Sunday, December 22, 2013

Beyond Paula Deen, Don Imus, Phil Robertson, and Other Racists Du Jour: Reforming Civil Rights Advocacy

I woke up this morning and wrote the following text that appears in quoted format beneath this paragraph. I posted it as a quote, because I did not publish it as a blog entry.  Nevertheless, I believe the text contains an important message, which readers should understand after they finish reading this blog post in its entirety.
BREAKING NEWS: A coalition students, academics, famous actors, bloggers, and civil rights organizations are staging a massive protest in front of the Florida capitol building. The protesters demand an end to institutional racism in Florida public schools. They claim that historic inequality in public schools has only worsened over time; today, 2/3 of black and Latino students attend schools where they are the only racial group and where over 80 percent of the students qualify for free or reduced lunch subsidies. An abundance of educational research documents the harm caused by poverty schools.  
A study by the US DOJ has also demonstrated that students color color and disabled students in Florida are routinely disciplined for behavior that does not lead to sanctions when white and more able-bodied students engage in the same behavior. Multiple studies show that harsh disciplinary sanctions, such as long suspensions, expulsions, transfers to "alternative education" injure the educational process, lead to criminality, and ultimately place these students in the prison pipeline. 
The protesters want the Governor to fire the State Secretary of Education and to develop programming that will give access to quality education, which in turn would empower them economically and politically. The protests have caused a major whirl on Facebook and other social media, as progressives, liberals, moderates, and even many conservatives have promoted the cause online. Furthermore, a petition at Change.Org has received over 3 million signatures. Stay tuned for more details.
I did not post this essay because it describes a fictional event. It satirizes a dangerous contemporary trend among civil rights activists and organizations. These justice advocates reserve their loudest protests to combat individual bigots of the day. Paula Deen, Don Imus, and Phil Robertson immediately come to mind as examples of "racists du jour." A racist du jour is a lone individual who makes a racially offensive statement, which attracts intense media and public scrutiny. Civil rights activists also condemn the speech. Typically, opponents of the individual's comments, including civil rights activists, demand that the individual lose his or her job. Seemingly, there is no middle ground. Termination is the only option.

I believe that this stark type of activism betrays liberal and equitable principles of flexibility. It applies a one-size-fits-all formula; it also goes for the harshest sanction available. Conservatives engage in the same practices, sometimes regardless of the merits of the argument (think: Shirley Sherrod and Lani Guinier).

Even worse, the repeated advocacy against racists du jour gives the impression that individual bigotry is the most important barrier to disadvantaged groups. This view, however, does not comport with reality. Institutionalized inequality exists, and it does not represent the sum total of individual bigotry. Institutional inequality also has sweeping effects. Its harms are generational; it also causes immediate and long-term material consequences. While Robertson's speech might hurt many people, I am not persuaded that it can top the harms of multiple centuries of repression. Accordingly, the disparate responses to institutional and individualized bigotry among the public, media, and (especially) civil rights activists likely represents misplaced priorities.

Many people describe Dr. Martin Luther King, Jr. as one of the most passionate voices for equality in world history. The recently deceased Nelson Mandela occupies the same list. These men, however, did not limit their work or even focus primarily upon isolated incidents of racism by du jour racists. Instead, they challenged racism and economic inequality that are fashioned in legislation, courts, executives, national culture, churches, corporations, police forces, and other broad societal institutions. These structural demands have given way largely to social movement strategies that focus upon shaming individuals, rather than advocating institutional reform.

I am not claiming that no social justice advocates pursue institutional reform. Nor am I claiming that individual bigotry is unimportant. Instead, given the terribly injurious impact of structural inequality, one would logically expect this issue to occupy center stage within social justice movements. Unfortunately, that is not the case.

People who claim to live according to the philosophy these two champions of equality need to examine their history.  Many of today's social justice advocates will find wide disparities in their activism and the activism of Mandela, King and other successful civil rights leaders of the past. These differences are not simply stylistic. The passage of time and new situations also do not justify these differences. Institutional inequality remains a substantial source of disempowerment.  Ignoring institutionalized inequality or giving it less attention than individual bigotry is a problematic and very limited civil rights strategy.

See also: Duck Dynasty and Discrimination: Firing Phil Robertson Will Not Advance Gay Rights Or Racial Justice!

Friday, December 20, 2013

Duck Dynasty and Discrimination: Firing Phil Robertson Will Not Advance Gay Rights Or Racial Justice!

The latest national crisis involves comments that Duck Dynasty star Phil Robertson made in a GQ interview. Robertson's comments regarding gay men are downright offensive:
"It seems like, to me, a vagina -- as a man -- would be more desirable than a man's anus," Robertson says in the January issue of GQ. "That's just me. I'm just thinking: There's more there! She's got more to offer. I mean, come on, dudes! You know what I'm saying? But hey, sin: It's not logical, my man. It's just not logical." 
Robertson also is asked what he finds sinful. His answer: "Start with homosexual behavior and just morph out from there. Bestiality, sleeping around with this woman and that woman and that woman and those men."
Although Robertson's comments regarding gays and lesbians has received the most attention in the press, Robertson also makes highly problematic statements regarding race. He says that:
“I never, with my eyes, saw the mistreatment of any black person," Robertson is quoted in GQ. "Not once. Where we lived was all farmers. The blacks worked for the farmers. I hoed cotton with them. I’m with the blacks, because we’re white trash. We’re going across the field.... They’re singing and happy. I never heard one of them, one black person, say, ‘I tell you what: These doggone white people’—not a word!... Pre-entitlement, pre-welfare, you say: Were they happy? They were godly; they were happy; no one was singing the blues.”
Robertson's comments mirror a false American cultural narrative that describes blacks as content with Jim Crow.  This narrative is indisputably false. Many blacks did not complain about racism because of the violent repercussions they faced for doing so.  Still many whites, especially older southern whites, accept a myth of black contentment with segregation. Jim Crow was violently imposed upon blacks; it was not a negotiated relationship.

