Judge Kozinski Should Be Censured.  I Am Not Sure If He Should Step Down.

As a jurist, Judge Kozinski has always been one of my favorites.  Ever since law school, where I learned that many judges on the right and the left promote their own ideologies over fair-minded legal analysis, Judge Kozinski provided an inspiring counter-example.   His opinions on privacy rights and free speech particularly delighted me.  Of course, one might argue he decided cases using an ideological lens of libertarianism, but he grounded his analysis in constitutional theory, at a higher level of abstraction and removed from partisan crassness.

I knew Judge Kozinski worked his clerks very hard, and I always felt a bit sorry for his clerks (especially when considering my own, idyllic Sixth Circuit clerkship where we worked hard, but also had time to explore a new city).  However, I believed that the long hours his clerks were required to work were a testament to the seriousness and dedication Judge Kozinski brought to his task.  Again, I found this approach inspiring.

A few years ago, I began hearing rumors that Judge Kozinski took liberties with his female clerks that seemed, at the time we would discuss them, mostly just shockingly creepy and highly inappropriate.  I did not know if these rumors were true, but the buzz circulating was that he touched female clerks on the shoulders inappropriately and had a penchant for attractive clerks.  I did not know the extent to which Judge Kozinski was exerting his authority to bully clerks and force them into uncomfortable, horrifying sexual situations.  His behavior, even knowing the rumors and waiting for them to come out in the aftermath of #metoo, is extreme and surprising.

Continue reading “Judge Kozinski Should Be Censured.  I Am Not Sure If He Should Step Down.”

Conversation with Uber Driver as Socratic Dialog on Masterpiece Cakeshop

I will now recount, as accurately as possible, a conversation I had with an excellent Uber driver, Rick, on Masterpiece Cakeshop. (Uber drivers are often extremely excited to discuss First Amendment law.) This conversation exemplifies some proper and improper ways of framing the case, which involves whether a Christian baker has a First Amendment right to refuse to make cakes for same-sex weddings.

Rick: So here’s what I don’t get about the case.  I understand the potential First Amendment right of the baker, but where does the state get the right to force labor out of people?

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Oral Argument in Masterpiece Cakeshop, Justice by Justice

The Supreme Court heard oral argument today in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  This case will decide whether Colorado’s public accommodations statute violates the First Amendment when it requires a Christian baker to create a custom-made cake for a same-sex wedding.  For background and legal analysis on the case, I have written a blog series, the last post of which is here.

In deciding this case, the Court must choose between three legal frameworks.  (1) If Jack Phillips’ cakes are considered pure speech, the Court will likely strike down Colorado’s antidiscrimination provision as applied to Masterpiece Cakeshop.  (2) If the Court considers selling the cakes simply conduct, Colorado can apply its statute to require Phillips to sell cakes to same-sex couples.  (3) A middle position, and one I believe is correct, is the view that the cakes are expressive conduct.  In that case, Colorado can likely apply its statute to Masterpiece Cakeshop unless Colorado is deemed to selectively apply its public accommodations statute in ways that penalize certain viewpoints.

This oral argument post will detail the ways each Justice framed the case.  I have ordered the Justices from the Justice who seems most inclined to side with Colorado to the Justice who seems most inclined to side with Masterpiece Cakeshop.  The Justices spent most of the argument battling with the unfortunate consequences that would arise no matter what the ruling in this case.  Any ruling, as became apparent from oral argument, will be problematic, either for free speech liberties or for civil rights.

The four oral advocates in this case are: KRISTEN K. WAGGONER, for Petitioners Masterpiece Cakeshop and Jack Phillips; GEN. NOEL J. FRANCISCO, Solicitor General, Department of Justice, as amicus curiae, supporting Petitioners; FREDERICK R. YARGER, Solicitor General, Denver, Colorado; on behalf of the State of Colorado, Respondent; and DAVID D. COLE, of the American Civil Liberties Union.; on behalf of the private Respondents Charlie Craig and David Mullins, who wished to purchase a cake for their wedding from Masterpiece Cakeshop.

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If you love Jeopardy!, and you love Torts, this is the game for you.  Host at least two teams, and use the following rules — as played with my Torts class on our last class of the semester (substitute your own fun facts about the team members for the “Name that Student” category).

  • The host does not show the questions in advance.  The last team that answers a question correctly selects the next category and point value.
  • When a team member selects a category, anyone from any of the teams can buzz in as soon as he or she wants by simply saying the word “buzz,” without conferring with the team.  At that point, the host stops reading the question.  Only the person who buzzed in can answer the question, with no help from team members.  If that team gets it wrong, the host will continue reading the question until another team buzzes in.  A team can choose not to attempt to answer a question.
  • The first team to answer a question correctly gets the points for that question.
  • A team gets the allotted amount of points if it answers a question correctly, but the allotted points are deducted if the team answers incorrectly.
  • For Final Tortspardy!, each team confers and decides how much to wager, before seeing the question.  Each team can wager up to the total amount of points that team has.  The team can then confer when answering the question.
  • Players do not have to answer in the form of a question.

Questions below. Categories are duty, breach, causation, miscellaneous, and name that student. 

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When and How Should Courts Use Math?

In Gill v. Whitford, the Supreme Court will decide whether and when partisan gerrymanders violate the First and Fourteenth Amendments.  Plaintiffs claim that Wisconsin’s electoral map, drawn to afford Republicans a significant partisan advantage in the legislature, deliberately dilutes the votes of certain voters and penalizes them for their viewpoints/political beliefs.  Gill‘s threshold question of whether the longstanding but corrosive practice of partisan gerrymandering is unconstitutional is a difficult one.  However, the question of how courts should determine whether an unconstitutional partisan gerrymander has occurred is even thornier.

