Marks All the Way Down, and the Importance of Conceptual Legal Puzzles

I want to say a few things about a cool, conceptual legal puzzle left open by the Supreme Court’s decision last week in Hughes, but also about why pondering cool, conceptual legal puzzles is important – as abstract and inhuman as they are.

I have previously written (on my own blog) about the meta logic of Hughes v. United States.  In Hughes, the Court had an opportunity to decide how lower courts should interpret fractured Supreme Court opinions where no majority agrees on the rationale behind a decision(Here’s an example of the 4-1-4 prior opinion at issue in Hughes.)  According to Marks v. United States, the governing rationale of a case where no majority can agree on the basis for the decision “is the position taken by those Members who concurred in the judgments on the narrowest grounds.”  Of course, the meaning of “narrowest grounds” is unclear, but in Hughes, the Court dodged the meta question of how to interpret “narrowest grounds” by simply garnering a majority for the decision’s reasoning.

Richard Re and the hosts of First Mondays both noted an interesting possibility if the Court does decide to confront the Marks question head on.  What if the Court fractures on how to interpret Marks, such that there is a 4-1-4 opinion on what to do about 4-1-4 opinions?  This could lead to an interesting paradox where accepting one Justice’s opinion as the controlling one would lead to accepting a different Justice’s opinion as the controlling one.

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The Scope of the Masterpiece Cakeshop Decision Will Be Determined by the Concurrences

Justice Kennedy’s majority opinion in Masterpiece Cakeshop is based on the religious animus of the Colorado Civil Rights Commission, and thus appears, at first blush, to be a narrow ruling.  However, the evidence Justice Kennedy cites for religious animus could mean that the effects of this opinion extend far beyond the parties at issue.  The scope of Matserpiece Cakeshop will depend on whether lower courts take the view of the Kagan/Breyer concurrence or of the Gorsuch/Alito concurrence.

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Can the Court De-Politicize Masterpiece Cakeshop and Janus?

The two most anticipated First Amendment cases of the Term, Masterpiece Cakeshop and Janus, are receiving the worst kind of attention.  The focus of these cases, because of their potentially substantial impact, has been on their politically divisive natures.  However, the efficacy of the First Amendment and the legitimacy of the Supreme Court depend on our faith in the Court’s ability to be principled, instead of purely results-driven.  With so many people watching, the Court has the opportunity to both get it right and de-politicize these two decisions.

Defusing Masterpiece Cakeshop

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Gun Violence, Constitutional Rights, and Classroom-Style Solutions

Yesterday, we watched in horror the coverage of yet another mass shooting at a school, where students experienced the most casualties.  One of the most haunting and poignant interviews was that of a Santa Fe High School student who said she was not surprised by the fact that a mass shooting had occurred in Santa Fe.  She had a feeling that the violence would eventually reach her school.

This is not a way children should feel.  I am an adult, more emotionally and psychologically equipped to deal with fear, and I experience concerns over school shootings.  I have wondered what I would do if a shooter entered my classroom.  I have pondered how far I would go to protect my students.  I have considered (although I have not let it affect my behavior) whether a student upset about a grade might retaliate violently.

My heart goes out to children afraid of violence in schools.  I had the privilege of feeling relatively safe from physical violence when I was a student, and school has always been one of my favorite places.  There are sensible solutions to this national tragedy, and these very natural, human fears, that require us to keep a clear head.   Here are some thoughts on ways to approach these debates to get to those solutions.

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Torts II Final Exam Essay

Respond fully in essay form to the question below. 

Susan Blade is a historian at a local public university.  She studies Egyptian history, and cares only about ancient Egypt, leaving her house only to go to work.  The rest of her time is spent pouring over books.  One day, Susan’s home is broken into, and a robber attempts to steal her things by pointing a gun at her.  Instead, she disarms the robber, ties him to a chair, and calls the police.

The next day, the local newspaper, The Dayton Doodle, runs a story about the attempted robbery.  The story describes Susan as being a kooky recluse, and “not well liked by anyone except ancient, mummified Egyptians.”  The newspaper believed this statement to be true, but, in fact, many people at the university like Susan.  The story also describes embarrassing items that were strewn about the floor during the scuffle between Susan and the alleged robber, including the color of her undergarments, written up in a police report.

Susan brings a defamation lawsuit, based on the statement that she is unlikeable, and a privacy tort claim, based on the description of her undergarments.  Discuss how she will fare on these two claims, noting both the state law elements she must prove and the First Amendment defenses The Dayton Doodle will raise.  Do not discuss damages, only liability.  Also, spend significant time only on contested/close legal issues- some elements/issues can be dealt with in one quick sentence, some need a few sentences of analysis, and others need more development.

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Criminal Procedure Final Essay

(Answer key, including reasoning errors and commons mistakes, below the jump.)

John Paul goes to the police station to complain about the noise his neighbors make at night.  Unbeknownst to John, there is a valid warrant out for his arrest, for stealing a Dodge Viper.  When John shows up at the station, the officers politely tell him to sit in an interrogation room, and they offer him some water and cookies.  One of the officers says to him, “busy day?”  John replies, “Not doing much, just driving around in my Dodge Viper, but I walked here.”  At that point, several other officers enter the room and tell John he is under arrest for stealing a Dodge Viper.  John is read his Miranda rights.  The police officers also have John read back his rights and sign a form saying that he understands his rights.  The police then say to John, “So, you’ve been driving around in a Dodge Viper.  That’s exactly the car that your cousin Ringo claims you stole from him.”  John says, “yeah, I guess I admit it.  I took Ringo’s car.  It’s parked outside my girlfriend’s house.”