Despite the harshness of Robertson's words, I am uncomfortable with liberal activists who demand that A&E remove him from the show. My discomfort stems from various factors. I have debated this issue with several colleagues today; so I will collect the central themes of these arguments below, rather than exploring each one in enormous detail.

First, Robertson's words were not made during the show. Instead, he made them in a magazine article. Thus, no direct connection between his words and the network exists.

And while the network probably has the right to fire Robertson, most people who are fired for out-of-work speech are not wealthy television stars. And they do not receive huge severance packages and immediate reemployment. Instead, they are average workers, who need to work in order to live.

Often, workplace speech codes are disproportionately enforced against socially vulnerable groups, including people of color and LGBT individuals. If a black person suffers a job loss after contesting racism (inside or outside of the workplace), Supreme Court interpretation of employment discrimination statutes and the First Amendment (which applies to government employers) has made it much easier for private and public employers to avoid liability.  

Second, a rush to fire someone for controversial speech suggests that only one approach -- the least forgiving -- exists to address the situation. A dialogue over the issues and how the speech might harm certain communities seems off the table. Instead, opponents seek blood.

In my own teaching and scholarship, I have criticized US culture for lacking basic compassion for people who transgress certain norms. This unsympathetic culture explains why the US has the highest number of incarcerated individuals in the world and the harshest sentences for nonviolent crimes. The US can be very unforgiving.

Seeing liberals embrace this approach is disturbing.  There are many other things that the network could do under these circumstances (suspension, diversity training, warning, etc.). Instead, Robertson's opponents seek the death penalty.

Third, and most importantly, the anti-Robertson advocacy (once again) elevates isolated incidents of bigotry over structural inequality. Robertson is one private individual. He made his comments during an interview on his own time. A&E did not broadcast the comments during the show. Nevertheless, liberal activists believe the network should fire Robertson for his racism and homophobia. Most contemporary liberal groups follow a similar type of advocacy: Person X says something outrageously offensive. Liberal groups demand that Person X lose his or her job. Person X loses his or her job. Liberal groups rejoice. Person X gets another job. Racism, sexism, and homophobia remain intact.

Individual acts of bigotry excite and inflame the nation much more than structural inequality. As a corporate entity concerned about its profits, A&E would never make the statements that Robertson uttered. But, a cursory look at A&E's lineup reveals that it does not have much in terms of programming for LGBT youth. They are invisible on the network. Furthermore, most of the black and Latino persons on the network are criminals and crime victims (see the numerous weekly episodes of The First 48). The invisibility of LGBT youth and the stereotypical depiction of blacks and Latinos by large cultural institutions can cause much more harm than isolated acts of bigotry. In fact, a large body of psychological literature demonstrates that that cultural and systemic inequality causes more individual distress to minority group members than actual incidents of discrimination. The perception of second-class citizenship and fear of discrimination make them emotionally vulnerable and mentally distressed.

Also, institutionalized oppression limits economic opportunities and political power of marginalized groups. Despite the deep and dispersed harms it causes, institutional oppression does not generate anything close to the animated and loud liberal responses as discrete and isolated bigotry.  For example, if the major newspapers provide an accurate insight into the mindset of antiracist organizations, then Paula Dean, George Zimmerman, and Phil Robertson are the most troubling things to impact persons of color this year. High unemployment, political inequality, resegregation of public schools, and other structural problems seem minor, by comparison.

When I raise this criticism, liberals typically say: "but we can respond to both types of inequality." This is true, but the responses are quite disparate. You "can" respond to institutional inequality, but, typically, you do not.

I am convinced that people who dismiss the importance of responding to institutional oppression doubt its existence, or they believe that simply responding to individual bigotry will mitigate institutional oppression. Institutional inequality, however, is not the sum of individual bigotry. It exists within and outside of individual behavior. The injuries it causes are generational and widespread.

If any form of inequality warrants more attention, it is the structural kind. Yet, liberal activism focuses on individualized prejudice. Firing Robertson will only perpetuate this troubling social movement behavior.

Tuesday, December 17, 2013

Federal Judge Rules Against the NSA in Snooping Case. What's Next?

A federal judge has preliminarily enjoined the controversial NSA spying program. Edward Snowden, a former NSA employee, leaked information regarding the classified program earlier this year.

The judge held that the policy likely violates the Fourth Amendment because plaintiffs have a reasonable expectation of privacy with respect to information that telecoms store regarding their use of computers, phone calls, etc.

The judge distinguished difficult and possibly contrary Supreme Court precedent in part because he believed that the dated case law should not apply in today's world where the implications of technological snooping are quite extreme:
[T]he almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike  anything that could have been conceived in 1979. In Smith the Supreme Court was actually considering whether local police could collect one person 's phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. . . . . The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction.  By comparison, the Government has at its disposal today the most advanced twenty-first century tools, allowing it to "store such records and efficiently mine them for information years into the future" [quoting Justice Sotomayor opinion in a recent Fourth Amendment decision regarding GPS monitoring] . . . . And these technologies are "cheap in comparison to conventional surveillance techniques and, by design, proceed[] surreptitiously," thereby "evad[ing] the ordinary checks that constrain abusive law enforcement practices: limited police . . . resources and community hostility" [id.].
The ruling has sparked debate among law professors, even though the judge has stayed the injunction pending appellate review. Orrin Kerr of the Volokh Conspiracy, for example, describes the ruling as "remarkable" (not in a positive way). Kerr finds the opinion "unpersuasive. . .quite plainly so." I tend to disagree for the reasons the judge stated. The breadth of the NSA program and the conditions of modern technology seem to beg for a different analysis to protect individual privacy. Ultimately, however, the Supreme Court will have to decide this issue.