Some scholars propose using a test called the “efficiency gap,” which measures how many votes are “wasted” by each party.  Wasted votes are defined as votes above the number needed to win in a winning district and all votes in a losing district.  The fewer the votes a party wastes, the more likely it has engaged in partisan gerrymandering.  Those who object to the use of the efficiency gap argue that it does not measure the fair translation of votes to representatives in single-member districts.

One reason the Justices have been reluctant to declare partisan gerrymandering unconstitutional is because of the Court’s wise skepticism about incorporating math and statistics into its jurisprudence.  Law is a methodology that relies mostly on analogy, logical reasoning, and critical interpretation of text.  Lawyers and judges are not trained as experts in math, or in any social science.  The assessment and application of complex, mathematically-based concepts is not within their institutional expertise.  However, law and math share many similarities, even if the law has normative elements and math aims to be purely descriptive.  Mathematical principles, like legal rules, are explanatory abstractions that provide guidance, uniformity, and consistency to whatever fits within its parameters.  Statistics, like law, tries to fairly account for a large number cases with a small amount of data, and ultimately is open to subjectivity and interpretation.  In addition to these similarities, courts already incorporate math and statistics in a wide-ranging number of contexts, from the evaluation of scientific evidence of causation in toxic torts cases to the examination of the false positive rate of drug-sniffing dogs.  Cataloging some of the instances where courts incorporate math helps illuminate how the Court should proceed in Gill v. Whitford.

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Abridged. (Discussion of timely links sent by colleagues and friends.)

This month’s Abridged features a cyclist getting fired for giving the middle finger to President Trump’s motorcade, the methods law enforcement uses to prevent violent clashes between white supremacists and anti-fascist counter-protesters, and a lawsuit concerning a serious case of cyber-harassment.

Today’s theme:  Targeting Speech Without Targeting Content

Continue reading “Abridged. (Discussion of timely links sent by colleagues and friends.)”

Louis C.K., Consent, and Safety Versus Autonomy

This week, I taught my Torts students doctrines related to consent, which is a defense to intentional torts like battery and criminal charges like rape.  This week, a comic hero of mine, Louis C.K., has been accused of violating multiple women without their consent.  Some of the accusations are conscience shocking.  Some of these accusations sound plausibly criminal, while others sound like they should not be actionable.  A deeper examination of the doctrine of consent — what it protects, and why we should be cautious about raising the bar too high on when it has been granted — is necessary to separate the illegal from the creepy.  Harmful is not the same as actionable, for important reasons that balance the tension between protecting safety and promoting autonomy.

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Rules and Results in Masterpiece Cakeshop


Masterpiece Cakeshop v. Colorado Civil Rights Commission illustrates the tension between rules and results in legal reasoning.  This blog post will cover the difficulty of articulating a viable legal rule in Masterpiece Cakeshop.   I have previously blogged about the free speech and religious liberty arguments in the opening brief of Petitioners Jack Phillips and Masterpiece Cakeshop; the implications of Justice Gorsuch’s dissent in Pavan v. Smith on Masterpiece Cakeshop; and the line-drawing problems presented by this case.

Two weeks ago, the briefs of Respondents Colorado Civil Rights Commission and of Charlie Craig and David Mullins were filed.  Respondents argue that Masterpiece Cakeshop des not have a First Amendment right to refuse to bake a cake for a same-sex wedding.  Commercial entities, they argue, should not be permitted to refuse to sell a product to a customer because of that customer’s identity characteristics.   According to the Colorado Civil Rights Commission, “Phillips violated the [Colorado public accommodations law] because he refused to sell any wedding cake of any design to an entire category of customers.”

Respondents’ arguments are compelling.  If the Supreme Court accepts Respondents’ position, the Court will have to articulate a fair, coherent rule that accords with First Amendment precedent.  Respondents propose something clear: a seller cannot refuse to sell a product to gay couples if it would sell the identical product to straight couples.  Respondents focus on the selling, and argue that selling cakes is not speech, just like allowing military recruiters access to university campuses was not deemed speech in Rumsfeld v. Forum for Academic and Institutional Rights.  However, allowing a speaker access to one’s facilities is much less expressive than the act of baking a custom-designed cake, which Petitioners consider to be a form of art.  In their brief, Petitioners had argued that Colorado’s antidiscrimination law compels pure speech.  However, baking and selling a cake is less expressive than a parade or standing to salute the flag.  Neither Petitioners’ nor Respondents’ best cases lead to a legal rule that harmonizes with other, foundational First Amendment jurisprudence.  Both sides seem guided not by rules, but by results.

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Abridged. (In which I connect all the links shared with me over the past week.)

One of the excellent benefits of teaching and writing on First Amendment issues is that friends and colleagues send me articles about First Amendment doctrine, free speech values, and academic freedom.  To respond to these myriad current events, I am creating a new type of post, called Abridged.  In Abridged, I will share, discuss, and connect all of the links sent to me over the past week. I would love to hear your thoughts as well.

Today’s theme:  Is the marketplace of ideas broken?

Continue reading “Abridged. (In which I connect all the links shared with me over the past week.)”

The Math Problem in The Good Doctor, and Why It Matters

I enjoy the television show The Good Doctor, as I enjoy most medical dramas.  This week’s episode, “Point Three Percent” makes an all-too-common math error.  This error has profound significance for criminal procedure, tort law, and scientific studies, because it changes whether we consider certain data significant.

Continue reading “The Math Problem in The Good Doctor, and Why It Matters”