The SCOTUS unanimously punted on an important question of federalism in American Trucking Ass'n v Port of Los Angeles, handed down yesterday. The case involved the Port of Los Angeles' policy of requiring trucking companies seeking to haul goods out of the port to sign concession agreements requiring them to display a placard and observe the Port's off-street parking policies. The Port also enacted a "tariff" -- basically, a local ordinance -- imposing a $500 fine or a six-month jail term on terminal operators (shipping lines, stevedoring companies, and the like) for using truckers that did not enter into a concession agreement.

The Court assumed that the Port's "market participation" would not be preempted by a federal statute barring states from regulating the prices, routes, and services of truckers shipping goods. But the Court declined to say anything about whether exclusion of truckers from the port constituted permissible "market participation" (because, after all, private property owners can exclude concessionaires from their real estate) or forbidden "market regulation" (because the Port is no ordinary owner of property but rather the manager of the largest port facility in the nation). Instead, the SCOTUS relied on the relatively trivial "criminal" sanctions in the tariff to find preemption, declaring that "by implementing a criminal prohibition punishable by time in prison," the Port crossed into obviously "governmental" territory.

It is understandable but unfortunate that SCOTUS chose the better part of valor to duck the central question presented by the Port's program: viz., When can a governmental actor condition a private firm's access to a government-owned facility on compliance with the government's rules? After the jump, I will say a bit about why this "market participant" question is really just a species of a more general problem that I call "unstatutory conditions" and how, like its "unconstitutional conditions" cousin, the problem of unstatutory conditions constitutes an intractable dilemma at the heart of federalism that the Court naturally wanted to dodge.

1. First, what is the problem of "unstatutory conditions"? Unstatutory conditions arise whenever a state or local government has the right under federal law to withhold from a private party some license, permit, property, or contract unconditionally but waives this right on condition that the private party obey some rule that would be preempted by a federal statute if imposed unconditionally. The problem can arise from so-called "market participation," as when the state conditions its purchase of vehicles on their meeting emissions standards that would be preempted if imposed as an unconditional rule. But the problem can also arise in purely regulatory contexts, as when a city requires employers to provide healthcare benefits to their employees but waives the requirement for employers who provide employees with health insurance as part of an employment benefits plan, a benefits plan that the city cannot directly regulate under ERISA.

2. Second, why do unstatutory conditions pose an intractable dilemma? The problem is that either preemption and lack of preemption seem to lead to absurdities.

If one preempts the conditions on the theory that the government should not be able to do indirectly what it is forbidden to do directly, then one might undermine the purpose of the very federal statute that one is trying to implement. The point of preemption, after all, is to provide some private actor with the benefit of uniform national rules that reduce the costs of interstate commerce in different jurisdictions. But if the private beneficiary of preemption would prefer that the subnational government enforce the preempted policy as a way to escape from another subnational policy that is not preempted, then what sense does it make to force that beneficiary to suffer the latter by preempting the former? If truckers, stevedoring, and shipping firms want to be subject to $500 fines for using placard-less trucks in order to obtain access to a larger port facility, then what sense does it make to bar the Port of Los Angeles from giving them this extra option? Community groups had shut down the enlargement of the L.A. port facility for a decade: The trucking rules were needed to win community support for such enlargement. If barring such conditions on access to larger port facilities means smaller facilities and less trucking business, then how have truckers been made better off?

On the other hand, if one embraces the lemma of allowing all such conditions on the theory that compliance is "voluntary," then preemption disappears as a practical matter. By threatening to withhold building permits, contracts, access to ports, business licenses, etc., state and local governments could extract obedience to all sorts of policies that they could never demand unconditionally, such as requiring developers to enter into collective bargaining agreements as a condition for getting a zoning amendment.

Small wonder, then, that SCOTUS ducked the question of whether the Port of Los Angeles could require compliance with its trucking rules as a condition for obtaining access to its facilities. The presence of those "criminal sanctions" made it easy to reverse the Ninth Circuit without saying anything substantial about what sort of "coercive" power or purpose transforms a condition into an unstatutory condition.