Misplaced Focus: Procedure and Remedies Probably More Important Than Constitutional Law

Like most lawyers, Kerr and others following the case have focused on the court's discussion of the constitutional issues. This analysis, however, is probably premature or even unnecessary. The judge's ruling only held that the plaintiffs met the standard to receive a preliminary injunction. A preliminary injunction is not a final ruling on the merits. Instead, it simply keeps the defendant from enforcing the policy until a final ruling on the merits, possibly after a full trial.

While these procedural concerns might not mean much for laypersons, they are central to the case at this moment. In fact, an appeals court could overturn the ruling without even discussing the Fourth Amendment. How?

In order to get a preliminary injunction, the plaintiff must meet four factors: a likelihood of success on the merits (likely that the law favors the plaintiff); irreparable injury in the absence of the injunction (harm that monetary compensation cannot remedy adequately); public policy favors issuance of the injunction; and the balance of the equities favor the plaintiff (in the absence of an injunction, plaintiff would lose a lot more than the defendant would gain from having the liberty to enforce the policy). A plaintiff much demonstrate each factor in order to qualify for the injunction.

There are at least two ways to reverse the injunction without turning to constitutional issues (related to the Fourth Amendment).  First, the Supreme Court is very reluctant to enjoin policies related to national security. This is so, even if the defendant has violated the letter of the law. National security could provide a basis to reverse the injunction.

In Winter v. National Resources Defense Council, the Supreme Court reversed a preliminary injunction granted to halt certain naval training operations offshore in California. The plaintiffs argued that the operations could harm protected species of aquatic animals. More importantly, a federal statute literally required the military to submit an environmental impact statement before conducting the activities, but the government did not submit such a statement. Accordingly, the military violated an unambiguous statutory provision.

Despite the fact that the government violated the statute, the Court held that the preliminary injunction was improper. The Court reasoned that it could not second-guess the military on national security concerns (and that it was not clear that the activities would irreparably harm, if at all, any aquatic species). So, national security weighed against issuance of the injunction despite plaintiffs proving actual success on the merits.

The circuit court and the Supreme Court would likely apply similar logic in this case. Rather than delving into the constitutional questions -- which courts wish to avoid if possible -- the appeals court could reverse on the grounds that the opinion does not give enough weight to national security concerns.

Furthermore, the opinion does not even contain a section that "balances the equities" by weighing the harm to the plaintiffs in the absence of the injunction against the harm to the defendant if the injunction is affirmed. This, however, is a mandatory part of the test.

The procedural dimensions of this case provide ample room for reversal -- without examination of the constitutional questions. Law professors (and I am guilty of this as well) routinely rush to analyze substantive legal questions without considering procedural and remedies questions. Procedure and remedies law, however, are probably more central to this case at the moment than the constitutional questions. Accordingly, if the DC Circuit is up to speed on remedies law, I expect a reversal without much discussion of the Fourth Amendment. We shall soon see.

Of course, the appeals court might agree with the district judge -- which would require a substantial analysis of the Fourth Amendment. But, despite my belief that the policy is unconstitutional, I could easily see the appeals court allowing the Supreme Court to cover new ground on this issue; it would take a substantial effort to clarify the doctrine.

Sunday, December 15, 2013

Town Hall Author Jack Kerwick Is Still Wrong [UPDATED]

Jack Kerwick, a columnist for Town Hall, has argued that reducing income inequality would necessarily enlarge the federal government and lead to the demise of liberty. I countered his argument by noting that states deal with these matters on their own and through partnerships with the federal government. Thus, social welfare policies, economic rights or positive rights do not inherently transfer all power from the states to the federal government, thus obliterating our constitutional system.

Kerwick has responded to my critique. But, rather than addressing my arguments Kerwick instead devotes attention primarily to issues that are immaterial to my post. Accordingly, his second essay is just as unconvincing as the first.

The only point of substance that Kerwick attempts to address in his second essay is the fact that states and the federal government partner to ameliorate the conditions of inequality. Kerwick says that this is untrue -- not by challenging the claim factually, but by rephrasing the argument using loaded terms. He says that the federal government "bribes and coerces the states to do its bidding." Well, this is preposterous. Perhaps because Kerwick is not a lawyer (I find it amusing that Kerwick tries to malign my argument by stating that it comes from "a professor, mine you, of Constitutional law") he believes that tossing around such legally coded terms as bribery and coercion in an argument regarding law and politics is acceptable. It is not.

Even conservatives on the Supreme Court have not embraced the argument that the Congress's use of the Spending Power is inherently and inevitably coercive upon states. And, clearly, federal spending programs do not constitute bribery -- in the same way that taxing cigarettes does not coerce people to stop the habit and giving mortgage interest deductions does not bribe people into purchasing homes. These programs incentivize certain behaviors and policies, but states do not have to pursue them (just as people do not have to purchase homes or stop smoking as a result of tax policy). The Court has held that Congress cannot conscript state legislatures, but funding a national program -- often demanded by the states themselves -- and allowing state participation and collaboration is neither bribery nor coercion. Just ask Justice Scalia.

Kerwick does not even type one word regarding my discussion of states taking the initiative to reduce income inequality. Historically, states have done so through a number of programs, like funding (even mandating) public education, public higher education, social welfare subsidies, unemployment insurance, old age insurance, police and fire protection, and a numerous other services that only the wealthiest individuals could afford on their own. It is obvious why Kerwick omits this discussion -- because it negates his own uninformed (and ahistorical) position.