The police would like to admit the following pieces of evidence at John Paul’s trial:  (1) the statement made before John was Mirandized, (2) the statement John made after he was Mirandized, (3) the Dodge Viper, that police located based on John’s statement, and (4) John’s handwriting from signing the Miranda form (there were papers left in the Dodge Viper that match John’s handwriting).

Analyze the Fifth Amendment issues, discussing which of the evidence can likely come in at trial.  Show your work – go through the steps systematically.  It’s likely best to analyze the pieces of evidence in the order presented in this hypo question.

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Hecklers of Campus Speakers: Easy Answers and Hard Questions

Last week, I blogged about how a planned Federalist Society talk at CUNY School of Law by Professor Josh Blackman was continuously interrupted for about eight minutes by protesters who believed that his views on constitutional law were equivalent to white supremacy.  (I recommend you watch the video.)  I wanted to draw sensible, constitutional lines between Blackman’s right to the forum and the protesters’ free speech rights.  Given the need to avoid fuzzy, subjective balancing tests in First Amendment jurisprudence and to ensure clear, robust, free speech liberties that protect us all equally, I argued (as many have) that coordinated efforts to disrupt a designated speaker are not protected speech.

Because disruptions executed with intent to seriously undermine a speaker’s use of a designated forum are unprotected, these types of protests-via-disruption can be punished by their public university.   Questions remain, such as whether the CUNY students must be punished.  Below, I will flesh out some easy answers to the campus heckling issue, and some difficult, open, constitutional and policy questions.  I also want to address some of the excellent critical feedback I received from the original blog post.

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Using Speech to Disrupt Speech – Drawing Sensible, Constitutional Lines

When constitutional law scholar and prolific blogger Josh Blackman visited CUNY School of Law this week, he was met with a chorus of “shame” from protesters.  The protesters, armed with signs labeling Blackman as a white supremacist and claiming that his legal analysis was “lazy and wrong,” talked over him in a coordinated way from the front of the room.  The protesters seemed to outnumber audience members, perhaps because prospective audience members were concerned about the stigmatizing effects of attending, given that the protesters also turned their displeasure on audience members.  When the protesters finally let Blackman speak, after admonition from an administrator, he began to engage an audience member about whether legal objectivity is a myth.  The existence of legal objectivity, although not the subject of the talk, was an important meta question, given that the protesters likely do not believe in the full breadth of our constitutional guarantee of freedom of speech, which applies fairly neutrally to everyone, despite the offensiveness of the viewpoint.

The irony is, of course, that these protesters also benefit from our free speech regime, which protects their right to protest, even when their underlying sentiment, as one expressed, is “Fuck the law.”  The way we have drawn lines to resolve the tension between the right to speech and the right to protest speech is the most sensible approach, except for those truly opposed to rule of law and process-based democracies.  Given that law schools have an intellectual and professional mission to educate students in civil, civic discourse and to use logic and argumentation in a restrained, adversarial way, the fact that some CUNY Law students oppose the lines we have drawn is deeply concerning.  Below, I will outline where the right to protest stops being protected speech and starts becoming conduct, and why this line benefits us all.

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On the Framing of Kevin Williamson’s Firing

Last month, The Atlantic, a nonpartisan magazine that provides literary and cultural commentary, hired columnist Kevin Williamson, known for his conservative views and sharp writing.  This decision sparked outcry among those who believed his views, especially on gender issues, to be extreme and bigoted.  Twitter campaigns were launched to convince The Atlantic to fire Williamson, including the #FireKevin hashtag used by the abortion rights group Naral Pro-Choice America.  This week, The Atlantic fired Kevin Williamson.

Editor-in-chief Jeffrey Goldberg explained that while The Atlantic conceives of itself as a “big tent,” a recently uncovered podcast in which Kevin Williamson had previously spoken about hanging women who have abortions was “callous and violent,” and runs contrary to The Atlantic’s tradition of respectful, well-reasoned debate, and to the values of our workplace.”

This firing decision has begun a new round of debates, often (but not exclusively) with a right-left political valence, about which ideas should be accepted and facilitated in mainstream discourse.  The three major ways in which the issue has framed – the intellectual diversity argument, the bigotry against women angle, and the de-platforming angle – all have limitations.  Getting the framing of this issue correct is important to clarifying whether The Atlantic’s decision was appropriate.

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The Meta Logic of Hughes v. United States and How to Get Guidance From Fractured Supreme Court Opinions

Although Supreme Court cases often leave room for various interpretations, seldom does the Court take a case solely to instruct lower courts on the best way to read a prior opinion.  In Hughes v. United States, the Supreme Court will consider both how to read each opinion in the prior case of Freeman v. United States and how to determine which opinion is controlling.  By resolving how to handle fractured cases with no majority rationale, Hughes will also offer meta guidance on how to read cases more generally.

Litigants and scholars have offered various solutions for determining the precedential effect of non-majority opinions.  This post will detail those solutions, which entail the finest, purest legal logic in a fantastically meta case.  My current thinking is that the Court should apply the “logical subset” rule to govern fractured opinions in most cases, except if the logical subset rule produces absurd results.

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