Unfortunately, by ducking the issue, SCOTUS has not really provided any substantial guidance for lower courts or subnational governments. By resting its decision on the formal quality of the tariff as a criminal sanction, the Court has left open the possibility that the Port of Los Angeles could achieve precisely the same end that this decision ostensibly forbids by formally "de-criminalizing" its rules for access to their facilities. Suppose that the Port required (for instance) that shippers and stevedores post bonds from which a $500 "penalty" will be deducted (rather than a $500 "criminal fine") whenever the terminal operators use a placard-less truck. In such a case, would the Port be (in American Trucking Ass'n v. Port of LA's words) "act[ing] as a private party, contracting in a way that the owner of an ordinary commercial enterprise could mimic"? In one sense, obviously yes: Any owner of private property can always refuse to do business with a lessee or franchisee who refuses to abide by the former's rules. In another sense, obviously not, because private parties typically do not own ports as large as the port of Los Angeles.

Resting the decision on the fortuitous presence of a formal criminal sanction, in short, did nothing to provide anyone with any guidance. The opinion could be construed as inviting the circumvention described above or instead hinting at limits on the bargaining flexibility of port authorities that, in the end, could injure private port users seeking concessions. One almost wonders why they bothered to grant cert.

Selling Made-To-Order Embryos and the Split on the Right

Ivan Cohen — 2013-06-13T14:09:33-04:00

The New England Journal of Medicine will soon have in print an essay by Eli Adashi and I on the sale of "made-to-order" embryos. The article "Made-to-Order Embryos for Sale — A Brave New World?" has been online for a while already and concerns a recent development in the reproductive technology industry. As we put it:

The proliferation of commercial gamete sources (e.g., sperm and oocyte banks) has opened the door to a made-to-order embryo industry in which embryos are generated with a commercial transaction in mind. This prospect of a for-profit embryo bank is no longer theoretical. Indeed, as recently as November 2012, the Los Angeles Times reported on one such clinic that “sharply cuts costs by creating a single batch of embryos from one oocyte donor and one sperm donor, then divvying it up among several patients.” The report went on to state that “the clinic, not the customer, controls the embryos, typically making babies for three or four patients while paying just once for the donors and the laboratory work.”

Our essay reviews the legal regime that governs it (short answer, in most states it is not illegal or even regulated) and then considers the ethical premissibility of this practice. We examine objections to the practice premised on crowding out of embryo donors, the exploitation or undue inducement of donors, the corruption of reproduction (this is sometimes called "commodification" thought I think that term represents a broader set of arguments, so I use "corruption" in my work to capture the value-denigrating objection specifically in its intrinsic or consequentialist form), and the furthering of eugenic objectives. Throughout the short essay our argumentative strategy is to press on whether this new practice is all that different from existing practices, epsecially the sale of sperm and egg which individuals can themselves put together to create embryos for reproductive use or to destroy in the generation of embryonic stem cells as well as the practice known as 'embryo adoption' or 'embryo donation.' The thing we think is newest here is actually issues related to lack of guidance on the parentage and ownership of embryos in the event of clinic bankruptcy, changes in minds by the donors, or dispositional conflicts (though John Robertson has suggested the law may be more certain than we posit).

The article is short, limited to 1500 words, so obviously we couldn't tackle everyhting. What has been most interesting to me has been a split of opinion on the article in the righter wings of the blogosphere.

The American Enterprise Institute published commentary on our article "'Walking the Ethical Edge: Made to Order Embryos Address Genuine Needs'" beginning with a view that we own our own bodies and pressing on justifications for prohibiting voluntary transactions, concludes our article "offer[s] a thoughtful guidance through the ethical thicket of embryo donation," and that "arping about or in some cases ignoring the failures of the current IVF system, seems the preferred choice for those opposed to even debating the benefits and challenges of a for-profit embryo market. Unless we as a society are determined to reserve the right of reproduction by infertile couples to the wealthy, we should welcome options."

By contrast, the National Review Online has an article "Made To Order Commodities Market" with a more negative reaction. The author claims we've engaged in "sophistry [that] has always been the anything goes in biotech crowd’s primary tool"and concluding ominously "Make no mistake: This means human cloning is coming closer, as selling embryos for use in IVF is just the front for selling cloned embryos for use in research." The author seems to agree with us for the most part that the distinction between existing practices and this new one is thin[fn1] , but would have us reverse those other practices. That is fair enough. We employ an argument from symmetry here and it can be resolved either way, and we don't actually take a position as to whether these technologies should all be permitted or all prohibited just that they are hard to distinguish (that said, anyone who knows my own work can suspect where I would come out, I can't speak for my coauthor on this!)