The rest of Kerwick's essay focuses on nonsubstantive issues. He quibbles with terminology that is, frankly, irrelevant to my discussion (federal v. nation, inequity v. inequality). If our positions departed on grounds of terminology, then this issue would be pertinent. But since we disagree on larger issues, he wastes time by addressing these concerns. He also wastes time avoiding the substance of my article and instead writing a dissertation against a parade of evils, like the left, redistribution, socialism, "you didn't build that," Obama, and even Elizabeth Warren! Surprisingly, Kerwick doesn't include Pelosi, Marx, Lenin, Stalin, and other conventional rightwing conversation-stoppers on his list. Because Kerwick fails to reconcile his argument with a robust history of state involvement in the reduction of economic inequality, he remains wrong.

UPDATE: This article sarcastically expresses my surprise that Kerwick does not include "Pelosi, Marx, Lenin [and] Stalin" on his list of horribles. Perhaps he did not want to preempt Bob Rucho, the North Carolina Republican State Senator who headlines many blogs 12/16/2013. Rucho recently tweeted that "Justice Robert's pen & Obamacare has [sic] done more damage to the USA then [sic] the swords of the Nazis, Soviets & terrorists combined."

Tuesday, December 10, 2013

Town Hall Author Jack Kerwick Is WRONG: States Also Help to Combat Income Inequality

Jack Kerwick, a commentator for the conservative blog Town Hall, argues that combating "income inequalities" is antithetical to a "free society." Kerwick's column responds to a recent speech that President Obama delivered regarding economic issues.

Kerwick laces his essay with standard rightwing arguments dismiss the significance of income inequality:
Think about this: of all of the problems in our world, the President of the United States and his ideological ilk view the fact that some people earn more than others as the problem, the one next to which all others pale in comparison, “the defining challenge of our time.” 
No disciple of liberty can so much as begin to relate to the thought that income inequality is a “problem,” let alone the greatest of problems.
Kerwick's comments are susceptible of numerous criticisms. The magnitude of economic inequity raises serious questions about the ability of the United States to compete globally in terms of education and economic productivity. Economic inequity is also linked to crime and ill-health, which greatly impact the nation.

But attacking Kerwick's ignorance of the severe consequences of income inequality is not the purpose of my response. Instead, I write to demonstrate how Kerwick's entire argument implodes in one single passage.

Kerwick believes that addressing income inequity will crush "liberty," by destroying private property, concentrating power into the national government, and, thus, obliterating federalism, checks and balances, and any limitations on the national government. Addressing income inequality would lead to a tyrannical national government.

Kerwick reaches his melodramatic conclusion only by dismissing the role of states and state-national partnerships in the reduction of income inequality. Kerwick contends that "'income inequalities' can be addressed only by a national government, a government in which authority and power are centralized." This utterly false contention destroys Kerwick's entire argument. Numerous examples disprove his contention.

First, the national government often partners with states and local governments to ameliorate the conditions of income inequality and to subsidize poor households. For example, the national government and states partner to administer Medicaid and TANF (what most people describe as "welfare"). The government also provides block grants and other targeted funds to states to fund their own antipoverty programs such as housing assistance and other direct programs for poor people.

Furthermore, the government contributes money to public schools, which states run almost exclusively. Public education is probably the largest shift of income to poor and middle-class people in the country. It has existed since the early-1800s, and it is primarily run by states. Nonetheless, the federal government, recognizing the importance of an educated society, helps to finance public education.  Clearly, if making income inequality a concern of public policy erodes freedom, then this process started in the 1800s, not in 2008.

Second, as the provision of free public education indicates, states have led the charge on many issues related to income inequality. States provided "welfare" subsidies to poor people before the national government. Also, every state guarantees a free public education to its residents, but the US Constitution does not (as interpreted by the Supreme Court). Some states even guarantee protection for certain crime victims (e.g., victims of domestic violence), rather than requiring them to pay for it themselves. States also fund and operate institutions of higher education (which also receive national assistance). These measures, which are often secured to individuals by state constitutions, go much farther than federal programs.

Emily Zackin's recent book, Looking for Rights in All the Wrong Places: Why State Constitutions Contain America's Positive Rights (Princeton University Press) provides numerous examples of state contributions to economic rights. These types of rights have a long place in the nation's history. Kerwick's argument that a concern for income inequality would only enlarge the federal government and kill liberty (or that it would erodes the constitutional structure of government) is simply wrong.

Saturday, December 7, 2013

Political Power, Economic Development, and Green Policies: Gainesville, FL

Recently, I left Washington, DC, and returned to my hometown to teach at the University of Florida Levin College of Law, located in Gainesville, Florida. Gainesville is a mid-sized city. Over the last 30 years, it has grown tremendously. But the city manages to maintain an abundance of green spaces. It is a very environmentally conscious city. This is one thing that makes it appealing.

The City Commission has enacted policies that some residents believe marginalize the interests of the city's poor citizens -- segregated primarily in eastern Gainesville -- while favoring middle- and upper-class residents. Although a full analysis of these policies lie beyond the scope of this article, one such policy has provoked controversy. The city has decided to reduce a major east-west artery from four lanes to two lanes as it moves through a particular neighborhood. The city has previously approved similar policies with respect to other major thoroughfares.

Proponents argue that these decisions can help create new green space and that they will not impact current traffic patterns. Opponents argue that these decisions will in fact aggravate traffic patterns today and in the future as the city continues to grow. Some opponents also believe that the city's traffic policies tend to favor the interests of wealthier citizens who demand the expensive programs, to the detriment of poorer citizens. How do these policies harm poor people? Arguably, they harm poor communities in two immediate ways. First, they allocate scarce financial resources to projects of questionable need that benefit upper-class citizens, while continuing to neglect blighted areas in the city. Also, because economic development is necessary to create jobs that can employ poor residents, any policy that reduces the capacity of the city's major roadways is antithetical to the interests of poor people.

A long debate over these issues has taken place on the Dissenting Justice Facebook page, the Gainesville Sun, and on the Facebook page of a liberal city council member who supported the new project. Instead of rehashing the debate here, I invite you to read the debate on Facebook and in the Gainesville Sun.

Link to Dissenting Justice on Facebook (Please LIKE the page!)

Link to Gainesville Sun coverage (Use discretion reading the comments section!)

Link to commentary on city council member (Susan Bottcher) Facebook page (Although I disagree with the policy, I admire Bottcher for responding publicly. Kudos!)

Finally -- link to my analysis of some of the political issues that the city must address, particularly liberals

Monday, July 15, 2013

Race, Justice, and Trayvon Martin

MSNBC has published my op-ed on the Trayvon Martin tragedy. The essay explores the volatile discussion of race as it pertains to Martin's death and Zimmerman's acquittal. Here is a snippet:
Criminal law research has shown that in tough cases, implicit biases regarding race, gender, class and other factors, often, but not always, allow jurors to fill in evidentiary gaps. This research makes room for a discussion of race in the decision by a nearly all-white jury to acquit Zimmerman.
There was enough circumstantial and direct evidence presented in the trial for a reasonable juror to find that Zimmerman initiated physically aggressive contact with Martin. This finding would virtually negate Zimmerman’s claim of self-defense. Zimmerman admitted that he followed a much younger Martin in his car at night in the rain. Martin was walking home while having a telephone conversation with a friend. As he pursued Martin, Zimmerman muttered angry statements about criminals “always getting away” with their crimes.
Zimmerman, however, killed the most reliable eyewitness for the prosecution. Accordingly, the prosecution lacked direct evidence about what actually occurred when Martin and Zimmerman first met. As a result, a rational juror has room to make inferences based on all of the evidence. A juror could rationally conclude that after getting out of his car and following Martin, Zimmerman either attacked or frightened the teen. This finding would have legitimated Martin’s use of force against Zimmerman. On the other hand, a rational juror could decide not to reach such a conclusion, due to the lack of direct evidence. Circumstantial evidence is indisputably evidence, but it is not always enough for jurors.
Outside of the requirement of reasonable doubt, no rules dictate which choice jurors must make. So long as the verdict is reasonable in light of the evidence, the jury has satisfactorily executed its duty. Moreover, the prosecution cannot appeal an acquittal or demand that the jury explain its decision.
Psychological data regarding non-conscious bias suggests that people often rely unknowingly on cultural biases to make a decision in close cases. Because black men are pervasively depicted as violent and threatening, unconscious stereotyping could lead a fair-minded juror, in a tough case, to dismiss the victim status of a black male decedent and to treat him, instead, as the aggressor. This same research could explain why Zimmerman believed that Martin was “up to no good.”
To view the remainder, please visit MSNBC at this link. Make sure to share and comment as well.  

Thursday, June 6, 2013

Bad Week for Civil Liberties: Obama Administration Collecting Verizon Users' Call Data

Civil libertarian and Guardian journalist Glenn Greenwald published a bombshell this morning. Since April 2013, the US government has been collecting information from Verizon regarding all of its customers calls that were made within, from or to the United States.

The FISA Court approved the government's request and ordered Verizon to turn over the data. Although FISA Court orders are confidential, an anonymous person gave a copy of the Verizon order to Greenwald. 

While the government does not have access to the content of the calls, the court order allows it to demand the phone numbers involved in the calls, the time and duration of the calls, the locations of the callers, and other technical information. Furthermore, the order applies to any calls placed in the US, even if they are strictly local and to international calls made to or from the US. The order also governs any calls, regardless of whether the government has a reasonable basis for believing that either of the callers has committed or is conspiring to commit a crime. For reasons stated below, this order violates the Constitution.

This news follows a Supreme Court ruling, made earlier this week, that also curtails civil liberties. On Monday, the Supreme Court held that the collection of DNA from a person arrested for committing a serious crime does not violate the Constitution. The Court "reasoned" that the collection of DNA is not physically intrusive, because it only involves swabbing the inside of an arrestee's cheek. The Court held that the need to "identify" persons in police custody provides a sufficient justification to collect DNA upon arrest.

The opinion sharply divided the Court. Justice Scalia wrote a powerful dissent. Justice Kennedy, predictably, wrote the majority opinion, which the sometimes-liberal Justice Breyer joined. Some "liberal" constitutionalists, such as Akhil Amar and Neil Katyal, have attempted to justify the Court's decision as a reasonable interpretation of the Fourth Amendment. Others, such as Barry Friedman, contend that the opinion is misguided. I agree with Friedman.

The news regarding the surveillance of Verizon calls helps to explain why the DNA ruling is utterly bankrupt. The Court defended its ruling on the grounds that collecting DNA is not physically intrusive; it only involves a quick swab of the cheek.

But collecting telephone records -- or even listening to calls -- does not intrude upon the object's physical space. In fact, these practices are even less intrusive. Undoubtedly, most Verizon describers did not realize that the government had been collecting details about their calls until today (assuming they even read about current events).

By contrast, the arrestee clearly knows that the government has intruded his or her physical space, albeit minimally, during DNA collection. So, using the Court's logic, the minimal physical intrusion of telephone surveillance could go towards justifying these searches in the absence of a warrant or a reason to believe the callers are actual or potential criminals.

The Court's focus on the physicality of DNA collection diminishes the scope of the Fourth Amendment. The Fourth Amendment does more than guard against bodily intrusion. It also secures the privacy of our "houses, papers, and effects."

I cannot imagine a legal justification for a blanket search of every Verizon call made in, from, or to the United States. Similarly, it is difficult to think of a valid reason to collect a DNA sample from every person arrested (not convicted) for a serious crime. It certainly cannot justify the subsequent use of this DNA in cases unrelated to the arrest. Yet, the Court validated this practice earlier this week.

DNA, like phone calls, contains an abundance of private information about us. The government cannot intrude upon this zone of privacy without reasonable justification. No legitimate reason exists to justify the generalized collection of DNA from arrestees. This same logic applies to the generalized collection of telephone data from every Verizon customer (excluding only calls made between two foreign locations). These practices make a mockery of the Fourth Amendment. For this reason, they are both unconstitutional.