Both commentaries are interesting and worth reading. What is more interesting to me is the way in which debates on reproductive technology usage, much more so than abortion, really does cleave the right into two. The libertarian wing wants a strong justification for limiting reproductive choices like other choices about what to do with our bodies and likens the debate to that on organ sale. The more socially conservative wing sees this the beginning of slouching towards gommorah. On abortion this fissure is easier to solve, since the claim of fetal personhood allows more libertarian oriented thinkers to adopt Harm Principle type justifications of preventing harm to fetuses as persons . As I noted in blogging about personhood on my last visit, embryonic personhood claims may be harder to sustain, and thus the consensus more easily shattered. I am part of a project looking at the intersection of abortion and reproductive technology advocacy and scholarship, so this room for schism is something I may write more about soon.

[fn1]: The author does suggests that sperm and egg sale are different because there is no "nascent human being." I think he means "person" not "human being" and I've blogged about why that distinction might matters in my last visit and also why one might support certain theories of when personhood begins over others. In any event the theory of personhood the author implictly champions would seem not to distinguish the existing possibility of preembryo destruction, indefinite freezing, stem cell derivation, etc.

Is Motherhood the Real Barrier to Gender Equality at Work?

Cynthia Godsoe — 2013-06-13T11:50:37-04:00

I'll begin by answering my own question. Yes, the data appears to indicate that it motherhood is the biggest barrier to equality for men and women in the workplace. Historian Stephanie Coontz persuasively outlines the existence of what she terms "the motherhood penalty" in a recent column. For instance, one study showed that employers were half as likely to call back a woman whose cv indicated that she was a mother, as opposed to women with similar "fake" cvs that did not. Mothers earn 5 per cent less per hour, PER CHILD, than childless women. And most of the gains women have made in income parity have been by childless women.

So why? Are women themselves opting out of the workplace with motherhood? This is true in part, but often they're not given the choice. (And the hourly wage data outlined by Coontz also indicates this is not the full story). A story from half a century ago is, sadly, still salient. In 1961, graduate student applicant Phyllis Richman received a letter from Harvard asking her to "for [her] own benefit, and to aid [Harvard] in coming to a final decision, kindly write us a page or two at [her] earliest convenience indicating specifically how you might plan to comgine a professional life in city planning with your responsibilities to your husband and a possible future family?" There it is in that last phrase--motherhood, assuredly the future for all married women.

The Harvard professor writing the letter considerately opined that "to speak directly, our experience, even with brilliant students, has been that married women find it difficult to carry out worthwhile careers in planning [or other professions], and hence tend to have some feeling of waste about the time and effort spent in professional education [of any type]." I.e. Harvard was not accepting her, and would not accept her unless her letter outlining her balance of work and family was satisfactory, for her own good. 52 years later, the former professor maintained this position in response to Ms. Richman's belated answer to Harvard's letter, published in the Washington Post last week: "[Ms. Richman,] you were about to make a considerable investment of time and money. I thought it fair that you be aware of employment conditions as I then perceived them." I have had similar experiences. For instance, a former employer asked if I would prefer not to take depositions I had prepared for in a class action case since I would have to, every 4 hours, take a break to pump breast milk for my eldest son. Even if well intended, these types of assumptions deny women the opportunity to choose for themselves how they are going to balance work and parenthood. (Besides, I've never been in a deposition where people did not take periodic bathroom breaks).

Certainly achieving work family balance is not easy. People's choices are constrained by the legal framework in the U.S. which encourages specialization in marriage (as Deb Widiss points out in a recent Atlantic piece) and privatizes support, particularly of inherently dependent children, within the family. Quality child care is extremely expensive and the cost-benefit analysis for many couples, even those with two trained professionals, often dictates that one spouse stays home or "leans out" of the workforce.

However, labor market differences in education and pay don't dictate that this be the mother as often as it is. And the discrepancies are not limited to child care. Women, even working women, continue to do a disproportionate share of housework--recent department of labor data reveals that where both the husband and wife have fulltime jobs, the wife does almost twice as much housework and American men have almost 40 minutes extra per day leisure time than women. (In fact the OECD found that men enjoy more leisure time than women in every one of the 18 countries it surveyed).

Speaking of which, I have to stop blogging because I have to finish a symposium piece and meet with a student, before picking up my kids, stopping by the drugstore, paying the sitter. . .

"There's A Lot of Money in that White Powder" - Telemarketing Edition

Jeff Lipshaw — 2013-06-13T10:59:19-04:00

Those were Sonny's words when the Don asked his view of the narcotics proposal Virgil Sollozzo was bringing to the Corleone Family. The estimable Tom Hagen was more fulsome in his assessment:

Well, I say yes. There's more money potential in narcotics than anything else we're looking at. Now if we don't get into it, somebody else will. Maybe one of the Five Families, maybe all of them. Now with the money they earn, they can buy more police and political power; then they come after us. Now we have the unions, we have the gambling; an' they're the best things to have. But narcotics is a thing of the future. An' if we don't get a piece of that action, we risk everything we have -- I mean not now, but ah ten years from now.

There are many of us who believe that The Godfather is an inexhaustible source of appropriate metaphor, and this morning I apply it to a telephone marketing scheme from what you would think was an otherwise reputable company. And with a certain humility given the number of decisions like this in which I was involved in my corporate career (one only hopes for the better - i.e. "there but for the grace of God go I"), I'm prepared to pass judgment on this one below the break.

THE NARRATIVE

When I got to Michigan, the phone showed a bunch of missed calls from something called "Sears Protection." I erased all the missed calls. But I kept getting a recorded message at exactly the same time of day from "Sears Protection," and as soon as I saw it on the caller id, I hung up on it without listening. Finally, after several days of this, I decided to listen to the message so that if there were a live person I could scream at him, her, or it. The first words, coming from a resonant male voice clearly hopped up on amphetamines (think the guy who does the ESPN Sports Center intros - "THIS IS SPORTS CENTER"), were something like "if you are a senior citizen, you need to be listening to this" and I am pretty the rest was some kind of home security system with an "I've fallen and I can't get up" fillip to it.

I listened through to the end, declined to press 1 to get more details, and the message finished with a nerdy voice telling me that if I didn't want any more of these calls to press another number (whatever it was). So I did, but I thought it was a really obnoxious marketing campaign, and even more obnoxious that to get off the call list, you had to listen to the message. I also thought we had put our number on the FTC's "do not call" registry, but I didn't feel like investing all that much effort at the time.

But the calls kept coming at the same time every day, but with the new feature that when I picked up the phone there was complete silence.

Well, this morning another silent call came in. It interpreted me in mid-flow of my writing what will no doubt be a unreadable and unread law review article, and hell hath no fury like a prima donna author interrupted.

This time I looked up the website of the Michigan Consumer Protection people, got to the national no-call registry, made sure we were registered, and learned that you could file a complaint, even if you are not registered, if it's a recorded call. Which I did.

Then I decide to call Sears, which wasn't quite so easy. There's no number listed on the Sears website for complaints, so I looked up the corporate headquarters number, and called there. And I have to say that the operator promptly transferred me to somebody when I asked for the "complaint department." I also have to say that the person who took my call handled it in what seemed like a serious way. She confirmed that indeed the number was a Sears marketing department, and took down a lot of information about it, including that I thought the entire idea of the campaign was obnoxious (i.e., directing a campaign to seniors in that cataclysmic, apocalytic tone), and that I had already filed a complaint with the FTC. She promised to take my number off the call list, but I told her that I wanted Sears to reconsider just how obnoxious the entire effort was.

Again, I had absolutely no complaint with how the complaint woman handled the complaint. It was kind of funny when she asked me at the end whether, just based on my dealing with her, whether I'd continue to be a Sears customer, to which I replied, "you were fine, but we'll see how it goes."

THE MORAL

In my experience, these kinds of misguided business decisions don't always (although they can) come from some evil or corrupt CEO who makes too much money. Rather, they get made by lots of ordinary Jills and Joes who are just trying to do their jobs. I supposed this falls fairly low on the evil scale, but nevertheless there's a kind of banality or self-deception to it.

I always viewed it as part of my brief to question the sense of a business decision, even when I was simply asked whether what was proposed was legal. So often people do think they are doing the right thing, and are responding to principles like "be profitable" or "make money for the company" or even "make as much money as you can for the company" that are, in my mind, completely unobjectionable if applied with good judgment. To paraphrase a joke I didn't originate, I would have asked about the sense of a GE employee seeking to buy Brazil just because Jack Welch wanted a cup of coffee, even if buying Brazil was wholly legal.

To bring this back to Tom Hagen and Virgil Sollozzo, one of the toughest calls to make is the one in which there's a legal but fishy market opportunity, and if you don't grab it, somebody else will. I don't have a neat answer, because I think one person's legitimate opportunity could look like another person's scam, at least at the margins, and I don't claim to have always made the right call when I was involved.