Note: The Obama Administration has rushed to defend its collection of Verizon call data. The White House, sounding eerily similar to President Bush, says that monitoring the telephone data is "a critical tool in protecting the nation from terrorist threats." Apparently, we are all potentially terrorists. Al Gore, by contrast, described the practice as "obscenely outrageous."

Friday, May 31, 2013

Republicans Use Race-Based Affirmative Action to Attract Latino Candidates

Race-based affirmative action is a four-letter word for most conservatives. In fact, most conservatives would probably consider modifying the phrase "affirmative action" with the qualifier "race-based" redundant. Typically, conservatives only target race-conscious affirmative action plans, even though this practice often involves many categories, including sex/gender, poverty, and (increasingly) sexual orientation.

Even though affirmative action is an anathema to contemporary conservative ideology, the GOP has openly embraced this instrument in order to diversify its ranks. Returns from the 2012 election showed that the vast majority of persons of color voted for Democratic candidates. Also, projected demographic patterns predict a substantial increase in the voting power of persons of color. This is especially true in some important Republican states, such as North Carolina, Virginia, Texas, Arizona, and Florida. The growth in Latino voters in those states could make it impossible for Republicans to win national office unless significant numbers of these voters are attracted to GOP candidates.

In response to this reality, Republican leadership has decided to target Latino voters -- apparently deciding that they have no chance of capturing significant numbers of black voters and that the number of Asian-American voters is too small to concern them. Since the election, Republican leaders have made repeated calls for the party to "reach out" to Latinos. Now, they have put money behind this effort.

Today, the GOP announced a national plan to recruit Latino political candidates to the GOP. The Future Majority Project announced that it would spend $6 million to attract Latinos. The Republican State Leadership Committee, which works to increase the number of Republicans holding state political office, operates The Future Majority Project. The project has used similar efforts in the past to recruit women (and even Latino) candidates).

It is difficult to distinguish this initiative from affirmative action. Like affirmative action, this initiative will give Latinos special resources to increase their numbers in state political office. Similarly, schools offer scholarships or special admissions consideration to qualified applicants of color in order to achieve academic diversity. Employers offer jobs or special consideration to qualified persons of color in order to ensure workplace diversity.

The Supreme Court has held that affirmative action is legal to achieve diversity in higher education. Conservatives, however, loathe any consideration of race by state and private parties. This initiative is certainly protected as political speech. Liberal commentators have similarly argued that affirmative action at universities should be analyzed under the Right of Association, which is shielded by the First Amendment (just like political speech). Nonetheless, conservatives remain generally opposed to affirmative action -- unless it is necessary to achieve political victories for the Republican Party.

Read more here:

Wednesday, May 29, 2013

KAITLYN HUNT: Case Raises Questions of Sexuality AND Sexual Orientation

The Kaitlyn Hunt case demonstrates, once again, the tendency of people to reduce complex problems into singular concerns. Hunt, an 18-year-old Florida high school student, was recently charged with felony sexual battery for having sex with a 14-year-old teen who attends the same school.

Two competing narratives regarding the case have developed in media accounts. A liberal narrative depicts the decision to prosecute Hunt as an act of homophobia. A conservative side has recently emerged which contends that the case has nothing to do with sexual orientation.  Instead, the case concerns the regulation of sexuality; Hunt is being prosecuted simply because she violated a gender-neutral Florida statute. This "either/or" analysis, however, obscures the many factors that influence cases like this.

Regulation of Sexual Conduct Among Youths
Although much of the media discussion of the Hunt cases focuses on questions of homophobia and sexual orientation, this case, at a minimum, is indisputably about sexuality. Florida does not allow persons to consent legally to sexual conduct until he or she reaches the age of 18. The law does not contain any gender or sex classifications. Thus, it applies to heterosexuals, gays, lesbians and bisexuals. Accordingly, it is easy to identify sexuality as a factor in Hunt's prosecution.

Sexual conduct among youths is a delicate topic. Many people believe that young persons -- especially girls -- lack the maturity to consent to sexual conduct. In fact, statutory rape laws in many states used to protect female "victims" exclusively. In these states, young males who had sex were effectively viewed as consenting individuals from the standpoint of the law. In 1980, the Supreme Court upheld a California statute of this kind. Those statutes have largely been repealed, and the modern trend criminalizes sexual conduct with minors regardless of gender. 

Rigid application of statutory rape laws have received a tremendous amount of criticism. Historically, critics rightfully argued that statutory rape laws failed to recognize that teenagers commonly have sex with one another and that this conduct is not nearly as problematic as sex between adults and children. Thus, while states can legitimately ban sexual conduct between adults and children, when the two participants are very close in age, these laws can lead to questionable or unfair results.

In response to these arguments, many states have implemented "Romeo and Juliet" exclusions (which is literally heterosexist terminology) to reduce the harshness of statutory rape laws. In many states, consensual sexual conduct among individuals who are close in age, e.g., four years apart, is not considered rape or sexual assault. This is a departure from traditional practice. Florida, however, does not have such an exception. Instead, the state simply allows persons convicted in close-in-age situations to petition a judge to remove the "sex offender" registration requirement, which, if not done, would haunt the young defendant for his or her entire life.

The Hunt case implicates the historical critiques regarding the regulation of sexual conduct among youth. Hunt and her "victim" are both teenagers at the same school. According to media accounts, Hunt said that she loved the victim during a telephone conversation that police recorded. The victim's parents said that their daughter ran away from home to be with Hunt after they demanded that the relationship end. That the victim went to Hunt's house after her parents expressed their displeasure with her relationship with Hunt demonstrates the intimacy of the girls' relationship. In real (even if not legal) terms, the relationship between the two girls was consensual.