But it seems to me our job, whether lawyers or business executives in that position, is to be at least self-aware enough to bring the issue of banal marketing stupidity into the open.

The Necessary Thinness of (Most) Commercial Interactions

Eduardo Penalver — 2013-06-12T16:08:09-04:00

A few days ago, AP had a story about a gay couple in Colorado who, in the course of shopping for a wedding cake, had been turned away by a baker who did not approve of the use of his products in a gay marriage ceremony. The ACLU has filed a complaint against the baker on the couple's behalf. The baker is, of course, claiming that, as a matter of religious freedom, he is entitled to discriminate against gay couples. Colorado law prohibits places of public accommodation from discriminating on the basis of, among other things, sexual orientation. So the question, legally, is whether the state's antidiscrimination law violates the First Amendment's Free Exercise Clause. The argument that it does will run into Employment Division v. Smith, which says that the Free Exercise Clause does not require exemptions from laws of general applicability. The baker is going to have a hard time making that case.

We can expect to see more of these sorts of disputes as gay marriage proliferates across the country. In fact, the Colorado case resembles a case that has been rising through the New Mexico state courts and is currently pending before the New Mexico Supreme Court. The New Mexico case involves a wedding photographer who refused to provide her services at a gay comitment ceremony because, in her words, she only handled "traditional weddings." In that case, lower state courts found the photographer's actions to have violated the New Mexico laws prohibiting discrimination in places of public accommodation and rejected First Amendment challenges to the application of those laws to the photographer. The wrinkle in the New Mexico case is that the photographer is arguing that the law burdens freedom of expression, rather than simply the exercise of religion.

The two cases raise an interesting question about the degree to which restrictions on the right to pick and choose among customers inappropriately burden a business owner's legitimate autonomy, whether conceived as religious or expressive freedom. Implicit in both the baker and the photographer's argument is that requiring a business owner to provide a good or service to someone of whom he disapproves (either because of that person's conduct or identity) improperly forces him to identify with or endorse the customer in question. In assessing that argument, I think it is helpful to consider how the law has traditionally defined the rights of owners to select among their customers. As it turns out, for most of the history of the common law, owners of businesses who have held themselves out as open to the public have had quite limited rights to arbitrarily refuse service to customers who have presented themselves as willing patrons. This is a valuable and important principle to affirm. I'll explain why below the jump.

Before the American Civil War, it was understood that at least certain business owners had a duty to serve anyone who sought their services and was able to pay. The precise reach of this duty is a matter of some disagreement. Blackstone described the law in 1765 as follows: ‘‘if an inn-keeper, or other victualler, hangs out a sign and opens his house for travelers, it is an implied engagement to entertain all persons who travel that way; and upon this universal assumpsit an action on the case will lie against him for damages, if he without good reason refuses to admit a traveler.’’ Writing in 1911, Professor and future dean of the Cornell Law School, Charles Burdick, described the duty of the “inn-keeper, or other victualler” of which Blackstone spoke as merely illustrative of a broader duty owed by “anyone who held himself out [as open to the public] to serve all who might apply.”

The duty to serve reached back as early as the fourteenth century, and required any business – known as a “common” or “public” calling – that held itself out as open to the public to serve any member of the public who applied. The distinction the law drew was between someone who practiced a calling on a “common” basis (i.e., putatively open to all who applied) and someone who practiced a particular calling only on a case-by-case basis. The duty to serve applied to the former, and not the latter, but it extended beyond the modern categories of common carriers and innkeepers and encompassed other businesses as well. Burdick describes tailors, farriers (horse-shoers) and even surgeons as "common" in the relevant sense. The limitation of the duty to serve to the categories of innkeepers and common carriers is a later development.

Early U.S. cases affirmed the obligation on public accommodations to serve the public. The usual justification for this obligation was the broad assumption underlying the traditional law of “common callings” that an owner assumes public duties by hanging a sign holding himself out as open to the public. Although before the Civil War cases affirming the duty to serve the public involved innkeepers and common carriers, as Joe Singer has observed, only one pre-Civil War case held that other types of establishments (in that case, a store) were free to choose their customers at will, and that case may rest on fairly narrow grounds, since the patron had gotten into a physical altercation with the owner. The notion that -- with the exception of inkeepers and other narrow exceptions -- business owners who hold themselves out as open to the public nonetheless retain a right to exclude arbitrarily seems to be a product of the Civil War era, and seems to be linked with a desire to preserve the prerogative of business owners to exclude black patrons. Although critics of the Civil Rights Act of 1964 (an its state-law analogs) characterize it as rolling back rights of private ownership, it would be more accurate to say that civil rights laws (partially) restored the status quo that prevailed through most of the history o the common law.