In many states, the law would not criminalize this conduct. Florida is not one of those states. The condemnation of Hunt's prosecution reveals that a large part of the public is uncomfortable treating sexual conduct among teenagers as criminal conduct -- certainly as a serious felony. The decision to prosecute Hunt does not take into account the reality of teen sexuality and the harsh collateral consequences that result from labeling teenagers as felons and sex offenders. At least one Florida lawmaker agrees. State Senator Thad Altman (Republican) believes the state should decriminalize consensual sexual conduct among teenagers. Amending the statutory rape law, however, would likely face stiff resistance from conservatives.

Sexual Orientation
Conservatives have recently sought to rebut the argument that sexual orientation is relevant in Hunt's case. The face of the statute does not implicate sexual orientation because it applies to all sexual conduct regardless of the participants' gender. Nevertheless, this does not preclude the possibility that homophobia shaped the decision to prosecute Hunt.

Criminal statutes do not mandate prosecution. Instead, prosecutors have the discretion to bring charges (see below). In many instances, punishable acts of sexual conduct among teenagers are never reported or pursued as criminal cases because either the parents or the participants do not want a criminal case.

Some parents approve of or acquiesce to the reality of teen sexual conduct. Some victims have effectively blocked prosecutions by refusing to testify. Prosecutors can choose to forego charges in cases of uncooperative victims or parents. They can also exercise their independent judgment and decide not to prosecute.

Consequently, when these cases proceed, they often do so based on the parents' wishes. In other words, even if a person has committed statutory rape, the parents (and victims) can influence the decision whether to prosecute. For this reason and due to the prosecutor's general discretion, homophobia could have led to the decision to prosecute Hunt, regardless of the neutrality of the Florida statute.

Many commentators claim that the victim's parents are homophobic. They have denied this assertion. Although it is difficult to read the minds of the victim's parents or the prosecutor, it is not unreasonable to argue that homophobia influenced this case. First, juvenile sex prosecutions have always raised questions of discrimination. For instance, several "black male defendant" and "white female victim" close-in-age prosecutions have generated intense public scrutiny.

In 2003, Georgia prosecuted Marcus Dixon, 18, for having sex with a 16-year-old white teenager who attended high school with him. Dixon, a black male, was a model student with a 3.96 GPA and a scholarship to Vanderbilt University. The state charged Dixon with numerous crimes, including forcible rape, statutory rape, aggravated child molestation, assault, and false imprisonment. Dixon was convicted of aggravated child molestation and statutory rape. He received a mandatory 10-year-sentence for aggravated child molestation.

Under Georgia law, statutory rape charge is a misdemeanor when the participants are close in age. But the prosecutor added on the aggravated child molestation charge, which carried a much harsher mandatory sentence.  Critics argued that the prosecutor and the victim's parents were motivated by race. Ultimately, the state supreme court dismissed the aggravated child molestation charge as inappropriately filed; today, Dixon is a professional football player.

In the past, Georgia law explicitly banned sexual conduct between blacks and whites. Today, it does not. But old habits die hard. If race can influence prosecutorial decisions in these cases, it is reasonable to believe that sexual orientation can do so as well.

And Florida is hardly progressive with respect to sexual orientation. In 2008, Florida voters amended the state constitution to ban same-sex marriage. The measure passed with the support of 62% of voters. Thus, on the question of marriage equality, the state constitution explicitly mandates antigay discrimination.

In 1977, Florida banned adoption by gay or lesbian persons. The state vigorously defended this law in state and federal court less than a decade ago.  In 2008, a state appeals court invalidated the statute. After this ruling, the state relented and refused to enforce the statute or pursue further judicial review.

Florida does not have any statewide law that prohibits sexual orientation discrimination. And while recent polls demonstrate wide voter support for such a law, for the last six years, conservatives have declined to give this such a proposal a hearing or workshop in the legislature.

Given this recent history, the notion that a Florida public official or a family could push for prosecution of an alleged crime due to homophobic intent is not far-fetched. While it is unclear what has actually motivated the parents or the prosecutor, it is not unreasonable to consider homophobia as a possible factor. Even Bruce Colton, the prosecutor on the case, has conceded the opposition to homosexuality could have motivated the victim's parents. Colton, however, denies that he is acting upon the victim's parent's desires, which seems implausible.

Prosecutorial Discretion
As stated above, prosecutors have the discretion to bring charges against a person who has allegedly engaged in criminal conduct. Statutes do not mandate prosecution, and the Supreme Court has treated prosecutorial discretion as an extremely important authority of states and the federal government.

Despite having the power to decline to bring criminal charges, Florida has decided to prosecute Hunt for felony sexual battery. Given the closeness in age of the victims and the possible homophobic motivation of the victim's parents, many people have contested the prosecution. Colton portrays the matter in very simplistic terms: the defendant violated the statute; actual consent is irrelevant; that they attend the same high school does not matter. But this reductionist position overlooks the important issues of sexuality, sexual orientation and fairness that this case implicates.

There are at least three important issues raised by the prosecution of Kaitlyn Hunt. These issues include the regulation of sexual conduct among youths, sexual orientation, and prosecutorial discretion. Hopefully public debate regarding the prosecution of Hunt will become more comprehensive as the case progresses.

Friday, January 25, 2013

David Sirota Unfairly Attacks SEC Chair Nominee Mary Jo White (and Me)

President Obama recently nominated Mary Jo White to serve as the next Chair of the Securities and Exchange Commission. As Chair, White would oversee the entity that is responsible for protecting the investing public from unscrupulous and criminal behavior among investment companies, banks and corporations.

White is a well respected attorney.  She was the United States Attorney for the Southern District of New York (one of the most prestigious prosecutorial offices in the nation) from 1993 to 2002.  White earned a reputation as a tough but fair prosecutor. Her most famous cases include the successful prosecution of terrorists who bombed the World Trade Center in 1993. 

Despite her outstanding reputation as an attorney, White has received early criticism from some progressives who think she would do a terrible job as the SEC Chair. White's critics contend that because she has worked as a white-collar criminal defense attorney, including serving as counsel for large banking clients, she would not strongly enforce securities regulations. Instead, her critics argue that she will protect financial institutions to the detriment of the investing public.

David Sirota: Mary Jo White Is A "Wall Street Enabler"

Progressive blogger David Sirota wrote a forceful critique of White's nomination for Salon. Sirota's article bears the title "Wall Street's New Enabler." From the start, Sirota makes it clear that he is angry with the nomination. Sirota makes the case against White primarily by focusing on her life after she left her position as a federal prosecutor. The fact that White worked as a defense lawyer for banking institutions and defended those clients against actual and potential criminal investigations presumably makes her unfit to chair the SEC.

By his own admission, Sirota was only vaguely familiar with White when he first heard of the nomination.  Nonetheless, with the help of Google, Sirota remembered why she was a poor choice:
Her name should ring a bell, or really, sound a frightening alarm. I knew I had heard of her before, and not in a good way. So I fired up Google this morning and sure enough, I discovered why my superficially good feeling was quickly turning into a deeply ominous nausea. I suddenly remembered that this is the same Mary Jo White who has built the latter part of her career leveraging her position in governmental law enforcement positions to land lucrative private-sector jobs defending Wall Streeters. In moving through that revolving door, she has been a part of a corrupt culture that has weakened the power of the very law enforcement agency President Obama is now nominating her to run (italics added).
These are very strong words -- especially given Sirota's admitted lack of familiarity with White. Based on a simple Google search, Sirota now firmly believes that White is enmeshed in an unspecified but very dangerous culture of corporate corruption.

Sirota also relies upon Rolling Stone reporter Matt Taibbi to support his condemnation of White. Taibbi has criticized the banking industry in written articles and during media appearances. He has also argued that the Obama administration is in-bed with the financial sector, due, in part, to a revolving door of employees between government and private firms. 

In an article titled, "Why Wall Street Isn't in Jail," Taibbi discusses a 2010 conference attended by private and governmental sector employees. Gary Aguirre, a former SEC investigator and whistleblower, attended the conference and provided details to Taibbi.

Mary Jo White, who was now a partner at Debevoise and Plimpton, a prestigious international law firm with many financial sector clients, also attended the conference. At some point during the conference, White provided an introduction for Preet Bahara, then the United States Attorney for the Southern District of New York (White's former position). As a New York City federal prosecutor, Bahara would have jurisdiction over securities-related crimes committed by Wall Street firms.

When Bahara rose to speak, he responded cordially and directed some comments to White: "I want to first say how pleased I am to be here. . . .You've (White) spawned all of us. It's almost 11 years ago to the day that Mary Jo White called me and asked me if I would become an assistant U.S. attorney. So thank you, Dr. Frankenstein." According to Taibbi, this exchange demonstrates the "chumminess and mutual admiration" among the regulators and the regulated.  Sirota agrees with this assessment and concludes that White is too close to Wall Street to protect investors.

Having attended dozens of typically boring legal professional conferences, the banter Taibbi describes as damning sounds more like the amateur comedic one-liners that gray-haired attorneys inexplicably deliver as the opening salvo to dry dissertations. These folks are not late-night comedy material.

Sirota relies on Taibbi's article for another presumably damning story regarding White. Aguirre (the SEC whistleblower) says he received heat and was subsequently fired because he wanted to investigate former Morgan Stanley CEO John Mack for insider trading. According to Aguirre, White talked with the chief investigator for the SEC, who instructed him to discontinue the investigation. Although both Taibbi and Sirota portray this as an example of corruption, it is unclear what, if anything, White did to influence the discharge of Aguirre and the refusal to investigate Mack.

While Taibbi says that Aguirre only wanted to "interview" Mack, every lawyer knows that investigative interviews are not simple chats. They are made in connection with potential prosecution.  Conducting such an investigation with a heavily lawyered target would constitute a waste of resource, unless the government has a clear basis to believe that wrongdoing has occurred. Regardless of what actually transpired, Sirota's portrayal of White as a corrupt lawyer does not rest on any full knowledge he has regarding this situation.

I worked as an attorney in New York City during the early part of White's career as a prosecutor.  Based on my knowledge of her and the assessment of other lawyers, I believe that she would make a good SEC Chair. I express this opinion, however, hoping to find out more information about White's ties to Wall Street, whether these connections would prevent her from performing her obligations as chair, and the ways she would use her position to root out illegal banking practices and to protect the investing public.

As a progressive, I believe that White deserves the dignity of open discourse. Progressives should not reach rash decisions, based on vague memories, quick Google searches, and information supplied by one journalistic source. The Left often criticizes the Right for behaving in this fashion.  Factless arguments are just as disturbing when they come from the Left.  

Sirota Unfairly Attacked Me

I posted a 2-paragraph response to Sirota on his Facebook page and a few short responses on Twitter. Although these messages are not as detailed as this blog post, they basically convey the same points: that Sirota has rushed to judgment and is especially wrong to raise White's defense work as a strike against her. Sirota went ballistic, responding with an onslaught of angry, desperate Tweets.

Sirota described my posts as a "slanderous lie"; a "deliberate malicious lie"; he urged me to "get a life -- and some legal training." I informed him that I was a law professor (who, by the way, graduated from Yale Law School 19 years ago). He said I am "willfully ignorant."  Finally, in two separate posts, Sirota said "fuck you." Since that time he has deleted the "fuck you" posts. Sirota's charged responses cannot cover his empty analysis.  Note: A screen capture of Sirota's posts appears below this post; my Twitter page can be found at this link.

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