I think the cases involving gay couples show the wisdom of the common law in limiting the discretionary power of business owners to turn away willing and nondisruptive customers on an ad hoc basis. The reason is not just the harm this kind of exclusion does to the dignity of the people turned away. That is surely part of the story, and that dignitary harm should not be understated. Importatly, though, the broad rule protects the shop owner as well, by making the provision of service a normatively thin act. If owners are required to serve all who present themselves, then the act of service communicates no signal of endorsement of the customer or of the group to which the cusomter belongs or of the customer's lifestyle. A message of endorsement crucially depends on imbuing that act of serving the customer with a meaning that is only possible if the act is within the owner's discretion. Creating a robust right of access therefore protects the dignity of prospective customers while minimally intruding on the expressive freedom of owners by emptying the most acts of service of expressive meaning.

Now, pointing to the dotrine of common callings does not answer the question of what to do with the photographer or the baker. But it provides a useful way of reframing the question: are the businesses in question the sort that hold themselves out as open to the public at large such that requiring them to serve is not properly construed as requiring them to endorse or cooperate with the identity or actions of their customers? If so, then it seems appropriate to treat as insubstantial the burden imposed on owners by using the state antidsicrimination law to force them to provide the service (whether sounding in expressive or religious freedom). I think the bakery fairly easily fits within the common callings doctrine. The photographer is a trickier case, because of the personal and somewhat more customized nature of the service rendered. And so it seems appropriate to me that the courts and commentators appear to be taking the photographer's claim fairly seriously.

A tale of two pleadings

Howard Wasserman — 2013-06-12T09:31:00-04:00

Two lawsuits have been filed (so far--expect more) challenging the NSA's "dragnet" surveillance program. The first is Klayman v. Obama, filed in the District of the District of Columbia; the lead plaintiffs are Larry Klayman, the head of judicial watch, and Charles and Mary Ann Strange, the parents of a Navy SEAL killed in Afghanistan, on behalf of all other Verizon customers. The second is ACLU v. Clapper, filed in the Southern District of New York; the plaintiffs are the ACLU and the NYCLU, for themselves as Verizon customers who communicate with members, clients, whistleblowers, and others.

It is worth comparing very different approaches to pleading and to this case. It might even be a worthwhile lesson for class.

1) There is a ton of extraneous noise in the Klayman complaint. It spends time talking about how Klayman and the Stranges have criticized the President. There is a lot of rhetoric about "beyond an 'Orwellian regime of totalitarianism'" and how the "only purpose of this outrageous and illegal conduct is to intimidate American citizens and keep them from challenging a tyrannical administration and government presently controlled by the Defendants, a government which seeks to control virtually every aspect of Plaintiffs, members of the Class, and other American's lives, to further its own, and Defendants 'agendas'" and how this is part of a "pattern of egregious ongoing illegal, criminal activity." Obviously this is all intentional and strategic--an example of what Beth Thornburg has called "pleading as press release." That "tyrannical administration" stuff is going to make for great soundbite, which Klayman almost certainly wants. But it is all legally irrelevant and almost certainly will have no effect on the factfinder. Even the request for damages--in excess of $ 3 billion--seems more designed to get reported on conervative blogs than to actually form the basis for recovery.

This contrasts with the ACLU complaint, which is straightforward and low-key. But the contrast illustrates a genuine strategic and pedagogical question: Does such rhetoric have a legitimate place? And how should we teach students about this, both in teaching pleading in Civ Pro and, more so, in specifically teaching about constitutional litigation in Civil Rights or Fed Courts? Is it comparable to the rhetoric we see in judicial opinions, especially dissents? Or does the comparison fail because judicial opinions are directed outward (to the public, future courts, and future litigants) while pleadings are (or should be) directed only to this court and the parties? One criticism of legal education is that we beat the passion out of students. Should we teach and encourage the sort of empassioned and emotional rhetoric we see in the Klayman complaint? Or should we teach them that there is a time and place--and a complaint is not it.

My instinct is that a pleading is not the appropriate time and place. I always am bothered by the sort of over-the-top language you see in Klayman and would strongly encourage students against this type of thing. Were I the judge, the plaintiff would lose a great deal of credibility with me.

2) Klayman has a lot of legal mistakes (or at least defects), particularly with respect to the effort to get damages. It includes a Fifth Amendment due process claim, which should not be available; substantive due process yields when more specific rights are implicated, such as the First and Fourth Amendments (both of which are pled here). It seeks damages from all defendants, including President Obama, which is, of course, impossible. It asserts state tort claims against all the individual defendants, rather than against the United States, as required by the Federal Tort Claims Act. It asserts a claim against Judge Vinson, the judge FISA Court judge who approved the request, who should have judicial immunity. There are potentially the same problems of supervisory liability that we saw in Iqbal, although a policy is clearly at issue here.

And this one is admittedly nitpicky, but it repeatedly cites Bivens as Bivens v. VI Unknown Named Agents (emphasis added). Are we suddenly in Rome (insert dictatorship joke here)? Or is this the result of some bad "change all"? Obviously, this complaint was drafted in a fairly short time. Still, should we expect more from attorneys? Again, it is about credibility with the judge.

3) The ACLU complaint is as close to one of the Forms as you are likely to see in modern times. It is short--only 38 paragraphs. It doesn't separate into several individual causes of action, with incorporation-by-reference of prior allegations; instead, it simply lists, in separate paragraphs, the three legal rules violated by the program (First Amendment, Fourth Amendment, and a federal statute).

4) Can the plaintiffs in either case establish standing under Clapper? Both sets of plaintiffs should be able to survive the "certainly impending" requirement; because the very nature of the program was to look at all Verizon customers, so any Verizon customer should have standing (perhaps even any customer of Spring and AT&T, as well). But, again, is it that simple? And doesn't that mean that plaintiffs are only going to be able to challenge extraordinarily overbroad programs, but not a slightly narrower one?

To Counter "Sexism's Puzzling Stamina," the State Must "Lean In"

Darren Rosenblum — 2013-06-11T21:31:57-04:00

Today Frank Bruni wrote a spot-on editorial in the New York Times on the persistence of sexism. In it, he talks about how in a wide range of contexts, from cultural representation to sexual assault, sexism continues to plague women. His one comment about economic inequality is this: “I’ll leave aside boardrooms; they’ve been amply covered in Sheryl Sandberg’s book tour.” On this point he could not be more wrong.

Perhaps it’s because I teach contracts and corporations, but it seems to me that economic inequality between men and women is at the root of much of the other forms of inequality. If women earned the same as men, and had the same professional profile, would Hollywood ignore their interests? Would sexual violence against women continue with impunity if women were economically equal? It’s hard to see how economic differences would not be at the root of all of this inequality. Sandberg’s argument that women should “lean in” just does not cut it – it pretends that some focused but voluntary effort might actually shift economic equality.

As if women could collectively will equality into being. Sandberg's wishful thinking will fail because it ignores how our legal system establishes rules to stack men into high power jobs and women onto the mommy track. In the rare instances when women make it ot the top, they face harsher judgment for their failures than their male counterparts, as occurred with Carly Fiorina, a circumstance that fits neatly with the work of Devon Carbado and Mitu Gulati on minorities. Given that women have had near parity among graduates of top professional schools for several decades, structural discrimination must be blocking them from entry into the upper echelon. Blacks and other minorities have equally weak numbers.

The corporate elite has defined standards of competence in ways that exclude women and minorities, a self-preservation move that may be explained using Daria Roithmayr’s recent work. Sandberg’s laudable efforts overlook the central role played by public policy and the need for efforts that target changing men’s behavior. Scandinavia provides two examples of public policy that would have an enormous effect in favoring women’s elevation in the corporate hierarchy.

First, parental leave in the US, like in Sweden, is sex neutral. The United States requires leave but does not mandate that it be paid, making heterosexual families more likely to have (often) lesser paid women stay at home, cutting off their career prospects. Men do not take leave in general. By contrast, Sweden incentivizes men to take leave – it accords more leave to families where each parent takes at least three months. Family leave in Sweden, like in almost every other country in the world other than the United States, is paid. Second, q quotas also play a role, as I’ll discuss on another day. The point is that the state plays a role, whether passively to support sexist norms, or actively to counter them. If someone should lean in, it is the state. It should lean in to encourage egalitarian parental leave policies and to discourage work norms that function to disfavor those engaged in childrearing.